Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: The Inspector General,
- v. -
Theodore Cherukuri, M.D., Respondent.
Date: May 23, 1997
Docket No. C-96-020
Decision No. CR475
DECISION
The case before me arose pursuant to the notice letter issued
on September 20, 1995, by the Inspector General (I.G.) of the
Department of Health and Human Services. The notice letter
informed Dr. Theodore Cherukuri (Respondent) of the I.G.'s
determination that Respondent had committed two violations of
section 1867 of the Social Security Act (Act) on September
15, 1991, with respect to the care and transfer of two
patients who were presented to the emergency room of
Williamson Appalachian Regional Hospital (ARH) in South
Williamson, Kentucky. The I.G. notified Respondent also that
she was proposing to impose against him two civil money
penalties (CMP) in the amount of $50,000 for each violation,
and to exclude Respondent for a period of two years from
participation in the Medicare program and various federally
funded state health care programs under the Act. 1/
Respondent filed a timely challenge to the I.G.'s
determinations and proposed actions.
I held an in-person hearing for four days in Huntington, West
Virginia, and later received rebuttal testimony and evidence
by telephone on two additional days. 2/ The parties have
also submitted post-hearing briefs. 3/
For the reasons which follow, I uphold the I.G.'s proposal to
impose a CMP of $50,000 for each of the two violations
specified by the I.G. However, I set aside the exclusion of
two years proposed also by the I.G.
APPLICABLE STATUTES AND REGULATIONS
Section 1867 of the Act specifies certain special
responsibilities placed on those individuals who work at or
for hospitals which have emergency rooms and which
participate in the Medicare program. 4/ These
responsibilities are triggered whenever an individual
(whether or not a Medicare beneficiary) comes to a
participating hospital's emergency room and a request for
medical treatment is made by that individual or on that
individual's behalf. Section 1867(a) of the Act. At that
point, the hospital must provide an appropriate medical
screening examination to determine whether the individual has
an emergency medical condition. Section 1867(a) of the Act;
see 42 C.F.R. § 489.24(a).
Subsections (b) through (e) of section 1867 of the Act
specify those additional responsibilities and definitions
which are relevant to this case. The regulations
implementing these relevant statutory subsections are
codified at 42 C.F.R. § 489.24 and 42 C.F.R. Part 1003.
Subsection (b) of section 1867, titled "Necessary Stabilizing
Treatment for Emergency Medical Conditions and Labor,"
specifies that if a participating hospital with an emergency
department determines that the individual has an emergency
medical condition, the hospital must provide either:
(A) within the staff and facilities available at
the hospital, for such further medical examination
and such treatment as may be required to stabilize
the medical condition, or
(B) for transfer of the individual to another
medical facility in accordance with subsection (c)
[titled "Restricting Transfers Until Individual
Stabilized"].
Section 1867(b)(1) of the Act; see 42 C.F.R. § 489.24(c).
An "emergency medical condition" means:
(A) a medical condition manifesting itself by
acute symptoms of sufficient severity . . . such
that the absence of immediate medical attention
could reasonably be expected to result in --
(i) placing the health of the individual . .
. in serious jeopardy,
(ii) serious impairment to bodily functions,
or
(iii) serious dysfunction of any bodily
organ or part.
Section 1867(e)(1)(A) of the Act; see 42 C.F.R. § 498.24(b).
"To stabilize" means, with respect to any emergency medical
condition described in section 1867(e)(1)(A):
To provide such medical treatment of the
condition as may be necessary to assure, within
reasonable medical probability, that no material
deterioration of the condition is likely to result
from or occur during the transfer of the individual
from a facility . . .
Section 1867(e)(3)(A) of the Act; see 42 C.F.R. § 489.24(b).
"A transfer" means:
The movement . . . of an individual outside a
hospital's facilities at the direction of any
person employed by (or affiliated or associated
directly or indirectly, with) the hospital . . .
Section 1867(e)(4) of the Act 5/; see 42 C.F.R. § 489.24(b)
(emphasis added).
The hospital is deemed to have met its obligations to
stabilize the medical condition under section 1867(b)(1) of
the Act if the individual, or a person acting on the
individual's behalf, refuses to consent to such stabilization
treatment after being informed of the risks and benefits to
the individual of such treatment. Section 1867(b)(2); see 42
C.F.R. § 489.24(c)(2). However, the hospital must take all
reasonable steps to secure the individual's (or responsible
person's) written, informed refusal of such treatment. Id.
The medical records should contain a description of the
examination or treatment refused by or on behalf of the
individual. 42 C.F.R. § 489.24(c)(2).
Subsection (c) of section 1867, titled "Restricting Transfers
Until Individual Stabilized," prohibits a hospital from
transferring an individual with a medical condition that has
not been stabilized within the meaning of section
1867(e)(3)(B) of the Act, unless,
(A)(i) the individual (or a legally responsible
person acting on the individual's behalf) after
being informed of the hospital's obligations under
this section and of the risk of transfer, in
writing requests transfer to another medical
facility,
(ii) a physician . . . has signed a
certification that based upon the
information available at the time of
transfer, the medical benefits reasonably
expected from the provision of
appropriate medical treatment at another
medical facility outweigh the increased
risks to the individual . . ., or
(iii) if a physician is not physically
present in the emergency department at
the time an individual is transferred, a
qualified medical person (as defined by
the Secretary [of the Department of
Health and Human Services] in
regulations[ 6/]) has signed a
certification described in clause (ii)
after a physician . . ., in consultation
with the person, has made the
determination described in such clause,
and subsequently countersigns the
certification; and
(B) the transfer is an appropriate transfer . . .
.
Section 1867(c)(1)(A) and (B) of the Act; see 42 C.F.R. §
489.24(d).
The certification specified in (ii) and (iii) of paragraph A,
above, must include a summary of the risks and benefits upon
which the certification is based. Section 1867(c)(1) of the
Act; see 42 C.F.R. § 489.24(d)(1)(ii)(B) and (C).
The term "stabilized" means:
with respect to an emergency medical condition .
. ., that no material deterioration of the
condition is likely, within reasonable medical
probability, to result from or occur during the
transfer of the individual from a facility . . . .
Section 1867(e)(3)(B) of the Act.
The "appropriate transfer" mandated by section 1867(c)(1)(B)
of the Act means, as relevant to this case, a transfer:
(A) in which the transferring hospital provides
the medical treatment within its capacity which
minimizes the risks to the individual's health .
. ., and
(B) in which the receiving facility --
(i) has available space and qualified personnel
for the treatment of the individual, and
(ii) has agreed to accept transfer of
the individual and to provide appropriate
medical treatment; [and]
(C) in which the transferring hospital sends to
the receiving facility all medical records . . .
related to the emergency condition for which the
individual has presented . . . including . . . the
name and address of any on-call physician
(described in subsection (d)(1)(C)) who has refused
or failed to appear within a reasonable time to
provide necessary stabilizing treatment; [and]
(D) in which the transfer is effected through
qualified personnel and transportation equipment,
as required . . . .
Section 1867(c)(2)(A) - (D); see 42 C.F.R. § 489.24(d).
Subsection (d) of section 1867, titled "Enforcement,"
specifies that a hospital is subject to a CMP if it
negligently violates one or more of the requirements
described above. Section 1867(d)(1)(A) of the Act. In
addition, subsection (d) also authorizes the imposition of
sanctions against:
any physician who is responsible for the
examination, treatment, or transfer of an
individual in a participating hospital, including a
physician on-call for the care of such an
individual, and who negligently violates a
requirement of this section . . .
Section 1867(d)(1)(B) of the Act; see 42 C.F.R. § 1003.101.
However, a physician's liability specified in section
1867(d)(1)(B) is subject to the following caveat:
If, after an initial examination, a physician
determines that the individual requires the
services of a physician listed by the hospital on
its list of on-call physicians . . . and notifies
the on-call physician and the on-call physician
fails or refuses to appear within a reasonable
period of time, and the physician orders the
transfer of the individual because the physician
determines that without the services of the on-call
physician the benefits of transfer outweigh the
risks of transfer, the physician authorizing the
transfer shall not be subject to a penalty under
subparagraph (B) [of section 1867(d)(1)]. However,
the previous sentence shall not apply to the
hospital or to the on-call physician who failed or
refused to appear.
Section 1867(d)(1)(C) of the Act.
Any physician who negligently violates a requirement of
section 1867 is subject to a CMP of not more than $50,000 for
each such violation. Section 1867(d)(1)(B) of the Act; see
42 C.F.R. §§ 1003.102(c)(1)(ii), 1003.103(e)(2)(iii). The
I.G. has been delegated the authority for imposing a penalty
under section 1867 of the Act against any responsible
physician who has negligently violated the statutory
requirements on or after May 1, 1991. 42 C.F.R. §
1003.102(c)(1)(ii).
In determining the amount of a CMP, the I.G. is required to
consider the following factors:
-- the degree of a respondent's culpability,
-- the seriousness of the condition of the
individual seeking emergency medical treatment,
-- any prior history of a respondent's offenses,
-- a respondent's financial condition,
-- the nature and circumstances of the violation,
and
-- such other matters as justice may require.
42 C.F.R. § 1003.106(a)(4).
In addition to having a CMP imposed against him, a physician
may also be excluded from participation in the Medicare and
State health care programs for any gross and flagrant or
repeated violations of the statute's requirements. Section
1867(d)(1)(B) of the Act; see 42 C.F.R. § 1003.105(a)(1). A
"gross and flagrant" violation is one which:
presents an imminent danger to the health, safety
or well-being of the individual who seeks emergency
examination and treatment or places that individual
unnecessarily in a high risk situation.
42 C.F.R. § 1003.105(a)(1)(C). The I.G. has been delegated
the authority for imposing and directing an exclusion against
any person for a gross and flagrant or repeated violation of
section 1867 occurring on or after May 1, 1991. 42 C.F.R. §
1003.105(a)(1)(ii)(C).
DISCUSSION
Section I
In this section, I discuss my reasons for having reached the
following findings of fact and conclusions of law (FFCLs)
with respect to the relevant events which occurred at ARH, a
Medicare participating hospital with an emergency room, on
September 15, 1991 7/:
1. At or shortly before 3:30 AM, requests for
treatment were made on behalf of Sean Crum and
Delmar Mills to ARH's emergency room, within the
meaning of section 1867(a) of the Act.
2. ARH's emergency room was staffed by Pedro
Hani, M.D., and Judy Hatfield, R.N.
3. Pat White, R.N., ARH's "house supervisor,"
was called in especially to the emergency room to
give assistance.
4. Respondent was the on-call surgeon summoned
by ARH for the evaluation or care of Sean Crum and
Delmar Mills.
5. Respondent arrived at ARH at about 3:45 AM in
order to evaluate or care for Sean Crum and Delmar
Mills.
6. The medical screening procedures performed by
ARH's emergency room staff and its on-call surgeon
(Respondent) established that Sean Crum and Delmar
Mills each had an emergency medical condition
within the meaning of section 1867(e)(1) of the
Act.
7. Under section 1867(b) of the Act, Sean Crum
and Delmar Mills were entitled to receive at ARH
either such further medical treatment as might be
required to stabilize their emergency medical
condition, or to have ARH transfer them to another
medical facility in accordance with the additional
statutory requirements specified in and
incorporated by section 1867(c) of the Act.
8. As of 4:00 AM, the emergency medical
conditions of Sean Crum and Delmar Mills were not
"stable," as defined by section 1867(e)(3)(A) of
the Act.
9. As of 4:00 AM, Respondent knew that abdominal
surgery (i.e., an exploratory laparotomy) was the
necessary and appropriate treatment to stabilize
Sean Crum's emergency medical condition.
10. As of 4:00 AM, Respondent knew that
abdominal surgery (i.e., an exploratory laparotomy)
was the necessary and appropriate treatment to
stabilize Delmar Mill's emergency medical
condition.
11. Respondent did not perform abdominal surgery
on either Sean Crum or Delmar Mills.
12. At 4:00 AM, Respondent wrote his
determination in the medical charts of Sean Crum
and Delmar Mills that these two patients should be
transferred immediately.
There is no dispute that an automobile accident occurred near
South Williamson, Kentucky, during the early morning of
September 15, 1991. Tr. 477, 538. A total of five people
riding in two cars incurred injuries of varying degrees as a
result of the accident. E.g., Tr. 380. These five accident
victims, including Delmar Mills and Sean Crum, were
transported to ARH, an area hospital which was participating
in the Medicare program and which had an emergency room.
E.g., Tr. 380, 478, 538 - 40. Both Delmar Mills and Sean
Crum were then admitted to ARH's emergency room by 3:30 AM.
I.G. Ex. 2 at 2; I.G. Ex. 3 at 5.
The condition of these two patients was deemed "critical"
8/ when they were brought to ARH by ambulance, and both were
placed into emergency room beds designated for critically ill
patients. I.G. Ex. 4 at 3; Tr. 479. Sean Crum was noted by
the emergency room staff to have various problems, including
being unresponsive to pain or command, having dilated pupils,
having shallow respiration, and having blood coming out of
both ears. I.G. Ex. 4 at 3. Delmar Mills was noted by the
emergency room staff to have problems which included giving
inappropriate responses, having a blood pressure of 68/50,
and having a distended abdomen. Id.
On the morning of September 15, 1991, ARH's emergency room
was staffed by Pedro Hani, M.D., and Judy Hatfield, R.N. Tr.
538. Pat White, R.N., was the relief supervisor or house
supervisor for ARH during that morning. Tr. 476. In that
capacity, she was in charge of the entire hospital, including
the emergency room. Tr. 476 - 77. She was called to the
emergency room to lend assistance when the five accident
victims began arriving. Tr. 478.
At Dr. Hani's request, Pat White summoned the on-call
surgeon 9/ to ARH's emergency room in order to evaluate
Sean Crum and Delmar Mills. HCFA Ex. 2 at 3; Tr. 478.
Respondent was the surgeon on call that morning. Tr. 478.
Even though it cannot be ascertained precisely when
Respondent arrived at the emergency room to begin his
evaluation of Delmar Mills and Sean Crum, it is most likely
that Respondent arrived at about 3:45 AM. 10/
For Sean Crum, Respondent noted at 3:45 AM that the patient
had multiple trauma (chest trauma and abdominal trauma), was
bleeding from both his ears and his nose, and was in a deep
coma with dilated pupils. I.G. Ex. 3 at 2. For Delmar
Mills, Respondent noted at 4:00 AM that the patient had a
head injury, had abdominal trauma, and was bleeding from the
right ear. I.G. Ex. 2 at 17. Respondent wrote the foregoing
notes after having performed a procedure called a peritoneal
tap on each patient. I.G. Ex. 3 at 2; I.G. Ex. 2 at 17.
A peritoneal tap (also called a peritoneal lavage) is usually
performed by a surgeon when abdominal trauma is suspected.
Tr. 41 - 43. The purpose is to determine whether there is,
in fact, bleeding occurring in the abdominal cavity. Tr.
129. The procedure involves making a small incision in the
abdomen, passing a catheter into the abdominal cavity, and
drawing fluid out to ascertain whether blood is present. Tr.
42, 129. If a certain amount of red blood cells are present
in the liquid that is drawn out, then it means that some
organ in the abdomen has been injured, and the result is
considered positive. Id. In the case of Sean Crum and
Delmar Mills, Respondent was aware by 3:45 AM and 4:00 AM,
respectively, that the peritoneal taps done on these two
patients were positive for abdominal bleeding. I.G. Ex. 3 at
2; I.G. Ex. 2 at 17.
Medical experts are in agreement that, even though both Sean
Crum and Delmar Mills had head injuries as well as abdominal
injuries, well established protocol in emergency medicine
dictates that abdominal surgery should be performed pursuant
to positive peritoneal tap results in advance of treating
patients for head injuries. Tr. 45 - 46, 64 - 65, 130 - 31,
302, 356, 415. Under the so-called "ABC" protocol,
physicians should treat any multiply injured patient by first
clearing their airway ("A"), correcting their breathing
problems ("B"), and correcting their circulation problems
("C"), in order to sustain the patient's life with adequate
oxygen intake and blood circulation before proceeding to any
other treatment. Tr. 45 - 46, 64 - 65. On-going bleeding in
the abdomen could result in further injuries to other organs
in the body, or it could result in death. Tr. 47.
Therefore, for Sean Crum and Delmar Mills, at approximately
4:00 AM on September 15, 1991, the appropriate next step
under the "ABC" protocol should have been exploratory
laparotomy, a procedure where the surgeon makes an incision
along the abdomen in order to assess the various organs in
the abdomen and to suture or otherwise stop the bleeding.
Tr. 44, 130, 415.
The notes made by Respondent in the two patients' charts, at
3:45 AM for Sean Crum and at 4:00 AM for Delmar Mills,
established Respondent's awareness that, following their
positive peritoneal lavage results, he should perform
exploratory laparotomy forthwith to control each of these two
patients' abdominal bleeding. I.G. Ex. 3 at 2; I.G. Ex. 2 at
17. Respondent testified that, even though Sean Crum had
sustained severe brain injury, blood circulation to his brain
must still be maintained in order to keep him alive. Tr.
