COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Board of Registration in Medicine,

Petitioner

v. Docket no. RM-08-269

Madhusudan P. Thakur, M.D.,

Respondent

Appearance for Petitioner:

Tracy Morong, Esq.

Board of Registration in Medicine
200 Harvard Mill Square, Suite 350
Wakefield, MA 01880

Appearance for Respondent:

David W. Rosenberg, Esq.

Rosenberg, Schapiro, Englander,
Chicoine & Leggett, P.C.
44 School Street, Suite 800
Boston, MA 02108

Administrative Magistrate:

Sarah H. Luick, Esq.


SUMMARY OF RECOMMENDED DECISION

The Statement of Allegations was not proven. Respondent, when he saw two women in connection with his work as an outside consultant physician addressing their social security disability claims as an internist, did not improperly touch or improperly examine or fondle or squeeze their breasts. He did not make unprofessional comments to them. I found Respondent conducted a proper breast examination as an internist on one of the females and did no breast exam on the other female as she had breast implants. I found no improper touching by Respondent of either woman's breasts. I found no unprofessional language was used at either examination. I recommend that no discipline be imposed based on these two claims.


RECOMMENDED DECISION

On April 16, 2008, Petitioner, Board of Registration in Medicine, issued a Statement of Allegations ordering Respondent, Madhusudan P. Thakur, M.D., to show cause why he should not be disciplined based on his conduct with Patient A (Pt. A) and Patient B (Pt. B). He gave examinations to both of them in his capacity as an outside medical consultant/internist for the Disabilities Determinations Services (DDS) of the Massachusetts Rehabilitation Commission (MRC). As to both patients, the Statement of Allegations claims Respondent improperly touched their breasts during their DDS examinations for no legitimate medical purpose, and made unprofessional, rude comments to them during their examinations. The Statement of Allegations claims Respondent was aware that DDS-MRC did not want its outside consultant physicians to do breast exams and that he did them anyway. Petitioner concludes Respondent engaged in:
• Misconduct in the practice of medicine in violation of 243 CMR 1.03(5)(a)18; and

• Conduct that undermines the integrity of the medical profession, in violation of the standards set forth in Levy v. Board of Registration in Medicine, 378 Mass. 519 (1979) and Raymond v. Board of Registration in Medicine, 387 Mass. 708 (1982).

(Ex. A)

Respondent filed an Answer to the Statement of Allegations denying that he ever engaged in misconduct in his examinations of Pt. A and Pt. B, that he ever improperly touched the breasts of Pt. A and Pt. B, or that he used unprofessional language in talking to them during their examinations. (Ex. B)

The matter was referred to the Division of Administrative Law Appeals (DALA)
for hearing. (Ex. A) A pre-hearing conference was held October 14, 2008 at the offices of DALA, 98 North Washington Street, 4th Floor, Boston, MA 02114. Thereafter, the parties engaged in discovery. The hearing commenced March 24, 2009. Further hearing was held on March 25, April 6 and April 9, 2009. The hearing was held at the offices of DALA. The hearing was transcribed, using the pseudonyms of Pt. A and Pt. B. The exhibits entered into evidence were redacted of any identifying information about Pt. A or Pt. B.

On March 25, 2009, after the close of Petitioner's case, Respondent presented
a Motion for Summary Decision in regard to both Pt. A and Pt. B. The Motion was denied on the record, and Respondent proceeded to present his witnesses and other evidence. (Ex. C)

Various documents are in evidence. (Exs. 1 - 34.) Witnesses were sequestered. Petitioner presented the testimony of: Harriet Andler, Senior Disability Examiner for DDS-MRC; Margaret O'Connor, recently retired former Director of Medical Management and Professional Relations for DDS-MRC; Kasper Goshgarian, Deputy Commissioner at MRC; Richard Goulding, M.D., Chief Medical Consultant at MRC; Pt. A; and, Pt. B. Respondent testified on his own behalf and presented the testimony of: Teresa Thakur, R.N., Dr. Thakur's office nurse and wife; and, Candace Ayoung and Geraldine Hitchcock, both long-time private patients of Dr. Thakur. Briefs were filed by June 22, 2009.


FINDINGS OF FACT

Based on the documentary and testimonial evidence presented, I make the
following findings of fact:

Dr. Thakur's Background

1. Madhusudan P. Thakur, M.D., d.o.b. 11/1/28, lived in India until 1958. He attended high school, science college, and then Patna Medical College from which he graduated in 1956. (Exs. A, B, 20 & 34. Testimony.)

2. Dr. Thakur moved to the United Kingdom and received a degree in
tropical medicine and hygiene from the University of London in 1959. During the summer and fall of 1959, he was a full-time post-graduate student in the internal medicine course at the Royal Infirmary in Edinburgh, Scotland and did ward rounds at Hammersmith Hospital. (Exs. A, B, 20 & 34. Testimony.)

3. In 1960, Dr. Thakur became a member of the Royal College of Physicians of Edinburgh and became certified in general internal medicine. (Exs. A, B, 20 & 34.

Testimony

4. From January through June 1960, Dr. Thakur was a clinical assistant to a professor at the Royal Infirmary as part of his post-graduate studies. Between 1961 and 1963, Dr. Thakur worked at Harefield Hospital in England, a hospital specializing in chest diseases. He worked in a cardiothoracic unit. During this time period, he also worked in the infectious disease unit at St. Ann's General Hospital in England, and was a house physician in general internal medicine at the Prince of Wales General Hospital in England. He examined male and female patients during this time period. (Exs. A, B, 20
& 34. Testimony.)

5. Between 1963 and 1965, Dr. Thakur worked as a senior house physician at London's Chingford Hospital. The hospital had approximately fifty acute care beds and two consultant physicians. He was assigned to new admissions and supervised junior house physicians. He also worked in the out-patient clinic two times a week. He was responsible for dictating discharge summaries for all the hospital patients. During this time period he had further training at Middlesex Hospital Medical School, attending ward rounds and working in the out-patient clinic with a physician from the Department of Cardiology. He also attended professional rounds at London Hospital. (Exs. A, B, 20 & 34. Testimony.)

6. Between 1965 and 1967, Dr. Thakur served as the medical registrar at a medical unit at Chase Farm Hospital in England. The unit had about forty-eight acute care beds. There were two physicians, a senior house physician, and medical students. Dr. Thakur supervised the care of the in-patients, and performed rounds with house staff and students. He was responsible for instructing students and training staff. He examined new patients in the out-patient clinic. (Exs. A, B, 20 & 34. Testimony.)

7. Between 1967 and 1970, Dr. Thakur worked at the Royal Surry County Hospital and at St. Lukes Hospital, both in Surrey England. He was a medical registrar working with acute care patients, consultant doctors, junior house doctors, and medical students. He was responsible for supervising the care of the newly admitted patients, teaching the students, and training the staff. He assisted at an out-patient clinic twice a week and saw new patients referred to him by general practitioners. He was a medical registrar for an intensive care unit. He cared for patients with acute myocardial
infarctions and did cardiac rounds once a month with the chief thoracic surgeon. He performed consultations in orthopedics, obstetrics and gynecology, ENT (ear,
nose and throat), and eye health. He was in charge of the weekly clinic meetings and supervised at an acute poisoning center. (Exs. A, B, 20 & 34. Testimony.)

8. Dr. Thakur came to the United States in 1970 to work as a senior resident at the Lemmuel Shattuck Hospital and at the Faulkner Hospital. He became licensed to practice medicine in Massachusetts in 1971 under certification # 33584. In 1971, he received a fellowship in cardiology at University Hospital/Boston University Medical Center. He had various trainings, and worked in the coronary care unit and in the consultant services. He received a fellowship in cardiology at Boston City Hospital in 1972, working on a research project involving acute myocardial infarction patients. (Exs. A, B, 20 & 34. Testimony.)

9. Once he finished his fellowship training in cardiology, Dr. Thakur was appointed an active staff physician at University Hospital in July 1973. He also gained a Boston University School of Medicine faculty appointment. During 1973-1974, he participated part-time in the Framingham Heart Study program. (Exs. A, B, 20 & 34. Testimony.)

10. In 1973, Dr. Thakur began a private practice as a solo practitioner at the Doctors' Office Building at the Boston Medical Center, affiliated with University Hospital and Boston University Medical School. He has continued his private practice into the present. Dr. Thakur sees private patients, hospital patients, and does consultant comprehensive evaluations. He has been a Fellow of the American College of Cardiology since 1988. Among his recognitions, he has been honored by the Boston University Medical Center's Board of Trustees for his years of service. (Exs. A, B, 20 & 34. Testimony.)

11. Dr. Thakur's medical specialties are in cardiology and internal medicine. He is affiliated with St. Elizabeth's Medical Center, Leonard Morse Hospital, Metrowest Medical Center, and Boston Medical Center. He has performed pre-surgery examinations on cardiology patients before they undergo non-cardiac surgeries. He has received referrals to perform full cardiovascular evaluations. (Exs. A, B, 20 & 34. Testimony.)

