Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Louis W. DeInnocentes, Jr., M.D., Petitioner,
- v. -
The Inspector General.
DATE: December 23, 1992
Docket No. C-395
Decision No. CR247
DECISION
On May 7, 1991, the Inspector General (I.G.) advised Petitioner that he had
determined
to exclude him from participating in the Medicare program and in State health
care
programs for five years. 1/ The I.G. told Petitioner that the exclusion was
authorized by
section 1156 of the Social Security Act (Act). The I.G. based his determination
to
exclude Petitioner on a recommendation made to the I.G. by the Arkansas Foundation
for Medical Care, Inc., the peer review organization for Arkansas (Arkansas
PRO).
The Arkansas PRO's recommendation that Petitioner be excluded derived from its
findings that, in two separate hospital admissions of a patient, Petitioner
had committed
gross and flagrant violations of his statutory obligation to provide services
of a quality
that meets professionally recognized standards of health care. The I.G. advised
Petitioner that he agreed with the Arkansas PRO's recommendation, and he enumerated
11 findings of gross and flagrant violations in his notice letter to Petitioner.
The I.G.
found further that Petitioner demonstrated both an inability and an unwillingness
to
comply substantially with his statutory obligation to provide health care which
meets
professionally recognized standards of health care.
The I.G. advised Petitioner that he was entitled to a hearing concerning the
I.G.'s
exclusion determination. The I.G. further advised Petitioner, that, inasmuch
as
Petitioner practiced medicine in a county with a population of less than 70,000,
he was
entitled to a preliminary ruling by an administrative law judge as to whether
his
continued practice of medicine posed a serious risk to individuals to whom Petitioner
provided health care. Petitioner requested a hearing, both as to the preliminary
issue of
serious risk and as to the issues of whether the I.G.'s exclusion determination
was
authorized and was reasonable.
The case originally was assigned to Administrative Law Judge Edward D. Steinman
for a
hearing and a decision. The parties agreed to waive their rights to present
live testimony
on the serious risk issue, but requested that Judge Steinman issue a ruling
on that issue
based on their respective documentary submissions. On April 20, 1992, Judge
Steinman
issued a ruling in which he found that Petitioner posed a serious risk to patients.
His
ruling permitted the I.G. to implement his exclusion of Petitioner, pending
a final
decision on the issues of the I.G.'s authority to exclude Petitioner and the
reasonableness of the exclusion. Judge Steinman made no findings on these ultimate
issues in his ruling.
The case subsequently was reassigned to me for a hearing and a decision on the
merits
of the I.G.'s exclusion determination. I held a hearing in Little Rock, Arkansas,
on June
22 - 24, 1992. The parties then filed posthearing briefs and reply briefs.
I have carefully considered the applicable law, the evidence adduced at the
June 1992
hearing, and the parties' arguments. 2/ I conclude that the I.G. was authorized
to
exclude Petitioner pursuant to section 1156(b) of the Act. I further conclude
that the
five-year exclusion which the I.G. imposed in this case is reasonable, and I
sustain the
exclusion.
ISSUES
The issues in this case are whether:
1. The I.G. is authorized to exclude Petitioner pursuant to section 1156(b)
of the Act.
2. The five-year exclusion which the I.G. imposed against Petitioner is reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Petitioner's education, training, work experience, and licensure as a physician
3/
1. Petitioner is a physician. Tr. at 92. 4/
2. Petitioner received his medical education at Georgetown University School
of
Medicine, graduating in 1957. P. Ex. 1/1; Tr. at 92.
3. Petitioner received residency training in general and thoracic surgery. P.
Ex. 1/1; Tr.
at 93.
4. Petitioner is not board certified in a medical specialty. Tr. at 94.
5. Petitioner has practiced general and thoracic surgery in several locations.
P. Ex. 1/1 -
2; Tr. at 96 - 100.
6. From 1987 until 1989, Petitioner practiced medicine in Bull Shoals, Arkansas.
P. Ex.
1/2; Tr. at 623.
7. Since 1989, Petitioner has practiced medicine in Alabama. P. Ex. 1/2; Tr.
at 102 -
103.
8. Petitioner presently practices in Scottsboro, Alabama, with his practice
limited to
emergency room practice. Tr. at 102 - 103, 623 - 624.
9. Petitioner's license to practice medicine in Alabama is limited, in that
Petitioner is
precluded from performing surgery, including elective surgery, in an operating
room or
suite. I.G. Ex. 24/5; Tr. at 625.
10. Petitioner's license to practice medicine in Alabama permits him to perform
those
procedures normally and customarily performed in an emergency room setting.
I.G. Ex.
24/5; Tr. at 625.
II. Petitioner's treatment relationship with Barbara J. McCarty
11. In 1988, Petitioner had as a patient Barbara J. McCarty (Ms. McCarty). I.G.
Ex. 1,
3, 5, 6, 10; Tr. at 632, 635.
12. In November 1985, Ms. McCarty was found to be entitled to Social Security
disability benefits based on a determination that she suffered from chronic
obstructive
pulmonary disease (COPD). P. Ex. 22/2.
13. Ms. McCarty died at her home on December 30, 1988. I.G. Ex. 38/12.
14. Ms. McCarty was 43 years old on the date of her death. I.G. Ex. 1/1.
15. Petitioner treated Ms. McCarty in 1988 at the Bull Shoals Community Hospital
and
Clinic, Inc. (Bull Shoals Hospital), Bull Shoals, Arkansas, and at the Gascot
Medical
Clinic, a facility which was affiliated with the Bull Shoals Hospital. I.G.
Ex. 1, 3, 5, 6,
10, 27/102; Tr. at 635.
16. Ms. McCarty was hospitalized at the Bull Shoals Hospital for stays beginning
on
May 9, September 19, November 2, November 21, and December 3, 1988. Petitioner
was Ms. McCarty's attending physician for each of these hospitalizations. I.G.
Ex. 1/2 -
5, 3/1 - 5, 5/1 - 6, 6/1 - 4, 10/1 - 4.
17. As Ms. McCarty's attending physician, Petitioner accepted responsibility
for her
welfare, for providing her with routine and ongoing health care, and for doing
the
necessary paperwork associated with her hospitalizations. Tr. at 394; see I.G.
Ex. 1/2 - 5,
3/1 - 5, 5/1 - 6, 6/1 - 4, 10/1 - 4.
18. During the dates of her hospitalizations in 1988, Ms. McCarty was a Medicare
beneficiary. I.G. Ex. 1/1, 3/1, 6/1, 10/1; see P. Ex. 22/2.
19. Petitioner's diagnoses of Ms. McCarty's illnesses on the dates of her hospitalizations
beginning on May 9, 1988, included: pneumonia, COPD, organic heart disease,
arteriosclerotic heart disease, hypertension, congestive heart failure, secondary
polycythemia, and anoxemia. I.G. Ex. 1/1, 2/1 - 3, 5/2, 6/1, 10/1 - 2.
20. Arteriosclerotic heart disease is the buildup of fatty material, or plaques,
in the
arteries of the heart itself. Tr. at 433 - 434.
21. Congestive heart failure is a condition in which a patient's heart does
not pump with
sufficient force to circulate his or her blood adequately, resulting in an accumulation
of
fluid in the patient's lungs. Tr. at 386.
22. Congestive heart failure may be manifested in a patient by shortness of
breath and
also by swelling in the patient's legs. Tr. at 391.
23. COPD is an ongoing condition affecting a patient's ability to breathe, which
may
cause the patient to experience: shortness of breath; difficulty in walking;
and occasional
lung infections which make the patient's breathing problems worse. Tr. at 491
- 495.
24. Polycythemia is a condition in which a patient has an excessive quantity
of red blood
cells in his or her bloodstream. Tr. at 392.
25. Polycythemia in a patient with breathing problems can place an increased
work load
on the patient's heart, which may exacerbate other conditions, including congestive
heart
failure and the accumulation of fluid in the patient's lungs. Tr. at 396.
III. Acts or omissions by Petitioner during Ms. McCarty's hospitalizations of
November
21, 1988 through November 23, 1988, and December 3, 1988 through December 9,
1988,
that are gross and flagrant violations of Petitioner's obligation to provide
health care of
a quality that meets professionally recognized standards of health care
26. A gross and flagrant violation by a physician of his or her obligation to
provide
services to a Medicare beneficiary which meets professionally recognized standards
of
health care is any act or omission which fails to meet professionally recognized
standards
of health care, by presenting an imminent danger to the health, safety, or well-being
of
the beneficiary, or which places the beneficiary unnecessarily in a high-risk
situation. 42
C.F.R. 1004.1(b); see Social Security Act, section 1156(b)(1)(B).
A. Petitioner's failure to order an electrocardiogram (EKG) of Ms. McCarty
during her hospitalization from November 21, 1988 through November 23, 1988
27. Ms. McCarty was hospitalized at the Bull Shoals Hospital from November 21,
1988
through November 23, 1988, complaining of severe shortness of breath and severe
swelling in her legs. I.G. Ex. 6/1, /4.
28. Petitioner observed Ms. McCarty to manifest severe leg swelling, with 3-4+
bilateral
pitting edema. I.G. Ex. 6/4.
29. Ms. McCarty was diagnosed to be suffering from both COPD and congestive
heart
failure. I.G. Ex. 6/1 - 4.
30. The professionally recognized standard of health care to be followed in
the case of
an individual who is hospitalized with severe shortness of breath and associated
congestive heart failure is to perform an EKG on that individual during the
course of his
or her hospitalization. Tr. at 407.
31. The purpose of performing an EKG in the case of a patient hospitalized with
COPD
and congestive heart failure is to document the extent of damage to the patient's
heart,
and also to determine whether the patient suffers from heart rhythm disturbances
related
to his or her intake of medications. Tr. at 406 - 407.
32. Given Ms. McCarty's complaints, Petitioner's findings, and the diagnoses
of her
conditions, an EKG should have been administered to Ms. McCarty during her
hospitalization from November 21, 1988 through November 23, 1988. I.G. Ex. 39/4
- 5;
Tr. at 406 - 407.
33. Petitioner did not order that an EKG be administered to Ms. McCarty during
her
hospitalization from November 21, 1988 through November 23, 1988. I.G. Ex. 39/4;
see
I.G. Ex. 6.
34. Petitioner's failure to order that an EKG be administered to Ms. McCarty
during
her hospitalization from November 21, 1988 through November 23, 1988, violated
a
professionally recognized standard of health care. Findings 30 - 33.
35. Petitioner's failure to order that an EKG be administered to Ms. McCarty
during
her hospitalization from November 21, 1988 through November 23, 1988 presented
an
imminent danger to Ms. McCarty's health, safety, and well-being, and placed
Ms.
McCarty unnecessarily in a high-risk situation. I.G. Ex. 39/4 - 5; Findings
26 - 34; 42
C.F.R. 1004.1(b).
36. Petitioner committed a gross and flagrant violation of his obligation to
provide
health care to Ms. McCarty which meets professionally recognized standards of
health
care by failing to order that an EKG be administered to Ms. McCarty during her
hospitalization from November 21, 1988 through November 23, 1988. Finding 35;
Social
Security Act, section 1156(b)(1)(B).
B. Petitioner's failure to order a chest x-ray of Ms. McCarty during her
hospitalization from November 21, 1988 through November 23, 1988
37. The professionally recognized standard of health care to be followed in
the case of
an individual hospitalized with a diagnosis of congestive heart failure is to
monitor that
individual's status with chest x-rays of that individual during the course of
his or her
hospitalization. See I.G. Ex. 39/2 - 5.
38. Petitioner did not order a chest x-ray of Ms. McCarty during her hospitalization
from November 21, 1988 through November 23, 1988. I.G. Ex. 39/2 - 5; see I.G.
Ex. 6.
39. Petitioner's failure to order a chest x-ray of Ms. McCarty during her hospitalization
from November 21, 1988 through November 23, 1988, violated a professionally
recognized standard of health care. Findings 37 - 38.
40. Petitioner's failure to order a chest x-ray of Ms. McCarty during her hospitalization
from November 21, 1988 through November 23, 1988 presented an imminent danger
to
Ms. McCarty's health, safety, and well-being, and placed Ms. McCarty unnecessarily
in a
high-risk situation. Findings 26, 37 - 39; 42 C.F.R. 1004.1(b).
41. Petitioner committed a gross and flagrant violation of his obligation to
provide
health care to Ms. McCarty which meets professionally recognized standards of
health
care by failing to order a chest x-ray for Ms. McCarty during her hospitalization
from
November 21, 1988 through November 23, 1988. Findings 37 - 40; Social Security
Act,
section 1156(b)(1)(B).
C. Petitioner's failure to order arterial blood gas studies (ABGs) of Ms. McCarty
during her hospitalization from November 21, 1988 through November 23, 1988
42. The diagnoses of Ms. McCarty's condition during her hospitalization from
November 21, 1988 through November 23, 1988 included a diagnosis of secondary
polycythemia. I.G. Ex. 6/1 - 4.
43. The professionally recognized standard of health care for an individual
who is
hospitalized for shortness of breath, congestive heart failure, and polycythemia,
is to
obtain ABGs on that individual. Tr. at 384, 398 - 399.
44. The purpose of obtaining ABGs of an individual who is hospitalized for shortness
of
breath, congestive heart failure, and polycythemia, is to determine that individual's
need
for oxygen. I.G. Ex. 39/3; see Tr. at 398.
45. Petitioner did not order ABGs of Ms. McCarty during her hospitalization
from
November 21, 1988 through November 23, 1988. Tr. at 398; see I.G. Ex. 6.
46. Petitioner's failure to order ABGs of Ms. McCarty during her hospitalization
from
November 21, 1988 through November 23, 1988, presented an imminent danger to
Ms.
