State Bd. of Med. Exam.-Invest. v. Hsu

• Decision Date: 23 January 2007
• Docket Number: No. 20060134.,20060134.
• Citation: 2007 ND 9,726 N.W.2d 216
• Parties: NORTH DAKOTA STATE BOARD OF MEDICAL EXAMINERS—INVESTIGATIVE PANEL B, Complainant, Appellant and Cross-Appellee, v. George S. HSU, M.D., Respondent, Appellee and Cross-Appellant.
• Court: North Dakota Supreme Court

726 N.W.2d 216

2007 ND 9

NORTH DAKOTA STATE BOARD OF MEDICAL EXAMINERS—INVESTIGATIVE PANEL B, Complainant, Appellant and Cross-Appellee, v. George S. HSU, M.D., Respondent, Appellee and Cross-Appellant.

No. 20060134.

Supreme Court of North Dakota.

January 23, 2007.

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John M. Olson, Special Assistant Attorney General, Bismarck, N.D., for complainant, appellant, and cross-appellee.

Randolph E. Stefanson (argued) and Kent B. Gravelle (on brief), Stefanson, Plambeck & Foss, Moorhead, MN, for respondent, appellee, and cross-appellant.

VANDE WALLE, Chief Justice.

[¶ 1] The North Dakota State Board of Medical Examiners ("Board") appealed from a district court judgment reversing the Board's order revoking Dr. George Hsu's license to practice medicine and from a writ of mandamus directing the Board to establish a reasonable plan for supervision of Dr. Hsu's practice of medicine. Dr. Hsu cross-appealed from the judgment. We affirm in part, reverse in part, and remand with instructions to reinstate the Board's decision.

I

[¶ 2] Dr. Hsu was licensed to practice medicine in North Dakota in 1985, and is board certified in family practice. Since 1987, he has been an independent physician in his rural health clinics in Elgin and Glen Ullin and has had hospital privileges at Jacobson Memorial Hospital in Elgin.

[¶ 3] This disciplinary proceeding involves separate complaints brought against Dr. Hsu in 2003 and in 2004. In a September 2003 complaint, Investigative Panel B of the Board alleged Dr. Hsu had engaged in a continued pattern of inappropriate care of seven patients in violation of N.D.C.C. § 43-17-31(21) and had failed to appropriately document medical records for those patients. After a formal hearing on the 2003 complaint, an administrative law judge ("ALJ") recommended finding the greater weight of the evidence established Dr. Hsu had engaged in a continued pattern of inappropriate care from July 2001 through June 2003 for the seven patients identified in the complaint. The ALJ recommended finding Dr. Hsu's medical care and the substance and lack of timely documentation of his medical care for those patients demonstrated a continued pattern of inappropriate care. The ALJ recommended revoking Dr. Hsu's medical license unless he agreed to a system of monitoring and review as required by the Board in its discretion. According to the Board's executive secretary, he advised Dr. Hsu that the Board would consider the ALJ's recommended disposition of the 2003 complaint during a teleconference on December 29, 2003, and Dr. Hsu instead asked to personally appear before the Board at its scheduled March 19, 2004, meeting.

[¶ 4] Meanwhile, Investigative Panel B of the Board issued a March 19, 2004, complaint against Dr. Hsu, realleging the claims in the 2003 complaint and also alleging Dr. Hsu had provided inappropriate care for three additional patients in December 2003 and January 2004. At the Board's March 19, 2004, meeting and before considering the ALJ's recommendation on the 2003 complaint, the Board temporarily suspended Dr. Hsu's license under N.D.C.C. § 43-17-32.1. The Board then considered the claims in the 2003 complaint and unanimously adopted the ALJ's recommended findings of fact and conclusions of law. However, a motion to revoke Dr. Hsu's license failed, and a motion to adopt the ALJ's recommended sanction for monitoring failed for lack of a second. The Board then unanimously voted to delay disposition on the 2003 complaint until after a hearing on the March 19, 2004, complaint.

