SUBJECT:

Lawrence M. Sherman, M.D.,

Petitioner,

The Inspector General

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 the situation.

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.

Issues

1. Whether Petitioner failed to provide proper treatment and care to an individual brought to the emergency department of KMH on January 10, 1996.

2. Whether a CMP should be imposed against Petitioner, and, if so, for what amount.

Findings and Discussion

The findings of fact and conclusions of law noted below in bold italics are followed by a discussion of each finding.

Factual Background

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. 21-22.

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. Tr. 24.

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:

[Mr. T.G.] was brought into room 4 of the ER by stretcher and accompanied by the paramedics. Donoghue conveyed that she believed [Mr. T.G.] was drunk because of the smell of ETH (sic) (alcohol) and the behavior he was exhibiting which was very noisy and argumentative but not combative. He kept repeating that he wanted to be taken to Ireland and to get him out of there. Donoghue then attempted to take some of [Mr. T.G.'s] vitals and was going to start a chart for the patient when she was told to stop all procedures at the direction of the ER physician, [Petitioner]. [Petitioner] said that they were not going to treat [Mr. T.G.] at KMH because he was a psych patient and therefore should have been taken to Erie County Medical Center (ECMC). Petitioner also questioned the paramedics as to why they had brought him there. At this point one of the security guards who was an off duty town of Tonawanda police officer stepped in and offered to fill out a 4.2 (sic) form⁽³⁾ so that [Mr. T.G.] could then be transported to ECMC without further incident. Donoghue thought it was Lieutenant Murphy but again was unsure.

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. 498.

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. Tr. 134.

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, 179.

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. 195-197.

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. Tr. 200.

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.

Petitioner's witnesses

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.

Discussion

1. Petitioner did not provide an appropriate medical screening examination to Mr. T.G. on the early morning of January 10, 1996, at KMH, as required by section 1867(a) of the Act and 42 C.F.R. § 489.24(a).

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. 19, 24.

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 10, 1996.

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⁾ Tr. 281.

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).

2. Petitioner refused to provide an appropriate screening examination and treatment to Mr. T.G. on January 10, 1996, at the emergency department of KMH.

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:

Well, I think that there are a number of factors here that played in. I mean, the rapid police presence certainly was an intimidating factor. I've got two police lieutenants and a patrol woman. And, youknow, they are acting as if they are securing a crime scene. . . .

Tr. 402.

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 observed [Petitioner] become agitated and yell 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 [Mr. T.G.] removed from the hospital.

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:

The doctor was upset because he [Mr. T.G.] was there. As I recall, the other people were upset because the doctor wouldn't treat him. They didn't know what we were going to do with him. It was very unusual for a doctor to say he was not going to treat him and nobody knew what to do.

Tr. 140

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.

3. Petitioner did not order the transfer of Mr. T.G. to ECMC.

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:

No, I didn't . . . I felt he got here and the appropriate people intervened and said you can't do this, you just can't dump this patient at this facility. He needs to be taken to the appropriate facility and that was what was accomplished. Tr. 399-400.

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:

Well, as I say, I really didn't feel that I was making a formal transfer of this patient. And also, I believed that the 9.41 papers [prepared] by the police changed the whole tenor of everything, that this truly was not a transfer of the patient; that [Mr. T.G.] was being sent by the police and that changed the whole approach. Tr. 400-401.

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.

4. Petitioner was derelict in permitting the transportation of Mr. T.G. to ECMC without first making a medical assessment as to the risk involved for the individual and ascertaining that his condition was stable.

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.

5. A basis exists to impose a CMP.

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:

(i) The degree of culpability of the Petitioner;

(ii) The seriousness of the condition of the individual seeking treatment;

(iii) The prior history of offenses of the Petitioner in failing to provide appropriate emergency medical screening, stabilization, and treatment of individuals coming to a hospital's emergency department or to effect an appropriate transfer;

(iv) The Petitioner's financial condition;

(v) The nature and circumstances of the violation; and

(vi) Such other matters as justice may require.

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:

• The police intervened and employed their authority to remove the patient from Petitioner's care and transported him to another hospital, a matter over which Petitioner had no control;

• The patient had requested that he be taken to detox, and KMH does not have such a unit. Furthermore, the patient was en route to ECMC when he was diverted to KMH for the convenience of the paramedics.

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.

(a) Degree of culpability.

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.

(b) The seriousness of Mr. T.G.'s condition.

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.

(c) Petitioner's previous history of non-compliance.

The I.G. presented no evidence of a history of non-compliance on the part of Petitioner.

(d) Petitioner's financial condition.

There is no evidence that Petitioner lacks the financial ability to pay a CMP of $25,000.

(e) The nature and circumstances of the violation.

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.

(f) Such other matters as justice may require.

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 behavior.

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.

Conclusion

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.