SOLDIERS BEWARE!
Minnesota Board of Medical Practice
 

The following information has been included as evidence that physician's are not held accountable by the military or their state licensing boards for medical malpractice which occurs during their military service.   
 
The mission of the Minnesota Board of Medical Practice is to protect the public's health and safety by assuring that the people who practice medicine or as an allied health professional are competent, ethical practitioners with the necessary knowledge and skills appropriate to their title and role. However the failure to discipline Dr. Tibesar in regard to the death of MSG Kinamon shows blatant disregard for the public's health and safety. 
 
Furthermore, the Board adopted the following policy but does NOT discipline doctors who disregard it.

The recommendations contained herein were adopted as policy by the House of Delegates of the Federation of State Medical Boards of the United States, Inc., May 2004.

Model Policy for the Use of Controlled
Substances for the Treatment of Pain

Federation of State Medical Boards
of the United States, Inc.

(http://www.fsmb.org/pdf/2004_grpol_Controlled_Substances.pdf)  


The Kinamons have on three occasions alerted the Minnesota Board of Medical Practice to the reckless behavior of Dr. Robert Tibesar, but the Board refuses to discipline him. To further complicate matters, the Board, who has the authority to take enforcement and regulatory action against physicians who engage in unprofessional or unethical conduct, states that they will not take action because the attorney general's office advised them that they did not have sufficient evidence to proceed to try to take some kind of formal action on the doctor's license. On the other hand, the attorney general's office, who can advise the Board to take action on a physician's license, states that it does not have the authority to actually take action on physician licenses. Neither agency will take responsibility for not disciplining this Minnesota doctor who unjustifiably ended a patient's life.
 
 
The following letter was sent December 3, 2007:
  
 
Minnesota Board of Medical Practice
University Park Plaza
2829 University Avenue SE, Suite 500
Minneapolis, Minnesota 55414-3246


To the Members of the Minnesota Board of Medical Practice: 

Per Minnesota Statute 214.10, I am filing a formal complaint against Dr. Robert Tibesar. In prescribing a drug contraindicated for post-operative, non-opioid tolerant patients, Dr. Tibesar violated Minnesota Statute 147.091, subdivision 1, paragraphs "g" (incompetence), "k" (unprofessional conduct), and "s" (prescribing practices) which the Minnesota Board of Medical Practice ("Board") is clearly empowered to enforce. Additionally, per Minnesota Statute 214.103, I request a review of this case by a representative of the attorney general's office. 

At first glance, one might assume that the Board has no jurisdiction in this case. However, Dr. Tibesar was practicing medicine at Wright-Patterson Air Force Base in Dayton, Ohio under his Minnesota physician's license. The Air Force requires a physician to have a license to practice medicine before he can be considered for employment. Therefore, the military is the place of employment and Minnesota is the licensing authority. The military can only discipline as an employer and has no jurisdiction in licensing matters.

If the military had not been the employer, Dr. Tibesar could have been charged with manslaughter in the second degree in Minnesota or criminal reckless homicide in Ohio. Minnesota Statute 609.25 states that a person who causes the death of another by the person's culpable negligence whereby the person creates an unreasonable risk and consciously takes chances of causing death or great bodily harm to another is guilty of manslaughter in the second degree. Ohio Revised Code 2903.041 states (A) No person shall recklessly cause the death of another or the unlawful termination of another's pregnancy, (B) Whoever violates this section is guilty of reckless homicide, a felony of the third degree. 

Dr. Tibesar had ready access to repeated warnings concerning the extreme risk of prescribing fentanyl transdermal patches ("fentanyl") and the consequences of administering fentanyl in absolute violation of its explicit directions for use. Nevertheless, he proceeded with conscious indifference for the life and safety of MSG Harold W. Kinamon, Jr. ("MSG Kinamon"). There was no intention to kill, but the doctor did not act with the care and caution of a reasonable person in a similar circumstance. He did not follow the standards of practice for prescribing opioids. Furthermore, Dr. Tibesar had a broad range of post-operative, non-opioid alternatives from which to choose that did not pose life-threatening risks. Prescribing information states that fentanyl should not be the first opioid medicine that is prescribed for pain. 

According to a Pulitzer-winning series that appeared in the Dayton Daily News  in October 1997, state boards are hesitant to discipline physicians because it is difficult to get patient records from the military. Therefore, I have enclosed information which proves Dr. Tibesar was the attending physician, and therefore was the one who prescribed the 75 mcg/hr Duragesic® patch for MSG Kinamon's post-operative, acute pain. The autopsy indicates that death occurred as a result of the toxic level of fentanyl in MSG Kinamon's system from the one 75 mcg/hr patch that was found on MSG Kinamon's body. 

There is no doubt that MSG Kinamon's pain was caused by the surgical procedures and thus the prescribing of fentanyl for post-operative pain was contraindicated. In addition, if MSG Kinamon had been taking opioids prior to the fentanyl prescription, he would have been opioid tolerant and the level of fentanyl occurring approximately 12 hours after application would not have been fatal. MSG Kinamon's immediate fatal respiratory depression clearly indicates that there could not have been any demonstration of opioid tolerance, in which case Duragesic® would have been contraindicated. This should be plenty of information to invoke disciplinary action against Dr. Tibesar - it isn't a complicated case. 