McCarty's health, safety, and well-being, and placed Ms. McCarty unnecessarily
in a
high-risk situation. Findings 26, 42 - 45; 42 C.F.R. 1004.1(b).
47. Petitioner committed a gross and flagrant violation of his obligation to
provide
health care to Ms. McCarty which meets professionally recognized standards of
health
care by failing to order ABGs of Ms. McCarty during her hospitalization from
November
21, 1988 through November 23, 1988. Findings 42 - 46; Social Security Act, section
1156(b)(1)(B).
D. Petitioner's failure to order that Ms. McCarty's electrolyte levels be
monitored during her hospitalization from November 21, 1988 through November
23,
1988
48. Ms. McCarty was administered two diuretics, Bumex and Lasix, during her
hospitalization from November 21, 1988 through November 23, 1988. I.G. Ex. 6/6;
Tr. at
409.
49. Bumex and Lasix are medications which are administered in order to reduce
fluids
in patients. Tr. at 410.
50. Ms. McCarty was administered Digoxin during her hospitalization from November
21, 1988 through November 23, 1988. I.G. Ex. 6/6.
51. The medications Digoxin, Lanoxin, and digitalis are used interchangeably
to treat
patients. Tr. at 414 - 415.
52. Digitalis is generally used as a treatment for patients who suffer from
congestive
heart failure. Tr. at 386.
53. Bumex and Lasix have the potential, when administered to a patient, of reducing
significantly that patient's potassium levels. Tr. at 410 - 411.
54. When potassium levels are depleted in a patient who is receiving digitalis
or
Digoxin, that patient is at risk for developing heart block, or complete arrest,
or
stoppage of his or her heart. Tr. at 410 - 411; see Tr. at 414 - 415.
55. The term "electrolytes" means certain chemicals present in an
individual's blood,
including sodium and potassium. Tr. at 411.
56. The professionally recognized standard of health care for a hospitalized
patient who
is receiving diuretics and digitalis or Digoxin is to monitor routinely that
patient's blood
electrolyte levels, in order to assure that the patient's potassium is at a
safe or
therapeutic level. Tr. at 411.
57. Petitioner failed to monitor Ms. McCarty's blood electrolyte levels during
her
hospitalization from November 21, 1988 through November 23, 1988. I.G. Ex. 6,
39/5 -
6; Tr. at 411.
58. Petitioner's failure to monitor Ms. McCarty's blood electrolyte levels during
her
hospitalization from November 21, 1988 through November 23, 1988 presented an
imminent danger to Ms. McCarty's health, safety, and well-being, and placed
Ms.
McCarty unnecessarily in a high risk situation. I.G. Ex. 39/5 - 6; Tr. at 411
- 413;
Findings 26, 48 - 57; 42 C.F.R. 1004.1(b).
59. Petitioner committed a gross and flagrant violation of his obligation to
provide
health care to Ms. McCarty which meets professionally recognized standards of
health
care by failing to monitor Ms. McCarty's blood electrolyte levels during her
hospitalization from November 21, 1988 through November 23, 1988. I.G. Ex. 39/5
- 6;
Tr. at 411 - 413; Findings 48 - 58; Social Security Act, section 1156(b)(1)(B).
E. Petitioner's failure to order BUN or creatinine testing of Ms. McCarty during
her hospitalization from November 21, 1988 through November 23, 1988
60. The professionally recognized standard of health care for a hospitalized
patient who
is receiving diuretics and digitalis or Digoxin is to monitor that patient's
kidney function
by testing that patient for BUN and creatinine output. Tr. at 384 - 385, 416
- 417.
61. The term "BUN" means "blood urea nitrogen," which is
a product formed by a
patient's kidneys as they detoxify or break down substances. Tr. at 385.
62. BUN and creatinine output are an indicator of a patient's kidney function.
Tr. at
416 - 417.
63. Patients whose kidney function is poor and who are receiving Digoxin are
at a much
greater risk of adverse cardiac consequences from the medication than are patients
whose kidney function is satisfactory. Tr. at 416 - 417.
64. Petitioner failed to monitor Ms. McCarty's BUN or creatinine output during
her
hospitalization from November 21, 1988 through November 23, 1988. I.G. Ex. 39/6;
Tr.
at 417; see I.G. Ex. 6.
65. Petitioner's failure to monitor Ms. McCarty's BUN or creatinine output during
her
hospitalization from November 21, 1988 through November 23, 1988 presented an
imminent danger to Ms. McCarty's health, safety, and well-being, and placed
Ms.
McCarty unnecessarily in a high-risk situation. Findings 26, 60 - 64; 42 C.F.R.
1004.1(b).
66. Petitioner committed a gross and flagrant violation of his obligation to
provide
health care to Ms. McCarty which meets professionally recognized standards of
health
care by failing to monitor Ms. McCarty's BUN or creatinine output during her
hospitalization from November 21, 1988 through November 23, 1988. Findings 60
- 65,
Social Security Act, section 1156(b)(1)(B).
F. Petitioner's failure to order a follow-up chest x-ray of Ms. McCarty during
her
hospitalization from December 3, 1988 through December 9, 1988, despite a chest
x-ray
showing borderline cardiac decompensation
67. Ms. McCarty was hospitalized at the Bull Shoals Hospital from December 3,
1988
through December 9, 1988, complaining of severe shortness of breath. I.G. Ex.
10/1 - 2.
68. Petitioner's diagnoses of Ms. McCarty's conditions included secondary polycythemia,
COPD, and congestive heart failure. I.G. Ex. 10/1 - 2.
69. A chest x-ray was taken of Ms. McCarty on December 3, 1988, which showed
borderline cardiac decompensation. I.G. Ex. 10/21.
70. Petitioner ordered no follow-up chest x-rays of Ms. McCarty during her
hospitalization from December 3, 1988 through December 9, 1988, although Ms.
McCarty had been hospitalized for congestive heart failure, and her chest x-ray
showed
borderline cardiac decompensation. I.G. Ex. 39/5; Tr. at 401; see I.G. Ex. 10.
71. Petitioner's failure to monitor Ms. McCarty's congestive heart failure with
follow-up
chest x-rays during her hospitalization from December 3, 1988 through December
9,
1988, presented an imminent danger to Ms. McCarty's health, safety, and well-being,
and
placed Ms. McCarty unnecessarily in a high-risk situation. Findings 26, 67 -
70; see
Findings 37 - 41; 42 C.F.R. 1004.1(b).
72. Petitioner committed a gross and flagrant violation of his obligation to
provide
health care to Ms. McCarty which meets professionally recognized standards of
health
care by failing to monitor Ms. McCarty's congestive heart failure with follow-up
chest
x-rays during her hospitalization from December 3, 1988 through December 9,
1988.
Findings 67 - 71; see Findings 37 - 41; Social Security Act, section 1156(b)(1)(B).
G. Petitioner's failure to order a chest x-ray of Ms. McCarty during her
hospitalization from December 3, 1988 through December 9, 1988, to assess the
consequences of a subclavian phlebotomy
73. Petitioner performed a subclavian phlebotomy on Ms. McCarty during her
hospitalization from December 3, 1988 through December 9, 1988. I.G. Ex. 10/2,
39/5;
Tr. at 401 - 402, 531 - 532.
74. A "phlebotomy" is a procedure wherein a quantity of blood is withdrawn
from a
patient. Tr. at 531.
75. A "subclavian phlebotomy" is a procedure wherein blood is withdrawn
from a
patient's subclavian vein (which is a vein that lies under a patient's collar
bone). Tr. at
401, 531.
76. The professionally recognized standard of health care for a patient who
has had a
subclavian phlebotomy is to perform a post-phlebotomy chest x-ray on the patient,
to
assure that the patient has not experienced a pneumothorax (a partial collapse
of his or
her lung). I.G. Ex. 39/5; Tr. at 401 - 402, 531 - 532.
77. Failure to perform a post-phlebotomy chest x-ray on a patient who has had
a
subclavian phlebotomy can place that patient at serious medical risk for the
development
of complications from a collapsed lung, unless the patient is monitored closely
by other
means for the presence of a collapsed lung. I.G. Ex. 39/5; Tr. at 402, 532.
78. Petitioner did not order a post-phlebotomy chest x-ray of Ms. McCarty during
her
hospitalization from December 3, 1988 through December 9, 1988. I.G. Ex. 39/5;
Tr. at
401 - 402, 531 - 532; see I.G. Ex. 10.
79. Petitioner did not monitor Ms. McCarty closely by other means during her
hospitalization from December 3, 1988 through December 9, 1988, to assure that
she did
not develop complications from a collapsed lung. Tr. at 402; see I.G. Ex. 10.
80. Petitioner's failure to order a post-phlebotomy chest x-ray of Ms. McCarty
during
her hospitalization from December 3, 1988 through December 9, 1988, presented
an
imminent danger to Ms. McCarty's health, safety, and well-being, and placed
Ms.
McCarty unnecessarily in a high-risk situation. Findings 26, 73 - 79; 42 C.F.R.
1004.1(b).
81. Petitioner committed a gross and flagrant violation of his obligation to
provide
health care to Ms. McCarty which meets professionally recognized standards of
health
care by failing to monitor Ms. McCarty with follow-up chest x-rays to assess
the
consequences of a subclavian phlebotomy done during her hospitalization from
December 3, 1988 through December 9, 1988. Findings 73 - 80; Social Security
Act,
section 1156(b)(1)(B).
H. Petitioner's failure to order repeat electrolyte levels of Ms. McCarty during
her hospitalization from December 3, 1988 through December 9, 1988
82. Blood electrolyte levels were ordered of Ms. McCarty on her admission to
the Bull
Shoals Hospital on December 3, 1988. Tr. at 415.
83. Although Petitioner diagnosed Ms. McCarty's conditions to include COPD and
congestive heart failure, and despite the facts that Ms. McCarty was receiving
aggressive
diuretic therapy and her blood electrolyte levels showed low potassium levels,
he did not
order that Ms. McCarty's blood electrolyte levels be monitored with repeat tests
during
her hospitalization from December 3, 1988 through December 9, 1988. I.G. Ex.
39/6; Tr.
at 416; see I.G. Ex. 10.
84. Petitioner's failure to order that Ms. McCarty's blood electrolyte levels
be
monitored with repeat tests during her hospitalization from December 3, 1988
through
December 9, 1988 presented an imminent danger to Ms. McCarty's health, safety,
and
well-being, and placed Ms. McCarty unnecessarily in a high-risk situation. Findings
26,
82 - 83; see Findings 48 - 59; 42 C.F.R. 1004.1(b).
85. Petitioner committed a gross and flagrant violation of his obligation to
provide
health care to Ms. McCarty which meets professionally recognized standards of
health
care by failing to order that Ms. McCarty's blood electrolyte levels be monitored
with
repeat tests during her hospitalization from December 3, 1988 through December
9,
1988. Findings 82 - 84; Social Security Act, section 1156(b)(1)(B).
I. Petitioner's failure to properly document his assessment of Ms. McCarty's
condition, his orders, and Ms. McCarty's progress during her hospitalizations
from
November 21, 1988 through November 23, 1988, and from December 3, 1988 through
December 9, 1988
86. As Ms. McCarty's attending physician during her hospitalizations from November
21, 1988 through November 23, 1988, and from December 3, 1988 through December
9,
1988, Petitioner was responsible for all paperwork associated with Ms. McCarty's
hospitalizations. Tr. at 394; Findings 16 - 17.
87. The professionally recognized standard of health care to be followed by
an attending
physician for a hospitalized patient is to provide documentation of the physician's
assessment of the patient, orders, and progress notes sufficient so that other
providers
can ascertain the patient's condition, treatment, and progress. Tr. at 402 -
403, 505 -
507.
88. The professionally recognized standard of health care to be followed by
an attending
physician for a patient hospitalized with a serious medical condition, such
as Ms.
McCarty, is to document the patient's condition with at least a daily progress
note which
details the physician's findings concerning the patient. Tr. at 402 - 403.
89. Petitioner's progress notes made during Ms. McCarty's hospitalization from
November 21, 1988 through November 23, 1988, did not describe adequately Petitioner's
findings concerning Ms. McCarty's condition. I.G. Ex. 6/6 - 8; Tr. at 402 -
404.
90. Petitioner's progress notes made during Ms. McCarty's hospitalization from
December 3, 1988 through December 9, 1988, were not made daily and did not describe
adequately Petitioner's findings concerning Ms. McCarty's condition. I.G. Ex.
10/24 - 28;
Tr. at 402 - 406.
91. The records of Ms. McCarty's hospitalizations from November 21, 1988 through
November 23, 1988, and from December 3, 1988 through December 9, 1988, fail
to
document adequately multiple changes that were made in Ms. McCarty's medications,
and did not document the reasons for these changes or the impact that the changes
in
medications may have had on Ms. McCarty's status. I.G. Ex. 38/10 - 11; Tr. at
545; see
I.G. Ex. 6, 10.
92. The record of Ms. McCarty's hospitalization from November 21, 1988 through
November 23, 1988, fails to document adequately the reason for, or Ms. McCarty's
response to, a phlebotomy which Petitioner performed during this hospitalization.
Tr. at
395 - 396; see I.G. Ex. 6.
93. The record of Ms. McCarty's hospitalization from December 3, 1988 through
December 9, 1988, fails to document adequately the reason for, and Ms. McCarty's
response to, the subclavian phlebotomy which Petitioner performed during this
hospitalization. I.G. Ex. 39/3; Tr. at 404 - 406; see I.G. Ex. 10.
94. Petitioner's contention that the records of Ms. McCarty's hospitalizations
which are
in evidence omit progress notes that he prepared is not credible. See Tr. at
637 - 639.
