Tom Foley seems to think that I was playing "fast and loose" with legal terms of art when I suggested - last February - that doctors who passed out sick notes to protesters on the Capitol Square who were not sick were engaged in fraud. He is so sure that he repeats it again and again and again.
In fact, he even suggests that I accused doctors of fraud "even though" there was "no finding of fraud" in a stipulation approved by the Medical Examining Board last week. This suggests that I misrepresented the action of the board. In fact, the post he refers to was written in February and was based on video evidence and press reports (including interviews with the doctors who were writing the notes). I stand by what I wrote (and I'll explain why in a moment) but any suggestion that I misrepresented or ignored a "finding" by the Medical Examining Board is wrong.
Let's review the bidding.
The Medical Examining Board accepted a stipulation (in other words, a settlement) disciplining certain physicians for failure to keep adequate records for those that they gave notes to on the square.
The board did not find, as Foley implies, that the allegations that fake sick notes were written were "baseless." The Chair of the board was quoted as saying that there may be "other issues" but that it was not possible to tell what level of evaluation of the patients was done by the physicians before it. She expressed the view that disciplining the doctors before the board for failure to keep records would be enough to ensure that this would not happen again.
In any event, there was no finding one way or another on fake sick notes because the parties decided not to litigate that. Even if they had, people might well draw different conclusions from whatever facts were presented. So let's proceed to what we know.
I express no opinion on the culpability of any particular doctor. I don't know which doctors wrote fake notes or whether any of the doctors before the board last week did so. Nor do I dismiss the possibility - as unlikely as it might be - that some of the notes written for strangers on the Capitol Square were legitimate, i.e., were written for people who did suffer from a medical condition of sufficient severity that they should not work. There is, moreover, a difference between concluding that some members of a group engaged in certain conduct and which members of the group did it in which cases.
But I have no problem with saying that doctors writing notes stating that persons who were well enough to protest at the Capitol were too ill to come to work were engaged in conduct that fits the legal definition of fraud. I have no problem saying that doctors who wrote notes based on no more than some one's representation that they had called in sick were engaged in conduct that meets the legal definition of fraud.
We usually use the word "fraud" in connection with intentional misrepresentation. (There are circumstances under which one can be liable for negligent or strict liability misrepresentation, but it would be less common to refer to that as "fraud.")
Establishing a claim for intentional misrepresentation requires one to establish that (1) the defendant made a factual representation; (2) which was untrue; (3) the defendant either made the representation knowing it was untrue or made it recklessly without caring whether it was true or false; (4) the defendant made the representation with intent to defraud and to induce another to act upon it; and (5) the plaintiff believed the statement to be true and relied on it to his/her detriment.
Writing a note misrepresenting that people who are both psychologically and physically well enough to stand out in the February cold marching, holding signs and chanting are "sick" and unable to work is a misrepresentation of fact. It seems reasonable to infer (and, in fact, videos taken at the time include admissions) that these notes were intended to be used by the recipient of the note to induce an employer to excuse that person's absence thereby depriving that employer of its contractual right to withhold pay or otherwise enforce contractual rights (by, for example, firing or taking other action with respect to someone who has refused to come to work).
There is video evidence that strongly suggests those things happening. (And it now appears that some of those notes are going to be released.)
There are persons who claim they were given notes without being examined. There is video of at least one doctor basing the length of an "excuse" on how long the patient says she was "sick" and how long "they" were planning "to go" - an apparent reference to her plans to stay out of work "through next Tuesday." There is someone in a lab coat - presumably a doctor - announcing that sick notes are being given to "anyone who needs them" because everyone is "sick of Scott Walker."
There is an example of a "patient" (actually Andrew Breitbart) getting a sick note. When asked whether he would get in trouble if he was "perfectly OK," he is told that he has "Walker pneumonia." (He is given the note without any corroboration of his condition other than his statement that he called in "sick" without even describing what his "illness" may have been.)
There are doctors saying that they are writing excuses for people who "need to be out here"for their mental health or for 'stress." There is another doctor who haltingly says that it is a "socially" OK thing to do because his parents were teachers. Beyond him, we see a line of doctors writing excuses for people who must have come to the Capitol because, hey where else can you get somebody to look at a scratchy throat?
There are persons who say that they, like Breitbart, were given notes without any inquiry as to their condition let alone the type of evaluation you would expect from a physician.
I am hardly the only one who was shocked and dismayed what happened at the Capitol and, in addition to the actions of the Medical Examining Board, some phyicsians have been internally disciplined by the UW.
Now I understand that some of the doctors who wrote the notes seem to think that being upset by the collective bargaining bill is a medical condition that is presumably ameliorated or in some way requires protesting. That doesn't bear scrutiny. While debilitating depression might be a basis for excusing someone from work, that doesn't appear to be the case here. The patients were obviously not "debilitated." That they would prefer - however strongly - protest over work is not the type of medical condition that most all of us - including most doctors - would regard as an illness.
Employers who excuse workers who have doctors' excuses expect that the doctors who write them will adhere to commonly understood meanings of illness and inability to work. They expect those physicians to make medical and not moral or political judgments. They expect physicians to do something other than simply write a note for persons who say they are sick.
And doctors know this. If you don't believe me, ask yourself whether any of these doctors would have written a note stating that Mr. Smith was so upset about a piece of legislation that he could not work and had to protest at the Capitol. And if they had written it, what do you suppose would have happened when Mr. Smith tried to use it.
Having said all of this, I don't think that the doctors should have lost their licenses or been charged with a crime or sued by the employers of those for whom they wrote fake notes. All of that seems disproportionate to me.
But neither do I think we should mince words about what was going on.