Tendai v. Bd. of Reg. for Healing Arts

• Citation: 161 S.W.3d 358
• Decision Date: 05 April 2005
• Docket Number: No. SC 86110.,SC 86110.
• Parties: Mark M. TENDAI, M.D., Appellant, v. MISSOURI STATE BOARD OF REGISTRATION FOR THE HEALING ARTS, Respondent.
• Court: Missouri Supreme Court

Page 358

161 S.W.3d 358

Mark M. TENDAI, M.D., Appellant, v. MISSOURI STATE BOARD OF REGISTRATION FOR THE HEALING ARTS, Respondent.

No. SC 86110.

Supreme Court of Missouri, En Banc.

April 5, 2005.

COPYRIGHT MATERIAL OMITTED

Johnny K. Richardson, Jefferson City, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jane A. Rackers, Asst. Atty. Gen., Jefferson City, Glenn E. Bradford, Edward F. Walsh, IV, Kansas City, MO, for Respondent.

MICHAEL A. WOLFF, Judge.

This physician disciplinary action arose from Dr. Mark Tendai's care of S.G., an 18-year-old woman pregnant with her second child in 1992. The tragic outcome of her pregnancy was the delivery of a stillborn child with the umbilical cord wrapped around the baby's neck.

The Missouri State Board of Registration for the Healing Arts filed two complaints with the Administrative Hearing Commission seeking to discipline Dr. Tendai, a Springfield physician specializing in obstetrics and gynecology, based on his treatment of S.G. and another obstetrical patient, J.W. The commission determined that Dr. Tendai was not subject to discipline for his treatment of J.W. As to S.G., the commission concluded that there was cause for discipline under section 334.100.2(5)¹ for "gross negligence," "repeated negligence," "incompetency," and "conduct harmful to a patient."

After the commission's decision, the board imposed discipline that included a 60-day suspension from medical practice, a ban from the practice of obstetrics and a requirement that Dr. Tendai attend a course on medical documentation. Dr. Tendai appealed to the circuit court of Cole County, which entered judgment upholding the commission's decision and the board's discipline.

On appeal to this Court, Dr. Tendai raises numerous challenges to the statute under which he was disciplined, to the healing arts board's procedures and to the alleged disparity of treatment in the disciplinary process. Resolution of this appeal, however, involves principally the task of applying the disciplinary statute, in its plain and ordinary meaning, to the facts of this case and determining whether there was substantial evidence to support the commission's decision.

This Court concludes that the commission's decision under the disciplinary statute is not supported by substantial evidence in the record as a whole. The judgment is reversed.

Facts and Procedural History

S.G., 18 years old and pregnant with her second child in 1992, made 13 visits to Dr. Tendai's office between April and November 1992. During S.G.'s first visit, Dr. Tendai determined that S.G.'s due date was approximately November 27, 1992. During her periodic visits with Dr. Tendai her pregnancy appeared to be normal until October 1992.²

On October 16, 1992, Dr. Tendai first became concerned that S.G.'s unborn baby was not growing adequately. Dr. Tendai suspected that the fetus had developed intrauterine growth retardation (IUGR), which would cause the fetus to stop growing. He testified that he discussed IUGR with S.G. and recommended that S.G. see a perinatologist, a physician specializing in late pregnancy complications. Dr. Tendai testified that S.G. "panicked" and refused to see a perinatologist. He also testified that he was unsure whether he observed a normal three-vessel umbilical cord or an abnormal two-vessel cord. A two-vessel cord is associated with birth defects. Dr. Tendai produced a "sticky note"³ dated October 16 that reflected that he was aware that S.G.'s fetus might have a two-vessel cord; however, the flow chart completed by the doctor's office nurse after the October 16 visit indicates a three-vessel cord.

When the healing arts board's investigator obtained Dr. Tendai's office records for S.G., there was no reference to the doctor having referred S.G. to a perinatologist. Later, however, Dr. Tendai produced a "sticky note" dated October 16 that states that S.G. refused his advice to consult with a perinatologist.

S.G. testified that Dr. Tendai never told her she had IUGR, but that his nurse told her that she did and that the doctor probably would discuss it with her. S.G. testified that Dr. Tendai told her the fetus was smaller than it should have been and that he was adjusting S.G.'s due date to early December 1992 for that reason. S.G. felt that Dr. Tendai would have discussed this in more detail with her if he had thought it was a serious problem. S.G. testified that Dr. Tendai never referred S.G. to a perinatologist or suggested that S.G. have any additional testing.

