I decide that the Inspector General (I.G.) proved by a preponderance of the evidence that Respondent, St. Anthony Hospital, refused to accept an appropriate transfer of a patient in contravention of section 1867(g) of the Social Security Act (Act). I impose a civil money penalty against Respondent in the amount of $25,000.

The case has its genesis in events that occurred on April 8, 1995. On the afternoon of that day, an individual, R.M., was involved in an automobile accident on a highway outside of Oklahoma City, Oklahoma. R.M. was brought to the emergency room of Shawnee Regional Hospital, a local hospital. At Shawnee Regional Hospital, R.M. was at first diagnosed to be suffering from a neurological injury. However, it became apparent eventually that R.M.'s primary injury was to his abdominal aorta. R.M. had a life-threatening injury that required immediate emergency surgery.

Shawnee Regional Hospital is a community hospital which lacks the surgical staff and the specialized capabilities or facilities that are required to treat the type of injury that R.M. had suffered. For R.M. to have any chance at survival it was necessary to transfer him to a hospital where emergency vascular surgery could be performed.

The staff of Shawnee Regional Hospital telephoned hospital emergency rooms and physicians in their effort to find a hospital to which R.M. could be transferred. These calls included calls to Respondent's emergency room staff and a physician who had on-call responsibilities for Respondent. Respondent is a large modern hospital in Oklahoma City with state of the art surgical facilities.

Eventually, after several hospitals and physicians had been contacted, R.M. was transferred to Presbyterian Hospital in Oklahoma City. Surgery was performed on R.M. at Presbyterian Hospital on the evening of April 8, 1995 in an attempt to save his life. However, R.M. died from his injuries and their aftereffects.

The I.G. asserts that Respondent violated section 1867(g) of the Act by refusing to accept an appropriate transfer of R.M. from Shawnee Regional Hospital. This section provides that:

The I.G. alleges that Respondent refused a request to transfer R.M. to it despite the appropriateness of the transfer and notwithstanding that Respondent had the specialized capabilities or facilities and the capacity to treat R.M.'s injuries. Respondent vigorously denies these allegations. Respondent asserts, among other things, that a transfer of R.M. to it was not appropriate. And, Respondent avers that no request was ever made to it to accept the transfer of R.M..

I held a hearing in Oklahoma City, Oklahoma, on March 15 - 17, 1999. Each side offered exhibits and the testimony of witnesses. I received into evidence from the I.G. exhibits consisting of I.G. Exs. 1 - 9; 11 - 21; 23; 25 - 48; and 50. I received into evidence from Respondent exhibits consisting of P. Exs. 1 - 3; 5 - 6; 9 - 14; 16 - 18; 20; 22; 24; 26; 28 - 33; 36 - 38; 44 - 50; 53 - 57; 60; 62; 63; 65; 66; 68; 73; 74; 80 - 82; 85; 86; 88; 90; 92 - 94; 96; 97; 102; 103; 105; 106 (in designating its exhibits, Respondent marked each of its exhibits with the appellation "P.").

The following witnesses testified on behalf of the I.G.:

• � Nicholas Benson, M.D. (Transcript (Tr.) at 84 - 214). Dr. Benson is a board certified specialist in emergency medicine. Dr. Benson's testimony included his professional opinions as to: the nature of the injuries experienced by R.M.; the care that R.M. needed; the quality of care provided to R.M. while R.M. was at Shawnee Regional Hospital; whether R.M. was medically stable during his stay at Shawnee Regional Hospital; the capability of Shawnee Regional hospital and its staff to provide necessary care to R.M.; whether a transfer of R.M. from Shawnee Regional Hospital to another hospital was appropriate; whether Respondent had the capabilities or facilities to provide necessary care to R.M.; whether Respondent was obligated to accept a transfer of R.M.; whether a reasonable physician would have understood communications from Shawnee as constituting a request that R.M. be transferred; and, the responsibilities and duties of an on-call physician
• � Larry Don Sparks (Tr. at 215 - 239). Reverend Sparks is a Baptist pastor. He was present at Shawnee Regional Hospital on the evening of April 8, 1995. He discussed R.M.'s condition with the staff of Shawnee Regional Hospital and witnessed some of the staff's communications with other hospitals and individuals concerning their attempts to transfer R.M..
• � Carol Fatzer, R.N. (Tr. at 240 - 326). Ms. Fatzer is employed by the Oklahoma Department of Health. She, along with another individual, conducted an investigation on behalf of the Oklahoma Department of Health into the manner in which care was given to R.M. on the evening of April 8, 1995. Her investigation included conducting interviews of several individuals who are principal witnesses to the events which underlie this case. I.G. Ex. 6.
• � Lorenz Carl Spengler, III, D.O. (Tr. at 338 - 451). Dr. Spengler was on duty at the Shawnee Regional Hospital emergency room beginning at 7:00 pm on the evening of April 8, 1995. He is the physician who first diagnosed R.M. to be suffering from an injury to his abdominal aorta. He attended to R.M., attempted to arrange for the transfer of R.M. to another hospital, and ultimately, arranged for the transfer of R.M. to Presbyterian Hospital in Oklahoma City. He had telephone conversations on the evening of April 8, 1995 with Respondent's emergency room physician, Dr. Billy Joe Buffington, and with Respondent's on-call thoracic and vascular surgeon, Dr. Scott K. Lucas.
• � Aaron Clay Wade, P.A. (Tr. at 452 - 491). Mr. Wade is a physician's assistant who, on April 8, 1995, was employed by Medi-Flight of Oklahoma. Medi-Flight is an air ambulance (helicopter) service, which, as of April 8, 1995 was operated by University Hospital in Oklahoma City. Mr. Wade participated in a flight to Shawnee Regional Hospital on the evening of April 8, 1995. Medi-Flight had been called to transfer R.M. to another hospital and, eventually, transferred R.M. to Presbyterian Hospital in Oklahoma City. Mr. Wade examined R.M. prior to his transfer from Shawnee Regional Hospital.
• � Steven Holtzman, M.D. (Tr. at 495 - 549). Dr. Holtzman is a general and vascular surgeon. Dr. Holtzman's testimony included his professional opinion as to whether a transfer of R.M. from Shawnee Regional Hospital was appropriate.

The following witnesses testified on behalf of Respondent:

• John Carl Sacra, M.D. (Tr. at 569 - 630). Dr. Sacra is board certified in internal medicine and in emergency room medicine. Dr. Sacra's testimony included his professional opinions as to the quality of care provided to R.M. by Dr. Spengler; as to whether Dr. Spengler followed appropriate protocol in seeking to transfer R.M. from Shawnee Regional Hospital; and, as to whether communications allegedly made by Dr. Spengler could be interpreted reasonably as a request to transfer R.M.
• Ann Burkle, R.N. (Tr. at 707 - 742). Ms. Burkle is a staff nurse and a clinical coordinator for Respondent's emergency department. Ms. Burkle was on duty at Respondent's emergency department on the evening of April 8, 1995. She testified about Respondent's protocol for receiving transfers and communications that she had on the evening of April 8, 1995 with an employee of Shawnee Regional Hospital relating to R.M..
• Billy Joe Buffington, M.D. (Tr. at 742 - 786). Dr. Buffington was the emergency room attending physician at Respondent on the evening of April 8, 1995. Dr. Buffington testified about telephone conversations with Dr. Spengler and Dr. Lucas on the evening of April 8, 1995 concerning R.M.. He also testified about Respondent's protocol for receiving transfers at its emergency room.
• Scott K. Lucas, M.D. (Tr. at 787 - 875). Dr. Lucas is a cardio-thoracic surgeon whose skills include performing vascular surgeries. Dr. Lucas has privileges at Respondent to treat and evaluate patients with thoracic surgery problems, cardiac, lung, and esophageal surgical problems, and patients with vascular problems. Dr. Lucas was on call at Respondent on the evening of April 8, 1995. He testified about telephone conversations that he had on the evening of April 8, 1995 with Dr. Buffington and with Dr. Spengler concerning R.M..

(1) Respondent refused to accept a transfer of R.M. in contravention of the provisions of section 1867(g) of the Act; and,

(2) A civil money penalty should be imposed against Respondent; and, if so, in what amount.

In this decision I address the issues and evidence that are relevant. I also explain why I find many of the parties' assertions and arguments - in particular, many of Respondent's arguments - to be irrelevant. I make findings of fact and conclusions of law (Findings) to support my decision that Respondent contravened the requirements of section 1867(g) of the Act and impose a civil money penalty in the amount of $25,000 against Respondent. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. It was medically necessary to transfer R.M. on the evening of April 8, 1995 from Shawnee Regional Hospital to a hospital that had the specialized capabilities or facilities to care for R.M.'s life-threatening injury.

R.M. needed to be transferred to the care of a surgeon with the requisite skills and training to perform the necessary surgery at a hospital with the surgical facilities, staff, and equipment that would be required for such surgery. Shawnee Regional Hospital was ill-equipped to perform the type of surgery that R.M. needed. Tr. at 111, 112. It lacked both a surgeon with the professional skills and experience to perform the necessary surgery and the facilities that might be required so that the surgery could be successful. Id.

