Anesthesia Standard of Care: Dr. Bernstein, the ASA, Maryland Board of Physicians, and Random GPS Locations: Part 3

Last modified on 2012-03-22 04:09:46 GMT. 1 comment. Top.

READ PARTS ONE AND TWO FIRST!!

In Parts 1 and 2 we learned what the definition of the Standard of Care is and that it is determined by expert witness testimony in court. We also discussed how an expert witness is certified by the court. Also discussed was the difference between civil law followed in medical malpractice cases and the administrative law which applies in state board proceedings. Now we get into the events in the operating room that led to action  by the Maryland Board of Physicians against Dr. Bernstein, what happened at the hearings and on appeal, and the final order of the board and its ramifications.

Dr. Bernstein was the anesthesiologist on duty the evening of October 13, 1998, at union Memorial hospital. There were two CRNAs on duty, Thomas Davis and a second CRNA who is not named in the record. Davis was the Chief CRNA at union, with 30 years of experience. The two had worked together since 1987. An 82 y/o female had been admitted at 5pm the previous evening with a fractured hip. She was on the schedule as well as another patient for an appendectomy. The hip patient’s chest x-ray was unremarkable, her EKG showed normal sinus rhythm, left axis deviation, PVC’s and “the possibility of a past myocardial infarction” (according to the record, but not elaborated on…where there Q waves? What was the basis of this finding?). Her SaO2 was 92.5%  (On room air? Unknown.), her PTT 20 (below 25 is generally considered low and signifies blood may not clot normally). Dr, Samara, an intensivist, examined the patient and cleared her for surgery stating that there was no evidence of a recent acute cardiac event, she was stable, and there was no need for any interventions prior to her surgery. Orthopedics also examined the patient. CRNA Davis saw the patient pre-op at about 7:30 pm and  completed an anesthesia preoperative evaluation form indicating he reviewed the chart, discussed the anesthetic with the patient and her daughter and obtained informed consent. From the record:

Patient A and her daughter signed a “consent to anesthesia form,” stating, “I authorize and consent to the provision of anesthesia service(s) by____ or other members of the Department of Anesthesiology.” Davis wrote his name and “CRNA” in the blank. The form listed the risks of general anesthesia and noted that Patient A’s risk of potential blood loss was “moderate.” Davis did not note Patient A’s Sa02 on the form. Davis assigned Patient A an ASA rating of three, which means that she had disease processes that were not well controlled and that her potential for complications resulting from anesthesia was increased over normal. The ASA rating is based on the patient’s overall health.

Bernstein did not examine the patient. At about 7:15 pm while Bernstein was in an OR caring for another patient, Dr. Mulaikal, an anesthesiologist who would be going home as soon as the schedule allowed, advised Bernstein that the hip and appendectomy were yet to go. Dr. Mulaikal agreed to do the appendectomy and Davis was assigned the hip.  Bernstein finished with his patient and relieved Dr. Mulaikal at 7:45 pm in the appendectomy. Shortly thereafter Davis came to the room and discussed the hip patient for “about a minute” and Bernstein approved the anesthesia plan. He did not see the chart nor was Dr. Samara’s evaluation discussed. At 8:00pm Davis put the hip patient to sleep. More from the record:

During induction, Patient A’s blood pressure dropped from 145/65 to 105/45. Davis administered medication to raise Patient A’s blood pressure. After 10 to 15 minutes, her blood pressure rose to 150/68. During the surgery, Patient A experienced significant blood loss. Davis requested blood from the hospital’s blood bank but compatible blood was not immediately available. Patient A experienced additional periods of hypotension, with her blood pressure dropping as low as 85/40, at 9:20 p.m. She also experienced tachycardia, which is an abnormally elevated heart rate. The appellee [Bernstein] finished providing services to the appendectomy patient at around 9:00 p.m. He went to have dinner in the operating room lounge, which is down the hall and around the corner from Patient A’s operating room, about a 30 second walk. He stayed in the lounge for about an hour. At 10 p.m., he went to Patient A’s operating room “as a matter of courtesy” and because he expected the surgery would be finishing about that time. As soon as the appellee entered the operating room, he became aware of Patient A’s elevated heart rate and her relatively low blood pressure. Davis was checking Patient A’s urine output. He informed the appellee that Patient A had suffered blood loss and that blood was not immediately available for transfusion. Davis already had started a second IV for additional fluid support, had administered a blood volume expander, and had given Patient A medication to elevate her blood pressure.

