Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of: ) DATE: June 22, 1990 ) Michael L.
Burditt, ) Petitioner, ) Docket No. C-42 )
Decision No. 1167 v. ) ) The
Inspector General. )
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
DECISION
Dr. Michael L. Burditt (Petitioner) requested review by the Appellate
Panel of a July 28, 1989 decision by Administrative Law Judge Charles E.
Stratton (ALJ) affirming the determination of the Inspector General
(I.G.) that Petitioner violated section 1867 of the Social Security Act,
and upholding $20,000 of a $25,000 civil money penalty imposed by the
I.G. for that violation.
Summary of Decision
Section 1867 was enacted to prevent unwarranted transfers of individuals
from one medical facility to another. 1/ The statute applies to
hospitals which participate in Medicare and their responsible
physicians. As pertinent here, it prohibits a "responsible physician"
from transferring an individual who comes to such a hospital for
treatment if the individual (1) has an "emergency medical condition
which has not been stabilized or (2) is in "active labor," unless
(1)
the physician certifies that the benefits reasonably expected from
treatment at another medical facility outweigh the increased risks to
the individual's medical condition from the transfer, and (2) the
transfer is an "appropriate transfer" effected through "qualified"
personnel and equipment. We affirm the ALJ's decision that Petitioner
knowingly violated the requirements of section 1867. 2/ 3/
Briefly summarized, the events which gave rise to this case were as
follows. 4/ Petitioner was a Board- certified obstetrician gynecologist
(OB/GYN) on the active medical staff of DeTar Hospital, a Medicare
participating hospital in Victoria, Texas. On the afternoon of December
5, 1986, Petitioner was on the hospital's "patient call list," a list
of
active staff members responsible for caring for OB/GYN patients without
a personal physician who come to the hospital for treatment.
At approximately 4:00 p.m., Mrs. Rosa Rivera, who was nine months
pregnant with her sixth child, arrived at DeTar Hospital. She had had
no prenatal care and did not have a physician. A nurse examined her and
determined that her blood pressure was elevated to 210/130 (which was
described at the ALJ hearing by Petitioner and another physician as the
highest blood pressure they had ever seen in an obstetrics patient -- Tr
643, 816), as well as the following signs of labor: regular
contractions, a cervix dilated to 3 cm., and 60-70% effacement. When
these findings were relayed to Petitioner by telephone, his immediate
reaction was that he did not want to take care of Mrs. Rivera and that
she should be transferred to John Sealy Hospital, which was located 170
miles away in Galveston, Texas. Upon his arrival at DeTar Hospital,
Petitioner first repeated his request to the nurse to make transfer
arrangements and then proceeded to examine Mrs. Rivera. In addition to
verifying the nurse's findings and concluding that Mrs. Rivera's blood
pressure was so high as to be life- threatening for both her and her
unborn child, he noted the possibility that the fetus was
growth-retarded, based on his comparison of the fetal weight (which he
estimated to be six pounds) with the weight of Mrs. Rivera's other
children at birth. He then made arrangements for Mrs. Rivera to be
transferred to John Sealy Hospital. Petitioner ordered no medication for
Mrs. Rivera until requested to do so by the physician at John Sealy
Hospital who agreed to the transfer.
At the request of a supervisory nurse, Petitioner then signed a
certificate authorizing Mrs. Rivera's transfer, telling the nurse that
"until DeTar Hospital pays my malpractice insurance, I will pick and
choose those patients that I want to treat." Almost two hours elapsed
between this time and the time of Mrs. Rivera's transfer, during only
part of which Petitioner was busy caring for another patient.
Nevertheless, Petitioner never re- examined Mrs. Rivera to determine
whether her labor had progressed, although he admitted that if labor had
progressed, he might have changed his mind about transferring Mrs.
Rivera. Moreover, Petitioner made no attempt to monitor Mrs. Rivera's
blood pressure after the initial examination.
The ambulance left DeTar Hospital at approximately 6:50 p.m. with Mrs.
Rivera, her husband, a registered nurse, and two emergency medical
services (E.M.S.) technicians. Forty minutes later, Mrs. Rivera gave
birth to a boy with no apparent health problems in the ambulance, which
had pulled to the side of the road approximately 30 miles from Victoria.
When the nurse telephoned Petitioner to report the birth, Petitioner
told her to proceed to John Sealy Hospital. Informed that the ambulance
was nevertheless returning to DeTar Hospital, Petitioner indicated that
Mrs. Rivera could be dismissed from the hospital when she arrived.
Another doctor who examined Mrs. Rivera upon her return admitted her to
the hospital, where she was treated for high blood pressure and
discharged three days later.
As explained later in detail, we affirm the ALJ's decision that
Petitioner knowingly violated section 1867 in transferring Mrs. Rivera.
FFCL #17. No exception was taken to the ALJ's conclusion that "knowing"
means actual knowledge, deliberate ignorance, or reckless disregard.
(See e.g., ALJ Decision at pp. 4-5.) Thus, in order for there to be a
knowing violation, a physician must have actual knowledge, or act in
reckless disregard or deliberate ignorance, of information about the
patient's condition and other circumstances of the transfer material to
determining whether the statutory test was met.
Here, based on his own examination and that of the nurses, Petitioner
clearly knew enough about Mrs. Rivera's extremely high blood pressure
to be able to conclude that she had an emergency medical condition which
was not stabilized. FFCLs #8, #139, #138, #137, #131, #128, #129. In
addition, Petitioner knew enough about her symptoms of labor to be able
to conclude that she was in active labor as defined by statute at the
time he signed the physician's certificate and at the time of her
departure from DeTar Hospital. FFCLs #10, #115, #113.
Petitioner signed the "Physician's Certificate Authorizing Transfer"
certifying that the risks of the transfer were outweighed by the
benefits without actually engaging in any meaningful weighing of the
risks and benefits and under circumstances where no reasonable OB/GYN
could have believed that the marginal benefits to be obtained outweighed
the risks associated with the transfer. FFCLs #70, 69. The transfer
increased the risks to Mrs. Rivera and her fetus significantly: either
or both could have died or suffered grave bodily harm en route to the
receiving hospital. FFCLs #67, #125, #127, #131. Petitioner's
allegation that the fetus, which he speculated might be growth-retarded,
would benefit significantly from being treated immediately upon delivery
at John Sealy Hospital's Level III nursery is not supported by the
record, which indicates that DeTar Hospital's Level II nursery could
have provided adequate treatment. FFCLs #60, #59. Even if Level III
care would have been preferable, this constituted at best a remote and
speculative benefit for the baby that was yet to be born which was
clearly outweighed by the grave risks involved for the mother and fetus.
FFCLs #65, #67, #68.
Finally, Petitioner knew enough about the patient's condition and the
circumstances of the transfer to be able to conclude that the transfer
was not an appropriate transfer within the meaning of the statute; the
transfer lacked qualified transportation equipment and only a physician
in a hospital setting would have been able to provide adequate care for
Mrs. Rivera and her fetus if any of the risks accompanying her high
blood pressure and her active labor had materialized on her way to the
distant hospital. FFCLs #90, #92, #93, #94.
Thus, on the facts here, there are several grounds for finding that
Petitioner knowingly violated section 1867. The statute applies to an
individual either with an emergency medical condition or in active
labor; Mrs. Rivera fell into both of these categories. The statute
gives three alternative definitions of an emergency medical condition;
all three applied here. The statute also gives three alternative
definitions of active labor, two of which applied here. Finally, the
statute applies under either of two conditions: if there is an invalid
certification (or no certification) that the benefits from treatment at
another facility outweigh the risks or if the transfer is not an
appropriate transfer. Both of these conditions existed here.
We also conclude that the amount of the penalty assessed by the ALJ was
proper. The applicable regulations provide that mitigating and
aggravating circumstances shall be taken into account in determining the
amount of the penalty. Here, the ALJ found several mitigating as well
as several aggravating circumstances. Although we reverse his findings
on two of the mitigating circumstances, this does not materially alter
the balance between mitigating and aggravating circumstances since the
remaining mitigating factor is a substantial one. Accordingly, we uphold
the ALJ's imposition of a $20,000 penalty.
The record on which our decision is based includes the entire record
before the ALJ, including the transcript of a hearing conducted by him,
as well as written submissions to the Appellate Panel and the transcript
of the parties' oral argument before the Presiding Panel Member. 5/ 6/
Petitioner's appeal was primarily in the form of exceptions to the ALJ's
findings of fact and conclusions of law (FFCLs). We consider these
exceptions in the order presented by Petitioner, listing first the FFCL
to which exception was taken, and then discussing the basis given for
the exception and why we sustain, reverse or modify the FFCL in response
to exceptions taken by Petitioner. We then address in the same fashion
several exceptions made by Petitioner which are not specifically tied to
numbered FFCL as well as the limited exceptions taken by the Inspector
General. We also sustain without discussion several FFCLs to which
Petitioner took exception without giving any explanation of the basis
for his exception. These are: FFCL #11, 32, 33, 44, 57, 78, 82, 84, 88,
92, and 125.
Although, in considering the parties' exceptions, we have reversed or
modified certain FFCLs, these changes reflect harmless error only. They
do not affect the ALJ's ultimate conclusion that Petitioner violated
section 1867 or fundamentally alter his analysis in support of that
conclusion. An appendix to this decision lists the eight FFCLs which
are reversed or modified and shows the text of the modified FFCLs.
In his decision, the ALJ stated that "the I.G. has the burden of proving
his allegations of liability and aggravating circumstances, and
Respondent must prove mitigating circumstances, by a preponderance of
the evidence . . . ." ALJ Decision, p. 4. We apply the same standard
in affirming his decision. Analysis of Exceptions
FFCL #10: Mrs. Rivera was in "active labor" on December 5, 1986.
Section 1867(e)(2) provides three alternative definitions of the term
"active labor": (A) labor at a time at which delivery is imminent;
(B)
labor at a time at which there is inadequate time to effect safe
transfer to another hospital prior to delivery; or (C) labor at a time
at which a transfer may pose a threat to the health and safety of the
patient or the unborn child.
Petitioner argued that Mrs. Rivera was not in "active labor" in the
medical sense of the term. The parties agreed that the generally
accepted medical definition of active labor is the progressive dilation
of the cervix and the descent of the fetus in relation to contractions
of the uterus leading towards delivery of the fetus. Tr of oral
argument, pp. 74, 109. 7/ However, the medical definition of active
labor does not correspond precisely to any of the three statutory
definitions of active labor. Thus, it is irrelevant whether Mrs. Rivera
was in active labor in the medical sense of the term; the issue here is
whether any of the three alternative definitions of active labor in the
statute applied. As discussed below, we find that two of the three
statutory definitions applied.
Each of the definitions has a threshold requirement that the woman be
"in labor." We conclude that this requirement was satisfied here.
The record establishes that labor consists of three stages. The first
stage is divided into two phases -- the early (latent) phase, and the
active phase. Early labor begins with the onset of contractions which
cause dilation and effacement of the cervix. Active labor begins when
the cervix is dilated to about 4 cm. and continues until it is
completely dilated (about 10 cm.). The second stage of labor consists of
delivery of the fetus. The last stage consists of delivery of the
placenta. I.G. Ex 7/14-15; I.G. Ex 10/13; I.G. Ex 12/14; Tr 711-713,
764-765. 8/
The preponderance of evidence in the record supports the conclusion that
Mrs. Rivera was in early labor when she was first admitted to the
hospital. The nurse who examined Mrs. Rivera at that time found that
she had moderate contractions every three minutes, lasting 60 seconds,
and that her cervix was 3 cm. dilated and 60-70% effaced. FFCL #24.
Petitioner's subsequent examination confirmed these findings. J Ex 1/6.
Several witnesses testified that this constituted early labor or even
active labor. R Ex B/8, I.G. Ex 12/31, Tr 240. In addition, the nurse
who attempted to show the hospital's transfer guidelines to Petitioner
testified that Petitioner told her that Mrs. Rivera was in early labor.
Tr 87, 102, 115. Also, Dr. Burross testified that he thought Petitioner
had reached this conclusion. Tr 716. 9/ Thus, we conclude that the
first element of the statutory definition of active labor -- that Mrs.
Rivera be "in labor" -- applied here, and that Petitioner knew Mrs.
Rivera was in labor.
Moreover, the preponderance of evidence in the record supports the ALJ's
finding that there was inadequate time to effect safe transfer to
another hospital prior to delivery, the second definition of active
labor, and that Petitioner's violation of the statute on this basis was
knowing. Testimony at the hearing established that delivery could
reasonably be expected three to four hours after Mrs. Rivera left DeTar
Hospital, even if she was not yet in active labor in a medical sense
when she left. Tr 363-364, 375, 384, 770; I.G. Ex 7/31-32; I.G. Ex
10/29; I.G. Ex 12/31. 10/ This judgment was based on factors including
that Mrs. Rivera was multiparous (had multiple pregnancies), that she
had leaking or ruptured membranes, and that she was experiencing regular
contractions which had resulted in some dilation and effacement of the
cervix. Id. 11/ The record establishes Petitioner actually knew the
material facts of Mrs. Rivera's condition as well as the material facts
relating to her transfer to John Sealy Hospital, 170 miles away. 12/
Moreover, Petitioner recklessly disregarded or deliberately ignored
potential developments in Mrs. Rivera's condition for almost two hours
following his examination even though he had ample opportunity to
re-examine her. Thus, the record demonstrates Petitioner transferred
Mrs. Rivera knowing she was in active labor under the second definition
of active labor in section 1867(e)(2)(B).
In addition, the preponderance of evidence in the record supports the
ALJ's finding that transfer posed a threat to Mrs. Rivera's health and
safety or that of her unborn child, the third definition of active
labor, and that Petitioner's violation of the statute on this basis was
knowing. There is no dispute that Mrs. Rivera had severe hypertension
(high blood pressure). The risks accompanying this condition found by
the ALJ included seizures, congestive heart failure, heart attack,
serious kidney dysfunction or failure, stroke or intracranial bleeding,
placental abruption, and fetal hypoxia. FFCL #125. Should any of these
risks have materialized, they could have resulted in death or serious
impairment to the health of either Mrs. Rivera or her baby or both. Id.
Although the risks existed regardless of whether Mrs. Rivera was
transferred, the potential for harm clearly increased when Mrs. Rivera
was placed "in the uncontrolled environment of an ambulance. . . ."
