DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of:
The Inspector General
- v. -
Michael L. Burditt, M.D., Respondent.
DATE: July 28, 1989
Docket No. C-42
DECISION AND ORDER
This is the first case tried under a new federal law enacted to provide equal
access to health care in
hospitals with emergency departments and to prevent inappropriate transfers
of individuals from one
hospital to another. Section 1867 of the Social Security Act (Act) requires
all participating hospitals in the
United States and their "responsible physicians" to provide a screening
examination to any individual,
regardless of ability to pay, who comes into the emergency department. The purpose
of the screening
examination is to determine if that individual has an "emergency medical
condition" or is in "active labor."
Section 1867 also requires all such hospitals and their "responsible physicians"
to provide further
examination and necessary treatment to "stabilize" any individual
with an "emergency medical condition"
and to provide treatment to any woman in "active labor;" a transfer
of any such individual can be made
only under certain very restrictive circumstances and only if the medical benefits
outweigh the risks from
the transfer. Inappropriate transfers and other violations of Section 1867 may
subject hospitals and
"responsible physicians" to a civil monetary penalty.
In this case, the Inspector General (I.G.) of the United States Department
of Health and Human Services
(DHHS) seeks a civil monetary penalty in the amount of twenty five thousand
dollars ($25,000) from
Michael L. Burditt, M.D. (Respondent). The I.G. alleges that Dr. Burditt knowingly
violated Section 1867
of the Act by transferring Mrs. Rosa Rivera from DeTar Hospital in Victoria,
Texas on December 5, 1986.
More specifically, the I.G. alleges that Mrs. Rivera had an "emergency
medical condition" that had not
been stabilized; that she was in "active labor" at a time when the
medical benefits of transfer clearly did not
outweigh the medical risks associated with the transfer; that Dr. Burditt failed
to treat the "active labor" or
the "emergency medical condition;" that Respondent falsely certified
that the benefits outweighed the risks
of transfer; and that Respondent failed to ensure that the transfer was effected
through qualified personnel
and transportation equipment, including necessary and medically appropriate
life support measures.
Dr. Burditt argues that he is not a "responsible physician" under
Section 1867 of the Act and that the I.G.
failed to prove the allegations against him. Dr. Burditt argues in the alternative,
assuming a technical
violation did occur, that any civil monetary penalty imposed should not exceed
one hundred dollars
($100.00) because of the presence of mitigating circumstances and the absence
of aggravating
circumstances.
A trial-type hearing was held before this United States Administrative Law
Judge (ALJ) beginning on
Tuesday, January 24, 1989 and concluding on Friday, January 28, 1989. Eleven
witnesses testified at the
hearing, and the parties submitted exhibits in support of their positions. The
parties were represented by
competent and well-prepared attorneys. Post-hearing written arguments and proposed
findings of fact and
conclusions of law were submitted. Based on my study of the evidence in the
record, the arguments, and
after due consideration of the facts and law, I find and conclude that Dr. Burditt
did knowingly violate
requirements of Section 1867 of the Act by transferring Mrs. Rosa Rivera from
DeTar Hospital on
December 5, 1986. I conclude, after weighing all mitigating and aggravating
circumstances, that
Respondent should pay a civil monetary penalty of twenty thousand dollars ($20,000).
APPLICABLE STATUTES AND REGULATIONS
I. Statutes.
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.
II. Regulations.
The governing federal regulations (Regulations) are codified in 42 C.F.R. 1003.100
through 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.
BACKGROUND
On April 26, 1988, the I.G., through Eileen T. Boyd, Deputy Assistant Inspector
General, Civil Fraud
Division, sent a notice of proposed determination (Notice) to Dr. Burditt, a
board-certified medical doctor
practicing obstetrics and gynecology in Victoria, Texas. The Notice informed
him that the I.G. had
determined that on December 5, 1986 he had violated requirements of Section
1867 of the Act, and should
pay a civil monetary penalty of $25,000 for those violations. On May 2, 1988,
Respondent contested the
I.G.'s determination and requested a hearing before an ALJ. On September 16,
1988, the I.G. issued an
Amended Notice, alleging that the transfer of Mrs. Rivera was not effected through
qualified personnel and
transportation equipment; Respondent also contested the allegations in the Amended
Notice.
A prehearing conference was held in Victoria, Texas on August 31, 1988, and
several prehearing rulings
were issued by me prior to the January 1989 hearing.
SUMMARY OF PREHEARING RULINGS AND ORDERS
I hereby reaffirm all Prehearing Rulings and Orders.
I. Preparation For The Hearing.
A Prehearing Order and Notice of Hearing was issued by me on September 12,
1988 setting forth a
schedule for the parties to prepare for the hearing. I issued Amendments on
December 2, 1988, requiring
the parties to submit the direct testimony of all proposed expert witnesses
in writing.
On December 2, 1988, I issued a Ruling denying the I.G.'s motion to exclude
certain witnesses. On
December 23, 1988, I ordered the I.G. to produce certain documents sought in
discovery by Respondent,
for the reasons stated in my December 16, 1988 Ruling concerning production
of documents.
II. The Applicable Burden of Proof, Standard Of Liability, And Regulations.
On December 22, 1988, I determined the law applicable to this case to be as
follows: (1) the procedural
provisions of the federal regulations at 42 C.F.R. Part 1003 apply to this case
to the extent that they are
consistent with Section 1867 of the Act; (2) 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; and (3) 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.
III. Ruling Denying Respondent's Motion To Dismiss And The I.G.'s Motion For Summary Judgement.
A. Responsible Physician.
Section 1867 of the Act provides that a civil monetary penalty may be imposed
against a "responsible
physician" who is "employed by" or "under contract with"
a participating hospital.
On December 22, 1988, I concluded 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 of the Act.
B. Adequate Notice.
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 C.F.R. Section
1003.109 and in Section
554(b) of the Administrative Procedure Act (APA).
ISSUES
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."
2. Whether the I.G. proved that, on December 5, 1986, Dr. Burditt was a "responsible
physician," as
defined by Section 1867 of the Act.
B. The Amount Of The Civil Monetary Penalty.
3. Whether the I.G. proved the aggravating circumstances alleged.
4. Whether Respondent proved the mitigating circumstances alleged.
5. Whether the amount of the proposed civil monetary penalty is appropriate
under the circumstances of
this case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Michael L. Burditt (Respondent) is a medical doctor and has practiced obstetrics
and gynecology
(OB/GYN) in Victoria, Texas since 1974. Tr 805.
2. Dr. Burditt applied for appointment to the active medical staff of DeTar
Hospital in Victoria, Texas in
1974, became board certified in OB/GYN in 1976, and was Chief of the OB/GYN
Department at DeTar
Hospital on December 5, 1986. J Ex 6/1, 5; Tr 803; Stip B4.
3. On December 5, 1986, DeTar Hospital was a Medicare participating hospital,
within the meaning of 42
U.S.C. 1395dd and was the only hospital in Victoria, Texas with a labor and
delivery department. R Ex
A/2.
4. Experiencing symptoms of ruptured membranes and severe hypertension, Mrs.
Rosa Rivera, an indigent
unaligned individual pregnant with her sixth child, arrived at DeTar Hospital's
emergency room on
December 5, 1986, at approximately 4:00 p.m., requesting treatment and examination.
An unaligned
patient is one who does not have a physician. Stip B5, B6, B7; J Ex 1/7; I.G.
Ex 2/2; Tr 84.
5. DeTar Hospital was required by federal law to provide for an appropriate
medical screening
examination of Mrs. Rivera in order to determine whether an "emergency
medical condition" existed and
to determine whether she was in "active labor." 42 U.S.C. 1395dd(a).
6. DeTar Hospital fulfilled its duty under federal law to provide for the initial screening of Mrs. Rivera.
7. If DeTar Hospital determined that Mrs. Rivera had an "emergency medical
condition," DeTar Hospital
was required by Section 1867 of the Act to affirmatively either:
a. provide for such further medical examination and treatment required to
stabilize Mrs. Rivera's
medical condition; or
b. provide for her transfer to another medical facility in accordance with
the requirements in Section
1867 of the Act.
8. There is no dispute that Mrs. Rosa Rivera had an "emergency medical condition" on December 5, 1986.
9. If DeTar Hospital determined that Mrs. Rivera was in "active labor,"
DeTar was under an affirmative
duty to either:
a. provide for further examination and treatment of her labor; or
b. provide for her transfer to another medical facility in accordance with
the requirements in Section
1867 of the Act.
10. Mrs. Rivera was in "active labor" on December 5, 1986 (see FFCL 100-113, infra).
11. On December 5, 1986, DeTar Hospital had delegated to Dr. Burditt its duty
to examine, determine
Mrs. Rivera's condition, and treat Mrs. Rivera.
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.
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.
14. DeTar Hospital has already been sanctioned for its violations of requirements of Section 1867.
15. Dr. Burditt was the "responsible physician" with respect to DeTar
Hospital's violations of requirements
of Section 1867 of the Act.
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. See
42 U.S.C. 1395 x(r).
17. The I.G. proved by a preponderance of the evidence that, on December 5,
1986, Respondent
knowingly violated requirements of Section 1867 of the Act.
18. As a member of the active staff of DeTar Hospital, Dr. Burditt agreed to
abide by the hospital's by-
laws, rules, standards, policies, and regulations. J Ex 6/22.
