OPINION BY PRESIDENT JUDGE, LEAVITT.
William L. Ives, M.D., petitions for review of an adjudication of the State Board of Medicine (Board) concluding that Dr. Ives performed a surgery in 2012 that departed from the accepted standard of care. The Board ordered Dr. Ives to undergo a clinical competency skills assessment and a public reprimand. On appeal, Dr. Ives contends, inter alia, that the Board erred and abused its discretion in admitting hearsay evidence and relying on an expert opinion that was incompetent on the issue of standard of care because it lacked a proper factual foundation. Concluding that these issues have merit, we reverse the Board's adjudication.
On December 2, 1986, Dr. Ives was licensed to practice medicine and surgery in the Commonwealth of Pennsylvania. He is certified by the American Board of Surgery. Dr. Ives practices as a general and colorectal surgeon, with staff privileges at Lancaster General Hospital.
On December 28, 2012, Dr. Ives operated on S.L. (Patient) at Ephrata Community Hospital to remove a colon tumor in a surgery that took several hours. During surgery, Patient began to bleed, which the operating team was unable to stop. A second surgeon called by Dr. Ives was also unable to stop the bleeding. Dr. Ives ordered an infusion of platelets for Patient to stop the bleeding, but the platelets were not delivered by the hospital. Patient was transferred to the intensive care unit (ICU), where she died three hours later while awaiting a transfer to Hershey Medical Center.
On March 30, 2015, the Board instituted a disciplinary action against Dr. Ives, alleging that his treatment of Patient fell below the accepted standard of care. The Board sought a license suspension, revocation or restriction, penalties and costs. In October 2016, an administrative hearing was held. The Department of State's Bureau of Professional and Occupational Affairs (Bureau) prosecuted the case.
Christopher Connolly, an investigator for the Bureau, testified about the records he obtained from Ephrata Community Hospital by subpoena. Specifically, Connolly obtained Patient's medical records and the transcripts of a peer review proceeding conducted by Ephrata Community Hospital to revoke Dr. Ives' staff privileges.
Gordon L. Kauffman, Jr., M.D., testified on behalf of the Bureau. Dr. Kauffman is a Professor Emeritus at the Pennsylvania State University, College of Medicine in Hershey, Pennsylvania, where he served as a professor of surgery for 32 years. He is certified by the American Board of Surgery.
Dr. Kauffman testified that the Bureau retained him to evaluate Dr. Ives' treatment of Patient. To that end, he reviewed Patient's medical records and the transcripts
In support of these conclusions, Dr. Kauffman presented a narrative of what happened to Patient during surgery. This narrative was based upon the documents obtained by Connolly from Ephrata Community Hospital related to the peer review proceeding.
Dr. Kauffman stated that, on November 26, 2012, Dr. Ives met with Patient, who was experiencing blood in her stools. On November 30, 2012, a colonoscopy was performed that showed "a nearly obstructing colorectal carcinoma at rectal sigmoid junction[.]" Notes of Testimony, 10/24/2016, at 28 (N.T. ___); R.R. 41a. Patient elected to have the tumor surgically removed.
On December 28, 2012, at approximately 8:00 a.m., Dr. Ives began the surgery to remove the tumor. At 10:45 a.m., the anesthesia records showed that Patient's hematocrit
Dr. Kauffman stated that around 12:00 p.m., the anesthesia records reported cardiovascular instability. At 12:45 p.m., Patient received a vasoconstrictor medication to increase her blood pressure. The operating room team, concerned about Patient's ongoing blood loss, suggested that Dr. Ives call a second surgeon for assistance. Dr. Ives did not do so. At 2:00 p.m., Patient was hypotensive.
At 3:00 p.m., Dr. Ives requested surgical assistance. When the second surgeon arrived, Patient was in shock. The second surgeon packed Patient's abdomen and sewed two arteries to the pelvis to reduce the ongoing bleeding. These efforts did not improve Patient's condition.