95. Petitioner failed to maintain records of Ms. McCarty's hospitalizations
from
November 21, 1988 through November 23, 1988, and from December 3, 1988 through
December 9, 1988, which meets professionally recognized standards of health
care.
Finding 86 - 94.
96. Petitioner's failure to maintain records of Ms. McCarty's hospitalizations
from
November 21, 1988 through November 23, 1988, and from December 3, 1988 through
December 9, 1988, presented an imminent danger to Ms. McCarty's health, safety,
and
well-being, and placed Ms. McCarty unnecessarily in a high-risk situation. Tr.
at 545 -
546; Findings 26, 86 - 95; 42 C.F.R. 1004.1(b).
97. Petitioner committed a gross and flagrant violation of his obligation to
provide
health care to Ms. McCarty which meets professionally recognized standards of
health
care by failing to maintain records of Ms. McCarty's hospitalizations from November
21,
1988 through November 23, 1988, and from December 3, 1988 through December 9,
1988. Findings 86 - 96; Social Security Act, section 1156(b)(1)(B).
IV. Additional acts or omissions by Petitioner related to his responsibility
for Ms.
McCarty's care which are not consistent with accepted medical practice
98. Ms. McCarty was hospitalized at the Bull Shoals Hospital from May 9, 1988
through
May 13, 1988, complaining of respiratory distress. I.G. Ex. 1/1 - 2.
99. Petitioner's diagnoses of Ms. McCarty's condition during this hospitalization
included pneumonia, COPD, and arteriosclerotic heart disease. I.G. Ex. 1/1 -
5.
100. Ms. McCarty was hospitalized at the Bull Shoals Hospital from September
19, 1988
through September 24, 1988, complaining of severe chest pain. I.G. Ex. 3/1 -
2.
101. Petitioner's diagnoses of Ms. McCarty's condition during this hospitalization
included secondary polycythemia, congestive heart failure, and COPD. I.G. Ex.
3/1 - 5.
102. Ms. McCarty was hospitalized at the Bull Shoals Hospital from November
2, 1988
through November 5, 1988. I.G. Ex. 5/1 - 2.
103. Petitioner's diagnoses of Ms. McCarty's condition during this hospitalization
included "intractable" congestive heart failure. I.G. Ex. 5/1 - 6.
A. Petitioner's failure to maintain adequate records of his treatment of Ms.
McCarty during her hospitalization from May 9, 1988 through May 13, 1988
104. As Ms. McCarty's attending physician during her hospitalization from May
9, 1988
through May 13, 1988, Petitioner was responsible for preparing a discharge summary
documenting Ms. McCarty's condition, treatment, and progress. Findings 16, 17;
see
I.G. Ex. 1/3.
105. A discharge summary serves as an information source for further care by
a
patient's attending physician and by other health care professionals who may
treat that
patient. I.G. Ex. 38/2.
106. Petitioner signed the discharge summary for Ms. McCarty's hospitalization
from
May 9, 1988 through May 13, 1988. I.G. Ex. 1/3.
107. The discharge summary for Ms. McCarty's hospitalization from May 9, 1988
through May 13, 1988, did not specifically describe her condition, her treatment
and
progress during her hospitalization, or Petitioner's plan for future treatment
of Ms.
McCarty. I.G. Ex. 1/3, 38/2, /4 - 5.
108. As Ms. McCarty's attending physician during her hospitalization from May
9, 1988
through May 13, 1988, Petitioner was responsible for preparing progress notes
concerning her condition. Findings 16, 17; see I.G. Ex. 1/17 - 20; Findings
87 - 90.
109. The only progress note prepared by Petitioner during Ms. McCarty's hospitalization
from May 9, 1988 through May 13, 1988 is dated May 11, 1988. I.G. Ex. 1/19;
see
Finding 94.
110. Petitioner either failed to attend to Ms. McCarty on May 9, 10, and 12,
1988, or
failed to prepare progress notes documenting his care of Ms. McCarty. See I.G.
Ex. 1/17
- 20; Finding 94.
111. Petitioner's failure to provide a discharge summary documenting the course
of Ms.
McCarty's hospitalization from May 9, 1988 through May 13, 1988 and his failure
to
provide progress notes concerning his treatment of Ms. McCarty during this
hospitalization violate professionally recognized standards of health care.
Findings 87,
88, 104 - 110.
B. Petitioner's failure to treat adequately Ms. McCarty's lower respiratory
infection during her hospitalization from May 9, 1988 through May 13, 1988
112. Ms. McCarty was diagnosed to be suffering from pneumonia when admitted
to the
hospital on May 9, 1988. I.G. Ex. 1/1 - 2.
113. A chest x-ray taken of Ms. McCarty on May 9, 1988 showed her to be suffering
from COPD with mild changes of cardiac decompensation and pulmonary hypertension.
I.G. Ex. 1/12.
114. Petitioner did not request or obtain prior x-rays of Ms. McCarty for comparison
with the x-ray taken on May 9, 1988. I.G. Ex. 1/12.
115. Given the admitting diagnosis of pneumonia, and the x-ray evidence of pulmonary
problems documented by the chest x-ray taken on May 9, 1988, Petitioner should
have
obtained prior chest x-rays of Ms. McCarty for comparison purposes. I.G. Ex.
38/2.
116. Petitioner's failure to obtain prior chest x-rays of Ms. McCarty for comparison
with
the May 9, 1988 chest x-ray constitutes a serious error in his management of
Ms.
McCarty's care. I.G. Ex. 38/2.
117. Ms. McCarty's pneumonia was treated with an antibiotic on May 9, 1988.
I.G. Ex.
1/17, 38/4.
118. On May 10, 1988, Petitioner ordered that administration of the antibiotic
to Ms.
McCarty be stopped. I.G. Ex. 38/4.
119. Petitioner's discontinuation of antibiotic therapy on May 10, 1988, was
a serious
error in his management of Ms. McCarty's care. I.G. Ex. 38/4.
120. The medical records of Ms. McCarty's hospitalization from May 9, 1988 through
May 13, 1988, do not document that Ms. McCarty's pneumonia had resolved itself
prior
to her discharge. I.G. Ex. 1; I.G. Ex. 38/5 - 6.
121. Petitioner failed to treat adequately Ms. McCarty's pneumonia during her
hospitalization from May 9, 1988 through May 13, 1988. I.G. Ex. 38/5 - 6; Findings
112 -
120.
C. Petitioner's failure to manage adequately Ms. McCarty's oxygen therapy
during her hospitalization from May 9, 1988 through May 13, 1988
122. ABGs were performed of Ms. McCarty on May 9, 1988, during her hospitalization
from May 9, 1988 through May 13, 1988. I.G. Ex. 1/2, /8 - 9.
123. The results of these ABGs were significantly abnormal. I.G. Ex. 1/8 - 9,
38/3, /6.
124. Despite the abnormal ABGs, Petitioner did not order additional ABGs of
Ms.
McCarty during her hospitalization from May 9, 1988 through May 13, 1988. I.G.
Ex.
38/6; see I.G. Ex. 1.
125. The physician who admitted Ms. McCarty to the Bull Shoals Hospital during
her
hospitalization from May 9, 1988 through May 13, 1988, ordered that she be
administered oxygen. I.G. Ex. 1/17, 38/3.
126. Throughout Ms. McCarty's hospitalization from May 9, 1988 through May 13,
1988,
Petitioner did not order tests to determine whether Ms. McCarty's oxygen therapy
was
adequate, nor did he order that the oxygen being administered to her be adjusted
to
address changes in her medical condition. I.G. Ex. 38/3; see I.G. Ex. 1.
127. Petitioner failed to provide orders for administration of oxygen to Ms.
McCarty at
her home when she was discharged from the hospital on May 13, 1988. I.G. Ex.
38/3;
see I.G. Ex. 1.
128. Petitioner's failure to monitor Ms. McCarty's need for oxygen through continued
ABGs, his failure to adjust or modify her oxygen therapy as was indicated by
her
condition, and his failure to prescribe orders for administration of oxygen
to Ms.
McCarty after her discharge, constitute serious errors in the management of
Ms.
McCarty during her hospitalization from May 9, 1988 through May 13, 1988. I.G.
Ex.
38/3, /6; Findings 122 - 127; see I.G. Ex. 1.
D. Petitioner's inappropriate orders concerning administration of steroids to
Ms.
McCarty during her hospitalization from May 9, 1988 through May 13, 1988
129. The admission note generated by the physician who admitted Ms. McCarty
to the
Bull Shoals Hospital on May 9, 1988 observed that she was receiving Prednisone
(an oral
steroid) at home, "p.r.n." I.G. Ex. 1/21, 38/3 - 4.
130. The term "p.r.n." means "as needed." I.G. Ex. 38/3.
131. During her hospitalization from May 9, 1988 through May 13, 1988, Ms. McCarty
was initially administered Solu-Medrol (a steroid) intravenously. I.G. Ex. 1/17,
38/3 - 4.
132. On May 11, 1988, while Ms. McCarty was under Petitioner's care, administration
of
Solu-Medrol to Ms. McCarty was ordered discontinued. I.G. Ex. 1/18.
133. On May 11, 1988, Petitioner was prescribed Prednisone 5 mg. twice daily.
I.G. Ex.
1/18, 38/3 - 4.
134. Patients who require steroids to manage lung disease require variable doses
of
steroids appropriate to their condition. I.G. Ex. 38/4.
135. Patients who are converted from intravenous steroids to oral Prednisone
are
normally started on 20 to 40 mg. of Prednisone daily, and the medication is
gradually
tapered off. I.G. Ex. 38/4.
136. Petitioner's decision to administer 5 mg. of Prednisone twice daily to
Ms. McCarty
during her hospitalization from May 9, 1988 through May 13, 1988, after discontinuing
administration of Solu-Medrol to Ms. McCarty, was inappropriate management of
oral
steroids to Ms. McCarty, and constituted inadequate medical care. I.G. Ex. 38/4.
E. Petitioner's premature discharge of Ms. McCarty from her hospitalization
from May 9, 1988 through May 13, 1988
137. On May 12, 1988, during her hospitalization from May 9, 1988 through May
13,
1988, Ms. McCarty's blood pressure was recorded to be 64/42. I.G. Ex. 1/30.
138. On May 12, 1988, during her hospitalization from May 9, 1988 through May
13,
1988, Ms. McCarty's heart rate was recorded to be 120 beats per minute. I.G.
Ex. 1/30.
139. No subsequent records were made of Ms. McCarty's blood pressure and pulse
during her hospitalization from May 9, 1988 through May 13, 1988. See I.G. Ex.
1.
140. Ms. McCarty's blood pressure on May 12, 1988 was extremely low and her
heart
rate was elevated. I.G. Ex. 38/5.
141. As of May 12, 1988, Ms. McCarty was receiving a variety of medications
that could
have affected her blood pressure, including Vasotec, Verapamil, Nitro-Bid, and
Lasix.
I.G. Ex. 1/17, 38/5 - 6.
142. The readings of Ms. McCarty's blood pressure and pulse taken on May 12,
1988,
showed Ms. McCarty's condition to be unstable medically, and Petitioner should
not
have discharged Ms. McCarty from the Bull Shoals Hospital on May 13, 1988. I.G.
Ex.
38/5 - 6.
143. Petitioner's premature discharge of Ms. McCarty from the Bull Shoals Hospital
on
May 13, 1988, placed Ms. McCarty at serious risk from the effects of hypotension.
I.G.
Ex. 38/5 - 6.
F. Petitioner's failure to maintain adequate records of his treatment of Ms.
McCarty during her hospitalization from September 19, 1988 through September
24,
1988
144. Petitioner signed the discharge summary for Ms. McCarty's hospitalization
from
September 19, 1988 through September 24, 1988. I.G. Ex. 3/3.
145. The discharge summary fails to contain information concerning the management
of
Ms. McCarty's medications, her respiratory therapy, or her home oxygen management.
I.G. Ex. 3/3, 38/7.
146. The discharge summary fails to address Ms. McCarty's progress while in
the
hospital or to provide a plan for treatment of Ms. McCarty's illnesses. I.G.
Ex. 3/3.
147. Petitioner's failure to provide a discharge summary documenting the course
of Ms.
McCarty's hospitalization from September 19, 1988 through September 24, 1988,
violates
professionally recognized standards of health care. Findings 87, 144 - 146.
G. Petitioner's failure to obtain ABGs of Ms. McCarty during her hospitalization
from September 19, 1988 through September 24, 1988
148. Petitioner failed to order that ABGs be performed of Ms. McCarty during
her
hospitalization from September 19, 1988 through September 24, 1988, despite
his
diagnoses of Ms. McCarty's illnesses, which included congestive heart failure
and COPD.
I.G. Ex. 38/7; see I.G. Ex. 3.
149. Given Petitioner's diagnoses of Ms. McCarty's conditions as including congestive
heart failure and COPD, his failure to order that ABGs be performed of Ms. McCarty
during her hospitalization from September 19, 1988 through September 24, 1988,
constituted a violation of a professionally recognized standard of health care.
I.G. Ex.
38/7 - 8, /10; Findings 42 - 47, 148.
H. Petitioner's inappropriate administration of Demerol to Ms. McCarty during
her hospitalization from September 19, 1988 through September 24, 1988
150. On the evening of September 19, 1988, Petitioner ordered that Demerol be
administered to Ms. McCarty. I.G. Ex. 3/12, 38/7 - 8.
151. Demerol is a narcotic drug which can cause respiratory failure in susceptible
individuals. I.G. Ex. 38/8; Tr. at 437.
152. The quantity of Demerol that Petitioner ordered administered to Ms. McCarty
on
September 19, 1988, was potentially dangerous to her health and safety, in light
of her
significant COPD and congestive heart failure, and in the absence of ABGs that
would
document the seriousness of Ms. McCarty's condition. I.G. Ex. 38/7 - 8.
