Accusation against
Haim I. Bicher, M.D. (2005)

Stephen Barrett, M.D.


Haim Bicher, M.D. operates the Valley Cancer Institute (VCI) in Los Angeles. Since 1998, the Institute's home page has described it as "one of the largest non-profit hyperthermic research and patient treatment center in the USA."

The Medical Board of California has disciplined Bicher three times. In 1995, the Board filed an accusation that ultimately resulted in an order for 18 months' probation from 1995 to 1997. In 2004, in response to new charges, an Administrative Law Judge made a convoluted ruling that included both positive and negative findings. On one hand, he concluded that Bicher (a) was professionally competent, (b) had achieved considerable professional recognition, and (c) was "deeply dedicated to his patients, and to the practice and advancement of medicine." On the other hand, he concluded that Bicher had (a) been grossly and repeatedly negligent, (b) failed to maintain adequate records, and (c) exaggerated the value of hyperthermia. (Hyperthermia is a type of cancer treatment in which body tissue is exposed to temperatures of up to 113°F. Local and regional hyperthermia may enhance the effect of radiation and chemotherapy for a few cancers. However, the judge ruled that VCI's site had improperly claimed that hyperthermia was highly effective on its own and was suitable for anyone at any age.) After considering the judge's findings, the board placed Bicher on five years' probation, during which he was required to engage a practice monitor or participate in a professional enhancement program that included periodic assessment of his work. Bicher surrendered his New York State license in 2005.

The third accusation (shown below), filed in July 2005, alleged "gross negligence," "repeated negligent acts," "failure to maintain adequate and accurate medical records," and "dishonesty" in billings to Blue Cross of California. In July 2006, Bicher signed a stipulated settlement under which he admitted no wrongdoing but agreed to have his probationary period extended for two additional years. During this period, he was required to (a) complete an extensive training and assessment program and (b) refrain from using unconventional hyperthermia or radiation treatment protocols that do not have approval of an Institutional Review Board.

In 2009, Bicher petitioned the Board for early termination of his probation. Following a hearing, an Administrative Law Judge concluded that Bicher had "sustained his burden of proof that he is rehabilitated and entitled to early termination." The board accepted the judge's findings and ended Bicher's probation on November 18, 2009.


BEFORE THE
DIVISION OF MEDICAL QUALITY
MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS
STATE OF CALIFORNIA

In the Matter of the Accusation Against:

JAMES HAIM ISIDORO BICHER, M.D.
12099 West Washington Blvd., #304
Los Angeles, CA 90066-0549

Physician's and Surgeon's Certificate
No. A 37798

Respondent.


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Case Nos.
04-2003-142240
04-2003-143477 A

ACCUSATION

(Cal. Gov. Code, 9 11503.)

FILED: July 12, 2005

Complainant David T. Thornton, as causes for disciplinary action, alleges:

PARTIES

1. Complainant is the Executive Director of the Medical Board of California, Department of Consumer Affairs, State of California (hereinafter the "Board"), and makes and files this Accusation solely in his official capacity.

2. At all times mentioned herein, James Haim Isidoro Bicher, M.D., (hereinafter "Respondent") has been licensed by the Board under Physician's and Surgeon's Certificate A 37798. Said certificate was issued by the Board on December 12, 1981, and will expire on May 31, 2007, unless renewed.

JURISDICTION

3. This Accusation is brought before the Division of Medical Quality ("Division") of the Medical Board of California under the authority of the following laws. [All section references are to the California Business and Professions Code ("Code") unless otherwise indicated.]

4. Section 2227 of the Code provides that a licensee who is found guilty under the Medical Practice Act may have his or her license revoked, suspended for a period not to exceed one year, placed on probation and required to pay the costs of probation monitoring, or such other action taken in relation to discipline as the Division deems proper.

5. Section 2234 of the Code provides that the Division of Medical Quality shall take action against any licensee who is charged with unprofessional conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not limited to, the following:

(a) Violating or attempting to violate, directly or indirectly, assisting 'in or abetting the violation of, or conspiring to violate any provision of this chapter [Chapter 5, the Medical Practice Act].

(b) Gross negligence.

(c) Repeated negligent acts.

(d) Incompetence.

