Disciplinary Proceedings
against Stuart M. Suster, M.D.


In August 2004, the Wisconsin Medical Board revoked the medical license of Stuart Suster, M.D.,, a board-certified physiatrist who operated the Great Lakes Pain Center in Wauwatosa, Wisconsin. The charges against Suster, specified in the complaint below, included:

In 2002, shortly before these charges were filed, WITI-TV used a hidden camera to document what the producer called "blatant emotional and psychological abuse" to patients who inquired about their bills. Hearings on the charges began in December 2003. On December 4, WITI reported that during the first three days, "Suster frequently disrupted testimony with angry outbursts . . . yelled at witnesses and threatened both the judge and the state's prosecuting attorney, using derogatory names and profanity-laced tirades." In July 2004, an Administrative Law Judge issued an 81-page report concluding that all of the charges were substantiated and recommended that Suster's license be revoked. The revocation was immediate, although Suster can appeal the decision in state court.

Although the proceedings did not question Suster's basic use of the Dynatron machine, there is good reason to do so. Proponents claim that the device relieves chronic pain by influencing the sympathetic nervous system. However, an assessment published in 2002 by the Washington State Department of Labor and Industries concluded that it has not been proven effective.

In April 2005, Suster was charged with 19 criminal counts of "simulating legal process" in connection with the disciplinary proceedings. The criminal complaint states:

"Simulating legal process" is a Class I felony. The maximum penalty for each count is a $10,000 fine and 3.5 years of imprisonment.


STATE OF WISCONSIN
BEFORE THE MEDICAL EXAMINING BOARD

IN THE MATTER OF THE DISCIPLINARY
PROCEEDINGS AGAINST

STUART M. SUSTER, M.D.,
RESPONDENT
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COMPLAINT

LS___________________MED
00 MED 272

I am an employee of the State of Wisconsin Department of Regulation and Licensing, Division of Enforcement. I have read this complaint and know the contents thereof; I have reviewed the investigation file in this matter; and based on that information, I believe that the allegations of this complaint are true.

1. Respondent Stuart Michael Suster (dob 5/5/59) is and was at all times relevant to the facts set forth herein a physician and surgeon licensed in the State of Wisconsin pursuant to license #32820, first granted on 11/20/91. Respondent is a physiatrist. His address of record is 929 N. Astor St., #608, Milwaukee, WI 53202.

COUNT I: Controlled Substances and Dispensing Violations

2. On and between 1995 and 4/2/02, respondent possessed controlled substances in his office for the purpose of dispensing to patients, and has acquired controlled substances from patients whom he determined to be no longer appropriate to take such controlled substances. During this time, he failed to make and keep and have available for inspection any biennial inventories, as required by 21 CFR § 1304.11 and § Phar 8.02(2), Wis. Adm. Code, failed to keep a legible, complete, and accurate dispensing log for such substances as required by § Med 17.05(2)(b)2., Wis. Adm. Code, and failed to keep records of: and is unable to account for, all controlled substances received, dispensed, or otherwise disposed, or as required by 21 CFR §1304.21 and §§ Phar 8.02(1) and Med 17105(2), Wis. Adm. Code.

3. Such conduct is unprofessional conduct pursuant to § Med 10.02(2)(p) and (z), Wis. Adm. Code.

4. On October 16, 2001, respondent provided patient Tammy M. a plastic bag containing a number of loose Esgic® pills, a prescription medication, not in a childproof container, without labeling or dosage instructions, and not in sample packaging.

5. Respondent's conduct in dispensing Esgic® to patient Tammy M violated §§ Med
17.03 and 17.04, Wis. Adm. Code, and is unprofessional conduct under § Med 10.02(2)(a), Wis. Adm. Code.

COUNT II: Violation of Board Order, Board Process

6. On 11/14/01, the Wisconsin Medical Examining Board issued an Interim Decision & Order requiring, among other things:

IT IS FURTHER ORDERED, that persuant to §448.02(3)(a), Wis. Stats., within 30 days of this Order, respondent shall submit to a 5 day comprehensive residential evaluation at Rogers Memorial Hospital under the supervision of Professional Recovery Network, or such other facility and. evaluator as may be acceptable to the Board. Respondent shall release all records and reports to the Board and its agents, and permit the Board and its agents to discuss the matter with the evaluators and staff of PRN and the hospital.

Respondent submitted to an evaluation at a facility acceptable to the Board in December, 2001, persuant to the Order. However, upon arrival at the facility and during his stay, respondent refused to release his records or the report of the evaluation directly to the Board, and required the facility to send its report to his attorney only.

7. The conduct described in the previous paragraph violated § Med 10.02(2)(b), Wis. Adm. Code. Such conduct constitutes unprofessional conduct within the meaning of the Code and statutes.

8. On July 3,. 2002, a formal request was submitted to respondent by the department for the patient health care record of Marty L, formerly a patient of respondent's. The file was not received until October 1, 2002.

9. The conduct described in the previous paragraph violates § Med 10.02(2)(z), Wis. Adm. Code, in that it violates §146.82(2)(a) and 146.83(4)(b), Wis. Stats., and is unprofessional conduct within the meaning of the Code and statutes.

