Bernard J. Burke, M.D., CR No. 406 (1995)

$05:Exclusion Case

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:

Bernard J. Burke, M.D.,

Petitioner,

- v. -

The Inspector General.

DATE: December 8, 1995
Docket No. C-94-380
Decision No. CR406

DECISION

The Notice stated that IPRO based its recommendation that
Petitioner be excluded for five years on its determination that, in
a substantial number of cases, Petitioner failed substantially to
comply with the obligations imposed on him by section 1156(a) of
the Act. This determination derived from IPRO's findings that in
20 cases, Petitioner substantially violated the obligations imposed
on him by section 1156(a) of the Act.
The Notice stated that, after careful review of all the evidence of
record, including rebuttal information submitted by Petitioner, the
I.G. agreed with IPRO's findings that, in a substantial number of
cases, Petitioner substantially violated his obligations under
section 1156(a) of the Act. Of the 20 cases identified by IPRO,
the I.G. agreed with IPRO's findings in 14 cases. The I.G.
determined that 11 of the 14 cases involved violations of the
obligation to provide care of a quality that meets professionally
recognized standards of health care 2/ and that three of the 14
cases involved violations of the obligation to provide appropriate
evidence of medical necessity and quality in a form and fashion as
may be required.

Additionally, the I.G. determined that Petitioner has demonstrated
an unwillingness and an inability substantially to comply with the
obligations imposed on him by section 1156(a) of the Act. The I.G.
alleged that this is demonstrated by the seriousness and
multiplicity of problems with Petitioner's care as identified by
IPRO.
In addition, the I.G. stated that a corrective action plan (CAP)
established in 1989, and an education intervention undertaken in
1990, had not altered Petitioner's pattern of practice. 3/

The Notice stated also that, in arriving at the determination to
exclude Petitioner for a period of five years, the I.G. had
considered specific factors in accordance with 42 C.F.R.
1004.90(d). 4/

Petitioner requested a hearing and the case was assigned to me for
hearing and decision. By letter dated August 31, 1994, the I.G.
stated that the best evidence available indicated that the
population of the county in which Petitioner practices medicine is
less than 70,000. Therefore, before an exclusion could be
effected, Petitioner was entitled to a preliminary hearing on the
issue of whether he poses a serious risk to the welfare of program
beneficiaries and recipients. Based on this, the I.G. informed
Petitioner that the I.G. was reinstating Petitioner's eligibility
to be reimbursed for items and services provided to program
patients, retroactive to May 23, 1994. 5/

I held a hearing in New York, New York, from February 14 through
16, 1995. The parties agreed that the hearing should consolidate
the taking of evidence as to the issues of serious risk, the
authority of the I.G. to exclude Petitioner pursuant to section
1156 of the Act, and the reasonableness of the length of the
exclusion which the I.G. imposed on Petitioner. The parties agreed
to address these issues also in posthearing briefs.

The parties submitted posthearing briefs, response briefs, and
reply briefs. In addition, I notified the parties that I would
take judicial notice of the Merck Manual, an authoritative medical
treatise, in considering certain issues in this case. The parties
submitted supplemental briefs on the applicability of information
contained in the Merck Manual to issues in this case.

The I.G. did not offer any evidence pertaining to Case # 10,
referred to at page four of the Notice, nor did the I.G. make any
arguments pertaining to this case in the posthearing submissions.
Accordingly, my decision is based on the evidence and arguments
pertaining to the 13 other cases referred to in the Notice.

I have considered carefully the applicable law, the evidence
adduced at the hearing, and the arguments raised by the parties.
I conclude that the I.G. proved that authority exists under section
1156 of the Act to exclude Petitioner from participation in
Medicare and Medicaid. I conclude also that the five-year
exclusion is reasonable. Lastly, I conclude that Petitioner poses
a serious risk to program beneficiaries and recipients within the
meaning of section 1156(b)(5) of the Act.
In order to allow time for receipt and implementation of this
decision, the exclusion will become effective 20 days after the
date of this decision.

FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCLs) 6/

Petitioner's professional background

1. Petitioner graduated from Syracuse Medical School in 1943.
I.G.'s Exhibit (I.G. Ex.) 6 at 6.

2. Petitioner has been licensed to practice medicine in the State
of New York since 1943. Tr. at 183 - 184.

3. Upon graduating from medical school, Petitioner was an intern
at Methodist Hospital in Brooklyn, New York. Tr. at 184.

4. After completing his internship, Petitioner served in the
military. Following his military service, Petitioner completed two
years of postgraduate training in general pathology at Methodist
Hospital. I.G. Ex. 6 at 6; Tr. at 184.

5. Petitioner is not board-certified in any specialty. I.G. Ex.
6 at 6.

6. Petitioner has practiced general medicine in Little Falls, New
York continuously from approximately 1947. Tr. at 184 - 185.

7. Petitioner is affiliated with Little Falls Hospital in Little
Falls, New York. Tr. at 184.

Procedural history

8. The duties of a PRO under contract with the Secretary of the
United States Department of Health and Human Services (the
Secretary or DHHS) include reviewing the professional activities of
physicians for the purpose of determining whether the quality of
services that physicians provide to program beneficiaries and
recipients meets professionally recognized standards of health
care. Act, section 1154(a)(1)(B).

9. In December of 1988, the Empire State Medical, Scientific and
Educational Foundation, Inc. (ESMSEF) was under contract with the
Secretary to be a PRO in the State of New York. Petitioner's
Exhibit (P. Ex.) 14.

10. On December 15, 1988, ESMSEF notified the I.G. that Petitioner
had grossly and flagrantly violated his obligations under section
1156 of the Act and recommended that Petitioner be permanently
excluded. P. Ex. 14.

11. The I.G. determined that there was insufficient evidence to
support ESMSEF's recommendation. The I.G. returned the case to
ESMSEF without prejudice. P. Ex. 14.

12. On June 16, 1989, ESMSEF issued an initial sanction notice
advising Petitioner that it had made an initial determination that
Petitioner had failed to comply substantially with his obligations
under section 1156 of the Act in 14 cases. ESMSEF offered
Petitioner the opportunity to provide additional information to
ESMSEF and to participate in a meeting with representatives of
ESMSEF. I.G. Ex. 7.

13. Petitioner met with representatives of ESMSEF on August 17,
1989. Petitioner was represented by counsel at this meeting. I.G.
Ex. 8.

14. During the August 17, 1989 meeting, Petitioner and ESMSEF
agreed that Petitioner would participate in a CAP. The CAP had
three elements: (1) ESMSEF would review all of Petitioner's
hospital admissions for the previous three-month period; (2)
Petitioner would take a continuing medical education (CME) course
approved by ESMSEF; and (3) Petitioner would improve the quality of
his documentation. I.G. Ex. 8, 9.

15. On approximately December 1, 1989, IPRO was awarded the New
York State PRO contract. As a result of this contract, IPRO
assumed responsibility for monitoring the implementation of
Petitioner's CAP. Tr. at 25 - 26; I.G. Ex. 10.

16. By letter dated January 29, 1990, IPRO asked Petitioner to
report on his progress in complying with the CAP requirement that
he take a CME course. I.G. Ex. 10.

17. By letter dated March 29, 1990, IPRO acknowledged that it had
received Petitioner's response to its request for information
regarding Petitioner's CME compliance. IPRO informed Petitioner
that it would review all of Petitioner's Medicare medical records
for a period of three months. P. Ex. 15.

18. By letter dated October 1, 1990, IPRO instituted an
educational intervention. IPRO asked Petitioner to provide
information regarding the educational program established at Little
Falls Hospital and stated that it would evaluate the information to
ascertain whether the program met IPRO's educational intervention
requirements. I.G. Ex. 31 at 65.

19. By letter dated October 10, 1990, the administrator of Little
Falls Hospital provided information regarding the hospital's
efforts to fulfill IPRO's educational intervention requirements for
Petitioner. The hospital administrator reported that the hospital
had purchased tapes produced by the Network for Continuing Medical
Education Program, that Petitioner was watching these tapes, and
that a hospital secretary would keep a record of the tapes which
Petitioner watched. I.G. Ex. 31 at 64.

20. By letter dated October 19, 1990, Petitioner agreed to enter
into the educational intervention program. I.G. Ex. 14 at 3.

21. By letter dated January 18, 1991, IPRO informed Petitioner
that IPRO accepted the educational intervention program that had
been submitted. IPRO requested Petitioner to submit documentation
on a monthly basis listing the CME programs he completed. I.G. Ex.
31 at 63.

22. Petitioner subsequently submitted to IPRO regular reports on
the CME tapes he watched and the CME lectures and conferences he
attended. I.G. Ex. 31.

23. On June 19, 1992, IPRO issued an initial sanction notice
advising Petitioner that it had made an initial determination that
Petitioner had failed to comply substantially with his obligations
under section 1156 of the Act in 26 new cases. IPRO offered
Petitioner the opportunity to provide additional information to
IPRO and to participate in a meeting with representatives of IPRO.
I.G. Ex. 11.

24. By letter dated August 7, 1992, IPRO informed Petitioner that
its continuing review of Petitioner's cases revealed additional
cases in which Petitioner failed to substantially comply with his
obligations. I.G. Ex. 14 at 1.

25. In view of the continuing deficiencies in Petitioner's medical
care identified by IPRO, IPRO made the decision to withdraw its
June 19, 1992 initial sanction notice and to proceed directly to a
second sanction notice. I.G. Ex. 14 at 1, 4, I.G. Ex. 15 at 13.

26. On August 7, 1992, IPRO issued a second sanction notice
advising Petitioner that there was a reasonable basis for
determining that Petitioner had failed to substantially comply with
his obligations under section 1156 in a substantial number of
cases. IPRO identified 24 cases which formed the basis for this
determination. IPRO offered Petitioner the opportunity to provide
additional information to IPRO and to participate in a meeting with
representatives of IPRO. I.G. Ex. 14.

27. By letter dated October 6, 1992, IPRO notified Petitioner that
it was adding another case to the 24 cases identified in the August
7, 1992 second sanction notice. I.G. Ex. 15 at 2 - 12.

28. Petitioner met with representatives of IPRO on November 10,
1992. Petitioner was represented by counsel at this meeting. I.G.
Ex. 6.

29. On December 18, 1992, IPRO's Board of Directors voted to
recommend to the I.G. that Petitioner be excluded for five years.
I.G. Ex. 1 at 2.

30. On January 26, 1993, IPRO issued a final sanction notice
advising Petitioner that it had determined that Petitioner had
failed to comply substantially with
his obligations in 23 cases and that it had recommended to the I.G.
that Petitioner be excluded for five years. P. Ex. 16.

31. In a letter to IPRO dated March 31, 1993, the I.G. determined
that IPRO failed to follow regulatory requirements, because it had
not provided Petitioner with three notices and two hearings on the
same cases. Based on this procedural defect, the I.G. returned
IPRO's recommendation without prejudice. I.G. 1 at 2.

32. On June 4, 1993, IPRO issued a second sanction notice advising
Petitioner that it had reviewed the additional information provided
by Petitioner in response to the August 7, 1992 notice, and that
this information did not modify IPRO's determination that there was
a reasonable basis to conclude that Petitioner has failed to
substantially comply with his obligations under section 1156 in a
substantial number of cases. IPRO offered Petitioner the
opportunity to provide additional information to IPRO and to
participate in a meeting with representatives of IPRO. I.G. Ex. 2.

33. IPRO identified 20 cases which formed the basis for its June
4, 1993 notice. All 20 of these cases were
identified also in the August 7, 1992 notice. I.G. Ex. 2.

34. Petitioner met with representatives of IPRO on September 28,
1993. Petitioner was represented by counsel at this meeting. I.G.
Ex. 3.

35. On December 20, 1993, IPRO's Board of Directors again voted to
recommend to the I.G. that Petitioner be excluded for five years.
I.G. Ex. 1 at 10.

36. On January 13, 1994, IPRO issued a final sanction notice
advising Petitioner that it had determined that Petitioner had
failed to comply substantially with his obligations under section
1156 of the Act in 20 cases and that it had recommended to the I.G.
that Petitioner be excluded for five years. I.G. Ex. 1 at 4 - 8.

37. IPRO advised Petitioner that, within 30 days from his receipt
of the final sanction notice letter dated January 13, 1994, he
could submit to the I.G. any additional information he had which
could affect IPRO's recommendation. I.G. 1 at 8.

38. On February 16, 1994, Petitioner submitted rebuttal
information to the I.G., which the I.G. considered as part of the
final exclusion determination in this case. I.G. Ex. 31; Notice at
2.

39. On May 3, 1994, the I.G. advised Petitioner that the I.G.
accepted IPRO's determination that Petitioner had substantially
violated his obligations under section 1156(a) of the Act in a
substantial number of cases. Notice at 1.

40. The I.G. concluded that in 11 cases Petitioner had failed to
provide care that met professionally recognized standards of health
care. The I.G. concluded also that in three cases Petitioner had
failed to provide appropriate evidence of medical necessity and
quality in a form and fashion as may be required. Notice at 9.

41. The I.G. concluded further that Petitioner demonstrated an
unwillingness and inability substantially to comply with the
obligations imposed by section 1156(a) of the Act. Notice at 7.

42. The I.G. determined to exclude Petitioner from participation
in Medicare and Medicaid for five years, pursuant to section
1156(b)(1) of the Act. Notice at 8, 10.

Right to a hearing

43. A party who is subject to an exclusion determination pursuant
to section 1156(b)(1) of the Act is entitled to an administrative
hearing. Act, section 1156(b)(4).

44. Petitioner's right to a hearing is a right to a de novo
hearing. Act, sections 1156(b)(4) and 205(b).

45. The exclusion imposed by the I.G. must be supported by the
preponderance of the evidence. S. Khalid Hussain, M.D., DAB CR204
(1992).

The I.G.'s authority to impose an exclusion

46. A provider of care is obligated to assure that items or
services which he or she provides to program beneficiaries and
recipients are:

a. provided economically and only when, and to the extent,
medically necessary;

b. of a quality which meets professionally recognized
standards of health care; and

c. supported by evidence of medical necessity and quality in
such form and fashion and at such time as may reasonably be
required by a reviewing PRO in the exercise of its duties and
responsibilities.

Act, section 1156(a).

47. The Secretary, or her delegate, the I.G., may exclude a
provider where, based on the recommendation of a PRO, she or the
I.G. determines that the provider has, in a substantial number of
cases, substantially violated his or her obligations under section
1156(a) of the Act, and where that provider is unable or unwilling
substantially to comply with his or her statutory obligations.
Act, section 1156(b)(1).

Acts or omissions by Petitioner related to his obligations under
section 1156 of the Act on which the I.G. based the determination
to exclude Petitioner

Patient 031409 7/ (Discussion begins on page 42)

48. Patient 031409, a 73-year old female, presented to Little
Falls Hospital on July 29, 1991, with back and shoulder pain that
had lasted for several hours. I.G. Ex. 16 at 9, 13.

49. The patient was admitted to the hospital for observation, with
admitting diagnoses of arteriosclerotic heart disease, possible
anginal syndrome, and diabetes mellitus with diabetic retinopathy.
I.G. Ex. 16 at 11.

50. A gallbladder sonogram was done to rule out gallbladder colic
as a cause of the patient's recurrent pain. I.G. Ex. 16 at 10.

51. The sonogram of the patient's gallbladder revealed evidence of
cholelithiasis (gallstones) with thickened gallbladder walls
suggesting cholecystitis (gallbladder infection). I.G. Ex. 16 at
59; Tr. at 39 - 40.

52. Petitioner's discharge diagnosis for this patient was thoracic
pain, probably secondary to cholecystolithiasis. I.G. Ex. 16 at 7,
10.

53. Cholecystolithiasis is a term which refers to the presence of
gallstones and the thickening of the gallbladder wall. Tr. at 409.

54. Professionally recognized standards of care for a physician
presented with a sonogram indicating possible gallbladder disease
would require the physician promptly to order tests to determine
the patient's complete blood count (CBC), and levels of serum
amylase, alkaline phosphatase, bilirubin, and transaminase (also
referred to as SGOT). Tr. at 39, 43, 310 - 311, 315 - 316.

55. The CBC would show whether the patient's white blood cell
count was elevated, which might indicate ascending cholangitis,
that is, that the infection from the gallbladder has traveled up
the common bile duct, and is in the liver. Tr. at 42 - 43.

56. Abnormal bilirubin and transaminase results would be
indicators of jaundice or liver damage. Tr. at 43.

57. The alkaline phosphatase level would indicate whether there is
an obstruction in the patient's common bile duct. Tr. at 43.

58. The serum amylase would indicate whether the patient is
suffering from acute pancreatitis, which may be associated with
cholecystitis. Tr. at 43.

59. During the patient's July 29, 1991 hospitalization, Petitioner
did not order a CBC, nor tests to determine levels of serum
amylase, alkaline phosphatase, bilirubin, or transaminase. See
I.G. Ex. 16 at 2, 4.

60. Petitioner testified that he did not order the blood tests for
this patient because he concluded that the sonogram results and his
physical examination of the patient, which did not reveal local
abdominal pain, led him to conclude that the patient's gallbladder
disease was chronic, rather than acute, and was not likely the
cause of her pain. Tr. at 334 - 335.

61. Petitioner did not note in the patient's medical record his
reasons for concluding that her gallbladder disease was likely
chronic and, thus, that there was no need for additional laboratory
tests. Tr. at 408. See also I.G. Ex. 16.

62. Petitioner's failure to note in the medical record his reasons
for concluding that further laboratory tests were unnecessary was
not in accord with professionally recognized standards of health
care. Tr. at 405 - 407.

63. Petitioner's testimony that the patient's gallbladder disease
was not likely the cause of her pain is inconsistent with his
discharge diagnosis of thoracic pain, probably secondary to
cholecystolithiasis. I.G. Ex. 16 at 7.

64. Petitioner's testimony that the patient's gallbladder disease
was not likely the cause of her pain is inconsistent with his
statement to IPRO on November 10, 1992, that the patient's pain was
consistent with gallbladder colic. I.G. Ex. 6 at 13.

65. Petitioner's expert testified that the patient had no clinical
symptoms referable to her gallbladder. Tr. at 405.

66. The testimony of Petitioner's expert is entitled to little
weight because it is contradicted by the patient's medical record
and by Petitioner's statement to IPRO.

67. During a previous admission, on July 25, 1991, Petitioner
ordered a CBC and SGOT for this patient, the results of which were
within normal limits. In addition, bilirubin results were
negative. P. Ex. 48 at 1, 3; Tr. at 339 - 340.

68. The test results for the July 25, 1991 admission do not
indicate that any tests were done to ascertain the patient's serum
amylase or alkaline phosphatase levels. P. Ex. 48; Tr. at 341 -
342.

69. There is no indication in the patient's medical record that
Petitioner relied on the test results from the July 25, 1991
admission in determining not to repeat the tests done during the
July 29, 1991 admission. I.G. Ex. 16; Tr. at 342.

70. In his initial written response to IPRO, Petitioner did not
claim to have relied on test results from a previous admission in
deciding not to order tests during the patient's July 29, 1991
admission. I.G. Ex. 16 at 4.

71. Petitioner's failure to cross-reference the patient's previous
admission leaves me with no basis to conclude that her condition
remained unchanged from the previous admission.

72. Petitioner consulted a gastroenterologist regarding the
treatment of this patient. I.G. Ex. 16 at 20 - 21; Tr. at 312.

73. The gastroenterologist's report does not mention gallbladder
disease as a possible diagnosis. Tr. at 312; I.G. Ex. 16 at 21.

74. At the November 10, 1992 meeting with IPRO, Petitioner stated
that he recalled that he had consulted the gastroenterologist
before he defined gallstones. I.G. Ex. 6 at 15.

75. At the hearing before me, Petitioner could not recall whether
he discussed the findings of the gallbladder sonogram with the
gastroenterologist. Tr. at 333.

76. A consulting gastroenterologist would be expected to comment
in the consultation report on the results of a gallbladder sonogram
if the consultant were aware of such results. Tr. at 314.

77. It is more likely than not that the consulting
gastroenterologist was not aware of the results of this patient's
gallbladder sonogram when he dictated his consultation report. Tr.
at 312.

78. The fact that the consulting gastroenterologist did not
suggest a diagnosis of gallbladder disease in his report did not
relieve Petitioner of the duty to obtain the required blood tests
or, at a minimum, to discuss the need for such tests with the
gastroenterologist. Tr. at 313 - 315.

79. Petitioner's failure to obtain the patient's CBC, and blood
levels of serum amylase, alkaline phosphatase, bilirubin, and
transaminase during the July 29, 1991 admission was a substantial
violation of his obligation to provide care of a quality that meets
professionally recognized standards of health care.

Patient 031943 (Discussion begins on page 47)

80. Patient 031943, a 67-year-old female, was admitted to Little
Falls Hospital on August 27, 1991, with a complaint of chest
pressure. I.G. Ex. 17 at 13, 15.

81. The patient had a family history of stomach cancer. I.G. Ex.
17 at 13.

82. The results of blood tests performed at the time this patient
was admitted to the hospital in 1991 met the criteria for a
diagnosis of anemia. I.G. Ex. 17 at 15; Tr. at 77.

83. Physical examination at the time of admission revealed the
stools to be dark and to be "4+" for blood. The "4+" result is
strongly positive for bleeding. I.G. Ex. 17 at 15; Tr. at 288 -
290.

84. On August 29, 1991, the patient was transfused with two units
of blood, in response to the anemia. I.G. Ex. 17 at 33; Tr. at
347.

85. On September 1, 1991, the stools were "+1" for blood. This
result indicated that the bleeding had essentially stopped. I.G.
Ex. 17 at 34; Tr. at 436 - 437.

86. On September 3, 1991, a colonoscopy was performed on the
patient. The colonoscopy examined the patient's anus, rectum,
colon and cecum. I.G. Ex. 17 at 31.

87. The consulting physician who performed the colonoscopy
diagnosed diverticulosis of the sigmoid colon. No other lesion was
identified. I.G. Ex. 17 at 31.

88. The patient was discharged on September 3, 1991. Petitioner's
final diagnosis was anemia secondary to bleeding from a hiatus
hernia. Petitioner based this diagnosis on the fact that the
patient had the same condition approximately three years earlier.
I.G. Ex. 17 at 4, 11 - 12; Tr. at 349 - 350.

89. At the time of discharge, Petitioner recommended that the
patient be observed over a period of time. In addition, he
instructed her to lose weight, to elevate the head of her bed, and
to take medication (Zantac and Maalox). I.G. Ex. 17 at 12.

90. The presence of darkened stool suggests bleeding from the
upper gastrointestinal (GI) tract. The darkened stool is caused by
blood from the upper GI tract that has been digested by bacteria in
the gut. Tr. at 290, 412.

91. There are many possible causes of upper GI bleeding. Tr. at
290.

92. Professionally recognized standards of care for a patient with
an unexplained upper GI bleed requires that a physician perform
either an endoscopy or an upper GI series, provided that neither is
contraindicated for the patient. Tr. at 78 - 79, 290, 297.

93. An endoscopy (also known as an esophagogastroduodenoscopy) is
a diagnostic procedure which involves placing a tube down the
esophagus and then passing it under direct vision into the stomach.
It can be used to rule out the presence of an ulcer, cancer of the
stomach or esophagus, gastritis in the stomach, or esphogeal
varices. Tr. at 81 - 83; I.G. Ex. 33.

94. An upper GI series involves the patient taking a barium
swallow followed by an x-ray. The upper GI series is not as
accurate as an endoscopy, but it is a viable alternative for
diagnosing the cause of an upper GI bleed. Tr. at 83, 89 - 90,
291.

95. The patient did not have any contraindications for either an
endoscopy or an upper GI series. Tr. at 298.

96. Petitioner did not obtain an endoscopy or an upper GI series
in the course of evaluating the patient. I.G. Ex. 17.

97. Petitioner's failure to obtain an endoscopy or an upper GI
series to investigate an upper GI bleed is a substantial violation
of professionally recognized standards of care.

98. Petitioner's failure to obtain an endoscopy or an upper GI
series exposed the patient to the serious risk of having a gastric
malignancy go undetected and untreated. It exposed her also to the
serious risk of rebleeding. Tr. at 292.

Patient 039837 (Discussion begins on page 53)

99. Patient 039837, an 89-year-old female, had been a long-term
patient in the chronic care ward of Little Falls Hospital. On
September 28, 1991, she was transferred to the active floor of the
hospital due to a serious change in her condition. At the time of
the transfer, she had a temperature of 104, some cough, and ongoing
diarrhea. I.G. Ex. 18 at 4, 11, 14, 16.

100. At the time of her initial examination, the patient was very
ill. Her skin was mottled, as if she was about to die, and she was
bathed in cold perspiration. She was unresponsive. Tr. at 211 -
212.

101. Petitioner diagnosed her as being in a septic state. He also
diagnosed possible pneumonia or enteritis, acute, with vascular
collapse. I.G. Ex. 18 at 14.

102. Petitioner did not take a urine culture. However, he did
take blood and sputum cultures. I.G. Ex. 18 at 5.

103. Results of a chest x-ray taken on September 28, 1991 revealed
a large amount of fluid in the patient's right chest. I.G. Ex. 18
at 4, 48; Tr. at 213.

104. On September 28, 1991, Petitioner performed a thoracentesis,
a procedure that involves inserting a needle in the chest cavity to
remove the accumulation of fluid. I.G. Ex. 18 at 12; Tr. at 95.

105. The thoracentesis was accomplished with difficulty, since the
patient could not sit up due to the fact that she had no palpable
blood pressure. In order to perform the procedure, it was
necessary for her to be placed with her right side down and her
head slightly elevated. I.G. Ex. 18 at 4.

106. A follow-up chest x-ray was not taken until the day following
the thoracentesis. Tr. at 103, 215.

107. A chest x-ray taken on September 29, 1991 revealed a
pneumothorax, which is air in the chest cavity. The bottom half of
the patient's right lung was collapsed. The upper lobe of the
right lung adhered to the chest wall. Tr. at 95, 215; I.G. Ex. 18
at 12, 49.

108. On October 1, 1991, a chest x-ray was taken which revealed
that the patient's right chest had again filled up with fluid. Tr.
at 217; I.G. Ex. 18 at 50.

109. On October 1, 1991, Petitioner performed a second
thoracentesis. A chest tube was inserted which drained fluid for
a few days. I.G. Ex. 18 at 12; Tr. at 217 - 218.

110. As a result of the chest tube, the patient's lung re-expanded
and the pleural effusion decreased. I.G. Ex. 18 at 4, 51.

111. On October 4, 1991, the patient died. I.G. Ex. 18 at 13.

112. Professionally recognized standards of care require a chest
x-ray to be taken immediately after a thoracentesis is performed.
The reason for taking a chest x-ray immediately after a
thoracentesis is to ascertain whether all the fluid is removed from
the chest and whether the thoracentesis damaged the lung. Tr. at
96, 466 - 467.

113. Petitioner's failure to obtain a chest x-ray immediately
after the September 28, 1991 thoracentesis was a substantial
violation of his obligation to provide care in accordance with
professionally recognized standards of care.

114. Petitioner's delay in obtaining a chest x-ray after the
September 28, 1991 thoracentesis delayed diagnosis and put the
patient at serious risk for developing complications related to her
ability to breathe. Tr. at 96 - 99.

115. Professionally recognized standards of care require a urine
culture be taken of a patient who is in a septic state. I.G. Ex.
18 at 5; Tr. at 462.

116. Petitioner admits that his failure to obtain a urine culture
was an oversight. I.G. Ex. 18 at 5.

117. Petitioner's failure to obtain a culture of this patient's
urine was a substantial violation of professionally recognized
standards of care for a septic patient.

Patient 058705 (Discussion begins on page 59)

118. Patient 058705, a 73-year-old male, was admitted to Little
Falls Hospital on July 8, 1991, after having been found lying on
the floor of his apartment. I.G. Ex. 19 at 12 - 13.

119. At the time of admission, Petitioner noted that the patient
had blisters on his buttocks. Petitioner attributed this to the
fact that the patient had been on the floor of his apartment for a
considerable period of time. I.G. Ex. 19 at 14, 25.

120. Examination revealed that the patient had a considerable
amount of dried feces around the rectum and the patient's family
reported that he had a history of incontinence of the bowel. I.G.
Ex. 19 at 16.

