Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
|IN THE CASE OF|
Lawrence M. Sherman, M.D.,
|DATE: March 15, 2001|
- v -
| Docket No.C-00-132
Decision No. CR752
This case is before me pursuant to a request for hearing
filed by Petitioner, Lawrence M. Sherman, M.D., on November 30, 1999,
in accordance with 42 C.F.R. §§ 1003.109(b), 1005.2.
By letter dated October 4, 1999, the Inspector General
(I.G.) notified Petitioner of a proposal to impose a civil monetary penalty
(CMP) of $50,000 against him under section 1867(d)(1)(B) of the Social
Security Act (Act). The letter informed Petitioner that, on January 10,
1996, he had refused to treat Mr. T.G. at the Kenmore Mercy Hospital (KMH)
emergency department in Kenmore, New York, and transferred him to Erie
County Medical Center (ECMC) without completing a medical examination
or assessing his condition. The I.G. further charged that Petitioner sent
Mr. T.G. to ECMC without certifying that the benefits of transfer reasonably
outweighed the risks, and without contacting that hospital to find out
if it would consent to the transfer. Additionally, the I.G. charged that
Petitioner ordered a nurse not to start a medical record on the patient.
I held an in-person hearing in Buffalo, New York, from
September 18-20, 2000. The I.G. was represented by Messrs. Edgar D. Bueno
and John W. O'Brien. Petitioner was represented by Mr. Gregory Stamm.
The I.G. offered 29 exhibits, but upon objection by Petitioner, only the
following were admitted into evidence: I.G. Exs. 1, 3-7, 9-16 and 18-29.
Petitioner offered no documentary evidence. In this Decision, I refer
to the transcript of the hearing as Tr.
Based on the testimony provided at the hearing, the documentary evidence, the arguments of the parties, and applicable law and regulations, I uphold the I.G.'s proposal to impose a CMP against Petitioner. However, for the reasons set forth below, I have reduced the CMP from $50,000 to $25,000.
Applicable Statutes and Regulations
Section 1867(a) of the Act provides that, when an individual
comes to an emergency department seeking medical attention, he or she
must receive an appropriate screening examination to determine whether
an emergency exists as defined by section 1867(e)(1) of the Act. As specified
in 42 C.F.R. § 489.24(b) the phrase "comes to an emergency department"
means, among other things, that an individual in a non hospital-owned
ambulance on hospital property is considered to have come to the hospital's
emergency department. Furthermore, an individual who is brought to an
emergency department is considered to be requesting examination and treatment
at that facility even if the initial intention was to have the patient
transported to a different hospital that is better equipped to handle
Sections 1867(b) and (c)(1) of the Act require that a
hospital provide treatment to stabilize an individual with an emergency
medical condition if it is within the capabilities of the staff and facilities
available at the hospital. The individual may be sent to another hospital
if a physician certifies that the benefits of medical treatment elsewhere
outweigh the risks associated with the transfer, or the patient makes
a written informed request for transfer.
Pursuant to sections 1867(b) and (c)(2) of the Act, if
a transfer is ordered, the transferring hospital must provide stabilizing
treatment to minimize the risks of transfer. It must also ensure that
the receiving facility has available space and qualified personnel to
treat the individual and has agreed to accept the transfer. Additionally,
the medical records must be sent with the patient, and the transfer must
occur through qualified personnel and transportation equipment.
Any physician who negligently violates a requirement of
section 1867 of the Act is subject to a CMP of not more than $50,000 for
each such violation. See Act, section 1867(d)(1)(B).
The I.G. is authorized to impose and assess penalties
against any person for gross, flagrant, or repeated violations of section
1867 of the Act.
Findings and Discussion
The findings of fact and conclusions of law noted below
in bold italics are followed by a discussion of each finding.
I. G.'s. Witnesses
On January 10, 1996, at approximately 4:30 a.m., Mr. John
Dugan III(1) and his partner were dispatched
to the town of Tonawanda in Erie County, New York, to pick up Mr. T.G.
Upon arrival in a residential area of the town, they saw Mr. T.G. on the
corner of Channing Street in the care of Tonawanda paramedics. These paramedics
had deemed that Mr. T.G. needed transport to the hospital, and therefore,
placed the patient in Mr. Dugan's ambulance. Twin Cities Ambulance is
the transporting agency for Tonawanda paramedics. Tr. 17-19.
Mr. Dugan assessed Mr. T.G. as having altered mental status,
and a smell of alcohol on his breath. Based on his experience, the paramedic
assessed him to be intoxicated. Mr. Dugan utilized what he called a Glasgow
Coma Scale to assess the patient's mental status. That scale takes into
consideration such things as eye opening, spontaneous movement, and verbal
response. Each area of functioning is assigned a value, for a maximum
score of 15. In his assessment, Mr. Dugan arrived at a score of 14 because
the patient was confused. Mr. Dugan did not imply that Mr. T.G.'s altered
mental status was insignificant based on a 14 on the Glasgow Coma Scale.
He explained that on such a scale, a corpse would be assigned a score
of three. Tr. 19-21.
On the way to the hospital, Mr. Dugan attempted to administer
oxygen to Mr. T.G., but did not follow through because the patient had
become verbally abusive. To avoid a physical struggle, Mr. Dugan also
refrained from doing a blood sugar test to rule out a common cause for
altered mental status. All he did was monitor the patient's airway and
provide transportation. Mr. T.G. informed Mr. Dugan that he did not want
to go to the hospital, but did nothing to oppose being taken there. Tr.
Because he was unable to perform the various routine tests
required, Mr. Dugan took the patient to the closest hospital, which was
KMH. The ambulance arrived at the KMH premises at approximately 5:00 a.m.
Upon entering the KMH emergency room, Mr. Dugan was met
by a nurse and Petitioner. Petitioner told Mr. Dugan that it was inappropriate
to bring Mr. T.G. to KMH because he did not belong there. According to
Petitioner, the patient should have been taken to ECMC "because that is
where all the drunks go." Tr. 25, 26, and 46.