846. Respondent said he knew that abdominal surgery was
necessary and appropriate for both patients, that abdominal
surgery should have been done as soon as possible, and that
abdominal surgery should be done before any treatment of head
injuries. Tr. 894. Respondent testified also that he had
decided to perform abdominal surgery on both patients
immediately, at approximately 4:00 AM on September 15, 1991
(Tr. 849, 853), after having established a diagnosis of
internal injuries with the use of peritoneal taps in the
first 15 minutes (Tr. 848).
The foregoing facts leave no doubt that requests for
treatment were made on behalf of both Sean Crum and Delmar
Mills, within the meaning of section 1867(a) of the Act, when
they were taken by ambulance to ARH's emergency room sometime
after 3:00 AM on September 15, 1991.
The undisputed evidence that Respondent was the on-call
surgeon summoned to care for Sean Crum and Delmar Mills
establishes that Respondent is subject to liability under
section 1867(d)(1)(B) for any negligent violations of the
statutory requirements.
In addition, the undisputed evidence discussed above
establishes that the appropriate medical screening procedures
performed by ARH's emergency room staff and its on-call
surgeon (Respondent) established that each of these two
patients had emergency medical conditions within the meaning
of section 1867(e)(1) of the Act. Therefore, Sean Crum and
Delmar Mills were entitled to receive at ARH either such
further medical treatment as may be required to stabilize
their emergency medical condition, or to have ARH transfer
them to another medical facility in accordance with the
additional requirements of the statute. Section 1867(b) of
the Act.
The undisputed evidence discussed above establishes further
that, as of 4:00 AM on September 15, 1991, neither of the two
patients was in stable condition as defined by section
1867(e)(3)(A) of the Act, and that abdominal surgery (i.e.,
an exploratory laparotomy) was the necessary and appropriate
medical treatment for the stabilization of these two patients
at that time.
There is no dispute that Respondent did not, in fact, perform
abdominal surgery on either Sean Crum or Delmar Mills after
he found them to be unstable and allegedly decided to perform
surgery at 4:00 AM. See Tr. 849, 853. Even though there is
a conflict in the evidence as to why he did not perform the
exploratory laparotomies he deemed appropriate, 11/ the
documents generated by Respondent himself show that he wrote
in both patients' medical charts at 4:00 AM that both
patients should be transferred immediately. I.G. Ex. 2 at
17; I.G. Ex. 3 at 2.
Section II
In this section, I explain my reasons for having found and
concluded as follows:
13. Respondent led the nurses in ARH's emergency
room to believe that St. Mary's Hospital had agreed
to accept the transfer of Sean Crum and Delmar
Mills.
14. It was Respondent's duty as the on-call surgeon
to make the transfer decisions for patients in the
emergency room who were in need of surgery.
15. The transfers of Sean Crum and Delmar Mills from
ARH to St. Mary's Hospital were effectuated by Pat
White, pursuant to the information and directives given
by Respondent.
16. With Respondent's authorization, Pat White
completed the documents titled "Emergency Services
Transfer Record" and placed his name on them.
17. Respondent's actions, inactions, and words,
at and after 4:00 AM, caused Sean Crum and Delmar
Mills to be transferred within the meaning of
section 1867(e)(4) of the Act.
18. Dr. Hani did not order the transfer of
either Sean Crum or Delmar Mills.
As noted in the preceding section, Respondent did not perform
abdominal surgery on either Sean Crum or Delmar Mills after
he determined them to be unstable and had allegedly decided
to perform such surgery at 4:00 AM. Instead, Respondent
wrote in both patients' medical charts at 4:00 AM that both
patients should be transferred immediately. I.G. Ex. 2 at
17; I.G. Ex. 3 at 2.
The evidence introduced by the parties shows that either
prior to or after writing the above notes concerning an
immediate transfer at 4:00 AM, Respondent telephoned Dr.
Sirous Arya, a surgeon who was on call that morning at St.
Mary's Hospital in Huntington, West Virginia, to discuss a
transfer. I.G. Ex. 10; I.G. Ex. 4 at 3; Tr. 491, 850 - 51.
According to Petitioner's testimony, the following was his
action after he spoke with Dr. Arya:
And then I said immediately to the nurses and to
Dr. Hani. Prepare for transfer.
Tr. 851.
Pat White testified that she knew only that Respondent had
spoken to a physician at St. Mary's Hospital, but that she
did not hear the conversation between them. Tr. 521. She
testified also that Respondent told the nurses after his
phone call to Dr. Arya that Delmar Mills and Sean Crum had
been accepted for transfer and to prepare these patients for
transport. Tr. 493 - 494, 521.
Judy Hatfield, the only other health care professional who
was working in ARH's emergency room that morning in addition
to Pat White, Dr. Hani, and Respondent, testified that -- as
far as she knew -- Respondent was the one who made the
decision to transfer Delmar Mills and Sean Crum. Tr. 560.
Judy Hatfield testified also that Respondent was on the
telephone with St. Mary's Hospital and then stated that the
patients could be transferred there. Tr. 569.
Pat White testified that she prepared the patients for
transfer, as directed by Respondent, by readying the proper
forms and calling the helicopter transport service. Tr. 494.
She testified that when she was told that a helicopter could
not land at ARH that morning due to weather conditions, she
gave Respondent that information, and Respondent told her to
arrange for an ambulance. Tr. 494 - 96. She then arranged
for ambulance transportation. Id.
Pat White testified also that she prepared the transfer
papers in accordance with Respondent's directives, including
placing his name on the transfer forms in spaces requiring a
physician's certification of certain information. Tr. 502 -
12; I.G. Ex. 2 at 9 - 10; I.G. Ex. 3 at 9 - 10.
Pat White testified also that Dr. Hani, the emergency room
doctor, did not order the transfer of Sean Crum or Delmar
Mills. Tr. 517. I find this testimony credible, since it is
consistent with the fact that Dr. Hani's name does not appear
anywhere on the transfer forms (I.G. Ex. 2 at 9 - 10; I.G.
Ex. 3 at 9 - 10), and is consistent also with Dr. Hani's
sworn statement that he refused to sign the transfer forms
because he believed that the risks of transfer outweighed the
potential benefits. I.G. Ex. 12. 12/ Pat White's
testimony is consistent also with Respondent's
acknowledgement that he told the nurses and Dr. Hani to
prepare the patients for transfer immediately following his
conversation with Dr. Arya (see Tr. 851) and with the
contents of an incident report she prepared for ARH shortly
after the transfers at issue had occurred. I.G. Ex. 4 at 3 -
4; Tr. 514 - 15.
In the incident report Pat White prepared shortly after
September 15, 1991, she recounted Dr. Hani's refusal to sign
the transfer forms when Respondent asked Dr. Hani to do so.
I.G. Ex. 4 at 3. According to Pat White's report, Dr. Hani
said he was refusing to accept responsibility for the
transfer due to the patient's bleeding and unstable
condition. Id. Dr. Hani told Respondent that Respondent
must sign those transfer forms since Respondent was the
referring physician. Id. According to Pat White's report,
Respondent gave instructions to prepare the patients for
transfer even after Dr. Hani refused to sign the forms. Id
at 4.
Pat White said in this report that when she asked Respondent
to sign the transfer forms, he told her to sign his name on
them and refused to sign them personally. Id. However,
testifying at the hearing five years later, she explained
that the reason for Respondent's not having signed the
transfer forms was not so much that he refused, but that he
was busy at the time. Tr. 512, 524. Pat White indicated
that she had filled the transfer forms out as best she could,
and was told by Respondent to place his initials on them even
though he had not read their contents. Tr. 524. She
described Dr. Hani as not being very cooperative that night.
Tr. 497.
I do not find credible Respondent's assertions that he never
told Pat White to fill out the transfer forms for either
patient and that he was never asked to sign those forms. Tr.
907 - 10. Respondent's assertions conflict with his broad
directives to prepare the two patients for transfer to St.
Mary's Hospital (Tr. 851; I.G. Ex. 4 at 3 - 4), and with his
knowledge that such forms must be filled out in order to
transfer patients (Tr. 906). As also pointed out by Dr.
Michael Hannigan, one of the physicians called by the I.G. to
testify at the hearing, an accepted standard in the medical
profession is for the surgeon to make the transfer decision
when the service needed by a patient is surgery. Tr. 107.
This professional standard is logically based on the fact
that, if a surgeon has determined that a patient needs
surgery, then the surgeon must decide whether the surgery
should be performed at his own facility, or whether the
surgery should be performed by another surgeon at a different
facility. Id. Dr. Aaron, one of the experts who testified
for Respondent, noted also that Respondent had the
qualifications to make a determination as to the patients'
surgical stability and was in a position to decide whether
the benefits of transfer would outweigh its risks. Tr.
1036T. Dr. Fowler, also an expert who testified for
Respondent, was of the opinion that "Respondent stepped in
when he didn't have to." Tr. 616. In addition, Respondent
was aware that the emergency room staff of ARH would follow
directives such as the ones he issued which resulted in the
transfers. See Tr. 904 - 05.
I found Pat White more credible than Respondent on the issue
of whether Respondent told her to fill out the transfer forms
and place his name on them. Not only is her account more
consistent with the other evidence of record, she also has
less to gain than Respondent by providing inaccurate
information on these issues. 13/ Moreover, there is
nothing of record which makes believable the possibility that
an experienced nurse such as Pat White (Tr. 476) would have
taken the actions she described to transfer critically
injured patients without having received the necessary
directives from Respondent, especially after she heard Dr.
Hani state his opposition to the transfers based on the
patients' unstable medical conditions.
Section III
In this section, I discuss my reasons for having found and
concluded as follows:
19. Respondent caused Sean Crum and Delmar Mills
to be transferred from ARH to St. Mary's Hospital
under the following conditions:
A. without having had any physician sign or
countersign a certification in accordance with
section 1867(c)(1)(A)(ii) and (iii) of the Act that
the physician had in fact evaluated the conditions
of the two patients at the time of the transfer to
determine whether the medical benefits reasonably
expected from the provision of appropriate medical
treatment at another medical facility would
outweigh the increased risks to these patients; and
B. without having secured the agreement of St.
Mary's Hospital to accept the transfer of these two
patients (see section 1867(c)(2)(B)(ii)).
20. Respondent's written "advice" to Dr. Hani
does not relieve Respondent of his responsibility
for having caused the transfers of Sean Crum and
Delmar Mills.
21. If any arguably legitimate basis existed for
the transfers at issue, Respondent was the
physician who should have signed or counter-signed
the certification required by section
1867(c)(1)(A)(ii) and (iii) of the Act.
22. If any arguably legitimate basis existed for
the transfers at issue, Respondent should have
contacted St. Mary's Hospital for acceptance
instead of writing his "advice" that Dr. Hani
should do so.
For the reasons explained by Pat White, she placed
Respondent's name on the transfer forms as the physician who
had secured the agreement of the receiving physician and
receiving hospital, Dr. Arya and St. Mary's Hospital,
respectively, for the transfers in issue. E.g., Tr. 502 -
13; I.G. Ex. 2 at 9 - 10; I.G. Ex. 3 at 8 - 10. Also for
the reasons explained by Pat White, she placed Respondent's
name on the transfer forms as the physician who had requested
the transfer of both patients. Id. In the transfer forms
completed for Delmar Mills and Sean Crum, Pat White had
placed Respondent's name as the physician who was certifying
these two patients for transfer. I.G. Ex. 2 at 9 - 10; I.G.
Ex. 3 at 8 - 10. In these transfer forms, both patients were
designated as "unstable" at the time of transfer with the use
of Respondent's name. Id. 14/ Designating these patients
as "unstable" at the time of transfer is consistent with the
reasons recalled by Pat White for Dr. Hani's refusal to
transfer these patients. I.G. Ex. 4 at 3.
Without dispute, there is no physician's signature appearing
on the transfer forms for Sean Crum or Delmar Mills. The
statute has placed an obligation on the physician to perform
the specified evaluation, and then to sign or countersign the
certification. See section 1867(c)(1)(A)(ii), (iii). 15/
Therefore, the testimony of Pat White, R.N., concerning how
she made decisions about the patients' stability or
instability, and how she assessed the risks and benefits of
these patients' transfers, fails to establish compliance with
the requirements of either section 1867(c)(1)(A)(ii) or
(iii).
As discussed previously, I find it credible that Respondent
told Pat White to effectuate the transfers of Sean Crum and
Delmar Mills, that his instructions to Pat White included
having her fill out the necessary transfer forms on his
behalf (including placing his name on the forms), that Dr.
Hani refused to order the transfer of these patients, and
that Pat White asked Respondent to sign the transfer forms.
I note also that Respondent's contention was that the
patients should be transferred due to their need for surgery.
Under these circumstances, Respondent was the only physician
at ARH who could have, and should have, signed the
certifications required by statute.
In addition to the absence of any physician's certification
for the transfers, the evidence shows also that Sean Crum and
Delmar Mills were transferred to St. Mary's Hospital because
Respondent caused those in ARH's emergency room to believe
that St. Mary's Hospital's on-call surgeon, Dr. Arya, had
agreed to accept the transfers during his telephone
conversation with Respondent. See I.G. Ex. 2 at 9 - 10; I.G.
Ex. 3 at 8 - 10. It was not until Sean Crum and Delmar Mills
were en route to St. Mary's Hospital and Pat White called to
give St. Mary's a report on the patients' status that ARH was
told by St. Mary's Hospital that these patients had not been
accepted for transfer. Tr. 526. The physicians at St.
Mary's Hospital voiced their outrage that ARH was treating
its patients this way, and those physicians accused ARH's
doctors of having deliberately violated federal laws. I.G.
Ex. 4 at 4. A physician at St. Mary's Hospital even
instructed the nurses at ARH's emergency room to turn back
the ambulances transporting the two patients. Tr. 569 - 70.
However, ARH's emergency room was unable to communicate with
the ambulance and, therefore, both Sean Crum and Delmar Mills
were transported to St. Mary's Hospital. Tr. 570; I.G. Ex. 2
at 13 - 14; I.G. Ex. 3 at 22.
The evidence establishes that there was, in fact, no
agreement by St. Mary's Hospital to accept the transfer of
either Sean Crum or Delmar Mills. Dr. Hani stated that he
had never obtained St. Mary's acceptance for the transfers.
I.G. Ex. 12. No physician had signed the two patients'
transfer forms to certify that the receiving facility had
available space and qualified personnel for providing the
necessary care, or that the receiving facility had agreed to
accept the transfers. I.G. Ex. 2 at 9 - 10; I.G. Ex. 3 at 9
- 10. Dr. Arya, of St. Mary's Hospital, stated that he never
agreed to accept either of the patients for transfer when
Respondent spoke to him by phone concerning Sean Crum's
condition. I.G. Ex. 10; Tr. 300 - 04. Dr. Arya's testimony
is corroborated by the note Respondent made in Sean Crum's
record at 5 AM on September 15, 1991, which stated, "Dr. Arya
in Huntington -- wants the surgery done here." I. G. Ex. 3
at 4.
After having used his questioning of witnesses to raise the
possibility that Dr. Arya might have agreed to accept the
transfers (see, e.g., cross-examination of Dr. Arya),
Respondent admitted during the hearing that there was no
authorization received from St. Mary's Hospital for the
transfer of these two patients. Tr. 914. However,
Respondent attempted to extricate himself from the
consequences of his actions by noting repeatedly that he had
written various words of "advice" to Dr. Hani in the
patients' charts. In Sean Crum's medical records, Respondent
wrote also:
I advised Dr. Hani ER doctor to get proper
authorization and to transfer this patient to
Huntington/Charleston immediately . . . . The ER
doctor arranges the transport at this facility. He
feels he wants to wait for Helicopter. But I
advised him to arrange transfer after obtaining the
permission of the accepting party and to take
whatever transport available immediately, as soon
as possible.
I.G. Ex. 3 at 4. Respondent wrote these following notes in
Delmar Mills' records as well:
E.R. Doctor Hani is advised to transfer this
patient after getting proper authorization from
receiving facility. Take whatever transportation
available - now. [I.G. Ex. 2 at 4.]
I advised the E.R. Doctor again to get proper
authorization prior to transfer to Bigger Facility
Huntington/Charles and facilitate immediate
transfer. Dr. Hani feels he wants to wait for
helicopter to transfer. But I advised to take the
transport that is available now. Not to waste any
more time. [I.G. Ex. 2 at 6.]
E.R. Doctor advised to transfer this patient
after getting proper authorization from the
receiving facility. [I.G. Ex. 2 at 8.]
Notwithstanding the contents of these notes Respondent wrote,
there is no evidence to suggest that the nurses working in
ARH's emergency room that morning, Pat White and Judy
Hatfield, were informed by anyone that Respondent had failed
to obtain acceptance of the two patients' transfer to St.