19. As a member of the staff of DeTar Hospital, all OB/GYN physicians are required
to do an emergency
rotation for unaligned patients. Tr 84.
20. As a member of the staff, Dr. Burditt had agreed to provide emergency medical
care to unaligned
patients at DeTar Hospital and the hospital, in turn, allowed him to admit his
own patients and to use the
hospital's personnel and resources to treat them. J Ex 6/22; J Ex 8/15; I.G.
Ex 5/2.
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. J Ex 7/4, R Ex
2/2; J Ex 8/18; Tr 84.
22. On December 5, 1986, Dr. Burditt was on the unaligned patient call list
for the OG/GYN Department
of DeTar Hospital and was substituting for two other physicians. Tr 84, 85,
329, 814, 815; Stip B10; I.G.
Ex 1/1; I.G. Ex 2/2.
23. Mrs. Rivera was initially examined by Tammy Kotzur, a labor and delivery
unit nurse. J Ex 1/7, 12;
Tr 123.
24. Upon examination by Nurse Kotzur, Mrs. Rivera was found to have the following conditions:
a. gravida six para five (a pregnant woman in her sixth pregnancy, with five
previous births);
b. a blood pressure of 210/130;
c. moderate contractions every three minutes, lasting 60 seconds (contractions
started at 7 a.m.);
d. a positive nitrazine test (indicating leaking or ruptured membranes);
e. a dilated cervix three centimeters and 60-70% effaced;
f. she reported having had spontaneous rupture of membranes at 3:15 p.m.;
g. she gave the date of her last menstrual period as March 13, 1986 (if she
went
full term, her estimated date of delivery was December 14, 1986);
h. the baby's head was ballottable;
i. she was at or near term. Stip B8; J Ex 1/2, 4, 6-8.
25. Nurse Donna Kiening, the supervisor of the labor and delivery department
at DeTar Hospital, was
asked by Nurse Kotzur to verify Mrs. Rivera's blood pressure reading because
it was so high. Tr 122, 123.
26. At the time Mrs. Rivera first arrived at DeTar Hospital on December 5,
1986, Dr. Burditt was the
physician designated on the Hospital's unaligned patient call list to take the
next such patient. Stip B10.
27. Between 4:00 p.m. and 4:15 p.m., on December 5, 1986, Nurse Kotzur called
Dr. Burditt and informed
him of Mrs. Rivera's condition. Stip B11; J Ex 1/7; I.G. Ex 1/1; I.G. Ex 2/2;
Tr 85, 123, 814, 881.
28. Nurse Kotzur advised Dr. Burditt that Mrs. Rivera's
blood pressure was 210/130; her cervix was three centimeters dilated and 70%
effaced with the head
ballottable. Her contractions had started that morning, her membranes had ruptured,
and her estimated
full-term due date was mid-December. J Ex 1/7, 12.
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. Stip B12; Tr 124;
I.G. Ex 1/1.
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.
31. Concerned by Dr. Burditt's reaction to transfer Mrs. Rivera, Nurse Kotzur
requested that Dr. Burditt
call back in five to ten minutes. I.G. Ex 1/1; Tr 124.
32. Nurse Kotzur told her supervisor, Nurse Kiening that Dr. Burditt wanted
to transfer Mrs. Rivera, and
both nurses considered the transfer to be unsafe. Tr 123, 124 145, 146, 148;
I.G. Ex 2/2.
33. At 4:15 p.m., an entry was made in Mrs. Rivera's medical record under "physician's
orders" which
stated: "prepare pt for transfer to John Sealy Hospital in Galveston."
This order was later countersigned by
Dr. Burditt. J Ex 1/4.
34. DeTar Hospital's rules and regulations provide that if a nurse has reason
to doubt or question the care
of a patient, she should call it to the attention of her superior, who in turn
is directed to call the Director of
Nursing Services. The Director of Nursing Services is directed to call the attending
physician, the
administrator, or the chief of staff. J Ex 7/9.
35. Jean Herman, Associate Director of Nursing, was Nurse Kiening's supervisor
and was the "house
supervisor" on December 5, 1986. It was the policy of DeTar Hospital that
the house supervisor be
involved in any transfer of a patient. Tr 85, 101, 124.
36. At 4:25 p.m. on December 5, 1986, Nurse Kiening called Nurse Herman to
inform her of the possible
transfer of Mrs. Rivera and of the nurses' feeling that transfer would be "unsafe."
I.G. Ex 2/2; Tr 83, 85,
124, 145.
37. Nurse Herman told Nurse Kiening to call Charles Sexton, who had been the
Administrator of DeTar
Hospital since 1981. Tr 86, 101, 125; I.G. Ex 5/1.
38. Between 4:25 p.m. and 4:30 p.m., Nurse Kiening telephoned Mr. Sexton to
advise him of the possible
transfer of Mrs. Rivera and the nurses' feelings that the transfer was unsafe.
I.G. Ex 2/2; Tr 125, 145, 154,
156.
39. Nurse Herman took a copy of the new COBRA law and a copy of the hospital's
guidelines to Mr.
Sexton to verify that these materials needed to be followed. Tr 85, 101.
40. Mr. Sexton told Nurse Herman that she needed to have Dr. Burditt sign the
"Physician's Certificate
Authorizing Transfer." Tr 114.
41. Hospital guidelines provide that, prior to a transfer, the transferring
physician must personally examine
and evaluate the patient to determine the patient's medical needs. J Ex 3/2,
3. Section 1867 also requires
this.
42. At approximately 4:20 p.m., Dr. Burditt telephoned the hospital from his
automobile and was directed
to speak to Nurse Kiening. During the conversation between Dr. Burditt and Nurse
Kiening, she advised
him that the nurses felt the transfer was unsafe. I.G. Ex 1/1; I.G. Ex 2/2;
Tr 126, 145, 152, 819, 885.
43. Nurse Kiening told Dr. Burditt that he would have to telephone John Sealy
Hospital himself and that
he would have to perform an in-person evaluation of the patient if he wanted
her to be transferred. I.G. Ex
1/1.
44. Nurse Kiening asked Dr. Burditt if she could start an IV (intravenous)
or give magnesium sulfate. Dr.
Burditt told Nurse Kiening that she could start an IV if Mrs. Rivera could be
transported by emergency
medical services (E.M.S.), but that if Mrs. Rivera could not be transported
by E.M.S., Nurse Kiening was
not to start an IV. I.G. Ex 1/1; I.G. Ex 2/2; Tr 126, 165.
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. J Ex 1/4; J Ex
1/8; I.G. Ex 2/2; Tr 127, 157.
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.
I.G. Ex 1/2; I.G. Ex 2/2; Tr
158.
47. Dr. Burditt examined Mrs. Rivera between 4:50 p.m. and 5:00 p.m. J Ex 1/8.
48. Between 4:50 p.m. and 5:00 p.m., Dr. Burditt called John Sealy Hospital
and spoke to Dr. Downing,
who agreed to accept Mrs. Rivera. Dr. Burditt told Dr. Downing that the patient
should be there within
three hours. During this conversation, Dr. Downing requested that magnesium
sulfate be administered.
Stip B14; Stip B15.
49. The results of Dr. Burditt's assessment of Mrs. Rivera and his phone call
to John Sealy Hospital were
entered into the medical record at 5:00 p.m. Stip B16.
50. At approximately 5:00 p.m., Dr. Burditt informed Nurse Kiening that John
Sealy Hospital had
accepted Mrs. Rivera. Dr. Burditt gave orders to transfer Mrs. Rivera and asked
Nurse Kiening to follow
routine procedure for magnesium sulfate coverage. Stip B17; Tr 842.
51. Nurse Kiening started the magnesium sulfate IV push at 5:30 p.m., and it
was completed at 6:00 p.m.
An IV push is the administration of medicine intravenously by quick and forcible
injection. J Ex 1/10, 11;
I.G. Ex 3/5; Tr 132, 160.
52. The magnesium sulfate IV push was slower than prescribed, due to interruptions
regarding the transfer.
J Ex 1/10; J Ex 12/2; Tr 132, 133 166.
53. Magnesium sulfate (MgS04) is an anti-convulsant and the administration
of magnesium sulfate was
appropriate in this case. I.G. Ex 7/14; I.G. Ex 10/12; I.G. Ex 12/13, 27; Tr
238, 480, 719.
54. The magnesium sulfate protocol at DeTar Hospital provides for four grams
IV push over five minutes
and then five grams intramuscularly in each buttock. Three hours after the intramuscular
dose, a
continuous IV with IVAC is to be started. IVAC is the brand of a device which
regulates the flow of the
IV. J Ex 1/5.
55. At some time before 5:00 p.m., Nurse Herman came to the labor and delivery
room to discuss Mrs.
Rivera's transfer with Dr. Burditt. I.G. Ex 2/3; I.G. Ex 1/2; Tr 86, 129.
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. Tr 87, 88, 103,104, 129-130.
57. Dr. Burditt told Nurse Herman that Mrs. Rivera was more high-risk than
he was willing to accept from
a malpractice standpoint. I.G. Ex 1/2.
58. On December 5, 1986, DeTar Hospital had a Level II perinatal unit. John
Sealy Hospital had a Level
III perinatal unit. J Ex 12/3; Tr 328, 448.
59. A Level III perinatal unit is usually necessary for babies with severe
respiratory problems or babies
severely premature. I.G. Ex 7/21; I.G. Ex 12/21.