[¶ 5] After a formal hearing on the March 19, 2004, complaint, the ALJ issued a decision taking official notice of the 2003 disciplinary action against Dr. Hsu. In addressing the allegations in the 2004 complaint, the ALJ recommended finding that Dr. Hsu provided substandard or inappropriate care for one patient, because he failed to promptly recognize the clear signs of an acute myocardial infarction and delayed appropriate care for that patient, who subsequently died. The ALJ recommended finding that Dr. Hsu did not provide substandard or inappropriate care for the two other patients identified in the 2004 complaint because Dr. Hsu followed the patients' families' wishes and essentially obtained informed consent from the patients' families, but that Dr. Hsu failed to provide appropriate medical documentation for his care of those two patients. The ALJ said:

Dr. Hsu does not seem to recognize that he is not an island. He tends to gauge whether he gives proper medical care by the likely costs and by the actual results rather than proper protocols. He tends to believe that a low cost and the end result justifies the procedures used. To a large extent, it appears, Dr. Hsu has been lucky. With Patient 1, however, he was not so lucky. As stated previously, the evidence from the last hearing clearly showed that Dr. Hsu is not a great physician, but neither does that evidence, even when coupled with the evidence from this hearing, show that he is a poor physician. Rather, the evidence shows that he is a caring physician, though perhaps a somewhat misguided physician.

Dr. Hsu acknowledged at the first hearing that he is "out of step" with what the practice of medicine currently requires for appropriate care of patients in North Dakota. He maintains that he operates on a basis of mutual trust between patient and physician, and that no one has been harmed by the care he has given to patients over the years. Again, that may not be the case, now, considering the evidence at this hearing. It is clear that in the rural health care setting Dr. Hsu is doing what he believes is best to keep down the costs of medical care for his patients, while still giving them adequate care. With this purpose, "no harm no foul" seems to be Dr. Hsu's response and his motto in regard to the allegations of inappropriate care. Whether he will continue in his purpose employing his motto remains to be seen.

....

Finally, it is ultimately difficult to determine if there has been inappropriate medical care given in several of these cases (from both hearings) when there is not proper documentation, i.e., not timely documentation of appropriate substance. This is especially so when it comes to physician/patient relationships and informed consent. There remain many questions not really answered by the medical records but only by Dr. Hsu's testimony and speculation. This, by itself is not right, or appropriate medical care. In regard to documentation only, or lack thereof, his patients may suffer. Has he really performed to date as he has indicated? Perhaps, for the most part, Dr. Hsu has provided adequate medical care, the care required under the circumstances, or at least the care his patients want. But, according to the testimony of many doctors and some doctors who know rural medicine, Dr. Hsu has not been providing appropriate documentation in several instances, and likely, not for many other cases not part of these two Complaints.

Again, Dr. Hsu believes that his after-the-fact explanations of what occurred, and why, is appropriate. Yet, even if he is right as to the substance of the care he has given his patients, as being appropriate, he presents a disservice to his patients and to others in the medical profession by not providing timely and adequate documentation. As shown at the first hearing and confirmed at this hearing, about his documentation there is no doubt, it is inadequate and sometimes nonexistent.

The ALJ recommended revoking Dr. Hsu's license unless he agreed to monitoring and review as required by the Board in its discretion.

[¶ 6] The Board adopted all but one of the ALJ's recommended findings and conclusions, but declined to adopt the ALJ's recommended disposition for monitoring and instead decided to revoke Dr. Hsu's license. The Board explained its rationale for not adopting the ALJ's recommended sanction:

1. The seriousness of the departure from the standard of care.

2. Dr. Hsu's prior behavior, particularly the fact that he has a prior history of disciplinary action by this Board as well as action taken against him by the Jacobson Memorial Hospital in Elgin, North Dakota.

3. The Board finds that Dr. Hsu's attitude, as evidenced by his prior behavior and by his demeanor when appearing before the Board, makes it extremely unlikely that any sort of monitoring plan or other direction from the Board could be successful.

4. The Board finds that the proposed system of monitoring and review is unworkable. In this case such a plan would essentially require the full time personal attendance of a hands-on physician who would monitor Dr. Hsu's practice and report to the Board as well as complete cooperation from Dr. Hsu.

[¶ 7] Dr. Hsu appealed to the district court. The court rejected Dr. Hsu's constitutional challenges to the Board's decision, concluding the Board's use of Dr. Craig Lambrecht, a Board member and investigator for Investigative Panel B, to investigate the claims against Dr. Hsu did not violate due process and the Board's use of the preponderance of the evidence standard in physician disciplinary proceedings did not violate due process or equal protection. The court concluded, however, the Board violated N.D.C.C. § 28-32-39(3) by delaying its decision on the ALJ's recommended disposition of the 2003 complaint, and the court decided the ALJ's recommended disposition of the 2003 complaint became the Board's final order for that complaint. The court further concluded the Board's rationale for departing from the ALJ's recommended disposition of the 2004 complaint was not supported by the record and was insufficient. The court reversed the Board's order revoking Dr. Hsu's license and remanded to the Board for disposition in accordance with the court's decision.

[¶ 8] Rather than appealing the district court's decision to this Court, the Board thereafter issued a further...