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Disabled doctor must overcome medical board to work in Bakersfield

BY EMILY HAGEDORN, Californian staff writer

e-mail: ehagedorn@bakersfield.com | Monday, Aug 11 2008 1:25 PM

Last Updated: Monday, Aug 11 2008 7:12 AM

Don’t get Steve Schilling started on how hard it is to get doctors to come to Bakersfield.

Known for saying what’s on his mind, the Clinica Sierra Vista CEO will launch into describing the trips he’s taken with potential hires to Seven Oaks, enticing them by pointing out the spacious homes a community clinic physician can afford in Bakersfield.

“We live here in Kern County, in one of the most severely understaffed, health manpower shortage areas of anywhere in America,” said the outspoken chief of the nonprofit group of clinics that serve the poor. “I’ve got vacancies all over the place.”

So you can imagine Schilling’s excitement upon finding Dr. John Melville.

Melville is board certified in pediatrics and internal medicine, a rare designation that no other Clinica doctor has. He is a member of the National Health Service Corps, a federal program that sends doctors to underserved areas in exchange for paying for college.

He has glowing references and a medical record clean of disciplinary actions.

“When a gentleman like John comes along, we’re of course interested,” he said.

But despite Melville’s track record and Clinica’s desire to hire him, he may never see the inside of one of Clinica’s clinics.

The Medical Board of California, the state agency charged with licensing and disciplining physicians, has not granted him an unrestricted license — a must, Melville and Schilling say — due to the fact he has cerebral palsy, according to medical board correspondence Melville provided to The Californian.

Cerebral palsy is a condition affecting body movement and muscle coordination. For Melville, it was caused by a brain injury suffered during birth.

When he walks, he limps slightly and stumbles. His words come out slurred and louder than he intends. His hands jerk, contort.

“Now were we a little struck by John when we first me him? Absolutely,” Schilling said. “Everybody is a little bit surprised and taken aback by a person that is as quote ‘disabled’ as John is or as ‘different.’”

Melville recognizes his limitations and voluntarily refrains from procedures involving sharp objects, like administering injections and IV medication, he said.

But for the board, that might not be enough.

Medical board spokeswoman Candis Cohen couldn’t comment on license statuses but said that “in the interest of public protection, we need to make sure the appropriate protections are in effect.”

According to the board’s letters to Melville, an unrestricted license was never a possibility.

He could undergo a physical medical assessment and maybe be offered a restricted license, or he could withdraw his application.

Restricted and unrestricted licenses might not mean much to laymen, but license status affects doctors’ reputations, employment opportunities and whether health insurers will pay for medical services.

“So the board has kind of put me in this really difficult situation that in order to get a license, I need to accept actions that are going to mar my professional reputation irreparably and solely based on my disability,” Melville said. “I grew up in California, and California, if anything, prides itself in the effort it goes to include everyone.”

Melville has an unrestricted license in Alaska, where he works now, and had an unrestricted training certificate in Ohio, where he did his residency.

He underwent a physical assessment in July at the board’s request. The evaluating physician recommended an unrestricted license, according to the filing.

Melville is awaiting the board’s final decision.

“This sort of felt like Mississippi 1955,” Schilling said. “It just bugs me that there was not a way for the medical board to be more responsive.”

At least one local attorney sees valid reasoning behind the board’s actions.

“The rules were written for the purpose of protecting the patients,” said Dee Stasnopolis, a health care law attorney and partner in the Bakersfield office of Borton Petrini. “To have the rules rewritten for a particular doctor — it’s not going to happen.”

FAR AWAY

Arvin, where Melville would work, may seem small by Bakersfield standards, but the southeast Kern farm town is a big city compared to Kotzebue, Alaska — a village 30 miles north of the Artic Circle — where the doctor currently resides.

“There’s far away and then there’s far away,” Melville said.

Melville, 32, has worked at the Maniilaq Health Center since 2006, sometimes traveling by sea plane and dog sled to care for sick kids.

He’s the northernmost pediatrician in the United States, he says with a laugh, responsible for children within a 500-mile area.

“I like a rural lifestyle,” he said. “It’s a little bit slower, a little bit different, but it agrees with me.”

Richard Elam, a 50-year-old Kotzebue resident, remembers the first time Melville treated him for his chronic back pain.

“I thought they were playing a joke,” he said. “He was walking, talking funny.”

But over the last year, he has grown to appreciate Melville’s skills, he said.

The doctor jokes with patients about his disability “to remove the big question mark from the room,” said Dr. Robert Gibson, Maniilaq Health Center medical director.

“He’ll say, ‘Oh, it’s nothing but brain damage,’” Gibson said. “He’s very engaging and empathetic.”

With Melville in Kotzebue is his wife, Valerie, and two daughters, Olivia, 3, and Orpah, 11 months.

Olivia has recently shown some developmental delays, for which their Inuit village doesn’t have the appropriate resources — another reason for coming to California.

The couple met when he was doing his residency with Children’s Hospital Medical Center of Akron and Akron General Medical Center. Melville moved to Akron after graduating from the University of California San Diego School of Medicine.

It took him longer than most students to learn to do physical exams at an acceptable speed, he said.

“The demands placed upon residents are greater than anything you would find in the real world,” said Dr. Paul Lecat, the former internal medicine and pediatrics residency director at Akron General. “I never cut him any slack.”

Other medical professionals weren’t so sure about him being a physician, but they usually came around or he found ways to succeed without them, Melville said.

