Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
The Inspector General, |
DATE: Ocotober 31, 2001 |
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Rush Foundation Hospital
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Docket No.C-00-301
Decision No. CR832 |
DECISION | |
DECISION
I. Background The case before me arose pursuant to the notice letter
issued on December 28, 1999, by the Inspector General (I.G.) of the Department
of Health and Human Services. The notice letter informed Rush Foundation
Hospital (Respondent or Rush) of the I.G.'s determination that Respondent
had violated section 1867 of the Social Security Act (Act) on July 14,
1996, with respect to the care of a pregnant patient who was brought by
ambulance to Rush's emergency room. The I.G. notified Respondent that
she was proposing to impose a civil money penalty (CMP) in the amount
of $50,000 for the violation. Respondent filed a timely challenge to the
I.G.'s determination and proposed action. I held an in-person hearing for three days in Jackson
and Meridian, Mississippi. The parties have also submitted post-hearing
briefs.(1) In the sections that follow, I explain why I conclude
that Respondent did not violate section 1867 of the Act in its treatment
of the patient, S.D.,(2) on July 14, 1996.
For the reasons set forth, I find that Respondent provided an appropriate
medical screening examination to S.D. and that the results of that screening
examination indicated that S.D. did not suffer from an emergency medical
condition at the time of the examination. Because Respondent determined
that no emergency medical condition was present, the duty to provide additional
stabilizing treatment to S.D. or to transfer her in accordance with the
requirements of section 1867 was not triggered. Accordingly, I reject
the I.G.'s proposal to impose a CMP of $50,000. II. Applicable Statutes and Regulations Section 1867 of the Act specifies the responsibilities
placed on those hospitals which have emergency rooms and which participate
in the Medicare program.(3) These responsibilities
are triggered whenever an individual (whether or not a Medicare beneficiary)
comes to a participating hospital's emergency room and a request for medical
treatment is made by that individual or on that individual's behalf. Section
1867(a) of the Act. At that point, the hospital must provide an appropriate
medical screening examination to determine whether the individual has
an emergency medical condition. Section 1867(a) of the Act; see
42 C.F.R. � 489.24(a). Section 1867(e) of the Act defines "emergency medical
condition" to mean:
Subsections (b) and (c) of section 1867 of the Act specify
additional responsibilities that arise if the hospital determines that
an individual suffers from an emergency medical condition. Specifically,
the hospital must provide treatment within its capabilities or arrange
for transfer of the individual to another medical facility. If the hospital
opts to transfer the individual, the hospital must provide at least such
treatment as will minimize the risks of transfer, and must meet a number
of requirements with regard to documentation, informed consent, and acceptance
of the case by the facility to which the individual is being transferred. Subsection (d) of section 1867, titled "Enforcement,"
authorizes the I.G. to impose a CMP against a participating hospital that
negligently violates any of the statutory requirements. A CMP of up to
$50,000 is authorized for each such violation. In determining the amount of a CMP, the I.G. is required
to consider the following factors:
42 C.F.R. � 1003.106(a)(4). The I.G. bears the burden of proving, by a preponderance
of the evidence, that Respondent negligently violated the statute. Section
1867(d)(1) of the Act; 42 C.F.R. �� 1005.15(b)(2) and (d). III. Factual Background Rush is a private, non-profit hospital located in Meridian,
Mississippi. Respondent's Exhibit (R. Ex.) 35 at 2. In addition to operating
an acute care hospital, Rush also operates a primary care clinic, the
Central Mississippi Family Health Clinic (Clinic). S.D., who was a Medicaid
patient, was referred to the Clinic by the Clarke County Health Department
for prenatal care. R. Ex. 2 at 6; R. Ex. 3 at 8. At the time,
S.D. was 22 years old and pregnant with her fourth child. R. Ex. 2 at
6; R. Ex. 3 at 10. S.D. was seen at the clinic on a number of occasions
for prenatal care. R. Ex. 2 at 7; R. Ex. 3 at 1, 8. In addition, she underwent
a routine ultrasound and a Doppler venous study at Rush Hospital during
her pregnancy. R. Ex. 3 at 8, 19-20. During the course of S.D.'s prenatal care, the nurse-midwives
at the Clinic became aware that S.D. had a history of deep-vein thrombosis
(DVT) during a previous pregnancy. R. Ex. 2 at 9; R. Ex. 3 at 10, 17.
DVT is a condition in which blood clots form in the pelvis or legs. Transcript
(Tr.) 707. If a pregnant woman develops DVT, there is a risk that a clot
will break off and travel to the lungs, resulting in a pulmonary embolism.
Tr. 707-08. Pulmonary embolism poses a high risk to both the mother and
the unborn child. Tr. 615, 708. Because S.D. was at increased risk for
DVT, the Clinic midwife consulted one of her supervising physicians at
Rush, who recommended that S.D. be evaluated at the University of Mississippi's
University Medical Center (UMC). R. Ex. 3 at 8. UMC
is located in Jackson, Mississippi. See, e.g., R. Ex. 4 at 2. UMC is the only hospital in the State of Mississippi that
is designated as Level 3 by the State health plan, indicating that there
are in-house physicians at the hospital representing every sub-specialty
and that the physicians participate in medical education and research.
