$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Frank S. Horng, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: January 25, 1996
Docket No. C-94-357
Decision No. CR410
DECISION
This is a case in which the Inspector General (I.G.) determined to
exclude Petitioner from participating in the Medicare and Medicaid
programs, based on her finding that Petitioner grossly and
flagrantly violated his obligation under section 1156 of the Social
Security Act (Act) to provide care to Medicare beneficiaries of a
quality that meets professionally recognized standards of health
care. 1/ Although the I.G. determined originally to exclude
Petitioner for a period of three years, she now asserts that a 10
- 15 year exclusion is reasonable. Petitioner argues that no
exclusion is reasonable. I conclude that it is reasonable to
exclude Petitioner for a period of three years.
I. Background
On May 19, 1994, the I.G. notified Petitioner that she had
determined to exclude Petitioner from participating in Medicare and
Medicaid for three years. The I.G. told Petitioner that the
exclusion was authorized by section 1156 of the Act. The I.G.
based the determination to exclude Petitioner on a recommendation
made by the Medical Society of Virginia Review Organization
(MSVRO), the peer review organization for the State of Virginia.
MSVRO recommended that Petitioner be excluded based on its findings
that, in several instances involving two Medicare beneficiaries,
Petitioner grossly and flagrantly violated the obligation imposed
on him by section 1156(a) of the Act because he did not provide
care of a quality that meets professionally recognized standards of
health care. 2/ The I.G. advised Petitioner that she had reviewed
MSVRO's recommendation and that she agreed with it and with the
findings on which MSVRO based its recommendation.
Additionally, the I.G. notified Petitioner that she had determined
that Petitioner was unwilling and unable to comply with his
obligations under section 1156 of the Act. The I.G. told
Petitioner that, in part, she based this conclusion on MSVROþs
identification of quality of care problems in Petitioner's
treatment of five additional patients. 3/ The I.G. advised
Petitioner also that she concluded that Petitioner's failure to
comply with a corrective action plan that was imposed on Petitioner
in 1985 by MSVRO was evidence of Petitioner's unwillingness to
comply with his obligations under the Act. The I.G. advised
Petitioner that his failure to understand the limitations present
at the hospital at which Petitioner provided care established his
inability to comply with his obligations under the Act.
The I.G. advised Petitioner that, prior to the effectuation of the
exclusion, he was entitled to a preliminary hearing before an
administrative law judge concerning whether he posed a serious risk
to patients. The I.G. determined that Petitioner was entitled to
a preliminary hearing because Petitioner practiced in a county with
a population of fewer than 70,000.
Petitioner requested a hearing, both as to the preliminary issue of
serious risk, and as to the issues of whether the I.G. was
authorized to exclude Petitioner and whether the three-year
exclusion determined by the I.G. was reasonable. The case was
assigned to me. On August 4 - 5, 1994, I held a preliminary
hearing in Washington, D.C., as to the issue of serious risk. On
August 18, 1994, I issued a ruling in which I found that Petitioner
posed a serious risk to his patients. I permitted the I.G. to
effectuate her exclusion of Petitioner pending my decision on the
remaining issues.
On July 24 - 27, 1995, I held a hearing in Washington, D.C., on the
remaining issues. Prior to the hearing, the I.G. notified
Petitioner that she intended to argue that the exclusion imposed
against Petitioner should be for a period of 20 years, and not for
the three-year period which the I.G. previously had determined to
impose. Tr. at 7 - 8. Prior to the hearing, Petitioner advised
the I.G. that he was no longer disputing that the I.G. had
authority to exclude him pursuant to section 1156 of the Act. Id.
At the completion of testimony, I afforded the parties the
opportunity to file posthearing briefs. The parties filed
posthearing briefs, and Petitioner filed a reply to the I.G.'s
posthearing brief.
I base my decision on the law, the evidence that I received at the
July 24 - 27, 1995 hearing, and on the parties' arguments. In
reaching my decision, I have not relied on my August 18, 1994
ruling on the issue of serious risk, inasmuch as that ruling
involved a preliminary issue and did not address the ultimate issue
of whether an exclusion of a particular duration is reasonable. In
this decision, I am relying on the record created at the July 24 -
27, 1995 hearing, although the record also includes the evidence
which I received on August 4 - 5, 1994. 4/
II. Issue, findings of fact, and conclusions of law
The only issue remaining to be decided in this case is what, if
any, exclusion is reasonable. Petitioner acknowledges that the
I.G. has the authority to exclude him. 5/ I make the following
findings of fact and conclusions of law (Findings) which support my
conclusion that a three-year exclusion is reasonable. I discuss
these Findings in detail below.
1. The purpose of an exclusion under section 1156 of the Act
is to protect federally funded health care programs, and the
beneficiaries and recipients of those programs, from an individual
who is not trustworthy to provide care.
2. Petitioner is a board-certified surgeon who has practiced
medicine and surgery in Luray, Virginia, for more than 20 years.
3. Petitioner performed many surgeries at Page Memorial
Hospital (Page Memorial), a small rural hospital, which is equipped
to handle routine and minor surgeries, but which is not equipped to
handle extremely complex surgeries.
4. Petitioner misjudged the risks of performing surgeries at
Page Memorial in light of the need for performing surgeries there.
5. Petitioner committed errors in performing surgeries, which
caused harm to his patients.
6. Petitioner committed errors in his medical practice, other
than surgery, which caused harm to his patients.
7. Petitioner altered medical records in order to cover up
his errors.
8. Petitioner attempted to shift responsibility for his
errors to other individuals.
9. Petitioner has acknowledged committing some errors and has
made attempts to conform his practice to professionally recognized
standards of health care.
10. Petitioner is dedicated to the welfare of his patients
and intends to provide them with a good quality of care.
11. Petitioner has not acknowledged fully the extent of his
errors or his attempts to cover up past errors.
12. Petitioner continues to attempt to attribute
responsibility for some of his errors to other individuals.
13. The preponderance of the evidence establishes that
Petitioner remains untrustworthy to provide care to program
beneficiaries and recipients.
14. A three-year exclusion is reasonable in this case.
III. Analysis of the law (Finding 1)
Section 1156 of the Act imposes on providers and practitioners who
provide care to beneficiaries and recipients of federally funded
health care programs duties which include the requirement that they
provide care of a quality which meets professionally recognized
standards of health care. Act, section 1156(a)(2). The Act
authorizes the Secretary, based on the recommendation of a peer
review organization, to exclude a provider or practitioner who
grossly and flagrantly violates his or her obligation to provide
care in accordance with professionally recognized standards of
health care. Act, section 1156(b)(1).
Typically, a case brought under section 1156 involves two issues:
the authority of the I.G. to impose an exclusion, and whether the
exclusion imposed by the I.G. is reasonable. In this case,
however, there remains only
one issue for me to decide. That is the issue of what, if any,
exclusion is reasonable.
A. The standard for review of exclusions imposed under
section 1156
In a case involving the issue of the I.G.'s authority to exclude,
the evidence relevant to that issue is that which was obtained and
reviewed by the peer review organization recommending the exclusion
to the I.G. That is so because the I.G.'s authority to exclude
under section 1156 derives from the peer review organization's
recommendation. Anthony G. Corkill, M.D., DAB CR289, at 32 - 33
(1993).
A broader test of relevancy applies to the issue of whether an
exclusion of a particular duration is reasonable. Exclusion is a
remedy and not a punishment. The purpose of an exclusion imposed
under section 1156 is to protect the integrity of federally funded
health care programs and the beneficiaries and recipients of those
programs from untrustworthy individuals. Corkill at 50. An
excluded practitioner has a right to a de novo hearing under
section 1156 of the Act. In deciding whether it is reasonable to
impose an exclusion of a given duration against an individual, I
must consider all evidence that relates to that individual's
trustworthiness to provide care. The evidence may include evidence
that was considered by the peer review organization in its
deliberations, but it may also include additional evidence that
relates to the provider's trustworthiness. Corkill at 32 - 33, 50.
Evidence which relates to an individual's trustworthiness may
consist of evidence showing that, in the past, the individual has
violated his or her obligation to provide care that meets
professionally recognized standards of health care. Such evidence
may predict a propensity by the individual to commit additional
misconduct in the future. Also relevant is evidence which relates
to the manner in which the individual confronted his or her errors
or misconduct. Evidence which shows that the individual attempted
to conceal errors or misconduct, or to deflect to others the blame
for his or her errors or misconduct, is proof that the individual
has attempted to avoid responsibility in the past, suggesting that
the individual may be untrustworthy in the future.
Attempts by an individual to identify and correct a tendency to
make errors or to avoid repeating misconduct is evidence that the
individual may be trusted to provide care. Where conflicting
evidence exists of an individual's conduct and motivation, the
conflicting evidence must be reconciled and balanced, in order to
determine a remedy that is reasonable. Where the preponderance of
the evidence establishes legitimate reasons to doubt the
individual's trustworthiness, that individual ought to be excluded
for a period of time long enough to assure that programs,
beneficiaries, and recipients are protected.