12. Dr. Thakur has taught Boston University School of Medicine students in their clinical medicine course from the early 1980's. He teaches them how to recognize significant signs of a condition in a patient during clinical examinations of the cardiovascular, pulmonary, neurology, and gastroenterology systems. This is taught at a patient's bedside. He also teaches them the importance of providing a thorough examination and about the need to be respectful to the patient being examined. (Exs. A, B, 20 & 34. Testimony.)

13. On an annual basis, Dr. Thakur attends continuing education sessions such as those at meetings of the College of Cardiology. He has attended the Tufts University School of Medicine's annual echocardiography symposium, and the American Society of Echocardiography's annual scientific meetings. He attends the weekly grand rounds at Boston Medical Center. He reviews various medical journal articles pertinent to his practice areas on an on-going basis. (Exs. A, B, 20 & 34. Testimony.)

14. From 1985, Dr. Thakur has done evaluations on the nature and severity of cardiac problems while serving on M.G.L. c. 32, § 7 and §6 regional medical panels in connection with claims filed by state, county, city or town employees seeking disability retirements. This work includes producing a thorough report on each evaluation. He performs these evaluations either separately or as part of a three member panel of physicians. (Exs. A, B, 20 & 34. Testimony.)

15. From 1979, Dr. Thakur has performed over 7,500 consultation examinations as an internist on DDS-MRC social security disability claimants. He has performed these examinations in his private office. (Exs. A, B, 20 & 34. Testimony.)

16. Dr. Thakur has never been disciplined in his practice of medicine by the Board of Registration in Medicine or by any of the medical facilities where he has worked. He has never been disciplined in connection with his work on medical panel evaluations or in doing DDS-MRC examinations. He has no history of being named in malpractice lawsuits. (Exs. A, B, 20 & 34. Testimony.)

Dr. Thakur's Examination Protocol

17. Based on his years of training and experience in conducting physical examinations while in India, the United Kingdom, and in Massachusetts, Dr. Thakur developed his own internist examination protocol. The basic form was created in and around 1966. He has been consistently using this protocol during all the time he has conducted his private practice. He has consistently used this same protocol during all the time he has done consultation examinations for DDS-MRC. He has used this protocol for teaching clinical examination skills to medical students. (Exs. A, B, 20, 21, 23, 25, 31 & 34. Testimony.)

18. Dr. Thakur developed a set of sheets to use during a physical examination that list specific body system categories. He uses the sheets as he follows an orderly procedure while examining each body system. He enters his findings in note form under each category on the sheets once he finishes the full examination of the patient. He uses the notes on these sheets to compile a written report about the examination. (Exs. A, B, 20, 21, 23, 31 & 34. Testimony.)

19. Dr. Thakur touches the patient during his routine physical examination as he carries out his protocol, focusing on one specific body system at a time in a set order. The examination involves inspection, palpation, percussion, and auscultation as relevant to the particular body system under examination. Dr. Thakur finds that palpation is an "essential part" of the examination. Included is "palpation of lymph nodes, thyroid gland, precordium, breasts, liver and spleen, etc." He also observes movements of the spine when the patient performs "passive movements while standing erect," including forward flexion by bending forward to try to reach the toes, lateral flexion by moving sideways, and extension by making a backward movement. As these tests are done, the patient is told to stop if there is any pain or strain experienced. The spine is further tested when the patient is on the examination table and does straight leg raising. A neurological examination is done by performing various reflex and other tests such as knee jerks, pinpricks and vibration testing. Dr. Thakur's physical examination protocol does not routinely include an internal examination, and never includes one for his consultant examinations including DDS-MRC evaluations. The history taking portion of the examination typically takes about fifteen minutes. The physical examination protocol typically takes about ten to twelve minutes. (Exs. 25, 28, 29, 31 & 34. Testimony.)

20. Dr. Thakur's routine physical examination for females includes a breast exam. This includes inspection of the nipples for irregularities like indentations and discharges. He then palpates the "four quadrants (upper, lower, medial and lateral)" of the breast, and he examines the "central part" of the breast using the palm of his hand. Palpation of the breast does not involve squeezing or grabbing or fondling of the breast. He uses two or three extended fingers in his right hand with the open part of the fingers touching the breast. If the breasts are large, he may use his other hand to guide his fingers in doing the palpating. Some degree of pressure is put on the breast tissue during the palpating in order to try to detect any lumps. Only one breast is examined at a time. During such routine physical examinations, if the patient does not want a breast exam, then Dr. Thakur does not do one. Dr. Thakur is either told by the patient she does not want a breast exam, or he raises the question if the patient appears to be agitated as he announces he is about to do the breast exam. The back of his hand may also be used to move aside the left breast when he does the heart exam or the respiratory system exam. (Ex. 25. Testimony.)

21. Dr. Thakur rents his private office. He has been in this office from the start of his private practice. There is a deadbolt lock and a door lock on the main door to his office off the corridor. This main door is not locked during office hours unless no one will be in the office for a significant length of time. When patients are present the office is never locked. (Ex. 29. Testimony.)

22. From 1983, Dr. Thakur's wife, Teresa Thakur, R.N., has worked with him in his office. She is from the United Kingdom and gained her nursing degree there. From 1968, she has had extensive experience working as a staff nurse and head nurse in hospital wards, and has been present for many clinical examinations. She came to Massachusetts in 1971 and worked at the Lemmuel Shattuck Hospital. She took and passed the Massachusetts Nursing Board examination, and gained her license as a Registered Nurse in 1971. She has never been disciplined by the Board of Registration in Nursing, and has not been charged with malpractice or been found responsible for malpractice in any lawsuit. She married Dr. Thakur in 1973. They have two children born in 1977 and 1981. (Testimony)

23. Nurse Thakur has always functioned as Dr. Thakur's chaperone for all new female private patients and consultation patients. She is visibly present to the patient and stays in the examination room at all times during the physical examination. She also greets the patients when they enter the office. She brings them first, fully clothed, into a small consultation room off the small waiting area to meet Dr. Thakur. He is behind his desk and the patient sits in front of the desk. He takes their personal and medical histories. Nurse Thakur is not present, and this portion of the patient's evaluation is typically done with no other persons present. Dr. Thakur takes notes on what he learns using his examination protocol sheets. Next, Nurse Thakur accompanies the person into the examination room. She provides the person with a paper johnny or gown, and explains that the person, including the female, should disrobe other than to leave on their underwear pants or panties, and to put on the gown with the opening in the back. She points out the area where the person can undress which has a curtain to close around the area for privacy. This area has a chair, a place to hang clothes, and a mirror. Once the person has put on the paper gown, Nurse Thakur and Dr. Thakur enter for the start of the physical examination. There is an examination table with Nurse Thakur on one side and Dr. Thakur on the other side, the side of the patient's heart. There is a telephone on the wall in the examination room. There is a separate room or area where certain specialized tests such as pulmonary tests are administered by Nurse Thakur. (Testimony)

24. The paper gown or johnny has a waterproof coating on it. There are
strings to tie to close the open area at the waist. There is no perforation in the paper gown for tearing it down the front in the middle, but the way the gown is stored and then opened, there is a fold down the center front of the gown when worn with the opening in the back. (Examination of the paper gown which is Ex. 15. Testimony.)

25. During the physical examination, Dr. Thakur focuses on his protocol procedures and tends not to engage in extensive conversation with the person being examined. He does not engage in personal conversations with his wife, and addresses her as a nurse professional to help him carry out the examination. Dr. Thakur's practice is to briefly state to the patient, which bodily system he is about to examine. (Testimony)

26. If during a patient's examination, the telephone on the wall in the examination room should ring, Nurse Thakur answers it if it is from the hospital. Dr. Thakur has hospital patients and must be available to take such calls from the resident or emergency room physician. If this happens, he suspends the examination and resumes it only after he is off the telephone. (Testimony)

27. While in the examination room with a patient, Dr. Thakur only speaks in English to his wife, Nurse Thakur. They do not carry on personal conversations in any foreign language in front of the patient while conducting the examination. Nurse Thakur does not speak Dr. Thakur's native language. If they discuss some matter in the examination room with the patient present, they do not argue, or laugh, or speak in loud tones, or have other than professional verbal exchanges. Dr. Thakur talks to the patient in a polite and professional manner when examining the patient. He has a slight accent, and is soft-spoken and cordial with his patients even if he does not prolong conversations
with them during the clinical examination. Dr. Thakur strives to present a calm
demeanor in order to reassure the patient and to carry out a full and useful examination with the cooperation of the patient. (Testimony)

28. When the examination is over, Dr. Thakur goes to the consultation room to write down his findings from the examination onto his protocol sheets as they will become the basis for a report of the examination. If a body system examination, including a breast exam, did not reveal any abnormalities or concerns, Dr. Thakur might not comment on the result of that body system exam in his written report. (Testimony)

29. Neither Dr. Thakur nor Nurse Thakur remain in the examination room while the patient gets dressed. Once the patient has dressed, unless there is a test to be administered such as a pulmonology test by Nurse Thakur, the patient leaves the office. (Testimony)

30. On any given day when working in his office, Dr. Thakur may have a full schedule of patients to examine, and he aims to do each patient's total examination in thirty minutes. (Testimony)

DDS-MRC Outside Physician Consultative Examinations

31. When a claim is made for social security supplemental income disability benefits, DDS-MRC assesses the person's medical records for objective information so that more than the person's subjective claims are involved in the review process. A vocational profile on the claimant is developed, and that is assessed against a medical functional capacity evaluation toward determining the merits of the claim. The end result of this process for DDS-MRC, is not so much to determine a diagnosis as it is to determine the claimant's ability to work. This process can involve an initial claim for benefits or an evaluation of whether the person's condition has improved so that the person should not continue to receive social security supplemental income benefits. Information is gathered from the claimant's treatment sources, including from the primary care physician and from any specialist caregivers. The gathered medical treatment data is put into a case development sheet which also contains the history of contacts about the claim, including all communications with the claimant. (Exs. 1 & 2. Testimony.)