Tr. 615-16. UMC is also the only Level 1 Trauma Center in Mississippi,
which means that it is equipped and certified to handle the most serious
trauma cases. Tr. 616. UMC has put in place a prenatal outreach program
in an effort to improve the outcome of pregnancy for mothers and babies
in Mississippi. Tr. 635-36. Pursuant to this program, UMC physicians and
nurses conducted training at every hospital in the State to educate medical
personnel to assess the medical risks for pregnant women and their unborn
children so that the patients could be referred to a hospital that could
offer the optimum level of care. Id. S.D. was evaluated at UMC. The doctors there prescribed a prophylactic dose of Heparin, an anticoagulant. R. Ex. 4 at 15. The purpose of the Heparin was to reduce the risk that S.D. would again develop DVT, and, if she did develop a clot, to prevent it from becoming a pulmonary embolism. Tr. 617, 710. Once UMC began treating S.D., a physician supervisor at Rush's Clinic recommended that S.D.'s care be transferred to UMC. R. Ex. 3 at 2; Tr. 532. UMC agreed to follow S.D. and planned for her to deliver there. Tr. 670-71. S.D. also agreed with the decision to transfer her care to UMC. R. Ex. 3 at 2. S.D. made arrangements with Paratech Ambulance Service to transport her from her home in Quitman, Mississippi to UMC in Jackson to deliver her baby. R. Ex. 27 at 2. Pursuant to that agreement, a member of S.D.'s family called Paratech at about 12:30 a.m. on July 14, 1996, because S.D. thought that she was in labor. R. Ex. 7 at 1; R. Ex. 27 at 2; Tr. 309. The ambulance arrived at S.D.'s mother's apartment in Quitman, Mississippi at 12:45 a.m. and departed at 1:00 a.m. Tr. 312; R. Ex. 7 at 2.The paramedic staffing the ambulance that night was not aware that S.D. had prearranged to be transported to UMC in Jackson. Tr. 340. In any event, S.D. told him that she wanted to be taken to UMC, for her scheduled delivery. Tr. 322, 340; R. Ex. 7 at 1; R. Ex. 27 at 2. However, the paramedic became concerned about transporting S.D. to UMC upon learning of S.D.'s medical history. The paramedic understood S.D. to have a history of blood clots in the pelvis during that current pregnancy (in 1996).(4) Tr. 321, 384. He also understood that she was taking Heparin. Tr. 321-22. The paramedic felt that, given her history, he could not leave his ambulance district without obtaining a physician's order to do so. Tr. 322, 344. Transporting S.D. to Jackson would have required leaving the ambulance district. Tr. 322. The paramedic contacted his physician supervisor by cell phone because he believed that S.D. needed to be evaluated locally before proceeding to Jackson. Tr. 322-23, 344. The physician agreed that S.D. should be evaluated in Meridian. Id. The paramedic told S.D. that they were going to have her evaluated in Meridian before proceeding to Jackson. Tr. 324. S.D. told the paramedic that she had had her early prenatal care at Rush, and requested to go there. Id. Once the decision was made to go to Rush, at 1:25 a.m., the paramedic radioed to Rush's emergency room to tell them that he was bringing S.D. there. Tr. 312, 325. They arrived at Rush at around 1:30 a.m. Tr. 313. The paramedic brought S.D. into the emergency room and put her in an exam room at the direction of an emergency room nurse. Tr. 327. The emergency room nurse requested that S.D. remain on the ambulance stretcher. Tr. 328. The emergency room nurse told them that a Labor and Delivery nurse would come to evaluate the patient. Id. Ginger Young, a registered nurse employed in Rush's Labor and Delivery Department, came to the emergency room to examine S.D. Tr. 442-43, 446. Nurse Young took S.D.'s vital signs, performed a sterile vaginal examination of S.D., manually palpated S.D.'s contractions, and measured the fetal heart tones using a Doppler device. Tr. 448-451. After completing her assessment, Nurse Young reported her findings to Valerie Jewell, a certified nurse midwife employed at Rush. Tr. 446, 454-55. Nurse Young and Nurse-midwife Jewell determined that S.D. should proceed on to UMC. Tr. 455. At about 1:50 a.m., S.D. was placed back in the ambulance and they continued toward Jackson. I.G. Ex. 1; Tr. 313, 334. At about 2:20 a.m., S.D.'s membranes ruptured. Tr. 313, 336. As time went on, S.D. began to have the urge to push. Tr. 337. The paramedic performed an external visual vaginal examination of S.D. Id. He determined that S.D. was bulging, which he understood to be pre-crowning. Based on his experience and training, he felt that the delivery was progressing, so he instructed the ambulance driver to divert to the next available hospital. Id. At about 2:55 a.m., they arrived at Rankin Medical Center. Tr. 313-14. A nurse and an emergency room physician at Rankin delivered S.D.'s baby. Tr. 338. S.D. and her baby did well; there were no complications. Id. At about 4:30 a.m., S.D. and her baby were placed back in the ambulance and transported to UMC. Tr. 314, 338. They arrived at UMC at about 4:55 a.m. Tr. 315. IV. Discussion
The I.G. contends that Rush failed to perform an appropriate
medical screening examination on S.D., in violation of the requirements
of section 1867. According to the I.G., the medical screening evaluation
was not appropriate because it was not performed competently and because
it deviated from written policies promulgated by Rush. It is apparently
the I.G.'s contention that, had the medical screening evaluation been
performed competently, it would have revealed that S.D. suffered from
an emergency medical condition. The I.G. argues that, because S.D. was
pregnant with her fourth child and had a history of short labors, it was
foreseeable that there was not enough time on July 14, 1996 to transport
her from Rush in Meridian to UMC in Jackson before her baby was delivered.
