Opinion
No. WD67905
October 21, 2008
Appeal from the Circuit Court of Cole County, The Honorable Richard G. Callahan, Judge.
Glenn Edward Bradford, Kansas City, MO, for appellant.
James Bernard Deutsch, Jefferson City, MO and John Thaddeus Eckenrode, Clayton, MO, for respondent.
Before: Ronald R. Holliger, Presiding Judge, Harold L. Lowenstein, Judge, and Thomas H. Newton, Judge.
Faisal J. Albanna, M.D. ("Dr. Albanna") appeals the disciplinary order issued by the State Board of Registration for the Healing Arts ("Board"), placing his medical license on probation for five years. Dr. Albanna raises eight points on appeal in which he claims that the Board failed to produce sufficient evidence to prove violations of section 334.100.2(4) and (5), including "unprofessional conduct," "conduct that might have been harmful to the patient," "conduct harmful to the patient," "incompetency," and "repeated negligence." We reverse in part, affirm in part, and remand to the Board for reconsideration of the discipline imposed on Dr. Albanna's license.
All statutory references are to Missouri Revised Statutes 2000, unless otherwise noted.
Factual and Procedural Background
Dr. Albanna has been practicing as a neurosurgeon in Missouri since 1987. He has also been licensed in Pennsylvania, Washington, D.C., and Illinois. Dr. Albanna has his own practice and specializes in lumbar and cervical surgical procedures, often treating patients that other surgeons turn away due to the complexity of their problems.
The Board filed a complaint against Dr. Albanna for violations of section 334.100.2(4) and (5) involving six patients. The Administrative Hearing Commission (hereinafter "AHC") found that only two of the counts, involving patients S.W. and C.W, violated the statute.
Section 334.100.2 provides that the Board may file a complaint with the AHC seeking discipline against a physician on numerous grounds. Specifically as to Dr. Albanna the Board alleged violation of the following subsections:
(4) Misconduct, fraud, misrepresentation, dishonesty, unethical conduct or unprofessional conduct in the performance of the functions or duties of any profession licensed or regulated by this chapter, including, but not limited to, the following:
. . .
(c) Willfully and continually performing inappropriate or unnecessary treatment, diagnostic tests or medical or surgical services;
. . .
(5) Any conduct or practice which is or might be harmful or dangerous to the mental or physical health of a patient or the public; or incompetency, gross negligence or repeated negligence in the performance of the functions or duties of any profession licensed or regulated by this chapter. For the purposes of this subdivision, "repeated negligence" means the failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances by the member of the applicant's or licensee's profession.
Section 334.100.2(4), (5) (emphasis added).
As to both patient S.W. and C.W., the AHC found that Dr. Albanna engaged in "unprofessional conduct." It also found that he engaged in "conduct that might be harmful to the health of a patient" as to both S.W. and C.W. The AHC found that Dr. Albanna's treatment of C.W. demonstrated "incompetence." Finally the AHC found that Dr. Albanna committed acts of negligence in his treatment of both patients and that together these constituted "repeated negligence."
Pursuant to section 334.100.2(4) and (5), the Board placed Dr. Albanna on probation for five years. The terms of his probation require his patients to fill out an expanded informed consent form and to obtain a second opinion from a board — certified neurosurgeon before certain types of surgery are performed.
Dr. Albanna filed a petition for judicial review and a motion for stay in the Circuit Court of Cole County. That court issued a one — month stay order, which it later continued through the pendency of Dr. Albanna's appeal. The circuit court then entered final judgment reversing the decision to impose discipline on Dr. Albanna for each of the Board's findings. Dr. Albanna now appeals the Board's decision to this court.
For increased clarity, we first address the medical background and treatment of each patient, the specific findings of the AHC as to each patient, and then the points on appeal raised by Dr. Albanna.
PATIENT S.W.
Dr. Albanna saw S.W., a forty — nine year old woman, on October 15, 1996. She complained of pain in her neck, accompanied by numbness and headaches, and a radiating pain in her right arm. She reported that the pain had been present for one or two years and had increased in August 1996, interfering with her ability to work and perform normal activities. Twenty years before seeing Dr. Albanna, S.W. had a fusion in her neck at levels C4 — 5 and C5 — 6, in which the surgeon removed disk space and placed bone.
Following a neurological examination, Dr. Albanna recommended cervical traction and a muscle relaxant. Several days later, Dr. Albanna discontinued the traction when S.W. called to report that she was experiencing pain both during and after traction. Dr. Albanna then ordered diagnostic procedures including a myelogram, post myelogram computerized tomography scan ("CT scan"), and an MRI. Dr. Beal performed these procedures on October 30, 1996, and sent a report to Dr. Albanna, stating that:
There is no evidence of disc herniation, central spinal stenosis or cord compression. Hypertrophic degenerative facet disease without evidence of foraminal stenosis is present on the left side at C2 — 3 and bilaterally at C3 — 4. The patient had undergone anterior discectomy and fusion of C4 — 5 and C5 — 6. Hypertrophic degenerative facet disease is also present on the right side at C7 — T1. This does not appear to be resulting in significant foraminal stenosis.