Mary's Hospital. As discussed above, the evidence shows that
everything they heard from Respondent following his phone
call to Dr. Arya led them to believe that Respondent had
obtained acceptance for the transfers, and that Respondent
was the physician ordering these patients' transfers. Even
the directive Respondent testified to having uttered
immediately after his phone conversation with Dr. Arya,
"Prepare for transfer," could not have reasonably have led
those who heard it to suspect that St. Mary's might not have
accepted these two patients' transfer during the phone call.
Even though Respondent placed the above quoted notes in the
patients' files, Respondent does not allege that he conveyed
the substance of those notes to Pat White, who prepared the
transfer papers and obtained the use of ambulances under the
belief that Respondent was directing her to do so. Nor does
Respondent dispute the fact, apparent from these notes (i.e.,
despite having repeatedly written the word "advice,") that
Respondent himself made the determination as the on-call
surgeon that, as of 4:00 AM, these two patients should be
transferred immediately from ARH. I re-emphasize here my
earlier discussion and conclusion that it was Respondent, as
the on-call surgeon, who had the duty and the prerogative to
make the transfer decision, since the patients needed surgery
and the alleged reason for transferring them was to meet
their surgical needs.
Moreover, there is no evidence to show that Dr. Hani, to whom
Respondent's written "advice" was addressed, was made aware
before the two patients were taken away from ARH that
Respondent had written such "advice" in the patients' charts.
Dr. Hani stated in his Declaration 16/ that he had
refused Respondent's request to sign the "Emergency Services
Transfer Records" for Sean Crum and Delmar Mills. I.G. Ex.
12. Dr. Hani explained that his medical judgment was that it
would be medically inappropriate to transfer these patients
by ground ambulance to St. Mary's Hospital, given their
unstable medical condition. Id. Dr. Hani stated also that
he had no
personal knowledge of whether Respondent had secured the
acceptance of those patients from St. Mary's Hospital. Id.
17/
I view the "advice" Respondent wrote as self-serving and
without any legitimate purpose. To consider Respondent's
written statements as true "advice" to Dr. Hani, I would
first have to overlook the very considerable body of evidence
discussed above showing that, beginning at 4:00 AM,
Respondent had, in fact, made the transfer decisions and
begun to effectuate them through his directives to Pat White.
Even if I could resolve these inconsistencies and draw a
conclusion in Respondent's favor (which I have not done), it
is obvious that Respondent's writing such "advice" in the
charts was intended only to exculpate himself from the
consequences of the actions he had already taken.
In concluding that Respondent's "advice" was not written with
the intent to help bring the transfers of Sean Crum and
Delmar Mills within the requirements of the law, I note first
that Dr. Hani did not believe there to be any legitimate
reasons for transferring these patients. Respondent could
not have expected Dr. Hani to succeed in securing acceptance
for the transfers when Respondent was aware that Dr. Hani
objected to the transfers, had refused to sign the transfer
papers as requested by Respondent, and knew nothing of the
earlier phone conversation Respondent had held with Dr. Arya
to discuss the transfers. See I.G. Ex. 12. Since the
transfers were being made as a follow-up to Respondent's
conversation with Dr. Arya, 18/ then Respondent could not
have expected Dr. Hani to succeed in securing proper
authorization for the transfers, since Dr. Hani was not a
party to the phone call between Respondent and Dr. Arya.
Therefore, if there were any arguably legitimate reasons for
transferring Sean Crum and Delmar Mills, those reasons were
known only to Respondent, and could have been expressed only
by Respondent.
Under the foregoing circumstances, Respondent cannot relieve
himself of responsibility for having caused the transfers at
issue by writing some self-serving statements in the
patients' records -- especially when there is no evidence
that he had told anyone of their contents when there was
still time to abort the transfers he was causing to occur.
Section IV
In this section, I explain my reasons for having found and
concluded as follows:
23. During the period between 4:00 AM and the
time Sean Crum and Delmar Mills were transported
away from ARH (at approximately 7:30 and 8:00 AM,
respectively), these two patients' medical
conditions were repeatedly described as "unstable"
by Respondent, Dr. Hani, and the nurses who
evaluated these two patients.
24. Prior to transferring Sean Crum and Delmar
Mills from ARH at approximately 7:30 AM and 8:00
AM, respectively, neither Respondent nor any other
health care professional in ARH's emergency room
had made a determination that either of these two
patients' medical conditions had become stabilized,
within the meaning of section 1867(e)(3)(B).
The ambulance log shows that ARH requested transport for the
transfer of Sean Crum and Delmar Mills at 5:15 AM, that the
ambulances arrived at ARH at 5:30 AM, and that Sean Crum and
Delmar Mills were taken away from ARH at 7:30 AM and 8:00 AM,
respectively. I.G. Ex. 3 at 20.
Inasmuch as section 1867(c) of the Act applies only to the
transfer of an individual with an emergency medical condition
that has not been stabilized within the meaning of the Act,
Respondent has introduced expert testimony that Sean Crum and
Delmar Mills had, in fact, become stable at the time of their
actual transfers from ARH. E.g., Tr. 356 - 60, 367 - 69
(testimony of Dr. Hossein Sakhai) 19/; Tr. 437 - 38
(testimony of Dr. William Aaron); Tr. 606 - 7, 685 (testimony
of Dr. Paul Fowler). These experts, who were called by
Respondent to testify on this issue, never examined or
treated Sean Crum or Delmar Mills. They did not have the
opportunity to observe these two patients' conditions on
September 15, 1991. They derived their opinions solely from
a review of the medical records from ARH and St. Mary's
Hospital. (Of course, the St. Mary's Hospital's records were
not yet generated while the patients were at ARH.) The
experts called by Respondent based their conclusions of
"stability" primarily on the fact that the two patients not
only were being kept alive with the resuscitative efforts
given them in ARH's emergency room (e.g., the insertion of
chest tubes and the transfusion of blood), but their blood
pressure readings of record were also showing improvements.
Id. The improvements in the blood pressure readings
indicated that the rate of bleeding in the abdominal cavity
was not very serious, or that the patients' blood loss was
being adequately replaced at ARH. 20/ Id.
I recognize from the foregoing testimony that, when more
complete medical information is evaluated after the fact with
the benefit of 20/20 hindsight, some experts can conclude
that the emergency medical conditions of Sean Crum and Delmar
Mills had become stabilized within the meaning of section
1867(e)(3)(B) of the Act at the time they were taken away
from ARH at 7:30 AM and 8:00 AM, respectively. 21/
However, for purposes of deciding Respondent's liability
under section 1867 of the Act, I do not find it appropriate
to use the opinions given after the fact and with use of
information not available at the time of the alleged
violations. My reasons are based on my interpretation of
section 1867's intent (see Section V, below). I note by way
of background here that the statute has placed the duty on
those at the transferring institution to make certain
determinations based on the facts available to them at the
time of a transfer decision. See, e.g., section
1867(c)(1)(A)(ii) and (iii) of the Act. If the determination
made by the transferring institution pursuant to statute is
that a patient's condition is unstable, then the statute
dictates the actions which must be taken, without regard to
whether other experts might later disagree with the unstable
determination. Section 1867(c) of the Act.
Therefore, for purposes of deciding the liability issue, I
consider it material and of great significance that all the
evidence of record points to the conclusion that, during the
relevant hours on September 15, 1991, the health care
professionals who actually evaluated or cared for Sean Crum
and Delmar Mills at ARH's emergency room made explicit or
implicit findings that their medical conditions were unstable
-- and that the transfers were effectuated notwithstanding
those health care professionals' belief that the two
patients' medical conditions were unstable. There is no
credible evidence showing that any doctor involved in the
examination or treatment of these two patients at ARH had, in
fact, made a "stabilized" determination from the time
Respondent decided, at 4:00 AM, that the two patients should
be transferred, until the two patients were actually taken
away from ARH.
For example, as discussed earlier, Respondent said he thought
abdominal surgery was appropriate for both patients, at 4:00
AM, because their conditions were unstable (see Tr. 849, 853,
894), even though he began also to write at 4:00 AM that both
patients should be transferred (I.G. Ex. 2 at 17; Ex. 3 at
2). Dr. Arya testified that the information he received from
Respondent indicated that "the patient as described . . . may
not make it to us . . . ." Tr. 314. If Respondent had
described any of the two patients as having been stable or
stabilized during his telephone conversation with Dr. Arya,
Dr. Arya would not have refused to accept the transfer based
on his belief that a patient should be stable. See I.G. Ex.
1 at 6.
In addition, if Respondent had really thought either patient
had became stabilized by 4:00 or 5:00 AM, as he alleged
during the hearing (Tr. 878, 884), he would not have given
Pat White instructions on the preparation of the forms
necessary to transfer unstable patients in accordance with
the Act. (She filled out one transfer form at 5:00 AM, and
another one at 6:00 AM, pursuant to his instructions. I.G.
Ex. 2 at 9; I.G. Ex. 3 at 8 - 9; e.g., Tr. 505.) Even at
5:30 AM, when the ambulances arrived to transfer the two
patients (I.G. Ex. 2 at 12), Respondent wrote "I am willing
to do surgery here for Laparotomy." I.G. Ex. 2 at 6. The
final entries made by Respondent in the two patients' charts
were to the effect that Dr. Hani should secure proper
authorization for the transfers. E.g., I.G. Ex. 2 at 6, 8;
I.G. Ex. 3 at 4. In fact, Respondent confirmed on cross-
examination that it was his judgment that, for the entire
time the two patients were at ARH (from the time they arrived
until they left), abdominal surgery was necessary,
appropriate, and should have been done as soon as possible.
Tr. 894.
If, as he now alleges, Respondent had thought the two
patients had become stable while they were at ARH, 22/
there would have been no need for him to write repeatedly in
the patients' charts that Dr. Hani should secure "proper
authorization" for the transfers. Nor would there have been
a need for Respondent to continue to re-emphasize at the
hearing the notes he allegedly wrote as advice to Dr. Hani
for the effectuation of a lawful transfer applicable to
patients who have not been stabilized. E.g., Tr. 878.
Respondent wrote nothing in these two patients' medical
records to show that, on the morning of September 15, 1991,
he thought either patient had become stabilized at any time
while they were at ARH.
The additional evidence noted elsewhere in this decision
(e.g., Respondent's call to Dr. Arya, Respondent's statements
and instructions to the nurses and Dr. Hani, Dr. Hani's
objections to transfer, Pat White's preparation of the
transfer forms, and the contents of the transfer forms) leads
also to the conclusion that Respondent, along with everyone
else caring for the two patients in ARH's emergency room,
thought these patients' condition was unstable throughout
their time at ARH. Moreover, if Pat White had not contacted
St. Mary's Hospital when the ambulances were en route with
information that indicated the two patients' unstable
condition, the physicians at St. Mary's Hospital would not
have reacted so vehemently or accused ARH of having violated
federal laws. 23/ In Pat White's account of the
disagreement between Respondent and Dr. Hani concerning
whether the
patients should be transferred, Respondent was not heard to
have insisted on the transfers because he thought the
patients were stable.
The evidence shows that, in Sean Crum's chart especially, Dr.
Hani repeatedly used the word "unstable" to describe the
patient, in addition to having written "Dr. Cherukuri aware
of . . . unstable BP [blood pressure] -- wants to transfer
pt. . . . . Condition critical." I.G. Ex. 3 at 14. Aside
from the notations of "unstable" contained in the two
transfer forms discussed above, there is also Dr. Hani's
notation at the time the two patients were discharged from
ARH's emergency room for transfer, that their conditions were
"critical." I.G. Ex. 2 at 2; I.G. Ex. 3 at 18. 24/ The
foregoing evidence contemporaneously generated by Dr. Hani is
consistent with his subsequent Declaration, which states that
he was opposed to the transfers, that he had refused to sign
the transfer forms, and that he believed it medically
inappropriate to transfer either patient by ground ambulance,
given their unstable medical condition related to internal
bleeding. I.G. Ex. 12.
I think it significant also that, to date, no physician has
signed or countersigned ARH's transfer forms for Sean Crum or
Delmar Mills. As is obvious from their contents, these forms
need to be used in order to ensure (through a physician's
certification) that patients who are not stable within the
meaning of the Act do not undergo transfers which violate the
requirements of section 1867(c). See Tr. 229 - 30. No
physician signed them to certify that the elements of the
statute have been satisfied. Dr. Hani's refusal to sign
these forms is understandable, since he had opposed the
transfers due to his view that the patients' medical
conditions were unstable. I.G. Ex. 4 at 3; I.G. Ex. 12.
However, whether or not Respondent was too busy to read or
sign the transfer forms at the time Pat White completed the
forms at Respondent's request, Respondent had the opportunity
to read them or sign them later, because the originals of the
forms stayed with the patients' charts. Tr. 534. Yet only
his name (without his signature) appears on those forms. In
addition, if the transfer forms contained information
concerning the patients' stability which he thought was
inaccurate or misleading, Respondent certainly had the
opportunity to correct them before he appeared in person at a
hearing almost five years later. Id.
If Pat White thought the patients' conditions had become
stable, she had the same opportunity as Respondent to correct
any misinformation she might have placed into the emergency
transfer forms. Both Respondent and Pat White had an
incentive to correct anything they perceived to be
misstatements or inaccuracies on those transfer forms at a
much earlier time, since their names appear on the forms.
Yet, like Respondent, she did not begin to contradict or
"explain" her written words until almost five years later,
when she testified at the same hearing as Respondent. See,
e.g., Tr. 529 - 31. Even when she prepared the incident
report for ARH, shortly after St. Mary's Hospital called to
complain of a "dumping violation," Pat White never mentioned
that she or Respondent had believed that the patients were
stabilized at the time of the transfers. I.G. Ex. 4. Even
when an investigation was conducted on behalf of the federal
government in January of 1992, pursuant to charges that
section 1867 of the Act had been violated, neither Respondent
nor Pat White told the investigators that they thought Sean
Crum or Delmar Mills had been stabilized by the time each was
taken from ARH. I.G. Ex. 1; Tr. 213.
In sum, I have found no credible evidence establishing that,
prior to the time Sean Crum and Delmar Mills were taken from
ARH, Respondent or anyone else who evaluated or cared for
these patients at ARH's emergency room had ever changed their
opinion about the two patients' having unstable emergency
medical conditions. These health care professionals' words
and deeds throughout the time that the two patients were at
ARH's emergency room indicate that they thought the patients
were to be transferred to St. Mary's Hospital with an
unstable medical condition. Therefore, I find no adequate
basis for believing that, prior to the transfers on September
15, 1991, Respondent or other health care professionals at
ARH's emergency room had changed their opinion that Sean Crum
and Delmar Mills' emergency medical condition remained
unstable throughout the time they were at ARH.
Section V
In this section, I discuss my reasons for having found and
concluded as follows:
25. The intent of section 1867 of the Act is to
have the doctors actually involved with the
evaluation or treatment of patients at a
participating hospital's emergency room protect
their patients' health and safety by following (or
causing to be followed) the statutory requirements
of subsection (c), whenever and for so long as they
determine that the patients' medical condition is
"unstable."
26. A physician's duties under section 1867(c)
of the Act follow automatically from any
determination that a patient is "unstable," made
pursuant to a request for emergency medical
treatment, without regard for whether other experts
reviewing the same or additional information after
the fact would disagree with the "unstable"
determination.
27. Section 1867(c) of the Act's prohibitions
against transfers until patients have been
stabilized, became applicable to Sean Crum and
Delmar Mills pursuant to the determinations of
"unstable" made by Respondent and other health care
professionals in ARH's emergency room.
28. Section 1867(c) of the Act's prohibitions
against transfers until patients have been
stabilized remained applicable to Sean Crum and
Delmar Mills throughout the time they were at ARH.
I find untenable the legal theory implicitly advanced by
Respondent to avert liability: that even though on the
morning of September 15, 1991, Respondent and Dr. Hani had
determined that the patients' medical conditions were
unstable while they were in ARH's emergency room, Respondent
and others at ARH were not required to proceed in accordance
with section 1867(c) of the Act on that day because, several
years after the event, experts retained by Respondent for
litigation concluded from their review of medical documents
that the patients had become stabilized prior to or at the
time of their transfer. Section 1867 of the Act has placed
the duty to make determinations of "stability" on a
participating hospital with an emergency room (including the
doctors who are affiliated directly or indirectly with the
hospital) -- not on those experts retained to provide their
expert opinions after the fact. Where, as in this case,
"unstable" was the only determination explicitly and
implicitly made while the patients were in ARH's emergency
room, the statute required the taking of all actions
consistent with the "unstable" determination.
In an emergency situation, it is especially necessary and
appropriate for a hospital and its physicians to take actions
consistent with their evaluation of a patient's medical
condition. This means that if a patient is determined to be
unstable in the emergency room, the requirements of section
1867(c) must be followed without regard for whether other
professionals who did not evaluate or care for the same
emergency medical condition might agree at a later time that
a patient was stable. The health and safety of patients in
emergency rooms cannot be adequately protected unless the
obligations and liabilities specified by section 1867(c) of
the Act become applicable at the moment an "unstable"
determination is made by the doctor(s) charged with the
actual evaluation or treatment of those patients.