The I.G. argues additionally that S.D. suffered from a condition, risk
of DVT, that put her and her unborn child at risk when she was transported
to UMC. Either of these factors would meet the definition of an emergency
medical condition under section 1867, according to the I.G. Because S.D.
suffered from an emergency medical condition within the meaning of the
Act, the I.G. argues that Rush violated the transfer provisions of section
1867, in that no risk-benefit analysis was performed or documented and
no one from Rush called UMC to get UMC's consent to accept S.D. as a patient. As a threshold matter, Respondent argues that its duties
under section 1867 were never triggered because S.D. did not present to
Rush seeking treatment. Respondent next argues that, if Rush did owe S.D.
a duty under section 1867, it satisfied that duty. Respondent argues that
a hospital's duty under section 1867, as interpreted by a number of federal
court decisions, is satisfied if the hospital provides a patient presenting
to the emergency room with the same type of medical screening examination
that the hospital would provide to any other similarly situated patient.
Respondent argues that it is immaterial under section 1867 whether a hospital
correctly assesses the presence or absence of an emergency medical condition,
so long as it has performed an appropriate screening examination. Respondent
argues that it provided S.D. with the same type of screening examination
that it would have provided to any other similarly situated pregnant patient.
Thus, according to Respondent, it did not violate section 1867. Respondent
further contends that it correctly determined that S.D. did not have an
emergency medical condition when she came to Rush's emergency room on
July 14, 1996. Finally, Respondent argues that it was denied due process
in proceedings before the Peer Review Organization (PRO).
My analysis of this case is based on the record as a whole, including the testimony and documentary evidence received at the hearing and the parties' arguments as expressed in their post-hearing briefs. Within this section of the decision, the headings and subheadings represent my findings of fact and conclusions of law. The text following each heading or subheading explains my reasoning in reaching each such finding and conclusion.
A participating hospital's duties under section 1867 of
the Act are triggered whenever an individual comes to the emergency department
and a request is made by the individual or on the individual's behalf
for examination or treatment. Respondent argues that S.D. did not present to the emergency
room seeking treatment. Therefore, Respondent argues further, no duty
imposed by section 1867 was ever triggered. R. Br. 17-21. Respondent's
argument is based on the fact that S.D. had previously arranged for and
requested the Paratech ambulance crew to take her to UMC. Respondent contends
it should not be penalized for the ambulance company's interference with
S.D.'s plan of care. Respondent also points to testimony of Nurse Young
to the effect that S.D. told her she had come to the hospital to let one
of the nurse-midwives know she was going to UMC to deliver. Tr. 447-48.
I agree with Respondent that S.D. and the physicians and nurse-midwives
at UMC and Rush planned for S.D. to deliver at UMC.(5)
This plan cannot change the fact that S.D. was brought to Rush on July
14, 1996, however. The regulations implementing section 1867 make clear that
a patient brought by a non-hospital-owned ambulance to an emergency room
is considered to have come to the emergency room as soon as the ambulance
enters on hospital property. 42 C.F.R. � 489.24(b). Here, there is no
dispute that S.D. was actually brought to Rush's emergency room. Therefore,
I must conclude that S.D. presented to the emergency room. There may be some legitimate dispute as to whether S.D.
herself requested examination or treatment of Rush. Nurse Young's testimony
casts some doubt on what S.D. understood the purpose of her visit to Rush
to be. Tr. 447-48. Nevertheless, it is clear to me that the paramedic
conveyed, at a minimum, a request that S.D. be examined by Rush's staff.
He testified that he told the emergency room nurse that he had brought
S.D. to Rush to have her evaluated to see if delivery was imminent before
proceeding on to UMC. Tr. 330; see also id. at 447. For
this reason, I conclude that a request was made on S.D.'s behalf for examination
in the emergency room. Because S.D. came to the emergency room and a request
was made on her behalf for examination, I find that Respondent's duty
to provide S.D. with a medical screening examination, as required by section
1867, was triggered.
The parties vehemently disagree as to whether Nurse Young's
evaluation of S.D. on the night of July 14, 1996 represented an appropriate
medical screening examination satisfying the requirements of section 1867.
The I.G. argues that an appropriate medical screening examination would
have required that S.D. be brought to Rush's Labor & Delivery Department
(L&D) and placed on continuous electronic fetal monitoring. I.G. Br.
24. It is undisputed that this was not done. On the other hand, Respondent
argues that Nurse Young's evaluation of S.D. was the functional equivalent
of the examination which S.D. would have received in L&D. See,
e.g., R. Br. 24, 29. I find that the greater weight of the evidence
supports the conclusion that Nurse Young performed an adequate medical
screening examination. As an initial matter, I note that Respondent correctly
states the legal standard for determining what is an "appropriate medical
screening" as enunciated by the federal courts. Specifically, in Marshall
v. East Carroll Parish Hospital, 134 F.3d 319 (5th Cir.
1998), the U.S. Court of Appeals for the Fifth Circuit held that an appropriate
medical screening "is not judged by its proficiency in accurately diagnosing
the patient's illness, but rather by whether it was performed equitably
in comparison to patients with similar symptoms." Id. at 322. It
is of crucial importance to recognize that, for purposes of section 1867,
the question of whether a hospital arrived at a correct diagnosis is irrelevant
to the question of whether it provided an appropriate medical screening
examination.(6) It appears that the I.G. has lost sight of this critical
point, however, because her argument is premised, in large part, on the
assumption that Nurse Young's evaluation was inadequate because it failed
to predict that S.D. would deliver her baby before reaching UMC. See,
e.g., I.G. Reply 6. The I.G.'s argument relies on hindsight to fault
Nurse Young's medical judgment. But, even if Nurse Young's medical judgment
had been wrong (a conclusion I do not draw, as discussed below), it would
not matter so long as she provided S.D. with the same type of evaluation
given to any other pregnant patient. Nurse Young testified that, during her evaluation of S.D.,
she took vital signs, performed a sterile vaginal examination, assessed
fetal heart tones with the Doppler, and palpated manually for contractions.