Opinion: Status post anterior discectomy and fusion C4 — 5, and C5 — 6. Degenerative facet disease at multiple levels as described. No evidence of central spinal stenosis, disc herniation, foraminal stenosis, or cord compression.
Dr. Beal testified that when physicians order diagnostic tests from her, she sends her written report and only contacts them directly if she notices a "significant abnormality." She did not find a significant abnormality in the case of S.W. But contrary to her report, S.W. had bilateral foraminal stenosis at C6 — 7, moderate right — sided foraminal stenosis at C7 — T1, and mild bilateral foraminal narrowing at C3 — 4. Dr. Albanna's witness, Dr. Cizek, testified that there was also an osteophyte or a disk bulge at C6 — 7. There was no neural impingement at C3 — 4.
Dr. Albanna interpreted S.W.'s myelogram, finding spinal stenosis at C3 through C7. He also found chronic radiculopathy, or disease to the nerve roots, at C5, C6, and C7, basing his diagnosis on S.W.'s electromyogram ("EMG") and nerve — conduction test results. Dr. Albanna recommended that S.W. try traction again for one month. S.W. reluctantly did traction again but returned to Dr. Albanna's office a few days later complaining of neck pain, interscapular pain, and right upper — extremity numbness and tingling. Dr. Albanna noted in S.W.'s patient record that "She indicates a lack of favorable response to the conservative treatment." Dr. Albanna gave S.W. the following options: (1) do nothing and live with the pain, (2) continue with conservative treatment, or (3) undergo surgery. S.W. chose to undergo surgery, and Dr. Albanna recommended a cervical decompression with fusion of C3 through C7 and lateral mass plating.
S.W. was admitted to St. Anthony's Medical Center on November 13, 1996, where Dr. Albanna performed a posterior decompressive cervical laminectomy, C3 — C4 — C5 — C6 — C7 foraminotomy, fusion with an imperfect fusion with autologous bone, and stabilization using Ixis plate. Dr. Albanna used instrumentation of metal plates and screws in S.W.'s surgery. Instrumentation had not been used in S.W.'s previous fusion. Dr. Albanna's pre — and post — operative diagnosis of S.W. was "cervical spondylolysis with cervical instability and radiculopathy, C3 — C4 — C5 — C6 — C7."
Two days later, on November 15, 1996, S.W. experienced central cord syndrome. She had only a faint pulse and was unresponsive to stimulation. Central cord syndrome is damage to the "gray matter" nerve tissue in the spinal cord and is serious enough to cause "dysfunction in strength and sensation in the upper extremities." It is usually caused by a flexion injury, which can occur following surgical destabilization of the spine.
On November 22, 1996, S.W. was transferred to St. Anthony's Rehabilitation Center and on December 2, 1996, was transferred to St. Anthony's Medical Center Acute Rehabilitation Program. She was discharged on December 17, 1996, and recovered from the central cord syndrome. S.W. saw Dr. Albanna on February 18, 1997. He wrote the following in her patient record:
I think she is making steady progress, at least on an objective basis. The posture of her neck is more erect and stable. Her range of motion of her neck and right upper extremity are somewhat improved. Subjectively the patient has numerous complaints in reference to her right upper extremity. . . . The surgery was uneventful. Her post — operative x — rays show good fusion and stabilization.
S.W. saw Dr. Albanna again on April 8, 1997, and on July 15, 1997. S.W. saw Dr. Bailey on August 4, 1997, complaining of pain. Dr. Bailey diagnosed cervicalgia with continued complaints of radiculopathy. Dr. Bailey saw S.W. only once more, on August 25, 1997. He suggested medication therapy and pain management but provided no treatment. As a result of Dr. Bailey's consultation with S.W., she never followed up with Dr. Albanna for the treatment he recommended.
PATIENT C.W.
C.W., a thirty — nine year old construction worker, injured his back after lifting a piece of equipment in another state. He experienced pain in his lower back and leg, including a sharp shooting numbness, tingling, and weakness in his leg. C.W. saw a doctor before returning home. Once he was home, he saw a chiropractor, Dr. Monti, once or twice a day, six to seven times a week for approximately three weeks. Dr. Monti treated C.W. using heat, ice, ultrasound, manipulations, massage, and electrical stimulation. Dr. Monti referred C.W. to Dr. Albanna.
C.W. first saw Dr. Albanna on April 21, 1998, about one month after sustaining his injury. C.W. complained of pain and weakness in his legs and occasional neck discomfort. Following a physical examination, Dr. Albanna found that C.W. had left foot weakness, abnormal gait, and marked decreased range of motion of his lower back. Dr. Albanna ordered an MRI and CT scan and diagnosed C.W. with a "huge disc herniation central in location at L4 — L5, mild disc degeneration at L3 — L4 and L5 — S1, a mild bulge at L3 — L4, and moderate disc degeneration at L4 — L5."
