From all appearances, it should have been a layup for the Georgia Composite Medical Board.
A report from Augusta University cited one of its doctors working in the state prison system for providing substandard care to female inmates. As a direct result of that poor care, the report said, two women died.
The physician should be permanently barred from treating inmates and reported to the medical board for disciplinary action, wrote the administrator who reviewed the matter.
But more than a year and a half after Dr. Yvon Nazaire was labeled by his employer as a danger to patients, the medical board has yet to discipline him and likely never will, his license untouched because of the board’s cumbersome investigative process and a loophole in state law.
Augusta University's report, prepared in response to an Atlanta Journal-Constitution investigation raising questions about the deaths of inmates in Nazaire's care at Pulaski State Prison and Emanuel Women's Facility, was completed in December 2015.
However, even with the scathing report laying out the doctor’s transgressions, the medical board could not finish its own investigation before Nazaire allowed his license to expire in January of this year.
In some states, physicians can’t avoid sanctions simply because their licenses expire. State laws give those medical boards the power to act. But that’s not the case in Georgia, where a doctor whose license expires is out of the board’s reach.
As a result, Nazaire can seek a medical license in another state with no official government record for the issues that dogged him in Georgia. Indeed, he currently has an application pending in New Jersey, the state where he has long made his home.
"My reaction is outrage," said Terri Trask, whose sister, Sherri Cavender, died of cancer that went undiagnosed for months at Pulaski. "Just because his license expired, why can't you take disciplinary action? He shouldn't get off scot free. He neglected these people."
In an interview with the AJC, the board’s executive director, Bob Jeffery, and his chief deputy, Karl Reimers, said they understand how the result can be seen as unsatisfactory. However, when a physician is no longer licensed, the board has no jurisdiction, they said.
Reimers said the board sent Nazaire correspondence, to which he did not respond. When the doctor’s license expired, the matter became moot, he said.
"There was nothing more the board could do," Reimers said. "The board can't step in and suspend somebody's license that's already lapsed."
Other states differ
An AJC spot check showed at least seven state medical boards have the ability to continue to investigate and sanction doctors when they are no longer licensed.
In Florida, for example, the law says a change in a licensee's status doesn't alter "in any way" the board's power to impose discipline. A similar law is on the books in Ohio.
Ian Marquand, executive director of the medical board in Montana, said doctors in that state remain under board authority for two years after their licenses expire. During that period, complaints can continue to be investigated, he said.
“If a Montana patient says a doctor did `X,’ the complaint would be looked at, even if the doctor’s license expired,” he said.
Some states also file reports with the National Practitioner Data Bank when physicians fail to renew their licenses while under investigation. That's what federal guidelines say state boards should do.
A prime reason the data bank was created by Congress was to provide medical boards and health care providers with key information on physicians, including those who move to other states to avoid discipline.
But the Georgia board did not report Nazaire to the data bank, Reimers said.
“Since Dr. Nazaire’s medical license lapsed, and that is not considered an adverse action, we should not report to the data bank,” he wrote in an email to the AJC.
Augusta University also could have reported Nazaire to the data bank but didn’t do so. The university believed its action did not meet “the threshold for notification,” said spokeswoman Denise Parrish.
Although the data bank’s information isn’t public, had the board or university reported Nazaire, other states would know that he had been under scrutiny when his license expired.
Mark Bowden, the Iowa medical board’s executive director, said a doctor who avoids sanctions in one state isn’t necessarily home free when applying elsewhere. Medical boards have become increasingly savvy at informally sharing non-public investigative information, so even unresolved matters can be considered, he said.
“But you have to be cautious,” he said. “You can’t deny a license based on hearsay.”
`I made a recommendation’
Nazaire's history is, in fact, replete with escapes, starting with his move to Georgia in 2006 after a 20-year career as an emergency room physician in New York.
When the Haitian-born doctor left New York, he had served less than a year of a three-year probation imposed after he agreed to an order citing him for gross negligence in the treatment of five ER patients, one of whom died after he failed to diagnose a heart attack. The order required that his practice be monitored by a state-approved physician.
Typically, a doctor coming to Georgia while under a disciplinary order in another state would receive a similar sanction on his license here. But the board didn’t take that step with Nazaire, granting him a license without restriction.
Quickly hired to work for Georgia Correctional HealthCare, the branch of Augusta University that employs and oversees physicians for the Department of Corrections, Nazaire became the medical director at Pulaski, a facility that serves 1,200 female inmates in Hawkinsville.
He held that position for nine years, often receiving praise from his supervisors for his ability to rein in expenses by limiting outside consultations. But the AJC stories cast serious doubt on his competency as well as the university’s decision to hire him.
The newspaper described how at least nine women in his care suffered agonizing deaths under questionable circumstances. It also found that he lied about his employment history on the resume he submitted when he was hired.
The articles prompted Augusta University, then known as Georgia Regents University, to appoint one of its most respected administrators, Dr. William Kanto, to look into the situation. Kanto’s review led first to Nazaire’s firing for misrepresenting his work history and then the report on his clinical issues.
