Samuel T. Bowen, Respondent.

I. Background

The case before me arose pursuant to the notice letter issued on January 14, 1998, by the Inspector General (I.G.) of the Department of Health and Human Services. The notice letter informed Dr. Samuel T. Bowen (Respondent) of the I.G.'s determination that Respondent had violated section 1867 of the Social Security Act (Act) on October 20, 1994, with respect to the care and transfer of a patient who presented to the emergency room of Frye Regional Medical Center (FRMC) in Hickory North Carolina. The I.G. notified Respondent also that she was proposing to impose against him a civil money penalty (CMP) in the amount of $50,000 for the violation, and to exclude him for a period of one year from participation in the Medicare program and all federal and 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 three days in Charlotte, North Carolina. The parties have also submitted post-hearing briefs.⁽²⁾

For the reasons which follow, I reject the I.G.'s proposal to impose a CMP of $50,000. Additionally, I set aside the one-year exclusion proposed by the I.G.

II. Applicable Statutes and Regulations

Section 1867 of the Act specifies the responsibilities placed on those hospitals which have emergency rooms and which participate in the Medicare program.⁽³⁾ 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,⁽⁴⁾ 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[⁽⁵⁾] the medical condition, or

(B) for transfer[⁽⁶⁾] 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).

However, 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). The hospital must take all reasonable steps to secure the individual's (or responsible person's) written, informed refusal of such treatment. Id.

Subsection (c) of section 1867, titled "Restricting Transfers Until Individual Stabilized," permits a hospital to transfer an individual with an unstablized medical condition if

(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 and, in the case of labor, to the unborn child . . . ,[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).

An "appropriate transfer" means, as relevant to this case, a transfer in which the transferring hospital provides treatment within its capacity to minimize the risks of treatment and the receiving facility has agreed to accept transfer of the individual and to provide appropriate medical treatment. Section 1867(c)(2)(B); see 42 C.F.R. § 489.24(d)(2).

Subsection (d) of section 1867, titled "Enforcement," authorizes the imposition of sanctions against a hospital and 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. § 1003.102(c).

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. 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).

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)(ii)(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. 42 C.F.R. § 1003.105(a)(1)(ii)(C).

The I.G. bears the burden of proving, by a preponderance of the evidence, that Respondent negligently violated the statute and that the violation placed the patient in imminent danger or unnecessarily in a high-risk situation. Section 1867(d)(1)(B) of the Act; 42 C.F.R. 1005.15(b)(2) and (d).

Certain uncontroverted facts make section 1867 of the Act applicable to the events which occurred on the early morning of October 20, 1994 at FRMC. FRMC is a particpating hospital within the meaning of the Act. There is no dispute that Lorrie Austin, a pregnant woman in her third trimester, was brought by ambulance to the emergency department (ED) of FRMC that morning. Ms. Austin's chief complaint was vaginal bleeding. Tr. 422. There is no dispute among the experts that her complaints indicated a likely emergency medical condition within the meaning of the statute. However, Ms. Austin was transported to Catawba Memorial Hospital (also Catawba herein) without having been provided a complete medical screening examination. Tr. 419. There is no dispute that a violation of section 1867 was committed at FRMC during the early morning of October 20, 1994 when no appropriate medical screening examination was completed for Ms. Austin.

The I.G. alleges that Respondent was responsible for the failure to provide a complete medical screening examination for Ms. Austin. The I.G. asserts that the treatment, stabilization, and "appropriate transfer" requirements of the statute have also been violated by Respondent. However, the statutory framework I have summarized above shows clearly that these additional requirements become applicable only if an appropriate medical screening examination has been completed and results in a determination that the patient has an emergency medical condition within the meaning of the Act. It is impossible for the hospital's ED or the physician to effectuate a lawful transfer, for example, if no appropriate medical screening had ever been done in the first instance. Similarly, the hospital and physician would not be able to provide the appropriate stabilization specified by the Act if no initial screening examination had been done to determine the existence or nature of any emergency medical condition.

Here, in disputing the I.G.'s attribution of liability to him, Respondent acknowledges that no appropriate medical screening examination was completed for Ms. Austin on the morning in issue. Tr. 419. Respondent waived proof on whether Ms. Austin was in a stable condition or should have been transferred to Catawba. Id. The I.G.'s allegation that Respondent not only failed to provide a medical screening examination, but was also responsible for the commission of every other possible violation under section 1867, unduly complicates the liability issue and appeals to emotions. In this decision, I do not separately analyze whether Respondent also violated the Act by negligently failing to stabilize Ms. Austin and/or to transfer her appropriately because these violations were avoidable only if an initial medical screening examination had been performed.

Instead, I have determined that the material issues before me are limited to a consideration of whether Respondent negligently violated the Act's requirement that Ms. Austin be provided a medical screening examination at FRMC, and if so, whether the CMP and exclusion proposed by the I.G. are reasonable. My analysis of the facts relevant to the liability issue made it unnecessary to proceed to the question of whether the proposed remedies were reasonable.

Below, I summarize the facts underlying this case, which are essentially uncontested. I then examine, in turn, the I.G.'s arguments that Respondent should be held responsible for the violation of section 1867 for any or all of the following reasons: 1) because Respondent intended to withhold care from Ms. Austin; 2) because he caused other FRMC staff to withhold care from her; 3) because he was the physician in charge of the ED when the violation occurred; or 4) because he had notice and opportunity and yet failed to take action to avoid the violation. For the reasons discussed below, I reject each of these theories. I emphasize that my decision acknowledges that the events which resulted in Ms. Austin's leaving FRMC and ultimately receiving treatment at Catawba County Medical Center represent a violation of section 1867. I find, however, that the I.G. failed to meet her burden of proving that Respondent acted negligently and, thus, failed to prove that he was liable for the violation that did occur.

B. Undisputed Chronology of Events

At about 2:47 a.m. on October 20, 1994 an ambulance crew from Catawba County Emergency Medical Services (EMS) was dispactched to the home of Lorrie Austin, a 24-year-old woman in her seventh month of pregnancy. I.G. Ex. 1.⁽⁷⁾ When the paramedics, Stacey Tanner and Betsy Wilmoth, arrived at 2:55, they found Ms. Austin standing in her kitchen. Id. She was experiencing profuse vaginal bleeding. The paramedics estimated that she had lost between 500 and 1000 cc of blood. Id.