Regarding the accepted standard of care on Dr. Ives' communication with and responses to the anesthesia team, Dr. Kauffman testified as follows:
N.T. 48-50; R.R. 61a-63a (emphasis added). With respect to postoperative abandonment, Dr. Kauffman testified: "In my opinion, the surgeon stays with the patient until some final disposition is made." N.T. 58; R.R. 71a. Dr. Kauffman opined that Dr. Ives compromised Patient's care by leaving the hospital.
Dr. Kauffman opined that when Patient became unstable at 2:00 p.m., the accepted standard of care required Dr. Ives to establish hemostasis rather than proceed with the operation. Dr. Kauffman also opined that by waiting until 3:00 p.m. to call a second surgeon, Dr. Ives departed from an acceptable standard of care. Had assistance been called earlier, the outcome could have been different.
On cross-examination, Dr. Kauffman acknowledged that he did not know that during the surgery Dr. Ives had ordered platelets for Patient that were never delivered. He also did not know that Dr. Ives transferred Patient's care in the ICU to another physician only because he had been called to an emergency at another hospital. Dr. Kauffman did not know that Dr. Ives met with Patient's family in the ICU before departing the hospital. In addition, Dr. Kauffman acknowledged that he had not reviewed Patient's postoperative records, her fluid intake and output report, and the record of Dr. Ives' orders during surgery.
At the conclusion of its case, the Bureau moved for the admission of a letter from Ephrata Community Hospital, Patient's medical records, the Peer Review Transcript, and Dr. Kauffman's curriculum vitae and expert report.
Dr. Ives then testified. He explained that in addition to removing the tumor, it was necessary to do a hysterectomy because the tumor had connected to Patient's uterus. He estimated the surgery would take approximately four to five hours.
Dr. Ives testified that when he made a midline incision on Patient's abdomen, he noticed "a little bit more oozing" than expected. N.T. 141; R.R. 154a. At approximately 10:45 a.m., the nurse anesthetist informed him of Patient's hemoglobin and hematocrit levels. However, Dr. Ives did not consider these levels striking because Patient was receiving crystalloid fluids, which cause hemoglobin and hematocrit levels to drop. The anesthesia team suggested giving blood to Patient, and he agreed. Dr. Ives explained that he is generally hesitant to give blood to a cancer patient because the transfusion can suppress the immune system. At 11:30 a.m., Dr. Ives gave the order to maintain two units of packed red blood cells at all times. At 12:15 p.m., he ordered two units of fresh frozen plasma.
Dr. Ives testified that at approximately 2:00 p.m., Patient became hypotensive. The anesthesiologist called out to "hold up" because the anesthesiology team needed "to catch up." N.T. 144; R.R. 157a. Dr. Ives stated that he immediately stopped, packed Patient, and inquired into what was going on. He then learned how much blood Patient had lost, which Dr. Ives described
Dr. Ives denied failing to respond when Patient became unstable from a cardiovascular standpoint. He testified that
N.T. 173; R.R. 186a (emphasis added). Dr. Ives testified that he packed the abdomen and pelvis for an hour, but the blood loss did not stop. He then asked for surgical assistance.
Dr. Ives disputed Dr. Kauffman's opinion that he should have earlier requested help from another surgeon, stating that he did not need "surgical help for any technical" issues. N.T. 173; R.R. 186a. When Dr. Ives requested surgical assistance, it was because he was hoping for suggestions on how to stop the bleeding while they awaited the delivery of platelets.
Dr. Ives testified that Patient had a bleeding disorder, which was unknown before the surgery. The only chance of arresting her blood loss was with platelets. He ordered platelets twice, but they were not delivered in time to save Patient.
On March 20, 2017, the hearing examiner issued a proposed adjudication. In pertinent part, the hearing examiner found:
Proposed Adjudication at 8-14, Findings of Fact Nos. 44, 49-50, 53-65, 68-69, 71-73, 76, 81, 83, 91, 93.
With respect to the standard of care, the hearing examiner made the following findings of fact:
Proposed Adjudication at 16-17, Findings of Fact Nos. 107-110. Based on these findings
The hearing examiner recommended that Dr. Ives undergo a remedial competency skills assessment by a Board-approved provider and follow any recommendations made in the course of that assessment with respect to additional training. Dr. Ives filed exceptions to the hearing examiner's proposed adjudication and order.