32. The gathered medical information on the claim is reviewed by in-house physicians at DDS-MRC. They may require that the claimant undergo tests and/or be examined by a DDS-MRC outside consultant physician. The in-house physicians do not do these examinations. DDS-MRC maintains a list of physicians who are approved to provide these examinations. This is the list Dr. Thakur has been on from 1979. DDS-MRC recruits outside consultant physicians, checks on the physicians' credentials, does background checks on the physicians, and orients them as to what DDS-MRC is looking for when examining claimants. Because Dr. Thakur has done this work for so long, he has never been required to attend on-going trainings with DDS-MRC in order to continue to do this work as have physicians who have more recently been on this list. Particularly at the start when a physician begins to do these outside consultative evaluations, the DDS-MRC chief physician, an internist, reviews the narrative reports of these physicians. He may also review the report of a physician who has had a complaint logged against him or her by a claimant. (Testimony)

33. Once the outside consultant physician has sent in a narrative of the DDS-MRC evaluation of the claimant, it is logged in and an invoice verification is done for paying the physician. This is a federally funded program. The physician's narrative of the evaluation is reviewed as part of the claimant's case, by a team at DDS-MRC which includes the assigned DDS-MRC disability examiner and in-house physician. The determinations made on the claim can be subject to further reviews, including by the chief medical in-house physician to determine if reliance on the assessment made by an outside consultant physician should be relied upon to decide the claim. (Testimony)

34. To help the outside consultant physician learn what is being sought from the evaluation of the claimant, a summary sheet about the claimant is sent to the physician. It contains the following boiler-plate instruction:
Based on the findings in your report, please also provide a statement as to
the patient's ability, despite his/her impairment(s), to perform tasks such as sitting, standing, walking, lifting, carrying out and remembering instructions,
and responding appropriately to supervision, co-workers, and work pressures
in a work setting. (Ex. 2)

35. The DDS-MRC summary sheet the outside consultant physician receives includes a description of the claimant's pertinent medical issues contained in the section called "impairment of record." The summary sheet lists the tests and examinations being sought. An examination by an internist could be listed along with diagnostic tests such as x-rays or pulmonary tests. The summary sheet also contains a section on any special instructions for the outside consultant physician to address such as checking for range of motion and doing a full neurological examination. (Ex. 2. Testimony.)

DDS-MRC Appraisal Forms and Complaints against the Outside Consultant Physicians - Dr. Thakur's record

36. The claimant is provided with an appraisal form to comment on the

outside consultant physician's examination, if the claimant wants to. The appraisal form asks whether the doctor and staff were "courteous" with a yes or no box to check. The form also contains a short section for adding comments. These appraisal forms are reviewed by DDS-MRC. Each year DDS-MRC, as required by the federal government, produces a report on the types of complaints made against the outside consultant physicians, and includes the disposition of them. In the report, the names of the complainant and of the specific physician are not included. If a complaint is viewed as requiring it, the complaint or appraisal form is reviewed by the DDS-MRC chief medical physician. Typically, there are many more appraisal forms sent back that raise concerns about the quality of the examination than there are forms returned that praise the outside consultant physician. (Exs. 5 &6. Testimony.)

37. Over the years, Dr. Thakur has received many positive appraisal forms
and only a few raising issues about his examination and his demeanor and/or treatment of claimants. (Exs. 5 & 6. Testimony.)

38. Dr. Thakur had never been informed by anyone at DDS-MRC, verbally or in writing, that he should not do breast examinations on female DDS-MRC claimants. DDS-MRC has not found a letter sent to the outside consultant physicians with this prohibition even though some officials at DDS-MRC believe such a letter had been sent at some time in or around 2002. Dr. Thakur never learned of any such limitation on his physical examination as a DDS-MRC outside consultant physician from any other source. He never asked DDS-MRC whether or not he should include a breast examination in connection with his DDS-MRC examinations. As an internist, he had no concerns about including a breast exam for a DDS-MRC claimant, even if a breast exam was not
highlighted to do within the summary sheet he received from DDS-MRC on the
particular female claimant. DDS-MRC did send a letter in March 2002, addressed to the outside consultant physicians, to always have a female chaperone present for the physical examination of a female claimant. Neither Dr. Thakur, nor Nurse Thakur who opens the mail that comes to the office, have a memory of having seen this letter or any letter prohibiting breast examinations. (Ex. 3. Testimony)

39. Dr. Thakur never performed an internal examination on a female DDS-
MRC claimant, and would only perform such an examination if DDS-MRC asked him on the summary sheet on the claimant to perform that kind of examination. He has not received a letter from DDS-MRC instructing him not to do an internal examination. (Testimony)

40. DDS-MRC received a complaint against Dr. Thakur that he had an obese man weighed using a loading dock scale at the hospital near Dr. Thakur's office. This was not what happened as Dr. Thakur had an arrangement with the nutrition department during the time of this examination, about twenty years ago, to permit his patients to use the scale in that office if his office scale would not register a high enough range of weight. (Testimony)

41. In 2002, DDS-MRC received a letter of complaint about an examination Dr. Thakur gave to the daughter of a DDS-MRC employee. The mother was not present during the physical examination. DDS-MRC contacted Dr. Thakur about the complaint and provided him with a copy of the complaint letter. He was instructed to respond in writing to it. The DDS-MRC letter to Dr. Thakur was dated, September 18, 2002, and his response was dated, September 23, 2002. The letter from DDS-MRC informed Dr.
Thakur that until the matter was addressed, he would not be receiving any female DDS-MRC claimants to examine. (Exs. 4, 8 & 9. Testimony.)

42. The mother's August 15, 2002 complaint letter was very detailed about the issues she had with her daughter's examination by Dr. Thakur. She claimed she was initially permitted to be present during the history taking portion of the examination, but that she was later told to leave the room. She wrote that he asked her daughter about her childhood, her daughter could not remember, and the mother reported she began to answer for her. She wrote that he said "shut up," and had the mother leave the room. The mother wrote she wanted to be with her daughter to help her avoid becoming anxious which might trigger an asthma attack. The mother wrote that when she protested
leaving, that Dr. Thakur told her, "this is my office and I make the rules." Once the physical examination was over, the mother wrote that her daughter was upset and wanted to leave right away. The mother wrote that while in the car following the examination, her daughter had trouble breathing and had back pain. The mother wrote that her daughter told her Dr. Thakur took a telephone call while the blood pressure cuff was on her daughter's arm, that her arm became blue and red, that his nurse saw this, and that the nurse released the cuff. At that point, she wrote that Dr. Thakur "slapped" the nurse's hand and said to leave it on. The mother also wrote that her daughter reported that during the breathing test she was given for her asthma that the nurse pushed a black ball on the machine up to a high level producing an inaccurate reading. She wrote that her daughter told her Dr. Thakur "forced her in a backwards lean causing her to get pain and down her leg," instead of letting her try to move on her own. The mother wrote that her daughter told her Dr. Thakur "grabbed her breasts" at some point during the physical examination, making her daughter very upset. The mother commented that Dr. Thakur was a "psycho" for grabbing and squeezing both of her daughter's breasts "quickly." The mother also reported that her daughter saw Dr. Thakur looking "down towards her vaginal area, as he requested that she take everything off." The mother reported that his nurse who was his wife, "was in and out of the [examination] room, leaving them alone at times." The mother further wrote that Dr. Thakur watched her daughter get dressed. (Ex. 9)

43. In reaction to reading the mother's complaint letter, Dr. Thakur responded to DDS-MRC that he denied the allegations, and that "all patients … are treated with honor and dignity." He wrote that his "primary concern is the comfort of the patient during the examination." He explained that the goal of a DDS-MRC examination is "to obtain a detailed and accurate history from the patient and perform a full clinical exam … and submit a narrative report to DDS based on these findings." Dr. Thakur set forth in his response the protocol he follows when providing a DDS-MRC consultant examination, which he stated he "strictly" follows. He explained what he seeks from the patient during the thorough history taking portion. He wrote that if relatives want to be present, that he asks them "not to answer the questions on behalf of the patient." During the physical examination portion, Dr. Thakur explained that his wife, a registered nurse, tells the person to undress to get ready for the physical examination using a private curtained-off area, and to put on a paper gown. He wrote that claimants are not "examined … without their consent." He wrote that examinations of females are "always done in the presence of the R.N. in the exam room," and that relatives are not present as it is a "confidential part of the exam." Dr. Thakur wrote that he had no present recollection of this mother, but that Nurse Thakur recalled the mother and that she "became very angry" when she had to wait outside the examination room. Dr. Thakur addressed how he conducts breast exams. He explained that he does "superficial palpation for … a breast lump." He denied that he forces a patient's body during a back examination when he observes range of motion, and that he instructs the patient to stop the movement once there is pain. He wrote that the mother's allegations were "totally false," and that he would never use language like her complaint sets forth which he found to be rude and vulgar. He found her charges to be demeaning. (Ex. 8. Testimony.)

