COURT fro WHICH APPEALED: HINDS COUNTY CHANCERY COURT. DATE OF JUDGMENT: 03/20/2013. TRIAL JUDGE: HON. PATRICIA D. WISE. TRIAL COURT DISPOSITION: REVERSED THE RULING OF THE BOARD OF MEDICAL LICENSURE.
FOR APPELLANT: STANLEY T. INGRAM TRAVIS JONATHAN CONNER.
FOR APPELLEE: EDWARD BLACKMON.
¶1. The Mississippi State Board of Medical Licensure (the Board) disciplined Dr. Ray A. Harron for his involvement in silicosis litigation in Texas, by ordering that he never attempted to renew his
lapsed medical license. As part of the discipline, the Board notified a national physician's data bank that Dr. Harron's actions had the potential to harm patients. Although Dr. Harron agreed to the discipline, he disagreed that his actions as an expert witness had the potential to harm patients. He therefore appealed the Board's action to the Hinds County Chancery Court. The chancery court reversed the Board's action, ruling that it had no jurisdiction, that its ruling lacked substantial evidence, and that its notification to the physician's data bank was arbitrary and capricious. The Board has appealed this decision.
¶2. Finding reversible error, we reverse and render.
FACTS AND PROCEDURAL HISTORY
¶3. Dr. Harron was issued a medical license in Mississippi in 1995. It lapsed in 2007. Dr. Harron stopped seeing patients in 1995, and started working for Netherland & Mason (N& M), a Mississippi company that screened potential plaintiffs for asbestosis and silicosis-related diseases. In 2001, Dr. Harron shifted focus to screening persons for potential silicosis claims.
¶4. The filing of silicosis cases involving thousands of claimants led to the creation of a multi-district litigation (MDL) proceeding in Texas, styled In re Silica Products Liability Litigation, 398 F.Supp.2d 563 (S.D. Tex. 2005). This case, presided over by United States District Judge Janis Graham Jack, involved 111 cases totaling over 10,000 individual plaintiffs. Id. at 566. A Daubert hearing was held in February 2005, at which Dr. Harron, and other witnesses, testified.
¶5. Dr. Harron was involved in performing " B-reads" or producing diagnosing reports on 6,700 of the claimants in the Texas litigation. He was listed as the diagnosing physician on 2,600 of these claims. Dr. Harron testified about his practices of letting medically untrained secretaries and typists interpret his reports, insert a diagnosis, stamp his signature on the reports, and send them out with no review by him. He testified that he " might" have given a copy of his signature stamp to N& M when he " got behind on typing."  He testified that " anybody" could have stamped his signature to reports. While being questioned about how he could diagnose a specific claimant with asbestosis and later diagnose the same claimant with silicosis based on reading the same x-ray, he asked for a lawyer to represent him, and all questioning of him was halted by the judge.
¶6. At the conclusion of the hearing, the court ruled that Dr. Harron's proposed expert testimony (and that of some other doctors) was unreliable and excluded it. Id. at 637-40. Specifically, the court found that Dr. Harron relied on medical histories
performed by lawyers and nonmedical personnel, which were " so deficient as to not even merit the label." Id. at 624; see generally id. at 622-25. The court further found that Dr. Harron's (and other doctors') review of x-rays lacked quality-control measures, id. at 627, and produced results that were described by other experts as " staggering," " implausibl[e]," " unsound," and " stunning and not scientifically plausible." Id. at 628-29; see generally id. at 625-29. Judge Jack found that Dr. Harron
relied upon occupational/exposure histories and medical histories which fail to even merit the title, " history," let alone meet the generally-accepted scientific methodology for diagnosing silicosis.
. . . .
With respect to Dr. Harron, he simply ignored the third criterion for diagnosing silicosis (i.e., the absence of any good reason to believe that the positive radiographic findings are the result of some other condition). . . .
