Sherman v. Gifford, C.A. No. PC-2006-3245 (R.I. Super 8/21/2009)

• Decision Date: 21 August 2009
• Docket Number: C.A. No. PC-2006-3245.
• Parties: AARON R. SHERMAN, M.D. v. DAVID R. GIFFORD, M.D., M.P.H., In his Capacity as Director of the Rhode Island Department of Health, and THE RHODE ISLAND DEPARTMENT OF HEALTH.
• Court: Superior Court of Rhode Island

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AARON R. SHERMAN, M.D. v. DAVID R. GIFFORD, M.D., M.P.H., In his Capacity as Director of the Rhode Island Department of Health, and THE RHODE ISLAND DEPARTMENT OF HEALTH.

C.A. No. PC-2006-3245.

Superior Court of Rhode Island, Providence, Sc.

Filed August 21, 2009.

DECISION

GIBNEY, J.

Before this Court is an appeal by Aaron R. Sherman, M.D. ("Dr. Sherman") from a decision and order of the Rhode Island Board of Medical Licensure and Discipline ("Board"). After several hearings conducted from July 1, 2004 to February 8, 2006, the Board found Dr. Sherman guilty of five counts of "unprofessional conduct" in violation of G.L. 1956 § 5-37-5.1. The Board issued a reprimand relative to Dr. Sherman's license to practice medicine and conditioned his license on his adherence to any recommendations made by the Physicians Health Committee. This Court has jurisdiction pursuant to G.L. 1956 § 42-35-15.

I Facts and Travel

On March 25, 2004, the Board charged Dr. Sherman with sixteen counts¹ of unprofessional conduct within the meaning of § 5-37-5.1. (State's Ex. 3.) Count One alleged that Dr. Sherman administered Benzodiazepine to Patient A without warning and without her knowledge or consent and that Dr. Sherman gave false information to the Board by denying that he had administered the drug.² Count Two alleged, inter alia, that Dr. Sherman administered Benzodiazepine to Patient A, and she lost consciousness for approximately thirty minutes in a partially nude state on an examination table.³ Count Three alleged, inter alia, that Dr. Sherman did not disclose to Patient A that the drug had been administered and did not explain its presence in her system and its relationship to her fainting. Count Three also alleged that Dr. Sherman did not initially tell Patient A why she had to be taken to the hospital, or explain to the hospital's physicians why Patient A had fainted and lost consciousness.⁴ Count Four alleged that Dr. Sherman did not record the procedures he performed on Patient A in her medical records, making the medical records a false record of treatment.⁵ Count Five alleged, inter alia, that Dr. Sherman paid Patient A as part of a settlement after she sued him for malpractice.⁶

Rhode Island's Director of Health appointed a three-member hearing committee ("Hearing Committee") to adjudicate Dr. Sherman's case. From July 1, 2004 to February 8, 2006, a hearing officer, Attorney Maureen Hobson ("Hearing Officer"), conducted several hearings pursuant to G.L. 1956 § 5-37-5.2. Of the sixteen counts, Dr. Sherman was found guilty on Counts One through Five, all of which involved his treatment of Patient A on September 21, 1994. The following is a synopsis of the testimony and evidence that were elicited at the hearings with respect to Dr. Sherman's treatment of Patient A on September 21, 1994.

A Testimony of Dr. Sherman at the July 1, 2004 Hearing

In 1994, Dr. Sherman was an obstetrician/gynecologist licensed to practice medicine in Rhode Island. On September 21, 1994, Patient A came to Dr. Sherman's office for a follow up visit relative to a prior diagnosis of cysts. (Tr. at 79.) During this visit, Dr. Sherman collected urine/vaginal cultures using a speculum, performed a bi-manual internal examination, and an ultrasound on Patient A. (Tr. at 80, 83, 89.) While performing the bi-manual examination of the right ovary, Patient A said that she felt dizzy. (Tr. at 84.) Patient A had been lying down on an electric examination chair, and Dr. Sherman sat her up because he did not want blood rushing to her head. (Tr. at 84.) After he thought that she appeared "okay," he performed the ultrasound. (Tr. at 85.) Dr. Sherman noted that Patient A had had a "vasovagal reaction."⁷ He denied that Patient A suffered a ruptured cyst during his examination. (Tr. at 89.) Dr. Sherman noticed fluid in the cul-de-sac, causing him to question whether Patient A had a ruptured cyst or whether the fluid was from the exam, but he did not question whether he had ruptured a cyst. (Tr. at 96; State's Ex. 11.) After Patient A's vasovagal reaction, she had a prolonged "post-ictal state," which Dr. Sherman described⁸ as confusion people experience after a vasovagal reaction. (Tr. at 80-81.) After the ultrasound was completed, Patient A remained confused. (Tr. at 85.) Dr. Sherman did not recall any loss of consciousness. (Tr. at 94.) Dr. Sherman called the emergency room at Kent County Memorial Hospital, and Dr. Mello at the emergency room offered to see Patient A, but Patient A said that she would rather go home with a friend. (Tr. at 81, 85.) After Patient A declined to go to the emergency room, Dr. Sherman continued to see other patients. (Tr. at 85-86.)