The Board adopted as its own the hearing examiner's findings of fact and conclusions of law. However, it rejected the hearing examiner's recommendation not to impose a public reprimand. The Board held that to protect the public and to deter Dr. Ives and other professionals from departing from accepted standards of care, a public reprimand was warranted. It accepted the hearing examiner's recommendation that Dr. Ives complete a remedial clinical competency skills assessment and ordered, inter alia, that Dr. Ives' license be automatically suspended should the skills assessment program notify the Board that Dr. Ives did not complete the assessment or cooperate with the program's recommendations.
Dr. Ives petitioned for this Court's review.
On appeal,
The practice of medicine is regulated in the Commonwealth of Pennsylvania, and the terms of this regulatory regime are set forth in the Medical Practice Act of 1985. Tandon v. State Board of Medicine, 705 A.2d 1338, 1345 (Pa. Cmwlth. 1997) (statutes regulating "the practice of medicine are to safeguard the public health and welfare").
The Board is "charged with the responsibility of overseeing the medical profession and determining the competency and fitness of an individual to practice medicine within the Commonwealth." Cassella v. State Board of Medicine, Bureau of Professional and Occupational Affairs, 119 Pa.Cmwlth. 394, 547 A.2d 506, 512 (1988). Pertinent here, Section 41(8)(ii) of the Medical Practice Act of 1985 authorizes the Board to "impose disciplinary or corrective measures on a board-regulated practitioner" where:
63 P.S. § 422.41(8)(ii) (emphasis added). With this background, we turn to Dr. Ives' appeal.
In his first issue, Dr. Ives argues that the Board erred in relying upon the Peer Review Transcript to make findings of fact about what happened to Patient in the operating room. The Board did not see or hear the persons who testified in Ephrata Community Hospital's peer review proceeding, which was private and conducted for a specific, but different, purpose. Dr. Ives' peers did not produce a report that evaluated the evidence presented. Stated otherwise, it is impossible to know what credibility determinations they made on the basis of witness demeanor or whether they accepted any of the witnesses' interpretations. Dr. Ives contends that the Board erred in using out-of-court statements in lieu of conducting its own evidentiary hearing. Dr. Kauffman's testimony and report were likewise tainted by his consideration of the Peer Review Transcript to render an expert medical opinion.
As the Board observes, the rules of evidence are relaxed in administrative proceedings where "all relevant evidence of reasonably probative value may be received." 2 Pa. C.S. § 505. With regard to the use of hearsay in administrative proceedings, it has long been established as follows:
Walker v. Unemployment Compensation Board of Review, 27 Pa.Cmwlth. 522, 367 A.2d 366, 370 (1976). These strictures on the use of unobjected to hearsay are known as the "Walker rule."
Conceding that the Peer Review Transcript is hearsay, the Board argues that it can be given probative value in an administrative hearing in accordance with the Walker rule. We disagree. Dr. Ives specifically objected to the admission of the Peer Review Transcript on grounds of hearsay. The Walker rule is inapplicable because it applies only where hearsay evidence has been admitted without objection. It has no application where, as here, hearsay evidence has been admitted over the objection of a party.
The Board held, in the alternative, that the Peer Review Transcript was admissible under the "`Former Testimony' exception to the hearsay rule at [Pennsylvania Rule of Evidence] 804(b)(1)." Board Adjudication at 8. Rule 804(b)(1) states, in relevant part, as follows:
PA. R.E. 804(b)(1) (emphasis added). The former testimony exception applies when the declarant is unavailable.
The record offers no support for the position that any of the witnesses who appeared in the peer review hearing were unavailable to testify at the Board hearing or to provide a deposition. We reject the Board's contention that the Peer Review Transcript is admissible under Pennsylvania Rule of Evidence 804(b)(1); the "unavailability of a declarant" is essential to this hearsay exception and not optional, as the Board believed.
