WHEN IS DEATH BY DROWNING DESCRIBED AS "UNDETERMINED?" HOW SB 1189 (PAN) COULD BRING CLARITY.

Our story datelined 23 May 16 described an unusual case of death by drowning wherein the subsequent forensic autopsy report obscured the cause of death.  The forensic autopsy is supposed to answer questions. In this case there is worry that it did not and that intervention by legal authority was contributory. The question then arises as to who is allowed into the autopsy suite during a forensic evaluation. For the decedent's autopsy in this case the attendees included the pathologist who did the examination, one MD witness, the investigator for Patton State Hospital, two detectives, and the forensic specialist from the San Bernardino Police Department. The question that has arisen is to what extent the presence of law enforcement intimidated the pathologist or to what extend commentary from the non-MDs may have contributed to an altered conclusion. 

Senator Pan's bill, SB 1189, is intended to resolve these issues. It is sponsored by the Union of American Physicians and Dentists which represents state and county employed pathologists. SB 1189, which has already been amended twice, reportedly would require that doctors doing the autopsy would not only be duly licensed in California as a physician and surgeon but would also "preferably" be a "diplomat of the American Board of Pathology." This provision would increase the level of expertise of pathologists doing forensic autopsies. It has since been amended out of the bill.

SB 1189 would also require that police and other law enforcement personnel who have completed specified training could be allowed into the autopsy suite "at the discretion of the forensic pathologist." It would also "prohibit law enforcement personnel directly involved with the care and custody of an individual who died due to involvement of law enforcement activity from being involved in any portion of the postmortem examination being inside the autopsy suite during the performance of the autopsy." 

These provisions are not favored by law enforcement. These changes are desired by pathologists who want to do their work under as scientific and non-political conditions as possible. The Counties, responsible for costs, say that all of these changes will exceed their budgets and want the costs taken over by the state which does not want these costs added to the state budget. 

SB 1189 got delayed in Senate Appropriations but cleared "approps" on May 27th. Its next stop should be a senate floor vote. This publication recommends an aye vote. SB 1189 would then go to the Assembly where we recommend that teeth be put back into the bill.

Forensic autopsies should be done by pathologists with special training in the discipline. Law enforcement personnel should be allowed into the autopsy suite only at the discretion of the pathologists doing the examinations. Reports that conclude that the "manner of death" is "undetermined" should be limited to those reports where every effort has been undertaken to reach a scientific conclusion. We conclude that the current report herein discussed is thorough in reported details but falls short with reference to its conclusions. SB 1189 would strengthen the hand of the forensic pathologists who are responsible for the reports. 

IS ABIM'S TRANSFER OF ASSETS TO OFF-SHORE ACCOUNTS A PROPER OR IMPROPER USE OF TAX AVOIDANCE?

On 26 May 16 we asked why the ABIM Foundation would ship financial assets overseas into off shore non-taxable accounts. We assumed that the purpose was to protect money from IRS scrutiny. We suggested that IRS needed to take a look at ABIM and its Foundation to see if the organizations were sufficiently compliant with 501(c)(3) to continue function with tax exempt privileges. After further consideration we've concluded that ABIM's move was in conformity with likely recommendations of its lawyers and tax consultants and that it can reasonably be alleged that at least $6.5 million dollars in assets if submitted to IRS scrutiny might not meet the standards of 501(c)(3) compliance and is consequently at risk not only for taxation but also for penalties and interest. The ABIM lawyers were not asleep at the switch although the ABIM's BOD, beguiled by years of success, may have been. It also appears that boarded physicians have lost standing and professional privileges enough to warrant FTC investigation for restraint of trade. It was pointed out that ABIM's Dr. Richard Baron was rewarded with $812,000 remuneration last year (no night call required although it's our opinion that there was plenty of night-worry). Likewise, we've pointed out how other board presidents and CEOs have been super-amply rewarded, e.g., IRS Form 990 says that $843,000 was paid in 2012 to the president and CEO of ABPN (American Board of Psychiatry and Neurology). These levels of remuneration may be legal but seem inconsistent with the tax exempt status of the named organizations' stated goals. That is why it's felt by Change Board Recertification et al that IRS and FTC scrutiny are indicated.

WHY DOES THE AMERICAN BOARD OF INTERNAL MEDICINE FOUNDATION SHIFT ASSETS OVERSEAS?