(e) The commission of any act involving dishonesty or corruption which is substantially related to the qualifications, functions, or duties of a physician and surgeon. "

(f) Any action or conduct which would have warranted the denial of a certificate.

6. Unprofessional conduct under California Business and Professions Code section 2234 is conduct which breaches the rules or ethical code of the medical profession, or conduct which is unbecoming to a member in good standing of the medical profession, and which demonstrates an unfitness to practice medicine. [Shea v. Board of Medical Quality Assurance (1978) 81 Ca1.App.3d 564, 575]

7. Section 2266 of the Code provides that the failure of the physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct.

8. Section 125.3 of the Code provides, in pertinent part, that in any order issued in resolution of a disciplinary proceeding, a board may request that the administrative law judge direct a licensee found to have committed a violation or violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case, including charges imposed by the Attorney General. Under section 125.3, subdivision (c), a certified copy of the actual costs or a good faith estimate of costs where actual costs are not available, including investigative and enforcement costs, and charges imposed by the Attorney General, up to the date of the hearing, signed by the designated representative of the entity bringing the proceeding shall be prima facie evidence of the reasonable costs of investigation and prosecution of the case.

9. Section 14124.12 of the Welfare and Institutions Code provides, in pertinent part, that:

"(a) Upon receipt of written notice from the Medical Board of California, the Osteopathic Medical Board of California, or the Board of Dental Examiners of California, that a licensee's license has been placed on probation as a result of a disciplinary action, the Department may not reimburse any Medi-Cal claim for the type of surgical service or invasive procedure that gave rise to the probation, including any dental surgery or invasive procedure, that was performed by the licensee on or after the effective date of probation and until the termination of all probationary terms and conditions or until the probationary period has ended, whichever occurs first. This section shall apply except in any case in which the relevant licensing board determines that compelling circumstances warrant the continued reimbursement during the probationary period of any Medi-Cal claim, including any claim for dental services, as so described. In such a case, the Department shall continue to reimburse the licensee for all procedures, except for those invasive or surgical procedures for which the licensee was placed on probation."

FIRST CAUSE FOR DISCIPLINARY ACTION

(Gross Negligence)

10. Respondent has subjected his Physician's and Surgeon's Certificate No. A 37798 to disciplinary action under sections 2227 and 2234(b) of the Code, in that he has committed gross negligence in his care and treatment of patients M.A.P., J.G., R.W., P.F. and D.B. The circumstances are as follows:

Patient M.A.P.

A. Prior to being treated by Respondent, this patient noted a right breast mass in early 1991, following which a 1.5 cm medial right breast mass was resected and a diagnosis of intermediate grade ductal adenocarcinoma was made. Examination of the tumor showed presence of perineural invasion (cancer invading little nerves in the breast—a sign of an aggressive tumor) as well as positive surgical margins (presence of microscopic tumor at the resection margin). This was followed by wider local tumor excision resulting in negative surgical margins. Additionally; the patient underwent right axillary lymph node dissection, which demonstrated five of twenty lymph nodes removed to be involved by metastatic cancer.

B. Originally, the patient was felt to have stage II cancer (on a scale from I through IV). Following surgery she received a course of postoperative radiotherapy. She tolerated this radiotherapy very well. Radiotherapy was followed by a six months course of chemotherapy. She did well until 1997, when a recurrent tumor was noted in the right supra clavicular (above the collar bone) region. Fine needle aspiration of the tumor demonstrated recurrent breast cancer. A several month course of chemotherapy resulted in a decrease of the recurrent right lower neck mass and the chemotherapy was discontinued in the fall of 1997. In January 1998, there was a recurrence of the right neck mass and chemotherapy was again given.

C. In 1998, there was a development of new cancer involvement of the lymph nodes in the right neck. In early 1999, the patient sought unsuccessful alternative medical treatment in Reno, Nevada. In December 1999, evidence of right neck disease progression was found and chemotherapy was restarted. The patient did well again until re-growth of the right neck masses was noted in 2001.

D. On or about November 7, 2001, the patient first visited the Valley Cancer Institute (VCl), where she was treated by Respondent at a later date. On November 7th, the patient only completed a form entitled "Potential Patient" and an appointment for November 15, 2001 was made. On November 15th, the patient completed only a "Patient Information Sheet" and there is no evidence she was seen by a doctor on this first visit.