Mr. Dugan placed the Mr. T.G. on a hospital stretcher,
and a nurse assigned Mr. T.G. to a room. In the emergency room, Mr. T.G.
was relatively calm, although he was a little verbally obnoxious. He basically
lay on the stretcher wanting to go to sleep. Petitioner did not enter
the room where Mr. T.G. was placed. Mr. Dugan did not see Petitioner perform
any examination of the patient. Tr. 27.
With the commotion created by Petitioner's reaction to
Mr. T.G's presence at KMH, Mr. Dugan was unable to provide the customary
status report that he would have given the emergency room physician and
nurse. Tr. 29.
It became apparent to Mr. Dugan that the patient was not
going to be treated at KMH and that somehow, he would have to transport
him to ECMC. At that moment, the security guard, who also happened to
be a Tonawanda police lieutenant, stepped in and prepared involuntary
commitment papers(2) for the transportation
of Mr. T.G. to ECMC. After about twenty minutes, the paperwork was completed,
and Mr. Dugan took the patient to ECMC. Tr. 30-31.
The nurse who met Mr. Dugan on arrival in the company
of Petitioner, and ushered the patient to the treatment room, was Ms.
Joan Donoghue. Ms. Donoghue noted that Mr. T.G. was obviously intoxicated
and that he stated he wanted to go to Ireland. Tr. 449.
Ms. Donoghue testified that she had made the statement
attributed to her at I.G. Ex. 19, and that it properly reflected her recollection
of the events that transpired on the morning of January 10, 1996, at KMH.
Her version of the incident, where pertinent here, was reported by an
agent from the Office of Investigations of the U. S. Department of Health
and Human Services (DHHS), as follows:
Donoghue also remembered telling [Petitioner] she thought
the situation may be a COBRA(4) violation
and there could be repercussions because of their actions. [Petitioner]
said that was not possible because psych patients should be taken to [ECMC].
[Mr. T.G.] was then placed back into the ambulance by the paramedics and
they waited while the 4.2 (sic) form was filled out by the police. Apparently
ECMC was not contacted by [Petitioner] to let them know that [Mr. T.G.]
was en route.
Donoghue reiterated that she knew this incident was a
violation and that [Mr. T.G.] should have been treated at KMH but she
was the nurse and [Petitioner] was the physician so she listened to him.
She stated, "we were all pretty cognizant of the regulations." After the
ambulance left KMH, [Petitioner] went to his office and did not say another
word. Later on that morning before she went home Donoghue reported the
incident to her supervisor. . . .
I.G. Ex. 19
Ms. Donoghue was of the opinion that by stepping in and
preparing documentation for the transfer of Mr. T.G. to ECMC, " . . .
he [Lt. John Murphy] overstepped his boundaries." Tr. 460. Ms. Donoghue
added that unless she had missed something along the way, she did not
know that ". . . the police could make a determination like that." Tr.
Lt. Murphy testified that he was a shift supervisor with
the Tonawanda police, but was working as a security guard at KMH in the
early morning hours of January 10, 1996. Tr. 100. At one point, while
doing his rounds that morning, he arrived at the emergency room and observed
that a commotion was going on. Tr. 101-102. According to his Declaration,
he recalled that he observed that Petitioner became agitated and yelled
down the hall at the paramedics as they brought Mr. T.G. into the emergency
room. Petitioner yelled at the paramedics words to the effect of: "get
that guy out of here, he doesn't belong here." Petitioner was referring
to Mr. T.G., and was indicating that he wanted him removed from the hospital.
I.G. Ex. 20; see Tr. 138-139. Lt. Murphy added that Petitioner
was upset because Mr. T.G. was there, and the nurses were upset because
the Petitioner wouldn't treat him. According to Lt. Murphy, "It was very
unusual for a doctor to say he was not going to treat [Mr. T.G.] and nobody
knew what to do." Tr. 140. In view of the apparent
impasse and his belief that Mr. T.G. would receive no treatment at KMH,
Lt. Murphy decided to get him to a place where he was going to be treated.
Dr. Anthony Billittier testified that he was the attending
emergency room physician at ECMC on the early morning of January 10, 1996,
when Mr. T.G. was transported there by Twin Cities Ambulance paramedics.(5)
Tr. 150-151. The ambulance transporting Mr. T.G. arrived at approximately
6:15 a.m. Tr. 153.
Dr. Billittier ordered that the patient be administered
100 milligrams of thiamine. That, he explained, is a vitamin that can
become depleted in alcoholic patients. Thus, it was necessary to address
thiamine deficiency in order to prevent the possibility of serious health
problems. In addition, the Dr. Billittier ordered that the patient be
fed to make sure that he was not hypoglycemic, that is, with low blood
sugar. Tr. 158. A Breathalyzer test revealed a diagnosis of ETOH abuse.
Tr. 159. Once stabilized, Mr. T.G. was discharged at 10:15 a.m. on the
same day and sent by taxicab to a detox clinic for follow-up. Tr. 175,
Because Mr. T.G. arrived at ECMC without a medical record
and without a telephone call from KMH prior to arrival, Dr. Billittier
reported the matter to the emergency department administration as required
by the hospital's policy.
Dr. Jeffrey Horwitz, a specialist in emergency medicine,
testified as a medical expert on behalf of the I.G. He opined that a 14
out of a possible 15 on the Glasgow Coma Scale is fairly significant.
He would consider anyone that does not have a score of 15 to have an abnormal
Glasgow Coma Scale. Tr. 195.
Dr. Horwitz stressed the importance of fully assessing
an intoxicated patient because the physician can't really assume that
the patient is intoxicated until properly evaluated. Even if the patient
is intoxicated, he added, other factors may be confounding the problem.
In these situations, a routine examination should include a complete history
and physical, including vital signs. The physical examination from head
to toe should carefully look for signs of injury that may account for
altered mental state. Additional diagnostic tests should also be pursued,
particularly glucose testing, since a low or high glucose level may have
an effect on mental status. Depending on the seriousness of the condition
and initial findings, other more in-depth studies may be necessary. Tr.
Dr. Horwitz also addressed the dangers of assuming that
a patient is merely intoxicated. Such an approach could leave a fatal
condition unattended. Moreover, even intoxication itself may be life-threatening.