The intended beneficiaries of the statute are those
individuals who seek help at participating hospitals'
emergency rooms. For the safety and protection of these
individuals, such hospitals and their affiliated doctors
cannot be permitted to effectuate transfers in disregard of
the "unstable" determinations they make. Requiring adherence
to the requirements of section 1867(c) will cause no harm to
the intended beneficiaries of the Act even if the "unstable"
determination made at the time of their examination becomes
subject to disagreement after the fact. In contrast, the
health and safety of patients in emergency rooms can be
placed at risk if those professionals examining the patients
conclude that their medical condition is "unstable," but they
then fail to take all of the actions required by section
1867(c) of the Act for the protection of those patients'
health.
The facts of this case underscore the reasons why a
participating hospital, and the doctors working in its
emergency room, must take action consistent with the
"unstable" determinations they make. The evidence discussed
above leaves no doubt that, as of 4:00 AM on September 15,
1991, Sean Crum and Delmar Mills did not have stable medical
conditions. 25/ Resuscitative efforts had barely begun at
that point, and there was not yet any improvement in their
blood pressure readings. E.g., I.G. Ex. 2 at 11. If these
patients had been transferred at 4:00 AM, when Respondent
first indicated that the transfers should take place, the
patients' lives might have been jeopardized. However, the
weather conditions were poor that morning and prevented the
use of helicopter transport. E.g., Tr. 495 - 96, 982; I.G.
Ex. 3 at 18. Pat White testified that the ambulance service
was called pursuant to Respondent's directions only because
the helicopter could not fly that morning. Tr. 496. If the
weather had permitted the use of helicopter transport, it
seems extremely unlikely that the two patients would have had
the opportunity to remain in ARH's emergency room for several
hours and improve with the continued transfusion of blood and
fluids. Therefore, weather conditions prevented the
transfers at or near 4:00 AM, even though section 1867 of the
Act placed the responsibility for safeguarding patients'
health and safety with the hospital and its doctors.
For the protection of the individuals seeking treatment at a
participating hospital's emergency room, I deem the duties
under section 1867(c) of the Act to follow automatically from
a determination of "unstable" made pursuant to a request for
emergency medical treatment, without regard to whether other
experts reviewing the same information after the fact would
agree or disagree with the "unstable" determination. Under
the facts of this case, I conclude that the obligations
specified by section 1867(c) of the Act were triggered as
soon as Respondent and Dr. Hani made the determination that
Sean Crum and Delmar Mills each had an emergency medical
condition that was unstable. See sections 1867(b), (c),
(e)(1), and (e)(3)(A) of the Act. The duties under section
1867(c) of the Act remained applicable because the
determination of "unstable" was never changed to "stable"
or
"stabilized" by those physicians responsible for evaluating
these patients at ARH.
Section VI
In this section, I discuss my reasons for having reached the
following findings and conclusions:
29. Without the agreement of St. Mary's Hospital
to accept the transfers, the transfers of Sean Crum
and Delmar Mills were not the "appropriate
transfers" required by section 1867(c)(1)(B) of the
Act.
30. The transfers of Sean Crum and Delmar Mills
were made in violation of section 1867(c)(1), which
requires an "appropriate transfer" under
subparagraph (B), without regard to whether any of
the additional requirements of section
1867(c)(1)(A) have been satisfied.
31. It is immaterial whether St. Mary's Hospital
was a tertiary care facility or had the capacity to
treat the emergency medical conditions of Sean Crum
or Delmar Mills without advance notice.
I conclude that violations under section 1867(c) of the Act
have been established by the very fact that Sean Crum and
Delmar Mills were transferred without acceptance from St.
Mary's Hospital after they had been determined by Respondent
and Dr. Hani to be unstable. In addition to the various
alternative requirements specified in subpart (A) of section
1867(c)(1), 26/ subpart (B) mandates that the transfer
must also satisfy the definition of "an appropriate
transfer." Section 1867(c)(1)(B). As a matter of law, a
transfer is not "an appropriate transfer" if the receiving
facility did not agree to accept transfer of the patient and
to provide appropriate medical treatment. Section
1867(c)(2)(B)(ii).
I conclude that a violation of section 1867(c) has occurred
with respect to each of the two transfers discussed above,
even though Respondent has introduced evidence to show that
St. Mary's Hospital, as a designated trauma center, was
without any valid reason for refusing any transfer request
because it should have been in a state of constant readiness
to provide emergency care. E.g, Tr. 418 - 19. This line of
evidence introduced by Respondent is immaterial. 27/ The
statute does not require the securing of acceptance from only
those hospitals without trauma center designations. Being a
trauma center does not mean that the facility will never run
out of available space or qualified personnel for the care of
additional patients. See section 1867(c)(2)(B)(i) of the
Act. Moreover, the multiple notes Respondent wrote as
"advice" to Dr. Hani show that Respondent was well aware of
the requirement that the accepting facility's consent to the
transfers must be received prior to the transfers.
Respondent did not appear to have held the opinion, as
suggested by some of his witnesses, that St. Mary's agreement
to the transfers was not necessary.
Section VII
In this section, I discuss my reasons for having made the
following findings and conclusions:
32. Respondent was responsible for examining
Sean Crum and Delmar Mills while they were at ARH.
33. Respondent was responsible for unlawfully
transferring Sean Crum and Delmar Mills from ARH to
St. Mary's Hospital.
34. On the issue of Respondent's liability under
section 1867(d) of the Act, it is immaterial
whether Respondent should be classified as a
consulting physician, attending physician, or any
other type of physician.
35. Respondent did, in fact, make the decision
to transfer both Sean Crum and Delmar Mills.
36. As the on-call surgeon, Respondent has
liability under section 1867(d)(1)(B) for his
actions which resulted in the transfers of Sean
Crum and Delmar Mills in violation of section
1867(c) of the Act.
For purposes of ascertaining Respondent's liability, the
material issue is whether Respondent negligently violated a
requirement under section 1867 of the Act -- not whether
Respondent was the only person who violated said statute.
Clearly, Respondent did not act alone during the morning of
September 15, 1991. Neither Sean Crum nor Delmar Mills could
have been transferred if, for example, Pat White had not
effectuated Respondent's instructions by filling out the
transfer forms with the use of Respondent's initials or had
not called the transport service at his direction. However,
the Act does not specify that only one individual may be held
liable for negligent violation of the law. Nor does the
statute relieve Respondent of liability if someone else may
have been more responsible than he for having caused the
transfers under consideration. Every responsible physician
may be penalized for a violation of section 1867, even if
there are other physicians who may be subject to a penalty
for the same type of violation with respect to the same
individuals. See 42 C.F.R. § 1003.102(d)(4).
As noted already, Respondent was summoned to ARH the morning
of September 15, 1991, to examine Sean Crum and Delmar Mills.
His responsibility for examining these patients is not in
doubt. Section 1867(d)(1)(B) of the Act makes a physician
liable for his negligent violation of the law if he was
responsible for the examination, treatment, or transfer of a
patient in a participating hospital. Said section of the Act
specifically includes "a physician on-call for the care of
such an individual . . . ." Section 1867(d)(1)(B) of the
Act. Moreover, by its very definition, a "transfer" within
the meaning of the statute can be effectuated by any
individual with direct or indirect affiliation or association
with ARH. Section 1867(e)(4) of the Act. Respondent, as the
on-call surgeon, had such direct or indirect affiliation or
association with ARH on September 15, 1991.
Therefore, in determining Respondent's liability for the
events of September 15, 1991, I do not find it necessary to
adjudicate the merits of Respondent's proof that he did not
have the duties of an attending or treating doctor to Sean
Crum and Delmar Mills. See, e.g., Tr. 602 - 4, 616 - 19,
1013T. Whatever title Respondent might have had in his
relationship with Dr. Hani and the two patients, I have
concluded already that Respondent's words and deeds caused
Sean Crum and Delmar Mills to be transferred in contravention
of section 1867(c) of the Act. It was Respondent who had, in
fact, made the transfer decisions. Therefore, Respondent was
responsible for the transfers of Sean Crum and Delmar Mills.
In addition to Dr. Michael Hannigan's testimony that a
standard in the medical profession is for the surgeon to make
the transfer decision if the service needed is surgery (Tr.
107), even the expert opinions Respondent presented contain
support for the foregoing conclusions on Respondent's
responsibility for the transfers. Dr. Aaron, one of the
experts who testified for Respondent, said Respondent was a
consulting specialist to ARH's emergency department and its
doctor. Tr. 1013T. However, Dr. Aaron stated also that
Respondent had the qualification to make a determination as
to the patients' surgical stability and would be in a
position to decide whether the benefits of transfer would
outweigh its risks. Tr. 1036T. Dr. Aaron acknowledged that
Respondent had "made the medical judgment" and "required the
transfer" if (as the I.G. has successfully proven in this
case) Respondent had told the staff that he had obtained
acceptance of the transfers. Tr. 1037T. Another opinion Dr.
Aaron formed after reviewing the relevant documents was that
Respondent gave the order for transfer, though he did not co-
sign his order. Tr. 469 - 70. Dr. Fowler, also an expert
who testified for Respondent, pointed out that Respondent
"stepped in when he didn't have to." Tr. 616. The gist of
Dr. Fowler's opinion is that, even though Respondent did not
have to intervene in the decision to transfer the two
patients because Respondent never became their attending
physician, Respondent did intervene, nevertheless, to
effectuate the patients' transfers over Dr. Hani's refusal to
sign the necessary forms due to the patients' unstable
medical condition. Tr. 617 - 19. As also noted earlier, the
transfers were effectuated without the proper authorization
from the receiving hospital.
The evidence introduced by the I.G. shows that Respondent is
liable under section 1876(d)(1)(B) of the Act because: he was
the on-call surgeon for ARH during the morning in question;
he was affiliated or associated directly or indirectly with
ARH by virtue of his status as the on-call surgeon; he was
given the responsibility of examining Sean Crum and Delmar
Mills when he was summoned in his capacity as the on-call
surgeon; he assumed responsibility for the decision to
transfer these two patients; these two patients were, in
fact, moved to St. Mary's Hospital at the direction of
Respondent; and the transfers were done without compliance
with all the requirements of section 1867(c) of the Act.
Section 1867(e)(4) and (d)(1)(B) of the Act.
Section VIII
In this section I discuss my reasons for having made the
following findings and conclusions:
37. The Act relieves from liability only the
physician who "orders the transfer" of a patient
after he has made a determination that, without the
services of an on-call physician, the benefits of
transfer outweigh its risks. Section 1867(d)(1)(C)
of the Act.
38. As a matter of law, the affirmative defense
under section 1867(d)(1)(C) of the Act is not
available to a physician in Respondent's situation
who has not only denied having ever ordered either
of the transfers at issue, but who has also never
signed or counter-signed the transfer forms to
certify that he was the physician who made the
risk-benefit evaluation specified by law.
39. Respondent's affirmative argument that Dr.
John Thambi, the on-call anesthesiologist, had
refused to provide anesthesia to Sean Crum or
Delmar Mills at ARH bears on the degree of
Respondent's culpability, and the nature or
circumstances of the violation under section
1867(c) of the Act.
40. The degree of Respondent's culpability, and
the nature or circumstances of the statutory
violation, are relevant to the issue of whether the
amount of the civil monetary penalty assessed by
the I.G. is reasonable.
41. In determining the degree of Respondent's
culpability and the nature or circumstances of the
statutory violation, it is appropriate to consider
whether the following requirements of section 1867
have been violated also through Respondent's
actions or omissions:
A. that "the transferring hospital provides the
medical treatment within its capacity which
minimizes the risks to the individual's health . .
. ." (section 1867(c)(2)(A) of the Act);
B. that "the individual (or a legally
responsible person acting on the individual's
behalf) after being informed of the hospital's
obligations under this section . . . in writing
requests transfers to another medical facility . .
. ." (section 1867(c)(1)(A)(i) of the Act).
The I.G. has established a prima facie case of Respondent's
liability for the transfers of Sean Crum and Delmar Mills,
which were made without the agreement of the receiving
hospital and which, therefore, constituted violations of
section 1867(c) of the Act. Accordingly, Respondent was
entitled to prove any affirmative defenses which could
materially affect the existence or extent of his liability.
Section 1867(d)(1)(C) of the Act relieves a physician of
liability if he has authorized a transfer because an on-call
physician fails or refuses to appear within a reasonable
period of time after being notified to do so, and the
physician ordering the transfer has determined that, without
the services of the on-call physician, the benefits of
transfer outweigh the risks of transfer.
Respondent has asserted as an affirmative defense that he
advised the transfer of Sean Crum and Delmar Mills because he
lacked the services of an anesthesiologist to assist him in
performing the exploratory laparotomies he thought were
necessary and appropriate to stabilize the emergency medical
conditions of both patients. As noted above, Respondent had
written at 3:45 AM (for Sean Crum) and at 4:00 AM (for Delmar
Mills) his determination that this surgical procedure should
be done. However, at 4:00 AM, he also made written
determinations that each of these two patients should be
transferred immediately. At the time he was making the
foregoing notes, Respondent wrote also the following for
Delmar Mills:
Anesthesiologist not willing to put the pt to
sleep. He advised transfer immediately to Cable
Huntington hospital.
(I.G. Ex. 2 at 17), and the following for Sean Crum:
Dr. Thambi refused to give anesthesia.
(I.G. Ex. 3 at 2).
I conclude that, as a matter of law, the affirmative defense
under section 1867(d)(1)(C) of the Act is not available to a
physician in Respondent's situation. Respondent has not only
denied having ever ordered either of the transfers at issue,
but he has also never signed or counter-signed the transfer
forms to certify that he made the risk-benefit evaluation
specified by law. Very clearly, the statute relieves from
liability only the physician who "orders the transfer" after
he has made the determination that, without the services of
the on-call physician, the benefits of transfer outweigh its
risks. Section 1867(d)(1)(C) of the Act.
In this case, Respondent caused the transfers to occur under
the circumstances discussed above. 28/ For liability to
attach under section 1867(d)(1)(B) of the Act, Respondent
need only have been a physician "responsible for the
examination, treatment, or transfer . . . ." He did not need
to be the physician who ordered the transfer and made the
risk-benefit determination for the transfer. Section
1867(d)(1)(B) of the Act. By contrast, the exception to
liability created by section 1867(d)(1)(C) is available only
to a physician who takes the responsibility for ordering a
transfer after having made a determination regarding the risk
of a transfer as opposed to the benefit of a transfer in the
absence of a needed on-call physician.
In this case, Respondent has denied responsibility for the
transfers at issue and has failed or refused the opportunity
to sign the transfer certifications containing the risk-
benefit analysis prepared for him by Pat White. Accordingly,
Respondent cannot avail himself of the affirmative defense
under section 1867(d)(1)(C) of the Act to escape liability.
However, I will evaluate Respondent's allegations concerning
the unavailability of an anesthesiologist's assistance,
because the merits of such allegations have relevance to
other issues in this case which bear on the reasonableness of
the penalty imposed against Respondent.
I note first that, in addition to requiring the transferring
hospital to secure the acceptance of the receiving facility,
the definition of an "appropriate transfer" requires also
that the transferring hospital "provides the medical
treatment within its capacity which minimizes the risks to
the individual's health . . . ." Section 1867(c)(2)(A) of
the Act. Here, it is Respondent's contention that he wanted
to do abdominal surgery on Sean Crum and Delmar Mills at ARH,
even after having told the nurses to prepare for the
patients' transfer, and that he would have done such surgery
prior to their transfer had Dr. Thambi not refused to provide
anesthesia. 29/ Therefore, the issue of whether ARH (with
Respondent as its on-call surgeon) provided medical treatment
within its capacity to Sean Crum and Delmar Mills to minimize
the risks to their health, as required by section
1867(c)(2)(A) of the Act, depends, in turn, on the merits of
Respondent's contention that Dr. Thambi had refused or failed
to provide anesthesia.
Even though I have found already that the absence of
agreement by St. Mary's Hospital has rendered the transfers
under consideration inappropriate under section 1867(c)(2)(B)
of the Act, whether other sections of the Act have been
violated due to Respondent's negligence bears on the issue of
how much of the CMP imposed against him is reasonable. Under
the regulations specifying those factors to be considered in
setting the CMP amount, the I.G. was required to consider the
degree of Respondent's culpability and the nature or
circumstances of the violations. 42 C.F.R. § 1003.106(a)(4).
For the same reasons, I now consider the merits of the
allegations concerning Dr. Thambi's unavailability as it
bears on the issue of whether those legally responsible for
Sean Crum and Delmar Mills gave their consent to transfer,
after being informed of ARH's obligations under section 1867.
See section 1867(c)(1)(A)(i) of the Act. 30/ As
indicated above, because Respondent had caused the transfers
to be made in the absence of any agreement from St. Mary's
Hospital, this fact alone was sufficient to establish
Respondent's liability under section 1867 of the Act. To
resolve the question of whether Respondent was liable for a
negligent violation of section 1867(c), it was not necessary
for me to analyze also whether, for example, the transfers
were made after the two patients' families were told of ARH's
obligations under section 1867. See section
1867(c)(1)(A)(i). However, what information the parents of
Sean Crum and Delmar Mills were given by Respondent and
others at ARH concerning ARH's obligations prior to transfer
bears on the extent of the statutory violations and the
nature or circumstances of the violations. The extent to
which section 1867 of the Act has been violated, and how such
violations occurred, are factors relevant to the issue of
whether the CMP amount assessed by the I.G. is reasonable.
