Albanna v. State Bd. Regis. Healing Arts

• Citation: 293 S.W.3d 423
• Decision Date: 30 June 2009
• Docket Number: No. SC 89809.,SC 89809.
• Parties: Faisal J. ALBANNA, M.D., Respondent, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Appellant.
• Court: Missouri Supreme Court

293 S.W.3d 423

Faisal J. ALBANNA, M.D., Respondent, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Appellant.

No. SC 89809.

Supreme Court of Missouri, En Banc.

June 30, 2009.

Glenn E. Bradford, Brian W. McEachen, Glenn E. Bradford & Associates, P.C., Kansas City, MO, for Appellant.

James B. Deutsch, Thomas R. Schwarz, Jr., Blitz, Bardgett & Deutsch, L.C., Jefferson City, MO, J. Thaddeus Eckenrode, Mark D. Schoon, Eckenrode-Maupin, St. Louis, MO, for Respondent.

MICHAEL A. WOLFF, Judge.

Introduction

This physician disciplinary appeal requires the Court to interpret and apply the statutory grounds of "[a]ny conduct or practice which is or might be harmful or dangerous to the mental or physical health of a patient or the public; or incompetency, gross negligence or repeated negligence" in the performance of professional duties, section 334.100.2(5),¹ and the standard of "unprofessional conduct," section 334.100.2(4).

In doing so, the Court takes note of the distinction between an individual act of professional negligence — which may be remedied in tort law on behalf of an injured person — and unprofessional conduct and other matters specified in the disciplinary statute — which are the regulatory standards that the licensing agency, the Board of Registration for the Healing Arts, applies for the protection of the public.

Although there is a distinction between the licensing discipline standards that the board enforces in the public interest and the tort standards by which private wrongs are remedied, the statute has incorporated "repeated negligence" into the description of disciplinable conduct so that the legal norms for professional discipline and professional liability are related. This is particularly true because "repeated negligence" is defined simply as "the failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances" by members of the profession. Sec. 334.100.2(5). Moreover, the definition includes conduct or a practice that is or might be harmful or dangerous to "a patient" as well as the public. Id.

The grounds for discipline in section 334.100.2 are many and varied. Because the statute has many specifications, it is important to confine professional discipline to matters that the statute specifies. Within this broad statutory scheme lies wide-ranging discretion for the board to determine which practitioners should be subject to discipline, subject to review of the Administrative Hearing Commission to hear the evidence and decide whether the facts support the board's charges. The commission's decision is subject to review in the courts for legal error, in accordance with article V, section 18 of the Missouri Constitution.

This case is an example of the regulatory scheme in action, for the board instituted an action against Dr. Faisal Albanna, a neurosurgeon, citing six patients who the board believes were injured as a result of Albanna's "unprofessional conduct" and "repeated negligence," among other charges. The commission sustained the board's position as to two of the patients and rejected the board's charges as to the other four. On the basis of the commission's decision upholding the board's position as to the two patients, the board imposed discipline consisting of five years of probation, during which Albanna will be required to obtain extensive informed consent from his surgical patients and to refer them for second opinions prior to performing surgery.

Factual Background

Albanna has a current and active license to practice medicine in Missouri. He was born in Iraq and educated in Vienna, Austria, where he also completed two years of a general surgery residency and five years of a neurosurgical residency. He is board certified in neurosurgery in Missouri and has been practicing in Missouri since 1987. This appeal arises out of a complaint against Albanna the board filed with the commission in 2003. Relevant to the present appeal are the cases of the two patients — identified as SW and CW — as to which the commission sustained the board's charges of negligence constituting unprofessional conduct.

Patient SW

SW came to Albanna in 1996 complaining of neck problems causing severe pain and interfering with her ability to work. Prior to seeing Albanna, SW had surgery to fuse two of her vertebrae. Initially, Albanna advised the patient to undergo traction and take a prescribed muscle relaxant — a conservative course of treatment. SW responded poorly to traction, complaining of severe pain both during and after traction. Albanna then ordered a number of diagnostic tests, including a myelogram — an X-ray procedure in which dye is injected into the spine — and an MRI. Albanna interpreted the myelogram to reveal spinal stenosis, a condition in which the spinal cord narrows, pinching spinal nerves.