Dr. Albanna next saw C.W. on May 13, 1998. His patient note from that visit stated:
Given this patient's symptoms of low back pain and bilateral lower extremity pain, this patient will benefit from bilateral lumbarmicrolaminotomy, microdiscectomy L4 — L5, and posterior lumbar interbody fusion using Ray cages with autologous bone. I described the procedure at great length, including the risks and benefits as well as the alternatives. The patient will need to wear the TLSO brace for a period of four to six weeks. He will probably be able to return to work in a period of three months after his surgery following recovery, physical therapy, and work hardening for strengthening in order for him to meet the demands of his work. A work Functional Capacity Evaluation will also be obtained prior to his return to work. His prognosis is very good as far as meeting the demands of his job requirements, assuming compliance with instructions.
The AHC found that Albanna did not inform C.W. of his non — surgical options. On June 12, 1998, Dr. Albanna performed the fusion surgery on C.W. His operating notes state that he performed a "bilateral lumbar microdiskectomy, microlaminotomy, L4 — L5. Posterior lumbar interbody fusion using autologous bone, applied into Ray cages." A post — operative CT scan shows that Dr. Albanna did not merely perform a microlaminotomy. Dr. Albanna placed the first cage on the left side but it crossed the midline by five to seven millimeters. In placing the second cage, Dr. Albanna destabilized C.W.'s spine by taking out the entire lamina (back of the spine) to the facet joint and removing half of the joint, which destabilized the facet joint. Destabilizing C.W.'s facet joint allowed his spine to flex and bend, preventing the bone from fusing. The AHC found that this could have been prevented if Dr. Albanna had repositioned the left cage or stabilized the spine with pedicle screws or metal rods and screw in C.W.'s back. Additionally, Dr. Albanna used Pro Osteon to fill the Ray cages, an off — label use of the material, without getting C.W.'s consent.
Spinal fusion is the immobilization of two or more vertebrae. One way to perform the surgery is by removing the disk between vertebrae and inserting a cage filled with bone in the disk space at the front of the spine. The cage holds the vertebrae in place until the bone fuses. Before inserting the cages, the surgeon must remove all or part of the back of the spine (laminotomy) and move the nerves out of the way.
Dr. Albanna saw C.W. monthly for follow — up visits. In his August, 11, 1998 report, Dr. Albanna stated:
The patient returns to the office reporting progress with physical therapy. He is improved but he continues to have occasional numbness and tingling involving his feet as well as bilateral stiffness and aches . . . I suspect the patient may be able to return to his original job duties in two to three months from today after undergoing physical therapy and work hardening given his residual achiness [sic] and stiffness that he has.
On September 25, 1998, C.W. was admitted to the emergency room, experiencing severe lower back pain and left leg pain. At C.W.'s November visit, Dr. Albanna's notes stated: "His diagnostic x — rays and CT scan of the lumbosacral spine show unchanged position of the Ray cages at L4 — L5 and fusion in progress." But the AHC found that the x — rays showed evidence that fusion was not occurring. An October CAT scan showed that the cages were touching and that threads were interlocked. The left cage had migrated into the spinal canal and was pushing on C.W.'s nerves.
On December 10, 1998, C.W. saw Dr. David R. Lange, complaining of low back pain and pain in both legs. On March 3, 1999, Dr. Lange removed the left cage and performed an interbody fusion and a lateral fusion. To remove the cage, Dr. Lange had to retract the nerve, resulting in more nerve damage.
TESTIMONY BEFORE THE AHC AND ITS FINDINGS Patient S.W.
At the AHC hearing, the Board solicited testimony from Dr. Smith regarding Dr. Albanna's treatment of S.W. Dr. Albanna presented testimony from Dr. Lichtor. Also testifying were Drs. Beal, Bailey, and Neiman. The AHC found that Dr. Albanna did not fall below the standard of care by offering S.W. a surgical option but that there was insufficient evidence to warrant the procedure he chose. Dr. Smith testified that he believed Dr. Albanna was grossly negligent in performing the laminectomy. He felt a foraminotomy would have been the appropriate procedure.
Dr. Smith testified that the risks with a four — level laminectomy involved: (1) a longer operation, (2) more blood loss, (3) higher chance of spinal cord and nerve injury, (4) higher incidence of and more extensive epidural scarring, (5) more post — operative pain, (6) longer recovery period, (7) prolonged immobilization while waiting for fusion, (8) much more limitation of movement, and (9) forces normally acting at C3 — 4 are transmitted to C2 — 3, leading to failure at C2 — 3.
Dr. Lichtor testified that while he would have recommended a foraminotomy over a laminectomy, he believed that Dr. Albanna was within the standard of care. Dr. Albanna defended his choice of procedures, stating that a one — level operation would "not address the wholistic [sic] of this patient's problem as far as the neck is concerned." He testified that by fusing every level, S.W. would not need subsequent surgeries.