153. Given Ms. McCarty's condition, there existed a significant danger that
administration of Demerol to her on September 19, 1988, in the quantity prescribed
by
Petitioner, could have precipitated acute respiratory failure. I.G. Ex. 38/8;
Tr. at 436.
154. Petitioner's directive on September 19, 1988, that Demerol be administered
to Ms.
McCarty in the quantity prescribed by Petitioner was, in light of her diagnosed
condition
and the absence of tests to determine the seriousness of her condition, an inappropriate
directive. I.G. Ex. 38/7 - 8; Tr. at 436; Findings 150 - 153.
I. Petitioner's failure to prescribe bronchodilator therapy to Ms. McCarty during
her hospitalization from September 19, 1988 through September 24, 1988
155. Ms. McCarty's respiratory condition during her hospitalization from May
9, 1988
through May 13, 1988, was such as to require the administration of bronchodilator
drugs.
I.G. Ex. 1/17, 38/8.
156. Bronchodilator drugs, including Theophylline, are used to treat COPD. See
I.G.
Ex. 1/17, 38/8.
157. Ms. McCarty continued to suffer from COPD during her hospitalization from
September 19, 1988 through September 24, 1988. I.G. Ex. 38/8; Finding 101.
158. COPD is a chronic condition that does not resolve itself spontaneously.
Tr. at 492.
159. Notwithstanding that Ms. McCarty continued to suffer from COPD during her
hospitalization from September 19, 1988 through September 24, 1988, Petitioner
did not
order that she be administered bronchodilator drugs during her hospitalization.
I.G. Ex.
38/8; see I.G. Ex. 3.
160. Petitioner's failure to order that Ms. McCarty be administered bronchodilator
drugs during her hospitalization from September 19, 1988 through September 24,
1988,
constitutes a serious judgment error, because failure to administer bronchodilator
drugs
to Ms. McCarty placed her at significant risk for worsening of her condition.
I.G. Ex.
38/8; Findings 156 - 159.
J. Petitioner's failure to order repeat chest x-rays of Ms. McCarty during her
hospitalization from September 19, 1988 through September 24, 1988
161. A chest x-ray was taken of Ms. McCarty on her admission to the Bull Shoals
Hospital on September 19, 1988. I.G. Ex. 3/10.
162. Petitioner did not order that follow-up chest x-rays be taken of Ms. McCarty
during
her hospitalization from September 19, 1988 through September 24, 1988. I.G.
Ex. 38/8;
see I.G. Ex. 3.
163. The chest x-ray taken of Ms. McCarty on her admission to the Bull Shoals
Hospital
on September 19, 1988, showed improvement in her condition as compared with
a
previous x-ray, but it also showed her to manifest basilar edema, more marked
in the left
lower lung field. I.G. Ex. 3/10, 38/8.
164. During her hospitalization from September 19, 1988 through September 24,
1988,
Ms. McCarty gained three pounds, which could be a sign of worsening congestive
heart
failure. I.G. Ex. 3/21, 38/8.
165. Petitioner should have ordered a repeat chest x-ray of Ms. McCarty before
discharging her from the Bull Shoals Hospital on September 24, 1988, given Ms.
McCarty's diagnosis of congestive heart failure, her weight gain, and the findings
on her
admission chest x-ray. I.G. Ex. 38/8; Findings 161 - 164.
166. Petitioner's failure to order a repeat chest x-ray of Ms. McCarty before
discharging
her from the Bull Shoals Hospital on September, 24, 1988, was an error in medical
judgment by Petitioner. I.G. Ex. 38/8; see Findings 67 - 72.
K. Petitioner's unjustified performance of a phlebotomy on Ms. McCarty on
September 24, 1988
167. Petitioner performed a phlebotomy on Ms. McCarty on September 24, 1988.
I.G.
Ex. 3/14.
168. Ms. McCarty was discharged from the Bull Shoals Hospital on September 24,
1988.
I.G. Ex. 3/1, /3 - 4, /14.
169. Removal of blood from a patient in Ms. McCarty's condition and in the quantity
extracted from Ms. McCarty (500 cc) can have immediate adverse hemodynamic
consequences for the patient. I.G. Ex. 38/9; see I.G. Ex. 3/14.
170. Petitioner provided no documentation concerning how the phlebotomy he
performed on Ms. McCarty was performed, how Ms. McCarty tolerated the procedure,
and what her vital signs were before and after the procedure. I.G. Ex. 38/9;
see I.G. Ex.
3; Finding 94.
171. Petitioner provided no rationale in his progress notes or in other documentation
for performing a phlebotomy on Ms. McCarty on September 24, 1988. I.G. Ex. 38/9;
see
I.G. Ex. 3.
172. There existed no clear medical need to perform a phlebotomy on Ms. McCarty
on
September 24, 1988, given her condition as of that date. I.G. Ex. 38/9.
173. Ms. McCarty should not have been discharged from the Bull Shoals Hospital
on
September 24, 1988, in view of the risks associated with performing a phlebotomy
on her
and the failure to monitor her condition after the phlebotomy was performed.
I.G. Ex.
38/9; Findings 169 - 170.
174. Petitioner's performance of a phlebotomy on Ms. McCarty on September 24,
1988,
unnecessarily placed her in a high-risk situation. I.G. Ex. 38/9.
175. Petitioner's performance of a phlebotomy on Ms. McCarty on September 24,
1988,
was a gross and flagrant violation of his obligation to provide health care
to Ms.
McCarty which meets professionally recognized standards of health care. 5/ I.G.
Ex.
38/9.
L. Petitioner's premature discharge of Ms. McCarty from the Bull Shoals
Hospital on November 23, 1988
176. On November 23, 1988, the day Ms. McCarty was discharged from her November
21, 1988 through November 23, 1988 hospitalization at the Bull Shoals Hospital,
Ms.
McCarty complained to a nurse that she was nauseous, that she was very short
of breath,
and that she was experiencing chest pain. I.G. Ex. 6/20.
177. Ms. McCarty experienced her chest pain while attempting to have a bowel
movement. I.G. Ex. 6/20.
178. Chest pain during exertion (such as attempting to have a bowel movement)
is
inconsistent with COPD, but may be consistent with heart disease, including
angina or a
myocardial infarction. Tr. at 497 - 498.
179. The nurse who was treating Ms. McCarty on November 23, 1988 observed her
to
be apprehensive. I.G. Ex. 6/20.
180. The symptoms complained of by Ms. McCarty on November 23, 1988 and her
signs
of apprehension could be indicative of cardiac disease, including angina or
a myocardial
infarction. Tr. at 497 - 499.
181. Petitioner failed to evaluate Ms. McCarty's complaints of nausea, chest
pain, and
shortness of breath, and her signs of apprehension, before discharging her from
the Bull
Shoals Hospital on November 23, 1988. See I.G. Ex. 3.
182. Petitioner could have ordered tests, such as an EKG and blood tests, to
evaluate
Ms. McCarty's symptoms and signs of apprehension prior to discharging her on
November 23, 1988. Tr. at 499.
183. Petitioner's failure to order tests to evaluate Ms. McCarty's symptoms
and signs of
apprehension prior to discharging her on November 23, 1988, unnecessarily placed
Ms.
McCarty at risk. Tr. at 422, 496 - 499
M. Petitioner's inappropriate administration of Heparin to Ms. McCarty in
conjunction with the subclavian phlebotomy he performed on her on December 5,
1988
184. On December 5, 1988, during Ms. McCarty's hospitalization at the Bull Shoals
Hospital from December 3, 1988 through December 9, 1988, Petitioner ordered
that she
be administered 1000 units of Heparin. I.G. Ex. 10/25.
185. Petitioner's apparent purpose in ordering that 1000 units of Heparin be
administered to Ms. McCarty was to make it easier to withdraw blood from her
during a
phlebotomy. I.G. Ex. 10/3.
186. Petitioner ordered that Heparin be administered to Ms. McCarty by injection
into
a muscle. I.G. Ex. 10/25; Tr. at 532.
187. Heparin is a drug which is administered to patients to prevent their blood
from
clotting. Tr. at 532.
188. The normal way to administer Heparin to a patient is by intravenous
administration or by injection into a patient's fatty tissue. Tr. at 532.
189. It is dangerous to administer Heparin into a patient's muscle because Heparin
can
induce blood clots, bleeding, or bruising in the patient's muscle. Tr. at 532
- 533.
190. The dose of Heparin which Petitioner ordered administered to Ms. McCarty
is a
subtherapeutic dose. Tr. at 532 - 533.
191. Administration of a subtherapeutic dose of Heparin to a patient exposes
the
patient to the risk of an adverse reaction to the drug, without conferring any
benefit on
the patient. Tr. at 532 - 533.
192. There is no medical justification to administer Heparin to a patient in
conjunction
with a phlebotomy, either in a subtherapeutic or a therapeutic dose. Tr. at
533.
193. Petitioner's directive that Heparin be administered to Ms. McCarty on December
5, 1988, by intramuscular injection and in a subtherapeutic dose, was medically
unjustified and exposed Ms. McCarty to an unnecessary risk of injury. Findings
184 -
192.
V. The sufficiency of the Arkansas PRO's notice to Petitioner concerning its
review of
his treatment of Ms. McCarty and its recommendation that Petitioner be excluded
194. A peer review organization may recommend to the Secretary of the United
States
Department of Health and Human Services, or to his delegate, the I.G., that
a party be
excluded from participating in Medicare and Medicaid, if it: (1) determines
that the
party has grossly and flagrantly violated an obligation to provide health care
that meets
professionally recognized standards of health care in one or more instances;
and (2)
provides reasonable notice and opportunity for discussion with the concerned
party (and
where appropriate, provides the concerned party with the opportunity to enter
into a
corrective action plan). Social Security Act, section 1156(b)(1).
195. A peer review organization satisfies the requirement that it provide reasonable
notice and opportunity for discussion with a party, prior to recommending that
the party
be excluded, based on a determination that the party has committed one or more
gross
or flagrant violations of that party's statutory obligation to provide health
care, by
sending to that party a written notice of its proposed determination and by
providing
that party with an opportunity to respond to the determination. Social Security
Act,
section 1156(b)(1); 42 C.F.R. 1004.40(a), 1004.50(a), (b).
196. A peer review organization satisfies the requirement that it provide written
notice
and opportunity for response to a party of a determination to recommend exclusion
by
sending the notice to that party's home or business mailing address, certified
mail, return
receipt requested. Finding 195; Social Security Act, section 1156(b)(1); 42
C.F.R.
1004.40(a), 1004.50(a), (b).
197. The notice requirement of the Act and regulations does not require that
a party
obtain and read a notice that has been sent to that party by a peer review organization,
so long as that party has been advised that a notice has been sent to that party
via
certified mail and that party has the opportunity to obtain and read the notice.
Social
Security Act, section 1156(b)(1); 42 C.F.R. 1004.40(a), 1004.50(a), (b).
198. The Arkansas PRO sent notices to Petitioner, advising him of its initial
determination that he had committed gross and flagrant violations of his obligation
to
provide health care to Ms. McCarty that meets professionally recognized standards
of
health care and of its decision to recommend exclusion. The notices also provided
him
with an opportunity to respond to the Arkansas PRO's determinations. I.G. Ex.
27/1 - 8,
/45 - 49, /62 - 66, /77 - 81, /97; Tr. at 295 - 308.
199. The notices which the Arkansas PRO sent to Petitioner were dated January
23,
1990, March 15, 1990, July 31, 1990, and January 7, 1991. I.G. Ex. 27/6, /45,
/62, /77.
200. The Arkansas PRO sent the notices to Petitioner's home address in Scottsboro,
Alabama, by certified mail, return receipt requested. I.G. Ex. 27/6, /23, /45,
/62, /77, /97;
Tr. at 295 - 297.
201. The United States Postal Service notified Petitioner on each of the four
occasions
that he had been sent certified mail, but he failed to claim it. I.G. Ex. 27/2
- 3, /6, /9,
/97; I.G. Ex. 27a; Tr. at 297.
202. The Arkansas PRO satisfied its obligation to Petitioner to provide him
with written
notice of its initial determination of gross and flagrant violations of his
obligation to
provide health care to Ms. McCarty that meets professionally recognized standards
of
health care and of its obligation to provide him with written notice of its
determination
to recommend exclusion. The Arkansas PRO also provided Petitioner with an
opportunity to respond to their determinations, by sending written notices to
his home
address in Scottsboro Alabama, certified mail, return receipt requested. Findings
194 -
201; Social Security Act, section 1156(b)(1); 42 C.F.R. 1004.40(a), 1004.50(a),
(b).
VI. Petitioner's inability or unwillingness substantially to comply with his
obligation to
provide health care of a quality which meets professionally recognized standards
of
health care
203. The Secretary or his delegate, the I.G., may exclude a party from participating
in
Medicare and Medicaid where, based on the recommendation of a peer review
organization, he determines that the party has: (1) in one or more instances,
grossly or
flagrantly violated his obligation to provide health care of a quality which
meets
professionally recognized standards of health care; and (2) demonstrated an
unwillingness or a lack of ability substantially to comply with such obligation.
Social
Security Act, section 1156(b)(1).
204. Petitioner committed gross and flagrant violations of his obligation to
provide
health care to Ms. McCarty of a quality which meets professionally recognized
standards
of health care. Findings 26 - 97.
205. The Arkansas PRO recommended to the I.G. that Petitioner be excluded based
on
his commission of gross and flagrant violations of his obligation to provide
health care to
Ms. McCarty of a quality which meets professionally recognized standards of
health care.
I.G. Ex. 27/1 - 5.