Tr. 199. It was his opinion that an intoxicated patient should remain
in the emergency room until he or she is able to have a coherent conversation,
able to stand up and walk steadily, and not be a danger to self or others.
A review of the record led Dr. Horwitz to opine that Mr.
T.G. was not properly transferred to ECMC, and that his condition could
have been effectively treated at KMH. Tr. 209-210.
Dr. Joseph Richard Takats III, an emergency department
physician that currently heads a group that provides physicians for several
emergency departments in western New York, testified on behalf of Petitioner.
He was the Medical Director of the Emergency Department of KMH at the
time of the incident giving rise to these proceedings.
As to Petitioner's character, Dr. Takats described him
as caring and competent, with a good work record in terms of punctuality.
The witness had worked with Petitioner in several emergency departments
over the years and observed him to be a very acceptable emergency room
physician. Tr. 239-240.
Contrary to the testimony of witnesses that had preceded
him, Dr. Takats opined that 14 out of 15 on the Glasgow Coma Scale is
insignificant, and would not point to a severely affected mental status.
Consequently, a score of 14 on the Glasgow Coma Scale should not put a
physician on alert as to the existence of something that would place the
patient at risk. Tr. 246-247.
Dr. Takats addressed the difference between community
hospitals, such as KMH, that provide treatment to acutely intoxicated
individuals, and those facilities that have detox centers, such as ECMC.
The latter are equipped to provide long term care to the substance abuser
through detox treatment clinics. It would not be unusual, he agreed, for
patients who have participated in the programs offered at these clinics,
in a given situation, to ask to be taken to "detox." Tr. 243-245.
Dr. Takats indicated that for Petitioner to be able to
properly transfer Mr. T.G. to ECMC, he would have had to obtain a medical
record. That would include an examination of the patient as well as laboratory
tests that were adequate to assess his condition. A determination that
there was nothing wrong with the patient, except for chemical habituation,
would be a consideration for transfer, absent a very high blood alcohol
content that would require immediate admission to KMH. A transfer would
entail making ambulance arrangements and contact with the ECMC emergency
room physician to ascertain their acceptance. Tr. 284. The type and scope
of the examination during an emergency, according to Dr. Takats, is a
subjective decision. The situation may require CT scans and other sophisticated
diagnostic testing (as suggested by Dr. Horwitz), but nothing will guarantee
that the patient will not destabilize during transfer. After fully assessing
the patient, the emergency room physician must have the confidence of
mind that the patient is going to survive the transfer, and will be better
off at the receiving facility. After all, Dr. Takas added, "you are required
to use everything that your hospital has in terms of equipment, in terms
of personnel, in terms of drugs, . . . if . . . you can't determine whether
that patient is stable . . . [and] . . . you want to send the patient
someplace else or even . . . discharg[e] . . . him to home." Tr. 291,
304, and 305.
Notwithstanding the above testimony, Dr. Takats suggested
that a screening examination only requires that a physician employ whatever
modalities are appropriate to reach a conclusion as to whether the patient
is stable or unstable. Thus, it is possible, he said, to determine if
a patient is stable by merely looking at him or her, without ordering
any laboratory tests. Pure, visual observation could constitute an appropriate
screening. Tr. 264-265.
Dr. Takats concluded, therefore, that given his investigation,
he found no fault with Petitioner for the decision to transfer Mr. T.G.
to ECMC on the morning of January 10, 1996, even if he never laid hands
on the patient. From the medical record(s) and all the evidence presented,
the patient required an evaluation at ECMC. Tr. 281-282. Dr. Takats also
believed, just as Dr. Horwitz did, that the emergency treatment received
by Mr. T.G. at ECMC was appropriate. Tr. 212, 254.
Lt. Charles P. Rizzo testified that on the morning of
January 10, 1996, he was a patrol supervisor with Tonawanda Police Department.
At approximately 5:00 a.m., he received a call to pick up a man at Channing
Street, and he responded to the call in the company of Ms. Cheryll Keleman,
a police officer. The person turned out to be Mr. T.G. Tr. 320-321.
When Lt. Rizzo and Officer Keleman arrived at the scene,
Mr. T.G. expressed a desire to be taken to detox. Tr. 324. Lt. Rizzo interpreted
that to mean ECMC. An ambulance was called and Mr. T.G. voluntarily entered
the vehicle. Lt. Rizzo thought Mr. T.G. would be taken to ECMC. Tr. 325-326.
Shortly after the ambulance left, Lt. Rizzo was summoned to go to KMH
because Mr. T.G. had become disruptive and combative on the ambulance
and it was necessary to have him committed. Tr. 326-327.
Ms. Deborah Ljiljanich, an attendant at KMH, testified
that Petitioner was a good physician. He would care for his patients just
like the other physicians did. She never saw him turn a patient away or
refuse to treat anyone. Tr. 332. On the morning of January 10, 1996, as
she was busy cleaning instruments, Ms. Ljiljanich heard over the hospital
radio system that an ambulance was bringing in a patient that was combative.
She did not hear any mention to the effect that the patient had been diverted
to KMH while en route to ECMC. Tr. 334.
After Mr. T.G. was brought in, Ms. Ljiljanich lingered
at her work station, but later walked over to the room where he had been
placed, to see if her services were needed. As she went a little past
the room, she saw Lt. Murphy and heard him say: "Oh, he is in our hands
now. He is mine." Ms. Ljiljanich interpreted that comment to mean that
the police were taking over. Tr. 335-336; see also Tr. 343. At
that point the patient was wheeled out of the room. She did not hear Petitioner
say anything nor did she hear the patient utter any words. At that moment,
she also saw Lt. Rizzo. Tr. 341.
Ms. Vanessa Quinn, a registered nurse at KMH on January
10, 1996, testified that Petitioner took care of his patients and issued
appropriate orders. She never observed him turn anyone away. She added
that it is not uncommon for intoxicated persons to come to KMH, and that
Petitioner had treated that type of patient on a regular basis. Tr. 350.
On the morning of January 10, 1996, Ms. Quinn was the
second nurse on duty. She recalls that during her shift that morning,
she heard a report on the hospital radio system that a man that was found
in the snow was being taken to ECMC. Later on, she heard a call from the
same ambulance reporting that there had been a change, and that because
the patient had become combative, he would be taken to KMH. At that time,
she said Petitioner was next to her at the desk where she was stationed,
and would have heard the same radio message. Tr. 350-352, 360.