The AHC found that Dr. Albanna performed an inappropriate operation, constituting negligence, "unprofessional conduct," and "conduct that might be harmful to the patient."
Patient C.W.
Dr. Freeman testified for the Board regarding Dr. Albanna's treatment of C.W. and Drs. Wilkinson and Raskas testified for Dr. Albanna at the AHC hearing. Dr. Freeman testified that Dr. Albanna failed to differentiate between pain resulting from the disk itself and muscular pain. He stated that further testing would have been necessary before subjecting C.W. to a fusion and diskectomy. Dr. Albanna testified that he had performed all necessary tests in making his diagnosis. Dr. Wilkinson agreed that further testing was unnecessary. The AHC found Dr. Freeman's testimony persuasive and found that Dr. Albanna's failure to differentiate between muscular and disk pain using additional diagnostic procedures violated the standard of care and was "conduct harmful to a patient."
Regarding Dr. Albanna's decision to perform the fusion surgery, Dr. Raskas testified that he also would have performed the fusion rather than the less extensive diskectomy, believing the diskectomy would have failed. Dr. Freeman testified that the surgery should have been limited to a left — sided diskectomy at the L4 — L5 level. The AHC found that by performing fusion surgery on C.W., rather than a diskectomy, Dr. Albanna violated the standard of care. The AHC also found that the surgery was "conduct harmful to the physical health of a patient." The AHC further found that Dr. Albanna violated the standard of care by failing to explain to C.W. that less intrusive options were available to him and by failing to get his informed consent for his off — label use of Pro Osteon.
Dr. Freeman testified that Dr. Albanna placed the first Ray cage too far to the right, crossing the midline by a few millimeters and that the two Ray cages were touching when Dr. Albanna completed the surgery. Finding that there was too much uncertainty in the record to determine whether the cages were touching at the time they were inserted or post — operatively, the AHC found that Dr. Albanna's placement of the Ray cages alone did not fall below the standard of care. The AHC did find, however, that Dr. Albanna's surgical technique in placing the second Ray cage (after placing the first cage too far to the right), destabilized C.W.'s spine, contributing to the failed fusion. The AHC also found Dr. Albanna's failure to later recognize the problem of the misplaced Ray cages, which led to spine destabilization, was a violation of the standard of care, "unprofessional conduct," and "conduct harmful to the mental and physical health of a patient."
Dr. Freeman testified that Dr. Albanna's post — operative notes were inaccurate because he did not perform a microlaminectomy as his notes reflected, but instead removed the entire lamina to the facet joint. Dr. Albanna also failed to document that he destabilized the spine to insert the second Ray cage. The AHC agreed that this fell below the standard of care.
Both parties' experts agreed that following the surgery, imaging revealed that the left Ray cage had begun to migrate and fusion was not occurring. Dr. Wilkinson testified that by October 1998, the left cage had backed out. Yet, on November 7, 1998, Dr. Albanna dictated a note stating "His diagnostic x — rays and CT scan of the lumbosacral spine show unchanged position of the Ray cages at L4 — L5 and fusion in progress." The AHC found that this false report fell below the standard of care.
The AHC found cause to discipline Dr. Albanna for unprofessional conduct, conduct that "might be harmful to a patient," and for "repeated negligence" in his treatment of C.W. The AHC also found that Dr. Albanna's overall treatment of C.W. demonstrated a general lack of professional ability, justifying discipline for "incompetence."
Standard of Review
On appeal, this court reviews the decision of the agency, rather than that of the trial court, to determine whether the agency action:
(1) [i]s in violation of constitutional provisions; (2) [i]s in excess of the statutory authority or jurisdiction of the agency; (3) [i]s unsupported by competent and substantial evidence upon the whole record; (4) [i]s, for any other reason, unauthorized by law; (5) [i]s made upon unlawful procedure or without a fair trial; (6) [i]s arbitrary, capricious or unreasonable; (7) [i]nvolves an abuse of discretion.
Section 536.140.2; State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo. banc 2003). The evidence is viewed in the light most favorable to the agency's factual findings. Tendai v. Mo. State Bd. of Registration for the Healing Arts, 161 S.W.3d 358, 365 (Mo. banc 2005). This court gives no deference to the agency's conclusions of law, which are reviewed de novo. Id.
POINT I: UNPROFESSIONAL CONDUCT
Dr. Albanna's first point on appeal claims that the Board erred in disciplining his license for "unprofessional conduct" under section 334.100.2(4). He argues that the Board applied an erroneous legal standard and presented no evidence of common opinion or judgment that his conduct was unprofessional.