2. On the evening of April 8, 1995 Dr. Spengler determined that R.M. needed to be transferred from Shawnee Regional Hospital to a hospital that had the specialized capabilities or facilities to care for R.M.'s life-threatening injury.

Dr. Spengler arrived at Shawnee Regional Hospital shortly before the beginning of his shift. He had no involvement with R.M.'s case up to that time. He noticed that paramedics were loading R.M. into an ambulance. Tr. at 344. Dr. Spengler spoke briefly with Dr. Thomas, the physician who, on April 8, 1995, attended the Shawnee Regional Hospital emergency room during the shift that ended at 7:00 p.m. Dr. Thomas told Dr. Spengler that R.M. had been involved in an automobile accident earlier that day and that R.M. had suffered a broken back. Id. Additionally, Dr. Thomas told Dr. Spengler that R.M. had a normal CT scan of his neck and back and had sustained broken ribs. Id. He told Dr. Spengler that the patient's main problem was that he could not move his legs. Id. Dr. Thomas did not tell Dr. Spengler that R.M.'s principal injury was a vascular injury. See Id. Finally, Dr. Thomas told Dr. Spengler that a transfer had been arranged for R.M. by ambulance to University Hospital in Oklahoma City. Id. at 345.

Dr. Thomas left and Dr. Spengler began his shift at the Shawnee Regional Hospital. Dr. Spengler did not attend to R.M. at first because Dr. Thomas had arranged a transfer of the patient. However, minutes after Dr. Spengler began his shift, a paramedic entered the emergency room and asked Dr. Spengler to look at R.M. Tr. at 345. R.M. had experienced a sudden drop in his blood pressure and a significant change in his mental status. Id.

Dr. Spengler then quickly examined R.M. He immediately became concerned about R.M.'s condition. R.M. was extremely cyanotic (his skin had turned blue) from his umbilicus (navel) down throughout his lower extremities. Tr. at 346. R.M. had no sensation to touch from his umbilicus down. Id. at 347. R.M.'s skin below the umbilicus was cold, whereas it had a normal appearance and temperature above the umbilicus. Id. R.M. was complaining of back pain. He had no pulse in his femoral arteries in his legs or feet. Id.

Dr. Spengler had no doubt from these clinical signs and symptoms that R.M. had suffered an injury to his abdominal aorta. Tr. at 346, 347. Dr. Spengler knew that R.M. had experienced a life-threatening injury and that the patient needed surgery. Id. at 349. Dr. Spengler also knew that Shawnee Regional Hospital was a small country hospital that lacked the capacity to deal with the type of injury that R.M. had sustained. Id. at 347. Dr. Spengler concluded that it was imperative that R.M. be transferred as soon as possible to a hospital that had the surgical facilities that were necessary for the kind of surgery that R.M. needed and to the care of a surgeon who was capable of performing that surgery. Tr. at 349, 350.

3. Dr. Spengler attempted to arrange the transfer of R.M. from Shawnee Regional Hospital to another hospital which had the specialized capabilities or facilities and the capacity to care for R.M.'s life-threatening injury.

Dr. Spengler concluded that it was necessary to speak to the staff at University Hospital in view of the fact that Dr. Thomas had communicated a very different clinical picture to University Hospital than had been diagnosed by Dr. Spengler. The clinical picture of R.M. had changed from a patient with a serious neurological injury to that of a patient with a life-threatening vascular injury. See Tr. at 352, 353.

Dr. Spengler called University Hospital and spoke with that hospital's attending emergency room physician. Tr. at 352, 353. Dr. Spengler advised that physician that R.M. had suffered damage to his aorta and that the situation was urgent. Shortly thereafter, Dr. Spengler received a call back from University Hospital. Dr. Spengler was advised that University Hospital already had two emergency surgeries to perform and that it would not be able to receive R.M.. Id. at 353, 354.

Dr. Spengler thereupon initiated an urgent search for another hospital and surgeon that could perform the necessary emergency surgery on R.M.. Either staff at Shawnee Regional Hospital or Dr. Spengler spoke by telephone with various surgeons and hospitals during the next one and one-half hour or so. Tr. at 355 - 362. Eventually, Dr. Spengler arranged the transfer of R.M. via Medi-Flight to Presbyterian Hospital in Oklahoma City.

4. Dr. Spengler requested Respondent to accept the transfer of R.M..

Respondent contends that Dr. Spengler never asked Dr. Buffington to accept a transfer of R.M. to Respondent. This assertion is a substantial departure from Respondent's previous arguments about what happened on the evening of April 8, 1995. Previously, Respondent had acknowledged a transfer request but asserted that it was unable to comply with that request due to circumstances that were beyond its ability to control. For example, on October 19, 1996, Respondent filed answers to interrogatories in a civil lawsuit that emanated from the events of April 8, 1995. Respondent was asked to recite its understanding of the telephone conversation between Drs. Spengler and Buffington. Its answer stated:

[t]o the best of . . . [Respondent's] knowledge, at this time, and to the best of the recipients recollection, these conversations included the condition of . . . [R.M.], the extensive and repeated efforts of . . . [Respondent] to complete the transfer of . . . [R.M.] to . . . [Respondent], including Mediflight's refusal to fly to, and transport patients to, . . . [Respondent].

I.G. Ex. 33 at 2 (emphasis added).

The preponderance of the evidence establishes that Dr. Spengler requested Dr. Buffington to accept a transfer of R.M. to Respondent. I base this conclusion on the testimony of Dr. Spengler, which I find to be credible. Dr. Spengler's testimony is credible because it is wholly consistent with his motivation on the evening of April 8, 1995 to seek a transfer of R.M. so that emergency surgery could be performed on R.M.'s aorta. It is consistent with his diagnosis of R.M.'s condition, it is consistent with his decision to arrange helicopter transport for R.M. due to the emergency nature of his condition, and it is consistent with statements and testimony that Dr. Spengler gave previously concerning the events of April 8, 1995. Moreover, Dr. Spengler's account of events is supported strongly by corroborating evidence consisting of prior statements that Dr. Buffington made at an interview that took place on April 11, 1996 concerning the events of April 8, 1995, the testimony and past statements of Ms. Burkle, and the testimony of Reverend Sparks.

I find Dr. Buffington's testimony at the hearing in which he denies that Dr. Spengler requested to transfer R.M. to Respondent not to be credible. It is implausible and it is contradicted in almost every material respect by statements that Dr. Buffington made during the April 11, 1996 interview.

a. Dr. Spengler's account of his telephone conversation with Dr. Buffington in which Dr. Spengler requested the transfer of R.M. to Respondent

Dr. Spengler described to Dr. Buffington the circumstances of R.M.'s accident and the nature of R.M.'s injuries. He told Dr. Buffington that R.M. had suffered an injury to his aorta, had extremely labile blood pressure, and needed surgery. Tr. at 358. He asked to speak with Respondent's on-call thoracic surgeon. Dr. Buffington told Dr. Spengler that Dr. Lucas was Respondent's on-call thoracic surgeon that evening. Id.

Respondent asserts that Dr. Spengler never specifically asked Dr. Buffington to accept a transfer of R.M.. The record does not contain the precise words that Dr. Spengler uttered to Dr. Buffington. But, the gist of what Dr. Spengler said to Dr. Buffington is clear. The plain meaning of Dr. Spengler's statements to Dr. Buffington is that R.M. was suffering from an emergency condition that needed to be treated immediately with surgery and that Dr. Spengler was seeking to transfer R.M. to Respondent so that the surgery could be performed there by Respondent's on-call thoracic surgeon.

I do not find that a reasonable emergency room physician could have misinterpreted legitimately Dr. Spengler's communication as being a request for some other assistance - for example, a request merely to speak to someone for consultation - as opposed to a request that Respondent immediately accept R.M. for emergency surgery. Dr. Buffington could only have interpreted Dr. Spengler's statements as being a request to transfer R.M. to Respondent. In fact, and as I discuss below, at part b. of this Finding, that is how Dr. Buffington interpreted Dr. Spengler's statements.

Dr. Spengler's account of his telephone conversation with Dr. Buffington on the evening of April 8, 1995 is buttressed indirectly by testimony and statements given by Ms. Burkle. Ms. Burkle, who is a clinical coordinator for Respondent and who was on duty on the evening of April 8, 1995, knew on that evening that Shawnee Regional Hospital was asking to transfer R.M. to Respondent. That is made evident by the fact that Ms. Burkle worked diligently that evening to facilitate transportation to enable the transfer of R.M. to Respondent. Tr. at 721, 722; I.G. Ex. 6 at 23; I.G. Ex. 31. I note that Ms. Burkle's account of what she did to facilitate a transfer of R.M. conforms to Respondent's position in previous litigation concerning the events of April 8, 1995. See I.G. Ex. 33.