Bleeding during the third trimester of pregnancy may be indicative of an abruption, also referred to as abruptio placenta. Another condition that may cause bleeding in late pregnancy is placenta previa. Abruptio placenta occurs when the placenta becomes separated from the wall of the uterus before the baby is delivered. Tr. 77-78, 222. This separation frequently causes bleeding. Id. at 78, 222. The condition of placenta previa occurs when the placenta is covering the cervix. Id. at 80-81, 291-92. Bleeding in a pregnant woman, due to either of these causes, puts her and her unborn child at risk because if the mother's blood loss is significant enough, her ability to supply oxygen, glucose, and other nutrients to her baby may be compromised. Id. at 78, 81, 222. Ultimately, there may be a risk of death to both mother and baby. Id. at 78, 222, 292.

The patient was alert and oriented. R. Ex. 2 at 1. She did not complain of pain. Id. The paramedics placed Ms. Austin on a stretcher, they started an IV of normal saline solution and administered oxygen by nasal cannula. Id.; see also I.G. Ex. 1. Ms. Austin requested to be taken to FRMC. R. Ex. 2 at 1.⁽⁸⁾

Ms. Austin had received her prenatal care through the Catawba County Health Department ("CCHD"). Id. The paramedics told her that Health Department patients were normally seen at Catawba Memorial Hospital. Id. At the time of the incident, the physicians caring for Ms. Austin and other Health Department patients practiced at Catawba Memorial Hospital. The patient still preferred to go to FRMC. Id.

The paramedics agreed with the decision to go to FRMC based on Ms. Austin's condition and the fact that FRMC was closer than Catawba. Id. The paramedics placed Ms. Austin in the ambulance at 3:12. I.G. Ex. 1. While they were en route to FRMC, Paramedic Tanner radioed to FRMC to alert staff there that Ms. Austin was being brought there. R. Ex. 2 at 1.

At FRMC, nurse Sandra Webster received the call from the paramedics. I.G. Ex. 5 at 12. The paramedics described the patient's condition and explained that she was a Health Department patient. Tr. 161.

Before the ambulance arrived at FRMC, Respondent, in the presence of Emergency Department (ED) nurses, commented on Ms. Austin's situation and the likely course of her evaluation. Respondent described some of the steps which must be taken at the ED in order to evaluate her at the ED because she was a Health Department patient with obstetrical problems, instead of a patient with her own obstetrician on the staff of FRMC. Tr. 461- 62. He stated his concerns that Ms. Austin was not being taken to Catawba Memorial Hospital. Tr. 501.

At 3:15 a.m. the paramedics arrived at FRMC with Ms. Austin. I.G. Ex. 1. As they brought her into the ED, the secretary asked the name of the patient's doctor. R. Ex. 2 at 1. Upon being informed that Ms. Austin was a Health Department patient, the secretary stated that Health Department patients were seen at Catawba, not at FRMC. Id.; see also Tr. 19.

Nurse Karen Chapman intervened and escorted the paramedics with Ms. Austin into an examining room and closed the curtains. R. Ex. 2 at 2; Tr. 20, 165.

During this time, Respondent was at the nursing station engaged in some type of paperwork. Tr. 20. He noticed the paramedics bringing Ms. Austin in. Tr. 464-65. The ED was not terribly busy that night, but there were several other patients in the department. Tr. 461, 474; see also I.G. Ex. 5 at 12.

After closing the curtain to the examining room, Nurse Chapman began to examine Ms. Austin. She palpated the patient's abdomen and visually assessed her vaginal area. R. Ex. 2 at 2; Tr. 21. She told the paramedics that she was concerned that if they moved the patient, they might dislodge several large blood clots which she had observed. R. Ex. 2 at 2. Ms. Austin was never moved off the ambulance stretcher. Tr. 21. No chart was started for her.

Nurse Chapman explained to the patient that she would have to remain in the emergency department for an undetermined amount of time while they contacted an obstetrician to take her case. R. Ex. 2 at 2. Nurse Chapman pointed out that if Ms. Austin went on to Catawba Memorial Hospital, she could likely go directly to the obstetrics floor because her records were at Catawba. Id. Ms. Austin was upset and stated, "Why won't they let me have my baby here?" Id.

The paramedics advised Ms. Austin that it might be best to go on to Catawba and she then agreed to be transported there. R. Ex. 2 at 3. The paramedics left FRMC with Ms. Austin at 3:21 a.m., six minutes after they had arrived. See I.G. Ex. 1.⁽⁹⁾

Respondent observed the paramedics leave with Ms. Austin. Tr. 478. As they were leaving, Nurse Chapman came out of the examining room. Respondent asked her for an explanation of what had happened. Id. at 478-79.

Thereafter, Respondent did not attempt to have Ms. Austin returned to FRMC.

Meanwhile, on the way to Catawba in the ambulance, Ms. Austin began to complain of pain on her right side. R. Ex. 2 at 3. Paramedic Tanner noted some rigidity of the abdomen at that time. Id. At 3:28 a.m., according to the EMS report, the ambulance arrived at Catawba. I.G. Ex. 1.

Ms. Austin's medical record at Catawba indicates that she was admitted at 3:25 a.m. OB Nurse Gina Miller's admitting notes included the following:

Received from ER via stretcher, per Catawba Co. EMS. Clothes & stretcher linens saturated with bright red blood & numerous clots. O2 @ 8L/min. per [nasal] cannula. Clothes removed by cutting...IV NS @ bolus--

I.G. Ex. 2 at 23. The patient progress notes, also made by Nurse Miller, indicate that the second IV line was started at 3:40. I.G. Ex. 2 at 5. Certified Nurse-Midwife Louanne Alexovich performed a vaginal examination of Ms. Austin at 3:50, determining that her cervix was 3 centimeters dilated and that the fetus was likely breech. Id. At 4:15, Ms. Austin was transferred to the operating room for a caesarean section. Id. at 5, 49. The operation was performed by Dr. Douglas Trent, an obstetrician on staff at Catawba. At 4:34 a viable baby girl was delivered. Id. at 5, 51. During the operation, Dr. Trent determined that the placenta had an estimated 40% abruption. Id. at 52.