COUNT III: Sexual Misconduct/Boundary violations

10. On and between February 3, 2000 and May of 2001, respondent provided professional services to Janet A. During this time, respondent engaged in the following activity in his office with the patient: while alone with the patient in a treatment room respondent without warning' or consent from the patient grabbed and fondled the patient's breasts. The patient did not initiate, welcome, or consent to such contact, nor did it have any medical purpose. The purpose of this contact was respondent" s own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

11. On and between June, 2001, and July, 2001, respondent provided professional services to patient Marilyn B. During this time, respondent engaged in the following activity in his office, with the patient: while alone with the patient in a treatment room while she was receiving electrostimulation treatment in a reclining chair, he leaned over her, and with his arms on her chest, kissed her forehead. The patient did not initiate, welcome,, or consent to such contact, nor did it have any medical purpose. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

12. Between March of 2001 and May of 2001, respondent provided professional services to Maria B. During that time, respondent engaged in the following activity in his office with the patient: while alone with the patient in a treatment room when she was receiving electrostimulation treatment in a reclining chair, respondent leaned over the patient and kissed her on the cheek. The patient did not initiate, welcome, or consent to such contact, nor did it have any medical purpose. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

13. In the month of April 2000, respondent provided professional services to patient Vicki B. During that time, respondent engaged in the following activity in his office, with the patient: during an office visit respondent kissed the patient on the cheek without her initiating such contact or giving any. indication that it would be welcome. The patient did not initiate, welcome, or consent to such contact, nor did it have any medical purpose. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

14. Between Man:h 1, 2000 and April 4, 2000, respondent provided professional services to Melanie C. During that time, respondent engaged in the following activity in his office with the patient: while alone with the patient in a treatment room when she complained of chest pain, the respondent without any warning, grabbed the patient's breasts. The patient did not initiate, welcome, or consent to such contact, nor did it have any medical purpose. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

15. Between July 10, 2001 and September 8, 2001, respondent provided professional services to Kim G. During that time respondent engaged in the following activity in his office with the patient: the patient reported having pain in her leg. While alone in a treatment room with the patient, respondent without warning or consent from the patient grabbed the patient's breasts, stating it was apart of her treatment. In fact, it was not a part of her treatment and had no medical necessity or appropriateness under the circumstances. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

16. During December, 1996 and between 5/9/1997 through 913/1997, respondent provided professional services to Mary G. During that time, respondent engaged in the following activity in his office with the patient: the patient reported having an implant in her back and being unable to wear underclothes. While alone with the patient in a treatment room, respondent had the patient take of her clothes, put on a gown, and bend over in front of him. Respondent also without warning, grabbed the patient's breasts, stating it was a part of her treatment. In fact, it was not a part of her treatment and had no medical necessity or appropriateness under the circumstances. The patient did not initiate, welcome, or consent to such contact, nor did it have any medical purpose. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

17. Between 3/1/99 and 12/27/99, respondent provided professional services to Mary 62. During that time, respondent engaged in the following activity in his office with the patient: while he was providing the patient with physical therapy alone in a treatment room, respondent had the patient lie supine on a table as he bent her legs back and proceeded to rub his genital area on the side of her body. The patient did not consent to such contact with respondent's genital area, nor did it have any medical purpose. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

18. During June of 2001, respondent provided professional services to Chrissy H. During that time, respondent engaged in the following activity in his office with the patient: while alone with the patient, respondent told the patient how beautiful she was, asked her whether she had an active sex life, and stated several times that she was with the "wrong man." Respondent also without warning, or consent from the patient kissed the patient on her head, rubbed her legs, and fondled her breasts, although no breast examination was charted. The patient did not initiate, welcome, or consent to such contact nor did it have any medical purpose. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

19. Between February of 2000 and November of 2000, respondent provided professional services to Patricia R. During. that time, respondent engaged in the following activity in his office with the patient: while with the patient in a treatment room, respondent told the patient how long his penis' was, encouraged the patient to divorce her husband., and rubbed his genital area against the patient when staff members were not looking. The patient did. not initiate, welcome, or consent to any of this speech or contact with respondent's genital area. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

20. Between February or March of 2000 and September or October of 2000 respondent provided professional services to Kristi S. During that time, respondent engaged in the following activity in his office-with the patient: while alone with the patient in a treatment room respondent asked the patient about her sex life and whether she had read the Kama Sutra. Respondent also discussed in great detail different sexual intercourse positions found in the Kama Sutra. The patient did not initiate, welcome, or consent to such speech, nor did it have any medical purpose.

21. Between December of 2000 and December of 2001, respondent provided professional services to Cindy M. During that time, respondent engaged in the following activity in his office with the patient: while alone with the patient in a treatment room while she was receiving a neck adjustment for a migraine headache, respondent kissed the patient several times on the forehead and face. The patient did not initiate, welcome, or consent to such contact, and it had no medical purpose. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her. During other visits, respondent also made inappropriate sexual comments to the patient including telling the patient in graphic detail about how in India people "sodomized" elephants so often that the government had to make the practice illegal. The patient did not initiate, welcome, or consent to such speech, nor did it have any medical purpose.

22. Between February of 1995 and December of 2000, respondent provided professional services to Linda R. During that time, respondent engaged in the following activity in his office with the patient: while in a treatment room with the patient as the patient laid supine on a examining table, respondent leaned over the patient and rubbed her shoulder, placed her head into his chest, and without warning or consent from the patient grabbed the patient's breast nipple. The patient did not initiate, welcome, or consent to such contact, nor did it have any medical purpose. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

23. On and between September 12, 1997 and January 2, 1998, respondent provided professional services to Karen T. During that time, respondent engaged in the following activity in his office with the patient: the patient reported having bruises all over her body and suffering from seizures as a result an automobile accident. While examining the patient, respondent without warning or consent from the patient rubbed the patient's breasts, stating he thought she was faking her seizures. The patient did not initiate, welcome, or consent to such contact, nor did it have any medical purpose. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

24. On July 20, 2001 respondent provided professional services to Linda B. During that time, respondent engaged in the following activity in his office with the patient: respondent had the patient put on a gown that was open in the back and made her walk away from him twice, thus exposing her unclothed back and buttocks to him. There was no medical necessity for the patient to be so exposed. The patient was upset and tearful at this humiliation and sat down, at which time respondent leaned over the patient and pulled her head into his chest; the patient did not initiate, welcome, or consent to such contact, nor did it have any medical purpose. The purpose of this contact and the conduct preceding and precipitating it was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

25. On and between February 9, 2001 and March 28, 2001, respondent provided professional services to Mimi S. During that time, respondent engaged in the following activity in his office with the patient: while alone with the patient in a treatment room respondent began to badger the patient with questions and comments at which point she started to cry. Then respondent leaned over the patient where she was seated and pulled her head into his chest and hugged her. The patient did not initiate; welcome, or consent to such contact, nor did it have any medical purpose. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her.

