Franz v. Board of Medical Quality Assurance

• Decision Date: 08 April 1982
• Citation: 642 P.2d 792,181 Cal.Rptr. 732,31 Cal.3d 124
• Court: California Supreme Court
• Parties: , 642 P.2d 792 Joseph Walter FRANZ, Plaintiff and Appellant, v. BOARD OF MEDICAL QUALITY ASSURANCE, Defendant and Respondent. L.A. 31314.

Page 732

181 Cal.Rptr. 732

31 Cal.3d 124, 642 P.2d 792

Joseph Walter FRANZ, Plaintiff and Appellant, v. BOARD OF MEDICAL QUALITY ASSURANCE, Defendant and Respondent.

L.A. 31314.

Supreme Court of California In Bank.

April 8, 1982.

As Modified on Denial of Rehearing May 20, 1982.

Fidler, Bell & Dyer, Morgan & Miceli, Victor L. Miceli, Riverside, Selvin & Weiner and Paul Selvin, Los Angeles, for plaintiff and appellant.

George Deukmejian, Atty. Gen., and M. Gayler Askren, Deputy Atty. Gen., for defendant and respondent.

NEWMAN, Justice.

Joseph Franz appeals from a judgment denying a writ of mandate against the Board of Medical Quality Assurance (Board). The Board, acting through its Division of Medical Quality, suspended his physician-and-surgeon license for one year and placed him on ten years' probation ¹ after finding him guilty of gross negligence, dishonesty, and falsifying a medical document. (Bus. & Prof.Code, §§ 2234, subds. (b), (e), 2261, former §§ 2361, subds. (b), (e), 2411.) ² Since three of the findings of gross negligence are not supported by the record we direct that the penalty be reconsidered.

In January 1974 Wayne Wollweber consulted Dr. Franz, a general practitioner, because of abdominal pain. He had a 25-year history of recurrent peptic ulcer with episodes of perforation. In April 1974 Franz referred Wollweber to a surgeon, Dr. Tiffany, who performed surgery at Tustin Community Hospital (Tustin) with Franz' assistance. After the operation Wollweber developed pneumonia. In July 1974 Franz himself performed a hemorrhoidectomy on Wollweber at Tustin; the patient again had postsurgical lung problems. There was testimony that the two operations with their complications made him a high risk for further surgery.

He complained of increasing abdominal pain. In October 1974, after examining X-ray reports and a gastric-juice analysis done at Tustin, Franz concluded that exploratory surgery was necessary. He suggested Anaheim Doctors' Hospital (Anaheim)--a private, 24-bed institution where he had staff privileges. Unlike Tustin and Good Samaritan, another nearby hospital, Anaheim had no intensive care unit (ICU) or respirator.

Franz scheduled the surgery for October 7 and expected complications. He asked one of the owners of Anaheim, Dr. Olivet, whom Franz believed to be chief of surgery there, to recommend a surgeon. Olivet suggested Dr. Ali, who was board-certified. On October 6, after admission to the hospital, Wollweber signed a consent form that listed Olivet and Franz, but not Ali, as his surgeons.

On October 7, just before the operation, Franz and Ali conferred for the first time.

Franz showed Ali the results of the preoperative X-rays and tests Franz had ordered. Ali then performed a subtotal gastrectomy, Franz assisting. A portion of the stomach [642 P.2d 795] was removed, and a new opening was created from the top of the stomach into the middle of the small intestine. The duodenum was bypassed and sewn shut. Ali used absorbable sutures. Franz doubted that was correct procedure but said nothing. No acid-secreting glands were removed.

Ali and Franz jointly assumed responsibility for Wollweber's care in the week after the operation. Though each of them entered progress notes and orders on Wollweber's medical chart, they did not communicate with each other. Franz questioned the wisdom of several of Ali's orders but neither countermanded them nor discussed them with Ali.

On October 8 the patient was restless and in pain; and there was fresh blood on his dressing and around the surgical drain, an indication of internal bleeding. On October 9 and 10 he had a "spiking" fever that varied from 99 to 103 degrees. Though the spikes were not ascending, those symptoms could indicate sepsis--a serious, continuing, blood infection. His pulse and blood pressure also fluctuated markedly, and four units of whole blood were administered. Yet Franz' chart-notes at one point indicated that the patient was stable.

On October 11 Franz saw symptoms of pneumonia. He also suspected pulmonary embolism and ordered laboratory tests. Apparently the orders were not countersigned by the floor nurse and executed until the evening of October 12.

