The state licensing division's process for disciplining bad doctors is an ambiguous mess and needs to be changed.
That's the opinion being loudly expressed from all sides of the licensing regulation process in the midst of the controversial case against Ogden plastic surgeon Wesley G. Harline.In reviewing the litany of restrictions imposed Thursday on Harline by the state's licensing division, 3rd District Judge David S. Young voiced his concerns that the regulation process had been motivated too heavily by "emotionalism" and due process of law had been compromised.
Deputy Attorney General Joe Tesch describes the licensing division's disciplinary system as chaotic because of confusing laws.
Victims of doctors who are allegedly incompetent are protesting that the process takes too long and is powerless.
Not surprisingly, Paul N. Cotro-Manes, the attorney representing the disciplined doctor, Harline, agrees with the assessment of Young and Tesch.
"The process ran rampant. No one bothered to take a look at the Constitution of Utah or the United States," Cotro-Manes told the Deseret News Friday.
Instead of trying to allow Harline a chance to clean up his clinic by contacting the state Health Department, Harline received an emergency order to "shut down" on a Friday afternoon - at the peak of his weekend business, said Cotro-Manes. Most of Harline's plastic surgery patients travel from out of state on weekends, he said. "And the media reacted with sensationalism to the emergency order. His business will never recover."
For a state agency - outside the courts - to have power to enforce an emergency order "that could ruin the reputation of a doctor" overextends its intended authority, he contends.
The division imposed seven restrictions on Harline's practice - including that he must quit using injectable liquid silicone; must hire licensed health professionals to care for patients; must submit to examination by the state health department and use an intravenous line for patients undergoing surgery. Despite these restrictions, Cotro-Manes believes Harline was vindicated by the findings of the licensing division and Young's ruling.
"They haven't restricted the doctor from operating. All they've said is to make sure his clinic is clean. All the things they ordered he (Harline) was doing anyway," he said.
Besides complaints that Harline did not receive proper notification and that a committee of doctors was improperly convened to review the case, Cotro-Manes accuses the administrative judge who presided over the hearing of bias because he is employed by the state's licensing division.
"The administrative judge, J. Steven Eklund, is employed by the people who were forcing the action against Harline," he said. "It's absurd."
Dave Buhler, executive director of the Department of Commerce that oversees the licensing division, agrees there are problems with the licensing procedure.
"The Harline case is another illustration of why we need legislative changes to make our process more clear and eliminate some apparent or real contradictions within the licensing statutes. That's what the proposed legislation that would provide major changes is intended to do," he said.
However, Buhler thinks its unfair for the public to get the impression the division isn't doing anything because "a few high-profile cases are tied up in knots." The division has handled hundreds of cases this year, he said. For example, in May, the division took action against 13 professionals; in April, 15 licenses were either revoked, suspended or put on probation. Besides physicians, the state Division of Occupational and Professional Licensing regulates 48 other occupations.
Buhler contends the Harline case shows the process is fair because the emergency order that totally prohibited Harline from practicing was refined in the final restrictions. "If the initial order went too far, it was scaled down after the hearing."
Della Welch, the assistant attorney general who prosecuted the Harline case, defends the emergency order as necessary to protect the public. Her zeal was not based on emotionalism, she said, but on public safety.
"It's interesting that had we not acted, we would have been criticized. We went through a rational process under the law, evaluating the evidence," she said.
"The medical experts advised us to act immediately to protect the public's safety because of Dr. Harline's unsafe practice - such as performing three surgeries on Sable Tyree when she had recently eaten and without an IV - which are life-threatening. And to leave post-operative patients overnight to care for themselves and each other without medical supervision - these are not acceptable practices."