Tr. 448-50. The results of the sterile vaginal examination revealed that
S.D.'s membranes were intact; her cervix was dilated three to four centimeters,
and approximately 60% effaced; and the baby's head was at the -1 station.
Tr. 450. Nurse Young also testified that before she saw S.D. in the emergency
room, she had reviewed S.D.'s records in the L&D Department. Tr. 446.
Based on her review of these records, Nurse Young was aware that S.D.
was scheduled to deliver at UMC because of S.D.'s history of thrombophlebitis.
Tr. 447. Nurse Young wrote a note documenting her clinical findings
and gave it to the paramedic to take along in the ambulance. Tr. 451;
R. Ex. 14. Nurse Young also placed a note documenting her findings in
S.D.'s record in Rush's L&D department. Tr. 452; R. Ex. 15.
The I.G. would have me conclude that S.D. was not given
the same examination given to other pregnant patients. In making this
argument, the I.G. points to Rush's policy regarding
obstetrical patients who present to the delivery room:
I.G. Ex. 57. The I.G.'s position is that because S.D.
was not taken to 3 West (Rush's L&D Department), and was not hooked
up to electronic fetal monitoring, S.D.'s evaluation did not conform to
the evaluation given other pregnant patients. The difficulty with this
argument is that the I.G. presented no evidence from any Rush staff member
or any Rush patient that would tend to prove that other pregnant patients
at Rush received a different examination than the one provided S.D. To the contrary, Nurse Young testified that the examination
she performed on S.D. was the same examination she would have performed
on any other pregnant patient presenting at Rush with similar symptoms.
Tr. 454. In addition, Respondent's experts, Drs. Purdy, Morrison, and
Goldstein, all testified that the examination Nurse Young performed was
the same examination that they would have performed. Tr. 538-39, 604-05,
693-94. Moreover, Dr. Purdy, who formerly practiced at Rush and was familiar
with Rush's policies, testified that Nurse Young's evaluation of S.D.
in the emergency room was essentially equivalent to that described in
the policy. Tr. 528, 551-52. He opined that the effect of having Nurse
Young, a trained obstetrical nurse, come to the emergency room to evaluate
S.D., was merely to change the point of service for the evaluation. Tr.
552. For that reason, Dr. Purdy opined that Rush substantially complied
with the policy. Id.(7) Thus, I find that the greater weight of the evidence supports the conclusion that Nurse Young provided S.D. with the same medical screening examination that would have been provided to any other pregnant patient presenting at Rush.
In her reply brief, the I.G. argues that Nurse Young failed
to provide a "competent" medical screening examination of S.D. I.G. Reply
5 n.2. I interpret this argument to mean that, even if Nurse Young took
the appropriate steps in examining S.D. - performing a sterile vaginal
examination and measuring fetal heart tones, for example - I should nonetheless
conclude that she performed these tasks so incompetently that, in effect,
no medical screening examination was given.(8)
In particular, the I.G. finds fault with the way in which Nurse Young
measured fetal heart tones and assessed S.D.'s contractions. The I.G. apparently concedes that monitoring fetal heart
tones by Doppler is within the standard of care. See I.G. Br. 28
n.20; I.G. Reply 6. The I.G. contends, however, that Nurse Young did not
use the Doppler properly, and therefore could not reliably assess the
presence or absence of fetal distress. I.G. Br. 28-29; I.G. Reply 6. The
I.G. points to I.G. Ex. 70 for the proposition that the Doppler should
be taken in relation to a contraction to observe the baby's response to
labor. The I.G. argues that Nurse Young did not understand the relationship
between contractions and measuring fetal heart tones. I.G. Reply 6. The
evidence does not prove the I.G.'s assertion. Nurse Young testified that she had received training in
the use of the Doppler fetal heart rate monitor through on-the-job training
and in-service training. Tr. 449-50. She testified that she measured fetal
heart tones intermittently while S.D. was in the emergency room. Tr. 494.
She measured the fetal heart tones on S.D.'s arrival at Rush, took them
intermittently while S.D. was there, and took them again before S.D. was
placed on the ambulance for continued transport to UMC. Tr. 493. Nurse
Young testified that she measured the fetal heart tones more than three
times, but less than ten times. Tr. 449. The fetal heart tones were within
the same range each time she measured them. Tr. 495. All of the readings
were in the 160's, though the actual numbers varied somewhat each time.
Tr. 450, 495. Upon cross-examination, Nurse Young stated that S.D. was
not having a contraction the first time she measured the fetal heart tones.
Tr. 493. She did not recall whether S.D. was having a contraction when
she measured fetal heart tones for the second time. Id.(9) Nurse Young's testimony demonstrates only that S.D. was
not having a contraction when Nurse Young measured the fetal heart tones
the first time. Nurse Young could not recall whether or not S.D. was having
a contraction during the second measurement. The testimony is silent as
to whether any of Nurse Young's other intermittent measurements coincided
with a contraction. It seems more likely than not that one of her measurements
followed a contraction. Similarly, I can find no support for the suggestion
that Nurse Young lacked an understanding of the relationship between contractions
and measuring fetal heart tones. She was never asked to explain what her
understanding was. One of the I.G.'s expert witnesses, Dr. Ball, testified
that, without a printout from an electronic fetal monitor, it would be
difficult for him to assess whether or not S.D.'s baby was in distress
based on Nurse Young's note indicating that fetal heart tones were in
the 160's. Tr. 97-100. Dr. Ball also testified that he himself has assessed
patients by using a Doppler and "laying on of hands" and his criticism
of that method of assessment was that it is "subjective" and "not reproducible."