44. DDS-MRC had this matter reviewed by its legal counsel. This led to no
further action being taken. The mother not being present as an eye-witness to the conduct of Dr. Thakur with her daughter was a significant reason for not pursuing this matter further, as was Dr. Thakur's denial of the allegations. Dr. Thakur was not questioned further by DDS-MRC about his conduct with or his examinations of DDS-MRC claimants. He was not instructed in connection with this matter, not to do breast examinations on female claimants. He resumed examining female DDS-MRC claimants. (Ex. 7. Testimony.)

45. During 2004, Dr. Thakur requested that DDS-MRC increase the number of claimants he examined. This was allowed with no concerns raised about Dr. Thakur's examination of female claimants. No issues were raised about the quality of his narrative reports. He went from doing six to ten of these examinations per week. (Testimony)

Dr. Thakur's DDS-MRC examination of Pt. A

46. Pt. A, d.o.b 12/24/46, made a claim for social security disability benefits
in 2004. The conditions she felt were disabling were anxiety with a panic disorder and irritable bowel syndrome later diagnosed as collagenous colitis. (Testimony)

47. Dr. John D. Mudrock was Pt. A's primary care physician when she sought these disability benefits. He found she had suffered from a low back syndrome in the past, has an anxiety disorder, colitis, COPD (chronic obstructive pulmonary disease), menopausal symptoms, systolic hypertension, and seborrheic keratosis. She had been taking Klonopin, Clomazepan and Entocort. By the time she was seeking disability benefits, she had breast implants in both breasts. She had no health issues with her breasts. She had experienced breast examinations in the past. (Ex. 26. Testimony.)

48. Pt. A's DDS-MRC contact person in connection with these tests and Dr. Thakur's the examination was Harriet Andler, Senior Disability Examiner. Ms. Andler assembled pertinent medical records on Pt. A toward securing needed objective medical support for Pt. A having a disability to prevent working. DDS-MRC set up an examination with Dr. Thakur to do an internist's examination. Pt. A had never been examined by Dr. Thakur before her office visit with him on December 12, 2005. (Exs. 1 & 14. Testimony.)

49. The summary sheet DDS-MRC provided to Dr. Thakur about Pt. A listed her "impairment of record" as back pain and irritable bowel syndrome. The summary sheet listed Dr. Thakur's internist examination as one of the needed tests to be performed along with an x-ray of the lumbosacral spine and a pulmonary test. The summary sheetalso contained an instruction to take Pt. A's height, and weigh her without her shoes on, examine the range of motion in her back, and give a full neurological exam. There was no mention of Pt. A having any particular condition to examine involving her breasts. (Ex. 2)

50. Pt. A understood the purpose of the examination with Dr. Thakur was only
to determine whether or not she had limitations to prevent her from working. (Testimony)

51. The examination process for Pt. A with Dr. Thakur went according to his
protocol. Dr. Thakur met with Pt. A in the consultation room when she was fully clothed. He sat behind his desk. He was alone with Pt. A, and asked her questions about her personal history, her medical history, her smoking history and respiratory symptoms, her anxiety condition including what medications she was taking, and her irritable bowel syndrome. This was followed by Pt. A being taken into the examination room by Nurse Thakur who explained to her that she should get out of her clothes but keep on her panties, and put on the paper johnny or gown with the opening in the back. Nurse Thakur showed her the area where she could change which had the curtain and the mirror and chair. Pt. A did this. Once she was in the paper gown, Dr. Thakur began the physical examination following his routine protocol. Nurse Thakur was in the examination room at all times. Once the physical examination was finished, Pt. A was able to get dressed with privacy in the examination room. Dr. Thakur did not stay behind to watch her get dressed. He left to go to the consultation room to enter the physical examination results onto his worksheets. After that, Pt. A had a pulmonary test administered by Nurse Thakur. Then, Pt. A left the office. (Exs. 21 & 22. Testimony)

52. During the history taking portion of the examination, Pt. A did not state she had breast implants and was not asked that by Dr. Thakur. (Exs. 21 & 22. Testimony)

53. Dr. Thakur began the physical examination by testing Pt. A's range of motion in her back. He did this as he always does, by standing behind her and not touching her, but watching how she bent over and back, and bent side to side. In doing this he was watching her spine. The open part of the johnny or gown was facing him as she did these maneuvers. She had trouble keeping her gown tied. He also had her on the examination table doing straight leg raising. Pt. A did not understand why her back was being tested since she told Dr. Thakur that she was not having any back issues. (Testimony)

54. When Pt. A was lying on the examination table, Dr. Thakur informed her he would be examining her heart and lungs. He began to tear down the paper gown from the top and middle of it to her mid chest area. In doing the heart examination, Dr. Thakur had to push aside her left breast using the back of his full hand. He followed his protocol in doing that and did not grab or squeeze or fondle her breast. To do this and to examine her heart, he had to lean over her. Nurse Thakur was on the other side of the examination table. He palpated the four quadrants of the heart. At some point, and before he undertook an examination of her breasts, Dr. Thakur became aware that Pt. A had breast implants. He confirmed this by asking Pt. A if she had implants. He may have asked her whether they were saline or silicone. He may have seen a scar and made a comment that there was good workmanship on the surgery, but at no time did he indicate to Pt. A that the implants or her breasts were attractive or use similar words. Any comment he would have made would have been in a medical context. He did not conduct a breast exam upon realizing Pt. A had implants. At no time in connection with any discussion with Pt. A that she had implants or in discovering that she had implants, did he fondle or squeeze or grab her breasts. He did not put one hand on each breast at the same time to engage in such touching. The most touching of her breasts would have been palpating according to his protocol until he realized she had implants, and then he would have stopped the palpating. At no time did Pt. A assert to Dr. Thakur that she did not want a breast exam. At no time did Nurse Thakur leave the examination room during Pt. A's physical examination. (Testimony)

55. At no time before, during or after the time Nurse Thakur administered the
pulmonary test did Pt. A raise any concern to Nurse Thakur about Dr. Thakur touching her breasts, or about any questions he may have asked her about having implants. At this time, Pt. A did not know Nurse Thakur was Dr. Thakur's wife. (Testimony)

56. Once the examination was over and Pt. A left the office, she became concerned that Dr. Thakur had not examined her for the irritable bowel syndrome or asked her about the connection of her anxiety to this condition. Because of this concern, Pt. A called Ms. Andler of DDS-MRC the next day to express this concern. She also called Ms. Andler to check on whether reports or records from Dr. Yandell were in her file. She did not call to initiate a complaint about the way Dr. Thakur touched her breasts or to report he make rude comments about her breasts or implants. When, during her account of the examination, Pt. A mentioned Dr. Thakur gave her a breast exam, she was interrupted by Ms. Andler with words to the effect, "You had what?" "He wasn't supposed to give you a breast exam." The alarm in Ms. Andler's voice that Pt. A experienced, made Pt. A feel Dr. Thakur had engaged in wrongful unprofessional conduct with her. Ms. Andler recommended that Pt. A complete an appraisal form about what happened during her examination with Dr. Thakur, and send it directly to Ms. Andler. Pt. A became very upset feeling now that Dr. Thakur had improperly touched her and talked to her about her implants during the examination. She began to cry while talking to Ms. Andler. Ms. Andler, given Pt. A's reaction, felt Dr. Thakur may have improperly touched her breasts and remarked about them improperly. Pt. A expressed her concern that this would jeopardize her gaining disability benefits. (Ex. 1. Testimony)

57. In the case development sheet for Pt. A, Ms. Andler wrote that Pt. A called to report she "doesn't have back pain, just the IBS [irritable bowel syndrome] plus depression and stress now." Ms. Andler also wrote down Pt. A's report that she was given a breast exam although she has implants. Ms. Andler reported Pt. A saying:
[W]hy did they check that, he asked her so many questions about that … Dr. said they looked really nice how much did it cost and where did you have it done … why did they do the breast exam? How does this test for the IBS?

(Ex. 1) Ms. Andler wrote that Pt. A was "crying having trouble speaking," and that she told her "to mail the postcard to me." (Ex. 1. Testimony.)