Later that day, Dr. Sherman received word from his office staff that Patient A was in the emergency room at the Kent County Memorial Hospital under the care of Dr. Riedel. Dr. Sherman, who had been at the hospital attending to another patient, spoke with Dr. Riedel, Patient A, and Patient A's sister at the hospital. (Tr. at 87.) Dr. Sherman denied that he ever told Dr. Riedel that he had administered Valium to Patient A. (Tr. 88.)

Dr. Sherman testified that before doing the bi-manual examination and ultrasound, he did a speculum examination and obtained cultures, but maintained that the vasovagal reaction occurred during the bi-manual examination. (Tr. at 89-90.) Counsel for the Department of Health ("Department") asked Dr. Sherman about a letter that the Board required him to write concerning his care of Patient A. The letter, dated September 19, 2002, stated: "[I] performed an internal pelvic examination, including obtaining cultures with a sterile swab. Then I attempted to perform an ultrasound examination. When pressure was exerted on the area of [Patient A]'s ovaries, she informed me she felt faint." (Tr. at 100-01; Ex. State's 12.) The Department's counsel noted that Dr. Sherman had recently testified that the vasovagal reaction had occurred during the bi-manual exam, and in the letter he asserted that it had occurred during the ultrasound exam. Dr. Sherman explained that he had "put the sentences in the wrong order," and that she had, in fact, experienced the vasovagal reaction during the bi-manual exam. (Tr. at 102.)

Dr. Sherman testified that he did not inject or administer Benzodiazepam [sic] in any way to Patient A. (Tr. at 106.) When asked whether he told any of the doctors at the hospital that he gave Patient A Valium, Dr. Sherman responded, "No, I don't believe so." (Tr. at 106.) He denied having ever given Valium to a patient in his office or even storing Valium in his office. (Tr. at 106.) He denied using Benzodiazepam or Versed in his practice. (Tr. at 107.)

B Testimony of Patient A at the August 25, 2004 and September 22, 2004 Hearings

Patient A became a patient of Dr. Sherman in February or March of 1994 when she became pregnant. (Tr. at 44-45, 8/25/04.) On September 21, 1994, Patient A went to see Dr. Sherman because she believed that her bladder was infected again. (Tr. at 45, 8/25/04.) Dr. Sherman told her that he "was going to do that swab thing" and a probe ultrasound. (Tr. at 47, 8/25/04.) During the internal examination, Dr. Sherman began to use a long cotton swab when she "felt a pinch" in her vagina. (Tr. at 47, 8/25/04.) She felt the pinch only seconds after she felt Dr. Sherman insert the speculum. (Tr. at 6, 9/22/04.) She testified, "The only thing that I saw him put in his hands, I don't know the technical term for the swab itself, but it's the long swab with the cotton . . . . Whatever he did underneath or whatever he had in his hands underneath I could not see." (Tr. at 83, 8/25/04.) At no time did she ever see a syringe in Dr. Sherman's hands prior to or after feeling a pinch. (Tr. at 9-10, 9/22/04.) After Patient A responded audibly⁹ to the pinch, Dr. Sherman explained that he had accidentally ruptured a cyst when he was using the swab. (Tr. at 47, 8/25/04.) After about sixty to ninety seconds, Patient A felt extremely tired and told Dr. Sherman that she felt groggy and that she might pass out. (Tr. at 47-48, 8/25/04.) Dr. Sherman sat Patient A up in the chair, and explained that when a cyst erupts, it secretes a fluid like morphine that would cause such feelings, but that it would wear off in about fifteen minutes. (Tr. at 48, 8/25/04; Tr. at 16, 9/22/04.) Dr. Sherman said that he would continue to do the ultrasound probe; he put the chair back and Patient A "was out." (Tr. 48, 8/25/04; Tr. at 14, 9/22/04.) Patient A testified that because there was a clock directly in front of her, when she woke up, she noticed that it was about 9:34. (Tr. at 48, 8/25/04.) On cross-examination, however, Patient A testified that it was about 9:25 when she regained consciousness. (Tr. at 17, 9/22/04.) The examination began about two minutes after 9:00. (Tr. at 46-47, 8/25/04.) Dr. Sherman told her that she had been out for about half an hour. (Tr. at 13, 9/22/04.)

When Patient A awoke, she was in the room alone with Dr. Sherman. Dr. Sherman told Patient A that she could wait in the room until she felt better, and he left the room. (Tr. at 48, 8/25/04.) A nurse came into the room and offered Patient A water, which she declined. Dr. Sherman came back into the room and asked Patient A if she felt she could drive home, but Patient A said she was scared to drive because of her fatigue. (Tr. at 49, 8/25/04.) Patient A told Dr. Sherman that she felt a pain in her neck similar to the time that she was given Compazine and had an allergic reaction. (Tr. at 49, 8/25/04; Tr. at 18, 9/22/04.) Dr. Sherman told her that it might be a side effect from the ruptured cyst and called the emergency room doctor at Kent County Memorial Hospital. (Tr. at 49, 8/25/04.) He explained how Patient A had passed out after he had ruptured a cyst, and that she now felt a pain in her neck. Dr. Sherman informed Patient A that the emergency room doctor agreed that those were symptoms of a ruptured cyst....