In this case, both the I.G. and Petitioner introduced evidence
which related to the remedy issue but which was not considered by
MSVRO in its review of Petitioner's current case. 6/ The I.G.
introduced evidence concerning Petitioner's treatment of seven
additional patients specifically referred to in the May 19, 1994
notice letter to Petitioner and in MSVRO's recommendation to the
I.G. 7/ The evidence concerning these seven additional patients
relates to surgery and medical care provided by Petitioner going
back to 1984. Petitioner introduced evidence from members of his
community concerning the care he had provided to them. He
introduced evidence concerning his recent medical practice and the
medical
training and continuing medical education he obtained subsequent to
MSVRO's review of cases he had handled.
B. The circumstances under which an administrative law judge
may increase the length of an exclusion
In this case, the I.G. determined originally to exclude Petitioner
for a period of three years. Shortly prior to the July 24 - 27,
1995 hearing, the I.G. advised Petitioner that she would ask me to
find that an exclusion of 20 years is reasonable. In her
posthearing brief, the I.G. argues that an exclusion in the range
of 10 - 15 years is reasonable. I.G. posthearing brief at 44.
The I.G.'s argument that I should impose an exclusion of more than
three years raises the question of whether I have the authority to
impose an exclusion which exceeds in length that which the I.G.
determined to impose originally. I conclude that I have the
authority, in the appropriate case, to impose an exclusion of a
duration that is greater than that which is imposed by the I.G. My
authority to hear and decide this case is set forth in regulations
contained in 42 C.F.R. Part 1005. Under these regulations, an
administrative law judge has the authority to decrease or increase
the duration of an exclusion imposed by the I.G. 42 C.F.R.
1005.20.
It is appropriate to increase the duration of an exclusion beyond
that which was imposed originally by the I.G. if the preponderance
of the evidence proves that the excluded individual is so
untrustworthy as to necessitate a lengthier exclusion. Sunil R.
Lahiri, M.D., DAB CR348 (1994). As I discuss below, I do not find
that an exclusion of more than three years' duration is necessary.
IV. Analysis of the evidence (Findings 2 - 12)
A. Introduction
The evidence of Petitioner's past medical and surgical practice
introduced by the I.G. proves that Petitioner made judgment and
treatment errors and committed misconduct of such a degree of
severity that, if this evidence were considered in isolation, would
justify the imposition of a very lengthy exclusion. More than
once, Petitioner misjudged the risks to his patient of performing
surgery or overestimated the benefits that his patient might obtain
from risky and dangerous surgery. Petitioner committed gross
errors in his surgical practice and in the medical care he gave to
patients. Petitioner's misjudgments and errors caused needless
suffering and even death to some patients. Petitioner attempted to
cover up or conceal some of his errors. He attempted to shift
responsibility for his judgment errors to other individuals. On
some key questions of accountability, Petitioner continues to deny
having made errors or committing misconduct. Petitioner's failure
to accept full responsibility for all of his past errors and
misconduct is strong evidence that he remains untrustworthy.
However, the evidence introduced by Petitioner shows that he is
attempting to avoid repeating in the future the errors and
misconduct he committed in the past. Petitioner is a dedicated and
caring physician. Petitioner now accepts responsibility for some
of his past misjudgments and practice errors. He has attempted to
rectify his propensity to make judgment errors.
The Findings I make concerning the setting in which Petitioner
practices and the errors and misconduct that Petitioner committed
(Findings 3 - 8) are in large measure supported by the testimony of
the experts who testified on behalf of the I.G. These experts are:
Worthington G. Schenk, III, M.D. (I.G. Ex. 25 at 149 - 216); Steven
A. Templeton, M.D. (I.G. Ex. 25 at 217 - 256); Quincy A. Ayscue,
M.D. (Tr. at 51 - 113); David R. Antonio, M.D. (Tr. at 114 - 192);
and Steven A. Schechner, M.D. (Tr. at 298 - 378). I find each of
these experts to be well-qualified in his respective field of
medicine. I find each of these experts to be unbiased and
persuasive.
In some respects, the testimony offered by the I.G.'s experts
regarding Petitioner's practice of surgery was contradicted by that
offered by an expert witness, Harry LeVeen, M.D. (I.G. Ex. 25 at
336 - 446), who testified on behalf of Petitioner. Dr. LeVeen is
a board-certified general surgeon with many years' experience. Id.
at 336 -338. I find Dr. LeVeen's opinions to be, in general, less
credible than those offered by the I.G.'s experts in surgery.
Furthermore, Dr. LeVeen's testimony did not address the expert
opinion offered by Dr. Ayscue, who is an anesthesiologist, or the
expert opinion offered by Dr. Antonio, who is an orthopedic
surgeon. In some respects, Dr. LeVeen's testimony was misleading
or evasive. Thus, I do not find Dr. LeVeen's opinions to be
persuasive.
It is not necessary for me to discuss all of the testimony that Dr.
LeVeen gave which I find to be unpersuasive, misleading, or
evasive. However, one example of the misleading testimony offered
by Dr. LeVeen consists of his attempt to cast doubt on the value of
an opinion offered by Dr. Schenk. Dr. Schenk opined that it was
not safe for Petitioner to have performed hernia surgeries in his
office. I.G. Ex. 25 at 210 - 212. Dr. LeVeen testified on direct
examination that there existed a "vast literature" that had not
been addressed by Dr. Schenk, in Dr. Schenk's testimony, concerning
the safety of performing certain surgeries in an outpatient
setting. I.G. Ex. 25 at 347. Dr. LeVeen offered this testimony to
support his opinion that it is safe for a physician to perform
hernia surgery in an office setting and, also, to suggest that Dr.
Schenk was either uninformed or not forthcoming in his testimony.
Id. In fact, and as became apparent later in the course of Dr.
LeVeen's testimony, the "vast literature" that Dr. LeVeen was
referring to addressed the safety of surgery in outpatient surgical
centers and not in physicians' offices. Id. at 403 - 404.
Petitioner has argued that some of the judgments and decisions he
made were vindicated by a study performed by an entity known as
Interqual. See P. Exs. 13, 24. I have considered the Interqual
study in my evaluation of the evidence, and I find it not to be
persuasive. There is no evidence as to the methodology by which
the study was performed. The study does not explain its findings
in meaningful detail.
Petitioner is himself qualified to testify about his professional
specialty. I do not find Petitioner's opinions about the surgeries
he performed to be persuasive. His testimony was self-serving,
and, on key issues, not credible.
However, I find Petitioner to be credible in his assertions that he
is dedicated to the welfare of his patients and is motivated to
provide good quality care to his patients. Furthermore, I find
credible the testimony of John B. Mansfield, M.D., concerning
Petitioner's current office practice and Petitioner's attempts to
conform his practice to professionally recognized standards of
health care. I.G. Ex. 25 at 447 - 472; Tr. at 689 - 755. 8/
Findings 9 and 10, which address Petitioner's motivation and his
efforts to conform his practice to professionally recognized
standards of health care, are to a large extent based on the
credible parts of Petitioner's testimony and on the testimony of
Dr. Mansfield.
B. Petitioner's background and training and his medical
practice (Finding 2)
Petitioner is a physician who is board-certified in general
surgery. P. Ex. 36. Additionally, Petitioner provides general
medical care to many of his patients. Petitioner received his
medical education in Taiwan. Tr. at 649. He obtained surgical and
medical training in the United States. Id. at 651 - 656. In 1973,
Petitioner established a medical and surgical practice in Luray,
Virginia. P. Ex. 36; Tr. at 657 - 659. He has practiced there
since then.
Petitioner performed numerous surgeries during the course of his
practice in Luray. P. Ex. 48; Tr. at 665 - 666. Petitioner
performed many of his surgeries at Page Memorial. Tr. at 658, 661.
On March 2, 1993, Petitioner resigned as a member of the Page
Memorial medical staff. I.G. Ex. 20 at 4 - 5. Petitioner no
longer has privileges at Page Memorial. Petitioner continues to
maintain an office practice in Luray. He performs outpatient
surgeries in his office, which is well equipped to perform minor
surgical procedures. Tr. at 696 -697, 711.
C. The setting in which Petitioner practices (Finding 3)
Luray is in Page County, Virginia. Tr. at 382. The county's
hospital is Page Memorial. This is a small rural hospital which is
licensed for 54 beds. I.G. Ex. 25 at 219. Its average in-patient
population is about 15 - 20. Id. The hospital has an emergency
room with five patient beds. Id. Page Memorial lacks facilities
to provide critical patient care which meets professionally
ecognized standards of health care. I.G. Ex. 25 at 175; Tr. at 340
- 343. The hospital does not have an intensive care unit. I.G.
Ex. 25 at 219. Anesthesiology services are provided by a nurse
anesthetist, and not by an M.D. anesthesiologist. Id. at 175, 191;
Tr. at 56, 105, 340. The hospital does not have a blood bank. Tr.
at 340. Although Page Memorial is an adequate facility at which to
perform relatively routine surgeries such as biopsies and hernia
repairs, it is not equipped sufficiently to serve as a facility at
which to perform surgeries that are extremely complicated. Tr. at
340 - 343. It is especially ill-equipped to serve as a facility at
which to perform surgeries involving patients who might suffer
potentially-life threatening complications, either from the
surgeries, or from underlying medical conditions, or from both.