The blood for transfusion arrived in the operating room shortly after the appellee’s arrival. Davis administered the blood to Patient A at 10:00 p.m. The appellee monitored Patient A’s vital signs and gave her additional medications. The appellee and Davis both were in the operating room for the rest of the surgery, including extubation. By the time Patient A was transferred to the recovery room, at 10:50 p.m., her heart rate and blood pressure both were within the normal range. The appellee and Davis stayed in the recovery room with Patient A for about 15 minutes. Shortly after midnight, a recovery room nurse contacted the appellee to inform him that Patient A seemed slow to arouse. The appellee observed that, although Patient A’s vital signs were stable, it took a fair amount of stimulation to arouse her and she could not speak. The appellee administered a medication to counteract the effect of narcotics. Patient A then was able to move all of her extremities but still could not speak. The appellee transferred Patient A to a “step down unit” for continued observation. The transfer took place at about 1:00 a.m. The appellee returned to see Patient A at 6:30 a.m. Her vital signs remained stable and there was no change in her neurological status. Because the effect of the narcotics no longer could be considered as contributing to her neurological status, he requested a neurological consultation. He did not provide any additional care to Patient A after his morning visit on October 14.

On October 15, a cardiologist diagnosed the appellee’s condition as “probable CNS [central nervous system] changes including possible left parietal cerebrovascular accident[,]” i.e., a “stroke.” He opined that these changes may have “been the initiating factor in her fall from the stool or . . . may have come secondary to her anemia and hypotension from her surgical procedure.”

On December 16, 1998, Patient’s son, a physician himself, filed a complaint with the Board of Physicians, alleging that that Bernstein had “committed acts of negligence and medical malpractice” by, among other things, “fail[ing] to provide close supervision of the CRNA administering [the patient's] anesthesia[.]” Bernstein, through counsel, responded to the complaint, stating that he had provided appropriate supervision during the anesthetic management of the case and had met the accepted standards of care in all respects.

On September 10, 1999, the Board asked Med Chi, a statute created physician peer review body created for just this purpose, to conduct a peer review of the case. Two peer reviewers, Robert Lyles, M.D., and Dennis Forbes, M.D., independently reviewed the complaint, the appellee’s response, and the patient’s medical records. Both reviewers are Board certified in anesthesiology. On November 28, 1999, Dr. Lyles report summarized the events surrounding the hip replacement surgery, stating Bernstein was the “responsible anesthesiologist providing medical direction, supervising Mr. Davis,” he concluded that Bernstein had breached the standard of care by failing to participate in the patient’s  pre and postopertative care, and that Davis “was permitted to assume what may be even considered independent responsibility for the anesthesia care” of the patient. On December 30, Dr. Forbes submitted his report to Med Chi. Dr. Forbes concluded that, overall, the patient had “received anesthesia care that met the necessary standard of care.” However, like Dr. Lyles, he concluded that Bernstein had not provided the required degree of medical supervision of Davis. On January 27, 2000, Med Chi submitted the peer review committee’s report to the Board. The report summarized both Dr. Lyles’s and Dr. Forbes’s reviews and concluded, “The reviewers concur that [Bernstein] breached the standard of care in the supervision of a CRNA in this case.” On November 22, 2000, the Board brought charges against the Bernstein under Maryland Heath Occupations section 14-104(a)(22). We listed the charges in Part 2 of this series. They list a litany of failures in supervision, availability and participation in care.