26. On and between September 1998 and June, 1999, respondent provided professional services to Jeanne K. During that time, respondent engaged in the following activity in his office with the patient: while alone with the patient in a treatment room respondent told the patient that he would make her feel better; he told he not to worry and then approached her and kissed her on her forehead. The patient did not initiate, welcome, or consent to such contact, nor did it have any medical purpose. The purpose of this contact was respondent's own sexual gratification and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over her. On a different occasion, respondent was administering prolotherapy injections to respondent's back, he commented that she had big breasts and she should keep them covered up as someone could ''take it the wrong way."

27. On May 31 and June 5, 2001, respondent provided professional services to patient Robert S. On June 5, 2001, respondent engaged in the following activity in his office with the patient: the patient reported being constipated, and to having a history of constipation. Respondent stated that he needed to give the patient a rectal examination to check for blockage. Immediately after the digital rectal examination and without warning the patient of what was to happen, respondent grabbed and fondled the patient's scrotum. The patient objected and respondent stated that he had to check for blockage there, too. In fact, there was no medical necessity or appropriateness to any such contact with the patient's scrotum. The patient did not initiate, welcome, or consent to such contact, nor did it have any medical purpose. The purpose of this contact was respondent's, own sexual gratification' and/or the sexual humiliation or degradation of the patient for the purpose of establishing control over him. Respondent did not note any rectal or scrotal examination in the patient's chart.

28. Such conduct violated § Med 10.,02(2)(intro) and (h), Wis. Adm. Code, and is unprofessional conduct, in that it was sexual in nature and was not engaged in for the benefit of .the patient, but rather solely for the gratification of respondent. "Sexual or romantic interactions between physicians and patients detract from the goals of the physician-patient relationship, may exploit the vulnerability of the patient, may obscure .the physician's objective judgment concerning the patient's' health. care, and ultimately may be detrimental to the patient's well-being." (AMA Ethical Opinion E-8.14: Sexual Misconduct in the Practice of Medicine.) Such conduct was below the minimal standards of the profession and exposed the patient to risks of harm to which a minimally competent physician would. not have exposed the patient. Any reasonable and minimally competent practitioner would. avoid' those dangers by not engaging in such conduct.

29. Except as. to. the conduct relating to Kristi S. (which consisted of speech only), such conduct violated § Med 10.02(2)(z), Wis. Adm. Code, in that it constitutes Fourth Degree Sexual Assault pursuant to §940.225(3)(m), Wis. Stats., and is unprofessional conduct

COUNT V: Solicitation

30. On October 10, 2001, respondent provided a consultation to Kim. At that time, .respondent recommended the patient take pain medication and undergo Dynatron treatments for her chronic pelvic pain. When the patient declined, respondent told the patient that she should undergo the treatments, and if she did not, she would think of him when her husband is sick and tired of her and divorces her because she can't have sex anymore.

31. Such conduct violated § Med 10.02(2)(o), Wis. Adm. Code, and is unprofessional conduct.

COUNT V: Threats to Injure

32. Between May of 2001 and October of '2001, respondent provided professional services to Christine O, During the time, respondent engaged in the following activity in his office with the patient: when the patient asked respondent to take her off the medications he prescribed: 'because of their side effects, respondent demanded that she take a blood test to see if she was in fact taking, the medication. After the patient took the blood test, respondent insisted that the results showed she was not taking, her medication. The patient denied this, and stated that she was taking her medications, Respondent began to argue. With the patient and patient's husband, who was with her at the time; Respondent threatened to go to get his gun if they did not leave his office.

33,. Between 1999 and 2000, respondent provided professional services to Mary G. During that time, respondent engaged in the following activity in his office With the patient: when the patient's husband went with her to see respondent during an office visit, respondent became irate and started yelling at the patient's husband to get out of the office, grabbed the patient's walking cane, ad chased the patient's husband out of the office building, brandishing the cane as if to strike him.

34. Between August of 2001 and October of 2001, respondent provided professional services to Tammy. M. On 10/29/01, respondent engaged in the following activity in his office with the patient in a dispute about the patient's bill, respondent waived the bill in the patient's and her husband's faces yelling the sum they owed and shouting "'you're dead. Tammy you're dead"and to her husband, "you're a dead man"; respondent also yelled, "I'm going to' take everything you've got," all in an effort to require the payment of his bill.

35. Between, June of 2000 and August of 2001, respondent provided professional services to Vicky S. During that time' respondent engaged in the following activity in his office with the patient: while in a dispute with the patient and her husband about their request for a new report for her disability application, respondent became angry and started to yell at the patient and her husband. Respondent then physically pushed the patient toward the treatment room's exit door and threatened to "castrate" the patient's husband if he and his wife did not leave his office immediately.

36. Such. conduct violated §943.30(1), Wis. Stats., and constituted unprofessional conduct pursuant to § Med 10.02(2)(z) Wis. Adm. Code.

.37. Independently of whether such conduct violated §943.30, Stats., such conduct was unprofessional conduct not otherwise defined or specified, under § Med 10.02(2)(intro), Wis. Adm. Code.

COUNT VI: Abuse of License, Obstructing

38., On and between July and October, 2001, respondent provided professional services to Angela M. During this time, the patient was prescribed opioids for pain by respondent, which the patient took, as directed. Respondent also prescribed electrostimulation treatments and administered them to the patient in his. office. In September, 2001, the patient requested that the electrostimulation treatment be discontinued because they were ineffective and they were causing leg numbness and panic attacks; she also asked to have her opioids reduced because they were making her drowsy and unable to work. Respondent then' became angry and stated that he was the only person who knew what was good for her and that if she not do as he prescribed, then respondent would have the patient "committed," by which he meant, and the patient understood' him to mean, involuntarily committed to a mental institution.