Dr. Spengler's account of his request to transfer R.M. to Respondent also is corroborated by Reverend Sparks' testimony about the events of April 8, 1995. Reverend Sparks spoke with Dr. Spengler on that evening at Shawnee Regional Hospital. Tr. at 227. Dr. Spengler specifically told Reverend Sparks that Respondent was a hospital to which he was attempting to transfer R.M.. Id.

Respondent asserts that Dr. Spengler's testimony is not credible because it allegedly is at variance with statements and testimony that Dr. Spengler gave previously about the events of April 8, 1995. I have examined these statements and prior testimony closely. I do not find that they contradict materially his testimony at the hearing.

Respondent places great reliance on an alleged inconsistency between Dr. Spengler's testimony at the hearing and testimony that Dr. Spengler gave at a deposition in a civil lawsuit as proof that Dr. Spengler's hearing testimony is not credible. As I discuss above, at the hearing Dr. Spengler testified about a telephone conversation he had with Dr. Buffington on the evening of April 8, 1995. In his deposition, Dr. Spengler at first denied speaking with a physician at Respondent's emergency room. P. Ex. 60 at 264. However, almost immediately after making this denial, he recalled speaking with a "physician at . . . [Respondent] whose name I don't know." Id. at 266.

I do not find Dr. Spengler's memory lapse at his deposition to be significant evidence that his subsequent testimony about his telephone conversation with Dr. Buffington is not credible. The likely explanation for the deposition testimony is that Dr. Spengler simply forgot momentarily about his conversation with Dr. Buffington.

There are several reasons for concluding that Dr. Spengler's deposition testimony includes an honest memory lapse. First, the deposition focused not on Dr. Spengler's interactions with Respondent and with Respondent's staff, but on all of the interactions that Dr. Spengler had on the evening of April 8, 1995. P. Ex. 60. In that deposition he was questioned about numerous telephone conversations that he had with staff at various hospitals or with physicians who were associated with those hospitals. The colloquy about Dr. Spengler's possible conversations with physicians at Respondent occurred near the end of a deposition that had lasted for several hours. Dr. Spengler's interactions with Respondent's staff merited only a small portion of the deposition. It is easy to understand how Dr. Spengler momentarily might have been confused about his conversation with Dr. Buffington given the length and wide range of the deposition.

Second, it is apparent from the transcript of the deposition that Dr. Spengler actually did recall having had a conversation with a physician at Respondent. No follow-up questions were asked at the deposition to determine what transpired during that conversation.

Third, there is no question that Dr. Spengler did speak with Dr. Buffington on the evening of April 8, 1995. That is confirmed by Dr. Buffington. Additionally, as I discuss below, Dr. Buffington's April 11, 1996 statement about his conversation with Dr. Spengler corroborates to a substantial degree Dr. Spengler's hearing testimony. I.G. Ex. 6 at 21, 22. Indeed, if anything, it reveals more about what was said between Dr. Buffington and Dr. Spengler than does Dr. Spengler's hearing testimony.

There is nothing in Dr. Spengler's other previous statements which could be interpreted as being materially inconsistent with Dr. Spengler's hearing testimony. Dr. Spengler averred repeatedly in his past statements that Respondent declined to accept a transfer of R.M.. I.G. Ex.1 at 3, 4; P. Ex. 63. Dr. Spengler first asserted that Respondent declined to accept a transfer of R.M. within a few hours of the events that occurred on April 8, 1995. I.G. Ex. 1 at 3, 4.

b. Dr. Buffington's versions of his conversation with Dr. Spengler

I find this testimony by Dr. Buffington about his conversation with Dr. Spengler not to be credible. First, it is not plausible. On the evening of April 8, 1995, Dr. Spengler desperately was seeking to transfer R.M. for emergency surgery. I am simply not convinced that Dr. Spengler would have spoken to Dr. Buffington, the emergency room physician at a hospital to which Dr. Spengler wanted to transfer R.M., without telling Dr. Buffington about his patient and without communicating his request to transfer R.M. to Respondent.

Second, Dr. Buffington's testimony at the hearing about his conversation with Dr. Spengler differs materially from the account that he gave about that same conversation in his April 11, 1996 interview. Dr. Buffington's interview account is a far more believable account of his telephone conversation with Dr. Spengler than is Dr. Buffington's hearing testimony. I.G. Ex. 6 at 21, 22. Dr. Buffington's interview confirms my conclusion that the reasonable understanding that he had of Dr. Spengler's telephone call was that Dr. Spengler was requesting to transfer R.M. to Respondent.

In his interview, Dr. Buffington acknowledged: that he understood that a transfer was being requested by Dr. Spengler so that surgery could be performed on R.M.; and, that it would be necessary to obtain the services of a thoracic surgeon in order to provide R.M. with the necessary care. Dr. Buffington recalled that the physician from Shawnee Regional Hospital who spoke to him on April 8, 1995 (at the time he did not recall Dr. Spengler's name) told him that his patient probably had a "dissecting thoracic aneurysm." I.G. Ex. 6 at 21, 22. Dr. Buffington stated that he saw no problems with accepting a transfer of the patient but that he first had to have a thoracic surgeon available. Id.

Furthermore, Dr. Buffington averred that he remembered the events of April 8, 1995 because it was unusual to take a call requesting a transfer where the transfer was not accepted. I.G. Ex. 6 at 22. That statement by Dr. Buffington acknowledges both that Dr. Spengler requested to transfer R.M. to Respondent and that the request was ultimately denied.

Respondent discounts the significance of Dr. Buffington's interview by arguing that it is unreliable hearsay. Respondent asserts also that Dr. Buffington gave this interview over a cellular telephone and suggests that Dr. Buffington's interview statements might be inaccurate because he was distracted during the call. I am not impressed by these arguments. Dr. Buffington was subsequently deposed in the same civil action as was Dr. Spengler. I.G. Ex. 47. He was asked in that deposition about the accuracy of the report of his interview with the representatives of the Oklahoma Department of Health and did not deny that the interview report was accurate. Id. at 16 - 24. Furthermore, several individuals were present during the telephone interview of Dr. Buffington including Respondent's emergency department medical director, Respondent's director of emergency and outpatient services, and Respondent's medical staff coordinator. I.G. Ex. 6 at 21. Respondent chose not to call any of these individuals as witnesses to dispute the accuracy of the interview report.

5. Dr. Buffington deferred to Dr. Lucas, Respondent's on-call thoracic and vascular surgeon, to make a decision about whether or not to perform surgery on R.M. at Respondent.

Dr. Spengler testified credibly that, in the course of Dr. Buffington telling him that Dr. Lucas was the on-call thoracic surgeon on the evening of April 8, 1995, Dr. Buffington also told Dr. Spengler that he didn't think that Dr. Lucas would be of much help to him. Tr. at 358. The clear import of Dr. Buffington's statement to Dr. Spengler was that Dr. Buffington intended to defer to Dr. Lucas' judgment as to whether R.M.'s case would be accepted at Respondent and that he doubted whether Dr. Lucas would agree to accept R.M..

I have no doubt from Dr. Buffington's April 11, 1996 interview that Dr. Buffington deferred to Dr. Lucas to decide whether Respondent would accept or reject the transfer of R.M.. In that interview, Dr. Buffington corroborated Dr. Spengler's recollection of the conversation that he had with Dr. Buffington. In saying that he saw no problem with a transfer Dr. Buffington acknowledged that he knew that, but for the availability of a thoracic surgeon, Respondent had the staff, equipment, facilities, and support services available to it on the evening of April 8, 1995 to provide the necessary care for R.M.. I.G. Ex. 6 at 21, 22. In saying that he first had to have a thoracic receiving surgeon Dr. Buffington made it clear that he had to have the participation of Dr. Lucas in giving care to R.M. before Respondent could accept a transfer of R.M.. Id.

Dr. Buffington's deference to Dr. Lucas on the issue of whether Dr. Lucas would provide care to R.M. also is made clear by what Dr. Buffington disclosed in his April 11, 1996 interview about his telephone conversation with Dr. Lucas on the evening of April 8, 1995. I.G. Ex. 6 at 21, 22. After speaking with Dr. Spengler, Dr. Buffington spoke to Dr Lucas. Dr. Lucas told Dr. Buffington that he would likely not be taking R.M.'s case. Id. Dr. Lucas began to instruct Dr. Buffington as to what to tell Dr. Spengler. Id. However, he changed his mind and told Dr. Buffington that he would call Dr. Spengler directly. Id.

Dr. Buffington did not tell Dr. Lucas at that point that Dr. Lucas lacked the authority to decide whether or not to take R.M.'s case. See I.G. Ex. 6 at 21, 22. Nor did Dr. Buffington remind Dr. Lucas of his obligation as Respondent's on-call thoracic and vascular surgeon to take any case that Dr. Buffington concluded would require Dr. Lucas' services. See Id. Dr. Buffington would have had to make some affirmative statement to Dr. Lucas at that point in his conversation with Dr. Lucas if Dr. Buffington wanted to retain the authority to decide whether or not to accept R.M.'s transfer. But, in fact, Dr. Buffington simply allowed Dr. Lucas to call Dr. Spengler, knowing that Dr. Lucas was not likely to take R.M.'s case. That was an abdication by Dr. Buffington of his responsibility to decide whether R.M. would be accepted by Respondent.