Section IX
In this section, I discuss my reasons for having found and
concluded as follows:
42. I do not find credible Respondent's
contention that Dr. Thambi failed or refused to
appear at ARH's emergency room within a reasonable
period of time after having been notified to do so.
43. I do not find credible Respondent's
contention that he directed or instructed Dr.
Thambi to administer anesthesia to Sean Crum or
Delmar Mills.
44. I do not find credible Respondent's
contention that Dr. Thambi refused to administer
anesthesia to either Sean Crum or Delmar Mills.
45. Since Respondent believed that surgery was
appropriate, it was Respondent's duty (as the on-
call surgeon) to direct Dr. Thambi to administer
anesthesia and to eliminate any misunderstanding
that may have existed as to whether Respondent
wanted to proceed with surgery.
46. Respondent failed to exercise his authority
over Dr. Thambi to ensure that the necessary
surgery could be performed on Sean Crum and Delmar
Mills at ARH.
47. I do not find that Respondent's culpability
for the unlawful transfers of Sean Crum and Delmar
Mills has been lessened by the evidence relevant to
Respondent's assertion that Dr. Thambi's services
were not available.
48. The evidence relevant to Respondent's
assertion that Dr. Thambi's services were not
available establishes that Respondent had
responsibility also in violating, with respect to
the transfers of Sean Crum and Delmar Mills:
A. section 1867(c)(2)(A)'s requirement that ARH
provide "the medical treatment within its capacity
which minimizes the risks to the individual's
health . . . .";
B. section 1867(c)(1)(A)(i)'s prohibition
against transferring an individual unless "the
individual (or a legally responsible person acting
on the individual's behalf) after being informed of
the hospital's obligations under this section . . .
in writing requests transfer to another medical
facility . . . ."
49. Respondent was in the best position to
satisfy the requirements of section 1867(c)(2)(A)
of the Act, by providing, on behalf of ARH, the
medical treatment within its capacity, in order to
minimize the health risks to Sean Crum and Delmar
Mills prior to their transfers.
50. Respondent was in the best position to
satisfy the requirements of section
1867(c)(1)(A)(i), by informing the families of Sean
Crum and Delmar Mills that ARH's on-call surgeon
had a duty to perform the necessary surgery at ARH
and, if appropriate, to direct its on-call
anesthesiologist to provide his services as well.
51. The evidence relevant to Respondent's
assertion that Dr. Thambi's services were not
available, together with other evidence discussed
in sections III and VIII for FFCL 19, 21, and 38,
regarding the failure of the physician to sign or
counter-sign the certifications, above, establishes
that Respondent had responsibility for transferring
Sean Crum and Delmar Mills, in violation of section
1867(c) of the Act, when none of the exceptions
specified in section 1867(c)(1)(A) were applicable.
52. The evidence relevant to Respondent's
assertion that Dr. Thambi's services were not
available, together with the evidence discussed in
sections II, III, and VI, for FFCL 13, 19, 22, and
29 (regarding the absence of acceptance by St.
Mary's Hospital), above, establishes that
Respondent is responsible for having caused the
transfers of Sean Crum and Delmar Smith in
violation of the "appropriate transfer" requirement
of section 1867(c)(1)(B) on two grounds:
A. by failing to provide the medical treatment
within ARH's capacity in order to minimize the
health risks to Sean Crum and Delmar Mills (see,
section 1867(c)(2)(A) of the Act); and
B. by failing to obtain St. Mary's Hospital's
agreement to accept the two transfers (see, section
1867(c)(2)(B)(ii) of the Act).
In deciding the degree of Respondent's culpability, I begin
by noting that there is no dispute among the medical experts
that abdominal surgery could not have been performed on Sean
Crum or Delmar Mills without the services of an
anesthesiologist. E.g., Tr. 153. Nor is there any dispute
that Dr. Thambi was contacted at his home by ARH in his
capacity as the on-call anesthesiologist during the morning
of September 15, 1991. I.G. Ex. 9. Dr. Thambi could have
reached the hospital from his home in 15 minutes or less.
Tr. 483, 876T. Dr. Thambi admitted that he did not go to the
hospital until sometime after 6:40 AM and before 6:55 AM.
Tr. 875T; I.G. Ex. 2 at 7. He admitted also that he was not
in favor of administering anesthesia to patients such as Sean
Crum and Delmar Mills, who had head injuries. E.g., I.G. Ex.
9. Additionally, there is no dispute that, if a surgeon
decides that surgery should be performed, it is the surgeon's
duty to tell the anesthesiologist to administer anesthesia,
and it is the surgeon's responsibility to resolve any
misunderstandings that may exist with the anesthesiologist.
Tr. 980T, 1009T.
As detailed below, Respondent's position is that, not only
did Dr. Thambi fail or refuse to come to the emergency room
within a reasonable period of time after having been notified
to do so repeatedly, Dr. Thambi had also outright refused to
administer anesthesia to the two patients when Respondent
spoke with him by phone and in person. Dr. Thambi's version
of events, as will be discussed also below, is that prior to
the telephone call he received at approximately 6:30 AM from
Respondent, no one at ARH had asked him to come in to the
emergency room after he had reminded them of ARH's
longstanding policy of transferring all head injury cases to
other hospitals. Dr. Thambi contends also that he was never
asked to evaluate Sean Crum for anesthesia.
Having considered the conflicting version of events, I
conclude that there is insufficient credible evidence to
support Respondent's contention that Dr. Thambi failed to
come to the emergency room when he was initially instructed
to do so prior to the 6:30 AM phone call. I conclude also
that there is insufficient credible evidence to support
Respondent's contention that he had directed Dr. Thambi to
administer anesthesia to either Sean Crum or Delmar Mills.
Accordingly, there is insufficient evidence to support
Respondent's contention that Dr. Thambi refused to administer
anesthesia.
I begin chronologically, with the first telephone call made
from ARH's emergency room to Dr. Thambi. The evidence is
relatively consistent in establishing that Dr. Thambi was
first contacted by telephone between 4:00 AM to 4:30 AM
during the morning in question. However, there are conflicts
in the evidence concerning who actually spoke to Dr. Thambi
by phone during this period of time and what was said.
According to Pat White, it was she who placed the first call
to Dr. Thambi at Respondent's request, after Respondent had
examined all five victims of the car accident who were in
ARH's emergency room, and after Respondent had decided to
perform surgery on Sean Crum and Delmar Mills. Tr. 480.
Given Respondent's testimony that he did not decide to do
surgery until about 4:00 AM (Tr. 849, 853), after having used
the 15 minutes after his arrival at the emergency room to
establish the diagnosis of internal injuries (Tr. 848), it is
unlikely that Pat White placed the call to Dr. Thambi until
at least 4:00 AM.
Dr. Thambi's testimony concerning the first telephone call he
received during the morning in question is generally
consistent with the account provided by Pat White, who
testified also that she never specifically told Dr. Thambi to
come to the hospital, but had said, instead, that Respondent
needed him because some of patients involved in a car
accident were critically injured. Tr. 481 - 83. At first,
Dr. Thambi testified to having received a call at between
4:15 and 4:30 AM, but he could not remember who had made the
call to him. Tr. 254. However, when recalled as a witness
several weeks later, he testified that the initial call was
made to him by a nurse (possibly Pat White) at sometime
between 4:00 to 4:15 AM and that the nurse asked him to come
into the hospital because two patients with abdominal as well
as head injuries needed surgery. Tr. 874 -75T. 31/ Dr.
Thambi denied having spoken with Respondent at that time or
having been told by Respondent of any decision to do surgery.
Tr. 876T. Pat White's testimony at hearing did not indicate
that she told Dr. Thambi during the first phone call that
Respondent had decided to do surgery on any patient.
However, Respondent alleges to have spoken with Dr. Thambi by
telephone at approximately 4:00 AM, and to have told Dr.
Thambi at that time that the two patients needed abdominal
surgery immediately, despite their head injuries. Tr. 849.
According to Respondent's account of the facts, Dr. Thambi
stated during the 4:00 AM telephone call with Respondent that
he would not put the patients "to sleep" because they had
head injuries. Id. Respondent testified that he told Dr.
Thambi during this 4:00 AM phone call to come to the
emergency room and that Dr. Thambi said he would do so. Id.
Respondent alleged also by his testimony that he instructed
Pat White to call Dr. Thambi again, after Dr. Thambi failed
to arrive at the hospital within 15 minutes of the telephone
call at 4:00 AM. Tr. 850. Respondent claims to have made
three calls to Dr. Thambi. Tr. 854.
Pat White testified that she also called Dr. Thambi at least
three times before Respondent "finally had to end up calling
him." Tr. 484. Whether or not she did, in fact, make three
additional calls to Dr. Thambi, Pat White's testimony
indicates the elapse of some time between when she first
called Dr. Thambi at approximately 4:00 AM, and when
Respondent "finally" spoke to Dr. Thambi. Nothing said by
Pat White at hearing indicated that there was any reason for
Respondent to call Dr. Thambi immediately after she concluded
her initial call to him. Therefore, the testimony provided
by Pat White at hearing appears to be consistent with Dr.
Thambi's contention that he never spoke with Respondent by
telephone until approximately 6:40 AM. Tr. 874 - 76T.
However, even though Pat White's testimony appears to support
Dr. Thambi's account of having not spoken to Respondent until
approximately 6:40 AM, there is a part of the incident report
Pat White prepared for ARH shortly after September 15, 1991,
which lends support to Respondent's testimony that he spoke
with Dr. Thambi at approximately 4:00 AM. Pat White stated
in the incident report that, prior to Respondent's calling
Dr. Arya of St. Mary's Hospital, Respondent had called Dr.
Thambi for anesthesia, hung up the telephone, and then told
everyone that the patient needed to be transferred because
Dr. Thambi did not want to "put him to sleep." I.G. Ex. 4 at
3. Pat White's statement in the incident report is generally
consistent with Respondent's notation in Sean Crum's chart
that Dr. Thambi was "not willing to put the pt to sleep. He
advised transfer immediately . . . ." I.G. Ex. 2 at 17.
Based on the foregoing material conflicts in the evidence
concerning what, if any, conversation took place between Dr.
Thambi and Respondent at or around 4:00 AM, I conclude that
there is no preponderance of any credible evidence
establishing that Respondent spoke to Dr. Thambi at
approximately 4:00 AM. Therefore, I do not find adequate
support for Respondent's contention that Dr. Thambi refused
to administer anesthesia when asked to do so at or around
4:00 AM.
Nor do I find sufficient credible evidence to support
Respondent's contention that he and Pat White made several
telephone calls to Dr. Thambi between approximately 4:00 AM
and 6:30 AM, in order to seek his assistance at surgery
(e.g., Tr. 484, 854). Respondent asserts this to show that,
by failing to come to ARH's emergency room for approximately
two and one half hours, Dr. Thambi was exhibiting his refusal
to provide anesthesia to Delmar Mills and Sean Crum. I do
not find such evidence credible, for essentially the same
reasons as those (to be discussed below) which led me to
disbelieve Pat White's testimony that, after Dr. Thambi
arrived in the emergency room, she heard Dr. Thambi tell
Respondent that he was refusing to give anesthesia to the two
patients. See Tr. 487. I have not found sufficient
evidentiary support for Respondent's contention that Dr.
Thambi uttered any outright refusal to administer anesthesia
during the morning in question.
What I find believable is that, on the morning of September
15, 1991, Dr. Thambi was reluctant to administer anesthesia
to patients with head injuries. However, the evidence does
not establish that on the morning of September 15, 1991, Dr.
Thambi was told to administer anesthesia to Sean Crum or
Delmar Mills by either Respondent, in his capacity as the on-
call surgeon, or by Pat White, in her capacity as ARH's house
supervisor. I find it very likely that the actions and
inactions of Dr. Thambi, Respondent, and Pat White on
September 15, 1991, were driven by ARH's longstanding policy
to transfer all patients with head injuries.
The evidence introduced by both parties shows that, in
September 1991, ARH had a practice of transferring all
patients with head injuries to another medical facility.
Denise Smith, R.N., was called to testify by Respondent. Her
credentials include being Board Certified in conducting
utilization reviews, having worked at ARH for eight years
(including 1991), having worked in ARH's emergency room when
extra help was needed, and having been in charge of all
operations at ARH as the house supervisor during various
shifts and on weekends. Tr. 734 - 36. Ms. Smith testified
that ARH transferred all patients with head injuries during
the eight years she worked there. Tr. 746. Judy Hatfield,
the registered nurse who was working in the emergency room
during the morning of September 15, 1991, testified also that
ARH's practice, for the two years she worked there, was to
transfer all patients with head injures to other facilities.
Tr. 752. Dr. Thambi testified also that there was an
unwritten policy in the anesthesiology department of ARH
against providing anesthesia to patients with neurological
problems. Tr. 285 - 86. Dr. Thambi said that, during all
his time at ARH, he had never dealt with a patient with
neurological injuries who was given abdominal surgery. Tr.
286. He had worked with Respondent since 1983, and together
they had done approximately 50 cases per year between 1984
and 1991. Tr. 249 - 50. Respondent did not cite one
instance in which he had performed surgery of any type at ARH
on a patient with a head injury.
Given ARH's longstanding policy to transfer all patients with
head injuries, I cannot reject the explanations provided by
Dr. Thambi concerning why he did not go to ARH for
approximately two and one half hours after having received an
initial phone call from a nurse. Dr. Thambi testified that
he received only two phone calls from ARH during the morning
in question: the initial call from a nurse (probably Pat
White), at between 4:00 AM to 4:30 AM, and a later one from
Respondent, at approximately 6:40 AM. Tr. 874 - 76T. 32/
Dr. Thambi testified that he did not go to ARH in response
to the first telephone call because he had told the nurse
caller that all patients with head injuries were to be
transferred from ARH without regard for their other problems,
and the nurse caller appeared to have accepted his
explanations. Tr. 875.
Given ARH's longstanding policy to transfer all patients with
head injuries, I also cannot reject Dr. Thambi's testimony
that, after he arrived at ARH in response to Respondent's
telephone request at approximately 6:40 AM, Respondent
appeared uninterested in, or not serious about, doing
abdominal surgery. Tr. 257 - 59.
In this case, what happened to Sean Crum and Delmar Mills was
precisely the result which would have been achieved had there
been a conscious effort by everyone involved with the two
patients' care at ARH to apply ARH's longstanding policy:
the transfer of these two patients to another facility
without having performed abdominal surgery on them at ARH
because they had head injuries. Expressing a need to do
surgery at ARH on these two patients, and then taking the
actions necessary to actually perform surgery on these two
patients, would have been contrary to ARH's longstanding
transfer policy. Therefore, it seems logical that there
should exist some documentation describing the details of the
efforts to secure Dr. Thambi's services for surgery, and the
responses from Dr. Thambi when the alleged actions of the
surgeon and the emergency room staff 33/ (if believed)
would constitute an unprecedented deviation from ARH's
longstanding policy of transferring all patients with head
injuries to other facilities.
In addition, I expected detailed documentation to exist, due
to the seriousness of the events alleged by Respondent and
Pat White. The evidence before me establishes that it would
be extremely unusual for any anesthesiologist to refuse to
administer anesthesia when directed to do so by a surgeon.
See, e.g., Tr. 112, 169, 173, 924; I.G. Ex. 10. Therefore,
even disregarding ARH's longstanding transfer policy, just
the sheer magnitude and unprecedented nature of the events
alleged by Respondent and Pat White should have caused them
to make detailed written summaries of what took place and
when.
Yet, what Pat White wrote shortly after the incident
concerning the chronology of contacts with Dr. Thambi and his
responses to those contacts on the morning of September 15,
1991, consisted primarily of those brief summaries provided
by Respondent. E.g., I.G. Ex. 4. What Respondent recorded
consisted of very cursory summaries of responses attributed
to Dr. Thambi, without setting forth the context of what Dr.
Thambi was told or was asked to do by Respondent. E.g., I.G.
Ex. 2 at 17. Even though Respondent contends that Dr. Thambi
refused to administer anesthesia, he admitted that there
exists no document showing that Respondent directed Dr.
Thambi to do so. Tr. 926. 34/
Even though making notes of their contacts with Dr. Thambi
should not have been a top priority for either Respondent or
Pat White while they were in the emergency room on the
morning of September 15, 1991, there were other opportunities
to document their alleged efforts and results. I note, for
example, that Pat White prepared an incident report for ARH
shortly after the events in issue. In this incident report,
she did not mention any repeated telephone calls for Dr.
Thambi to come and administer anesthesia. I.G. Ex. 4. When
an investigation was conducted of the charges that Sean Crum
and Delmar Mills had been transferred in violation of federal
law, there was no mention of any repeated telephone calls to
Dr. Thambi, or any allegation that Dr. Thambi had failed to
arrive timely in response to those repeated phone calls. See
I.G. Ex. 1.