Id.
For patients in the Luray area who might require complex surgery,
there exist alternatives to having the surgeries performed at Page
Memorial. The University of Virginia Hospital at Charlottesville,
Virginia is about a one and one-half hour drive from Luray. I.G.
Ex. 25 at 190. Luray is located only about 50 miles from the
Washington, D.C. Beltway. Id. In emergency cases, patients may be
transported to Charlottesville or to another facility by
helicopter. In finding that there exist alternatives to having
surgery performed at Page Memorial, I am not suggesting such
alternatives would exist in every case. Conceivably, there might
exist a case where the emergency is so dire, or the time within
which to act is so short, that there exists no alternative to
performing surgery at Page Memorial. However, I do not find that
to have been the case with respect to any of the surgeries that
Petitioner performed which I discuss in this decision.
D. Petitioner's errors in judgment in deciding to perform
surgery at Page Memorial (Finding 4)
On two occasions, Petitioner erred by electing to perform surgery
at Page Memorial when, given the limitations of the facility, the
surgeries should have been performed elsewhere. Petitioner may
have thought that he was acting in his patients' best interest by
electing to perform surgeries at Page Memorial. But, Petitioner
failed to measure the benefits that his patients might have
obtained from surgery against the risks which were inherent in
performing such surgery at Page Memorial. The consequence in each
case was that Petitioner placed his patient in jeopardy which far
outweighed any benefits that might have been obtained by performing
the surgery at Page Memorial.
1. Patient A
The first of the two cases involved surgery which Petitioner
performed on Patient A, on December 24, 1985, at Page Memorial.
I.G. Ex. 11 at 14. The type of surgery which Petitioner performed
on Patient A, repair of an aortic aneurysm, was described by
Petitioner's own witness, Dr. Mansfield, as among the most complex
surgeries that a general surgeon might be called upon to perform.
Tr. at 748. The preponderance of the evidence is that the surgery
Petitioner performed was elective, not emergency, surgery. Ample
time existed to transport Patient A to a facility that was better
equipped for aneurysm surgery than was Page Memorial. Page
Memorial was inadequately equipped as a facility at which to
perform aneurysm surgery, and Petitioner unnecessarily placed
Patient A at risk of complication or death by performing the
surgery there. 9/
Patient A first appeared at the Page Memorial emergency room. I.G.
Ex. 12 at 6. Petitioner was notified about the patient by
telephone. Id. The patient was transported by automobile to
Petitioner's office, where Petitioner performed a sonogram to
confirm the presence of an aneurysm. Id. at 7 - 9. Petitioner had
Patient A transported back to Page Memorial by automobile. I.G.
Ex. 25 at 189. Patient A was admitted and placed in a room. Id.
Petitioner performed a physical examination of Patient A and
prepared a patient history of the patient. Id. Then, Petitioner
performed aneurysm repair surgery on Patient A.
The surgery that Petitioner performed on Patient A was elective,
not emergency, surgery. I.G. Ex. 25 at 188 - 189. Although
Petitioner asserts that Patient A had possibly experienced a
ruptured aneurysm, the clinical evidence does not establish that
Patient A's aneurysm had ruptured. I.G. Ex. 12 at 10; I.G. Ex. 24
at 2; see Tr. at 883 - 884. Petitioner admits that he did not
determine, even during surgery, that, in fact, Patient A had
experienced a ruptured aneurysm. I.G. Ex. 12 at 35. Patient A
could have been transferred to any of five hospitals that were
better equipped to perform aneurysm surgery than was Page Memorial
during the time it took to transport him to Petitioner's office,
examine him there, transport him back to Page Memorial, process his
admission, examine him again at the hospital, and prepare him for
surgery. I.G. Ex. 25 at 189.
Page Memorial was manifestly ill-equipped as a facility at which to
perform aneurysm surgery. It lacked adequate anesthesia services.
I.G. Ex. 25 at 191. It did not have adequate blood bank
facilities. Id. The skills and abilities of its personnel were
limited. Id.
In discussing the case of Patient A with MSVRO, Petitioner asserted
that Patient A had refused to be transferred to a facility other
than Page Memorial. Petitioner has introduced a statement by
Patient A's son in which the son asserts that Patient A had refused
to be treated at any hospital other than Page Memorial. P. Ex. 26.
I am not persuaded by this statement that Petitioner was relieved
of his obligation to transfer Patient A to a facility which was
better equipped for aneurysm surgery than was Page Memorial. I
cannot determine from the statement whether Petitioner informed
Patient A of the risks of surgery at Page Memorial prior to Patient
A expressing a desire not to be transferred. In fact, it is
unclear from the statement whether Petitioner ever discussed with
Patient A the risks of having surgery at Page Memorial, as opposed
to having the surgery performed elsewhere.
Petitioner argues that a report prepared by H.M. Lee, M.D.,
Chairman of the Division of Vascular Surgery, Medical College of
Virginia, supports Petitioner's decision to perform aneurysm repair
surgery on Patient A. P. Ex. 25. I do not find this report to be
persuasive. It assumes that Patient A experienced a ruptured
aneurysm, when, in fact, the evidence does not show that Patient A
experienced a ruptured aneurysm. See P. Ex. 25 at 4.
Petitioner argues that it was appropriate for him to have performed
the surgery because, prior to performing it, he received a second
opinion which supported his decision to perform surgery. It is
true that, prior to performing the surgery, Petitioner received a
second opinion by telephone that surgery would be appropriate,
given the circumstances related by Petitioner in the telephone
conversation. However, although there is no evidence that
Petitioner attempted to mislead the physician whom he consulted, I
am not persuaded that Petitioner accurately described the condition
of Patient A in his telephone conversation with that physician.
Petitioner may have represented mistakenly that Patient A had
suffered a ruptured aneurysm when, in fact, the patient was
experiencing a leaking aneurysm.
2. Patient RB
On December 19, 1990, Petitioner performed surgery on Patient RB at
Page Memorial. I.G. Ex. 2 at 125 - 127; Tr. at 309 - 313. The
operation consisted of a five-hour procedure. Tr. at 309. The
surgery that Petitioner performed on Patient RB consisted of
removal of an esophageal stricture (a narrowing of the patient's
esophagus) at a point just above the patient's stomach. Tr. at
305. The operation involved removing the lower portion of Patient
RB's esophagus, including the stricture, and the upper part of the
patient's stomach, and then joining together the remnants of the
two organs with staples. Tr. at 307 - 314.
The preponderance of the evidence is that it was inappropriate for
Petitioner to have performed the surgery on Patient RB. Tr. at 334
- 335. The operation which Petitioner performed on Patient RB is
among the most complex and difficult that a community surgeon might
perform. Tr. at 319. The surgery was entirely elective. Although
Patient RB was experiencing discomfort and difficulty eating as a
consequence of the stricture, she was not in any immediate danger.
Tr. at 334. There were ways to provide nutrition to Patient RB and
to counteract the problems caused to her by the stricture that were
far less drastic and risky than was the surgery performed on
Patient RB by Petitioner. Id.
Furthermore, the facilities at Page Memorial were inadequate to
meet the demands created by the surgery that Petitioner performed
on Patient RB. Tr. at 340 - 344. If the surgery was to have been
performed at all, it should have been performed at a facility that
was equipped to deal with the contingencies that might arise from
the surgery.
Petitioner asserts that Patient RB refused to consider alternative
treatment or an alternative location for her surgery. I do not
find that Patient RB's expressed desires justified Petitioner's
undertaking such drastic and risky elective surgery on Patient RB
at Page Memorial. Petitioner should have refused to perform the
surgery, in light of its elective nature, and the obvious and
unnecessary risks that the surgery entailed. Tr. at 336.
Petitioner avers that he received special privileges from Page
Memorial's chief of staff to perform the surgery on Patient RB.
However, the fact that Petitioner may have received such privileges
does not justify Petitioner's decision to perform the surgery on
Patient RB. The surgery was inappropriate despite the concurrence
of the
chief of staff of the hospital with Petitioner's decision to
perform the surgery.
E. Errors Petitioner committed in his surgical practice
(Finding 5)
Petitioner committed egregious errors in his surgical practice, to
the detriment of his patients. These errors included failures: to
assess accurately the patient's condition and to perform
appropriate surgery on the patient; to identify and respond to
complications that preexisted surgery or arose during surgery; and
to utilize correct surgical and aftercare techniques.
1. Patient RB
Petitioner committed two errors which adversely affected Patient RB
and which may have resulted in her decline and eventual death.
First, Petitioner failed to suture the staple line which he had
used to close an opening he had made in the wall of Patient RB's
stomach in order to facilitate surgery. I.G. Ex. 10 at 95; Tr. at
318. Failure to suture the staple line was an error, because, in
this type of surgery, there is a risk that the staple line might
rupture, and suturing provides reinforcement. Tr. at 318 - 319,
328.
Second, several days after the surgery, Petitioner placed Patient
RB on a liquid diet, and then on a diet which included small meals,
notwithstanding the fact that tests showed that fluids were not
passing through the lower half of Patient RB's stomach. I.G. Ex.