206. Based on the Arkansas PRO's recommendation, the I.G. determined that
Petitioner had committed gross and flagrant violations of his obligation to
provide health
care to Ms. McCarty of a quality which meets professionally recognized standards
of
health care, and that he was unable or unwilling to meet his obligation to provide
health
care. I.G. Ex. 15.
A. Petitioner's inability to comply substantially with his obligation to provide
health care of a quality which meets professionally recognized standards of
health care
207. The acts or omissions Petitioner committed during Ms. McCarty's hospitalizations
from November 21, 1988 through November 23, 1988, and December 3, 1988 through
December 9, 1988, which constitute gross and flagrant violations of Petitioner's
obligation to provide health care to Ms. McCarty of a quality which meets professionally
recognized standards of health care, establish that Petitioner lacks a basic
understanding
of the pathophysiology of cardiovascular disease, respiratory disease, and polycythemia.
Tr. at 423; Findings 26 - 97; see I.G. Ex. 6, 10.
208. Petitioner's treatment of Ms. McCarty during her hospitalizations from
November
21, 1988 through November 23, 1988, and December 3, 1988 through December 9,
1988,
demonstrates a total lack on Petitioner's part of a basic understanding of the
essential
elements of proper medical care of patients. Tr. at 538 - 539; Findings 26 -
97; see I.G.
Ex. 6, 10.
209. The I.G. proved that Petitioner is unable to comply with his obligation
to provide
health care of a quality which meets professionally recognized standards of
health care.
Findings 26 - 97, 207 - 208; Social Security Act, section 1156(b)(1).
B. Petitioner's unwillingness to comply substantially with his obligation to
provide
health care of a quality which meets professionally recognized standards of
health care
210. Petitioner's management of Ms. McCarty's health care during her hospitalizations
from November 21, 1988 through November 23, 1988, and December 3, 1988 through
December 9, 1988, demonstrates a pattern of gross and flagrant violations by
Petitioner
of his obligation to provide health care to Ms. McCarty of a quality which meets
professionally recognized standards of health care. Findings 26 - 97; see I.G.
Ex. 6, 10.
211. The pattern of gross and flagrant violations by Petitioner of his obligation
to
provide health care to Ms. McCarty of a quality which meets professionally recognized
standards of health care establishes Petitioner to be indifferent to his obligation
to
provide such health care. Findings 26 - 97, 210; see I.G. Ex. 6, 10.
212. Petitioner's indifference to his obligation to provide health care to Ms.
McCarty of
a quality which meets professionally recognized standards of health care establishes
him
to be unwilling to meet his obligation to provide such health care. Findings
210 - 211.
213. The I.G. proved that Petitioner is unwilling to comply substantially with
his
obligation to provide health care of a quality which meets professionally recognized
standards of health care. Findings 210 - 212; Social Security Act, section 1156(b)(1).
VII. The remedial need for an exclusion
214. The remedial purpose of an exclusion imposed pursuant to section 1156 of
the Act
is to protect the welfare of program beneficiaries and recipients from parties
who are
untrustworthy to provide health care of the requisite quality. Social Security
Act, section
1156(b)(1).
215. Petitioner's gross and flagrant violations of his obligation to provide
health care to
Ms. McCarty of a quality which meets professionally recognized standards of
health care,
and his other acts or omissions in the treatment of Ms. McCarty which are not
consistent
with accepted medical practice, constitute serious and repeated violations of
Petitioner's
duty as a physician to provide health care of a quality which meets accepted
medical
standards. Tr. at 538, 546; Findings 26 - 193; see 42 C.F.R. 1004.90(d)(2),
(3).
216. Petitioner's treatment of Ms. McCarty establishes that he lacks general
medical
understanding in a wide variety of areas, including basic, essential medical
care. Tr. at
538; Findings 26 - 193; see 42 C.F.R. 1004.90(d)(2), (3).
217. Petitioner's treatment of Ms. McCarty demonstrates him to be an untrustworthy
provider of care. Findings 214 - 216.
218. Petitioner's completion of continuing medical education courses in advanced
cardiac life support and advanced trauma life support does not establish that
now or in
the relatively near future he would be trustworthy to provide health care, because
the
materials taught in these courses do not address the basic deficiencies in Petitioner's
knowledge of medicine, as demonstrated by his treatment of Ms. McCarty. Tr.
at 546 -
547.
219. Petitioner's generally satisfactory performance as an emergency room physician
subsequent to his treatment of Ms. McCarty does not establish that now or in
the
relatively near future he would be trustworthy to provide health care, because
his current
duties do not encompass the broad range of medical responsibilities inherent
in the
practice of medicine. See I.G. Ex. 24; Tr. at 673 - 697, 706 - 717.
220. A five-year exclusion is reasonable in this case. Findings 26 - 193; 214
- 219.
ANALYSIS
There are two principal issues in this case. The first issue is whether, based
on the
Arkansas PRO's determination and recommendation to the I.G., the I.G. had authority
to exclude Petitioner. The second issue is whether the five-year exclusion imposed
and
directed against Petitioner by the I.G. is a reasonable remedy.
The evidence strongly supports the Arkansas PRO's determination and recommendation
to the I.G. that Petitioner be excluded pursuant to section 1156(b)(1). I therefore
find
that the I.G. has authority to exclude Petitioner pursuant to section 1156(b)(1)
of the
Act. There is overwhelming and essentially unrebutted evidence in this case
that, in
numerous instances, Petitioner grossly and flagrantly violated his obligation
to provide
health care to Ms. Barbara McCarty, a Medicare beneficiary, of a quality which
meets
professionally recognized standards of health care. Petitioner's gross and flagrant
violations of his obligation establish that he is not competent to provide health
care of a
quality which meets professionally recognized standards of health care. He is
thus
unable to provide health care of a level required by the Act. Alternatively,
Petitioner's
conduct towards Ms. McCarty demonstrates indifference by Petitioner to his duty
to
fulfill his professional obligations. In that event, Petitioner is unwilling
to provide health
care of a level which meets professionally recognized standards of health care.
The evidence also proves that the five-year exclusion imposed and directed against
Petitioner by the I.G. is reasonable. The evidence of Petitioner's gross and
flagrant
violations of his professional obligations, coupled with additional evidence
of Petitioner's
dereliction of his duty to provide health care to Ms. McCarty, establishes Petitioner
to
be a manifestly untrustworthy provider of health care. The evidence establishing
Petitioner to be untrustworthy is not rebutted by evidence offered by Petitioner
that,
subsequent to his treatment of Ms. McCarty, he completed continuing medical
education
courses in advanced cardiac life support and advanced trauma life support. Nor
is it
rebutted by evidence that, subsequent to his treatment of Ms. McCarty, Petitioner
has
performed in a generally satisfactory manner as an emergency room physician.
A
lengthy exclusion is justified in this case to protect program beneficiaries
and recipients
from the possibility that Petitioner might fail to treat them properly.
1. The I.G. had authority to exclude Petitioner under section 1156(b)(1) of
the Act.
The I.G. excluded Petitioner pursuant to section 1156(b)(1) of the Act. The
I.G.'s
authority to impose an exclusion under section 1156(b)(1) derives from a peer
review
organization's determination and recommendation to him that a party be excluded.
To
be resolved in any hearing conducted under section 1156(b)(1), is: (1) whether
evidence
adduced by the peer review organization and relied upon by it in making its
recommendation supports its recommendation to the I.G that a party be excluded;
and
(2) whether the peer review organization's recommendation is in accord with
one of the
statutory grounds on which an exclusion recommendation may be based.
Section 1156(a) of the Act defines three professional obligations of parties
who provide
items or services to program beneficiaries and recipients. These are that health
care will
be: (1) provided economically and only when, and to the extent, medically necessary;
(2)
of a quality which meets professionally recognized standards of health care;
and (3)
supported by evidence of medical necessity and quality in such form and fashion
and at
such time as may reasonably be required by a reviewing peer review organization
in the
exercise of its duties and responsibilities. Section 1156(b)(1) provides that
a peer review
organization may recommend that a party be excluded if it determines that the
party has
either failed in a substantial number of cases to comply substantially with
any of these
three obligations, or if that party has grossly and flagrantly violated any
of these
obligations in one or more instances.
In this case, the Arkansas PRO based its exclusion recommendation to the I.G.
on a
conclusion that Petitioner had, on multiple occasions, engaged in gross and
flagrant
violations of his obligation to provide health care to Ms. McCarty of a quality
which
meets professionally recognized standards of health care. 6/ The I.G. accepted
the
Arkansas PRO's finding. The I.G. found also that Petitioner was both unable
and
unwilling to provide health care of a quality which meets professionally recognized
standards of health care. 7/
Section 1156(b)(4) of the Act provides that a party who is subject to an exclusion
determination pursuant to section 1156(b)(1) is entitled to an administrative
hearing.
This section expressly confers on excluded parties those rights to a hearing
which inure
to parties under section 205(b) of the Act. Section 205(b) provides for a de
novo
hearing. Bernardo G. Bilang, M.D., DAB 1295 (1992); Eric Kranz, M.D., DAB 1286
(1991). My obligation in conducting a de novo hearing under sections 205(b)
and
1156(b)(1) on the issue of the I.G.'s authority to exclude a party is to allow
each party to
the hearing the opportunity to offer evidence concerning the sufficiency of
the facts on
which a peer review organization's recommendation and the I.G.'s ultimate
determination are based. Inasmuch as the I.G.'s authority to exclude under section
1156(b)(1) derives from a determination and a recommendation made by a peer
review
organization, I must limit the evidence I receive on the issue of authority
to exclude to
evidence which establishes whether there exists a basis in fact for: (1) the
peer review
organization's determination and recommendation to the I.G.; and (2) the I.G.'s
finding
that the excluded party is unable or unwilling to meet his statutory obligation
to provide
care.
In allowing the I.G. to offer proof on the issue of whether he has authority
to exclude a
party under section 1156(b)(1) deriving from a peer review organization's
recommendation, I may not permit him to offer evidence as to facts which were
not
considered by the peer review organization in making its determination and
recommendation, even if those facts might support the I.G.'s ultimate determination
to
exclude a party. Also, I must permit the excluded party the opportunity to challenge
and
to rebut the factual basis for the peer review organization's determination
and
recommendation. However, I may not allow an excluded party to offer evidence
proving
facts which exceed the scope of the peer review organization's review, determination,
and recommendation.
As I shall discuss infra, at Part 2 of this Analysis, the de novo hearing requirements
of
section 205(b) permit a broader evidentiary presentation under section 1156(b)(1)
on the
issue of whether an exclusion of a particular length is reasonable, than on
the issue of
whether the I.G. has the authority to exclude a party. On the remedy issue,
I may
accept evidence from either party which relates to an excluded party's trustworthiness
to
provide care, even if that evidence exceeds the boundaries of that which was
considered
by the peer review organization in making its determination and recommendation
to the
I.G.
My decision on the issue of whether the I.G. had authority to exclude Petitioner
is
therefore based on evidence which relates to the Arkansas PRO's findings of
gross and
flagrant violations by Petitioner of his obligation to provide health care to
Ms. McCarty
of a quality which meets professionally recognized standards of health care.
On this
issue, I have not considered evidence offered by the I.G. concerning other instances
in
which Petitioner is alleged to have engaged in unprofessional conduct. Nor have
I
considered as relevant to this issue evidence offered by Petitioner concerning
his practice
of medicine subsequent to the episodes which form the basis of the Arkansas
PRO's
recommendations to the I.G. However, I have considered such evidence as relevant
to
the issue of whether the five-year exclusion imposed by the I.G. is reasonable.
On this
latter issue, I have also considered as relevant evidence relating to the Arkansas
PRO's
findings of gross and flagrant abuses by Petitioner of his obligation to provide
health
care. 8/
a. The Arkansas PRO gave notice to Petitioner of its initial determination in
accordance with the requirements of the Act and regulations.
Petitioner raises the threshold question of whether the Arkansas PRO properly
advised
him of its intent to recommend an exclusion to the I.G., arguably which would
have
provided him with the required opportunity to respond to the Arkansas PRO's
then-proposed determination. Petitioner argues that the Arkansas PRO failed
to meet
its obligation to provide him with notice of the proposed determination and
opportunity
to respond to it, because he did not obtain any of the notices which the Arkansas
PRO
sent to him. Therefore, according to Petitioner, he was denied due process guaranteed
by the Act, and the Arkansas PRO's recommendation to the I.G. was defective.
He
asserts from that conclusion that the I.G. lacks authority to exclude him under
section
1156(b)(1).
Section 1156(b)(1) provides that, before reaching a determination under the
Act, a peer
review organization must provide a party who is the subject of the determination
with
reasonable notice and opportunity for discussion of the proposed determination.
The
peer review organization's statutory obligation is defined further by regulations
to mean
giving written notice to a party of any proposed determination. 42 C.F.R.
1004.40, 1004.50. The regulations do not specify the manner in which the written
notice
must be given to a party.
The narrow question which I must resolve here is whether the Arkansas PRO discharged
its notice obligation to Petitioner under section 1156(b)(1) and 42 C.F.R.
1004.40, 1004.50, by mailing written notices, return receipt requested, to Petitioner's
residence in Scottsboro, Alabama. I conclude that the Arkansas PRO discharged
its
notice obligation to Petitioner. The Arkansas PRO performed its duty notwithstanding
the fact that Petitioner elected not to claim the certified notices from the
Scottsboro,
Alabama post office.
The facts relevant to this threshold issue are as follows. By early 1990, Petitioner
no
longer resided in or practiced medicine in Bull Shoals, Arkansas. He had relocated
to
Scottsboro, Alabama, and was practicing medicine in a local hospital's emergency
room.