58. Within Dr. Thakur's notes on the history taking portion of his examination of Pt. A, he listed her smoking history, her breathing and lung symptoms, and he noted a chest x-ray three years ago showing a spot on her right lung. He noted she denied she had any back pain. He listed that she has had irritable bowel syndrome from 1986, and included the symptoms she told him she had with this condition. He noted she had a colonoscopy in the 1990's, that her weight has been steady, her appetite down, and that her primary care physician is Dr. Mudrock. He listed her personal, past, social, and family histories. (Ex. 21) In his narrative report, in terms of her current complaints he
wrote:

HISTORY OF PRESENT COMPLAINTS:

1. Shortness of breath on exertion … denies having any wheezing …
smokes a pack of cigarettes a day … had an x-ray … where she was
found to have a spot on her right chest three years ago … has not been
closely followed.

2. She has irritable bowel syndrome since 1986 … had abdominal pain, crampy pain, followed by diarrhea … denies … any blood in her stools. In 1990, the diarrhea was increased in frequency … now about twenty times a day, watery, no blood, and she does not have so much of abdominal pain now … had a colonoscopy in the 1990's … and her physician is Dr. Mudrock. No abnormality was detected … currently on Klonopin … weight is steady … appetite is poor … has bilateral upper abdominal aches. Sometimes this pain … radiates to the back.

3. She was asked whether or not she has any back problems, which she denied.

(Ex. 22)

59. Dr. Thakur's notes from the physical examination he gave Pt. A and his narrative report of the examination both list her weight and height, her blood pressure of 120/70, that Pt. A "looked pale," had palmar erythema, and had "no lymphadenopathy and no edema of extremities." In his notes and in his narrative, Dr. Thakur reported on the findings from his examination of her heart. Dr. Thakur's protocol sheets under the category of the respiratory system and the heading of palpation, show a line straight down where the last subcategory listed is "Breast." Next to the line is a shorthand notation. Nothing on Dr. Thakur's protocol sheets note Pt. A has breast implants. There is no mention in Dr. Thakur's narrative that he conducted a breast exam on Pt. A. There is no mention in his narrative that he did not do a breast exam because she had breast implants. Both his protocol sheets and his narrative report address the remainder of the physical examination he gave Pt. A with not every finding as to every body system included in the narrative, but with no inconsistencies between the notes on the physical examination and his narrative description of the examination and his findings. (Exs. 21, 22 & 25. Testimony.)

60. In his narrative report on his examination of Pt. A, Dr. Thakur includes what he labels as a "FINAL ASSESSMENT."
1. The patient has been smoking cigarettes. She has shortness of breath on
exertion. She continues to smoke cigarettes, a pack of cigarettes a day.
She manifests no signs of bronchospasm at the present time.

2. She has irritable bowel syndrome, and she has persistent diarrhea, very frequently at the present time. She is pale and she is quite thin.

(Ex. 22)

61. Dr. Thakur was not informed by DDS-MRC of any deficiencies in regard to his examination of Pt. A, or in his narrative report addressing her social security disability benefits claim. (Testimony)

62. Pt. A filed a complaint with the Board of Registration in Medicine on April 26, 2006 checking off on the complaint form she used that Dr. Thakur engaged in professional and sexual misconduct during his DDS-MRC examination of her on December 12, 2005. She checked off that he had never examined her before and never examined her after that one visit. She noted that she filed this complaint after she had received the social security disability benefits she filed for. In the narrative portion of the complaint, she wrote that the gown she put on would not tie in the back, and that he had her do things relating to her back and stood behind her with her gown open as she bent forward to touch her toes. She wrote that she told Dr. Thakur her issue was stress and an irritable bowel syndrome and not a back problem. She reported that while she was lying on the examination table, Dr. Thakur "tore the front of the paper gown so he could reach my breasts" and did a "breast exam," "manipulating" her breasts. She wrote that she has breast implants, and that he said how "good" they look and feel. She wrote that he asked her where and when she had the implants done and how much she paid. She wrote that his nurse was present for the breast exam but was "at the door and Dr. Thakur's back was to her." She wrote that once the examination was over, Dr. Thakur had the nurse leave the room, told her to get dressed, and then stayed in the room about five minutes until he realized she was not getting dressed and left. The narrative section of the complaint form she acknowledges that she did not call DDS-MRC to complain about the breast exam, but that after telling Ms. Andler that Dr. Thakur examined her breasts, that Ms. Andler said, "What, you had a breast exam, you weren't supposed to." Pt. A wrote about her reaction to that statement, explaining:
I thought about it, I realized all the other unnecessary things he had me do.
Ms. Andler felt bad and apologized. I began to cry cause I realized the exam
was obviously "unprofessional" and conduct I consider "sexual misconduct"
by this doctor. I'm an individual who was gang raped and drugged in the past. Now I go to a doctor in good faith and am abused. He's a pervert, sexual deviant. I have had nightmares of what he did while he was standing over me touching my breasts. I can't get his face out of my mind.

(Ex. 16)

Dr. Thakur's DDS-MRC Examination of Pt. B

63. Pt. B is in her mid-thirties with three children aged fifteen, eight and eight months. She has suffered from severe fribromyalgia with fatigue, some spinal problems including herniated discs and spinal stenosis, migraine headaches, TMJ (temporomandibular joint) syndrome, some seizures occurring during sleep, an irregular heart rate, some upper GI (gastrointestinal) problems and reflux, carpal tunnel syndrome, severe panic disorder with OCD (obsessive compulsive disorder), and a hiatal hernia. She takes various medications for these conditions including from April 2006 a low dosage of methadone for pain management with Percocet taken for this reason before that. She takes Prilosec and Ranitidine for acid reflux, and Clomazepan for TMJ and for anxiety. She has taken other medications to help address her pain symptoms including Oxycodone. These medications produce side-effects for Pt. B but she feels there is no impact on her ability to understand questions or on her memory. She last worked outside the home in 2005 for an insurance company, which lasted just one month as she felt too sick to continue working. She had previously stopped working in 1999 after trying different jobs from 1989. (Ex. 18. Testimony)

64. In a social security Form SSA-3368 which Pt. B completed in connection with her disability claim, she wrote how her medical conditions limit her ability to work. She included the following:
I have a very severe form of fibromyalgia … seizures occur at night at
the stage when you start to dose off … get extreme fatigue for days after, disorientation and headache on top of the already very persistent migraines that I get almost daily. My memory has been affected and I have body twitches from the muscle damage. The depression really debilitates me even more when combined with full body pain and weakness.

I am very sick, can't lift light objects without severe flare up of body and back … got a job as a secretary …just doing the filing put me in a severe flare up of swelling, every muscle felt torn, migraines got worse … health problems are progressing rapidly … takes me about 2 hours just to get out of bed in the morning … depression/panic attacks make it impossible to get up and ready for work.

(Ex. 18)

65. In connection with her various medical conditions, Pt. B has been
evaluated and treated by many different physicians, and has had treatments and tests at various hospitals. Pt. B began to have severe pain in and around November 2000. She has had pain in the thighs, hips, chest, arms, head, face, and jaw. The pain medication works but it just "takes the edge off [the pain]." (Ex. 19. Testimony.)

66. An appointment with Dr. Thakur was set up for Pt. B by DDS-MRC for April 20, 2006 on her claim for social security disability benefits. She had never been examined previously by Dr. Thakur. The impairment of record data he was sent ahead of
the evaluation listed the following conditions:
Severe Fibromaylagia/Chronic Fatigue Syndrome, Severe intractable migraine low back sciatica, back having MRI 2/24/03 for herniated disk, nocturnal seizure disorder/present shingles, TMJ (very severe)/irregular heart rate, carpal tunnel/muscle twitching and jerking, GERD [Gastroesophageal Reflux Disease] with hiatal hernia erosive esophagus/etc ….

(Ex. 24) Dr. Thakur was instructed to give an internist examination and to address Pt.

B's height and weight, the fibromyalgia, the chronic fatigue, and the back pain. In

addition, Dr. Thakur was to assess Pt. B's abilities;

to perform tasks such as sitting, standing, walking, lifting, carrying out and remembering instructions, and responding appropriately to supervision, co-workers, and work pressures in a work setting.