Likewise, the Peer Review Transcript was not admissible as a business record of Ephrata Community Hospital. Section 6108(b) of the Uniform Business Records as Evidence Act states as follows:
42 Pa. C.S. § 6108(b) (emphasis added). Notably, "it is not essential to produce either the person who made the entries or the custodian of the record at the time the entries were made. . . ." Virgo v. Workers' Compensation Appeal Board (County of Lehigh-Cedarbrook), 890 A.2d 13, 20 (Pa. Cmwlth. 2005). However, the "authenticating witness" must provide information about the preparation and maintenance of the records to justify a presumption of trustworthiness "to offset the hearsay character of the evidence." Id. at 20.
The Peer Review Transcript does not constitute a business record of what happened in the operating room. Even so, an authenticating witness was needed in order to have the transcript admitted. Connolly, who obtained the transcript by subpoena, lacked any knowledge about the preparation or subsequent maintenance of the transcript. For this reason alone, the Peer Review Transcript was not admissible as a business record.
Finally, the Board argues that the Peer Review Transcript was an admissible hospital medical record. The Judicial Code states, in relevant part, as follows:
42 Pa. C.S. § 6151 (emphasis added). For a record to be "certified" requires the custodian of the records to sign a certification before a notary public. 42 Pa. C.S. § 6152(d).
The Peer Review Transcript is hearsay, and it was not admissible by reason of the Walker rule or under any recognized exception to the hearsay rule. Nor was it properly authenticated. For these reasons, the Board erred in admitting the Peer Review Transcript into evidence to prove what happened in the operating room.
Dr. Ives challenges the admissibility of Dr. Kauffman's testimony and opinion. Dr. Kauffman did not base his opinion strictly on Patient's medical records but also upon the Peer Review Transcript. Dr. Ives argues that Dr. Kauffman's reliance on this inadmissible hearsay rendered his opinion incompetent.
As a general rule, experts may rely upon reports not admitted into evidence to render an expert opinion. In adopting this principle, our Supreme Court explained:
Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693, 698-99 (1971) (citations and quotation omitted). "The rule from Thomas is codified in [Pennsylvania Rule of Evidence] 703." City of Philadelphia v. Workers' Compensation Appeal Board (Kriebel), 612 Pa. 6, 29 A.3d 762, 770 n.12 (2011). Pennsylvania Rule of Evidence 703 states as follows:
PA. R.E. 703 (emphasis added). In short, an expert opinion may be based on "hearsay statements, as long as such facts are of a type reasonably relied on by experts in that profession used to form an opinion." Carletti v. Department of Transportation, 190 A.3d 766, 778 (Pa. Cmwlth. 2018).
Our Superior Court has explained the reason for this exception as follows:
Primavera v. Celotex Corporation, 415 Pa.Super. 41, 608 A.2d 515, 519-20 (1992) (emphasis added).
Dr. Ives argues the Bureau did not lay the foundation for the Peer Review Transcript that is required by Rule of Evidence 703. Specifically, Dr. Kauffman did not testify that he regularly relies upon transcripts of peer review proceedings in his medical practice. He did not testify that experts in his field reasonably and regularly rely upon this type of material to make a medical judgment. Absent this foundation, the Peer Review Transcript lacks the requisite "strong indicia of reliability." Id. at 520.
The Board responds that Dr. Kauffman was qualified as an expert, and he testified that he used the Peer Review Transcript to render his opinion. It follows, therefore, that the Peer Review Transcript is the type of information that experts rely upon. We reject this tautology.
This Court has explained that an expert may rely on information made known to the expert at or before the hearing, so long as "the information itself is admissible or is of a type reasonably relied upon by experts in the field." Readinger v. Workers' Compensation Appeal Board (Epler Masonry), 855 A.2d 952, 956 (Pa. Cmwlth. 2004) (citing PA. R.E. 703). Physicians often
Thomas, 282 A.2d at 699 (quotation omitted). However, the Peer Review Transcript goes far beyond Patient's records, laboratory tests and the observations of attending nurses.
