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Saturday, May 10, 2008

Blue Cross/Blue Shield Vs. Private Family Physicians...Corruption in Texas II

Introduction: Please note, if you haven't read the prologue to this piece, you can find that here. The prologue is an introduction to the overriding principles that this case uncovers. Please take a minute to read that in order to understand this portion better.

As the story I am about to tell unraveled for me, I couldn't help but notice some similarities between it and the movies of two of my favorite directors, Sergio Leone and Robert Altman. Those two film legends often told their tale by unfolding multiple story lines all at the same time and skipping from one sub plot, seemingly randomly, until the entire puzzle fit into place at the end of the film. Such is the story of the way in which BCBS, and their surrogates Dr. Doug Curran, Dr. Keith Miller, Dr. Fred Merian, retaliated against private family physician Dr. Shirley Pigott of Victoria, Texas. This story, much like other stories of corruption that I've covered, has many twists and turns.





Since, the reader can easily get lost in all the twists and turns, I will introduce many of the characters and entities that are involved first. Dr. Doug Curran is private family physician in a modest area of Texas. He is also the former head of the Texas Academy of Family Physicians and continues to be one of three members of the super secret BCBS Texas Medical Advisory Committee. The TAFP is the Texas branch of the American Academy of Family Physicians. The AAFP is the most powerful special interest group representing family physicians. Dr. Curran serves on the super secret BCBS Texas Medical Advisory Committee with two other doctors, Dr. Keith Miller and Dr. Fred Merian. Dr. Miller is currently a private family physician in Center, Texas and he was during the events in question the head of the Texas Medical Board Disciplinary Committee. That committee is in charge of judging cases of purported malfeasance by doctors in Texas. Dr. Fred Merian is the third person on the BCBS Texas Medical Advisory Committee and he was during the time in question also the head of the Texas Medical Association. The TMA is the biggest association of doctors in Texas.





Dr. Shirley Pigott is a practicing private family physician for twenty five year private family physician in Victoria, Texas. She was also during the time in question an active member in the TAFP. Jim White was the executive director of the TAFP during the period in question. Dr. Doug Henley was the Executive Director of the AAFP during the time in question. Dee Whittlesey was the "physician's advocate" for BCBS during the time in question. )Katie Johnsonius was an attorney at the Texas Medical Board. Scott Freshour was head of litigation at the TMB. Finally, Robert Simpson was lead general counsel at the TMB. (all during the period in question) Dr. Pigott went through the process of medical peer review at the Texas Medical Board. This involved a process called an informal settlement conference. This was the TMB's equivalent of a hearing and this hearing was presided by Dr. Keith Miller. The committee rendered its findings in writing, and the process of appealing these findings went through a state agency called the State Office of Administrative Hearings (SOAH). Dr. Pigott eventually hired former surgeon and semi retired attorney Clark Watts to represent her at this hearing.





The story starts in the middle of 2002 when BCBS sent Dr. Pigott a correspondence. BCBS determined that her billing practices raised suspicions and thus they were going to formally challenge them. Unbeknownst to Dr. Pigott at the time was that the committee responsible for going over her billing was the BCBS Texas Medical Advisory Committee made up of Curran, Miller, and Marien. This case was resolved several months later with BCBS deciding that some of Dr. Pigott's treatment bills were too large, and they took their standard financial action. (in other words they docked Dr. Pigott some fees and payments)





At roughly the same time, there was a growing and more restless set of AAFP members. These members were private family physicians. Throughout the country members complained that they were being squeezed, intimidated, and targeted by insurance companies. Many members complained that the AAFP wasn't doing enough to represent their interests against insurance companies. After about a year, the group finally decided to stop complaining and do something about it. What eventually grew was a group of doctors that called themselves the "35 group" (because the group initially had 35 members). They formed an alliance of private family physicians that was going to demand action from the AAFP.

The "35 group"* came up with three mandates that they planned on presenting first at the state level and eventually nationally. The three mandates were as follows: 1)the AAFP was going to be more aggressive in representing the interests of family physicians, 2)it was not acceptable for insurance companies to refuse to pay for medically necessary office tests or minor procedures 3)a clearing house would be created for complaints of family physicians to be shared among members of AAFP. These three mandates would serve as the bedrock for a new commitment for the AAFP to serve the interest of its private family doctor members more aggressively.