ALJ
Decision at 38. As this wording suggests, the risks of severe
hypertension would clearly be better handled in any hospital than in an
ambulance. Moreover, the ALJ specifically found that transfer
significantly intensified the high risk to the fetus of death or
disability due to fetal hypoxia (deficiency of oxygen to the fetus) or
placental abruption (premature separation of the placenta). FFCL #67.
This was the case because, while delivery is necessary to relieve fetal
distress resulting from these conditions, Nurse Nichols, who accompanied
Mrs. Rivera in the ambulance, could not have performed a cesarean
section -- the safest method of delivery for the fetus under these
circumstances, as well as the only method if fetal distress occurred
when Mrs. Rivera was not ready to deliver. FFCLs #92 and #93. In
addition, the ALJ found that a growth-retarded fetus (Petitioner's
tentative diagnosis here) was likely to suffer fetal distress in labor.
FFCL #66. The record establishes that Petitioner actually knew, through
his own examination and that of the nurses, the material facts
concerning her condition to be able to conclude that the transfer posed
a threat to Mrs. Rivera's health and safety and that of her unborn
child. Thus, the record establishes that Petitioner transferred Mrs.
Rivera knowing she was in active labor under the third definition of
active labor in section 1867(e)(2)(C).
Since either of two alternative statutory definitions of active labor
applied, the ALJ correctly determined that Mrs. Rivera was in active
labor, and that Petitioner knowingly violated the statute on this basis.
Accordingly, we sustain FFCL #10.
FFCL #80: At 6:30 p.m., Dr. Burditt was shown the results of Mrs.
Rivera's lab work, and inquired about Mrs. Rivera's cervical status.
Dr. Burditt should have examined Mrs. Rivera and should have inquired
about her blood pressure at this time. [Citations omitted.]
Petitioner specifically disputed only the portion of this finding to the
effect that he should have re-examined Mrs. Rivera. He argued that it
would have been impractical for him to conduct a vaginal examination
since Mrs. Rivera was no longer in the labor room, but in the hallway,
and the ambulance was ready to begin transport. He also argued that he
reasonably relied on the vaginal examination performed by Nurse Nichols,
whom he knew to be a qualified OB nurse, and whose examination was
consistent with both his and Nurse Kotzur's original examinations.
The ALJ's finding that Petitioner should have re-examined Mrs. Rivera is
related to FFCL #109, which states that "[s]mall differences in
measurement of the dilation of the cervix and the percentage of its
effacement are subjective measurements, which can only be detected over
time by the same examiner." This finding, which Petitioner did not
dispute, means that, even if Nurse Nichols was a competent obstetrical
nurse, she might not have detected a change in dilation from 3 cm. to 4
cm. which Petitioner might have detected. Accordingly, Petitioner
could not reasonably have relied on the results of her examination
simply because they were the same as the results of prior examinations
by him and Nurse Kotzur. Moreover, the possibility that the transfer
would have been delayed if Petitioner had re- examined Mrs. Rivera does
not justify his failure to re- examine her. Petitioner testified at the
ALJ hearing that if Mrs. Rivera had been 4 cm. dilated, he would not
have transferred her. Tr 913. Under the particular circumstances here,
where Petitioner clearly had the time and opportunity and a substantial
time period had elapsed after his initial examination, the failure to
re-examine Mrs. Rivera evidences a reckless disregard for the facts
material to determine what her condition was and whether transfer was
appropriate.
Accordingly, we sustain FFCL #80.
FFCL #17: The I.G. proved by a preponderance of the evidence that, on
December 5, 1986, Petitioner knowingly violated requirements of Section
1867 of the Act.
Petitioner asserted that the ALJ's findings that Dr. Burditt knowingly
transferred Rosa Rivera while she was in active labor were not supported
by the evidence and were erroneous and must be set aside. The ALJ ruled
that --
the "knowingly" standard of liability in section 1867 requires
proof of actual knowledge, reckless disregard, or deliberate
ignorance; the term "knowingly" does not encompass "reason to
know"
or simple mistakes.
Under this standard, a physician must have actual knowledge, or act in
reckless disregard or deliberate ignorance, of information about the
patient's condition and other circumstances of the transfer material to
determine whether the statutory test was met. 13/
Here, as discussed in response to the exception to FFCL #10, Petitioner
had actual knowledge, based on both his own examination of Mrs. Rivera
and that of the nurses, that she had severe hypertension and symptoms of
labor. Moreover, he must be charged with this knowledge through the time
she was transferred since he chose not to re- examine her to determine
the progress of her labor or to monitor her blood pressure. The record
clearly establishes that this knowledge was sufficient to enable
Petitioner to conclude that Mrs. Rivera was in active labor within the
meaning of the statute. Accordingly, the ALJ correctly concluded that
Petitioner transferred Mrs. Rivera knowing that she was in active labor.
14/
Accordingly, we sustain FFCL #17.
FFCL #29: When advised of these conditions, Dr. Burditt stated over the
phone that "he did not want to take care of this lady" (I.G. Ex 1/1)
and
told Nurse Kotzur that the patient should be transferred to John Sealy
Hospital, approximately 160 to 170 miles from DeTar Hospital. [Citations
omitted.]
Petitioner asserted that he did not say that he did not want to take
care of Mrs. Rivera, citing his testimony at the ALJ hearing in this
appeal. He also relied on his testimony in asserting that he merely
told Nurse Kotzur to "prepare for transfer," meaning that she should
look into the availability of an ambulance should a transfer prove
necessary. However, in a letter to DeTar Hospital's Nursing
Administrator written three days after the incident in question here
(and cited in the ALJ's finding), Petitioner described his response upon
being informed by Nurse Kotzur of Mrs. Rivera's condition as follows:
My response was that "I didn't want to take care of this lady"
feeling that she should be transferred to John Sealy Hospital which
I stated.
I.G. Ex 1/1. Thus, Petitioner himself reported that he told Nurse
Kotzur that he did not want to take care of Mrs. Rivera. Moreover,
although the wording is somewhat awkward, the letter also seems to
indicate that Petitioner told Nurse Kotzur that Mrs. Rivera should be
transferred to John Sealy Hospital. (Even if Petitioner told Nurse
Kotzur to "prepare for transfer" rather than that Mrs. Rivera "should
be
transferred," Nurse Kotzur clearly did not understand that he intended
her merely to look into the availability of an ambulance since it is
undisputed that she entered orders to prepare the patient for transfer
in Mrs. Rivera's medical record. See FFCL #33.) We see no reason to
disturb the ALJ's determination that Petitioner's initial description of
his response, which was corroborated by Nurse Kotzur's testimony, was
more credible than his testimony at the hearing.
Accordingly, we sustain FFCL #29.
FFCL #30: When Dr. Burditt told Nurse Kotzur that the patient should be
transferred, Nurse Kotzur asked if it was because of Mrs. Rivera's blood
pressure, to which Dr. Burditt responded: "yes." I.G. Ex 1/1.
Although Petitioner listed this as a finding to which he took exception,
he merely asserted with respect to this finding that "[h]is concerns
about the fetus in light of the blood pressure was his motivation . . .
" R Exc, p. 12. This assertion is not inconsistent with FFCL #30.
Accordingly, we sustain FFCL #30.
FFCL #101: Dr. Burditt did not re-examine Mrs. Rivera after his initial
examination of her at 4:50 p.m., although he was standing at the nurses'
station from 5:30 p.m. until 6:18 p.m. [Citations omitted.]
Petitioner did not dispute that he did not re-examine Mrs. Rivera.
However, he may have intended to challenge the finding that he was at
the nurses' station from 5:30 until 6:18 p.m. in asserting in the
"Statement of Facts" at the beginning of his exceptions that he was
"primarily involved" with Mrs. Ramirez (another patient) from 5:40
to
6:35 p.m. R Exc 6.
We conclude that the record clearly supports the ALJ's finding in this
respect. Although not cited by the ALJ, the record includes nurse's
notes on Mrs. Ramirez which contain an entry for 5:00 p.m. ("1700"
hours) indicating that Petitioner was at Mrs. Ramirez's bedside,
performed a vaginal examination, and then applied a fetal scalp
electrode. The next entry, for 5:15 ("1715" hours) states that a Dr.
Carter started an IV. There is no further mention of Petitioner in the
notes until the entry for 6:15 p.m. ("1815" hours) which states that
Petitioner was notified of Mrs. Ramirez's condition at 6:15 p.m. ("1815"
hours), and the entry for 6:18 p.m. ("1818" hours), which states that
Petitioner was at Mrs. Ramirez's bedside. R Ex E/21-23. Moreover,
Petitioner testified that he was at the nurses' station after he applied
the fetal scalp electrode. Tr 907-908.
Accordingly, we sustain FFCL #101.
FFCL #111: The I.G. did prove by a preponderance of the evidence that,
at the time of her departure, Mrs. Rivera was in labor and her delivery
was imminent.
Petitioner challenged the portion of this finding to the effect that
delivery was imminent, one of the statutory definitions of active labor.
Petitioner argued that this finding was contrary to the testimony of two
of the Inspector General's witnesses, Dr. Akin and Dr. Greene, at the
ALJ hearing that they could not state that delivery was imminent at the
time of Mrs. Rivera's departure from DeTar Hospital. In response to the
exception, the Inspector General stated that the ALJ's finding on this
definition of active labor was not necessary to a finding of whether
Mrs. Rivera was in active labor under the remaining alternative
definitions. I.G. Br, pp. 82-3; Tr of oral argument, p. 103.
The primary evidence cited in support of this finding was that "Mrs.
Rivera delivered approximately 30 minutes after she left DeTar
Hospital." ALJ Decision at 36. It is unclear whether in citing this
evidence, the ALJ was impermissibly relying on hindsight. The statute
requires judgments to be based on information available at the time of
transfer. The ALJ did not reject the Inspector General's witnesses'
testimony as lacking credibility on this point. Thus, we agree with
Petitioner that the preponderance of the evidence in the record
concerning Mrs. Rivera's condition at the time of the transfer would not
support this finding.
Accordingly, we reverse FFCL #111 since it is not supported by a
preponderance of the evidence in the record. Moreover, we agree with
the Inspector General that a finding on this issue is in any event
unnecessary in view of findings of active labor under the two remaining
alternative definitions.
FFCL #112: Dr. Burditt acted in reckless disregard of the truth or
falsity of the information given to him by the nurses at DeTar Hospital
and by not examining Mrs. Rivera before her departure from DeTar
Hospital, and thus "knowingly" violated Section 1867 of the Act.
Petitioner asserted that, contrary to this finding, he relied upon the
data concerning Mrs. Rivera given to him by the nurses in making his
decision to transfer. He admitted that he disregarded the feelings of
Nurse Kiening concerning the safety of the transfer, but argued that he
was not under any obligation to evaluate her feelings. The latter
argument is misdirected since the ALJ did not in fact conclude that
Petitioner disregarded the feelings, or opinions, of the nurses.
Moreover, even if Petitioner did not disregard the information actually
given to him by the nurses, Petitioner must be held to the knowledge he
failed to obtain through his reckless disregard or deliberate ignorance
of Mrs. Rivera's condition at the time of her departure. The record
demonstrates that Petitioner actually knew of Mrs. Rivera's
hypertension and her symptoms of labor based on his own and the nurses'
examinations. During Mrs. Rivera's lengthy wait to be transferred,
however, Petitioner failed to monitor her extremely high blood pressure
and failed to re-examine her to determine whether her labor had
progressed. This failure made it impossible for him to know whether her
labor had progressed since his prior examination. It also substantially
diminished his ability to properly assess the benefits and risks of the
transfer, since that assessment necessarily would be based on his
earlier and possibly outdated knowledge of the patient's condition.
Under the "knowing" requirement which the ALJ applied, (and which
Petitioner did not take exception to), Petitioner's knowledge included
actual knowledge as well as knowledge he recklessly disregarded or
deliberately ignored. Therefore, in order to clarify what apparently
was the intended meaning of FFCL #112, we modify it as follows:
Dr. Burditt's violation of section 1867 of the Act was "knowing"
in
light of his knowledge of Mrs. Rivera's condition obtained by his
own and the nurses' examinations and by his reckless disregard and
deliberate ignorance of possible developments in her condition
during the lengthy wait for her to be transferred.
Accordingly, we modify FFCL #112 as indicated above.
FFCL #113: Mrs. Rivera was in labor at a time when (a) her transfer
posed a threat to the health and safety of herself and her unborn child,
and (b) there was inadequate time to effect a safe transfer to another
hospital prior to delivery. 42 U.S.C. 1395dd(e)(2).
Petitioner argued that this finding was erroneous because there was no
evidence that Mrs. Rivera was "in labor" at the time of her departure
from DeTar Hospital. However, as discussed in response to the exception
to FFCL #10, the preponderance of evidence in the record demonstrates
that Mrs. Rivera was at least in early labor, the first phase of the
first stage of labor, at the time she departed DeTar Hospital. This is
supported in part by Petitioner's own statements to Nurse Herman.
Accordingly, we sustain FFCL #113.
FFCL #114: Dr. Burditt acted in reckless disregard of the threat to the
health and safety of Mrs. Rivera and her unborn child in ordering her
transfer to John Sealy Hospital, in violation of Section 1867. 42
U.S.C. 1395dd(e)(2).
Petitioner argued that this finding was not supported by the record
since Mrs. Rivera was not in active labor. However, as we discussed in
response to Petitioner's exception to FFCL #10, the preponderance of the
evidence in the record supports the conclusion that she was in active
labor within the meaning of section 1867(e)(2)(C), i.e., in labor at a
time at which a transfer may pose a threat to the health and safety of
the patient or the unborn child. Petitioner did not state any other
grounds for challenging this finding.
Accordingly, we sustain FFCL #114.
FFCL #115: Mrs. Rivera was in "active labor," within the meaning of
Section 1867 of the Act, at the time Dr. Burditt signed the
"Physician's Certificate Authorizing Transfer" and at the time of
her
transfer from DeTar Hospital. 42 U.S.C. 1395dd(e)(2).
Petitioner argued that this finding was inconsistent with FFCL #110,
which states that "[t]he I.G. did not prove by a preponderance of the
evidence that delivery was imminent at the time that Dr. Burditt signed
the 'Physician's Certificate Authorizing Transfer' of Mrs. Rivera."
However, as noted in our response to the exception to FFCL #111, a
finding that delivery was imminent is only one way of establishing that
a patient was in active labor within the meaning of section 1867(e)(2).
Here, the ALJ's finding that Mrs. Rivera was in active labor is
supported by the findings that two other statutory definitions of active
labor applied.
Accordingly, we sustain FFCL #115.
FFCL #117: The standard of care for the treatment of hypertensive
pregnant women is a national standard among board certified OB/GYNs. Tr
315.