2 at 34 - 37, 198; Tr. at 321 - 322. The decision to place Patient
RB on a liquid diet followed by small meals was a major error in
judgment by Petitioner. Tr. at 347 - 348. Shortly thereafter, the
staple line which Petitioner had used to close the opening in RB's
stomach ruptured, as a consequence of the build-up of food in
Patient RB's stomach. Tr. at 347. The contents of the patient's
stomach spilled into her chest cavity. Petitioner attempted to
correct the consequences of his errors by reoperating on Patient RB
in order to close the burst staple line and to reinforce it.
However, Patient RB developed complications from which she never
recovered. I.G. Ex. 2 at 16 - 17; Tr. at 331 - 333.
Petitioner argues that his failure to reinforce the staple line was
due to the poor condition of Patient RB's tissue. I find this
explanation to be unpersuasive. Petitioner did reinforce the
staple line after the second surgery. If, in fact sufficient
tissue was present at the second surgery to allow reinforcement,
then that tissue would have been present also at the first surgery.
Tr. at 329 - 330.
2. Patient IW
Patient IW was an elderly woman suffering from circulatory
impairments and diabetes, who was first seen by Petitioner at Page
Memorial for treatment of a gangrenous left big toe. I.G. Ex. 3 at
9 - 10; I.G. Ex. 15 at 13; Tr. at 60. On December 8, 1989,
Petitioner amputated the toe, using a local anesthetic agent. I.G.
Ex. 3 at 9 - 10; I.G. Ex. 15 at 12, 14. However, in January 1990,
Patient IW was readmitted, suffering from additional infection in
her left foot. On January 17, 1990, Petitioner performed a
transmetatarsal amputation of Patient IW's left foot. I.G. Ex. 3
at 65 - 66; I.G. Ex. 15 at 15 - 18; Tr. at 77, 123 - 124. Shortly
prior to this second operation, while anesthetized in the operating
room, Patient IW suffered an episode of cardiac arrest. Tr. at
123. The patient was resuscitated, and Petitioner initiated the
surgery. Id. During the surgery, Patient IW suffered a second
cardiac arrest. Tr. at 123 - 124. Patient IW died shortly after
completion of the surgery.
Petitioner committed errors in his evaluation of Patient IW and in
his performance of surgery on the patient which may have led to the
patient's death. Petitioner failed to evaluate properly Patient
IW's peripheral circulation prior to amputating her left big toe.
Tr. at 119. It was obligatory for Petitioner to document the
degree of impairment of Patient IW's circulation prior to embarking
on surgery because of the patient's history of diabetes and severe
circulatory disease. Id. Petitioner ran the risk of performing
inadequate surgery if, in fact, the patient's circulation was more
greatly impaired that Petitioner assumed it to be. There was
equipment at Page Memorial that Petitioner could have used, but did
not, to map Patient IW's peripheral circulation. I.G. Ex. 25 at
276.
Patient IW's second admission at Page Memorial was a consequence of
Petitioner's failure to evaluate adequately the patient's
peripheral circulation at the time of the patient's first
hospitalization. Tr. at 120, 125. Petitioner failed again to
evaluate Patient IW's peripheral circulation at the time of her
second hospitalization prior to performing additional surgery on
Patient IW. Tr. at 121. Petitioner could not make an informed
judgment as to the nature of the treatment or surgery to administer
to Patient IW because Petitioner failed to study adequately the
patient's circulation on either of her admissions to Page Memorial.
Petitioner argues that he did not do extensive circulation studies
on Patient IW because they were unnecessary and not cost-efficient.
This assertion is belied by the evidence I have discussed. I
conclude that circulation studies were necessary in this patient,
at the very least, to determine the degree of surgery that was
necessary to address her infection.
Petitioner made a serious error in judgment in deciding to proceed
with the second surgery on patient IW after she experienced an
episode of cardiac arrest prior to commencement of the surgery.
Although Patient IW needed surgery to address the continuing
infection in her foot, Petitioner should not have proceeded with
surgery once Patient IW experienced her first episode of cardiac
arrest. Tr. at 129.
Petitioner's judgment failures in the case of Patient IW's second
surgery were compounded by his failure to properly manage
administration of anesthesia to the patient. A nurse anesthetist
administered anesthesia to Patient IW at her second surgery.
Petitioner, as the surgeon in charge, was responsible, not only for
his surgery, but also for the administration and monitoring of
anesthesia. Tr. at 130 - 131. However, it is apparent from a
review of the record, including Petitioner's testimony, that he
failed to monitor closely the performance of the nurse anesthetist.
Tr. at 780 - 782.
The preponderance of the evidence establishes further that, once
Patient IW experienced the first episode of cardiac arrest, either
Petitioner or the nurse anesthetist administered medications to the
patient that were inappropriate, and which may have led to her
second episode of cardiac arrest. The administration of Atropine
and Epinephrine to Patient IW in response to her first episode of
cardiac arrest raised her heart rate to a dangerously high level of
140 - 150 beats per minute. I.G. Ex. 3 at 119, 124; Tr. at 84.
Petitioner had ordered that this situation be treated by the
administration of inappropriate medications. Tr. at 85. Patient
IW's heart rate then decreased to a dangerously low level, and she
experienced a second episode of cardiac arrest. Tr. at 86.
Petitioner argues that Interqual reviewed his treatment of Patient
IW and found it to be without fault. However, for the reasons I
discuss above, I find the Interqual study not to be persuasive.
See P. Exs. 13, 24.
3. Patient MT
Patient MT was an elderly woman who suffered a fracture of her left
hip. On August 25, 1989, Petitioner operated on Patient MT to
repair the fracture. Petitioner inserted an Austin-Moore
prosthesis in the patient's femur, in an attempt to replace the
fractured hip. I.G. Ex. 8 at 129 - 130. The patient's hip was not
x-rayed after the surgery, until September 13, 1989. I.G. Ex. 8 at
209. Nurses treating the patient observed that Patient MT's hip
had become swollen and deformed days after the surgery. I.G. Ex.
8 at 129 - 130. The x-ray taken on September 13, 1989 showed that
the prosthesis had broken through the shaft of MT's femur and was
at a right angle to the femur with its tip close to the surface of
the patient's skin. I.G. Ex. 8 at 209; Tr. at 149 - 151. No
further attempts were made to repair MT's fractured hip and she was
discharged after consultation with her family. I.G. Ex. 8 at 130.
Patient MT was discharged from Page Memorial in worse condition
than she was in when she entered the hospital. Tr. at 152.
Patient MT suffered from advanced osteoporosis at the time of the
surgery and her bones were in extremely fragile condition. I.G.
Ex. 8 at 203; Tr. at 145, 147, 854. Petitioner recognized this.
During the surgery, he attempted to reinforce the prosthesis by
placing three wires and three bands around Patient MT's femur. Tr.
at 150. The preponderance of the evidence is that Petitioner erred
in attempting to reinforce Patient MT's femur in this manner. The
bands did not provide additional support for the prosthesis and may
have contributed to the subsequent breakout of the prosthesis. Tr.
at 151. There were other techniques available to Petitioner which
would have been more likely to reinforce the prosthesis, including
the use of a prosthesis with a longer shaft than that used by the
Petitioner, and the use of bone cement. Id.
Petitioner cannot justify his failure to use bone cement or a more
appropriate prosthesis by arguing that these aids may not have been
available at Page Memorial. If that is so, then Petitioner should
not have attempted to perform the surgery. Petitioner should have
ordered Patient MT transferred to a facility where appropriate aids
were available.
The I.G. alleges that Petitioner fractured Patient MT's femur
during surgery and his installation of reinforcing bands may have
been an effort to compensate for this. Tr. at 150, 152.
Petitioner denies fracturing Patient MT's femur. It appears from
the patient's hospital records that Petitioner did fracture the
patient's femur. I.G. Ex. 8 at 129. However, it is not necessary
for me to resolve this issue in order to decide that Petitioner
erred in his surgical technique. Whether the fracture occurred
during surgery or afterward, the use of reinforcing wires and bands
to reinforce the patient's femur, in lieu of other, more
appropriate techniques, was wrong. Tr. at 150 - 152, 157 - 161.
The preponderance of the evidence establishes also that Petitioner
erred in his management of Patient MT's aftercare. Petitioner
should have ordered frequent postsurgical x-rays of the patient's
hip in light of the fragile condition of Patient MT's bones.
Petitioner's failure to assure that the patient was x-rayed, for
approximately 19 days after the surgery, was an obvious error in
the care he provided to the patient. Tr. at 148 - 149.
4. Additional errors made by Petitioner during
surgery
Petitioner made substantial errors in his performance of surgery in
cases in addition to the three cases that I have discussed in
detail. These errors contribute to an overall picture of a surgeon
who was prone to making grave misjudgments in assessing the
problems he treated by performing surgery, in using inappropriate
surgical techniques, and in providing inadequate aftercare to his
patients. The additional instances of errors include the
following.
a. Patient JJ
On August 18, 1991, Petitioner operated on Patient JJ. I.G. Ex. 4
at 5, 33. During this surgery, Petitioner installed an
Austin-Moore prosthesis to repair a fracture in the patient's left
hip. I.G. Ex. 4 at 5, 33, 65. However, he first initiated surgery
on the patient's right hip, assuming erroneously that it was the
right hip that had sustained a fracture. Tr. at 934 - 935.