6. Dr. Lucas declined to care for R.M.

I base these conclusions primarily on the credible testimony of Dr. Spengler concerning his conversations with Dr. Lucas. His testimony is supported Dr. Buffington's April 11, 1996 interview statements. I.G. Ex. 6 at 21, 22.

I do not find to be credible Dr. Lucas' testimony about his conversations with Dr. Spengler. Dr. Lucas changed his version of the events of April 8, 1995 significantly over time as he learned about facts and events which he could use to his advantage. His account of what Dr. Spengler said to him in his telephone conversations is implausible. And, it is extraordinarily self-serving and plainly designed to deflect criticism for his decision not to treat R.M..

a. Dr. Spengler's credible testimony of his telephone conversations with Dr. Lucas

Dr. Lucas told Dr. Spengler that he was not interested in taking R.M.'s case. Tr. at 360. He told Dr. Spengler that the case was University Hospital's problem. Id. Dr. Lucas offered no advice to Dr. Spengler about how to care for R.M.. Id.

This conversation was not the only telephone conversation between Dr. Spengler and Dr. Lucas on the evening of April 8, 1995. Later that evening, Dr. Spengler � who was continuing his search for a surgeon and a hospital who would care for R.M. � spoke with Dr. Lucas again. In this second conversation Dr. Lucas was acting in his capacity as the on-call thoracic and vascular surgeon for another hospital. Tr. at 361. During the second conversation, Dr. Spengler again began to relate to Dr. Lucas the circumstances of R.M.'s case. Id. Dr. Lucas interrupted Dr. Spengler to tell him that he was the same surgeon that Dr. Spengler had spoken to previously that evening. Id. He told Dr. Spengler that he remained uninterested in taking R.M.'s case and that the problem remained with University Hospital. Id.

Dr. Spengler inadvertently sought to speak with Dr. Lucas on a third occasion on the evening of April 8, 1995. After Dr. Lucas twice had refused to treat R.M., Dr. Spengler continued his search for a surgeon and a hospital that would attend to R.M.'s vascular injury. Later that evening, he was told by the unit clerk of Shawnee Regional Hospital that the clerk had contacted the answering service for an on-call surgeon at another hospital and had been told that the physician would not take Dr. Spengler's call. Tr. at 362. The reason given by the answering service was that the physician was the same physician (Dr. Lucas) that Dr. Spengler had spoken to twice previously on that evening.

b. Dr. Lucas' testimony about his conversations with Dr. Spengler

Dr. Lucas testified that he then called Dr. Spengler. Tr. at 798. Dr. Lucas denied that he was asked by Dr. Spengler to accept R.M. as a patient. Tr. at 827. The thrust of Dr. Lucas' testimony was that Dr. Spengler requested advice from him and did not request that he treat R.M. Dr. Lucas asserted that he advised Dr. Spengler that the patient could best be cared for at University Hospital. Id.

Dr. Lucas contended that Dr. Spengler provided him with an inept and incoherent recitation of R.M.'s signs and symptoms. Tr. at 799 - 801. According to Dr. Lucas, Dr. Spengler was "pretty much clueless about the diagnosis, and so he's just relying on what he sees." Id. at 800. He asserted that Dr. Spengler's recitation was "kind of like a third year medical student trying to tell you what was wrong with a patient he really didn't know." Id.

Dr. Lucas asserted that Dr. Spengler buried his diagnosis that R.M. was suffering from a vascular injury amidst a confusing recitation of R.M.'s medical signs and symptoms. He averred that Dr. Spengler's litany of disconnected signs and symptoms strongly suggested that R.M. was suffering from multiple traumas with his primary injury being neurological rather than vascular. Dr. Lucas testified that Dr. Spengler's statement to him that R.M. was suffering from a vascular injury appeared at the time to be improbable inasmuch as the injury that Dr. Spengler suspected that R.M. had incurred, a dissecting aneurysm, could not be related to trauma. Tr. at 801. Dr. Lucas asserted that the way in which Dr. Spengler described R.M.'s injury and the treatment that he had administered to R.M. made it plain to Dr. Lucas that Dr. Spengler didn't understand aortic pathology. Id.

Dr. Lucas testified that he knew from his conversation with Dr. Spengler that University Hospital had reneged on its agreement to accept R.M.. According to Dr. Lucas, he told Dr. Spengler that R.M. should be sent immediately to University Hospital. Tr. at 826, 827. He testified that Dr. Spengler agreed with this advice. Id.

Dr. Lucas testified that, later during the evening of April 8, 1995, he received another call from Dr. Spengler about R.M.. Tr. at 828, 829. He averred that Dr. Spengler repeated the entire story about R.M.. Dr. Lucas asserted that he reminded Dr. Spengler that they had spoken previously. He contended that he asked Dr. Spengler if he had called University Hospital again, and, at that point, Dr. Spengler hung up without responding. Id.

Dr. Lucas contended that Dr. Spengler advised him that there had been a negative CT scan taken of R.M.'s chest and abdomen. Tr. at 804. Dr. Lucas averred that, based on that information, he concluded that an injury to R.M.'s aorta was ruled out definitively. Id. at 806 - 808. He testified that he concluded that R.M.'s injuries could best be dealt with by a physician who was skilled in handling cases of multiple trauma at a facility that was specially adapted for that care. Id. at 808, 809. Dr. Lucas asserted that he lacked the training or the skills to provide the kind of care that R.M. needed. Id. at 820.

c. My reasons for finding Dr. Spengler's testimony to be credible and for finding Dr. Lucas' testimony not to be credible

(1) Dr. Spengler's account of what occurred on the evening of April 8, 1995 has the ring of truth to it. I am convinced that Dr. Spengler explained to Dr. Lucas that R.M. needed Dr. Lucas' services as a vascular surgeon to attend to R.M.'s injured aorta because Dr. Spengler's only purpose in speaking to Dr. Lucas at all was to obtain Dr. Lucas' specialized services. Dr. Spengler's assertion that he told Dr. Lucas that R.M. had suffered an injury to the aorta which necessitated surgery is entirely consistent with: Dr. Spengler's diagnosis of R.M.'s condition; his purpose of finding a hospital and a surgeon that would treat R.M.; his conversation with Dr. Buffington and, his specific purpose of calling Dr. Lucas to determine whether Dr. Lucas would provide the necessary care.

(2) Dr. Lucas' assertion that Dr. Spengler's recitation of R.M.'s signs and symptoms was so incoherent, inaccurate, and so incomplete as to make it appear unclear or unlikely that R.M. was suffering from a life-threatening vascular injury does not ring true. That Dr. Spengler would bury his diagnosis of R.M.'s vascular injury in a welter of disconnected findings, as is alleged by Dr. Lucas, strains credulity. It is far more likely that, in describing R.M.'s vascular injury to Dr. Lucas, Dr. Spengler minimized or omitted to discuss entirely any other non-vascular injuries that R.M. had sustained. Dr. Spengler's entire focus from the moment he first examined R.M. was on obtaining treatment for R.M.'s life-threatening vascular injury. That is why Dr. Spengler called University Hospital to tell the staff there that R.M.'s primary injury was vascular and not neurological. That is also why Dr. Spengler changed the means of transport for R.M. from ground transport to a helicopter. That is why Dr. Spengler contacted Respondent. And, that is why Dr. Spengler spoke to Dr. Lucas.

(3) Dr. Lucas' assertion that Dr. Buffington told him nothing about R.M.'s case on the evening of April 8, 1995 is belied by Dr. Buffington's statements in his April 11, 1996 interview. Dr. Buffington told Dr. Lucas enough about R.M. on that evening so that Dr. Lucas knew that his surgical talents were needed to treat R.M.. I.G. Ex. 6 at 21, 22. And, Dr. Lucas knew enough about R.M. from his conversation with Dr. Buffington to decide that he likely would not be taking R.M.'s case. Id. He made this decision before he ever spoke with Dr. Spengler.

(4) Dr. Lucas' assertion that Dr. Spengler related to him on April 8, 1995 that R.M. had a negative CT scan of his chest and abdomen, thereby misleading Dr. Lucas into believing that there was no vascular injury to R.M., is not true. Dr. Spengler did not tell Dr. Lucas in their telephone conversations that there had been a negative CT scan of R.M.'s abdomen. Tr. at 432, 433. No such test was ever performed. And, there would have been no reason for Dr. Spengler to have mentioned any tests to Dr. Lucas other than Doppler studies inasmuch as Dr. Spengler did not rely on test results other than Doppler studies to make his diagnosis of R.M.'s condition. See Tr. at 347.