60. Dr. Burditt accurately estimated Mrs. Rivera's baby at six pounds. Tr 825,
897; J Ex 1/6. A six pound
baby, whether or not growth-retarded, could usually be cared for in a Level
II facility. Tr 497.
61. Dr. Burditt told Nurse Herman that Mrs. Rivera was in early labor and that
he thought Mrs. Rivera
could make it to John Sealy Hospital in Galveston. I.G. Ex 1/2; Tr 87, 102,
115.
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. I.G. Ex 2/3; Tr 30, 89, 129, 903,
905.
63. Dr. Burditt stated "give me that dang piece of paper" and signed
a "Physician's Certificate Authorizing
Transfer" of Mrs. Rivera. J Ex 1/13; Stip B18.
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 at 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.
65. One of the risks of transferring Mrs. Rivera was that she might deliver
before reaching John Sealy
Hospital. I.G. Ex 7/20; I.G. Ex 10/19.
66. The growth-retarded fetus of a hypertensive mother is much more likely
to suffer distress in labor
since contractions further restrict the flow of oxygen. I.G. Ex 7/20-21.
67. Transfer significantly intensified the high risk to the fetus of death
or disability due to fetal hypoxia or
placental abruption. Fetal hypoxia is the deficiency of oxygen to the fetus.
Placental abruption is the
premature separation of the placenta. I.G. Ex 7/22, 33; I.G. Ex 10/31; I.G.
Ex 12/19, 20.
68. The risks of being born outside a hospital were much greater than the benefits
a Level III facility
would provide. I.G. Ex 7/35; I.G. Ex 10/20, 32; I.G.
Ex 12/21.
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. I.G. Ex 18-22; I.G. Ex 10/17-20.
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.
71. Subsequent to Dr. Burditt signing of the Physician's Certificate Authorizing
Transfer, Nurse Kiening
contacted E.M.S. to arrange for Mrs. Rivera's transfer. Tr 132, 156, 159; J
Ex 5/4.
72. Nurse Herman attempted to locate a nurse to accompany Mrs. Rivera and called
Nurse Anita Nichols.
Nurse Nichols arrived at Detar Hospital at 5:45 p.m. and took over the care
of Mrs. Rivera at 6:00 p.m. Tr
90, 91, 132; I.G. Ex 2/3; I.G. Ex 3/1, 2; J Ex 12/2.
73. Also, on December 5, 1986, Dr. Burditt was advised by Nurse Dawn Burns,
in the labor and delivery
department, that another unaligned patient, Sylvia Ramirez, had come in and
that he must treat her. I.G. Ex
1/2; Tr 822.
74. After signing the transfer certificate for Mrs. Rivera, Dr. Burditt went
to evaluate Mrs. Ramirez. I.G.
Ex 1/2; Tr 836.
75. Mrs. Ramirez was bleeding heavily and later delivered at 6:22 p.m. on December
5, 1986. Tr 822;
I.G. Ex 1/2.
76. When Dr. Burditt first arrived at DeTar Hospital on December 5, 1986, he
knew that another physician
was in the delivery room. Dr. Burditt later determined that it was Dr. Whitehouse.
I.G. Ex 1/2; Tr 820-21,
846.
77. Dr. Ormazable is a board-certified neonatologist (specialist in the care
of the newborn) on the staff of
DeTar Hospital and was in the hospital at approximately 6:25 p.m. on December
5, 1986. He was also
present when Sylvia Ramirez's baby was delivered, and took over the care of
Sylvia Ramirez's 3 1/2 pound
baby. R Ex E/24, 30; Tr 87, 794.
78. DeTar Hospital's rules and regulations provide that any qualified practitioner
with clinical privileges
can be called upon for consultation. They also provide that the attending physician
is primarily responsible
for requesting a consultation, and such consultation is urged in unusually complicated
situations. J Ex 7/8.
The obstetricians and pediatricians at DeTar Hospital consider themselves to
be a "close knit" group, but
Dr. Burditt did not seek any consultation from physicians available at DeTar
or on call. Tr 846, 891-92.
79. After Dr. Burditt's first and only examination of Mrs. Rivera, Dr. Burditt
"inquired several times over
the next hour and a half how the transfer of Mrs. Rivera was proceeding."
Stip B20. However, he did not
specifically inquire about her medical condition.
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. B21; Tr 133, 912, 916.
81. Nurse Nichols told Dr. Burditt that the results of her examination showed
that Mrs. Rivera's cervix was
three centimeters dilated, 70% effaced, and at minus two station. He then told
Nurse Nichols that there had
been no change in Mrs. Rivera's condition and to proceed with the transfer.
Tr 841; J Ex 1/11.
82. Dr. Burditt did not give Nurse Nichols any further orders for medication
during the transfer and did
not order any life support or other measures for the ambulance. I.G. Ex 1/3;
J Ex 1/4; Tr 134, 173.
83. The "Guidelines for Perinatal Care" indicate that a heart rate
monitor (or fetal heart monitor)
is essential equipment for the neonate. A neonate is a newborn infant up to
six weeks of age. J Ex 13/2, 3.
84. The ambulance did not contain a fetal heart monitor or blankets to wrap
a baby after delivery. Further,
it did not have pitocin, a drug frequently used to control postpartum bleeding.
I.G. Ex 3/2; I.G. Ex 7/36;
I.G. Ex 10/33; I.G. Ex 12/36; Tr 44.
85. With hypertension as severe as Mrs. Rivera's, there was the possibility
of fetal distress requiring the
use of a fetal heart monitor. I.G. Ex 7/20, 21, 33, 36; I.G. Ex 10/19, 20, 33;
I.G. Ex 12/36.
86. Without an external fetal monitor, a nurse could not detect partial placental
abruption or fetal hypoxia.
I.G. Ex 7/20, 21, 33; I.G. Ex 10/31; I.G. Ex 12/19, 32.
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. J Ex 3/2.
88. The ambulance arrived at DeTar Hospital at approximately 6:24 p.m. Dr.
Burditt saw Mrs. Rivera
being taken out on the stretcher to the ambulance, but did not re-examine her
or inquire about her blood
pressure. Stip B22; Tr 912, 917.
89. At approximately 6:50 p.m., the ambulance left DeTar Hospital with Mrs.
Rivera, her husband, Nurse
Nichols, and two E.M.S. attendants. Tr 42.
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).
91. On December 5, 1986, John Sealy Hospital was a receiving hospital and had
available space and
qualified personnel for the treatment of Mrs. Rivera, but the transfer of Mrs.
Rivera was not effected
through qualified personnel and transportation equipment.
92. If Mrs. Rivera's baby had experienced fetal distress, the only way in which
Nurse Nichols could have
relieved it would have been to deliver the baby. I.G. Ex 7/21; I.G. Ex 10/31;
I.G. Ex 12/20, 33.
93. A vaginal delivery in an ambulance decreases the possibility of the resuscitation
of a baby in distress,
and an obstetrical nurse is not trained or licensed to perform cesarean sections.
I.G. Ex. 10/31; Tr 82; I.G.
Ex 7/21, 33; I.G. Ex 12/20, 33.
94. Dr. Burditt knowingly transferred Mrs. Rivera without qualified personnel
or transportation equipment
in violation of Section 1867. 42 U.S.C. 1395dd.
95. A short time after departure from DeTar, Mrs. Rivera told Nurse Nichols
that the baby had moved into
position. The ambulance pulled to the side of the road near Ganado, Texas, approximately
30 miles from
Victoria, and at 7:30 p.m. Mrs. Rivera gave birth to a healthy baby boy. Tr
43, 44; J Ex 1/43; J Ex 2/8.
96. The ambulance then proceeded to Ganado Hospital to obtain pitocin. J Ex
4/1; J Ex 1/44; I.G. Ex 3/7;
Tr 44, 45, 71.
97. While at Ganado Hospital, Nurse Nichols telephoned Dr. Burditt to report
the birth and 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. Stip B23; J Ex 1/44; I.G. Ex 1/3; I.G.
Ex 3/7; I.G. Ex 6/8.
98. Upon learning that Mrs. Rivera was returning to DeTar Hospital, Dr. Burditt
refused to see her and
told the house supervisor to dismiss her if she was stable and not bleeding
excessively. I.G. Ex 1/3.
99. Dr. Burditt was asked if he would allow another doctor to examine Mrs.
Rivera. When Dr. Burditt
agreed, the house supervisor arranged for Dr. Pigott to assume the care of Mrs.
Rivera. Stip B24; I.G. Ex
2/3.
100. Upon her return to DeTar Hospital, Mrs. Rivera and her baby were treated by Dr. Pigott. Stip B25.
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. I.G. Ex
3/2; Tr 67, 134, 169, 170,
512, 832, 908, 909, 917.
102. The Admission Record of Mrs. Rivera indicates that with her prior deliveries
her labor had been no
longer than 24 hours in duration and that her contractions had started at 7:00
a.m. on December 5, 1986. J
Ex 1/12.
103. Mrs. Rivera was considered a multiparous woman (a woman, who had previous
births). I.G. Ex 7/4;
I.G. Ex 10/4; I.G. Ex 12/5, 16. She 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. R Ex 2/2.
