September 21, 2007

 Susan E. Gallagher

Re:  Your Open letter to Government Officials of Nevada   

Dear Ms. Gallagher:

            Your letter has been referred to me for response on behalf of the Nevada State Board of Medical Examiners.  I was present when you and your sister, Anne, came before the Board last December and I was, and am, personally saddened by the death of your sister, Ellen, and the anguish being experienced by you and Anne.

 On behalf of our Board, I can tell you that your complaint against Dr. Frank Shallenberger went through the standard process to determine if there had been a violation of any statutes under the Nevada Medical Practice Act found in Nevada Revised Statutes, Chapter 630.  Our process includes review by our investigations department, gathering of all relevant medical records, review by our Medical Review staff, which included a licensed Nevada allopathic physician, and review by one of our investigative committees, which includes two of our licensed physicians.  The decision was made to close your sister’s case because there was not a violation of the statutes we enforce.  It may be that we need more laws, but that is not within our province.

The Board has yet to explain why it  viewed Shallenberger's treatments as homeopathic rather than allopathic, nor has the Board referred to any specific medical records, testimony, or statutes that would support its decision.  Instead, all indications are that nothing other than Shallenberger's unsupported assertions were taken into account.  Note: In line with its primary role in crafting and commenting on regulations related to medical treatment, a Medical Board representative routinely testifies before the state legislature.  Over the past several years, the Board's legislative liaison has generally focused, not on promoting public health and safety, but on legislative efforts to loosen licensing restrictions, lower insurance premiums, and raise licensing fees.  Still, if Nevada needs "more laws" to police unfit physicians, it is the Medical Board's mandated responsibility to devise and promote new legislation.

Although your sister was treated by Dr. Frank Shallenberger, who has been a licensed allopathic physician in Nevada since 1984, he is also licensed as a Homeopathic Physician under the jurisdiction of the Homeopathic Board.  Nevada law requires that all Homeopaths be licensed as an allopathic or osteopathic physician in some jurisdiction. 

If, as the Board contends, allopathic and homeopathic care are entirely separate and independent, why would homeopaths need an allopathic or osteopathic license?

Dr. Shallenberger was acting as a homeopathic physician when he treated your sister, and he was acting under the authority of a person who could, and did, consent to whatever treatments were given.  The facts that your sister had no known diagnoses, and was losing her four-year battle, make it even more difficult to say what medical procedures actually should have been performed.   It is my understanding that unfortunately there had not been any success with medical procedures prior to her treatment by Dr. Shallenberger.

Again, the Board has yet to provide any grounds for its claim that Shallenberger was acting as a homeopath other than assertions he made in response to our complaint.  Moreover, as indicated by other Board actions against Shallenberger, consent is not relevant to determining whether physicians have violated ordinary standards of medical care.  And obviously, neither the absence of a diagnosis nor the outcome of previous treatment permits physicians to break the rules of their profession by injuring patients at will.


Susan E. Gallagher

September 21, 2007

Page 2

  You are correct that Dr. Shallenberger surrendered his license in California in the mid 1990’s.  This Board took action on that fact at the time, but did not address the underlying case as that had occurred in California.

Medical boards routinely address misconduct that occurred in other jurisdictions so as to protect the public from dangerous doctors and avoid creating a refuge for those who have been found unfit to practice elsewhere.  As Dr. Cheryl Hug-English, former head of the Medical Board, observed in commenting on the case of a doctor who opened up shop in California after relinquishing his license to practice in Nevada, "“Surrendering a license while under investigation is the same as a revocation. It surprises me that another state wouldn’t honor that.”

You have also mentioned Dr. Shallenberger’s December 2006 Board appearance to discuss the use of human growth hormone.  You correctly stated that a few doctors present that day said that they preferred to use this substance as recommended by the FDA, however, physicians may use FDA approved substances in off-label manners.  Even the Medical Board in California, with jurisdiction over approximately 125,000 doctors, does not get involved in dictating how FDA-approved substances, like HgH, should be used. 

In fact, the FDA has issued strict guidelines on the use of human growth hormone, and it may never be prescribed in an "off-label" manner to combat aging, as Dr. Shallenberger evidently dispenses it in his practice at the Nevada Center of Alternative and Anti-Aging Medicines.  Moreover, medical boards do get involved in dictating how hGH may be prescribed, as the Nevada Medical Board did in the lead item in its Summer 2006 Newsletter.

             In your letter, you have also referenced Dr. James Forsythe, who is licensed by our Board, as well as the Homeopathic Board.  For the record, the Reno Gazette Journal was incorrect when it said that a state investigator called Dr. Forsythe “one of the five most serious physician offenders in Nevada”.  The person allegedly quoted didn’t make that statement, nor would the Board need such a list.