Petitioner failed to review x-rays prior to the surgery that would
have shown him that the fracture was to Patient JJ's left hip. Id.
Petitioner discovered his
error only after he had made an incision on the patient's right
hip. Id.
b. Patient H
In October 1984, Petitioner operated on Patient H to remove her
entire bowel. I.G. Ex. 11 at 8; I.G. Ex. 25 at 73 - 74.
Petitioner performed this operation because he suspected that
Patient H had suffered a recurrence of colon cancer. I.G. Ex. 11
at 8 - 9; I.G. Ex. 25 at 73 - 74. In fact, subsequent pathological
studies were negative for recurrence of cancer. I.G. Ex. 11 at 8
- 9; I.G. Ex. 25 at 74. Petitioner erred in performing major
surgery to remove suspected recurrent cancer without first
verifying that, in fact, cancer had recurred. Tr. at 208, 217.
c. Patient C
In October 1984, Petitioner performed a prostatectomy (removal of
the prostate gland) on Patient C. I.G. Ex. 11 at 10 - 11; Tr. at
223. His purpose in doing so was to enable the patient to pass
urine. I.G. Ex. 11 at 10. Petitioner erred in performing the
prostatectomy, because there were far less drastic procedures
available which would have accomplished the intended result of
enabling the patient to pass urine. Tr. at 221 - 223, 226.
5. Petitioner's misjudgments in deciding whether to perform
surgery
Several of the cases which I have discussed so far share a common
feature. In more than one instance, Petitioner performed surgery
without properly assessing the need for the surgery and without
weighing the benefits that his patient might obtain from the
surgery as opposed to the risks that the patient might encounter.
The I.G. proved that, in one additional case involving Patient JB,
Petitioner decided to perform elective surgery under circumstances
where such surgery was wholly inappropriate. Fortunately for the
patient, that decision was rescinded.
Patient JB was first admitted to Page Memorial on May 14, 1991,
suffering from shortness of breath. I.G. Ex. 1 at 8, 15 - 16.
Patient JB had a history of several serious conditions, including
diabetes, congestive heart failure, and kidney failure. Id. As of
the May 14, 1991 admission, Patient JB was experiencing kidney
failure. I.G. Ex. 1 at 8; Tr. at 456.
The patient's kidney failure was a hazardous condition. I.G. Ex.
25 at 200 - 202. During the course of the May 14, 1991
hospitalization, Petitioner did not treat Patient JB for his kidney
failure. Tr. at 272, 466. However, it was determined during the
course of the hospitalization that the patient had gallstones. Tr.
at 458 - 459. Petitioner scheduled the patient to be readmitted to
Page Memorial for elective gall bladder surgery at a date
subsequent to the patient's discharge from the May 14, 1991
hospitalization. I.G. Ex. 1 at 9, 43, 66; Tr. at 430.
Patient JB returned to Page Memorial on May 28, 1991 for gall
bladder surgery. I.G. Ex. 1 at 67, 73. As of this second
admission, the patient's kidney failure had worsened. I.G. Ex. 1
at 67. Patient JB did not feel up to having gall bladder surgery
and was discharged. Id. Petitioner did not treat the patient's
kidney failure during this second hospitalization. See id.
Petitioner demonstrated extraordinarily poor judgment in deciding
to schedule Patient JB for elective gall bladder surgery, and in
ignoring the patient's kidney failure. I.G. Ex. 25 at 199 - 200,
202 - 204. The patient's gallstones were not a life-threatening
condition. Id. The patient was suffering from other conditions
that were hazardous, especially kidney failure. Id. Patient JB
was an extremely poor risk for elective surgery. Surgery might
have exacerbated the patient's kidney failure. Id. Page Memorial
lacked the facilities to treat critical kidney failure. Tr. at 464
- 465. There is a strong possibility that Patient JB might not
have survived gall bladder surgery, in light of his poor health and
the absence of critical care facilities at Page Memorial. Tr. at
471.
Petitioner argues that he did not admit Patient JB to Page Memorial
for elective gall bladder surgery. He asserts that he had decided
not to perform surgery when the patient presented himself for the
second admission, but that the documentation of the second
admission incorrectly shows the patient being admitted for such
surgery. I.G. Ex. 10 at 52 - 56, 61; Tr. at 678 - 679. I do not
find this explanation to be persuasive. The documentation of the
second admission plainly shows on more than one page that the
purpose of the admission was for surgery. I.G. Ex. 1 at 67, 73.
Moreover, Petitioner's explanation begs the question. Given the
patient's state of health, Petitioner should not even have
considered performing elective surgery on the patient, either as of
the first hospitalization, or thereafter. Petitioner should have
addressed the patient's life-threatening conditions, especially his
kidney failure.
F. Errors Petitioner committed in his medical practice
(Finding 6)
Petitioner committed serious errors in his practice of medicine in
cases not involving surgery. These errors included incorrect or
incomplete diagnoses and administration of improper treatments and
medications.
1. Patient LO
Petitioner's mistreatment of Patient LO began at the inception of
his treatment of the patient at Page Memorial. Petitioner attended
to a minor problem without identifying or investigating a
potentially life-threatening neurological problem. Tr. at 442 -
444. That mistreatment continued throughout the patient's
hospitalization. Petitioner failed to assess and treat properly
the patient's neurological problem as it progressed. Petitioner
did not order appropriate tests to establish the cause of the
patient's problem until after the patient's condition had
deteriorated significantly. See Tr. at 929. He treated the
patient's condition without knowing its cause, and without knowing
what medications were appropriate to treat the condition. See id.
The medications that Petitioner ordered be administered to the
patient were contraindicated. The likely result of Petitioner
ordering that contraindicated medications be administered to
Patient LO was that Petitioner made the patient's condition worse.
Tr. at 447 - 448.
Patient LO was seen at Page Memorial's emergency room on June 16,
1991. I.G. Ex. 6 at 11. She was complaining of shortness of
breath, numbness in her left arm, and rectal bleeding from
hemorrhoids. Id. The patient was experiencing atrial
fibrillation (an abnormal quivering of the top chambers of the
patient's heart). Tr. at 429. Patient LO's left arm numbness was
an indication that the patient might have been experiencing a
transient ischemic attack (TIA), a deficiency in the supply of
blood to the patient's brain. Tr. at 425 - 426. A TIA can
progress into a full-blown stroke, if left untreated, which can
cause death to brain tissue. Id.
Petitioner treated the patient's hemorrhoids, and he hospitalized
her in order to deal with her atrial fibrillation. However,
Petitioner did not perform a neurological examination to evaluate
Patient LO's left arm numbness, nor did he order tests to evaluate
the numbness. Tr. at 426 - 427.
On June 21, 1991, while hospitalized, Patient LO showed additional
signs of neurological problems. The patient became unresponsive
for three to four minutes, and Petitioner recorded in his treatment
notes that the patient was showing signs of an additional TIA.
I.G. Ex. 6 at 33; Tr. at 434 - 435. Petitioner ordered that the
patient be administered anticoagulant medications. I.G. Ex. 6 at
9 - 10, 34; Tr. at 436. The following day, the patient experienced
additional neurological signs, including facial palsy and left arm
weakness. Tr. at 438. These were signs that the patient was
experiencing a stroke. Id. Petitioner addressed these additional
neurological signs by ordering that the patient be administered
intravenous anticoagulants. Tr. at 438 - 439. The patient's signs
of a stroke continued unabated. Tr. at 439. It was not until June
24, 1991, that Petitioner ordered that a CAT scan (also referred to
in the transcript of the hearing as a "CT scan") be performed on
Patient LO. Tr. at 439 - 440; see Tr. at 448. The CAT scan
revealed that the patient had suffered a parietal lobe hematoma on
the right side of her brain. Tr. at 441.
Patient LO's neurological signs of facial palsy and left arm
weakness were consistent with either a thrombotic stroke (a stroke
caused by a blockage of the supply of blood to a portion of a
patient's brain) or hemorrhagic stroke (a stroke caused by bleeding
within the brain). Tr. at 447. The CAT scan which Petitioner
ordered performed on June 24, 1991 showed that Patient LO had
suffered a hemorrhagic stroke. Tr. at 447 - 448.
Because anticoagulants exacerbate bleeding, they must not be
administered to a patient who is showing signs of having suffered
a stroke, until a CAT scan establishes the cause of the stroke.
Tr. at 448. In this case, Petitioner ordered a CAT scan of Patient
LO several days after his initiation of anticoagulant therapy. Id.
The anticoagulants that Petitioner ordered be administered to
Patient LO were contraindicated by her condition. Administration
of these medications to the patient probably made the patient's
condition worse, because they could have increased the bleeding in
the patient's brain. Tr. at 447 - 448. Petitioner would have known
not to
administer anticoagulants to Patient LO had he ordered a CAT scan
of the patient early in her treatment.