The statement of charges also directed the Office of Administrative Hearings to hold a contested case hearing on the matter, which was held before and Administrative Law Judge (ALJ) on May 22, 23 and 24, 2001. From the record:

The Board introduced 17 exhibits, including Patient A’s medical records; the Union Memorial Policy on the Anesthesiologist-Nurse Anesthetist Relationship; the Union Memorial Policy on Major Duties and Responsibilities of Nurse Anesthetists; the curricula vitae of the Board’s experts; and several documents by the American Society of Anesthesiologists (“ASA”). The ASA is a national professional organization of anesthesiologists that has a membership of approximately 30,000. The first ASA document, “Guidelines for Patient Care in Anesthesiology,” defines the practice of
anesthesiology, sets forth the responsibilities of anesthesiologists, and describes the role of the anesthesiologist at each stage of surgery. It states:

Anesthesiologists’ responsibilities to patients should include:
A. Preanesthetic evaluation and treatment;
B. Medical management of patients and their anesthetic procedures;
C. Postanesthetic evaluation and treatment;
D. On-site medical direction of any nonphysician who assists in the technical aspects of anesthesia care to the patient.

The second ASA document, “Guidelines for the Ethical Practice of Anesthesiology,” summarizes the ethical responsibilities of anesthesiologists. It defines “medical direction” as [A]nesthesia direction, management or instruction provided by an anesthesiologist whose responsibilities include:
a. Preanesthetic evaluation of the patient.
b. Prescription of the anesthesia plan.
c. Personal participation in the most demanding procedures in this plan, especially those of induction and emergence.
d. Following the course of anesthesia administration at frequent intervals.
e. Remaining physically available for the immediate diagnosis and treatment of emergencies.
f. Providing indicated postanesthesia care. An anesthesiologist engaged in medical direction should not personally be administering another anesthetic and should use sound judgment in initiating other concurrent anesthetic and emergency procedures.

The final ASA document, “The Anesthesia Care Team,” is a position statement. A position statement represents the opinion of the ASA House of Delegates, but is not subject to the same level of scientific scrutiny as an ASA standard or guideline. “The Anesthesia Care Team” statement provides, “Certain aspects of anesthesia care may be delegated to other properly trained professionals. These professionals, medically directed by the anesthesiologist, comprises [sic] the Anesthesia Care Team.” (Emphasis added.) It then repeats the definition of “medical direction” found in the Guidelines for the Ethical Practice of Anesthesiology.

Had this been in civil court rather than under administrative law rules at an administrative hearing, such evidence would never have been allowed since only expert witness testimony may establish a standard of care in civil court. As we have already explained, professional organizations and societies do not determine the standard of care, even when they publish documents entitled “Standard of Care”. But, as noted earlier, the rules of evidence in administrative hearing are fast and loose, and basically almost anything goes, including hearsay. So from the get go it was clear that the Board was relying heavily on ASA propaganda and publications for their case against Bernstein. Also included were the Union Memorial policies on MDA/CRNA practice which are listed in Part 2 which state in part:

The Anesthesiologist is responsible for:
1. Discussing the patient condition and prescribing a plan for that anesthesia with the [CRNA].
2. Being physically available in the most demanding procedures in this plan. Specifically those of induction and emergence when indicated.
3. Remaining physically available for diagnosis and treatment of emergencies.
4. Providing any indicated post-anesthesia care.

This policy falls far short of the ASA ‘standards’  which would have the anesthesiologist responsible for the conducting a preopertive evaluation of the patient as well as being physically present in the operating room, standing next to the patient, during induction and emergence, not just physically available which can be interpreted as ‘somewhere in the hospital and available’. However, physically available generally means ‘not otherwise engaged’, which Bernstein in fact was for a time, since he was doing an appendectomy. But, as the hearing progressed the ASA bias of Board witnesses becomes clear.