However, Petitioner knew that the Arkansas PRO was concerned about his treatment
of
Ms. McCarty because, prior to his leaving Arkansas, he had received several
notices
from the Arkansas PRO concerning his treatment of Ms. McCarty, and had responded
to at least one of them. On March 22, 1989, the Arkansas PRO advised Petitioner
that
it had discerned quality of care problems in his treatment of Ms. McCarty during
her
hospitalization from November 21, 1988 through November 23, 1988. I.G. Ex. 27/104
-
105. Petitioner responded to that notice with a letter dated March 29, 1989.
I.G. Ex.
27/102 - 103. On April 13, 1989, the Arkansas PRO advised Petitioner that it
had
confirmed a quality of care problem in his treatment of Ms. McCarty and advised
him
that, as a consequence, his treatment of patients would be more intensively
reviewed.
I.G. Ex. 27/99. Thus, Petitioner knew when he left Arkansas that the Arkansas
PRO was
concerned about his treatment of patients and that it had not ceased reviewing
the
records of his treatments.
Petitioner left Arkansas without advising the Arkansas PRO of his move, and
without
providing the Arkansas PRO with an Alabama mailing address. An employee of the
Arkansas PRO, Catherine Bain, ascertained from the Alabama Medical Board the
residential address in Scottsboro, Alabama, that was being used by that agency
as a
mailing address for notices which it sent to Petitioner. Tr. at 349 - 350. Ms.
Bain
contacted the administrator of the Scottsboro hospital to verify that Petitioner
practiced
there. Tr. at 297. She confirmed with the Scottsboro, Alabama postmaster that
the
residential address in Scottsboro which the Alabama Medical Board used to mail
notices
to Petitioner was a valid mailing address for Petitioner. Tr. at 297 - 305.
The Arkansas PRO then sent three separate notices to Petitioner's Scottsboro,
Alabama
residential address, advising him of its likely determination and providing
him with an
opportunity to respond. The Arkansas PRO sent these notices to Petitioner on
January
23, 1990, March 15, 1990, and July 31, 1990. The Arkansas PRO sent each of these
notices to Petitioner by certified mail. 9/ The Scottsboro, Alabama post office
gave
Petitioner written notification that each of these notices was available for
him to claim.
Petitioner did not claim any of the notices. On January 7, 1991, the Arkansas
PRO sent
Petitioner a copy of the determination and exclusion recommendation which it
was
making to the I.G. As with the three notices, this document was sent to Petitioner's
Scottsboro, Alabama residence by certified mail. Again, the local post office
advised
Petitioner that the document was available for Petitioner to claim, and Petitioner
failed
to claim it. I.G. Ex. 27/6 - 12.
Petitioner does not dispute that the address in Scottsboro to which the Arkansas
PRO
sent the notices is in fact the address of his Scottsboro residence. Indeed,
the I.G. sent
his exclusion notice to that address and Petitioner received it there. Petitioner
does not
deny that he received notification from the Scottsboro, Alabama post office
that certified
letters had been sent to him and that they were available to be claimed by him.
Petitioner does not argue that the three notices failed to contain the information
required by law to be provided concerning the Arkansas PRO's determination.
Petitioner does not contend that he was precluded from claiming the Arkansas
PRO's
notices by some event which was beyond his ability to control. Nor does Petitioner
argue that, but for his failure to receive the Arkansas PRO's notices, he would
have
supplied the Arkansas PRO with exculpatory or explanatory information which
would
have affected the Arkansas PRO's determination.
Petitioner is arguing in effect that the Arkansas PRO was obliged to assure
that he
actually received the notice. He analogizes the Arkansas PRO's duty as being
equivalent
to that of a party serving a summons and complaint under the Federal Rules of
Civil
Procedure, noting that under those rules, a party must assure personal service
of a
summons and complaint if service is not effectuated by mail. See F.R.C.P. Rule
4.
I disagree with Petitioner's analysis. The obligation of a peer review organization
under
section 1156(b)(1) of the Act and 42 C.F.R. 1004.40, 1004.50 to provide a party
with reasonable notice of its actions is not a service of process obligation.
The language
of both the Act and the regulations closely parallels the notice requirements
of Rule 5 of
the Federal Rules of Civil Procedure, a rule which pertains to notices between
parties
after process has been obtained in a civil action. See F.R.C.P. Rule 5(b). Under
that
rule, a party to a civil action discharges his or her duty to provide an adversary
with
"reasonable notice" of a pleading or other filing by mailing notice
of that filing to the
adverse party. The duty to provide notice under Rule 5(b) is discharged upon
placing
written notice in the mail to a party's last known address. Under Rule 5(b),
sending a
notice to a party by registered mail discharges the party's notice obligation,
even if the
addressee fails to claim the notice. Bourne, Inc. v. Romero, 23 F.R.D. 292,
296 (E.D.
La. 1959).
Congress could have required peer review organizations to personally serve affected
parties with notices of proposed actions. Petitioner's argument might be more
persuasive had Congress opted to do so. However, Congress elected to impose
on peer
review organizations the less stringent duty to provide "reasonable notice"
to affected
parties. That congressional intent, which is evident from both the plain language
of the
Act and regulations, and from analogous language in the Federal Rules of Civil
Procedure, defines the notice obligations of peer review organizations to affected
parties.
There is a logical reason for Congress to have imposed a duty on peer review
organizations of providing "reasonable notice" to affected parties
rather than requiring
them to serve affected parties in a manner consistent with the summons and complaint
service requirements of the Federal Rules of Civil Procedure. The paramount
purpose
of section 1156 is to protect program beneficiaries and recipients from practitioners
who
have demonstrated a potential for engaging in harmful conduct. The rights of
affected
practitioners to be apprised of possible actions by peer review organizations
have not
been ignored by Congress. But, in setting the balance between protecting the
welfare of
beneficiaries and recipients and protecting the interests of affected practitioners,
Congress opted to establish a notice standard which would be relatively easy
for peer
review organizations to comply with. Had Congress opted to impose a "service
of
process" obligation on peer review organizations, then some practitioners
would be able
to evade service (and an exclusion), even as some parties to federal civil litigation
may
be able to evade service of process under the Federal Rules of Civil Procedure.
In
essence, that is what Petitioner is contending he should be able to do here.
That result
might benefit the clever or lucky practitioner, but potentially it would place
in jeopardy
the welfare of program beneficiaries and recipients.
Furthermore, the record in this case shows that the Arkansas PRO went beyond
the
requirements of the Act and regulations in sending notices to Petitioner. There
is
nothing in the Act or in the regulations which imposes on peer review organizations
the
duty to hunt for practitioners who move to other jurisdictions without leaving
forwarding
addresses. In this case, the Arkansas PRO went the extra mile of ascertaining
Petitioner's Alabama residential address before sending notices to him at that
address.
That it did so is commendable, but it was not legally obligated to do so. 10/
Nor does
the Act or regulations impose a duty on peer review organizations to send more
than
one copy of a notice to a party's valid mailing address. Yet, in an effort to
assure that
Petitioner was notified of its potential actions in his case, the Arkansas PRO
mailed
notices to him concerning those potential actions by certified mail on three
occasions.
Petitioner also contends that he was deprived of the opportunity to enter into
a
corrective action plan with the Arkansas PRO by virtue of his failure to obtain
the
notices which the Arkansas PRO sent to him. The Act provides that, in appropriate
cases, a peer review organization should give a party the opportunity to enter
into a
corrective action plan (which may include remedial education), before recommending
a
sanction action to the I.G. The Act does not impose on peer review organizations
any
duty to assure that a party actually participate in or complete such a plan.
The notices
which the Arkansas PRO sent to Petitioner gave him the opportunity to discuss
entering
into a corrective action plan with the Arkansas PRO. Petitioner did not avail
himself of
that opportunity. However, to the extent that the Arkansas PRO had any duty
to
provide Petitioner with the opportunity to enter into a corrective action plan,
it
discharged that duty by sending him the notices which informed him of his opportunity
to discuss a corrective action plan with representatives of the Arkansas PRO.
b. Petitioner committed gross and flagrant violations of his obligation to provide
health care of a quality which meets professionally recognized standards of
health care.
The I.G. determined that, during two hospitalizations of Ms. McCarty, from November
21, 1988 through November 23, 1988, and from December 3, 1988 through December
9,
1988, Petitioner committed gross and flagrant violations of his obligation to
provide
health care of a quality which meets professionally recognized standards of
health care.
I.G. Ex. 15/3 - 4. The I.G. made his determination based on the Arkansas PRO's
recommendation to him. The evidence in this case substantiates the I.G.'s determination
with respect to nine instances of gross and flagrant violation by Petitioner
of his
obligation to provide health care. Findings 26 - 97.
The I.G.'s May 7, 1991 notice letter to Petitioner specified 11 instances of
gross and
flagrant violation by Petitioner of his obligation to provide health care to
Ms. McCarty
of a level which meets professionally recognized standards of health care. These
are
enumerated at pages 3 and 4 of the notice letter. I.G. Ex. 15/3 - 4. I conclude
that the
I.G. substantiated his determinations of gross and flagrant violations with
respect to
enumerated instances 1 and 3 - 10. Part III of my Findings addresses these enumerated
instances in the following sequence: 7 (subheading A, Findings 27 - 36); 4 (subheading
B, Findings 37 - 41); 3 (subheading C, Findings 42 - 47); 8 (subheading D, Findings
48 -
59); 10 (subheading E, Findings 60 - 66); 5 (subheading F, Findings 67 - 72);
6
(subheading G, Findings 73 - 81); 9 (subheading H, Findings 82 -85); and 1 (subheading
I, Findings 86 - 97). I have organized my Findings in this manner because they
follow
the progression of Ms. McCarty's treatment during the two hospitalizations at
issue.
The Act does not define the term "gross and flagrant violation." The
term is defined by
regulation to mean a violation of an obligation to provide health care which
"presents an
imminent danger to the health, safety, or well-being of a Medicare beneficiary
or places
the beneficiary unnecessarily in high-risk situations." 42 C.F.R. 1004.1(b).
In order to prove that a party has committed a gross and flagrant violation
of an
obligation to provide health care to a program beneficiary or recipient, the
I.G. must
prove the following. First, he must show that the party charged with the violation
had
an obligation to provide health care to a program beneficiary or recipient.
Second, he
must prove that there exists a professionally recognized standard of health
care which
the party violated in discharging his obligation to provide health care to the
program
beneficiary or recipient. Finally, he must prove that, in violating the professionally
recognized standard of health care, the party presented an imminent danger to
the
health, safety, or well-being of the program beneficiary or recipient, or placed
the
program beneficiary or recipient unnecessarily in a high-risk situation.
There is no dispute that Ms. McCarty was a Medicare beneficiary. Nor is there
any
dispute that, by serving as Ms. McCarty's attending physician during her hospitalizations,
Petitioner assumed an obligation to provide health care to her. That obligation
included
attending to Ms. McCarty's welfare, providing routine and ongoing care to her,
and
doing the necessary paperwork associated with her hospitalizations. Finding
17.
Nor is there any dispute that Petitioner's discharge of his obligation to provide
health
care to Ms. McCarty as her attending physician involved professionally recognized
standards of health care. For example, Petitioner's obligation to do the necessary
paperwork associated with Ms. McCarty's hospitalizations involved professionally
recognized standards of health care. Petitioner was obligated to document Ms.
McCarty's stay in sufficient detail so that other health care providers could
comprehend
his assessment of Ms. McCarty's condition, his treatment and medication orders,
and his
daily description of her progress while she was hospitalized. Findings 87, 88.
There is overwhelming evidence that, during the course of Ms. McCarty's November
21
through November 23, 1988 and December 3 through December 9, 1988 hospitalizations,
Petitioner committed numerous violations of professionally recognized standards
of
health care in his treatment of Ms. McCarty. The evidence is also overwhelming
that
these violations by Petitioner of his treatment obligations to Ms. McCarty presented
an
imminent danger to her health, safety, or well-being, or placed her unnecessarily
in
high-risk situations. 11/ The I.G. offered the testimony and written statements
of two
board-certified physicians, along with the records of the two hospitalizations
at issue, as
evidence that Petitioner had committed violations of professionally recognized
standards
of health care in his treatment of Ms. McCarty, and that these violations constituted
gross and flagrant violations of professionally recognized standards of health
care. These
two physicians are James David Busby, M.D., who is a diplomate of the American
Board
of Family Practice and the American Board of Quality Assurance and Utilization,
and
Joe V. Jones, M.D., who is certified by the American Board of Internal Medicine
and
the American Board of Quality Assurance and Utilization. Dr. Jones is also a
diplomate
in geriatrics. I.G. Ex. 18/1, 23/1, 38, 39; Tr. at 369 - 515, 519 - 610. I find
both of these
experts to be knowledgeable and their opinions to be credible. Their testimony
was
essentially unrebutted by Petitioner. Petitioner offered no expert testimony
on the issue
of whether he had been derelict in his treatment of Ms. McCarty, nor did Petitioner
testify as to that issue.
Petitioner's violations of his obligation to provide health care which meets
professionally
recognized standards of health care included failure to perform routine tests
and
monitoring dictated by Ms. McCarty's medical condition, failure to perform requisite
follow-up to procedures which he performed on Ms. McCarty while Ms. McCarty
was
hospitalized, and failure to maintain records of Ms. McCarty's stays in the
hospital. For
example, Petitioner's violations of his obligation to Ms. McCarty included failure
to
perform an EKG during Ms. McCarty's November 21, 1988 through November 23, 1988
hospitalization, despite the fact that Ms. McCarty had been hospitalized for
severe
shortness of breath and associated congestive heart failure. Findings 30 - 34.
These
violations by Petitioner also included failure to perform other routine testing
and
monitoring of Ms. McCarty's condition, such as monitoring her electrolyte levels,
and
performing ABG studies in order to determine the level of oxygen in her blood.
