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Va. law prevents medical board from suspending doctors before investigations end

Posted at 4:30 PM, Sep 15, 2021
and last updated 2021-09-16 09:42:50-04

RICHMOND, Va. -- A national organization that represents state medical boards found that physicians were not being held accountable enough for sexual misconduct.

So they decided to take action.

The Federation of State Medical Boards supports member boards, like the Virginia Board of Medicine, as they work to protect the public's health, safety, and welfare. They decided to push for changes in the industry after USA Gymnastics Doctor Larry Nasser was found guilty of sexually abusing hundreds of gymnasts.

An investigation by the Atlanta Journal-Constitution found medical boards failing to hold hundreds of doctors accountable for sexually assaulting patients.

Last year, the Federation released 38 recommendations to state medical boards to help curb the problem of physician sexual misconduct.

The CBS 6 Problem Solvers took an in-depth look at that new guidance and compared it to what the Virginia Board of Medicine does.

Three of the recommendations stood out related to cases that involved Dr. Michael Pollock.

Pollock has been arrested for allegedly sexually assaulting patients and has a lengthy history of sexual misconduct with the Virginia Board of Medicine.

First, boards should have the authority to suspend a license prior to the completion of their investigation. In Virginia, this is not allowed because the board has to complete an investigation before suspending a license.

Diane Powers, a spokesperson for the Board, said the General Assembly would have to change Virginia law in order for this to happen.

"While the Board has considerable authority, the Board must also take into account that licensees have due process rights that are written into the Constitution of Virginia and the Code of Virginia. A license from the Board of Medicine is a property right, and the Office of the Attorney General has advised the Board that “clear and convincing” evidence is required for it to take an action on a license," Powers said in a statement to the CBS 6 Problem Solvers. "As has been mentioned previously, the Board’s decisions are based on the totality of the evidence. Its decisions must be able to withstand appeals from the “licensee” in both state and federal courts, up to and including the supreme courts. Having a decision of the Board overturned by the courts does not benefit the public, the Board of Medicine, or the Commonwealth of Virginia. A complete and thorough investigation illuminating the evidence in a case is the underpinning of all the principles mentioned in this paragraph."

Second, boards should consider revoking a license when a physician has repeatedly committed "lesser" acts of unprofessional conduct of a sexual nature.

In Virginia, the Board can consider a licensee's history in its decisions, and decisions are based on the totality of the evidence. However, Powers declined to say why Pollock's license was never revoked.

Third, the federation recommends boards continue to monitor physicians who have been subject to discipline and corrective action to ensure they avoid situations similar to those where they engaged in sexual misconduct.

Powers said it does this through various terms and conditions placed on a sanctioned doctors' license.

She referred to the terms and conditions placed on Pollock's license when it was reinstated after being suspended in 2012. However, when Pollock's license was fully reinstated in 2013, those terms and conditions were terminated.

Powers said the Board of today is "not the board of yesteryear." She also said, "the 18 members of the Board today view issues differently than the board of 1984, 1998, and even 2012."