Dr. Pigott was put in charge of getting these three mandates through the Texas branch of the AAFP later that year in 2005. The proper procedure in the TAFP would for these three mandates to be debated in the Health Care and Managed Care Services Committee. The committee was enthusiastic about the three mandates and there was near unanimous agreement that this be moved to the full TAFP. Only one doctor argued against the resolutions - Dr. Doug Curran. Dr. Curran was not even a member of this particular committee. He was however the President Elect of the TAFP and decided to sit in on this particular hearing. At this time, Dr. Pigott had only heard of Dr. Curran, and this was her first direct contact with him. Despite Curran's dissension, the mandates passed and eventually they were passed in the national organization (AAFP) later that year.

In March of 2006, Dr. Pigott treated a peculiar patient. (due to the doctor/patient relationship the name obviously can't be revealed) The standard procedure that Dr. Pigott uses in her practice, initially, for a patient who wants her "health risks" evaluated is to take a medical history and order several basic lab tests. Then, when the tests come back, Dr. Pigott would meet with the patient to interpret the tests. It is this second appointment where Dr. Pigott would teach the patient what the tests meant and what the patient can do to improved her health risks. It is now that proper dieting, exercise, and frankly general lifestyle changes can be recommended based on the results of the tests. This particular patient didn't want any part of the second meeting. She sent Dr. Pigott's office a letter requesting that the tests be mailed to her, in violation of Dr. Pigott's policy. A second letter was more confrontational and threatened a complaint to the medical board if the tests weren't sent. According to a board rule, the patient has the right to receipt of those tests within 15 calendar days.


Because the behavior was so unusual, things unfolded before anyone realized. Dr. Pigott's administrative staff received the letters. The tests weren't sent because that is not the procedure. Dr. Pigott wasn't made aware of the letters until just more than 15 days had gone by. The tests were then sent out and no one thought about it again for a while.

In July of 2006, Dr. Pigott again prepared to present that year's mandates on behalf of the group of 35. These were several specific mandates in pursuit of accomplishing the goals of the mandates passed the previous year. Dr. Pigott expected this particular hearing to go fairly smoothly. She had been in contact with the TAFP for months, and each of the mandates had been announced to the organization. Dr. Pigott believed prior to the hearing that this would nothing more than a mere formality.

The hearing went nothing like she expected right from the start. The hearing was scheduled for two hours and it was an hour and forty five minutes before she was even allowed to speak. Each of her proposals was met with resistance. Members claimed that mandates were already being covered by other mandates, or that they had already been addressed. No matter what Dr. Pigott proposed, the committee had a confrontational response to it. Not only were each of the mandates killed but Dr. Pigott felt humiliated by the treatment of the committee. The person that was leading the charge in resisting each of these mandates was of course none other than Dr. Curran. Again, he wasn't even part of the committee, but rather decided to sit in as part of his duties as President.

Within months, several other things happened. First, Dr. Pigott was formally notified in writing of an upcoming informal settlement conference to settle a complaint by the previous patient who claimed that Dr. Pigott didn't return their lab reports in proper time. Then, Dr. Curran appeared in this advertisement for BCBS





Then this puff piece about Dr. Curran appeared on the internet
Dr. Doug Curran is everywhere these days. The longtime Athens-based family physician has been spotted in a few magazines you may have heard of, such as Newsweek and Sports Illustrated.

Through his longtime association with Blue Cross Blue Shield of Texas, Curran appears – wearing his white lab coat, clutching a stethoscope and looking more serious than one usually finds him – in a series of their print ads.

While those ads have garnered him the most attention over the last few months, a less visible appearance in another magazine carries even more prestige.On page S-18 of December's Texas Monthly (S for Super), Curran's name is listed under the Family/General Practice section of "Texas Super Doctors
2005."
BCBS was referenced in connection to Curran throughout the article and Dee Whittelsey was even quoted in the article throwing fawning praise at Curran. Dr. Pigott found these two things to signal a gross conflict of interest. In fact, it likely violated the Texas Medical Practices Act's position on so called testimonial advertising. Dr. Pigott began reaching out to anyone that would listen. She went up the chain of command at not only the TAFP but the AAFP. She even reached out to Dee Whittelsey herself. She even made several attempts to contact Curran himself. She called Jim White and Doug Henley along with Whittelsey and Curran.


The responses ranged from no comment to simply that none of what she complained about was in fact a conflict of interest. Dr. Pigott was not satisfied. She decided to use listserve. Listserve is the intranet chat room for all members of the AAFP. She complained on listserve that she believed the advertisement, the article, along with Curran's confrontational behavior amounted to a conflict of interest.

Finally, Dr. Curran confronted Dr. Pigott directly by phone. During a twenty minute conversation, Curran vigorously defended his actions and refused to acknowledge any conflict of interest. Then, out of the blue Curran said this,




by the way, do you know I'm on the BCBS Texas Medical Advisor Committee

By September of 2007, her case came up in the informal settlement conference in front of the disciplinary committee chaired by Dr. Keith Miller. Dr. Pigott expected nothing more than a minor slap on the wrist. After all, not sending out lab reports with 15 days (she says the lab reports got to the patient in about 20 days) is frankly the medical violations equivalent of j walking.

Instead, Dr. Miller began questioning Dr. Pigott very heavily. Throughout the hearing Miller tried to get Pigott to admit to wrong doing. He asked questions like




isn't the failure to give lab reports a violation of your oath as a doctor


Dr. Pigott felt like a witness on cross examination. This simple hearing about a technical violation turned into an interrogation. There was typical around a six month lag time between the informal hearing and the written findings being issued and thus this portion wouldn't pick up until the beginning of March of 2007.

The next event was a memo emailed throughout the AAFP. The memo essentially said that Dr. Curran would no longer appear in advertisements for BCBS. The memo was worded carefully. It never assigned any wrongdoing to any of Curran's prior actions, however it did essentially say that Curran would cease all the activities that Dr. Pigott was concerned about.

In one week, at the end of February and the beginning of March, three simultaneous though seemingly divorced (on the surface at least) events happened. First, she received a letter from the AAFP saying that her list serve privileges would be suspended. Then, Dr. Pigott attended a special hearing of the TAFP to discuss the concerns that she had raised about Dr. Curran. Since he had promised to cease all the activities that concerned her, Dr. Pigott had decided that it was no longer necessary to bring any mandates against him up for debate. Thus, when called, she merely said she was fine.

The TAFP, lead by Curran himself, then proceeded to charge three mandates against Dr. Pigott: 1)Dr. Pigott acted nastily and inappropriately toward Dr. Curran, 2)the Committee had treated Dr. Pigott appropriately at the 2006 meeting (when all of the mandates she brought to the floor were voted down), and 3)Dr. Pigott must write a letter to everyone she contacted regarding this matter and essentially make a mea culpa.

Then, when she got home from the meeting, she received the written findings from the TMB Disciplinary Committee. (keep in mind again that this is all over a patient not receiving lab results in fifteen but about twenty days) Here are some highlights.

Board to take disciplinary action against Respondent based upon Respondent's unprofessional or dishonorable conduct that is likely to injure the public, in particular, the disruptive behaviors that could reasonably be expected to impact the quality of her patients' care, as described in Board Rule 190.8(2)(Q).(3) [c04-Vio Rule 165 – Med Recds] Section 164.051 (a)

...

For a period of one year from the date of the Board's entry of this Order, Respondent's practice shall be monitored by a physician

...

The Compliance Division of the Board shall designate the monitor and may change the monitor at any time for any reason. The monitor shall have expertise in a similar specialty area as Respondent. The Compliance Division shall provide a copy of this Order to the monitor, together with other information necessary to assist the monitor.

...

The Compliance Division shall select records for at least 30 patients seen by Respondent during each three-month period following the last day of the month of entry of this Order

Thus, to conclude, for being late in getting lab results, Dr. Pigott was

unprofessional or dishonorable conduct that is likely to injure the public, in particular, the disruptive behaviors that could reasonably be expected to impact the quality of her patients' care

The punishment for this behavior included being monitored by a doctor appointed by the TMB and access to up to 30 patient's records. I believe the term draconian comes to mind when analyzing this punishment.

At this point, Dr. Pigott finally realized for sure that something was rotten in Denmark, as Shakespeare might say. Dr. Pigott decided not to accept the findings. In her letter, Dr. Pigott disputed everything the disciplinary committee found and for the first time she used the term, sham peer review.

This incident is an egregious example of what is commonly termed sham peer review. Without conscience, certain members of the Board have defamed my character and have determined to cause me harm.

