Published Monday, Jan. 24, 2011 | 12:15 p.m.
Updated Tuesday, Jan. 25, 2011 | noon
A Nevada doctor implicated by authorities in the deaths of eight patients is leveling new allegations against the State Board of Medical Examiners over its suspension of his authority to prescribe medication.
Dr. Kevin Buckwalter of Henderson sued the board in November, charging his civil rights were violated because the board has failed to detail the allegations against him or schedule a hearing so he can defend himself.
The new allegation in the lawsuit is that the board members gave in to political pressure and moved against Buckwalter in response to the hepatitis C crisis that emerged in Southern Nevada in early 2008.
The board in November 2008 suspended Buckwalter's authority to prescribe controlled substances and he's a defendant in eight negligence lawsuits filed in Clark County District Court since April 2009.
The Drug Enforcement Administration also blocked his authority to prescribe drugs after a Las Vegas Sun investigation linked his practice to multiple patient deaths. The oversight agencies linked Buckwalter to eight fatalities.
Attorneys for the medical board responded last month and this month to Buckwalter's November lawsuit, saying the board had good reason to suspend his ability to prescribe drugs and arguing Buckwalter's lawsuit is unnecessary since he has the ability to press his case with the medical board but hasn't done so.
Medical board court filings show that after his drug-prescribing authority was suspended, Buckwalter's attorney in 2009 signed an agreement with the board to vacate a scheduled March 18, 2009, hearing during which Buckwalter could have contested the complaint against him. Penalties in the complaint could be as severe as a permanent revocation of his medical license, court records show.
The hearing was vacated based on the anticipation the board's complaint against Buckwalter would be resolved through a negotiated settlement; and settlement talks apparently continued until Buckwalter filed his federal lawsuit in Las Vegas in November 2010.
Board attorneys say they view the November lawsuit as an "implied revocation'' of Buckwalter's agreement to stay the March 2009 hearing, so they're now preparing for a full hearing on the board's complaint and plan to hold it in April.
"The board has never, expressly or impliedly, attempted to deprive plaintiff of his right to hearing,'' said a filing for the board by attorneys with the Reno law firm Robison, Belaustegui, Sharp & Low.
Those attorneys also asked that Buckwalter's lawsuit be dismissed, saying he wrongly sued individual medical board members who are immune from such lawsuits.
In arguing against Buckwalter's motion for an injunction blocking the board from enforcing its suspension of his drug-prescribing abilities, the medical board attorneys related the history of the case:
• As early as August 2006, the board began investigating citizen complaints about Buckwalter's method of prescribing, administering and dispensing medication and this led to Buckwalter being issued a non-disciplinary letter of warning by a board investigative committee.
• After receiving additional complaints that Buckwalter's methods for prescribing narcotics were excessive and dangerous and that this may have contributed to patient deaths, the board continued to investigate Buckwalter and had information on Buckwalter's practices peer-reviewed.
• Two peer reviews received in the fall of 2008 indicated "that in several instances, the plaintiff's professional conduct fell below the appropriate standard of care.''
• In suspending Buckwalter's ability to prescribe drugs, the board "found and concluded, upon a preponderance of the evidence, that plaintiff (Buckwalter) maintained inadequate medical records, and prescribed excessive controlled substances, and that in at least one instance, the plaintiff's (Buckwalter's) conduct contributed to the death of a patient.''
In arguing against Buckwalter's motion that the board be restrained from enforcing its order preventing Buckwalter from prescribing drugs, the board's attorneys wrote in a court filing that any harm to Buckwalter by that order "pales in comparison to the interests of the public in being protected from physicians who have shown an inability or unwillingness to practice in conformity with the appropriate standard of care.''
"The State Board of Medical Examiners has determined, through appropriate investigation and peer review, that to allow plaintiff (Buckwalter) to continue to practice medicine poses a threat to the health and safety of his patients and to the general public,'' attorneys for the board argued.
Jacob Hafter, one of Buckwalter's attorneys, said Monday that based on that language and the board's stance against Buckwalter he believes the board will be moving to revoke Buckwalter's license, not just extend the suspension of his ability to prescribe drugs.
Yet, Hafter said, information the board has produced so far focuses on record-keeping violations and doesn't support either suspension of his ability to administer drugs or revocation of his license.
In responding to the board filings, Hafter and another Buckwalter attorney -- Michael Naethe -- said individual board members are not immune from the lawsuit because their suspension of Buckwalter's ability to prescribe drugs was made without Buckwalter being able to defend himself. They said that violated his right to due process under the U.S. Constitution.
"Defendants cannot demonstrate that they were shielded from political influence. Certain defendants are political appointees. All of the defendants are charged with upholding the legislative mandate set forth in (Nevada law). At the time which the summary suspension occurred, defendants were under intense public and political scrutiny to discipline and regulate the medical profession as part of the Endoscopy Center crisis. As a result, defendants acted swiftly and harshly to suspend plaintiff’s license, ex parte (in a one-sided fashion),'' Buckwalter's filing said.
"Such actions occurred despite the fact that defendants had not acted in such a manner against any physician previously who was alleged to have committed the same acts with which plaintiff was charged,'' his filing said.
"The summary suspension was widely publicized throughout the state of Nevada. To suggest that the defendants did not have political motives for what they did in this case is suspect, at best,'' the filing said. "The defendants rushed to discipline Dr. Buckwalter as a result of the Hepatitis C crisis and the allegations that the defendants were soft on disciplining doctors.''
Buckwalter's attorneys also said that in agreeing to vacate the March 2009 hearing, Buckwalter didn't waive his due process rights.
"The question in this case is whether the defendants violated plaintiff’s due process rights when they summarily suspended, did such under the false pretense of an emergency and continued such suspension without any notice or opportunity to be heard for the past two-plus years,'' Buckwalter's filing said. "For over two years now, with no relief in sight, plaintiff’s medical career has been destroyed as a result of an ex parte (one-sided) decision by defendants to summarily suspend plaintiff’s medical license.
"Plaintiff has turned to this court as an avenue of last resort to restore what he has dedicated his life to -- the practice of medicine,'' Buckwalter's filing said.
Attorneys for the state replied last week, citing previous case law finding the structure of the medical board and the procedural requirements of its decision-making process "show that board members are sufficiently insulated from political influence.''
The federal judge and magistrate judges assigned to the case have not yet indicated when they may rule on the board's motion that the case be dismissed or on Buckwalter's motion for an injunction.
Records show Buckwalter's now-restricted state medical license is set to expire June 30. Because of the November 2008 action against him, Buckwalter hasn't worked as a doctor for more than two years, Hafter said.
While the State Board of Medical Examiners has linked Buckwalter to one death, on Dec. 18, 2008, the U.S. Drug Enforcement Administration stripped Buckwalter of his ability to prescribe controlled substances, alleging that at least eight of his patients since 2005 had died of overdoses.
Buckwalter, in the meantime, is disputing the medical malpractice allegations against him.
For instance, in April 2010, Susan Lee Holden sued Buckwalter in Clark County District Court over the death of her husband Stephen Richard Holden.
"The tragic circumstances leading to Stephen Richard Holden's death were part of a pattern and practice of Dr. Buckwalter which involved the unnecessary and inappropriate prescription of controlled substances," the lawsuit charged.
Attorneys for Buckwalter disputed this, writing in an answer to the lawsuit Buckwalter "fully performed and discharged all obligations owed to" Holden "including meeting the requisite standard of care" to which he was entitled.