In addition, if Dr. Thambi had, indeed, refused or failed to
appear within a reasonable time to help provide the necessary
stabilization treatment, ARH was required by law to forward
Dr. Thambi's name and address to St. Mary's Hospital.
Section 1867(c)(2)(C) of the Act. Since Respondent is the
one who alleges that he was unable to do the necessary
stabilization surgery due to Dr. Thambi's failure or refusal
to administer anesthesia, it was incumbent upon Respondent to
make sure that said information (if true) was conveyed as
required by law. Yet, neither Respondent nor ARH sent any
such information to St. Mary's Hospital, and there is no
evidence that Respondent or Pat White urged that such
information be sent. In fact, the "Emergency Services
Transfer Record" forms completed by Pat White under
Respondent's directive contain the following item:
List name and address of any on-call physician
who failed or refused to appear within a reasonable
period of time after being notified:
I.G. Ex. 2 at 9; I.G. Ex. 3 at 8 - 9. This item was left
blank in the transfer forms for both Sean Crum and Delmar
Mills. Id.
At the time of the transfers at issue, Respondent had the
additional incentive to provide detailed documentation of all
his cases pursuant to a settlement agreement he had reached
with the Kentucky Board of Medical Licensure. I.G. Ex. 16 at
5 - 8. The I.G.'s evidence shows that, in order to resolve
the complaint brought by the Kentucky Board of Medical
Licensure concerning Respondent's treatment or care of 81
patients, Respondent had agreed to the terms of a Corrective
Action Plan, which required Respondent to, inter alia,
indicate with specificity "the physician's plan for
treatment" and to attend scheduled continuing medical
education courses "specifically addressing the preparation of
medical records and hospital charts." Id. at 6, 7.
Respondent entered into this agreement with the State in July
of 1990. Id. at 5.
In deciding whether Dr. Thambi had failed to appear timely or
had refused to administer anesthesia at any time prior to the
patients' transfers, I find it significant also that
Respondent was ARH's Chief of Surgery and Chief of Staff
during the relevant period of time. Tr. 937. There is no
evidence that, prior to September 15, 1991, he had ever
voiced any objection to ARH's longstanding policy of
transferring all patients with head injuries without treating
their other medical conditions. It is difficult to believe
that, on the morning of September 15, 1991, Respondent
decided to perform operations contrary to ARH's longstanding
transfer policy, but did not consider it necessary to
document, in detail, his reasons for proceeding against said
policy. Nor did Respondent, in his capacity as the on-call
surgeon, as the Chief of Surgery, or as the Chief of Staff,
file any formal complaint against Dr. Thambi concerning the
events of September 15, 1991. Tr. 936. 35/ Respondent's
failure to file any complaint against Dr. Thambi concerning
the events of September 15, 1991, is remarkable also because,
according to Respondent, he (in his capacity as ARH's Chief
of Surgery) had previously told Dr. Thambi that he must
change his conduct by responding to calls in a more timely
manner. Tr. 938 - 39. According to Respondent, a written
reprimand letter would have been issued by the Executive
Department if Dr. Thambi had failed to change his ways. Tr.
940. (In his additional capacity as ARH's Chief of Staff,
Respondent was the Chairman of the Executive Committee. Tr.
941.) Yet, no letter of reprimand was issued by the
Executive Committee Respondent chaired, even though
Respondent now complains that Dr. Thambi had, after warning,
failed to respond timely to calls on September 15, 1991. See
Tr. 937, 987 - 88T.
I think it significant also that, on the morning of September
15, 1991, Pat White was the Relief House Supervisor and,
therefore, in charge of the entire hospital. Tr. 476 - 77.
It does not appear likely that, in said capacity, she would
have assisted in any unprecedented deviation from ARH's
longstanding transfer policy without providing detailed
explanations of the circumstances and reasons for doing so
at, or shortly after, the time of the events. Yet, as noted
earlier, the documents she generated, after the fact, were
either cursory in nature or did not contain the information
she now alleges.
Pat White's position as the Relief House Supervisor on the
morning in question is significant also because, if Dr.
Thambi had, in fact, done or failed to do what is now being
alleged, Pat White had the authority to take significant
actions against Dr. Thambi in her capacity as the Relief
House Supervisor in charge of ARH that morning. However, in
her capacity as the Relief House Supervisor in charge of ARH,
she has never filed any complaint against Dr. Thambi alleging
that he failed to respond to phone requests timely, or
refused to administer anesthesia when requested to do so on
September 15, 1991.
Even though Pat White testified at the hearing that she
witnessed Dr. Thambi's refusal to administer anesthesia after
he had arrived at the emergency room (Tr. 487), I do not find
this testimony credible. This alleged event was not recorded
by Pat White in any document she generated on or shortly
after September 15, 1991. In addition, there is no evidence
indicating that, as the Relief House Supervisor in charge of
ARH that morning, she ever told Dr. Thambi that he should
administer anesthesia if Respondent told him to do so. 36/
Nor did Pat White allege that Respondent had asked her, in
her capacity as the Relief House Supervisor in charge of ARH
on September 15, 1991, to instruct Dr. Thambi to provide
services as Respondent directed. Whether or not a hospital
official has the authority to demand or order an
anesthesiologist to administer anesthesia in a particular
case (see Tr. 980T), a hospital official can be reasonably
expected to take actions to affirmatively support a surgeon's
orders to an anesthesiologist (see Tr. 987 - 88T), especially
when the allegation is that the lives of patients with
emergency medical conditions have been jeopardized by the
anesthesiologist's failure or refusal to act. As pointed out
also by Dr. Thambi, the utterance of the head of a hospital
has weight in these situations, since the physicians are
given privileges to practice by the hospital. Tr. 262.
According to Pat White, what she did while Delmar Mills and
Sean Crum were in ARH's emergency room was to make some brief
phone calls to Dr. Thambi to say that Respondent needed him
(e.g., Tr. 482 - 84), in addition to having attempted to
secure alternative anesthesiology services and to contact
ARH's Administrator (Tr. 489 - 90). Pat White testified at
the hearing that she had attempted to call ARH's
Administrator at his home, but was told that he was out of
town. Tr. 535. However, she does not remember whether she
attempted to call the Assistant Administrator, who would have
been the person in charge of the hospital in the
Administrator's absence; she did not contact the Nursing
Supervisor, the next ARH official in the chain of command,
until later the following day. Id.
Pat White's lack of action commensurate with her authority as
the Relief House Supervisor in charge of the entire hospital
that morning is not consistent with the allegations that Dr.
Thambi acted in contravention of his duty as an on-call
anesthesiologist to appear timely at the hospital and to
provide the services he was directed to provide by the
surgeon. Nor is her failure to take action commensurate with
her role as the Relief House Supervisor consistent with the
theory that Sean Crum and Delmar Mills were transferred due
to the unavailability of an anesthesiologist. Dr. Thambi,
the on-call anesthesiologist, was within 15 minutes of ARH.
The evidence fails to establish that either Respondent or Pat
White took the actions necessary and appropriate to bring him
into the hospital and have him administer anesthesia if
directed to do so. Thus, I cannot conclude that no
anesthesiologist was available for the two patients'
abdominal surgery at ARH on the morning of September 15,
1991.
My decision to reject Respondent's version of his dealings
with Dr. Thambi on September 15, 1991, reflects also my view
that Respondent is not a credible witness. Even though the
available evidence does not enable me to determine with
certainty the contents of the conversations held between Dr.
Thambi and Respondent on September 15, 1991, Respondent's
testimony was so equivocal on related matters that I am not
able to believe that he has given me an honest account of his
exchanges with Dr. Thambi on the morning in question. For
example, Respondent first admitted that, after he received
notice of the I.G.'s position in this case during 1995,
Respondent contacted Dr. Sakhai and told Dr. Sakhai that he
(Dr. Sakhai) had accepted the transfers of Sean Crum and
Delmar Mills. Tr. 916 - 17. Respondent then changed his
testimony. Tr. 919 - 21. I note in addition that Respondent
first testified to not being aware of any complaints filed
against him concerning his professional activities or
practices at ARH. Tr. 945 - 46. However, after consultation
with his counsel, Respondent admitted that there were
complaints against him. Tr. 951. Only after having been
pressed for additional answers to more specific questions on
this issue did Respondent admit that he had problems with the
inappropriate admissions of one or two patients and that his
privileges at ARH had been limited as a result of his having
provided medically unnecessary pacemakers to patients. Tr.
951 - 63. Subsequently, the I.G. established, on rebuttal,
that Respondent had notice of the complaints received by the
Kentucky Board of Medical Licensure, in 1990 and thereafter,
concerning the care Respondent had rendered to numerous
patients, including some at ARH. I.G. Exs. 16, 17.
Respondent's lack of candor is shown also by the fact that,
even though Respondent ultimately admitted that he had never
obtained acceptance from Dr. Arya for the transfers of Sean
Crum or Delmar Mills (e.g., Tr. 914, 928), Respondent had
given testimony which conveyed the impression that Dr. Arya
may have accepted the patients for transfer (e.g., Tr. 851).
Such equivocal and misleading information provided by
Respondent has caused me to doubt the truth of the facts he
has asserted.
For the foregoing reasons, I do not find that Respondent's
culpability for the unlawful transfers of Sean Crum and
Delmar Mills has been lessened by the alleged unavailability
of an anesthesiologist. Instead, the evidence shows that the
failure of Respondent, as ARH's on-call surgeon, to direct
Dr. Thambi to administer anesthesia to Sean Crum and Delmar
Mills for the surgery Respondent thought was medically
appropriate, resulted in ARH's failure, as well as in
Respondent's failure, to provide the medical treatment within
their capacity to minimize the risks to those patients'
health prior to transfer. See section 1867(c)(2)(A) of the
Act.
When the lives of patients hang in the balance, a surgeon in
Respondent's position is not excused from making clear his
directives to an anesthesiologist. Even Dr. Aaron, one of
Respondent's expert witnesses, testified that it was
Respondent's duty to speak to Dr. Thambi if there were
ambiguities concerning the availability of anesthesia for
surgery. Tr. 1009T. There is no evidence that the duty was
on anyone other than Respondent to resolve such ambiguities.
Accordingly, the record establishes that, on September 15,
1991, Respondent acted in dereliction of his statutory duties
to Sean Crum and Delmar Mills by failing to specifically tell
Dr. Thambi to administer anesthesia for a surgery Respondent
felt was necessary; seeking to rely on the inferences which
might have been created by Dr. Thambi's words or deeds; and
acquiescing to ARH's longstanding unwritten policy to
transfer all patients with head injuries.
These same facts and considerations have led me to reach the
related conclusion that neither Respondent nor anyone else
acting on behalf of ARH on the morning of September 15, 1991,
fully or accurately explained ARH's obligations under section
1867 of the Act to the families of Sean Crum or Delmar Mills
before persuading them that these patients should be
transferred. See section 1867(c)(1)(A)(i) of the Act.
Whereas Respondent has introduced the testimony of himself,
Pat White, and Judy Hatfield, to support the contention that
the patients' families were made aware of the risks of the
transfers before they signed the transfer forms, there is no
evidence that anyone informed these families that ARH had a
duty not to apply its longstanding transfer policy in the
present case, or that ARH's duty to provide all the medical
treatment within its capacity prior to a transfer included,
if necessary, having the surgeon direct the anesthesiologist
to administer anesthesia for any surgery the surgeon deemed
appropriate.
In testifying about what he told the families of Sean Crum
and Delmar Mills concerning the risks and benefits of
transfer, even Respondent has not alleged that he ever told
the families that it was his medical judgment to do abdominal
surgery as soon as possible and that he would direct Dr.
Thambi to administer anesthesia. 37/ Respondent
stipulated that he never made any effort to have the family
members provide a written refusal of abdominal surgery at
ARH. Tr. 934. Moreover, the evidence discloses no incentive
for Respondent, or anyone else acting for ARH on September
15, 1991, to inform the two patients' families of the duty to
perform abdominal surgery at ARH notwithstanding the head
injuries and in lieu of effectuating ARH's longstanding
transfer policy.
Based on the foregoing, I find that the parents of Sean Crum
and Delmar Mills were not given accurate or complete
information concerning ARH's duties under section 1867 of the
Act. The families were not told the true reasons (e.g.,
ARH's longstanding transfer policy, Respondent's failure to
direct Dr. Thambi to administer anesthesia) why they were
being approached for consent to transfer their sons.
Therefore, I give no legal effect to the fact that they
signed an acknowledgement stating that they had been "fully
informed of . . . [ARH's] obligation to provide appropriate
medical care within the capability of the services provided
by the hospital and to affect a transfer for services
unavailable at the hospital." I.G. Ex. 2 at 10; I.G. Ex. 3
at 10.
I conclude from my review of the evidence that there exists
no legitimate reason why a surgeon in Respondent's position
on September 15, 1991, could not or should not have fully
advised the families of the foregoing duties imposed by
statute when he was discussing the risks and benefits of
transfers with the families. In fact, if Respondent had
thought that Dr. Thambi was being uncooperative, there was no
one in a better position than Respondent to explain to the
families his reasons for failing or refusing to direct Dr.
Thambi to provide anesthesia, so that all the medical
treatment within ARH's capacity might be provided prior to
transfer, in order to minimize the health risks to Sean Crum
and Delmar Mills.
Therefore, the facts relevant to Respondent's allegations
concerning Dr. Thambi's actions established not the
mitigation of Respondent's culpability, but that, through
Respondent's misconduct and derelictions of his duties, the
transfers were effectuated without compliance with section
1867(c)(1)(A)(i) of the Act. The families of Sean Crum and
Delmar Mills were not fully or truthfully informed of ARH's
obligations under the statute, or of Respondent's reasons for
having them transferred to St. Mary's Hospital. Respondent
was responsible for said noncompliance.
In order for me to conclude that there was noncompliance with
section 1867(c)(1)(A) of the Act, the evidence must establish
a failure to comply with all three alternative provisions
contained therein. In Section III, I have already found that
Respondent was responsible for having caused Sean Crum and
Delmar Mills to be transferred in the absence of any
physician's having signed or counter-signed the certification
specified by section 1867(c)(1)(A)(ii) or (iii) of the Act.
Adding those findings to my preceding determinations under
section 1867(c)(1)(A)(i) of the Act means that Respondent was
responsible for the failure to comply with section
1867(c)(1)(A) of the Act.
For other reasons I have discussed previously, Respondent was
also responsible for the transfers of Sean Crum and Delmar
Mills when their transfers did not meet the definition of an
"appropriate transfer" incorporated by section 1867(c)(1)(B)
of the Act. I have detailed my reasons for concluding that
the "appropriate transfer" definition was not met in this
case because ARH did not provide the medical treatment within
its capacity to minimize the health risks to Sean Crum and
Delmar Mills (see section 1867(c)(2)(A) of the Act), and
because St. Mary's Hospital had not agreed to accept the
transfer of these two patients. See section
1867(c)(2)(B)(ii) of the Act.
Accordingly, Respondent's culpability extends to the
violations which have occurred under section
1867(c)(1)(A)(i), (ii), (iii), and under section
1867(c)(1)(B)'s incorporation of section 1867(c)(2)(A) and
(B)(ii).
Section X
In this section, I discuss my reasons for having found and
concluded as follows:
53. The I.G. has determined the amounts of the
CMPs at issue based upon an evaluation of the
factors specified by 42 C.F.R. § 1003.106(a)(4).
54. Respondent has not submitted any arguments
to show that the amount of the CMPs assessed by the
I.G. are unreasonable (or what amount would be
reasonable), or that the evidence in this case
should be weighed differently to attain a different
amount.
55. I find reasonable the CMP amounts assessed
by the I.G. against Respondent:
A. $50,000 for the violation of section 1867
with respect to Sean Crum;
B. $50,000 for the violation of section 1867
with respect to Delmar Mills.
56. The CMP amounts assessed by the I.G. have
not been made unreasonable by the evidence showing
that Sean Crum was near death at ARH and did later
die from his brain injuries, after having undergone
abdominal surgery at St. Mary's Hospital.
57. The CMP amounts assessed by the I.G. have
not been made unreasonable by the evidence showing
that Delmar Mills recovered, after having been
transferred to St. Mary's Hospital.
In her post-hearing brief, the I.G. argued that the facts in
this case illustrate "a complete collapse of emergency
medical care for two individuals with very critical medical
conditions." I.G. Br., 96. I agree. The facts discussed
above indicate also that Respondent was the primary, if not
the sole, cause of the collapse.
Because the patients needed surgery and Respondent was the
on-call surgeon, Respondent was the de facto "captain of the
ship" for making decisions which were based on those
patients' surgical needs. Section 1867 of the Act was
violated only after the two patients' need for surgery became
known to Respondent. The collapse of emergency medical care
for two very critically injured individuals occurred because
Respondent failed to take the legally required actions
necessitated by his role as a surgeon and by the patient's
unstable emergency medical conditions.