Bernstein was forced to play on the same Administrative Law field and thus had to also introduce evidence which would not be allowed in civil court in determining the standard of care, including medicare billing rules and state statutes. Again form the record:

The appellee introduced 7 exhibits, including COMAR 10.27.06, part of the Maryland Nursing Board regulations; the bill for the anesthesia services provided to Patient A; the billing regulations devised by Health Care Finance Administration’s (“HCFA”), the federal agency in charge of Medicare payments; the curricula vitae of his expert witnesses; several Maryland House of Delegates bills; and a May 2001 newsletter from the Maryland Society of Anesthesiologists (“MSA”)

COMAR 10.27.06, entitled “Practice of Nurse Anesthetist,” lists the responsibilities of CRNAs. It defines the practice of nurse anesthesia as “the performance of acts in collaboration with an anesthesiologist, licensed physician, or dentist, which require substantial specialized knowledge, judgment, and skill related to the administration of anesthesia[.]” COMAR 10.27.06.01(B)(9). It further provides that “[a]n anesthesiologist, licensed physician, or dentist shall be physically available to the nurse anesthetist for consultation at all times during the administration of, and recovery from, anesthesia.” COMAR 10.27.06.06(A)(1) House Bill 986 of the 2001 session of the General Assembly would have added to the Health Occupations Article a section defining the word “collaboration” and required that a physician be on site to supervise a CRNA while anesthesia is being administered. The MSA supported that bill, but the Maryland Nursing Board opposed it. The bill did not pass.

The board called their two reviewers as expert witnesses. Dr. Lyles obtained his medical degree from the University of Juarez in Mexico in 1981. He worked as an attending anesthesiologist at University of Maryland Shock Trauma from 1984 to 1987 and then as the Chief of Anesthesiology at Jefferson Hospital in Alexandria, Virginia from 1987 to 1992. From 1990 to 2000, he served as the Chief of Anesthesiology at Doctors Community Hospital in Lanham, Md. He worked with CRNAs at all three hospitals, although Doctors Hospital stopped using CRNAs in 1995. At the time of the hearing, he had not held admitting privileges at any Maryland hospital for 18 months and was the President of the Maryland Society of Anesthesiologists. Dr. Lyles testified that, in drafting his peer review report in this matter, he referred to various “guidelines and standards” from the ASA. From the record:

Dr. Lyles opined that the standard of care required the appellee 1) to be physically involved in the pre-operative evaluation of Patient A, as opposed to merely delegating that duty to Davis; 2) to personally explain the risks of anesthesia and the alternatives to Patient A; 3) to be present during Patient A’s induction; 4) to check on Patient A approximately every hour during the surgery; 5) to be physically available to come to Davis’s aid; and 6) to be present during emergence and extubation of Patient A. He further opined that, in the case of a patient with an ASA 3 rating, “the supervising anesthesiologist . . . would be more diligent, more anticipatory, accumulate maybe a larger, more sufficient database with an ASA 3 than you would with an ASA 1 or ASA 2,” because he “may have to control [the ongoing] disease processes during the anesthetic.” He also stated that Patient A’s SaO2 level of 92.5 was “low” and that the appellee should have addressed it in a preanesthesia evaluation. Further, Dr. Lyles testified that, given the combination of Patient A’s low Sa02, her PVCs, the possibility of her having had a myocardial infarction, her low PTT, and the changes from her April 1998 evaluation, a “cardiac evaluation by the anesthesiologist[] would be reasonable.”

On cross-examination, Dr. Lyles acknowledged that the ASA document entitled “Anesthesia Care Team,”  which he relied upon in drafting his peer review report, is not an actual guideline or standard, but a position statement. He opined that the Union Memorial policy on the major duties of nurse anesthetists is contrary to generally accepted standards of medical care. He stated that, in contrast to what the Union Memorial policy permits, an anesthesiologist must “personally participate” in the preoperative assessment, induction, and emergence of his patient.