Dr. Lucas' assertion that Dr. Spengler told him that there had been a negative CT scan of R.M.'s abdomen appears to be an opportunistic reliance by Dr. Lucas on an error that Dr. Spengler made in his emergency room report several hours after he spoke with Dr. Lucas. I do not find that this error reflects statements that Dr. Spengler made to Dr. Lucas earlier that evening. To the contrary, I conclude that Dr. Lucas only became aware of that error at a later date and relied on the error as a basis for testifying that Dr. Spengler told him that there was a negative CT scan of R.M.'s abdomen.

At approximately 4:00 on the morning of April 9, 1995, several hours after Dr. Spengler spoke with Dr. Lucas, Dr. Spengler dictated an emergency room report addressing what had transpired earlier that evening. He stated in his emergency room report that there had been a negative CT scan of R.M.'s chest and abdomen. I.G. Ex. 1 at 3, 4. This is an obvious dictation error. No CT scan actually was performed of R.M.'s abdomen. This dictation error does not reflect Dr. Spengler's diagnosis of R.M.'s condition, his treatment of R.M., or what Dr. Spengler said to other individuals, including Dr. Lucas, about R.M.'s condition.One would expect that Dr. Lucas would have asserted consistently that Dr. Spengler told him that there was a negative CT scan of R.M.'s abdomen if in fact that is what Dr. Spengler told Dr. Lucas on the evening of April 8, 1995. It is very much in Dr. Lucas' self-interest to justify his actions on the evening of April 8, 1995 on the basis of being told by Dr. Spengler that there was a negative CT scan of R.M.'s abdomen. As Dr. Lucas averred in his testimony, a negative CT scan of R.M.'s abdomen would rule out definitively any aortic pathology and any need for Dr. Lucas' services.

However, Dr. Lucas' first statement of record about what happened on the evening of April 8, 1995 says nothing about an alleged communication to him from Dr. Spengler concerning a negative CT scan of R.M.'s abdomen. On October 23, 1995, Dr. Lucas wrote a letter to Respondent's medical director to explain his actions on the evening of April 8, 1995. His explanation at that time of what Dr. Spengler said to him makes no reference to a negative CT scan. I.G. Ex. 27.

At some point after April 8, 1995, Dr. Lucas read Dr. Spengler's emergency room report containing the erroneous reference to a negative CT scan. I.G. Ex. 26 at 11. The record does not establish when Dr. Lucas first had access to Dr. Spengler's emergency room report. But, it is likely that Dr. Lucas first became aware of the report after he wrote his October 23, 1995 letter and that he used that report to augment his subsequent statements about what transpired between him and Dr. Spengler on the evening of April 8, 1995.

(5) Dr. Lucas' assertion that Dr. Spengler gave him an incoherent and panic-stricken account of R.M.'s condition is contradicted by Reverend Sparks' observations of Dr. Spengler on the evening of April 8, 1995. Reverend Sparks was not privy to the specifics of any of Dr. Spengler's calls that evening. But, Reverend Sparks did have the opportunity to observe Dr. Spengler's demeanor. Tr. at 227. Dr. Sparks describes Dr. Spengler as being intense and agitated, but also having his emotions under control. Id. He observed nothing unprofessional about Dr. Spengler's demeanor that evening. Id.

(6) The extremely self-serving quality of Dr. Lucas' testimony renders that testimony not credible. Dr. Lucas went to great lengths to disparage Dr. Spengler's qualifications, his professionalism, and his performance on the evening of April 8, 1995. It is evident that Dr. Lucas did so in an attempt to deflect scrutiny from his own actions.

Dr. Lucas' description of Dr. Spengler's statements on the evening of April 8, 1995 amounts to a caricature of Dr. Spengler as an incompetent and bumbling amateur. Dr. Lucas' account is belied both by the observations made of Dr. Spengler's work by others and by the quality of the care that Dr. Spengler gave to R.M. Others who observed Dr. Spengler on the evening of April 8, 1995, or who reviewed the work that Dr. Spengler performed on that evening, found Dr. Spengler to have acted professionally. Notwithstanding Dr. Lucas' characterization of Dr. Spengler, I note that it was Dr. Spengler who diagnosed correctly that R.M. had an injury to his aorta and who undertook extraordinary measures to have R.M.'s injury treated.

7. Respondent had the specialized capabilities and facilities to treat R.M..

The Act does not define precisely the term "specialized capabilities or facilities." Section 1867(g) provides examples of the types of capabilities or facilities that are considered to be specialized: "burn units, shock trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers . . . ." But, it neither states nor suggests that such capabilities or facilities are limited to those examples. I conclude that Congress did not intend the term "specialized capabilities or facilities" to be interpreted narrowly. Plainly, Congress did not intend the term to be limited to those examples that are stated in the Act. Rather, Congress intended the term to encompass those capabilities and facilities which enable a hospital to offer specialized care that is not offered by hospitals that are less well-endowed. Such specialized care may include any care which requires the services of specialists and facilities that are not within the reach of smaller hospitals that offer a lower level of care.

The ability to provide the specialized surgery that R.M. needed is a specialized capability or facility within the meaning of section 1867(g) of the Act. That is because the type of surgery involved is so delicate and is so demanding of professional skill and high caliber facilities that it cannot be performed at lower level hospitals, such as Shawnee Regional Hospital, without posing undue risks to the patient.

Shawnee Regional Hospital lacked the capabilities and the facilities which were needed by R.M.. The surgery that R.M. required necessitated the presence of a trained vascular surgeon. Tr. at 103, 112, 115. The on-call surgeon for Shawnee Regional Hospital on the evening of April 8, 1995 had not performed any vascular surgeries for 8 to 10 years prior to that date. In 1993, he advised Shawnee Regional Hospital that he would no longer perform vascular surgeries. I.G. Ex. 6 at 10; I.G. Ex. 12 at 1, 2, 4. The surgery required by R.M. necessitated the availability of other services which Shawnee Regional Hospital lacked including state of the art operating facilities. See I.G. Ex. 12 at 5.

On the evening of April 8, 1995, Respondent had the specialized capabilities and facilities that were needed by R.M.. Respondent had available to it on the evening of April 8, 1995 everything that was necessary to provide the requisite care to R.M.. Dr. Lucas is a specialist who is adept at performing the delicate emergency vascular surgery that R.M. required. Tr. at 789; I.G. Ex. 28. Respondent had the surgical suites, the staff, the facilities, and the equipment on hand to do the necessary surgery. Tr. at 116.

8. Respondent had the capacity to treat R.M..

Regulations governing the obligations of hospitals that participate in Medicare contain a definition of "capacity." 42 C.F.R. � 489.24(b). The word is defined consistent with its common and ordinary meaning to mean:

the ability of the hospital to accommodate the individual requesting examination or treatment of the transferred individual. Capacity encompasses such things as numbers and availability of qualified staff, beds and equipment and the hospital's past practices of accommodating additional patients in excess of its occupancy limits.

9. A transfer of R.M. to Respondent was appropriate.

� The transferring hospital must provide medical treatment within its capacity which minimizes the risks to the transferred individual's health. Act, section 1867(c)(2)(A);

� The receiving hospital must: (1) have available space and qualified personnel for the treatment of the transferred individual; and (2) must agree to accept the individual's transfer and to provide appropriate medical treatment. Act, section 1867(c)(2)(B)(i), (ii);

� The transferring hospital must send to the receiving hospital all medical records related to the emergency condition for which the individual has presented and the name and address of any on-call physician who has refused or failed to appear within a reasonable time to provide necessary stabilizing treatments. Act, section 1867(c)(2)(C);

� The transfer must be effected through qualified personnel and transportation equipment as may be required. Act, section 1867(c)(2)(D).

a. Shawnee Regional Hospital provided treatment to R.M. which minimized the risks to R.M.'s health

In that context Dr. Spengler and Shawnee Regional Hospital provided treatment to R.M. which minimized the risks to R.M.'s health. Dr. Spengler did for R.M. what he could to make R.M.'s condition as stable as possible. Dr. Spengler sought to address R.M.'s falling blood pressure by administering normal saline and blood to R.M. Tr. at 348. But, the primary care that Dr. Spengler provided to R.M. was to attempt to arrange his immediate transfer to a hospital where the necessary surgery could be performed. That action by Dr. Spengler minimized the risks to R.M.'s health in light of R.M.'s injury.

b. Respondent had available space and qualified personnel for the treatment of R.M.

c. It is irrelevant whether Respondent agreed to accept the transfer of R.M. for purposes of deciding whether a transfer of R.M. was appropriate

The language in section 1867(c)(2)(B)(ii) plainly applies to the circumstance where a hospital seeks to transfer a patient to another hospital. In that circumstance, a transfer may be inappropriate where a hospital "dumps" a patient on another hospital without that hospital's consent. However, the language of section 1867(c)(2)(B)(ii) does not apply in the circumstance of a hospital's alleged wrongful refusal to accept a transfer because application of the language in that context would defeat the purpose of section 1867(g). A literal application of section 1867(c)(2)(B)(ii) to a case of alleged wrongful refusal to accept a transfer under section 1867(g) would turn the very act which is at the center of the case � a refusal to accept a transfer � into a complete defense against an allegation that a transfer wrongfully was refused.

d. It is irrelevant whether Shawnee Regional Hospital sent to Respondent all medical records relating to R.M.'s emergency medical condition or whether Shawnee Regional Hospital provided Respondent with the name and address of any on-call physician at Shawnee Regional Medical Center who refused or failed to appear within a reasonable time to provide necessary stabilizing treatment to R.M.