39. On 6121/01 and 6/28101, respondent provided professional services to patient Chrissy H in his office. The patient had a 16-year history of migraine headaches, and on 6/21/01, was diagnosed with a number of conditions respondent prescribed. medications and. suggested a course of electrostimulation therapy. Between 6/21/01 and: 6/28/01, the patient telephoned respondent's office with problems concerning her medications. Respondent,. at the second' office visit (6/28/02), denied that the patient had telephoned the office (although staff documented two such calls in the patient's record), called the patient a "liar" and stated that he could have her "committed," by which he meant, and the patient understood him to mean, involuntarily committed to a mental institution.

40. On and between December 2000, and December 2001, respondent provided professional services to Cindy M. During this time, the patient' was awaiting a kidney transplant and was, in great pain; respondent had prescribed a number of controlled substances and felt that she was. experiencing significant side effects of drowsiness and depression. She asked respondent to reduce the dosages of the medications which were causing these effects, and said that she was unable and unwilling to take the quantities prescribed. Respondent then stated that the patient was unstable and needed psychiatric help and that if the patient did not follow his instructions concerning her treatment, he would have her "committee," by which he meant, and the patient understood him to mean, involuntarily committed to a mental institution.

41. On and between July and December,. 200.1, respondent provided professional services to Robert V., including electrostimulation therapy. On January 8, 2002, the patient telephoned respondent's office to say that the patient would not be returning to his care. Shortly thereafter, respondent telephoned the patient and said that if the patient did not continue with respondent, the patient's life would be ruined with unbearable pain and he would be unable to walk. In fact, respondent knew that the patient was obtaining treatment elsewhere, and had obtained an electrostimulation device for home use.

42. Following the telephone conversation, respondent telephoned the sheriffs department of the county where the patient resided, and stated that he was concerned about the patient being suicidal, based upon an off-hand comment made by the patient during the telephone conversation described above. Respondent had no reason to believe that the patient was mentally ill in any respect, nor was it reasonable to believe that the patient was truly suicidal, under the circumstances. The sheriff's department dispatched a deputy to the patient's home, who interviewed the patient; the patient was in fact using his home electrostimulation device, was laughing and in good spirits, and assured the deputy that he would never commit suicide, that he did not in fact have any reason or means to do so, and that the statement made to respondent was not intended to be serious. The deputy reported that the patient was not suicidal, and did not detain the patient.

43. When respondent learned that the patient had not been detained, he telephoned the Chief Deputy of the sheriff's department, and, insisted that the patient be detained for examination under Ch. 51, Stats, noting that he was a doctor and his judgment should prevail. Respondent was overbearing and rude to the Chief Deputy, and berated him at length. As a direct result of respondent's insistence, the patient was detained and transported to. Mendota. Mental Health Institute in Madison, for examination. The patient was held overnight and released the next morning by the institution, which found no cause to detain the patient

44. Respondent's use of his status as a physician to coerce the sheriff's department into depriving a citizen of his liberty for the. purpose of retaliating against the patient for leaving his care is unprofessional conduct not otherwise defined or specified under § Med 10.02(2)(intro), Wis. Adm. Code.

45. Respondent's statements to law enforcement officials stating, in effect, that the patient was a proper subject for civil commitment, were' false in that respondent knew that the patient was not mentally ill, and thus the statements constituted obstructing an officer in violation of § 946.41(1), Wis. Stats. Such conduct is unprofessional conduct under §. Med 10.02(2)(z), Wis. Adm. Code.

46. Respondent's threat to have the patient civilly committed under the circumstances described in the first three paragraphs of this Count is unprofessional conduct not otherwise defined or specified under §, Med 10.02(2)(intro), Wis. Adm. Code.

47. The conduct described in the first three paragraphs of this Count violated §943.30( 1), Wis. Stats., and is unprofessional conduct pursuant to § Med 10.02 (2)(z)~ Wis. Adm. Code.

COUNT VII: Fraud #1: Upcoding

Respondent has, over the past approximately three years, used a treatment mode known as electrostimulation therapy. This therapy involves placing electrodes on the surface of the patient's skin and allowing small electrical currents to pass through the.patient's skin at the place where the electrodes are placed, using a device known as the "Dynatron." In billing for this service,.respondent uses a billing code from a system developed by the American Medical Association and in common use in the medical field known as "Current Procedural Terminology"(CPT). There are many thousands of billing codes, each of which has a particular description. Respondent has customarily used CPT code number 64560 for his surface placement of electrodes for electrostimulation therapy.

49. CPT code 64560 is defined as: "Percutaneous implantation of neurostimulator electrodes: autonomic nerve."

50. At no time did Dr. Suster pierce or open the skin, or implant anything beneath the surface of the skin for any patient who was billed under this code.

51. The correct code for the placement of the electrodes for the Dynatron device is CPT code number 64550: "Application, of surface (transcutaneous) neurostimulator."