FFCL 1. The uncontested facts establish that Ms. Austin was entitled to receive a medical screening examination at FRMC when she arrived at its ED.

FFCL 2. The uncontested facts establish that Ms. Austin was not provided with a completed medical screening examination at FRMC as required by section 1867(a) of the Act.

FFCL 3. The uncontested facts establish that Ms. Austin was in FRMC for a total of six minutes, from 3:15 a.m. to 3:21 a.m.

FFCL 4. The uncontested facts establish that it took the paramedics no more than seven minutes to transport Ms. Austin from FRMC to Catawba Memorial Hospital.

FFCL 5. The uncontested facts establish that the paramedics transported Ms. Austin to Catawba Memorial Hospital immediately after hearing the remarks made by Nurse Karen Chapman of FRMC's ED in an enclosed examination room, out of Respondent's presence.

FFCL 6. The uncontested facts establish that Ms. Austin and the paramedics never spoke with Respondent during the time they were at FRMC; nor did they hear Respondent say anything.

FFCL 7. The uncontested facts establish that, on October 20, 1994, Respondent never addressed Ms. Austin's medical condition except for remarking in the ED staff's presence before her arrival on certain additional steps which may need to be taken at the ED for her evaluation or treatment because she was Health Department patient instead of a patient of an obstetrician on the staff of FRMC.

FFCL 8. There is no testimony or allegation that

a. Nurse Chapman was acting under Respondent's explicit instructions when she made her statements to Ms. Austin and the paramedics inside the enclosed examination room, which resulted in their immediate departure from FRMC; or

b. any other staff member of FRMC had acted under explicit instructions from Respondent when they spoke to or otherwise interacted with Ms. Austin and the paramedics.

C. I reject the I.G.'s theory that Respondent implicitly directed that Ms. Austin be taken to Catawba without being given a medical screening examination.

1. Respondent did not suggest to Ms. Austin or the Paramedics that she should leave FRMC.

One of the I.G.'s theories is that the violation of section 1867 occurred because Respondent intended to deny care to Ms. Austin because of her status as a Health Department patient. There is a conflict in the evidence as to whether or not Respondent himself stated that the patient should leave FRMC and seek treatment at Catawba. Therefore, I will resolve the issue of what, if anything, Respondent said while Ms. Austin was at FRMC.

Except for Nurse Karen Chapman, no one claims to have heard Respondent speak about Ms. Austin while she was in the ED. In a written statement, Nurse Chapman asserts that Respondent stood right outside the examining room door and made statements that the patient would be seen faster at Catawba. R. Ex. 6 at 3. I do not find this statement to be reliable.

First of all, Nurse Chapman's statement is inconsistent with the statements and testimony of the paramedics, who did not recall Respondent approaching the patient or making any remarks in their hearing. See R. Ex. 2 at 3; I.G. Ex. 5 at 33; Tr. 23-24. Instead, the paramedics in their report, as well as Ms. Tanner in her testimony, recalled that it was Nurse Chapman who suggested that Ms. Austin would be better off going to Catawba. R. Ex. 2 at 2; I.G. Ex. 5 at 10; Tr. 167. Second, it would clearly be in Nurse Chapman's self-interest to deflect responsibility for the incident from herself onto Respondent. Therefore, Nurse Chapman's hearsay statement is of dubious reliability and deserving of little weight at best. The I.G. allowed these problems to remain by failing to call her as a witness at the hearing. Thus, Nurse Chapman's version of events was never subject to being tested on cross-examination by anyone with interests adverse to hers.

For all these reasons,⁽¹⁰⁾ I discount Nurse Chapman's account of Respondent's behavior while Ms. Austin was in the ED by finding and concluding:

FFCL 9. Respondent never spoke about Ms. Austin while she was in the ED.

2. Respondent's remarks prior to the patient's arrival did not cause FRMC's ED staff to deny care to Ms. Austin.

There are inherent weaknesses in the I.G.'s attempts to place responsibility for the violation of section 1867 which occurred at FRMC upon Respondent. The weaknesses include the fact that Ms. Austin was at that hospital for a total of only six minutes. The I.G.'s case suffers also from the undisputed fact that, during those six minutes, Ms. Austin and the paramedics dealt with ED staff members who were not acting under any explicit instructions from Respondent to send Ms. Austin away. Respondent did not speak to or about Ms. Austin during those six minutes. Ms. Austin's departure from FRMC with the paramedics was preceded by their receipt of the information conveyed by Nurse Chapman in an enclosed examination room out of Respondent's presence. Additionally, the I.G.'s case is further weakened by the undisputed fact that it would not have been feasible for Respondent to seek the return of Ms. Austin to FRMC's ED after he saw the paramedics depart with her and then obtained Nurse Chapman's explanation. Ms. Austin arrived at Catawba in seven minutes or less. See FFCLs 3-9.

It is perhaps to counter these and like evidentiary problems for her case that the I.G. suggests that the violation stemmed from the remarks Respondent made to the ED staff before Ms. Austin's arrival.

The record before me establishes that, prior to Ms. Austin's arrival at FRMC, Respondent discussed with the nurses present that if the patient were a Health Department patient, they would have to evaluate her in the emergency department. Tr. 461-62. He speculated that they might need to call in an ultrasound technician from home to perform an ultrasound in order to differentiate between placenta previa and abruptio placenta. Id. at 462.⁽¹¹⁾

At that time of the morning it might take 45 minutes for the technician to arrive. Id. The obstetrician on call would want the results of the ultrasound examination before determining what should be done with the patient. He expressed concern that the patient was not being taken to Catawba Memorial Hospital. Tr. 501.