The AHC concluded that Dr. Albanna engaged in "unprofessional conduct" by performing an inappropriate operation on S.W. and by failing to recognize C.W.'s problem with the misplaced Ray cages. In its decision, the AHC stated that:
Unethical conduct and unprofessional conduct include `any conduct which by common opinion and fair judgment is determined to be unprofessional or dishonorable.' Perez v. Mo. State Bd. of Registration for the Healing Arts, 803 S.W.2d 160 (Mo.App.W.D. 1991). `Ethical' relates to moral standards of professional conduct. MERRIAM — WEBSTER'S COLLEGIATE DICTIONARY 398 (10th ed. 1993).
The AHC continued, stating:
Unprofessional conduct is conduct that does not conform to the technical or ethical standards of the profession. MERRIAM — WEBSTER'S COLLEGIATE DICTIONARY 930 (10th ed. 1993). It includes `any conduct which by common opinion and fair judgment is determined to be unprofessional or dishonorable.' Perez, 803 S.W.2d at 164. Expert testimony may not be required to establish unprofessional conduct under the latter definition. Id.
The term "unprofessional" is not defined in section 334.100.2(4). When a statutory term is undefined, we presume that the legislature intended its plain and ordinary meaning, found in the dictionary. Tendai, 161 S.W.3d at 369. Dr. Albanna contends that the dictionary definition of the word "unprofessional" is circular and unhelpful. He proposes that we apply the doctrine of noscitur a sociis, "which holds that a word is known by the company it keeps." Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 694 (1995). When the meaning of a word is in question, courts invoke this canon of statutory construction, which states that the definition may be "ascertained by reference to the meaning of the words associated with it." State v. Jones, 172 S.W.3d 448, 452 n. 3 (Mo.App.W.D. 2005) (quoting Foremost Dairies, Inc. v. Thomason, 384 S.W.2d 651, 660 (Mo. banc 1964)).
Dr. Albanna argues that the causes for discipline enumerated in section 334.100.2(4)(a) — (q) require the AHC to narrow the term "unprofessional conduct" to instances where a showing of bad motive and intent are found. Dr. Albanna mischaracterizes the statute, however, because several of the enumerated subsections require no showing of bad intent or dishonesty. See 334.100.2(4)(d)("[d]elegating professional responsibilities to a person who is not qualified"); 334.100.2(4)(n)("[f]ailure to timely pay license renewal fees"); 334.100.2(4)(p)("[f]ailing to inform the board of the physician's current" address). The doctrine of noscitur a sociis is unhelpful in this instance. Ultimately, "[t]he interpretation and construction of a statute by an agency charged with its administration is entitled to great weight." Foremost — McKesson, Inc. v. Davis, 488 S.W.2d 193, 197 (Mo. banc 1972).
The Board is correct in claiming Perez held that expert testimony is not required when the facts presented are sufficient to allow inexperienced persons to draw a fair and intelligent opinion on whether a physician's conduct was unprofessional. Perez, 803 S.W.2d at 164. The Board disciplined Dr. Perez's license after he took advantage of a vulnerable patient seeking fertility assistance, by having a sexual relationship with her. Id. at 162 — 63. That case did not involve presentation of evidence regarding neurosurgical standards of care, claims of unnecessary surgery, or evaluation of surgical techniques, issues involved in the instant case. Expert testimony is required when the claimed violation is beyond the purview of ordinary lay witnesses. Tendai, 161 S.W.3d at 368.
Because the issue of whether Dr. Albanna's treatment of patients S.W. and C.W. was unprofessional could not be determined by common opinion and fair judgment, the Board needed to present expert testimony that any conduct was unprofessional. Because the Board presented no evidence to this effect, the AHC's conclusion that Dr. Albanna engaged in "unprofessional conduct" is not supported by competent and substantial evidence. This point is granted and the judgment of the AHC regarding "unprofessional conduct" is reversed.
No issue is raised as to whether negligent provision of medical treatment can ever also be unprofessional.
Point II: Conduct that Might be Harmful
Dr. Albanna's second point contends that the Board erred in disciplining his license for violation of section 334.100.2(5), for "conduct that [might] be harmful . . . to the . . . health of a patient," by applying an erroneous legal standard, rendering the statute unconstitutionally vague. He also claims that the Board failed to meet its burden of proof establishing cause for discipline because no "but for" causation was established and no evidence was proffered to form a basis for the conclusion that his conduct was harmful.
The AHC concluded that Dr. Albanna engaged in "conduct that might be harmful to the health of a patient" by performing an inappropriate operation on S.W. and by falsely reporting a good fusion in C.W.'s spine, following surgery. The AHC defined "harmful" as "`of a kind likely to be damaging: INJURIOUS[.]' MERRIAM — WEBSTER'S COLLEGIATE DICTIONARY 530 (10th ed. 1993). Dangerous means `able or likely to inflict injury or harm[.]' Id. at 292." In defining "conduct or practice which is or might be harmful or dangerous to the mental or physical health of a patient," the AHC stated that the term:
Is not only vague, by its terms it encompasses many beneficial practices in the medical field. An obvious example would be chemotherapy. Much of neurosurgery, properly practiced, `might be harmful' to a patient's physical health. In accordance with our decision in State Bd. of Registration for the Healing Arts v. Prince, No. 03 — 0384 HA (Admin. Hearing Comm'n Sept. 24, 2004), we conclude that a practice or other conduct is cause for discipline when its harm or danger (that is, its potential harm) outweighs its potential medical benefit. Such conduct or practice might amount to negligence, or it might fall short of that standard.