E. On or about November 26, 2001, the patient was first seen by Respondent at VCI. She presented with a diagnosis of recurrent carcinoma of the breast, located in the right lower neck and in the area adjacent to the right scapula. On examination, Respondent noted, "several neck nodes, shoulder (right) pain and tumor in the right supra scapular region (above the right shoulder blade) which was very painful". There was no tumor recurrence in the right breast noted. The right supra clavicular mass was sensitive to touch and the right clavicle (collar bone) was tender to percussion. Another tumor measuring 3 x 5-6 cm was found above and lateral to the right scapula. This lesion was tender to touch. There were no other relevant physical findings noted by Respondent on this first visit. Respondent recommended a course of thermoradiotherapy (hyperthermia radiation combination), indicating that the "patient will probably benefit from this therapy".

F. The Patient was treated at VCI between November 15, 2001 and January 24, 2002. She stopped her treatment against Respondent's advice.

G. Respondent's Radiotherapv (RT) treatment program was given to this patient for a total period of 71 days. The focus was to the right supraclavicular region. She also received RT treatment to the anterior upper mediastinal mass for 59 days. This R T to the right supra clavicular region was given via anterior and posterior portals of 13 x 15 cm.

H. It was not until January 23, 2002, the day before the patient stopped her medical treatments with Respondent, that she signed a consent form for radiotherapy, although her RT treatments were initiated on November 15, 2001.

I. In addition to Respondent's RT treatment program, he also administered Hyperthermia (RT) as well to her right neck, anterior upper chest wall, mediastinum and right posterior upper chest wall. Multiple computer generated HT temperature records are noted and demonstrated temperature usually in the range of 42ºC for approximately 45 minutes. The available HT records provide no information where the actual temperature measurements were performed and lack a location of temperature probes.

J. In March 2002, the patient was seen for a consultation at UCSF Medical Center. Low back pain of 3 months duration causing difficulty in walking was noted. There was also numbness present in the left posterior lower extremity. A 2 x 1.7 cm sternal mass and a 3 x 2.5 cm right scapular mass were noted. There was a small right pleural effusion (presence of fluid in the chest usually indicative of advanced metastases), bilateral lung nodules and small lesion in the left lobe of the liver. Local RT to the lower spine and chemotherapy were among the recommendations.

K. In March 2002, the patient was also evaluated in consultation by Dr. B of the Department of Radiation Oncology at UCSF. At this time, the patient was clearly demonstrating persistent local- regional disease in the right neck. Chemotherapy was recommended to manage her overall widely metastatic disease.

L. In March 2002, the patient was also seen at UCSF for consultation by Dr. C.P., who discussed with her the role of HT in the management of patients with recurrent breast cancer in the chest wall. Also discussed was that microwave HT has a penetration limited to 2 cm from the skin surface. This treatment (RT) was not recommended at that time.

M. On or about March 28, 2002, an MRI of the patient's spine demonstrated multiple metastatic lesions in the sacrum and lumbar spine. Following radiotherapy, the patient was placed into Hospice care. She expired on January 17, 2003.

11. Respondent committed gross negligence in his care and treatment of patient M.A.P., which included, but was not limited to, the following:

A. Respondent's entire management of patient M.A.P. was an extreme departure from the generally accepted standard of care for patients with recurrent cancer of the breast.

B. The administration of radiotherapy with the unconventional size of daily radiation fractions and flawed arrangement of anterior radiation fields constitutes an extreme departure from the standard of practice.

C. Respondent's failure to maintain sufficient treatment records, not just port films obtained at the beginning of the patient's radiotherapy course, constitutes an extreme departure from the standard of practice.

D. Respondent's initiation of radiotherapy, and its continuation for a number of days without prior examination by the treating radiation oncologist, constitutes an extreme departure from the standard of practice.

E. Respondent's treatment of this patient with radiotherapy for months without written consent, and such consent form being obtained only one day prior to the end of the treatment course, constitutes an extreme departure from the standard of practice.

F. Respondent's failure to personally see and interact with this patient more than just three times during her 9 weeks of treatment, which included Respondent's initial consultation with the patient, demonstrates an absence of concern for the patient's well-being and constitutes an extreme departure from the standard of practice.