When Dr. Tendai saw S.G. again on November 2, 1992, the fetus had not grown since the prior visit. This strengthened his belief that the fetus had IUGR. At the doctor's request, S.G. went to the hospital for an ultrasound. The ultrasound confirmed Dr. Tendai's diagnosis of IUGR and also confirmed a two-vessel umbilical cord. During the ultrasound, S.G. was told that her fetus weighed approximately three pounds and that it would be up to Dr. Tendai whether he would continue to monitor S.G. or send her to a specialist.

Based on the testimony of expert witnesses, the hearing commission found that the proper treatment for IUGR was amniocentesis and non-stress testing. These procedures would not make the fetus grow, but could be used to monitor the fetus to determine whether and when birth should be induced or a caesarian section performed. Non-stress testing would determine the fetus' reaction to certain stimuli and would indicate whether the fetus was receiving adequate oxygen. Amniocentesis would reveal the lung maturity of the fetus to determine whether the baby could survive after delivery. Dr. Tendai did not have equipment to perform either amniocentesis or non-stress testing. Like the majority of obstetricians in Springfield, Dr. Tendai referred patients to a perinatologist for such services. Dr. Tendai testified he had concerns about the perinatologist who could provide services to S.G. because he felt that she had a tendency to induce labor too early.

On November 9, 1992, S.G. again visited Dr. Tendai. He testified that he again warned S.G. of IUGR and advised her to see a perinatologist and that S.G. again refused. S.G. testified that Dr. Tendai's office nurse told her that the ultrasound had confirmed the IUGR diagnosis and that the doctor would discuss it with S.G. in more detail. S.G. testified that Dr. Tendai did not discuss the IUGR with her on November 9 and did not suggest that she see a perinatologist. In response to the healing arts board's investigation, Dr. Tendai produced a "sticky note" stating that he warned S.G. again on November 9, 1992, that she should see a perinatologist.

Dr. Tendai examined S.G. again on November 16 and 23, 1992; each visit revealed that S.G.'s fetus had not grown. He testified that he warned S.G. on each of these dates that she should see a perinatologist; S.G. testified that Dr. Tendai did not refer her to a specialist. Dr. Tendai testified he did not believe that inducing labor was appropriate because the position of the fetus' head would make a vaginal delivery dangerous, and the appropriateness of a caesarian birth could not be determined without an amniocentesis.

On November 29, 1992, after feeling no fetal movement for approximately 24 hours, S.G. went to the hospital, was given another ultrasound, and delivered a stillborn female child. The child weighed three pounds, six ounces. The umbilical cord was wrapped tightly around the child's neck. An autopsy report concluded that the cause of death was "most likely due to the combined effects of a tight nuchal cord [i.e., around the neck] and severe chronic villitis [an inflammation] of unknown etiology involving the placenta with associated fetal growth retardation. Other findings included a two-vessel umbilical cord. Although the two-vessel umbilical cords are associated with an increased incidence of fetal congenital malformations, no other congenital malformations are identified. The manner of death is natural." Tests conducted after the delivery revealed that S.G. had cytomagalic virus, an infection that may be associated with IUGR, but the evidence did not establish whether the virus was a cause of the growth retardation.

S.G. filed a complaint with the healing arts board, which assigned one of its investigators to investigate S.G.'s charges. When the board's investigator interviewed Dr. Tendai in April 1993, Dr. Tendai did not state that he had referred S.G. to a perinatologist. Rather, he said that he was concerned about the baby's lung maturity and did not want to refer S.G. to a perinatologist who would try to deliver the baby early. Dr. Tendai did not tell the investigator that S.G. had ignored his advice. He gave the board's investigator copies of his office records relating to S.G. No sticky notes were included. The sticky notes relating to S.G. were not in S.G.'s file; Dr. Tendai provided the sticky notes when he met with the board at a later time. The only documentation of Dr. Tendai's alleged referrals of S.G. to a perinatologist were in the sticky notes. The commission concluded that Dr. Tendai had not referred S.G. to a perinatologist.

According to Dr. Tendai's office manager, the doctor routinely used sticky notes to write personal, non-medical information about his patients. The information put on the notes was that which the doctor wished to have for personal reference later, but which he did not want to be copied and sent to the hospital as part of the patient's medical records.

During its investigation, the board requested that Dr. James S. Johnson, M.D., an obstetrician, review the medical records relating to S.G. In July 1993, Dr. Johnson completed a written report determining that several conditions, especially the umbilical cord wrapped around the neck, contributed to the baby's death and that Dr. Tendai had not been negligent in his care of S.G. Dr. Johnson testified that IUGR is often fatal or results in severe birth defects.

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