A district court judge has reversed a Montana Board of Medical Examiners decision to suspend the license of a Helena doctor.
Judge James Reynolds found Tuesday that the board made multiple procedural errors when it suspended the license of Dr. Mark Ibsen in 2016, following high-profile and contentious hearings. The board erred when it rejected the findings of its own hearing officer, did not allow cross examination of a board member’s comments and considered evidence outside of the hearings, the judge ruled.
Ibsen’s practice of prescribing opioids came to the board in 2013 after a former employee filed a complaint against him, alleging that he over-prescribed medications for a number of patients.
In 2015 a Montana Department of Labor hearing officer’s report failed to substantiate those claims, finding his standard of patient care sufficient but also finding that Ibsen kept inadequate records. But the board rejected much of the report, deciding that because the hearing officer was not a doctor, he was not competent to make many of the findings, Reynolds wrote in his opinion.
Following additional filings and hearings, in 2016 the board ruled on the remaining aspects of the hearing officer’s findings along with its own findings in the administrative record, and moved to suspend Ibsen’s license. Ibsen petitioned the court for judicial review, and the court agreed to issue a temporary injunction and restraining order against the board’s decision, allowing him to continue practicing medicine.
Reynolds rebuked the board’s “wholesale” rejection of much of the hearing officer’s report.
“These deficiencies violate of the requirements of MAPA for the agency to appoint a competent hearing examiner and for proper review of the hearing examiner’s findings,” the opinion says. “It is analogous to the selection of a jury in a civil case and then when the verdict comes in against a party, that party asking for the selection of another jury. Except in this case, it is even more striking because it is the agency who selected the hearing examiner.”
Reynolds also found that the board violated Ibsen’s due process when board member Dr. Mary Anne Guggenheim made several statements questioning the qualification of one of Ibsen’s expert witnesses, Dr. Charles Anderson, to testify as he did. Those statements, and two letters from a third doctor supporting them, were not presented on the hearing record and Ibsen was not given the opportunity to challenge the statements.
“Here we have a panel member making a comment during deliberation as to the believability and expertise of Ibsen’s expert witness,” Reynolds wrote. “This information was presented to the entire panel and used during the deliberation to reach its conclusion. Ibsen was not afforded the opportunity to cross-examine Dr. Guggenheim’s comments nor was he afforded the opportunity to present evidence to rebut her assertion as required by law.”
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Reynolds’ order reverses the board’s decision and remands it to the board for further proceedings.
Ibsen’s attorney John Doubek was blunt in his assessment of the ruling.
“They screwed up,” he said of the board. “I think it’s a pretty sharp rebuke to a decision that was totally off-base.
“The sad thing is my client has been under their thumb now for two years. He can’t move his practice because he has this black mark against his reputation and against his license, so he’s been unable to practice medicine and this guy is a good doctor.”
Doubek believes the board was seeking retribution after being challenged by Ibsen.
Ibsen has been outspoken on issues of pain management and advocated for prescribing and then attempting to wean patients from opioids. His prescribing practices were viewed as controversial by some in the Helena medical community, and Ibsen claims that some pharmacies refused to fill his prescriptions due to the quantity of opioids some patients were receiving. Ibsen often made public those and other instances as he advocated for a rethinking of pain patient treatment.
Doubek said Wednesday that Ibsen feels a bit vindicated by the ruling, but they remain unsure what the board will now do. Many of those who were on the board when Ibsen's hearings took place have since been replaced.
Doubek said they have not ruled out civil action in the case.
Montana Department of Labor spokesman Jake Troyer declined to comment, saying the agency does not comment on ongoing lawsuits.