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Medical Board Faulted for Licensing Convicted Rapist

This article is mirrored for historical purposes from:  http://medscape.com

Robert Lowes
November 25, 2014

http://www.medscape.com/viewarticle/835430?nlid=71043_2863&src=wnl_edit_dail&uac=24257DJ

Criminal background checks are not required for licensing a physician in almost a third of the 50 states. The case of William Dando, MD, however, may make one of those states rewrite its laws.

The Maryland Board of Physicians (MBOP) licensed Dr Dando in 1996, even though he pleaded guilty in 1987 to raping in a woman at gunpoint, according to state records. Last month, the Maryland health department issued a report that chastised the medical board for glossing over his 1987 conviction. In his license application, Dr Dando said he had been convicted of assaulting someone while intoxicated. The MBOP accepted Dr Dando's explanation at face value without bothering to dig deeper, according to the report from Inspector General Thomas Russell of the Maryland Department of Health and Mental Hygiene.

Of course, a criminal background check at that time would have ferreted out the whole truth, and presumably caused the board to reject Dr Dando's application. But even without this tool, Russell said, the board still could have asked the Florida Department of Corrections about the exact charges against Dr Dando, who served 3.5 years of a 10-year prison sentence. The MBOP also apparently ignored later revelations that Dr Dando had misled it about his crime, said Russell.

In the meantime, Dr Dando proceeded to rack up complaints to the medical board as well as two sex-offense charges involving a patient in 2014, which dredged up his criminal past. He surrendered his medical license this past summer.

Dr Dando was not the first or last physician with a prior felony to slip through Maryland's vetting process, which requires applicants to disclose criminal convictions. In 1988, the MBOP granted a license to a man who did not reveal that he had been convicted of robbery and second-degree manslaughter. And in 2011, a former Army officer was licensed after she admitted to a criminal conviction on her application, but misportrayed it to make herself look less culpable.

Maryland requires criminal background checks for nurses, chiropractors, dentists, and all other healthcare professionals licensed and regulated by its state boards — all except physicians, that is. That makes it 1 of 16 states that forgo this precaution, according to the Federation of State Medical Boards (FSMB), which has recommended background checks since 1998.

"We believe it's very important," said Lisa Robin, the FSMB's chief advocacy officer. "A criminal record for a physician may be rare, but it's still very important information as to whether the physician is professionally and ethically qualified to provide services safely."

Whether a state mandates a criminal background check for physicians depends in part on the "political environment" in the state legislature, noted Robin.

That can mean who is lobbying for such a law, and who is lobbying against it. Maryland's own track record illustrates how a state medical society or medical board can stand in the way of background check requirements.

For its part, the MBOP has agreed with Inspector General Russell's criticisms and recommendations. In a letter to Russell, board chair Devinder Singh, MD, acknowledged lapses in oversight in Dr Dando's case that were "contrary to the mission of the board to protect the public."

The board has proposed legislation that would require criminal background checks not only for initial licensure but also for license renewal and reinstatement.

"We're clearly behind the eight-ball on this," said Dr Singh in an interview with Medscape Medical News. "I'm happy to bring criminal background checks into the process.

"This deficiency was highlighted by a single case. It's a troubling case."

Medical Society and Board Once Opposed Background Checks

The Maryland medical board has not always supported criminal background checks.

In 2006, the research department of the Maryland legislature recommended rewriting state law to authorize the board to make these inquiries in light of applicants not self-reporting criminal convictions. The MBOP registered its reservations, according to Russell's report.

"The board expressed concern regarding the potential cost and possible delays in issuing licenses as reasons for not requesting authorization to do nationwide criminal background checks," Russell stated. The board also said that the authority to perform these checks wasn't necessary, given the "likely low number of licenses with positive records."

Table. States That Do Not Require Criminal Background Checks for Licensing Physicians1
Alaska
Colorado
Connecticut
Hawaii
Maine
Maryland
Minnesota2
Missouri
Montana
New York
Pennsylvania
Rhode Island
Utah
Vermont
West Virginia
Wisconsin

1Arizona requires criminal background checks for allopathic physicians, but not for osteopathic physicians.

2Minnesota will begin conducting criminal background checks on medical license applicants, beginning in 2018.