Counsel for the appellee questioned Dr. Lyles about the billing system devised by HCFA, the federal agency overseeing Medicare. Dr. Lyles testified that, in order to bill HCFA for medical services, an anesthesiologist must provide services consistent with the ASA Guidelines for the Ethical Practice of Anesthesiology. If he provides services that do not meet the medical direction criteria, he may bill for services by use of the “QZ modifier.” Dr. Lyles testified that, even though HFCA recognizes and specifically provides for a lesser degree of anesthesiologist involvement than medical direction, billing HCFA through the QZ modifier is “fraudulent” because it is inconsistent with state medical standards. He opined that “any physician in the State of Maryland who collaborates with a CRNA in the provision of anesthesia services in a manner inconsistent with medical direction is in violation of the standard of care.”

Dr. Lyles testimony is extraordinary. Not only does he rely entirely on a professional organization’s documents and philosophy rather than what a reasonable professional would do when similarly situated, he claims that Medicare supports violating the standard of care and, as a result we have to conclude that thousands of anesthesiologists violate the standard of care each day. Of course, all of this would be barred as testimony in civil court and, if he revealed this as his testimony during a Daubert Hearing he would not be qualified as an expert. But, as I said, anything goes here, even bullshit.

Counsel further questioned Dr. Lyles about an article he wrote for the May 2001 newsletter of the MSA, in which he stated, “A high degree of variability exists in the individual supervision/collaboration agreements with regard to the definition of clinical responsibilities and duties.” Dr. Lyles testified that he did not have personal knowledge of “different ways of collaborating with CRNAs” because the collaboration agreements he has had with CRNAs “have all been standard agreements.” Dr. Lyles asserted that “the only acceptable mode [of collaboration] allowed by the standard of care in Maryland . . . is that described in the ASA [position statement].” He agreed that the question of the “necessary level of supervision for CRNAs” by anesthesiologists is a “hot topic” nationwide and in Maryland and that, through his activities with Med Chi and the MSA, he is active in that debate.

How much more clear can it be that Dr. Lyles only basis for his opinion of the standard of care is the position statements of a private club, the ASA? But then again, who is his audience? The Board of Physicians, who have their own interests at heart. Period. Maybe their next witness has some objectivity. Dr. Forbes received his medical degree in 1978 from the Medical College of Virginia, where he later completed residencies in anesthesiology and internal medicine. At the time, the Medical College of Virginia was a training facility for CRNAs. He had been the Assistant Chief and the Chief of the Department of Anesthesia at Peninsula Regional Medical Center (“PRMC”) in Salisbury, Md. and was the Head of Quality Assurance. PRMC had 12 anesthesiologists and CRNAs on staff. Dr. Forbes worked with CRNAs twice a month.

He opined that the ASA “standards” are not mandatory but have become “standards de facto by the practice that we’ve chosen to adhere to and the practice that I understand it to be that which occurs in the majority of . . . Maryland” and the rest of the country. In his view, to meet the standard of care, the appellee was required to personally review Patient’s A’s medical records, personally perform a physical examination and assess Patient A’s laboratory work, personally obtain Patient A’s informed consent, be present for induction, and check on the CRNA every 45 to 60 minutes during the surgery. Dr. Forbes concluded that the appellee failed to provide appropriate medical care because, [T]here was no evidence that he personally participated in the pre anesthesia evaluation. There’s no evidence that he personally participated in the induction. He partially fulfilled the criteria of responding and checking on the patient at times during the case, and it’s unknown whether he was present fully for emergence.

Dr. Forbes acknowledged that CRNAs can perform inductions for cataract surgery; that he is not familiar with COMAR 10.27.06 or any anesthesia groups that allow CRNAs to practice without medical direction; and that he is not familiar with anesthesia practices in parts of the state other than Salisbury. He said he believes that Union Memorial’s policies on CRNAs are in violation of the standard of care. He acknowledged that he has never taught CRNAs.