The I.G. interprets the foregoing facts as meaning, "Before the patient was brought to the doors of Frye, it was a done deal[:] Dr. Bowen decided this patient should be treated at Catawba Memorial Hospital." Tr. 10. Therefore, the I.G. has tried to show that, while Ms. Austin was in FRMC's ED, the receptionist and Nurse Chapman encouraged Ms. Austin to leave because Respondent had given them implicit directions to do so. See Tr. 11-12. The I.G. intimates also that the absence of any direct interaction between Respondent and Ms. Austin or the paramedics was caused also by Respondent's bad motives. Id. According to the I.G., Respondent had the leisure to witness the occurrence of events which violated section 1867, but he took no action to stop or remedy their occurrence because Ms. Austin was a Health Department patient and, for that reason, he never intended to provide services to her. Id.

The I.G. bears the risk of non-persuasion for proving that Respondent committed, or caused others to commit, a violation of section 1867 by failing to perform a complete medical screening examination for Ms. Austin. 42 C.F.R. § 1005.15(b)(2). The I.G. must meet her burden of persuasion on this material issue by a preponderance of the evidence. 42 C.F.R. 1005.15(d). Here, even assuming that Respondent's bad intent is material to the I.G.'s proposal to impose a CMP under the statutory provision governing negligent violations by a physician (Section 1867(d)(1)(B) of the Act), the more credible and competent evidence of record does not preponderate in favor of the I.G.'s propositions concerning and arising out of Respondent's allegedly bad intent.

Having reviewed the totality of the record, I find that the I.G. has attached undue significance to Respondent's having expressed concern that Ms. Austin, a Health Department patient, was not being taken to Catawba Memorial Hospital. First, there exists the undisputed evidence noted previously concerning the conduct and utterances of the paramedics, to whom the I.G. has attributed no bad motives or bad acts. Like Respondent, the paramedics had also expected Ms. Austin to indicate a wish to be transported from her home to Catawba Memorial Hospital because she was a Health Department patient. Before taking her to FRMC, they told her that Health Department patients were normally seen at Catawba. But for their having volunteered the information that Ms. Austin was a Health Department patient while the ambulance was en route to FRMC, Respondent would not have known of this fact to make any of the remarks now emphasized by the I.G. The paramedics who initially thought Ms. Austin would wish to go to Catawba Memorial Hospital because she was a Health Department patient later advised Ms. Austin to leave FRMC's ED. These paramedics then placed her back into the ambulance and transported her to Catawba Memorial Hospital, where they had expected to take her in the first place.

The foregoing discussion shows that inappropriate conclusions could result from the I.G.'s method of emphasizing isolated facts and utterances about Ms. Austin's being a Health Department patient. I do not choose to draw such conclusions about the paramedics. Nor has the I.G. alleged any wrongdoing or bad motives against the paramedics even though they were as aware as Respondent of Ms. Austin's being a Health Department patient and the use of Catawba Memorial Hospital by Health Department patients. Moreover, whereas Respondent was an observer when Ms. Austin was being taken away, the paramedics were the ones who actually advised her to leave and then took her to Catawba.

Like the paramedics, Respondent appears to have spontaneously uttered his sincere opinions and concerns when he heard that Ms. Austin would be arriving at FRMC. Such remarks may be considered unwise in hindsight. However, the words he uttered were not overt directives for the ED staff to withhold the services required by section 1867. FFCLs 8, 9. Therefore, to support her theory that Respondent's words caused the ED staff to behave as they had after Ms. Austin's arrival, the I.G. needed to establish the requisite nexus by a preponderance of the evidence. The I.G. failed to do so.

In her attempts to hold Respondent responsible for the actions and omissions of the ED staff, it is not unreasonable for the I.G. to suspect that certain of Respondent's remarks had caused others in the ED to commit the statutory violation. It is uncontroverted that Respondent had mentioned Ms. Austin's status as a Health Department patient to ED nurses before her arrival and, subsequently, Nurse Chapman failed to complete the required examination while he took no action himself. However, for the suspicions posited by the I.G. to be accepted as fact, she needed to prove that the ED staff members who heard Respondent's remarks interpreted them as recommendations or implicit directives for them to withhold care from Ms. Austin and that they, in turn, intentionally acted to implement those implicit directives or recommendations. Otherwise, to attach liability to Respondent for the acts of others, the I.G. needed to prove that Respondent was aware that ED staff members had biases against providing care to Ms. Austin or someone in her situation, and that his remarks caused them to convert their biases into action. The I.G. has not provided such proof.

The record contains no testimony of any person who heard Respondent's remarks and then took the actions which are alleged by the I.G. to relate back to Respondent's remarks or bad motives. The I.G. did not show that these ED staff members were unavailable to appear at the hearing. Moreover, even assuming that the ED staff members had attached some significance to the remarks in controversy, it is not enough that the I.G. has set forth one possible inference the ED staff members could have drawn from Respondent's words. Having the burden of persuasion on the material issue of whether Respondent's words caused the acts of others, the I.G. loses if the relevant evidence in support of her inference is in equipoise. See Hillman Rehabilitation Center, DAB No. 1611 at 10 n.7 (explaining the burden of persuasion). Additionally, the I.G. cannot be considered to have sustained her burden of persuasion on this issue when, as here, there exists more than one viable inference to be drawn from the evidence, and the other inference is not only favorable to Respondent but has more tangible support in the record.

Instead of inferring that Respondent made his comments to the ED staff before Ms. Austin's arrival because he wished for her to be sent to Catawba Memorial Hospital for evaluation and treatment, I find it more appropriate to conclude from the evidence of record that Respondent was simply summarizing and effectuating what was to be done at FRMC's ED under the policies and procedures established by the hospital.

Other than wondering why Ms. Austin was not being taken to Catawba, the remainder of Respondent's remarks in controversy relate to what Respondent or the ED staff would need to do after the patient arrived. Those remarks are consistent with FRMC's written policy in existence at the time governing how ED personnel were to handle pregnant patients with gestation of greater than 20 weeks. The applicable policy divided those pregnant women coming to the ED into two groups, on the basis of whether they were already patients of physicians on staff at FRMC. The policy stated that "assigned patients," i.e., those being followed by a physician who was on staff at FRMC, were to be transferred to the Labor and Delivery Department (L&D) immediately after being triaged, or briefly assessed, by an ED nurse. R. Ex. 14. By contrast, patients who were "unassigned," i.e., did not have a doctor on staff, were not immediately transferred to L&D, but had to be evaluated by the ED physician. Id.

