Board of Physicians v. Bernstein

• Decision Date: 08 March 2006
• Docket Number: No. 1594, September Term, 2004.,1594, September Term, 2004.
• Parties: STATE BOARD OF PHYSICIANS v. Steven BERNSTEIN.
• Court: Court of Special Appeals of Maryland

Page 621

894 A.2d 621

167 Md. App. 714

STATE BOARD OF PHYSICIANS v. Steven BERNSTEIN.

No. 1594, September Term, 2004.

Court of Special Appeals of Maryland.

March 8, 2006.

COPYRIGHT MATERIAL OMITTED

Thomas W. Keech (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellant.

M. Natalie McSherry (Whiteford, Taylor & Preston, LLP, on brief), Towson, for appellee.

Panel DAVIS, DEBORAH S. KRAUSER, JJ.

DEBORAH S. EYLER, J.

The Maryland Board of Physicians ("Board"), the appellant, challenges a judgment of the Circuit Court for Baltimore County reversing the Board's decision reprimanding Steven Bernstein, M.D., the appellee, for failing to comply with appropriate standards of care.

The Board presents two questions for review, which we have consolidated into one: Was the Board's decision supported by substantial evidence in the agency record?¹

For the following reasons, we shall vacate the decision of the circuit court, and remand the matter to that court with instructions to remand the matter to the Board for further proceedings not inconsistent with this opinion.

STATUTORY SCHEME

Before recounting the facts, we shall review the process used by the Board to investigate and adjudicate complaints against physicians.

Physicians in Maryland are governed by the Medical Practices Act ("the Act"), Md. Code (1982, 2000 Repl.Vol.), section 14-101 et seq. of the Health Occupations Article ("HO"). At the pertinent time in the case, the Act was administered by a 15-member Board.² HO § 14-202(a). The Board, comprised of physicians and consumers, is responsible for the licensure and discipline of physicians in Maryland. It has adopted regulations governing the disciplinary process that are codified in the Code of Maryland Regulations ("COMAR") 10.32.02.

The Act authorizes the Board to reprimand a licensed physician, place a licensee on probation, or suspend or revoke a license to practice medicine for enumerated reasons, including the failure "to meet appropriate standards as determined by appropriate peer review for the delivery of quality medical and surgical care performed in an outpatient surgical facility, office, hospital, or any other location" in Maryland. HO § 14-404(a)(22).

When an allegation that may constitute grounds for disciplinary action under the Act comes to the Board's attention, the Board generally initiates an investigation. HO § 14-401(a); COMAR 10.32.02.03A. If the allegation concerns the standard of care and, after an investigation, the Board elects to pursue further investigation, the Board then refers the complaint to the Medical and Chirurgical Faculty of Maryland ("Med Chi") physician peer review. HO § 14-401(c)(2); COMAR 10.32.02.03(B)(1).

The Board and Med Chi have adopted a "Peer Review Handbook" that governs the peer review process. Med Chi prepares a report addressing the allegations against the physician and submits it to the Board.

After receiving the Med Chi report, the Board determines whether reasonable cause exists to charge the physician with a failure to meet appropriate standards of care. COMAR 10.32.02.03(B)(2). If the Board files a charge, it refers the matter to an administrative prosecutor and sends notice to the physician. COMAR 10.32.02.03(C)

At that point, the physician is entitled to a contested case hearing before an administrative law judge ("ALJ"), in the Office of Administrative Hearings ("OAH"), pursuant to the Administrative Procedure Act, Md.Code (1984, 1999 Repl.Vol.), section 10-201 et seq. of the State Government Article ("SG"). HO § 14-405(a); see also COMAR 10.32.02.03(D). Following the hearing, the ALJ issues findings of fact, conclusions of law, and a proposed disposition. COMAR 10.32.02.03(E)(10). When the charge against the physician is failure to meet appropriate standards under HO section 14-404(a)(22), the standard of proof is clear and convincing evidence. HO § 14-105(a)(3).

Either party may file exceptions to the ALJ's findings and proposed disposition. COMAR 10.32.02.03(F).

The Board is not bound by the decision of the ALJ. Compare Md.Code (1994, 2005 Repl.Vol.), § 11-110 of the State Personnel and Pensions Article (providing that "the decision of [OAH] is the final administrative action"). After receiving the ALJ's proposed decision, the Board must review the record and the ALJ's proposal, and hold a hearing on any exceptions. COMAR 10.32.02.03(F). It then issues a final decision stating its findings of facts, conclusions of law, and a disposition of the charge. COMAR 10.32.02.03(E)(10).

The Board's final decision is subject to judicial review in the circuit court in accordance with the Administrative Procedure Act, and then to appeal to this Court. HO § 14-408(b).

