Las Vegas Sun

October 27, 2016

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Regulators to hear malpractice cases against Henderson doctor


Dr. Kevin Buckwalter was recorded during a sworn deposition.

Sun Topics

A Henderson doctor linked by medical authorities to the deaths of eight patients after prescribing them narcotics may soon have four malpractice complaints adjudicated by state regulators.

After twice unsuccessfully suing the Board of Medical Examiners of the State of Nevada in 2010 and this year over its November 2008 suspension of his authority to prescribe controlled substances, Dr. Kevin Buckwalter and the board are finally on track for a hearing on the board’s four malpractice cases against him.

The proceedings before a board hearing officer could begin within a few months, said Jacob Hafter, one of Buckwalter’s attorneys.

Both sides blame the other for delays in resolving the four malpractice complaints.

Regardless of who is at fault, a move this week by the Board of Medical Examiners may have cleared the way for the case to get back on track.

The board on Tuesday agreed to lift the 2008 suspension of Buckwalter’s ability to prescribe, administer and dispense controlled substances.

This was pitched to the board by one of its attorneys as a procedural move aimed at avoiding having to have two hearings on the same issues: One a "post-deprivation" hearing and another a hearing on the underlying malpractice complaint.

Hafter had sought a post-deprivation hearing in hopes of proving the board lacked justification in 2008 to suspend Buckwalter’s drug-prescribing abilities – a suspension he says was made without notice and has deprived Buckwalter of his career.

Hafter has said that at most Buckwalter’s medical practice had record-keeping problems, there’s no evidence that Buckwalter harmed anyone, that Buckwalter was the victim of over-zealous newspaper coverage and that the Board of Medical Examiners used him as a scapegoat after the hepatitis crisis erupted in 2008 at the Endoscopy Center of Southern Nevada.

While lifting of the suspension was described as a procedural move, officials said it was warranted for other reasons favorable to Buckwalter.

"The committee (an investigative panel) feels that the lack of imminent threat to the public that now exists is pretty obvious. A long time has passed since the suspension date of Dr. Buckwalter’s prescribing abilities and privileges from November 2008 to today," Bradley Van Ry, deputy general counsel for the board, told the board.

"The public has been sufficiently protected over that interim," he said.

"Additionally there have been further investigations into many pending complaints that have shown a lack of merit or of which there was not sufficient evidence to proceed against Dr. Buckwalter on those," he said.

The upcoming hearing on the four malpractice complaints filed in 2008 "will sufficiently protect the public should a violation or multiple violations be found by Dr. Buckwalter," Van Ry said.

On top of that, board member Dr. Javaid Anwar noted Buckwalter has been taking continuing medical education courses.

"We all hope that we learn from the issues that we face in our life," Anwar added.

Despite the lifting of the suspension, it’s unlikely Buckwalter will be prescribing drugs anytime soon as the federal Drug Enforcement Administration also stripped Buckwalter of his prescribing authority in 2008, alleging that at least eight of his patients since 2005 had died of overdoses.

Hafter said he understands that Buckwalter is trying to get that federal suspension overturned.

Buckwalter, in the meantime, is asking the 9th U.S. Circuit Court of Appeals to overturn a federal judge’s order this year backing the state medical board in its 2008 suspension of his ability to prescribe drugs.

In another lawsuit, Buckwalter sued the medical board in Clark County District Court this summer, asking that one of the board’s four malpractice complaints against him be dismissed because it dates to a patient’s treatment seven years ago and Buckwalter no longer has that patient’s records or a detailed recollection of the patient’s treatment.

Prosecution of that complaint by the board seven years after the treatment, Hafter charged in the lawsuit, violates an "implied statute of limitations."

"The board believes that it has unfettered ability to do what it believes, regardless of the Constitution or the law," the lawsuit charged. "Here, the board, in a bastardization of justice, continues to try to destroy Dr. Buckwalter’s ability to practice medicine over cases of documentation issues."

Attorneys for the board responded in a court filing that "while the board has attempted to expeditiously process the underlying administrative matter, the instant petition only seems to be a further pretext by the petitioner to delay the prosecution of the underlying formal hearing regarding the administrative complaint."

Judge Gloria Sturman dismissed the lawsuit, called a petition for judicial review, because the board’s refusal to dismiss the complaint involving Patient "D" was not a final decision on the complaint and therefore is not subject to appeal.

The state’s complaint against Buckwalter says that between May 2004 and December 2005, Buckwalter wrote the patient some 34 prescriptions and that Buckwalter’s "excessive prescribing of Oxycontin and Kadian to Patient D" contributed to the patient’s death.

Buckwalter, in the meantime, has been defending against lawsuits in Clark County District Court filed by families of five patients who died:

• Andrea Duncan

• Barbara Baile

• Staci Voyda

• Stephen Richard Holden

• Christopher Fisher

Three more pending lawsuits in the same court allege malpractice and were filed by:

• Therese Sanda (claims over-prescribing by Buckwalter left her addicted).

• Lisa Repolio (claims over-prescribing by Buckwalter left her addicted).

• Kathy Hankin (claims Buckwalter failed to tell her about an abnormality detected in a chest x-ray).

Buckwalter has denied wrongdoing in these cases and is countersuing the parents of Duncan, charging they abused the legal process with their lawsuit against him.

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