Neither MSG Kinamon, nor the manufacturer, nor an adverse reaction to the prescription is to blame; MSG Kinamon's death was 100% physician error.  As you know, poisoning is defined as drugs given in error (wrong drug) or medication given in error (wrong dose, wrong patient, wrong route of administration). In an adverse reaction, the patient experienced a reaction even though it was the correct patient, drug, dose, and route of administration. In a poisoning, something was done wrong. Furthermore, prescribing a second narcotic (oxycodone) which depresses respiration in addition to the fentanyl was clearly contraindicated as well. Overall, Dr. Tibesar prescribed contraindicated fentanyl at 6 times the recommended initial dose for an opioid tolerant patient, as well as oxycodone which is contraindicated for being taken with fentanyl. 

So far no one has been able to justify the recklessness of Dr. Tibesar. If the Board will not accept responsibility for disciplining Dr. Tibesar then the Board clearly isn't fulfilling its mission of protecting the public from incompetence. When a Minnesota licensed physician needlessly ends a patient's life because he did not adhere to the standards of care, the Board should be more concerned that the incident occurred, NOT the location of the incident. The obvious recklessness of Dr. Tibesar's actions should be of great concern to the Board.

 

The letter was sent to the following: 

Mr. Glenn A. Fine, United States Inspector General

United States Senator Coleman

United States Senator Klobuchar

Governor Pawlenty of Minnesota

Mr. John Kline, United States House of Representatives

Attorney General Swanson of Minnesota

Minnesota Senator Marty

Minnesota Senator Gerlach

Ms. Shelley Madore, Minnesota House of Representatives

Dr. James N. Thompson, President/CEO, Federation of State Medical Boards

Dr. Samantha Collier, Chief Medical Officer, HealthGrades

Rick Marinelli, President, American Academy of Pain Medicine

Cynthia Porter, Senior Manager, American Pain Society

 

 
 
On April 25, 2008, a letter from the Board was received with the following information:
 
When the Board receives a complaint, it is thoroughly reviewed to determine:
  • First, whether the topic of the complaint is within the Board's jurisdiction as specified by law.
  • Second, whether the facts of the specific situation can support any action by the Board in a formal disciplinary proceeding before an Administrative Law Judge or in a court of Jaw.
The complaint you have filed has been submitted to such a review. Based on our review, the Board is unable to take any action which would withstand the required tests. Our file is, therefore, closed.

MNBMP042508.jpgMNBMP042508.jpg

A response to the Board's letter was sent on August 14, 2008: 

 

Re:      Complaint filed against Dr.Tibesar

To the Members of the Board of Medical Practice: 

I continue to be appalled that the Board will not discipline a licensee who recklessly killed a patient.  As a Minnesota resident, it is quite unnerving to know that there are doctors practicing medicine with "clean" records when in fact they have actually killed a patient.  Because of this experience, I know that the Board is not fulfilling its obligation to the public, and it scares me. 

Dr. Tibesar did not follow the standards of practice for prescribing opioids from the Federation of State Medical Boards Model Policy, which Minnesota adopted, the American Pain Society, or the Agency for Healthcare Research and Quality's (AHRQ) National Guideline Clearinghouse (NGC).  Furthermore, Dr. Tibesar ignored the Duragesic® label as well as warnings issued immediately prior to his prescribing of a contraindicated, Schedule II opioid at the second highest dose to a post operative, non opioid tolerant patient.  The Duragesic® patch manufacturer Janssen (June 2005), FDA (July 2005), United States Army Medical Materiel Agency (July 2005), Institute for Safe Medication Practices (August 2005), and the Department of Defense Patient Safety Center (Sept/Oct 2005) issued warnings that prescribing and administering Duragesic® to post operative patients that were not opioid tolerant could result in life threatening hypoventilation and death with the first dose. 

In the Board's letter dismissing my claim with no action, the Board stated that my claim did not withstand the tests of jurisdiction or actions requiring formal disciplinary hearings.  However through e-mails, Mr. James G. Rawson of the Federation of State Medical Boards, of which you are a member, explained that a doctor working for the Department of Defense in a state different from his licensing state, would be under the jurisdiction for disciplining purposes of the state where the doctor holds his license. 

Furthermore, I quote Mr. Willem Scholten of the World Health Organization regarding the use of fentanyl for an opioid naïve patient. 

    I wonder why you cannot get to the Board. Assumed that the fentanyl leaflet is clear that one should not start with this strength in opioid naïve patients, then it seems clear that the doctor is wrong. 

Had this event occurred outside the military, successful criminal and civil prosecutions would have been effortless.  Since Dr. Tibesar is from St. Paul, I can only assume that there is a conflict of interest that prevents the Board from taking appropriate action.  I will not allow my brother's untimely death to be so easily dismissed.  I will continue to pursue this matter until the proper agencies are notified and suitable discipline has been initiated.   

The dead cannot cry out for justice; it is a duty of the living to do so for them.
Lois McMaster Bujold