Who knows what the ‘inductions for cataract surgery’ nonsense is. Cataracts are done under sedation. Presumably he is saying a CRNA can sedate a cataract without an anesthesiologist present. So, he is not familiar with Maryland law which states that CRNAs work in collaboration with a physician, but his testimony, like Lyles, finds that state law violates the standard of care since it does not require anesthesiologist supervision (nor does any state by law). How he works with CRNAs twice per month and does not know anything about the law that says he has to have a collaboration agreement with them is mystifying and makes one wonder why HE is not charged by the Board. Oh, right…that is a Board of Nursing Rule which the Board of Physicians find to be irrelevant.

I really got on a roll here and it has become clear that we’ll have to finish in Part 4!

Anesthesia Standard of Care: Dr. Bernstein, the ASA, Maryland Board of Physicians, and Random GPS Locations: Part 4

Last modified on 2012-04-15 18:55:58 GMT. 1 comment. Top.

READ PARTS ONE – TWO and THREE FIRST!! Read the series in order and in one place on our Anesthesia Standard of Care page.

We last addressed the biased testimony of the expert witnesses, and peer review physicians, Dr.’s Lyles and Forbes, who both relied upon American Society of Anesthesiologists published “standards” as the basis for their testimony. As we noted, such testimony would never be allowed in a court of law since professional organizations or societies do not determine the standard of care, rather the standard of care is determined, through expert testimony, to be the care which the average practitioner would provide when similarly situated. But, as we pointed out, this case comes under administrative law where the rules of evidence are very different and almost anything goes.

Now, back to the hearing taking place before the Maryland Board of Physicians:

Bernstein called two expert witnesses, Timothy Gilbert, M.D., and James Pepple, M.D. Both were qualified as experts in anesthesiology. Dr. Gilbert received his medical degree from the University of Virginia in 1987, and completed residency in anesthesiology at George Washington University (GWU) in 1992.  He also worked as a clinical instructor at GWU for two years and as an instructor for a CRNA program for the U.S. Navy in the District of Columbia. Dr. Gilbert worked with CRNAs while at GWU. At the time of the hearing, he was the Section Chief of Cardiothoracic Anesthesiology at the University of Maryland Hospital. That hospital did not use CRNAs at the time, though they have since started a CRNA training program and employ CRNAs. Dr. Gilbert also had privileges at Maryland Shock Trauma and at Baltimore Veteran’s Hospital. CRNAs are used at both of these institutions.

Dr. Gilbert testified that there’s a high degree of variability in the collaboration between an anesthesiologist and a [CRNA]. He identified a continuum of collaborations that depend somewhat on the degree of expertise of the CRNA and the hospital policies and procedures that are in place at a given hospital. It ranges from an anesthesiologist providing care solely by themselves to  a CRNA is providing care solely by themselves with the back-up supervision or collaboration of a physician, dentist or podiatrist. Dr. Gilbert opined that these levels of collaboration, while varying, all are “acceptable” and meet the standard of care. “Medical direction is not related inherently to the standard of care, but is more directly related to billing terminology.”

Dr. Pepple obtained his medical degree at the University of Missouri in 1974 and completed his internship and residency in pediatrics at Johns Hopkins and then a residency in anesthesiology at the University of Pennsylvania. From 1983 to 1995, he worked at Greater Baltimore Medical Center, where CRNAs are used. Dr. Pepple has been Board-certified since 1983. At the time of the hearing, he was Chairman of Anesthesia for the Upper Chesapeake Health System — which includes Harford Memorial Hospital, Upper Chesapeake Medical Center, and Harford Surgery Pavilion — and was the Anesthesia Director for the Towson Surgical Center. He worked with CRNAs at Hopkins, the Greater Baltimore Medical Center, Harford Memorial Hospital, Towson Surgical Center, and Upper Chesapeake Health System.