52. Respondent billed $440 or more for leach office visit where .a patient received neurostimulation, using CPT code 64560. Respondent has billed many thousands of these treatments to the following and other third party payers, and to individual patients, including but not limited to:

a) United Health Group was billed. by respondent for approximately $697,000, under this code between January 12, 2001 through June 27, 2002.

b) Humana was billed, by respondent for approximately $630,000 under this code between 1/1/99 and 9/1/02.

c) Blue Cross/Blue Shield of Wisconsin CompCare was billed by respondent for approximately $380,000 under this code between 1999 and 9/1/02; during this time period no other physician in the United States has billed this company using this code.

d) WPS was billed by respondent for approximately $367,000 under this code between 1996 to July, 2002.

e) Claim Management Services, Inc. (acting on behalf of a number of employer group health plans, was billed by respondent for approximately $125,000 under this code between 1/1/99 and 9/1.5/02.

f) WEA Trust (Wisconsin Education Association Insurance Trust) was billed by respondent for approximately' $40,000 under this code between 3/1/01 and 7/1.0/02.

g) Blue Cross/Blue Shield of Minnesota was billed by respondent for approximately $26,000 under this code between 1/1/99 and 8/30/02.

h) Medicare Part B was. filled by respondent for approximately $.25,000 under this code between 4/1/01 and 12/31/01.

i) Westport Benefits (acting on behalf of Charter Communication Employee Health Care Plan was billed by respondent for approximately $25,000 under this code between 10/24/01 and 12/31/01, a period of approximately 10 weeks, all for one patient (Greg O, see bellow).

j) Blue Cross/Blue Shield of Illinois was billed by respondent for approximately $11,000 under this code, between 6/1/01 and 10131/01.

53. If respondent had used CPT code 64550, his established office fee was $250.

54. Respondent's use of the CPT code 64560 as set forth above was a false statement to the person or entity receiving: the bill made with fraudulent intent and made in an attempt to obtain a professional fee. Respondent's conduct violated § Med 10.02(2)(m), Wis. Adm. Code, and is unprofessional conduct.

Count VIII: Fraud #2: Insurance Billing in Excess of Cost to Patient/False Statements

55. On January 14, 2002, the respondent provided professional services to patient Lauri J. Following this initial consultation, the respondent billed the patient's credit card $250 for the office visit and $750 for a diagnostic test. When the patients objected to these charges the respondent removed or refunded the charges and then billed her insurance provider $2,484.

56. On and between October 5, 2001 and February 22, 2002, respondent provided professional services to patient Greg O. During that time the respondent engaged in the following activity in his office with. the patient: the respondent told the patient that respondent was tired of -dealing with insurance companies and that the patient would have to pay $10,000 up front for the cost of office visits and Dynatron treatments. The respondent also told the' patient that the patient could then bill the insurance provider and get back the $10,000 from his insurance. However, respondent billed the patient's insurance provider $37,630 for the same services.

57. On September 24, 2001, the respondent provided professional services to patient Patricia L. Respondent obtained a $3,000 line of credit for the patient and explained to her that he would bill the account $250 a day for each Dynatron treatment she received. However, after the patient's first visit the respondent billed both the account and the patient's insurance provider $1,000 for the same visit.

58. On 11/1/01, respondent provided professional services to Lynnann C in the form of an initial evaluation. Respondent initially told the patient that the fee for this visit would be $250, which would be charged to a credit card. Respondent then caused to be billed to the patient's. credit card not only the agreed $250, but an additional sum of $750. When the patient complained to the credit card company, the company reversed the charge. Respondent billed the patient's insurance company approximately $4700 for the same services.

59. On 1/1/02., respondent provided an initial consultation to patient Laurie J. At the time the patient made the appointment, she was told that the fee was $250, and she gave her credit card number to respondent' s staff. After her visit, respondent's staff told her on the telephone that they would bill insurance directly, but instead her credit card was billed for $250, and another of the patient's credit cards was billed $750, supposedly for an additional test performed The patient protested. Respondent then refunded the credit card charges. Respondent billed her insurance $2484 for the same services.

60. On 10/31/01, respondent provided professional services in the form of an initial evaluation of Pam D. Before this appointment, respondent requested that the patient provide her credit card number, stating that it would be charged $250 only if she failed to appear for her appointment. Notwithstanding this promise, respondent charged her account the day she made the appointment, thus increasing her average daily balance and thus the potential interest she was required to pay on the account. The patient did appear for her evaluation as scheduled.

61. On each of the following dates, respondent billed a total of more than 24 hours of physician-patient contact time to third party payers: October 27, 2000, November 3, 2000, November 7, 2000, and December 5, 2000.

62. The conduct described in each of the paragraphs of this Count violated § Med 10.02(2)(m), Wis. Adm. Code, and is unprofessional conduct.

COUNT IX: Practice Below Minimum Standards/Patient Vicki S.

63. On and between 6/19/91 and 8/7/02, respondent provided professional services to Vicki S, who was born in 1957. At the time of the initial evaluation, respondent conducted a "neuroselective sensory CPT examination" and diagnosed the patient with peripheral polyneuropathy, reflex sympathetic dystrophy syndrome, autonomic dysfunction (multiple), and sleep disorder. These diagnoses are not supported by anything in the patient's initial evaluation record. Respondent's dictated physical examination was inadequate as an initial physical examination.

64. The patient was treated with a series of electrostimulation treatments. There are no notes regarding the patient's specific status in follow-up, and there is no notation concerning whether the patient received any long term benefits from these treatments. These treatments were administered on a daily basis, without adequate justification for this unusual schedule. There are no adequate follow-up notes reflecting any re-evaluation or appropriate history or physical examination, nor is there any indication that the patient was reassessed after many days of treatment produced little improvement.

65. The patient was prescribed substantial amounts of opioids and other controlled substances and. prescription drugs. The patient's chart contains inadequate justification for the prescribing. When respondent changed the patient's dosages or added a medication, he failed to make a note in the chart justifying the change.