Albanna recommended that SW continue traction, which SW was reluctant to do. Albanna informed SW that she had three options: 1) live with the pain; 2) continue the conservative therapy; or 3) undergo surgery. SW chose surgery. Following SW's choice of treatment, Albanna surgically fused SW's cervical vertebrae, C3 to C7, and performed a laminectomy, a procedure in which the posterior arch of a vertebra is excised. Following the surgery, SW sought a second opinion from Albanna's former partner, Dr. Greg Bailey, who told SW that the surgery had been unnecessary.

Patient CW

CW was a construction worker who came to Albanna in 1998 after injuring himself at work, complaining of pain in his legs and back. He had been seeking daily or twice-daily treatment from a chiropractor for three weeks. After conducting a physical examination of CW, Albanna ordered an MRI and a CT scan and diagnosed CW with a "huge disc herniation central in location at L4-L5, mild disc degeneration at L3-L4 and L5-S1, a mild bulge at L3-L4, and moderate disc degeneration at L4-L5." Based on this diagnosis, Albanna recommended that CW undergo a "bilateral lumbar microlaminectomy, microdiskectomy L4-L5, and posterior lumbar interbody fusion." Albanna did not order a bone scan, a diskogram or a back brace.

A posterior lumbar interbody fusion, or "bone fusion," involves the insertion of a hollow metal screw, or "cage," into the spine to fuse together the vertebrae to stabilize them. Before inserting a cage, a surgeon must perform a laminectomy, a procedure removing the back of the spine, to move the nerves out of the way. The cages are filled with bone and inserted into the disk space in the front of the spine. The cages hold the vertebrae in place until the bone fuses. The proper placement of the cages is crucial to prevent the cages from failing to thread into the bone. A diskectomy is a much less complex procedure and involves a simple removal of the herniated disk.

In CW's surgery, Albanna filled the cages with bone material from CW's laminectomy area. Albanna also used a substance called Pro Osteon that was approved for use in bone fractures but had not yet been approved for use in surgical fusions. Albanna did not inform CW that he was intending to use Pro Osteon for an off-label purpose.

After the procedure, CW complained of burning pain in his leg and occasional numbness and tingling. CW subsequently was admitted to the emergency room, complaining of severe lower back and leg pain. X-rays taken October 29, 1998, showed that the bone had failed to fuse and that the left cage had migrated and was pushing on the nerves in the spinal canal, probably causing CW's leg and back pain. CW saw Albanna in October 1998 and November 1998. Albanna's November evaluation stated that CW's "diagnostic x-rays and CT scan of the lumbosacral spine show unchanged position of the Ray cages and L4-L5 and fusion in progress." The commission found that the October 1998 X-rays indicated that the position of the cages had changed and that the bone was failing to fuse.

CW had subsequent surgery in March 1999 to remove the left cage and perform a bone fusion. This corrective surgery was performed by another surgeon.

Procedural History

The complaint the board filed alleged violations of section 334.100.2(4) and (5) involving six separate patients. The commission found in favor of the board on two counts, those pertaining to patients SW and CW. Specifically, the commission made the following findings:

First, as regards SW, the commission found that Albanna performed an inappropriate operation on SW and that his conduct amounted to negligence, unprofessional conduct and conduct that might be harmful to a patient.

Second, the commission's findings as to CW can be summarized as follows:

1) Additional diagnostic procedures were necessary before subjecting CW to a fusion as well as a diskectomy, and Albanna's failure to differentiate between muscular and disk pain through such additional procedures violated the standard of care and was conduct that was harmful to the patient;

2) Performing fusion surgery on CW rather than the simpler diskectomy procedure was a violation of the standard of care and was conduct that was harmful to the physical health of the patient;

3) Albanna violated the standard of care in failing to get CW's informed consent to use Pro Osteon off-label;

4) Because Albanna's surgical technique in this case destabilized CW's spine and contributed to the failure of the fusion, aspects of Albanna's surgical technique fell below the standard of care;

5) Albanna's failure to recognize and correct the failed bone fusion violated the standard of care and constituted unprofessional conduct and conduct that was harmful to the mental and physical health of the patient;

6) Albanna's failure to document the full extent of the operation fell below the standard of care;

7) Albanna's representation that CW's fusion was progressing when there was no fusion fell below the standard of care;

8) All of the above stated findings constituted cause to discipline Albanna for...