Specialists in medical ethics are criticizing Maine’s medical board for choosing not to consider a Falmouth psychiatrist’s long history of sanctions when reviewing a complaint filed by the mother of a patient who committed suicide after overdosing on drugs he had prescribed.

Board members decided last month to allow Dr. Reinaldo de los Heros to continue practicing medicine under supervision without taking into account that his license had been revoked in three states after a 1997 conviction for felony Medicaid fraud or that the Maine board itself had cited concerns about his practice twice in recent years after receiving complaints about his care.

The board’s informal practice is to judge each case on its own merits without considering past history, said Tim Terranova, assistant executive director of the Maine Board of Licensure in Medicine.

But Dr. Michael Carome, director of the health research group for Public Citizen, a Washington-based nonprofit government watchdog organization that studies medical boards, said to decide cases in isolation, without considering a doctor’s track record, does not serve the public well.

“That is a ridiculous practice,” Carome said. “The board should be looking at patterns of behavior. Patterns of misconduct are important to consider when deciding if someone is a threat to the public.”

Jenna Mehnert, executive director of the Maine chapter of the National Alliance on Mental Illness, said that the board should have examined de los Heros’ past problems in other states when deciding how to handle the Maine case.

De los Heros, 64, was placed on six months’ probation on Feb. 24 by the board for failing to coordinate care with other physicians and for a lack of or inadequate treatment notes for his patient Kelly Deyo. Deyo, 39, died on April 19, 2015, in her Westbrook apartment, with 19 mostly empty pill bottles and a suicide note by her side. De los Heros started treating Deyo just a month before she died. In a matter of weeks, he gave her four new prescriptions for antipsychotic, anti-anxiety and antidepressant medications and doubled the dosage of an antipsychotic she had been on, according to pharmacy records. One anti-anxiety medicine she was taking was dropped.

De los Heros declined to be interviewed by the Maine Sunday Telegram, but released a statement on Saturday expressing sorrow for his patient’s death and defending his practice.

“My thoughts and prayers go to the patient’s family during this difficult time. Mental illness and addiction-related deaths are at epidemic proportions in Maine, and this is another tragic example of a life taken too soon,” de los Heros wrote. “Over the past 10 years in my psychiatric practice in Maine, I have worked tirelessly to help hundreds of patients receive diagnosis, treatment and healing for often complex psychiatric conditions. After my patient’s death, I worked closely with the The Maine Board of Licensure in Medicine to review the details of the case. I have been found fit to continue to provide care to patients.”

A STRING OF CASES INVOLVING DOCTOR

De los Heros is now required by the medical board to operate under the supervision of another doctor, chosen by de los Heros and approved by the board, for at least the next six months, according to the medical board’s consent agreement with the doctor.

It was the latest decision in a string of cases the Maine medical board had considered with de los Heros over the past 10 years.

In 2006, Maine granted de los Heros a license to practice in Maine, but required that he operate under a consent agreement, temporarily practicing under the supervision of another doctor, due to his legal and licensing problems in Massachusetts, New Hampshire and North Carolina.

In 2009, the board required that de los Heros undergo a “neuropsychiatric evaluation” in order to continue practicing medicine. The complaint that prompted that decision was not included in public documents posted on the board’s website.

In 2012, following another complaint, the board sent de los Heros a letter urging him to reduce the practice of prescribing multiple drugs to treat a single patient and to consider “managing patients with simpler evidence-based regimens.” The letter – which was not discipline but served as a warning – also said he should limit his patients’ long-term use of controlled substances.

According to a 2013 database created by journalism nonprofit ProPublica, de los Heros prescribed Schedule II drugs to 42 percent of his Medicare patients compared to an average of 8 percent among psychiatrists in Maine. Schedule II drugs are those with a high potential for abuse, according to the U.S. Drug Enforcement Administration, and include Vicodin, oxycodone, fentanyl and Adderall.

In the 2016 case, the board did not conclude that de los Heros overprescribed drugs to Deyo, who had suffered from mental illness and a heroin addiction since her early 20s.

Deyo’s mother, Elizabeth Marquis of Seabrook, New Hampshire, said she had provided the medical board with pharmacy records showing the dramatic increase in prescriptions by de los Heros.

“I’m appalled that he’s still allowed to practice,” Marquis said.

De LOS HEROS HIRED EXPERT WITNESS

De los Heros lost his license in Massachusetts, North Carolina and New Hampshire after he was convicted of felony Medicaid fraud and larceny in 1997 related to overbilling Medicaid $240,000.