Perhaps even more stunning was Dr. Harron's reliance on largely untrained secretarial staff to " translate [the ILO form he completed] into English[,]" . . . " prepare [his] reports, stamp [his] name on them and send those reports out without [him] editing or reviewing them" . . . . Dr. Harron did not read, review or even see any of the 99 diagnosing reports . . . bearing his name. This " distressing" and " disgraceful" procedure does not remotely resemble reasonable medical practice. . . . Not only is this " technique" not generally accepted in the scientific community, but it is utterly lacking in any " standards controlling the technique's operation." [United States] v. Hicks, 389 F.3d 514, 525 (5th Cir. 2004) (among the reliability factors are " the existence and maintenance of standards controlling the technique's operation; and . . . whether the technique has been generally accepted in the scientific community" ) (citing Daubert, 509 U.S. at 593-94).
Moreover, as recounted above, the sheer volume of Dr. Harron's asbestosis/silicosis reversals (i.e., reading an x-ray as consistent with asbestosis for asbestos litigation and then reading the same individual's x-ray as consistent with silicosis for silica litigation), simply cannot be explained as intra-reader variability. . . . Instead, it can only be explained as a product of bias -- that is, of Dr. Harron finding evidence of the disease he was currently being paid to find.
Id. at 637-38 (citations omitted). The court also imposed sanctions against the law firm tendering Dr. Harron as an expert witness. Id. at 676.
¶7. In early 2007, the Texas Medical Board instituted disciplinary proceedings against Dr. Harron based upon his activities in relation to the silicosis litigation. As a result of those proceedings, Dr. Harron entered into an agreed order dated April 13, 2007, in which he surrendered his Texas medical license, and agreed not to seek its renewal.
¶8. In July 2007, the Board also instituted disciplinary proceedings against Dr. Harron. During these proceedings, Dr. Harron entered into an agreed order, approved by the Board in November 2007, in which he agreed to never seek renewal of his Mississippi medical license and to pay all costs of the investigation and disciplinary hearings up to $5,000. The agreed order expressly stated that the results of the proceeding would be reported to the National Practitioners Data Bank (NPDB), a data bank that monitors disciplinary actions involving doctors.
¶9. The Board submitted an Adverse Action Report to the NPDB. In the report a question was asked: " Is the Adverse Action Specified in This Report
Based on the Subject's Professional Competence or Conduct, Which Adversely Affected, or Could Have Adversely Affected, the Health or Welfare of the Patient?" The Board answered " Yes" to this question. Dr. Harron filed a written dispute with the NPDB, claiming that he acted only as an expert witness and not in a doctor-patient relationship, and that as a result, his actions could not have harmed a patient. Dr. Harron then refused to pay the $5,000 in costs.
¶10. In 2009, the Board held a hearing after which it concluded that Dr. Harron had violated Mississippi Code Annotated section 73-25-29(8)(d) and (13) (Rev. 2012), as well as Mississippi Code Annotated section 73-25-83 (Rev. 2012), and reaffirmed its report to the NPDB. Dr. Harron was again ordered to pay the $5,000 in costs.
¶11. Dr. Harron appealed this decision to the Hinds County Chancery Court. The chancellor remanded for further hearings on whether the parties had come to a full agreement in the agreed order.
¶12. Rather than proceed on the original agreed order, the parties agreed to start the disciplinary process anew. New charges were filed, charging Dr. Harron with violations of:
Section 73-25-29(8)(d) -- unprofessional conduct which includes but is not limited to, being guilty of any dishonorable conduct or unethical conduct likely to deceive, defraud or harm the public;
Section 73-25-29(9) -- refusal of a licensing authority of another state or jurisdiction to issue or renew a license to practice medicine and/or having restrictions imposed on a license to practice medicine in another state or jurisdiction;
Section 73-25-29(10) -- surrender of a license to practice medicine in another state or jurisdiction while under disciplinary investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct which would constitute grounds for action;  and Section 73-25-83(a) -- unprofessional conduct as ...