The discussions between Shawnee Regional Hospital and Respondent concerning a possible transfer of R.M. never reached the point where paperwork became an issue. Whether or not Shawnee Regional Hospital completed necessary paperwork in connection with the proposed transfer of R.M. to Respondent was not a factor in Respondent's rejection of the requested transfer to it of R.M..

As I find below, Dr. Lucas' refusal to treat R.M. coupled with Dr. Buffington's deference to Dr. Lucas comprised a rejection by Respondent of Dr. Spengler's request to transfer R.M. to Respondent. Respondent denied the transfer request because Dr. Lucas refused to treat R.M. and for no other reason. Shawnee Regional Hospital's completion of necessary paperwork relating to the transfer played no role in Dr. Lucas' refusal to treat R.M. and Respondent's consequent failure to accept a transfer of R.M.. Having concluded that, I note that Shawnee Regional Hospital did send relevant emergency room records concerning R.M. to Presbyterian Hospital when it finally arranged to transfer R.M. there. See I.G. Ex. 1.

e. Shawnee Regional Hospital would have effected a transfer of R.M. to Respondent through qualified personnel and medical equipment

Respondent asserts that Medi-Flight would not have flown to Respondent on the evening of April 8, 1995 because Medi-Flight did not have a contract with Respondent. I am not persuaded by this argument. It is true that Medi-Flight did not have a contract with Respondent on April 8, 1995. But, Medi-Flight would have transported R.M. to Respondent notwithstanding the absence of a contract in view of R.M.'s extreme emergency condition. Tr. at 458, 459, 481; I.G. Ex. 44 at 16 - 18, 22, 25, 26. Respondent had a helicopter landing pad on which the Medi-Flight transport could have landed.

Furthermore, the question of whether Medi-Flight would have flown to Respondent is made moot by the fact that Dr. Lucas rejected Dr. Spengler's request that he attend to R.M. for reasons other than Medi-Flight's willingness to fly to Respondent. Dr. Lucas did not know when he spoke with Dr. Spengler whether Medi-Flight had agreed to bring R.M. to Respondent despite his testimony to the contrary.

Dr. Lucas testified that in his initial telephone conversation with Dr. Spengler on the evening of April 8, 1995 he discussed with Dr. Spengler the problems associated with using Medi-Flight to transport R.M. to Respondent. Tr. at 827. He implied that these problems were a reason why he concluded that it would not be appropriate for him to treat R.M.. I find these assertions not to be credible. I conclude that, as was the case with the erroneous reference to a CT scan of R.M.'s abdomen that is contained in Dr. Spengler's emergency room record, Dr. Lucas first learned of potential Medi-Flight problems after the fact and relied on them to justify his refusal to treat R.M. I note that Dr. Lucas did not mention any potential problems with the use of Medi-Flight in his October 23, 1995 letter to Respondent's medical director in which he explained his April 8, 1995 discussions with Dr. Spengler. I.G. Ex. 27.

10. Respondent refused to accept an appropriate transfer of R.M..

Respondent offers several arguments to support its contention that it did not reject a transfer of R.M.. First, Respondent asserts that, as matters of fact: (1) Dr. Spengler never asked either Dr. Buffington or Dr. Lucas to accept R.M.'s transfer; (2) Dr. Buffington did not deny a request for a transfer; and (3) Dr. Lucas never refused a request to treat R.M. I have addressed these assertions in detail above, at Findings 4 - 6. Restating my conclusions briefly here, I find that: Dr. Spengler asked Dr. Buffington on behalf of Respondent to accept a transfer of R.M.; Dr. Buffington deferred to Dr. Lucas on the question of whether R.M. would be provided treatment at Respondent; Dr. Spengler asked Dr. Lucas to perform surgery on R.M.; and, Dr. Lucas refused to treat R.M..

Second, Respondent asserts that its policy as of April 8, 1995 was to have the physician in charge of its emergency room � Dr. Buffington � decide whether or not to accept a transfer. Respondent argues that it never denied a request for a transfer of R.M. inasmuch as Dr. Buffington never explicitly refused to accept a transfer of R.M..

Respondent offered into evidence a policy document which defines Respondent's policy to accept transfers of patients to Respondent for specialized care. P. Ex. 90 at 2, 3. However, as is established by the facts of this case, Respondent plainly did not enforce that policy on the evening of April 8, 1995.

The I.G. asserts that, in fact, Respondent did not have a policy to allow its emergency room physician to decide whether or not to accept a transfer. The I.G. argues that there was an unwritten policy on April 8, 1995 in which Respondent deferred to its on-call physicians the question of whether to approve transfer requests. This assertion is denied strongly by Respondent.

I am not persuaded that the I.G. proved that Respondent had an unwritten policy of deferring to its on-call physicians on the question of whether or not to approve a transfer request. The I.G. offered no credible and admissible proof of the existence of such a policy. Belatedly, the I.G. sought to introduce an exhibit, I.G. Ex. 51, as "rebuttal" evidence to support the I.G.'s assertion. I refused to receive that exhibit because: the exhibit related to issues which were part of the I.G.'s case in chief; the I.G. did not offer the exhibit timely in connection with its case in chief; and, because to admit it as "rebuttal evidence" after completion of the parties' cases would have been prejudicial to Respondent.

However, the issue of what, if any, policy Respondent had in effect on April 8, 1995 to govern acceptance or refusal of transfer requests is, in the final analysis, irrelevant to deciding the issue of whether Respondent refused to accept a transfer of R.M.. What is relevant is that Dr. Buffington deferred to Dr. Lucas' judgment in the case of R.M.. The decision by Dr. Buffington in the case of R.M. superseded any policy that Respondent might have had in effect on April 8, 1995 governing transfer requests.

Dr. Buffington never explicitly told Dr. Spengler that Respondent would not accept R.M.'s transfer. But the absence of a direct refusal by Dr. Buffington is irrelevant to my decision. What Dr. Buffington communicated to Dr. Spengler and to Dr. Lucas was that it would be up to Dr. Lucas whether or not R.M. would be treated at Respondent. And, therefore, Dr. Lucas' refusal to treat R.M. was as much a denial of a transfer request as if Dr. Buffington had explicitly refused the request.

Third, Respondent argues Dr. Lucas was never vested with authority by Respondent, either as its employee or its agent, to approve or reject a transfer request. Therefore, according to Respondent, Dr. Lucas' statements to Dr. Spengler, whatever he may have said to Dr. Spengler, did not bind Respondent to accept or reject R.M.'s transfer.

I am satisfied that Respondent never formally vested Dr. Lucas with the authority to decide on Respondent's behalf whether to accept or reject a requested transfer. Dr. Lucas is not an employee of Respondent and does not have any formal agency relationship with Respondent. But, the nature of Dr. Lucas' formal relationship with Respondent begs the question of whether Dr. Lucas was empowered by Dr. Buffington to make a determination on behalf of Respondent in the case of the request to transfer R.M.. Dr. Lucas became Respondent's agent for the purpose of deciding whether or not to accept the transfer of R.M. once Dr. Buffington deferred to Dr. Lucas on that issue.

Finally, Respondent argues that, as a matter of law, only a staff member of a hospital that is on the premises of the hospital facility may accept or reject a transfer request. Respondent bases this argument on its interpretation of the word "hospital" in section 1867(g) of the Act to mean an employee or staff member of a hospital that is on duty. Under this interpretation, Dr. Lucas' actions are irrelevant because Dr. Lucas was not an on-duty staff member on the evening of April 8, 1995.

Respondent bases its statutory interpretation argument on a series of decisions in which Respondent contends that courts have held the liability provisions of section 1867(g) not to apply to individual physicians. Respondent posthearing brief at 75 - 77. From these cases Respondent reasons that, inasmuch as an "individual" physician cannot be held personally liable under section 1867(g), a hospital may not be held liable under that section for a decision that is made by an "individual" physician. Id. Respondent characterizes Dr. Lucas as an "individual" physician inasmuch as he was not on duty at Respondent on the evening of April 8, 1995. Therefore, according to Respondent, it may not be held liable for Dr. Lucas' decisions that were made in his capacity as an "individual" physician.

The flaw in Respondent's logic is that the decisions that Respondent relies on do not address the liability of a hospital under section 1867(g) of the Act. Whether or not courts have held that a physician may not be sued in his or her individual capacity under section 1867(g) says nothing about whether a hospital may be held liable under the same section of the Act for actions that are taken on behalf of the hospital by that physician.