The Bureau did not present evidence that surgeons regularly rely upon and use peer review transcripts. Dr. Kauffman did not testify that he regularly relies on this type of material. Simply, the record does not establish that, as a general rule, surgeons rely on transcripts from peer review proceedings to formulate their medical opinions. Although medical experts rely upon reports of other physicians, the Peer Review Transcript is not a medical report that recorded contemporaneous medical observations of a patient.
The Bureau failed to establish that the Peer Review Transcript is the type of report customarily relied on by surgeons to form an opinion. Absent that proof, Dr. Kauffman's opinion lacked a foundation, which was necessary to the formation of a competent expert opinion. Therefore, the Board erred in relying upon Dr. Kauffman's expert report and testimony to make findings on whether Dr. Ives' treatment of Patient departed from the accepted standard of care.
Dr. Ives argues that the Bureau did not make its case for any discipline. The only evidence it offered in support of the factual finding that Dr. Ives departed from the accepted standard of care was Dr. Kauffman's opinion. Once that expert opinion is rejected as not competent, the record lacks the evidence necessary to support the Board's legal conclusion that Dr. Ives violated the Medical Practice Act of 1985.
Substantial evidence is "such relevant evidence that a reasonable mind might accept as adequate to support [a] conclusion." Taterka v. Bureau of Professional and Occupational Affairs, State Board of Medicine, 882 A.2d 1040, 1044 n.4 (Pa. Cmwlth. 2005). "In reviewing the record for substantial evidence, this Court is required to review the record as a whole." M.H. v. Department of State, Bureau of Professional and Occupational Affairs, State Board of Social Workers, Marriage and Family Therapists and Professional Counselors, 2010 WL 9514494 (Pa. Cmwlth., No. 2036 C.D. 2008, filed January 12, 2010) (unreported), slip op. at 10. In looking at the entire record, "this Court examines the testimony in the light most favorable to the prevailing party." MKP Enterprises, Inc. v. Underground Storage Tank Indemnification Board, 39 A.3d 570, 579 (Pa. Cmwlth. 2012).
The Bureau used its expert, Dr. Kauffman, to establish what happened during the surgery, and this was error. Carletti, 190 A.3d at 778 (expert opinion does not prove the facts necessary to support the opinion). Dr. Kauffman's understanding of the surgery came from his review of some of Patient's medical records and the Peer Review Transcript. To the extent the Board's findings on what happened during Patient's surgery are based upon Dr. Kauffman's opinion and the Peer Review Transcript, those findings are not supported by substantial evidence.
The Board found that two and one-half hours into surgery, Patient experienced bleeding. Proposed Adjudication at 8-9, Finding of Fact No. 44. Dr. Ives ordered red blood cells be administered to Patient. Id. at 10, Finding of Fact No. 54. Then, at 11:30 a.m., Dr. Ives verbally ordered that two units of packed red blood cells be "typed & crossed @ all times." Id., Finding of Fact No. 55. At 12:15 p.m., Dr. Ives gave verbal orders for fresh frozen plasma. Id. at 11, Finding of Fact No. 58. When Dr. Ives testified that the anesthesia team called out to him to "hold up," indicating its need "to catch up," he stopped operating. Id., Findings of Fact Nos. 63, 64, at 11. These factual findings do not support the conclusion that Dr. Ives' care of Patient fell below the requisite standard of care. They do not show that he disregarded concerns brought to his attention by others in the operating room.
The Peer Review Transcript was inadmissible. Dr. Kauffman's opinion did not establish that Dr. Ives' care of Patient fell below the accepted standard of medical care because that opinion was based, in part, upon the Peer Review Transcript. The Board's remaining findings of fact based only on Patient's records and Dr. Ives' testimony do not support the finding that Dr. Ives' care of Patient fell below the accepted standard of care. Consequently, the Board's conclusion that Dr. Ives provided a medical service beneath the accepted standard of care in violation of Section 41(8)(ii) of the Medical Practice Act of 1985, 63 P.S. § 422.41(8)(ii), cannot stand.
For all the reasons set forth above, we reverse the adjudication of the Board.
AND NOW, this 28
49 Pa. Code § 16.61(a)(17).
PA. R.E. 804(a).
42 Pa. C.S. § 6152(d) (emphasis added).