“I’ve always run into people who say, ‘Couldn’t you just be a research guy?” he said. “Getting into med school was a little bit hard. A couple of admissions committees couldn’t deal with a disabled doctor.”

THE BOARD

Melville’s complaint with the board centers on the trust it places with all other physicians except, apparently, him. The board has one license, a “physician’s and surgeon’s certificate,” for all doctors, from psychiatrists to heart surgeons.

“Physicians are trusted to only do the things that they do well and that they’re trained for,” he said. “What I find particularly objectionable is they’re saying that disabled physicians aren’t worthy of the same trust.”

Furthermore, Melville said the board is leery of his “surgical” skills because of his shaky hands, despite the fact he isn’t a surgeon.

The procedures he refrains from, such as drawing blood, aren’t typically done by physicians anyway, and in the case a doctor is needed, another doctor from the office could cover, he said.

Still, the board can’t rely on a physician to choose how to practice medicine, Cohen said, via e-mail.

“If a physician has a condition impairing his/her ability to practice medicine safely without sufficient evidence to deny the application, a probationary license may be issued,” she said.

A “probationary license” is different from a doctor being placed on “probation.”

A probationary license is an administrative action that occurs at the point when a license is issued, when physicians have conditions impairing their ability to practice safely but the board doesn’t have evidence to deny their applications, Cohen said.

Being placed on probation is a disciplinary action, usually done when a doctor is negligent and harms a patient.

While Melville would be given a probationary license, not probation, that action would still be reported on the board’s Web site and to the National Practitioner Data Bank, a resource used in background investigations, according to letters from the board.

The board then would suspend his license and convert it into a limited license with restrictions.

It “will endeavor to fully inform any inquiring party of the circumstances surrounding the transition,” according to the May 23 letter from the board to Melville.

“The solution they’re offering is not a real solution,” Melville said. “To say, ‘Well it’s a suspended license, but it’s not disciplinary’ — it’s kind of like a nondisciplinary jail term.”

Five California physicians have active licenses with voluntary limitations on practice, Cohen said. Board staff couldn’t recall a single instance when a physician harmed a patient because of a disability.

Gibson, Melville’s current medical director, said his situation poses a challenge to the board. He can see both sides.

“If the physician has an area of limitation that is recognized as a possible threat to the public, then they’ll put a limitation on the license even if the physician has no plans to practice that type of medicine,” said Tim Miller, senior director for government relations and policy for the Federation of State Medical Boards, a nonprofit composed of the country’s boards. “I’ve seen limitations on physicians where they can’t do surgeries or deliver babies even though that’s not what they do.”

Larry Paradis, executive director of the nonprofit, Berkeley-based Disability Rights Advocates, said the assumption that the disabled pose a threat is an “archaic stereotype.”

“Public safety can still be protected while allowing quality individuals with disabilities to be licensed,” he said. “It’s not an either/or.”

The board should have a license for disabled doctors that is unrestricted but includes a side agreement on what the they can and cannot do, Paradis said.

The board is looking into a special license, Cohen said.

Melville and Schilling also assert that the restricted license would make getting paid difficult.

“There are certain payers who respond very negatively if you bring forward a provider with a restriction on his license,” Schilling said. “It would have made life really difficult, and it may have made the practice unsustainable.”

Health Net and Anthem Blue Cross, two large insurers in California, typically require unrestricted licenses, but exceptions can be made on a case-by-case basis, officials said.

A restricted license alone would not preclude a provider from Medi-Cal, the state’s health program for the poor, said Anthony Cava, spokesman for the state Department of Health Care Services, which oversees Medi-Cal.

A physician “could not enroll as a preferred provider (in Medi-Cal) with any limitations on their license,” though, Cava said.

As a preferred provider, a physician’s Medi-Cal application is expedited, so this means Melville would have to wait longer to accept Medi-Cal funds.

THE LAW

The medical board erred when it denied Melville an unrestricted license before having him undergo a physical assessment, said Brenda Premo, director of the Center for Disability Issues and the Health Professions at Western University in Pomona.

What puzzles her is all the other disabled doctors she knows who practice with full licenses. Why not Melville?

“Low vision, deaf doctors: fully licensed. Quadriplegics: fully licensed,” she said. “There are a lot of quote-unquote ‘able-bodied people’ who are far more dangerous to patients who are practicing now with drug and alcohol problems than people with disabilities.”

Melville argues that Medi-Cal and the medical board fall under Title II of the Americans with Disabilities Act, which says people with disabilities won’t be excluded from services, programs or activities of a public entity.

“He certainly has a strong claim under both state and federal law that he should be licensed in such a way that he can practice in his field,” Paradis said.

The general principle is that public agencies have to make reasonable modifications for qualified individuals, he added.

“Two other states have licensed him unrestricted,” Paradis said. “Both of those would argue he is qualified to do the essential functions of his job.”

Under any law, some people are going to fall through the cracks, Stasnopolis said.

“Is it fair?” he asked. “I don’t know.”

WHAT LIES AHEAD

Melville figures he has a 50-50 shot at getting an unrestricted license from the board.

He has reached out to some disability rights organizations with no luck. He would like to take the state to court if he’s denied, but he doesn’t have the money.

Also, the window of time when the National Health Service Corps will let him move may be closing. The corps, which places doctors in underserved areas, is restrictive on when a doctor can switch locations.

Giving him a license “does not make anyone hire me. It just simply says that I can participate in competition based on merit,” he said. “The only thing I’m accused of is a small error in the birthing process.”