More and more, healthcare is joining the industrial complex, read industrial-medical complex, similar to military-industrial complex, or, by way of abbreviation, MFF (Money First and Foremost).  Here's part of the inside story about ABIM: 

1) The ABIM founded the ABIM Foundation;
2) The ABIM Foundation shares its home address in Philadelphia with ABIM;
3) The ABIM Foundation's assets are recently reported to be $81,831,953;
4) The ABIM Foundation was initially funded by $55 million reportedly derived from examination and testing fees -- the $55 million came from the original ABIM which touted re-certification as though it were a public service or an effort to promote the public good by upgrading medical practice.
5) In effect, however, much of the money has been diverted into the waiting pockets of CEOs, board presidents, and other key officers and employees. By way of example, last year Dr. Richard Baron's remuneration was $812,000.  Meanwhile, countless physicians around the country were struggling to come up with enough money to "re-certify." To this extent, physicians with bona fide credentials were being squeezed out of practice in a form of trade restraint evidently not appreciated by the Federal Trade Commission (FTC). Organizations operating under the 501(c)(3) banner such as ABIM now appear to be working for goals not distinguishable from for-profit entities.

That's not all: A CONDO HERE, AN OFFSHORE ACCOUNT THERE ... 

6) The ABIM Foundation owns and/or operates a $2,356,267 condominium in downtown Philadelphia. The money to buy same was derived entirely or in part from the fees charged to hapless physicians who believed they had to recertify to stay in practice.

7) Now as the heat gets hotter, we're advised that the ABIM Foundation has transferred about $6.5 million into offshore accounts in the Cayman Islands and Dublin.

8) At a symposium in California about one year ago a document was distributed showing how one former ABIM physician officer was awarded stock options.

What's needed? HAS FTC AND IRS GIVEN PASSES TO ABMS ORGANIZATIONS? 

The Federal Trade Commission (FTC) should determine whether or not trade is being restricted; IRS, meanwhile, should examine whether or not the ABIM Foundation meets IRS 501(c)(3) requirements. Are its earnings lining the pockets of private shareholders or individuals?

For many observers the answer is yes. The amount of money paid out in personal remuneration appears exorbitant if the ABIM Foundation is a non-profit or charitable organization. It appears to many observers, this one among them, that IRS needs to review the tax classification of the ABMS boards and their associated organizations. At the same time, FTC needs to assess to what extent the covenants of MOC (Maintenance of Certification) are trade restrictive. 

References

Dr. Wes: "Standing up for the practicing physician"

ABIM Foundation Moves Assets Offshore, 5/20/16 

Change Board Recertification

Anti-MOC

Op-eds, The Weinmann Report, since 2012

"Probable drowning" (SB 1189, Pan & Jackson)

"Undetermined" is  the word used in the official Autopsy Protocol issued by the Coroner Division, San Bernardino County Sheriff's Department, to describe the "manner of death" of Roman Serna Lopez, Jr.

The report tells us some intriguing details as to the manner of death, for instance, that Lopez was found with "his head and torso in the trashcan, with his legs across and on top of the hamper. Lopez had a cloth bag over his head and face." The psychiatric technician who found decedent Lopez in this contorted state "pulled Lopez out of the trashcan and placed him supine on the floor. The cloth bag, which was only loosely around Lopez' head, fell off at that point. Lopez was unresponsive and 911 was called."

How's that, you ask? The autopsy report said that "Lopez had a cloth bag over his head and face." Are we supposed to believe that Lopez put the bag over his own head and face and then took a nose dive into a trashcan? Actually, the facts are even more incredible than that. The autopsy report also says that the trashcan was "filled with 13 inches of water." Are we being led to the possible conclusion that Lopez, whose medical history includes diagnoses of schizophrenia and polysubstance abuse, took a nosedive into 13 inches of water after pulling a cloth bag over his head and face and may have committed suicide in this peculiar manner? The decedent's toxicology screen which included search for cocaine metabolites, amphetamines, opiates, benzodiazepines, fentanyl, and cannabinoids was negative.

The actual examination showed some unusual findings, for example, "a single small petechial hemorrhage in the upper outer quadrant of the of the left sclera" and pulmonary findings showing "marked vascular congestion and alveolar hemorrhage."

There were a "few petechiae found in the sclerae and conjunctivae, consistent with a head down position" plus "acute hemorrhage of tongue."

In the section entitled Diagnosis the first listed diagnosis is "probable drowning." The decedent's body was found "with head inside plastic garbage can with an estimated 13 inches of water." The report adds that the "head was found submerged within the water." There was no evidence of significant blunt force trauma although the decedent's chest showed "mild congestion across the upper chest."

