US Supreme Court Upholds "Ongom;" Quackbuster "Plan of '96" Foiled...

Opinion by Consumer Advocate  Tim Bolen 

Wednesday, April 25th, 2007

The New York ad agency that actually runs the US "quackbuster" operation has to be, this week, taking extra blood-pressure medication, avoiding telephone calls from angry clients demanding to know why the "Plan of '96" isn't going to work as promised, anymore.

Why?  Because the State of Washington took the "Ongom" decision to the US Supreme Court and that Court UPHELD the Washington Supreme Court decision.  This is very good for cutting-edge heath professionals, and very bad for those trying to stop innovation in health care.

For years, nationwide in the US, State Health Boards (Medical, Dental, Chiropractic, Psychology, Physical Therapy, etc.), and others, would get offers from the "quackbuster" scam operation to "help them prosecute cutting-edge health practitioners - for a fee."   The "package deal" would include services to help set up the case, write the formal "Accusation" in the most flaming language possible, distribute the "Accusation," with commentary, to the Press so as to ruin the practitioner publicly,  and testify as an "expert witness" in the hearing.  For the "quackbuster" front-men it became quite a lucrative cottage industry.

One example, I remember, was when little Bobbie Baratz (Robert S. Baratz MD, DDS, PhD) put a $72,000 package together for the Wisconsin Department of Regulation & Licensing (DORL) attacking Green Bay MD Eleazar Kadile, his wife, his beliefs, etc.  Baratz was blown out of the case when Kadile's strategy/legal team analyzed Baratz's Resume/CV and asked the Judge in the case, for a three-day "credibility hearing" on Baratz.  The Judge granted the hearing - and that was the end of the case.  Baratz sank himself with his own testimony.  It was fun to watch.  You can read about that day by clicking here.

So, what does this have to do with "Ongom?"  And what's "Ongom?"

"Ongom," or in its full case name, "Ongom v. State of Washington Department of Health, Office of Professional Standards." is the most important Court decision in the history of "Administrative Law" in the United States.  Why?  Because it changed the rules, making it much tougher for State prosecutors to harass health, or any licensed, or unlicensed, professionals by using, and abusing, the system.  Much, much, tougher.  In short, it changed the "level of evidence" required to discipline professionals. 

How?  Like this - There are three levels of evidence standards used in the US Court System.  From the lowest to the highest they read like this:  (1)  "Preponderance of Evidence,"  (2)  "Clear and Convincing Evidence," and (3)  "Evidence Beyond a Reasonable Doubt."  Generally, the first two are used in Civil Court cases, whereas the last is used in Criminal Court cases.

For years the "Preponderance of Evidence" standard was used in State Administrative law hearings.  But since "Ongom" that's no longer permitted.  The higher standard, the "Clear and Convincing Evidence" standard must be used.  What's the difference?  A lot.

Black's Law Dictionary defines "Preponderance of Evidence" as "The greater weight of the evidence; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue instead of the other.  This is the burden of proof in a civil trial, in which the jury is instructed to find for the party, that on the whole, has the stronger evidence, however slight the edge may be."

Then, Black's Law Dictionary defines "Clear and Convincing Evidence" as "Evidence indicating that the thing to be proved is highly probable or reasonably certain.  This is a greater burden than preponderance of the evidence, the standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the norm for criminal trials."       

But what does this mean, practically, for health professionals?         

Well, for one thing, it means that,  as of April 23, 2007, the date of the US Supreme Court decision in "Ongom," anything, and everything, on quackwatch.com is not usable in a State Administrative Hearing - nor can it be used even to bring charges, or an accusation against a health professional.  A prosecutor, a Board, or State employee, knowingly using such unacceptable evidence is risking their personal assets, for such an action can, and should, be used to breach their "immunity."  

A Defendant, or Respondent, has every right, now, to go after the State if they use quackwatch drivel.  Why?  Two reasons:  (1) There is no "science" in quackwatch offerings.  Hence, there is no valid information. So, it can't make the evidence standard. (2)  Barrett, himself, has been officially declared, in a PUBLISHED Appeals court decision, to be "biased, and unworthy of credibility."

For another thing, it means that no "quackbuster" bozo can have anything to do with an Administrative hearing anymore.  They no longer have the qualifications to offer anything at hearing.  And THAT means that those of you out there that may be currently "being investigated" have a new move on your chessboard.  It's this - Send an immediate Public Record Act request to the department "investigating" you. Demand that they provide you with any, and all, communications with (1)  Stephen Barrett and quackwatch.com,  (2)  the Federation of State Medical Boards, or (3)  anyone outside of their own organization on the subject they are "investigating" you for.  They are required by law to give you this information.  If you find any of that - go after the so-called Investigator for "due process" violations immediately.

Stay tuned...

Tim Bolen - Consumer Advocate