Wisconsin appeals court fixes ruling doctor says caused harm

Posted at 1:10 PM, Aug 15, 2017
and last updated 2017-08-15 14:58:09-04
 MADISON, Wis. (AP) -- A Wisconsin appeals court has taken the unusual step of correcting a ruling after a longtime pediatric allergist said an error in the original opinion implying he was a pedophile caused irreparable personal and professional harm.
The 4th District Court of Appeals issued a ruling on July 20 that said three patients of Dr. Don Bukstein -- who primarily treats children -- alleged he had touched them in a "sexual manner" during an exam or treatment.
But there was no evidence to back that up.
After Bukstein protested, the appeals court revised the ruling Thursday to specify that it was three adult patients and that they had accused him of making "physical contact" with them, removing any reference to the contact being in a "sexual manner."
But Bukstein, who has worked primarily in the Madison area for more than 35 years, said the damage has already been done.
Bukstein cited numerous news accounts of the July ruling, including by The Associated Press, that were published across the country citing the court's incorrect reference to him facing allegations of sexual misconduct.
"The destruction of Dr. Bukstein's professional life has been swift," his attorney Lester Pines told the court in asking for a correction.
Bukstein told the court that the error has led to patients canceling appointments, the loss of speaking engagements and a personal stigma causing his wife to cry nightly. Bukstein said the University of Wisconsin-Madison also asked that he no longer reference the fact that he was a clinical professor there or that he taught medical students and residents for three decades.
Dr. Gary Steven, who hired Bukstein to work for his Milwaukee-based clinic, said his "jaw dropped" when he read press accounts of the ruling that "essentially evokes an image of Dr. Bukstein as a pedophile." Steven said he's under intense pressure to fire Bukstein.
"I believe that my career ... has been functionally ended, causing severe financial distress to me and my family," Bukstein said in a statement to the court submitted along with the request for a correction. "I believe the emotional damage this has caused me and my family is irreparable."
The ruling was written by appeals court judges Paul Lundsten, Brian Blanchard and Gary Sherman. None of them returned messages Tuesday seeking comment. Court spokesman Tom Sheehan said judges are barred from discussing pending cases.
The appeals court ruled against Bukstein in July, saying that Madison-based Dean Health Systems had properly fired him in 2012. Bukstein had worked there since 1981.
The decision overturned a Dane County circuit court's ruling in favor of Bukstein, who had been awarded $2.2 million in 2016 after a jury determined Dean improperly fired him because he wasn't given due process to fight the allegations.
"This case was never about sexual misconduct," Pines wrote in the motion seeking a correction. "By using the phrase `in a sexual manner,' the Court of Appeals placed a `fact' in the record where it had not been before."
The patients complained that Bukstein's groin area had made contact with their legs during the course of a medical exam and that made them uncomfortable. The state Department of Safety and Professional Services investigated and took no action against Bukstein's license, saying there was no evidence his contact was inappropriate or involved sexual gratification.
Pines said Tuesday he worried that the "grotesque error" had an effect on the appeals court siding against Bukstein. He plans to appeal to the Wisconsin Supreme Court.