Petitioner asserted that a wide divergence of opinion exists among
physicians with respect to the situations in which apresoline should be
used and the appropriate method of its administration. He argued that
there was therefore no national standard in the treatment of
hypertensive pregnant women.
In interpreting FFCL #117 to mean that there is a national standard of
care which requires the use of apresoline, Petitioner reads more into
the finding than is there. The finding is very general in nature. It
states that there is a national standard of care for treating
hypertensive pregnant women, but does not state what the appropriate
treatment is. Moreover, the finding does not indicate whether the same
treatment would be appropriate for all hypertensive pregnant women or
whether it would differ depending on whether the woman was at or close
to term or at an earlier stage in her pregnancy, and whether she was in
labor. 15/ Thus, there is no basis for Petitioner's objection.
We note, in any event, that the record contains persuasive evidence that
Mrs. Rivera's high blood pressure could have been treated with
apresoline, an antihypertensive drug. The three OB/GYNs testifying for
the Inspector General as well as the two OB/GYNs testifying for
Petitioner all stated that they would have used apresoline had they been
in Petitioner's place. Tr 284-285, 298, 673, 777; R Ex B/9. In
addition, Dr. Pigott, the family practitioner who testified for
Petitioner, admitted that she "may have given apresoline" in this
situation. Tr 656. Furthermore, the ALJ found that bed rest in a calm
environment for six to eight hours or delivery of the baby (when the
hypertension is due to preeclampsia) were also recognized treatments for
hypertension. FFCL #132. Nevertheless, despite the virtual unanimity
of the evidence that Petitioner did not provide appropriate treatment,
it is unnecessary to resolve this question since the statute precludes
transfer of a patient whose emergency medical condition is not
stabilized regardless of whether appropriate treatment was provided.
Accordingly, we sustain FFCL #117.
FFCL #122: Blood pressure is considered abnormally high when the
systolic is over 150 and the diastolic is over 90. [Citations omitted.]
By this standard, Mrs. Rivera's blood pressure was extremely high and
dangerous. [Citations omitted.]
Petitioner noted that, from the time Nurse Kiening started the magnesium
sulfate IV until Mrs. Rivera left DeTar Hospital, Mrs. Rivera's
diastolic blood pressure was below 110, the threshold level at which
apresoline should be administered if the protocol developed by Parkland
Hospital were used. However, FFCL #122 does not state that apresoline
should have been used here, but merely that Mrs. Rivera's blood pressure
was extremely high, a fact that Petitioner did not specifically dispute.
In any event, Mrs. Rivera's diastolic pressure had risen again to 110 by
the time the ambulance left DeTar Hospital.
Accordingly, we sustain FFCL #122.
FFCL #126: Mrs. Rivera's blood pressure was so high that it compromised
her body's ability to transport oxygen to her brain, heart, and fetus,
and her condition needed to be dealt with immediately. [Citations
omitted.]
Petitioner read this finding to mean that Mrs. Rivera experienced fetal
hypoxia (deficiency of oxygen to the fetus). He argued that, although
this was a possible consequence of her high blood pressure, there was no
evidence that this actually occurred. Tr of oral argument, p. 45.
Petitioner unnecessarily extends the scope of the ALJ's finding,
however. We read the word "compromised" to mean "threatened."
Thus,
the ALJ found that the threat -- not the actuality -- of fetal hypoxia
(as well as the consequences to Mrs. Rivera herself of oxygen
starvation) required that Mrs. Rivera's high blood pressure be dealt
with immediately.
Petitioner also excepted to this finding on the ground that he dealt
with Mrs. Rivera's high blood pressure by ordering the administration of
magnesium sulfate. The record demonstrates that the physician at John
Sealy Hospital requested that this drug (which is used to prevent
convulsions, a common complication of hypertension) be administered and
that a decline in blood pressure was only a possible side effect of the
drug which, if it occurred, would be transient in nature. 16/ Thus, no
recognized treatment for hypertension was provided, and that treatment
which was provided was not at Petitioner's initiative. In any event,
regardless of the treatment provided for a patient's emergency medical
condition, if the patient's condition is not stabilized, the transfer
may be prohibited. Thus, what is critical here is that Mrs. Rivera's
blood pressure, which remained at a dangerously high level, had not been
stabilized.
Accordingly, we sustain FFCL #126.
FFCL #129: From 4:00 p.m. to 6:50 p.m., Mrs. Rivera had the following
blood pressures: [blood pressure readings omitted]. Mrs. Rivera's
reading of 210/130 (at 5:00 p.m.) and 190/110 (6:50 p.m.) mean that her
condition was not stabilized either at the time Petitioner examined her
or at the point of her departure from DeTar Hospital. [Citations
omitted.]
Petitioner did not dispute that, at the time he examined Mrs. Rivera,
she had an emergency medical condition, severe hypertension, but
asserted that this condition was stabilized prior to her departure from
DeTar Hospital. The record does not support this assertion, however.
Section 1867(e)(4)(B) provides that an emergency medical condition is
stabilized if no material deterioration of the condition is likely,
within reasonable medical probability, to result from the transfer.
Mrs. Rivera's systolic blood pressure remained significantly above 160
from the time of her arrival at DeTar Hospital to the time of her
departure by ambulance. A systolic pressure above 160 is dangerously
high in the case of a pregnant woman. FFCL #122. Furthermore, although
between 5:30 p.m. and 6:00 p.m., Mrs. Rivera's diastolic pressure
dropped below 110 -- the threshold at which there was a risk of death or
serious impairment (Id.) -- her diastolic pressure had risen to 110 by
the time the ambulance left DeTar Hospital at approximately 6:50 p.m.
There was no reason for Petitioner to believe that Mrs. Rivera's blood
pressure would not remain dangerously elevated (or at least fluctuate in
and out of the danger zone) since Petitioner did not provide any
recognized treatment for high blood pressure. Thus, it was still
possible that any of the risks posed by her hypertension could have
materialized during the transfer, resulting in the deterioration of her
medical condition. Clearly, there was no basis here to conclude within
reasonable medical probability that no material deterioration of her
condition was likely during the transfer.
Petitioner pointed to the fact that at 7:00 p.m., Mrs. Rivera's blood
pressure was 150/100, below the level considered to pose a significant
risk to a pregnant woman. However, section 1867(c)(1)(A)(ii) provides
that the certification authorizing the transfer must be "based upon the
information available at the time," i.e., at or before the time of the
transfer. Thus, the subsequent drop in blood pressure is not relevant
to a determination whether the transfer was permissible. Moreover, one
lower blood pressure reading would not show that her condition had
stabilized, since her blood pressure had fluctuated prior to her
transfer.
Petitioner also argued that, even if Mrs. Rivera's blood pressure was
not reduced to a safe level prior to her transfer, the transfer was
justified since he took all appropriate measures to treat her. However,
regardless of whether Petitioner took all appropriate measures to treat
Mrs. Rivera (and there was practically unanimous evidence to the
contrary in the record), a condition is stabilized within the meaning of
section 1867 only when the treatment assures that no material
deterioration of the condition is likely during the transfer. Here,
Mrs. Rivera's blood pressure remained extremely high, with all of the
attendant risks of complications to mother and fetus enumerated by the
ALJ in FFCL #125. If any of these risks had materialized, Mrs. Rivera's
condition would have deteriorated materially. Moreover, the
deterioration would have been exacerbated by the fact that in an
ambulance (rather than at DeTar Hospital), Mrs. Rivera could not have
been treated by physicians with the proper equipment. Thus, Mrs.
Rivera's condition was not stabilized within the meaning of the statute.
Accordingly, we sustain FFCL #129.
FFCL #138: At the time of Mrs. Rivera's transfer, Dr. Burditt did not
have reasonable medical probability to conclude that "no material
deterioration of her condition" was likely to result from her transfer
to another hospital, within the meaning of Section 1867. 42 U.S.C.
1395dd(e)(4)(A).
Petitioner asserted that the ALJ erred in relying on the expert
testimony of Drs. Aiken, Crosby, and Greene in making this finding
because a proper predicate was not laid for their testimony. These
witnesses were asked whether Mrs. Rivera had "received such medical
treatment of her hypertension to assure, within reasonable medical
probability, that she was unlikely to suffer any material deterioration
of her condition as a result of her transfer to John Sealy Hospital."
Each witness responded that Mrs. Rivera's emergency medical condition
had not been stabilized sufficiently to assure, "within reasonable
medical probability," that no material deterioration of her condition
was likely to result from the transfer. Petitioner argued that the
question to the witnesses should have been predicated as follows:
"Doctor, give us your opinion based on reasonable medical probability .
. . ." Tr of oral argument, p. 55. In Petitioner's view, absent this
predicate, the experts' testimony was not competent because it
speculated as to possibilities rather than addressing reasonable medical
probabilities.
The Inspector General took the position that the questions need not have
been predicated in the manner suggested by Petitioner. He pointed out
that the definition of the term "stabilized," which was articulated
here
in both the question and the witnesses' response, referred to
"reasonable medical probability," and that it would have been redundant
and confusing if the question had been prefaced by the phrase "based on
reasonable medical probability."
We agree with the Inspector General that the experts' testimony was
based on reasonable medical probabilities despite the lack of a
predicate in the questioning invoking that phrase. The probative force
of a witness's testimony does not depend on the use of any particular
term or phrase, but is determined by the substance of the witness's
testimony. See Leckbee v. Continental Airlines, Inc., 410 F.2d 1191
(5th Cir. 1969), citing Insurance Co. of North America v. Myers, 411
S.W.2d 710 (Tex. 1966). Here, it can hardly be argued that the
witnesses' testimony was speculative where each response referred
specifically to "reasonable medical probability."
Since we find no basis for Petitioner's objection to the competency of
the witnesses' testimony, we need not address the Inspector General's
contention that Petitioner's objection was untimely.
Accordingly, we sustain FFCL #138.
FFCL #90: Mrs. Rivera was "transferred" within the meaning of Section
1867 of the Act, but her transfer was not an "appropriate transfer"
within the meaning of Section 1867 of the Act. 42 U.S.C. 1395dd(e)(5)
and (c)(2).
FFCL #94: Dr. Burditt knowingly transferred Mrs. Rivera without
qualified personnel or transportation equipment in violation of Section
1867. 42 U.S.C. 1395dd.
Under section 1867, a transfer is permitted only if the physician, in
addition to determining that the benefits of the transfer outweigh the
risks, provides for an "appropriate transfer" as defined in section
1867(c)(2). At issue here is the requirement in that section that the
transfer be "effected through qualified personnel and transportation
equipment, as required including the use of necessary and medically
appropriate life support measures during the transfer."
Petitioner argued that he reasonably relied on a vehicle licensing
requirement which should have assured that the ambulance was properly
equipped. However, the existence of the licensing requirement does not
relieve Petitioner of the responsibility imposed by section 1867 to
provide for an appropriate transfer. Even if the two requirements
served some of the same purposes, they were nevertheless independent
requirements which may be separately enforced.
Petitioner also argued that the transfer was effected with qualified
personnel since the nurse accompanying Mrs. Rivera was an experienced
R.N. and there was no evidence that the E.M.S. technicians were
unqualified. However, the determination of what constituted "qualified"
personnel (as well as equipment) depends on what the likely risks of the
transfer were. Where the risks outweighed the benefits, it is unlikely
that any personnel or equipment can make the transfer an appropriate
one.
In this case, there were numerous risks, including fetal distress
requiring a cesarean section. Since a cesarean section could not be
performed by Nurse Nichols or the E.M.S. attendants (FFCL #93), they
were not "qualified" personnel. (Indeed, several witnesses at the
ALJ
hearing indicated that not even a physician could safely perform a
cesarean section in an ambulance. IG Ex 7/21; IG Ex 10/31; and IG Ex
12/33.) Even if there were no risk to the fetus, moreover, Mrs. Rivera
herself was at risk of serious complications of hypertension such as
heart attack or stroke. Neither Nurse Nichols, an obstetrical nurse,
nor the E.M.S. technicians were qualified to handle such emergencies for
the lengthy period of time involved in the trip from DeTar Hospital to
John Sealy Hospital. Even Petitioner's witness, Dr. Burross, testified
that it would have been desirable for Petitioner to accompany Mrs.
Rivera in the ambulance. Tr 695.
Petitioner also disputed the ALJ's statement that, "[a]t the very least,
Petitioner should have ensured that the ambulance was equipped with a
fetal heart monitor, the drug 'pitocin' to stop postpartum hemorrhaging,
and a blanket to wrap the newborn," (ALJ Decision at 38), arguing that
these items did not constitute life support measures within the meaning
of section 1867(C)(2). Even if these items were not life support
measures, however, they may still have been "qualified equipment"
required by this section, since it provides that qualified equipment
includes, rather than consists solely of, life support measures. Thus,
Petitioner's argument is irrelevant.
Accordingly, we sustain FFCLs #90 and #94.
FFCL #127: Mrs. Rivera had an "emergency medical condition"
(hypertension) which manifested itself by acute symptoms of sufficient
severity such that the absence of immediate medical attention could
reasonably be expected to result in placing her health in serious
jeopardy, serious impairment to her bodily functions and serious
dysfunction of certain bodily organs and parts, as defined by Section
1867(e)(1). 42 U.S.C. 1395dd(e)(1).
Petitioner argued that he could not have determined whether Mrs.
Rivera's hypertension was "acute," or whether she had instead been
hypertensive throughout her pregnancy, since there were no prior medical
records for her. Petitioner asserted that Mrs. Rivera's hypertension
was therefore not an "acute symptom" within the meaning of section
1867(e)(1), which defines an emergency medical condition as a medical
condition which is manifested by "acute symptoms of sufficient severity.
. . ."
The record supports Petitioner's position that he had no way of knowing
if Mrs. Rivera's hypertension was chronic or acute, where "acute"
means
"having a sudden onset, sharp rise, and short course." However, in
the
context of the statute's reference to "sufficient severity" and the
statutory purpose, the word "acute" means "characterized by sharpness
or
severity," rather than the alternative definition on which Petitioner's
argument relied. See Webster's Ninth New Collegiate Dictionary, p. 54
(1986). Whether or not Mrs. Rivera had chronic hypertension, her blood
pressure reading at all times prior to her departure from DeTar Hospital
was unusually high. This clearly constituted an "acute symptom" of
hypertension.
Accordingly, we sustain FFCL #127.
FFCL #137: Mrs. Rivera's emergency medical condition was not
"stabilized" within the meaning of Section 1867 of the Act. 42 U.S.C.
