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In re Aggrieved Practitioner

Court of Appeals of Louisiana, Fourth Circuit

November 15, 2017

IN RE: AGGRIEVED PRACTITIONER

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-10769, DIVISION "C" Honorable Sidney H. Cates, Judge

          James M. Williams Conrad Meyer CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM & HAYES, L.L.P. AND Stewart E. Niles, Jr. Bryan J. Knight NILES, BOURQUE & KNIGHT, L.L.C. COUNSEL FOR PLAINTIFF/APPELLEE

          Ralph H. Wall Raymond P. Ward ADAMS AND REESE LLP COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore

          MARION F. EDWARDS, JUDGE PRO TEMPORE

         The Louisiana State Board of Medical Examiners (the Board) appeals a judgment of the trial court remanding this matter back to the Board for reconsideration of a decision to revoke a member's license to practice medicine. We reverse and reinstate the decision of the Board.

         Plaintiff, Aggrieved Practitioner (AP), a physician licensed to practice medicine in the State of Louisiana, filed a petition in the district court for judicial review and/or appeal of a decision by the Board revoking his license to practice medicine on grounds of incompetence involving AP's performance of Transforminal Lumbar Interbody Fusions, a neurosurgical spine procedure performed by both neurosurgeons and orthopedic surgeons. After a hearing on the matter, the trial court found that the hearing conducted by the Board was "in violation of AP's constitutional due process rights, made upon unlawful procedure, and clearly arbitrary and characterized by an abuse of discretion." However, the trial court did not reverse, vacate or amend the decision of the Board. Instead, the trial court remanded the matter for a new trial "to allow full development of the record where all relevant, competent evidence…should be considered by the Board and then they can give that evidence whatever weight they think it deserves."

         The Board appeals and assigns two errors; that the trial court erred in remanding the matter for the taking of additional evidence, and in concluding that the penalty imposed by the Board is too harsh.

         PROCEDURAL HISTORY

         This matter began on June 10, 2010 with a letter to AP informing him of an initial investigation by the Board concerning certain complaints received. Shortly thereafter the parties met and agreed that AP would not perform Transforminal Lumbar Interbody Fusion (TLIF) surgery during the investigation. It was also agreed that AP would submit to certain evaluations from the Physician Assessment and Clinical Evaluation program (PACE) and Clinical Competence Solutions (CCS). On September 3, 2010, the Board wrote to AP acknowledging his participation in PACE, but informing AP that there was no indication that he entered into an agreement with CCS or any other comparable entity. The letter also indicated the Board received information suggesting that AP performed recent TLIF surgeries, and informed him of additional complaints questioning his surgical competence.

         On September 20, 2010, the parties entered into an interim consent order whereby AP agreed not to perform surgery until the Board issued a decision or an order removing the restriction. The order also mandated that AP participate in a Board approved assessment, training, or clinical course of study.

         On March 20, 2012, a formal complaint to the Board was filed, charging AP with 23 counts of medical malpractice involving numerous violations of the Medical Practice Act embodied in La. R.S. 37:1261 et seq. Specifically, AP was charged with the following violations relating to 23 patients:

1.) Professional or medical incompetency
2.) Unprofessional conduct
3.) Continuing or recurring medical practice which fails to satisfy the prevailing and usually accepted standards of medical practice in this state
4.) Abandonment of a patient
5.) Knowingly performing any act which, in any way, assists an unlicensed person to practice medicine, or having professional connection with or lending one's name to an illegal practitioner

         AP filed an answer, exceptions of vagueness, ambiguity and lack of amicable demand as well as a reconventional demand alleging that the complaints made against him were initiated and generated by a plaintiffs' counsel who represented 12 of the 23 patients identified in the complaint to further his civil suits against AP. AP asserted his rights of due process and equal protection were violated throughout the undue delay of the Board's investigation and for "unreliable, inefficient and indefensible process", and abuse of prosecutorial discretion and misconduct. AP also made allegations against the Board including violation of right to privacy, publically putting AP in a false light, and forcing him to sign an interim consent agreement in order to aggregate newly filed claims with prior claims. AP's assertions of violation of his equal protection rights include fundamentally unfair treatment. AP also makes a claim of breach of contract relating to alleged breaches of an informal agreement between the parties, as well as the interim consent order. He asserts vices of consent to vitiate consent, fraud, misrepresentation, duress and detrimental reliance relating to the interim consent order. Finally, AP argued the Board should be estopped from bringing any complaints against him that are outside of the scope of the investigation pending at the time of the informal agreement.

         On October 14, 2013, AP proposed a consent order which would vacate and supersede the prior interim consent order. Under the new proposed consent order, AP's license would be limited to a non-surgical practice. However, that limitation would be removed upon his acceptance of and strict compliance with certain conditions, including his acceptance into and completion of a Board approved neurosurgery graduate medical education program. That proposal was rejected by the Board.