Kanto, who has served as the chief medical officer for the university’s health system as well as the medical director for Children’s Hospital of Georgia, determined that three of the nine women whose deaths were reported by the AJC received treatment that fell below “community standards.” Most significantly, two died directly as a result of Nazaire’s performance, he determined.
Yet even with the trail blazed by one of the state’s preeminent physicians, the medical board did not act swiftly.
Interviewed recently by the AJC, Kanto said the board contacted the university shortly after Nazaire’s firing in September 2015 to say it would be investigating, but that was the only contact he’s aware of. Even after Kanto finished his report and it became public three months later, the board never reached out to him, he said.
"I exercised my responsibility," he said. "As you saw, I made a recommendation to let the board know, and, as best I can tell, the board knew. So I feel like I did what I was supposed to do as an investigator, a member of society and a physician."
On Jan. 25, 2016, about a month after Kanto’s report became public, the board issued a subpoena to the Department of Corrections seeking the medical records of 12 inmates identified in the AJC’s stories. The department provided the subpoena to the AJC in response to an open records request.
Citing state law that mandates confidentiality by the board on all but final disciplinary orders, neither Jeffery nor Reimers would address the specifics of their inquiry. But they pointed out that, no matter how legitimate another institution’s report may seem, the board must seek its own analysis through peer review.
“Sometimes folks don’t know what they don’t know,” Jeffery said. “It might seem like the board didn’t go out and conduct thorough data gathering. But just because (Kanto) wasn’t aware of (it) doesn’t mean it didn’t happen.”
Even before the university got involved, Nazaire was the subject of a complaint lodged with the medical board by two women who were then students in Emory’s Rollins School Public of Health. But apparently months went by before it drew the board’s attention.
“In reaching out to the Georgia Composite Medical Board, we hope that some action will be taken to investigate these claims to ensure that Georgia citizens, regardless of incarceration status, receive adequate care,” Tiffany Lemon and Sairamya Maddali wrote in an email to the board in April 2015, shortly after the first series of AJC stories about Nazaire appeared.
The board’s director of enforcement at the time, Jennifer Bass, responded to the students an hour later with an email stating that a complaint would be opened.
However, when the students sent Bass another email four months later seeking an update, the administrator replied that she could not find the complaint. Bass speculated that one had not been opened because no physician had been mentioned by name in the students’ initial email.
“If you will submit a complaint with a particular physician identified, we can open a case and pursue,” Bass wrote.
In response, Lemon resent the students’ original email, which specifically referenced the AJC’s articles and the dates they were published.
“I find this to be quite strange,” Lemon wrote in her reply.
Bass said she can’t comment on what occurred because she’s now retired and no longer has the ability to check the board’s computer system.
Lemon, now a doctoral candidate in public health at Harvard, said she still finds it hard to believe that Nazaire avoided sanctions.
"I feel like it was a simple thing," she said. "I'm kind of disappointed in myself, too. Maybe if I had pressed more, more might have been done."
Although Nazaire is out of the Georgia board’s reach, he’s still being pursued by lawyers in the state. Three lawsuits dealing with his treatment of inmates have been filed since 2015. Another is due to be filed shortly, according to a notice of claim recently sent to the state.
For months, lawyers sought unsuccessfully to depose Nazaire, now back in New Jersey, until Peachtree City attorney Brandon Taylor was able to do so in March.
Nazaire testified that he was unaware of Kanto’s recommendation that he be permanently barred from treating Georgia prison inmates. In fact, he said he had no idea who Kanto is. He also claimed to be unaware that his license had expired in Georgia.
“I’m licensed in Georgia, I’m licensed in New York and I’m applying now for my license in New Jersey,” he testified.
Taylor, whose client Kari Quinn alleges she suffers from permanent vision loss in her right eye because Nazaire did not properly address the problem at Pulaski, said he was “terrified” when he heard the 61-year-old doctor say he was seeking a license in New Jersey.
"Based on what's out there in the public domain, it's difficult to understand how this guy could apply to any medical board for a license," Taylor said.
The website for the New Jersey Division of Consumer Affairs, the umbrella agency for the state’s licensing boards, shows that Nazaire’s license is “pending” but offers no other details.
A spokesman for the agency did not respond to an email from the AJC seeking comment on the vetting of potential licensees and Nazaire’s case in particular.
According to the process detailed on the department’s website, applicants must authorize states where they previously held licenses to release all information regarding “actions or pending actions.”
Jeffery and Reimers declined to say whether the board had shared information regarding Nazaire with New Jersey, although they noted that there is nothing in the law to prevent their doing so.
Realize, they said, they are required to follow the law, no matter how that may be perceived.
“The board does care,” Reimers said. “We try to do the right thing. Sometimes that takes longer than it should. Sometimes the outcome isn’t what the public thinks it should be. But we try to do it the right way every time.”