1395dd(e)(4)(B).
This finding is essentially the same as FFCL #129, which we previously
concluded should be sustained. Since the basis for Petitioner's
exceptions to the two FFCLs is the same, FFCL #137 as well as FFCL #129
should be sustained.
Accordingly, we sustain FFCL #137.
FFCL #139: Dr. Burditt knew when he ordered Mrs. Rivera's transfer and
also at the time of her transfer that she had an "emergency medical
condition" as defined by Section 1867(e)(1), and that her condition had
not been "treated" or "stabilized".
Although the basis for Petitioner's exception to this finding and to
FFCLs #129 and #137 was the same, this finding differs from FFCL #129
and #137 in that it adds the element of knowledge, requiring that
Petitioner have actual knowledge, or act in reckless disregard or
deliberate ignorance, of information about the patient's condition and
other circumstances of the transfer material to determining whether Mrs.
Rivera's condition was stabilized. (See discussion in response to the
exception to FFCL #17.) Here, as discussed in response to the exception
to FFCL #129, Petitioner acknowledged that Mrs. Rivera had an emergency
medical condition when he examined her and arranged for her transfer.
He can be charged with this knowledge through the time of her transfer
since he had no basis for assuming that her blood pressure went down to
a safe level. Moreover, based on Petitioner's knowledge of Mrs.
Rivera's condition, he clearly would have been unable to conclude that,
as a matter of reasonable medical probability, no material deterioration
of the condition was likely during the transfer. FFCLs #137, #138 and
#139. As discussed in response to the exception to FFCL #129, the
possibility of numerous complications leading to a material
deterioration could have resulted from Mrs. Rivera's untreated and
life-threatening hypertension. These complications could have been
greatly exacerbated by the lack of hospital care during the transfer.
Petitioner unquestionably was aware of the potential complications and
did not argue otherwise. His primary argument that he treated her
condition to the extent of his training and experience is simply not
responsive to the statutory test, as we discussed with respect to FFCLs
#117 and #129. Thus, Petitioner knew, through actual knowledge,
reckless disregard or deliberate ignorance, that Mrs. Rivera's emergency
medical condition was not "stabilized" within the meaning of the
statute.
Accordingly, we sustain FFCL #139.
FFCL #83: The "Guidelines for Perinatal Care" indicate that a heart
rate monitor (or fetal monitor) is essential equipment for the neonate.
A neonate is a newborn infant up to six weeks of age. [Citations
omitted.]
FFCL #85: With hypertension as severe as Mrs. Rivera's, there was a
possibility of fetal distress requiring the use of a fetal heart
monitor. [Citations omitted.]
FFCL #86: Without an external fetal monitor, a nurse could not detect
partial placental abruption or fetal hypoxia. [Citations omitted.]
Petitioner objected to these findings on the ground that fetal heart
tones, and thus fetal distress, could be assessed with a hand-held
doppler instead of an electronic fetal heart monitor. Petitioner stated
in addition that "[t]here was no showing by any of the I.G. witnesses
that the electronic fetal heart monitor would be of value in a moving
ambulance." R Exc 27.
We conclude that FFCLs #83, #85 and #86 are supported by the record.
Since there was unqualified testimony that a fetal heart monitor was
necessary to detect fetal distress in this case, there was no need for a
specific showing that it could be used in a moving ambulance. Moreover,
although the record contains evidence that Nurse Nichols used a
hand-held doppler (at I.G. Ex 3/2), there is simply no evidence in the
record that a hand- held doppler is just as efficacious in all instances
as a fetal monitor. 17/ In any event, even if a hand-held doppler could
properly have been substituted, it is clear that the transfer was not an
appropriate one because of the absence of a physician as well as other
qualified equipment.
Accordingly, we sustain FFCLs #83, #85 and #86.
FFCL #87: DeTar Hospital's transfer guidelines provide that it is the
responsibility of the transferring physician to determine and order the
utilization of appropriate personnel and equipment for transfer, and to
determine and order life support measures necessary to stabilize the
patient prior to transfer, and to sustain the patient during transfer.
Dr. Burditt violated the hospital's guidelines as well as Section 1867.
[Citation omitted.]
Petitioner took exception to FFCL #87 on the ground that there are
minimum standards for licensing emergency medical services vehicles
which specify the equipment which must be carried. He argued that he
had no duty to question these standards or to monitor compliance with
them. We previously stated in response to the exception to FFCL #90
that the existence of such minimum standards did not relieve Petitioner
of the responsibility imposed by section 1867 to provide for an
appropriate transfer. In any event, Petitioner did not deny that the
hospital guidelines, like section 1867, require the transferring
physician to assure that there are appropriate personnel and equipment
for a transfer, nor did he deny that he failed to do so.
Accordingly, we sustain FFCL #87.
FFCL #64: The transfer certificate signed by Dr. Burditt at
approximately 5:00 p.m. states that he determined that "the medical
benefits reasonably expected from the provision of appropriate medical
treatment at another medical facility outweigh the increased risks to
the patient's medical condition from effecting a transfer." Stip B19.
However, he did not fill in the portion of the certificate which
required him to list the benefits and risks. J Ex 1/13.
Petitioner took exception to FFCL #64 on the ground that section 1867
does not require that the physician's certification authorizing transfer
be separate from the medical record or that the certification list the
benefits and risks of transfer. Section 1867(c)(1)(A)(ii) provides in
pertinent part that the hospital may not transfer the patient unless --
a physician. . . has signed a certification that. . . the medical
benefits reasonably expected from the provision of appropriate
medical treatment at another medical facility outweigh the
increased risks to the individual's medical condition from
effecting the transfer . . . .
Contrary to Petitioner's suggestion, however, FFCL #64 does not
interpret the statute as requiring that the transfer certificate list
the benefits and risks of transfer. Instead, the ALJ simply found that
the portion of DeTar Hospital's certificate in which the physician is
to specify the basis for his conclusion that the benefits outweigh the
risks was not filled out by Petitioner. The record clearly supports
this finding. (We need not address Petitioner's argument that a
separate certificate was not required; since Petitioner signed a
separate certificate, this issue is not raised by the facts of the
case.)
Accordingly, we sustain FFCL #64.
FFCL #65: One of the risks of transferring Mrs. Rivera was that she
might deliver before reaching John Sealy Hospital. [Citations omitted.]
Petitioner argued that since Mrs. Rivera was not in active labor when
she left DeTar Hospital, it was not "within the realm of reasonable
medical probability" that she would deliver en route to John Sealy
Hospital. R Exc 33. (We assume that Petitioner used the term "active
labor" in the medical sense since not all of the statutory definitions
have a bearing on the likelihood of delivery.) However, as we noted in
discussing the exception to FFCL #10, the record establishes that, given
Mrs. Rivera's medical condition at the time of her departure, there was
a substantial likelihood that she would deliver three to four hours
after departure regardless of whether she was in active labor under the
medical definition, and therefore that she would deliver in the
ambulance given the distance to John Sealy Hospital.
Accordingly, we sustain FFCL #65.
FFCL #68: The risks of being born outside a hospital were much greater
than the benefits a Level III facility would provide. [Citations
omitted.]
Petitioner acknowledged that this finding was true for any obstetrical
patient who was in active labor. He argued, however, that it did not
apply to this case because Mrs. Rivera was not in active labor. As
discussed in response to Petitioner's exception to FFCL #65, however,
there was a substantial likelihood that Mrs. Rivera would deliver
before the ambulance reached John Sealy Hospital even if she was not in
active labor in a medical sense at the time of her departure. Thus,
FFCL #68 applies directly to the facts of this case. The specific risks
involved in Mrs. Rivera's transfer are discussed in response to the
exception to FFCL #10. These substantial risks were clearly outweighed
by the merely speculative benefits of treatment at John Sealy Hospital,
as discussed below in response to the exception to FFCL #69.
Accordingly, we sustain FFCL #68.
FFCL #70: Dr. Burditt acted in reckless disregard of the risks
associated with the transfer of Mrs. Rivera when he signed the
"Physician's Certificate Authorizing Transfer" in violation of Section
1867 of the Act. 42 U.S.C. 1395dd.
Petitioner argued that the statute did not authorize FFCL #70 because
"[n]othing in section 1867 speaks in terms of 'recklessly disregarding'
risks when making the required certification. . . ." R Exc 50.
However, under section 1867(d)(2), a physician is liable for a knowing
violation of section 1867. Petitioner did not here dispute the ALJ's
determination that the term "knowing" means actual knowledge, reckless
disregard, or deliberate ignorance. Thus, there is no basis for
Petitioner's contention that reckless disregard is not an element of a
knowing violation of the statute.
Nevertheless, FFCL #70 does not clearly indicate in what sense reckless
disregard was present in this case. Taken literally, FFCL #70 states
that the mere signing by Petitioner of the transfer certificate
constituted a violation of section 1867. 18/ Elsewhere in his decision,
however, the ALJ stated that Petitioner "was liable for acting with
reckless disregard . . . by not actually engaging in any meaningful
weighing of the risks and benefits of transfer." ALJ Decision, p. 31.
19/ Moreover, in FFCL #69, the ALJ found that "no reasonable OB/GYN
could have believed that the marginal benefits to be obtained at John
Sealy Hospital outweighed the risks associated with the transfer of Mrs.
Rivera." Accordingly, to clarify the meaning of this FFCL, we modify it
as follows:
Dr. Burditt signed the "Physician's Certificate Authorizing
Transfer" certifying that the risks of the transfer were outweighed
by the benefits without actually engaging in any meaningful
weighing of the risks and benefits and under circumstances where no
reasonable OB/GYN would have certified. 42 U.S.C. 1395dd.
Petitioner also argued that merely because a few physicians would not
have transferred Mrs. Rivera does not mean that Petitioner's decision to
transfer her was made in reckless disregard of the risks of transfer.
This issue is discussed in response to Petitioner's exception to FFCL
#69. We concluded there that the physicians' testimony showed that
there was no basis for a reasonable OB/GYN to conclude that the risks
would not outweigh the benefits, and not merely that they personally
would not have transferred Mrs. Rivera.
Accordingly, we modify FFCL #70 as indicated above.
FFCL #56: During their conversation, Nurse Herman stated to Dr. Burditt
that there were certain standards to which the hospital needed to
adhere. She showed him a copy of the hospital's guidelines that related
to the COBRA LAW, but he declined to read the guidelines. [Citations
omitted.]
Petitioner excepted to FFCL #56 on the ground that he read the
guidelines implementing section 1867 (part of the Consolidated Omnibus
Budget Reconciliation Act (COBRA) of 1985), and made a determination
that they did not apply to him. Petitioner also testified to this
effect at the hearing. The ALJ nevertheless was convinced by the
contrary testimony of Nurse Kiening that Petitioner glanced at, but did
not read, the guidelines. Tr 129-130. Petitioner provided no grounds
for discrediting Nurse Kiening's testimony, and we defer to the ALJ's
determination on the relative credibility of the witnesses.
Accordingly, we sustain FFCL #56.
FFCL #149: It is an aggravating circumstance that Dr. Burditt did not
examine Mrs. Rivera after his initial examination.
Petitioner took exception to FFCL #149 on the ground that 42 C.F.R. Part
1003, which the ALJ ruled applied in this case, did not contemplate or
authorize this as an aggravating circumstance. (Petitioner made the
same argument with respect to FFCL #150, FFCL #151, and FFCL #152 as
well.) We disagree. While many of the guidelines for determining the
amount of a civil money penalty in Part 1003 are not applicable where
there is a violation of section 1867, section 1003.106 specifies that
"circumstances of an aggravating or mitigating nature should be taken
into account if, in the interests of justice, they require either a
reduction of the penalty . . . or an increase. . . ." This language is
broad enough to authorize an increase in the penalty based on
circumstances not specified in the section where the ALJ determines it
is "in the interests of justice."
Petitioner also disputed FFCL #149 on the ground that "the record
clearly established that Mrs. Rivera received the medications that
Petitioner ordered for her, and that a competent obstetrical nurse
delivered her baby." R Exc 38. However, these facts were not a
substitute for a re- examination by Petitioner. As noted earlier, such
a re- examination might have shown that Mrs. Rivera's labor had
progressed far enough to change Petitioner's decision to transfer her.
Thus, Petitioner's failure to take this opportunity to re-evaluate his
earlier decision to transfer Mrs. Rivera, especially where Mrs. Rivera's
condition could have changed during the wait for the transfer, makes his
violation more serious than if events had proceeded more quickly and he
had had no opportunity to change his decision.
Accordingly, we sustain FFCL #149.
FFCL #150: It is an aggravating circumstance that Dr. Burditt did not
read the copy of the law which was given to him by Nurse Herman.
Petitioner asserted that he read enough of the document in question --
"Patient Transfer Guidelines" published by the hospital to implement
section 1867 -- to determine that it was not applicable to him. As
discussed above, we sustain FFCL #56, a finding that Petitioner totally
refused to read the guidelines shown to him by Nurse Herman. That
Petitioner was not concerned with whether he might be on the verge of
violating either hospital policy or federal law is clearly an
aggravating circumstance.
Petitioner also argued that the fact that the guidelines might have been
read to indicate that section 1867 was inapplicable to Petitioner
constituted a mitigating circumstance. We disagree. Since Petitioner
did not read the guidelines, he was not misled by them. Petitioner also
argued that it was a mitigating circumstance that the Department of
Health and Human Services (HHS) "did not attempt to educate physicians
and hospitals about . . . [section 1867] until December the 12th, 1986,
seven days after the Rosa Rivera case . . . ." Tr of oral argument, p.
66. However, Petitioner did not indicate how HHS's failure to publicize
section 1867 affected this case. Specifically, Petitioner never
asserted that he would have acted differently had he been familiar with
the requirements of the statute. Since there is no evidence of a
relationship between HHS's alleged failings and the events of this case,
this factor cannot properly be considered in mitigation of the penalty.
Accordingly, we sustain FFCL #150.
FFCL #151: It is an aggravating circumstance that Dr. Burditt did not
attempt to consult another doctor.
The ALJ found that there were two other physicians present at DeTar
Hospital, in addition to one on call, whom Petitioner could have
consulted. If Petitioner had consulted another doctor, as was
appropriate in a serious case like this, he might have decided not to
transfer Mrs. Rivera. Since Petitioner's failure to consult contributed
to the violation of section 1867, it was properly found to be an
aggravating circumstance.
Petitioner argued that he in fact consulted Dr. Downing, the senior
resident at John Sealy Hospital who consented to Mrs. Rivera's transfer.