When Mr. T.G. was wheeled into the KMH emergency room,
she heard him say that he wanted to go to Ireland, but she never saw him.
The nurse that was with Mr. T.G. was the charge nurse, Ms. Donoghue. Tr.
354. Other than the patient's remark, Ms. Quinn did not hear the utterances
made by any of the other people present. Tr. 356.
Mr. Shaune Bailey, a paramedic for Rural Metro and LaSalle
Ambulance Service, testified as an expert witness. In his opinion, a 14
out of 15 on the Glasgow Coma Scale is pretty normal. He explained that
the patient, "won't know what day it is or what year it is or who the
President is. It might be a little bit off. But for the most part, it
is pretty much normal." Tr. 365.
Mr. Bailey stated that if a patient asked to be taken
to a detox center such as ECMC, he would do so unless critical changes
required rerouting to a closer facility. Tr. 369.
Regarding Petitioner's care for intoxicated patients,
Mr. Bailey said that he took care of them just like anyone else. He added
that he never observed Petitioner allowing an intoxicated patient to leave
unless the patient's blood alcohol was brought down to an acceptable level.
In his dealings with Petitioner, Mr. Baily never saw him refuse to care
for a patient nor had he known him to turn a patient out on the street
without care. Tr. 370-371.
In his own defense, Petitioner testified that prior to
January 10, 1996, he had treated many intoxicated patients, without discrimination.
Tr. 381-382. When caring for the acutely intoxicated, he would perform
an evaluation of the patient, and run whatever tests were required to
ascertain what the patient's problem was. If screening revealed that the
patient's condition was just intoxication, he would darken the lights
for them and let them sleep it off. Periodically, however, he would check
in on them to make sure they were stable. Tr. 384.
Petitioner had no recollection of vitals transmitted prior
to arrival of Mr. T.G. at KMH. He only remembered that it sounded like
the patient was on the way to ECMC, and then he was diverted to KMH. He
surmised that Mr. T.G. was taken to KMH instead of ECMC because that way,
the ambulance crew would be able to get off at 6:00 a.m., according to
schedule. Tr. 386-387. Additionally, the patient wanted to go to ECMC
for detox, and KMH was not a designated detoxification center. Petitioner
said the most that could have been done for Mr. T.G. at KMH, was blood
testing, plugging him into an IV, and keeping him under observation for
a few hours. Tr. 389.
When the paramedics brought in Mr. T.G., Petitioner inquired
as to why he had been brought to KMH and added that they should have known
that nothing could be done for him there. According to Petitioner, Mr.
Dugan provided no response to his query, but simply went by him and placed
the patient in the examining room. In order to make sure he didn't miss
something, Petitioner "looked" at Mr. T.G. to ascertain that his condition
was as had been assessed by Mr. Dugan. Tr. 389-390.
In Petitioner's estimation, Mr. T.G. clearly wanted to
go to detox at ECMC, and he did not want to deprive him of the care he
would have received at that facility. Tr. 392. Petitioner testified, "
. . . here is a guy who says I want to be detoxified; I want to get the
appropriate care that I need so that I don't have to live this way. And
his goal is being frustrated by somebody." Tr. 394.
Petitioner further testified that he left the patient
with the charge nurse, and returned to the nurse's station. He then heard
Lt. Murphy say: "You can't handle him here. I am calling over to the station.
He shouldn't have been brought here. He should go to ECMC." Tr. 396. At
that point, Ms. Donoghue asked whether she should make up a chart and
Petitioner said, "No - because the patient was not staying. He was going
over to ECMC." Tr. 397-398. That dialogue with Ms. Donoghue, according
to Petitioner, took place after Lt. Murphy became involved and said he
was having involuntary comment paperwork prepared to transfer Mr. T.G.
to ECMC. Tr. 399.
Petitioner referred to a "rapid police presence" that
constituted "an intimidating factor" as one of the reasons why Mr. T.G.'s
case was different than all the other situations involving intoxicated
patients that he had previously handled. He stated, "I've got two police
Lieutenants and a patrol woman. And, you know, they are acting as if they
are securing a crime scene." Tr. 402.
Petitioner felt confident that the patient was stable
enough to be taken to ECMC because although he did not perform a "hands
on examination," he had been able to screen him by considering the vital
signs that had been provided and by just taking a look at him. Tr. 399.
Petitioner did not view the situation as a transfer at all. At that moment,
KMH was more like a "weight-station." Mr. T.G. was simply taken there,
but the "appropriate people intervened and said . .
. you can't just dump this patient at this facility. He needs to be taken
to the appropriate facility. . . ." Tr. 399-400. Petitioner was aware
of the protocol involved in the transfer of a patient from an emergency
room to another hospital, but felt no need to follow that protocol because
he was not effectuating a transfer. Petitioner stated, "the 9.41 papers
[prepared] by the police changed the whole tenor of everything. . . this
truly was not a transfer of the patient . . . [Mr. T.G.] was being sent
by the police. . . ." Tr. 400-401. As far as Petitioner was concerned,
he did what was in the best interest of the patient. In fact, he said
that he did not report the incident to his superiors as being unusual
due to the police intervention, because he considered the whole approach
taken by those present as good team work. According to Petitioner, if
there was anything unusual about the situation, it was in the good team
work put forth by all involved in getting Mr. T.G. where he needed to
be taken. Tr. 425.
The statute, as well as the regulations, specifically
state that in the case of a hospital that has an emergency department,
if any individual comes to that department, and a request is made on the
individual's behalf for examination or treatment for a medical condition,
the hospital must provide an appropriate medical screening examination
within the capability of the hospital's emergency department, to determine
whether an emergency medical condition exists. Act, section 1867(a); 42
C.F.R. § 489.24(a).
"Within the hospital's capacity" means within the ability
of the hospital to accommodate the individual requesting examination or
treatment. 42 C.F.R. § 489.24(b).
