Glowacki v. State, Bd. of Medical Examiners, 93-264

• Decision Date: 25 May 1994
• Docket Number: No. 93-264,93-264
• Parties: Vincent J. GLOWACKI, Appellant. v. STATE OF IOWA BOARD OF MEDICAL EXAMINERS, Appellee.
• Court: Iowa Supreme Court

Page 881

516 N.W.2d 881

Vincent J. GLOWACKI, Appellant. v. STATE OF IOWA BOARD OF MEDICAL EXAMINERS, Appellee.

No. 93-264.

Supreme Court of Iowa.

May 25, 1994.

Charles W. Brooke of Noyes, O'Brien, Gosma & Brooke, Davenport, for appellant.

Bonnie J. Campbell, Atty. Gen., and Theresa O'Connell Weeg, Asst. Atty. Gen., for appellee.

Considered en banc.

SNELL, Justice.

This is a judicial review case under Iowa Code section 17A.19 challenging the decision of the Iowa Board of Medical Examiners. On October 25, 1990 the board filed a complaint against Dr. Vincent J. Glowacki for his record-keeping practices in forty-three cases in 1985 and 1986 in which he provided post-operative intensive care to open-heart patients. On August 8 and 9, 1991 a panel of four members of the board heard evidence and on November 19, 1991 filed their findings of fact, conclusions of law, proposed decision, and order. That order proposed that Glowacki should be suspended for ninety days and serve a two-year period of probation.

Glowacki appealed asking for a full hearing before the board. The full board met, heard arguments, and on June 18, 1992 issued its decision which adopted the panel's earlier decision. Glowacki then took judicial review to the district court which affirmed the board's decision. In an interlocutory appeal to our court we held that Dr. Glowacki was entitled to a stay of the disciplinary order until final disposition of his court case. Glowacki v. Board of Medical Examiners, 501 N.W.2d 539, 542 (Iowa 1993). We have now reviewed this matter on final appeal, and we reverse and remand.

Our standard of review is set by Iowa Code section 17A.19(8) (1989). On judicial review, we may reverse or modify the board's decision if one of seven statutory grounds exists. Of those grounds petitioner Glowacki alleges that his procedural due process rights were violated, the standard of conduct is unconstitutionally vague, the decision is not supported by substantial evidence, and an erroneous legal standard was applied.

I. Background Facts.

Dr. Vincent Glowacki is a medical doctor practicing anesthesiology in Davenport, Iowa. On October 25, 1990 the Board charged him with knowingly making misleading, deceptive, untrue, or fraudulent statements in the practice of medicine, with committing an act contrary to honesty, and with willfully and/or repeatedly violating the statutes or rules governing the practice of medicine in Iowa. These charges arose because of the way Glowacki recorded the time spent with a patient on the hospital anesthesia records and on his office billing records. All of the charges related to cases treated in 1985 and 1986.

In 1985 and 1986 anesthesiologist Glowacki, with help from his certified nurse anesthetists, provided operative anesthesia and post-operative respiratory and pulmonary care for open-heart patients at St. Luke's Hospital in Davenport. Because the patients had been anesthetized heavily they could not breathe on their own. After surgery they were taken to the intensive care unit (ICU), where they were placed on a respirator and given other critical care. This pulmonary care was continuous but Dr. Glowacki's role in it was intermittent, as necessitated by each patient's condition. Final extubation (removal of the breathing tube) by Glowacki and his release of each patient to the care of the ICU nurses varied in time from a short time to as long as five-and-a-half hours after the operation. Glowacki wrote down the total amount of time he actually spent with each patient on a card.

Pulmonary care for open-heart patients by anesthesiologists was rare in those years. Dr. Glowacki received specialized training in it at the University of Iowa Medical School in addition to having received normal anesthesia training. Patients were drugged to stop their hearts and lungs which required a doctor to breathe and care for them after the operation. Until the open-heart patients' conditions stabilized, Dr. Glowacki attended to them post-operatively. Between 1973 and 1985 Dr. Glowacki was the only doctor providing such care at St. Luke's Hospital. St. Luke's was the only Iowa hospital, other than the University of Iowa Hospital, performing open-heart surgery at that time. Glowacki was the only doctor then providing this type of care at St. Luke's. In later years pulmonologists came to provide this care.