It is uncontroverted that Ms. Austin had been receiving her prenatal care from the Catawba County Health Department, whose physicians worked at Catawba Memorial Hospital instead of FRMC. See Tr. 512. There is also no dispute that the physicians on staff at FRMC did not provide routine or non-emergency obstetrical care to patients under the care of the Catawba County Health Department. Therefore, under the applicable FRMC policy, the fact that Ms. Austin was a Health Department patient meant that she was "unassigned." See Tr. 455. While it is true that Respondent referred to Ms. Austin as a Health Department patient, he then described the actions which would need to be taken in the ED for an "unassigned" pregnant patient.

Respondent's descriptions are in accord with FRMC's policy for all "unassigned" pregnant patients with greater than 20 weeks of gestation who present themselves at the ED. Especially as to the possible need to call in an ultrasound technician and contact an on-call obstetrician, Respondent's remarks are consistent with the fact that he would not be able to provide definitive treatment for Ms. Austin's condition. Tr. 494. He is not a specialist in obstetrics. See id. at 443-44. Moreover, it appears that the ED lacked the capability to perform continuous fetal monitoring. See id. at 22. These facts support the conclusion that Respondent made remarks prior to Ms. Austin's arrival in the ED to indicate his intent for Ms. Austin to be evaluated and treated in accordance with FRMC's policy for "unassigned" patients.

The testimony of one expert witness suggested the possibility that FRMC's policy discriminated against low-income individuals like Ms. Austin, who would more likely be classified as "unassigned" patients due to their inability to purchase private insurance and become patients of physicians on FRMC's staff. See Tr. 569. However, I will not speculate on whether the hospital policy was unlawful or whether Respondent should have known that the policy could appear problematic under section 1867 of the Act.

There is no evidence that Respondent had any motive to deny care to Health Department patients. For example, there is no suggestion that his compensation was in any way linked to how or whether patients pay for their care. Nor is there any evidence that Respondent disliked Health Department patients in general, or that he was inclined to follow a different course of action had Ms. Austin been an "unassigned" patient for other reasons.

Moreover, there has been no finding by the I.G. that the applicable hospital policy was unlawful. The record shows that the I.G. has chosen to enter into an agreement with FRMC to settle any claims she might have had against the hospital arising out of this incident. See R. Ex. 16. FRMC was not a party to the present action and, therefore, it lacked the opportunity to defend the policy before me. Under these circumstances, it would be unfair to attach anything but a neutral interpretation to FRMC's policy. For these reasons, it would also be improper to impute bad motives to Respondent because he stated to the ED staff what would need to be done under the hospital's policy.

Accordingly, I find and conclude as follows:

FFCL 1O. For lack of adequate evidentiary support, I reject the I.G.'s contention that, even prior to Ms. Austin's arrival at FRMC, Respondent had formed and voiced his intent to withhold services from her.

FFCL 11. For lack of adequate evidentiary support, I reject the I.G.'s contentions that Respondent was responsible for having caused the violation of section 1867 of the Act by having made certain remarks to the ED staff before Ms. Austin's arrival.

D. I reject the I.G.'s theories that Respondent is liable under the Act because he was "captain of the ship" when the violation occurred, and because he could have and should have intervened to avoid the occurrence of the violation.

I reject the I.G.'s additional theory that, because section 1867 was violated while Respondent was the physician on duty in the ED, therefore, the responsibility for the violation must necessarily be assumed by him under the "captain of the ship" theory. I reject also the related arguments by the I.G. that the responsibility for the violation must be placed upon Respondent because he had the time and ability to avoid their occurrence by personally performing, or specifically directing the ED staff to perform, the tasks required by the statute. I do not agree with the legal interpretations underlying the I.G.'s arguments. Additionally, Respondent's ability to perform, or to order others to perform, all of the necessary tasks for a complete medical screening examination does not establish that his failure to do so within the factual context of this case rendered him liable for a CMP or an exclusion.

Section 1867 of the Act does not impose strict liability upon any physician, even if the physician was in charge of an emergency department where a violation occurred. The statute does not mandate application of the respondeat superior doctrine in every case. No portion of the statute or any commonly accepted interpretation of the "captain of the ship" doctrine requires the "captain" to personally perform all tasks or, absent exigent circumstances known to him, to personally order others to perform routine tasks within their usual areas of responsibility. Rather, the statute mandates use of the negligence standard to determine if a physician, whether or not he was in charge of the ED when the violations occurred, has liability under the Act.

Negligence reflects the concept of legal delinquency: liability attaches where an individual fails to do something that he or she had a duty to do, or omits some act that a similarly situated person of ordinary prudence would have done under the same circumstances. The statute requires that an appropriate medical screening evaluation be completed, but it does not specify the precise manner in which the examination must be conducted or the extent and timing of any physician's participation. Therefore, whether Respondent's omissions on the morning of October 20, 1994 constituted negligence that should result in liability under the Act must necessarily turn on what duties relevant to conducting medical screening examinations were imposed upon Respondent by the hospital's policies and by the professional standards of practice applicable to emergency room physicians in like situations. I conclude that the record does not contain sufficient evidence to support the I.G.'s arguments that Respondent was negligent on the morning of October 20, 1994.

The I.G. emphasizes in her brief the experts' testimony concerning the need for any emergency room physician to assume that the patient's condition is life-threatening until proven otherwise, and the need to act swiftly when abruption is suspected. I.G. Br. 26-28. Based on such evidence, the I.G. argues that one indication of Respondent's negligence was that he did not immediately contact, or specifically direct the staff contact, the ultrasound technician or the on-call obstetrician when he was alerted by the paramedics that Ms. Austin would be arriving imminently with vaginal bleeding; nor were these professionals contacted during the six minutes Ms. Austin was in the ED.

The I.G.'s arguments fail to show that Respondent was negligent for these omissions. Neither FRMC's policy nor any professional standards of practice in evidence define how quickly a physician in Respondent's position should obtain, or direct the ED staff to obtain, the services of an ultrasound technician and the on-call obstetrician. As discussed previously, when the paramedics gave notice of Ms. Austin's arrival, Respondent stated in the presence of the ED nurses that these professionals' services would likely be needed. This statement is consistent with Respondent's defense that these professionals would have been called at the appropriate time.