         The Board assembled a panel of four physicians presided over by an independent counsel to conduct the investigation into the allegations against AP. After discovery and several continuances, the Board conducted hearings between February 21, 2015 and June 29, 2015; and, on October 26, 2015, the Board rendered a decision finding that AP failed to satisfy the prevailing and usually accepted standards of medical practice in the State of Louisiana. The decision also found AP "guilty' of violating the Louisiana Medical Practice Act (La. R.S. 37:1285(13)), in that AP failed to create adequate medical records. However, the Board found AP "not guilty" on the charges of abandonment of a patient and of assisting an unlicensed person to practice medicine.

         AP filed a motion for rehearing that was denied by the Board. AP filed an appeal of the Board's decision with the district court. Upon consideration of the merits of AP's appeal, the district court rendered an opinion remanding the matter back to the Board for further proceedings, but did not reverse, vacate or alter the Board's ruling. That judgment is now before this Court on appeal from the Board.

         FACTS

         The allegations of incompetence relate to a minimal surgical spinal fusion procedure known as Transforminal Lumbar Interbody Fusion. According to the expert testimony, in this surgery there are two goals, to decompress the nerve root between two vertebrae, and to ultimately fuse those two segments together. To accomplish this, the surgeon removes disc materials between the vertebrae and places a cage into the disc space with bony materials harvested, along with other donated allografts or bone grafts, in hope of fusing the spinal segment. The purpose is to restore the lost disc space and decompress the nerve to alleviate pain. The cage inserted into the spinal column is designed to allow bone growth.

         It is necessary to optimize the environment where the bone could grow between the discs. To do that, a surgeon must remove disc materials to create the empty space to place the bone grafts that are harvested and place a cage in the space to hold the bone graft in place until it fuses.

         At the hearing before the Board, the complainant went forward with 11 of the original 23 cases cited in the complaint against AP. In its consideration of the complaint, the Board heard testimony, offered by both parties to the complaint, from various experts in the fields of neurosurgery, spinal surgery, minimally invasive surgery, orthopedic surgery, instrumentation surgery, radiology, interventional neuroradiology, kyphoplastic surgery, neuroradiology-neurosurgery, and residency training. Additionally, the Board considered the medical records of the 11 patients whose treatment forms the basis of the complaint, and heard testimony from some of those patients.

         THE ELEVEN PATIENTS

         1.) O.B.[1]

         O.B. was a 72 year-old man with a history of back pain at the time he saw AP. Because conservative treatment proved ineffective and the pain was getting worse, O.B. consulted AP. Physicians who testified agreed that O.B. had severe spinal stenosis. AP ordered a discogram which showed no pain for all levels from L1-L2 to L4-L5, but severe pain at level L5-S1. AP performed an L5-S1 fusion and an L4-5 and L3-4 decompression. After the surgery, O.B. experienced significant pain, and muscle spasms, a new symptom. AP decided that the pain was due to inflammation rather than any post-surgery problem. AP discharged O.B. and referred him to a pain management physician.

         O.B. subsequently saw Dr. Powell Auer, who ordered MRI and CT scans which revealed "diffuse severe degenerative changes everywhere." Dr. Auer testified at the hearing and stated that in this case a "discogram is completely useless" and the decision to do a one level fusion was "absurd". The tests also showed that the cage inserted by AP was misplaced and was the likely cause of O.B.'s pain. Dr. Auer explained that AP failed to remove sufficient disc tissue to allow the vertebrae to fuse. Dr. Auer also found fault with AP's failure to perform the laminectomy to decompress the nerve roots, leaving O.B. with unrelieved severe lumbar stenosis.

         All testifying doctors agreed that the cage was misplaced and could be a source of O.B.'s pain, although two doctors who testified for the defense were of the opinion that the surgical procedure did not breach the standard of care.

         However, these doctors did agree that the attempted laminectomy failed to adequately decompress the nerve roots. It was clear from the testimony that testifying doctors were disturbed by the fact that AP did not adequately investigate the cause of the post-op pain and was not truthful with the patient.

         2.) K.I.

         K.I. was a 24 year-old woman who sought treatment from AP for back and leg pain. She was able to manage the pain with low level medication and was functioning adequately as a student. AP performed a decompressive factectomy at L5-S1. AP testified that this patient had a "tricky anatomy" and that she did not have the normal amount of disc space. However, AP testified that he tapped the cage into place and verified its proper placement on the C-arm fluoroscopy. The surgery not only made the pain worse, it caused numbness and tingling below the waist, as well as pain in her right foot. After the post-op worsening of pain, AP ordered an MRI and a CT scan, which according to AP's testimony revealed that the cage was properly placed inside of the vertebrae. AP referred K.I. to a pain management physician.

         K.I. sought a second opinion from Dr. Anthony Sin. Dr. Sin reviewed the MRI and CT scan and found that the cage was outside the vertebral body itself and could not have migrated there. Dr. Sin also testified that K.I. has hemi-vertebrae, a genetic malformation of her vertebral spine and was never a candidate for the surgery performed by AP because there is no room for the cage used in such surgeries.

         Because K.I. was forced to use a wheelchair and was hospitalized for treatment of an infection after the surgery performed by AP, Dr. Sin consulted two other physicians and ...


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