12. Patient J. G.

A. This patient was a 50-year old female who was self-referred to Valley Cancer Institute (VCI) and was seen by Respondent on December 14, 1998. Patient was diagnosed with fibrocystic disease of the right breast in the early 1987. She experienced an increase and decrease in the size of a palpable right breast nodule, which was depending on the menstrual cycle.

B. The patient's medical history included a 4x3 cm right breast mass noted in the right upper inner quadrant in early 1993. In November 1997, the patient underwent a right lumpectomy in Tijuana, Mexico. Pathology report of the resected lump of December 15, 1997, demonstrated carcinoma in-situ with invasive components (a sign of aggressive tumor). Patient refused recommended treatment and was treated in Mexico with unconventional therapy.

C. In February 1998, a local tumor recurrence was noted in the treated right breast. This recurrence was confirmed in Mexico on an imaging study (ultrasound imaging) performed in April 1998. In spite of the tumor progression in the right breast, patient continued with her unconventional therapy.

D. On physical examination by Respondent on December 14, 1998, he described that the right upper breast was invaded by a large tumor extending from upper inner quadrant past midline and crossing into the right axilla (under the armpit). The tumor was also present behind the nipple, and was hard and fixed to the underlying structures. There was no pain associated with the presence of this large tumor mass. No other signs or symptoms were noted. A diagnosis of locally advanced adenocarcinoma of the right breast was made. Additionally, the patient had a left breast nodule, which measured 2 x 3 cm. There were no other relevant physical findings. In particular there was no clinical evidence of metastatic disease. However, Respondent noted" patient will probably benefit from thennoradiotherapy". The patient refused radiotherapy (RT) to the peripheral lymphatic (the region where tumor spread is highly likely). Respondent scheduled the right chest wall, including the breast and axilla, to receive RT. A bone scan and chest x-rays were recommended by Respondent, but were refused by the patient.

E. Respondent provided both radiotherapy (RT) and hyperthermia (HT) treatments to this patient. The radiotherapy treatment was administered to the chest wall, including the right breast and the treatments were prescribed daily, 5 days per week. Respondent's (HT) treatments were given on a daily basis with the right breast receiving two treatments per day, which included medial and lateral aspects of the breast. Between December 15,1998 and May 19,1999, a total of 73 daily HT treatment sessions were given to the right breast. The right supra clavicular region received HT in 16 daily sessions, which included, for an unknown reason, two HT fractions given on the same day for three days (April 28 & 29 and May 5, 1999).

F. It appears that HT temperature sensors were placed on the patient skin, rather to be inserted into the tumor.

13. Respondent committed further gross negligence in his care and treatment of patient J.G. which included, but was not limited to, the following:

A. Respondent's repeatedly administered radiotherapy using unconventional fraction sizes.

B. Respondent failed to provide proper supervision during the course of the patient's radiotherapy sessions.

14. Patient R.W.

A. On or about March 28, 2000, this patient, a 46-year old female, self-referred to VCI for treatment of adenocarcinoma of the breast. She had a long history of fibrocystic disease. In 1996, she found a mass in the right breast. The mass was small and the patient believed it to be benign. The mass, however, continued to grow and finally in the spring of 1998, the patient sought Medi-Cal help.

B. On October 13, 1998, the patient had a fine needle aspiration of the mass, which established a diagnosis of adenocarcinoma. On November 30, 1998, a PET scan showed hyper metabolic activity in the right breast with additional foci being present in the right axilla being highly suggestive of metastatic disease in regional lymph nodes. These findings were confirmed on CT scan. Patient elected to be treated with unspecified unconventional therapy.

C. In January 1999, the patient had segmental resection of right breast mass at Saint John's Medical Center. Histological examination of the resected specimen showed moderately differentiated adenocarcinoma, comedo-type. Her treatment consisted of interferon, "biologicals and botanical therapy." In the summer of 1999, the patient received six courses of a specific chemotherapy. This treatment resulted in no response. In November 1999, for a total period of 14 weeks, she received a different chemotherapy. This treatment produced a good partial response (>50% tumor shrinkage). The treatment rational was to reduce tumor mass and attempt a lumpectomy. However, the patient refused surgery and RT. On January 11, 2000, a Dr. R., a medical oncologist, noted a marked reduction of the patient's disease in the right breast to 2.5 x 3 cm. There were several small lymph nodes present in the right axilla. Her chemotherapy was progressing well. About 3 weeks later, examination of the patient's breast was performed at UCSF and the breast lesion measured 4 cm in diameter.