The regulations deem an individual in a non hospital-owned
ambulance on hospital property to have come to the hospital's emergency
department. If an ambulance brings someone to a hospital knowing that
it does not have the staff or facilities to accept any additional emergency
patients, that individual is, nonetheless, considered to have come to
the emergency department, and is deserving of a proper screening examination.
42 C.F.R. § 489.24(b).
Where pertinent here, the regulations define a medical
emergency as a medical condition manifesting itself by acute symptoms
of sufficient severity (including severe pain, psychiatric disturbances
and/or symptoms of substance abuse) such that the absence of immediate
medical attention could reasonably be expected to result in placing the
health of the individual in serious jeopardy. 42 C.F.R. § 489.24(b)(i).
KMH is a hospital with an emergency department that offers
services for emergency medical conditions within its capability to do
so, in Kenmore, New York. On the early morning of January 10, 1996, Petitioner
was the emergency department attending physician at KMH. Tr. 381. At that
time, Mr. T.G., was brought to the KMH emergency department by paramedics
who had assessed that he needed emergency screening due to a substance
abuse problem, i.e., acute intoxication, and altered mental status. Tr.
Petitioner was accustomed to routinely treating acutely
intoxicated patients on an emergency basis. Tr. 382. When caring for this
type of patient, he would proceed according to a standard procedure that
called for an evaluation which included performing the necessary tests
that would allow him to get to the root of the patient's problem. If the
evaluation resulted in a diagnosis of acute intoxication, he would take
the patient's vital signs, draw blood, plug the patient into an IV, darken
the lights, let the patient sleep it off, and check on the patient from
time to time to make sure he or she was stable. Tr. 384, 389, and 408.
In the case of Mr. T.G., Petitioner allegedly chose to
perform a visual assessment as opposed to a hands-on examination. Petitioner
also claims to have relied on the vital signs that had been provided to
him. Tr. 399. The record, however, is devoid of any evidence that anyone
provided Mr. T.G's vitals to Petitioner. Pertinent to this is the fact
that Petitioner testified that he had no recollection of any vitals reported
to him. Tr. 386-387. This is further exemplified by Mr. John Dugan's testimony
to the effect that because of the commotion created by Petitioner upon
his arrival with the patient at KMH, he was unable to provide the customary
status report he would normally have given the emergency room personnel
in those situations. Consequently, Petitioner obtained no information
regarding the clinical status of Mr. T.G. other than what he was able
to obtain by merely "looking" at him.
I am not persuaded that when Petitioner observed Mr. T.G.
at the KMH emergency room, he was conducting a screening of the patient,
nor am I convinced that mere observation of Mr. T.G. constituted a screening
examination within the capability of KMH's emergency department. Act,
section 1867(a). If he had any intention at all of conducting a screening
examination, even if that screening was based on mere visual scanning
with the naked eye, Petitioner would (or should) have documented his findings.
But he did no such thing, nor is there evidence that he ever went near
the patient to take a close-up "clinical look" at him. The routine type
of examination required in the case of an acutely intoxicated person,
and which Petitioner described as his practice regarding hundreds of other
intoxicated patients treated by him in the past, for some unknown reason,
did not take place in the case of Mr. T.G.
Dr. Horwitz, an emergency physician whose credentials
were acknowledged by Petitioner, provided testimony to the effect that
treatment of a seemingly intoxicated patient requires a complete history
and physical examination, including vital signs. He added that laboratory
testing would rule out reasons for the presence of altered mental status,
other than just intoxication. Tr. 196. Nonetheless, Dr. Horwitz, opined
that even intoxication alone could be life threatening, and needs appropriate
attention. Tr. 199. His approach to the treatment and care of acutely
intoxicated patients appears to be more aggressive than the approach suggested
by Petitioner; however, as it concerns the issue here before me, I do
not have to determine which is the preferred approach. What I am considering
here is whether Petitioner conducted an appropriate medical screening
examination within the capability of the hospital available to the emergency
department as required by the Act and regulation(s) previously cited.
That is why some of the side arguments advanced by Petitioner are irrelevant.
For example, Petitioner's claim that Mr. T.G.'s altered mental status
was not significant does not address his failure to perform an appropriate
screening examination. This is particularly true when I consider that
Petitioner did not learn that the patient was assessed as having a score
of 14 out of 15 on the Glasgow Coma Scale until after the events of January
10, 1996. On the day of the incident, he did not ascertain that information
nor did he perform an independent neurological assessment. Thus, Mr. T.G.'s
altered mental status is not a factor that he could have weighed in his
consideration of Mr. T.G.'s clinical status on the early morning of January
Petitioner contends that having looked at Mr. T.G. during
the time that he was at KMH qualifies as a medical screening examination.
I disagree. There is no support in the record to conclude that Petitioner
performed an appropriate screening examination. Consistent with this finding,
the paramedics who transported Mr. T.G. to ECMC reported that the patient
did not undergo evaluation by the KMH emergency department physician.
Additionally, they noted that no chart was generated. Tr. 159. Furthermore
the charge nurse, Ms. Donoghue, testified that Petitioner did not examine
Mr. T.G. He merely "eyeballed" him. She added that Petitioner did not
order anyone else to treat or examine Mr. T.G. She also felt that with
intoxicated patients, it is difficult to determine their level of consciousness
without a blood alcohol test. Tr. 454.
Dr. Takats, Petitioner's superior at KMH on the early
morning of January 10, 1996, agreed with Petitioner that it was possible
to conduct an appropriate screening examination without actually touching
the patient. He felt he could accomplish that by utilizing the patient's
past medical history, the history of present illness, and a review of
symptoms that can be done on an oral basis. Tr. 304. He added, however,
that he would also have the benefit of experienced paramedics whose judgment
he trusts. In this regard, he said, they would be his hands, eyes, and
ears. Tr. 307. Based on this opinion, Dr. Takats concluded that Petitioner
performed an acceptable screening of Mr. T.G., and he could find no fault
in Petitioner's decision to transfer the patient to ECMC.(6)
I find that Dr. Takat's opinion is flawed for several
reasons. I must say at the outset, that contrary to Dr. Takat's opinion,
Petitioner did not obtain a past medical history, a history of present
illness, nor did he conduct a review symptoms of Mr. T.G. Dr. Takat's
claim that a visual and oral assessment of the patient is possible because
he would complement that with input from paramedics is inapplicable in
the case of Petitioner, inasmuch as no such input was obtained in this
case. The testimony of Dr. Takats is also inconsistent with his own findings
upon conducting an investigation of Petitioner's conduct regarding Mr.