104. At 4:50 p.m., the presenting part of the infant was at -3 and at 6:30
p.m. was -2. Mrs. Rivera had a
positive nitrazine test consistent with the presence of leaking or ruptured
membranes. I.G. Ex 7/4; I.G. Ex
10/4; I.G. Ex 12/5, 15; Tr 702.
105. There is no difference between ruptured and leaking membranes in relation
to the subsequent
development of labor. Tr 351, 352, 483, 487, 591, 763.
106. The generally accepted medical definition of labor 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 infant. Tr 589,
764.
107. In obstetrics, "effacement" is the dilation of the cervix, enlarging
the cross-sectional area of the birth
canal to permit passage of the fetus. Taber's Cyclopedic Medical Dictionary,
16th Ed. 1985.
108. When the infant's head is "ballottable;" it means that the baby
is still encased in fluid. I.G. Ex 7/30-
31.
109. Small 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. Tr 512, 704,
915-16; I.G. Ex 7/30-31.
110. The I.G. did not prove by a preponderance of the evidence that delivery
was imminent at the time Dr.
Burditt signed the "Physician's Certificate Authorizing Transfer"
of Mrs. Rivera.
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.
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.
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).
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).
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).
116. When Mrs. Rivera came to DeTar Hospital at approximately 4:00 p.m., her
blood pressure was
210/130; and at 4:50 p.m., when examined by Dr. Burditt, her blood pressure
had not changed. Stip B8; J
Ex 1/6.
117. The standard of care for the treatment of hypertensive pregnant women
is a national standard among
board certified OB/GYNs. Tr 315.
118. Treatment to lower blood pressure is well within the expertise of a board-certified
OB/GYN,
although Dr. Burditt had never seen a blood pressure at DeTar as high as 210/130.
I.G. Ex 7/20; Tr 815,
816.
119. In his application for staff privileges at DeTar Hospital, Dr. Burditt
requested and was granted
privileges for the treatment of patients with severe pre-eclampsia and eclampsia.
Pre-eclampsia is a
toxemia of pregnancy characterized by increasing hypertension, headaches, albuminuria,
and edema of the
lower extremities. If a pre-eclamptic patient develops convulsions or convulsive
seizures, she is designated
as having eclampsia. J Ex 6/14; Taber's (supra).
120. Mrs. Rivera's blood pressure could be indicative of chronic hypertension,
pre-eclampsia or pregnancy
induced hypertension, or chronic hypertension with superimposed pre-eclampsia.
I.G. Ex 7/9; I.G. Ex
10/8; I.G. Ex 12/4; Tr 354, 493.
121. Regardless of whether she was suffering from chronic hypertension, pre-eclampsia,
or chronic
hypertension with superimposed pre-eclampsia, Mrs. Rivera's blood pressure was
extremely high and
needed to be brought down immediately. I.G. Ex 7/7, 9, 12; I.G. Ex 10/8, 10;
I.G. Ex 12/4, 13.
122. Blood pressure is considered abnormally high when the systolic is over
150 and the diastolic is over
90. I.G. Ex 7/6; I.G. Ex 1/6; I.G. Ex 12/7. By this standard, Mrs. Rivera's
blood pressure was extremely
high and dangerous. I.G. Ex 7/9, 13; I.G. Ex 10/12; I.G. Ex 12/12; Tr 579.
123. In the case of a pregnant woman, if the systolic pressure is above 160-170,
or the diastolic pressure is
above 110, the mother and fetus are in serious danger. I.G. Ex 7/6, 7; I.G.
Ex 12/7; I.G. Ex 10/6, 7.
Hypertension is a leading cause of death in pregnant women. I.G. Ex 7/7; I.G.
Ex 10/7.
124. If the systolic blood pressure is over 160, there is an increased risk of bleeding into the brain. Tr 345.
125. As a result of her hypertension, Mrs. Rivera and her fetus were at high risk of:
a. seizures, which would result in death to both the
mother and child;
b. congestive heart failure;
c. heart attack;
d. serious kidney dysfunction or tubular necrosis;
e. stroke or intracranial bleeding, which could
result in death, total or partial paralysis,
blindness, loss of motor control or loss of
speech;
f. placental abruption;
g. fetal hypoxia;
h. death to the mother and fetus.
I.G. Ex 6/6; I.G. Ex 7/7-10, 12, 13; I.G. Ex 10/6-10, 12; I.G. Ex 12/8, 9, 11, 13, 19; R Ex C/1; Tr 358, 501.
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.
I.G. Ex 12/7, 9, 10;
I.G. Ex 10/9; I.G. Ex 7/9-11; Tr 215, 233-34, 238, 262, 264, 274.
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).
128. On December 5, 1986, Mrs. Rivera had an "emergency medical condition"
(hypertension) as defined
by Section 1867(e) (1) of the Act. 42 U.S.C. 1395dd (e) (1).
129. From 4:00 p.m. to 6:50 p.m., Mrs. Rivera had the following blood pressures:
at 4:00 it was 210/130;
at 4:50 it was 220/118; at 5:00, it was 210/130; at 5:10, it was 190/110; at
5:30, it was 173/105; at 5:45, it
was 178/103; at 6:00, it was 186/107; and at 6:50, it was 190/110. Mrs. Rivera's
readings 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
Respondent examined her or at the point of her departure from DeTar Hospital.
J Ex 1/7-9, 11, 13, 43; I.G.
Ex 10/22.
130. Between 4:00 p.m. and 6:30 p.m., Mrs. Rivera's blood pressure varied,
but it remained unstable and
dangerously high. I.G. Ex 7/24-25, 27-29; I.G. Ex 10/22-23, 25; I.G. Ex 12/24-25,
27, 29.
131. Because the seriousness of her hypertension had not changed, Mrs. Rivera
was subject to the same
complications at the time of her transfer, except for seizures, as when she
arrived at DeTar, (i.e., stroke,
intracranial bleeding, heart attack, congestive heart failure, kidney dysfunction,
placental abruption, and
fetal hypoxia). I.G. Ex 7/26; I.G. Ex 10/24; I.G. EX 12/26-27.
132. There are several treatments for hypertension. An anti-hypertensive drug
such as apresoline can be
administered either inpartum or postpartum. The patient can be given bed rest
in a calm environment for
6-8 hours or in a situation as here, when the hypertension is due to preeclampsia,
the delivery of the baby
will often improve the patient's condition. I.G. Ex 7/12 I.G. Ex 10/10; I.G.
Ex 12/11.
133. Dr. Burditt had received training in the use of apresoline but was taught
that it was contraindicated
during the labor process. Tr 804, 805, 931.
134. Medical experts believe that with severe hypertensive patients such as
Mrs. Rivera, a physician
should administer an antihypertensive drug and that apresoline is the drug of
choice. I.G. Ex 7/12, 14, Tr
777.
135. Dr. Pigott gave orders to administer apresoline to Mrs. Rivera after she returned to DeTar Hospital.
136. At most, magnesium sulfate may effect a variable and transient lowering
of blood pressure in the case
of women with preeclampsia or eclampsia. I.G. Ex 22/3.
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).
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).
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."
140. The Respondent must prove mitigating circumstances by a preponderance of the evidence.
141. The I.G. must prove aggravating circumstances by a preponderance of the evidence.
142. It is the duty of the Administrative Law Judge (ALJ) to weigh the evidence
presented and to
determine the credibility of the evidence, especially evidence presented to
the Court in the form of direct
testimony.
143. The ALJ has the duty to balance all circumstances to determine the weight
each will be given, and the
effect it will have upon the penalty imposed.
144. In the present case there are both aggravating and mitigating circumstances
proven by a
preponderance of the evidence. Some, but not all, of these circumstances were
taken into consideration by
the I.G. in determining the amount of the penalty imposed against Dr. Burditt.
145. Mrs. Rivera's lack of prenatal care was a mitigating circumstance proven
by a preponderance of the
evidence.
146. Mrs. Rivera's lack of prenatal care is mitigating because of the effect
it had on Dr. Burditt's decision
to transfer her.
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.
148. It is a mitigating circumstance that Dr. Burditt has instituted corrective
measures to prevent this
situation from arising again.
149. It is an aggravating circumstance that Dr. Burditt did not examine Mrs.
Rivera after his initial
examination.
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.
151. It is an aggravating circumstance that Dr. Burditt did not attempt to consult another doctor.
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.
153. The appropriate amount of the civil monetary penalty is twenty thousand
dollars ($20,000), based on
the circumstances of this case.
DISCUSSION
Section 1867 of the Social Security Act was enacted to close the door on the
shameful practice of denying
emergency hospital care in the United States to many persons in dire need. While
most hospitals and
physicians are committed to the ideal of providing access to quality health
care for all, many hospitals had
"forsaken their earlier commitment to patient access to health care for
one of cost containment and
restraint." H. R. Rep. No. 100-531, at 8, supra. Congress was appalled
that many inappropriate transfers
of patients in need of medical care from one hospital to another caused needless
human suffering and
death. Id. at 5-10.
Although this case does not represent an example of an illegal transfer motivated
by the patient's inability
to pay, it does present an example of a "responsible physician" who
knowingly violated requirements of
Section 1867 in a way that could have had tragic consequences for a mother and
her unborn child. Luckily
for all involved, there were no serious problems resulting from Dr. Burditt's
violations.
