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After he closed down his practice and filed for bankruptcy, West sent a letter to the diversion program requesting that he be released for staying sober. He had plans, he said, to join the Air Force. The diversion committee did not approve his request to leave the program. In November 2003, West sent a letter to the committee informing them that he was "now a major in the United States Air Force Medical Corps." He asked that his urine-testing and diversion-meeting requirements be reduced.
According to medical-board records, on Dec. 26, 2003, West stopped off at a gas station and purchased two 48-ounce cans of Heineken and drank them in a McDonald's parking lot. He was asked for a urine test hours later and tested positive for alcohol. It was his first documented relapse. He tested positive three more times during the next few months, according to board records.
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By April 2004, West had had four documented relapses, and his license was still active. The diversion-program committee told West he would need to check into a 90-day inpatient rehab facility or be terminated from the program. Because he was on active duty with the Air Force, West couldn't get the time off and was subsequently terminated from the diversion program. Soon after, the Medical Board of California filed a formal accusation against West for violating the program's terms.
"They had a policy that after three relapses, the program should terminate him," says Fellmeth. "It took them four months to file an accusation against him, then eight months for a hearing. The system is just stalling and stopping; meanwhile, this guy is practicing medicine."
"When a person tests positive, what we want is to pull them from practice," says Kimberley Kirchmeyer, deputy director of the Medical Board of California. But Kirchmeyer could not explain why West was not pulled from practice or put into an inpatient treatment program after he tested positive four times. The slow reaction on the part of the program when a physician has relapsed is "part of the flawed program," she says.
In 2005, Minasian filed a malpractice lawsuit against West in Placer County Superior Court. Later that year, before her case had gone to trial, her attorney informed her that West was under investigation by the state medical board. She went to two of the hearings and learned about West's failure to stay sober while he was in diversion—and while she was a patient of his. "That's how I found out he was an alcoholic," she says.
In September 2005, an administrative-law judge ruled in the board's case that West's behavior warranted grounds for the revocation of his license. But the order was stayed, and West was given five years' probation and required to attend AA meetings and submit to random urine testing, among other requirements.
During the hearings, Minasian learned that patients could file complaints against their doctors to have their licenses revoked through the state medical board, independent of any lawsuit. A deputy attorney general told Minasian that she was not called as a witness in his case because she had not filed a complaint against West with the medical board, she says.
Frustrated, Minasian tracked down the files of other patients who had filed lawsuits and contacted some of them to find out if any of them had filed complaints with the state medical board. "None of them knew. I thought—we all thought—that our lawsuits went to the medical board, that they knew about them and were investigating doctors," says Minasian. But she discovered that the board only investigates cases in which there has been an award or settlement above $29,999.
In November 2005, Fellmeth issued the scathing results of her two-year internal audit, which found that the board's enforcement program was essentially failing to protect the public. She made recommendations for how the board could improve its enforcement program.
"Prior to November 2004, you could find out if someone had been ordered [into diversion] only through a public-records-act request for that disciplinary order," says Fellmeth. "All they would post on the website was 'license on probation,' and they wouldn't say that they were required to participate in the diversion program." Information about doctors who were referred or who voluntarily joined the program could never be obtained. As a result of Fellmeth's report, patients can now obtain documents for doctors who have been disciplined by the board on the board's website; information about diversion is included only if doctors were mandated into the program.
In December 2005, Minasian lost her malpractice suit against West. By then, she had filed five medical complaints against him with the medical board. Although a complaint with the medical board has to go through a series of reviews before it is green-lighted for investigation by the state attorney general, Minasian felt that she and other patients who had suffered similar infections and complications after their surgeries by West could build a case to have his license revoked. Pollara, West's attorney, says Minasian's pursuit of West is motivated by the loss of her lawsuit. "Dr. West often agreed to try and help patients that no one else would touch because he felt patients should be entitled to feel better about themselves. There are many people that probably would not have agreed to operate on Becky Anderson or Tina Minasian."
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