More than a few doctors who have been hauled before their State Board of Medicine or Board of Medical Examiners to account for professional or personal transgressions have harbored the fantasy of striking back with a lawsuit of their own to inflict comparable anguish and anxiety on their "peers" on the board. Part of this desire may relate to a feeling that the practicing physicians on the board are sanctimonious or without empathy for their less advantageously placed brothers and sisters, or are overbearing, while buttressed by the investigatory powers and resources of the State.
Dr. Alan J. Mishler took his fantasy a step further than most and sued the Nevada State Board of Medical Examiners under the civil rights statute 42 U.S.C. ยง1983. His battle as documented in Alan J. Mishler, M.D. v. Robert C. Clift, M.D. and the Nevada State Board of Medical Examiners, 191 F.3d 998 (9th Cir. 1999) lasted at least 12 years, with at least four appellate level decisions in federal and state court.
Dr. Mishler, a neurosurgeon, apparently incurred the wrath of his professional colleagues when he reported "improper practices" on the part of his fellow physicians. The political ramifications of his actions surfaced among the Nevada Medical Examiners. When Dr. Mishler tried to move to Ohio, the Nevada Board delayed responding to a status request form the Ohio Board and then later advised Ohio that Dr. Mishler was under investigation for misconduct. A year later the Nevada Board filed formal charges resulting in proceedings against Dr. Mishler whose evidence was suppressed and destroyed by the Board and where Dr. Mishler was deprived of his rights of confrontations as to the evidence and witnesses against him. The administrative charges and findings against him by the Nevada Board were ultimately reversed and dismissed in Mishler v. State Board of Medical Examiners, 849 P.2d 291, 297 (1993). In a series of federal court decisions by the 9th Circuit Court of Appeals it was determined that the Nevada State Board of Medical Examiners were absolutely immune from civil liability for actions analogous to those of a judge or prosecutor. This ruling was consistent with that of other circuits addressing the issue. Wang v. New Hampshire Bd. of Registration in Medicine, 55 F.3d 698 (1st Cir. 1995); Watts v. Burkhart, 978 F.2d 269 (6th Cir. 1992) (en banc); Bettencourt v. Board of Registration in Medicine, 904 F.2d 772 (1st Cir. 1990) and Horowitz v. State Board of Medical Examiners, 822 F.2d 1508 (10th Cir. 1987).
The 9th Circuit, however, found that verification of a medical license to be part of a protected property interest. Mishler v. Nevada State Board of Medical Examiners, 896 F.2d 408, 410 (9th Cir. 1990); found that there was no qualified immunity for the board's failure to respond to the request of the Ohio board because it was a ministered act. Mishler v. Nevada State Board of Medical Examiners, 990 F.2d 1259 (9th Cir. 1996); and found that the State Board could be held liable for the "malicious deprivation of a license verification." Mishler v. Nevada State Board of Medical Examiners, 94 F.3d 652 (9th Cir. 1996). It would appear from the Mishler cases that State Boards of Medical Examiners, if not careful, may have significant exposure in the reporting of determinations before it to the National Practitioner Data Bank in Washington, just as a number of hospitals have recently enjoyed. One has to admire Dr. Mishler for his persistence alone.
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