Dr. Pepple testified that, in Maryland, an anesthesiologist need not practice medical direction to satisfy the standard of care. Rather, medical direction is a term that “grew out of compliance issues that HCFA was having with . . . physicians billing lots and lots and not being clear how many people were involved in care.” He stated that the ASA pronouncements are “not observed,” and represent a political, “ideal position.” He further testified that several hospitals in Maryland follow the Union Memorial model of collaboration, including Franklin Square, Carroll County, and Harford Memorial. He opined that Union Memorial’s policies exceed the standard of care. CRNAs are “expected to do all of the care themselves. . . to do everything from A to Z themselves.”

Bernstein also called Charles F. Hobelman, Jr., M.D., Chairman of the Department of Anesthesiology at Union Memorial. He testified that Union Memorial does not use medical direction, but rather a “looser form of direction,” and that its model of collaboration is similar to that used at Franklin Square. He described how the anesthesia department at Union Memorial is staffed in the evenings. He testified that the handling of Patient A’s case did not differ from the standard operating procedure under similar circumstances at Union Memorial.

Bernstein then testified that he had worked with CRNAs at Union Memorial and had learned about the standard of care from his work there. He opined that Union Memorial’s policies exceed the standard of care because they require some consultation between the CRNA and the anesthesiologist, and there must always be an anesthesiologist present on site for consultation. Like Drs. Gilbert and Pepple, he characterized medical direction as a billing concept; stated that the ASA position statement does not establish the standard of care; and agreed that the issue of collaboration between anesthesiologists and CRNAs is a “hot and debated topic.”

After closing arguments the Administrative Law Judge indicated a decision would be made within 90 days.

On August 14, 2001, the ALJ issued a written proposed decision, recommending that the charges against Bernstein be dismissed. The ALJ set forth two questions she considered to be central to the case:
1) whether the model of collaboration used by the appellee itself constituted a per se violation of the standard of care; and 2) assuming, arguendo, that the answer to that question was “no,” did the appellee breach the standard of care by delegating duties in Patient A’s case to Davis?The ALJ observed that the Board’s experts had testified that the medical direction model of collaboration is the minimum standard for providing quality medical care and that the standard of care for anesthesiologists requires that they follow that model. She further observed, however, that Bernstein’s experts were “even more impressive,” and that they had testified that the method of collaboration used by the medical community is consistent with the Union Memorial Hospital mode. She found the testimony of his expert witnesses, that medical direction is not the only acceptable collaboration model, to be “entirely credible.” She further found that testimony of the Board’s experts was “not persuasive.” The ALJ also found both Dr. Lyles and Dr. Forbes to be lacking in experience with CRNAs. Further, the ALJ found that Dr. Lyles was a biased witness, as he “is clearly on one side of [the CRNA collaboration] debate.”

The ALJ: “Dr. Bernstein presented compelling, consistent expert testimony that Bernstein used the same degree of care and skill in selecting the “medical supervision” model of collaboration that ‘reasonably competent anesthesiologists’ in the same or similar circumstances would use. I agree with Dr. Bernstein that it is incorrect to conclude that his failure to adhere to the medical direction method of collaboration with CRNA Davis, in and of itself, constituted a breach of the standard of care. Like Bernstein, I agree that the evidence fails to establish that ‘medical direction’ is the only acceptable method of collaboration. To hold otherwise would be to conclude that all the anesthesiologists, at numerous hospitals, including Union Memorial, are daily in violation of the standard of care when they practice in conformity with their peers.”

Not one to let the facts, the law, or reality dissuade them, the Board rejected the ALJ’s proposed decision, as is their right under administrative law,  in a written opinion dated June 3, 2002. The Board concluded that Bernstein had failed to meet the appropriate standards for the provision of quality medical care in Maryland, in violation of HO section 14-404(a)(22). The Board reprimanded Bernstein, and stated that it would conduct a chart review of his cases after the date of its decision, “in order to determine if the standard of quality medical care is being met with regard to interaction with patients and supervision of CRNAs during anesthetic procedures.”