Tr. 97. I understand Dr. Ball's testimony to be that the documentation
he reviewed was inadequate for him definitively to diagnose or rule out
fetal distress in S.D.'s case. I do not find that his testimony indicates
that Nurse Young's assessment was per se inadequate to diagnose fetal
distress. The I.G. also argues that Nurse Young's examination was
incompetent because she failed to time S.D.'s contractions. Nurse Young
did manually palpate S.D.'s contractions, however. Tr. 450-51. Nurse Young
also obtained a history from S.D. as to the onset and frequency of her
contractions. R. Ex. 15. In addition, Nurse Young had the results of her
sterile vaginal examination of S.D. Based on these factors and relying
on her experience as an OB nurse who had attended hundreds of laboring
women (Tr. 451), she formed a medical judgment about S.D.'s labor.(10)
Her judgment was that S.D. was in the first stage of active labor. Tr.
495, 506-07. Her judgment was that S.D. was not likely to deliver within
two hours. Tr. 508. Nurse Young conveyed the results of her examination
to the certified nurse-midwife on duty, who concurred with Nurse Young's
judgment. Tr. 447, 454-55. Respondent's expert witnesses all testified that the medical
screening examination performed by Nurse Young was adequate and appropriate.
Tr. 538, 604, 693-94. The I.G.'s expert witnesses disagreed. Tr. 97-100,
222-24. In determining what weight to accord the testimony of the expert
witnesses, I have considered the experts' education and training, their
experience, their reputations within their fields of expertise, and their
demeanor in testifying before me. Based on these criteria, I find Dr.
Morrison to be the most authoritative and credible of the experts presented
by either party. Further, on balance, I find that the experience, training
and reputation of Respondent's experts outweighs that of the I.G.'s experts. Dr. Ball and Dr. Barnes may be competent practitioners,
but they clearly lack the scope of expertise of Dr. Morrison. I.G. Exs.
39, 40. Indeed, Dr. Barnes no longer actively practices in the field of
obstetrics. Tr. 235. Of Respondent's witnesses, Dr. Goldstein also no
longer personally delivers babies. Tr. 691. However, Dr. Goldstein, like
Dr. Morrison, is well-known for his research in the field of maternal-fetal
medicine. Tr. 196-97; see also R. Ex. 29. He also manages a department
that has 4,000 deliveries annually. Tr. 691. Dr. Purdy is a practicing
obstetrician-gynecologist. Tr. 525. He chairs the department of obstetrics
and gynecology at Riley Memorial Hospital in Meridian, Mississippi. Tr.
527; see also R. Ex. 31. Dr. Morrison is an internationally-known expert in the
field of maternal-fetal medicine. Tr. 195. He is board-certified in obstetrics
and gynecology, maternal-fetal medicine, and surgery. Tr. 599. Dr. Morrison
is the Chair of the Department of Obstetrics and Gynecology at UMC, where
he delivers 150-250 babies per year. Tr. 599, 601. He is also engaged
in education and research, having published over 400 peer-reviewed articles,
80 book chapters, and three text books. Tr. 599-600, 602. See also
R. Ex. 30. In addition, Dr. Morrison himself treated S.D. both before
and after the birth of her baby. Tr. 617, 620. Dr. Morrison testified clearly and forthrightly.(11)
Dr. Morrison stated that Nurse Young's examination of S.D. was "adequate,
competent, and met the standard of care." Tr. 604. For the reasons just
discussed, I accord to his testimony greater weight than I accord to the
testimony of the other experts. I cannot find on the evidence presented that Nurse Young's
evaluation of S.D. was so incompetent as to have been meaningless. Further,
the greater weight of the evidence favors the conclusion that the examination
was equivalent to that provided to other pregnant patients. Accordingly,
Rush provided S.D. with an adequate medical screening examination within
the meaning of section 1867. That medical screening examination resulted
in a determination that S.D. did not have an emergency medical condition
defined by the statute. Specifically, the medical screening examination
determined that there was adequate time to transport S.D. to UMC before
delivery.
Respondent argues that section 1867 was not intended to
create a federal cause of action for misdiagnosis or improper medical
treatment. See R. Br. 15. Rather, according to Respondent, the
remedial purpose of section 1867 is to discourage hospitals from providing
indigent patients with less care than they would provide similarly situated
patients who have the ability to pay. If this interpretation of section
1867 is correct, it is irrelevant whether Rush's determination that S.D.
did not suffer from an emergency medical condition was correct. I am inclined
to agree with Respondent's position. The I.G. has argued at great length,
however, that S.D. in fact suffered from an emergency medical condition.
Therefore, while it may be little more than dicta, I will discuss why
I conclude that Rush exercised reasonable medical judgment in concluding
that S.D. did not suffer from an emergency medical condition. The I.G. points to two factors which, in her view, demonstrate
that S.D. suffered from an emergency medical condition. The first factor
is S.D.'s history of short labors. From this factor, the I.G. alleges,
Rush should have known there was inadequate time to transport S.D. to
UMC before her delivery. The I.G. argues, accordingly, that S.D. suffered
from an emergency medical condition under section 1867(e)(1)(B)(i). The
second factor is S.D.'s risk of developing DVT, and the fact that she
was taking Heparin to minimize this risk. According to the I.G., these
facts meant that transport of S.D. would pose a risk of serious harm to
S.D. or her unborn child. Thus, on these facts, the I.G. contends that
S.D. had an emergency medical condition within the meaning of section
1867(e)(1)(B)(ii).