Source: FSMB

The Maryland State Medical Society (MSMS) voiced similar objections at the time, calling the proposed requirement for physicians to submit to fingerprinting and a criminal background check "offensive."

"This appears to be a solution in search of a problem which does not exist," Russell quoted the MSMS as saying. The proposal died in the state legislature.

Similar to the medical board, however, the medical society has changed its position.

"Right now we support background checks," said MSMS President Tyler Cymet, DO, in an interview with Medscape Medical News. "The concept is clear. The question is how it's done so it's coordinated and not burdensome."

What the society wants to avoid, said Dr Cymet, is a system in which physicians encounter multiple requirements for fingerprinting and background checks from medical schools, licensing boards, and hospitals.

The reversal by the medical board and the medical society on the issue fits a familiar pattern, said Lisa McGiffert, director of the Safe Patient Project of the watchdog group Consumers Union.

Proposals for reforms such as background checks "come about when there is a high-profile incident in the media," said McGiffert. "They tend to happen as a reaction, as opposed to pro-action."

Without any outside pressure exerted by a scandal, state medical boards give physicians the benefit of the doubt on alleged misbehavior, she said. "There is so much forgiveness along the way."

"It's true, most doctors aren't criminals," said McGiffert. "But it's the board's job to identify those doctors who are."

Red Flags Ignored Along the Way

Dr Dando was a husband, a father of two, and a first-year family medicine resident in Miami, Florida, in December 1986, when he broke into a woman's home and raped her while threatening her with a gun. He pleaded guilty to burglary and sexual assault with a deadly weapon, and in September 1987, he received a 10-year prison sentence. At the sentencing, he expressed remorse for his crime.

"I think that whatever your judgment, it will be less than what I deserve," the Orlando Sentinel quoted Dr Dando as telling the judge. "Had it been in another era, it could have meant my life."

The conviction merely interrupted his medical career, however. After he was released in 1991 for good behavior, Dr Dando managed to enter a residency program at the University of Maryland Hospital System. However, in 1993, trouble caught up with him again. The MBOP received a complaint that Dr Dando, who was not licensed at the time, was abusing controlled substances. He agreed to receive substance abuse treatment and undergo board monitoring for 5 years.

It was during that 5-year span that Dr Dando sought to get licensed in Maryland. He answered "yes" to an application question about a criminal conviction.

"In December [of 1986] I awoke to the harsh reality that I had a drinking problem," he explained in a letter to the MBOP. "During a short leave away from the hospital [of the residency program,] I became intoxicated and was accused of assaulting someone. I subsequently turned myself in [and] made a plea agreement with the state of Florida to undergo alcohol rehabilitation and a period of incarceration."

In his report, Russell characterized Dr Dando's explanation as "false and misleading."

The MBOP issued a license to Dr Dando in September 1996. The next year, the board was notified by its counterpart in Georgia that it was allowing Dr Dando to withdraw his application for a license there. The information received from Georgia suggested that Dr Dando might warrant registration as a sex offender, but the MBOP apparently did not reexamine the 1987 conviction, according to Russell's report.

In December 2003, the MBOP received a complaint that Dr Dando allegedly was habitually getting drunk and taking Ritalin (Novartis) and Ambien (sanofi-aventis) and that he had tried to run over someone with his car. The board then checked with the Florida Department of Corrections for more information about Dr Dando's criminal history and received a fax "clearly outlining what had happened in that case."

The board, Russell wrote, "still took no action after receiving this critical piece of information." It eventually closed the 2003 complaint about Dr Dando's alleged substance abuse, citing lack of evidence, as well as a similar one in 2004.

Dr Singh explained the 1997 and 2003 miscues by saying that board staff members failed to present the information from Georgia and Florida to the board's voting members. "There was some issue of staff incompetence," he said.

A complaint filed in 2005 finally stuck. A woman told the board that Dr Dando was prescribing excessive amounts of Xanax to her mother even though he had not examined her in more than a year. Her mother, the woman said, had had "several acute overdose episodes." In a slow-motion response that Russell said was characteristic, the MBOP reprimanded Dr Dando in April 2010 for substandard care, put him on probation for 18 months, and ordered remedial education on controlled substances and record-keeping.

Allegations of Improper Vaginal Exams

Dr Dando's career crashed into a brick wall in 2014.