FACTS

The basic, first-level facts in this case are not in dispute.

The appellee is a Board-certified anesthesiologist. He obtained his undergraduate degree from the University of Maryland in 1979 and his medical degree from The John Hopkins Medical School in 1983. He completed a residency in anesthesiology at The John Hopkins Hospital in 1986, and a fellowship in anesthesiology, also at Hopkins, in 1987. When the events in this case happened, he was an employee of Parkway Anesthesia, the anesthesiology group for Union Memorial Hospital in Baltimore.

On October 12, 1998, in the afternoon, Patient A, an 82-year-old woman, was transported to Union Memorial's emergency room after she fell off a small stool at her home, injuring herself. She had a past medical history of colon cancer treated by resection and chemotherapy beginning in April of that year. She was diagnosed with a fractured left hip and admitted to the hospital at about 5 p.m.

Patient A was evaluated by Frank Ebert, M.D., an orthopedic surgeon, who recommended a left total hip replacement. The surgery was scheduled for the following evening, October 13, 1998.

The appellee was the anesthesiologist on call at Union Memorial from 3 p.m. on October 13 until the next morning. Thomas Davis, a certified registered nurse anesthetist ("CRNA"), also was on call. Davis was the chief nurse anesthetist at Union Memorial and had worked as a CRNA for about 30 years. The appellee had worked with Davis since 1987. A second CRNA, whose name is not disclosed in the record, and had no involvement in Patient A's case, also was on duty.

An EKG and chest X-ray taken prior to surgery showed that Patient A had a normal sinus rhythm with a rate of 82, a left axis deviation, and some premature ventricular contractions ("PVCs"). She had a blood oxygen saturation ("Sa02") of 92.5%. The EKG also showed the possibility of a past myocardial infarction, i.e., "heart attack," sometime after her evaluation in April 1998. Patient A's partial thromboplastin time ("PTT"), or measure of blood coagulation, was 20, which is low.

Dr. Waiel Samara, an internist, examined A and cleared her for surgery. He found "no evidence of acute cardiac event." He also found that she was "hemodynamically stable, asymptomatic," and that there was "no need for any intervention." He noted that Patient A had PVCs. He did not remark on the possibility of a past myocardial infarction. An orthopedic admission physician also performed a preoperative evaluation. He noted that he had counseled Patient A and her son about the risks of the surgery.

CRNA Davis examined Patient A on the evening of the surgery, at about 7:30 p.m. He completed a form entitled "anesthesia evaluation and post anesthesia record." The form reflects that Davis reviewed Patient A's chart, discussed general anesthesia with Patient A and her daughter, and then obtained informed consent. Patient A and her daughter signed a "consent to anesthesia form," stating, "I authorize and consent to the provision of anesthesia service(s) by ____ or other members of the Department of Anesthesiology." Davis wrote his name and "CRNA" in the blank. The form listed the risks of general anesthesia and noted that Patient A's risk of potential blood loss was "moderate." Davis did not note Patient A's Sa02 on the form.

Davis assigned Patient A an ASA rating of three, which means that she had disease processes that were not well controlled and that her potential for complications resulting from anesthesia was increased over normal. The ASA rating is based on the patient's overall health.

The appellee did not examine Patient A or review her chart prior to the surgery.

At approximately 7:15 p.m., the appellee was providing anesthesia services to another patient. Dr. Peter Mulaikal, another anesthesiologist, told him that there were two cases remaining for surgery that evening: an emergency appendectomy and Patient A's hip replacement. Dr. Mulaikal agreed to work on the appendectomy. Davis was assigned to Patient A.

After the appellee was finished treating the patient he was assigned to, at 7:45 p.m., he went to the room where Dr. Mulaikal was working on the appendectomy, to relieve him. While the appellee was working on the appendectomy, Davis came into the operating room to discuss his evaluation of Patient A and her anesthesia plan. The discussion lasted about a minute. The appellee approved the plan but did not read Patient A's chart. Davis did not discuss Dr. Samara's evaluation with the appellee.

At approximately 8:00 p.m., Davis administered the anesthesia to Patient A. During induction, Patient A's blood pressure dropped from 145/65 to 105/45. Davis administered medication to raise Patient A's blood pressure. After 10 to 15 minutes, her blood pressure rose to 150/68.

During the surgery, Patient A experienced significant blood loss. Davis requested blood from the hospital's blood bank but compatible blood was not immediately available. Patient A experienced additional periods of hypotension, with her blood pressure dropping as low as 85/40, at 9:20 p.m. She also experienced tachycardia, which is an abnormally elevated heart rate.

The appellee finished providing services to the appendectomy patient at around...