Only one reported case addresses the issue of "conduct that might be harmful" to a patient's health. Moheet v. State Bd. of Registration for the Healing Arts, 154 S.W.3d 393, 403 (Mo.App.W.D. 2004). In Moheet, this court affirmed the AHC's finding that Dr. Moheet's failure to ascertain his patient's blood pressure in the emergency room reduced the likelihood of a favorable outcome. Moheet, 154 S.W.3d at 400. In that case, the Board's expert testified that several conditions can be diagnosed based on changes in the patients' vital signs alone. Id. at 402. The expert testified that a physician cannot do a thorough physical exam without obtaining a patient's vital signs. Id.
In this case, regarding patient S.W., Dr. Smith testified that Dr. Albanna's performance of a laminectomy, rather than a discektomy, grossly violated the standard of care. Dr. Smith named several risks involved with a four — level laminectomy. Regarding patient C.W., the AHC found that Dr. Albanna reported that a fusion was taking place in his spine, contrary to what the imaging demonstrated. In fact, the experts testified, the Ray cage had migrated into C.W.'s spinal canal. C.W. reported burning pain in his legs, which was found to be a result of the Ray cage pressing on his nerves.
Based on the expert testimony regarding both patients, the AHC properly found that Dr. Albanna engaged in conduct that "might be harmful." Point denied.
Point III: Conduct Harmful to Mental or Physical Health
In his third point on appeal, Dr. Albanna claims that the Board erred in disciplining his license for violation of section 334.100.2(5), "conduct . . . harmful . . . to the mental or physical health of a patient," because the Board applied an erroneous legal standard and failed to prove that "but for" Dr. Albanna's conduct a patient would have suffered no harm.
The AHC found that Dr. Albanna's following conduct was harmful to C.W.'s health: (1) failing to differentiate between muscular and disk pain by not performing additional diagnostic procedures before recommending and executing his operation, (2) performing fusion surgery rather than the simpler diskectomy, and (3) failing to recognize problems arising from his surgery, which prevented the bone from fusing.
In Tendai, the Missouri Supreme Court stated that in the absence of a statutory definition of the term, it would apply the "but for" test of causation applicable in Missouri negligence cases. Tendai, 161 S.W.3d at 370. "Under this test, a physician is found to have caused a harm if the harm would not have occurred `but for' the physician's negligence." Id. In that case, the AHC found, and the Court agreed, that there was sufficient evidence to prove Dr. Tendai had negligently failed to refer his pregnant patient to a perinatologist for intrauterine growth retardation (IUGR). Id. at 368. But the Court reversed the AHC's finding of harm to a patient after determining that there was insufficient evidence to prove that Dr. Tendai's negligence caused his patient to give birth to a stillborn child. Id. at 371.
In Tendai, the patient's child was "born with the umbilical cord wrapped tightly around its neck." Id. at 370. The experts testified that "IUGR, in and of itself, would not cause the baby to die" and there was no "testimony that in utero growth retardation would cause an umbilical cord wrap." Id. The Tendai Court reversed on this point, finding that the Board did not prove causation. Id.
In this case, Dr. Albanna performed a series of negligent acts in treating C.W., which according to Dr. Freeman resulted in a failed fusion and, ultimately, in C.W.'s burning leg pain. Dr. Freeman testified about the operation as follows:
So therefore, by starting with one cage going off to the side too much, that forced Dr. Albanna to destabilize the spine in back in order to get the second cage in. So that triggered the next step, which is he didn't recognize the problem, and we get x — rays intraoperatively and the intraoperative x — rays clearly would demonstrate this because all the post — operative x — rays show quite clearly that the cage was not in a good position.
Dr. Freeman continued, stating that Dr. Albanna could have corrected the problem by stabilizing C.W.'s spine, which he failed to do. Both of Dr. Albanna's experts agreed that the post — operative imaging showed that the left cage had migrated. Dr. Freeman testified that this migration caused C.W.'s burning leg pain, "the cage was pushing into the nerves. And the patient felt an onset in October of something pop in his back and that's clearly when the cage started migrating back[.] And then he developed some anterior thigh pain, it was pushing into the nerves." Additionally, Dr. Albanna's failed fusion caused C.W. to have corrective surgery done by Dr. Lange. The evidence here was not equivocal and attenuated like that presented in Tendai. Therefore, the AHC did not err in finding that Dr. Albanna engaged in "conduct harmful to a patient." Point denied.