In the usual surgery case not involving heart surgery an anesthesiologist provided anesthesia in the operating room and when the patient was taken to the recovery room, the anesthesiologist's personal attendance ended. Heart patients, by contrast, often continued to require a doctor's care long after the surgery. Sometimes it required several hours of care in the ICU to stabilize the patient before being taken to a recovery room.

When Glowacki judged that the open-heart patient's condition was stable he then turned the patient over to the ICU nurses. His personal attendance at the patient's side after the operation did not need to be continuous beyond the first half-hour or so. Glowacki could start giving anesthesia care to a second patient even though his first patient would need further post-operative care. Glowacki, like other doctors, sometimes cared for several patients intermittently, dividing his time between them.

The blanks on the patient cards used by Glowacki called for a start time and an end time. Glowacki put down his actual start time and then added the number of minutes or elapsed time that he had spent. As a result of this record-keeping practice, in twenty-one cases in 1985 and 1986, the end time written on the first card was later than the start time written on the subsequent card for another patient.

The cards Glowacki used were not designed to accept multiple or intermittent times. They had one blank for a start time and one blank for an end time. Glowacki was having multiple start and end times per patient. However, it was the total or elapsed times calculated that Glowacki used to prepare bills.

An appearance of impropriety was created from this method of entering data because Glowacki's total minutes or elapsed time were written down on the cards corresponding to the actual time of day. To one looking at the cards it appeared that Glowacki was charging two people for some of the same time. Glowacki actually was caring for two people intermittently and recording for each only the minutes of care given to each patient. The practice used by Glowacki was done openly and was admitted by him as a matter of practice.

Glowacki's medical records for these cases show that he provided pulmonary care and was in personal attendance with these patients for the amount of time he claimed. The evidence shown as to when Glowacki left any patient for the final time in the care of the ICU nurses was the extubation time which was often several hours after the operation.

The board concluded that Glowacki's pulmonary care was not included within the meaning of the term "anesthesia time" and therefore he should not have entered it on the cards as he did. The board concluded that the "anesthesia time" for each patient ended at the first moment Dr. Glowacki left the patient's side and could not be resumed.

Much of the controversy in this case circles around the meaning of "anesthesia time." The board applied the following definitions in reaching its decision:

Anesthesia time begins when the anesthesiologist begins to prepare the patient for anesthesia care in the operating room or in an equivalent area, and ends when the anesthesiologist is no longer in attendance, that is, when the patient may be safely placed under post-operative supervision.

American Society of Anesthesiologists, Relative Value Guide at vi (1985);

Anesthesia time begins when the anesthesiologist begins to prepare the patient for the induction of anesthesia in the operating room or in an equivalent area and ends when the anesthesiologist is no longer in personal attendance, that is, when the patient may be safely placed under post operative supervision....

American Medical Ass'n, Physicians' Current Procedural Terminology 65 (1990);

Anesthesia time begins when the anesthesiologist or anesthetist is first in attendance with the patient for the purpose of administering an anesthetic (induction) and ends when the anesthesiologist or anesthetist is no longer in personal attendance, i.e., when the patient may be safely placed under customary post-operative recovery room, supervision....

Medicare B/On Record, Anesthesiology Guidelines (Blue Cross/Blue Shield of Iowa) June 3, 1983; Blue Cross/Blue Shield of Iowa, Medicare Medical Assistance Manual 3 (July 1985).

In its conclusions of law the board stated that "anesthesia time," as it related to the open-heart patients treated by the respondent, began when the respondent prepared each patient for the induction of anesthesia and ended when the respondent established and left each patient in the care of the ICU. The board held that on the anesthesia records of numerous patients Glowacki knowingly made misleading, deceptive, and untrue representations in the practice of medicine by misstating the "finished" time on the anesthesia records and the "anesthesia time" on the billing cards. These acts were found by the board to violate Iowa Code section 148.6(1)(g) (1985) and 470 Iowa Administrative Code r. 135.204(12) (1984) which permit discipline for acts "contrary to honesty." The board further found that these acts by Glowacki were willful and repeated and as such were subject to discipline under Iowa Code section 147.55(8) (1985), section 148.6(1)(i) (1985), and 470 Iowa Administrative Code r. 135.204(14) (1984).

The discipline ordered by the board was a suspension of license to practice medicine for a period of ninety days. Additionally, a probationary period of two years was ordered during which time records would need to be made available to the board staff regarding medical and...