However, Petitioner testified at the ALJ hearing that he did not look to
Dr. Downing for advice on how to handle Mrs. Rivera but merely "as the
receiving hospital's representative to take the patient in transfer."
Tr 900. 20/
Petitioner also argued that there were no physicians on the staff of
DeTar Hospital with whom he could have consulted. He asserted that he
could not have consulted with Dr. Whitehouse, the OB/GYN who was at
DeTar Hospital when Petitioner arrived to examine Mrs. Rivera, because
he had a bad working relationship with him, and that protocol prevented
him from consulting with Dr. Pigott on an OB/GYN case since she was a
family practitioner rather than an OB/GYN. In view of the seriousness
of Mrs. Rivera's condition, however, such personal considerations do
not excuse Petitioner's failure to request advice of one of these other
physicians. Furthermore, if there were no physicians from DeTar
Hospital available for consultation, it would have been appropriate for
Petitioner to discuss Mrs. Rivera's case over the telephone with a
physician not associated with DeTar Hospital. Indeed, Dr. Pigott, a
witness for Petitioner, testified that if she had been responsible for
Mrs. Rivera's care before the baby was born, she would have sought
advice from physicians outside of DeTar Hospital if no one there was
available for consultation. Tr 655. (In view of the foregoing, we do
not consider whether the ALJ was correct that Petitioner could have
consulted a third doctor, Dr. Ormazable, a neonatologist who delivered
the baby of Petitioner's other patient on the evening in question.)
Accordingly, we sustain FFCL #151.
FFCL #152. It is an aggravating circumstance that Dr. Burditt did not
treat Mrs. Rivera when she returned to DeTar Hospital after giving birth
in an ambulance.
The ALJ found, and Petitioner did not dispute, that when Nurse Nichols
telephoned him to report the birth of Mrs. Rivera's son and request
further orders, Petitioner told Nurse Nichols to proceed to Galveston
with Mrs. Rivera. FFCL #97. Upon learning that the ambulance was
instead returning with Mrs. Rivera to DeTar Hospital, Petitioner refused
to see her and told the house supervisor to dismiss her if she was
stable and not bleeding excessively. FFCL #98. If Petitioner's order
to dismiss Mrs. Rivera had been followed, she could have died or
suffered serious bodily impairment since her blood pressure was still
elevated when she returned to DeTar Hospital. See Tr 632-633. The ALJ
correctly concluded that Petitioner's willingness to jeopardize Mrs.
Rivera's health in this manner constituted an aggravating circumstance.
Petitioner argued that he did not treat Mrs. Rivera upon her return to
DeTar Hospital because he considered himself discharged from the case
when Mrs. Rivera did not follow his orders to proceed to John Sealy
Hospital following the birth. Petitioner did not explain why, if he
believed himself discharged, he did not notify the nursing staff so that
the case could be turned over to another physician. Instead, he gave
orders that Mrs. Rivera be dismissed from DeTar Hospital, indicating
that he still considered himself her physician.
Accordingly, we sustain FFCL #152.
FFCL #62. Dr. Burditt told Nurse Herman that until DeTar Hospital paid
his malpractice insurance, he would pick and choose the patients he
wanted to treat. [Citations omitted.]
Petitioner did not deny that he made the statement referred to in FFCL
#62. However, he objected to a comment by the ALJ to the effect that
Petitioner let his desire "to avoid a potential malpractice lawsuit from
a high-risk patient . . . interfere with his exercise of sound
professional medical judgment." ALJ Decision, p. 39. Petitioner
asserted that his statement to Nurse Herman did not indicate that he
transferred Mrs. Rivera because of the likelihood of malpractice suits
arising from the treatment of high-risk patients. Rather, he asserted,
he felt that good medical practice required him to transfer her, and
that he might be subject to a malpractice action if he did not do so.
We are not persuaded that the ALJ misinterpreted Petitioner's statement.
Far from supporting Petitioner's assertion that he felt that good
medical practice required the transfer, the record shows that
Petitioner's decision to transfer Mrs. Rivera was made in reckless
disregard of the risks to Mrs. Rivera's health. Thus, it was reasonable
for the ALJ to infer from Petitioner's statement that he transferred
Mrs. Rivera because he did not want to treat a high-risk patient, not
because he determined, based on her particular circumstances, that
transfer was appropriate.
Petitioner further argued that his actions in undertaking "the more
risky care and treatment of a significantly more seriously ill patient,
Sylvia Ramirez, at the same time as Rosa Rivera's transfer was being
arranged" showed that Mrs. Rivera's transfer was not motivated by fear
of a malpractice suit. R Exc 41. However, Petitioner himself
acknowledged that a transfer of Mrs. Ramirez was totally out of the
question since Mrs. Ramirez was bleeding heavily. See FFCL #75 and Tr
944. Thus, even if he feared a malpractice suit, Petitioner had no
choice but to treat Mrs. Ramirez. It does not follow, therefore, that
his decision to transfer Mrs. Rivera was made without regard to the
potential for a malpractice suit.
Accordingly, we sustain FFCL #62, as well as the ALJ's related
discussion. FFCL #97. While at Ganado Hospital, Nurse Nichols
telephoned Dr. Burditt to report the birth and to request further
orders. Dr. Burditt told Nurse Nichols to proceed to Galveston with
Mrs. Rivera. Mrs. Rivera requested that she be returned to DeTar
Hospital. [Citations omitted.]
Petitioner's exception to FFCL #97 cited Mrs. Rivera's testimony at the
ALJ hearing to the effect that she told Nurse Nichols that she just
wanted to go home, and that Nurse Nichols persuaded her to return to
DeTar Hospital. However, this testimony is not necessarily inconsistent
with a finding that Mrs. Rivera requested that she be returned to DeTar
Hospital, since Mrs. Rivera's ultimate decision was to return to DeTar
Hospital. Moreover, the portion of FFCL #97 in question here was taken
verbatim from the parties' Stipulation No. 23. (We note, however, that
there is a typographical error in this stipulation, which reads "Mr.
Rivera" rather than "Ms. Rivera.")
Accordingly, we sustain FFCL #97.
FFCL #69. Because of the distance from DeTar Hospital, no reasonable
OB/GYN could have believed that the marginal benefits to be obtained at
John Sealy Hospital outweighed the risks associated with the transfer of
Mrs. Rivera. [Citations omitted.]
Petitioner objected to FFCL #69 on the ground that there was no
explanation of the term "reasonable OB/GYN." He asserted that, even
though the Inspector General's witnesses were all Board-certified
OB/GYNs, they were unable to define this term.
There is no question that the statute contains a reasonableness standard
concerning the judgments a physician must make concerning a patient's
condition and the necessity of a transfer. Section 1867(c)(1)(A)(ii)
provides that a patient meeting certain criteria may not be transferred
unless a physician has signed a certification "based upon the reasonable
risks and benefits to the patient . . . ." (Emphasis added.) In
addition, the term "emergency medical condition" is defined in section
1867(e)(1) as "a medical condition manifesting itself by acute symptoms
of sufficient severity . . . such that the absence of immediate medical
attention could reasonably be expected to . . . " have certain adverse
results. (Emphasis added.) Finally, the term "to stabilize" is defined
in section 1867(e)(4)(A) as providing "such medical treatment . . . as
may be necessary to assure, within reasonable medical probability, that
no material deterioration . . . is likely to result from the transfer .
. . ." (Emphasis added.) This calls for the application of a
reasonableness standard to determine whether a patient had an emergency
medical condition which was not stabilized and whether the certification
was the certification required under the statute, i.e., one based on the
reasonable risks and benefits of the transfer. This is consistent,
moreover, with the requirement for a knowing violation of the statute,
which means that a physician must know (in the sense of actual
knowledge, reckless disregard, or deliberate ignorance) information
about the patient's condition and other circumstances of the transfer
material to determining whether the statutory test was met. While it is
appropriate to require knowledge of objective information, the
reasonableness of the judgments the physician made based on this
information can only be ascertained by looking at what a reasonable
physician in the same or similar specialty would have known and how he
or she would have evaluated the information.
Moreover, contrary to Petitioner's assertion, the Inspector General's
witnesses did testify as to their understanding of the term "reasonable
OB/GYN." Dr. Greene, for example, testified that the term referred to
"an obstetrician gynecologist who is board certified and demonstrates
rational judgment." Tr 248; see also testimony of Dr. Aiken at Tr 514,
and testimony of Dr. Crosby at Tr 377. In addition, as the Inspector
General pointed out in his brief, the law frequently holds people to the
standard of a "reasonable man," who, though mythical, is "a composite
picture that emerges from the myriad of concrete fact situations in
which juries and courts apply societal norms to resolve a legal dispute.
. . ." I.G.'s Brief in Opposition to Respondent's Exceptions, p. 52.
Thus, the ALJ properly relied on the testimony of physicians in the same
or similar specialty as Petitioner in determining whether Petitioner
knowingly violated section 1867. Petitioner admitted that there was a
risk that any of the complications of hypertension testified to by
physicians at the hearing might arise during Mrs. Rivera's transfer.
Tr 858. 21/ Petitioner qualified this admission only by arguing that
Mrs. Rivera was not in active labor in a medical sense when she left
DeTar Hospital, so that it was not likely that a vaginal delivery would
occur during the transfer. As discussed in response to the exception to
FFCL #10, however, even if Mrs. Rivera was not in active labor in the
medical sense at the time of her departure, it was reasonable to expect
that she could have delivered before the transfer was completed. Thus,
there is no dispute that there were immediate and grave risks to mother
and fetus arising from Mrs. Rivera's unstabilized condition and labor.
The Inspector General's witnesses all testified unequivocally that the
marginal benefits to be derived from care at John Sealy Hospital of a
possibly growth- retarded infant were greatly outweighed by the
increased risks to the mother and fetus -- already at risk because of
the mother's severe hypertension and the onset of labor -- of a 170-mile
trip during which no treatment would be available for any complications
due to hypertension or labor. I.G. Ex 7/35-36; I.G. 10/32; I.G.
12/35-36. The benefit which Petitioner asserted outweighed these risks
was that the baby, which Petitioner believed might be growth-retarded,
could receive care necessary for this condition in John Sealy Hospital's
Level III perinatal unit which was unavailable in DeTar Hospital's Level
II perinatal unit. However, testimony at the hearing established that a
six-pound baby (the weight of the fetus estimated by Petitioner) could
usually be cared for in a Level II facility whether or not the baby was
growth-retarded. See FFCL #60. 22/
Moreover, Petitioner's witnesses did not specifically couch their
testimony in terms of a risk/benefit analysis, and their support for
Petitioner was qualified. While Dr. Burross, Dr. Miller and Dr. Brendel
focused on the benefit of transferring the baby in utero to a Level III
perinatal unit, none of them specifically weighed this speculative
benefit against the very serious risks which Mrs. Rivera faced. Dr.
Burross and Dr. Miller stated that they would have treated Mrs. Rivera
with apresoline, which clearly could have altered the risks she faced.
Tr 605, 777. Thus, this is not a case where the risks and benefits are
sufficiently equally balanced that reasonable medical experts might
disagree about their relative weights; there is simply no basis in the
record for concluding that a reasonable OB/GYN would have found the
benefits of the transfer to outweigh the risks. 23/
While we uphold the text of FFCL #69 in full, there is an apparent
typographical error in the citations included in this finding.
Accordingly, we modify the citation in FFCL #69 to read "I.G. Ex
7/18-22; I.G. Ex 12/18-22; I.G. 10/17-20" instead of "I.G. Ex 18-22;
I.G. Ex 10/17-20."
Accordingly, we modify FFCL #69 as indicated above.
FFCL #45. A phone order was placed in the "physician's orders" of
Mrs.
Rivera's medical records at 4:30 p.m. to start an IV. Contrary to Dr.
Burditt's orders, Nurse Kiening started an IV on Mrs. Rivera at
approximately 4:40 p.m. on December 5, 1986. She stated that she
started the IV as a safety measure, since Mrs. Rivera's blood pressure
was so high, in case there were complications. [Citations omitted.]
In his exception to FFCL #45, Petitioner asserted that Nurse Kiening
started the IV pursuant to his order, given at 4:40 p.m., not contrary
to his order. However, Mrs. Rivera's medical records show that Nurse
Kiening started an IV at 4:40 pursuant to a 4:30 physician's order which
she entered. J Ex 1/4, 8. Petitioner is thus mistaken as to the time
of the order. Moreover, we conclude that the evidence supports the
ALJ's finding that Nurse Kiening started the IV contrary to Petitioner's
orders. The ALJ elsewhere found, and Petitioner did not dispute, that
the second time Nurse Kiening spoke to Petitioner by telephone, she
asked him if she could start an IV, and that Petitioner responded that
she could start an IV if Mrs. Rivera could be transported to John Sealy
Hospital by E.M.S., but that if E.M.S. was unavailable, Nurse Kiening
was not to start an IV. FFCL #44. Thus, Petitioner's order to start an
IV was conditional on the availability of E.M.S., although Nurse Kiening
did not indicate this in the medical record. By starting the IV before
she determined that E.M.S. was available, Nurse Kiening acted contrary
to Petitioner's order.
Accordingly, we sustain FFCL #45.
FFCL #46. Dr. Burditt arrived at the hospital at approximately 4:50
p.m. Upon arrival, Dr. Burditt requested that Nurse Kiening start the
transfer proceedings while he examined the patient. [Citations
omitted.]
Petitioner asserted that he arrived at the hospital at 4:30 p.m., not
4:50, and that he did not request that transfer proceedings be started
until after he examined Mrs. Rivera. However, Petitioner could not have
arrived at the hospital as early as 4:30, since the medical record shows
that he gave a telephone order to Nurse Kiening at that time. J Ex 1/4,
8. The telephone order was given from outside the hospital on a mobile
phone in Petitioner's car. The medical record also contains an entry
for 4:50 which states: "Dr. Burditt here to assess pt." J Ex 1/8.
There was thus sufficient evidence in the record for the ALJ to find
that Petitioner arrived at 4:50 in the absence of any evidence of the
specific time of his arrival, especially since the precise time of
Petitioner's arrival was not critical. In addition, Petitioner's
assertion regarding the timing of his request to start transfer
proceedings is directly contradicted by his December 8, 1986 letter to
the Nursing Administrator, in which Petitioner stated:
Upon arrival . . . I waited at the Nurses Station. Donna [Kiening]
emerged shortly from Labor Room #2 to inform me that she had
started an IV. I asked what she had learned regarding transfer
only to be informed that she hadn't had time to check yet! I again
asked her to begin the proceedings while I went to examine the
patient.