Point IV: Incompetency
In his fourth point, Dr. Albanna claims that the Board erred in disciplining his license for "incompetency" under section 334.100.2(5). He argues that the Board applied an erroneous legal standard and definition of "incompetency." He also argues that the Board did not meet its burden of proof by failing to present evidence that he: (1) was not qualified to practice medicine, (2) was incapable of practicing medicine, (3) lacked the qualities needed for effective action, and (4) was unable to function properly as a physician.
The AHC found Dr. Albanna's "general lack of, or lack of disposition to use, his professional ability" in his treatment of C.W. constituted incompetence. In the definition section of its findings, the AHC defined "incompetence" as "a general lack of, or a lack of disposition to use, a professional ability."
The Missouri Supreme Court addressed the issue of license discipline for incompetence in Tendai. In that case, the Court cited the Random House Webster's Dictionary (1997) definition of "incompetence" as "the quality or state of being incompetent," and "incompetent" as "1. lacking qualification or ability; incapable. 2. characterized by or showing incompetence. 3. not legally qualified." Tendai, 161 S.W.3d at 369. In that case, the AHC applied a definition similar to the one applied here and the Supreme Court determined that it was appropriate. Id.
The Tendai Court continued its analysis stating that "`[i]ncompetency' refers to a state of being." Id. "A doctor who is generally competent could commit gross negligence or repeated negligence; thus, `incompetency' must mean something different from these other terms." Id. The Court determined that the AHC erred in finding incompetence because the evidence showed only ordinary negligence:
None of the expert witnesses testified that Dr. Tendai was incompetent. There is no evidence that Dr. Tendai was not legally qualified to practice as a physician. The healing arts board did not present evidence that Dr. Tendai was incapable of practicing medicine or that he lacked the qualities needed for effective action or was unable to function properly as a physician.
Id. at 370.
As in Tendai, the Board failed to present competent and substantial evidence of Dr. Albanna's incompetence. Without this evidence, the AHC improperly found that Dr. Albanna was incompetent. Therefore, this point is affirmed. The judgment of the AHC regarding incompetence is reversed.
Point V: Repeated Negligence
Dr. Albanna's fifth point contends that the Board erred in disciplining his license for "repeated negligence" under section 334.100.2(5), in that it applied an erroneous legal standard and misinterpreted the term. He argues that the Board presented no competent and substantial evidence to support repeated negligence within the meaning of the statute because "repeated negligence" requires multiple acts of negligence on two or more patients. He also claims that the Board was required to show proof of deficiency in a generalized way, and proof that action is needed to protect the public.
The AHC found that Dr. Albanna fell below the standard of care in performing an inappropriate operation on S.W. It also found several instances of negligence in his treatment of C.W., including a finding of "repeated negligence" throughout his treatment of C.W. The AHC cited the statutory definition of "repeated negligence," which is "the failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances by the member of the applicant's or licensee's profession." Section 334.100.2(5). It continued, stating that:
As the Board has alleged negligence in all the counts of its complaint, we need not find that Albanna was repeatedly negligent in his treatment of a single patient. If we find simple negligence, we would then proceed to determine whether it aggregated with our findings in other counts to draw a final conclusion of `repeated negligence.'
The Missouri Supreme Court addressed the issue of "repeated negligence" in Tendai, finding that the Board had not met its burden to justify discipline on this ground. Tendai, 161 S.W.3d at 369. In that case, each of the alleged instances of negligence was due to Dr. Tendai's failure to refer his patient to a perinatologist. Because each act, or failure to act, was identical, the Court stated that there was "no need . . . to reach Dr. Tendai's broad argument that `repeated negligence' cannot be found as to a single patient." Id. at 368 — 69. The Court stated that Dr. Tendai "only made one negligent decision" because each time he "followed a single treatment decision — not to refer the patient to a perinatologist." Id. at 369. "By making `repeated negligence' a cause for discipline, the statute requires that the conduct show, by multiple acts, that the licensee is deficient in a generalized way and that disciplinary action is needed to protect the public." Id. at 368.
The Court analogized this to medical negligence litigation, where a "`continuing care' exception is invoked to avoid the statute of limitations." Id. at 369. In that situation, "the act of negligence is generally treated as a single act and is not divided into multiple separate acts of negligence, so that the negligence relates back to treatment that may otherwise have occurred before the period of the statute of limitations." Id.
As in Tendai, we do not need to address the issue of whether "repeated negligence" can be found as to a physician's treatment of one patient. Here, the AHC found that Dr. Albanna was negligent in treating both S.W. and C.W. The statute merely requires a finding of "failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances by the member of the applicant's or licensee's profession." Section334.100.2(5). Point denied.
Point VI: Violation of Standard of Care
In his sixth point, Dr. Albanna argues that the Board erred in disciplining his license for a violation of the standard of care because he did not violate the standard of care and because the Board has no authority to discipline for ordinary negligence.