D. Respondent performed his first physical examination of this patient on March 28, 2000. The relevant positive findings were limited to the right breast and right axilla. The breast had 3 lesions and small patch of skin redness. The right axilla had a significant adenopathy. The rest of the physical examination was within nonnallimits. A diagnosis of regionally extensive adenocarcinoma of the right breast was made by Respondent who recommended that the patient undergo thennoradiotherapy.

E. An MRI of the patient's breast was obtained on May 2, 2000, revealing a slight decrease in the previously noted right lower inner quadrant mass. The tumor was contiguous with the overlying skin. There were multiple smaller lesions through the right breast, which also showed a slight decrease. On May 18, 2000, a PET scan demonstrated resolution of right axillary lymph adenopathy and relatively unchanged appearance of the right breast indicating the presence of residual tumor. An MRI of August 22, 2000, demonstrated further decrease of the dominant right breast mass, which now measured 1 x 1.5 cm. The overlying skin thickening remained unchanged.

F. Respondent administered RT to the patient's right breast beginning on or about May 8, 2000 and completed it on or about November 10, 2000. RT was given in 86 fractions over a period of 165 days.

G. Respondent administered HT to the patient's right medial and lateral breast, right axilla and right supra clavicular region. The breast received a total of 57 HT sessions, the right axilla 22 sessions and the right supra clavicular region received 14 HT sessions. These HT were given daily, 5 days per week.

H. Respondent placed the temperature sensors for these treatments on the patient's skin rather than inserting them directly into the tumor.

15. Respondent committed further GROSS negligence in his care and treatment of patient R.W. which included, but was not limited to, the following:

A. Respondent's repeatedly administered radiotherapy using unconventional fraction sizes.

B. Respondent failed to obtain port films during his radiotherapy treatments to this patient.

C. The number of clinic visits during the course of radiotherapy were grossly inadequate.

16. Patient P.F.

A. This patient was a 52-year old female self-referred to VCI on December 18, 1997, seeking treatment for inflammatory carcinoma of the breast. The patient had a history of fibrocystic disease of the breast. In September 1994, during a routine mammogral-H1Y, a tumor was found in the lower outer quadrant of the right breast. Lumpectomy with axillary lymph node dissection was performed at Mayo Clinic in Arizona. It demonstrated grade ill, infiltrating ductal adenocarcinoma, which was present at surgical margins and showed vascular invasion (pathological signs of aggressive nature of the tumor). The tumor was ER and PR positive (estrogen and progesterone receptors, which help to guide therapy). All 17 axillary lymph nodes showed no metastasis. There was subsequent re-excision of lumpectomy site resulting in clear surgical margins. Patient refused further surgery or radiotherapy and elected to take unconventional treatment in Mexico and Switzerland. She was treated with Tamoxifen and chemotherapy. The former "did not work" and the patient discontinued the latter.

B. In August 1996, the patient noticed erythema (redness) of the right breast and a biopsy confirmed a diagnosis of inflammatory adenocarcinoma (particularly aggressive tumor). The patient again refused the recommended treatment and was managed with unconventional therapy. In January 1997, an MRI demonstrated changes consistent with inflammatory carcinoma of the right breast. The same findings were noted in a study of November 1997. From November 22nd through December 6, 1997, the patient received RT to the right breast in Tijuana, Mexico. The patient's tumor (orange sized) in the right breast decreased substantially following RT, but the skin redness persisted.

C. On or about December 18, 1997, Respondent performed a physical examination of the patient at VCI. Respondent noted "peau d'orange" skin over the right breast, in addition to a 5 cm lesion above the areola. The tumor was fixed to the underlying structures (fixed to the underlying chest wall). However, an MRl of the anterior chest wall, performed on November 12, 1997, failed to reveal any breast mass. At the time of Respondent's December 18, 1997 examination, there was no apparent clinical evidence of metastatic disease and no other relevant physical findings. He recommended however, the patient receive a hyperthermia-radiotherapy combination treatment at VCI.

