Physician Advocacy Appeal

Thursday, June 8, 2017

Dear Friends and Colleagues,

We’re halfway there in my GoFundMe campaign!!! To those who have contributed toward my legal effort, please know again of my heartfelt thanks. And for those who may not have seen the initial appeal, please see link at end of this letter.

Here’s the GoFundMe link:

https://www.gofundme.com/coalition-for-physician-rights-2w6589v8

I wanted to let you know what’s happened since my outreach in March, 2017 on behalf of my federal litigation and my initial efforts towards creating a physicians’ advocacy program.

As of this writing, I still await the deliberations on my Pro Se appeal to the 4th Circuit Court of Appeals.

In the interim, I studied the 2015 US Supreme Court decision FTC v. NC Dental both determining the fact of NC Dental’s commission of antitrust violations and overturning its sovereign immunity. I also researched abundant new FTC guidance on occupational licensing boards including its testimony before the US Congress. (I’m happy to share my research documents with all interested.) As a result, I filed an extensive complaint against the NC Medical Board, the NC Physicians Health Program and the NC Medical Society with both FTC Chair Maureen Ohlhausen and the FTC antitrust division. My complaint alleges an intentionally executed pattern of anticompetitive and anti-consumer behavior by all of these defendants acting in collusion and challenges their assertion of sovereign immunity. I provided proof that these defendants operate in a hostile manner without any governmental oversight (this was clearly documented by the NC Auditor in a separate legislative report on NC occupational licensing boards), thereby disqualifying them from a claim of sovereign immunity on such antitrust matters.

As several donors, especially physicians, have asked for access to the original federal district court complaint, briefs and ruling as well as my 4th Circuit Pro Se appeal and related briefs, here is a link to those documents:

Center for Physician Advocacy – Resources

Additional links to multiple highly relevant documents (including the NC Auditor’s 2014 Performance Audit of NCPHP) can be found on my GoFundMe page:

https://www.gofundme.com/coalition-for-physician-rights-2w6589v8

For those not familiar, let me apprise you of the gravity and far reaching implications of my case. With no patient or colleague complaint, and with curious timing in the midst of litigation for wrongful termination from a federal Department of Defense contract for my blowing the whistle on dangerously inadequate care of Marines and sailors returning from combat tours in the Middle East, anonymously submitted de novo concern was raised about my “mental health.” This from a police officer to whom I had been directed by the Chief of Police to discuss newly emergent safety concerns in the context of my whistleblowing. Even after obediently submitting to a fully valid comprehensive eight hour psychological evaluation gotten explicitly at their request whose report documented the absence of illness or concern, the NC Medical Board and NC Physicians Health Program chose to ignore this report and instead persisted with an invasive and fraudulent diagnostic investigation, the report of which they repeatedly refused to share with me. They demanded under threat of loss of medical license that I immediately report out-of-state for a costly “cash-only” four day evaluation at one of their “preferred programs” (Acumen Assessments), one proudly featuring a polygraph expert on staff. In the domain of legitimate mental health assessment, this is simply unheard of.

Despite multiple procedural objections and actively thwarting access to an external administrative judicial hearing on these objections, they were unrelenting in crafting a false narrative which I was prevented all means of objecting to or correcting. Adding further insult – and with likely defamatory intent to influence the concurrent whistleblower litigation, they then published on their official website this false and defamatory contested diagnosis (prohibited by all known confidentiality statutes), not acknowledging in any way its falsity or contested status.

This entire cascade ultimately resulted not only in irreparable harm to my reputation, future unemployability and my being compelled to sacrifice my hard-earned medical license; it directly contributed to the suicide of a long-term patient of mine whose care was needlessly interrupted. For me and my colleagues, this is the most repugnant and deeply disturbing of their extensive harm.

(Barring statutes of limitation and the multiple walls of immunity for state officials, a case might have been rightfully initiated against these entities for negligent homicide.)

The existence of this long-standing pattern of denial of due process is not speculation. The NC Auditor, upon complaints from multiple alarmed senior physicians who separately had observed what appeared to be a pattern of knowingly false diagnoses (NB: not simply erroneous) made by NCPHP in its Board-ordered “state sanctioned” assessments, conducted a performance audit in 2014. That report documented the pervasive violation of due process at NCPHP, along with the appearance of multiple conflicts of interest. It was determined that over the preceding decade, NCPHP likely violated the due process rights of over 1,140 North Carolina physicians. (The link to that audit can be found on my GoFundMe page.) So that you understand the extraordinarily damaging effect of this, loss of license in one state resultant from such a “state sanctioned” deliberation, notwithstanding its due process deprivation, means loss of license in all states. In other words, one’s medical career is annihilated.

Over the course of this protracted litigation, I’ve spoken with scores of physicians, nurses and other healthcare professionals in and outside of North Carolina who have been subjected to similar due process violations and who have been grievously harmed by their professional licensing boards – coincidentally often through similar false diagnostic assessments by that state’s Physician Health Program (“PHP”) or similar.

Fighting this battle is no longer about me or my right to practice or even about whether I receive compensation for lost income.

Rather, it is about physicians and all other healthcare personnel having the well established civil right to practice their profession without undue intrusion by an unchallengeable and non-accountable government regulatory body, one which manipulates the administrative legal system to deprive professionals of their constitutionally guaranteed due process rights. It is about preventing government entities such as the NC Medical Board and the NC Physicians Health Program (and by concealed Memoranda, the NC Medical Society) from abusing their police powers and from violating Fourth Amendment rights protecting one from unlawful search and seizure, here specifically compulsory unwarranted “fitness for duty” evaluations. And it is about our patients having the right to receive care and count on having continuity and exquisite confidentiality of their care from compassionate, dedicated and well-trained physicians without undue interruption from a government licensing board except for clearly substantiated cause. After much reflection, I concluded that contesting this pattern of egregious violation of due process and other rights is, for me as a physician and citizen and patient, an ethical duty. And I would hope that you too see it as such.

This is what my case is ultimately about. And I believe that the arguments I presented to the court delineate these violations clearly and directly confront the abuses of power committed by these agencies – not just in North Carolina but across the nation. Joined now by multiple respected and published colleagues who themselves have no such Board or PHP ensnarement but are appalled at these hideous Kafkaesque abuses, we are collectively demanding immediate correction of their ways of doing business. We are insisting that they institute responsible oversight, make their operations transparent and fully compliant with due process protections, and become fully medico-legally accountable. We are also intent on seeking reparation for those harmed.

https://www.gofundme.com/coalition-for-physician-rights-2w6589v8

Please help me meet my immediate financial goal so as to ensure that we can prevail in this crucially important endeavor.

In heartfelt gratitude,

Kernan

p.s. After visiting my GoFundMe page, please also take a moment share this letter with family, friends and colleagues, especially those who are physicians subject to these agencies. Sharing gets the word out to others – those who have been harmed and those who are unaware (but need to be aware) of such abuses. And forwarding my appeal more widely helps me reach my funding goal more quickly. Time here is indeed of the essence. These legal-related expenses have mounted significantly. Further, if you know of private or institutional foundations whose work is compatible with my mission and who may wish to lend support to my efforts, I would very much appreciate your connecting us.

p.p.s. Some have indicated that they would prefer to provide their financial support to me directly. Please feel free to do so – my mailing address is P.O. Box 7141, Gloucester, MA 01930. For any applicable tax-deductibility purposes, I am happy to provide grateful acknowledgement.

[Here is the original GoFundMe outreach letter: Ctr for Physician Advocacy – Feb 20, 2017 GoFundMe appeal]

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