IG 1/2. This directly supports the ALJ's finding that the request for a
transfer was made before Petitioner examined Mrs. Rivera.
Accordingly, we sustain FFCL #46.
FFCL #12. Dr. Burditt was the "responsible physician," who was
designated to act on behalf of DeTar Hospital with respect to the
examination, treatment, and care of Mrs. Rivera.
FFCL #16. The I.G. proved by a preponderance of the evidence that on
December 5, 1986, Dr. Burditt was a "responsible physician" as defined
by Section 1867 of the Act. [Citation omitted.]
Section 1867 of the Act provides that a civil monetary penalty may be
imposed against a "responsible physician." That term is in turn defined
as a physician who --
(A) is employed by, or under contract with, the participating
hospital, and (B) acting as such an employee or under such a
contract, has professional responsibility for the provision of
examinations or treatments for the individual, or transfers of the
individual, with respect to which the violation occurred.
There is no dispute that on December 5, 1986, DeTar Hospital was a
Medicare participating hospital within the meaning of section 1867.
However, Petitioner took the position that section 1867 did not apply to
him because he was not "employed by" or "under contract with"
DeTar
Hospital. The ALJ found that, as a matter of federal law, if a staff
physician acts to fulfill a hospital's duty to provide emergency
services to the community as a condition of maintaining the physician's
privileges at a hospital, the physician is "under contract with" that
hospital for the purposes of section 1867. Noting that Petitioner had
not disputed the Inspector General's allegations that Petitioner agreed
to treat unaligned obstetrical patients who came to DeTar Hospital's
emergency room, and that the hospital agreed to allow Petitioner to
admit his own patients and to use the hospital's personnel and resources
to treat them, the ALJ concluded that Petitioner was a responsible
physician.
Petitioner's exceptions to this conclusion are based in part on
arguments already considered by the ALJ in his December 22, 1988 ruling
and reaffirmed in his decision. Specifically, Petitioner argued that,
under Texas law, he could not be considered "employed by" DeTar Hospital
since Texas law prohibits the corporate practice of medicine, nor could
he be considered "under contract with" DeTar Hospital since Texas
law
does not treat medical staff bylaws as a contract. However, the ALJ did
not find that Petitioner was employed by DeTar Hospital, but rather that
he was under contract with the hospital. The ALJ further found that the
interpretation of the term "under contract with" was not controlled
by
state law but must instead be interpreted in light of the underlying
purpose of section 1867. He concluded that it would defeat the purpose
of section 1867 -- to prevent the inappropriate transfer of poor and
disadvantaged persons from hospital emergency departments -- if section
1867 were found not to apply in this situation.
We conclude that the interpretation of section 1867 is not dependent on
Texas law, and that it is appropriate to interpret "under contract"
by
applying its plain meaning derived from general principles of contract
law and by considering the underlying purpose of the statute as the ALJ
did. Since Texas courts would also apply the same general principles of
contract law, however, we would reach the same result if Texas law
governed.
The issue of what law controls the interpretation of a federal statute
has been presented to the U.S. Supreme Court in numerous cases. For
over 40 years, the Court has consistently held that "[i]n the absence of
a plain indication to the contrary, . . . it is to be assumed when
Congress enacts a statute that it does not intend to make its
application dependent on state law." Dickerson v. New Banner Institute,
Inc., 460 U.S. 103, 119 (1983) (quoting other decisions); see also NLRB
v. Natural Gas Utility District, 402 U.S. 600 (1971); NLRB v. Hearst
Publications, 322 U.S. 111 (1944); and Jerome v. United States, 318 U.S.
101 (1943). The rationale for this holding is that federal legislation
is to be applied nationwide and that at times the federal program would
be impaired if state law were to control. Nevertheless, state law would
control if the statute's terms, purposes or legislative history clearly
indicated that this was appropriate. NLRB v. Hearst, supra. Here,
nothing in the terms of section 1867 indicates that its scope was
intended to be dependent on state law. Moreover, it would clearly
defeat the purpose of the statute to afford certain protections to
patients using Medicare hospitals if those protections existed only
where the patient was treated by physicians having a particular status
under state law. The legislative history of section 1867 also contains
no indication that Congress intended that state law control. 24/
Petitioner also relied on the federal Medicare regulations at 42 C.F.R.
482.12(a)(1) (1986) in support of his argument that state law governed
here. The provision in question states that a Medicare certified
hospital must "determine in accordance with state law, which categories
of practitioners are eligible for appointment to the medical staff."
State law governs in this situation because a physician cannot practice
medicine without a state license. It does not follow from this that
state law should govern the nature of the relationship created once a
physician is determined eligible for a hospital staff appointment.
In order to determine how "under contract" should be interpreted
as a
matter of federal law, we look to its plain meaning derived from general
principles of contract law. The general principles, which are now well-
established, are distilled in the second Restatement of Contracts, which
defines a contract as "a promise or set of promises for the breach of
which the law gives a remedy, or the performance of which the law in
some way recognizes as a duty." RESTATEMENT (SECOND) OF CONTRACTS
section 1 (1981); see also 1 Williston On Contracts section 1 (3d ed.
1957). 25/
The contract found by the ALJ consisted of a set of promises.
Petitioner's application for appointment to the medical staff of the
hospital, dated May 30, 1974, stated in pertinent part:
In making this application for appointment to the medical staff of
this hospital, I acknowledge that I have received and read the
by-laws of the hospital and the by-laws, rules and regulations of
the medical staff of this hospital, . . . and I agree to be bound
by the terms thereof if I am granted membership or clinical
privileges, and I further agree to abide by such hospital and staff
rules and regulations as may be from time to time enacted.
J Ex 6, 22. Petitioner was appointed to the active medical staff by the
hospital's Governing Body on August 20, 1974. J Ex 6, 23. He was Chief
of DeTar Hospital's OB/GYN Department, and as such, continued to be a
member of the active medical staff, at the time of Mrs. Rivera's
transfer. Stip No. 4. The prerogatives of a physician on the active
medical staff set forth in the amended medical staff bylaws approved by
the hospital's Board of Trustees on June 17, 1986 (prior to the events
in question here) included the ability to admit patients to the hospital
without limitation, to exercise clinical privileges, and to call in
non-staff consultants. J Ex 8, 18. The bylaws also spelled out the
duties and obligations of active staff membership, including a
requirement that each member of the active medical staff "actively
participate . . . in the emergency services program . . . ." J Ex 8,
19. The amended medical staff rules and regulations (also approved by
the Board of Trustees on June 17, 1986) further required that the
medical staff "adopt a method of providing medical coverage in the
emergency services area," such coverage to include an "on-call
physician" 24 hours daily, Monday through Friday, excluding holidays. J
Ex 7, 13. Thus, Petitioner made a promise to the hospital to provide
emergency services in exchange for the ability to admit his own
patients. The hospital in turn made a promise (through its Board of
Trustees) to allow Petitioner to admit his own patients in exchange for
the provision of emergency services.
The Restatement also requires that the law provide a remedy in the event
either party breaches his promise. Here, if Petitioner breached his
promise to provide emergency services, then the hospital could have
revoked his staff privileges. If the hospital breached its promise to
give Petitioner staff privileges, then Petitioner would no longer be
obligated to provide emergency services.
The Restatement further requires that in order to form a contract, there
must be mutual assent. RESTATEMENT (SECOND) OF CONTRACTS section 17(1).
Here, Petitioner's assent was manifested by his signature on the
application for appointment to the medical staff. The hospital's assent
was manifested by its decision to appoint Petitioner to the medical
staff.
The final requirement for the formation of a contract is consideration.
RESTATEMENT (SECOND) OF CONTRACTS section 17(1). The Restatement
further provides that a promise which is sought in exchange for a return
promise constitutes sufficient consideration. RESTATEMENT (SECOND) OF
CONTRACTS sections 71 and 75. Each of the promises in question here was
expressly contingent upon a return promise.
Since all of the requirements necessary to find a contract under general
principles of contract law were satisfied here, Petitioner was under
contract with DeTar Hospital within the meaning of section 1867. These
general principles of contract law also apply in Texas. See Foster v.
Wagner, 343 S.W.2d 914 (Tex. Civ. App. 1961) (definition of contract);
Sweeney V. Cross, 476 S.W.2d 464 (Tex. Civ. App. 1972) (requirement for
mutual assent); Fourticq v. Fireman's Fund Ins. Co., 679 S.W.2d 562
(Tex. App. S. Dist. 1984) (requirement for consideration); and
Cottingham v. Harrison, 89 S.W.2d 255 (Tex. Civ. App. 1938) (mutual
promises sufficient consideration). Thus, even if the meaning of the
phrase "under contract with" were governed by state law, Petitioner
was
under contract with DeTar Hospital under Texas law. 26/
This conclusion is not undermined by the Texas cases cited by
Petitioner. In Weary v. Baylor University Hospital, 360 S.W.2d 895
(Tex. Civ. App. 1962), a suit against the hospital for breach of
contract, Dr. Weary argued that the medical staff bylaws, which had been
approved by the hospital's governing board, constituted a contract
between him and the hospital. The bylaws provided for a hearing before
the medical board if the medical staff Credentials Committee failed to
recommend to the hospital's governing board that a physician be
reappointed. Dr. Weary alleged that he was denied such a hearing. The
court found that, under the bylaws, the medical staff could only
recommend and advise on reappointments, and that the governing board of
the hospital had final authority on reappointments. Accordingly, the
court concluded that there was no breach of contract when the governing
board failed to reappoint Dr. Weary without a hearing.
This does not constitute a holding that Dr. Weary did not have a
contractual relationship with the hospital, however. The court merely
held that the specific terms of the bylaws did not obligate the hospital
to assure that Dr. Weary was afforded a hearing by the medical board
before it decided whether or not to reappoint him. This does not mean
that, on other facts, there could be no written or implied contract
between a doctor and a hospital. Indeed, several courts have explicitly
recognized that whether staff bylaws constitute a binding contract
depends on what the bylaws say. See Terre Haute Regional Hospital, Inc.
v. El-Issa, 470 N.E.2d 1371 (Ind. App. 1 Dist. 1984); Munoz v. Flower
Hospital, 507 N.E.2d (Ohio App. 1985).
The two other cases cited by Petitioner also fail to support his
position because, like Weary, neither holds that the doctor had no
contractual relationship with the hospital. See Charter Medical Corp.
v. Miller, 605 S.W.2d 943 (Tex. Civ. App. 1980), holding that
podiatrists with hospital privileges were not entitled to due process
before the hospital board of directors amended the hospital bylaws to
restrict their privileges, since final governing authority was vested in
the board of directors, and Hodges v. Arlington Neuropsychiatric Center,
Inc., 628 S.W.2d 536 (Tex. Civ. App. 1982), holding that physicians had
no cause of action against a privately owned hospital for an arbitrary
and capricious termination of staff privileges, because the board of
directors had authority to set its own policy and rules with respect to
staff privileges.
Petitioner argued, however, that even if members of the medical staff
were under contract with DeTar Hospital, he was merely covering for
another doctor (Dr. Bridges) during the time in question, so that Dr.
Bridges rather than Petitioner was the "responsible physician." While
the record shows that Petitioner was in fact covering for another doctor
at the time he was called about Mrs. Rivera, Petitioner himself was
also on the on-call list. See FFCL #22 and citations therein, and Tr
821. Thus, in substituting for another doctor (usually a reciprocal
arrangement among members of a medical staff), Petitioner merely
deviated from the established schedule for emergency services. Since
Petitioner was still providing services which he was generally obligated
to provide by the medical staff bylaws and rules and regulations when he
treated Mrs. Rivera, Petitioner's argument has no merit.
Petitioner also disagreed with the ALJ's finding that the conclusion
that Petitioner was a "responsible physician" was reinforced by the
"fact that Congress recently amended section 1867 to clarify this
issue." ALJ Decision, p. 40. In fact, when the ALJ's decision was
issued, the amendment referred to had not been enacted into law. In
November 1989, however, section 1867 was amended to provide in pertinent
part as follows:
[A]ny physician who is responsible for the examination, treatment,
or transfer of an individual in a participating hospital, including
a physician on-call for the care of such an individual, and who
knowingly violates a requirement of this section, . . . is subject
to a civil money penalty . . . .
Pub. L. 101-239 (Omnibus Budget Reconciliation Act of 1989), section
6211(e).
There is no dispute that physicians like Petitioner are subject to the
requirements of section 1867 as amended. The ALJ found that the
amendment was intended to clarify section 1867 rather than to change it,
and that such physicians had thus always been covered by section 1867.
This finding is supported by the legislative history of the amendment.
27/ The House report on the bill which was ultimately enacted stated
that, "[t]he liability of physicians would be clarified to include
on-call physicians as well as staff physicians." H. Rep. 101- 247,
101st Cong., 1st Sess., 1989, p. 1034 (emphasis added). This statement
indicates that Congress did not intend to enlarge the scope of section
1867 with respect to the physicians who were potentially liable, but
merely to identify those physicians in clearer terms. Moreover, since
Petitioner was on the hospital's medical staff, he could arguably be
considered a staff physician as well as an on-call physician. Thus, the
statement can be read as indicating that Petitioner was already covered
by the provision before its amendment.
Accordingly, we sustain FFCLs #12 and #16.
FFCL #21. As a member of the staff, Dr. Burditt had agreed to provide
emergency medical care to unaligned patients on a rotating basis, and
was under contract to do so. [Citations omitted.]
Petitioner did not dispute that as a member of the staff, he had agreed
to provide emergency medical care to unaligned patients on a rotating
basis. As indicated in our discussion of Petitioner's exceptions to
FFCL #12 and #16, moreover, we conclude that Petitioner was under
contract to provide such care.
Accordingly, we sustain FFCL #21.
FFCL #13. The I.G. proved by a preponderance of the evidence that, on
December 5, 1986, DeTar Hospital knowingly violated requirements of
Section 1867 of the Social Security Act.
FFCL #14. DeTar Hospital has already been sanctioned for its violations
of requirements of section 1867.
Petitioner asserted that FFCLs #13 and #14 were not supported by the
record in the case, pointing out that DeTar Hospital entered into a
settlement agreement with the Inspector General with no admission of
liability. (The Inspector General stated, and Petitioner did not
dispute, that, as part of the settlement, DeTar Hospital paid a fine of
$5,000. I.G.'s Brief in Opposition to Respondent's Exceptions, p. 100.)