D. Respondent treated the patient with RT therapy to the right supra clavicular axilla on December 19, 1997 to February 25, 1998. A total of 38 radiation fractions was given.

E. Respondent also treated the patient with Microwave HT, which was given on a daily basis to several sites. The right breast received 57 HI sessions, the right supra clavicular region 32 sessions and the posterior chest wall 20 sessions. On a few occasions patient received HT alone for a period of several days.

F. There is no evidence that the patient had temperature probe insertions or monitoring under the skin into the tumor.

17. Respondent committed further gross negligence in his care and treatment of patient P.F. which included, but was not limited to, the following:

A. Respondent administered a grossly excessive number of radiation fractions to this patient and used unconventional radiation doses.

B. Respondent failed to obtain port films during his radiotherapy treatments to this patient.

18. Patient D.B.

A. This patient was a 45-year old female, an occupational therapist, self-referred to VCI on August 18, 1998. The patient had a diagnosis of infiltrating ductal carcinoma of the right breast with local tumor extension.

B. In February 1996, on self-examination, the patient detected a 6x5 cm right lower outer quadrant tumor. A needle biopsy helped to establish a histological diagnosis of cancer. In March 1996, the patient had a modified radical mastectomy with axillary lymph node dissection. Nine of the 14 resected lymph nodes were positive for metastatic cancer. Histological examination of the tumor demonstrated high mitotic index, vascular invasion and tumor was "inflammatory in character" (all these histological features are signs of an aggressive tumor). Patient refused a postoperative radiochemotherapy and chose an unconventional treatment consisting of biological treatment and Tamoxifen.

C. Progressive tumor growth in the right supra clavicular region and right neck was noted. In November 1996, she received in Germany hyperthermia (HT)+Chemotherapy. The patient received two whole body HT treatments and local HT+chemotherapy. Reportedly, there was initial "good response" followed by early tumor recurrence. The patient had a second trip to Germany where she again received total body HT resulting in "complete remission."

D. In California, the patient received unspecified unconventional therapy, which included Selenium. In April 1997, a progressive tumor in the right supra clavicular region and right neck was again noted. She received unconventional treatment with beta 1-3 Glucan, Isoflavons and fetal cell transplant, all in Prague, Czech Republic. Reportedly, this treatment was not "very effective" and in December 1997, she was placed on "DCMS". This was followed by tumor progression with swelling of the right arm. From March through June 1998, she was treated with Taxol-Navalbin combination chemotherapy, which resulted in a "partial response". Systemic work-up consisting of bone scan and radiographic studies showed no evidence of metastasis. In June 1998, the patient began treatment with "biological agents, vaccine+Interlukin". There was no tumor response noted.

E. On or about August 18, 1998, the patient was physically examined by Respondent at VCI. A tumor invading the upper part of the right chest wall was noted with extension into the axilla, right supra clavicular region and the right neck. The tumor also extended to the right posterior axilla and back. Multiple red, inflamed and painful skin nodules were seen. There was no statement made by Respondent on physical examination regarding swelling of the patient's right arm. The patient was diagnosed with infiltrating ductal carcinoma extensively involving the above noted regions. Respondent noted" patient will probably benefit from thermoradiotherapy to the areas of disease. According to our latest statistics, we have a response rate of up to 90% in this type of inflammatory carcinoma".

F. Respondent's RT treatment course to this patient was very complex with multiple sites being treated. Anterior right supra clavicular region and axilla were treated between August 18th to October 29, 1998. The right chest wall was treated with two tangential fields between August 18th and November 5th, 1998. The right lateral neck was treated between September 13th and November 15th, 1998. The left supra clavicular region was treated between November 10, 1998 and March 24, 1999. There was a gap in the treatment course between November 13, 1998 and January 28, 1999. The left breast was treated between November 10, 1998 and February 25, 1999, with an interruption lasting from January 26th to February 17th, 1999. The posterior upper chest and upper arm received treatments between November 21, 1998 and March 24, 1999.