They
included failures to order chest x-rays. They also included failure to monitor
medication
levels in Ms. McCarty. And these violations also included a near-complete failure
by
Petitioner to document his assessment of Ms. McCarty's condition, her treatment,
and
her progress while in the hospital. Findings 86 - 97.
The uncontroverted evidence in this case establishes that Petitioner's violations
of his
obligation to provide health care presented an imminent danger to Ms. McCarty's
health,
safety, or well-being, or placed her unnecessarily in high-risk situations.
Therefore, they
are gross and flagrant violations within the meaning of the regulations and
the Act. The
dangers posed to Ms. McCarty by Petitioner's abdication of his responsibility
to care for
her included the risks that her medical condition would deteriorate and that
complications resulting from the treatments Petitioner ordered or the medications
Petitioner administered would go undetected. For example, one of Petitioner's
derelictions of duty to Ms. McCarty consisted of failing to take a chest x-ray
after
performing a subclavian phlebotomy on her. Findings 73 - 81. The procedure
performed by Petitioner involved withdrawing blood from Ms. McCarty by inserting
a
needle into a vein in Ms. McCarty's chest. The I.G.'s experts testified that
there was a
significant risk that this procedure could have resulted in a puncture of one
of Ms.
McCarty's lungs, which in turn would have gravely jeopardized her health, safety,
or
well-being. The accepted medical practice to be followed after having performed
an
invasive procedure of this nature would have been to monitor Ms. McCarty's condition
with follow-up chest x-rays. Petitioner's failure to monitor Ms. McCarty's condition
with
chest x-rays meant that she could have developed serious undetected medical
complications.
Another example of how Petitioner's dereliction of his obligation to provide
health care
to Ms. McCarty presented an imminent danger to her health, safety, or well-being,
or
placed her unnecessarily in a high risk situation, exists in Petitioner's failure
to monitor
her BUN and creatinine output during her hospitalization from November 21, 1988
through November 23, 1988. Findings 60 - 66. BUN (blood urea nitrogen) and
creatinine output are indicators of kidney function. It is important to monitor
kidney
function in a patient who has cardiac problems, such as Ms. McCarty had, and
who is
receiving the medication digoxin, because such patients are at risk of experiencing
toxic
side effects from Digoxin, including cardiac problems, if their kidney function
deteriorates. Petitioner's failure to monitor Ms. McCarty's BUN or creatinine
output
meant that she could have developed serious undetected cardiac problems resulting
from
the toxic side effects of Digoxin.
Petitioner makes two arguments to rebut the evidence that he committed gross
and
flagrant violations of his obligation to provide health care. First, Petitioner
contends
that the opinions of the I.G.'s two experts are flawed because they confined
their reviews
to, and formed their opinions on, the medical records of Ms. McCarty's November
21
through November 23, 1988, and December 3, through December 9, 1988
hospitalizations. Petitioner argues that these experts should have considered
other
evidence pertaining to Ms. McCarty, including records generated in connection
with her
application for Social Security disability benefits and records of Petitioner's
treatment of
Ms. McCarty as an outpatient. Second, Petitioner contends that the hospital
records
which formed the basis for the I.G.'s experts' opinions are deficient in that
they are
missing vital documents, including progress notes which Petitioner prepared.
I find these two arguments to be without merit. Regarding Petitioner's first
argument,
while it is true that the experts did not review documents relating to Ms. McCarty's
illness other than the records of Ms. McCarty's hospitalizations, other evidence
concerning Ms. McCarty's condition would not have changed their opinions about
Petitioner's dereliction of his duty to provide care. Tr. at 502, 548 - 549,
552 - 554, 560 -
561, 564. Moreover, Petitioner has not shown that medical evidence other than
that
reviewed by the experts ought to have changed their opinions of Petitioner's
treatment of
Ms. McCarty. For example, there is nothing of record in this case which would
excuse
Petitioner's failure to order routine chest x-rays, EKGs, or other tests during
Ms.
McCarty's hospitalizations. His failure to order these tests is certainly not
excused by
the fact that Ms. McCarty's medical problems predated her hospitalizations in
November
and December 1988.
At several junctures in his cross examination of Drs. Busby and Jones, counsel
for
Petitioner suggested the possibility that Ms. McCarty might have refused appropriate
medical treatment or tests, or might have had herself discharged from the hospital
against medical advice. See, e.g., Tr. at 499 - 500. Had Petitioner prescribed
proper
treatment to Ms. McCarty and had Ms. McCarty refused that treatment, those facts
certainly would serve as a defense to allegations that Petitioner had violated
his
obligation to provide health care to Ms. McCarty, for those specific treatments
which
Petitioner prescribed and which Ms. McCarty refused. There is no such evidence
in the
record of this case pertaining to the specific violations at issue. Petitioner
makes general
statements in some of the hospital discharge summaries and histories and physicals
that
are in evidence that Ms. McCarty was not a compliant patient. He specifically
alludes in
those records to Ms. McCarty's noncompliance with medical advice while an outpatient.
But there is no evidence that, while Ms. McCarty was hospitalized, Petitioner
ordered
treatment and Ms. McCarty refused it.
I do not find credible Petitioner's assertion that missing from the records
of Ms.
McCarty's hospitalizations are documents which might change the picture of Petitioner's
treatment of Ms. McCarty. Finding 94. Petitioner testified that he wrote progress
notes
on a form which was specifically designed for that purpose (according to Petitioner,
on
blue paper). He averred that these progress notes were deleted from all of the
records
of Ms. McCarty's hospitalization which were obtained by the Arkansas PRO. See
Tr. at
637 - 639. Although it is not beyond the bounds of reasonable probability that
some of
these notes (if, in fact, Petitioner had created them) might be missing from
Ms.
McCarty's hospital records, I find it far-fetched that they would be excluded
uniformly
from all of her records. The more reasonable inference that I draw from their
uniform
absence is that they were never created to begin with.
My conclusion that Petitioner's contention that his progress notes were deleted
from Ms.
McCarty's hospital records is not credible is supported by the fact that there
exist forms
in each of Ms. McCarty's hospital records which are captioned "Physician's
Order Sheet
and Progress Notes," and on which Petitioner made some, albeit sketchy,
entries. See,
e.g., I.G. Ex. 10/24 - 28. I find it to be illogical, and therefore not likely,
that the Bull
Shoals Hospital would utilize two forms for recording progress notes in its
cases, as
Petitioner has contended. Also, I find it to be illogical, and therefore not
likely, that
Petitioner would record progress notes in a given case on both forms. Petitioner
has
offered no meaningful explanation as to why he would do that.
Furthermore, Petitioner's contention that there are missing documents is not
corroborated by any documents which are in evidence and which might be expected
to
provide corroboration for Petitioner's contention. Had Petitioner ordered that
a
procedure be performed, that a test be done, or that a medication be administered,
and
these orders were deleted from the records, one reasonably might expect that
his orders
would be documented elsewhere in the hospital record. For example, had Petitioner
ordered that EKGs be performed on Ms. McCarty, and had his orders been deleted
from the hospital record, the record should nevertheless contain EKG tracings,
interpretations, and other documents discussing or at least mentioning the EKGs.
Petitioner has not identified any situation where he allegedly ordered treatment,
where
the record of his orders was deleted, but where his orders were corroborated
elsewhere
in Ms. McCarty's hospital record.
Finally, Petitioner has not contended that the allegedly missing documents would
prove
that Petitioner provided health care to Ms. McCarty which meets professionally
recognized standards of health care. His argument is merely that some records
are
missing.
c. Petitioner is unable or unwilling to comply substantially with his obligation
to
provide health care of a quality which meets professionally recognized standards
of
health care.
The I.G. determined that Petitioner was both unable and unwilling to comply
substantially with his obligation to provide health care of a quality which
meets
professionally recognized standards of health care. The I.G.'s determination
was made
in accordance with the Act, which requires as a prerequisite to the imposition
of an
exclusion against a party that the Secretary determine whether that party is
able or
willing to comply substantially with his obligation to provide health care as
specified by
the Act. Social Security Act, section 1156(b)(1).
There is ample evidence in this case to support the I.G.'s determination. First,
the
evidence demonstrates strongly that Petitioner substantially is unable to provide
health
care of a quality which meets professionally recognized standards of health
care.
Findings 207, 208. Petitioner's conduct during Ms. McCarty's hospitalizations
from
November 21 through November 23, 1988 and December 3 through December 9, 1988
demonstrates such fundamental flaws in his practice as to establish that Petitioner
is
incapable of providing care consistent with that which is required by the Act.
Dr. Busby
testified that Petitioner's acts and omissions during these hospitalizations
showed that
Petitioner lacks a basic understanding of the pathophysiology of cardiovascular
disease,
respiratory disease, and polycythemia. Tr. at 423. Dr. Jones concurred in Dr.
Busby's
assessment of Petitioner's inadequacies. He concluded that Petitioner's treatment
of Ms.
McCarty demonstrates that Petitioner totally lacks a basic understanding of
proper
medical care of patients. Tr. at 538 - 539. These expert's opinions were supported
and
made credible by their citation to the medical records in evidence. Significantly,
Petitioner neither denied nor rebutted the opinions.
Second, there is evidence here to support the I.G.'s determination that Petitioner
is
unwilling to provide health care of a quality which meets professionally recognized
standards of health care. 12/ In his May 7, 1991 notice letter to Petitioner,
the I.G.
inferred that Petitioner was unwilling to provide such care from Petitioner's
lack of
response to the several notices of proposed determination which the Arkansas
PRO had
sent to him. See I.G. Ex. 15/4 - 5. I do not agree with the I.G.'s analysis.
There is no
evidence to prove that Petitioner was aware that the certified letters which
the Arkansas
PRO sent to him in Scottsboro, Alabama, and which he failed to claim, were letters
to
him from the Arkansas PRO concerning his treatment of Ms. McCarty. For that
reason,
I cannot infer from Petitioner's failure to claim these letters that he was
unwilling to
comply with his obligation to provide health care.
On the other hand, unwillingness to comply can be inferred directly from the
quality of
health care Petitioner provided to Ms. McCarty during the November 21, 1988
through
November 23, 1988 and the December 3, 1988 through December 9, 1988
hospitalizations. I am satisfied, from Drs. Busby's and Jones' testimony as
to the poor
quality of that health care, that Petitioner was either incompetent to provide
health care,
or, worse, that he was indifferent to the needs of his patient. If the former
is true, then
it supports the I.G.'s determination and my finding that Petitioner was unable
to provide
health care of an acceptable quality level. If the latter is true, then it supports
the
conclusion that Petitioner is capable of ignoring the needs of his patients,
and is,
therefore, unwilling to provide health care of an acceptable level of quality.
Finding 209.
The Act requires that, in deciding whether to exclude a party, the Secretary
shall
consider a party's willingness or lack of ability to enter into and successfully
complete a
corrective action plan during the period prior to the date when a peer review
organization submits its recommendation to the I.G. Social Security Act, section
1156(b)(1). 13/ This obligation has been satisfied in this case. The May 7,
1991 notice
letter which the I.G. sent to Petitioner found Petitioner specifically unable
to comply
with his obligation to provide health care. I.G. Ex. 15/2. That finding naturally
incorporates a conclusion that Petitioner's participation in a corrective action
plan would
have been to no avail.
2. The five-year exclusion which the I.G. imposed and directed against Petitioner
is
reasonable.
The final issue which I must resolve is whether the remedy which the I.G. imposed
and
directed against Petitioner -- a five-year exclusion from participating in federally-funded
health care programs -- is reasonable. That question is not automatically answered
by
my conclusion that the I.G. had authority to exclude Petitioner under section
1156(b)(1),
because the Act does not direct that an exclusion of any particular duration
is per se
reasonable in a given case.
Section 1156 is a remedial statute. As with other sections of the Act which
authorize the
imposition of an exclusion as a remedy, the purpose of an exclusion under section
1156
is not to punish a party for past wrongful conduct, but to provide a remedy
against
possible wrongful conduct by that party in the future. See Narinder Saini, M.D.,
DAB
1371, at 6 (1992) (Saini); Behrooz Bassim, M.D., DAB 1333, at 9 - 10 (1992).
Evidence
of past wrongful conduct by a party may serve as an important predictor of that
party's
propensity to engage in wrongful conduct in the future. For that reason, evidence
about
Petitioner's gross and flagrant violations of his obligation to provide health
care to Ms.
McCarty is highly relevant to the question of whether the exclusion imposed
by the I.G.
is reasonable. However, I may not limit legitimately the evidence which I receive
on the
remedy issue to that which was considered by the Arkansas PRO in making its
determination that Petitioner had committed gross and flagrant violations. Nor
may I
limit the evidence to that which was considered by the I.G. in deciding to accept
the
Arkansas PRO's recommendation. Because section 1156 is remedial, and because
of the
de novo nature of the hearing which I conduct in a section 1156 case, I must
consider
evidence offered at the hearing either by the I.G. or by Petitioner concerning
his
propensity or lack of propensity to engage in wrongful conduct in the future.
For that
reason, I received evidence from the I.G. concerning derelictions of professional
responsibility by Petitioner in his treatment of Ms. McCarty in instances other
than those
which formed the basis for the Arkansas PRO's recommendation. 14/ For that reason,
I
received also evidence from Petitioner concerning continuing medical education
courses
which he had completed since 1988 and concerning his current practice as an
emergency
room physician in Alabama.
I am convinced from the weight of the evidence that the five-year exclusion
which the
I.G. imposed against Petitioner is a reasonable remedy. Petitioner's treatment
of Ms.
McCarty during her several hospitalizations in 1988 demonstrates a stunning
degree of
incompetence. I am persuaded by this evidence of incompetence, and by the opinions
of
Drs. Busby and Jones, that Petitioner is not capable of providing health care
which
comes close to meeting professionally recognized standards of health care. Findings
215
- 216. Petitioner is an untrustworthy provider of care. Finding 217. This exclusion
is
needed here to protect program beneficiaries and recipients from the possibility
that
Petitioner might render them the same kind of substandard care that he provided
Ms.