66. Respondent's care and treatment of this patient violated § Med 10.02(2)(h), Wis. Adm. Code, in the following respects:

a) It is below the minimum standard of care for a patient to be prescribed addictive drugs such as opioids or other controlled substances without charting a clear reason for such prescribing, including the reasoning for the types, amounts, and dosages selected. Such prescribing presents a danger to the patient in that the patient can become physically dependent upon the drugs and upon the physician who prescribes them or addicted to them, can suffer alteration of mood, and will very likely experience side effects such as sleepiness and inability to safely drive a car and conduct the ordinary activities of daily living without falling or burning oneself: The inappropriate prescription of such drugs is a danger to the public in that such drugs can be diverted to illicit uses. A minimally competent physician would avoid such danger by prescribing non-controlled analgesics or other pain-control methods, if those methods failed then s/he would prescribe only the minimum amount of controlled substances necessary to control the patient's pain, and would clearly chart the rationale for prescribing and modifying the prescription of such drugs.

b) It is below the minimum standard of care for a patient's charted progress note to fail to recite the patient's present medications, and then to include any changes to the regimen, together with the rationale for such a. change; this is true even though there is a separate medication sheet and a copy of each prescription in the chart, in that the sheet and prescription copies do not include the reasons for any changes. The potential danger to the patient is that the prescriber cannot recall all the medications and dosage instructions, and will mistake one or more of them if he does not have this information readily at hand at the next visit, resulting in the patient's receiving too much or too little of a medication; also the physician is unlikely to recall all changes or the reasons for all changes, and thus will not be able to properly move the patient along in the therapy. Another danger is that a subsequent treating physician will be unable to understand what has been tried, and why, and therefore be unable to proceed appropriately without having to repeat past treatments, resulting in a delay in progress for the patient A minimally competent physician would note the patient's medications in the progress note, together with any problems associated with the medications, and would then note any changes (together with the rationale) in the medications.

c) It is below the minimum standard of care for a patient to be diagnosed with peripheral neuropathy, reflex sympathetic dystrophy syndrome, and autonomic dysfunction (multiple) on the basis of the "neuroselective sensory CPT examination" used by respondent, which is not accepted or effective for this purpose. Such diagnosis presents a danger to the patient of incorrect diagnosis, incorrect treatment, delay incorrect diagnosis and treatment, and a worsening of the patient's true condition which has not been diagnosed. A minimally competent physician would have ordered accepted standard tests to confirm a suspected diagnosis of these conditions, before proceeding to treatment.

d) It is below the minimum standard of care for a patient to be treated in the physician's office 7 days a week with electrostimulation. A potential danger of such treatment is that electrostimulation provides only temporary relief, and that it only works in a minority of patients. For those patients for whom it works, it can be performed by the patient at home, with a suitable device which the patient can purchase. It is a basic principle of rehabilitation medicine that the patient must be required to take responsibility for his/her own improvement. By having the patient come in for this treatment every day, respondent is making the patient fully dependent upon the physician for her care and treatment, which will retard the patient's recovery. A minimally competent physician would have ordered a brief trial of such treatment, and if it were successful, then would have prescribed such a device for the patient to purchase and use at home.

67. Respondent's care and treatment of this patient constitutes negligence in treatment.

68. Respondent's conduct in failing to keep a chart which recorded adequate pertinent objective findings related to examination and test results, and an assessment and diagnosis on follow-up visits, and to be sufficiently clear and complete to allow interpretation by other practitioners for the benefit of the patient, violated § Med 06.02(2)(h) and (za), Wis. Adm. Code.

69. The evaluation, charting, care and treatment of this patient are similar to those of many other patients, and are part of a pattern and practice of respondent in providing services, and not an isolated case involving only one patient.

COUNT X: Practice Below Minimum Standards/Patient Maria B.

70. On and between 3128/01 and 8/30/01, respondent provided professional services to Maria B, who was born in 1964. At the time of the initial evaluation, respondent diagnosed the patient with headaches, cervicalgia. and cervicogenic headaches, thoracic spine, and sleep disorder. Respondent's dictated physical examination was inadequate as an initial note. There are no treatment goals established.

71. The patient was treated with a series of electrostimulation treatments. There are no notes regarding the patient's specific status in follow-up, and there is no notation concerning whether the patient received, any long term benefits from these treatments, These treatments were administered on a daily basis, without adequate justification for this unusual schedule. There are no adequate follow-up notes reflecting any re-evaluation or appropriate history or physical examination, nor is there any indication that the patient was reassessed after many days of treatment produced little improvement.

72. The patient was prescribed substantial amounts of opioids and other controlled substances. The patient's chart contains inadequate justification for the prescribing. When respondent changed the patient's dosages or added a medication, he failed to make a note in the chart justifying the change. When the patient discontinued treatment, respondent failed to make adequate arrangements to taper the patient's medications, or to immediately transfer the patient to another prescribing caregiver, to avoid withdrawal.

73. On or about 5/8/01, the electrostimulation treatments ceased without charted explanation. On 5/16/01, a chart note indicates that an initial prescription for diazepam 30 mg going to be taken 1-2 hours before "sedation" with 10-20 mg "PRN" thereafter, was telephoned to a pharmacy. On. 5/17/01, a chart note reveals that the patient is to receive "cervical, upper back, shoulder, rib injections and blocks." There is no history, re-evaluation, appropriate physical examination, or treatment goal set forth. Although this is the first note of such injections, it recites that the patient is already 5% improved after having started such injections.

74. Respondent's procedure note for 5/17/01, then states that he administered a series of cervical and thoracic spinal facet injections, and says nothing about fluoroscopic (x-ray) guidance. Similar injections were performed on 5/31, 6/11, and 6/29/01, all without any note concerning fluoroscopic guidance. There is only one note in the patient's chart concerning x-rays, and that is for a view taken on 5/17/01. Respondent billed the patient's insurance for these injections using CPT codes 64470, Injection, anesthetic agent and/or steroid, paravertebral fact joint or facet joint nerve; cervical or thoracic, single level, and 64472 for each additional level. The CPT guide states, concerning these codes: "For fluoroscopic guidance and localization for needle placement -and injection in conjunction with codes 64470~64484, use code 76005. Respondent did not bill under this code. In fact, respondent did not use fluoroscopic guidance for any of these injections.