There is nothing in section 1867(g) which either states or suggests that, in determining a hospital's liability for refusing to accept a transfer, one must look only at the words that are uttered by staff that are on duty at the hospital at the time that the request is made. Section 1867(g) does not define what is meant by the word "hospital." I find it to be consistent with the Act that the term "hospital" for purposes of deciding a hospital's liability under section 1867(g) means any person who has the authority to act on behalf of a hospital. Such a person may be an individual who formally is vested with the authority to act on behalf of a hospital or it may be an individual, such as Dr. Lucas, who is vested with the authority to make a decision on behalf of a hospital on a specific occasion. And, that person may be an individual who is on the premises of the hospital at the time that a decision to accept or not accept a transfer is made or that person may be an individual who is off the premises of the hospital at such time. The physical location of the individual is irrelevant to deciding whether that individual acted to commit a hospital to accept or refuse a transfer request.

11. Respondent's affirmative defenses are without merit.

[t]he . . . [I.G.] fails to recognize that the obligations imposed under the statute are imposed on the transferring hospital, not the transferee hospital. . . .

I discuss each of Respondent's affirmative defenses below. However, as a general conclusion about these defenses, I find that they rest on a fundamental mis-characterization by Respondent of the various subparts of section 1867 of the Act.

Many of the statutory provisions that Respondent attempts to read into section 1867(g) are not applicable to the issue of whether a hospital has acted in compliance with that section. The purpose of section 1867(g) is very different from that of the other subparts of section 1867. Section 1867(g) is intended to prohibit, under the circumstances that are defined by that section, a hospital from refusing to accept a transfer of a patient from another hospital. The other subparts of section 1867 are intended to prohibit a hospital from refusing to examine or to stabilize a patient who presents himself or herself at that hospital's emergency room for treatment prior to transferring that patient to another hospital. The criteria which govern a hospital's decision to accept or not to accept a "walk in" patient are different from and are inapplicable to a hospital's decision to accept or not to accept a transfer.

a. It is not relevant whether R.M.'s medical condition was "stabilized" prior to his transfer to another hospital

It is not relevant whether R.M.'s medical condition was stabilized prior to his transfer. The case law and statutes on which Respondent relies govern only the circumstance where a hospital is alleged to have transferred a patient unlawfully from its facilities in contravention of the provisions of sections 1867(b)(1)(A) and 1867(c)(1) of the Act. These provisions of the Act serve to preclude a hospital from transferring a patient that it opts not to treat unless the patient has been appropriately examined and stabilized. Act, section 1867(c)(1). In that context, a "stabilized" individual is a person whose emergency medical condition is not likely to deteriorate during transfer or as the result of a transfer. Act, sections 1867(e)(3)(A) and (B). But, these provisions governing examination and stabilization are inapplicable in the circumstance where a hospital is alleged to have refused in contravention of the provisions of section 1867(g) of the Act to accept an appropriate emergency transfer of a patient.

Respondent's argument not only is irrelevant as a matter of law but it is not supported by the evidence. The transfer of R.M. was necessary in large part precisely because R.M. was not medically stable while at Shawnee Regional Hospital. Tr. at 106, 107, 611, 612. He could not be made medically stable nor could he be stabilized while he was there. Shawnee Regional Hospital was incapable of providing that service to R.M.. Dr. Spengler and the staff at Shawnee Regional Hospital did the best they could do to assure that the risks to R.M.'s health were minimized during his stay at Shawnee Regional Hospital and his subsequent transport. However, had R.M. remained at Shawnee Regional Hospital without having surgery performed on him he would have died regardless of any non-surgical medical care that might have been provided to him at that facility.

b. Respondent was not relieved of its duty to accept a transfer of R.M. by the fact that University Hospital had previously accepted a transfer request for R.M.

(1) University Hospital had accepted and begun to treat R.M. inasmuch as Medi-Flight is operated by University Hospital and Mr. Wade, Medi-Flight's paramedic, provided some care to R.M. while on the ground at Shawnee Regional Hospital. Therefore, according to Respondent, a transfer of R.M. to Respondent actually would have been from University Hospital and not Shawnee Regional Hospital and Respondent was under no obligation to accept such a transfer until University Hospital provided R.M. with a medical screening examination and stabilizing care.

(2) University Hospital had incurred an obligation to treat R.M. when it first agreed to accept a transfer of R.M. which, as a matter of law, relieved Respondent from any obligation to accept a transfer of R.M..

(3) a hospital whose capabilities, facilities, and capacity satisfy the Act's criteria may reject a transfer request on the ground that some other hospital may be better equipped to care for the patient.

First, R.M. never became University Hospital's patient. The plain facts of this case are that R.M. remained Dr. Spengler's patient the entire time he was at the premises of Shawnee Regional Hospital. The transfer of R.M. was from Dr. Spengler's care and from Shawnee Regional Hospital and not University Hospital. These facts are not altered by the fact that Medi-Flight may have been operated by University Hospital.

Respondent would have a basis for refusing to accept a transfer of R.M. from Shawnee Regional Hospital had Shawnee Regional Hospital failed to take action necessary to minimize the risks to R.M.'s health. See Act, section 1867(c)(2)(a). In that circumstance, a transfer of R.M. from Shawnee Regional Hospital to Respondent would not be an appropriate transfer. But, the fact that University Hospital, which never received nor cared for R.M., failed to provide stabilizing care to R.M. is wholly irrelevant to Respondent's obligations under section 1867(g). Second, there is nothing in the Act which suggests that a hospital having specialized capabilities, facilities, and capacities to accept an appropriate transfer is relieved of its statutory obligation to accept that transfer by virtue of the fact that another hospital improperly refuses a transfer request of a patient after first having agreed to accept the transfer of that patient. A hospital's obligations under section 1867(g) are determined by whether that hospital is able to provide the care that is described by the section and not by whether some other hospital has acted unlawfully.

Finally, there is nothing in the Act which suggests that a hospital may refuse to accept a transfer of a patient on the ground that some other hospital might provide a higher quality of care to that patient. If a hospital has the specialized capabilities or facilities and the capacity to care for a patient whose appropriate transfer is sought it may not reject that patient regardless whether some other hospital might be better suited to care for that patient.

c. The I.G. does not have the burden of proving that Respondent gave disparate treatment to R.M.

Respondent's arguments are not supported by the law. The Act does not require proof of an improper motive � including an improper pecuniary motive � by a hospital as a basis for establishing that a hospital unlawfully declined to accept a transfer. Galen v. Roberts, 525 U.S. 249 (1999).

d. Petitioner did not prove that the I.G. seeks to have the Act enforced in an arbitrary or inconsistent way.

I have not reviewed the record or the briefs that were filed in the Bowen case or the decision that was issued in that case and I do not reach any conclusions here about what the I.G. advocates in Bowen. But, based on Respondent's characterization of the I.G.'s arguments in Bowen, there appears to be nothing about the I.G.'s arguments in that case which is materially inconsistent with that which the I.G. argues in this case.

First, it is apparent that there are significant differences between Bowen and this case. Bowen involves the application of different sections of the Act (sections 1867(a) - (c)) and the issue here is section 1867(g). Bowen appears to involve an alleged refusal by a physician to treat a patient who presented to a hospital's emergency room seeking treatment and not an alleged refusal by that hospital to accept an appropriate transfer from another hospital.

Second, Respondent has identified alleged inconsistencies between Bowen and the present case that are not, on close analysis, inconsistencies. For example, Respondent contends that in Bowen the I.G. asserts that a hospital that is not diverting patients due to overcrowded facilities must accept a transfer request whereas Respondent contends that in this case the I.G. is not asserting that University Hospital acted improperly in refusing to accept R.M. at a time when University Hospital was not diverting patients. In fact, the I.G. has made no argument in this case about the propriety or lawfulness of University Hospital's actions on the evening of April 8, 1995. What the I.G. has asserted is that Respondent's obligations on that evening were independent from those of University Hospital. See Finding 11.b., above.

12. Respondent failed to comply with the requirements of section 1867(g) of the Act when it refused to accept the transfer of R.M. from Shawnee Regional Hospital.

13. A civil money penalty of $25,000 is reasonable in light of the evidence which relates to the factors used to decide the amount of a civil money penalty and in light of the Act's remedial purpose.

a. A basis exists to impose a civil money penalty

Respondent had a policy in effect as of April 8, 1995 which governed its obligations under the Act. P. Ex. 90 at 2 - 6. That policy almost exclusively addresses Respondent's obligation pursuant to sections 1867(a) - (c) of the Act to examine and stabilize a patient who presents himself or herself to Respondent's emergency room requesting care prior to transferring that patient Id. It goes into considerable detail to explain how Respondent will implement that policy. Id. But, it says virtually nothing about Respondent's obligation to accept an appropriate transfer. That obligation is expressed in a single sentence:

[p]atients appropriately transferred from another hospital anywhere within the boundaries of the United States for specialized care must be accepted if . . . [Respondent] has the capacity to treat the patient.

