By Chris Lane
By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
All in all, concluded Courtney Newton, the attorney who represented the state at the hearing, the cases show "a pattern of patient care that is substandard, sloppy and reckless."
"Dr. Fernandez is out of control," Newton told the panel. "Dr. Fernandez is practicing with virtually no checks in place."
Though he presented a strong case that the center had tried to sabotage him, Fernandez offered only weak excuses when it came to the questionable treatments themselves. He made claims about the condition of the patients that were not reflected in their charts. He said that in some cases the referring physicians knew of the treatments and gave their blessings, though he produced no witnesses to that effect. He blamed a lack of physics support for not taking films to check his work, but couldn't explain why he did the procedures in the first place without adequate resources.
In Frank Newson's case, Fernandez acknowledged that perhaps he should have taken pictures to ensure proper placement of the gold seeds, but stated that "you can't argue with success."
But even if things didn't always work out perfectly, Fernandez refuses to admit that he did anything wrong. What the board doesn't get, Fernandez says, is that he's often dealing with patients on the verge of death who need immediate relief from the pain and suffering of their illness. To punish him for trying to help them, even if it means trying something you wouldn't try with a curable patient, is the height of injustice. "Sometimes you have to get out of the book," he says. "I really don't know why they'd revoke my license."
Though Fernandez can't practice medicine for the time being, his saga is far from over. A State Board of Medical Examiners panel will hold an informal settlement conference with Fernandez in May, and might offer to reinstate him with restrictions -- for example, he could be banned from his specialty but allowed to practice family medicine. If the two sides reach agreement, the full board will decide his fate in mid-May.
On the other hand, Fernandez says that anything short of full vindication is unacceptable at this point, so the matter will first go before an administrative law judge, then to civil court if either party remains dissatisfied. "I'm gonna defend myself until the end," Fernandez says.
One key reason the board suspended his license was that Fernandez lacked any peer support at the hearing to counter the physicians who claimed that he mishandled the cases in question. He says he's subsequently recruited three doctors who will testify on his behalf. Former cancer center radiation oncologist Shailesh Gupta hasn't decided whether to testify, but says that the board's punishment was unduly harsh. "There are some flaws in the treatment," Gupta says, "but trust me, I can find similar flaws in many treatment plans in Texas."
Richard Jaffe, who successfully defended Stanislaw Burzynski against repeated efforts by the feds to shut down his alternative cancer clinic and is also representing Fernandez, gave a hint at the hearing of the strategy he'll likely employ in any future litigation. In addition to hacking away at the Bellaire Cancer Treatment Center's soft underbelly, Jaffe will attack the state at its weakest point -- if the allegations against Fernandez were such a big deal, why did the board wait so long before taking any action?
In fact, the state Bureau of Radiation Control, which had conducted its own investigations of Fernandez and the center in 1995, '96 and '97, had referred several matters to the board over time. The board itself had reprimanded Fernandez for inadequate record keeping. Even after the board received the expert testimony of John Wilbanks on five of the cases in question, however, it took almost ten months to schedule a hearing.
Not only that, but Lana Miller says that as the cancer center's staff grew more concerned about the level of patient care Fernandez was providing, they called the state repeatedly to find out why nothing was happening. "We were screaming," Miller says.
Contrast this foot-dragging with the rush job once the hearing was scheduled. Though on several occasions Fernandez requested extensions to adequately pull together his defense, he was only given two weeks. No matter the weight of the evidence, two weeks is hardly enough time to gather expert witnesses, especially doctors who must find the time to read the charts and render an opinion. "It felt a little like rearranging the deck chairs on the Titanic," Jaffe says of his frantic preparations.
The state's answer may satisfy a jury, but won't do much to inspire confidence in the system's ability to protect the public against dangerous doctors. Addressing the delay in general terms, board general counsel Tony Cobos admits that sometimes the process doesn't move as quickly as it should. "If there are problems, they are directly attributable to a lack of adequate resources, such as staff," Cobos says. "We don't have enough people. That's a problem we face quite often."
That, combined with the center's thinly veiled efforts to shuck him, which a jury might view as an attempt to weasel out of financial obligations instead of an effort to protect life and limb, Fernandez might prevail in court. In which case he'd be back at the Bellaire Cancer Treatment Center -- at least until it closes, which Kubricht vows to do rather than work with the doctor again. "It can't go on," he says. "Enough's enough."