2. Patient AM
Petitioner failed to address Patient AM's critical blood sugar and
fluid imbalances with available modern techniques, which led to a
rapid deterioration of the patient's condition. Although Patient
AM was gravely ill on her admission to Page Memorial, she was
conscious at that time. She left the hospital in an irreversible
coma. See Tr. at 819.
Patient AM was hospitalized at Page Memorial under Petitioner's
care from November 20 - 21, 1992. I.G. Ex. 5 at 9 - 10. She was
then transferred by helicopter to the University of Virginia
Hospital at Charlottesville, Virginia. Id.; Tr. at 819. The
patient's condition at the time of her admission to Page Memorial
was life threatening. Tr. at 475. When Petitioner admitted the
patient to Page Memorial, she was suffering from pneumonia. Tr. at
473. She was a chronically sick, frail, individual whose medical
problems, in addition to pneumonia, included diabetes, septicemia
(an infection in her bloodstream), and fluid accumulation as a
consequence of cirrhosis of the liver. I.G. Ex. 5 at 9 - 10; Tr.
at 472 - 474, 482 - 483.
Tests taken at the time of Patient AM's admission to Page Memorial
established that the patient was suffering from dangerously low
blood sugar. Tr. at 477 - 478. Petitioner treated this problem
initially by ordering that the patient be administered glucose
intravenously. Tr. at 478 - 479. This initial treatment had the
beneficial consequence of raising Patient AM's blood sugar to an
acceptable level. Id. Inexplicably, Petitioner then ordered that
the treatment be discontinued, although he directed that access to
the patient's vein be maintained. Id. In lieu of administering
intravenous glucose, Patient AM's daughters administered small
quantities of sugar water orally to patient AM. Tr. at 489. This
treatment was totally ineffective. Id. The patient's blood sugar
dropped dramatically. Tr. at 479 - 480. Eventually, Patient AM's
blood sugar became so low that she went into a coma. Id.
Patient AM was suffering from a severe fluid imbalance. Tr. at
481. As a consequence of fluid imbalance and infection, she was in
septic shock. Tr. at 482 - 483. It is important to monitor the
intake and elimination of fluids to an individual who is in the
condition that Patient AM was in. Id. Petitioner could have
monitored Patient AM's elimination of fluids easily with a Foley
catheter, a device which is universally available to physicians.
Tr. at 484. He could have directed the nurses who were monitoring
the patient's condition to record the intake and output of fluids
by the patient. Tr. at 485. There were additional monitoring
techniques available, as well. Tr. at 485 - 486. Petitioner used
none of these techniques. Rather, he asked the patient's daughters
to keep count of the number of diapers used by the patient. Tr. at
485. This was an inadequate substitute for the techniques of fluid
monitoring that were at Petitioner's disposal, and which were
essential, given the state of Patient AM. 10/
Petitioner asserts that Patient AM refused to have her fluid output
monitored by Foley catheter. Petitioner reply brief at 8.
However, there is nothing in the record to show that Petitioner
explained to the patient the risks of not inserting a catheter.
Petitioner asserts that Patient AM had declared that she did not
want to be resuscitated. Petitioner reply brief at 8. I do not
find anything in the record which supports this assertion.
Furthermore, it is contradicted squarely by Petitioner's decision
to transfer the patient after she became comatose. Statements in
evidence from Patient AM's daughters do not support Petitioner's
contention that the patient did not want to be resuscitated. P.
Exs. 29, 30. The daughters do not aver that Patient AM had
declared that she did not want to be resuscitated. Id. Indeed,
there is a suggestion to the contrary in one of the declarations.
See P. Ex. 30.
Finally, Petitioner contends that Patient AM did not want to be
transferred to another facility. Petitioner reply brief at 8.
However, Petitioner's decision to transfer or not to transfer the
patient is not at issue here. The errors which Petitioner made in
his treatment of Patient
AM were as avoidable at Page Memorial as they would have been
elsewhere.
3. Additional errors made by Petitioner in his
medical practice
In other cases, Petitioner made errors of judgment and omission
which are similar to those which he made in the cases of Patients
LO and AM. These include the following.
a. Patient FB
On January 10, 1993, Patient FB was admitted to Page Memorial under
Petitioner's care, suffering from acute respiratory distress and
dehydration. I.G. Ex. 8 at 2, 7 - 8. Patient FB had a seriously
weakened heart. Tr. at 501 - 502. Petitioner should have avoided
administering treatments to the patient that would increase the
work that the patient's heart would have to do. However,
Petitioner erroneously administered fluids to the patient, and also
erroneously administered medication that slowed the patient's
heartbeat. Tr. at 509 - 512. As a consequence, Patient FB's
condition deteriorated. Petitioner then exacerbated the patient's
problems by administering a sedative, Valium, to the patient. Tr.
at 510. Fortunately for the patient, a consultative physician
identified and properly treated the patient's problems, essentially
reversing the treatment that Petitioner had provided to the
patient. Tr. at 505 - 507.
b. Patient BB
On February 10, 1993, Patient BB was admitted to Page Memorial
under Petitioner's care, suffering from shortness of breath.
Petitioner treated this condition, and, by February 15, 1993, the
patient was no longer short of breath. I.G. Ex. 13 at 71. On
February 16, 1993, Petitioner ordered that a thoracentesis, or
chest tap, be administered to the patient. Tr. at 516 - 517. A
thoracentesis consists of inserting a needle into a patient's chest
cavity, in order to extract fluid. Tr. at 517. A thoracentesis
may be appropriate for therapeutic or diagnostic reasons. Tr. at
517. However, it should not be performed unless there is a
legitimate need for it. The procedure can be risky. One possible
adverse consequence of a thoracentesis is that the patient's lung
may be punctured, which can result in the lung collapsing. See Tr.
at 518. In this case, Petitioner erroneously performed the
procedure without first x-raying Patient BB's chest to determine
whether it was needed. Patient BB experienced a collapsed lung and
died in pain a few days later. I.G. Ex. 7 at 16; I.G. Ex. 13 at
71; I.G. Ex. 25 at 259 - 260; Tr. at 518.
Petitioner argues that the I.G. acknowledges that, prior to
performing the thoracentesis, a chest x-ray had been made of
Patient BB. Petitioner reply brief at 9; see I.G. proposed finding
274. From this, Petitioner suggests that there existed clinical
evidence to support his performing the thoracentesis on Patient BB.
In fact, the x-ray discussed by the I.G. had been made on February
10, 1993, six days prior to the date when Petitioner performed the
thoracentesis. I.G. Ex. 7 at 77. The I.G.'s point, which I find
to be supported by the evidence, is that Petitioner failed to do
follow up diagnostic studies, including an x-ray, before performing
the thoracentesis on Patient BB.
G. Petitioner's altering of records (Findings 7 and 11)
Deliberate altering of a medical record by a physician so as to
conceal the truth is misconduct of a high order of magnitude. It
puts other physicians at risk, because a physician who relies on an
altered record to make a medical judgment about how to treat a
patient risks harming the patient. I.G. Ex. 25 at 263. It puts
the patient at risk, because that patient may be harmed by
incorrect treatments ordered on the basis of the altered record.
Id.
Petitioner altered Patient BB's hospital record. Petitioner
intended to conceal the fact that he had performed a thoracentesis
that contributed to the death of Patient BB, without clinical
evidence that would justify performing the procedure. Petitioner
offers a dishonest explanation for altering the record.
Petitioner admits altering the record. I.G. Ex. 13 at 70 - 72; Tr.
at 966 - 968. Petitioner knew that the alteration would deceive a
reviewer. Tr. at 968. In the progress note that Petitioner wrote
on February 15, 1993, Petitioner made the following statement: "No
S.O.B. - Has good appetite." I.G. Ex. 13 at 71. At some point
after Petitioner performed the thoracentesis on Patient BB,
Petitioner altered this record to read: "More S.O.B. today - Has
good appetite." I.G. Ex. 13 at 72. Petitioner made the alteration
by changing the letter "N" in "No" to "M," by
adding the letters
"re" to the end of the word, and by inserting the word "today"
immediately after the acronym "S.O.B." A reviewer would not know
from reading the progress note that Petitioner had altered it.
The plausible explanation for this alteration is that Petitioner
was attempting to mislead reviewers into believing that his
decision to perform the thoracentesis on Patient BB was medically
justified. After Patient BB's lung collapsed, the patient suffered
greatly and died in pain. I.G. Ex. 25 at 259. The episode of
Patient BB's treatment and death became an issue for investigation
by the Page Memorial medical staff. Id.
Petitioner now offers a fanciful and self-serving explanation for
altering the record. According to Petitioner, he observed Patient
BB twice on February 15, 1993. He claims that, when he first saw
the patient, the patient was not short of breath. However,
according to Petitioner, at the second encounter Patient BB had
become more short of breath. Petitioner asserts that he altered
the record in order to depict his observation that Patient BB had
become more short of breath at the second observation on February
15, 1993. Tr. at 840 - 842.
If, in fact, Petitioner had wanted to amend his progress note to
reflect a change in the patient's condition, he simply could have
added a statement to that effect. There are nearly two empty lines
in the record between the progress note and Petitioner's signature
in which Petitioner could have amended the progress note to show a
deterioration in the patient's condition. I.G. Ex. 13 at 71.