The I.G. makes the argument that, since S.D. delivered
her baby en route between Rush and UMC, "[t]hat fact alone establishes
that there was not enough time to effect a safe transfer and establishes
that S.D. had an emergency medical condition . . . ." I.G. Br. 36. The
I.G. goes on to acknowledge that Rush should not be held liable under
section 1867 unless it was foreseeable at the time S.D. was evaluated
at Rush that she would deliver before she reached UMC. Id. Nevertheless,
in my judgment, the I.G.'s entire case depends upon reasoning from hindsight,
as the first quoted sentence suggests. The weight of the evidence, however,
is that S.D.'s unusually rapid delivery was not foreseeable. The I.G. presented the testimony of two expert witnesses
who were of the opinion that S.D.'s rapid delivery was foreseeable. One
of the I.G.'s experts, Dr. Ball, testified that, based on S.D.'s history
of previous labors lasting thirteen, eight, and four hours, he would not
have expected her last labor to last more than four hours. Tr. 110. On
the other hand, Dr. Ball admitted on cross-examination that an eight-hour
labor would be average for women with S.D.'s clinical signs. Tr. 173-74;
see also R. Ex. 32 at 2. Dr. Ball also relied on the frequency of S.D.'s contractions,
as measured by the ambulance paramedic, as a factor influencing his opinion
that it was foreseeable that there was not enough time to transport S.D.
to UMC before delivery. See, e.g., Tr. 132-33, 174. There is conflicting
evidence in the record about how frequently S.D. was contracting. The
paramedic who attended S.D. in the ambulance recorded that S.D. was contracting
every two to three minutes and that her contractions were 90 seconds in
duration. I.G. Exs. 1, 2. Nurse Young's note and affidavit indicated that
S.D. was having contractions every four to six minutes. R. Exs. 11, 15.
S.D.'s declaration suggests that she may have been contracting every seven
minutes. I.G. Ex. 15 at �� 16, 17. As noted previously, Dr. Ball relied on the paramedic's
observations in reaching his opinion. On the other hand, Respondent's
experts generally relied more on the observations of Nurse Young and S.D.
One expert, however, gave an opinion which reconciled all the apparently
conflicting testimony. Dr. Morrison testified that it is a hallmark of latent labor to have contractions that vary in frequency. Speaking of the different frequencies recorded for S.D.'s contractions, he said:
Tr. 655. Dr. Morrison further testified that the results
of Nurse Young's sterile vaginal examination of S.D. were consistent with
S.D. being in the latent stage of labor. Tr. 608. As noted above, Nurse
Young recorded that S.D.'s cervix was dilated three to four centimeters
and that the baby's head was at the -1 station. In contrast, Dr. Morrison
stated that clinical signs of active labor would include dilation of the
cervix to four to five centimeters and the baby's head at the 0 or +1
station. Id. Perhaps most importantly, Dr. Morrison opined that,
even if S.D. had been contracting consistently two to three minutes apart,
as recorded by the paramedic, the other factors would outweigh the frequency
of contractions. Tr. 653. I have already discussed above my reasons for according
great weight to Dr. Morrison's testimony. For those reasons, and because
his is the only testimony that convincingly rationalizes apparently conflicting
evidence in the record, I rely on his expert opinion to determine that,
even if S.D. had been contracting two to three minutes apart prior to
her arrival at Rush, that fact would not have been sufficient to put Rush
on notice that S.D.'s delivery was imminent. The I.G.'s other expert, Dr. Barnes, also testified that it would have been foreseeable to an experienced practitioner that S.D. would deliver before she got to UMC:
Tr. 227-28. Dr. Barnes' testimony proceeds from at least
one assumption that is inaccurate according to S.D.'s medical records,
however. S.D.'s cervix did not dilate from closed to three or four centimeters
between midnight and 1:30 a.m. on July 14, 1996. Instead, as early as
July 1, 1996, S.D.'s cervix was three centimeters dilated, without any
contractions. R. Ex. 4 at 12; Tr. 611. Moreover, Dr. Barnes' testimony
relies on the fact that S.D.'s membranes ruptured approximately 20 minutes
after she left Rush's emergency room. Thus, even according to Dr. Barnes'
testimony, it would have been apparent that S.D. was in the accelerated
phase of labor only after she left Rush. Dr. Barnes did not explain how,
other than in hindsight, Rush's personnel could have known that S.D.'s
membranes would rupture in such a relatively short period of time. In contrast to the testimony of Dr. Ball and Dr. Barnes,
Respondent's experts all were of the opinion that S.D.'s labor was so
far outside the norm that it was not reasonably foreseeable that she would
deliver as quickly as she did. For example, Dr. Morrison testified that
among women having previous births, 50 percent have a shorter labor and
50 percent have a longer labor than their shortest previous labor. Tr.
609. Therefore, in his opinion, a history of short labor is not particularly
useful in predicting how short the present labor will be. Id. Considering
the results of Nurse Young's examination of S.D., Dr. Morrison would have
been 99 percent sure S.D. would not have delivered before two to four
hours had passed. Tr. 613; see also id. at 622, 637. Dr.