The evidence of record does not establish that hospital policies or the standards of emergency medical practice require that the ultrasound technician and obstetrician be called in while the patient is en route to the hospital by ambulance (at 3:12 to 3:15 a.m.). Nor is there evidence that such policies and standards would require that these professionals be called in during the time that ED staff should be conducting their assessment of the patient (at 3:15 to 3:21 a.m.). Determining the point of time when these professionals should be called is a matter of medical judgment. The evidence in this case does not establish that Respondent's failure to call, or to direct ED staff to call, these professionals during the nine minutes in controversy represents a breach of his duties, under relevant hospital policies or standards of practice. For example, an ED physician could best determine which professional's services would be needed to care for a patient by completing an assessment of the patient.⁽¹²⁾ Even at Catawba Memorial Hospital, Ms. Alexovich, the RN-Midwife, also did not immediately request the services of Dr. Trent, the on-call obstetrician, the moment she was notified of the patient's arrival. Tr. 223-24. Instead, she proceeded with her examination of the patient before calling Dr. Trent. This was the usual practice at Catawba. Tr. 217. From these facts, I cannot agree with the I.G. that Respondent had acted negligently because the ultrasound technician and the on-call obstetrician were not contacted by him or pursuant to his orders before Ms. Austin was taken to Catawba.

To show that Respondent was negligent in having failed to conduct an examination of Ms. Austin immediately upon her arrival in the ED, the I.G. has consistently emphasized the allegation that Ms. Austin had suffered such a severe hemorrhage that blood was seen dripping off the stretcher when the paramedics brought her into FRMC's ED. The I.G. uses this allegation to create the impression that Respondent chose to act irresponsibly by doing paperwork at the nursing station during the six minutes Ms. Austin was in the ED. Using this allegation of severe and visible blood flow from Ms. Austin, the I.G. would have me conclude that Respondent's failure to rush into the examining room immediately was outside the standard of care practiced by emergency physicians. I conclude, however, that there is insufficient credible evidence of record to support the I.G.'s allegation that Ms. Austin's blood was dripping off the stretcher, or that this extent of bleeding was apparent to Respondent, at the time she presented at FRMC.

Neither the ambulance call report nor the incident report filed by the paramedics mention blood dripping off the stretcher. I.G. Ex. 1; R. Ex. 2. Paramedic Tanner apparently made such an allegation in an interview with Azzie Conley, an investigator for the North Carolina Department of Health and Human Services. See I.G. Ex. 5 at 10.⁽¹³⁾ Ms. Conley's notes indicate that the interview occurred on November 1, 1994. Id. at 9. Several years later, Paramedic Tanner also testified about dripping blood at the hearing. Tr. 163.

On the other hand, Paramedic Wilmoth made no such statement in her interview with Ms. Conley (see I.G. Ex. 5 at 7-9), and her testimony at the hearing was that Nurse Chapman lifted the sheet covering the patient and then saw the blood. Tr. 21. Ms. Wilmoth's recollection is consistent with Nurse Chapman's statement, which indicates that she observed some blood on a pad under the patient. I.G. Ex. 5 at 38. Similarly, in her interview with Ms. Conley, the unit secretary recalled that the patient was on a stretcher, covered up. Id. at 11. She did not see blood on the stretcher. Id. Respondent testified that he observed a spot of blood on the end of the stretcher as the paramedics wheeled the patient into the examination room. Tr. 473-74.⁽¹⁴⁾ He did not see blood dripping onto the floor. Id. at 474.⁽¹⁵⁾ Finally, Elma Callis, R.N., who was Administrative Director of the ED at FRMC during the time in question, testified that, if blood had been on the floor, staff would have to call Environmental Services to clean it up, and that her investigation of the incident did not reveal that any such call was made. Tr. 538-39. Based on the foregoing, I find that the preponderance of the evidence supports the conclusion that, when the paramedics brought Ms. Austin into the ED at FRMC, the patient was lying on the ambulance stretcher covered with a sheet and that the extent to which she was bleeding was not readily apparent.

By contrast, when Ms. Austin arrived at Catawba, the testimony is quite clear that the extent of her bleeding was dramatically evident. Ms. Alexovich, the nurse-midwife at Catawba, testified that there was so much blood Ms. Austin looked like a trauma victim. Tr. 219. Ms. Alexovich stated, "There was blood everywhere, all over the stretcher, you know, dripping off the ends." Id. There is no dispute that Ms. Austin's condition deteriorated somewhat between the time she left FRMC and the time she arrived at Catawba. She complained of pain for the first time and she described an urge to push. I.G. Ex. 1 at 2. From this evidence, I conclude that it is more likely than not that Ms. Austin suffered significant additional bleeding en route from FRMC to Catawba.

It is important to note, however, that even if I had concluded that there was blood dripping off the stretcher when Ms. Austin was brought to FRMC, I would not conclude that Respondent's actions were necessarily outside the standard of care. No expert expressed the opinion that the professional standards of practice applicable to Respondent precluded his allowing the ED nurse to triage (i.e., briefly assess) a patient with suspected placenta previa or abruptio. Sufficient evidence is also lacking to support any suggestion that Respondent was negligent because he should not have left Nurse Chapman alone with Ms. Austin and the paramedics in the enclosed examination room for a period of time.

I am persuaded by the expert testimony of Dr. Bitterman, a board-certified specialist in emergency medicine and a fellow of the American College of Emergency Physicians. See Tr. 543-44. In the course of cross-examination by counsel for the I.G., Dr. Bitterman testified that it would be reasonable, even in a "life-threatening OB emergency," for the nurse to spend a few minutes getting the patient ready for the physician's examination. Tr. 589. The testimony of the I.G.'s emergency medicine expert is not to the contrary. Dr. Benson testified that the first thing Ms. Austin needed was "aggressive assessment" by the Emergency Department team, which he described as the nurse and physician. Tr. 82. He testified that, in Ms. Austin's case, it would have been reasonable for Nurse Chapman to go into the examining room to begin the assessment. Tr. 134, 140-41.