The Board found that “the testimony of Drs. Lyles and Forbes was based more on medical considerations than that of Drs. Gilbert and Pepple.” The Board stated that Dr. Lyles and Dr. Forbes “testified convincingly that they learned in their training that a higher degree of supervision was necessary – and that the consensus of the nationwide community of anesthesiologists is that more supervision is required than that provided by Dr. Bernstein in this case.” The Board summarized: “Altogether, the ALJ’s proposed decision was based on an oversimplified and mechanical view of the [Board's] evidence which did not give adequate consideration to the actual medical factors in this case. The proposed decision did not weigh sufficiently the seriousness of the patient’s condition or the responsibility of Dr. Bernstein for her medical care.

The Board determined that the appellee had breached the standard of care by;
(1) failing either to physically examine the patient or to preview personally the chart or any laboratory data;
(2) failing to interact personally with the patient and explain the anesthesia opinions and obtain informed consent;
(3) failing to be present during induction and intubation; and
(4) failing to check in on the progress of the anesthesia within one hour of induction.

On June 28, 2002, Bernstein filed a petition for judicial review of the Board’s decision reprimanding him. On May 5, 2003, a hearing was held in the Circuit Court for Baltimore County. On August 25, 2004, the circuit court issued a very thorough opinion reversing the Board’s decision. The Board appealed on September 9, 2004 in the Maryland Court of Special Appeals.

Appeal of an administrative decision is not the same animal as an appeal of a civil or criminal court decision. The Court of Appeals is confined to a narrow standard of review that governs an administrative agency’s adjudicatory decision.  The Court “is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” United Parcel Service, Inc. v. People’s Counsel, 336 Md. at 577, 650 (1994). Considerable weight is given to the administrative agency’s interpretation and application of the statute that the agency administers. Furthermore, the expertise of the agency in its own field of endeavor is entitled to judicial respect. Fogle v. H & G Restaurant, Inc., 337 Md. 441, 455 (1995) In other words, barring an outrageous decision or an error of law the Board has wide latitude in deciding matters of physician practice and standard of care.

The Appeals Court found that the testimony of Dr. Forbes lacked credibility because he had limited clinical experience outside of Salsbury, MD, and could not reliably testify as to the standard of care in the state. “Given the importance of expert witness testimony to the charge in this case, the bias evidence against Dr. Lyles, and the high standard of proof, there is substantial doubt that, absent the opinion testimony of Dr. Forbes, the Board would have found that the appellee violated appropriate standards of care in his treatment of Patient A. Accordingly, we shall remand the case to the circuit court with instructions to further remand it to the Board for reconsideration without Dr. Forbes’s testimony.”

The Board was quite happy with this as they were free to again make the decision they wanted to all along, regardless of the testimony of Forbes. They sanctioned Bernstein and issued a Final Order against him. Bernstein made one final attempt in the Court of Appeals, but was denied.

What exactly the decision means in a practical way to the practice of anesthesia in Maryland is unclear. It does not make new law, it does not affect the physician or nurse practice acts. It does not change independent CRNA practice, or require CRNAs to be supervised in Maryland. If anything it encourages independent CRNA practice since what physician anesthesiologist would want to expose their license to Board action for supervising a CRNA in a manner inconsistent with a provision in a little read hospital policy? Especially if they could walk across the street to another random GPS location where anesthesia is practiced differently under an institutional policy which imposes no supervision requirements?

In the end, an anesthesiologist who was practicing the same way thousands of anesthesiologists practice every day, in every state, was hoisted by the petard of the ASA “Standards, Guidelines and Recommendations” since it is from there that such hospital policies flow.

Court of Appeals Decision

The Standard of Care in Anesthesia….not what you think

Last modified on 2010-08-06 19:36:11 GMT. 4 comments. Top.

Pages: 1 2 3