Meanwhile, on either October 11 or 12, Franz asked Dr. Fernandez, an internist on the staff, for a consultation. Fernandez did not examine Wollweber until the evening of October 12. He noticed tachypnea--rapid, difficult breathing--and an elevated pulse rate. He too suspected pulmonary embolism and considered the more-remote possibility of a ruptured stomach. He ordered tests that were completed shortly after 11 p.m. on the 12th. The results, including abnormal phosphate and bilirubin levels, were further indicators of embolism or perforation. Franz testified he discussed the patient's condition with Fernandez by telephone that evening. Fernandez testified that Franz was not available by telephone.

On the morning of the 13th Fernandez became alarmed by Wollweber's deteriorating condition. The timing of events that followed is unclear. Olivet's testimony placed many of them in the predawn hours; other witnesses, including Franz, testified to a later time-frame. Fernandez telephoned Olivet and asked him to attend the patient. When Olivet arrived he noticed the patient was stuperous and had a distended abdomen. At some point Franz arrived. X-rays were taken. The patient began to complain of left-shoulder pain, a symptom characteristic of rupture of the sutured duodenal stem (a "duodenal stump blowout"). X-rays confirmed that catastrophic diagnosis.

Olivet telephoned Ali, but (despite pleas of urgency) whoever answered Ali's phone said he was not available. Franz finally reached Ali, who said there was nothing to worry about and he would see the patient later. Franz and Olivet took this to mean Ali had abandoned the patient. Olivet and other personnel then tried to obtain another surgeon for emergency repair-surgery. All those contacted declined to intervene.

Believing Wollweber was in extremis and could not be moved, Olivet decided to do the surgery himself--though he was not a surgeon, had never repaired a duodenal stump blowout, knew the operation would require great skill, and felt unqualified. The mortality rate for surgery of this kind is 80 percent. Franz did not object when Olivet decided to operate, and Franz assisted.

The postoperative report notes that the stump of the duodenum, sutured by Ali on October 7, had ripped open, spilling stomach contents into the peritoneum. Olivet resutured the stump but apparently made no thorough effort to drain and sterilize the peritoneal cavity.

Olivet and Franz participated in Wollweber's postoperative care along with Fernandez.

The patient's condition continued to deteriorate. Fernandez concluded on October 14 that Wollweber was critically ill and in danger of respiratory failure. He decided that more thorough care was needed and transferred Wollweber to Good Samaritan on his own responsibility.

Wollweber was connected to a respirator on October 15, the day Franz left on his vacation. There was new internal bleeding. On October 19 Dr. Shirokov, a surgeon at Good Samaritan, decided the patient would die without a third operation. Shirokov's surgery revealed that Olivet's emergency repair had split open. Wollweber remained on a respirator; but on October 22 a power failure occurred at Good Samaritan, during which the respirator did not function. Wollweber went into cardiac arrest and died at 10:50 a.m. There was testimony that the respirator failure was not a significant cause of death.

CHARGES AND FINDINGS

At the outset, the Board accused Franz of gross negligence and incompetence on two theories. First, it charged, he was liable for retaining Ali, an unskilled surgeon, then failing to intervene when Ali committed extreme violations of surgical and treatment standards. The charges based on failure to intervene were stricken later.

Second, the accusation asserted, Franz himself rendered grossly deficient treatment by making chart entries that were misleading and too optimistic, allowing food by mouth, ignoring symptoms of the blowout, ordering a barium test dangerous in the circumstances, and failing to obtain a competent surgeon when Ali abandoned the patient.

The Board also charged Franz with dishonesty and falsifying medical documents. It alleged that Franz had engaged in the practice of "ghost surgery" by concealing the identity of the surgeon in the consent form and in conversations with the patient; also, that Franz misrepresented the seriousness and risks of the operation and that entries on the postoperative chart were dishonest.

The matter was heard in October 1977 and February 1978 before a panel of Medical Quality Review Committee No. 13. Two of the three members were physicians, and an administrative law judge presided. The seven-member Division of Medical Quality (Division) ³ adopted the panel's findings that Franz was grossly negligent in (1) choosing Anaheim, since it had no adequate ICU and Wollweber was a high-risk patient, (2) scheduling surgery before obtaining a surgeon, (3) failing to communicate with Ali until the day of the operation notwithstanding actual or constructive knowledge that Ali was unprepared, (4) failing to communicate directly with Ali in the course of postoperative care, (5) failing to consider and note the results of the October 12 tests, and (6) failing to obtain a competent surgeon to repair the blowout after he knew or should have known that Ali had abandoned the patient.

The panel and Division found that Franz was dishonest and had falsified a medical document by intentionally (1) failing to advise that Ali was the surgeon and that Wollweber's consent to his being surgeon was necessary, and (2) misrepresenting the identity of the surgeon on the consent form. Findings were made that, though Ali was grossly negligent in many ways, neither Franz' method of...