We must first address Dr. Albanna's contention that the Board disciplined him for negligence. "The board . . . does not have authority to discipline for ordinary negligence; it may only do so for repeated negligence or gross negligence." Tendai, 161 S.W.3d at 368. Here, the Board did not discipline Albanna for mere negligence. The AHC made findings of negligence because that was necessary to support its finding of "repeated negligence."
As to Dr. Albanna's argument that the AHC's findings of negligence were not supported by competent and substantial evidence, he can prevail only if on review, "the whole record does not contain sufficient competent and substantial evidence to support the award, i.e., the award is contrary to the overwhelming weight of the evidence." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 — 23 (Mo. banc 2001). Dr. Albanna's arguments in this point merely refute the Board's expert testimony with his own. "[T]he assessment of credibility of witnesses is a matter for the board hearing the testimony, and on review an appellate court must defer to its findings in that regard." Perez, 803 S.W.2d at 164. We do not believe that the AHC erred in believing the testimony proffered by the Board's experts. Point denied.
Point VII: Admission of Expert Testimony Regarding Standard of Care
In his seventh point, Dr. Albanna claims that the Board erred in permitting Drs. Smith, Freeman, Young, Bailey, and Beal to testify as experts and to offer opinions regarding the standard of care. He argues that their testimony denied him his right to a fair hearing and to a decision based on competent and substantial evidence because it lacked adequate foundation, was not based on facts or data reasonably relied on by experts in the field, was speculative, conjectural, biased, and unreliable.
Dr. Albanna has waived this point, as he has failed to point us to one instance during the AHC hearing where he objected to expert testimony on this basis. Point denied.
Point VIII: Discipline Exceeded Board's Authority
Dr. Albanna's eighth point contends that the Board erred in disciplining his license because the probation, public reprimand, and second opinion requirements are in excess of its statutory authority, are unreasonable and an abuse of discretion, are not based on competent and substantial evidence, are made on unlawful procedure without fair trial. He argues that the Board violated his constitutional rights by treating him differently and more harshly due to his sex, age, training, and nationality. He further claims that no public protection purpose is served by such restrictions and that the sole purpose of the discipline is to punish him, which is not authorized by law.
We need not reach this point, as we are remanding the case to the Board to reconsider its discipline of Dr. Albanna's license in light of our reversal of the AHC's findings regarding "unprofessional conduct" and "incompetency."
Conclusion
We affirm the AHC's decision finding "conduct that might be harmful to a patient," "conduct harmful to a patient," and "repeated negligence." We reverse the AHC's findings of "unprofessional conduct" and "incompetency." We remand the case to the Board for reconsideration of its discipline of Dr. Albanna's license based on this decision.
Harold L. Lowenstein, Judge, and Thomas H. Newton, Judge, concur.
Faisal J. Albanna appeals the disciplinary order issued by the State Board of Registration for the Healing Arts (Board) placing his medical license on probation for five years. The probation was issued for Dr. Albanna's unprofessional conduct, conduct that might be harmful to a patient, conduct harmful to the mental or physical health of the patient, incompetency, and for repeated negligence. Dr. Albanna argues that the determinations that his conduct was unprofessional, might be harmful to a patient, conduct harmful to the mental or physical health of the patient were based on erroneous legal standards and no specific evidence of unprofessional or harmful conduct was presented. Dr. Albanna argues that the Board erred in disciplining his license for a violation of the standard of care, because the Board has no authority to discipline for ordinary negligence. Dr. Albanna also argues that the Board erred in permitting the expert testimony of several witnesses regarding the standard of care. Finally he argues that the discipline exceeded the Boards' authority.
Reversed and remanded for reconsideration of the discipline in light of our findings on unprofessional conduct and incompetency. The remainder of the Board's decision is affirmed.
Division holds:
Dr. Albanna's treatment of the patients could not be determined to be unprofessional by common opinion and fair judgment, and no competent and substantial evidence was presented of Dr. Albanna's incompetence. On these two issues the Board is reversed and the case is remanded for reconsideration of the discipline. On the remaining issues the Board's decision is affirmed. The evidence of the expert witnesses was sufficient to establish that Dr. Albanna's conduct might be harmful and also that it was harmful to the mental or physical health of the patients. Dr. Albanna is incorrect that repeated negligence must be found as to one patient, the Board found that Dr. Albanna provided negligent care to each of the patients in this case, and that is sufficient to show repeated negligence. The Board did not discipline Dr.Albanna for ordinary negligence but found violations of the standard of care in order to discipline him for repeated negligence. Dr. Albanna seeks to replace the Board's expert testimony with that of his own expert, which we decline to do. Dr. Albanna did not object to any of the expert's at trial and has waived any argument about the admission of their testimony. We decline to address whether the Board exceeded its authority, because we are remanding to the Board to reconsider its discipline of Dr. Albanna.
This summary is UNOFFICIAL and should not be quoted or cited.