Doctors who lie about past tough to track
Lack of watchdog transparency makes it hard to know how many MDs break ‘honour code’
In May 2000, Dr. Martin Tesher signed papers telling the Ontario College of Physicians and Surgeons that he was not facing professional disciplinary actions anywhere he practised medicine. That was a lie. Two months before making that claim, New York’s medical board had charged Tesher with “inappropriate” prescribing of drugs — the first in a string of serious drug allegations and discipline that would escalate to criminal charges last year, when he was arrested at his Manhattan home and indicted twice for prescribing millions of oxycodone pills to patients, including at least one who officials say died as a direct result.
When Tesher lied to the Ontario college, he broke the honour code at the heart of the profession’s regulatory oversight system — one of 42 doctors who crossed the Canada-U.S. border and either lied about or failed to disclose their disciplinary or criminal histories, a Toronto Star investigation has found.
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Such lies often go undiscovered for years, allowing physicians clear records in other jurisdictions where patients can have no knowledge of their doctors’ pasts. On average, Canadian regulators took 1,057 days to impose discipline based on an action by a U.S. medical board. Disciplined doctors moving the other direction — from Canada to the U.S. — were identified faster by American medical boards — 750 days on average.
It is impossible to know the exact extent of the problem.
Most medical regulators do not post physician profiles and disciplinary histories on their public directories in perpetuity and, citing confidentiality provisions, many refused to provide additional information to confirm matches. This lack of transparency all but guarantees that the Star’s database of 159 physicians with disciplinary records, who have held licences in both Canada and the U.S., represents a fraction of the real number. That number is anyone’s guess. North America’s 64 medical regulators oversee nearly a million active physicians — the vast majority of whom will never face disciplinary action. Although it is relatively easy for doctors licensed in a Canadian province to obtain a medical licence in a U.S. state, and vice versa, no single agency tracks physicians who hold licences in both countries.
Our analysis reveals a systemic vulnerability in the patient protection mandate of medical regulators: a reliance on doctors to report themselves when they make mistakes, misjudgments and medical errors.
Marie Bismark, a doctor and legal academic at the University of Melbourne who has been researching physician regulation for 15 years, says “dishonesty is a predictor of recurring problems for repeat offender physicians.” The reason: It is a uniquely difficult behaviour to address.
“People can overcome substance addiction and go back to having a safe career, particularly if they’re subject to ongoing random drug testing,” she says. “Ethical concerns around sexual boundary breaches and dishonesty. I haven’t seen good evidence of interventions that remediate those problems.”
Three studies examining doctor dishonesty — summarized in a 2001 Western Journal of Medicine article — reported between 19 per cent and 31 per cent of physicians had falsified credentials on residency and fellowship applications.
Another study on the credentialing process of physicians in U.S. hospitals found more than 15 per cent of physicians failed to include information negative to their own situations “suggesting that either the physicians remembered imperfectly or they may have been shading their records,” the study reported.
Dr. Eric Tucker’s first lie about his disciplinary record came after his arrest by the U.S. Drug Enforcement Agency at his office in Montebello, Calif., in 1991 as he was counting $4,000 in cash with a .38 calibre revolver sitting eight inches from his hand. DEA officials called Tucker “No.1” in selling fraudulent narcotics prescriptions in California, earning him a reported $40,000 a month.
Tucker, a McGill medical school graduate, voluntarily surrendered his California licence. He then lost his licence in Hawaii in 1992 after he lied on his renewal application, saying he was not facing discipline in another jurisdiction.
He was convicted in Los Angeles in 1991 of “prescribing a controlled substance without a valid medical reason” and in 1992 “for two counts of conspiracy to commit a criminal offence.”
Tucker, who was first licensed in Ontario in 1962, returned to the province in 1992. The Ontario college said it “was aware that Tucker had returned to Ontario as of 1993 and commenced its investigation at that time.” But his crimes did not come before the disciplinary committee until 2000, when he was reprimanded, suspended for several months, and agreed to limit his prescribing privileges, college records state.
The Ontario college disciplinary committee found that he “accepted full responsibility for his behaviour and accepted the fact that the agreed upon penalty would result in an extremely low risk of further similar offences occurring in the future.”
He lied twice more on licence applications in New York.
In 2004, he indicated that there were no criminal charges pending against him, despite the fact that he had been criminally charged with OHIP fraud in March 2000. (While those charges were later withdrawn at the request of the Crown, Tucker pleaded guilty to an offence under the Health Insurance Act in November 2005, the ministry of health and longterm care confirmed to the Star.)
The second time was in 2007, when he said there was no disciplinary action pending against him in another jurisdiction. In fact, he had been charged with professional misconduct in Ontario, due to incompetence, in January 2005, had his licence restricted in March 2005, and was twice required to have a practice monitor in 2005 and 2006. New York revoked his licence in 2009.