For each of the elements of section 1867(c) that were
violated in this case, Respondent was the individual in the
best position (if not the sole position) to take the actions
necessary to avoid its violation. FFCL 1 - 52. For example,
if Respondent had issued clear and unequivocal directives to
Dr. Thambi to provide anesthesia, Respondent would have had
no excuse to avoid performing the necessary abdominal surgery
or to suggest transfers to the parents of the patients based
on an inaccurate or incomplete explanation of ARH's duties
under section 1867(c)(1)(A)(ii) of the Act. If Respondent
had performed the abdominal surgery necessary to stabilize
the patients' emergency medical conditions, there would have
been no occasion to violate the requirements for effectuating
an "appropriate transfer" within the meaning of section
1867(c)(2)(A) or (B)(ii), as had occurred in this case. If
Respondent had performed the stabilization surgery needed by
the patients, there also would not have been the occasion to
violate the physician certification requirement specified in
section 1867(c)(1)(A)(ii) and (iii), as occurred here.
The facts of this case do not suggest that it would have been
difficult for Respondent to avoid the violations of section
1867(c) which have occurred. Respondent was a surgeon, and
he was called in by ARH to provide appropriate surgical
services. He and Dr. Thambi had known and worked together
for many years prior to September 15, 1991. Even if
Respondent was in doubt about Dr. Thambi's willingness to
administer anesthesia, Respondent had the opportunity and
means to act in the patients' best interest as required by
law. There was no reason why Respondent could not have
directed Dr. Thambi to provide anesthesia to Sean Crum or
Delmar Mills, if Respondent had truly wanted to perform
surgery on September 15, 1991. The evidence of record does
not establish that Dr. Thambi probably would have refused a
direct order from Respondent, the on-call surgeon. Thus,
with a few clearly articulated words to Dr. Thambi,
Respondent could have ensured against the violations under
review here.
Even though ARH's longstanding unwritten policy was to
transfer all patients with head injuries, Respondent was not
required to follow the policy. There is no evidence that
such a policy was enforceable by ARH, 38/ or that any
physician would suffer adverse consequences if the physician
deviated from it. Under the facts of this case, application
of this unwritten policy was unlawful. Respondent knew that
it was medically necessary for the two patients to have
surgery immediately. Yet, he choose to take actions that
were consistent with ARH's transfer policy.
Even accepting Respondent's argument that ARH's emergency
room was very busy, that Respondent was caring for multiple
patients on September 15, 1991, and that Respondent might
have thought that Dr. Thambi was uncooperative, it would not
have taken an undue amount of effort or time for Respondent
to order Dr. Thambi to administer anesthesia. Even if busy,
a surgeon should exercise due diligence to avoid the collapse
of emergency medical care for patients who need surgical
services. In this case, Respondent had approximately four to
five hours to direct Dr. Thambi to administer anesthesia to
Sean Crum and Delmar Mills. The evidence shows that
Respondent decided as early as 4:00 AM to have the patients
transferred, without having ever taken the few seconds
necessary to direct Dr. Thambi to administer anesthesia.
Ordering Dr. Thambi to administer anesthesia would have
triggered compliance (instead of noncompliance) with section
1867 of the Act.
The evidence shows also that, not only did Respondent violate
and cause to be violated the various elements of section
1867(c) of the Act, he has attempted repeatedly to shift his
responsibilities away from himself during September 15, 1991
and thereafter. I note, as an example, the evidence
discussed previously concerning Respondent's having written
"advice" to Dr. Hani to secure authorization for the
transfers, even though Respondent knew that Dr. Hani was
opposed to the transfers. I note, as further examples, the
evidence discussed previously concerning Respondent's denial
that he had instructed Pat White to effectuate the transfers
by filling out the necessary forms and placing his name on
them, his excuse at hearing that surgery was not done because
Dr. Thambi was not available, and his calling up Dr. Sakhai
years later to suggest that Dr. Sakhai had accepted the
transfers. The circumstances under which the statutory
violations occurred shows that, on and after September 15,
1991, Respondent has been only too ready to blame others as a
means for covering up his unlawful acts and omissions.
According to the I.G.'s notice letter, a CMP totaling
$100,000 ($50,000 for the violation pertaining to Sean Crum
and $50,000 for the violation pertaining to Delmar Mills) has
been assessed again Respondent. The I.G.'s notice explained
how this amount was calculated, based on the factors
specified in 42 C.F.R. § 1003.106(a)(4). According to the
I.G.'s notice, the amount reflects the "substantial" degree
of Respondent's culpability, the aggravating nature and
circumstances of the violations, and the "significant costs"
incurred by the Department of Health and Human Services in
this case. Notice letter, 2 - 3. The I.G. noted that she
was not aware of any prior offense by Respondent in similar
situations, and that Respondent's financial condition was not
considered a mitigating factor since Respondent had declined
the opportunity to make known any financial problems he might
be having. Id. at 2.
Based on my evaluation of the evidence relevant to those
factors relied upon by the I.G. in calculating the CMP, I
agree that the amount of $50,000 is reasonable for the
violation pertaining to Sean Crum. I agree also that the
amount of $50,000 is reasonable for the violation pertaining
to Delmar Mills. It is difficult to imagine a more egregious
set of circumstances under which the two patients' rights, as
well as the public's interests under section 1867 of the Act,
could have been breached. There was no individual more
responsible than Respondent for violating the public's
interest and the two patients' rights under section 1867 of
the Act. Moreover, the violations of the many elements of
the statute were so easily avoidable by Respondent. Instead
of avoiding the occurrence of these violations by simply
taking the actions required by his duties as the on-call
surgeon, Respondent caused one element after another of
section 1867 to be violated on September 15, 1991.
However, Respondent maintained, even in his post-hearing
Reply Brief, that he was "sinned against and not the sinner."
R. Reply, 1. His persistence in placing blame on others
shows that he is without remorse and without any sense of
responsibility for the violations he caused. His lack of
candor in recounting past events is an additional indicator
of his untrustworthiness.
Therefore, it is unlikely that a CMP amount of less than
$50,000 per violation will suffice to protect the public
interest or the health of other patients with emergency
medical conditions under section 1867 of the Act.
In upholding the CMP amount assessed by the I.G., I note also
that Respondent has not submitted any arguments to show that
the CMP amount calculated by the I.G. is unreasonable, or
that the evidence relevant to the factors relied upon by the
I.G. in reaching the CMP amounts should have been weighed
differently. Respondent has also persisted in providing no
proof of his financial situation. Nor has Respondent
indicated what CMP amount would be reasonable in his view.
However, Respondent alleged in his post-hearing brief that,
at ARH, Sean Crum was "brain dead and several days later
expired of his head injury." R. Br., 2. At the hearing,
several physicians called by Respondent to testify have
stated their opinion that Sean Crum would have died from his
head injuries even if abdominal surgery had been done at ARH.
For example, Dr. Sakhai, a neurosurgeon with 35 - 40 years
of experience (Tr. 331 - 32, 350), testified that Sean Crum
had less than a one percent chance of recovery, given his
signs and symptoms at ARH and, therefore, there was no
benefit to transferring Sean Crum. Tr. 355. Dr. Aaron gave
essentially the same opinion in noting that, if medical
resources had been limited, then there would have been a
decision made concerning the allocation of those resources to
others with a better chance of recovery, based on the fact
that Sean Crum was to have a short life "in terms of hours"
due to his brain damage. Tr. 416; see 430.
If Respondent is seeking to rely on this line of evidence to
implicitly argue that the amount of the CMP is unreasonable,
I note several problems with said approach under the facts of
this case. First, neither Sean Crum's prognosis, nor Delmar
Mills' prognosis, has been factored into the I.G.'s
calculation of the CMP amount. The CMP has not been imposed
because Sean Crum died despite the abdominal surgery
performed at St. Mary's Hospital, or because, after being
transferred, Delmar Mills was found to have needed only
abdominal surgery and not neurological surgery. See I.G. Ex.
2 at 15; I.G. Ex. 3 at 22. The CMP is not being assessed as
compensation to the patients' families for any losses they
might have sustained as a consequence of Respondent's
actions.
Additionally, as Dr. Hannigan correctly emphasized in his
testimony, Sean Crum was not brain dead when he was brought
to ARH. Tr. 79. Sean Crum did have vital signs (i.e., blood
pressure, pulse, respiration, and temperature) at ARH. Tr.
65 - 66. As discussed in Section I of this decision, there
is no disagreement among the experts that, even given severe
head injuries, abdominal surgery should have been performed
first under the "ABC" protocol. As Dr. Hannigan pointed out,
"Advanced trauma life support is a national standard[,] and
to deviate from it, you are only buying trouble." Tr. 119.
I agree also with Dr. Hannigan's opinion that a physician has
a duty to continue with resuscitative efforts on a trauma
patient with vital signs when the physician does not know
whether the patient will improve or not. Tr. 65 - 66.
In this case, Respondent did not have Dr. Sakhai's expertise
or experience as a neurosurgeon in assessing Sean Crum's
chance for recovery. Nor did Respondent make any resource
allocation judgment that Dr. Aaron thought would be
permissible. To the contrary, Respondent claimed that he
devoted his attention first to Sean Crum, because Sean Crum
was "the one [who] need[ed] more help to make it than Delmar
Mills." Tr. 843. Respondent testified that Sean Crum's
brain was not dead and that he (Respondent) was trying to
help Sean Crum improve his vital signs. Tr. 844. Respondent
never contended that he failed to perform abdominal surgery
on Sean Crum because he felt that it was more appropriate to
devote available medical resources to Delmar Mills based on
the two patients' relative chances for recovery. Except for
alleging that anesthesia was not available, Respondent has
not asserted any claim that abdominal surgery could not have
been performed on both patients during the four to five hours
they were at ARH.
For these reasons, I do not find merit in Respondent's
intimations that the CMP amounts might be unreasonable
because Sean Crum died at St. Mary's Hospital from his brain
injuries, or because Delmar Mill recovered after his
transfer.
Section XI
In this section, I explain my reasons for having found and
concluded as follows:
58. The I.G.'s notice letter to Respondent
stated that an exclusion of two years was being
imposed due to the repeated nature of Respondent's
violations.
59. Respondent's violations of section 1867 of
the Act with respect to Sean Crum and Delmar Mills
cannot fairly be considered repeated in nature.
60. The I.G. did not provide notice prior to
hearing that, to support the exclusion in
controversy, she had made an additional
determination that Respondent's violations under
section 1867 of the Act were also "gross and
flagrant."
61. Even if the timing of the I.G.'s notice on
her "gross and flagrant" determination constituted
harmless error, the evidence does not provide
adequate support for the I.G.'s contention that
Respondent's violations under section 1867 of the
Act were "gross and flagrant."
62. Under the facts of this case, the I.G. had
no basis for proposing an exclusion against
Respondent.
The I.G. may impose an exclusion against Respondent if the
violations under consideration were repeated or were "gross
and flagrant," as defined by 42 C.F.R. § 1003.105(a)(1)(C).
Section 1867(d)(1)(B) of the Act.
In her notice letter, the I.G. stated that Respondent would
be excluded from participation in the Medicare and State
health care programs for a period of two years due to the
repeated nature of his violations under section 1867 of the
Act. Notice Letter, 3. However, during his opening
statement, counsel for the I.G. represented that the
exclusion is merited also because Respondent's violations
were gross and flagrant. Tr. 11. In her post-hearing brief,
the I.G. requested a specific finding that Respondent's
violations were "gross and flagrant" within the meaning of
the law. I.G. Br., Finding 126 at 12; see I.G. Br., 98 -
101.
I conclude from my review of the evidence that Respondent's
violations with respect to Sean Crum and Delmar Mills cannot
be fairly considered to have been "repeated" in nature. The
I.G.'s conclusion on the "repeated" issue is based solely on
the fact that Respondent violated section 1867 of the Act
with respect to two patients and that the violations occurred
over a period of four hours. I.G. Br., 101. However, the
violations with respect to both patients resulted from nearly
identical actions, taken under nearly identical
circumstances, during essentially the same segments of time.
Respondent's actions and inactions with respect to both
patients were without material difference. Even though there
is some small degree of time lapse between when the different
elements of the statute were violated with respect to each
patient, the time differences appear to have resulted
naturally from people's need to speak, act, or write in
sequence.
In addition, the evidence of record showing that ARH's
emergency room was unusually busy during the morning of
September 15, 1991, may also help to explain the variations
in time between the actions taken with respect to the two
patients. There is no evidence indicating, for example, that
Respondent contemplated the first violation before deciding
to commit another violation. There is also no evidence that
the use of separate ambulances to transport Sean Crum and
Delmar Mills to St. Mary's Hospital was anything other than
routine procedure when staff and supplies needed to accompany
each patient.
For the foregoing reasons, I do not find the existence of
repeated violations as alleged by the I.G.
I reject also the I.G.'s assertion of a "gross and flagrant"
theory both at the hearing and in her post-hearing brief.
First, Respondent was not placed on notice by the I.G. prior
to the hearing that she would be seeking to prove the basis
of the exclusion based on the theory that the statutory
violations were "gross and flagrant." Even if I could
construe the absence of such advance notice to be harmless
error, the evidence is not sufficient to sustain the I.G.'s
use of a "gross and flagrant" theory to support the
imposition of a two-year exclusion.
The regulation defines a "gross and flagrant" violation as
one which presents an imminent danger to the health, safety,
or well-being of the individual who seeks emergency
examination and treatment or places that individual
unnecessarily in a high risk situation.
42 C.F.R. § 1003.105(a)(1)(C). Even though I have found the
circumstances of the violations under consideration to be
egregious and avoidable by Respondent, it does not follow
automatically that the statutory violations therefore
presented imminent danger to the health, safety, or well-
being of Sean Crum and Delmar Mills, or that those two
individuals were unnecessarily placed in a high risk
situation by the statutory violations. I think it important
to emphasize also that my earlier discussions of the two
patients' stability at the time of their transfer does not
imply that the violations committed by Respondent meet the
definition of "gross and flagrant."
As discussed previously, the evidence is conflicting as to
whether Sean Crum and Delmar Mills had become stable within
the meaning of the statute prior to transfer. I found
section 1867(c) of the Act, titled "Restricting Transfers
Until Individual Stabilized," to be applicable to this case
because Respondent and Dr. Hani in ARH's emergency room made
"unstable" determinations on the morning of September 15,
1991, and those determinations (whether or not they are
subject to disagreement in hindsight) triggered the
assumption of certain duties under the statute. I found
violations under section 1867(c) of the Act because
Respondent failed to assume those duties necessitated by his
determinations that the patients had not become stable within
the meaning of the law.
In addition, there are various facts which make the
determination of "gross and flagrant" in this case more
complicated than what the I.G. has proposed: that
Respondent's violations should be considered "gross and
flagrant" with respect to both patients because, without the
abdominal surgery Respondent should have performed, there is
evidence that both patients could have died from continued
bleeding en route to St. Mary's Hospital. I.G. Br., 99 -
101.
The two violations in this case resulted from multiple acts
and omissions which took place over a period of approximately
five hours. As discussed above, the record evidence showed
that, even though they never received abdominal surgery
during the five hours they were at ARH, the two patients did
receive non-surgical intervention which caused their blood
pressure readings to improve. Therefore, their medical
conditions due to abdominal trauma did not remain static
while they were at ARH. Also, the injuries of these two
patients were not identical, and the seriousness of their
overall medical conditions were not the same. Several
doctors testified that Sean Crum would have died from his
head injuries even if abdominal surgery had been performed at
ARH. (St. Mary's Hospital's records show that he did, in
fact, die from his brain injuries after undergoing abdominal
surgery there.) I think it significant also that both
patients arrived at ARH after having been critically injured
in an automobile accident. They were taken away from ARH by
ground ambulance due to weather conditions which made
helicopter transport impossible, as the I.G. stipulated at
hearing. Tr. 982.
These foregoing facts were not adequately addressed by the
I.G. in arguing that the violations were "gross and flagrant"
within the meaning of the statute.
Moreover, even though the record evidence shows that some
danger and some unnecessary risks to the patients' health
were created by Respondent's having caused them to be
transferred without having first performed abdominal surgery,
the evidence does not establish that the dangers were
imminent or that the risks were high. In questioning the
multiple medical experts called to testify at the hearing,
the I.G. never asked one of them to render an opinion under
the regulatory definition of "gross and flagrant." Without
the aid of credible expert medical opinions on these issues,
I can only speculate on whether, when, and which of
Respondent's acts or omissions might have placed either
patient in a high risk situation or whether the danger to
their life or health was imminent. Even if there were some
inferences to be drawn on the "gross and flagrant" issue from
the medical experts' testimony on other matters, there is no
preponderance of the evidence establishing the propositions
urged by the I.G.
Therefore, the exclusion proposed by the I.G. lacks a proper
evidentiary basis.
CONCLUSION
For the foregoing reasons, I uphold the CMP amounts proposed
by the I.G. against Respondent ($50,000 for each of the two
violations), and I set aside the two-year exclusion proposed
by the I.G. against Respondent.