Purdy and Dr. Goldstein similarly concluded that a woman with S.D.'s clinical
signs would be unlikely to deliver in less than two hours. Tr. 562-63,
703. I find that the greater weight of the evidence supports the conclusion that Rush did not act unreasonably in determining that there was adequate time to transport S.D. to UMC. Therefore, Rush was justified in concluding that S.D. did not have an emergency medical condition within the meaning of section 1867(e)(1)(B)(i).
I observe at the outset that the I.G.'s argument on this
point is somewhat circular. The I.G. apparently does not dispute that
Rush transferred S.D.'s care to UMC precisely because she was at risk
for developing DVT and because UMC medical staff prescribed a prophylactic
dose of Heparin to deal with this risk. See, e.g., Tr. 532-34,
615. Presumably, the I.G. does not dispute that it was reasonable for
S.D. to have planned to deliver her baby at UMC, again precisely because
of her risk of developing DVT. See Tr. 106. Nevertheless, the I.G.
argues that, on July 14, 1996, when S.D. went into labor, transporting
her to UMC posed too great a risk to her and her baby. The only possible
basis for such an argument is that, in hindsight, it became clear that
S.D. did not reach UMC before her baby was delivered. I have explained
in the previous section why I believe that S.D.'s unusually rapid delivery
was not reasonably foreseeable, however. Accordingly, there is no basis
for Rush to have concluded that transport of S.D. to UMC on July 14, 1996
would pose a risk to S.D. or her unborn child on account of S.D.'s risk
of developing DVT. There is no dispute that DVT is a potentially serious
condition in pregnant women because of the potential for it to lead to
pulmonary embolism. See, e.g., Tr. 615, 657, 707-710. S.D. was
already at risk for DVT, however, prior to July 14, 1996. She had been
identified as a high-risk patient. That was why her prenatal care had
been transferred to UMC. Transporting her from Rush to UMC on July 14,
1996 did not change the fact that she was at risk to develop DVT. There
is no suggestion anywhere in the record that the transport itself would
have increased S.D.'s risk of developing either DVT or a pulmonary embolism.
The I.G.'s argument is apparently premised on the concern that S.D. might
have suffered a pulmonary embolism while en route from Rush to UMC. But
the weight of the expert testimony is that, had S.D. developed a pulmonary
embolism, the best place for her to be treated would have been UMC, a
tertiary care center where the staff was familiar with her risk factors
and had planned for her delivery. See Tr. 534, 619, 621, 710. Thus,
while it is true that S.D. was a high-risk patient because of her risk
of developing DVT, it is not the case that her transport to UMC on July
14, 1996 placed her or her unborn child at any greater risk from this
condition. I am persuaded, based on all the evidence of record in
this case, that Rush sent S.D. on to UMC in the early morning hours of
July 14, 1996, because that was what the doctors and nurse-midwives at
Rush, as well as the doctors at UMC, had previously decided would be the
best way to care for her and her unborn child in light of her risk of
developing DVT. The I.G.'s argument that Rush violated section 1867 because
S.D. was at risk for developing DVT is entirely unpersuasive. The I.G. also suggests that S.D.'s use of Heparin to treat her risk of DVT put her at risk of hemorrhage. According to the I.G., this risk of hemorrhage was another factor that placed S.D. and her unborn child at risk. I.G. Br. 32. Dr. Ball testified that S.D. was at increased risk of postpartum hemorrhage. Tr. 104, 106. The paramedic believed that Heparin use put S.D. at risk for postpartum hemorrhage. Tr. 332. Dr. Morrison's testimony was quite clear, however, that the dose of Heparin S.D. had been prescribed did not put her at risk of hemorrhage. Tr. 616-18. According to Dr. Morrison, S.D.'s dose of Heparin was sufficient to prevent clots from forming in her veins (i.e. DVT), but it was not enough to anticoagulate her to the extent that she would have been in danger of hemorrhaging. Tr. 616-17. Moreover, Dr. Morrison testified, if S.D. had suffered postpartum hemorrhage, it would not have been caused by her dose of Heparin, but by some more serious complication. Tr. 619. In that event, S.D. would have needed the full resources available at UMC. Tr. 618-19. Dr. Morrison's experience and training certainly make his opinion more reliable than that of the paramedic. Similarly, he has greater experience in treating high-risk patients than does Dr. Ball. Perhaps most importantly, Dr. Morrison himself participated in the management of S.D.'s case, so he would be in the best position to assess her risk of hemorrhage. See Tr. 617. For these reasons, I find that the greater weight of the
evidence supports the conclusion that transporting S.D. from Rush to UMC
on July 14, 1996 did not pose a threat to her or to her unborn child within
the meaning of section 1867(e)(1)(B)(ii).
As I have concluded above, Rush made a reasonable medical
judgment, based on an appropriate medical screening examination, that
S.D. did not suffer from an emergency medical condition on July 14, 1996.
As I will discuss more fully below, once Rush made that determination,
even if that determination resulted from a misdiagnosis, Rush satisfied
its duties under section 1867 of the Act. Furthermore, because Rush determined
that S.D. did not suffer from an emergency medical condition, Rush was
under no obligation to provide stabilization and treatment or to comply
with the transfer requirements of section 1867. The federal courts that have ruled on this issue have
uniformly concluded that section 1867 imposes a duty on hospitals to treat,
stabilize, or transfer in accordance with the statute, only those emergency
medical conditions of which the hospital has actual knowledge. For example,
in Urban v. King, 43 F.3d 523 (10th Cir. 1994), the
U.S. Court of Appeals for the Tenth Circuit held that, "the statute's
stabilization and transfer requirements do not apply until the hospital
determines the individual has an emergency medical condition." Id.
at 526. In Vickers v. Nash General Hospital, 78 F.3d 139 (4th
Cir. 1996), the Fourth Circuit went even further, holding that section
1867 "does not hold hospitals accountable for failing to stabilize conditions
of which they are not aware, or even conditions of which they should have
been aware." Id. at 145. The I.G. argues that Rush failed to provide treatment
within its capabilities, failed to weigh the risks and benefits of transfer,
and failed to ascertain whether UMC would accept transfer of S.D. I.G.
