Tuesday, April 26, 2011 | 3:31 p.m.
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An attorney for Dr. Kevin Buckwalter of Henderson has filed a lengthy appeal brief in hopes of overturning a decision that members of the State Board of Medical Examiners are immune from a Buckwalter legal challenge.
The Nevada board in November 2008 suspended Buckwalter’s ability to prescribe medications after he was linked by authorities to patient deaths. The U.S. Drug Enforcement Administration had also blocked his ability to prescribe drugs.
A Las Vegas Sun investigation had linked his practice to multiple patient deaths involving alleged excessive quantities and dosages of prescription drugs -- and the oversight agencies linked Buckwalter to eight fatalities.
Buckwalter sued the Board of Medical Examiners last year, charging his civil rights were violated when the board on an emergency basis acted against him.
Buckwalter complained the board had failed to detail the allegations against him or schedule a hearing so he could defend himself. He also claimed that it bowed to political pressure resulting from the hepatitis C crisis in Las Vegas in 2008.
Attorneys for the medical board responded by asserting the board had good reason to suspend Buckwalter’s authority to prescribe drugs. They argued his lawsuit is unnecessary because he can press his case with the medical board, but hasn’t done so.
U.S. District Judge Kent Dawson in February dismissed Buckwalter’s suit, saying board members have immunity for actions related to their official duties and that it was Buckwalter who agreed to cancel a March 2009 hearing so a settlement could be negotiated.
That hearing is still available to Buckwalter, Dawson ruled.
But Jacob Hafter, Buckwalter’s attorney, said in his appeal brief to the 9th U.S. Circuit Court of Appeals that shortly after taking the case in December 2009, he contacted the Board of Medical Examiners and learned there were new allegations of violations of the state medical practice act and despite requests by Buckwalter, Buckwalter still hasn’t received notice of all the allegations the board is considering against him.
Hafter in the appeal brief reiterated that the only evidence turned up by the board involves record-keeping violations and that the suspension of Buckwalter’s ability to prescribe medication has effectively put him out of business.
"Dr. Buckwalter was a family and primary care physician who, due to an overly aggressive regulatory environment, was one of the few physicians in Nevada willing to treat patients with chronic and severe pain. However, due to the summary suspension of Dr. Buckwalter’s license, he immediately became a leper within the medical community. In addition, he was crucified in the press and blacklisted from all payor panels. Although the suspension was labeled 'partial,’ it has been a complete suspension of his medical license, as volunteer organizations will not even let him volunteer his time and services as a physician," the appeal says.
"This case is one of a violation of Dr. Buckwalter’s due process rights. The question before the appellees in the administrative action which is still pending is whether Dr. Buckwalter engaged in conduct which would be violative of the Nevada Medical Practice Act; the question in this case is whether the appellees violated Dr. Buckwalter’s due process rights when they summarily suspended his medical license, did such under the false pretense of an emergency, and continued such suspension without any notice or opportunity to be heard on such for the past two-and-a-half years," Hafter’s appeal said.
Hafter said he scored an initial victory in the appeal when the court agreed to consider the matter on an expedited basis, with his opening brief due April 22 and the Board of Medical Examiners reply brief due by May 23.
In opposing expedited review of the case, attorneys for the board wrote: "This dispute sat dormant because appellant stipulated to vacate his right to a formal hearing. At no time during the two-year stipulation period did appellant ever express to the board any urgency for his 'opportunity to be heard’ or that his constitutional rights were being violated in a manner that deserved priority attention."
They also said the appeal is meritless as medical board members are like judges and prosecutors with absolute immunity from their quasi-judicial acts.
But the appeals court, without explanation, sided with Hafter in expediting the appeal.
"I want to emphasize that I believe (and will be fighting hard in this case because) this case is not just about Dr. Buckwalter’s license; it is about the unfettered power that the Board of Medical Examiners has been given as a result of the District Court’s ruling and that effect on the constitutional rights of all physicians, physician assistants and other licensees of the Board of Medical Examiners," Hafter said in an email to the Las Vegas Sun. "The District Court’s erroneous statement that the defendants 'are entitled to absolute immunity while functioning in their official capacities as members of the Nevada State Board of Medical Examiners’ vaporized any constitutional rights which any licensee may have had, as the Board of Medical Examiners can now act in any manner they please, regardless of the U.S. Constitution, without any recourse on the part of a licensee."