(Ex. 24)

67. Pt. B understood the purpose of the examination with Dr. Thakur was only to determine whether or not she had limitations to prevent her from working. (Testimony)

68. The examination process for Pt. B with Dr. Thakur went according to his protocol. Pt. B first met with Dr. Thakur in the consultation room where he was behind his desk. Pt. B was fully clothed, and was alone in the room with him. He asked her questions about her personal and medical history. This was followed by Pt. B being taken into the examination room by Nurse Thakur. She explained to Pt. B that she should get out of her clothes but keep on her panties, and put on the paper johnny or gown. Nurse Thakur showed her the area with the curtain, mirror and chair where she could change. Pt. B did this. Once she was ready for her examination, Dr. Thakur, with Nurse Thakur present at all times, began the physical examination following his routine protocol. Once the physical examination was finished, Pt. B was able to get dressed with privacy in the examination room. Pt. B was not questioned by Dr. Thakur about her
personal and medical history while she was in the johnny or gown. (Testimony)

69. Pt. B came to this examination with her mother and two older daughters. She and her mother saw what they felt were a series of deadbolt locks on the main door of Dr. Thakur's office which made Pt. B feel uncomfortable. Pt. B also felt Dr. Thakur was cutting off her answers to his questions during his interview of her, before she was able to say all she wanted to say. She felt Dr. Thakur was starting to ask another question before she had finished her answer. Pt. B would have refused a breast examination if Nurse Thakur had told her that was an option. (Testimony)

70. Pt. B felt Dr. Thakur was foreign. She felt Nurse Thakur was as well, although her examination was conducted all in English. (Testimony)

71. Pt. B was on the examination table having finished straight leg raising when the telephone that was on the wall of the examination room began to ring. Nurse Thakur answered the telephone. Dr. Thakur had to take the call. He stopped examining Pt. B and took the call. At the time the examination was interrupted, Pt. B had her johnny or gown ripped down the front to expose her chest in preparation for the examination of her heart, lungs and breasts. Pt. B became uneasy when Dr. Thakur took the call. She then felt he and Nurse Thakur were conversing in a foreign language, and that Dr. Thakur was talking in an abrupt manner to Nurse Thakur after getting off the telephone. Dr. Thakur then resumed his physical examination of Pt. B addressing the heart, lungs and breasts. Neither he nor Nurse Thakur made any reference to Pt. B about that telephone call interruption. During this next portion of the examination, Pt. B did not raise any objections about the examination. Dr. Thakur, with Nurse Thakur on the other side of the examination table, followed his protocol, and finished the examination. Dr. Thakur noted on his protocol sheets that Pt. B was sweaty over her chest and stomach. (Exs.13 & 23. Testimony.)

72. Dr. Thakur did palpations in connection with the examination of the heart and breasts. In doing the breast exam, he did not touch both breasts at the same time with one hand on one breast and the other hand on the other breast. He did not grab or squeeze Pt. B's breasts. He detected no breast abnormalities. He provided detailed information in his narrative report for DDS-MRC on the results of his physical examination, including about the heart and respiratory systems, but he did not record any information about the results of the breast exam. (Exs. 13 & 23. Testimony.)

73. Dr. Thakur's narrative report for DDS-MRC included information he received from Pt. B concerning her symptom complaints and diagnoses. He noted her history of migraine headaches with "intractable pain for the past four years," and noted her use of "Percocet three or four times a day." He noted her complaint that she has face and jaw pain "about five days a week." He noted her history of back problems with pain that radiates into her groin and hip areas from her back. He reported on an MRI that he did not see but which Pt. B explained as showing "a herniated disc affecting L4-L5 and a couple of other discs." He understood she has spinal stenosis, was "attending a spine center," and had undergone "two epidural injections." He noted she is "limited in bending, limited in walking for a distance, or lifting heavy objects." Dr. Thakur reported on her history of fibromyalgia, diagnosed five years ago. He noted Pt. B has "severe muscle pain affecting the chest muscles, biceps, triceps, the shoulders, and abdominal muscles." He noted she has undergone physical therapy, massage therapy, heat therapy, been referred to a chiropractor, and nothing has helped to relieve her symptoms very much. Pt. B told Dr. Thakur she "recently noticed an electrical type of nerve pain in the ribs in the back, shooting pains." Pt. B described to Dr. Thakur her seizure disorder, noting she has at times "hallucinated." He understood she had never sustained a grand mal seizure, but at times has felt "almost semiconscious" without passing out. Dr. Thakur noted that Pt. B complained of GERD and has a hiatal hernia for which she takes Ranitidine. Dr. Thakur took Pt. B's height and weight. He examined her head, eyes, ears, mouth, and lymph glands. Her blood pressure reading was 130/70. In terms of Pt. B's personal history, Dr. Thakur's narrative report noted she smokes, does not drink alcohol, and reported no history of drug addiction. He noted Pt. B reported no history of asthma, allergy or diabetes. He noted she had gallbladder surgery and left leg surgery. Dr. Thakur understood Pt. B was a single mother of two children, and last worked for any length of time in 1999. (Exs. 13 & 23. Testimony.)

74. Pt. B was upset leaving her examination with Dr. Thakur but did not say anything to him before he left the examination room. After she got dressed, she told Nurse Thakur that she had wanted to talk to Dr. Thakur about her seizures. Nurse Thakur took her to see Dr. Thakur in the consultation room where she explained her information about the seizures to him. She found him easier to be with versus when he was examining her. Nevertheless, Pt. B was still upset when she left the office with her mother and daughters. (Testimony)

75. As a result, Pt. B filled out a DDS-MRC appraisal card to express her concerns about her examination with Dr. Thakur. She noted her examination lasted about twenty to twenty-five minutes, that Nurse Thakur was courteous but Dr. Thakur was not. She wrote that he spoke in a harsh and aggressive tone, and that he would not let her explain all she wanted to about her illnesses or symptoms. She wrote that during her examination Dr. Thakur took a telephone call while continuing to examine her. She wrote that he made her feel uncomfortable, and was "degrading" and "mean." She wrote: "He ripped the front of my paper gown down aggressively and touched my breasts (not a normal breast exam), and yelled at the nurse." She sent this appraisal form to DDS-MRC. (Ex. 12. Testimony.)

76. Thereafter, Pt. B secured legal counsel to address her concerns that she may not get her social security disability benefits, and to address her concerns about her examination with Dr. Thakur. (Testimony)

77. DDS-MRC contacted Dr. Thakur concerning Pt. B's comments on her appraisal card. He was asked to respond and was provided with a copy of the appraisal card. He responded by letter of May 22, 2006. Dr. Thakur had no present memory of Pt. B so his response included a recitation of the examination protocol he always follows. He noted: "The patient is told at each step to inform the undersigned if any passive or active movements or part of the exam begins to hurt the patient and the procedure has to stop there … The comfort and concern of the patient at every stage of examination is always the priority." Dr. Thakur explained that he reviewed his medical record on Pt. B. In terms of the touching of her body he did during her examination which she referred to as 'degrading and mean,' he was not certain what she was referring to, but he noted that "in order to have an access to the examination of the heart and access to palpate and auscultate her precordium, an opening of the upper part of the paper gown is needed and the patient is usually told that I am going to examine the heart." He wrote that her remark that he "ripped off the gown" is "a total misunderstanding on her part." In regard to taking a telephone call during the physical examination, Dr. Thakur explained he only takes such a call if it involves a hospital patient with the resident or emergency room physician needing his immediate input. "Otherwise, no telephone calls are entertained during the examination of the patient." (Ex. 28. Testimony.)

78. Pt. B was initially denied social security disability benefits. Upon appeal, she was awarded the benefits. Pt. B decided to file a complaint with the Board of Registration in Medicine against Dr. Thakur concerning his conduct at her April 20, 2006 examination, but waited until in and around July 2006. On the complaint form, she checked off that the complaint concerned substandard medical care, professional misconduct, sexual misconduct, rude or discourteous behavior, and that she was made to feel humiliated and degraded "like I was NOT human." She noted she sought counseling to cope with what happened at the April 20, 2006 examination. She reported that she told DDS-MRC about Dr. Thakur's conduct, and that she understood they would be investigating his conduct. In her narrative, Pt. B noted upon arrival at Dr. Thakur's office how she became "uncomfortable" due to the "many deadbolt locks … 3 or 4 very large locks on the door." She wrote that Dr. Thakur's nurse "seemed very nice." She wrote that she was told by his nurse "to take off my undergarments and put on a paper johnny gown," but that she kept on her panties because she "did not think I needed to take them off." She explained that she removed her bra "because I figured it was so he could examine my spine because that is one of my health problems." (Ex. 17. Testimony.)

79. Pt. B's narrative in her complaint form to the Board of Registration in
Medicine contained an account of the physical examination with Dr. Thakur. She found him to be "very aggravated that he had to do the exam … did not introduce himself … just said in a very mean tone 'Get up Now'!" She wrote that "he was on the phone" for most of her examination, "would not let me speak … would just ask questions, and when I tried to answer, he would cut me off, and go onto the next question." She also wrote that he "was yelling and verbally abusive to his nurse" who "seemed scared of him." She described what she called the "real bad part" of the examination. Pt. B wrote that she was on the examination table and the telephone rang which the nurse answered. She wrote that Dr. Thakur became,
very angry about something the nurse said on the phone … he was screaming
at her, while he was examining me, then out of nowhere he aggressively ripped my paper gown from the top all the way down to my abdomen, then he put his hand under my right breast, lifted my breast up and squeezed it firmly, then he took a phone call with his other hand.

(Ex. 17) Pt. B wrote that during this part of her examination, Dr. Thakur "was also

yelling at his nurse … while he was being very rough squeezing and fondling my breasts,

mostly the right side." (Ex. 17. Testimony.)