T.G. on January 10, 1996. As Director of the KMH emergency department
at that time, he concluded that Petitioner did not provide Mr. T.G. with
a screening examination, and that the criteria for transfer were not met.
Tr. 317-318. That conclusion rendered after a thorough investigation of
the January 10, 1996 incident at KMH emergency room, is deserving of greater
credence than his far-flung and conclusory opinion rendered at the hearing.
See I.G. Ex. 10.
For the foregoing reasons, I conclude that Petitioner did not provide Mr. T.G. with an appropriate medical screening examination on the early morning of January 10, 1996, at the KMH emergency department in violation of section 1867(a) of the Act and 42 C.F.R. § 489.24(b).
I have concluded that Petitioner failed to provide Mr.
T.G. with an appropriate medical screening examination. I further find
that such failure resulted from Petitioner's refusal to provide emergency
care to Mr. T.G.
Petitioner contends that prior to the arrival of Mr. T.G. at KMH, he was on "heightened alert" because it was his understanding that the patient was to be taken to ECMC. Tr. 386-387. Mr. John Dugan, the paramedic who transported Mr. T.G., testified that he had no instructions as to where to take him. It was Mr. Dugan's judgment, however, to take him to KMH because that was the closest facility. Tr. 24. Petitioner theorized that the paramedics diverted Mr. T.G. to KMH so that the crew could check out at 6:00 a.m. according to the switching schedule. Tr. 387. Thus, he was poised to make his displeasure known upon their arrival at KMH. In this regard, Mr. Dugan testified that as he entered the facility's emergency department, he was met by a nurse and Petitioner. As Mr. Dugan was wheeling the patient down the hallway, Petitioner told Mr. Dugan that it was inappropriate to bring the patient to KMH. According to Petitioner, the patient didn't belong there; he belonged at ECMC. Mr. Dugan also reaffirmed his prior statement to an investigator from the Office of Investigations of DHHS to the effect that Petitioner said that the patient did not belong at KMH and should have been taken to ECMC or Buffalo General because "that's where all the drunks go." Tr. 46; see also I.G. Ex. 18. Of course, it does not matter whether the paramedics had been instructed by the police to go to ECMC; or even if the patient himself had asked to be taken to ECMC, since that does not excuse Petitioner's refusal to provide treatment nor does it constitute a mitigating factor.
The nurse that was present when Mr. T.G. was brought in by the paramedics was Ms. Donoghue. She remembered that the patient was wild and exhibiting slurred speech, but was not combative. The patient kept repeating that he wanted to go to Ireland. Tr. 449-450. Ms. Donoghue stated that she had no recollection of Mr. T.G. asking for detox treatment, but that if such request had been made, it would have been irrelevant, because he still had to be physically and mentally examined before a transfer to another hospital could take place. Tr. 450. However, no such examination was conducted because Petitioner said a chart was not needed since the patient was going to ECMC. Tr. 451. Ms. Donoghue was aware of the hospital's responsibility under COBRA, and communicated that to Petitioner. Tr. 462. Ms. Donoghue felt there was a COBRA violation because they did not examine the patient before sending him to another hospital. The patient had to be physically examined by a physician, the alcohol level had to be determined, and IV fluids administered. Tr. 491-492. None of this had been done. The order not to do anything to the patient came from Petitioner. Tr. 493. Ms. Donoghue also reiterated her prior statement to a DHHS investigator. In that interview, she recalled that when she attempted to take some of Mr. T.G.'s vitals and was going to start a chart for the patient, she was told to stop all procedures at the direction of Petitioner. He said they were not going to treat Mr. T.G. at KMH because he was a psychiatric patient and therefore should have been taken to ECMC. Petitioner also questioned the paramedics as to why they had brought him "there." At this point, added Ms. Donoghue, one of the security guards who was an off-duty Tonawanda police officer, stepped in and offered to fill out a 4.2(sic)(7) form so that Mr. T.G. could be transported to ECMC without further incident. This chronology of events is consistent with Lt. Murphy's testimony, and the credible evidence of record. In her statement to the investigator, Ms. Donoghue was unequivocal in that Lt. Murphy stepped in after Petitioner directed that she stop all treatment and preparation of charts because the patient was being taken to ECMC. See I.G. Ex . 20. Thus, I interpret her testimony at the hearing to the effect that Lt. Murphy overstepped his boundaries, to mean that even if
Petitioner had expressed an unwillingness to examine and
treat Mr. T.G., the police officer should not have acted to get the physician
"off the hook."
Petitioner contends that he stepped back and allowed the
police to take over the situation because they constituted an intimidating
presence. He offered the following testimony at the hearing in that regard:
That claim by Petitioner is contrary to the credible evidence of record. Lt. Murphy reiterated what he had said in a prior declaration, where he stated:
I.G. Ex. 20; see Tr. 138-139.
Lt. Murphy stated that he intervened only after it was apparent that Petitioner was not going to treat Mr. T.G. Tr. 102. More specifically, Lt. Murphy expressed his concern in the following manner:
After a period of about fifteen minutes, based on information
he obtained from the paramedics, Lt. Murphy ascertained which officers
had initially been involved at the location where Mr. T.G. had been picked
up. He then summoned Officer Keleman to KMH to prepare commitment papers
to have the patient transported to ECMC. Tr. 103-104. Lt. Rizzo arrived
at KMH when Mr. T.G. was being placed in the ambulance to be taken to
ECMC. Tr. 140. In this manner, Lt. Murphy resolved the situation wherein
a patient was lying there in the emergency room, causing a disturbance,
and no one was doing anything to treat him. Tr. 103-104.
Thus, Lt. Rizzo and Officer Keleman arrived at KMH after
Lt. Murphy determined that Petitioner was leaving Mr. T.G. lying
there untreated. Lt. Murphy felt a duty to step in and take the patient
to a place where he would be treated. There was no rapid police presence
and there was no intimidation.
