Health Law Daily Gastroenterologist failed to meet the requisite standard of care
Wednesday, April 3, 2019

Gastroenterologist failed to meet the requisite standard of care

By Jeffrey H. Brochin, J.D.

Where essential elements of notice and an opportunity to respond were met, a terminated physician’s right to due process were not violated.

An Ohio physician who was terminated from the Chalmers P. Wylie VA Ambulatory Care Center (VA) in Columbus, Ohio failed to meet the requisite standard of care in her treatment of several patients, and therefore her termination was justified, the U.S. Court of Appeals for the Sixth Circuit has affirmed in an unpublished opinion. Affirming the findings of the VA Disciplinary Appeals Board and a federal district court, the Sixth Circuit held her right to due process was not violated because even though her notice did not reference a specific law or regulation, neither of those were at issue, but, rather, her standard of care, for which she was sufficiently apprised (Doran v. Wilkie, April 1, 2019, White, H.).

Concern over patient safety. For several years, a physician at an Ohio VA ambulatory care center earned high praise which was reflected in her annual proficiency reports from 2008 to 2013 which rated her competencies as "Outstanding." However, during the period from 2013 to 2014, her performance began to suffer and she consequently earned ratings of "Satisfactory" in two competencies, "Low Satisfactory" in two others, and an overall score of "Low Satisfactory." Her supervisor suggested that she was struggling to maintain a successful practice under the pressures of a heavy workload and seemed to lack the ability to cope with normal stressors associated with the roles and responsibilities of a physician.

On February 23, 2015, her supervisor wrote a letter to the Chief of Staff of the Columbus VA, expressing patient safety concerns related to the care provided by the physician. Specifically, his letter cited four instances of patients treated by her in the preceding year that he believed warranted internal administrative review by the professional standards board (PSB).

Review by PSB and MEB. The PSB reviewed cases identified as Patient A, Patient B, Patient C, and Patient D, and sent a letter to the Chief of Staff on March 9, 2015 recommending that the physician undergo an extensive "Fitness for Duty" evaluation (including psychiatric and substance abuse) and receive mentoring, proctoring, and education in several areas. A medical executive board (MEB) then convened to review the PSB findings, and the MEB concluded that the permanent revocation of her privileges at the VA center was warranted. An Administrative Investigation Board (AIB) also performed a review of her treatment and concurred in the recommended termination. On June 2, 2015, she was issued a Notice of Proposed Removal and Revocation of Clinical Privileges which listed four charges alleging failures to provide the appropriate standard of care to her patients. On August 21, 2015, she was removed from VA employment.

Disciplinary Appeals Board. Pursuant to 38 U.S.C. § 7461, the physician appealed her termination to the VA Under Secretary for Health, contending that the prior proceedings violated her right to due process because she was not given effective notice of any specific law, regulation, policy, procedure, practice or other specific instruction that had been violated with respect to each charge, and, because she was never given a written statement of the definition of "standard of care," she was unable to properly prepare a defense. However, the Board found that her treatment of Patient A was so removed from the standard of care that the penalty of discharge was warranted. The Board also determined that the sustained charges represented substandard care, professional incompetence or professional misconduct, and were therefore reportable to the National Practitioner Data Bank.

Adequacy of notice. The appeals court referenced § 7462(b)(1) which provides that the written notice for a major adverse action must provide the basis for the charge and a statement of any specific law, regulation, policy, procedure, practice, or other specific instruction that has been violated. The VA Handbook also states that, at a minimum, the notice must include statements of the specific charges upon which the proposed action is based, including names, dates, places, and other data sufficient to enable the employee to fully understand the charges and to respond to them, as well as any specific law, regulation, policy, or other specific instruction that has been violated as it pertains to the charges, if applicable.

However, the court noted that the physician was not charged with violating a specific law or regulation—she was charged with breaching the standard of care that lies at the core of medical competency, and it was therefore not fatal for the charges to fail to state the specific standard of care. Implicit in the charge was that she violated the standard of care owed by a gastroenterologist in choosing and administering anesthesia, and by administering, without the assistance of an anesthesiologist, too much anesthesia too quickly to a patient with several health factors. The notice was therefore more than sufficient to allow her to fully understand the charges and to respond to them.

Due process. The physician also argued that her right to due process had been violated by the disciplinary board proceedings, which resembled a judicial trial in most respects. However, the court found that when asked if she believed she had a full opportunity to present her side of the case, she responded, "Finally." Accordingly, the appeals court ruled that the essential requirements of due process, notice and an opportunity to respond, had been met.

For the foregoing reasons the prior decisions upholding the termination were affirmed.

The case is No. 18-3327.

Attorneys: Laura Ann Perkovic (Chapman Law Group) for Trisha Doran. Leah Mary Wolfe, Office of the U.S. Attorney, for Robert Wilkie.

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