80. Pt. B's narrative in her complaint to the Board of Registration in Medicine set forth her feelings and impressions about what happened to her during Dr. Thakur's examination on April 20, 2006. She emphasized, how she had undergone pap smears and breast exams in the past, and that what Dr. Thakur did was "NOT A NORMAL BREAST EXAM!" She wrote how she was "in shock … started sweating heavily and my heart rate went up to 100 BPM (beats per minute)." She wrote that the nurse told her the heart rate was high likely due to the pain she was having. She noted that the breast squeezing Dr. Thakur did was painful, and that he never actually examined her breasts for
lumps or abnormalities; that he was "in a fit of rage and he was taking it out on me."
Pt. B concluded that Dr. Thakur had no reason to examine her breasts for this DDS-MRC
examination, and that all he examined were her feet and legs, along with ripping her gown and just fondling her breasts. She wrote she had expected to be examined for her severe migraines, her nerve pain, the TMJ pain, and her seizures. She reported that once the examination ended and after she was dressed, that Dr. Thakur seemed to be nicer "like nothing happened. He was probably afraid I would tell someone." She reported that once he learned her mother and daughters were in the waiting area that he seemed not "happy about that." Pt. B wrote that once she was back in the waiting area, her "eyes filled up with tears." She wrote that she was "very shaken up, … cried the whole way home, and all day when I got home … felt so dirty that I jumped right into the shower."
Pt. B explained that she had been "molested for many years as a child … now as a woman to be violated by a man who took an oath to help people and do no harm has really traumatized me." She described having "flashes of what he did, and … some nightmares." She wrote how he "took advantage of the power he thought he had over me," and that she feared filing this complaint "because the thought of ever having to face him again scares me to death." Pt. B also noted that Dr. Thakur took a personal and medical history from her while she was in the paper johnny or gown. (Ex. 17. Testimony.)

DDS-MRC Response to complaints filed against Dr. Thakur by Pt. A and Pt. B

81. Once DDS-MRC became aware that Pt. A and Pt. B had filed complaints against Dr. Thakur's conduct with them during their DDS-MRC examinations, DDS-MRC stopped referring claimants to him. In September 2006 Dr. Thakur inquired why he was not receiving referrals as he has been doing so many each week. (Ex. 11. Testimony.)

82. MRC Deputy Commissioner Kasper Goshgarian wrote Dr. Thakur and
explained why the referrals had stopped:
The reason for our decision is the current pending investigation being conducted by the Massachusetts Board of Registration in Medicine regarding your alleged conduct during an examination of an individual referred to you by our office. It
is our responsibility to assure the safety of all our consumers. While such charges are pending, it would be inappropriate for our agency to make referrals.

(Ex. 10)


Dr. Thakur's responses to the Board of Registration in Medicine about the complaints of Pt. A and Pt. B

83. Dr. Thakur was interviewed by the Board of Registration in Medicine on August 11 and November 17, 2006 about the complaints filed against him by Pt. A and Pt. B. By letter of December 11, 2006, Dr. Thakur responded denying he had engaged in any improper or inappropriate or wrongful conduct with either of these women. He denied he uses a deadbolt lock during the time periods he sees patients in his office; that "the entrance door is always open during the hours of practice. No patient has ever mentioned … the lock previously." He denied ever altering his protocol and conducting his history taking portion of the examination while the patient is in the johnny or gown. He denied that a patient has ever been told to remove her panties in undressing for the physical examination. In terms of conducting the physical examination, Dr. Thakur set forth the protocol he always follows:
[S]ystemwise approach as I elaborated during my interview with the Board … basically focused on

(A) Inspection
(B) Palpation
(C) Percussion
(D) Auscultation

per relevant to the system.

(Ex. 29) Dr. Thakur also explained that he views "PALPATION" as "essential" when he
examines the cardiovascular system, respiratory system, trachea, liver, spleen, lymph
nodes, and breasts. Dr. Thakur remarked that full accounts of the examinations he gives to DDS-RMC patients, including to Pt. A and Pt. B, are "well documented in his notes." He explained that during the physical examination, he tries "to avoid conversing with the patient and focuses on gathering findings." (Ex. 29. Testimony.)

84. In his December 11, 2006 letter to the Board of Registration in Medicine, Dr. Thakur described his examination of the breasts as being like an exam he does to the liver and spleen "to detect any lump suggesting occult cancer." He noted that an internist cannot afford to miss such signs. He denied ever doing anything to a breast during a breast examination that could accurately be labeled squeezing or fondling. Dr. Thakur explained that if the hospital telephone line rings during a physical examination that he must take the call from the emergency room physician or from the house staff physician at the hospital, but that he never continues an examination while also talking on the telephone. Dr. Thakur discussed the ripping of the front of the paper gown during the examination to permit doing the heart, respiratory system and breast examinations because the open part of the gown is in the back. He explained that before any tearing of the gown, he "always obtained the permission of the patient to have access to the precordium for the exam of cardiovascular system." (Ex. 29. Testimony.)
85. On April 16, 2008, the Board of Registration in Medicine issued a
Statement of Allegations against Dr. Thakur about his conduct with Pt. A and Pt. B, which he denied in his Answer. (See, Exs. A & B)
Conclusion and Recommendation

Petitioner has failed to show the Statement of Allegations against Dr. Thakur has merit. I do not find a factual basis to support the claims made against Dr. Thakur.
Petitioner failed to show Dr. Thakur was ever given written or verbal notice from any source of a DDS-MRC policy in place at the time he examined Pt. A and Pt. B, prohibiting breast examinations on female claimants. Petitioner failed to show Dr. Thakur had constructive notice of such a prohibition from the prior letters and appraisal forms filed against him prior to the instant matters regarding Pt. A and Pt. B. These prior matters never led to written or verbal notice to him not to do breast examinations. They never led to notice to him that he was in violation of an existing policy against doing breast exams. I also credit the testimony of Nurse Thakur that she received and opened the office mail, and if a letter had been received from DDS-MRC prohibiting breast examinations, she would have remembered receiving it. Dr. Thakur never had to attend annual or periodic trainings or review sessions about how to conduct examinations at DDS-MRC after he began doing them in 1979, so that if this prohibition was raised to some outside consultant physicians at more recent trainings, he would not have learned about it. I found to be understandable and persuasive, Dr. Thakur's explanation that if he was instructed not to do breast exams, he would have discussed his liability concerns with DDS-MRC. This is because, from his knowledge and experience, he would be performing a less than acceptable internist examination to leave out a breast exam.
The prior incidents raised by Petitioner involving letters of complaint or appraisal
forms against Dr. Thakur, were never shown to have been more than accusations that included charges of improper breast examinations. DDS-MRC never pursued any prior complaints against Dr. Thakur once he responded to the letters or forms and defended against the charges. These prior issues were never validated, and are insufficient evidence to show Dr. Thakur learned from them that he was not to do breast examinations on female DDS-MRC claimants. Exhibits 5 and 6 contain information from appraisal forms concerning Dr. Thakur, and do not show a recurring issue concerning breast examinations, or about making rude or inappropriate comments to patients. DDS-MRC did not have any on-going or frequent concerns about Dr. Thakur's conduct during the examinations he was giving to claimants. In fact, in September 2004, DDS-MRC increased the number of referrals sent to Dr. Thakur from six to ten patients a week. There is also no evidence Dr. Thakur was aware that DDS-MRC had a concern that he was doing breast exams. There is no basis to conclude he should have known not to do breast exams, or that he intentionally ignored investigating whether or not DDS-MRC wanted him to continue to include breast exams. The "willful blindness" of Attorney Goldstone in the case of In the Matter of Goldstone, 445 Mass. 551, 556 (2005), as argued by Petitioner, does not fit the facts of Dr. Thakur's circumstances.

No evidence shows a breast examination given during an evaluation of a patient by a consultant internist is improper as against any prevailing medical practice standards. No evidence shows the particular methods Dr. Thakur employed when palpating and touching the DDS-MRC claimants' breasts were against such standards of practice. Dr. Thakur gave quite detailed testimony about how he observes the breasts and why, and how he palpates and touches the breasts and why. If Petitioner had any concerns with his protocol methods, no expert was presented to show that what he was doing was improper.
Dr. Thakur has had extensive training over his long career in how to conduct a proper and useful clinical examination of a patient as an internist. He has taught Boston University medical students in how to conduct such examinations from the 1980's. He has done thousands of consultation examinations on claimants seeking social security disability benefits and on claimants seeking disability retirements from their government jobs. He maintains a long-time private practice. He engages regularly in pertinent continuing education programs and reads pertinent professional articles to keep current in his field of practice. The Board of Registration in Medicine presented no evidence to show Dr. Thakur lacked training or knowledge about how to conduct proper, appropriate and useful clinical examinations.

Dr. Thakur developed a protocol for conducting examinations on both his private
and consultation patients. It is the same basic protocol he has been using since approximately 1966. It is the protocol he uses in teaching clinical skills to medical students. It starts with a medical and personal history taking interview with the patient, and then follows a system by system physical examination procedure. The protocol sheets he developed and has used for decades on thousands of patients and claimants provide prompts for recording vital information within each body system appropriate for an internist to do. It does not follow and no evidence shows it should, that if he never routinely performs an internal examination as an internist consultant, that he should also not routinely perform a breast examination on a one-time examination of a DDS-MRC claimant.
No evidence was introduced by the Board of Registration in Medicine that this protocol on how Dr. Thakur conducts his physical examinations is in some way not current, or is faulty in terms of the prevailing standard in the community and internist specialty in which he practices. Dr. Thakur gave a very detailed and clear account of each system by system procedure he follows. He explained why he touches a patient's body in the way he does and what he is trying to uncover. No evidence was offered by the Board of Registration in Medicine to show that any of the methods he employs in palpating and/or touching any body system is not done in satisfaction of the prevailing standard to employ in the community and internist specialty in which he practices. No evidence was presented by the Board to show the particular protocol Dr. Thakur follows should properly be done in a different order.