G. A total of 9 sites were treated with HT on a daily basis, 5 days per week and included the right supra clavicular (23 sessions); the right anterior upper chest wall (22 sessions); the right posterior neck (17 sessions); the right posterior axilla (22 sessions); the right posterior shoulder (19 sessions); the right anterior lower chest wall (22 sessions); the left anterior neck (1 session); the left breast (19 sessions) and the left supra clavicular region (19 sessions). No RT was given from November 11 - 20, 1998, yet HT was given on November 12th and 17th, 1998. HT was given until March 24, 1999.

H. HT temperature records appear to represent measurements obtained with temperature sensors placed on the patient's skin surface and not inside the tumors.

19. Respondent committed further gross negligence in his care and treatment of patient D.B. which included, but was not limited to, the following:

A. Respondent's entire medical treatment of this patient was an extreme departure from the standards of medical practice.

B. Respondent used an unconventional radiotherapy treatment schedule, which involved the use of an excessive number of radiation fractions and also used low daily radiation doses for parts of the RT administered to this patient.

C. Respondent used discontinuous radiotherapy sessions with this patient with lengthy gaps between some treatments.

D. Respondent provided poor quality of care during the RT treatments to this patient, demonstrated in part by his only obtaining a single set of port films for some treatment sites when at least weekly port films are required for each treated site.

SECOND CAUSE FOR DISCIPLINARY ACTION

(Repeated Negligent Acts)

20. Respondent has further subjected his Physician's and Surgeon's Certificate No. A 37798 to disciplinary action under sections 2227 and 2234(c) of the Code, in that he has committed repeated negligent acts in his care and treatment of patients M.A.P., J.G., R.W., P.F., and D.B. including, but not limited to, the following:

Patient M.A.P.

A. Paragraphs 10 and 11 are hereby incorporated by reference in their entirety as if fully set forth herein.

B. Respondent's use of daily hyperthermia treatments.

Patient J.G.

C. Paragraphs 12 and 13 are hereby incorporated by reference in their entirety as if fully set forth herein.

D. Respondent's use of daily hyperthermia.

E. Respondent's failed to insert the thermometry probe directly into the tumor.

F. Respondent administered a grossly excessive number of hyperthermia treatment sessions.

Patient R.W.

G. Paragraphs 14 and 15 are hereby incorporated by reference in their' entirety as if fully set forth herein.

H. Respondent's use of daily hyperthermia.

1. Respondent's failed to insert the thermometry probe directly into the tumor.

J. Respondent administered a grossly excessive number of hyperthermia treatment sessions.

Patient P.F.

K. Paragraphs 16 and 17 are hereby incorporated by reference in their entirety as if fully set forth herein.

L. Respondent's use of daily hyperthermia.

M. Respondent's failed to insert the thermometry probe directly into the tumor.

N. Respondent administered a grossly excessive number of hyperthermia treatment sessions.

Patient D.B.

O. Paragraphs 18 and 19 are hereby incorporated by reference in their entirety as if fully set forth herein.

P. Respondent's use of daily hyperthermia.

Q. Respondent's failed to insert the thermometry probe directly into the tumor.

R. Respondent administered a grossly excessive number of hyperthermia treatment sessions.

THIRD CAUSE FOR DISCIPLINARY ACTION

(Failure to Maintain Adequate and Accurate Medical Records)

13. Respondent has further subjected his Physician's and Surgeon's Certificate No. A 37798 to disciplinary action under section 2266 of the Code, in that he has failed to maintain adequate and accurate medical records, including, but not limited to, the following:

Patient M.A.P.

A. Paragraphs 10 and 11 are hereby incorporated by reference in their entirety as if fully set forth herein.

B. Respondent failed to maintain proper documentation for the hyperthermia treatments provided to this patient.

FOURTH CAUSE FOR DISCIPLINARY ACTION

 (Dishonesty)

14. Respondent has further subjected his Physician's and Surgeon's Certificate No. A 37798 to disciplinary action under sections 2227 and 2234(e) of the Code, in that he has been dishonest in the submission of his billings for reimbursement to Blue Cross of California for medical services allegedly provided by him. Such conduct is substantially related to his qualifications, functions and duties as a licensed physician and surgeon in California. The circumstances are as follows:

A., On or about February 14, 2003, the Medical Board received an 805 report [Tom Blue Cross of California indicating that while Respondent was under investigation for suspected medical billing irregularities, Respondent resigned from the program, retroactively to January 21, 2003.