It is a tragedy that Dr. Burditt, a well-respected physician, a decent, personable
man with loyal friends and
patients, let his parochial interests and personal feelings (to limit his practice
to low-risk patients and to
avoid a potential malpractice lawsuit from a high-risk patient) interfere with
his exercise of sound
professional medical judgment. Dr. Burditt violated requirements of Section
1867 by transferring Mrs.
Rosa Rivera from DeTar Hospital on December 5, 1986. While he never meant to
harm Mrs. Rivera, he
further compounded his initial recklessness, in ordering her transfer, by allowing
his anger at having his
authority challenged by nurses (and the resulting conflict with those nurses)
close his mind to the merit of
cancelling the transfer, all to the detriment of Mrs. Rivera and her unborn
child. He depended on these
same nurses for vital information in forming his diagnosis, but virtually ignored
them when they attempted
to warn him about Section 1867, a new federal law with which he was unfamiliar,
and ignored their
conclusions that the transfer of Mrs. Rivera and her unborn child and their
transport in an ambulance for
three hours was unsafe. His unyielding attitude did not allow him to consider
whether he might be wrong,
prompt him to investigate the nurses concerns, treat Mrs. Rivera before she
was transferred, or treat Mrs.
Rivera when she was returned to Detar Hospital. In this instance, although Dr.
Burditt was not venal, he
lost sight of his oath as a physician.
At the hearing, Dr. Burditt unsuccessfully attempted to justify his reckless
disregard of Mrs. Rivera and her
unborn child by presenting expert witnesses to establish that his actions on
December 5, 1986 were based
on sound medical judgment. Respondent's sound medical judgment contention and
the expert testimony
supporting that contention loses much of its persuasive force when one considers
Dr. Burditt's failure to
issue orders ensuring that the ambulance transporting Mrs. Rivera was properly
equipped and when one
considers his refusal to treat Mrs. Rivera and her baby following her return
to DeTar Hospital after the
delivery of her child in an ambulance. Finally, there were mitigating circumstances
which had not been
considered or given enough weight in the I.G.'s Notice and which, upon being
considered by this ALJ,
compel a reduction in the civil monetary penalty sought by the I.G. These include
the fact that, since this
incident with Mrs. Rivera, Dr. Burditt has been engaged in efforts to prevent
inappropriate transfers and to
provide a clinic for indigent obstetric patients; the fact that Mrs. Rivera
had not obtained any prenatal care
prior to December 5, 1986; and the fact that DeTar Hospital had no prior medical
records on Mrs. Rivera.
I. The I.G. Proved That Respondent Knowingly Violated Requirements of Section
1867 Of The Act On
December 5, 1986.
A. Section 1867 Requirements.
Section 1867 was designed to prevent inappropriate transfers of patients in
need of emergency medical care
in the United States and established criteria for the treatment and safe transfer
of any person with an
"emergency medical condition" or any woman in "active labor."
Section 1867 requires that a participating
hospital and its responsible physician must:
1. provide a medical screening examination to determine if an individual has
an emergency
medical condition or is in active labor;
2. provide stabilizing treatment to any individual with an emergency medical
condition or
treatment to any woman in active labor prior to transfer;
3. if the hospital cannot stabilize the emergency medical condition, or treat
the active labor, he
or she may be transferred to another hospital only:
a. if the responsible physician certifies in writing that the benefits of
the transfer outweigh the
risks;
b. if the receiving hospital has space and personnel to treat the patient and
has agreed to accept
the patient;
c. if the transferring hospital sends medical records along with the patient;
and
d. if the transfer is made with qualified personnel and in appropriate transportation
equipment
with necessary and appropriate life support measures.
A responsible physician in a participating hospital with an emergency department
may be subject to a civil
monetary penalty of up to $25,000 for each time the physician knowingly violates
any requirement of
Section 1867. The hospital may also be subject to a civil monetary penalty of
up to $25,000 for each
violation.
B. Mrs. Rosa Rivera's Request For Medical Treatment.
Less than three years ago, late on a Friday afternoon, December 5, 1988, an
indigent pregnant woman
sought medical assistance from DeTar Hospital in Victoria, Texas. Victoria is
a small, friendly community
about two and one-half hours southwest of Houston on U.S. Route 59. Mrs. Rosa
Rivera's blood pressure
was alarmingly high that day-- higher than most at DeTar Hospital had ever seen.
She was pregnant and
close to having her sixth child. Her membranes had ruptured. She had been having
contractions all day.
She had not previously had any prenatal care. She was concerned for her life
and for the life of her unborn
baby. Mrs. Rosa Rivera was given an initial screening examination by an experienced
labor and delivery
nurse, Tammy Kotzur, at DeTar Hospital. When Nurse Tammy Kotzur discovered that
Rosa Rivera's
blood pressure was 210/130 she was alarmed and asked Donna Kiening, her supervisor
and Head Nurse of
the OB/GYN department, to come in and double check it because it was so extraordinarily
high. The
pressure was so unusual that Nurse Kiening noted it in an incident report.
C. Dr. Burditt's Initial Reaction To Mrs. Rosa Rivera's Two Medical Conditions.
Since Nurse Tammy Kotzur was concerned about Mrs. Rivera's blood pressure of
210/130, she telephoned
Dr. Michael L. Burditt, Respondent, who was on call. Dr. Burditt, then Chief
of the OB/GYN Department
at DeTar Hospital, had worked with Nurse Kotzur in many obstetrical situations
and trusted her judgment.
Nurse Kotzur recited the alarming facts of Mrs. Rivera's conditions to Dr. Burditt
who was on his mobile
phone (she had intercepted him on his way to pick up his two daughters).
Dr. Burditt's reaction was immediate: he told Nurse Kotzur that he "didn't
want to treat this lady" and
ordered Nurse Kotzur to transfer Mrs. Rivera to John Sealy Hospital, approximately
160-170 miles away,
in Galveston, Texas. When he told Nurse Kotzur that Mrs. Rivera "should
be transferred to John Sealy
Hospital," Nurse Kotzur asked if it was because of Mrs. Rivera's blood
pressure, to which Respondent
answered "yes." I.G. Ex 1/1.
Respondent's reaction prompted Nurse Kotzur to put him on hold, turn to Nurse
Kiening, standing next to
her, and tell her that Dr. Burditt wanted to transfer Mrs. Rivera to John Sealy
Hospital. Nurse Kiening told
her to ask Respondent to call back in about five to ten minutes, which she did,
telling Dr. Burditt that she
had to "check on a few things." I.G. Ex 1/1; Tr 124.
D. DeTar Hospital's Response To Dr. Burditt's Initial Orders.
Following Nurse Kotzur's phone call with Respondent, Nurse Kiening called Jean
Herman, the Associate
Director of Nursing, at about 4:25 p.m. I.G. Ex 2/2; Tr 83,85. Nurse Herman,
Nurse Kiening's supervisor,
was the "house supervisor" on December 5, 1986. Nurse Kiening informed
Nurse Herman of Respondent's
order to transfer and that she and Ms. Kotzur thought the transfer was unsafe.
I.G. Ex 2/2; Tr 85, 124, 145,
148. Nurse Herman was concerned and asked Nurse Kiening to call Charles Sexton,
the hospital
administrator. She was asked to tell Mr. Sexton about the transfer and the nurses'
belief that the transfer
was unsafe. Nurse Kiening called Mr. Sexton and relayed that information. Nurse
Herman did not instruct
Nurse Kiening to proceed with transfer arrangements at that time, as hospital
policy required that there be a
receiving hospital and a physician to accept care before the hospital would
initiate arrangements for a
transfer. Neither a receiving hospital nor a receiving physician had yet been
obtained. Nurse Kiening
consulted the hospital administrator.
At approximately 4:30 p.m., Respondent called back and was directed to speak
to Nurse Kiening. I.G. Ex
1/1; I.G. Ex 2/2; J Ex 1/8. When Respondent called Nurse Kotzur, as requested,
she referred him to Nurse
Kiening, who told him that the nurses felt that the transfer was unsafe and
that he should talk to John Sealy
hospital personally to arrange the transfer. She said that he also had to do
a personal evaluation of Mrs.
Rivera and he replied that he was enroute to the hospital for that purpose.
Nurse Kiening also asked Respondent for permission to start an IV or give magnesium
sulfate. Respondent
told Nurse Kiening that she could start an IV only if Mrs. Rivera could be transported
by emergency
medical services (E.M.S.), but that if she could not be transported by E.M.S.,
Nurse Kiening was not to
start an IV, as Mrs. Rivera would have to be transported by private car. Nurse
Kiening did not know
whether E.M.S. was available, but she was sufficiently convinced that Mrs. Rivera's
high blood pressure
required immediate treatment that she ignored Dr. Burditt's restriction and
started an IV at 4:40 p.m. She
also placed in the "physician's orders" portion of the medical records
a 4:30 p.m. phone order, attributed to
Dr. Burditt, to start an IV.
E. DeTar Hospital And Dr. Burditt Met Their Duty Under Federal Law To Provide
For The Initial
Screening Of Mrs. Rivera.
Dr. Burditt came to the hospital around 4:50 p.m. and examined Mrs. Rivera.
He found her blood pressure
to be 210/130. He was impressed that this was the highest blood pressure he
had ever seen.