Br. 39-42. These arguments are simply irrelevant, since Rush was not obliged
to fulfill any of these duties once it determined that S.D. did not have
an emergency medical condition. Moreover, I observe, in passing, as did
Dr. Morrison, that it would hardly be necessary to contact UMC to request
that they accept S.D. as a patient, since she was already a UMC patient
and they had planned for her to deliver there. See Tr. 669-70.
Respondent argues that it was denied due process in the
proceedings before the Peer Review Organization (PRO). As an administrative
law judge, I lack the authority to rule on Respondent's constitutional
claims. See Morton Markoff, D.O., DAB CR538 (1998). In any
event, even if the PRO proceedings had been constitutionally defective,
Respondent's due process concerns are moot, since it has had a full de
novo hearing on the record before me.
I have concluded, for the reasons explained above, that
the evidence does not establish that Respondent violated section 1867
of the Act. Accordingly, there is no basis for the I.G. to impose a CMP
of any amount against Respondent. For this reason, it is unnecessary for
me to discuss the factors used in determining the amount of a CMP. V. Conclusion For the reasons set forth in this decision, I conclude that the I.G. failed to prove that Respondent violated section 1867 of the Act with respect to the treatment of S.D. on July 14, 1996. Accordingly, there is no basis for the imposition of a CMP against Respondent. |
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JUDGE | |
Alfonso J. Montano Administrative Law Judge
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FOOTNOTES | |
1. 1 I will refer to the I.G.'s main post-hearing brief as "I.G. Br.," and her reply as "I.G. Reply." I will refer to Respondent's post-hearing brief as "R. Br.," and its reply as "R. Reply." 2. In this decision, I refer to the patient by her initials, to protect her privacy. 3. 3 A hospital participating in the Medicare program is defined as a "participating hospital." Section 1867(e)(2) of the Act. 4. In fact, S.D. never developed blood clots during her 1996 pregnancy. Tr. 104, 380. 5. It also appears that, had the ambulance taken S.D. directly to UMC, she would likely have arrived there in time to deliver her baby. The total elapsed driving time for the ambulance that night was two hours: 30 minutes from S.D.'s home to Rush; 65 minutes from Rush to Rankin Medical Center; and 25 minutes from Rankin to UMC. See R. Ex. 7 at 2; Tr. 309-315. The ambulance left S.D.'s home at 1:00 a.m.; her baby was delivered shortly after 2:55 a.m. Id. 6. I do not read the case law as suggesting that hospitals may negligently perform medical screening examinations, reaching incorrect diagnoses, with impunity. Rather, the federal courts take the position that such issues are not covered by section 1867, but are adequately addressed by malpractice actions under State law. 7. Dr. Morrison went even further, opining that Rush went above and beyond the call of duty to try to assess S.D. quickly so that she could proceed to UMC, if appropriate. Tr. 621. 8. If the I.G. were not arguing that the medical screening examination was so incompetent as to be useless, her argument would be irrelevant. As noted above, the adequacy of a medical screening examination is not judged by whether it results in a correct diagnosis. Marshall v. East Carroll Parish Hospital, 134 F.3d at 322. 9. The I.G.'s cross-examination questions suggest that the I.G. believes fetal heart tones should be measured during a contraction. By contrast, the "Guidelines for Perinatal Care" published by the American Academy of Pediatrics and the American College of Obstetricians and Gynecologists, states that it is preferable to measure fetal heart tones after a contraction when intermittent auscultation is used. R. Ex. 34 at 4. 10. All the expert witnesses opined that an OB nurse is qualified to perform a medical screening examination of a pregnant patient complaining of contractions. Tr. 131, 157-58, 160 (Dr. Ball); 266, 270-71 (Dr. Barnes); 538 (Dr. Purdy); 605-07 (Dr. Morrison); 694 (Dr. Goldstein). Nurse Young's personnel record demonstrates that as of at least July 1, 1995, she was authorized by Rush to perform assessments of pregnant patients without supervision. R. Ex. 8 at 12-13. 11. I reject the I.G.'s suggestion that Dr. Morrison demonstrated a bias against the I.G. See I.G. Reply 38-39. I also reject the suggestion that Dr. Morrison is a "professional witness." Id. at 38. Dr. Morrison is clearly much too busy a practicing physician and educator to be characterized as a professional witness. As to any alleged bias against the I.G., Dr. Morrison's testimony satisfied me that his remarks in a speech had absolutely no bearing on his opinions in this case. See Tr. 686-87. 12. I note that section 1867(e) defines emergency medical condition to include cases where there is inadequate time to "transfer" the pregnant patient, or where "transfer" would pose a risk to the patient or her unborn child. I believe the use of the term "transfer" as part of the definition of an emergency medical condition may lead to confusing the issue of whether an emergency medical condition exists with the separate issue of whether a patient with an emergency medical condition was transferred to another facility in accordance with the requirements of section 1867(c)(2). Because I conclude that S.D. did not have an emergency medical condition within the meaning of section 1867(e), I use the term "transport" rather than "transfer" to try to avoid this confusion. | |