Las Vegas Sun

March 29, 2024

Judge tosses doctor’s lawsuit against state medical board

Dr. Buckwalter

Dr. Kevin Buckwalter was recorded during a sworn deposition.

Updated Thursday, March 31, 2011 | 1:08 a.m.

Dr. Buckwalter, In His Own Words

A Deposition of Dr. Buckwalter.

Sun Topics

A judge has dismissed a lawsuit against the State Board of Medical Examiners by a Henderson doctor linked by authorities to patient drug overdose deaths.

Dr. Kevin Buckwalter sued last year, charging his civil rights were violated when the board on an emergency basis suspended his authority to prescribe medication in November 2008.

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.

The U.S. 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.

Buckwalter is a defendant in eight lawsuits alleging negligence filed in District Court since April 2009.

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.

In a ruling filed Friday, U.S. District Judge Kent Dawson in Las Vegas sided with the medical board.

Dawson found that medical board members have absolute immunity from lawsuits arising from their official duties and that there is no dispute that the board has authority to take emergency action.

“It cannot be seriously disputed that there are instances where public safety requires immediate suspension of licensee privilege,” his ruling said. “No sensible person would argue that the board would have to wait until after a hearing to suspend the privileges of a physician who was killing or even poisoning patients. Such matters require immediate action, without the delay inherent in preparing and serving notices and scheduling hearings.”

In this case, Dawson noted, a March 2009 hearing was set so Buckwalter could seek to overturn the suspension, but it was called off so a settlement could be negotiated.

A Buckwalter attorneys agreed to vacating the hearing, Dawson noted.

The judge said the negotiations did not result in a settlement, that Buckwalter has not sought to revoke his stipulation to vacating the hearing and that the medical board “has made it clear that a hearing is still available to plaintiff.”

“Plaintiff’s stipulation to vacate the formal hearing in this matter did not conclude the state proceedings,” Dawson ruled. “An administrative complaint was filed against him, and has not been discharged. Plaintiff cannot bootstrap himself into the position that he was denied a hearing after having agreed to vacate that hearing.”

Buckwalter’s attorney, Jacob Hafter, on Monday filed a notice of appeal to the 9th U.S. Circuit Court of Appeals.

Hafter has claimed Buckwalter hasn’t been treated fairly by the medical board.

The attorney maintains Buckwalter was victimized because the medical board used him to show it was not soft on disciplining doctors — and the board’s actions were a reaction to the hepatitis C emergency.

Because of an overly aggressive regulatory environment, Buckwalter was one of the few physicians in Nevada willing to treat patients with chronic and severe pain, Hafter has argued.

The suspension of the doctor’s ability to prescribe medicine was based on record-keeping violations, and with the suspension, “he immediately became a leper to the medical community,” Hafter wrote.

“He was crucified in the press and blacklisted from all payor panels,” Hafter wrote in his motion for a restraining order.

In pressing for an expedited appeal, Hafter argued Dawson’s ruling had “stripped Dr. Buckwalter (and all physicians) of any due process rights that they previously had in their medical license in Nevada under the due process clauses of the United States and Nevada constitutions.”

Hafter said that by allowing medical board members to believe they have “carte blanche absolute immunity in all actions, regardless of how they act or how they trample on one’s constitutional rights, the likelihood for continued abuses is high.”

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