F. Dr. Burditt Knowingly Refused To Comply With The Requirements Of Section 1867.
Dr. Burditt knew that Mrs. Rivera and her unborn child were at severe risk
of stroke and death unless her
blood pressure was brought under control. At this point, Dr. Burditt should
have realized that, on balance,
the danger to Mrs. Rivera and her unborn child was far more important than his
concern about minimizing
the risk of a potential malpractice lawsuit. At this point, he should have begun
to treat Mrs. Rivera's
medical conditions. But, instead, after the initial examination and without
ordering any treatment, he
confirmed his order to transfer Mrs. Rivera and made arrangements for John Sealy
Hospital to accept her.
The nurses began a standard protocol for the administration of magnesium sulfate,
a precaution against
convulsive seizures, only after Dr. John Downing, a physician at John Sealy,
instructed Dr. Burditt to do
so.
G. The I.G. Proved By A Preponderance Of The Evidence That Dr. Burditt Falsely
Certified That The
Benefits Of Transferring Mrs. Rivera Outweighed The Risks.
1. Dr. Burditt's Reaction To Section 1867.
If it is determined that the individual has an "emergency medical condition"
or is in "active labor," the
hospital must provide treatment to "stabilize" the emergency medical
condition or treat the labor, or
transfer the individual to another medical facility only if appropriate and
only by following the
requirements in Section 1867.
The preponderance of the credible, probative evidence in the record supports
the finding and conclusion
that Dr. Burditt knowingly ordered Mrs. Rivera's transfer although: (1) Mrs.
Rivera was in "active labor"
and transfer posed a risk to her health and safety and that of her unborn child;
(2) Mrs. Rivera had an
"emergency medical condition" that had not been stabilized; and (3)
the benefits reasonably to be expected
from appropriate treatment at John Sealy Hospital did not outweigh the risks
of transferring her 160-170
miles by ambulance in her condition, accompanied only by a nurse and insufficient
life support equipment.
At about 5:00 p.m., when Respondent recorded the results of his examination,
Nurse Herman showed him
a summary of Section 1867 of the Social Security Act. She told him that, because
Mrs. Rivera was in
active labor, he could not transfer her unless he signed a certification form,
which she presented. He
remarked that Mrs. Rivera was not in active labor, that she was in early labor,
and told Nurse Herman to
give him that "dang piece of paper." He signed the certification that
the "medical benefits of transfer
outweigh the risks," telling Nurse Herman that "until DeTar Hospital
pays my malpractice insurance, I will
pick and choose those patients that I want to treat."
I held in my Ruling of December 22, 1988 that the standard of liability here
-- "knowingly" -- includes
actual knowledge, reckless disregard, or deliberate ignorance. Thus, even if
Respondent had not been
made aware of the requirements of Section 1867, or did not act intentionally
in violation of those
requirements, he was liable for acting with reckless disregard or deliberate
ignorance by not actually
engaging in any meaningful weighing of the risks and benefits of transfer. Dr.
Burditt is liable because he
so carelessly ignored the relative weights of known risks to Mrs. Rivera and
her unborn child when he
ordered a transfer, the benefits of which depended on two fragile individuals
surviving a 160-170 mile ride
bereft of treatment. He acted in reckless disregard and deliberate ignorance
of the requirements of Section
1867 and of the risks attending Mrs. Rivera's transfer.
The I.G. proved by a preponderance of the evidence that Mrs. Rivera's medical
condition demanded that
Dr. Burditt stabilize her hypertension and either delay the birth of or deliver
her child. The parties
disagreed as to whether or not he stabilized her and treated her labor prior
to transfer.
2. The I.G. Proved That Dr. Burditt Transferred Mrs. Rosa Rivera While She
Had "An Emergency
Medical Condition" That Had Not Been "Stabilized."
As a result of her hypertension, Mrs. Rivera and her fetus were at high risk
of death or serious medical
problems, including:
(1) seizures which would result in death to both the mother and child;
(2) congestive heart failure;
(3) heart attack;
(4) serious kidney dysfunction or tubularnecrosis;
(5) stroke or intracranial bleeding, which couldresult in death, total or partial
paralysis,blindness, loss
of motor control or loss of speech;
(6) placental abruption;
(7) fetal hypoxia; and
(8) death to the mother and fetus.
Dr. Burditt knew this when he ordered Mrs. Rivera's transfer. He does not dispute
that he should have
stabilized and treated her, but maintains that he did take these actions. The
preponderance of the evidence
is that he did not. Thus, Dr. Burditt violated a requirement of Section 1867.
Section 1867 required Mrs. Rivera's emergency medical condition to be stabilized
and required her active
labor to be treated because the risks outweighed the benefits of transfer and
the transfer was not made with
necessary and appropriate life support measures. By definition, "stabilized"
means that "no material
deterioration of the condition is likely, within reasonable medical probability,
to result from the transfer of
the individual from a facility." Section 1867(e)(4)(B).
The medical record shows that Mrs. Rivera arrived at DeTar Hospital in a dangerously
hypertensive
condition and remained that way through the time of her departure from DeTar
Hospital. When Mrs.
Rivera was actually transferred, her blood pressure was still very high. Dr.
Crosby noted that it "went up
and down like a roller coaster" from the time she came to DeTar Hospital
through the time she was actually
transferred.
Dr. Burditt admitted that he never re-examined or went in to check on Mrs.
Rivera after the initial
examination he made around 5:00 p.m. Tr 832, 908, 917. See also I.G
Ex 3/2; Tr 67, 134, 169-70, 512. Further, he testified that when Mrs. Nichols
discussed the laboratory
results with him at 6:30 p.m., he asked only about Mrs. Rivera's cervical status;
no mention was made of
her blood pressure. J Ex 1/11; I.G. Ex 3/2; Tr 912.
Knowing that her blood pressure was critically high at 5:00 p.m. when he signed
the "Physician's
Certificate Authorizing Transfer," Respondent deliberately ignored or recklessly
disregarded the need to
check her condition at the time of her 6:30 p.m. departure in the ill-equipped
ambulance. Respondent
knew that Mrs. Rivera's high blood pressure placed her at high risk of stroke
and maternal and fetal death.
Knowing her condition, Respondent, nevertheless failed to provide any treatment
which might have
stabilized her blood pressure, such that, within a reasonable degree of medical
probability, no material
deterioration was likely to result from the transfer. Thus, her condition was
not stabilized at the time he
ordered the transfer at 5:00 p.m. nor at the time that she was actually transferred
at 6:30 p.m.
Respondent's case is damaged by the attitude he displayed from the time he
first examined Mrs. Rivera
until the time she was transferred. His fear of having to defend himself against
malpractice if he handled a
high-risk obstetrical procedure, coupled with his anger at the nurses' resistance
to his ill-considered
decision to transfer Mrs. Rivera, took precedence over his obligation as a physician
to use his ability and
his judgment for the good of his patient. The Oath of Hippocrates states: I
will prescribe regimen for the
good of my patients according to my ability and my judgment and never do harm
to anyone." As a result
of his attitude, he never even reexamined her or learned what her blood pressure
was, let alone whether it
had been stabilized before Mrs. Rivera left DeTar Hospital.
Dr. Burditt could have ensured that no material deterioration in Mrs. Rivera's
condition was likely to occur
as a result of the transfer by stabilizing her hypertension and treating her
active labor. The hospital
administered magnesium sulfate, and I find, as Respondent correctly contended,
that this was an
appropriate means of lowering the risk of convulsions. That it did not stabilize
Mrs. Rivera's blood
pressure, or even temporarily reduce it below the danger level, is not surprising.
Four expert witnesses
(including Dr. Burross, one of Respondent's experts, Dr. Pigott, a medical fact
witness for Respondent, and
Respondent himself) all testified that magnesium sulfate is not primarily an
anti-hypertensive drug. Tr
238, 338-89, 391, 480, 651, 719-20, 874; I.G. Ex 12/13, 27, I.G. Ex 7/13-14.
Respondent noted that blood
pressure had been lowered in some patients when the administration of magnesium
sulfate had been
accompanied by bed rest, but he acknowledged that the bed rest was most likely
what caused that result.
This view is consistent with the observation made by Dr. Warren Crosby, one
of the I.G.'s experts, that:
the magnesium was given in an appropriate amount and in an appropriate way
so that the risks of
convulsions was reduced, but her blood pressure was not reduced. I think it
was necessary to treat the
blood pressure and to keep the patient at bed rest for a period of time until
she met the criteria for
"stabilization." That's another one of those terms that's difficult
to define, but basically, . . . It needs, who
knows, 24, sometimes, 6 [hours], it just depends upon the patient. But I don't
think I ever saw somebody in
which I was satisfied with one or two or three hours of observation. Tr 384-85.
I found further support that magnesium sulfate alone is not the cause for a
reduction in blood pressure in
the statement of Dr. Pritchard of Parkland Hospital (Dallas). Dr. Pritchard
had done studies on whether
magnesium sulfate lowers blood pressure, writing in a well-recognized work on
obstetrics and gynecology,
Williams Obstetrics (17th ed 1985) at p. 552 concluded:
The myth is perpetuated that parenterally administered magnesium sulfate is
a potent
antihypertensive agent. . . . Many studies in hypertensive human subjects, beginning
with those of Winkler
and co-workers (1942) in chronically hypertensive subjects and Pritchard (1955)
in women with
preeclampsia-eclampsia, have identified at most a variable and transient lowering
of blood pressure during
bolus administration of sizeable doses of the compound!