Moreover, Petitioner appears not to have offered this explanation
at a time when, assuming it to be legitimate, he should have
offered it. Petitioner's altering of Patient BB's record is the
event which led to Petitioner's resignation from the staff of Page
Memorial in March 1993. I.G. Ex. 20. The minutes of the staff
meeting at which Petitioner resigned do not suggest that Petitioner
offered the explanation for the alteration which he now offers.
Id. I am certain that if, in fact, Petitioner altered Patient BB's
record in an innocent attempt to document a change in the patient's
condition, as he now asserts to be the case, he would have so
explained the alteration to Page Memorial medical staff when his
privileges were at stake.
Furthermore, Petitioner's purported justification for the way in
which he altered this record is belied by the fact that he knew the
correct way to amend a record. Petitioner knew that the correct
way to amend a record was to draw a line through the words he
wished to amend, to make a change above the line, and to initial
that change. Tr. at 961 - 963. In February 1993, Petitioner would
have been especially sensitive to the correct way to amend a
medical record. There had been problems involving the way
Petitioner made records which predate the incident that I describe
here. In 1992, Page Memorial medical staff had directed Petitioner
to take a course in medical records keeping. Tr. at 955 - 958.
The course was taught by Petitioner's attorney, at Petitioner's
expense. Tr. at 959. That Petitioner knew the right way to amend
a record is underscored also by the fact that Petitioner made an
amendment to his progress note of February 16, 1993, using the
prescribed form (this change appears at the bottom right-hand
corner of the same page which contains the February 15, 1993
progress note). I.G. Ex. 13 at 71.
H. Petitioner's unwillingness to accept full responsibility
for all of his errors and misconduct (Finding 11)
As I discuss below, Petitioner has accepted responsibility for some
of his errors. But, Petitioner continues to deny responsibility
for major errors and misconduct. In this decision, I have
discussed several instances where Petitioner continues to deny
responsibility for major errors in judgment and misconduct. It is
useful to summarize them here because, when Petitioner's denials
are considered collectively, they establish a continuing tendency
on Petitioner's part to refuse to accept responsibility for
misconduct and to learn from this misconduct. These instances
include the following.
1. Patient A
In his testimony concerning Patient A, Petitioner asserts that it
was necessary to operate on the patient at Page Memorial because of
signs that the patient had possibly sustained a ruptured aneurysm.
Tr. at 883 - 884. However, as I discuss at Part IV.D.1. of this
decision, this contention is not supported by the weight of the
evidence. The patient could have been, and should have been,
transferred to another facility.
2. Patient RB
Petitioner continues to assert that he was unable to reinforce
staple lines in Patient RB during the first surgery he performed on
the patient, due to lack of
usable tissue. As I discuss in Part IV.E.1. of this decision, that
assertion is not credible.
3. Patient IW
Petitioner continues to argue that he performed adequate studies of
Patient IW's peripheral circulation, prior to performing surgery on
Patient IW. Tr. at 770 - 772; Petitioner reply brief at 4.
However, as I discuss at Part IV.E.2. of this decision, the
preponderance of the evidence is that Petitioner failed to perform
adequate studies of the patient's circulation. Petitioner's
failure to perform these studies may have resulted in his
performing inadequate surgery on the patient during her first visit
to Page Memorial, and that in turn may have triggered the chain of
events leading to her two cardiac arrests and eventual death.
4. Patient JB
Petiioner continues to assert that he did not intend, as of the
second hospitalization of this patient, to perform elective gall
bladder surgery on the patient. However, as I discuss at Part
IV.E.5. of this decision, the evidence shows that Petitioner
admitted the patient for the purpose of performing the surgery.
Furthermore, Petitioner's assertion evades the point that
Petitioner should never have considered performing the surgery.
5. Patient BB
Petitioner continues to deny that he altered the records of Patient
BB in order to mislead reviewers into believing that Petitioner had
developed adequate clinical evidence for performing a thoracentesis
on the patient. As I discuss at Part IV.G., this denial is not
credible.
I. Petitioner's efforts to shift responsibility for his
errors to other individuals (Findings 8 and 12)
In some instances, Petitioner has attempted to shift responsibility
for his errors to other individuals. This tendency is disturbing,
because it suggests again that Petitioner has not earned the full
lesson taught by his errors. Examples of this tendency to attempt
to shift responsibility are as follows.
1. Patient A
In the case of Patient A, Petitioner argues that he received a
second opinion over the telephone which supported his decision to
operate on the patient. That is true. But, the physician who
supplied that opinion relied on the information communicated by
Petitioner. Although I do not find that Petitioner attempted to
mislead that individual, it is evident that the opinion Petitioner
received was not an independent assessment of the patient's
condition which would have justified Petitioner's decision to
proceed with aneurysm surgery.
2. Patient RB
In the case of Patient RB, Petitioner asserts that he received
special privileges from the Page Memorial chief of staff to perform
the stricture removal surgery. However, Petitioner bore
responsibility for assessing the patient's condition, the need for
surgery, and the suitability of the facilities for such surgery.
J. Petitioner's acknowledgement that he has committed errors
(Finding 9)
Petitioner acknowledges committing some errors and accepts
responsibility for these errors. This is evidence that Petitioner
recognizes judgment failures and errors that he committed in the
past and Petitioner shows a capacity on his part to learn from
them. Some of the more significant acknowledgements of error by
Petitioner are as follows.
1. Patient LO
In the case of Patient LO, which I discuss above, at Part IV.F.1.
of this decision, Petitioner admits that he erred in not ordering
that a CAT scan be performed, before administering anticoagulants
to the patient. Tr. at 929.
2. Patient IW
In the case of IW, which I discuss above, at Part IV.E.2. of this
decision, Petitioner now admits that he erred in permitting the
nurse anesthetist to administer anesthesia to the patient without
Petitioner's supervision. Tr. at 782.
3. Patient JJ
In the case of JJ, which I discuss above, at Part IV.E.4.a. of this
decision, Petitioner now admits that he made a "terrible" mistake
in commencing surgery on the wrong hip. Tr. at 934. Petitioner
admits also that he was responsible for the failure to have x-rays
of the patient's hip available in the operating room, prior to
commencement of surgery on the patient. Tr. at 934 - 936. 11/
K. Petitioner's attitude towards his patients and his
practice, and his attempts to comply with professionally recognized
standards of care (Findings 9 and 10)
Petitioner proved that, notwithstanding the evidence of his errors
and misconduct, he is an individual who cares deeply about his
patients. Petitioner frequently has made extraordinary and
unselfish efforts on his patients' behalf. P. Exs. 49, 55.
Petitioner's dedication to the welfare of his patients is
reciprocated by the support and loyalty that his patients have
shown for him. Tr. at 589 - 646.
While it is reasonable to conclude that a physician who is
indifferent to the welfare of his patients is not trustworthy to
provide care, it does not necessarily follow that a physician who
is a dedicated practitioner is trustworthy to provide care. Nor is
the fact that a physician is supported by members of his or her
community necessarily a basis for finding that the physician is
trustworthy. A physician may be dedicated to his patients, and
supported by the members of his or her community, and nonetheless
not be trustworthy. A physician may have an excellent rapport with
his patients but may not be capable of providing care that meets
professionally recognized standards of health care.
The significance of the evidence about Petitioner's attitude and
the support for him shown by his patients is that it proves that
Petitioner is motivated to provide care that meets professionally
recognized standards of health care. I am satisfied from this
evidence that Petitioner is willing to provide such care.
Petitioner has conformed his practice with professionally
recognized standards of health care, albeit in an office setting,
and not in the context of hospital-based surgery. Petitioner has
not performed surgery at Page Memorial since he resigned from its
medical staff in March 1993. Tr. at 711. He has continued to
provide care to patients at his office. Petitioner's office
practice includes performing a number of minor surgeries, such as
removals of skin lesions, and routine biopsies. Id.
Petitioner's license to practice medicine in Virginia was placed on
probation by order of the Virginia Board of Medicine, effective
November 11, 1993. I.G. Ex. 17. In determining to put
Petitioner's license on probation, the Virginia Board of Medicine
made findings concerning many of the cases which I have addressed
in this decision. Although I do not rely on these findings, I note
that they are consistent with the Findings which I have made
concerning the manner in which Petitioner conducted his practice of
medicine.
One provision of the order placing Petitioner's license on
probation was to direct that Petitioner's surgical practice be
audited at least monthly by an approved board-certified general
surgeon. I.G. Ex. 17 at 12. Petitioner complied with this
requirement. The surgeon who reviewed Petitioner's practice, Dr.
Mansfield, monitored Petitioner's practice for a period of 19
months. Tr. at 706. Petitioner cooperated throughout this period.
Id. Petitioner made all of his office records available for review
by Dr. Mansfield and also for review by State inspectors. Tr. at
706 - 707. Petitioner accepted suggestions that were made by Dr.
Mansfield concerning Petitioner's practice. Tr. at 710 - 711.
During the 19-month period that Petitioner was monitored by Dr.