121. Petitioner stated in the admission report that the patient's
incontinence was probably explained by chronic impaction.
Petitioner stated also that the patient probably had chronic
organic brain syndrome. I.G. Ex. 19 at 17.

122. The nursing notes written on the date of admission describe
the patient's buttocks as reddened with skin breakdown. I.G. 19 at
54.

123. On July 11, 1991, Petitioner's progress notes indicated that
the patient's cellulitis had gotten smaller. The nursing notes of
that date described the patient's lesion on his left buttock as a
yellow central area surrounded by a red area six inches in diameter
and indicated that there was no drainage. I.G. Ex. 19 at 26, 60.

124. On July 12, 1991, the nursing notes reported that the lesion
on the left buttock was smaller and less red than it had been on
July 11, 1991. I.G. Ex. 19 at 62.

125. On July 15, 1991, the nursing notes reported that the skin
lesion was much smaller than it had been on July 12, 1991. The
notes stated that it was a small open area near a large white patch
surrounded by a small red margin. I.G. Ex. 19 at 68.

126. On July 16, 1991, Petitioner's progress notes described the
skin lesion as healing and indicated that it was about six
centimeters in size. The nursing notes of that dated described the
lesion as yellow with dry skin at the margins. I.G. Ex. 19 at 26,
70.

127. On July 21, 1991, the nursing notes stated that the skin
lesion was healing and that it was clean with clear edges. I.G. 19
at 80.

128. On July 22, 1991, the nursing notes described the lesion as
an open area with a small amount of yellow drainage. I.G. Ex. 19
at 82.

129. On July 23, 1991, the nursing notes described a small amount
of red drainage. I.G. Ex. 19 at 84.

130. On July 24, 1991, the nursing notes stated that there was no
change in the patient's skin lesion. I.G. Ex. 19 at 86.

132. On July 30, 1991, the nursing notes stated that the skin
lesion appeared to be healing, and described it as an open area.
I.G. Ex. 19 at 98.

133. On July 31, 1991, the nursing notes described the lesion as
a dry, open area and indicated that the patient did not complain of
pain. I.G. Ex. 19 at 103.

134. On July 31, 1991, Petitioner telephoned an order that the
patient's skin lesion be treated with Neosporin, a topical
antibiotic. I.G. Ex. 19 at 24; Tr. at 261.

135. On August 2, 1991, the patient was discharged to the County
Home for ongoing care. I.G. Ex. 19 at 13, 15.

136. Petitioner's final diagnoses included cellulitis of the
buttock and decubitus ulcer. I.G. Ex. 19 at 10.

137. The patient's discharge instructions included application of
Neosporin ointment to the buttock. I.G. Ex. 19 at 107.

138. The July 8, 1991 nursing notes indicated that the nurses
moved the patient from side to side at regular intervals. The
patient was ambulating by July 10, 1991, and the nurses encouraged
him to ambulate regularly after that. The nurses applied "A&D"
ointment repeatedly, changed his linens when they were wet, and
monitored his eating throughout his hospital stay. I.G. Ex. 19 at
54 - 103.

139. A decubitus ulcer is an erosion or ulceration of tissue that
has been subjected to prolonged pressure. Tr. at 255.

140. The stages of decubitus ulcer formation correspond to tissue
layers. The first stage consists of skin redness that disappears
on pressure. The second stage shows redness, edema, and
induration, at times with blistering. In the third stage, the skin
becomes necrotic, with exposure of fat. In the fourth stage,
necrosis extends to the muscle. Further fat and muscle necrosis
characterizes the fifth stage. In the sixth stage, bone
destruction begins. Merck Manual (15th ed. 1987) at 2298.

141. This patient had an ulceration of tissue that was caused by
prolonged pressure. I.G. Ex. 19 at 14, 25.

142. This patient had a decubitus ulcer.

143. Professionally recognized standards of care require an
attending physician to initiate a written plan of care to address
skin conditions caused by prolonged pressure. Tr. at 255, 272.

144. The only written documentation of a physician order
pertaining to the treatment of this patient's skin condition was
made on July 31, 1991, when Petitioner telephoned an order for
Neosporin. I.G. Ex. 19 at 24.

145. Petitioner admits, and I find, that this patient's chart does
not contain a written plan of care to address the treatment of the
patient's skin condition. Tr. at 486, 489 - 490.

146. Petitioner's failure to document a plan of care to address
this patient's skin condition is a substantial violation of
professionally recognized standards of care.
147. There is no indication in this patient's chart that
Petitioner instructed the nurses orally to take specific measures
to care for this patient's skin condition. I.G. Ex. 19.

148. Petitioner's unsubstantiated testimony that he initiated a
plan of care orally to address this patient's skin condition is not
credible.

149. Petitioner's failure to initiate a plan of care orally to
address this patient's skin condition is a substantial violation of
professionally recognized standards of care.

150. Petitioner was informed about this patient's skin condition,
and he participated in the treatment of it. I.G. Ex. 19 at 24 -
27.

151. While the patient's skin condition did not heal completely
during the course of his hospital stay, there were documented
periods of improvement. At no point did the condition progress to
the stage where it affected muscle and bone tissue. I.G. Ex. 19.

152. The fact that this patient was continually soiling himself
could hinder the quick healing of this patient's skin condition.
Tr. at 263, 580.

153. Dr. Kops' testimony that the care received by this patient
hampered the healing of his skin condition is not persuasive. Tr.
at 258, 262, 274.

154. The weight of the evidence fails to establish that the
patient suffered any adverse consequences as a result of
Petitioner's care of the patient's skin condition.

Patient 032141 (Discussion begins on page 67)

155. Patient 032141, a 70-year-old female, was admitted to Little
Falls Hospital on July 25, 1991. The patient's chief complaint
was intractable pain of the left lateral thigh of two weeks'
duration. I.G. Ex. 20 at 14 - 15.

156. The patient had a history of recurrent pains in the abdomen
and chest of an unknown etiology. In addition, she had a history
of a suspected dependency on medication. I.G. Ex. 20 at 14 - 15.

157. A few days prior to admission, the patient had been treated
as an outpatient with injections of medication that gave her
relief from the pain for about an hour, and then it recurred. I.G.
Ex. 20 at 15.

158. Physical examination of the patient at the time of admission
revealed that the patient had point tenderness at the insertion of
the fascia lata into the greater trochanter on the left side. I.G.
Ex. 20 at 15.

159. At the time of admission, Petitioner again treated the
patient with injections of medication which gave the patient relief
from the pain for a short period before it recurred. I.G. Ex. 20
at 15.

160. Petitioner diagnosed pain, left lateral thigh, either
trochanteric tendinitis with fascia lata syndrome or diabetic
neuropathy. I.G. Ex. 20 at 14.

161. Petitioner referred the patient to a physical therapist. In
a report dated July 26, 1991, the physical therapist described the
patient as having discomfort during hip flexion and external
rotation. I.G. Ex. 20 at 24.

162. During the course of the patient's hospital stay, she was
treated with a combination of ultrasound, moist heat, a "TENS"
unit, anti-inflammatory medication, and a series of active
exercises. I.G. Ex. 20 at 27.

163. Petitioner obtained a psychiatric consultation. In a report
dated July 30, 1991, the consultant opined that, while the patient
did not appear to suffer from any major psychiatric illness, there
was a possibility that the patient's pain could be symptomatic of
a major depression. I.G. Ex. 20 at 22 - 23.

164. The patient was not examined by an orthopedist or neurologist
during the course of the hospital stay. In addition, no x-rays or
"CAT" scans were taken of the patient's hip and thigh. Tr. at 643;
I.G. Ex. 20.

165. The patient complained of intermittent pain throughout her
stay at the hospital. On August 1, 1991, the day that she was
discharged, she complained of pain and became more comfortable
after a new patch was applied to the "TENS" unit. I.G. Ex. 20 at
42 - 56.

166. At the time of discharge, the patient was independent in
ambulation and was able to bear weight in her left leg. Petitioner
reported that the patient's pain had improved during the hospital
stay, but that it had not completely resolved. I.G. Ex. 20 at 13,
27.

167. The patient was discharged with instructions to take
medication, and she was advised to see Petitioner for a follow-up
examination. I.G. Ex. 20 at 13, 62.

168. The principal diagnosis at the time of discharge was left
trochanter tendinitis with fascia lata syndrome. I.G. Ex. 20 at 8.

169. On August 4, 1991, the patient again was admitted to the
hospital with the complaint of severe pain in the left thigh. I.G.
Ex. 20 at 80.

170. The patient was injected with medication in the tender area
of the left trochanteric area. The pain remained intractable and
she was admitted to the hospital for care and possible additional
diagnostic procedures. I.G. Ex. 20 at 80.

171. At 9:00 p.m. on the day the patient was admitted to the
hospital, the patient had achieved complete relief of her pain.
The following morning, the patient did not have any pain, and she
was discharged that day. I.G. Ex. 20 at 80, 95.

172. During the second hospital admission, no x-rays or "CAT"
scans were taken, and no orthopedic or neurologic consultations
were obtained. Tr. at 645 - 646; I.G. Ex. 20.

173. On August 7, 1991, the patient was readmitted to the hospital
with the same complaint. I.G. Ex. 6 at 118.

174. The patient's pain symptoms improved or completely diminished
prior to each discharge. I.G. Ex. 20.

175. The patient's physical examination and her response to
Petitioner's injections is suggestive of the diagnosis of
tendinitis. Tr. at 631 - 632.

176. Tendinitis is a condition known to produce intermittent pain,
and a person suffering from this condition might continue to
experience intermittent pain even after discharge from a hospital
setting. Tr. at 636 - 638.

177. Petitioner properly considered the patient's history of
fixating on pain and her history of possible drug dependency in
making the decision to manage her condition conservatively, without
extensive diagnostic testing. Tr. at 638 - 640.

178. The record is devoid of expert medical opinion evidence
establishing that professionally recognized standards of care
require that this patient should have been free of pain for a
specific period of time before she was discharged from the
hospital.

179. The record is devoid of expert medical opinion evidence
establishing that this patient's readmission to the hospital for
the same complaint within a few days establishes that a prior
discharge had been premature.

180. The record is devoid of expert medical opinion evidence
establishing that professionally recognized standards of care
required Petitioner to perform radiologic tests and to obtain
additional consultations under the circumstances of these hospital
admissions.

181. The I.G. did not prove that Petitioner's treatment of this
patient violated professionally recognized standards of care.

Patient 060460 (Discussion begins on page 73)

182. Patient 060460, a 76-year old male, was brought by ambulance
to the emergency room at Little Falls Hospital on August 22, 1991,
following a sudden episode of weakness, slurred speech, and
confusion. I.G. Ex. 22 at 11 - 12.

183. He was admitted for observation with a preliminary diagnosis
of a transient ischemic attack (TIA). I.G. 22 at 13.

184. A TIA is a cerebral dysfunction of vascular origin, which
usually lasts between several minutes and several hours with no
permanent neurological damage. I.G.'s Brief at 39.

185. Patients who experience a TIA are at risk for developing
another TIA or a stroke. Tr. at 495.

186. A common cause of TIAs is the formation of arteriosclerotic
plaques in the carotid arteries. Tr. at 111, 610.

187. Arteriosclerotic plaques may narrow the carotid arteries,
restricting blood flow to the brain. Tr. at 111.

188. Patients who have stenosis, or narrowing, of the carotid
artery of more than 25 percent have an increased risk of both
stroke and coronary heart disease. I.G. Ex. 34 at 4.

189. Patients who have suffered TIAs related to stenosis of the
carotid arteries may be treated medically, using anticoagulant
drugs, or surgically, by carotid endarterectomy, to remove the
arteriosclerotic plaques. P. Ex. 50 at 1 - 2, P. Ex. 51; Tr. at
111.

190. Conn's Current Therapy is a professionally recognized medical
text. Tr. at 117.

191. The risk of stroke in symptomatic patients with stenosis of
the carotid arteries of 70 percent or more is reduced by carotid
endarterectomy. P. Ex. 50 at 3, P. Ex. 51.

192. Physical examination alone does not yield precise information
about carotid artery function or blood flow to the brain. Tr. at
499 - 500.

193. Professionally recognized standards of health care in
diagnosing carotid artery stenosis require a physician to first
assess the status of the carotid arteries non-invasively, using
Doppler ultrasound. P. Ex. 51; Tr. at 113, 134, 500.

194. If the Doppler ultrasound indicates a potentially serious
lesion, that is stenosis of more than 30 percent, professionally
recognized standards require that the patient be further evaluated.
P. Ex. 51.

195. The preferred method for accurately measuring the degree of
stenosis of a patient's carotid arteries is direct cerebral
angiography, an invasive procedure that involves injecting dye into
the carotid arteries, and which itself involves approximately one
percent risk of stroke. P. Ex. 50 at 3, P. Ex. 51; Tr. at 113,
496, 500.

196. Carotid endarterectomy is clearly indicated only for those
patients whose carotid arteries are at least 70 percent occluded,
as demonstrated by angiography. P. Ex. 51.

197. It is not in accord with professionally recognized standards
of health care to recommend carotid endarterectomy on the basis of
Doppler ultrasound studies without confirming the degree of
stenosis by angiography. P. Ex. 51; see also P. Ex. 50 at 3 - 4.

198. Petitioner did not order a Doppler ultrasound of this
patient's carotid arteries.

199. Petitioner failed to meet his obligation to provide care in
accordance with professionally recognized standards by failing to
order a Doppler ultrasound for this patient.

200. Petitioner treated this patient by prescribing the medical
treatment appropriate for a patient with a diagnosis of TIA who was
not a surgical candidate. Tr. at 136.

201. Petitioner testified that this patient did not wish to
consider surgical treatment under any circumstances. Tr. at 494,
500 - 501.

202. Professionally recognized standards of health care require
the physician to note in the medical record a patient's refusal of
surgical treatment. Tr. at 616.

203. Petitioner failed to document in the medical record that this
patient did not wish to consider surgical treatment. Tr. at 616.

204. Petitioner's failure to document that this patient refused
surgical treatment violated Petitioner's obligation to provide care
in accordance with professionally recognized standards of health
care.

205. Petitioner's testimony that this patient refused surgical
treatment is not completely consistent with his written response to
IPRO, in which he stated: "On the basis of the man's clinical
presentation, I could not suggest to this man that he have an
operation on his carotid system." I.G. Ex. 22 at 4.

206. Because Petitioner failed to obtain a Doppler ultrasound of
this patient's carotid arteries, Petitioner could not meaningfully
have advised the patient of the risks and benefits of carotid
endarterectomy surgery.

207. Petitioner violated his obligation to provide health care
that meets professionally recognized standards by ruling out
surgery for this patient without obtaining the results of a Doppler
ultrasound of the patient's carotid arteries.

Patient 060717 (Discussion begins on page 76)

208. Patient 060717, a 69-year-old male, was admitted to Little
Falls Hospital on December 2, 1991 with the complaint of acute
dyspnea. I.G. Ex. 23 at 11.

209. At the time of the patient's admission to the hospital,
Petitioner diagnosed him as having arteriosclerotic heart disease
with acute severe pulmonary edema, severe chronic obstructive
pulmonary disease, and mild renal insufficiency. I.G. Ex. 23 at
11.

210. At the time of his admission, the patient had been taking
Capoten. On December 3, 1991, the patient's medication was
switched from Capoten to Vasotec. Vasotec and Capoten are both
medications which are ACE (angiotensin converting enzyme)
inhibitors which are used in the treatment of hypertension and
congestive heart failure. I.G. Ex. 23 at 19, 41; Tr. at 243 - 245.

211. Petitioner prescribed five milligrams of Vasotec twice a day
on December 3, 1991. He increased the dosage later that day to
five milligrams in the morning and 10 milligrams at night. I.G.
Ex. 23 at 19; Tr. at 244.

212. On December 4, 1991, Petitioner increased the dosage again to
ten milligrams twice daily, which was continued until the day of
discharge. I.G. Ex. 23 at 20; Tr. at 244.

213. The patient was discharged on December 9, 1991. Petitioner's
progress notes of this date state that the patient was to go home
with a prescription for five milligrams of Vasotec to be taken
twice a day. I.G. Ex. 23 at 21, 25; Tr. at 244 - 245.

214. Petitioner did not document his discharge instructions on his
physician order sheet. I.G. Ex. 23 at 21.

215. A discharge summary which was dictated by Petitioner on
December 30, 1991, 21 days after the patient was discharged from
the hospital, indicates that the patient was discharged with a
prescription for five milligrams of Capoten to be taken twice a
day. I.G. Ex. 23 at 14.

216. The patient's chart does not include a discharge instruction
sheet containing written instructions that had been given to the
patient prior to his discharge from the hospital. Tr. at 248, 251.

217. Petitioner's testimony that he discharged the patient with
oral instructions to take five milligrams of Vasotec twice a day is
credible. Tr. at 503 - 504, 506.

218. The I.G. did not prove that the patient was discharged with
instructions to take the higher dosage of ten milligrams of Vasotec
twice a day. I.G. Ex. 23.

219. The I.G. gave Petitioner sufficient notice that she was
alleging that Petitioner inaccurately documented his treatment of
the patient on the discharge summary, and that this documentation
error was a basis for the I.G.'s determination to exclude
Petitioner. Notice at 5.

220. Petitioner admits that the discharge summary incorrectly
states that this patient was discharged on five milligrams of
Capoten twice a day. Tr. at 509 - 510.

221. Petitioner admits that the discrepancy between his December
9, 1991 progress notes and his December 30, 1991 discharge summary
might be confusing to a physician attempting to treat the patient
if he was readmitted to the hospital. Tr. at 507.

222. Petitioner's failure to accurately document his discharge
instructions on the December 30, 1991 discharge summary was a
substantial violation of his obligation to provide care which is
supported by the necessary documentation.

223. The I.G. did not prove that professionally recognized
standards of care require Petitioner to write the discharge
instructions in the progress notes and on the physician order
sheet. Tr. at 623 - 624.

224. The I.G.'s contention that Petitioner's documentation of his
treatment of this patient is deficient because the patient's chart
does not include a written discharge instruction sheet is not
encompassed by the allegations in the Notice. Notice at 5.

225. The absence of a written discharge instruction sheet in this
patient's chart is not a valid basis for Petitioner's exclusion in
this case.

226. The I.G.'s contention that Petitioner's documentation of his
treatment of this patient is deficient because Petitioner failed to
explain the reasons for the changes in the patient's cardiac
medication is not encompassed by the allegations in the Notice.
Notice at 5; Tr. at 246 - 247, 249.

227. The I.G.'s allegation that Petitioner failed to explain the
reasons for the changes in the patient's cardiac medication is not
a valid basis for Petitioner's
exclusion in this case.

Patient 030053 (Discussion begins on page 82)

228. Patient 030053, a 76-year old male who suffered from diabetes
mellitus, was brought by ambulance to the emergency room at Little
Falls Hospital on December 27, 1991, after an episode of coma
induced by his overdosing himself with 70 units of insulin that
morning. I.G. Ex. 24 at 12 - 13.

229. The normal range for blood sugar values is 80 to 120 mg/dL.
Tr. at 140.

230. The emergency medical technicians who transported the patient
had found that his blood sugar was 33 mg/dL, and they administered
50 percent Dextrose. I.G. Ex. 24 at 10.

231. By the time the patient arrived at the emergency room, the
patient's blood sugar was 180 mg/dL, and he was alert and oriented.
I.G. Ex. 24 at 10.

232. The patient suffered another episode of hypoglycemia in the
emergency room and was admitted to the hospital for observation.
I.G. Ex. 24 at 12.

233. On December 27, 1991, the nursing staff checked the patient's
blood sugar at 4:30 p.m., when his blood sugar level was 77; at
9:30 p.m., when his blood sugar level was 26; and at 9:45 p.m.,
when his blood sugar level was 57. I.G. Ex. 24 at 32 - 33.

234. On December 27, 1991, at 10:15 p.m., the nursing staff noted
a telephone order from Petitioner to "change IV solution to
Dextrose 10% -- run at rate to obtain blood sugar above 80 then
slow IV down to KVO [keep vein open] for the n[ight]." I.G. Ex. 24
at 14.

235. On December 27, 1991, at 10:30 p.m., the nursing staff noted
that the patient's blood sugar level was 108. I.G. Ex. 24 at 32 -
33.

236. There is no record that the patient's blood sugar level was
monitored again until 6:30 a.m. on December 28, 1991, when the
patient's blood sugar level was 134. I.G. Ex. 24 at 32 - 33, 35.

237. Professionally recognized standards of health care require
that the attending physician specify a rate for administering IV
Dextrose to a hypoglycemic patient. Tr. at 137, 139.

238. Professionally recognized standards of health care require
the attending physician to establish a plan of care for a
hypoglycemic patient that would specify regular monitoring of the
patient's blood sugar. I.G. Ex. 3 at 119 - 120; Tr. at 138.

239. Petitioner's orders for this patient failed to specify a rate
of administration for IV Dextrose and failed to specify regular
monitoring of the patient's blood sugar levels.

240. Even if Petitioner's order to administer 10 percent Dextrose
at a KVO rate once blood sugar was normal was sufficient, the fact
that this patient's blood sugar was not monitored between 10:30
p.m. on December 27, 1991 and 6:30 a.m. the next morning would
represent care that failed to meet professionally recognized
standards.

241. Petitioner's failure to order a rate for administering the IV
Dextrose, and his failure to order regular monitoring of the
patient's blood sugar, are substantial violations of his obligation
to provide care of a quality that meets professionally recognized
standards of health care.

Patient 030344 (Discussion begins on page 85)

242. Patient 030344, a 76-year-old male, was admitted to Little
Falls Hospital on August 15, 1991 with complaints of dyspnea,
weakness, and intermittent chest pain. Petitioner diagnosed
auricular fibrillation. I.G. Ex. 25 at 7, 13, 15.

243. On August 20, 1991, Petitioner ordered that the patient be
placed on Heparin, an intravenous anticoagulant medication. I.G.
Ex. 25 at 11, 19; Tr. at 277.

244. On August 25, 1991, the patient was discharged. I.G. Ex. 25
at 9.

245. Petitioner's handwritten progress notes, dated August 25,
1991, and his typewritten progress notes, dated September 18, 1991,
indicate that Petitioner discharged the patient with instructions
to follow a low sodium diet, to take various medications (Vasotec,
Lasix, and Isosorbide), and to come in for a follow-up visit. I.G.
Ex. 25 at 11, 25.

246. The discharge instruction sheet, prepared by the nurse who
discharged the patient, repeated the instructions given by
Petitioner in his progress notes. I.G. Ex. 26 at 76.

247. Professionally recognized standard of care requires the
attending physician to write his discharge instructions in the
medical chart. The nurse who discharges the patient will include
the attending physician's instructions in the discharge instruction
sheet which is given to the patient. Tr. at 285 - 287.

248. Neither Petitioner's handwritten nor his typewritten progress
notes indicate that the patient was instructed to take Coumadin, an
anticoagulant medication, at the time that he was discharged. The
discharge instruction sheet, prepared by the nurse in response to
Petitioner's progress notes, did not include an instruction for the
patient to take Coumadin. I.G. Ex. 25 at 11, 25, 76; Tr. at 277.

249. After IPRO reviewed this chart and requested a response,
Petitioner stated for the first time that the patient was treated
with Coumadin as an outpatient after his discharge from the
hospital. I.G. Ex. 25 at 4.

250. Petitioner admits that his failure to document his intent to
treat this patient with Coumadin on discharge was a documentation
error. Petitioner's Brief at 56 - 57.

251. Petitioner's failure to document his intent to prescribe
Coumadin to this patient on discharge is a substantial violation of
his obligation to provide necessary documentation of his care.

Patient 039069 (Discussion begins on page 88)

252. Patient 039069, a 76-year-old male, was admitted to Little
Falls Hospital on September 22, 1991, complaining of vertigo and
nausea. I.G. Ex. 26 at 9 - 10.

253. Petitioner's initial examination of this patient revealed
that he had generalized arteriosclerosis with acute episodes of
vertigo, mild organic brain syndrome, and arteriosclerotic heart
disease with ongoing auricular fibrillation and cardiac prominence.
I.G. Ex. 26 at 9.

254. Petitioner noted in his progress notes that the patient had
been under the care of several cardiac and orthopedic physicians,
but there is no mention of any contact with these physicians during
the patient's admission. I.G. Ex. 26 at 9.

255. A CBC was performed on the patient approximately seven days
before admission. A CBC was not performed at the time of
admission. I.G. Ex. 3 at 23; I.G. Ex. 6 at 82.

256. A CBC was necessary at admission. I.G. Ex. 26 at 4, I.G. Ex.
6 at 182 - 183, I.G. Ex. 30 at 11.

257. Petitioner did not indicate on the chart that he did not
perform a CBC and he did not explain why a CBC was not performed on
admission. In addition, the results of the prior CBC are not
documented on the patient's chart. I.G. Ex. 26.

258. Petitioner's failure to document that he did not perform a
CBC on this patient at the time he was admitted, his failure to
explain why a CBC was not performed on admission, and his failure
to document the results of the CBC performed prior to admission is
a substantial violation of his obligation to provide the necessary
documentation of care. I.G. Ex. 26, I.G. Ex. 29 at 7.

Patient 037680 (Discussion begins on page 91)

259. Patient 037680, an 85-year-old female, was admitted to Little
Falls Hospital on August 21, 1991. Her chief complaint was that
she was having hallucinations. Although the patient had some
insight into her problem, the hallucinations had a considerable
reality to the patient and disturbed her. I.G. Ex. 27 at 5 - 6.

260. The patient had a brother who lived nearby. I.G. Ex. 27 at
5.

261. At the time of the patient's admission to the hospital,
Petitioner diagnosed organic brain syndrome with hallucinatory and
delusional state. I.G. Ex. 27 at 5.

262. Physical examination of the patient revealed evidence of
bilateral arthritis of both knees, and that the right knee was
acutely inflamed. I.G. Ex. 27 at 6.

263. From August 21, 1991 through August 23, 1991, the patient
alternated between being disoriented and being lucid. At times,
she did not realize that she was in the hospital, and, at other
times, she was oriented and gave appropriate responses. I.G. Ex.
27 at 56, 59 - 61.

264. On August 23, 1991, Petitioner performed an arthrocentesis of
the patient's right knee. I.G. Ex. 27 at 61; Tr. at 149, 223.

265. Arthrocentesis is an invasive procedure which involves
inserting a needle into the patient's knee and withdrawing fluid.
I.G. Ex. 27 at 61; Tr. at 149 - 151, 223.

266. Petitioner's progress notes describe the procedure and its
results as follows: "Tapped Rt [right] Knee - Old Blood -
Hemarthrosis." I.G. Ex. 27 at 19.

267. Within 45 minutes after the arthrocentesis was performed, the
patient began to cry and stated that she saw snakes coming out of
a box containing needles. The patient stated that, although she
knew the snakes were not real, she still could see them. The
patient reported seeing snakes the next day. I.G. Ex. 27 at 61,
65.

268. During the course of the patient's hospital stay, she was
treated with insulin, and her hallucinations improved. At the time
of her discharge on September 10, 1991, the patient had achieved
mental equilibrium. I.G. Ex. 27 at 25, 26.

269. Professionally recognized standards of health care require
that a physician obtain informed consent prior to performing an
invasive procedure. Tr. at 150.

270. Arthrocentesis is an invasive procedure. Tr. at 149.

271. Professionally recognized standards of health care regarding
the process for obtaining informed consent require the physician to
explain the purpose of the procedure, how it will be performed, the
possible benefits of the procedure, and the possible complications
of the procedure. The patient should be given the opportunity to
ask questions of the physician. Tr. at 300.

272. The patient's chart does not contain a consent form for the
arthrocentesis. I.G. Ex. 27.

273. If the patient is incapable of understanding information
pertaining to the procedure, it should be explained to an adult who
is the closest relative to the patient. Consent for performing the
procedure should be obtained from that individual. Tr. at 151.

274. Petitioner did not make any attempt to contact the patient's
brother in order to obtain consent. Tr. at 231.

275. The fact that the patient was delusional does not necessarily
mean that she was incapable of giving informed consent for the
arthrocentesis. Tr. at 561.

276. Petitioner's assertion that the patient gave informed consent
orally is not corroborated by the evidence. Petitioner's Brief at
70.

277. Petitioner's self-serving assertion that he obtained informed
consent is not credible.

278. Petitioner did not obtain informed consent from this patient.

279. The right of a patient to be fully informed about the
treatment being recommended and to refuse that treatment is a basic
right which is codified in the New York State Patients' Bill of
Rights. Tr. at 563; I.G. Ex. 27 at 111.

280. Petitioner's failure to obtain informed consent from this
patient shows a disturbing indifference to the fundamental rights
of patients and it is a substantial violation of Petitioner's
obligation to provide care that meets professionally recognized
standards of care.

281. Professionally recognized standards of care require a
physician to document that oral consent has been obtained. Tr. at
563 - 565.

282. Even if Petitioner had obtained valid consent orally,
Petitioner's failure to document that such consent was obtained is
a substantial violation of his obligation to document the quality
of his care.

283. Hemarthrosis is a diagnostic term indicating that blood was
found in the knee joint. Tr. at 160, 557.

284. Petitioner diagnosed the patient's medical condition based on
his observations of the fluid withdrawn from the patient's knee and
he documented this diagnosis in the patient's chart. I.G. Ex. 27
at 19.

285. Professionally recognized standards of care require a
physician to write a procedure note for invasive procedures, such
as arthrocentesis, performed at bedside. The procedure note should
contain a comprehensive description of the indication for the
procedure, the procedure itself, and the results. Tr. at 160 -
161, 301 - 302.

286. Petitioner's August 23, 1991 entry in the chart documents
that arthrocentesis was performed and that old blood was obtained,
but it does not describe the procedure and the results in
sufficient detail to comport with professionally recognized
standards of care. Tr. at 160 - 161.

287. Petitioner substantially violated a professionally recognized
standard of health care by failing to document adequately the
procedure performed on this patient.

288. Professionally recognized standards of care require that
fluid withdrawn from a knee in the course of arthrocentesis should
be sent for laboratory analysis. Tr. at 162 - 163.

289. Petitioner failed to prove that the fluid withdrawn from this
patient's knee had degenerated to the point that sending it for a
laboratory analysis would yield meaningless results.

290. The purpose of sending the withdrawn fluid to a laboratory
for analysis is to obtain information necessary to reach a final
and complete diagnosis. Tr. at 163.

291. While hemarthrosis was a properly documented diagnosis based
on the available information immediately following the
arthrocentesis, it is not a final or complete diagnosis based on
all tests that should have been performed.

292. Petitioner's discarding the withdrawn fluid without obtaining
the necessary tests to make a final diagnosis is a substantial
violation of professionally recognized standards of care.

Patient 034026 (Discussion begins on page 103)

293. Patient 034026, a 75-year old female, was admitted to Little
Falls Hospital on July 24, 1991 with a diagnosis of renal colic.
I.G. Ex. 28 at 8 - 11.

294. A laboratory test conducted on July 24, 1991 indicated that
this patient had a blood glucose level of 232 mg/dL, an abnormally
high result. I.G. Ex. 28 at 12.

295. Another blood test (SMA 18) was ordered on July 26, 1991.
I.G. Ex. 28 at 21.

296. The results of that blood test are not recorded in the
patient's medical record. I.G. Ex. 28.

297. This patient was discharged from the hospital on July 26,
1991. I.G. Ex. 28 at 8.

298. Petitioner admitted that there was no follow-up value for
blood glucose in the patient's medical record. I.G. Ex. 28 at 4.

299. Petitioner admitted that results of the follow-up blood test
should have been in the medical record. I.G. Ex. 28 at 4;
Petitioner's Brief at 91.

300. The I.G. did not prove that Petitioner's care of this patient
represented a quality of care violation.

301. Petitioner's failure to document the follow-up blood test
result represents a substantial violation of his obligation to
provide necessary documentation of the quality of his care.

Petitioner's substantial violations of his statutory obligations in
a substantial number of cases

302. A provider commits a substantial violation of his or her
statutory obligations under section 1156(a) in a substantial number
of cases where the pattern of care he or she provides is
inappropriate, unnecessary, does not meet professionally recognized
standards of care, or is not supported by necessary documentation
of care as required by a PRO. 42 C.F.R. 1004.1(b).

303. The I.G. proved that Petitioner engaged in a pattern of care
that is inappropriate, unnecessary, did not meet professionally
recognized standards of care, or was not supported by necessary
documentation as required by IPRO.

304. The I.G. proved that Petitioner substantially violated his
obligations under section 1156(a) in a substantial number of cases.

Petitioner's inability and unwillingness

305. The I.G. proved that Petitioner has demonstrated an
unwillingness and lack of ability substantially to comply with his
obligation to provide care in accordance with his obligation under
section 1156(a) of the Act.

The remedial need for an exclusion

306. The remedial purpose of an exclusion imposed pursuant to
section 1156 of the Act is to protect the welfare of program
beneficiaries and recipients from providers who are untrustworthy
to provide health care of the requisite quality.

307. The I.G. proved that Petitioner is an untrustworthy provider
of care.

308. A five-year exclusion is reasonable in this case.

Serious Risk

309. The I.G. proved that Petitioner is a serious risk within the
meaning of section 1156 of the Act.

RATIONALE

I. The I.G. has authority to exclude Petitioner under section
1156(b)(1) of the Act.

a. Section 1156 of the Act imposes obligations on
health care providers.

The I.G. excluded Petitioner pursuant to section 1156(b)(1) of the
Act. The I.G.'s authority to impose an exclusion under section
1156(b)(1) derives from a PRO's determination and recommendation
that a party be excluded. In any hearing conducted under section
1156(b)(1), the administrative law judge must determine whether the
PRO's recommendation is in accord with one of the statutory grounds
on which an exclusion recommendation may be based.

Section 1156(a) of the Act imposes three professional obligations
on health care practitioners who provide items or services to
program beneficiaries and recipients. These are that the health
care will be: (1) provided economically and only when, and to the
extent, medically necessary; (2) of a quality which meets
professionally recognized standards of health care; and (3)
supported by evidence of medical necessity and quality in such form
and fashion and at such time as may reasonably be required by a
reviewing PRO in the exercise of its duties and responsibilities.
Section 1156(b)(1) provides that a PRO may recommend that a health
care provider be excluded if the PRO determines that the provider
has either failed in a substantial number of cases to comply
substantially with any of these three obligations, or if the
provider has grossly and flagrantly violated any of these
obligations in one or more instances.

In this case, IPRO based its exclusion recommendation to the I.G.
on its conclusion that Petitioner had in a substantial number of
cases substantially violated his statutory obligations under
section 1156(a)(1) of the Act. The I.G. accepted IPRO's
conclusion.

Section 1156(b)(1) states that, in order to exclude a provider
based on a recommendation by a PRO, the Secretary (or the
Secretary's delegate, the I.G.) must find that the party has
demonstrated either an inability or an unwillingness substantially
to comply with the obligations to provide care consistent with the
requirements of section 1156(a). In this case, the I.G. found that
Petitioner was unable and unwilling to comply substantially with
the obligations imposed on him by section 1156(a) of the Act.

Section 1156(b)(4) of the Act provides that a provider who is
subject to an exclusion determination pursuant to section
1156(b)(1) is entitled to an administrative hearing. This section
expressly confers on excluded providers those rights to a hearing
which inure to parties under section 205(b) of the Act. Section
205(b) provides for a de novo hearing. Thus, parties excluded
pursuant to section 1156(b)(1) are entitled to de novo hearings.
My obligation in conducting a de novo hearing under sections 205(b)
and 1156(b)(1) on the issue of the I.G.'s authority to exclude a
provider is to allow each party to the hearing the opportunity to
offer evidence concerning the sufficiency of the facts on which a
PRO's recommendation and the I.G.'s ultimate determination are
based.

The Act provides that, in discharging their duties, PROs must apply
professionally developed norms of care, diagnosis, and treatment,
based upon typical patterns of practice within the geographic areas
served by such organizations. Act, section 1154(a)(6)(A). On its
face, this section does not apply specifically to PROs' discharge
of their duties under section 1156 of the Act. However, it does
appear to establish a general obligation for PROs to use
professionally recognized standards of health care of either
national recognition or of a unique local character in discharging
their statutory duties. It is evident from this language that
professionally recognized standards of health care in a given
medical specialty constitute a consensus among the physicians
practicing that specialty about how items or services should be
provided.

The Act's requirements are mirrored in regulations adopted by the
Secretary. Regulations define professionally recognized standards
of health care to be:

Statewide or national standards of care, whether in writing or
not, that professional peers of the individual or entity whose
provision of care is an issue, recognize as applying to those peers
practicing or providing care within a State.

42 C.F.R. 1001.2.

The term "substantial violation in a substantial number of cases"
also has been defined by regulation. The term means "a pattern of
care that is inappropriate, unnecessary, does not meet
professionally recognized standards of care, or is not supported by
the necessary documentation of care as required by a peer review
organization." 42 C.F.R. 1004.1(b).

It is apparent from this regulatory definition that a provider has
violated his obligations under section 1156(a) of the Act in a
"substantial number of cases" if there is a showing that the
provider has engaged in a pattern of acts or omissions which
substantially violate his statutory obligations.

While it is clear that there must be a pattern of substantial
violations in order to meet this standard, the regulatory
definition does not explicitly define what is meant by "substantial
violation." In the absence of a regulatory definition of
substantial violation, I give the word substantial as used here its
common and ordinary meaning. "Substantial" is defined in the
American Heritage Dictionary, 2d College Edition, as "5.
Considerable in importance, value, degree, amount, or extent . . ."
I conclude from this common definition that Congress intended the
statutory term substantial violation to mean any violation that is
not minor or trivial.

With these observations as background, I turn now to an examination
of the individual cases which the I.G. relies on to support the
I.G.'s allegation that Petitioner substantially violated his
obligations under section 1156(a) in a substantial number of cases.

b. Petitioner committed substantial violations of his
obligation to provide care in compliance with section 1156(a) of
the Act in a substantial number of cases.

The I.G. Notice alleged that Petitioner substantially violated his
obligations under section 1156(a) of the Act in 14 cases. During
the course of this proceeding, the I.G. withdrew one of the cases
involving a violation of the obligation to provide care of a
quality that meets professionally recognized standards of health
care. Two of the remaining 13 cases involve the same patient.
Thus, at issue in this proceeding are 13 cases involving 12
different patients. My decision on the issue of whether Petitioner
substantially violated his statutory obligations in a substantial
number of cases is based on evidence which relates to IPRO's
findings in these 13 cases.

The record shows that, on December 15, 1988, IPRO's predecessor,
ESMSEF, notified the I.G. that Petitioner had grossly and
flagrantly violated his obligations under section 1156 of the Act
and recommended that he be permanently excluded. The I.G.
concluded that there was insufficient information to support this
recommendation, and returned the case to ESMSEF without prejudice.
P. Ex. 14.

On June 16, 1989, ESMSEF made an initial determination that
Petitioner had failed to comply substantially with his obligations
under section 1156 of the Act in 14 cases. Petitioner met with
representatives of ESMSEF on August 17, 1989 to discuss these 14
cases. During that meeting, Petitioner and ESMSEF agreed that
Petitioner would participate in a CAP. I.G. Ex. 7, 8, 9.

On June 19, 1992, IPRO issued an initial sanction notice advising
Petitioner that it had made an initial determination that
Petitioner had failed to comply substantially with his obligations
under section 1156 of the Act in 26 new cases. That notice,
including the cases referred to therein, was subsequently withdrawn
by IPRO. I.G. Ex. 11, 14, 15.

In reaching my decision on the issue of whether Petitioner
substantially violated his obligations in a substantial number of
cases, I have not considered the cases which formed the basis for
ESMSEF's December 15, 1988 recommendation, nor have I considered
the 14 cases which formed the basis for its June 16, 1989 initial
determination. In addition, I have not considered the 26 cases
which formed the basis for IPRO's June 19, 1992 initial
determination.

At the hearing, the I.G. offered the testimony of two expert
witnesses, Herbert Sperling, M.D. and Richard Kops, M.D. Dr.
Sperling, a board-certified surgeon, was the chairman of the IPRO
Sanction Committee from 1989 to 1992. I.G. Ex. 32. Dr. Kops is
board-certified in both gastroenterology and internal medicine. In
addition, he has been a consultant to IPRO for 11 years. Tr. at
239 - 241. Petitioner offered the testimony of Peter Nicholas,
M.D. Dr. Nicholas is board-certified in both internal medicine and
infectious diseases. Tr. at 366. All three of these individuals
are highly qualified practitioners whose credentials were not
disputed by the opposing party.

The experts whom the I.G. called as witnesses at the hearing have
been involved in the review of Petitioner's treatment of patients
during the peer review process conducted by IPRO. While Petitioner
has not disputed the professional qualifications of these
witnesses, he contends that IPRO is biased against him and that it
is "unwilling and unable to fairly assess" his practice.
Petitioner's Brief at 100 - 101. In particular, Petitioner
contends that Dr. Sperling has demonstrated a bias against him.
Petitioner's Brief at 97. In support of these allegations,
Petitioner points to parts of Dr. Sperling's testimony in which he
disagrees with Dr. Sperling's opinions and characterization of the
facts. Petitioner argues that Dr. Sperling's bias, combined with
IPRO's "effort to taint the record with . . . unsupported
allegations and unilateral findings" against him, cast doubt on
IPRO's ability to assess his performance as a medical practitioner
in accordance with the requirements of due process. Petitioner's
Brief at 97.

I find that Petitioner's allegations of bias are not supported by
the record. Petitioner's attempt to bootstrap his disagreement
with the IPRO's conclusions into allegations of bias is not
persuasive. Petitioner has not adduced credible evidence that Dr.
Sperling or other members of IPRO are biased against him. I find
Dr. Sperling and Dr. Kops to be knowledgeable and dispassionate
experts. By contrast, Petitioner's assertion of bias is motivated
by self-interest.

Moreover, Petitioner's argument that he was not provided due
process during the sanction process is unavailing. In this regard,
the exhaustive administrative record in this case speaks for
itself. Petitioner was offered many opportunities to provide
information that he thought might convince the reviewers of the
propriety of his practices. He took advantage of these
opportunities. That IPRO did not make the desired determination is
not evidence that due process was denied.

I have evaluated the evidence pertaining to the I.G.'s allegations.
I do not find that the I.G. proved that Petitioner violated his
obligations under the Act in each of the 13 cases. However, in
every instance that I find that the I.G. proved that Petitioner
violated an obligation under the Act, I find also that the
violation is substantial. Moreover, I find that there are a
sufficient number of cases where Petitioner substantially violated
his obligations under the Act to prove that Petitioner engaged in
a pattern of acts or omissions which substantially contravened his
obligations under section 1156(a) of the Act. The I.G. thus proved
that Petitioner substantially violated his obligations under
section 1156(a) in a substantial number of cases.

I will now proceed to an analysis of the 13 cases at issue in this
proceeding. For each case, I will quote verbatim the PRO Findings,
the I.G. Analysis, and the I.G. Decision as set forth in the
Notice. I will follow this with my analysis of the evidence
pertaining to that case.

Patient 031409

PRO Findings: Failure to order complete blood count,
bilirubin, alkaline phosphatase, SGOT or amylase on a patient.

[I.G.] Analysis: Patient admitted with chest and abdominal
pain. Sonogram shows cholelithiasis and cholecystitis.
Practitioner's failure to order appropriate tests constituted a
failure to evaluate gallbladder and liver function in a patient
with diagnosed cholelithiasis.

[I.G.] Decision: The medical records support the PRO
findings, and the findings are upheld. (Quality of care violation)

My Analysis: This patient was a 73-year old female who was
admitted to Little Falls Hospital on July 29, 1991 complaining of
pain in her back and shoulders. I.G. Ex. 16 at 9, 13. Because the
patient had a history of heart disease, it first appeared that her
symptoms might be related to her heart, but her pain did not
respond to nitroglycerin. I.G. Ex. 16 at 13; Tr. at 325. A
gallbladder sonogram was done to rule out gallbladder colic as a
cause of her pain. I.G. Ex. 16 at 10. The sonogram revealed
evidence of cholelithiasis (gallstones) and suggested
cholecystitis, an infection of the gallbladder. I.G. Ex. 16 at 59;
Tr. at 39 - 40.

Dr. Sperling testified that professionally recognized standards of
health care for treating a patient with possible gallbladder
disease would be to order blood tests to determine the extent of
the gallbladder infection and to determine whether the liver and
pancreas were involved. Tr. at 39 - 43. This opinion was
corroborated by Dr. Kops. Tr. at 310 - 311, 315 - 316. Neither
Petitioner nor his expert testified that a different professionally
recognized standard was applicable. 8/ Therefore, I conclude that
professionally recognized standards of health care required
Petitioner to order a CBC, and serum amylase, alkaline phosphatase,
bilirubin, and transaminase (SGOT) tests.

Petitioner acknowledges that he did not order these tests during
the July 29, 1991 hospitalization of this patient. However,
Petitioner offers a number of explanations as to why such tests
were not needed in this particular case. First, Petitioner
contends that the tests were not needed because the patient's
physical symptoms indicated that her gallbladder disease was likely
chronic, rather than acute, and, in any event, she was not a
candidate for surgery. Petitioner's Brief at 4 - 5.
Alternatively, Petitioner contends that, if the tests were needed,
they had been done four days earlier, during a previous admission,
with normal results. Petitioner's Brief at 5 - 6. Finally,
Petitioner contends that he consulted a gastroenterologist, who did
not recommend that the patient undergo further gallbladder studies.
Petitioner's Brief at 7, 9. I do not find any of Petitioner's
explanations sufficient to overcome the I.G.'s showing that
Petitioner violated professionally recognized standards of health
care.

Petitioner contends that the CBC and enzyme studies were not
required, because his physical examination of the patient did not
reveal local tenderness or right upper quadrant pain and she did
not have fever or chills. Tr. at 334 - 335. Petitioner contends
that these physical symptoms would have been present had the
patient been suffering acute gallbladder complications. In
essence, Petitioner is contending that whether the patient's
gallbladder disease is chronic or acute would dictate the course of
her diagnostic testing. While it can be argued that a chronic
gallbladder condition might not require new diagnostic tests, this
would occur only after those tests had been done previously and
ruled out the need for more invasive treatment. However, nowhere
in the medical record does Petitioner document a conclusion that
the gallbladder sonogram and physical examination suggested
chronic, rather than acute, gallbladder disease, and that,
therefore, no further studies were warranted. Tr. at 408.

Moreover, the testimony of Dr. Nicholas goes even farther than
Petitioner's testimony. He opined that the tests were unnecessary
because the patient did not have any clinical symptoms referable to
her gallbladder. Tr. at 405. However, Dr. Nicholas' opinion is
contradicted by Petitioner's discharge note, which gives a final
diagnosis of thoracic pain probably secondary to
cholecystolithiasis. I.G. Ex. 16 at 10. 9/ Further, at the
November 10, 1992 IPRO meeting, Petitioner stated that the
patient's pain was consistent with gallbladder colic. I.G. 6 at
13. Therefore, Dr. Nicholas' conclusion that the patient's pain
was not referable to gallbladder disease must be given little
weight, since it assumes findings and conclusions which are
contrary to those documented in the patient's medical record.

Similarly, Petitioner's testimony must be given less weight when
compared with his documented findings in the patient's chart. As
his note indicates, at the time he discharged this patient,
Petitioner apparently concluded that her symptoms most likely were
related to gallbladder disease. Petitioner's discharge note and
his statement to IPRO were made closer in time to his treatment of
the patient than his testimony in these proceedings. Therefore, I
find the discharge note and the IPRO statement more probative of
his thinking at that time than explanations he has produced after
the fact which are not supported by documentation in the medical
record. Therefore, I conclude Petitioner considered it likely that
this patient was suffering pain due to gallbladder disease, yet did
not order a CBC and enzyme tests, or give any explanation for the
absence of such tests, tests that are required in accordance with
professionally recognized standards of health care.

Petitioner argues that, even if a CBC and other enzyme tests were
required, it was unnecessary to perform them during this patient's
July 29, 1991 admission because similar tests done during a
previous admission just four days earlier were within normal
limits. Petitioner offered P. Ex. 48, which shows that during the
July 25, 1991 admission, Petitioner ordered a CBC and SGOT for this
patient, the results of which were within normal limits. In
addition, the bilirubin results were negative. P. Ex. 48; Tr. at
339 - 340. I conclude that the fact that these tests were
performed during a prior admission does not justify Petitioner's
failure to order them during the July 29, 1991 admission, for three
reasons. First, not all the required enzyme tests were performed
during the July 25, 1991 admission. Second, there is no indication
in the patient's medical record that Petitioner relied on the
earlier tests in ruling out acute gallbladder disease as a cause of
the patient's pain. Third, since he did not reference her prior
admission, there is no way of determining whether her gallbladder
symptoms as of July 29, 1991 demonstrated a worsening of her
condition which would have required additional diagnostic tests to
determine whether her condition had changed from chronic to acute,
thus requiring a change in her treatment.

As to the first point, I have concluded that professionally
recognized standards of health care would require a physician to
evaluate possible gallbladder disease by ordering a CBC, as well as
measuring bilirubin, alkaline phosphatase, transaminase (SGOT), and
amylase levels. There is evidence that Petitioner ordered the CBC,
SGOT, and bilirubin during the July 25, 1991 admission. P. Ex. 48.
There is no indication in the record that Petitioner ever ordered
tests to determine this patient's alkaline phosphatase or amylase
levels. Id.; see also Tr. at 341 - 342. Therefore, even if I were
to conclude that Petitioner properly relied on earlier test results
in evaluating this patient, I would find that the tests which
Petitioner ordered during the July 25, 1991 admission did not
completely satisfy his duty to provide care in accordance with
professionally recognized standards.

Second, Petitioner failed to document in the medical record that he
was relying on earlier test results as a basis for ruling out acute
gallbladder disease as a cause of her pain. I.G. Ex. 16; Tr. at
342. As I previously noted with regard to Petitioner's explanation
that the patient's clinical symptoms were more consistent with
chronic, rather than acute, gallbladder disease, the absence of
contemporaneous documentation suggests to me that this explanation,
too, may be an after-the-fact justification. Petitioner's present
reliance on the previous test results, like his explanation of the
clinical symptoms, fails to account for his failure to address this
issue in his discharge summary.

Third, the absence of any discussion in Petitioner's discharge
summary of this patient's prior history with gallbladder disease,
including a description of her earlier symptoms, does not provide
me with any basis to conclude that her symptoms of July 29, 1991
were merely a continuation of her chronic symptoms and not a new
acute phase of her gallbladder disease. The latter condition would
require diagnostic studies that were not performed by Petitioner
during this patient's July 29, 1991 admission.

For these reasons, the test results from the patient's July 25,
1991 admission do not alter my conclusion that Petitioner violated
his duty to provide care in accordance with professionally
recognized standards.

Finally, Petitioner argues that he did not violate professionally
recognized standards of health care because he justifiably relied
on the opinion of a consulting gastroenterologist, who did not
recommend further diagnostic studies, other than endoscopy, nor
suggest a diagnosis of gallbladder disease. See I.G. Ex. 16 at 21.
I conclude that Petitioner's consultation of a gastroenterologist
did not relieve him of the duty to either order the required tests
or, at a minimum, to discuss the results of the patient's
gallbladder sonogram with the gastroenterologist. Dr. Kops opined
that it would be standard practice for a consulting
gastroenterologist to comment on the results of a gallbladder
sonogram, if the consultant were aware of such results. Tr. at
314. Because the consultant's report in this case did not mention
the gallbladder sonogram, the I.G.'s expert suggested that the
consultant may not have been aware of the results at the time he
dictated his report. Tr. at 312, 314 - 315. He stated further
that professionally recognized standards of health care would
require the family practitioner to discuss the results of the
sonogram with the specialist and that they jointly would decide on
the future course of treatment for the patient. Tr. at 313. At
the hearing, Petitioner could not recall whether he discussed the
results of the sonogram with the consultant. Tr. at 333. 10/ Nor
is there any reference to such communication in the patient's
medical record. I.G. Ex. 16. The consultant's report does not say
that gallbladder disease was considered and ruled out, it simply
does not mention gallbladder disease. I find that the consultant's
report is insufficient to justify Petitioner's failure to order
further diagnostic studies.

For these reasons, I conclude that the I.G. proved that
Petitioner's failure to order a CBC, and blood levels of serum
amylase, alkaline phosphatase, bilirubin, and transaminase during
the July 29, 1991 admission was a substantial violation of his duty
to provide care of a quality that meets professionally recognized
standards.

Patient 031943

PRO Findings: Failure to properly evaluate and follow-up a
patient with abnormal laboratory findings (anemia and blood in
stools) and positive family history for gastrointestinal
malignancy.

[I.G.] Analysis: Patient admitted with chest pressure.
Patient had guaiac positive stool and a Hgb of 8.2. Patient with
hiatus hernia had colonoscopy performed, which showed
diverticulosis, but not esophagogastroduodenoscopy or upper GI
[series], for anemia requiring transfusion of two units of blood.

[I.G.] Decision: The medical records support the PRO
findings, and the findings are upheld. (Quality of care violation)

My Analysis: On August 27, 1991, this patient, a 67-year-old
female, was admitted to Little Falls Hospital with complaints of
chest pressure. I.G. Ex. 17 at 13, 15. The patient had a family
history of stomach cancer. I.G. Ex. 17 at 13. Blood tests met the
criteria for a diagnosis of anemia. I.G. Ex. 17 at 15; Tr. at 77.
A stool sample was noted as being 4+ for occult blood. This result
was strongly positive for bleeding. I.G. Ex. 17 at 15; Tr. at 288
- 290. On August 29, 1991 the patient was transfused with two
units of blood, in response to the anemia. I.G. Ex. 17 at 33; Tr.
at 347. A second stool sample taken on September 1, 1991 produced
a +1 result. I.G. Ex. 17 at 34. Petitioner's expert, Dr.
Nicholas, testified that a +1 occult blood test result indicated
that the patient's bleeding had essentially stopped. Tr. at 436 -
437.

On September 3, 1991, Petitioner ordered the patient to undergo a
colonoscopy. The colonoscopy examined the patient's rectum and
lower GI tract. The doctor who performed the procedure, Dr. Sodhi,
determined that the patient had diverticulosis of the sigmoid
colon. 11/ I.G. Ex. 17 at 31. Dr. Sodhi noted in his "Report of
Operation" that "[a]lthough the diverticulosis could cause a GI
hemorrhage, I don't [sic] it would give anemia of this
significance." Id. Dr. Kops commented on Dr. Sodhi's statement.
He suggested that the source of the bleed in this case was not the
diverticulosis, since patients who bleed from diverticulosis
generally bleed with bright red blood and the patient here had a
dark stool. Tr. at 293. Petitioner acknowledged that, although
the patient had diverticulosis, her anemia was relatively severe
for that condition. Tr. at 348. He testified that he did not
obtain an endoscopy or upper GI series to investigate the upper GI
bleed because: 1) he did not do any defensive medicine; and 2)
based on this patient's dislike of the colonoscopy, Petitioner
concluded she would not "enjoy" the endoscopic procedure of her
upper GI tract. Tr. at 348 - 349.

Petitioner diagnosed the cause of the patient's bleeding as a
hiatus hernia. He based this diagnosis on the fact that she had
this condition approximately three years earlier. 12/ I.G. Ex. 17
at 4, 11 - 12; Tr. at 349. On the basis of his diagnosis and his
determination that the patient did not exhibit progressive anemia,
Petitioner discharged her with the recommendation that she be
observed over a period of time. Tr. at 349. In addition, he told
her to elevate the head of her bed, take Zantac and Maalox, and
lose weight. I.G. Ex. 17 at 12.

All three experts who testified about this particular patient
stated that the bleed in this case was most likely due to an upper
GI bleed. Dr. Kops testified that the 4+ stool test and the
presence of darkened stool was indicative of bleeding from the
patient's upper GI tract. Tr. at 289 - 290. Dr. Sperling
testified also that the presence of dark stool signified upper GI
tract bleeding. Tr. at 78, 93. Dr. Nicholas stated that he
believed that the bleed had come from the upper tract and explained
that darkened stool is caused by blood from the upper GI tract that
has been digested by bacteria in the gut. Tr. at 412 - 413.
However, Petitioner did not order any examination of the patient's
upper GI tract and relied instead upon the hiatus hernia diagnosis
which he had made approximately three years earlier. Tr. at 349 -
350.

Both Dr. Kops and Dr. Sperling testified that professionally
recognized standards of care for a patient with an unexplained
upper GI bleed are to perform either an endoscopy or an upper GI
series, provided that neither was contraindicated for the patient.
Tr. at 78 - 79, 290, 297. An endoscopy is a procedure used to
examine the upper GI region, and involves placing a tube down
through the esophagus and then passing it under direct vision into
the stomach. The procedure is also known as
esophagogastroduodenoscopy and can be used to rule out the presence
of an ulcer, cancer of the stomach or esophagus, gastritis in the
stomach, or esphogeal varices. Tr. at 81 - 83; I.G. Ex. 33. Dr.
Kops testified that an endoscopy allows the clinician to visualize
the bleeding and, in most cases, spot the exact source of the
bleeding. Tr. at 291. An upper GI series test involves the
patient taking a barium swallow and then having an x-ray taken.
Tr. at 89. Both Dr. Sperling and Dr. Kops indicated that the upper
GI series is not as accurate as the endoscopy, in that it cannot
identify gastritis, ulcerations, or small lesions, but it is
another viable alternative for diagnosing an upper GI bleed. Tr.
at 83, 89 - 90, 291. Dr. Kops testified that there were no
contraindications for doing either an endoscopy or an upper GI
series on this patient, and both he and Dr. Sperling stated that
Petitioner's failure to rule out upper GI tract bleeding with an
upper GI workup was a digression from professional standards of
care. Tr. at 79 - 84, 298.

In support of the argument that professionally recognized standards
of care dictate that an endoscopy or upper GI series should be used
to diagnose an upper GI bleed, the I.G. relied on Harrison's
Principles of Internal Medicine. I.G.'s Brief at 23. However,
Petitioner contended, through his expert Dr. Nicholas, that there
is considerable controversy about the role of routine endoscopy in
upper GI bleeding. Tr. at 417. Dr. Nicholas opined that, based on
a study showing no increase in the number of further hospital
admissions, surgeries, or death for patients who did not have an
endoscopy, and who were treated only with antacid therapy,
endoscopy should not be a routine procedure in patients with upper
GI tract bleeding that ceases during treatment. 13/ Tr. at 417 -
418. Dr. Nicholas testified that since the bleeding in this case
had essentially stopped, as evidenced by the +1 occult blood test
result, an endoscopy was not necessary.

I do not find Petitioner's reliance on this controversy about the
efficacy of endoscopy in evaluating the source of GI bleeds to be
persuasive. The presence of a controversy relating to the need for
endoscopy does not justify the conclusion that endoscopy
examinations or upper GI x-ray series should not be done when upper
GI bleeding occurs which ceases after the initial bleeding.
Moreover, Dr. Nicholas acknowledged that, despite the existence of
the controversy "some people [physicians] do endoscopies for all
upper GI bleeds." Tr. at 424. Furthermore, Petitioner has failed
to demonstrate that the existence of the controversy in 1991
altered professionally recognized standards then in effect to do
endoscopic or upper GI x-ray examinations.

Petitioner did not offer any evidence to prove that he relied upon
the controversy cited by his expert in making his decision to
forego doing an endoscopy on this patient. 14/ To the contrary, he
testified that he based his decision on his dislike of defensive
medicine and this patient's dislike of undergoing uncomfortable
procedures. Interestingly, the colonoscopy that Petitioner ordered
for this patient is considered to be a more strenuous test than an
endoscopy. Tr. at 298. A colonoscopy takes longer and requires
more sedation than does an endoscopy. Id. Moreover, it appears
that Petitioner's belated reference to this controversy is an
attempt to use post hoc rationalizations as an explanation for his
actions. Thus, I find that, absent any evidence that the
controversy regarding the use of endoscopies had been resolved in
Petitioner's favor in 1991, and absent any evidence that Petitioner
was even aware of the controversy and relied on it to support his
treatment of this patient, the expert testimony regarding the
standard of care in 1991 should be applied in this case. 15/

Petitioner belatedly argued also that an endoscopy was not done
during the hospitalization, due to the unavailability of an
endoscopist, and that further GI evaluation would have been
performed subsequent to her discharge if she had not adequately
recovered as an outpatient. Tr. at 353; I.G. Ex. 17 at 4. He made
this argument in April 1992, in response to IPRO's challenge of the
treatment of this patient. I.G. Ex. 17 at 4. Again, such
reasoning is suspect, since Petitioner's hospital progress notes
for the patient (which were completed shortly after her discharge
in 1991) contain no references to consideration of an endoscopy
examination. I.G. Ex. 17 at 9 - 12. In response to my questions,
Petitioner indicated that the progress notes contain the
summarization of his treatment of the patient. 16/ Tr. at 357. He
further indicated that "all of the information that [he] thought
... was important to the patient that [he] discussed with her"
would be included in his summary. Tr. at 358. When I inquired at
the hearing why he did not include in his summary the circumstances
regarding the endoscopic examination that were contained in his
response to IPRO, he replied that this was a "simple omission."
Tr. at 361. I do not find this to be a credible response. I
conclude that Petitioner did not consider conducting an endoscopic
examination of this patient either as part of her hospitalization
or part of her aftercare.

Petitioner's failure to perform either an endoscopy or upper GI
series examination was a substantial violation of professionally
recognized standards of care. Petitioner's violation of
professionally recognized standards of care is serious. Petitioner
never definitively determined the source of the bleeding. Without
doing appropriate diagnostic testing, he concluded that the
bleeding resulted from an hiatus hernia. Dr. Kops testified that
Petitioner's failure to do an upper GI examination of this patient
exposed her to the serious risk of having a gastric malignancy go
undetected, thus delaying necessary treatment. Petitioner's
failure exposed this patient to the additional risk of rebleeding.
Tr. at 292. Petitioner acknowledges that the endoscopic
examination is the most accurate tool in diagnosing upper GI bleeds
and that, if the patient rebled, such test would have been ordered.
There is no credible evidence in the record to support Petitioner's
assertion that an endoscopic examination could not be performed on
this patient during her hospitalization. Nor do professionally
recognized standards of care support Petitioner's apparent medical
judgment to await a future GI bleed before conducting an upper GI
examination of this patient.

Patient 039837

PRO Findings: Failure to obtain a post-procedure x-ray
resulting in delay of diagnosis, and failure to properly evaluate
and work-up a septic patient.

[I.G.] Analysis: Patient had a 40% collapse of a lung due to
air between the lung and the chest wall. This followed an attempt
to remove fluid from the chest, and required insertion of a chest
tube to attempt to re-expand the lung by removing the aid
compressing the lung. A chest x-ray should have been obtained to
determine the status of the chest after the first procedure. Also,
urine cultures were not obtained on this septic patient.

[I.G.] Decision: The medical records support the PRO
findings, and the findings are upheld. (Quality of care violation)

My Analysis: On September 28, 1991, this patient, an 89-year-old
female, was transferred from the chronic care ward to the active
floor of Little Falls Hospital. At the time of the transfer, her
skin was mottled, as if she was about to die, and she was bathed in
cold perspiration. She was unresponsive. She had a temperature of
104 degrees, a cough and diarrhea. I.G. Ex. 18 at 4, 11, 14, 16;
Tr. at 211 - 212. Petitioner diagnosed her as being in a septic
state. I.G. Ex. 18 at 14. Petitioner did not take a urine
culture. However, he did take blood and sputum cultures. I.G. Ex.
18 at 5.
An x-ray revealed a large pleural effusion, a large amount of fluid
in her right chest. I.G. Ex. 18 at 4, 48; Tr. at 213. This
problem had appeared previously and it had been treated; however,
it recurred rapidly. Tr. at 213. Petitioner performed a
thoracentesis on the patient that day. 17/ I.G. Ex. 18 at 12. The
thoracentesis was accomplished with difficulty, since the patient
could not sit up due to the fact that she had no palpable blood
pressure. In order to perform the procedure, it was necessary for
her to be placed with her right side down and her head slightly
elevated. I.G. Ex. 18 at 4. A follow-up chest x-ray was not taken
until the day following the thoracentesis. Tr. at 103, 215. On
the second hospital day, September 29, a chest x-ray was performed
which revealed a partial pneumothorax on the right side of the
chest. 18/ The patient had a partial collapse of her right lung.
The upper lobe of the right lung adhered to the chest wall. I.G.
Ex. 18 at 12, 49; Tr. at 95, 215. The partial collapse of the
upper right lung meant that she had only the use of the lower right
lung and the left lung to breathe. Tr. at 215.

On the third hospital day, September 30, Petitioner reported that
her condition appeared to have improved. I.G. Ex. 18 at 12.
Petitioner did not perform a chest x-ray. On the fourth hospital
day, October 1, the nurses at the hospital summoned Petitioner and
told him that the patient did not look well. Petitioner reported
that she had some shallow respirations and that she appeared
somewhat stuporous. Tr. at 217; I.G. Ex. 18 at 12. An x-ray was
performed which revealed that her right chest had again filled up
with fluid. I.G. Ex. 18 at 50; Tr. at 217. Another thoracentesis
was performed. A chest tube was inserted which drained fluid for
a few days. I.G. Ex. 18 at 12; Tr. at 217 - 218. As a result of
the chest tube, her right lung re-expanded and the pleural effusion
decreased. I.G. Ex. 18 at 4, 51. On October 4, 1991, the patient
died. I.G. Ex. 18 at 13.

The I.G. contends that Petitioner violated his duty to provide care
that meets professionally recognized standards of health care by
failing to take an x-ray of the patient immediately after
performing the September 28, 1991 thoracentesis and by failing to
take a urine culture from the patient. Notice at 3. Petitioner
did not deny that professionally recognized standards of care
required him to perform a chest x-ray immediately after the
September 28, 1991 thoracentesis. Tr. at 215. He also
acknowledged that it was not done until the following day. Id.
Moreover, Petitioner did not deny that professionally recognized
standards of care required that he obtain a urine culture for the
patient, who was in a septic state upon arrival at the active floor
of this hospital. Petitioner admitted that his failure to take a
urine culture was an oversight. I.G. Ex. 18 at 5.

With regard to the failure to take an x-ray immediately after
performing the thoracentesis, Petitioner's arguments focused
primarily on his decision to delay the insertion of the chest tube.
He asserted that he elected to wait to insert the chest tube until
two days after he discovered the pneumothorax because he thought
that if it was left alone it would reabsorb and the lung would
re-expand. Tr. at 216. He testified also that another reason he
waited until the fourth hospital day was that her oxygen
saturation was good on the third hospital day and a physical
examination indicated that she had air in her chest. Tr. at 217.

Dr. Sperling's testimony focused primarily also on Petitioner's
insertion of the chest tube. He indicated that the chest tube
should have been inserted on the first hospital day, immediately
after discovering the first pleural effusion. Tr. at 97. He
indicated that Petitioner's delay in inserting the chest tube
compromised the patient's care and put her at risk for developing
a tension pneumothorax, and an inability to breathe, which would
lead to a mediastinum flutter and cardiac arrest. 19/ Tr. at 98 -
99. He testified that these risks were "directly due to a
thoracentesis that was done inadequately, and should not have been
done, other than for a smear, and then should have been followed up
immediately by a chest x-ray." Tr. at 98. As to the timing of the
x-ray, he testified that it is necessary to take a chest x-ray
immediately after doing the thoracentesis, at the patient's
bedside, in order to make sure that no damage was done during the
thoracentesis and to determine whether all the fluid had been
removed. Tr. at 96.

Petitioner's expert witness, Dr. Nicholas, stated that Petitioner
inserted the chest tube at the appropriate time, since the need for
the chest tube was the re-accumulation of fluid in her chest, and
not the pneumothorax, and that this pleural effusion did not appear
until the fourth hospital day. Tr. at 455. Dr. Nicholas testified
also that there would be controversy among "reasonable doctors" as
to the timing of the chest tube insertion in this patient. Tr. at
456. He indicated that this was a peculiar case, since the
patient's right lung had only partially collapsed and she was still
able to breathe and she was doing well clinically. Id.

As for the chest x-ray, however, Dr. Nicholas admitted that the
standard of care is for a chest x-ray to be taken on the same day
that thoracentesis is performed, and he indicated that Petitioner
violated the standard by failing to do so. Tr. at 466 - 467. Yet,
he testified that the delay in obtaining a chest x-ray did not
compromise the patient's care in this case. Tr. at 452. In
support of his position, he cited to IPRO's second physician's
review, which states that "It [the x-ray] should have been done no
matter what the clinical improvement was but it would not have
prevented the pneumothorax or changed the course." Dr. Nicholas
noted also that the second IPRO physician who reviewed Petitioner's
medical records and the findings of the first reviewing physician,
reduced the quality determination from a level three violation to
a level two violation. 20/

I find that Petitioner's conduct was a substantial violation of
professionally recognized standards of care. By delaying the
x-ray, Petitioner delayed the diagnosis of this patient. At the
1992 hearing before IPRO, Dr. Sperling asked Petitioner if he
considered "getting a portable x-ray up and putting the chest plate
under her" in order to determine whether the thoracentesis
procedure caused the pneumothorax. I.G. Ex. 6 at 46. Dr. Sperling
indicated that an x-ray immediately after the thoracentesis was
necessary because Petitioner performed the thoracentesis with the
patient on her side, and therefore, he "violated a closed space
with a needle." Id. If an x-ray had been taken right after the
thoracentesis, Petitioner could have immediately determined whether
his needle had caused the pneumothorax which was discovered a day
after the thoracentesis was performed. In addition, during the
1992 hearing before IPRO, Petitioner essentially admitted that the
pneumothorax had probably resulted from the difficulty he
encountered in doing the thoracentesis. I.G. Ex. 6 at 55.

Furthermore, at the hearing before me, Dr. Sperling testified that
a portable x-ray should have been taken after the thoracentesis:

to make certain that you've gotten the fluid out, that you
haven't clipped the lungs and now developing a pneumothorax, a
tension pneumothorax, which would directly affect the patient's
cardiac status, you just have to do it just to make certain that
you haven't caused any damage. After all you're going in blindly.
You don't know where you're putting that needle or trochar, so you
have to see what you've done.

Tr. at 96. Thus, the significance of taking an x-ray immediately
after the thoracentesis is to ensure that the thoracentesis was
done properly, that all of the fluid was removed from the patient's
chest, and that no damage was done to the lung.

Petitioner's failure to follow the standard procedure upon
completion of a thoracentesis delayed diagnosis, in that a
pneumothorax and a partial collapse of the right lung was
discovered the day after the thoracentesis, and a second pleural
effusion appeared two days after the pneumothorax was discovered.
Tr. at 215 - 218. Petitioner indicated, at both the 1992 and 1993
hearings before IPRO, that as a result of this case he now
routinely takes x-rays immediately after doing a thoracentesis.
I.G. Ex. 6 at 55; I.G. Ex. 3 at 308.

I find also, as Dr. Sperling asserts, that Petitioner's violation
contributed to the risk of the patient developing a tension
pneumothorax and an inability to breathe which could lead to
cardiac arrest. Petitioner's failure to x-ray the patient until
the day after the thoracentesis delayed discovery of the
pneumothorax. According to professionally recognized standards of
care, his failure to monitor his patient's condition put her at
risk of developing further complications. Indeed, the patient
developed a pleural effusion two days after the pneumothorax was
discovered.

Dr. Sperling's opinion with regard to the risks he cited was based
not only on Petitioner's failure to immediately obtain a chest
x-ray, but also upon his opinion that Petitioner inadequately
performed the thoracentesis and waited too long to insert the chest
tube. Tr. at 97. I do not consider the significance of these
additional allegations, since they are not relevant to the issue of
whether he violated professionally recognized standards of care in
this case. IPRO cited Petitioner for his failure to obtain a
post-thoracentesis x-ray, and not for the adequacy of his
thoracentesis or his alleged delay in inserting the chest tube.
Accordingly, I do not consider these other allegations of
wrongdoing, and my determination that Petitioner substantially
violated professionally recognized standards is based only on his
failure to obtain a post-thoracentesis x-ray. I do find, however,
that Petitioner's failure to obtain an immediate post-thoracentesis
x-ray contributed to the risk of this patient developing an
inability to breathe as a result of the pneumothorax, and possibly
led to cardiac arrest, as stated by Dr. Sperling. These are
serious risks which possibly could have been avoided had Petitioner
followed professionally recognized standards of care in this case.
The reduction by the IPRO physician of the level of care violation
from three to two does not negate the conclusion that Petitioner's
conduct placed this patient at serious risk, albeit it may not have
caused her death.
IPRO found also that Petitioner failed to properly evaluate and
work-up a septic patient. Notice at 3.
Upon initial examination of the patient, Petitioner diagnosed her
as being in a septic state. I.G. Ex. 18 at 14. He performed blood
and sputum cultures, but failed to do a urine culture. I.G. Ex. 18
at 5. When questioned about his failure to perform a urine
culture, Petitioner admitted that he simply forgot to do it. Id.
Moreover, Petitioner did not rebut the I.G.'s finding that
Petitioner's failure to take a urine culture was in violation of
professionally recognized standards of care for a patient who is in
a septic state.

Dr. Nicholas testified that, since it was determined from the serum
culture that the patient in this case had influenza, and since the
patient did not have any urinary symptoms, it was not unreasonable
for Petitioner to have foregone a urine culture. Tr. at 458 - 459.
He stated also that it is possible that the patient was not truly
septic, within the proper meaning of the word. Tr. at 459.
Finally, he asserted that, at the time the patient was first
examined, she was "essentially suffocating," and the urine culture
was not the first priority. Tr. at 460. These arguments are
unpersuasive, however, since Petitioner indicated that he did not
make a conscious decision to forego a urine culture for this
patient, rather he simply forgot to do it. I.G. Ex. 6 at 43, I.G.
Ex. 3 at 86, I.G. Ex. 18 at 5. Moreover, Dr. Nicholas did not deny
that the professionally recognized standard of care for a patient
who the examining doctor believes is in a septic state is to obtain
a urine culture. Tr. at 462. On the basis of all of the testimony
and medical records in this case, I find that Petitioner's failure
to obtain a urine culture of this patient was a substantial
violation of professionally recognized standards of care for a
septic patient.

Patient 058705

PRO Findings: Failure to initiate treatment of local skin
lesions resulting in a decubitus ulcer.

[I.G.] Analysis: Patient noted to have blisters on buttocks
and be debilitated. No plan of care or treatment was initiated and
patient developed a 4 cm. decubitus ulcer. Practitioner states
that local treatment with ointment, daily, as well as systemic
antibiotics were given for therapy of ulcer which became a
decubitus. The medical record shows an order for `neosporin
ointment to decubiti Lt. Buttock BID' by telephone order 7/31/91,
for patient admitted 7/8/91 and discharged 8/2/91. Nurses note
abrasion left buttock on admission. Yellow central area with
surrounding 6" red area on buttock noted 7/14/91, treated with A &
D ointment.

[I.G.] Decision: The medical records support the PRO
findings, and the findings are upheld. (Quality of care violation)

My Analysis: This patient was a 73-year-old man who was admitted
to Little Falls Hospital on July 8, 1991, after being found lying
on the floor of his apartment. I.G. Ex. 19 at 12 - 13. In his
progress notes, written on the date the patient was admitted,
Petitioner noted that the patient had blisters on his buttocks.
Petitioner attributed this to the fact that the patient had been on
the floor of his apartment for a considerable period of time. I.G.
Ex. 19 at 14, 25.

On examination, the patient had a considerable amount of dried
feces around the rectum. His family reported that he had a
continuing problem with bowel incontinence. I.G. Ex. 19 at 16. In
his admission report, Petitioner opined that the patient's
incontinence was probably explained by chronic impaction, and he
indicated that he would attempt to relieve the impaction. I.G. Ex.
19 at 17. Petitioner stated also that the patient probably had
chronic organic brain syndrome. Id.

On July 11, 1991, Petitioner's progress notes indicated that the
patient's cellulitis on his buttock was "involuting." I.G. Ex. 19
at 26. His progress note entered on July 16, 1991 indicated that
the patient's ulcer on his left buttock was "[h]ealing." Id. That
note indicated also that the lesion was six centimeters in size.
On July 29, 1991, Petitioner's progress notes state that the
patient had an unhealed ulcer on his buttock that was four
centimeters in size. I.G. Ex. 19 at 27.

On July 31, 1991, Petitioner telephoned an order that the lesion be
treated with Neosporin, a topical antibiotic. I.G. Ex. 19 at 24;
Tr. at 261. On August 2, 1991, the patient was discharged to the
County Home for ongoing care. I.G. Ex. 19 at 13, 15. Petitioner's
final diagnoses included cellulitis of the buttock and decubitus
ulcer. I.G. Ex. 19 at 10. The patient's discharge instructions
included application of Neosporin ointment to the buttock. I.G.
Ex. 19 at 107.

The nursing notes contained in the chart describe the patient's
buttocks on the date of admission as reddened with skin breakdown.
The nursing notes indicated also that the patient was being moved
from side to side at regular intervals. I.G. Ex. 19 at 54. On
July 9, 1991, the nurses applied A&D ointment to the left buttock.
I.G. Ex. 19 at 56. The nursing notes reported that on July 10,
1991, the patient ambulated from the bed to the chair with some
assistance. I.G. Ex. 19 at 58.

On July 11, 1991, the nursing notes described the patient's lesion
on his left buttock as a "yellow central area surround[ed] by 6"
diameter red area" and indicated that there was "no drainage." 21/
The nurses applied A&D ointment, and reported that the patient
ambulated well with a walker. I.G. Ex. 19 at 60. The following
day the nursing notes reported that "Red area on L[eft] buttock
seems smaller (approx 5 [inches] diam) & less red than 7/11." On
that day, the patient ambulated in the hall with a walker. I.G.
Ex. 19 at 62.

On July 15, 1991, the nursing notes indicated that the left buttock
abrasion was "much smaller" than it had been on July 12, 1991. The
notes stated that it was a "small open area near large white patch
surrounded by small red margin." In addition, the notes stated
that A&D ointment was applied and that the patient was moved out of
bed to his chair. I.G. Ex. 19 at 68. On July 16, 1991, the
nursing note described the abrasion as yellow with dry skin at the
margins. A&D ointment was applied. The patient was reported as
tolerating activity well. I.G. Ex. 19 at 70.

On July 21, 1991, the nursing notes stated that the patient's wound
on his left buttock was "healing" and that it was clean with clear
edges. I.G. Ex. 19 at 80. The following day the nursing notes
described the abrasion as an "open area" with a "small amount of
yellow drainage." A&D ointment was applied. I.G. Ex. 19 at 82.
The next day the nurse noted a "small amount of red drainage." A&D
ointment was applied. I.G. Ex. 19 at 84. The nurse stated that
there was "no change" to the patient's buttock condition the
following day. I.G. Ex. 19 at 86.

On July 30, 1991, the nurse noted an open area on the left buttock
and stated that it "appears to be healing." I.G. Ex. 19 at 98.
The following day the nurse reported that the lesion was a "dry,
open area" and that the patient did not complain of pain. I.G. Ex.
19 at 103.

The undisputed expert medical evidence shows that prolonged
pressure can result in a breakdown of the skin and a diminished
blood supply to the affected area. As the tissue breaks down, it
can develop into an infection that erodes the layers of skin and
affects the muscle and bone. In addition, it is undisputed that
professionally recognized standards of care require an attending
physician to initiate a written plan of care to address skin
conditions caused by prolonged pressure. Tr. at 255, 272.

Petitioner admitted during the hearing that he did not adequately
document a plan of care. Tr. at 486, 489 - 490. This admission is
supported by the patient's chart, which shows that the only written
documentation of a physician order pertaining to the treatment of
this skin condition was made on July 31, 1991, when Petitioner
telephoned an order for Neosporin. I.G. Ex. 19 at 24.

In view of the foregoing, I find that Petitioner failed to document
a plan of care to treat this patient's skin condition and that this
was a substantial violation of his obligation to provide care in
accordance with professionally recognized standards of care.

The I.G. argues that this case is not simply a matter of poor
documentation. The I.G. contends that Petitioner failed to
properly address and follow up on the patient's need for skin care
and that this is demonstrated "by the fact that his condition
worsened over the course of his hospitalization, and that there
were no physician's orders expressly addressing this condition
until July 31, 1991, some 23 days after admission." I.G.'s Reply
at 6.
Petitioner alleges that he initiated a plan of care to address this
patient's skin condition and that he directed the nurses to carry
it out orally. He contends that his care did not cause the
patient's condition to worsen. He asserts also that the patient
did not ever have a true decubitus ulcer, as the I.G. alleges.

I find that the evidence establishes that this patient suffered
from a decubitus ulcer. This patient's medical chart shows that
the final diagnoses of this patient's medical condition made by
Petitioner included a decubitus ulcer. Petitioner's diagnosis of
a decubitus ulcer is supported by Dr. Kops' testimony. Dr. Kops
defined a decubitus ulcer as an erosion or ulceration of tissue
caused by prolonged pressure. He indicated that decubitus ulcers
can vary in their severity. As the decubitus ulcer becomes more
severe, it can erode muscle and bone tissue. Tr. at 255.

The July 11, 1991 nursing notes described this patient's skin
lesion as a yellow central area surrounded by a red area six inches
in diameter. Dr. Kops testified that this description of the
condition of this patient's skin is consistent with the formation
of a decubitus ulcer. Tr. at 257. In addition, Dr. Kops opined
that this patient had a decubitus ulcer on July 22, 1991, when the
nursing notes described the affected area as open with small
amounts of yellow drainage. Dr. Kops testified that this
description suggested the drainage of pus. On July 23, 1991, the
nursing notes described red drainage, and Dr. Kops testified that
this suggested that the drainage was mixed with blood. Tr. at 259
- 260.

I find this evidence to be persuasive, and it establishes that this
patient had a decubitus ulcer during the course of his hospital
stay. The Merck Manual provides additional support for this
finding. It defines a decubitus ulcer as ulceration of tissues
that have been subjected to prolonged pressure. It states that the
stages of decubitus ulcer formation correspond to tissue layers.
The first stage consists of skin redness that disappears on
pressure. The second stage shows redness, edema, and induration,
at times with blistering. In the third stage, the skin becomes
necrotic, with exposure of fat. In the fourth stage, necrosis
extends to the muscle. Further fat and muscle necrosis
characterizes the fifth stage. In the sixth stage, bone
destruction begins. Merck Manual (15th ed. 1987) at 2298.

Dr. Nicholas testified that this patient never developed a "true"
decubitus ulcer. He defines a decubitus ulcer as an ulcer which
has penetrated through all the layers of the skin "into underlying
structures and then even deeper down into facia, muscle and bone."
Tr. at 568. He states that, using that definition, this patient
did not have a decubitus ulcer. Tr. at 569. Dr. Burke's testimony
echoed that of Dr. Nicholas. He stated that, while this patient
developed a superficial infection in the affected area, the lesion
was not a decubitus ulcer because it did not affect the tissue
underlying all the layers of the skin. Tr. at 488.

Neither Dr. Nicholas or Dr. Burke dispute that this patient had an
ulceration of superficial tissue which was caused by prolonged
pressure. They disagree with the I.G. only on nomenclature. While
it may be true that the patient did not have a decubitus ulcer
according to their definition of that term, I do not accept their
definition. The definition advocated by Dr. Nicholas and Dr. Burke
is not consistent with the definition contained in the Merck
Manual. That medical treatise indicates that an ulcer which
affects only superficial tissue is a decubitus ulcer in its early
stages of formation.

Moreover, the definition of a decubitus ulcer offered by Petitioner
and Dr. Nicholas at the hearing is not consistent with Petitioner's
contemporaneous diagnosis of a decubitus ulcer. Petitioner has
consistently maintained that only superficial layers of tissue were
affected by the ulcer, and there is nothing in the descriptions of
this patient's buttock in the chart which indicate that deep layers
of tissue were affected. Petitioner diagnosed a decubitus ulcer
for a condition that he maintains affected only superficial tissue.
His attempt to now redefine the term decubitus ulcer in a
self-serving manner is not persuasive.

In addition, I find that Petitioner did not prove that he initiated
a plan of care to treat this patient's skin condition which
Petitioner communicated to the nurses orally.

Petitioner testified that he became aware that this patient had a
blister on the buttock when the patient was admitted and that he
discussed the treatment of the patient's skin lesion with the
nurses at that time. He stated that he emphasized to the nurses
that the patient should be kept as dry as possible. In addition,
he stated that, since the patient was relatively inactive due to a
fever, he instructed the nurses to turn the patient from side to
side and to protect the affected area from continuous pressure.
Petitioner stated also that he instructed the nurses to keep the
affected area lubricated and to try to maintain the patient's
nutrition. Tr. at 480 - 481, 485 - 486.

Petitioner's testimony that he was aware that this patient had a
blister on his buttock at the time the patient was admitted is
corroborated by his July 8, 1991 progress note. However, there is
no corroboration for his testimony that he instructed the nurses to
take specific measures to care for this condition at the time the
patient was admitted.

Petitioner's progress notes and his orders do not mention these
instructions. While the nursing notes show that the care the
nurses gave to this patient was consistent with the instructions
Petitioner testified he gave to the nurses, there is no indication
in the nursing notes that this care was given pursuant to
instructions from Petitioner. Indeed, Petitioner testified that
the "problem of pressure sores and the problems of infection are a
day by day problem for the people who are nurses." Tr. at 486.
This comment suggests that Petitioner relied on the nurses to
provide routine treatment for this type of condition.

Moreover, a nurse did document Petitioner's July 31, 1991 telephone
order for Neosporin. I.G. Ex. 19 at 24. This suggests that, had
Petitioner ordered the nurses to follow a designated treatment
plan, they would have documented that plan in the patient record.
Also absent from the record is the testimony of the nurse who would
have received the oral instructions Petitioner asserts he gave. In
view of the foregoing, I am not convinced by Petitioner's
unsubstantiated testimony that he initiated a plan of care to treat
this patient's skin condition which he communicated to the nurses
orally at the time the patient was admitted. I find also that
Petitioner's failure to orally initiate a plan of care to treat
this patient's skin condition is a substantial violation of
professionally recognized standards of care.

While I find that Petitioner's failure to initiate a plan of care
is a substantial violation of professionally recognized standards
of care, this does not mean that I conclude that Petitioner ignored
this patient's skin condition. The record shows that treatment was
provided by the nurses from the beginning. The patient was turned
from side to side at regular intervals. The patient was ambulating
within days of his admission, and he was encouraged to ambulate
regularly after that. The nurses applied A&D ointment repeatedly.
The patient's linens were changed when they were wet, and the
nurses monitored his eating. I.G. Ex. 19 at 54 - 103.

This treatment was provided by the nurses in coordination with
Petitioner's visits to attend to the patient. It is reasonable to
conclude that, while Petitioner did not explicitly order the nurses
to provide this treatment, he was aware of it and he did nothing to
show that he disapproved of it. In addition, Petitioner made
periodic notations in his progress notes regarding this patient's
skin condition, which shows that he was monitoring it. He was,
therefore, in the position to intervene and alter the treatment if
he thought it was necessary. In fact, he did intervene on July 31,
1991 when he ordered Neosporin for this patient. Petitioner
testified that the reason he ordered Neosporin at this time was
that he wanted the patient to have it to treat his unhealed ulcer
after he left the hospital. Tr. at 488. Thus, I find that,
although Petitioner did not explicitly initiate a plan of care, he
nevertheless was informed about the patient's condition and he was
involved in the treatment of it.

Moreover, I find that the evidence fails to establish that
Petitioner's care of this patient's skin condition resulted in
adverse consequences to this patient, as the I.G. alleges.

The I.G.'s assertion that this patient's condition worsened over
the course of the hospitalization implies that the patient's skin
condition steadily deteriorated during the course of his hospital
stay. While the descriptions of the patient's decubitus ulcer in
the chart demonstrate that Petitioner's skin ulcer never healed
completely during the course of the hospitalization, they do not
show that his condition consistently worsened over time.

On the contrary, the chart entries show that the condition had
periods of healing during his hospital stay. The patient was
admitted on July 8, 1991 with a blister on his buttocks. This
finding on admission suggests that, under the Merck Manual
description of the staging of decubitus ulcers, the patient had a
decubitus ulcer in its early stages. Three days later, Petitioner
noted that it had gotten smaller. 22/ Nursing notes on July 12 and
15, 1991 reported that the lesion was getting smaller.
Petitioner's July 16, 1991 note described the lesion as "healing."
The nursing note entry on July 21, 1991 also described the lesion
as "healing." While some drainage was noted for the first time by
the nurses on July 22 and 23, 1991, the notes described it as a
"small amount" and there is no indication that the lesion affected
deep layers of tissue such as bone or muscle. It is at this point
in the record of the patient's hospitalization that his decubitus
ulcer is arguably at its worst stage. But, again using the Merck
Manual as a reference, the evidence fails to establish that the
decubitus ulcer affected deep tissue layers and advanced beyond the
third stage. The I.G. concedes that the medical records'
description of the patient's decubitus ulcer is "consistent with
the lesion progressing through the early stages of a decubitus."
I.G.'s Supplemental Brief at 3. On July 30, 1991, the nursing
notes indicate that the lesion "appears to be healing." On July
31, 1991, the nurses describe the lesion as dry and the patient did
not complain of pain.

Dr. Kops provided testimony which suggests that Petitioner failed
to treat this condition adequately. The nursing notes state that
there was a breakdown of skin on the date of admission. Dr. Kops
opined that, once the skin breaks down, the application of A&D
ointment is inappropriate because it traps moisture and may cause
further breakdown of the skin. Tr. at 258. Dr. Kops stated also
that a topical antibiotic should be applied as soon as the skin
breaks down. In addition, he stated that dressings should be
changed daily. Tr. at 262. While Dr. Kops criticized the care
this patient received, he then contradicted himself and testified
that the nursing care, including the application of ointment, was
in accordance with professionally recognized standards. He
testified that the deficiency here was just a lack of documentation
and a lack of specific order to the nurses. Tr. at 274. Dr. Kops'
testimony is confusing and contradictory, and, therefore, I find
that it does not establish that Petitioner's care was inadequate.

On the other hand, Dr. Nicholas testified that the measures which
were taken to treat this skin condition were in accordance with
professionally recognized standards of care. Tr. at 581. He
indicated that relieving the pressure on the lesion is imperative
and that this was done when the nurses moved the patient from side
to side and encouraged the patient to get out of bed. In addition,
he stated that it is important to attend to the patient's nutrition
and that this was done here. Tr. at 566 - 567, 586 - 587. He
acknowledged that, while the application of A&D ointment may have
some drawbacks, it has the substantial benefit of decreasing the
likelihood that the condition will be aggravated by sheet burns.
He explained that a week of healing can be destroyed with "one yank
across the sheet." Tr. at 573. Dr. Nicholas opined also that the
use of dressings is "optional." He indicated that the use of
dressings for superficial lesions has the disadvantage of making
the skin "sort of water logged and fragile." Tr. at 573 - 574. He
indicated also that antibiotics generally are not necessary to
treat superficial lesions. Tr. at 575.

The record fails to demonstrate that any of the treatments employed
had a significant adverse effect resulting in the worsening of the
patient's ulcer during his hospitalization. As previously conceded
by the I.G., this patient's ulcer never progressed beyond the early
stages. 23/

Also Dr. Nicholas expressed the view that the reason this patient's
condition persisted was not due to the care he received, but
instead it was due to the fact that he was impacted and
incontinent. The unfortunate consequence of this condition was
that the patient sometimes was lying in liquid diarrhea. Tr. at
580. Even Dr. Kops acknowledged that the fact that this patient
was continually soiling himself would impede the quick healing of
this patient's skin condition. Tr. at 263.

Dr. Nicholas' opinion on the adequacy of Petitioner's treatment of
this patient is well-rationalized and persuasive. I find that the
evidence does not establish that this patient suffered any adverse
consequences as a result of Petitioner's care of his skin
condition.

Patient 032141

This patient involves two cases referred to in the I.G. Notice
(Cases 6 and 7 at page 4 of the Notice). The first case pertains
to Petitioner's treatment of the patient after she was admitted to
Little Falls Hospital on July 25, 1991. The second case pertains
to Petitioner's treatment of the patient after she was admitted to
Little Falls Hospital on August 4, 1991.

First case: (Admission date 7/25/91)

PRO Findings: Failure to evaluate severe pain in a patient
resulting in premature discharge and readmission for the same
complaint within 72 hours.

[I.G.] Analysis: Patient discharged without evaluation of
complaint (severe left thigh pain). Patient was discharged but
readmitted for the same complaint within 72 hours. Patient
complaining of pain on day of discharge.

[I.G.] Decision: The medical records support the PRO
findings, and the findings are upheld. (Quality of care violation)

Second case: (Admission date 8/4/91)

PRO Findings: Failure to evaluate severe pain in a patient
resulting in premature discharge and readmission for the complaint
with 48 hours.

[I.G.] Analysis: Patient hospitalized and discharged without
evaluation of complaint (severe left thigh pain). This resulted in
premature discharge and subsequent readmission within 48 hours.
There is not an extended period of pain relief.

[I.G.] Decision: The medical records support the PRO
findings, and the findings are upheld. (Quality of care violation)

My Analysis of both cases: The medical record pertaining to these
two cases shows that the patient, a 70-year-old female, was
initially admitted to Little Falls Hospital on July 25, 1991. In
a medical report written at the time of the patient's admission,
Petitioner described the patient's chief complaint as "Intractable
pain, left lateral thigh, two weeks duration." Petitioner noted
that "[t]his patient is no stranger to intractable pain" and that
she had a history of recurrent pains in the abdomen and chest of an
unknown etiology. Petitioner noted also that in the past the
patient "has been suspected of dependency on Darvon." I.G. Ex. 20
at 14 - 15.

Petitioner reported also that his physical examination of the
patient at the time of admission revealed that the patient had
"point tenderness at the insertion of the fascia lata into the
greater trochanter on the left side." He noted that the patient
had been treated as an outpatient three to four days prior to
admission with injections of medication. This had given her relief
from the pain for about an hour, and then the pain recurred. Upon
admission, Petitioner again injected the patient with medication at
the base of the trochanter on the left side. Again, this injection
gave the patient relief from the pain for a short period, and then
it recurred. I.G. Ex. 20 at 15. At the time of admission,
Petitioner diagnosed "Pain, left lateral thigh, either trochanteric
tendinitis with fascia lata syndrome or diabetic neuropathy." I.G.
Ex. 20 at 14.

Petitioner referred the patient to a physical therapist for
treatment. In a report dated July 26, 1991, the physical therapist
reported that the patient had discomfort during hip flexion and
external rotation. During the course of the patient's hospital
stay, she was treated with a combination of ultrasound, moist heat,
a "TENS" unit, anti-inflammatory medication, and a series of active
exercises. I.G. Ex. 20 at 24, 27.

In addition, Petitioner obtained a psychiatric consultation. In a
report dated July 30, 1991, the consulting physician opined that,
while the patient did not appear to suffer from any major
psychiatric illness, there was a possibility that the patient's
pain could be symptomatic of a major depression. I.G. Ex. 20 at 22
- 23. During this admission, the patient was not examined by an
orthopedist or neurologist, nor were any x-rays or "CAT" scans
taken of the patient's hip and thigh. Tr. at 643.

The patient complained of intermittent pain throughout her stay in
the hospital. Ex. 20 at 42 - 56. On August 1, 1991, the day that
she was discharged, she complained of pain and became more
comfortable after a new patch was applied to the "TENS" unit. At
the time of discharge, she was independent in ambulation and was
able to bear weight on her left leg. I.G. Ex. 20 at 27. In the
discharge summary, Petitioner reported that the patient's "pain
problem had improved, but it had not been completely relieved."
The patient was discharged with instructions to take medication,
and she was advised to see Petitioner for a follow-up examination.
I.G. Ex. 20 at 13, 62. She was discharged with a diagnosis of left
trochanter tendinitis with fascia lata syndrome. I.G. Ex. 20 at 8.

On August 4, 1991, the patient was again admitted to the hospital
for the same complaint of severe pain in her left thigh. She was
injected with local anesthetics in the tender area of the left
trochanteric area. The pain remained intractable, and she was
admitted to the hospital for care and "perhaps additional
diagnostic maneuvers." However, at 9:00 p.m., the patient had
achieved complete relief of her pain. I.G. Ex. 20 at 80. The
following morning the patient reported no pain and was discharged.
I.G. Ex. 20 at 95. As with the previous admission, no x-rays or
"CAT" scans were taken, and no orthopedic or neurologic
consultations were obtained. Tr. at 645 - 646. On August 7, 1991,
she was readmitted to the hospital with the same complaint. I.G.
Ex. 6 at 118.

The I.G. did not offer any direct testimony at the hearing in
support of the PRO findings. Instead, the I.G. contends that the
record substantiates the PRO findings set forth in the Notice.

The I.G. argues that, during these two admissions, Petitioner did
not take the necessary steps to accurately diagnose this patient's
condition, but attempted only to treat her symptoms. In support of
this argument, the I.G. relies on the fact that, during both
admissions, no radiologic studies were done and no consults from a
neurologist or orthopedist were requested by Petitioner. The I.G.
points out also that, although the patient's pain was addressed
during the first admission with injections and a "TENS" unit, the
entries on the chart do not reflect any consistent alleviation of
her condition. According to the I.G., Petitioner's failure to
adequately evaluate this patient during the first admission
resulted in a readmission of the patient within 48 hours of her
first discharge. The I.G. argues that, even after the second
admission, Petitioner lacked the information needed to make a
definitive diagnosis and points out that the patient was readmitted
within 48 hours. The I.G. contends that Petitioner prematurely
discharged the patient on August 1, 1991, after the first admission
and that the second discharge, on August 5, 1991, was premature as
well.

I find that in these cases the weight of the evidence fails to
establish the PRO Findings contained in the Notice.

I agree with the I.G. that the evidence establishes that Petitioner
did not perform any radiologic studies and that he did not obtain
medical consultations, other than a psychiatric consultation,
during the two hospital admissions at issue. However, I do not
agree with the I.G. that, based on this, I must conclude that
Petitioner failed to evaluate the patient's pain in accordance with
professionally recognized standards of care.

The I.G. has not presented any expert medical opinion evidence
setting forth what tests and consultations would be necessary to
meet professionally recognized standards of care under the
circumstances of this case. The I.G. did not offer any direct
testimony at the hearing on this issue, nor did the I.G. cite any
documents in the record which address this issue. Absent medical
evidence establishing that Petitioner's failure to perform
radiologic studies and obtain additional consultations violated
professionally recognized standards of care, I do not have a basis
to make this finding.

In addition, the I.G. relies on the fact that the patient's pain
symptoms had not been consistently alleviated during her hospital
stays and on the fact that the patient was readmitted within days
after being discharged to support the PRO finding that the patient
was prematurely discharged in these cases. However, the record is
devoid of expert medical opinion evidence establishing that
professionally recognized standards of care require that the
patient should have been free of pain for a specific period of time
before she was discharged from the hospital. Similarly, the record
is devoid of expert medical opinion evidence establishing that the
patient's readmission to the hospital for the same complaint within
a few days establishes that a prior discharge had been premature.
24/

On the other hand, Dr. Nicholas offered expert medical testimony in
which he opined that Petitioner's care of the patient in these
cases was in accordance with professionally recognized standards of
care. Tr. at 642, 652. Dr. Nicholas pointed out that the patient
had a history of fixating on pain and a history of dependence on
drugs. He indicated that these were important considerations in
Petitioner's decision to manage the patient's care conservatively.
Tr. at 630 - 631, 638 - 640.

Dr. Nicholas noted that Petitioner's physical examination of the
patient at the time of the first hospital admission revealed point
tenderness. According to Dr. Nicholas, this is often due to
tendinitis. Dr. Nicholas testified that, based on this, Petitioner
proceeded to inject the patient with medication. He indicated that
this procedure is both diagnostic and therapeutic because, if the
injection relieves the pain, it makes a diagnosis of tendinitis
very likely. Dr. Nicholas opined that Petitioner appropriately
evaluated the patient's pain symptoms. He stated that the fact
that the clinical examination revealed point tenderness together
with the fact that the patient experienced relief of pain with the
injection was highly suggestive of a diagnosis of tendinitis. Tr.
at 631 - 632. Dr. Nicholas testified that, under these
circumstances, radiologic tests and additional medical
consultations were not necessary to evaluate the patient's
condition during the two hospital stays. Tr. at 652.

Dr. Nicholas opined that the patient was not discharged prematurely
after either of the two hospital stays. He stated that tendinitis
is a condition known to produce intermittent pain, and that it
would be reasonable to expect a person suffering from this
condition to experience intermittent pain even after discharge from
a hospital setting. According to Dr. Nicholas, the patient showed
a therapeutic response to treatment during both hospitalizations,
and she was appropriately sent home to be followed as an
out-patient. Tr. at 636 - 638.

Dr. Nicholas expressed the view that the wisdom of Petitioner's
evaluation and treatment of the patient was demonstrated by the
fact that the patient was subsequently admitted to two other area
hospitals for over 56 days for the same pain complaint. During
those 56 days, the patient had an extensive array of tests and her
final treatment was the conservative treatment advocated by
Petitioner. In addition, at the end of the 56 days, the patient
was suffering from the adverse effects of morphine. Dr. Nicholas
stated that, since Petitioner was privy to the patient's history of
fixating on pain and drug dependence, he had astutely tried to
avoid lengthy hospitalizations and exposure to addictive drugs.
Tr. at 638 - 641.

Dr. Nicholas' testimony regarding Petitioner's care of this patient
is well-rationalized and persuasive. In addition, the I.G. has not
adduced any expert medical evidence to rebut Dr. Nicholas' opinion.
In view of this, I find that the I.G. did not prove that Petitioner
rendered care to this patient which did not meet professionally
recognized standards.

I have reviewed the transcript from the IPRO hearings involving
this patient. While it is difficult to discern with specificity
the deficiency cited by the IPRO physicians, it is clear that they
were concerned that Petitioner admitted this patient on several
occasions to evaluate her pain, but he did not perform sufficient
diagnostic tests to evaluate the pain. In addition, IPRO was
concerned that this failure led to two premature discharges and a
need for subsequent readmissions. The I.G. relies almost
exclusively on the lack of diagnostic tests being performed during
the hospitalizations in issue. However, Dr. Nicholas' testimony
establishes that, under the circumstances of this case,
Petitioner's conservative treatment of this patient without
performing extensive diagnostic tests was meritorious. In reaching
this conclusion, Dr. Nicholas took into account the chronicity of
the patient's pain complaints, her psychiatric history, her
possible drug dependency, and the hospital records showing
improvement or complete diminishment of her pain prior to each
discharge. The I.G. offered no proof that professionally
recognized standards of care would require different treatment
under the circumstances of these several admissions.

Patient 060460

PRO Findings: Failure to properly evaluate and treat patient
with changing neurological status.

[I.G.] Analysis: Patient admitted with questionable transient
ischemic attacks. No diagnostic work-up obtained, i.e., carotid
studies, doppler or ultrasound.

[I.G.] Decision: The medical records support the PRO
findings, and the findings are upheld. (Quality of care violation)

My Analysis: This patient, a 76-year old male, was brought by
ambulance to the emergency room at Little Falls Hospital on August
22, 1991, following a sudden episode of weakness, slurred speech,
and confusion. I.G. Ex. 22 at 11 - 12. He was admitted for
observation with a preliminary diagnosis of a transient ischemic
attack ("TIA"). I.G. Ex. 22 at 13. The I.G. contends that
Petitioner violated his duty to provide care that met
professionally recognized standards of health care by failing to
order a Doppler ultrasound study of the patient's carotid arteries.

TIAs may be caused by the build-up of arteriosclerotic plaques in
the carotid arteries which restrict blood flow to the brain. Tr.
111, 610. Patients with stenosis, or narrowing, of the carotid
arteries of 25 percent or more are at increased risk for both
stroke and coronary heart disease. I.G. Ex. 34 at 4. A Doppler
ultrasound is a non-invasive study which can help to measure the
degree of stenosis of the carotid arteries. Tr. at 113. It is not
possible, based on a physical examination alone, to diagnose the
degree of carotid stenosis. Tr. at 499 - 500.

Stenosis of the carotid arteries may be treated surgically or
medically. The professionally recognized standard for medical
treatment is to give anti-coagulant drugs, such as aspirin. P. Ex.
50 at 2, P. Ex. 51. The surgical treatment is carotid
endarterectomy, in which the arteriosclerotic plaques are
surgically removed from the carotid artery or arteries. Id.
Medical research has demonstrated that, in patients with severe
stenosis, that is occlusion greater than 70 percent, carotid
endarterectomy reduces the risk of stroke. P. Ex. 50 at 3, P. Ex
51. Medical research has not demonstrated that carotid
endarterectomy benefits patients with less severe occlusion. P.
Ex. 51.

The professionally recognized standard for evaluating the degree of
a patient's carotid stenosis is to perform a Doppler ultrasound of
the carotid arteries, as a first step. P. Ex. 51; Tr. at 113, 134,
500. If the Doppler ultrasound indicates significant occlusion of
the carotid arteries, professionally recognized standards would
require that the precise degree of occlusion be confirmed by
angiography. P. Ex. 50 at 3, P. Ex. 51; Tr. at 500. Angiography
is an invasive procedure in which a contrast material is injected
into a patient's carotid arteries. Tr. at 113, 496.

Petitioner does not dispute that professionally recognized
standards of care for a patient with TIA possibly related to
carotid stenosis require Doppler ultrasound, followed up by
angiography. Tr. at 500. Instead, Petitioner argues that there
was no reason to do the Doppler ultrasound in this case because
this patient did not wish to consider surgical treatment.
Petitioner's Brief at 39 - 40.

As an initial matter, the record in this case is equivocal as to
whether the patient refused surgery or whether Petitioner ruled out
surgery. Petitioner testified at the hearing that the patient
refused surgical treatment. Tr. at 494, 500 - 501. However,
Petitioner's written response to IPRO suggests that Petitioner made
the decision to rule out surgery. See I.G. Ex. 22 at 4. 25/
Nevertheless, whether it was Petitioner or the patient who did not
wish to consider surgery, I would still conclude that Petitioner's
failure to order the Doppler ultrasound violated his duty to
provide care in accordance with professionally recognized
standards.

The standards of care are that carotid endarterectomy surgery is
the preferred treatment for patients with carotid stenosis of 70
percent or more. P. Ex. 51. This does not mean that every patient
with 70 percent stenosis will have surgery. Undoubtedly, there
will be cases in which patients refuse consent or surgery is ruled
out for other medical reasons. However, both the patient and the
physician need information about the degree of stenosis in order to
make a rational decision about the need for surgery. Obviously,
the calculus of risks and benefits of surgery is different
depending upon whether the patient's carotid arteries are 20
percent or 90 percent occluded. To make an informed choice, a
patient with severe stenosis of the carotid arteries needs to know
that the best chance to avoid a future stroke would be to have
surgery, even if that patient's ultimate decision is to decline the
surgery.

In this case, if it was Petitioner's decision to rule out surgery,
his failure to order the Doppler ultrasound meant that he made that
decision without an important piece of diagnostic information.
Petitioner argues that he should not be faulted for choosing what
the I.G. acknowledges was the appropriate medical treatment for the
patient. Petitioner's Brief at 39. Petitioner misses the point.
While Dr. Sperling did testify that Petitioner's treatment was the
correct therapy for someone who was a non-surgical candidate, he
repeatedly emphasized that a decision on the appropriateness of
surgical intervention could not be properly made without initiating
diagnostic tests evaluating the degree of stenosis. Tr. at 113,
120 - 124, 135 - 136. Without having the patient undergo the
non-invasive Doppler study and an angiography, depending on the
Doppler results, there is insufficient diagnostic information to
conclude that oral medication therapy was the appropriate medical
treatment for this patient.

Moreover, I reject Petitioner's attempt to shield his conduct by
focusing almost exclusively on the risks of surgical intervention
as justification for his failure to do the necessary diagnostic
tests. The I.G.'s cited violation does not address the issue of
whether this patient was an appropriate surgical candidate.
Consequently, I make no findings on the merits of having this
patient undergo a carotid endarterectomy. Neither the I.G. nor
IPRO ever specifically addressed this issue since their concern was
that Petitioner failed to do the diagnostic tests that were
necessary to make an informed, knowledgeable decision on whether to
undergo such surgery. The evidence supports that such diagnostic
studies were a necessary element of this patient's treatment and
that Petitioner improperly failed to do such studies. Therefore,
I conclude that Petitioner failed to meet professionally recognized
standards of health care because he embarked on that course of
treatment without obtaining the potentially significant diagnostic
information that the Doppler ultrasound could have provided.

On the other hand, if it was the patient who was adamant in his
refusal of surgery, it still was incumbent upon Petitioner to
obtain the Doppler ultrasound, because more specific information
about the risks and benefits of surgery might have led the patient
to change his mind. Moreover, nowhere in the medical record did
Petitioner document that he discussed the option of surgery with
the patient or that the patient refused surgical treatment. Tr. at
616. This, in itself, would constitute a violation of
professionally recognized standards, if such a conversation took
place and it was not documented in the record.

For these reasons, I conclude that Petitioner's failure to order a
Doppler ultrasound study of this patient's carotid arteries before
initiating treatment for his TIAs was a substantial violation of
his obligation to provide care of a quality which meets
professionally recognized standards of health care.

Patient 060717

PRO Findings: Potential adverse patient effect when patient
discharged with instructions to take a higher dosage of medication.

[I.G.] Analysis: Dosage of cardiac medication was changed in
progress notes, but not on order sheet. Discharge instructions
reflect the higher dosage of medication. The medical record shows
discharge summary with five mg Capoten BID, but do not show any
such medication being given during hospital admission. The record
does show Vasotec, 10 mg BID, prior to discharge. Practitioner
advised why he lowered the dosage, which is not disputed by the
PRO.

[I.G.] Decision: The medical record supports the PRO
findings. This case will be retained as a documentation failure.

My Analysis: This patient, a 69-year old male, was admitted to
Little Falls Hospital on December 2, 1991. At the time of his
admission, the patient's chief complaint was acute dyspnea. He was
diagnosed at that time as having arteriosclerotic heart disease
with acute severe pulmonary edema, severe chronic obstructive
pulmonary disease, and mild renal insufficiency. I.G. Ex. 23 at
11.

At the time of his admission, the patient had been taking Capoten.
I.G. Ex. 23 at 41. During his admission, on December 3, 1991, the
patient started to take Vasotec instead of Capoten. I.G. Ex. 23 at
19; Tr. at 243 - 244. Vasotec and Capoten are both ACE
(angiotensin converting enzyme) inhibitors which are used in the
treatment of hypertension and congestive heart failure. Tr. at
245.

The patient's initial dose of Vasotec was five milligrams.
Petitioner prescribed five milligrams of Vasotec twice a day on
December 3, 1991. He increased the dosage later that day to five
milligrams in the morning and ten milligrams at night. I.G. Ex. 23
at 19; Tr. at 244. On December 4, 1991, Petitioner increased the
dosage again, to ten milligrams twice daily, and this was continued
until the date of discharge. I.G. Ex. 23 at 20; Tr. at 244.

The patient was discharged on December 9, 1991. I.G. Ex. 23 at 21.
Petitioner's progress notes of this date state that the patient was
to go home with a prescription for five milligrams of Vasotec to be
taken twice a day. I.G. Ex. 23 at 25; Tr. at 244 - 245. However,
the discharge summary which was dictated by Petitioner on December
30, 1991, 21 days after the patient was discharged, contained
different information. It states that the patient was discharged
from the hospital on five milligrams of Capoten to be taken twice
a day. I.G. Ex. 23 at 14.

The Notice states that IPRO found that there were potential adverse
effects when this patient was "discharged with instructions to take
a higher dosage of medication." In accepting the PRO findings set
forth in the Notice, it appears that the I.G. is alleging that,
although Petitioner intended the patient to take the lower dosage
of five milligrams of Vasotec twice a day after he returned home,
he was in fact discharged with instructions to take the higher
dosage of ten milligrams of Vasotec twice a day, which had been
given to him in the hospital prior to his discharge. I find that
the evidence does not prove this allegation.

The supporting analysis contained in the Notice states that
"[d]ischarge instructions reflect the higher dosage of medication."
However, the patient's medical chart does not include a discharge
instruction sheet that contains written instructions that had been
given to this patient prior to his discharge from the hospital.
Tr. at 248, 251. The record is devoid of written discharge
instructions which support the I.G.'s allegation that the patient
was instructed to take the higher dosage of ten milligrams of
Vasotec twice a day at the time he was discharged.

In addition, the record fails to establish that the patient was
orally instructed to take the higher dosage of 10 milligrams of
Vasotec twice a day at the time he was discharged. To the
contrary, the evidence establishes that the patient was discharged
with instructions to take the lower dosage of five milligrams of
Vasotec twice a day.

Petitioner testified that he relies primarily on direct contact
with his patients with respect to discharge instructions. Tr. at
514 - 515. Petitioner testified that it was his practice prior to
discharge to discuss discharge instructions with the patient
directly. He testified that his patients receive prescriptions for
the medications they are to take at home directly from him, in
their rooms prior to discharge. Tr. at 504.

With regard to this patient, Petitioner testified that
he discussed his discharge instructions in the patient's hospital
room prior to his discharge. He stated that, since the patient's
wife maintained records of her husband's medication orders, he
discussed the discharge instructions with both the patient and his
wife. Petitioner testified that the discharge instructions he
discussed with the patient and his wife were consistent with the
instructions documented on his December 9, 1991 progress note. He
stated that he instructed the patient to take five milligrams of
Vasotec twice a day, and that he wrote the prescription for this
medication while he was in the patient's room. Tr. at 503 - 504,
506.

I find credible Petitioner's testimony that he discharged the
patient with oral instructions to take five milligrams of Vasotec
twice a day. This testimony is corroborated by Petitioner's
contemporaneous progress note documenting that the patient was to
be discharged with instructions to take five milligrams of Vasotec
twice a day. In the absence of evidence showing that the patient
received written instructions to take 10 milligrams of Vasotec
twice a day, I find that the evidence fails to establish that the
patient was discharged with instructions to take the higher dosage
of medication.

While the evidence fails to establish that the patient was
instructed to take the higher dosage of medication, the discharge
summary dictated by Petitioner on December 30, 1991, is not
consistent with the final progress note. It states that the
patient was discharged with a prescription to take five milligrams
of Capoten twice a day. No mention of Vasotec is made in the
discharge summary.

The PRO findings contained in the Notice do not explicitly refer to
this inconsistency, but the supporting Analysis notes that the
discharge summary indicated that the patient was discharged on
Capoten rather than Vasotec. Reading the PRO findings together
with the supporting Analysis contained in the Notice, I find that
Petitioner was placed on sufficient notice that the I.G. was
alleging that Petitioner inaccurately documented his treatment of
the patient on the discharge summary and that this documentation
error was a basis for the I.G.'s determination to exclude
Petitioner.

Petitioner testified that the statement in the discharge summary
that the patient was discharged on Capoten was an error, and he
acknowledged that the discrepancy between his progress notes and
the discharge summary might be confusing to a physician attempting
to treat the patient if he was readmitted to the hospital. Tr. at
506 - 507, 509 - 510. Based on this testimony, I find that the
evidence establishes that Petitioner's documentation of his
discharge instructions is deficient insofar as the discharge
summary inaccurately documented the medication the patient was
given at the time he was discharged.

While Petitioner concedes that he made a documentation error, he
argues that it was a minor error. Petitioner testified that there
is no pill form of five milligrams for Capoten. Tr. at 511. In
view of this, Petitioner argues that another physician reading the
discharge summary would be on notice that this notation on the
discharge summary was an error. In addition, Petitioner argues
that, since the discharge summary was dictated several weeks after
the patient was discharged from the hospital, it did not influence
what the patient was actually instructed at the time that he was
discharged.

I do not agree that the documentation error is insubstantial. Even
if another physician reading the discharge summary realizes that
there is no pill form of five milligrams for Capoten, the physician
would still have some doubt as to the exact medication and dose
that the patient was directed to take at the time of his discharge.
Due to the confusing inconsistency between the progress note and
the discharge summary, another physician would be required to
expend his or her time to resolve an issue that easily could and
should have been avoided if Petitioner had been more careful in his
documentation of treatment for this patient.

In isolation, such error by Petitioner is arguably not significant.
However, it takes on significance when viewed in light of his
record of failing to adequately document patient records, despite
his promise to do so in his CAP in response to a prior PRO sanction
action. If anything, Petitioner should have been on notice to be
extra careful in his documentation.

The Analysis contained in the Notice states that the "[d]osage of
medication was changed in progress notes, but not on the order
sheet." This statement implies that Petitioner's documentation of
the dosage of medication the patient was to take at home is
deficient because it does not appear on "the order sheet" as well
as on the progress notes.

The record contains a document captioned "Physician's Orders." The
entry for December 9, 1991 on that document states only that the
patient was to be discharged on that date. No mention is made of
medications the patient was to take after he was discharged. I.G.
Ex. 23 at 21. I find that, while the evidence establishes that
Petitioner did not document his discharge instructions both in his
progress notes and on his physician order sheet, it fails to
establish that this constitutes a documentation deficiency.

Dr. Nicholas testified that it was common procedure in 1991 that a
patient released from a hospital would be provided with written
discharge instructions prepared by the nursing staff. Tr. at 620
- 621. He stated also that a nurse preparing a discharge
instruction sheet would expect to find a written description of the
physician's discharge instructions in the chart. Tr. at 624.
However, he stated that whether this description is written in the
progress notes or on the physician order sheet may vary depending
on the local procedures in place at a given hospital. Tr. at 623
- 624. The I.G. did not offer any evidence to rebut this
testimony.

The medical expert testimony does not support a finding that a
recognized standard of care requires Petitioner to write the
discharge instructions in the progress notes and on the physician's
order sheet. Furthermore, the record is devoid of evidence showing
that the patient received written discharge instructions which were
incorrectly prepared by the nurses. To the contrary, the evidence
establishes that the patient received correct oral discharge
instructions in accordance with Petitioner's progress notes. In
view of the foregoing, I find that Petitioner's failure to write
discharge instructions on his order sheet and in his progress notes
does not constitute a deficiency in his documentation of his
treatment of this patient.

Dr. Kops testified that most hospitals require that a patient be
given written discharge instructions when the patient is released
from the hospital. Tr. at 248. The medical record in this case
does not include a copy of written discharge instructions that were
given to this patient. The I.G. argues in her brief that the
absence of written discharge instructions prepared for the patient
constitutes another documentation deficiency in this case.

It is undisputed that the patient's chart in evidence does not
include a written discharge instruction sheet prepared for him at
the time of this discharge. During the posthearing phase of these
proceedings, the I.G. contended for the first time that the fact
that the patient's chart does not include a discharge instruction
sheet is a basis for exclusion in this case. However, this
criticism is not included in the Notice. In fact, the Notice
alleges that the "[d]ischarge instructions reflect the higher
dosage of medication." This suggests that, at some point during
the course of the proceedings before IPRO, the record contained a
discharge instruction sheet that was reviewed by IPRO. Assuming
that the chart once included a discharge instruction sheet,
Petitioner cannot be faulted because this discharge instruction is
no longer in the record made available for this proceeding by the
I.G. That is not Petitioner's responsibility and cannot be
construed as reflecting any adverse impact on his meeting
professional standards of care. Even assuming such conduct was
contrary to professional standards of care, I find that the I.G.
did not adequately notify Petitioner of such allegation. For the
above reasons, Petitioner cannot be held accountable for this
allegation.

The I.G. argues also that Petitioner's documentation of his
treatment of this patient is deficient because "the chart is devoid
of any explanation for Dr. Burke's frequent changes in the
patient's cardiac medication." I.G.'s Response at 22. During the
hearing, the I.G. attempted to pursue a line of questioning related
to this allegation. However, I pointed out that this allegation
was not encompassed by the allegations in the Notice. Tr. at 246
- 247, 249. In view of the fact that Petitioner did not receive
adequate notice of this allegation, he cannot be held accountable
for it.

Patient 030053

PRO Findings: Failure to properly manage and treat a diabetic
patient.

[I.G.] Analysis: Patient had persistent hypoglycemia which
was not addressed. The medical records show that the intravenous
solution of 10% dextrose in water was ordered "at rate to obtain
blood sugar above 80 then slow IV down to KVO for the nite"
(telephone order). The PRO noted that a rate should be given;
medical records show no rate ordered. Orders should include
checking blood glucose level frequently, which were not ordered.

[I.G.] Decision: The medical records support the PRO
findings, and the findings are upheld. (Quality of care violation)

My Analysis: This patient was a 76-year old male who suffered from
diabetes mellitus. He was brought by ambulance to the emergency
room at Little Falls Hospital on December 27, 1991, after an
episode of coma induced by his overdosing himself with 70 units of
insulin that morning. I.G. Ex. 24 at 12 - 13. The emergency
medical technicians reported that the patient's blood sugar was 33
mg/dL; the normal range for blood sugar is 80 - 120 mg/dL. I.G.
Ex. 24 at 10; Tr. at 140. The emergency medical technicians
administered 50 percent glucose to the patient, and by the time he
reached the emergency room, his blood sugar was 180 mg/dL and he
was alert and oriented. I.G. Ex. 24 at 10. He suffered another
episode of hypoglycemia in the emergency room and he was admitted
to the hospital for observation. Id. at 12.

In the hospital, the patient's blood sugar was recorded at 4:30
p.m. as 77 mg/dL. Id. at 32 - 33. The next blood sugar level,
which was 26 mg/dL, was recorded at 9:30 p.m. Id. After that
significantly low result was obtained, the nursing staff
administered orange juice and Karo syrup. Id. at 33. At 9:45 p.m.
the patient's blood sugar was 57 mg/dL. Id. at 32 - 33. The
nursing staff again administered orange juice and Karo syrup. Id.
at 33. At 10:15 p.m., the nursing staff telephoned Petitioner to
inform him of the patient's blood sugar levels. Id. The nursing
staff noted a telephone order from Petitioner to "change IV
solution to Dextrose 10% -- run at rate to obtain blood sugar above
80 then slow IV down to KVO for the n[ight]." Id. at 14. The
patient's blood sugar was recorded as 108 mg/dL at 10:30 p.m.
There is no record that the nursing staff checked the patient's
blood sugar level again until 6:30 a.m. on December 28, 1991, when
the patient's blood sugar level was 134. Id. at 32 - 33, 35.

The I.G. argues that Petitioner's treatment of this patient failed
to meet professionally recognized standards of health care in two
respects. First, the I.G. contends that Petitioner's order to
administer 10 percent dextrose to the patient was deficient in
failing to specify the rate at which the IV was to run. Second,
the I.G. alleges that Petitioner failed to order frequent
monitoring of the patient's blood sugar values. I conclude that
the I.G. proved that Petitioner failed to meet professionally
recognized standards of health care in these two respects.

Dr. Sperling testified that the professionally recognized standard
of care for a diabetic patient with hypoglycemia that was not
stabilized requires the attending physician to specify the rate at
which IV dextrose is to be administered. Tr. at 137, 139. In
essence, Petitioner's telephone order left to the nursing staff the
determination of what rate of flow would bring the patient's blood
sugar above 80. Dr. Nicholas testified that, in the setting of a
teaching hospital, it would be acceptable for an attending
physician to delegate to house staff (i.e. medical residents) the
decision as to the rate for the IV. Tr. at 531 - 532. He opined
that, in a community hospital, such as the one at which Petitioner
practices, the nursing staff may take on responsibilities performed
by residents at larger hospitals. Tr. at 532. Dr. Nicholas'
testimony does not provide evidence of significantly different
professionally recognized standards than those presented by the
I.G. expert. The testimony of Dr. Nicholas supports the view that
the determination of a flow rate for IV dextrose is properly the
province of a physician, whether it be the attending physician or
the medical resident. 26/

I conclude that the I.G. proved that professionally recognized
standards of health care require that the physician be responsible
for ordering a flow rate for administering IV dextrose to a
diabetic patient with hypoglycemia. This Petitioner did not do.
His specification of a rate of KVO for the night once blood sugar
was above 80 was insufficient, as the crucial decision required of
Petitioner was the rate to be administered to achieve a blood sugar
of 80 mg/dL or greater. Accordingly, Petitioner violated his duty
to provide care that met professionally recognized standards in
ordering the IV for this patient.

Petitioner failed also to order that the patient's blood sugar be
monitored at regular intervals. This, too, was a violation of his
duty to provide care that met professionally recognized standards.
The I.G.'s expert testified that professionally recognized
standards of health care require a physician to order frequent
monitoring of a patient's blood sugar. Tr. at 138. He testified
further that it was not accepted practice to monitor a hypoglycemic
patient's blood sugar at five- or six-hour intervals. Id.
Petitioner himself stated at the September 28, 1993 IPRO hearing
that it would be appropriate to check blood sugar levels every hour
or two hours. I.G. Ex. 3 at 119 - 120. Nevertheless, there is no
indication in the medical record that Petitioner ever gave orders
specifying the frequency at which the nursing staff should monitor
the patient's blood sugar. In fact, the patient's medical record
reflects that, on the day of admission, the patient's blood sugar
dropped from 77 at 4:30 p.m. to 26 at 9:30 p.m., with no blood
sugar levels recorded during the five-hour interval. Presumably,
had more frequent monitoring been ordered, the patient's falling
blood sugar could have been counteracted before it fell to such a
low level. Again, after the patient's blood sugar had recovered to
a level of 108 at 10:30 p.m., his blood sugar was not monitored
again until 6:30 a.m. the following morning, eight hours later.

Petitioner argues that the patient recovered and suffered no
permanent ill effects from his hypoglycemia. Additionally, Dr.
Nicholas testified that, even though the patient's blood sugar
level was not monitored, the patient was sufficiently monitored by
having the nursing staff observe that he was alert and oriented at
several points during the night. Tr. at 537. However, the nursing
notes indicate that the patient was alert and conversing well at
the time the patient's blood sugar level had fallen to 26 mg/dL.
I.G. Ex. 24 at 33. For this reason, it does not appear that the
mere fact that the patient was alert and oriented would rule out
the possibility of significant hypoglycemia. Moreover, the fact
that the patient recovered does not negate the possibility that
Petitioner failed to order the appropriate treatment. 27/
Therefore, I conclude that Petitioner has not refuted the I.G.'s
proof that professionally recognized standards of care required him
to order monitoring of the patient's blood sugar at regular
intervals.

Thus, I conclude that Petitioner's failure to order a rate for
administering the IV dextrose and his failure to order regular
monitoring of the patient's blood sugar were substantial violations
of his obligation to provide care of a quality which meets
professionally recognized standards of health care.

Patient 030344

PRO Finding: Failure to document discharge plans for patient.

[I.G.] Analysis: The patient had a cardiac history and was
admitted in atrial fibrillation. Patient was not discharged on
coumadin or aspirin. Physician states coumadin was started on an
outpatient basis.

[I.G.] Decision: The medical records support the PRO
findings. This case is being retained as a documentation failure.

My Analysis: This patient, a 76-year-old male, was admitted to
Little Falls Hospital on August 15, 1991, with complaints of
dyspnea, weakness and chest discomfort. Petitioner diagnosed
auricular fibrillation. I.G. Ex. 25 at 7, 13, 15. 28/ On August
20, 1991, the patient was started on Heparin, an intravenous
anticoagulant medication. I.G. Ex. 25 at 11, 19; Tr. at 277.
Petitioner consulted another doctor from Little Falls Hospital, Dr.
Apone. In his consultation report, Dr. Apone advised Petitioner to
"stop the IV Heparin and see if the patient can be maintained chest
pain free just on Aspirin and antiplatelet therapy and possibly
with addition of Persantine." I.G. Ex. 25 at 27.

Petitioner discharged the patient 10 days after admission with
instructions to follow a low sodium diet and to take Vasotec,
Lasix, and Isosorbide. Petitioner instructed him also to return to
Petitioner's office for a follow-up visit. I.G. Ex. 25 at 11, 25,
76. There is no indication on the medical chart that Petitioner
instructed the patient to take Coumadin at the time that he was
discharged. Petitioner states, however, that Coumadin was started
on an outpatient basis. I.G. Ex. 25 at 4; I.G. Ex. 3 at 42; I.G.
Ex. 6 at 206.

Petitioner wrote discharge instructions in his handwritten notes of
August 25, 1991. I.G. Ex. 25 at 25. He wrote also the discharge
instructions in his typewritten notes of September 18, 1991. I.G.
Ex. 25 at 11. A nurse filled out the discharge instructions which
were given to the patient, and, in accordance with customary
practice, based the instructions on Petitioner's progress notes.
Tr. at 286; I.G. Ex. 25 at 76.

The nurse's discharge instructions mirror Petitioner's progress
notes, with the exception of an additional instruction for the
patient to take Digoxin. I.G. Ex. 25 at 76. Dr. Kops indicated
that the nurse's variance from Petitioner's progress notes was
probably due to the fact that the patient had been given Digoxin up
until the time of discharge and that this prescription would be
noted in the medication record. Tr. at 287. The patient visited
Petitioner a week to 10 days after discharge. Petitioner noted in
his typewritten progress notes that the patient "still had
auricular fibrillation, which increased abnormally with effort."
I.G. Ex. 25 at 11.

The I.G. contends that Petitioner substantially violated
professionally recognized standards of care by his failure to
document the prescription of Coumadin in the discharge plans for
the patient. I.G.'s Brief at 56 - 57. Dr. Kops testified that the
standard of care for anti-coagulating a patient is to start the
patient on Heparin while in the hospital. He stated that Coumadin
should then be started while the patient is on Heparin and while
the patient is still in the hospital and adequately
anti-coagulated. He explained that Heparin is only discontinued
once the Coumadin has achieved its desired effect, and that it
takes several days for the Coumadin to do so. He stated that a
prothrombin test is used to measure whether the Coumadin is within
a satisfactory range. Tr. at 277 - 278.

In response to questions regarding Petitioner's failure to document
the prescription of Coumadin in the discharge plans for the
patient, Dr. Kops explained how the discharge instructions are
given. Dr. Kops indicated that customary practice is for the
attending physician to write his discharge instructions in the
medical chart. He explained that the nurse who discharges the
patient will include the doctor's instructions in the discharge
instruction sheet which is given to the patient. Tr. at 285 - 287.
In this case, in addition to the medications prescribed by
Petitioner in his progress notes, the nurse included an additional
medication which was not listed in Petitioner's notes. I.G. Ex. 25
at 25, 76. As I stated earlier, Dr. Kops explained that the nurse
could have included this medication in the discharge summary on the
basis of the medication history and the fact that the patient was
on this medication up until discharge. Tr. at 287.

Petitioner did not refute the I.G.'s definition of the recognized
standards of care. Moreover, Petitioner conceded the documentation
error, and asserted that he "is currently documenting discharge
medications in the medical chart. Petitioner's Brief at 56 - 57.
Petitioner contends, however, that the allegation that he never
prescribed Coumadin for this patient went beyond the scope of the
PRO finding that he had failed to document any prescription for
Coumadin. Petitioner asserts that he prescribed Coumadin for the
patient on an outpatient basis, and he told IPRO this at the 1992
and 1993 IPRO hearings and in his Physician Response to the IPRO
reviews. I.G. Ex. 25 at 4, I.G. Ex. 3 at 42, I.G. Ex. 6 at 206.

The issue of whether Petitioner prescribed Coumadin to this patient
after he was discharged goes beyond the scope of this case. IPRO
found that Petitioner had failed to document the prescription of
Coumadin in his discharge notes. IPRO did not make any findings
with regard to whether Petitioner failed to prescribe Coumadin.

With regard to the allegation that Petitioner did not adequately
document his discharge plans, the record shows that recognized
standards of care required him to document his discharge
instructions in the medical chart. Neither Petitioner's
handwritten or typewritten progress notes include an instruction
that Coumadin be prescribed to the patient upon discharge. I.G.
Ex. 25 at 11, 25. As a result of Petitioner's failure to document
a Coumadin prescription, the discharging nurse was unaware that the
patient should be anti-coagulated with Coumadin. The nurse's
discharge instructions to the patient do not include a prescription
for Coumadin. I.G. Ex. 25 at 76. Petitioner admits that he made
a documentation error and he claims that he is now documenting
instructions for all discharge medications. Based on the
foregoing, I find that Petitioner's failure to document his intent
to prescribe Coumadin to this patient on discharge is a substantial
violation of his obligation to provide necessary documentation of
his care of the patient.

Patient 039069

PRO Findings: Failure to document omission of a diagnostic
test.

[I.G.] Analysis: Patient admitted with vertigo and a history
of atrial fibrillation (for which he was receiving
anticoagulation), a recent 25-pound weight loss and fatigue. A
complete blood count was not done on admission. The test was
performed prior to admission and was reportedly within normal
limits. However, the omission of the test at admission, and the
reason for omission are not clear. The failure to provide
documents showing prior recent complete blood counts is applicable.

[I.G.] Decision: The medical records support the PRO
findings. This case is being retained as a documentation failure.

My Analysis: This patient was a 76-year-old male who was admitted
to Little Falls Hospital with complaints of vertigo and nausea.
I.G. Ex. 26 at 9 - 10. Upon initial examination, Petitioner found
that the patient had generalized arteriosclerosis with acute
episodes of vertigo; mild organic brain syndrome; and
arteriosclerotic heart disease with ongoing auricular fibrillation
and cardiac prominence. I.G. Ex. 26 at 9. Petitioner noted in his
progress notes that the patient had been under the care of several
physicians in the area for cardiac and orthopedic care, but there
is no mention of any contact with these physicians during his
admission. Id. There is no documentation in the patient's
admission record of a CBC. There is also no explanation in the
admission record as to why a CBC was not done on admission, nor are
the results of a prior CBC documented. I.G. Ex. 26.

The I.G. did not offer any direct testimony at the hearing in
support of the PRO findings. Instead, the I.G. contends that the
record substantiates the PRO findings set forth in the Notice.
Petitioner did not present any testimony either.

The I.G. argues that Petitioner's failure to document
in this case is an example of the deficiencies that Petitioner's
CAP was intended to correct. I.G.'s Brief at 60 - 61. The I.G.
contends that this failure to document is one of a number of
events, which together demonstrate a pattern of practice by
Petitioner, which fails to conform to professionally recognized
standards. Id.

Petitioner admitted that his failure to do a CBC on admission was
an oversight. I.G. Ex. 26 at 4, I.G. Ex. 6 at 182. He stated that
he now performs a CBC as part of the routine admission blood tests
he orders to be performed on all of his patients. I.G. Ex 6 at
183; Petitioner's Brief at 89. Petitioner asserted also that the
patient had a CBC done approximately seven days before admission.
I.G. Ex. 3 at 23. However, Petitioner did not offer any
explanation for his failure to document the omission of a CBC on
admission, or for his failure to document an explanation for the
omission. Moreover, Petitioner did not explain why he failed to
include in the medical record the results of the previous CBC.

Although Petitioner concedes that his failure to obtain the CBC on
admission was an oversight, he attempts to reduce the significance
of the violation by relying on: 1) a comment made by an I.G.
medical advisor that the inclusion of this patient's case as a
documentation rather than a quality of care failure seemed
inappropriate; and 2) the fact that IPRO's physician reviewer
reduced his rating of the violation from Level II to Level I.
Petitioner's Brief at 89 - 90. An I.G. medical advisor stated that
documentation of a CBC in this case would be necessary only if the
CBC itself was necessary. I.G. Ex. 29 at 7. Petitioner argued
also that he did not get fair notice and the opportunity to be
heard on the I.G.'s contention in her brief that this deficiency
was one of several deficiencies that the CAP was intended to
address. Petitioner's Response at 23 - 24.

Petitioner's reliance on one statement by the I.G.'s medical
advisor is without merit. The medical advisor's concern was IPRO's
selection of the nature of the violation. He suggested that the
omission of the test was a quality of care violation rather than a
documentation failure. He opined that, if IPRO did not find it to
be a quality of care violation, then arguably failure to document
the test was not a documentation violation. However, he
acknowledged that, despite his concerns, the I.G. could agree with
IPRO because of the wide latitude of the PRO documentation
standards. I.G. Ex. 29 at 7. A second analysis performed for the
I.G. concluded also that the CBC was necessary at admission. I.G.
Ex. 30 at 11. So, at best, Petitioner is quibbling with the I.G.'s
choice as to the type of violation. The record supports that the
CBC was necessary at admission. Thus, Petitioner is advantaged by
the I.G. choosing the lesser violation of documentation failure.

Petitioner's argument that he was not given proper notice or an
opportunity to be heard is also without merit. The Notice makes
specific reference to the CAP. The Notice alleges that the cited
cases, including those reflecting documentation problems, establish
that Petitioner's pattern of practice with regard to treatment of
patients has not improved in spite of the CAP. Notice at 10.

Upon review of the record, I find that Petitioner's failure to
document that he did not perform a CBC on this patient at the time
he was admitted, his failure to explain why he did not perform a
CBC on admission, and his failure to document the results of the
CBC performed prior to admission, is a substantial violation of
Petitioner's obligation to provide necessary documentation of care.

Patient 037680

PRO Findings: Failure to perform a procedure with consent.
Failure to document in the medical record the diagnosis, procedure
and the lack of fluid analysis.

[I.G.] Analysis: Patient admitted for organic brain syndrome
with hallucinations. Arthrocentesis of the right knee was
performed. Medical records provided do not contain a consent for
this procedure, neither do they contain a general hospital consent
form or procedure note.

[I.G.] Decision: The medical records support the PRO
findings, and the findings are upheld. (Quality of care violation)

My Analysis: Patient 037680, an 85-year-old female, was admitted
to Little Falls Hospital on August 21, 1991. The patient's chief
complaint at the time of admission was that she was having
hallucinations. In the hospital admission report, Petitioner
stated that the patient had some insight into her problem, but that
the hallucinations had a considerable reality to her and were quite
disturbing. The patient had a brother who lived nearby. I.G. Ex.
27 at 5 - 6.

At the time of the patient's admission to the hospital, Petitioner
diagnosed organic brain syndrome with hallucinatory and delusional
state. In addition, Petitioner reported that his physical
examination of the patient revealed evidence of bilateral arthritis
of both knees, and he noted that the right knee was acutely
inflamed. I.G. Ex. 27 at 5 - 6.

During her hospitalization, the patient was disoriented at times.
The nursing notes describing her condition from August 21 through
August 23, 1991 reveal that she alternated between being confused
and being lucid. At times, she did not realize that she was in the
hospital and at other times she was oriented and gave appropriate
verbal responses. I.G. Ex. 27 at 56, 59 - 61.

On August 23, 1991, Petitioner performed an arthrocentesis of the
patient's right knee. This is an invasive procedure, which
involves inserting a needle into a patient's knee and withdrawing
fluid. I.G. Ex. 27 at 61; Tr. at 149 - 151, 223. Petitioner's
progress notes describe the procedure and its results as follows:
"Tapped Rt[right] Knee - Old Blood - Hemarthrosis." I.G. Ex. 27 at
19. There is no consent form for the procedure in the patient's
medical chart.

Within 45 minutes after this procedure was performed, the patient
began to cry and stated that she saw snakes coming out of the box
containing needles. The patient stated that, although she knew the
snakes were not real, she nevertheless could still see them. I.G.
Ex. 27 at 61. The patient reported seeing snakes the next day.
I.G. Ex. 27 at 65.

During the course of her hospital stay, the patient was treated
with insulin, and her hallucinations improved. On September 10,
1991, the patient was discharged from the hospital to the County
Home for ongoing care. At the time of discharge, the patient had
achieved mental equilibrium. I.G. Ex. 27 at 25, 26.

IPRO made several findings with respect to this patient, and I will
discuss each in turn.

Failure to perform procedure with consent

The record establishes that professionally recognized standards of
health care require that a physician obtain informed consent prior
to performing an invasive procedure on a patient. Arthrocentesis
is an invasive procedure which requires informed consent. Tr. at
149 - 150.

The professionally recognized standards regarding the process for
obtaining informed consent require the physician to explain the
purpose of the procedure, how it will be performed, the possible
benefits of the procedure, and the possible complications of the
procedure. In addition, the patient should be given the
opportunity to ask questions of the physician. Tr. at 300.

If the patient is incapable of understanding information pertaining
to the procedure, the procedure should be explained to an adult who
is the closest relative to the patient. Consent to perform the
procedure should be obtained from that individual. Tr. at 151.

In this case, Petitioner does not dispute that he was required to
obtain informed consent prior to performing arthrocentesis. In
addition, Petitioner does not dispute that he failed to obtain
written informed consent for this procedure. While Petitioner
admits that he erred in not adequately documenting the fact that he
obtained informed consent, he contends that he obtained the
requisite informed consent orally from this patient.

I find that the weight of the evidence establishes that Petitioner
did not obtain informed consent from this patient.

The undisputed evidence establishes that the patient's chief
complaint at the time she was admitted to Little Falls Hospital was
that she was experiencing hallucinations. During the two day
period from the time she was admitted until the time the
arthrocentesis was performed, she alternated between being
disoriented and lucid. In addition, she was delusional within one
hour of the arthrocentesis.

Dr. Nicholas testified that the fact that the patient was
experiencing hallucinations alone does not necessarily mean that
she was not capable of giving informed consent for the
arthrocentesis. He expressed the view that it is possible to
experience hallucinations about certain limited aspects about what
is going on, but still be capable of understanding the benefits and
risks associated with a medical procedure. Tr. at 561.

I accept Dr. Nicholas' testimony that the fact that the patient was
delusional does not automatically mean that she was incapable of
providing informed consent. I recognize that the evidence does not
definitively establish that the patient was not competent to
provide informed consent. Indeed, the evidence shows that she had
some insight into her problem and realized that the hallucinations
were not real. Nevertheless, I am troubled by the evidence
regarding the patient's mental condition. At the least, the
evidence regarding the patient's changing mental status creates
some doubt about her ability to understand the procedure and to
give informed consent.

At the hearing before me, Petitioner testified that the patient's
hallucinations "didn't leave her psychotic" and that on the day the
procedure was performed, the patient was "quite lucid." Tr. at
231. He testified that the patient's knee was swollen and hot.
According to Petitioner, the patient "was advised that she would
probably improve symptomatically if she had the fluid removed from
her right knee. She said, all right." Tr. at 223. Petitioner
stated that he did not make any attempt to contact the patient's
brother in order to obtain consent. Tr. at 231.

In addition, Petitioner testified that the practice at Little Falls
Hospital in 1991 was that the physician had the responsibility to
make sure that the patient was agreeable to having a procedure
performed. He stated that consent forms were not always signed in
1991, and if they were, the nurses typically took care of it. Tr.
at 225, 230.

I am not persuaded by Petitioner's testimony that the patient gave
informed consent in this case. While Petitioner claims that he
discussed the procedure with the patient and that she agreed to it,
there is nothing in the record to substantiate that the patient was
fully informed of her condition, of the need for the procedure, and
of the risks attendant to it. The record is devoid of evidence
corroborating Petitioner's assertion that the patient knowingly
approved of the procedure. There is no signed consent form, nor is
there any contemporaneous notation either in Petitioner's progress
notes or the nursing notes indicating that the procedure was even
discussed with the patient. Also absent from the record is
testimony from a nurse who may have witnessed the patient
consenting to the procedure. I am not convinced by Petitioner's
self-serving, unsubstantiated assertion that he obtained informed
consent, particularly in light of the undisputed evidence showing
that the patient had periods of confusion and hallucinations on the
day the procedure was performed.

Moreover, statements made by Petitioner in the September 28, 1993
hearing before IPRO suggest that the patient was not fully informed
about the procedure. Petitioner stated in that hearing that, while
he told the patient what he was going to do, he did not explain the
procedure in detail. He stated that the patient was "a very
compliant individual" and that he did not "think she would have
understood a full explanation." I.G. Ex. 3 at 52. These
statements undermine Petitioner's assertion that the patient gave
"proper consent." Id.

Based on the totality of the circumstances of this case, I conclude
that Petitioner did not obtain informed consent from this patient.
This is a substantial violation of Petitioner's obligation to
provide care of a quality that meets professionally recognized
standards of care.

Petitioner's violation of this obligation is a serious offense.
Dr. Nicholas acknowledged in his testimony that the right of a
patient to be fully informed about the treatment being recommended
and to refuse that treatment is a "basic" right of patients. Tr.
at 563. In addition, this right is codified in the Patients' Bill
of Rights given to patients admitted to hospitals in New York
State. I.G. Ex. 27 at 111. Petitioner's failure to obtain
informed consent from one of his patients shows a disturbing
indifference to the fundamental rights of patients.

Even if I were to construe the facts in favor of Petitioner and
find that he obtained informed consent from this patient orally,
which I do not, I would still find that Petitioner committed a
substantial violation of his obligation to document the quality of
his care based on his failure to describe such consent in the
written record of the patient's treatment.

Petitioner argues that obtaining written consent is not required
under the laws of the State of New York in order for oral consent
to be valid. Petitioner's Response at 11. Since I find that
Petitioner did not obtain consent orally, I do not need to address
the issue of whether written consent is necessary for oral consent
to be valid. Moreover, even assuming that written consent is not
necessary for oral consent to be valid, I still find that failure
to document that valid oral consent was obtained is a violation of
professionally recognized standards of care.

Even Petitioner admits that documenting the patient's oral consent
would have been "the better practice." Petitioner's Response at
11. In addition, during the first IPRO hearing on November 10,
1992, Petitioner admitted that he was "absolutely wrong" in not
making sure that the patient signed a written consent form before
Petitioner performed the arthrocentesis. I.G. Ex. 6 at 99.

Dr. Nicholas testified that the professionally recognized standard
of care is to obtain written consent to document that the physician
has discussed the procedure with the patient and that the patient
has given oral informed consent. Tr. at 563 - 565. Dr. Nicholas
further testified that while oral consent is obtained before
written consent, he teaches his students to obtain written consent.
Tr. at 564 - 565. Both Drs. Kops and Sperling testified that oral
consent should not be obtained from a patient with changes in
mental status. Tr. at 151, 301. Dr. Sperling testified that,
under such circumstances, he would obtain consent from a relative
and that, if only oral consent could be obtained from the relative,
he would document such consent in the patient's record. Tr. at 151
- 152.

Petitioner's failure to document the record is especially egregious
in this case because of the patient's changing mental state. Based
on her compromised mental state, this patient was totally dependent
on Petitioner to determine whether she was sufficiently lucid to
give informed consent. In the event that the patient was too
confused to give informed consent, Petitioner was obligated to
obtain consent from a relative.

Petitioner chose not to discuss the patient's treatment with her
brother, and, as a result, the patient's brother could not exercise
any judgment for her. Under circumstances such as these, when a
patient's capacity to give informed consent is open to question, it
is particularly important for the attending physician to document
that the physician had a full discussion of the treatment
alternatives with the patient and that based on this discussion,
the patient knowingly gave consent to the procedure. As previously
stated, no such documentation exists in this case.

Failure to document the diagnosis

This patient was treated during her hospital stay for more than one
condition. The PRO finding that Petitioner failed to document the
diagnosis refers to the patient's right knee condition for which
the arthrocentesis was performed.

Petitioner testified that the fluid removed from the patient's
right knee "turned out to be old degenerated blood." Tr. at 223.
He stated that the fluid was "just dead blood which was a
complication of her arthritis. It's not too unusual." Tr. at 224.
Petitioner contends that he documented his diagnosis of the
patient's right knee condition in his August 23, 1991 progress note
which reads, "Tapped Rt[right] Knee - Old Blood - Hemarthrosis."
I.G. Ex. 27 at 19. He contends that hemarthrosis is his documented
diagnosis. Petitioner's Brief at 70.

Dr. Nicholas' testimony supports Petitioner's contention. He
stated that "hemarthrosis is a diagnostic term indicating that
blood was found in the knee joint. You
can't make that diagnosis without having obtained blood in the --
old blood was what was obtained." Tr. at 557. The testimony of
the I.G.'s expert witness, Dr. Sperling, is consistent with this.
He testified that hemarthrosis is a diagnosis meaning blood in the
joint. Tr. at 160.

I conclude that the expert medical testimony establishes that
Petitioner diagnosed the patient's medical condition based on his
observations of the fluid withdrawn from her knee and that he
documented this diagnosis in the patient's chart.

While it is clear that Petitioner documented his diagnostic
impression after he performed the arthrocentesis, there is a
remaining question as to whether he should have taken additional
steps in order to make a more complete and informed diagnosis. Dr.
Sperling testified that obtaining a laboratory analysis of the
fluid was necessary to "find out what you are dealing with; what's
the diagnosis." Tr. at 163. Thus, Dr. Sperling's testimony
suggests that hemarthrosis was a properly documented diagnosis
based on the available information immediately following the
arthrocentesis, but that it is not necessarily a final or complete
diagnosis based on all the tests that should have been performed.
Since the issue of whether Petitioner documented a final and
complete diagnosis is interrelated with the issue of whether he
should have performed a fluid analysis, I will address it in the
context of my discussion of the lack of fluid analysis.

Failure to document the procedure

IPRO found also that Petitioner failed to document the procedure
that was performed. The Analysis supporting this allegation states
that the medical record does not contain a procedure note.

Petitioner contends that his August 23, 1991 progress note which
reads, "Tapped Rt[right] Knee - Old Blood - Hemarthrosis" documents
the procedure which was performed on this patient. Petitioner's
Brief at 70. The I.G. contends that this is not a sufficient
description of the procedure performed on the patient to meet
accepted professional standards. I.G.'s Brief at 37 - 38.

Dr. Kops testified that, if an invasive procedure is performed at
bedside, then the attending physician should write a procedure note
for the chart. Tr. at 301. Dr. Kops stated that a procedure note
should contain the following:

. . . the indication for the procedure, the procedure then
should be specified. Whatever preparation made of the skin. If a
local anesthetic is used, that should be documented. And the
procedure itself should be documented, the technique used, and the
physician should comment on how the patient tolerated the procedure
after it's completed.

Tr. at 301 - 302.

Dr. Sperling's testimony was consistent with Dr. Kops' testimony.
Dr. Sperling stated that a procedure note should describe how the
procedure was performed. He stated that, if the procedure is
arthrocentesis, the procedure note should describe the fluid that
was obtained. Dr. Sperling opined that while the words "tapped
right knee" is indicative of the fact that arthrocentesis was
performed, it does not describe how the procedure was performed in
sufficient detail to comport with recognized professional
standards. He stated that the words "old blood" do not meet the
standard of practice in describing the fluid that was drained from
the knee because it does not indicate characteristics such as the
fluid's viscosity, turbidity, whether it clots, whether there is
evidence of pus, how thick it was, how much was obtained, and
whether there was an odor. Tr. at 160 - 161.

I find the testimony of these expert witnesses to be persuasive.
This testimony establishes that professionally recognized standards
of care require that a physician write a procedure note for
invasive procedures, such as arthrocentesis, performed at bedside.
This requirement is not fulfilled by simply writing in the chart
that a procedure was done. Instead, the procedure note should
contain a comprehensive description of the indication for the
procedure, the procedure itself, and the results.

Petitioner's August 23, 1991 entry in the chart does not meet this
standard. While this entry documents that arthrocentesis was
performed and that old blood was obtained, it does not describe the
procedure and the results in sufficient detail to meet the
professionally recognized standard of care as set forth by Dr. Kops
and Dr. Sperling.

Petitioner has not brought forward convincing evidence to rebut the
testimony of the I.G.'s expert witnesses. His responses to IPRO
charges are inconsistent and unpersuasive.

Petitioner initially responded to the IPRO charge that he did not
describe the procedure adequately by stating that a "procedure note
is not required for a procedure of a limited extent accomplished in
the patient's room. In the Emergency Room or Surgery, then a note
is required." I.G. Ex. 27 at 4. By defending himself against
IPRO's charge in this manner, he implicitly admitted that the
entries he made in the chart do not constitute a detailed procedure
note. Instead, he argues that he was not required to write a
detailed procedure note since the procedure was performed at
bedside in a non-emergency situation.

However, in the November 10, 1992 hearing with IPRO, Petitioner
stated that there were "not enough words" in his August 23, 1991
entry. I.G. Ex. 6 at 100. In making this statement, Petitioner
appears to be saying that he recognizes that he was required to
document the procedure in greater detail, but that he failed in his
obligation to do so.

Petitioner's position changed again in the proceedings before me.
Dr. Nicholas, his expert witness, characterized the August 23, 1991
entry as a procedure note which documented the procedure and what
was found. Tr. at 559 - 560. Petitioner's argument in his
posthearing briefs was consistent with Dr. Nicholas' testimony. He
abandoned his argument that a procedure note is not required for a
procedure performed at bedside. In addition, he no longer
contended that there were "not enough words" in the August 23, 1991
entry. Instead, he took the position that the August 23, 1991
entry adequately documented the procedure.

In view of the inconsistencies in Petitioner's statements, I find
that Petitioner has not overcome the evidence adduced by the I.G.
Even Dr. Nicholas' testimony does not directly rebut the testimony
of the I.G.'s expert witnesses. While Dr. Nicholas stated that the
August 23, 1991 entry was a "very concise description of what
happened," he does not explicitly disagree with Dr. Kops' and Dr.
Sperling's testimony regarding the requirements for a full and
complete procedure note. Tr. at 557. I do not agree with Dr.
Nicholas that Petitioner's cryptic procedural note meets the
professionally recognized standards of care. A simple comparison
of what Petitioner wrote in his note and of the required
description of the procedure reflected in the I.G.'s experts'
testimony demonstrates the inadequacy of Petitioner's documentation
of the procedure.

In view of the foregoing, I find that the preponderance of the
evidence rests with the testimony of Dr. Kops and Dr. Sperling.
This evidence establishes that Petitioner's failure to document
adequately the procedure performed on this patient was a
substantial violation of professionally recognized standards of
health care.

Lack of Fluid Analysis

IPRO found also that "the lack of fluid analysis" violated
Petitioner's obligation to provide care that meets professionally
recognized standards of care.

In support of this PRO finding, the I.G. offered the testimony of
Dr. Sperling. Dr. Sperling testified that professionally
recognized standards of care and State law require that every time
fluid is withdrawn from a knee joint in the course of an
arthrocentesis, samples of that fluid should be sent to a pathology
laboratory for analysis. Tr. at 161 - 163. According to Dr.
Sperling, the laboratory:

can spin out the blood, see whether or not they get cells any
number of ways, what their culture and sensitivities are, what the
gram stains [are] . . .

Tr. at 162. Dr. Sperling stated that the purpose of obtaining a
laboratory analysis of the fluid is to "find out what you are
dealing with; what's the diagnosis" and he indicated that the
results of the laboratory analysis are typically documented in the
record. Tr. at 162 - 163. Dr. Sperling stated that there are no
exceptions to this requirement. In particular, he testified that
this requirement is not obviated by the fact that the withdrawn
fluid is described by the attending physician as being "old blood."
He asserted that the fact that Petitioner indicated that the
withdrawn fluid was old blood "doesn't mean anything" because
"[y]ou can still have an infection with old blood." Tr. at 157.

Dr. Sperling's testimony is supported by the Merck Manual. The
Merck Manual includes a Table setting forth an outline for
performing arthrocentesis. That table sets forth detailed
instructions for handling the withdrawn fluid in preparation for
laboratory tests. The Merck Manual indicates that the proper
aspiration of fluid and its preservation for laboratory analysis is
a critical step in the diagnostic process. While the Merck Manual
states that "[n]ot all tests need to be done on each fluid," it
does not state anywhere that laboratory tests need not be performed
on "old blood." Merck Manual (4th ed. 1982) at 1174. Indeed, the
Merck Manual expressly notes that the specimen may be hemorrhagic,
and that this suggests fracture or malignancy. In addition, the
Merck Manual states that intensely inflammatory effusions suggest
pyogenic infection. The Table containing the outline for
performing arthrocentesis specifically states that, if infection is
considered a possibility, the fluid should be placed immediately in
a sterile tube for routine cultures. Merck Manual (14th ed. 1982)
at 1174 - 1176; (15th ed. 1987) at 1231.

Petitioner does not dispute that, as a general rule, a physician
should send blood withdrawn from a knee joint to a laboratory for
analysis. However, he asserts that, under the circumstances of
this case, he was justified in discarding the fluid without sending
it to a laboratory for analysis.

Petitioner testified that the substance he removed from this
patient was old, degenerated blood. He stated that he did not send
it for laboratory analysis because lab values such as cell counts
and proteins are not interpretable on old blood. Tr. at 223 - 224.
Petitioner's testimony is deficient because he does not adequately
explain the basis for his conclusion that this fluid had
degenerated to the point that sending it for analysis would yield
meaningless results. Petitioner does not describe a recognized
objective standard that is used to determine whether a withdrawn
fluid has the characteristics which would justify throwing it away
without analysis. In addition, Petitioner does not describe the
fluid he actually withdrew with sufficient specificity to ascertain
whether it possesses those characteristics. It is noteworthy that
the Merck Manual classifies fluids based on viscosity, color, and
clarity. While Petitioner's progress note states that he withdrew
"old blood," it does not describe the viscosity, color, and clarity
of the withdrawn fluid.

Moreover, even Petitioner equivocated on the issue of whether the
fluid he withdrew from this patient would have produced results
which were not interpretable. In the September 28, 1993 hearing
before IPRO, Petitioner stated that even though the withdrawn fluid
was old blood, a "culture could have been done." I.G. Ex. 3 at 51
- 52. This statement is inconsistent with his subsequent statement
that he was justified in his decision not to obtain any laboratory
tests on this fluid, and it undermines his credibility. Tr. at 223
- 224.

Dr. Nicholas did not dispute that, as a general rule, a physician
would send fluid withdrawn from a knee to a laboratory for
analysis. However, he asserts that an exception to this general
rule should be made under the circumstances of this case.

Dr. Nicholas opined that "once you've decided this is a
hemarthrosis with old blood in it, any of the numbers you get back,
either high or low, would be not interpretable." Tr. at 558. He
acknowledged that ordinarily measuring protein is an important
thing to do in a joint fluid. However, he stated that old blood
has "disintegrated lysate cells in it which would contribute to the
fluid in general and elevate the protein some, and make the protein
analysis not really helpful." Id. In addition, he stated that
"blood simply being in the joint can incite a white cell response."
Id.

Dr. Nicholas reasoned that "one shouldn't send a lab test if the
results are not going to be interpretable. And that rule certainly
overrides the general rule, the general rules about what you should
with any -- you know -- with either the fluid or the specimen or
with what you would ordinarily do." Tr. at 558 - 559. Dr.
Nicholas asserted that obtaining tests that have no potential to
give interpretable results is wasteful and potentially misleading.
Tr. at 559.

I am not persuaded by Dr. Nicholas' testimony. While Dr. Nicholas
asserts the cellular components of blood can disintegrate to the
point that a laboratory analysis of the blood would be meaningless,
he does not offer an objective standard to determine when the blood
has disintegrated to that point. Instead, he relies merely on
Petitioner's conclusory statement that the withdrawn blood was
"old."

Moreover, the record is devoid of evidence showing that either Dr.
Nicholas or Petitioner possess the expertise to offer an opinion on
the issue of whether the withdrawn fluid has disintegrated to the
point that laboratory test results would be meaningless. It is
noteworthy that Dr. Kops declined to offer an opinion on this issue
on the grounds that he is "not a rheumatologist." Tr. at 308.

Based on the foregoing, I conclude that the weight of the evidence
establishes that professionally recognized standards require that
fluid withdrawn from a knee in the course of arthrocentesis should
be sent for laboratory analysis. I find also that the evidence
adduced by Petitioner fails to establish that an exception to this
general rule was justified under the circumstances of this case.
In view of the fact that Petitioner failed to obtain the requisite
laboratory tests on the withdrawn fluid, I find that he did not
take all the necessary steps to make a final and complete
diagnosis. In the absence of the fluid analysis, Petitioner did
not establish that his preliminary diagnosis was accurate.
Petitioner's failure to take the necessary steps to make a final
diagnosis is a substantial violation of his obligation to provide
care in accordance with professionally recognized standards of
care.

Patient 034026

PRO Findings: Failure to evaluate or follow-up an abnormal
lab value or document etiology of elevated glucose.

[I.G.] Analysis: Patient was admitted for renal colic. A
blood sugar of 232 was found on admission. The Medical records
show the elevated blood sugar determination (232 mg/dL) on 7/24/91
at 1:09. No further blood sugar determinations are listed in the
laboratory section of the chart. Hospital stay was from
7/24-26/91. There is no discussion of this in discharge summary,
as there is no discharge summary in the medical records submitted.
Repeat studies (SMA 18) ordered on 7/26/91; no results in chart.
Practitioner claims subsequent outpatient blood sugar
determinations were normal.

[I.G.] Decision: The medical records support the PRO
findings, and the findings are upheld. (Quality of care violation)

My Analysis: This patient was a 75-year old female, who was
admitted to Little Falls Hospital on July 24, 1991 with a diagnosis
of renal colic. I.G. Ex. 28 at 8 - 11. A laboratory test
conducted on July 24, 1991 indicated that the patient had a blood
glucose level of 232 mg/dL, an abnormally high result. I.G. Ex. 28
at 12. The patient was discharged from the hospital on July 26,
1991. I.G. Ex. 28 at 8. While another blood test was apparently
ordered, the patient's medical record does not reveal the results
of that test. I.G. Ex. 28.

The I.G. did not present any expert testimony as to what
professionally recognized standards of health care would require in
this case. On the other hand, Petitioner admitted that the result
of the follow-up blood test should have been in the chart. I.G.
Ex. 28 at 4; Petitioner's Brief at 91. Because evidence regarding
the professionally recognized standards of health care is absent in
this case, I have no basis to conclude that Petitioner's actions in
this case represent a quality of care violation. However, because
Petitioner admitted that the results of the follow-up blood test
should have been in the medical record, I conclude that this case
does represent a documentation violation.

This concludes my analysis of the evidence pertaining to the 13
cases at issue. The totality of the evidence persuades me that
Petitioner engaged in a pattern of acts or omissions which
contravened his obligations under section 1156(a) of the Act. I
find that the cumulative evidence proves that Petitioner failed in
a substantial number of cases substantially to comply with his
obligations under section 1156(a).

Petitioner argues that there is no basis for an exclusion in this
case because the I.G. has failed to prove that his treatment of
patients has caused harm to them. However, under section 1156 of
the Act, it is not necessary for the I.G. to prove that Petitioner
harmed his patients. Instead, section 1156 is intended to protect
program beneficiaries and recipients from the risk of harm by
identifying practitioners whose care fails to meet the standards of
practice of their professions.

The I.G. met her burden of proof by showing that Petitioner engaged
in a pattern of care that is inappropriate, unnecessary, does not
meet professionally recognized standards of care, or is not
supported by the necessary documentation of care as required by a
PRO. 42 C.F.R. 1004.1(b). Thus, even if I accept as true
Petitioner's assertion that his treatment of patients has not
caused harm, the lack of harm to patients does not prove that
Petitioner has complied with his obligations under section 1156(a)
of the Act.

Petitioner argues that an exclusion is not justified because he
committed "only documentation errors." Petitioner's Brief at 95.
Petitioner admits that his documentation of the treatment of
patients needs improvement. Tr. 516. Indeed, Little Falls
Hospital physicians who submitted an affidavit in lieu of testimony
on Petitioner's behalf acknowledge that IPRO had legitimate
concerns about Petitioner's documentation practices. P. Ex. 47 at
3. Thus, while Petitioner admits that the record shows
deficiencies in his documentation of patient charts, he takes the
position that these documentation deficiencies do not justify an
exclusion.

The excluded practitioner in Corkill v. Shalala, No. Civ-S-94-669,
slip op. at 5 (E.D. Cal. April 14, 1995) made the same argument.
The court rejected the argument, stating:

. . . even assuming that plaintiff is correct that in all four
cases the Secretary has proved only a `documentation' violation,
converting the medical necessity violations into documentation
violations does not provide plaintiff a basis for overturning the
suspension.

I agree with the court in Corkill. Petitioner is obligated under
section 1156(a) of the Act to document the quality of his care in
a form that is reasonably required by a reviewing PRO. A showing
that Petitioner engaged in a pattern of acts or omissions which
contravened this obligation proves that he substantially violated
his obligations under section 1156(a) in a substantial number of
cases. Petitioner's attempt to characterize his violations as mere
documentation deficiencies rather than quality of care violations
does not call into question the ultimate determination that he
failed in a substantial number of cases substantially to comply
with his statutory obligations.

Moreover, I do not agree with Petitioner that the I.G. proved only
documentation deficiencies. While the record shows that Petitioner
violated his obligation to provide adequate documentation in some
instances, it shows that, in other instances, Petitioner violated
his obligation to provide care of a quality which meets
professionally recognized standards of health care.

I find also that these violations constitute a pattern of
inappropriate treatment. The evidence establishes that there is
some form of violation in 11 of the 13 cases at issue and that
there are multiple violations in many of those cases. In addition,
the violations of statutory obligations have common features. The
evidence establishes that Petitioner has repeatedly failed to
provide adequate documentation, to order necessary tests, and to
keep pace with accepted treatment modalities.

Petitioner points out that Dr. Sperling testified that IPRO and its
predecessor ESMSEF have been reviewing his charts since 1988, and
he argues that the 13 cases at issue represent only a small
fraction of his total workload during the period from 1988 through
1991. I find that Petitioner's assertion that the cases at issue
comprise only a small part of his total practice does not rebut the
evidence of a pattern of substantial violations which emerges from
the 13 cases before me.

c. Petitioner has demonstrated an unwillingness and lack of
ability substantially to comply with the obligations imposed on him
by section 1156(a) of the Act.

The I.G. determined that Petitioner has demonstrated an
unwillingness and inability substantially to comply with the
obligations imposed on him by section 1156(a) of the Act. The I.G.
made this determination in accordance with the Act, which, as a
prerequisite to the imposition of an exclusion against a provider,
requires that the Secretary determine whether that provider has
demonstrated an unwillingness or lack of ability substantially to
comply with his obligation to provide health care as specified by
the Act. Act, section 1156(b)(1).

The Act does not require the I.G. to determine that a provider is
both unwilling and unable substantially to comply with his
obligations under the Act as a prerequisite to excluding the
provider. The Act's criteria for exclusion are met if the I.G.
determines either that a provider is unable to comply with his
statutory obligations or that a provider is unwilling to comply
with such obligations. In this case, the I.G. determined that
Petitioner has demonstrated both an unwillingness and an inability
substantially to comply with his obligations. I find that the
I.G.'s determination is supported by the evidence.

The I.G.'s determination is supported by Petitioner's pattern of
inappropriate treatment. Petitioner's unwillingness and inability
to comply with his statutory obligations is established by his
consistent failure to comply with accepted medical standards in his
treatment of the patients in the cases at issue in this proceeding.
The multiple episodes of Petitioner's failure to obtain necessary
diagnostic tests and his failure to adequately document his
treatment demonstrate his unwillingness and inability to comply
with his statutory obligations.

Moreover, this proceeding did not arise in a vacuum. The record
shows that the violations which are the basis for this proceeding
occurred after Petitioner entered into a CAP with IPRO's
predecessor, ESMSEF, in 1989. Petitioner's unwillingness and
inability to comply with his statutory obligations is established
by his pattern of substantial violations, coupled with his failure
to rectify his deficiencies, despite having been counseled to do so
by the PRO.

In June of 1989, ESMSEF advised Petitioner that it had made an
initial determination that he had failed to comply substantially
with his obligations under the Act in 14 cases. Petitioner met
with ESMSEF in August 1989 to discuss this determination. I.G. Ex.
7, 8.

During that meeting, ESMSEF representatives expounded at length on
the treatment deficiencies they observed. They criticized
Petitioner's documentation of his treatment of patients. In
addition, they criticized Petitioner for failing to obtain
necessary medical tests and consultations. I.G. Ex. 8. At that
time, Petitioner represented that his documentation practices were
improving. He indicated also that he had begun to obtain more
tests and consultations. I.G. Ex. 8 at 136 - 137. However, even
as he was promising that his medical practices were changing, he
made comments to suggest that he was making these changes under
duress.

With regard to ESMSEF's criticism of his documentation practices,
Petitioner stated that the "more words that are written, sometimes
the more confusion you throw. You don't know what is going on."
I.G. Ex. 8 at 136. With regard to ESMSEF's criticism of his
failure to obtain medical tests, he stated:

I may have not done all the tests that are proper, you know.
So I am getting defensive now. I get somebody who comes in with a
hopeless stroke, I will get a CAT scan out of him. I am ashamed of
myself, but I do it. Radiologist thinks I am crazy but I will do
it. See? That is how I am trying to keep you off my back.

I.G. Ex. 8 at 136 - 137. With regard to obtaining consultations,
Petitioner stated "[s]ometimes they are valuable, sometimes they
are not." I.G. Ex. 8 at 137.

These remarks suggest that although Petitioner promised to change
his medical practices in response to criticisms of ESMSEF, he did
not do so willingly. Instead, any changes he made were made under
protest, in order to prevent ESMSEF from imposing additional
sanctions. In addition, these remarks show that Petitioner was not
persuaded by the reviewing authorities that there were true
deficiencies in the way he practiced medicine. Petitioner's
refusal to acknowledge any deficiencies in his practice suggests
that he may have lacked the ability to discern what constitutes
appropriate care.

In an attempt to rectify the substandard care it discerned in
Petitioner's practices, ESMSEF proposed a CAP which had three
elements: (1) ESMSEF would review all of Petitioner's hospital
admissions for the previous three month period; (2) Petitioner
would take CME courses approved by ESMSEF; and (3) Petitioner would
improve the quality of his documentation. Petitioner agreed to
this CAP. I.G. Ex. 8, 9.

In December 1989, IPRO was awarded the New York State PRO contract.
IPRO assumed the responsibility for monitoring the implementation
of the CAP. Tr. at 25 - 26; I.G. Ex. 10. By letter dated March
29, 1990, IPRO informed Petitioner that it would review all of
Petitioner's Medicare medical records for a period of three months.
P. Ex. 15. Petitioner agreed also to enter into an educational
intervention program. I.G. Ex. 14 at 3. At IPRO's request,
Petitioner submitted regular reports on the CME tapes he watched
and the CME lectures and conferences he attended. I.G. Ex. 31.

The reviews and interventions undertaken by the PROs did not remedy
the deficiencies discerned by the PROs. It is significant that the
pattern of quality of care and documentation violations which I
have found in this proceeding occurred in 1991, after Petitioner
entered into a CAP in 1989. The type of violations which I have
found in this proceeding are similar to the deficiencies identified
by ESMSEF in 1989. Given the resurgence of similar deficiencies
over the years, there is no valid basis for concluding that
Petitioner is willing and able to comply substantially with his
obligations under the Act.

In this proceeding, Petitioner has again represented that he is
changing his treatment practices in response to the deficiencies
identified by IPRO. However, I am skeptical of Petitioner's
assertions that he is willing and able to change his treatment
practices in view of his continued refusal to accept wholeheartedly
that there are substantial deficiencies in the way in which he
practices medicine. It is apparent to me, both from Petitioner's
testimony and his demeanor as a witness, that Petitioner has not
fully acknowledged his shortcomings.

During the hearing, Petitioner testified that he practices "a very
good brand of medicine." Tr. at 517. While he has acknowledged
that the documentation in his charts may have some deficiencies,
his testimony suggests that he believed these deficiencies to be
technical violations which are minor in nature. Petitioner stated
that the reviewing authorities have been "chasing me with
enthusiasm for -- oh, it must be 10 or 12 years." Id. He
expressed the view that the treatment deficiencies identified by
the reviewing authorities are minor and that they would be found in
the charts of any physician who is exposed to the same level of
scrutiny. While Petitioner represented that he is improving his
documentation practices and obtaining more tests and consultations,
he stated that he was doing this because "I try to protect myself
from those people." Tr. at 520.

This testimony shows that Petitioner refuses to fully accept that
his care does not comply with professionally recognized standards
of care. Petitioner's refusal to accept the deficiencies in his
treatment of patients demonstrates that he is unwilling and unable
to comply with his statutory obligations.

Petitioner argues that he did not receive proper notice and
opportunity to be heard on the issue of whether he complied with
the CAP. This argument is unavailing.

The Act requires that, in deciding whether to exclude a party, the
Secretary (or her delegate, the I.G.) shall consider a party's
willingness or lack of ability to enter into and successfully
complete a CAP. This provision states:

In determining [whether] a practitioner or person has
demonstrated an unwillingness or lack of ability substantially to
comply with such obligations, the Secretary shall consider the
practitioner's or person's willingness or lack of ability, during
the period before the organization submits its report and
recommendations, to enter into and successfully complete a
corrective action plan.

Act, section 1156(b)(1). Thus, statutory language explicitly
provides that a provider's willingness and ability to comply with
a CAP is relevant to the I.G.'s determination of the provider's
willingness and ability to comply with his statutory obligations.

In this case, the I.G. fulfilled this statutory obligation. In the
Notice, the I.G. notified Petitioner that, in making the
determination that Petitioner is unwilling and unable to comply
with his obligations, the I.G. considered Petitioner's failure to
improve his practice pattern even after he entered into the CAP in
1989. Notice at 7. Petitioner was notified that this was an issue
in this proceeding and he had an opportunity to be heard on it in
this forum. Moreover, IPRO informed Petitioner in its sanction
notices and other correspondence that Petitioner had not rectified
his treatment deficiencies in spite of the 1989 CAP. I.G. Ex. 14
at 1, 4, I.G. Ex. 15 at 13, I.G. Ex. 1. Based on the foregoing, I
find that Petitioner has not shown that his notice and hearing
rights were abridged at any stage of the sanction process.

Petitioner argues also that he complied with the 1989 CAP. He
asserts that he met the requisite CME requirements and that he
improved his medical treatment practices. Petitioner's Response at
20.

CAPs are proposed by a PRO when the PRO discerns a pattern of
substandard care. The purpose of a CAP is to rectify a provider's
deficiencies so that he can render care that meets professional
standards. In this case, Petitioner was to take CME courses as
part of the CAP. The record shows that he cooperated in meeting
the CME requirements imposed by the PRO. However, the fact that
Petitioner took the requisite CME courses did not prevent him from
continuing to render substandard care. In addition, Petitioner's
assertion that he improved his treatment practices is not
persuasive in light of Petitioner's pattern of violations of his
obligations after he entered into the 1989 CAP. Petitioner's
failure to rectify his deficiencies after he agreed to a CAP is
convincing evidence that he is unwilling and unable to comply with
his statutory obligations.

I conclude that the I.G. proved by a preponderance of the evidence
that authority exists to exclude Petitioner. I find that the
evidence in this case strongly supports IPRO's recommendations, as
adopted by the I.G., that Petitioner engaged in a pattern of
substantially inappropriate treatment of his patients, in violation
of his obligations under section 1156(a) of the Act. In addition,
the evidence supports the I.G.'s conclusion that Petitioner has
demonstrated an unwillingness and lack of ability to substantially
comply with his obligations.

II. Petitioner's five-year exclusion is reasonable, comports with
the remedial purposes of the Act and is supported by the evidence.

Petitioner argues in his briefs that the I.G. has failed to meet
her burden of proof and, consequently, the statutory bases for the
exclusion have not been met. I have already addressed those
arguments in this decision and have found them without merit.
Therefore, having concluded that the I.G. has met the statutory
requirements for an exclusion of Petitioner, the remaining issue
before me is whether the proposed exclusion is reasonable and
comports with the remedial purposes of the Act. For the reasons
cited below, I conclude that the record before me amply supports
the proposed five-year exclusion.

Particularly troubling to me is the fact that the conduct which
formed the basis of IPRO's recommendation to the I.G. arose after
Petitioner had agreed to a CAP imposed by ESMSEF in 1989 in
response to earlier alleged substantial violations of Petitioner's
obligations under section 1156 of the Act. The conduct challenged
in this case arose from a focused review of Petitioner's hospital
admissions over the course of several months in 1991. Moreover,
Petitioner, as part of the CAP, agreed to enroll in a CME program
designed to remedy the conduct previously found not to meet
professionally recognized standards of care. In addition,
Petitioner agreed to improve the quality of his documentation of
the treatment provided to hospitalized patients, including the
basis for a patient's admission to a hospital and a description of
Petitioner's treatment of such patient. The practices Petitioner
engaged in which IPRO and the I.G. challenged in this case are, for
the most part, very similar to the practices Petitioner engaged in
which led to the CAP; e.g, failure to order appropriate tests and
to adequately document in hospital records his treatment of
patients. Therefore, serious questions exist as to whether
Petitioner can ever conform his conduct to that mandated by
professionally recognized standards of care.

Equally disturbing is Petitioner's explanation that he disliked
engaging in "defensive medicine" which may cause some discomfort to
his patients. Tr. at 348 - 349. As shown by this record,
Petitioner's refusal to have a number of his patients undergo
appropriate diagnostic tests placed these patients at risk of
exposure to undiagnosed diseases with attendant possible serious
consequences. See, for example, discussions related to patients
031409, 031943, and 060460. The mandatory CME courses Petitioner
was required to take had little effect on his practice of medicine.
Moreover, such practice of medicine occurred after his prior
treatment of patients was subject to close scrutiny by IPRO, with
an understanding that continuation of the challenged conduct would
result in a recommendation by IPRO that he be excluded. 29/
Despite the threat of an exclusion, Petitioner did not alter his
conduct.

At the hearing, Petitioner attempted to counter the findings of
IPRO with the testimony of his expert, Dr. Nicholas. While in some
cases Dr. Nicholas did raise some legitimate issues, at other times
he offered damaging testimony that Petitioner's treatment failed to
meet the professionally recognized standards of care.

In addition, in some instances, Dr. Nicholas raised medical issues
that Petitioner did not consider at the time of treatment. See,
for example, the discussions relating to patients 031409 and
060460. Such obvious post hoc rationalizations fail to offset the
credible evidence offered by the I.G. that Petitioner failed to
meet professionally recognized standards of care in the treatment
of such patients.

Petitioner has asserted inadequate documentation as a response on
more than one occasion when IPRO has criticized the quality of his
care. See, for example, the discussions relating to patients
031943, 030053, and 037680. Considering Petitioner's pattern of
failure to have his patients undergo requisite diagnostic testing
and the absence in the record of written or telephonic orders for
nursing staff that is consistent with Petitioner's version of his
treatment of such patients, I find Petitioner's reliance on
documentation lapses to explain his conduct to be unpersuasive and
lacking in credibility. There is no basis for me to believe that
Petitioner provided more appropriate care than that which he
documented in his patients' records.

Petitioner still fails to fully understand the significance of his
conduct. Even if I accept that Petitioner will be more careful in
documenting his treatment of patients in the future, I am not
convinced that such documentation will alter his treatment
decisions. In short, his treatment of patients will arguably
continue to be below professionally recognized standards of care
with regard to diagnostic decisions concerning choices of
treatment, even if such decisions are better documented. This
would result in his future treatment of program beneficiaries and
recipients being at an unacceptable level.

I am mindful that Petitioner has practiced general medicine in
Little Falls, New York, for approximately fifty years. This is a
laudable accomplishment considering the general lack of medical
providers in non-metropolitan areas. I am cognizant that the
Little Falls Hospital, where Petitioner admitted the patients at
issue, is a relatively small hospital which does not have access to
the latest equipment or to the level of expertise that might be
found at a teaching hospital in a major metropolitan area. But as
Dr. Nicholas testified, even with the understanding that the
practice of medicine may be different at a teaching hospital,
certain of Petitioner's practices are still below professionally
recognized standards of care. See, for example, the discussion
related to patient 037680. Unfortunately, Petitioner's failures to
have his patients undergo appropriate diagnostic tests, and the
resulting choice of treatment, may have prevented his patients from
going to other hospitals where they could have received care that
met professionally recognized standards. Petitioner exposed such
patients to the possible unnecessary risk of illnesses for which
they were not properly diagnosed or treated. Similarly,
Petitioner's documentation failures could lead to confusion in the
future treatment of his patients when the current treatment is not
clearly set forth in the patient records. Although the record
contains no evidence of any direct connection between Petitioners's
conduct and the onset of an undiagnosed or untreated illness or
problems with subsequent treatment of his patients, the possibility
that such occurrences could result is sufficient to warrant an
exclusion in his case.

The I.G. proposes a five-year exclusion. There is nothing in this
record to support a finding that the five-year exclusion is either
extreme or excessive. I base this on the extensive history that
Petitioner has had with the State of New York PROs, including the
intensive review of his hospital treatment records over a period of
several months in 1991, the unwillingness and inability of
Petitioner to understand the gravity and significance of his
conduct, and his reliance on post hoc rationalizations to justify
or excuse his conduct. I am hopeful that the imposition of the
exclusion will cause Petitioner to more seriously examine his
treatment procedures and practices, so that at the end of the five-
year exclusion he will qualify to be reinstated as a program
provider. The record reflects that Petitioner is motivated by the
belief that he is acting in the best interests of his patients. I
am hopeful that, once Petitioner accepts that such conduct is not
in their best interest, he will be similarly motivated to conform
his practices with professionally recognized standards of care, and
thereby provide a basis for his participation as a program
provider.

III. Petitioner poses a serious risk to patients.

A provider who is the subject of an exclusion determination made
pursuant to section 1156 is entitled to a de novo hearing before an
administrative law judge on the issues of whether the exclusion is
authorized under law and whether the length of the exclusion is
reasonable. Ordinarily, the I.G. may effectuate an exclusion
determination made pursuant to section 1156 prior to any
administrative hearing. Thus, while the hearing is de novo, the
exclusion ordinarily is in effect prior to the hearing on the
merits of the case.

The exception to this procedure is in the case of a provider whose
practice is located in a rural health professional shortage area or
in a county with a population of less than 70,000. The Act
provides that, in such a case, before any exclusion may be imposed,
the excluded provider is entitled to a hearing and a ruling as to
whether he or she poses a serious risk to patients.

In this case, by letter dated May 3, 1994, the I.G. notified
Petitioner that he was excluded pursuant to the authority under
section 1156 of the Act. Petitioner requested a hearing. By
letter dated August 31, 1994, the I.G. informed Petitioner that she
had determined that the population of the county in which
Petitioner practices medicine is less than 70,000. The I.G.
informed Petitioner that, before an exclusion could be effected,
Petitioner was entitled to a hearing on the issue of whether he
posed a serious risk to patients. Based on this, the I.G. informed
Petitioner that the I.G. was reinstating Petitioner's eligibility
to be reimbursed for items and services provided to program
patients.

In order to avoid the duplication and delays which would result
from two hearings, the parties requested that I consolidate the
hearing on the issue of serious risk and the hearing on the
authority to exclude and the reasonableness of the length of the
exclusion. They also requested that posthearing briefs consolidate
arguments on all of these issues. I granted the parties' request,
and this decision consolidates the issues of serious risk, the
authority to exclude, and the reasonableness of the length of the
exclusion.

Although there may be some question as to the necessity of the
serious risk finding at this stage of the proceeding, the issue is
not completely clear as to whether the exclusion will take effect
should Petitioner appeal my decision to uphold the five-year
exclusion. It is my understanding that the intent of the statute
is that the exclusion should take effect after a decision on the
merits that is adverse to a provider. However, as there have been
no rulings on this issue, I have decided to address the serious
risk issue here.

The Act does not define the term "serious risk." However, it has
been interpreted in prior rulings as a propensity to unreasonably
expose a patient to a hazard or danger of serious harm. Louis W.
Deinnocentes, Jr., Ruling on Serious Risk, at 5 (April 20, 1992).
To prove serious risk, it is not necessary that the I.G. prove
repeated episodes of patient endangerment. Exposure of a patient
to a grave hazard in any one case, or to less grave but serious
errors occurring with enough frequency to place patients in danger
of serious harm, is sufficient.

I find that the evidence offered by the I.G. supports the
conclusion that Petitioner poses a serious risk to patients. This
finding is based on the pattern of
care which I have found in Petitioner's treatment of his patients.
Petitioner's treatment of patients demonstrates both a lack of
judgment and of knowledge of appropriate basic medical responses in
the evaluation and care of patients.

My conclusion that Petitioner is a serious risk is not based on
findings that Petitioner actually harmed his patients. This
conclusion is based on my finding that Petitioner's treatment
practices exhibit serious deficiencies. I am concerned about the
overall substandard quality of care shown by Petitioner.

The evidence adduced by the I.G. establishes that Petitioner failed
repeatedly to obtain basic diagnostic information. Petitioner's
care of several patients displayed significant gaps in his
understanding of the tests which were needed to adequately evaluate
a medical condition. Petitioner's failure to obtain necessary
diagnostic information exposed his patients to unacceptable risk of
harm in several cases.

For example, in the case of patient 031943, Petitioner's failure to
obtain an endoscopy or an upper GI series before selecting
treatment for a patient with an upper GI bleed exposed the patient
to the serious risk of having the cause of her bleed go undetected
and untreated. This exposed the patient to the risk of a
recurrence of the bleeding. In addition, the severity of the error
was amplified by the fact that this patient had a family history of
stomach cancer.

Another example of an unacceptable risk caused by Petitioner's
treatment is found in his care of patient 039837. The testimony
related to this patient established that an x-ray should have been
taken immediately after a thoracentesis was performed, in order to
determine whether the procedure was done properly and that it did
not damage the patient's lung. Petitioner's failure to take an
x-ray immediately after this procedure exposed the patient to the
risk of serious complications affecting her ability to breathe.

The evidence establishes a pattern of Petitioner's failure to
follow appropriate medical practices to evaluate patients. It
establishes also a pattern of inadequate documentation of medical
care. I infer from the pattern of practice which the I.G. proved
that the acts and omissions engaged in by Petitioner are
representative of Petitioner's ongoing practice and are not
isolated instances.

I recognize that Petitioner has asserted that he does not pose a
serious risk to patients because he now practices medicine in a way
that responds to the concerns identified by the I.G.'s experts. It
is possible that Petitioner may have made some changes to his
medical practice. However, it is apparent to me that Petitioner
still does not appreciate the seriousness of his deficiencies in
the way he practices medicine. For that reason, Petitioner's
self-serving averments that he has conformed his medical practice
to meet the I.G.'s concerns are not persuasive.

CONCLUSION

I conclude that the I.G. has the authority to impose and direct an
exclusion against Petitioner pursuant to section 1156(b)(1) of the
Act. In addition, the five-year exclusion which the I.G. imposed
and directed is reasonable. I conclude also that Petitioner is a
serious risk to patients within the meaning of section 1156 of the
Act. Accordingly, this exclusion is to go into effect 20 days
after the date of this decision.

Edward D. Steinman
Administrative Law Judge

1. "State health care program" is defined by section 1128(h) of
the Act to cover three types of federally financed health care
programs, including Medicaid. Unless the context indicates
otherwise, I use the term "Medicaid" hereafter to represent all
State health care programs from which Petitioner was excluded.

2. A provider of care is obligated to assure that items or
services which he or she provides to Medicare beneficiaries and
Medicaid recipients are "of a quality which meets professionally
recognized standards of health care." Act, section 1156(a)(2).
For the sake of brevity, I refer to these standards as
"professionally recognized standards of care", "professional
standards of health care", "professional standards of care" or
"professional standards." In addition, the conduct which formed
the basis of the exclusion occurred in 1991 and the applicable
professionally recognized standards of health care are those which
were in effect in 1991. Unless the context indicates otherwise, I
use the term "professionally recognized standards of health care"
to refer to the standards in effect in 1991.

3. The I.G. alleged also in the Notice that 18 additional cases,
while not being used as the basis on which the exclusion is
imposed, demonstrate Petitioner's continuing inability to meet his
obligations under section 1156(a). During a prehearing conference
held by me on September 7, 1994, counsel for the I.G. stated that
the I.G. would not rely on these 18 additional cases in this
proceeding. September 8, 1994 Order and Notice of Hearing at 3 -
4. At the hearing, the I.G. reiterated this position. The I.G.
stated that, even though there has been an ongoing review of
Petitioner's medical practice, the I.G. is not relying on any of
the cases which have been the subject of this ongoing review in
this proceeding. Transcript (Tr.) at 32 - 33. At the hearing, I
ruled that I will not make any inferences based on the fact that
there is an ongoing review of Petitioner's medical practice, nor
will I rely on any evidence pertaining to any case which is the
subject of the ongoing review in reaching a decision on any issue
before me in this case. Tr. at 34.

4. Once the I.G. has determined that there is a basis for an
exclusion, she must consider the specific factors contained in 42
C.F.R. 1004.90(d) in determining the appropriate length of the
exclusion. The I.G. is to consider these factors: (1) the
recommendation of the PRO; (2) the type of offense; (3) the
severity of the offense; (4) the previous sanction record of the
practitioner or other person; (5) the availability of alternative
sources of services in the community; (6) any prior problems the
Medicare carrier or intermediary has had with the practitioner or
other person; (7) whether the practitioner or other person is
unable or unwilling to comply substantially with the obligations;
and (8) any other matters relevant to the particular case.

5. Petitioner attached a copy of this letter to his initial
posthearing brief for my convenience.

6. As a convenience to the parties, I have divided my FFCLs into
sections which are headed by descriptive captions. The captions
are not FFCLs, and they do not alter the meaning of my FFCLs.

7. The names of each of the patients involved in this proceeding
are reported in their medical records, which are in evidence.
However, as a courtesy tho these patients, and out of respect for
their privacy, I refer to each of them by the number assigned to
their medical record.

8. At the meeting with IPRO on November 10, 1992, Petitioner
stated that the tests would be appropriate for a patient presenting
purely with gallbladder colic. I.G. Ex. 6 at 12. Petitioner's
expert did not suggest that the tests were not required in treating
gallbladder disease; instead, he opined that the tests were not
needed in this case because the patient did not have clinical
symptoms related to her gallbladder. Tr. at 404 - 405.

9. The term "cholecystolithiasis" refers to the presence of
stones and the thickening of the gallbladder wall. Tr. at 409.

10. At the November 10, 1992 IPRO meeting, Petitioner stated,
"I had Dr. Wong look at her I think before I defined gall stones."
I.G. Ex. 6 at 15.

11. Diverticulosis is "the presence of pouches or sacs in the
colon, which are caused by herniation of the mucosa of the colon
through the muscular layers of the bowel wall." I.G.'s Brief at
18, footnote 3.

12. A hiatus hernia is "a herniation of the abdomen through the
diaphragm." I.G.'s Brief at 18, footnote 3.

13. The "Routine Early Endoscopy in
Upper-Gastrointestinal-Tract Bleeding" study relied on by Dr.
Nicholas indicates that an endoscopy is useful if the patient
experienced prior episodes of bleeding or if the presence of a
malignant disease is possible. P. Ex. 53 at 4 - 5.

Even if we were to accept Dr. Nicholas' assertion and find that the
standards of care do not require an immediate endoscopy for a
patient presenting with an upper GI bleed that ceases during
treatment, this case falls within an exception to the standards.
The study on which Petitioner relies states that there are
situations where an endoscopy may be necessary in order to make a
specific diagnosis, and this includes a patient who has had prior
episodes of bleeding. P. Ex. 53 at 5. The patient here did have
recurrent bleeding in that she had bled back in 1987, and, if the
source of the present bleed wasn't discovered, she was at risk of
bleeding again. Moreover, another exception to the general
conclusion made in this study is that an early endoscopy should be
used if there is a suspicion of malignancy. P. Ex. 53 at 4. Thus,
even though the bleeding in this case had essentially stopped by
September 1, the fact that the patient here had prior episodes of
bleeding and was at risk of having a malignancy (due to her family
history) makes this an exception to Petitioner's cited rule.

14. Petitioner acknowledged that an endoscopic examination
would have been the most accurate means to diagnose the reason for
the upper gastrointestinal bleed. Tr. at 353.

15. The I.G. attempted to introduce an article which
contradicts the one relied on by Petitioner. The I.G. asserts that
this article, which is written by one of the same authors of the
article cited by Petitioner, indicates that the standards of care
for upper GI bleeds requires early endoscopies. I.G.'s Brief at 23
- 24. I do not accept this article into evidence because it was
submitted untimely. The I.G. had the opportunity to request an
extension of time to submit the article after the hearing in this
case and failed to do so. Moreover, in light of my conclusion that
the existence of a controversy in 1991 does not alter the
professional standard of care to examine the patient's upper GI
tract in instances of bleeding from that area, the new article
offered by the I.G. is not relevant.

16. Petitioner testified that the progress notes reflect "the
chief complaint, the physical findings that are pertinent, the
laboratory work that's relevant and the final diagnosis and what
happened to the patient." Tr. at 357.

17. A thoracentesis is a procedure involving the insertion of
a needle into the chest cavity to drain out fluid. Tr. at 95.

18. Dr. Sperling testified that a pneumothorax exists when air
has accumulated in the chest cavity. Petitioner did not contest
this definition, therefore, I accept it as true. Tr. at 95.

19. In his testimony, Dr. Sperling defined a pneumothorax. He
explained that the term means that there is air in the chest
cavity. Tr. at 95.

20. Dr. Sperling explained the significance of the Level I, II
and III determinations made by the PRO:

Level 1 is incurring a disability to the patient that is not
life-threatening. Level 2 is developing a severe disability to the
patient that is life-threatening. Level 3 is a life-threatening
situation which did or did not cause a mortality.

Tr. at 100.

21. The I.G. Analysis in the Notice incorrectly states that the
nursing notes give this description of the lesion on July 14, 1991
rather than on July 11, 1991.

22. Petitioner's July 11, 1991 progress note describes the
condition as "involuting." The American Heritage Dictionary, 2d
College Edition, defines "involute" as "[h]aving the margins rolled
inward."

23. As indicated in the Merck Manual at 2299, "[u]lcers that have
not advanced beyond the 3rd stage may heal spontaneously if the
pressure is removed and the area is small." The record supports
that this patient was turned from side to side at regular intervals
and was encouraged to ambulate as soon as he was capable of doing
so. This reference from the Merck Manual suggests that early
staged decubitus ulcers are not particularly significant, as long
as they are not allowed to worsen to a later stage (stages four to
six) where there is muscle necrosis and bone destruction, neither
of which occurred in this case.

24. At the November 10, 1992 IPRO hearing, Dr. Nicholas mentioned
in passing that he had read a regulation that provided that
"readmissions resulted in automatic Level 3 citations." I.G. Ex.
6 at 140. However, the I.G. did not mention or rely on any
regulatory criteria to support the PRO finding that Petitioner
prematurely discharged this patient.

25. At the IPRO hearing on November 10, 1992, Petitioner
testified that, based on an adverse result from an endarterectomy
of a brother of a patient of his, and based on his research into
the literature on this surgery, he decided not to consider patient
060460 as a surgical candidate. I.G. Ex. 6 at 148 - 149.

26. Dr. Nicholas' testimony is not that the nursing staff would
have the responsibility to determine the initial flow rate for the
IV. Instead, the thrust of Dr. Nicholas' testimony is that, in a
community hospital, it would be appropriate for the nursing staff
to adjust the flow rate, depending upon the patient's reaction.

27. On cross-examination, Dr. Sperling agreed that the patient
was monitored and treated and that his hypoglycemia was reduced.
Tr. at 145. The medical record demonstrates that the patient was
monitored and received treatment and that his blood sugar returned
to normal. This in no way contradicts Dr. Sperling's direct
testimony that the patient's blood sugar was not monitored at
frequent, regular intervals during the day and night of December 27
- 28, 1991.

28. Petitioner's progress notes indicate that the patient was
admitted with auricular fibrillation, and Dr. Kops testified that
the patient was admitted with atrial fibrillation. Apparently, the
two terms are used synonymously. Dr. Kops defined atrial
fibrillation as: "an uncoordinated activity of the atrium. The
heart loses its efficiency to pump. Because of atrial
fibrillation, there's stagnation of blood flow in the heart." Tr.
at 276. Since Petitioner did not contest this definition, I accept
it as true.

29. While there is no specific admission by Petitioner to this
effect in the record, I conclude from the vigor with which he
defended his conduct throughout the lengthy sanction process by the
various New York
State PRO's that he was aware of the possibility that an exclusion
could be recommended as a result of the PROs' investigations.