Administrative law judges last week issued a proposed decision dismissing the bulk of the board's latest claims against Burzynski, calling the doctor — who is not an oncologist — "a dedicated and innovative physician who wants to continue treating advanced cancer patients."
The judges' 221-page decision, which still awaits ratification, is the culmination of a nearly two-year effort by the medical board to prove that Burzynski has swindled patients into paying inflated costs for questionable treatments, by, in some cases, passing off unlicensed staff as doctors.
Board attorneys relied primarily on three medical experts who apparently didn't impress the judges — one expert, a pediatric oncologist at Emory University's Winship Cancer Institute, dinged her credibility (and the board's) by issuing a flawed report on a prospective patient who didn't even receive full treatment at Burzynski's clinic.
Incredibly, it seems that none of the board's medical experts who came were local — e.g., physicians at Texas Children's Hospital or M.D. Anderson, who have a long history with treating patients right before, or after, they've sought help from Burzynski. It seems like credible local specialists from the Texas Medical Center should have been lined up around the block to shed some light on Burzynski's "antineoplaston" treatment, and their silence is deafening. Because the board's spokesperson, Jarrett Schneider, wouldn't comment, we don't know if the board couldn't afford to pay these people for their time, or if they weren't considered in the first place.
What we got, instead, was Dr. Cynthia Wetmore, who seems to have done a decent job in most aspects, but screwed up royally when it came to someone referred to as "Patient D." The judges noted that Wetmore claimed that Patient D "did not receive the standard of care and was exposed to medications that are not documented to cross the blood brain barrier."
The only problem with that, per the judges, was that "contrary to Dr. Wetmore's testimony and report, Patient D received no treatment or therapy at the Clinic." They wrote that "such inattentiveness to the accuracy of her report raises concerns about her credibility."
When the guy on the hot seat is a self-annointed cancer-curer who brags of being a "hereditary count," who has never been published in a reputable medical journal, sells wrinkle-reduction cream derived from Polynesian "sacred oil," holds a patent on a cancer-fighting toothpaste, accuses disgruntled patients of being whores and Secret Service agents and once published a study on antineoplastons in feta cheese, you'd think staff attorneys for the Texas Medical Board wouldn't have to worry about their own expert's credibility.
We'd have loved for medical board attorneys to have sought out David Gorski, a surgical oncologist at Wayne State University's Barbara Ann Karmanos Cancer Institute, who has brilliantly critiqued Burzynski on his Respectful Insolence blog.
After the board filed the complaint at issue in 2014, Gorski was cautiously optimistic, writing that he was glad the board "has decided to take another whack at the piñata," despite his concerns that the board "is toothless by design, thanks to an anti-regulatory bias that has led to laws that have weakened its already weak regulatory authority."
The medical board even seemed to whiff on what should have seemed to be a lock: the clinic's love for draping key staff members in white lab coats, with name tags identifying them as "doctor," who are addressed by other employees as "doctor." In this setting, it's not hard to understand why a patient might assume that these individuals are in fact licensed to practice medicine in the United States. But, as Burzynski's lawyers pointed out, research associates with Ph.D.s are also "doctors," and it certainly ain't the clinic's fault if some dying patient jumps to conclusions.
When it came to the board's double-barrel accusation that Burzynski misrepresented these employees as physicians, thereby aiding and abetting the unauthorized practice of medicine, the judges split the difference: in the majority of cases, they opined, Burzynski was guilty of allowing these people to hold themselves out as physicians, but since an actual physician made the important calls, these fake medical doctors weren't actually practicing medicine.
In one case, though, a fake doctor actually practiced fake medicine, leaving Burzynski vulnerable. The board can still pursue sanctions, but not until both sides get to submit even more arguments for the judges to consider.
As board spokesman Schneider told us in an email:
"The case is still pending an outcome… Procedurally the parties now have to file any exceptions they have to the ALJs’ Proposal For Decision (PFD). So this still has to occur before the PFD is presented at a future board meeting for consideration/adoption. The Board would determine any appropriate sanctions at that point in time."We appreciate Schneider's calm, measured response. We hope, behind the scenes, the board and its attorneys — ostensibly the protectors of Texas patients' health and welfare — are kicking themselves, sharply, in the rear end.