DAN FAULKNER
He had resigned his licence in Ontario two years earlier, in 2007, after an expert report concluded that Tucker was “incompetent” and “failed to maintain the standard of practice of the profession,” “displayed a lack of knowledge, skill and judgment” and assessed him “as functioning at the lowest level: Level 5-Critical Deficiency-Immediate Risk to Patient Safety.”
Paul Harte, a Toronto medical malpractice lawyer, calls that assessment “brutal.”
“I’ve never seen that,” he said. “The lowest rating possible.”
Tucker died in 2016. Both the College of Physicians and Surgeons of Ontario and the New York Office of Professional Medical Conduct declined to comment on the case. Speaking generally, Dan Faulkner, interim registrar for the college, said the regulator relies on the honesty of physicians in their responses on licensing and annual review forms.
“We absolutely require professionalism, honesty, integrity, ethics. It goes back to codes of ethics. It goes back to the regulations in the legislation.”
When the college discovers mistruths, it takes action, he says.
“There are some physicians, although in my gut it’s rare, who will provide information that’s either false or blatantly false or misleading. And we will deal with that when we find that out. It is not something that we will tolerate.”
During the time it takes regulators to detect those lies and take action, physicians with hidden disciplinary actions can often continue practising in other jurisdictions, treating patients who have no knowledge of their pasts.
Dr. Martin Tesher’s initial lie worked. His cross-border discipline in New York did not appear on his Canadian record for two years. That secrecy continues on his Ontario public profile where there is currently no mention of a subsequent prescription-related discipline in New York or the two criminal drug cases currently before the courts.
When the Ontario college finally found out about the 2000 New York board disciplinary case — the Montreal-born doctor conceded the allegations and signed an uncontested agreement with the board ordering him to work with a monitor, take some courses and submit to conditions on his licence — it took action.
In its 2002 decision, the college referenced Tesher’s “deliberate misrepresentation” which the committee described as “an extremely serious matter,” noting that the “privilege of self-regulation requires, on the part of all members, absolute truthfulness and integrity in their dealings with the college.”
For such an offence, the penalty seems light. Tesher — who has been called “Dr. Feelgood” in U.S. newspapers — was fined $2,500 and had his licence suspended for three months (the suspension was lifted in exchange for Tesher completing the courses the New York board had ordered.)
“For a doctor making thousands and thousands of dollars, a $2,500 payment is just the cost of doing business,” says Harte. “Our regulatory system is predicated on physicians be- ing forthright and honest with the college. At the first sign that they’re not prepared to do that, that should raise a serious red flag in and of itself and it should also result in discipline proceedings with a serious fine.”
In 2006, Tesher faced a second New York board investigation into his prescribing and record-keeping practices that resulted in 11 counts of professional misconduct. He admitted to five and was given three years of probation.
Then, last year, officials with the U.S. Drug Enforcement Administration arrested Tesher, alleging that he had distributed thousands of oxycodone prescriptions “outside the usual course of professional practice and not for a legitimate medical purpose.”
Tesher is alleged to have written an estimated 14,000 prescriptions between 2012 and 2017. Many of those were handed to patients with substance abuse or opioid addictions, those who abused illicit drugs, those who suffered overdoses and were engaged in “doctor shopping,” the warrant alleges. A DEA statement compared the 81-year-old Tesher to “a multimillion dollar heroin ring, distributing more than $20 million worth of opioids.”
In December, the DEA again indicted Tesher in the death of Nicholas Benedetto who, while under Tesher’s care, tested positive for cocaine, heroin, morphine and methadone as well as oxycodone and fentanyl prescribed by Tesher, “which resulted in his death,” the drug enforcement agency alleges.
Benedetto died of a drug overdose on March 5, 2016, two days after being prescribed oxycodone and fentanyl patches by Tesher, a DEA statement reads.
The criminal allegations against Tesher, which have not been proven, remain before the courts in New York. If convicted of the charges in Benedetto’s death, Tesher would face a mandatory minimum of 20 years in prison and a maximum of life.
In February, Tesher agreed to an “interim order” prohibiting him from practising in the state. But he continues to hold an unrestricted Ontario licence.
In a written statement, the college said: “Dr. Tesher is the subject of an investigation by the college. We can’t confirm further details at this point but when and if additional information is available that is public, it will be posted.”
At his office in Manhattan, where his licence is listed as “inactive,” a secretary recently answered and took a message from a reporter saying Tesher would be in the next day. Tesher did not respond to letters and phone calls seeking comment.
DOCTOR from A1 “There are some physicians, although in my gut it’s rare, who will provide information that’s either false . . . or misleading . . . It is not something that we will tolerate.” INTERIM REGISTRAR FOR THE ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS