In 2016, Washington’s Board of Naturopathy suspended the naturopathy license of Lucinda Messer, N.D., for at least five years. The board’s action was based on its conclusion that she had “failed to meet the standard of care, resulting in harm or unreasonable risk of harm” to two patients with advanced colon cancer. (The patients are identified in the board’s public records as “Patient A” and “Patient B.”) At that time, Messer operated a clinic called Pacific Health Restoration Center and a residential “retreat” called The Goddess Sanctuary, both located in Kirkland, Washington. In 2011 and 2012, her Web site described her as specializing in “integrative oncology” and claimed that she was “able to help all cancer patients with alternative medicines.” The methods she offered included Gerson therapy, laetrile, mistletoe injections, thymus extracts, and intravenous vitamin C and hydrogen peroxide, none of which has been proven to benefit cancer patients. As noted below, the board’s investigation concluded:
- Messer offered, facilitated and rendered diagnostic and therapeutic interventions with unproven and/or disproven claimed beneficial effects and failed to obtain adequate informed consent.
- Messer falsely represented in advertising that she was able to treat cancer.
- Naturopaths who treat cancer patients are required to consult with or co-manage their care with a medical or osteopathic doctor. However, Messer failed to do this.
- Messer told a board investigator who posed as a cancer patient: “You know, we can’t say we treat cancer, but that’s silly because we do. I have extensive training in integrative oncology and treat cancer patients all the time.”
- Messer self-reported that she had issued prescriptions for drugs that were beyond her scope of practice.
- When Patient A examined her billing records, she found that she had been charged for services that had not been rendered.
- Messer doctored Patient B’s records in an attempt to protect herself from possible repercussions from the patient’s death one month after starting treatment with Messer.
In 2016, a malpractice suit was filed against Messer and her clinic by the woman identified as Patient A and the wife of the man identified as Patient B.
STATE OF WASHINGTON .
DEPARTMENT OF HEALTH
BOARD OF NATUROPATHY
|In the Matter of
LUCINDA Y. MESSER
FINDINGS OF FACT,
This matter comes before the Board of Naturopathy (Board) for final order. The Board members deciding the case were: Chad Aschtgen, ND; Dean Neary, ND; and Michael Whitney, ND.
1. FINDINGS OF FACT
1.1 On September 10, 1996, the State of Washington issued Respondent a credential to practice as a naturopathic physician. Respondent’s credential is currently active.
1.2 The Department submitted the Declaration of Blake Maresh, Executive Director, with attached exhibits.
1.3 In or about April 2012, Patient A was diagnosed with Stage 3.5 rectal cancer by a medical doctor, who referred Patient A to the Swedish Cancer Institute in Seattle, WA. Patient A’s treatment plan involved chemotherapy and radiation and eventual pineal resection surgery. However, after three to four (3-4) weeks of treatment, Patient A decided to stop chemotherapy and radiation due to vomiting, nausea and diarrhea. Patient A’s friend found Respondent on the internet and Patient A presented to Respondent on or about July 6, 2012.
1.4 Respondent treated Patient A at the “Goddess Sanctuary,” a residential clinic and spa where cancer patients are treated by utilizing the Gerson Therapy protocol, and other alternative methods, including laetrile. The Gerson protocol for Patient A included drinking juices thirteen (13) times per day, strict vegetarian organic diet, coffee and or castor oil enemas, and taking vitamins sold by Respondent.
1.5 In or about October 2012, Respondent entered into an arrangement with Patient A where Patient A moved in with Respondent at the Goddess Sanctuary. In exchange for light housekeeping, directing patients to the sauna and Jacuzzi, serving soup to patients, and presenting the Gerson Therapy workshops to patients, Patient A would receive free room and board, free naturopathic care, free food and juices, and a discount on supplements from Respondent
1.6 During Patient A’s time at the Goddess Sanctuary, she had become acquainted with Patient B, who was diagnosed with Stage 4 colon cancer. Patient Band his wife lived in the Goddess Sanctuary during October 2012. Respondent treated Patient B through a regimen of juices (Gerson protocol) and laetrile. Patient B also received treatment via a “Rife machine”, an electrical device that purportedly treats cancer through transmission of radio and/or electromagnetic waves onto the patient’s cancer cells. Patient B died on November 8, 2012 after approximately one (1) month at the Goddess Sanctuary. Patients A and B were not related by blood or marriage to Respondent and both resided together at the Goddess Sanctuary for a period of approximately one (1) month under Respondent’s oversight and care.
1.7 In or about February, 2013, Patient A obtained her patient records from Respondent’s clinic. Patient A noted that there were fraudulent billings for her care because some of the dates of treatment were dates when she had been in Oregon visiting family members. On some of the other dates of treatment, Patient A disclosed that she had merely stopped by the clinic to buy supplements, and had never actually seen Respondent for treatment.
1.8 Review of Patients A and B’s records demonstrated that Respondent failed to meet the standard of care resulting in patient harm or unreasonable risk of harm because:
- Respondent offered, facilitated and rendered diagnostic and therapeutic interventions with unproven and/or disproven claimed beneficial effects. Patient A and B’s records did not contain adequate informed consent regarding these unproven treatment protocols.
- Respondent failed to provide truthful, informative, unbiased, transparent and actual informed consent regarding risks, benefits, evidence for and against proposed treatments/diagnostic methodologies. This included the risks and benefits of declining definitive treatment, and incorporating the consent forms in the patient’s medical record. Patients A and B were especially vulnerable considering their cancer diagnosis. Extra effort should have been made to ensure the clarity and completeness of the documented and signed informed consent so that a verifiably informed choice could be demonstrated by either Patient A or Patient B.
- Respondent failed to treat malignancy while consulting with or co-managing with another authorized provider under RCW 18.57 or RCW 18.71. Respondent failed to document adequate consultation and co-management with a medical doctor or doctor of osteopathy in Patient A and B’s charting. Respondent should have documented that non-conventional care was delivered in concert with ongoing . consultation or co-management with a medical doctor or doctor of osteopathy. However, this was not done. As a result, Patients A and B did not receive complete and adequate treatment for their respective conditions. Respondent did not inform Patient A and B that she was required to work in conjunction with another authorized provider under RCW 18.57 or RCW 18.71.
- Respondent represented false or misleading advertising with respect to her ability or methodology to treat cancer. These representations were made to both Patients A and B, whom as a result, were inappropriately misled and isolated during their cancer treatment residency at the Goddess Sanctuary.
- Laetrile or Amygdalin is not approved by the U .S Food and Drug Administration (FDA) for treatment of cancer or any other medical condition. The active ingredient in Laetrile is cyanide and has a toxic effect which purportedly kills cancer cells. Washington State law insulates a physician from disciplinary action when a patient requests laetrile after “having been given sufficient information in writing toÂ· make an informed decision.” Patient B’s charting does not document the well-known risks of laetrile and does not contain adequate informed consent regarding laetrile treatment for Patient B’s cancer. Therefore, Respondent failed to meet the standard of care regarding administration of laetrile and may not invoke immunity under RCW 70.54.150.
1.9 Patient B’s signature on the informed consent form was forged and Respondent misrepresented facts contained in Patient B’s record to help insulate herself from any repercussions arising from Patient B’s death. Respondent’s misrepresentations included the notation that she had consulted with Patient B’s oncologist. The “Gerson Therapy Medical History Questionnaire” correctly listed the age of their children and was filled out in unrecognizable handwriting.
1.10 On or about July 8, 2013, Respondent conducted a telephone consultation with an undercover investigator posing as a patient with Stage 3 pancreatic cancer. The investigator indicated that she did not want to go through painful radiation and chemotherapy. In response, Respondent explained that the “Whipple operation” was not effective. Respondent also indicated that she administered laetrile to cancer patients “all the time.” Respondent also stated:
“You know, we can’t say we treat cancer, but that’s silly because we do. I have extensive training in integrative oncology and treat cancer patients all the time.”
1.11 On or about November 18, 2013, Respondent self-reported at the direction of the DEA misuse of her DEA license for the past nine years and the fact that she rendered prescriptions beyond the scope of authorized practice for a naturopathic physician. Among the unauthorized prescriptions, the DEA agent involved with Respondent’s case disclosed that Respondent had issued eight (8) prescriptions beyond the scope of authorized practice, which included Alprazolam, and Phentermine Compound. Respondent had also issued prescriptions with her expired, out of state (Arizona) DEA#, and had instructed her staff to use the Arizona stamp when she was not present to manually sign prescriptions. Respondent had also prescribed a thirty (30) day quantity and a ninety (90) day quantity of Alprazolam to Patient C in a matter of nine (9) days. When questioned about this excessive prescription Respondent stated that Patient C’s boyfriend stole the first set of Alprazolam, and admitted that this information was not documented in Patient C’s charting. Respondent agreed to voluntarily surrender (for cause) her DEA registration in lieu of revocation proceedings. In addition, Respondent prescribed laetrile beyond the scope of her license and may not utilize an affirmative defense under RCW 70.54.150 because she did not work in conjunction with a medical doctor or osteopathic physician, and did not provide sufficient information in writing for Patient B to make an informed decision.
1.12 On December 9, 2015, the Board served Respondent with a copy of the following documents at Respondent’s last known address:
- Statement of Charges;
- Notice of Your Legal Rights;
- Answer to Statement of Charges and Request for Settlement and Hearing (Answer).
1.13 On December 29, 2015, Respondent filed an Answer to Statement of Charges with the Adjudicative Clerk Office. Respondent affirmatively waived her opportunity for a hearing on this matter. In addition to the Answer to Statement of Charges, Respondent submitted a written statement and/or materials she wanted the disciplining authority to consider in disposition of the case. The disciplining authority considered the written statement and/or materials submitted by Respondent in determining the sanctions set forth in Section 4.
2. CONCLUSIONS OF LAW
2.1 The Board has jurisdiction over Respondent and over the subject matter of this case. RCW 18.130.040.
2.2 Except as otherwise required by law, the Department bears the burden of proving the allegations set forth in the Statement of Charges by a preponderance of the evidence. WAC 246-11-520. The Washington Supreme Court has held the standard of proof in disciplinary proceedings against physicians is proof by clear and convincing evidence. Nguyen v. Department of Health, 144 Wn.2d 516, 534 (2001), cert. denied, 535 U.S. 904 (2002), In 2006, the Washington Supreme Court extended the Nguyen holding to all professional disciplinary proceedings. Ongom v. Department of Health, 159 Wn.2d 132 (2006), cert. denied 550 U.S. 905 (2007): However, in 2011, the Washington Supreme Court overruled Ongom, but declined to overrule Nguyen. Hardee v. Dept. of Social and Health Services, 172 Wn. 2d 1 (2011).
2.3 Given the legal uncertainty regarding the standard of proof for disciplinary proceedings, the evidence in this matter will be evaluated under both the clear and convincing standard, as well as the preponderance of the evidence standard.
2.4 Respondent filed a response to the Statement of Charges within the time allowed by WAC 246-11-270(1)(a)(i) or WAC 246-11-270(3) affirmatively waiving her right to a hearing. In addition to the Answer to Statement of Charges, Respondent submitted a written statement and/or materials she wanted the disciplining authority to consider in disposition of the case. The Board may issue a dispositive order based on the evidence presented to it. RCW 18.130.090(1) and RCW34.05.440.
2. 5 Based upon the Findings of Fact, Respondent has committed unprofessional conduct pursuant to RCW 18.130.180(1), (4), (7), (12), (13), and (24), RCW 70.128.050(1), RCW 69.50.308(9), and WAC 246-836-210.
2.6 Sufficient grounds exist to take disciplinary action against Respondent’s credential. RCW 18.130.160 and RCW 18.130.180.
3. COMPLIANCE WITH SANCTION RULES
3.1 The disciplining authority applies WAC 246-16-800, et seq., to determine appropriate sanctions. WAC 246-16-800(2)(c) requires the disciplining authority to impose terms based on a specific sanction schedule unless “the schedule does not adequately. address the facts in a case.”
3.2 Respondent’s alleged conduct falls in Tier B of the “Practice Below Standard of Care” schedule, WAC 246-16-810. The sanction range associated with that tier does adequately address the alleged facts of this case.
3.3 The disciplining authority considered the following aggravating factors:
- Gravity of the misconduct.
- Vulnerability of the Patients.
- Motivation is criminal, dishonest or for personal gain.
The BOARD ORDERS:
4.1 Respondent’s credential to practice as a naturopathic physician in the state of Washington is SUSPENDED. Respondent may not petition for reinstatement of credential for a period of at least five (5) years from the effective date of this Order.
4.2 If and when Respondent petitions for reinstatement, the disciplining authority may place terms and conditions on Respondent’s credential as deems necessary to protect the health and safety of the public. Such conditions may include, but not be limited to: a period of probation, direct supervision, no community-based employment, employer notification, quarterly supervisor reports, and continuing education. The disciplinary authority shall exercise sole decision making and discretion regarding their approval of an petition for reinstatement and the terms of reinstatement, if any.
4.3 Respondent shall obey all federal, state and local laws and all administrative rules governing the practice of the profession in Washington.
4.4 The Board or its designee may verify Respondent’s compliance with the terms and conditions of this Order, if applicable.
4.5 Any documents required by this Order shall be sent to Department of Health Compliance at PO Box 47873. Olympia, WA 98504-7873.
4.6 Respondent shall assume all costs of complying with this Order.
4.7 Respondent shall inform the Department of Health Office of Customer Service, in writing, of changes in Respondent’s residential and/or business address within thirty (30) days of the change. The mailing address for the Office of Customer Service is PO Box 47865, Olympia, WA 98504-7865.
4.8 Â· The effective date of this Order is that date the Adjudicative Clerk Office places the signed order into the U.S. mail. Respondent shall not submit any fees or compliance documents until after the effective date of this Order.
5. NOTICE TO PARTIES
This Order is subject to the reporting requirements of RCW 18.130.110, Section 1128E of the Social Security Act, 45 CFR Part 60, and any other applicable interstate/national reporting requirements. If adverse action is taken, it must be reported to the National Practitioner Data Bank.
Any Party may file a petition for reconsideration. RCW 34.05.461 (3); RCW 34.05.470. The petition must be filed within ten (10) days of service of this Order with:
Adjudicative Clerk Office
Adjudicative Service Unit
PO Box 47879
Olympia, WA 98504-7879
and a copy must be sent to:
State of Washington
Department of Health
Office of Legal Services
PO Box 47873
Olympia, WA 98504-7873
The petition must state the specific grounds upon which reconsideration is requested and the relief requested. The petition for reconsideration is considered denied twenty (20) days after the petition is filed if the Adjudicative Clerk Office has not responded to the petition or served written notice of the date by which action will be taken on the petition.
A petition for judicial review must be filed and served within thirty (30) days after service of this Order. RCW 34.05.542. The procedures are identified in chapter 34.05 RCW, Part V, Judicial Review and Civil Enforcement. A petition for reconsideration is not required before seeking judicial review. If a petition for reconsideration is filed, however, the thirty (30) day period will begin to run upon the resolution of that petition. RCW 34.05.470(3).
The Order remains in effect even if a petition for reconsideration or petition for Â· review is filed. ”Filing” means actual receipt of the document by the Adjudicative Clerk Office. RCW 34.05.010(6). This Order was “served” upon you on the day it was deposited in the United States mail. RCW 34.05.010(19).
STATE OF WASHINGTON
DEPARTMENT OF HEALTH
BOARD OF NATUROPATHY
ALEXANDER H. LEE. WSBA #35824
DEPARTMENT OF HEALTH STAFF ATORNEY
Signed January 22, 2016
Signed January 29, 2016