Terranova said each case must stand or fall on its own merits, without considering past cases. He said it is the board’s custom to consider each case separately “to ensure that the licensee is treated fairly and given due process,” although that is not required by any official policy or state law.

When asked how that board custom protected the public, Terranova paused.

“I’m not quite sure how to answer that question,” he said. “In the vast majority of cases, it does.”

De los Heros wrote in his statement that the problems in other states were not related to patient care.

“The prior disciplinary actions in Massachusetts were related to billing and coding practices and occurred nearly twenty years ago. The loss of licenses in other states were due to licensing reciprocity rules with Massachusetts,” de los Heros said in the statement.

The Massachusetts medical board also sanctioned de los Heros in 2007 because the psychiatrist “fraudulently obtained renewal of his medical license by providing false information.”

The Maine medical board and de los Heros came to a consent agreement in February after meeting behind closed doors in November to discuss the case, avoiding a formal hearing.

Carome also knocked the board for allowing de los Heros to hire an expert witness while not bringing in an independent expert to evaluate the case. Dr. Harrison Pope of Harvard Medical School concluded that de los Heros prescribed medications appropriately to Deyo. De los Heros wrote in a July 2015 letter to the medical board that Deyo was responding well to treatment in the weeks before her death.

“To have the only expertise presented to the board hired by the physician targeted by the complaint is unacceptable,” Carome said. “You want an independent opinion. The person who is being hired by the physician is conflicted. It’s common sense that it would be a conflict of interest.”

Terranova said the board has wide latitude to bring in experts, but many times does not, especially if the board, which is made up of seven doctors and three public members, believes it has the expertise to evaluate the facts before them.

Because the board met in closed session to discuss de los Heros’ case, Terranova said he could not discuss the proceeding or reveal the decision-making behind not seeking any outside expertise.

Marquis filed her complaint last spring, shortly after Deyo died, and said she felt the process steadily being stacked against her. She said she didn’t find out until Sept. 30 that de los Heros was enlisting another doctor to support his position.

“I thought, ‘What? That’s not fair,’ ” Marquis said.

COMPLAINANTS HAVE LIMITED RIGHTS

Marquis sat in on de los Heros’ closed-door meeting before the medical board on Nov. 10, but she said that board members did not ask her any questions and seemed to believe much of what de los Heros was saying.

“They pretty much sang his praises,” Marquis said. “It was like they were his little puppets.”

After filing a complaint, those with disputes do not have a right to compel a formal hearing, bring their own witnesses unless asked by the board, or appeal the board’s decision.

“It becomes the board’s complaint,” Terranova said.

Linda DeBenedictis, president of the New England Patients’ Rights Group, a nonprofit that advocates for improved medical board policies that are fair to patients, said she’s not surprised that Maine’s medical board policies are skewed in favor of the physicians. That’s par for the course, she said.

“Medical boards have always been very lax toward the doctors,” DeBenedictis said. “The patient is at a disadvantage and, as a patient, you are very vulnerable. You assume the system is there to protect you, but sometimes it’s not.”

WHERE MAINE’S MEDICAL BOARD RANKS

Dr. Matthew Wynia, director of the Center for Bioethics and Humanities at the University of Colorado, said medical boards are typically populated by physicians and have an inherent bias in favor of doctors that’s difficult to overcome.

“They may approach the meetings very thoughtfully. But since they’re all doctors, or most of them are, they are going to be sympathetic to the difficulties of practicing medicine, and will lean in that direction,” Wynia said.

Wynia said he recommends more public members of boards – maybe even making up half of a state’s medical board – as a way to ensure balance. In Maine, three of the 10 board members are public members. All are appointed to five-year terms by the governor.

Public Citizen used to rank state medical boards according to how many “serious disciplinary actions” they handed out per 1,000 physicians, but it stopped doing so three years ago when the Federation of State Medical Boards stopped providing the data that Public Citizen needed to compile the rankings.

In the most recent statistics from 2012, Maine was ranked 23 out of 50 states and the District of Columbia.

Carome said Public Citizen is often playing defense with state legislatures, like when Louisiana recently tried to weaken its medical board to reduce disciplinary actions against physicians.

“The doctors lobby is very powerful and well-funded at the state and federal levels,” Carome said.

Meanwhile, Marquis said she was upset to discover the 2012 “letter of guidance” that the Maine board of medicine put in de los Heros’ file that she believes shows he had issues with overprescribing. The letter warned de los Heros that “failure to heed this guidance might lead to a disciplinary proceeding.”

Marquis said the letter was a red flag and the board should have known his prescribing practices were suspect.

“They could have saved my daughter’s life,” Marquis said. “The board needs to be held accountable.”

Copy the Story Link