Physician Kevin Brown's Sentencing Is Delayed Until November. Commentary On Use Of Undercovers In Physicians' Offices & Importance of Chaperones

Photo by: Nick Ut AP Dr. Kevin Brown, the son of a former Premier of Bermuda, had his sentence for sexually assaulting patients delayed September 21, 2011, because he is requesting a retrial. The case is pending in Los Angeles County Superior Court before Judge Pastor. Dr. Brown was convicted by a jury on August 15 of committing sex attacks on nine female patients under the guise of breast and pelvic examinations from 2003 to 2008. The majority of the alleged assaults occurred at the Crenshaw Expo Medic Center at 3631 Crenshaw Blvd., Los Angeles where Dr. Brown practiced. One of these "female patients" was an undercover LAPD officer who posed as a patient. The undercover female LAPD officer posed as a patient with an ankle injury, and Dr. Brown was found guilty of pulling her top up and exposing her breasts as she was getting ready to leave. He dismissed the allegations as lies, and his lawyer, Edi Faal, questioned the credibility of the witnesses. However, he was found guilty of 21 counts including sexual battery by fraud, sexual exploitation by a physician, sexual penetration by a foreign object and committing a lewd act. The jury deadlocked on eight felony counts, including rape. Judge Michael Pastor declared a mistrial on those counts. Although Dr. Brown had been free on $4 million bond while the case and trial were pending, he was taken into custody after the verdict was announced. The 40-year-old doctor faces a maximum term of 16 years and ten months in state prison. According to Deputy District Attorney Ann Marie Wise. Mr. Faal plans to argue once again that the victims were not credible, but did not file his motion in time for it to be heard yesterday. The sentencing has now been rescheduled for November. It is likely that if the motion for new trial is denied, the case will proceed to sentencing. Medical Board Status: To date, the Medical Board has not filed an Accusation against Dr. Brown and is likely waiting for sentencing. While the case was pending, Dr. Brown was free to practice as long as he complied with a court order issued by the criminal Judge Hall at the arraignment/bail hearing on September 9, 2008 which provided that: "In the event defendant Kevin Brown makes bail, he shall not see any female patients without a chaperone approved by the California State Medical Board and said chaperone is not to be an employee of Dr. Brown." Dr. Brown would be able to practice if he could be released on bail while pending sentencing, subject to the chaperone restriction. Currently he cannot practice because he is in custody. ATTORNEY COMMENTARY: There are two important things to learn from this case regardless of how well or clean you run your practice. First, the Medical Board is being much more proactive and is using undercover officers in order to obtain recordings and definitive proof in cases. Whether it is a physician or health care provider suspected of prescribing medically unnecessary drugs (especially pain medications or medical marijuana) or one who has boundary issues with patients and makes unwanted physical or sexual advances — the Board is cooperating with local law enforcement and sending in undercover officers. Assume every patient is wearing an undercover wire and you will save yourself a great deal of expense and trouble and help protect your license. Second, I find some physicians reluctant to use chaperones while examining female patients. The added expense of a medical assistant is small compared to the risk to your license and liberty if someone makes a false claim. That chaperone should write their initials in the chart showing their presence. In addition, the chaperone can be used to increase your productivity. For OB-GYNs, plastic surgeons, dermatologists and other practices with a high female patient percentage — you WILL encounter at least a small percentage of patients with mental health issues. Statistically, it can easily happen that the patient interprets your exam in a way that it was not intended or that typical patient-physician chit chat is interpreted as "flirting," etc. Example: I had one physician client who was double-boarded OB-GYN and Oncologist and was very thorough. One patient complained that there was sexual touching simply because he did the breast exam with her lying on the table and sitting up (apparently no one had ever examined her breasts which were fibrous sitting up) and the other patient had elephantitis of the vagina and he performed a clitoral exam which he fully explained was needed due to high risk of tumors and she complained of a sexual touching. Both complaints were dismissed after an interview but a chaperone who signed the chart would have been important and substantive evidence if the case had gone any further. Points of today's article: (1) Use chaperones when examing patients of the opposite sex and any patient who shows any signs of mental distress or illness, and (2) Assume every patient is undercover and is wearing a wire or video recording device. Do not say or do anything you would not want recorded or videotaped. Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017. Any questions or comments should be directed to Tracy Green, a very experienced California health care attorney, administrative attorney, and California Medical Board attorney at tgreen@greenassoc.com.

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