Sham peer review is a process by which medical peer reviews like the one that Dr. Pigott had just gone through get corrupted. They can be summarized by one simple phrase: judge, jury, and executioner. The corrupting forces usually not only bring the charges, but they are the ones presenting the charges, and also in a position to rule on them. (veterans of my work will remember the case of Dennis Lennox in which he faced his own cousin of sham peer review. The concept of judge, jury and executionor certainly applied to his case as well) In this case, while there is no proof, the patient was likely a plant, and the corrupting forces always planned to bring the case in front of Dr. Keith Miller so that he could issue this draconian charge.

She decided to investigate some of the players. The most important discovery was the discovery in the TMB website that listed in the bio of Dr. Keith Miller was his position in the BCBS Texas Medical Advisory Board. She began making inquiries to members of the TMB, TAFP, AAFP, and BCBS itself. Everyone she spoke to neither confirmed or denied his position on this panel. She shared what she had found with the TMB attorney Katie Johnonius. Johnonius was unmoved, and thus the battle would now move to SOAH, the medical peer review version of appeals courts.

Once she discovered this new information, she took everything she had and hired Austin, Texas lawyer Clark Watts. Watts took what she gave him and approached Scott Freshour, head of litigation at the TMB. (the head of litigation would take over the case from here). Freshour and Watts agreed to a reduced penalty. This penalty removed most of the draconian language but still instituted a heavy fine and other stiff measures (continuing education, lighter monitoring, etc). Pigott refused to take this. Watts approached Freshour again and this time they settled on a $500 fine and 10 hours of continuing education in patient safety.

While Pigott considered even a one cent fine extortion, she finally relented and accepted the terms of the reduced penalty. Pigott then proceeded to take her story to any of the media on Texas. She approached the Dallas Morning News, the Houstin Chronicle, the Corpus Christi Caller Times, the San Antonio Express, as well as her local Victoria Advocate. She even approached her local ABC affiliate. Despite the potential far reaching implications if this story is accurate, she was denied every single time. In fact, she told me that the conversations we had (I would estimate between 5-6 hours) in preparation for this story were the most that any media ever gave her. Even though one could reasonable hypothesis, that this case would open up a pandora's box that could lead potentially to uncovering systemic corruption perpetrated by BCBS upon the entire medical system, the media would have none of this story.

The media has also largely ignored the travails of Dr. Keith Miller subsequent to some of the events described here. A google search of Dr. Keith Miller finds only certain activist groups reporting on his corruption

Notorious Texas Medical Board (TMB) henchman, Dr. Keith Miller, abruptly resigned his position on the TMB on Friday, September 7, 2007.

Miller’s resignation was due to the intense scrutiny of his abusive and tyrannical actions against physicians while on the TMB. It was also due to his relationship with Bridget Hughes, his Nurse Practitioner. Bridget Hughes, who was found to be a narcotics addict by the Texas Board of Nurse Examiners while employed by Miller, continues to work as Miller’s nurse practitioner at his office in Center, Texas. Hughes had her prescription writing ability suspended when she was disciplined by the Texas Board of Nurse Examiners (TBNE) on April 16, 2007 for stealing (50) triplicate prescriptions from her previous supervising physician employer and forging his name to obtain narcotics for her own use.


The story mentioned regarding a nurse of his stealing 50 pills of a controlled substance and forging Dr. Miller's name. Yet, this nurse practioner, Bridget Hughes, has never been brought up on charges, and you aren't going to find much mention of this crime anywhere in the Texas media.

In part 3, I will discuss my conclusions and the implications I see of this case, including the near black out by the media. So please follow the link for the conclusion of this series.

1 comment:

Shirley Pigott MD said...

Not quite accurate, Mike. I won the initial round and am now a top-rated physician according to BCBS, who I'm sure, must be choking to be forced to admit it.

As a result of re-evaluating my coding patterns, I realized I was coding too many 99215s (the highest complexity). However, many of the ones I would have previously coded as 5's and now code as 4's qualify for a prolonged service code, a 99354. The difference in reimbursement of a 99214 and a 99215 is about $30 - $40; adding a 99354 to a 99214 adds about $100 of reimbursement. So I thank BCBS for calling my attention to the fact that I was coding "too many" 99215s!

Shirley Pigott MD