Dr. Trenkle's comment in conclusion was that the cause of death was "probable drowning, minutes." Doctor Trenkle stated that "the cause of death is probable drowning based on the scene description of the decedent being found with his head submerged in water and the absence of another significant competing reason for death."

Witnesses at the autopsy reportedly included Dung Van Tran, MD, and several law enforcement representatives.

My Comment: It is debatable whether or not persons in charge of a decedent's custody while the decedent were alive should be allowed to be present at an autopsy for the person for whose safety during life they were responsible. On the other hand the presence of such personnel is considered desirable if the pathologist or coroner has questions. The theory is that the person doing the autopsy should be able to ask questions that may help establish the manner of death. Law enforcement personnel, by contrast, are not supposed to question the pathologist lest so doing be construed as an attempt to influence the findings.

This issue of The Weinmann Report antedates a scheduled hearing at Senate Appropriations scheduled for later today when Dr. Pan is expected to present with reference to pending legislation, SB 1189 (Pan & Jackson) on this subject. We expect to post again on this matter after the hearing or even if the hearing is delayed. 

AB 2086 (Cooley): deserves passage, vote AYE.

RESTORATION OF NEUROPSYCHOLOGY (AB 2086, Cooley)

In a fit of anti-legislative pique last year, Governor Brown vetoed legislation that had handily sailed though both houses of the legislature. The intent of that legislation was to preserve NeuropsychQMEs. One of the arguments in favor of so doing was that this group of experts was especially well versed in the evaluation of patients with Traumatic Brain Injury (TBI) and had been on-the-job as "licensed health care providers" for 22 years. Their special expertise was applicable for injured workers who sustained cerebral concussions and whose medical plight thereafter became known as post-concussion head syndrome. Since the release of the movie, CONCUSSION, this topic has become a favored conversational subject.

Now comes AB 2086 as an urgency measure sponsored by the California Society of Industrial Medicine and Surgery (CSIMS) and by the California Psychological Association (CPA). The California Neurology Society (CNS) is in support. The California Medical Association (CMA) which submitted amendments which were accepted is neutral on the bill although this writer and others will continue to nudge CMA  for full-fledged support. So far the bill has passed the Assembly Appropriations Committee.

The bill's intent is to restore the right of injured workers with TBI to get workers' comp evaluations from clinical neuropsychologists within the QME (Qualitative Medical Evaluator) framework. Governor Brown's veto last year of AB 1542 (Mathis & Cooley) which would have restored NeuropsychQME status in 2015 instead essentially abolished the NeuropsychQME category at the request of Industrial Relations Director Diane Baker -- at least for the time being. 

AB 2086 seeks to set aside this veto. In making her original recommendation last year Baker overrode the professional opinion of the California Psychology Association. Her reasons for so doing were never well understood but were thought to reflect her desire to maintain departmental authority. Governor Brown, for political reasons still not entirely known, obligingly followed suit. The legislature had the chance to override the veto but declined, preferring to develop new legislation this year. That is the basis for AB 2086.

The wisdom of this choice is that AB 2086 amends current law so that once passed it'll no longer be possible for Industrial Relations directors to obstruct the neuropsych evaluation process by refusing to recognize NeuropsychQMEs. It would "ensure that lack of official Medical Board of California (MBC) recognition cannot be used as grounds to not appoint certain physicians as QMEs" and for the purposes of QME designation that those specialties recognized by the administrative director would be recognized. 

References

California Medical Association Legislative Hot List, 4/26/16

The Weinmann Report, www.politicsofhealthcare.com, 10/15/15

Will the Gov. Avoid a Collision in Health Care Policy?,  workcompcentral, 10/07/15, by Dr. Robert Weinmann

Gov's. Veto of AB 1542 Leaves Brain-injured Workers to Fend for Themselves, workcompcentral, 10/09/15, by Steve Cattolica, AdvoCal/CSIMS

Neuropsych Bill Headed to Governor, CSIMS, 9/01/15

ADDENDUM, 7 MAY 2016

On 28 April 2016 the California Assembly passed AB 2086 by 76-0. The authors are Ken Cooley, D-Rancho Cordova, and Devon Mathis, R-Visalia. If signed into law the bill would become effective immediately. The bill has been introduced to the State Senate. We do not have information so far on committee assignment. Remember that last year Governor Brown vetoed a similar bill that handily passed both houses of the legislature.