75. Respondent's care and treatment of this patient violated § Med 10.02(2)(h), Wis. Adm. Code, in the following respects:

a) It is below the minimum standard of care for a patient to be prescribed addictive drugs such as opioids without charting a clear reason for such prescribing, including the reasoning for the types and amounts selected. Such prescribing presents a danger to the patient in that the patient can become physically dependent upon the drug and upon the physician who prescribes them, or addicted to them, can suffer alteration of mood, and will very likely experience side effects such as sleepiness: and inability to safely drive a car and conduct the ordinary activities of daily living without falling or burning oneself. The inappropriate prescription of such drugs is a danger to. the public in that such drugs can be diverted to illicit uses. A minimally competent physician would avoid such danger by prescribing non-controlled analgesics or other pain-control methods, if those methods failed then she would prescribe only the minimum amount of controlled substances necessary to control the patient's pain, and would: clearly chart the rationale for prescribing and, modifying the prescription of such drugs.

b) It is below the minimum standard of care for a patient to be discharged following chronic opioid analgesic therapy without a clear plan for either withdrawing the patient from opioids via tapering, or immediately transferring the patient to another caregiver with prescribing authority. The danger to the patient is that she may go into withdrawal without adequate medical support, unnecessarily. A minimally competent physician would have either transferred the patient to an identified caregiver with prescribing privileges or have given the patient a clear tapering schedule with an adequate supply of medication, including instructions on what do to if withdrawal symptoms appeared:

c) It is below the minimum standard of care for a patient's charted progress note to fail to recite the patient's present medications and then to include any changes to the regimen, together with the rationale for such a change; this is true even though there is a separate medication sheet and a copy of each prescription in the chart, in that the sheet, in that the sheet and prescription copies do not include the reason for any changes. The potential danger -to the patient is that the prescriber cannot recall all the medications and dosage instructions, and will mistake one or more of them if he does not have this information readily at hand at the next visit, resulting in the patient's receiving too much or too little of a medication; also the physician is unlikely to recall all changes or the reasons for all changes, and thus will not be able to properly move the patient along in the therapy. Another danger is that a subsequent treating physician will be unable to understand what has been tried and why, and therefore be unable. to proceed appropriately without having to repeat past treatments, .resulting in a delay in progress for the patient. A minimally competent physician would note the patient's medications in the progress note, together with any problems associated with the medications, and would then note any changes (together with the rationale) in the medications.

d) It is below the minimum standard of care for a patient to be treated in the physician's office 7 days a week with electrostimulation. A potential danger of such treatment is that electrostimulation provides only temporary relief, and that it only works in a minority of patients. For those patients for whom it works, it can be performed by the patient at home, with a suitable device which the patient can purchase. It is a basic principle of rehabilitation medicine that the patient must be required to take responsibility for his/her own improvement. By having the patient come in for this treatment every day, respondent is making the patient fully dependent upon the physician for her care and treatment, which will retard the patient's recovery. A minimally competent physician would have ordered a brief trial of such treatment, and. if it were successful, then would have prescribed such a device for the patient to purchase and use at home.

e) It is below the minimum standard of care to administer facet injections without fluoroscopic guidance. The potential dangers to the patient are that the lining of the spinal cord may be pierced and cerebrospinal fluid may leak or the injected material may enter the cerebrospinal fluid space causing nerve injury or paralysis, blood may hemorrhage into the cerebrospinal fluid space, and infection may enter the cerebrospinal fluid space. A minimally competent physician would avoid these dangers by doing such injections only with fluoroscopic guidance.

f) It is below the minimum standard of care for a physician to administer facet injections in the cervical vertebral area, because this is a procedure which should be used only by experts with years of experience in doing such injections in the thoracic and lumbar areas. The dangers to the patient are that even a small error in placement can result in paralysis or death, as so many nerves run through the cervical vertebrae. A minimally competent physician would refer a patient who needed such injections to a specialist with the requisite training and experience.

76. Respondent's care and treatment of this patient constitutes negligence in treatment.

77. Respondent's conduct in failing to keep a chart which recorded adequate pertinent objective findings related to examination and test results, and an assessment and diagnosis on follow-up visits, and to be sufficiently clear and complete to allow interpretation by other practitioners for the benefit of the patient, violated § Med 10.02(2)(h) and (za), Wis. Adm. Code.

78. The evaluation, charting, care and treatment of this patient are similar to those of many other patients, and are part of a pattern and practice of respondent in providing services, and not an isolated case involving only one patient.

COUNT XI: Practice Below Minimum Standards/Patient Mary G2

79. On and between 3/9/99 and 1/4/01, respondent provided professional services to Mary G2, who was born in 1956. Respondent's "Comprehensive Consultation" dated 3/9/99 diagnoses the patient with headaches, cervicalgia, thoracic spine pain, shoulder enthesopathy, low back pain, hip enthesopathy, and multiple joint enthesopathy.

80. Respondent's procedure note for 3/17/99, then states that he administered a series of cervical and thoracic spinal facet injections, and says nothing about fluoroscopic (x-ray) guidance. In fact, respondent did not use fluoroscopic guidance for any of these injections.

81. Respondent performed a series of osteopathic manipulation treatments on the patient, an average office a week, beginning 9/16/99. Respondent's chart note for that date states that the purpose of osteopathic manipulations is ''to augment her current treatments and realign her bony segments." Respondent then goes on to document these treatments as follows: "OMT 9-10 areas today for 40 minutes completed uneventfully." There is no description of what areas were manipulated, how they were manipulated, or what the specific goals of treatment are. This is a typical note for respondent's osteopathic manipulation treatment.

82. The patient was treated with a series of electrostimulation treatments. There are no notes regarding the patient's specific status in follow-up, and there is no notation concerning whether the patient received any long term benefits from these treatments. These treatments were administered on a daily basis, without adequate justification for this unusual schedule. There are no adequate follow-up notes reflecting any re-evaluation or appropriate history or physical examination, nor is there any indication that the patient was reassessed after many days of treatment produced little improvement~

83. The patient was prescribed substantial amounts of opioids and other controlled substances. The patient's chart contains inadequate justification for the prescribing. When respondent changed the patient's dosages or added a medication, he failed to make a note in the chart justifying the change.