Since Petitioner had described such a fear-instilling
atmosphere, where armed police rushed in menacingly to snatch a patient
from his care, I inquired whether he notified his superiors about such
an unusual incident. In response, Petitioner stated he did not feel that
the incident left any room for concern. Nor did he feel that there was
anything that his superiors needed to look into to prevent such an incident
from occurring again in the future. If there was anything unusual in what
took place on the morning of January 10, 1996, he said, "[it was the]
unusual good team work." Tr. 425. Petitioner put it this way: "I sort
of felt like, gee, this was like a team approach here and we all have
the same goal of trying to provide what was the most appropriate. . .
." Tr. 425. These two scenarios presented by Petitioner are mutually exclusive
and, as has been previously shown, a glaring departure from the truth.
There is ample evidence to conclude that Petitioner refused to provide an appropriate screening examination and treatment to Mr. T.G. on the morning of January 10, 1996, at KMH.
The I.G. charged Petitioner with ordering the transfer of Mr. T.G. to ECMC without certifying that the benefits outweighed the risks and without coordinating the transfer with ECMC. I agree with Petitioner that he did not consider the transportation of Mr. T.G. to ECMC as a "transfer." When asked by his attorney whether he viewed the situation as a transfer, Petitioner answered as follows:
Petitioner also recognized that he did not act according
to the existing transfer protocol. When Petitioner's attorney asked him
why he had not, Petitioner responded:
When, as quoted above, Petitioner asserted that the appropriate
people intervened because it was improper to dump Mr. T.G. at KMH, it
is not clear whom he meant by "the appropriate people." Certainly, it
was not Ms. Donoghue. She was aghast that Petitioner would not treat the
patient nor allow her to provide care. To make things worse, he directed
Ms. Donoghue not to even start a chart for the patient.
The only other person present that Petitioner could conceivably include among "the appropriate people" would be Lt. Murphy. However, Lt. Murphy was unequivocal in his testimony that he did not interfere in the treatment of Mr. T.G., nor is there evidence that he was concerned that KMH would be an inappropriate setting for the emergency care needed by the patient. The only logical inference I can draw is that for some unknown reason, Petitioner felt that Mr. T.G. was being "dumped" on him, and was so overcome by his emotions that he flatly refused to have anything to do with that patient. He turned his back on Mr. T.G., and Lt. Murphy, who saw a void created by abandonment of the patient, stepped in and filled it. Thus, Mr. T.G. finally made it to ECMC, not by improper transfer by Petitioner, but by an act of mercy on the part of a police officer. That police officer accomplished his desire to see Mr. T.G. receive the medical care he needed by making use of what he called the § 9.41 involuntary commitment procedure. Thus, I find that Petitioner did not effectuate a transfer improperly, but rather, that he totally abandoned the patient.
Thus far, I have concluded that Petitioner failed to give Mr. T.G. an appropriate screening examination, and that such failure was rooted in the refusal to treat the patient. Additionally, I have determined that Petitioner did not effectuate a transfer of Mr. T.G. to ECMC. However, before Mr. T.G. was removed from the KMH premises, Petitioner had a duty to ascertain that the patient was stable enough to be transported to another facility. He did not do that.Pursuant to section 1867(b) of the Act, Mr. T.G. was entitled to receive medical examination and treatment as was necessary to stabilize his medical condition or for transfer to another facility. It is true that Petitioner did not effectuate a transfer. Nonetheless, he did know that the police would be transporting Mr. T.G. to another hospital where he would be treated, and that the patient had not been properly screened to determine if any risks were associated with his removal to another hospital.
Petitioner testified that he made an assessment that Mr. T.G. was fit to be taken to ECMC, but could not point to any diagnostic tool other than merely making visual contact with the patient. Tr. 395. Petitioner surmised that Mr. T.G. was intoxicated, but without laboratory work-up, he had no way of knowing the level of alcohol absorption. Additionally, Petitioner failed to ascertain whether Mr. T.G. had a condition other than, or in addition to, intoxication.
Dr. Horwitz testified that high blood sugar can result in altered mental status, particularly if it is associated with acidosis. In the specific case of alcoholics, Dr. Horwitz added, they are susceptible to alcoholic ketoacidosis, which can be life threatening. Tr. 208-209. Of course, Dr. Horwitz was of the opinion that Mr. T.G. could have been cared for at KMH, but that if he needed to be taken to another facility, he had to be stabilized, and that certainly was not done in this case. Tr. 209-210.
Mr. T.G. was lucky that he did not suffer tragic consequences from Petitioner's dereliction, but the medical treatment received by patients coming to an emergency department cannot be a matter of chance.
Section 1867(d)(1)(B) of the Act provides for a CMP of up to $50,000 against a physician found to be in violation of the Act. The regulatory criteria applicable to the imposition of a CMP are set forth in 42 C.F.R. Part 1003. The criteria listed in the regulation are the following:
42 C. F. R. § 1003.106(a)(4).
The I.G. had recommended the imposition of a $50,000 penalty, the maximum permitted under the law. Petitioner opposed the recommendation and asserted the following arguments:
In view of the credible evidence of record, I find Petitioner's arguments meritless. Based on the criteria enumerated above, and the discussion that follows, I conclude that a CMP of $25,000 is reasonable.
Petitioner bears a substantial degree of culpability for
his failure to render a proper medical screening examination to Mr. T.G.
That failure is due to Petitioner's refusal to provide treatment and care
for the patient.
Petitioner's assertion that the police created a rapid,
intimidating presence, and exercised their authority to transport Mr.
T.G. to ECMC, while at the same time claiming that all those present proceeded
in harmonious teamwork fashion to get Mr. T.G. to a place where he could
get the treatment he needed, borders on the ridiculous, and is unsupported
by the evidence of record. Petitioner stands alone in his version regarding
the police involvement in the incident here under consideration. All of
the other witnesses that were in a position to testify regarding Petitioner's
conduct on the early morning of January 10, 1996, were unequivocal in
their appraisal of his refusal to treat and care for Mr. T.G.