Mansfield, Petitioner conformed his office practice to
professionally recognized standards of health care. 12/ On June
27, 1995, the Virginia Board of Medicine ordered that Petitioner's
probation be terminated and ordered additionally that Petitioner's
license to practice medicine be restored. P. Ex. 54.
Since November 1993, Petitioner has completed numerous courses in
continuing medical education. P. Exs. 37, 50. I cannot conclude
from Petitioner's completion of these courses that he has absorbed
all of the information that the courses imparted, and that he has
thereby improved his skills as a practitioner. However, it is
reasonable to infer from Petitioner's diligence in completing these
courses that he has sought to improve his professional skills.
V. The need for a three-year exclusion (Findings 13 and 14)
The I.G. rests her argument that I should impose a lengthy
exclusion against Petitioner on the evidence establishing that
Petitioner committed egregious errors and misconduct and on his
refusal to acknowledge having committed all of these errors.
Petitioner rests his argument that I should not impose any
exclusion against him on the evidence which shows that Petitioner
cares deeply about the welfare of his patients and that he has
conformed his office practice to professionally recognized
standards of care.
I would impose a very lengthy exclusion against Petitioner if I
considered only the evidence relied on by the I.G. That evidence
depicts a practitioner who is prone to making gross misjudgments
about the kind of care to provide to his patients and who is prone
to committing basic errors in his providing of care. That evidence
depicts also a practitioner who does not always accept
responsibility for his errors, who attempts to shift responsibility
for his errors to other individuals, and who has attempted,
dishonestly, to cover up some of his errors.
By the same token, the evidence relied on by Petitioner would, if
considered in isolation, suggest that Petitioner is a trustworthy
provider of care. I would not impose an exclusion against
Petitioner if I considered only this evidence.
I draw several conclusions about Petitioner's trustworthiness.
First, Petitioner has demonstrated a flawed decision making process
with hospitalized patients which has led him, consistently, into
making egregious errors in the management of his patients' care.
The frequency and seriousness of these errors is powerful evidence
that Petitioner manifests a continuing tendency to make such
errors. I am not persuaded by Petitioner's recent compliance with
professionally recognized standards of health care in his office
that he would not continue to commit such errors if he were to
resume his full practice, including performing surgery in a
hospital setting. 13/
Second, Petitioner's unwillingness to accept responsibility for all
of the errors and misconduct he committed proves that Petitioner
has not yet learned the full lesson taught by these errors and
misconduct. This reinforces my conclusion that Petitioner did not
show that he has eliminated his tendency to make gross judgment
errors in his treatment of hospitalized patients.
Third, Petitioner's devotion to his patients, coupled with his
compliance with conditions imposed on him by the Virginia Board of
Medicine, proves that he is trying to overcome his tendency to
commit errors. To an extent, that evidence is reinforced by the
fact that Petitioner has acknowledged that he has made some
judgment errors in the past.
An exclusion of three years takes into account this contrasting
evidence. It provides sufficient time so that Petitioner may
continue to reflect on and learn from his past errors. It provides
protection to program beneficiaries and recipients during this
period of time. I have not imposed an exclusion of more than three
years because Petitioner should be able to fully reform his
practice within three years. An exclusion of more than three years
would be punitive, considering Petitioner's attitude towards his
patients and his attempts, so far, to reform his practice. 14/
Throughout this case, Petitioner has asserted that there exists a
shortage of physicians in Page County, Virginia and that the
population of that county will be deprived of needed professional
care by his exclusion. Page County is a county with a population
of less than 70,000. The Act presumes that, in such a county,
there is a shortage of medical professionals. Act, section
1156(b)(5). However, the fact that there exists a shortage of
medical professionals in Page County, or even the possibility that
Page County might be deprived of the needed services of a surgeon
by virtue of Petitioner's exclusion, is not a sufficient basis to
reduce the exclusion in this case. The remedial purpose of the Act
to protect beneficiaries and recipients from an untrustworthy
provider would be defeated if I were not to exclude Petitioner. In
this case, the need for protection supersedes any need for medical
professionals that may exist in Page County.
The fact that I have sustained an exclusion for three years means
that Petitioner will be eligible to apply for reinstatement at the
end of the three-year exclusion period. It does not mean that the
I.G. must reinstate Petitioner, should Petitioner apply for
reinstatement. The I.G. has authority to accept or not to accept
an application for reinstatement. 42 C.F.R. 1001.3002.
Evidence that Petitioner has failed, during the period of his
exclusion, to comply with professionally recognized standards of
health care, could be a basis for the I.G. to deny reinstatement to
Petitioner. Id.
VI. Conclusion
I conclude that the I.G. has authority to exclude Petitioner. I
sustain an exclusion of three years.
Steven T. Kessel
Administrative Law Judge
1. I use the term þMedicaidþ to refer to all State health
care programs described in section 1128(h) of the Act.
2. The two patients are referred to in the I.G.þs notice
to Petitioner as RB and IW. The medical records that pertain to
Petitionerþs treatment of patient RB are in evidence as I.G. Ex. 2.
The medical records that pertain to Petitionerþs treatment of
patient IW are in evidence as I.G. Ex. 3.
3. The five additional patients are referred to in the
I.G.þs notice to Petitioner as JB, JJ, AM, LO, and BB. The medical
records that pertain to Petitionerþs treatment of these patients
are in evidence as follows: JB -- I.G. Ex. 1, 14; JJ -- I.G. Ex. 4;
AM -- I.G. Ex. 5; LO -- I.G. Ex. 6; BB -- I.G. Ex. 7.
4. The evidence which I received at the July 24 - 27, 1995
hearing includes the exhibits which were offered and received at
the August 4 - 5, 1994 hearing. Tr. at 11 - 12; 22 - 45. Also,
the record of the July 24 - 27, 1995 hearing includes the
transcript of the August 4 - 5, 1994 hearing, which was identified
and received into evidence as I.G. Ex. 25.
5. Petitioner does not acknowledge that he committed a
gross and flagrant violation of his obligation to provide care
which meets professionally recognized standards of health care.
However, by acknowledging that the I.G. has the authority to
exclude him, Petitioner has conceded at least that he engaged in
conduct which failed to meet the obligations imposed on him by
section 1156 of the Act and that he demonstrated an unwillingness
or inability to comply with those obligations.
6. Petitioner had been involved with MSVRO prior to the
present case. In 1985, MSVRO conducted an investigation into the
care Petitioner provided to patients. MSVRO proposed that
sanctions be imposed against Petitioner. I.G. Ex. 11. Based on
the 1985 investigation, Petitioner entered into a corrective action
plan with MSVRO.
7. These seven patients are referred to as FB, MT, H, C,
D, A, and P. Petitionerþs treatment of some of these patients was
the subject of the 1985 MSVRO investigation. Relevant records of
the treatment that Petitioner provided to FB and MT are in I.G. Ex.
8. The contemporaneous records of Petitionerþs treatment of H, C,
D, A, and P are not in evidence. However, the exhibits and
transcript of the hearing do contain references to Petitionerþs
treatment of H, C, D, A, and P. See I.G. Exs. 11, 12. I cite to
the relevant exhibits and testimony in my discussion of the
evidence.
8. However, for the reasons that I discuss in this
decision, I do not agree with Dr. Mansfieldþs opinion that
Petitioner should not be excluded.
9. Patient A died shortly after Petitioner performed the
surgery. However, I do not find that the patientþs death
necessarily resulted from the surgery being performed at Page
Memorial.
10. The nursing progress notes for Patient AM show that a
Foley catheter was inserted on the morning of November 21, 1992 at
9:50 a.m. I.G. Ex. 5 at 66. This was done only five hours prior
to the patientþs transfer to the University of Virginia Hospital
and after the patientþs condition had deteriorated. I.G. Ex. 5 at
66 - 68.
11. The I.G. alleges that Petitioner operated on the wrong
hip to the extent that he dissected tissue down to the level of the
joint capsule and directed the surgical assistant to dislocate the
hip. According to the I.G., it was only when the assistant refused
this directive that it became apparent to Petitioner that he was
operating on the wrong hip. Petitioner vigorously disputes this
allegation. He asserts that he discovered his error much earlier
in the procedure, after he had penetrated down to the level of the
patientþs fascia, but before he had reached the joint capsule. The
I.G.þs evidence is persuasive. However, Petitioner has at least
admitted the seriousness of his error in operating on the wrong
hip.
12. There is evidence that, shortly prior to the
commencement of Dr. Mansfieldþs review, Petitioner performed hernia
surgeries in his office that should not have been performed in that
setting. However, Dr. Mansfield counseled Petitioner to cease
performing such surgeries in his office, and Petitioner complied.
13. I do not have authority to exclude a practitioner from
participating in some aspects of federally funded health care
programs, but not others. Walter J. Mikolinski, Jr., DAB 1156
(1990). Thus, I may not exclude Petitioner from claiming
reimbursement for care that he provides in a hospital, but permit
him to claim reimbursement for care that he provides in his office.
14. An exclusion of three years is consistent with the
recommendation that MSVRO made to the I.G. I.G. Ex. 15 at 1, 48 -
50.