84. Respondent discharged the patient from his care without providing her with an adequate plan to withdraw her from the opioid therapy which he had prescribed for her, and without any alternative arrangements having been made to provide her with medical care to prevent her tram going into withdrawal.

85. Respondent's care and treatment of this patient violated § Med 10.02(2)(h), Wis. Adm. Code, in the following respects:

a) It is below the minimum standard of care for a physician to fail to note what osteopathic manipulations are performed, to what specific area of the body, and what the results (related to the goals of treatment) are. The potential danger to the patient is that ineffective or even painful manipulations may be repeated because the physician has no record of what was performed, thus delaying effective treatment, and others involved in the patient's care, or successor physicians, will not know what has already been tried, and with what success, and thus will have to repeat ineffective care and delay effective treatment. A minimally competent physician would chart, in detail, what manipulations were performed on what exact part of the body, together with the result of the manipulation as that result related to the goal of treatment

b) It is below the minimum standard of care for a patient to be prescribed addictive drugs such as opioids without charting a clear reason for such prescribing, including the reasoning for the types and amounts selected. Such prescribing presents a danger to the patient in that the patient can become physically dependent upon the drugs and upon the physician who prescribes.them, or addicted to them, can suffer alteration of mood, and will very likely experience side effects such as sleepiness and inability to safely drive a car and conduct the ordinary activities of daily living without fading. or burning oneself. The inappropriate prescription of such drugs is a danger to the public in that such drugs can be diverted to illicit uses. A minimally competent physician would: avoid' such danger by prescribing non-controlled analgesics or other pain control method, if those methods failed, then s/he would prescribe only the minimum amount of controlled- substances necessary to control the patient's pain, and would clearly chart the rationale for prescribing and modifying' the prescription of such drugs.

c) It is below the minimum standard of care for a patient to be discharged following chronic opioid analgesic therapy without a clear plan for either withdrawing the patient from opioids via tapering, or immediately transferring the patient to another caregiver with prescribing authority. The danger to the patient is that she may go into withdrawal without adequate medical support unnecessarily. A minimally competent physician would have either transferred the patient to an identified caregiver with prescribing privileges, or have given the patient a clear tapering schedule with an adequate supply of medication, including instructions on what do to if withdrawal symptoms appeared.

d) It is below the minimum standard of care for a patient's charted progress note to fail to recite the patient's present medications, and then to include any changes to the regimen, together with the rationale of such a change; this is true even though there is a separate medication sheet and a copy of each prescription in the chart, in that the sheet and prescription copies do not include the reasons for any changes. The potential danger to the patient is that the prescriber cannot recall all the medications and dosage instructions, and will mistake one or more of them if he does not have this information readily at hand at the next visit resulting in the patient's receiving too much or too little of a medication; also the physician is unlikely to recall all changes or the reasons for all changes, and thus will not be able to properly move the patient along in the therapy. Another danger is that a subsequent treating physician will be unable to understand what has been tried and why, and therefore be unable to proceed appropriately without having to repeat past treatments, resulting in a delay in progress for the patient. A minimally qualified physician would note the patient's medications in the progress note, together with problems associated with the medications, and would then note any changes (together with their rationale) in the medications.

e) It is below the minimum standard of care for a patient to be treated in the physician's office 7 days a week with electrostimulation. A potential danger of such treatment is that electrostimulation provides only temporary relief, and that it only works in a minority of patients. For those patients for whom it works, it can be performed by the patient at home, with a suitable device which the patient can purchase. It is a basic principle of rehabilitation medicine that the patient must be required to take responsibility for his/her own improvement. By having the patient come in for this treatment every day, respondent is making the patient fully dependent upon the physician for her care and treatment, which will retard the patient's recovery. A minimally competent physician would have ordered a brief trial of such treatment, and if it were successful, then would have prescribed such a device for the patient to purchase and use at home.

f) It is below the minimum standard of care to administer facet injections without fluoroscopic guidance. The potential dangers to the patient are that the lining of the spinal cord may be pierced and cerebrospinal fluid may leak or the injected material may enter the cerebrospinal fluid space causing nerve injury or paralysis, blood may hemorrhage into the cerebrospinal fluid space, and infection may enter the cerebrospinal fluid space. A minimally competent physician would avoid these dangers by doing such injections only with fluoroscopic guidance

g) It is below the minimum standard of care for a physician to administer facet injections in the cervical vertebral area, because this is a procedure which should, be used only by experts with years of experience in doing such injections in the thoracic and lumbar areas. The dangers to the patient are that even a small error in placement can result in paralysis or death, as so many nerves nut through the cervical vertebrae. A minimally competent physician would refer a patient who needed such injections to a specialist with the requisite training and experience.

86. Respondent's care and treatment of this patient constitutes negligence in treatment.

87. Respondent's conduct in failing to keep a chart which recorded adequate pertinent objective findings related to examination and test results, and an assessment and diagnosis on follow-up visits, and to be sufficiently clear and complete to allow interpretation by other practitioners for the benefit of the patient, violated § Med 10.02(2)(h) and (za), Wis. Adm. Code.

88. The evaluation, charting, care and treatment of this patient are similar to those of many other patients, and are part of a pattern and practice of respondent in providing services, and not an isolated case involving only one patient.

WHEREFORE the complainant demands that the disciplinary authority hear evidence relevant to matters alleged in this complaint, determine and impose the discipline warranted, and assess the costs of the proceeding against the respondent

Dated this October 25, 2002.

Arthur Thexton, Prosecuting Attorney
Division of Enforcement
Department of Regulation and Licensing
P.O. Box 8935
Madison, WI 53708-8935
608-266-9814

This page was revised on April 15, 2005.

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