Petitioner's explanation that he departed from his customary
manner of treating intoxicated patients, as he had done hundreds of times
in the past, because Mr. T.G. should have been taken to ECMC and not KMH,
is more damning than exculpatory. From having treated so many intoxicated
patients on previous occasions, Petitioner was well aware that KMH had
the resources to provide Mr. T.G. with an appropriate medical screening
examination. His testimony also showed that he knew exactly what needed
to be done to make the patient's condition stable. In spite of all this,
he chose not to care for him. Nothing prevented Petitioner from first
examining, treating, stabilizing, and then referring Mr. T.G. to ECMC
for participation in a long term detox program, if that is what he needed.
I do not believe that Petitioner was able to determine that Mr. T.G. was stable enough and could be transported to ECMC without being placed at risk without conducting an appropriate screening examination. A mere "eyeball" scanning is not the medical screening examination contemplated in the statute and regulations. I am not persuaded by the evidence of record nor Petitioner's testimony that as he looked at Mr. T.G. on the morning of January 10, 1996, he was making a mental medical assessment to ascertain the nature of his condition. Furthermore, the evidence reveals that Petitioner had not been provided with any information regarding Mr. T.G., from any source as he observed the patient in the KMH emergency room.Thus, the credible evidence of record overwhelmingly points to the enormity of Petitioner's culpability.
From the treatment and care Mr. T.G. received at ECMC,
it is apparent that his condition was limited to acute intoxication. However,
Petitioner did not know that when he refused to treat him at KMH. As Dr.
Horwitz testified, altered mental status mimics a variety of medical conditions,
and even acute intoxication itself can be life-threatening.
I have considered that Mr. T.G.'s condition did not go beyond acute intoxication, but have weighed that against the fact that his full medical condition unveiled itself only after Petitioner had refused to treat him. It is clear from the evidence of record that it is only by chance that Mr. T.G. did not suffer adverse consequences. As I stated earlier, appropriate medical care cannot be a matter of chance.
The I.G. presented no evidence of a history of non-compliance on the part of Petitioner.
There is no evidence that Petitioner lacks the financial ability to pay a CMP of $25,000.
It is not necessary for me to reiterate the circumstances surrounding Petitioner's failure to screen Mr. T.G. It suffices to say that this is a most unusual case of a medical doctor refusing to treat a patient for no apparent reason.
On June 12, 1996, Ms. Carolyn Martin of the Western Regional
Office of the New York Department of Health delivered a notification of
a potential COBRA violation to Ms. Judy McCann of the State of New York
Bureau of Hospital services. The concern stemmed from a transfer of a
patient seen at KMH by Petitioner to ECMC on May 21, 1996. It was noted
that the patient, Mr. D.C., arrived at ECMC in an apparent state of acute
intoxication with a blood alcohol level of .28. The acute intoxication
was not mentioned by Petitioner in the physician to physician contact,
and no toxicology testing was done prior to transfer despite the alcohol
on the patient's breath and his history of having taken an overdose of
Zoloft. I.G. Ex. 29.
The physician peer reviewer for the Island Peer Review
Organization, in his report of September 25, 1996 regarding the above
incident, concluded that the patient in that case did not receive an appropriate
medical screening examination. It was specifically found that no toxicology
screen/blood alcohol levels were taken. "Blood should have been drawn
for alcohol and drug screens prior to transfer." I.G. Ex. 26 at 1.
When confronted with the inappropriate medical screening
examination provided to Mr. D.C., Petitioner reasoned that the patient
exhibited signs of drowsiness due to depression in spite of the alcohol
on his breath. Furthermore, he noted that the level of alcohol in the
patient's blood, whatever level it might be, is not necessarily indicative
of intoxication. However true that may be, in the case of Mr. D.C., Petitioner
did not properly ascertain the patient's condition due to his failure
to perform an appropriate medical screening examination. I.G. Ex. 25.
As in the case at hand, Petitioner failed to see the inadequacy of his
In a letter to Dr. Takats, his superior, dated September
9, 1996, Petitioner, acknowledged his failure to provide Mr. T.G. with
a proper screening examination. Nonetheless, his testimony at the hearing
in this case was a complete departure from the lesson allegedly learned
from the incident of January 10, 1996, regarding the treatment and care
of emergency patients. I.G. Ex. 9. Clearly, Petitioner failed to perceive
the gravity of his wrongdoing. However, inasmuch as the I.G. has not offered
evidence of a prior history of offenses, and that was a factor taken into
account in arriving at the penalty to be imposed, I find that a CMP of
$50,000 is excessive. Additionally, the maximum penalty should be reserved
for those cases involving the most egregious instances of wrongdoing,
taking into account all of the factors set forth in the regulations. Therefore,
I find that a CMP of $25,000 is appropriate.
For the reasons outlined above, I conclude that Petitioner violated section 1867 of the Act on January 10, 1996. I further find that a CMP in the amount of $25,000 is an appropriate remedy.
Jose A. Anglada
Administrative Law Judge
1. Mr. Dugan was a paramedic training manager with Twin Cities Ambulance. As training manager, he conducted all training sessions including continuing medical education and quality assurance training. He performed new hire testing and interviews, and worked as an operational paramedic on the ambulance when needed. Tr. 14.
2. Involuntary Commitment refers to § 9.41 of the New York Mental Hygiene Law that empowers a police officer to take into custody any person who appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in harm to the person or others. Such officer may direct the removal of that individual to specified hospital facilities .
3. Ms. Donoghue was in reality referring to § 9.41 of the New York Mental Hygiene Law.
4. COBRA is the acronym for the Consolidated Omnibus Budget Reconciliation Act of 1985.
5. Dr. Billittier has specialized training in emergency medicine and is currently the Commissioner of Health for Erie County. Tr. 149.
6. Dr. Takat's opinion that he could find no fault with Petitioner's decision to transfer Mr. T.G. is wide of the mark in view of Petitioner's testimony that he did not make the decision to transfer the patient to another hospital. Petitioner testified that he had nothing to do with anything that could be considered a transfer, and merely observed while the police took over the situation and "transported" Mr. T.G. to ECMC.
7. Ms. Donoghue was in reality referring to section 9.41 of the New York Mental Hygiene Law.