Respondent left Drs. Buffington and Lucas to their own devices in deciding how to comply with the request to transfer R.M. to Respondent. Respondent did not train its staff or its on-call physicians as to their obligations to assure compliance by Respondent with section 1867(g) of the Act. Dr. Lucas never received any training concerning section 1867 of the Act. I.G. Ex. 26 at 9. Left adrift by Respondent, Drs. Buffington and Lucas made decisions on the evening of April 8, 1995 which caused Respondent to fail to comply with the Act.

b. There is evidence in this case which relates to the criteria for deciding the amount of a civil money penalty that are stated at 42 C.F.R. � 1003.106(a)(4)

The regulations contain criteria to be used in determining the amount of a civil money penalty. 42 C.F.R. � 1003.106. There are specific criteria to be employed in determining the amount of a penalty to be imposed against a hospital that negligently fails to comply with the requirements of section 1867 of the Act. These are stated at 42 C.F.R. � 1003.106(a)(4) as consisting of:

(i) The degree of culpability of the respondent;

(ii) The seriousness of the condition of the individual seeking emergency medical treatment;

(iii) The prior history of offenses of the respondent in failing to provide appropriate emergency medical screening, stabilization and treatment of individuals coming to a hospital's emergency department or to effect an appropriate transfer;

(iv) The respondent's financial condition;

(v) The nature and circumstances of the violation; and

(vi) Such other matters as justice may require.

i. Respondent's culpability

The I.G. argues that Respondent manifests a very high level of culpability for its failure to comply with section 1867(g) of the Act. The I.G. argues that Drs. Buffington and Lucas are Respondent's agents for purposes of determining Respondent's culpability. The I.G. then argues that Dr. Buffington was either nonresponsive or irresponsible and that Dr. Lucas was deliberate in failing to accept a transfer of R.M.. I.G. posthearing brief at 72.

I disagree with the way in which the I.G. seeks to assess culpability. Deciding the extent of Respondent's culpability for its failure to accept the transfer of R.M. is not a simple exercise of deciding the culpability of Drs. Buffington and Lucas and then applying automatically that culpability to Responde. Dr. Buffington may have been Respondent's agent on the evening of April 8, 1995 for purposes of accepting or refusing to accept a transfer. And, as I discuss above, Dr. Buffington vested Dr. Lucas with the authority to make a decision as to whether a transfer of R.M. to Respondent would be effectuated. But that does not mean that the motivations and actions of these two physicians automatically are imputed to Respondent for purposes of deciding Respondent's culpability.

The question I must decide is not the degree of culpability of Drs. Buffington and Lucas but the degree of culpability of Respondent. That is measured not by Dr. Buffington's and Dr. Lucas' actions and motivations on the evening of April 8, 1995 so much as it is measured by Respondent's actions to attain or not to attain compliance with the requirements of section 1867(g) of the Act.

Respondent was not motivated as a matter of policy to deny a transfer to R.M. or to deny an appropriate transfer to anyone else. Respondent's policy was to comply with the requirements of section 1867(g) of the Act. P. Ex. 90 at 3. Respondent's fault on the evening of April 8, 1995 lies in its failure to insure that its policy was enforced. That is an act of misfeasance by Respondent and not of malfeasance.

Respondent's culpability is relatively high in that it was lax in assuring that the Act be complied with. But, it does not rise to the level of a willful, deliberate, or reckless act. Rather, it comprised an act of simple negligence, a failure by Respondent to enforce its policy.

I have considered the culpability of Drs. Buffington and Lucas although I do not attach that culpability automatically to Respondent. Their culpability is relevant in the sense that Respondent's negligence in enforcing its policy against inappropriate failures to accept transfers enabled these two physicians to use their personal judgment to decide whether or not to accept the transfer of R.M.. I find that these two individuals made their decisions carelessly.

Dr. Buffington was careless in not protecting his authority to decide whether or not to accept the requested transfer of R.M.. He either knew or should have known that, by deferring to Dr. Lucas on this issue, he was giving Dr. Lucas authority to make a decision that would bind Respondent. I find that Dr. Lucas was heedless of the requirements of the law in making his decision not to treat R.M.. There is no evidence to support the I.G.'s speculation that Dr. Lucas was motivated not to treat R.M. due to his busy schedule the following day. But, nevertheless, Dr. Lucas failed to consider the appropriateness of a transfer of R.M. to Respondent in light of Respondent's specialized capabilities and facilities. And, Dr. Lucas failed to perceive that his refusal to treat R.M. may have jeopardized R.M.'s chances for survival.

ii. The seriousness of R.M.'s medical condition

iii. Respondent's previous history of compliance

iv. Respondent's financial condition

v. The nature and circumstances of the violation

vi. Such other matters as justice may require

Respondent took additional steps to attain compliance with the requirements of the Act. On July 23, 1996, the Health Care Financing Administration (HCFA) sent to Respondent a notice which advised Respondent that it was prepared to terminate Respondent's participation in the Medicare program in light of Respondent's noncompliance with the transfer acceptance requirements of section 1867(g) of the Act as implemented in regulations governing hospitals that participate in Medicare. I.G. Ex. 11 at 2, 3. Respondent answered by filing a plan of correction with HCFA. This plan of correction provided that:

[t]he hospital committee which reviewed the care rendered to . . . [R.M.] recommended that emergency room physicians accept appropriate transfers to . . . [Respondent], and that on-call specialists be contacted after the patient is accepted by the emergency room physician. This recommendation was accepted and became effective March 28, 1996. Therefore, all appropriate transfers are now accepted by the emergency room physician.

c. A civil money penalty in the amount of $25,000 is reasonable

The overall purpose of the Act, including section 1867(g), is remedial and not punitive. As is true with every case in which a civil money penalty is at issue, the question which I must ultimately decide, assuming that a basis exists for a penalty is: what penalty amount is reasonable as a remedy?

Respondent has devoted much effort to argue for the proposition that section 1867(g) is penal and not remedial. It asserts that, as a "penal" statute, the Act must be construed narrowly in its favor. It asserts additionally that no remedial purpose would be served by a penalty in this case.

Respondent's characterization of the Act is incorrect. The Act, and section 1867(g) in particular, are remedial and not punitive. The purpose of the Act is not to punish an individual or an entity for wrongful conduct so much as it is to provide for a remedy for such conduct. There are at least three remedial purposes which may be served by a civil money penalty that is imposed pursuant to section 1867(g):

(1) To compensate federally funded programs for financial losses incurred as a consequence of unlawful conduct. Direct and indirect financial losses plainly are compensable through remedial penalties. Here, Respondent argues that there was no financial loss incurred by federally funded health care programs. The case does not involve reimbursement claims or expenditures by Respondent that were reimbursed by the Medicare program. But it is also true that the Secretary and her agent, the I.G., incurred substantial expenses investigating Respondent's conduct and acting to assure that this conduct was not repeated. Those expenses are compensable even as are losses sustained directly through claims and reimbursement payments.

(2) To compensate federally funded health care programs for damage to the reputations of these programs resulting from failure by a hospital to comply with the requirements of section 1867 of the Act. A civil money penalty may serve as reasonable compensation to federally funded health care programs for the damage that is done to their reputations by a hospital that contravenes the requirements of section 1867. A primary purpose of section 1867 of the Act is to provide reassurance to beneficiaries and recipients of federally funded health care programs that they will receive the care that they are lawfully entitled to receive when they seek such care at participating hospitals. Serious damage is done to the integrity and reputation of these programs by a hospital's failure to comply with its lawful obligations. Such damage may not be quantifiable in a particular case but it is real nonetheless.

(3) To serve as an inducement to a hospital to assure that the hospital will attain compliance with the requirements of the Act and to remain in compliance with those requirements. A primary remedial purpose of any civil money penalty is to induce the penalized party to attain compliance with the requirements of the Act and to remain in compliance with those requirements.

The Act's remedial purposes will be served in this case by a civil money penalty of $25,000. This penalty takes into account Respondent's culpability, which is high, but not so high as is asserted to be the case by the I.G. It takes into account also R.M.'s urgent needs on the evening of April 8, 1995 and the possible consequences of Respondent's failure to accept R.M.'s transfer. It takes into account the fact that Respondent has not been found previously to have violated section 1867 of the Act. It takes into account also a factor not considered by the I.G. in advocating a maximum civil money penalty. That is Respondent's efforts to assure that in the future it would comply with the requirements of law.

A civil money penalty of $25,000 will compensate the Medicare program for the damage to its reputation that may have resulted from Respondent's actions and for the cost that it may have incurred to assure Respondent's future compliance. And, it will serve as an inducement to Respondent to remain compliant with the requirements of law.

My principal reason for not imposing the maximum penalty of $50,000 is that such a penalty should be reserved normally for those facilities that show the highest level of culpability and the greatest indifference to attaining compliance with the requirements of law. That level of culpability is not present here. And, Respondent already has taken the necessary remedial steps to assure future compliance with the requirements of law.