B. The Blue Cross investigation was initiated, in part, because of excessive insurance billings they received from Respondent for hyperthermia and radiation treatments concerning 4 or 5 patients. It was the position of Blue Cross that the radiation doses administered at Respondent's direction at the Valley Cancer Institute (VCI) were so low the radiation treatment did not benefit the patients. In addition, Blue Cross further alleged that the medical records received from VCI for patient J.G. were altered. This was determined after patient J.G. provided Blue Cross with a copy of her medical records which she had obtained herself from Respondent. When compared with the records Respondent provided to Blue Cross, it was apparent that J.G.'s medical records had been altered to reflect that she had refused treatment. Respondent resigned his Blue Cross membership while still under investigation.

C. On or about February 19, 2003, an Arbitration Award was issued to Blue Cross concerning Respondent's billing issues challenged by Blue Cross. The findings of the arbitrator included the following:

  1. Respondent used improper and unauthorized treatment codes;
  2. There were alteration of records as to dates of treatment and the nature of the treatment;
  3. The alleged refusal of treatment regarding patient J. G. was not true.
  4. The evidence established that the radiation dosages per treatment, the frequency of hyperthermia treatments, the number of hyperthermia treatments per patient, and the manner of utilization of micro thermocouples was below the standard of good medical practice in the community.
  5. Respondent's billings for use of micro thermocouples were excessive and further, he billed misleadingly under an inappropriate code.
  6. Respondent submitted billings where he had an apparent conflict of interest in view of his personal interest in the manufacture of devices used in his patient care.
  7. Respondent was not entitled to payment for the use of microthermocouples.
  8. Respondent was not entitled to payment for radiation treatment dosages below those established as minimum standards in the community.
  9. Respondent was not entitled to payment for hyperthermia treatments in excess of those established as minimum standards in the community.

ADDITIONAL DISCIPLINARY CONSIDERATIONS

15. Respondent has been the subject of prior disciplinary actions by the Medical Board of California and is currently on probation with the Board. His disciplinary history is as follows:

1. On or about July 2, 1993, in case number 05-1990-2322, an Accusation was filed against Respondent. On or about December 16, 1994, a Supplemental Accusation was also filed. On December 29, 1995, a Decision became effective which read: "Revoked, stayed, five years probation with terms and conditions. On January 17, 1996, a Petition for Writ of Mandate was filed in Superior Court. On November 18, 1996, the Superior Court issued an Order remanding the case back to the Board. The Decision After Remand was ordered on January 3, 1997. On January 6, 1997, the Superior Court again remanded the Decision After Remand back to the Board. A Decision was ordered en June 24, 1997, and given an effective date of December 29, 1995, which read: Revoked, stayed, 18 months probation with various terms and conditions. On June 29, 1997, probation was completed.

2. On or about August 15, 2002, in case number 04-2000-114479, another Accusation was filed, and on September 30, 2004, a Decision became effective which read: Revoked, stayed, five years probation with terms and conditions.

PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters alleged herein, and that following the hearing, the Division of Medical Quality, Medical Board of California, issue its Decision and Order:

1. Revoking or suspending Physician's and Surgeon's Certificate No. A 37798, heretofore issued by the Board to JAMES HAIM ISIDORO BICHER, M.D.;

2. Revoking, suspending or denying Respondent's approval authority to supervise physician's assistants pursuant to Code section 3527;

3. Ordering Respondent to pay the Board the reasonable costs of the investigation and enforcement of this case, and, if placed on probation, the costs of probation monitoring; and

4. Taking such other and further action as the Board deems necessary and proper.

DATED: July 12, 2005.

________________________
DAVID T. THORNTON
Executive Director
Medical Board of California
Department of Consumer Affairs State of California
Complainant

BILL LOCKYER, Attorney General of the State of California
D. KENNETH BAUMGARTEN, State Bar No. 124371
Deputy Attorney General
California Department of Justice
110 West" A" Street, Suite 1100
San Diego, California 92101
P.O. Box 85266
San Diego, California 92186-5266
Telephone: (619) 645-2195
Facsimile: (619) 645-2061
Attorneys for Complainant

This page was revised on November 28, 2009.

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