(Continued from An Ethics Odyssey III)
More District branches, State Associations
Since no district branch or state association had yet answered my original question, and months had passed since my original round of letters, I wondered whether there might be some new players where inquiries might bare fruit. Another search of the company and APA Web sites revealed members apparently associated with the protocol in two more areas. On January 21, 2008 I wrote letters to the Illinois Psychiatric Society and the Southern California Psychiatric Society.
William Arroyo, chair of the ethics committee of the Southern California Psychiatric Society responded with a letter dated March 10, 2008. He referred to my “allegations of illegal fee-splitting” which would require the committee to “reach a legal conclusion of whether the law has been violated before there can be a determination of whether unethical activity has been alleged by you.”
I read on, hoping in vein for clarification:
“The SCPS lacks the authority and the resources to determine such a legal issue.”
This seems obvious.
“Hence it can not determine that there has been an allegation of unethical behavior.”
There clearly has not been an “allegation of unethical behavior.”
“Until such time that a court of law has determined that the ‘fee splitting’ you allege is illegal, the SCPS cannot issue an opinion on the ethical nature of this allegation.”
Dr. Arroyo seems to believe “the courts” can make ethics determination.
“Accordingly, the SCPS is not in a position to proceed with your letter of complaint and must decline to take further action. The SCPS will gladly review any new information related to this matter in the future.”
He went on to inform me that I could appeal to APA, but the letter confused me to such a degree that I was not sure what I might appeal. I wondered whether he had understood my original letter at all.
I got the sense SCPS did not want to pursue this, but I replied anyway, explaining that I had not alleged anything and certainly had not considered that any illegal activity had taken place. After a few weeks without a response from SCPS I did in fact write a letter of appeal to APA whose ethics committee upheld this “non-determination.”
I received a letter dated February 7, 2008 from David H. Baron, MD chair of the Illinois Psychiatric Society ethics committee acknowledging receipt of my letter. He explained the process in detail and asked me to provide further information. He enclosed a copy of the APA publication “Information for Complainants on the Ethics Process.” He provided the email address of a contact person in the IPS office.
Correspondence back and forth followed. I was asked whether I might be able to travel to Chicago for a meeting, but I pointed out that this was probably not necessary given that I had little actual knowledge of the critical facts surrounding the question. On June 23 I participated in a conference call with a committee. IPS left me with the greatest confidence that the investigation would be handled professionally and responsibly.
In a telephone conversation on September 10, 2008 Meryl Sosa of IPS told much of the investigation was completed with consideration of the evidence to occur soon. In a subsequent conversation she told me IPS had submitted the committee’s determination to the APA ethics committee for final approval.
Back to the Fee Splitting Question
Dr. Adler wrote on January 31, 2008: “Since the physicians have signed an NDA [non disclosure agreement] they may be in a bind regarding responding to our initial inquiry. We might need to contact the company asking them if the circumstances as conveyed to us are true. Unless they can definitively show otherwise, we would have to assume there is fee-splitting.” He appeared to put the burden of proof on the doctors.
Having heard no more from Dr. Richie I wrote the third psychiatrist to hold the position of WSPA President during this protracted process, Ray Hsiao, MD, on April 20, 2008 via email asking whether I might get a status report. Dr. Hsiao forwarded to Dr. Adler who forwarded to Dr. Richie. Still no response from WSPA, but it appears that I got the attention of the company again.
In a letter dated May 8, 2008 an attorney claiming to represent the company, apparently prompted by my inquiry to the Illinois Psychiatric Society, accurately pointed out that I “did not contact [the company] prior to filing [my] complaint.” She also accurately pointed out that I could have raised concerns with the company, which in fact I had. Then she got off track. She voiced the mistaken impression that company representatives could have somehow provided “information” to allay my concerns about the financial arrangement. “… you now have actual knowledge that your complaints are without merit and baseless.” Although she went on to cite determinations from the Georgia and Texas cases, she seems to have overlooked the questions raised in Washington. And she overlooked the fact that neither of those cases directly addressed the question. “Your actions evidence a malicious effort on your part to harass and intimidate these psychiatrists, and to tortiuosly [ie, We will sue you if you don’t stop.] interfere with [the company’s] professional business relationship with them.”
Her assertions grew wilder: “Moreover, your actions show a complete lack of respect for the several psychiatrists against whom you have filed complaints, in patent violation of the APA guidelines.” There are no such guidelines. In fact one could argue that members of APA have a duty to report possible ethical misconduct. I will readily admit to having a complete lack of respect for more than a few psychiatrists, but probably none of those associated with the protocol can accurately claim membership in that group. And of course no one from APA to this day has accused me of this “patent violation.”
I wrote the attorney promptly, describing my still futile efforts to get my professional association to assure me that any agreement into which I might enter with her client would meet ethical muster and assuring her that I felt no animosity for her client company. Alas she could only respond with another threatening letter (July 10). But then, to paraphrase Tigger, “That’s what attorneys do best.”
The important question raised by the role played by this attorney is whether the psychiatrist might be held responsible for using the threat of litigation to discourage an ethics investigation. I raised this issue with the Illinois committee.
Embarrassed Government Officials
In the fall of 2007 reports of controversy over a program using the protocol at a local clinic emerged. The clinic reportedly abandoned use of the protocol in the spring of 2008 amid questions of conflict of interest in government officials and questions about cost and evidence of effectiveness. In a telephone conversation a psychiatrist who had provided the treatment there told me another psychiatrist called him with questions about the protocol. He told me he was unsure of the psychiatrists name, but added that the caller did not identify himself as pursuing an ethics inquiry. Could this have been the mysterious Dr. Richie?
Finally, action! Dr. Adler wrote a letter dated May 16, 2008 in which he attributed the “delay in reviewing this matter” to “negotiations to obtain contracts from” the company. He addressed the matter of the financial arrangement first:
“… if the member in question were not direct licensees, but only clinicians operating the… protocol for an employer, then our review of the contracts indicate that the member psychiatrists are not participating in fee-splitting or its equivalent.”
On first read I thought the committee had determined the financial arrangement to be ethical. Then I read more carefully. It reminded me of a line from an old Harry Belafonte Calypso song, “It was clear as mud but it covered the ground.” It appears that Dr. Adler carefully worded the statement to avoid revealing information about the members’ relationships with the company. This I respect. But because he implied that none of the psychiatrists named was a party to the arrangement in question he never addressed the original question. Nor did he promise to address it later.
Dr. Adler did proceed to express concern on the part of the committee regarding informed consent. He went on to indicate initiation of investigation of the members to determine whether consent to treatment was informed consistent with ethics guidelines and promised “the entire process” might take “a year or more to complete”
What disturbed me most, however, was the wording of the letters WSPA sent to each of the listed physicians. Each letter stated that [the author] “filed a complaint… alleging that you have acted unethically.” This of course was far from the truth. I wrote to each of the psychiatrists myself correcting the mistake, and I wrote to WSPA to ask that the association likewise write letters correcting and apologizing for the error. Dr. Hsiao wrote back agreeing only to “inform the respondents of your ‘formal complaint’ as outlined in your letter.”
Continued: An Ethics Odyssey V