He argued further that the ALJ's willingness here "to find facts based
on evidence not in the record" indicated that the ALJ was biased, and
tainted the entire fact-finding in the case. R Exc 69. Petitioner did
not allege any other basis for challenging the integrity of the
proceedings before the ALJ.
We find that the record clearly supports FFCL #13. As a corporate
entity, a hospital can act only through individuals and can only know
facts vicariously through those individuals. Thus, one way a hospital
can knowingly violate a requirement of section 1867 is if a physician
(or other qualified medical personnel when a physician is not readily
available) to whom it has delegated the responsibility for examining and
treating and/or transferring individuals coming to the emergency
department knowingly violates it. Accordingly, whether DeTar Hospital
violated section 1867 in this instance is dependent on Petitioner's
actions. A violation by the hospital is effectively established at the
same time as a violation by Petitioner is established. We therefore
conclude that the ALJ properly found that both Petitioner and the
hospital violated the statute. 28/
We also find that the record supports FFCL #14. Charged with a
violation of section 1867, DeTar Hospital agreed to pay a fine of $5,000
in settlement of the matter. We conclude that the fine may reasonably
be viewed as a sanction. Moreover, the Inspector General stated, and
Petitioner did not dispute, that DeTar Hospital's settlement was brought
to the ALJ's attention at the prehearing conference held by the ALJ.
I.G.'s Brief in Opposition to Respondent's Exceptions, p. 100. Thus,
FFCL #14 is not based on evidence outside of the record.
Although we therefore sustain FFCL #14, we note that it is unnecessary
for purposes of this case to find that DeTar Hospital was sanctioned for
a violation of section 1867. The statute imposes a civil money penalty
on "a participating hospital that knowingly violates a requirement of .
. . [section 1867] and the responsible physician in the hospital with
respect to such a violation. . . ." The statute thus requires only that
the hospital have in fact violated section 1867; there is no requirement
that the hospital have been sanctioned for this violation in order for a
civil money penalty to be imposed on the physician. Since the record
supports a finding that DeTar Hospital violated section 1867, it is
irrelevant whether DeTar Hospital was sanctioned for this violation.
Accordingly, we sustain FFCLs #13 and #14.
FFCL #15. Dr. Burditt was the "responsible physician" with respect
to
DeTar Hospital's violations of the requirements of section 1867 of the
Act.
Petitioner argued that DeTar Hospital's liability for a violation of
section 1867 was a condition precedent to finding Petitioner liable, and
that the case against him failed ab initio since the hospital did not
violate section 1867. As discussed in response to the exception to
FFCL #13, however, we find that DeTar Hospital did violate section 1867
through the actions of Petitioner.
Accordingly, we sustain FFCL #15.
Petitioner's Exceptions to Other Than Numbered FFCLs
Petitioner took exception to the following statements in the ALJ's
decision:
This case is governed by Section 1867 of the Social Security Act,
codified at 42 U.S.C. 1395dd. On December 5, 1986, Section 1867
provided for a civil money penalty of up to $25,000 for each
violation of any requirement of Section 1867.
ALJ Decision at 3.
The maximum civil monetary penalty that could have been imposed
under section 1867 -- $25,000 for each violation -- could have been
higher in this case.
Id., p. 44.
Petitioner asserted that the ALJ erred in reading the statute as
authorizing a maximum civil money penalty in excess of $25,000, arguing
that a single transfer could give rise only to a $25,000 penalty. We
need not reach this issue, however. Although the Inspector General
charged that Petitioner violated more than one aspect of section 1867,
he imposed a penalty of only $25,000. It is clear, moreover, that in
reducing the amount of the penalty to $20,000, the ALJ's starting point
was $25,000 and not a larger amount since he referred to "a reduction in
the proposed penalty. . . ." Id., p. 42 (emphasis added). Thus, it is
irrelevant on the facts of this case whether the statute authorizes a
penalty in excess of $25,000.
Accordingly, any error in the statement on page 44 of the decision to
the effect that the maximum civil monetary penalty could have been
higher than $25,000 in this case is not material to the decision. We
further conclude, however, that the statement on page 3 should stand
since it tracks the statutory language.
Petitioner took exception to the following statement in the ALJ's
decision:
The governing federal regulations (Regulations) are codified in 42
CFR Sec. 1003.133 (1987) and 52 Fed. Reg. 49412 (December 31,
1987). These Regulations provide for a full and fair trial-type
hearing before an ALJ.
ALJ Decision at 3. Petitioner objected to this statement on the ground
that the cited regulations did not apply in proceedings under section
1867, but only where the basis for the imposition of a civil money
penalty was the submission of certain prohibited claims. While the
regulations include some substantive provisions which clearly apply only
in the latter situation, the ALJ could properly rely on the other
provisions. The regulations were adopted to implement section 1128A of
the Act, which specifies various bases for the imposition of civil money
penalties as well as procedures governing the imposition of such
penalties. Section 1867(d)(2) incorporates by reference the provisions
of section 1128A(a), stating --
In addition to the other grounds for imposition of a civil money
penalty under section 1128A(a), a participating hospital that
knowingly violates a requirement of this section and the
responsible physician in the hospital with respect to such a
violation are each subject, under that section, to a civil money
penalty . . . . (Emphasis added.)
Accordingly, the regulations adopted to implement section 1128A(a) also
apply to proceedings under section 1867 to the extent that the
regulations are not inconsistent with section 1867.
Petitioner took exception to the following statements in the ALJ's
decision:
I also ruled that the I.G., in his April 26, 1988 and September 16,
1988 Amended Notice, met the due process notice requirements set
forth in the regulations at 42 CFR 1003.109 and in 554(b) of the
Administrative Procedure Act (APA).
I concluded in this Ruling on December 22, 1988 that the fact that
the I.G. did not specify which of the three definitions found in
Section 1867 (of the terms "emergency medical condition" and
"active labor") applied to Ms. Rivera did not prevent Dr. Burditt
from preparing a defense. I conclude that the I.G.'s pleading in
the alternative did not deprive Petitioner of his right to adequate
notice or to a fair hearing.
ALJ Decision at 6. Petitioner argued that he did not receive adequate
notice of the charges against him because the Inspector General failed
to indicate which of the definitions in section 1867 of "emergency
medical condition" and "active labor" applied to Mrs. Rivera.
Petitioner
made the same argument in a motion to dismiss which was denied by the
ALJ in the December 22, 1988 ruling. The ALJ found that the Inspector
General was simply pleading in the alternative, and that this did not
prevent Petitioner from preparing a defense.
We agree with the ALJ's conclusion that Petitioner received sufficient
notice. The letter initially sent by the Office of the Inspector
General to Petitioner stated that the proposed civil money penalty was
based on the determination that --
you were the physician responsible for ordering the transfer of Ms.
Rosa Rivera from De Tar Hospital on December 5, 1986, in violation
of the requirements of section 1867 of the Act. Specifically, you
knowingly ordered the transfer of Ms. Rivera, a woman with an
emergency medical condition which had not been stabilized and in
active labor, and who was therefore subject to the protection of
the anti- dumping provisions of the Act. Furthermore, you
certified in writing that the benefits of the transfer outweighed
the risks to the patient, when you knew that they did not.
Letter from Boyd to Burditt dated April 26, 1988, p. 1. 29/ The letter
proceeded to recite the circumstances under which the alleged violation
occurred. In specifying that the statute applied both because Mrs.
Rivera had an emergency medical condition which was not stabilized and
because she was in active labor, the letter identified two major
alternative elements of a statutory violation. This gave Petitioner
sufficient information to prepare his case, since he could have either
assumed that the Inspector General was relying on all applicable
definitions of these terms (as became clear as the case developed) or
requested that the Inspector General specify the definitions on which he
was relying. Moreover, since Petitioner did not dispute that Mrs.
Rivera had an emergency medical condition, he did not need to address
the applicability of the various definitions of this term as part of his
case. Thus, Petitioner was not prejudiced by the absence of an
additional level of specificity.
Accordingly, we sustain the ALJ's conclusions.
Petitioner took exception to the following statement in the ALJ's
decision:
The principal issues are set forth below. A. Liability 1.
Whether the I.G. proved that, on December 5, 1986, Dr. Burditt
knowingly violated any requirements of section 1867 of the Act: a.
whether the I.G. proved that Dr. Burditt transferred Mrs. Rosa
Rivera while she had an "emergency medical condition" that was not
stabilized; b. whether the I.G. proved that Dr. Burditt
transferred Mrs. Rosa Rivera while she was in "active labor'; c.
whether the I.G. proved that Dr. Burditt falsely certified
that the benefits of transfer outweighed the risks (i.e., whether
Dr. Burditt should have stabilized Mrs. Rivera's "emergency medical
condition" and treated her "active labor" prior to transfer);
d.
whether the I.G. proved that Dr. Burditt transferred Mrs. Rosa
Rivera "without qualified personnel and transportation equipment."
ALJ Decision at 6-7.
Petitioner argued that the failure of the ALJ to define the issues of
the case prior to the hearing deprived him of the opportunity to present
an effective defense. However, Petitioner himself defined the issues in
the case when he appealed the Inspector General's decision to impose a
civil money penalty. Moreover, Petitioner did not dispute that the
issues identified by the ALJ were in fact the issues presented by the
case. Thus, there is no basis for changing the statement quoted above.
Petitioner's Constitutional Arguments
Petitioner argued that he was entitled to a jury trial under the Seventh
Amendment, which assures the right to a trial by jury in "suits at
common law, where the value in controversy shall exceed twenty dollars .
. . ." Petitioner argued in the alternative that he was entitled to a
jury trial under the Sixth Amendment, which applies to criminal
prosecutions. Petitioner also challenged the ALJ's decision on the
ground that section 1867 violated the Fifth Amendment because it took
private property -- the physician's time and expertise -- without
compensation. In addition, Petitioner argued that the statute was void
for vagueness, and thus deprived him of due process.
We need not address the merits of these arguments since we conclude that
the constitutionality of the statute is a matter outside the scope of
the Board's jurisdiction. Section 1003.115(c) of 42 C.F.R. (1986)
expressly provides that "[t]he ALJ does not have the authority to decide
upon the validity of Federal statutes or regulations." We see no basis
for finding that an appeal to the Secretary (who delegated his authority
in this case to the Board) enlarges the scope of the proceeding to
include consideration of matters which the ALJ is expressly forbidden
from considering. 30/
We note in any event that in arguing that section 1867 was void for
vagueness, Petitioner singled out the definition of "responsible
physician" as unconstitutionally vague, stating, "Petitioner had no
idea
that he was covered by the statute and the hospital's transfer policy
clearly stated that he was not." R Exc 58. As indicated in the
discussion of Petitioner's exceptions to FFCLs #12 and #16, however, we
conclude that section 1867 clearly applied to Petitioner.
Inspector General's Exceptions
FFCL #145: Mrs. Rivera's lack of prenatal care was a mitigating
circumstance proven by a preponderance of the evidence.
FFCL #146. Mrs. Rivera's lack of prenatal care is mitigating because of
the effect it had on Dr. Burditt's decision to transfer her.
The Inspector General took the position that the lack of prenatal care
should not be considered a mitigating circumstance. He argued that
patients with no prenatal care were more likely to be critically ill as
well as indigent, and asserted that these were the types of patients
most likely to be transferred. Thus, he argued, it would frustrate the
intent of section 1867 to consider a doctor less culpable merely because
he transferred such a patient.
We agree that the lack of prenatal care was not a mitigating
circumstance. The statute covers women in active labor who seek
treatment through a hospital emergency room in the absence of a personal
physician. 31/ A woman without prenatal care is likely to be in
precisely this situation. Thus, to reduce the penalty here because Mrs.
Rivera lacked prenatal care undermines the statute. 32/
Accordingly, we reverse FFCLs #145 and #146.
FFCL #147. The fact that DeTar Hospital had no prior medical records on
Mrs. Rivera is a mitigating circumstance proven by a preponderance of
the evidence.
The Inspector General took the position that the lack of medical records
should not be considered a mitigating circumstance, pointing out that
because section 1867 protects patients who come to hospital emergency
rooms as opposed to clinics or doctor's offices, "it is likely to be the
exception rather than the rule that prior medical records will be
available." I.G.'s Brief in Opposition to Respondent's Exceptions, p.
134. Thus, he argued, it would frustrate the purpose of the statute to
consider the lack of medical records as a mitigating circumstance.
We agree. Unless an individual is referred to a hospital by a physician
(or previously received care in the hospital), the hospital would not
have any medical records for that individual. Cf., Tr 873. Thus, the
individuals most likely to need the protection of the statute -- those
without access to preventive health care -- would not have medical
records. Accordingly, to make the lack of such records a mitigating
factor would frustrate the purpose of the statute.
Accordingly, we reverse FFCL #147.
FFCL #148. It is a mitigating circumstance that Dr. Burditt has
instituted corrective measures to prevent this situation from arising
again.
The ALJ found that, following his experience with Mrs. Rivera,
Petitioner became involved in efforts to establish transfer arrangements
with surrounding tertiary care hospitals and to establish a prenatal
clinic for local indigent women. The Inspector General argued that
these were not mitigating circumstances because they would not prevent
or deter inappropriate transfers in the future by either Petitioner
himself or by other physicians. The Inspector General also argued that
these actions were "too speculative and remote to be considered
'corrective action'" since the transfer arrangements had not been put
into effect as of the time of the ALJ hearing, and there was no evidence
as to when the prenatal clinic opened, if in fact it had. I.G.'s Brief
in Opposition to Respondent's Exceptions, p. 137.
It is not clear that the actions described above can properly be
characterized as "corrective measures" in the sense that, if
implemented, they would reduce the likelihood of an inappropriate
transfer if a case similar to Mrs. Rivera's arises. Regardless of how
Petitioner's actions are characterized, however, we conclude that they
were appropriately treated as mitigating circumstances. His involvement
in the establishment of a prenatal clinic is an attempt to reduce the
number of pregnant women, who, like Mrs. Rivera, are at risk because of
the lack of prenatal care. Furthermore, Petitioner's efforts to
facilitate the transfer process may benefit other individuals with
emergency medical conditions for which transfer is appropriate. Thus,
they represent an effort by Petitioner to make amends for his behavior
in this case and justify a reduction of the penalty.
Accordingly, we sustain FFCL #148. Conclusion
For the foregoing reasons, we affirm the ALJ's decision that Petitioner
knowingly violated section 1867 of the Act as well as his decision to
impose a $20,000 penalty on Petitioner. In so doing, we sustain each
and every one of his FFCLs with the exception of the eight FFCLs listed
in the appendix, which are either reversed or modified.