McCarty. My conclusion that Petitioner is untrustworthy and that the exclusion
is
justified is not shaken by the evidence which Petitioner offered to show that
he has
completed some continuing medical education courses or that he is now providing
competent care in a limited setting.
The record of Ms. McCarty's 1988 hospitalizations is replete with instances
in which
Petitioner failed to provide her with even the most basic and elementary care
which
should have been provided to a person in Ms. McCarty's state. There exist numerous
instances of failures by Petitioner to order requisite tests or to provide routine
monitoring of Ms. McCarty's status. Findings 26 - 193. Petitioner's documentation
of
his treatments of Ms. McCarty and Ms. McCarty's progress as his patient was
slipshod at
best.
Furthermore, there is evidence that some of this documentation may have been
generated after the fact and is not what Petitioner purported it to be. The
record of Ms.
McCarty's hospitalization from May 9, 1988 through May 13, 1988, contains an
"Admission Note" which Petitioner purportedly dictated and had typed
on May 9, the
date of Ms. McCarty's admission to the hospital. I.G. Ex. 1/5. The "Admission
Note"
includes a report of a physical examination of Ms. McCarty which Petitioner
purportedly
performed on May 9. Id. However, the record of this hospitalization establishes
that
Ms. McCarty was admitted to the hospital on May 9, 1988 at 11:35 pm. I.G. Ex.
1/1. I
find it to be highly unlikely that Petitioner examined Ms. McCarty between 11:35
pm
and midnight on May 9, 1988, and dictated and had typed an admission note containing
his findings on the same date. Moreover, the record of this hospitalization
reflects no
face-to-face contact between Petitioner and Ms. McCarty on May 9, 1988, and
none until
May 11, 1988. See I.G. Ex. 1/19. The inference which I draw from these inconsistencies
in Ms. McCarty's May 9, 1988 through May 13, 1988 hospital record is that Petitioner
did not, in fact, examine Ms. McCarty on May 9, 1988, as his "Admission
Note" states.
Petitioner's derelictions of duty to Ms. McCarty include instances where he
ignored
medical evidence that a responsible physician would have interpreted as suggestive
of a
potentially life-threatening condition. Findings 176 - 183. For example, Petitioner
permitted Ms. McCarty to be discharged from the hospital on November 23, 1988.
On
that date, Ms. McCarty complained of chest pain and extreme shortness of breath,
exacerbated by exertion (an attempted bowel movement). I.G. Ex. 6/20. She was
observed to be apprehensive. Id. These signs and symptoms indicate a possible
myocardial infarction or angina, which are serious and potentially life-threatening
conditions. Yet, Petitioner approved Ms. McCarty's discharge from the hospital
on
November 23, 1988, without ordering an EKG or other tests which might have confirmed
or refuted the possibility that Ms. McCarty had experienced a myocardial infarction
or
angina. Findings 176 - 183.
Petitioner's derelictions of duty to Ms. McCarty also include an instance where
he
administered medication to her which was of dubious or no medical benefit to
her and
which may have harmed her. Petitioner ordered that Ms. McCarty be administered
the
drug Heparin in conjunction with a phlebotomy (withdrawal of blood) which he
attempted to perform on December 5, 1988. Findings 184 - 193. There existed
no
medical justification to administer Heparin to Ms. McCarty on that date. Finding
192.
Furthermore, the dose administered to Ms. McCarty was subtherapeutic, and it
was not
properly administered to her. Findings 188 - 191. Administering Heparin to Ms.
McCarty on this date thus had no medical benefit. Ms. McCarty could have been
harmed by the drug because the quantity and manner in which it was administered
could
have induced bruising or other adverse side effects. Id.
Petitioner opted not to attempt to refute directly any of this evidence of his
ineptitude.
He chose not to testify in his own defense. He offered no evidence concerning
his
treatment of Ms. McCarty which changed the picture painted by the evidence offered
by
the I.G. He did not offer expert testimony to refute the opinions of the physicians
who
were called as experts by the I.G. I infer from Petitioner's failure to oppose
directly the
evidence which the I.G. offered as to his performance that he cannot refute
that
evidence credibly.
Petitioner's essential defense to the evidence of incompetence and lack of
trustworthiness which the I.G. offered is to argue that, whatever his past level
of
performance, he is presently performing competently as a physician. Therefore,
according to Petitioner, it would serve no legitimate remedial purpose to now
exclude
him. Petitioner offered evidence that, since 1988, he has completed two courses
of
continuing medical education. These are courses in advanced cardiac life support
and
advanced trauma life support. See Finding 218. Also, Petitioner offered evidence
to
prove that his present medical practice is limited to managing and staffing
a hospital
emergency room in Alabama. This practice is in accord with restrictions which
have
been placed on his license to practice medicine in Alabama. Findings 8 - 10.
Petitioner
offered the testimony of two physicians who are professional colleagues of Petitioner
in
Alabama, Boyde Jerome Harrison, M.D., and Johnny Elliott, M.D. These two physicians
testified that Petitioner presently is performing competently in his capacity
as an
emergency room physician. Tr. at 673 - 694, 706 - 717.
I do not dispute the veracity of the evidence offered by Petitioner as to his
current
medical practice. However, this evidence does not detract from my conclusion
that he is
not a trustworthy provider of care. As Drs. Busby and Jones observed, the two
continuing medical education courses completed by Petitioner do not address
the
fundamental deficiencies in Petitioner's practice of medicine established by
his treatment
of Ms. McCarty. Finding 218. Nor does Petitioner's generally satisfactory performance
as an emergency room physician in Alabama prove to me that he is now competent
to
provide care generally. As Petitioner himself has admitted, the emergency room
practice
which he presently engages in is a limited practice. There is no evidence that
this
practice involves the kind of care which was involved in Petitioner's attendance
on Ms.
McCarty. The physicians who testified on Petitioner's behalf did not aver that,
by virtue
of Petitioner's satisfactory performance in the emergency room, Petitioner is
now
competent to deal with the general range of a physician's duties. Therefore,
Petitioner's
performance as an emergency room physician does not suggest that I should generalize
from that performance to conclude that he is now a competent physician in other
areas
of practice.
Furthermore, there is a disturbing but certainly legitimate inference which
I draw from
contrasting Petitioner's assertions concerning his current medical practice
with his failure
to offer an explanation for his treatment of Ms. McCarty and to explain how
his
performance could have improved in the period between 1988 and the present.
A
reasonable explanation for the otherwise inexplicable contrast, between what
the
evidence shows Petitioner's performance as a physician to have been and what
Petitioner
claims it is now, is that Petitioner's treatment of Ms. McCarty resulted from
his
indifference to her condition rather than incompetence. Such an explanation
would be
consistent with Petitioner's contention that he is now a competent physician
and his
failure to explain either his treatment of Ms. McCarty or how his performance
could
have improved in the subsequent period. Such an explanation is consistent also
with the
discharge summaries and histories that Petitioner signed in connection with
Ms.
McCarty's hospitalizations. These documents, individually and collectively,
evidence that
Petitioner concluded that meaningful intervention on Ms. McCarty's behalf was
a lost
cause. I.G. Ex. 5/1 - 2, 6/2 - 4, 10/2 - 4.
Whether Petitioner's treatment of Ms. McCarty constituted incompetence or
malfeasance, it demonstrated such an appalling lack of professional skill as
to establish
Petitioner to be a manifestly untrustworthy provider. That evidence is not overcome
by
evidence which shows that Petitioner may now be practicing in a competent manner
in a
limited setting. A lengthy exclusion is justified in this case to protect the
welfare of
beneficiaries and recipients of federally-funded health care programs. I conclude,
therefore, that the five-year exclusion is reasonable.
Petitioner has not requested that I modify the exclusion to permit him to claim
reimbursement for beneficiaries and recipients whom he treats in an emergency
room
setting. However, had he done so, I would have concluded that I lacked the authority
to
modify the exclusion in that manner. The Secretary (and his delegates, administrative
law judges) do not have authority to tailor an exclusion to permit an excluded
party to
claim reimbursement for particularized items or services. Saini at 9; Walter
J.
Mikolinski, Jr., DAB 1156 (1990).
CONCLUSION
I conclude that the I.G. had authority to impose and direct an exclusion against
Petitioner pursuant to section 1156(b)(1) of the Act, based on the recommendation
of
the Arkansas PRO. The five-year exclusion imposed and directed against Petitioner
by
the I.G. is reasonable.
___________________________
Steven T. Kessel
Administrative Law Judge
1. "State health care program" is defined by section 1128(h) of the
Social Security Act
to cover three types of federally-financed health care programs, including Medicaid.
Unless the context indicates otherwise, I use the term "Medicaid"
hereafter to represent
all State health care programs from which Petitioner was excluded.
2. I have read Judge Steinman's ruling on the serious risk issue. I do not consider
the ruling to be evidence or precedent, and I do not rely on it in reaching
my decision in
this case. My findings and my conclusions are based entirely on my independent
review
of the law, the evidence, and the parties' arguments.
3. As a convenience to the parties, I have divided my Findings of Fact and
Conclusions of Law (Findings) into sections which are prefaced with descriptive
captions.
The captions are not Findings, and they are not intended to augment or substitute
for
my Findings in this case.
4. I refer to the I.G.'s exhibits as "I.G. Ex. (number)/(page)." I
refer to Petitioner's
exhibits as "P. Ex. (number)/(page)." I refer to the transcript as
"Tr. at (page)."
5. Although Petitioner's conduct here meets the statutory test for a gross and
flagrant
violation, I am not relying on this violation as evidence supporting the I.G.'s
determination to exclude Petitioner. Rather, the evidence of this violation
is relevant
only to the issue of remedy.
6. The term "gross and flagrant violation" is defined by regulation
to mean a violation
of an obligation to provide health care under section 1156, which violation
presents an
imminent danger to the health, safety, or well-being of a Medicare beneficiary,
or which
places the beneficiary unnecessarily in a high-risk situation. 42 C.F.R. 1004.1(b).
7. Section 1156(b)(1) provides that, in making a final determination whether
to
exclude a party based on a recommendation by a peer review organization, the
Secretary,
or his delegate, the I.G., must decide whether the party has demonstrated either
an
inability or an unwillingness to comply substantially with his obligation to
provide health
care of a quality which meets professionally recognized standards of health
care.
8. Petitioner moved that first I should conduct a hearing on the issue of whether
the
I.G. had authority to exclude him, and should decide that issue before accepting
evidence on the issue of whether the exclusion imposed by the I.G. is reasonable.
Petitioner contended that my assessment of whether the I.G. had authority to
exclude
him might be tainted by evidence which related to the reasonableness of the
remedy, but
which exceeded the ambit of that which was relevant to the authority to exclude
issue. I
ruled against Petitioner, and I reaffirm that ruling here. Tr. at 63 - 67. It
is good
judicial administration not to split these hearings into segments, especially
where, as in
this case, evidence may be relevant to more than one issue. Furthermore, as
a matter of
routine, I conduct hearings in which issues of authority to exclude and reasonableness
of
remedy may involve separate relevancy standards for admission of evidence as
to those
issues, and I am capable of assigning evidence to those issues to which it may
be relevant
without tainting my judgment as to other issues.
9. The March 15, 1990 and July 31, 1990 notices were essentially copies of the
notice
which the Arkansas PRO sent to Petitioner on January 23, 1990, and which Petitioner
failed to claim.
10. Petitioner argues that Ms. Bain should have spoken directly with Petitioner
at the
Scottsboro, Alabama hospital to advise him that the Arkansas PRO was sending
notices
to him. Neither the Act nor the regulations impose this duty on a peer review
organization.
11. Although I have found nine instances in which Petitioner committed gross
and
flagrant violations of his obligation to provide health care in a manner which
meets
professionally recognized standards of health care, the Act requires that there
be proof
of only one such dereliction of duty to provide the I.G. with authority to impose
and
direct an exclusion against a party. Social Security Act, section 1156(b)(1).
12. The Act does not require that the I.G. determine that a party is both unable
and
unwilling to provide health care of a quality which meets professionally recognized
standards of health care, as a prerequisite to excluding that party. The Act's
criteria for
exclusion will be met if the I.G. determines either that a party is unable to
provide
health care of a quality which meets professionally recognized standards of
health care,
or that a party is unwilling to provide such health care. Social Security Act,
section
1156(b)(1).
13. The Act does not require the Secretary to offer a party the opportunity
to
participate in a corrective action plan, nor does it suggest that the Secretary
must, in
effect, put a party "on probation" before excluding that party. The
Act only requires the
Secretary to consider a party's "willingness or lack of ability, during
the period before the
organization submits its report and recommendations, to enter into and successfully
complete a corrective action plan." Social Security Act, section 1156(b)(1).
14. That evidence includes evidence relating to three hospitalizations of Ms.
McCarty
under Petitioner's care other than the two hospitalizations which are the basis
for the
Arkansas PRO's gross and flagrant violations determinations. Those hospitalizations
were from May 9, 1988 through May 13, 1988 (I.G. Ex. 1), September 19, 1988
through
September 21, 1988 (I.G. Ex. 3), and November 2, 1988 through November 5, 1988
(I.G.
Ex. 5). I have considered also evidence concerning derelictions of duty by Petitioner
which occurred during the November 21, 1988 through November 23, 1988, and
December 3, 1988 through December 9, 1988 hospitalizations, which were not explicitly
determined by the Arkansas PRO to constitute gross and flagrant violations of
Petitioner's professional obligation. Findings 98 - 193 detail my findings as
to these
additional derelictions of duty by Petitioner.