Dr. Thakur presented very detailed information, which the testimony of Nurse
Thakur confirmed, about the course of events each patient engages in with him and Nurse Thakur during the visit to his office. I found the testimony of Dr. Thakur and Nurse Thakur to be credible about this course of events, including their testimony that this protocol does not vary as to DDS-MRC claimants. Dr. Thakur starts by privately interviewing the patient in his consultation room with the patient fully clothed. Once that ends after about fifteen minutes, the patient is brought by Nurse Thakur to the examination room where the patient is shown an area to use to undress and to put on a paper johnny or gown, with the opening in the back, with just underwear pants or panties left on. This area has a curtain to close for privacy. Once the patient is in the johnny, the physical examination begins. Nurse Thakur is always present for the examination of a female. For all his decades of doing clinical examinations of females, Dr. Thakur has had a female chaperone present. Given Nurse Thakur's testimony about specific time periods when she has not been working in Dr. Thakur's office due to illness or some other reason, I conclude she was present for the examinations of Pt. A and Pt. B.
Nurse Thakur has had training and experience as a head nurse in hospital wards. She had been involved in many clinical examinations before she began working in Dr. Thakur's office as his nurse. Even though she is Dr. Thakur's spouse, and they raised two children, I found her testimony not to be just self-serving but to be believable and understandable in her confirmation of Dr. Thakur's account of what happens when private patients and DDS-MRC claimants undergo examinations.

What Dr. Thakur and Nurse Thakur acknowledge is that many patients can be seen in one day. Dr. Thakur explained that he does not converse very much with a patient while he performs the clinical examination, which makes sense, so he can pay attention to what his examination is revealing to him. I conclude that he cannot do a useful examination of a body system while conversing for long periods during a clinical examination or while conversing on other topics with his wife. He explained that when the telephone rings from the hospital so he has to take the call, that he stops the clinical examination until he finishes the call. That is credible and makes sense as he is doing the examining of the body systems to uncover conditions. Nurse Thakur confirmed this practice in her testimony.
During the history taking portion of the examination, Dr. Thakur does not simply ask open ended questions of the DDS-MRC claimant since he has information on the claimant before he starts his examination as well as a focus he is to follow as instructed by DDS-MRC. The record does not show the claimant is simply asked what is wrong or that she is asked to give a narrative as best she can about what she feels is wrong. Rather, Dr. Thakur conducts a question and answer session with the claimant. In doing so he is following a predictable course with each such claimant in order to gain the information he needs before starting the clinical examination. This kind of interview may have been a bit different and seemed more controlled by Dr. Thakur than what Pt. A and Pt. B expected. At least Pt. B wanted to be able to provide more of a narrative to highlight what she felt should matter to Dr. Thakur. Not being able to do that seemed to have made her upset. Likewise, Pt. A wanted to talk about her Irritable Bowel Syndrome more than he did.

The accounts of Pt. A and Pt. B are simply not credible, and are far-fetched. I conclude Dr. Thakur did not use vulgar language or engage in improper touching of their breasts. I do not believe he aggressively ripped down the fronts of their paper gowns. They each contended to the Petitioner in their complaints and in their testimony that essentially, they were victims of sexual assaults by Dr. Thakur. They did not testify that Nurse Thakur was an accomplice to Dr. Thakur in these assaults, both physical and verbal, although they each acknowledge her presence in the examination room. They each claim Dr. Thakur fondled, squeezed and grabbed their breasts for no medical reason while Nurse Thakur was in the room even if Pt. A recalled her not able to easily see Dr. Thakur touching her breasts. They may not have realized at the time of their complaints that she is Dr. Thakur's spouse. Having taken a measure of her demeanor when she testified, and that Dr. Thakur was not present when she gave her testimony as a sequestered witness, I simply do not find believable that Nurse Thakur was covering up wrongful touching and use of vulgar language by Dr. Thakur with Pt. A and Pt. B.
The fact that the physical examination notes and narrative report for Pt. A do not
mention she has breast implants, is not evidence to show Dr. Thakur likely improperly touched the breasts of Pt. A as she charges. The fact that he might have pushed aside her left breast and started the examination of her heart by palpating in the area of her left breast only to realize she had breast implants, does not mean he fondled them thereafter even if he asked her about them. I also found credible his testimony that he would never comment that a breast was attractive or use some similar non-medical terms. I found Nurse Thakur's confirmation that he would not make such comments to be believable. The fact that the physical examination notes and narrative report for Pt. B do not mention he gave her a breast examination is not evidence to show Dr. Thakur fondled, grabbed and squeezed her breasts during her physical examination. I did not believe her account of what he did to her breasts. I do not believe Nurse Thakur saw improper touching of Pt. B's breasts and has lied about it in her testimony. Dr. Thakur explained that if a woman's breasts require it, he might have to use two hands on one breast at a time, never squeezing or grabbing at it, but putting pressure on it in the course of palpating the tissue in each of the breast's four quadrants. Even if Pt. B misunderstood what Dr. Thakur was doing, I do not believe he had one hand on one breast and his other hand on the other
breast, fondling each simultaneously in the presence of his wife.

As to both Pt. A and Pt. B, neither raised any objection to Nurse Thakur about being improperly touched and spoken to by Dr. Thakur, yet each described Nurse Thakur as courteous, so presumably not hard to talk to. It does seem odd given the particularly aggressive touching each claims Dr. Thakur engaged in, that neither raised an objection to Nurse Thakur, even after the examination ended and before each left the office. Also, Pt. B was upset after her physical exam because she wanted to talk more to Dr. Thakur about what she viewed as her reasons for being unemployable. But, even though she found him to be nicer to talk to after the exam, she claimed that once she got home that she had to shower she felt so terrible that Dr. Thakur had sexually assaulted her. But, even if she convinced herself that she was sexually assaulted by Dr. Thakur, that does not mean that is what happened. Pt. A did not contact Ms. Andler to complain about improper touching of her breasts by Dr. Thakur but to express her concern that he did not evaluate her irritable bowel syndrome and connect it to her anxiety condition. It was only after she mentioned that she thought Dr. Thakur gave her a breast exam and Ms. Andler seemed to become alarmed, that she began to feel she had been sexually assaulted by Dr. Thakur. I conclude that even if both Pt. A and Pt. B came to believe they had been sexually assaulted by Dr. Thakur, that does not mean they were. Dr. Thakur touched their breasts during the physical examination and palpated different parts of their bodies. For Pt. A that included her heart area near her left breast and not her breasts, and for Pt. B that included both her heart area and both breasts. I conclude that is all he did and in the course of proper physical examinations without any vulgar or inappropriate language involved.

If the accounts provided by Pt. A and Pt. B were believable, then their claims of rude and improper language and of non-medical fondling and touching of their breasts, could form the basis for disciplining Dr. Thakur no matter how skilled an internist he is. In Weinberg v. Board of Registration in Medicine, 443 Mass. 679, 687 (2005), the Supreme Judicial Court explained that "misconduct in the practice of medicine is an independent and sufficient ground to warrant discipline." The Supreme Judicial Court in Hellman v. Board of Registration in Medicine, 404 Mass. 800, 804 (1989) provided guidance as to what misconduct means:
'Misconduct', in general, is improper conduct or wrong behavior, but as used in speech and in law it implies that the conduct complained of was willed and intentional. It is more than that conduct which comes about by reason of error of judgment or lack of diligence. It involves intentional wrongdoing or lack of concern for one's conduct. Whether or not an act constitutes misconduct must be determined from the facts surrounding the act, the nature of the act, and the intention of the actor.

In Raymond v. Board of Registration in Medicine, 387 Mass. 708, 712 (1982), the Supreme Judicial Court discussed how the "ability to practice medicine requires not only technical competence, but also the unswerving dedication to employ it to preserve life, restore health, and alleviate suffering." In Levy v. Board of Registration in Medicine, 378 Mass. 519, 528 (1979), the Supreme Judicial Court discussed the importance of having good moral character, and when a lack of it as reflected in a physician's conduct "undermines public confidence in the integrity of the medical profession," there is a valid ground to support discipline as "reasonably related to promotion of the public health, welfare, and safety." See also, 243 CMR 1.03(5)(a)18.

The claims against Dr. Thakur were largely determined by making credibility determinations, because the only persons who really know what happened during those two physical examinations were Pt. A, Pt. B, Nurse Thakur and Dr. Thakur. I reviewed thoroughly the exhibits and testimony and arguments presented, and was able to easily believe the accounts of Dr. Thakur and Nurse Thakur. I applied the proper legal standards to the findings made, and I do not find sufficient proof that the Statement of Allegations claims were proven.


For these reasons, I recommend that Petitioner dismiss the Statement of Allegations against Dr. Thakur.

DIVISION OF ADMINISTRATIVE
LAW APPEALS

//s//
Sarah H. Luick, Esq.
Administrative Magistrate

DATED: September 24, 2009