The Maryland medical board in February 2014 received yet another complaint that he was overprescribing controlled substances, according to Russell's report. Then, in May, a woman told police that Dr Dando had performed an "inappropriate vaginal exam" the month before at an urgent care clinic where he worked.

The woman said that Dr Dando, unaccompanied by a chaperone and not wearing gloves, asked if what he was doing with his finger "hurt or felt good," according to Russell's summary of the police report. The woman tearfully asked Dr Dando to stop, which he did, and then she refused a proffered hug. Police said they had interviewed another patient who told a similar story about an improper vaginal exam.

Dr Dando was charged in a state court with "perverted or unnatural practice" and another crime that amounts to nonconsensual sexual contact. He pleaded not guilty, according to court records. Articles published on May 29 in the Baltimore Sun and the Orlando Sentinel on the charges also broke the news that Dr Dando had served time for rape in Florida.

At this point, the board moved quickly. In June, it suspended Dr Dando's license after concluding that public health and safety "require emergency action." Among its findings was the 1987 rape conviction. Two months later, Dr Dando wrote a letter to the MBOP stating that he was voluntarily surrendering his license to avoid further prosecution on allegations of misconduct with two patients. The board accepted his offer in September.

State prosecutors immediately dropped the criminal charges stemming from the alleged exam room misconduct in April, citing Dr Dando's surrender of his license as one of their reasons, the Baltimore Sun reported.

Dr Dando still faces a civil lawsuit filed by a West Virginia woman who alleges that he fondled her in the exam room. That case is scheduled for trial in April 2015. He also is battling a wrongful death suit filed by family members of a patient who died of a narcotics overdose in 2010.

Brad Roegge, Dr Dando's attorney in the pending lawsuit on the alleged fondling, told Medscape Medical News that he had no comment on his client's legal and regulatory troubles and that he would advise him not to comment as well. There was no response to an interview request delivered to an address listed for Dr Dando in court records.

College Pranks vs Crimes of Moral Turpitude

The MBOP's Dr Singh said that the medical board that licensed Dr Dando in 1996 and failed to act on tell-tale information afterward is not the same board that supports criminal background checks in 2014. In fact, he said, the board began to make an about-face in 2012, when it required applicants to document any application answers on criminal convictions and other matters of professional fitness.

Mandatory criminal background checks will tighten the licensing process even further, said Dr Singh. The key to collecting comprehensive records from every state is tapping into the database of the Federal Bureau of Investigation's (FBI's) National Crime Information Center. A medical board must be authorized by its state legislature to access the database; the proposed legislation in Maryland would give the MBOP this connection. It also requires license applicants to supply the fingerprint needed to unlock the FBI's data vault.

The board's proposed legislation addresses the concern of physicians such as Dr Cymet of the MSMS that physicians might be background-checked to death. Maryland would subscribe to a new FBI program called Rap-Back that would keep the state medical board continually apprised of any arrests or convictions after a physician has submitted to an initial background check and received a license.

Dr Singh hopes the bill will be introduced and passed in the Maryland General Assembly next year.

Under the proposed legislation, the board would retain a moderate degree of discretion in deciding whether a criminal conviction should disqualify someone from holding a medical license. Factors to consider include the person's age at the time of the crime, the person's work history since then, and employment and character references. Dr Singh said the board might choose to license a physician who was convicted of drunk driving at the age of 18, but who since then has been a model of sobriety. "Or he might have stolen a fraternity statue while he was in college and gotten a misdemeanor," said Dr Singh.

Such lesser infractions on the order of college pranks, said Dr Singh, contrast sharply with crimes of moral turpitude. This term refers to inherently vile and depraved conduct that, in the words of one legal case, "shocks the public conscience."

One commonly cited example of moral turpitude is rape. Dr Singh said he doubts whether his medical board would take much time to deliberate on a convicted rapist, especially since licensing such a person could "destroy the public's confidence in the profession."

"Rape is obviously a heinous crime," he said, "and is considered a crime of moral turpitude, and is clearly a ground for denial of license.

"The board would probably decide that no discussion is needed."
 

Medscape Medical News 2014  WebMD, LLC


Citation:   Medical Board Faulted for Licensing Convicted Rapist. Medscape. Nov 25, 2014.