_________________________ Cecilia Sparks
Ford
_________________________ Alexander G. Teitz
_________________________ Donald F. Garrett
Presiding Panel Member
APPENDIX
FFCL #69 is modified as follows:
Because of the distance from DeTar Hospital, no reasonable OB/GYN
could have believed that the marginal benefits to be obtained at
John Sealy Hospital outweighed the risks associated with the
transfer of Mrs. Rivera. I.G. Ex 7/18-22; I.G. Ex 12/18-22; I.G.
10/17-20.
FFCL #70 is modified as follows:
Dr. Burditt signed the "Physician's Certificate Authorizing
Transfer" certifying that the risks of the transfer were outweighed
by the benefits without actually engaging in any meaningful
weighing of the risks and benefits and under circumstances where no
reasonable OB/GYN would have certified. 42 U.S.C. 1395dd.
FFCL #106 is modified as follows:
Under the generally accepted medical definition, the term "labor"
is divided into three stages. The first stage is divided into two
phases -- the early (latent) phase, and the active phase. Early
labor begins with the onset of contractions which cause dilation
and effacement of the cervix. Active labor, which begins when the
cervix is dilated to about 4 cm. and continues until it is
completely dilated (about 10 cm.), is the progressive dilation of
the cervix and the descent of the infant in relation to
contractions of the uterus leading towards delivery of the fetus.
The second stage of labor consists of delivery of the fetus. The
last stage consists of delivery of the placenta. I.G. Ex 7/14-15;
I.G. Ex 10-13; I.G. Ex 12-14; Tr 589, 711- 713, 764-765.
FFCL #111 is reversed.
FFCL #112 is modified as follows:
Dr. Burditt's violation of section 1867 of the Act was "knowing"
in
light of his knowledge of Mrs. Rivera's condition obtained by his
own and the nurses' examinations and by his reckless disregard and
deliberate ignorance of possible developments in her condition
during the lengthy wait for her to be transferred.
FFCL #145 is reversed.
FFCL #146 is reversed.
FFCL #147 is reversed.
1. Unless otherwise indicated, all references are to section 1867 as
originally enacted by Public Law 99-272 (1986). The amendments made by
Public Law 100-203, Public Law 100-360, and Public Law 101-239 were
effective after the events at issue here took place.
2. This appeal does not address the requirement in section 1867(a)
that an appropriate medical screening examination be provided to
determine whether or not an emergency medical condition exists or if the
individual is in active labor, since the ALJ specifically found that
"DeTar Hospital fulfilled its duty under federal law to provide for the
initial screening of Mrs. Rivera." Finding of Fact and Conclusion of Law
(FFCL) #6.
3. Dr. Burditt is identified as the Respondent in the ALJ's decision,
but is considered the Petitioner in the proceeding before the Appellate
Panel.
4. This summary of the facts is not intended as a substitute for the
more detailed factual statements in the FFCLs in the ALJ decision.
5. In rulings dated January 31 and April 9, 1990, we declined to
include in the record certain evidence submitted after the ALJ hearing.
The specific documentation to which these rulings relate is identified
elsewhere in this decision.
6. For documents that were part of the record before the ALJ, we
follow the same system of citation used by the ALJ (explained in his
decision at p. 8, n. 9). In addition, we refer to the exceptions filed
by Petitioner with the ALJ as "R Exc" and to the transcript of the
oral
argument conducted by the Presiding Panel Member as "Tr of oral
argument." "ALJ Decision" refers to the decision appealed by
Petitioner, Michael L. Burditt, M.D., DAB Civ. Rem. C-42 (1989).
7. Although FFCL #106 states that this is the definition of "labor,"
it appears that the ALJ inadvertently omitted the word "active" before
"labor." As noted below, we modify FFCL #106 to clarify the medical
definitions of both active labor and labor.
8. This information is included in the modified FFCL #106, the text of
which appears in the appendix to this decision. The modification is
consistent with language proposed by the I.G. in an exception to this
finding.
9. Although other witnesses testified that it could not be determined
with certainty that Mrs. Rivera was in early labor without further
observing her (Tr 769; I.G. Ex 7/15; I.G. Ex 10/14), that testimony is
consistent with a finding of early labor here, since it effectively
requires a working assumption of early labor on the part of the
physician until further observation demonstrated otherwise. The record
contains absolutely no evidence that further observation would have
demonstrated Mrs. Rivera's labor to be false. Moreover, Petitioner
chose not to monitor the progress of her labor, and thereby prevented a
more definitive diagnosis. Petitioner made the decision to transfer
Mrs. Rivera based on his first and only examination of her, although she
remained at DeTar Hospital for almost two more hours, and he had ample
opportunity to re-examine her. To the extent that a second examination
would have enabled him to make a more definitive diagnosis, he must be
charged with the information he might have gained, i.e., more conclusive
evidence Mrs. Rivera was in early labor, since the knowing standard
covers violations through reckless disregard or deliberate ignorance of
information. In any event, the evidence demonstrates that Petitioner
himself had concluded that Mrs. Rivera was in early labor.
10. While the other witnesses' testimony was unqualified that delivery
could be expected in three to four hours, Dr. Miller (Petitioner's
witness) testified that delivery could be expected three and one-half
hours from the time Mrs. Rivera's cervix was dilated to 4 cm. Tr of ALJ
hearing, p. 770. The last examination of Mrs. Rivera, performed by a
nurse, showed that her cervix was dilated to 3 cm.; however, as we note
below in response to the exception to FFCL #80, an examination by
Petitioner might have shown that she was dilated to 4 cm. since small
but significant differences in dilation can often be detected only by
the same examiner.
11. Additional factors which support the finding that delivery could
be expected within three to four hours are noted in FFCL #103, which
states that --
Mrs. Rivera was . . . at high risk for rapid labor, being a
multiparous patient with ruptured membranes, with a favorable
cervix near term and with a smaller than usual fetus. [Citation
omitted, emphasis added.]
12. Although there is no direct evidence concerning the time it would
have taken to reach John Sealy Hospital, the record shows that the
ambulance travelled 30 miles between 6:50 p.m., when it left DeTar
Hospital, and 7:30 p.m., when the baby was delivered. I.G. Ex 3/6. The
delivery took no more than 10 minutes. R Ex A/2. Thus, the ambulance
was travelling about 60 miles an hour. If the ambulance proceeded to
John Sealy Hospital at the same rate of speed, the total trip would have
taken about three hours given the undisputed distance of 170 miles
between hospitals.
13. Although Petitioner questioned the ALJ's reference to "recklessly
disregarding" risks in FFCLs #70, #112, and #114, he did not take
exception to the conclusion in the ALJ decision (which was also reached
in a pre-hearing ruling) concerning the "knowing" standard of liability.
In addition to the points cited in the ALJ Decision, p. 5, the
Inspector General's Memorandum of Points and Authorities on Prehearing
Legal Issues, at 21-44, provides highly persuasive authority and
argument in support of this definition of the "knowing" standard.
14. As discussed in response to the exception to FFCL #129, the ALJ
also correctly concluded that Petitioner transferred Mrs. Rivera knowing
that she had an emergency medical condition that was not stabilized. In
either case, in order to establish a knowing violation of section 1867,
it must also be shown that, based on this knowledge, Petitioner could
not reasonably certify that the risks of the transfer were outweighed by
the benefits or, alternatively, did not provide for an "appropriate
transfer" with qualified equipment and personnel. These elements of a
violation are discussed in response to the exceptions to FFCLs #70, #90
and #94.
15. The testimony on which the ALJ relied in making this finding is no
more specific, consisting simply of the affirmative response of a
witness to the question whether there was a national standard of care
for the treatment of hypertensive women.
16. Even if we were to accept the testimony of Dr. Pigott, a family
practitioner who testified for Petitioner, that magnesium sulfate would
have a "continuous effect" on high blood pressure if "given as
a
continuous intravenous infusion," Tr of ALJ hearing, p. 650, Petitioner
could not have relied on the magnesium sulfate to lower Mrs. Rivera's
blood pressure during the transfer. At the time of her departure from
DeTar Hospital, Mrs. Rivera had received only the loading dose of this
drug, and a continuous intravenous infusion could not be started until
three hours later under the protocol used by DeTar Hospital. J Ex 1/5,
10-11.
17. Evidence in support of his exception to these findings was
submitted by Petitioner following the issuance of the ALJ's decision.
In rulings dated January 31 and April 9, 1990, we determined that this
evidence was not admissible because Petitioner failed to show good cause
why one document was not submitted earlier and because another document
had no probative value.
18. While it is clear that Petitioner could not have complied with
section 1867 simply by signing the transfer certificate, neither could
he have avoided a violation by this act. Such an interpretation, for
which Petitioner never argued, would make the statute a paper
requirement and would defeat its purpose.
19. This finding is supported by the record, which shows that
Petitioner's immediate reaction when he was first informed of Mrs.
Rivera's condition was to state that she should be transferred. FFCL
#29. Moreover, despite the long wait before the transfer, Petitioner
failed to re-examine Mrs. Rivera to determine the progress of her labor
or even to inquire about her blood pressure. FFCL #79. His
unwillingness to consult with other physicians or to reassess his
decision to transfer, especially in light of the nurses' opposition to
the transfer, as well as his remark to the effect that he would pick and
choose the patients he wished to treat until DeTar Hospital paid his
malpractice insurance, are also evidence that his decision to transfer
was governed by considerations other than the risks and benefits to the
patient and her unborn child. Furthermore, although Petitioner signed
the transfer certificate, he did not list the benefits and risks of the
transfer in the space provided on the certificate. FFCL #64.
20. This statement also belies Petitioner's assertion that the fact
that Dr. Downing agreed to accept Mrs. Rivera at John Sealy Hospital
demonstrates that the transfer was reasonable. In addition, we note
that Petitioner failed to call Dr. Downing as a witness to support his
assertion.
21. These risks were specified by the ALJ in FFCL #125 and are spelled
out in detail in our discussion of the exception to FFCL #125.
22. Documentation submitted to the Appellate Panel by Petitioner to
challenge this finding was not included in the record because no reason
was provided why it could not have been submitted in the course of the
proceedings before the ALJ. Ruling dated January 31, 1990.
23. Although Petitioner also asserted that he ordered the transfer
because he felt that Mrs. Rivera could have benefitted from a "work-up,"
or evaluation, of her hypertension at John Sealy Hospital (I.G. Ex
6/6-7; I.G. Ex 1/3), there was uncontradicted testimony that such an
evaluation could not be done for several weeks after delivery (Tr of ALJ
hearing, p. 530).
24. Moreover, Petitioner clearly misread the law in arguing that
substantive state law controls under Erie Railroad Co. v. Tompkins, 304
U.S. 64 (1938). That decision held that, "[e]xcept in matters governed
by the Federal Constitution or by Acts of Congress, the law to be
applied in any case is the law of the State." Id., at 78. The decision
is inapposite here, however, where the question is whether state law
should be used to interpret the terms of a federal statute.
25. These principles are also consistent with the dictionary
definition of a contract as a "binding agreement." See Webster's Ninth
New Collegiate Dictionary, p. 284 (1986). However, in order to
determine what makes an agreement binding, it is necessary to look to
general legal principles.
26. As the ALJ noted, this finding is consistent with the
understanding in the medical community regarding the nature of the
relationship created by medical staff bylaws, evidenced by the following
statement in an AMA report:
Medical staff by-laws adopted and approved by the parties
constitute a contractual undertaking that is equally binding on the
governing body and medical staff as long as they continue to
conform to law and are not shown to risk loss of hospital
accreditation.
AMA House of Delegates Report, Legal Status of the Hospital Medical
Staff Proceedings (June 1986).
27. Courts have held that the "[l]egislative history of subsequent
legislation is entitled to significant weight in construing earlier,
related legislation." See Kararis v. Donovan, 697 F.2d 376, 392 at n.
65 (D.C. Cir. 1983) and cases cited therein. Thus, the legislative
history of amendments to section 1867 is relevant here.
28. That the Inspector General proceeded against Petitioner while
agreeing to settle the case against DeTar Hospital presumably reflects a
determination by the Inspector General that, although the hospital
violated section 1867, there were mitigating circumstances in the
hospital's violation of section 1867 which did not apply to Petitioner.
29. This letter was later amended to add the allegation that
Petitioner also violated section 1867 --
by failing to ensure that the December 5, 1986 transfer of Ms. Rosa
Rivera was "effected through qualified personnel and transportation
equipment, as required, including the use of necessary and
medically appropriate life support measures during the transfer" as
required by section 1867(c)(2)(C) of the Act, 42 U.S.C.
1395dd(c)(2)(C). Specifi- cally, you failed to ensure that pitocin
and a fetal heart monitor were in the ambulance and you did so
knowing the conditions under which Ms. Rivera was transferred.
Letter from Boyd to Burditt dated September 16, 1988, p. 1.
30. In any event, it is arguable that Tull v. U.S., 481 U.S. 412
(1987), cited by Petitioner in support of its position, is not on point
since it involves an action by the government in federal district court
whereas this case involves administrative proceedings within a federal
agency. Moreover, none of the cases cited by Petitioner hold that an
action to assess a civil penalty is considered a criminal proceeding for
purposes of the Sixth Amendment.
31. Petitioner asserted that he did not take into consideration
whether Mrs. Rivera would be able to pay him for services rendered in
deciding to transfer her. We reject any suggestion that the statute
applies only to transfers in which this is a consideration, however.
Although the legislative history of section 1867 indicates that Congress
was particularly concerned with the plight of indigent and uninsured
women, it is clear that the statute was intended to apply to individuals
seeking care in hospital emergency rooms regardless of their financial
status. H.R. Rep. No. 241, 99th Cong., 1st Sess. 5 (1985).
32. To the extent that the lack of prenatal care in a particular case
made it more difficult to determine whether the woman should be
transferred, that difficulty would appropriately be reflected in the
risk/benefit analysis which the physician was required to make since
that analysis need take into account only the "information available at
the time." Section 1867(c)(1)(A)(ii). Here, Petitioner asserted that
Mrs. Rivera's lack of prenatal care left him unable to determine
whether her hypertension was chronic or brought on by labor. The record
shows, however, that the risks were virtually the same in either case,
except for the increased likelihood of growth retardation in the case of
chronic hypertension. Since, in identifying the risks and benefits in
this case, the expert witnesses for both sides recognized the
possibility that the fetus was growth-retarded, the lack of prenatal
care does not affect our determination that no reasonable OB/GYN could
have determined that the benefits of transfer were outweighed by the