Mimi Hwang Leahy
Administrative Law Judge
* * * Footnotes * * *
1. I will use the abbreviation of "Medicaid" to
designate those State health care programs to which the
I.G.'s notice references.
2. The parties did not move for the correction of
any transcription errors. However, I note that nearly all of
the transcript pages (Tr.) for the two days of telephone
testimony were assigned page numbers which duplicate those
for the last day of the in-person hearing. To remedy the
duplicate page numbers, I am now causing the abbreviation "T"
to be affixed to the original transcript pages for all
telephone testimony of July 29 and September 12, 1996.
In addition, I raise on my own motion the need to correct for
the record the identification of certain exhibits discussed
on September 12, 1996. As reflected at Tr. 1002T - 1004T, I
received into evidence only the last two pages of a document
which was generated by Dr. William Aaron and offered by
Respondent. Because this document had been identified by
Respondent as his exhibit (Ex.) 7 in its entirety during the
hearing, my ruling on its admissibility was done in
accordance with said numerical designation. Tr. 1002T -
1004T. However, Respondent later offered a different
document (a letter from the West Virginia licensure board)
also marked as his proposed Ex. 7 (Tr. 1039T), and I rejected
the admission of this document based on the same numerical
designation (Tr. 1041T). To correct the foregoing errors, I
am causing the latter document, i.e., the letter from the
West Virginia licensure board, to be remarked as Respondent's
proposed Ex. 8. The contents of the relevant transcript
pages (Tr. 1039T, 1041T), as well as the index page (Tr.
961T), have been corrected to conform to the revision.
3. The I.G.'s main post-hearing brief will be
referenced as "I.G. Br.," and her reply brief as "I.G.
Reply." The corresponding briefs submitted by Respondent
will be referenced as "R. Br." and "R. Reply."
4. A hospital participating in the Medicare program
is defined as a "participating hospital." Section 1867(e)(2)
of the Act.
5. The definition of "transfer" excludes movements
where the individual has been declared dead or has left the
facility without the permission of those employed by or
associated with the hospital. 42 C.F.R. § 489.24(b).
6. The Secretary's regulations define "a qualified
medical person" as one so determined by the hospital in
accordance with its bylaws or rules and regulations. 42
C.F.R. § 489.24(d)(1)(ii)(C).
7. Unless I indicate otherwise, all of the facts
discussed herein will relate to the events of September 15,
1991 and the patients named Sean Crum and Delmar Mills.
In addition, unless I note otherwise, words such as "stable,"
"stabilize," "transfer," and "gross and flagrant"
used in
this decision will have the meaning specified by the statutes
and regulations cited above.
8. "Critical" means "pertaining to or of the nature
of a crisis; in danger of death...." Dorland's Illustrated
Medical Dictionary (27th ed.).
9. At ARH, the on-call schedule for physicians of
each medical specialty was established by the physicians and
their departments. Tr. 982T. The administrative staff at
ARH receives and distributes these on-call lists. Id. The
physicians on the list are contacted in order, and on a
rotating basis, to provide coverage during those hours when
most physicians are at home. Tr. 982T - 83T.
10. Delmar Mills and Sean Crum were admitted to
the emergency room at 3:12 AM and 3:30 AM, respectively.
I.G. Ex. 2 at 2; I.G. Ex. 3 at 5. Respondent said that Pat
White called him around 3:15 AM and that he arrived at the
hospital just before 3:30 AM. Tr. 840 - 41. Respondent
wrote "3:45" as the time he began documenting his
observations of Sean Crum's condition. I.G. Ex. 3 at 2.
However, according to an entry in Sean Crum's nursing care
records, 3:30 AM was when Respondent was first contacted.
I.G. Ex. 3 at 5. According to an entry in Delmar Mill's
nursing care records, 4:00 AM was recorded as the time of
Respondent's arrival. I.G. Ex. 2 at 11.
11. I will discuss the conflicting evidence in a
later section of this decision.
12. Respondent testified that on ARH's "Emergency
Record" sheet for Delmar Mills, Dr. Hani's signature appears
on top of Dr. Hani's handwritten comment, "To be transferred
to St. Mary's via ambulances, with ARH staff nurse." Tr. 869
(referring to I.G. Ex. 2 at 2). He testified also that on
ARH's "Emergency Record" sheet for Delmar Mills, Dr. Hani's
signature appears together with comments such as "Transfer by
ambulance to Saint Mary's" and "Advance cardiac life
support." Tr. 873 - 74 (referring to I.G. Ex. 3 at 18).
Respondent's counsel suggested that these were transfer
orders issued by Dr. Hani. Tr. 873.
I do not find sufficient proof in support of Respondent's
theory. It appears more likely that the foregoing statements
were Dr. Hani's summaries of what took place (and not his
orders) since the evidence from Dr. Hani and Pat White
establishes that Dr. Hani was opposed to the transfers and
had refused to sign the transfer forms required by law.
13. Respondent is at risk for a CMP in the amount
of $100,000, as well as a two-year exclusion from
participation in the Medicare and Medicaid programs, also
imposed against him by the I.G. In contrast, nothing has
been assessed against Pat White personally. However, ARH has
already paid a fine to the I.G. in settlement of an action
brought against ARH and its employees for the very transfers
at issue. Tr. 1024T.
14. Part 1, subpart 5, of Delmar Mill's transfer
form was filled out in such as way that it conveys
conflicting assessments of the patient's stability at the
time of transfer. I.G. Ex. 2 at 9. The instructions for
subpart 5 called for completing either "A" (certification
that the patient's medical condition was stable at the time
of transfer) or "B" (certification that the patient suffered
from an emergency medical condition, but the medical benefits
reasonably expected from the transfer outweigh the risks of
transfer). However, both "A" and "B" were completed by Pat
White, in Respondent's name. I.G. Ex. 2 at 9. However,
notwithstanding the seemingly conflicting information
certified in "A" and "B" of Part 1, subpart 5, the following
page of the transfer form shows that Delmar Mills was denoted
as "unstable" for his transfer. I.G. Ex. 2 at 10.
In the transfer form completed for Sean Crum, the information
certified in Part 1, subpart 5, as well as on page 10 under
"Informed Consent," shows that this patient was assessed as
unstable at the time of transfer. I.G. Ex. 3 at 8 - 10. The
certification of Sean Crum's unstable medical condition was
done with use of Respondent's name. Id.
15. Under two of the three alternatives permitted
by section 1867(c)(1)(A), a physician must sign (or
countersign, if the physician is not physically present in
the emergency room at the time of the transfer) a
certification that, based upon the information available at
the time of transfer, the medical benefits reasonably
expected from the provision of appropriate medical treatment
at another medical facility outweigh the increased risk to
the patient. Section 1867(c)(1)(A)(ii) and (iii) of the Act.
I will defer a discussion of my conclusion that the remaining
alternative permitted by section 1867(c)(1)(A) was also not
satisfied, due to the failure of Respondent and ARH to inform
those legally responsible for Sean Crum and Delmar Mills of
the full extent of ARH's responsibilities to them.
16. At Respondent's request, I issued a subpoena
for Dr. Hani to testify at a supplemental hearing.
Respondent did not avail himself of the opportunity to cross-
examine Dr. Hani by use of the subpoena.
17. Dr. Hani's Declaration shows that, shortly
after Sean Crum and Delmar Mills were admitted to ARH's
emergency room, Dr. Hani did make a telephone call to the
emergency room physician at St. Mary's Hospital, but no
acceptance was obtained. I.G. Ex. 12. Unlike Respondent,
Dr. Hani did not tell the nurses to prepare the patients for
transfer after the St. Mary's emergency room physician
refused to accept the two patients.
Given the chronological order of Dr. Hani's narration of
events, it appears that Dr. Hani's call to the St. Mary's
Hospital emergency room physician occurred prior to
Respondent's call to Dr. Arya. Apparently, the result of Dr.
Hani's call was known to Respondent, or Respondent would not
have then called Dr. Arya and later written his advice for
Dr. Hani to obtain acceptance for the transfers.
18. According to Dr. Arya, Respondent discussed
only the need to transfer Sean Crum. I.G. Ex. 10. Dr. Arya
said that he was told by Respondent that the anesthesiologist
at ARH was unwilling to anesthetize Sean Crum for surgery.
Id. Dr. Arya said he told Respondent to contact the
Administrator of ARH to order the anesthesiologist to provide
anesthesia services. Id.
19. Dr. Sakhai was the first health care
professional to provide the opinion that the medical
conditions of Sean Crum and Delmar Mills were stable at the
time of their transfer. After Dr. Sakhai so testified, Pat
White and Respondent also expressed the same or similar
opinions during the hearing. Pat White, for example,
attempted to explain that when she used the word "unstable"
in the two patients' transfer forms, she really meant that
the patients' conditions were guarded, but that they were fit
for transfer. Tr. 507; see Tr. 523 - 24, 549 - 50. She also
denied that Respondent had told her to designate "unstable"
on the forms. Tr. 507. Respondent testified that he thought
stabilization had occurred by 5:00 AM for Delmar Mills (Tr.
884), even though he had written at 4:00 AM that the patients
should be transferred.
Given the inconsistencies inherent in the foregoing evidence,
as well as other evidence discussed herein, I do not believe
that on the morning of September 15, 1991, either Pat White
or Respondent had formulated any belief, while they were
evaluating or caring for Sean Crum and Delmar Mills, that
either patient had become "stabilized" within the meaning of
the law. Rather, much after the fact, Pat White and
Respondent adopted the "stabilized" opinion expressed by Dr.
Sakhai and other experts retained by Respondent for
litigation. Both Pat White and Respondent had an incentive
to adopt the "stabilized" opinion after the fact since,
without these two individuals (one giving the directives to
transfer, and the other following them and filling out the
necessary forms) the transfers at issue would not have
occurred as they did.
20. The medical experts acknowledged that the
blood pressure readings introduced into the record do not
cover the entire time that both patients were in ARH's
emergency room. E.g., Tr. 359. In the case of Delmar Mills,
there are blood pressure readings done at 15 minute intervals
by ARH entered on the document called "Nursing Care Record"
from 3:12 AM until only 6:00 AM. I.G. Ex. 2 at 11. There is
no similar document containing the blood pressure readings of
Sean Crum done at regular intervals. See I.G. Ex. 3.
Judy Hatfield, R.N., testified as to her belief that the
records from ARH concerning Sean Crum and Delmar Mills (I.G.
Ex. 2 and 3) do not appear to be complete. Tr. 556 - 57.
21. There is no consensus of after-the-fact
expert medical opinion on this issue. For example, the I.G.
pointed out in her post-hearing brief that the experts she
called to testify, Dr. Michael Hannigan and Dr. William
Browning, were of the opinion that stabilization had not been
achieved within the meaning of the Act prior to the transfers
at issue. I note, in addition, that Dr. Arya's reason for
not having agreed to the transfer of Sean Crum (he said
Respondent discussed only Sean Crum with him) was his belief
that the patient should be stable. I.G. Ex. 1 at 6; I.G. Ex.
10. Thus, it appears that Dr. Arya also disagreed with the
opinion that Sean Crum's medical condition had been
stabilized prior to transfer. In addition, none of the
physician witnesses testified that finding the patients
unstable within the meaning of the statute prior to transfer
would be a medically impermissible opinion.
22. I do not find credible the suggestion that
Respondent might have changed his opinion at the last minute
about the two patients' stability. Respondent testified that
he was not in the emergency room when Sean Crum and Delmar
Mills were taken away from ARH. Tr. 877. He said he did not
even known at what time the transfers occurred. Id.
Therefore, he had no basis for changing his opinion about the
patients' stability immediately prior to the transfers.
23. The individual who conducted an investigation
on behalf of the federal government reported that Dr. Arya's
failure to accept Sean Crum's transfer was due to the
principle that a patient should be stable. I.G. Ex. 1 at 6.
(Dr. Arya said that Respondent had discussed with him only
the possible transfer of Sean Crum. I.G. Ex. 10.) This is
additional evidence that Respondent never formed a belief on
September 15, 1991, that Sean Crum had become stabilized.
24. Dr. Hani wrote the assessment of "critical" at
7:40 AM, September 15, 1991, for Sean Crum. I.G. Ex. 3 at
18. He did not write down the date and time for the same
assessment in Delmar Mills' records. See I.G. Ex. 2 at 2.
However, there is no basis for concluding that Dr. Hani did
not write this information for both patients at about the
same time.
25. Some parts of Dr. Fowler's testimony suggest
that Sean Crum may have been stable at about 4:00 AM. E.g.,
Tr. 675 - 83. However, I have not accepted this possible
conclusion, since Dr. Fowler consistently failed to
articulate a reasonable, factual basis for this opinion
during cross-examination. Id. He testified also that he did
not know precisely when stabilization began (Tr. 679), but
that Mr. Crum was unstable, in his opinion, when Mr. Crum
arrived at ARH (Tr. 683), and prior to the insertion of a
chest tube at an undeterminable times (Tr. 679).
26. Even though I have found that no physician
has signed or countersigned the certification required by
section 1867(c)(1)(A)(ii) and (iii) of the Act (FFCL 19, 21),
I do not conclude at this juncture that a violation has
occurred under section 1867(c) by virtue of said fact. Nor
do I conclude at this juncture that a violation has occurred
under section 1867(c)(1)(A) of the Act due to the absence of
any certification signed or countersigned by a physician.
The reason is that the signing or countersigning of
certifications are merely two alternative requirements of
section 1867(c)(1)(A).
I will defer until later my discussion of the evidence
relevant to the third alternative requirement (that "the
individual (or legally responsible person acting on the
individual's behalf), after being informed of the hospital's
obligations under this section and of the risks of transfer,
in writing, requests transfer to another medical facility . .
. ." section 1867(c)(1)(A)(i) of the Act), as well as my
conclusion that the third alternative requirement of section
1867(c)(1)(A) has been violated also.
27. It is also not true that a hospital designated
as a trauma center cannot have a reasonable basis for
refusing to accept a transfer. A participating hospital with
specialized capability is only prohibited from refusing an
"appropriate transfer." Section 1867(g) of the Act. In this
case, the transfers were not "appropriate transfers" within
the meaning of the law.
28. It is not necessary that I decide in this case
which doctor, if any, ordered the transfer of Sean Crum or
Delmar Mills.
29. I note, for example, that Respondent testified
to having continued to search for an anesthetist for surgery
after he advised Dr. Hani and the nurses, at 4:00 AM, to
transfer the patients immediately. I.G. Ex. 2 at 17; I.G.
Ex. 3 at 2; Tr. 857 - 59.
30. I read the statutory requirements as meaning
that the responsible individuals must have been truthfully
informed of the hospital's obligations under section 1867 of
the Act.
31. I believe that a professional standard of
conduct noted by Dr. Aaron explains why, even though Pat
White said she never expressly told Dr. Thambi to come to the
emergency room, Dr. Thambi understood that he was being asked
to do so. According to Dr. Aaron, doctors are guided by
professional courtesies in these types of situations. Tr.
421. Therefore, Dr. Thambi knew when he was contacted as the
on-call anesthesiologist that he was being asked to come and
evaluate the patients in the emergency room, even though
those exact words were not used by Pat White.
32. There is no dispute that he went to the
hospital within 15 minutes of the 6:40 AM phone call.
33. The evidence on whether the operating room
crew had been called to ARH while awaiting Dr. Thambi's
arrival consisted of witnesses' recollections given nearly
five years after the alleged event. E.g., Tr. 480, 543, 860.
34. Respondent appears to rely on the fact that in
choosing the word "refused," he was implying that an order
had been given to Dr. Thambi. Tr. 926.
35. C.D. Glover, ARH's Administrator at the time
of the incidents, testified that he approached Respondent and
other doctors involved in the transfers after having received
the complaint from St. Mary's Hospital. Tr. 988 - 89T.
According to Mr. Glover's testimony, Respondent did not
initiate any oral complaints about Dr. Thambi's conduct.
Respondent said he had spoken to ARH's Administrator about
the problems with Dr. Thambi on September 15, 1991, even
before the Administrator had approached him. Tr. 936.
However, there is no documentation of Respondent's alleged
oral communication with the Administrator, and Respondent
never filed a complaint which would have instigated an
investigation by the appropriate department concerning
whether disciplinary action against Dr. Thambi was necessary.
Tr. 936; see Tr. 937 - 42.
36. Pat White testified that she heard Respondent
say to Dr. Thambi, after Dr. Thambi's arrival at ARH, "John .
. . I have to do surgery, I have to have anesthesia, I have
to do surgery." Tr. 487. Even if these words could be
interpreted as Respondent's directive ordering Dr. Thambi to
administer anesthesia, the truth of Pat White's testimony is
contradicted by the fact that she has never documented this
incident or alleged it prior to the hearing.
37. Respondent's testimony indicates that it was
not until shortly before the hearing that Respondent first
alleged to the families that the reason no surgery was
performed at ARH was because Dr. Thambi had refused to
administer anesthesia. See Tr. 971.
38. As a matter of law, the policy is
unenforceable by ARH if its application results in a
statutory violation.
(..continued)