Respondent's decision to transfer Mrs. Rivera violates Section 1867 because
Mrs. Rivera's hypertension
simply was not stabilized using magnesium sulfate alone. Respondent tried to
suggest that the transfer was
appropriate in these circumstances because an alternative modality of treatment,
apresoline, was
unacceptable. Respondent was trained in the use of apresoline, but he testified
that he would not use
apresoline in a birth situation because of risk to the fetus. He mistakenly
relies on Dr. Crosby's testimony
that apresoline could cause a precipitous drop in blood pressure and result
in an anoxic insult to the unborn.
Respondent inaccurately represents Dr. Crosby as characterizing this as a strong
possibility, whereas Dr.
Crosby actually testified that the benefits of apresoline are 98 percent while
the risks are only two percent,
and that this is a very acceptable drug which is used all over the world. Tr
379, 404-05.
3. The I.G. Proved That Dr. Burditt Transferred Mrs. Rosa Rivera While She Was In "Active Labor."
Dr. Burditt contends that Mrs. Rosa Rivera was in early labor when he transferred
her and that Section
1867 does not require treatment for "any phase" of labor. R Rep Br
5. Dr. Burditt argues, in effect, that
the applicable definition of "active" labor is "the progressive
dilation and effacement of a woman's cervix
leading to child birth." R Rep Br 3,4. He maintains that "the evidence
at trial showed no effective
movement or increase in the dilation and effacement of Rosa Rivera's cervix"
while she was at DeTar
Hospital. R Rep Br 5.
As I noted earlier in this Decision, Section 1867 does require treatment of
a woman in active labor prior to
transfer unless the transfer is made with qualified personnel in appropriate
transportation equipment with
necessary life support measures.
The definition or interpretation of a word or phrase in a federal statute is
a matter of federal law and should
be viewed in light of the purpose for which Congress enacted the federal statute.
See Chapman v. Houston
Welfare Rights Organization, 441 U.S. 600, 608, (1979); United States v. Allegheny
Co., 322 U.S. 174,
183 (1944); United States v. Anderson Co., Tenn., 705 F.2d 184, 187 (6th Cir.,
1983), cert. denied, 464
U.S. 1017 (1984). Accordingly, I must interpret the word "active labor"
in light of the purpose which it
was designed to serve as a matter of federal law.
By enacting Section 1867, Congress intended to prevent hypertensive women who
are pregnant and in
"active labor" from being inappropriately transferred. Congress wanted
such "active labor" to be treated.
The term "active labor" is defined by Section 1867 (e)(2) as labor at a time at which--
(a) delivery is imminent,
(b) there is inadequate time to effect safe transfer to another hospital prior
to delivery, or
(c) a transfer may pose a threat of the health andsafety of the patient or the
unborn child.
Mrs. Rivera was in active labor within the meaning of Section 1867 at the time
Dr. Burditt ordered her
transfer at 5:00 p.m. and at the time of transfer itself, at
6:30 p.m. Tr 87, 102, 115; I.G. Ex 7/29-33; I.G. Ex 10/27-31; I.G. Ex 12/29-33.
First, the best evidence that delivery was imminent is that Mrs. Rivera delivered
approximately 30 minutes
after she left DeTar Hospital. Whether the dilation and effacement of Mrs. Rivera's
cervix had progressed
to a more active phase immediately prior to transfer cannot be established conclusively
because
Respondent deliberately ignored his responsibility to personally re-examine
her immediately prior to
transfer at 6:30 p.m., thus continuing his reckless disregard of her unsuitability
for transfer. Even aside
from the obvious fact of her delivery almost immediately after leaving DeTar
Hospital, the results of Dr.
Burditt's earlier examination and her reported symptoms up to the point of departure
indicated the strong
possibility that birth would occur before Mrs. Rivera could complete the long
ride to John Sealy Hospital.
At 4:50 p.m., when Dr. Burditt examined Mrs. Rivera, he found that she was three
centimeters dilated,
sixty percent effaced, at a -4/-3 station, the membranes were over the head
of the fetus and fluid was
palpable. The largest of her previous children was eight to nine pounds at birth,
and Dr. Burditt estimated
the fetal weight of this one at six pounds. At 5:00 p.m., when the transfer
certification was signed, Mrs.
Rivera was having contractions every three to four minutes, of moderate intensity,
and lasting forty
seconds. J Ex 1/8; I.G. Ex 2/2. When Respondent examined her at around 5:00
p.m., the fetus' head was
ballottable. By 6:30 p.m., the head had moved down to a minus two station. J
Ex 1/6, 7, 11; Tr 243, 512.
At 5:30 p.m., Mrs. Rivera's contractions were noted as occurring every three
to five minutes. At 6:24 p.m.,
they were three minutes apart. At 6:30 p.m., they were every three minutes,
lasting thirty seconds each. J
Ex 1/9, 11; J Ex 5/2. At 6:30 p.m., Mrs. Rivera was experiencing regular contractions.
I.G. Ex 7/24; I.G.
Ex 10/21-22; I.G. Ex 12/23; Tr 240, 243.
Thus, Respondent had information which made it necessary for him to personally
re-examine Mrs. Rivera
before letting her depart for a 160-170 mile ride to another hospital. He cannot
rely on his failure to re-
examine Mrs. Rivera to counter the overwhelming evidence that delivery was imminent.
Even if I accept that the dilation of the cervix had not progressed and that
this factor alone might support a
conclusion that birth was not imminent, the statutory definition of active labor
was met here in this case.
The preponderance of the evidence is that the safe transfer of Mrs. Rivera prior
to delivery could not have
been effected during the entire time needed to complete the lengthy 160-170
mile trip to John Sealy
Hospital. Mrs. Rivera had had five previous deliveries (i.e. she was multiparous)
and thus the
measurement of her cervix or any other single factor or even a combination of
factors could not be relied
upon to predict the time of delivery. The frequency and regularity of contractions
and the leaking of fluid
from membranes were enough to indicate that delivery might occur during the
ambulance ride. The fact
that it occurred so early in the ride removes any doubt about this conclusion.
Finally, this meets the Section 1867 definition of "active labor"
because there is no doubt that the transfer
posed a threat to the health of Mrs. Rivera and the fetus. This threat might
have been offset and the
transfer justified if Respondent had examined and treated Mrs. Rivera appropriately,
but he did not. He did
not stabilize her hypertension, control the progress of her delivery, examine
her immediately prior to
transfer to assure that she could safely be moved, or even assure that the transport
vehicle was properly
equipped for its urgent mission. Dr. Burditt knowingly transferred Mrs. Rivera
when it posed a risk to her
health and safety and to that of her unborn child. Dr. Burditt himself wrote
that Mrs. Rivera was at severe
risk of stroke or death and that her unborn child shared those risks. I.G. Ex
6/6; Tr 858.
Mrs. Rivera was in "active labor" within the meaning of Section 1867
if any of the elements of the
statutory definition were met. As discussed above, all three elements were proved
here by a preponderance
of the evidence. Thus, Respondent was in violation of Section 1867 by transferring
Mrs. Rivera without
treating her active labor to ensure safe delivery of her unborn child.
4. The I.G. Proved that, Dr. Burditt Transferred Mrs. Rosa Rivera "Without
Qualified Personnel and
Transportation Equipment."
Finally, in his haste to rid himself of the responsibility to care for Mrs.
Rivera, Respondent failed to ensure
that the ambulance was appropriately equipped with trained personnel or essential
life support equipment.
Given the risks to which she and her unborn child were subject in the uncontrolled
environment of an
ambulance, a physician should have accompanied her. At the very least, Respondent
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. Thus, given that Mrs. Rivera's
hypertension had not
been stabilized and given that she was in "active labor" under the
definition in Section 1867, the failure of
Respondent to assure that Mrs. Rivera was transported in a properly staffed
and equipped ambulance is
sufficient under Section 1867 to make her transfer inappropriate and a violation
of Section 1867.
For this alone, Dr. Burditt is subject to a civil monetary penalty.
II. The I.G. proved that on December 5, 1986, Dr. Burditt was a "responsible
physician," as defined
by Section 1867 of the Act.
For the reasons stated here and in my December 22, 1989 Ruling, Respondent
is a "responsible physician"
within the meaning of Section 1867 of the Act as a matter of federal law.
Section 1867(d)(2) of the Act provides:
. . . the term "responsible physician" means, with respect to a
hospital's violation of a requirement
of this section, 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.
42 U.S.C. 1395dd(d)(2).
Thus, the requirements of Section 1867 apply to the actions of physician "employed
by" or "under contract
with" a participating hospital who exercise professional responsibility
for the transfer of an emergency
patient, as here.
The Respondent argues that he is not "employed by" or "under
contract with" DeTar Hospital. The
Respondent contends that (1) he can't be an employee of the hospital because
he would then be engaged in
the corporate practice of medicine, a prohibited act in Texas, and (2) although
he has medical staff
privileges at DeTar Hospital, he is not "under contract with" the
hospital because medical staff bylaws have
never been accorded the status of a contract under Texas law, especially with
regard to private hospitals.
DeTar is a private hospital.
As stated earlier, it is axiomatic that the interpretation and definition of
a federal statute and its terms is
controlled by federal and not state law. Also, a phrase in a federal statute,
such as the phrase "responsible
physician," must be interpreted and defined in light of the purposes for
which Congress enacted it.
Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 608, (1979). Conversely,
a conclusion
that a Texas physician is "under contract with" a hospital, as that
term is defined in Section 1867 of the
Act, is not a definition of that term under State legislation.
I conclude that, as a matter of federal law, if a staff physician acts to fulfill
a hospital's duties to provide
emergency services to the community as a condition of maintaining his privileges
at a hospital, the
physician is acting "under contract with" that hospital for the purposes
of Section 1867(d)(2) of the Act.
To hold otherwise would defeat the principal purpose for which Section 1867
was enacted, to prevent the
inappropriate transfer of poor and disadvantaged persons from hospital emergency
departments. A
definition which does not include such a key actor in violation of the requirements
of Section 1867 would
make Section 1867 of the Act ineffective against violations; Congress certainly
did not intend such a
result. Also, I am influenced by the fact that the American Medical Association
characterizes medical staff
bylaws as a binding contract between the medical staff and the hospital:
Medical staff by-laws adopted and approved by the parties constitute a contractual
undertaking
that is equally binding on the governing body and the 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).
The fact that Congress recently amended Section 1867 to clarify this issue,
as pointed out by the
Respondent in his December 16, 1988 brief, serves to reinforce my interpretation.
DeTar Hospital must follow the requirements of Section 1867 of the Act by delegating
to qualified
physicians, nurses, and other qualified medical personnel the duty to determine
whether a candidate for
transfer has an "emergency medical condition" or is in "active
labor." They must decide whether a patient
would be better cared for at another facility and, if so, whether that patient
can withstand the dangers of
transfer.
Congress clearly recognized that hospitals would be relying on the judgment
of physicians and provided
for a civil monetary penalty against a "responsible physician" for
a hospital's knowing violation of the
statute. As a member of the active medical staff and Chief of OB/GYN, Dr. Burditt
made certain promises,
agreeing that if he were granted staff privileges, in return he would be bound
by the hospital by-laws and
the rules and regulations of the medical staff.
DeTar Hospital's benefits to Respondent and the other members of its active
medical staff are the right to
admit patients to the hospital without limitation and to command the resources
of the hospital, its facilities,
and employees for the care of those patients. In exchange for these benefits,
Respondent promises to take
part in the care and treatment of "unaligned" obstetrical patients.
Respondent's mutually dependent and
mutually beneficial relationship with DeTar Hospital is contractual. In exchange
for the privilege of
admitting his patients without limitation, and the privilege of commanding the
resources of the hospital
staff and facilities to care for and treat them, without which he could not
effectively earn his livelihood,
Respondent agreed to perform services for DeTar Hospital, among them the care
of unaligned obstetrical
patients.
The I.G. alleges, and the Respondent apparently does not dispute, that the
Respondent agreed to treat
unaligned obstetrical patients who came to DeTar's emergency room, and the hospital
agreed to allow the
Respondent to admit his own patients and to use the hospital's personnel and
resources to treat them. Thus,
Respondent is a "responsible physician" within the meaning of Section
1867.
III. The Amount of the Civil Monetary Penalty, as Modified, is Reasonable and
Appropriate Under
the Circumstances of this Case.
The evidence in the record proves that the amount of the penalty should be
reduced because of mitigating
circumstances. Mitigating circumstances are those circumstances which "do
not constitute a justification or
excuse of the offense in question but which, in fairness and mercy, may be considered
as extenuating or
reducing the degree of moral culpability." (Emphasis added) Black's Law
Dictionary 1153 (4th ed. 1968)
I held that the Regulations set forth guidelines to be followed in this case
in determining the amount of the
penalty to be imposed against Dr. Burditt. The language of Section 1867(d)(2)(B)
calls for a civil money
penalty of up to $25,000 for "each violation". It is the duty of the
ALJ to consider and weigh the
circumstances proven by a preponderance of the evidence, and to determine the
weight each will be
accorded in determining the penalty to be imposed. In the present case, there
are both mitigating and
aggravating circumstances proven by a preponderance of the evidence. Some, but
not all, of the mitigating
circumstances were taken into consideration by the I.G. in determining the amount
of the penalty imposed
against Dr. Burditt. Also, there were some mitigating circumstances the I.G.
considered but did not accord
the same weight which I do. Those circumstances which were not considered and
which were given lesser
weight are significantly mitigating to require a reduction in the penalty imposed
against Dr. Burditt.
The evidence in this case proves that Dr. Burditt's unfortunate reaction to
Mrs. Rivera's medical conditions
was influenced by her lack of prenatal care and, in particular, the absence
of a prior medical history of her
condition. His fear of being the subject of a malpractice action was intensified
by the presence of her
serious hypertension and the absence of any medical evaluation and history of
her hypertension, and the
fact that she had not previously been under the care of a physician regarding
her pregnancy. One of the
predominant benefits of prenatal care is the opportunity for early recognition
and treatment of
hypertension. Mrs. Rivera testified during the hearing that she had been advised
of the potential for
hypertension at the time of her pregnancy with her fifth child. Given these
factors, his culpability in
recklessly disregarding and deliberately ignoring the requirements of Section
1867 is lessened. Of course,
he remains liable for his ill-considered decision to transfer Mrs. Rivera.
These circumstances were not mentioned in the I.G.'s Notice of Determination.
They are mitigating
circumstances proven by a preponderance of the evidence and require a reduction
in the proposed penalty.
Dr. Burditt testified that he had made a decision to limit his practice to
low-risk patients because he was a
solo practitioner. The obvious fear of malpractice suits unfortunately influenced
his decision in this case.
He also testified that he was divorced and that one of the considerations in
limiting his practice to low-risk
patients was to be able to spend more time with his teenage daughter, who lived
with him. Although these
circumstances are understandable, they do not relieve him from his liability
for violation of Section 1867,
nor do they diminish his culpability for actions on December 5, 1986, with respect
to Mrs. Rivera. Dr.
Burditt was on call and accepted the responsibility of being called to the emergency
room of DeTar
Hospital and of having to treat someone who was a high-risk patient. Doctors
simply do not have the
luxury of not treating someone in Mrs. Rivera's condition and situation. The
fear of malpractice suits and
the financial burden of high malpractice insurance costs are nationwide problems,
which all doctors must
face and solve through concerted action and in cooperation with governmental
entities.
Dr. Burditt argues that the distraction of having to treat another unaligned
emergency patient (Mrs.
Ramirez) at the same time is a mitigating circumstance. Dr. Burditt's treatment
of Mrs. Ramirez is proof
that he does not transfer patients solely because they are unaligned. In fact,
Respondent introduced a list of
the unaligned patients he has treated. However, he was not totally occupied
with Mrs. Ramirez's delivery
until 6:18 p.m. He had more than enough time for the crucial last-minute pre-transfer
examination he
should have performed on Mrs. Rivera, as well as the time to treat Mrs. Rivera's
condition. The presence
of another unaligned patient requiring emergency treatment does not diminish
Respondent's culpability.
Dr. Burditt was capable of handling and could be expected to handle, such a
responsibility as the "on call"
physician. Also, there were two other physicians present who could have assisted
him, and one of these
doctors did help deliver Mrs. Ramirez's child. Dr. Burross, one of Respondent's
expert witnesses,
commented that Dr. Pigott, who was also on call, should have been asked to help.
Finally, Dr. Burditt also testified that he has been engaged in extensive efforts
to prevent this kind of
situation from occurring in the future. He testified that he has utilized both
his time and services to attempt
to improve the transfer system since 1986, and has worked to establish a networking
system with
surrounding tertiary hospitals. Dr. Burditt further testified about his participation
in local efforts to provide
care for indigent obstetric patients. These patients will have a prenatal record
which will provide patients,
such as Mrs. Rivera, the prenatal care necessary to ensure safe delivery of
their babies and prenatal records
to assist doctors in the early diagnosis and treatment of such conditions as
hypertension. Corrective steps
within the meaning of the Regulations have been taken by Dr. Burditt. These
are commendable and
constitute mitigating circumstances proven by a preponderance of the evidence.
They were either not
considered by the I.G. or considered significant enough by the I.G., and this
requires a reduction in the
penalty imposed.
There are aggravating circumstances which the I.G. considered and accorded
proper weight. In the Notice
of Determination, dated April 26, 1988, the I.G. states that the "obstetrical
nurses at DeTar Hospital
attempted to dissuade Dr. Burditt from transferring Mrs. Rivera but were unsuccessful."
The Notice
properly lists this, Respondent's failure to re-examine Mrs. Rivera, and his
refusal to treat her upon her
return to DeTar Hospital as factors which enhance his culpability.
Section 1867 of the Social Security Act is aimed at deterring certain conduct,
rather than penalizing a
hospital or doctor. The penalties are designed to insure that a violation does
not happen again and that
efforts are made by doctors and hospitals to ensure this goal. In the present
case, it would appear that these
efforts have been made by Respondent and DeTar Hospital and that, in the time
since this incident arose,
women in Mrs. Rivera's situation and their unborn children have not been put
at risk because of the lack of
prenatal care.
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.
I conclude that a civil monetary penalty of twenty thousand dollars ($20,000)
is appropriate under the
circumstances of this case.
ORDER
Based on the evidence in the record and Section 1867 of the Act, it is hereby
Ordered that Respondent pay
a civil monetary penalty of twenty thousand dollars ($20,000) for his violations
of Section 1867 on
December 5, 1986.
______________________________
Charles E. Stratton
Administrative Law Judge