No support is provided for this assertion, nor is the substance of the comment, which was made in a sworn affidavit, addressed.  Since the Medical Board has failed to act on at least 18 complaints that have been made against Forsythe, could it be that he not among the five worst offenders in Nevada?  If there are many other doctors who have been subject to multiple complaints without eliciting Board action, wouldn't it be wise to keep a list of these problematic physicians?

           Much of your letter is critical of the Nevada State Board of Homeopathic Examiners, and I am not in a position to answer for them, but SB432, Sec. 4 (effective June 13, 2007), has significantly restricted the Nevada Institutional Review Board by listing the quite limited activities in which it may engage.  You have correctly stated that there was an extension of its existence to 2009, but a closer look at the law reveals that the extension is to allow the winding up of contracts, transferring information, etc. 

SB432 specifically authorized the Nevada Institutional Review Board to contract with a private company to carry out studies and other work related to nonembryonic stem-cell research.  Also, since NIRB members have repeatedly insisted that the board has not entered into any contracts, there would be nothing to "wind-up" over the next two years.

             Importantly, SB432 has directed a review of the status and operation of the Board of Homeopathic Medical Examiners, as well as a study of alternative and complementary integrative medicine, and whether there should be a separate regulatory board for same.  There will also be an examination of the use of nonembryonic stem cells in bioregenerative medical technology.  By June 30, 2008, the staff of the Legislative Counsel Bureau must submit its report on these issues to the Legislative Commission, which shall, in turn, submit the results and any recommendations to the 75th session of the Nevada Legislature in 2009.  I believe the correspondence you and your sister, Anne, have provided will be very helpful to this study.

If the Medical Board remains silent on these questions, as it did when the Nevada Institutional Review Board was created in 2005, there is no reason to imagine that the Legislative Counsel Bureau will depart from its tradition of bending over backwards to aid the homeopaths' schemes.

             Our Board does not have any jurisdiction or power over homeopathic physicians or the practice of homeopathy.  I see that you have copied Catherine Cortez Masto, the Nevada State Attorney General on your Open Letter to Nevada State Government Officials.   My suggestion, in light of your frustration with the Homeopathic Board, is that you file a written complaint with her office.  I believe that the Attorney General’s office handles investigations and prosecutions of homeopathic physicians.

Since homeopathic physicians must also be licensed medical doctors, the notion that the Medical Board has no power over them would undermine the Board's statutory authority by depriving it of its ability to supervise its own licensees.  In line with this fundamental premise, there is no provision in Nevada state law that permits the Medical Board to walk away from its mandate to protect the public from unfit doctors.  And if the Medical Board contends that it cannot supervise homeopathic physicians because it has no expertise in this field of medicine, then it would, of course, be impossible for the Board to determine what should or should not be defined as homeopathy.

Keith L. Lee, who represents the Medical Board in the state legislature, underscored the Board's responsibility to supervise all of its licensees, including homeopathic doctors, in recent testimony before the Assembly Committee on Commerce and Labor:


Susan E. Gallagher

September 21, 2007

Page 3


I do thank you for writing and hope that I have answered your questions with regard to the Board of Medical Examiners. 




Bonnie Brand

General Counsel


C:   Jim Gibbons, Governor of the State of Nevada


The Medical Board needs to review its legislative mandate:

1.  The Legislature finds and declares that:

      (a) It is among the responsibilities of State Government to ensure, as far as possible, that only competent persons practice medicine and respiratory care within this State;

      (b) For the protection and benefit of the public, the Legislature delegates to the Board of Medical Examiners the power and duty to determine the initial and continuing competence of physicians, physician assistants and practitioners of respiratory care who are subject to the provisions of this chapter;

      (c) The Board must exercise its regulatory power to ensure that the interests of the medical profession do not outweigh the interests of the public;

      (d) The Board must ensure that unfit physicians, physician assistants and practitioners of respiratory care are removed from the medical profession so that they will not cause harm to the public; and

      (e) The Board must encourage and allow for public input into its regulatory activities to further improve the quality of medical practice within this State.

      2.  The powers conferred upon the Board by this chapter must be liberally construed to carry out these purposes for the protection and benefit of the public.

      (Added to NRS by 1975, 411; A 1977, 820; 1985, 2224; 1987, 729; 2001, 759; 2003, 3430)


The Board also needs to pay attention to its own conclusions, as evidenced in this discussion at a retreat held, for some reason, at the Hyatt Regency in San Francisco on May 2, 200:

Retreat excerpt

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