The uncontested facts of record establish that, for the total of six minutes that Ms. Austin was at FRMC, she spent a portion of that time inside an enclosed examination room with Nurse Karen Chapman of the ED. Nurse Chapman did perform some nursing assessments, such as palpating Ms. Austin's abdomen and visually assessing her vaginal area, while also speaking to her and the paramedics. The uncontroverted facts establish also that Nurse Chapman had intervened to move Ms. Austin and the paramedics into the enclosed examination room when she heard the ED secretary tell the group that Health Department patients were seen at Catawba, not FRMC. These circumstances do not suggest that Respondent should have suspected that the conversation occurring inside the examination room would then cause Ms. Austin to leave after a few minutes without having received a completed medical screening evaluation. Respondent's claim that he had intended to examine and treat Ms. Austin, and was taken by surprise when the paramedics left with her (Tr. 477, 479), even has some affirmative support in the statement made by Paramedic Tanner⁽¹⁶⁾ to Ms. Conley. In that statement, Ms. Tanner described the following information provided by Nurse Chapman in the examination room:

Karen explained to Betsy and I that if the pt [patient] had the baby at Frye, she would be in the ER a long time (undetermined amount of time) Dr. Bowen would examine her but they would have to find a physician to take the case.

I.G. Ex. 5 at 10 (emphasis added).

Moreover, the actual course of Ms. Austin's treatment at Catawba reinforces the conclusion that it would have been reasonable for Respondent to anticipate that nursing interactions with the patient would require several minutes. The Catawba medical records indicate that as much as 20 minutes may have elapsed between the time the patient was admitted and the time Ms. Alexovich performed a vaginal examination of the patient. See I.G. Ex. 5 at 5, 23; Tr. 224. This is not to suggest that nothing was being done for the patient during these 20 minutes. On the contrary, during this time, the nurses had to remove the patient's clothing by cutting it off. I.G. Ex. 5 at 12, 23. They checked fetal heart tones, they started a second I.V. line, they palpated her abdomen, they prepped her for surgery, and inserted a catheter. Id. at 5.⁽¹⁷⁾ I find these actions by the nurses at Catawba indicative of actions that a reasonable physician might expect nurses to take and that, by analogy, Respondent did not act unreasonably by having remained outside the enclosed examination room during the total of six minutes Ms. Austin was at FRMC.

The fact that Respondent did not commence his examination of Ms. Austin immediately upon her arrival is also consistent with the requirements of the relevant hospital policy. ED policy at FRMC was that every patient entering the department would be triaged by a nurse. Tr. 452, 520, 530-31. FRMC's Policy Procedure Manual (Policy Manual), in a section titled "Emergency -- Definition," provided as follows:

Each patient will be triaged -- nursing assessment, past medical history, vital signs, allergies will be obtained by the Emergency Department nurse prior to physician evaluation.

R. Ex. 7 (emphasis added). Similarly, in a section titled "Triage Nurse Role Description," the Policy Manual provided:

The triage nurse determines the nature and urgency of the patient's complaints to assess priority of cases that should receive immediate attention by the physician.

R. Ex. 11. The above words indicate all patients coming to the ED should to be triaged by an ED nurse, whether or not they were "assigned."

Elma Callis, R.N., who was the Administrative Director of the ED at FRMC during the time in question, also testified that it was routine practice in the ED for the nurse to complete a primary nursing assessment, take vital signs, and make a record of those findings before reporting to the physician. Tr. 538.

The I.G. contends that, in the case of unassigned pregnant patients of greater than 20 weeks gestation, hospital policy required the ED physician, rather than the nurse, to perform the triage. See R. Ex. 14. At best, the policy, as written, is ambiguous. Both Respondent and Ms. Callis testified that the policy contemplated that triage would be done by the nurse. Tr. 520, 532-33. Their interpretation is consistent also with the fact that Nurse Chapman had begun her examination of Ms. Austin in the examination room. In the context of the record as a whole, I find that the better reading of the relevant policy is that triage of both assigned and unassigned patients is the responsibility of the nurse, while physicians have responsibility for the evaluation of those patients. The evaluation of assigned patients is the responsibility of the obstetrician, and the ED physician has responsibility for the evaluation of unassigned patients, or, in some cases, assigned patients who present with non-pregnancy-related problems.

I reject also the I.G.'s argument that Respondent should be held liable under section 1867 because FRMC concluded that Respondent and Nurse Chapman violated hospital policies in connection with this incident. I.G. Reply, 7-8. The policies that Respondent and Nurse Chapman are supposed to have violated are the policies requiring emergency patients to receive a medical screening examination. Respondent does not dispute that Ms. Austin was not given a complete medical screening examination. It is not persuasive to me that the hospital, an entity that chose to enter into a settlement agreement with the I.G. concerning these events, had attempted to share with Respondent, a physician who was not employed directly by the hospital, the consequences of its own ED Nurse's failure to complete her duties under the hospital's policy.

The I.G. argues also that Respondent acted unreasonably in that he allegedly failed to follow FRMC's internal policy for categorizing emergency conditions. According to the I.G., Ms. Austin's symptoms were more appropriately categorized as "massive and uncontrolled hemorrhage" than "vaginal bleeding in pregnancy." I.G. Reply Br. at 5. These two descriptions are found in FRMC triage policies. R. Ex. 12. The former description falls under "Category I-Immediate;" the latter under "Category II-Urgent." Id.

The I.G.'s argument entirely misses the point of triage categories. I have found previously, no massive and uncontrolled hemorrhaging was visible when Ms. Austin was brought to FRMC. Thus, Respondent could not know into which triage category the patient fell until the triage nurse had briefly assessed her and determined whether the patient needed Respondent's attention "urgently" or "immediately." It is absurd to suggest that Respondent should have known from the ambulance radio call -- or even from seeing the patient lying on the ambulance stretcher -- without any direct visualization of the patient by ED staff, whether or not she was suffering from a "massive and uncontrolled hemorrhage." Even if there had been blood visible on the stretcher as the I.G. has alleged repeatedly, triage would have been needed to determine whether the hemorrhage was uncontrolled as well as massive.

Respondent's statements in I.G. Ex. 20 do not lead to a different conclusion. Cf. I.G. Reply Br. at 6. In that document, Respondent explains that if the triage nurse believes there is a life-threatening emergency, the nurse would immediately summon the physician. In the present case, Nurse Chapman never summoned Respondent. In hindsight, with the benefit of the entire evidentiary record in this case, it appears likely that only some immediate intervention by Respondent could have prevented Ms. Austin from leaving FRMC on October 20, 1994. However, no such event had ever taken place previously. Tr. 498. As discussed above, a reasonable physician in Respondent's position could not have known then that if he did not examine the patient within six minutes or less, she would be gone from the ED. After the initial exchange with the secretary, the patient and the paramedics were taken inside an examining room with Nurse Chapman. The curtains to the examining room were closed. Respondent did not know what was taking place inside the examining room. It was reasonable for him to assume that the staff members were following their usual practices and hospital procedures.

Accordingly, I issue the following findings and conclusions:

FFCL 12. The I.G. did not sustain her burden of proving that Respondent was negligent with respect to any of the events which resulted in Ms. Austin's leaving FRMC's ED after only six minutes and without having received a complete medical screening examination required by section 1867 of the Act.

FFCL 13. No hospital policy or practice, no standard of professional conduct, and no circumstance of which he knew or should have known on the morning at issue necessitated a different course of action by Respondent.

FFCL 14. On the facts of this case, the "Captain of the Ship" theory does not render Respondent liable for the violation of section 1867.

FFCL 15. The I.G. lacked adequate basis for proposing to impose the CMP and exclusion remedies against Respondent.

For the reasons stated above, I reject the I.G.'s proposal to impose a CMP against Respondent and to exclude him from participation in the Medicare and Medicaid programs.

1. I will use the term "Medicaid" to designate those State health care programs to which the I.G.'s notice refers.

2. I will refer to the I.G.'s main post-hearing brief as "I.G. Br.," and her reply as "I.G. Reply." I will refer to Respondent's post-hearing brief as "R. Br."

3. A hospital participating in the Medicare program is defined as a "participating hospital." Section 1867(e)(2) of the Act.

4. An "emergency medical condition" is defined at section 1867(e)(1)(A) of the Act, and interpreted at 42 C.F.R. § 489.24(b).

5. "To stabilize" is defined at section 1867(e)(3)(A) of the Act, and interpreted at 42 C.F.R. § 489.24(b).

6. "Transfer" is defined at section 1867(e)(4) of the Act and interpreted at 42 C.F.R. § 489.24(b).

7. This chronology relies primarily on the EMS Response Report (I.G. Ex. 1), the EMS Incident Report (R. Ex. 2 (also in evidence as I.G. Ex. 5 at 30-32.)), and the Catawba Memorial Hospital medical records (I.G. Ex. 2). I have determined that these documents, which were created closest in time to the events in question, are the most reliable evidence of the events which occurred on October 20, 1994.

8. The EMS reports refer to FRMC as "H-51" and to Catawba as "H-50."

9. Paramedic Tanner testified that she estimated the time as seven to ten minutes. Tr. 169. On cross-examination, she acknowledged that her earlier testimony, as well as her written declaration, were inconsistent with the EMS Response Report. Id. at 202-03, 205. I conclude that the times given by the dispatcher and recorded in the Response Report are more reliable than Ms. Tanner's inconsistent recollections.

10. For the same reasons, I discount the suggestion in Nurse Chapman's statement that Respondent was close enough to the examining room to have overheard what was said inside.

11. To determine whether placenta previa is present, it is preferable to perform an ultrasound examination prior to a vaginal examination, unless there is the capacity to perform an immediate caesarian section. Tr. 310-11; see also id. at 462.

12. Both the I.G.'s and Respondent's expert witnesses pointed out that, until the patient was assessed, the ED staff could not be sure of the cause of the patient's bleeding and, thus, could not be sure that the services of an obstetrician would be needed. See Tr. 81-82, 591, 604, 606.

13. I do not suggest that Paramedic Tanner was untruthful in her statement to Ms. Conley or in her testimony before me. It appears likely that Paramedic Tanner remembered the scene at Catawba so vividly that it influenced her recollection of events at FRMC.

14. During her investigation, Ms. Conley interviewed Respondent. Notes of that interview were made by another investigator. The interview notes attribute to Respondent a statement to the effect that, "It did not take a mental giant to see the bleeding[.] I saw blood at the foot of the stretcher[.] I would guess [the patient had] substantial bleeding." I.G. Ex. 5 at 22. I note that Respondent never had the opportunity to review for accuracy or completeness the statements attributed to him. Tr. 377-78. Nevertheless, even if Respondent made the statements attributed to him, those statements indicate only that Respondent had made a guess as to the amount of bleeding the patient may have suffered. His alleged statement that he had seen blood at the foot of the stretcher is consistent with his testimony before me that he had seen a spot of blood on the stretcher.

15. I note that Ms. Conley's Declaration (I.G. Ex. 6) asserts that "Dr. Bowen stated that he observed blood dripping off the stretcher." I do not find this statement credible. The Declaration was created years after the events in question in preparation for this litigation. Moreover, the phrase "blood dripping off the stretcher" does not appear anywhere in the notes of Ms. Conley's interview with Respondent. Instead, as discussed above, the interview notes reflect that Respondent "guess[ed] [there was] substantial bleeding." I.G. Ex. 5 at 22 (emphasis added). The interview notes do not indicate that the investigators asked Respondent to explain what he meant by "substantial bleeding." Thus, there is inadequate correlation between his "guess [there was] substantial bleeding" and Ms. Conley's conclusion that he had "observed blood dripping off the stretcher."

16. Ms. Conley's notes identify the subject of her interview as "Stacey Wilmoth." I.G. Ex. 5 at 9. It is apparent that this is simply an error, as Ms. Conley's earlier notes record her interview with Betsy Wilmoth, Ms. Tanner's partner on the night in question. See I.G. Ex. 5 at 7.

17. I am aware that Ms. Alexovich, the nurse-midwife, was participating in the care of Ms. Austin at the time and that some of these interventions may have been ordered by her. Nevertheless, it is clear that some of these actions, such as checking fetal heart tones and vital signs, as well as undressing the patient, were the responsibilities of the nurses.