W.L. Ives, M.D. v. BPOA, State Board of Medicine ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William L. Ives, M.D., :
Petitioner :
:
v. : No. 646 C.D. 2018
: Argued: December 13, 2018
Bureau of Professional and :
Occupational Affairs, State :
Board of Medicine, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 28, 2019
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.
Background
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.1
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.
1
Ephrata’s Community Hospital’s by-laws allow a physician to request a “fair hearing” upon
receipt of notice that the hospital intends to revoke clinical privileges. Dr. Ives elected to have a
hearing, at which he was represented by counsel. The proceedings were recorded. Each witness
was placed under oath and was subject to cross-examination by counsel, and by members of the
hearing panel.
2
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 from the peer review proceeding (Peer Review Transcript) conducted
by Ephrata Community Hospital. Dr. Kauffman prepared an expert report that
concluded that Dr. Ives failed to meet the accepted standard of care in three ways:
(1) Dr. Ives did not “seem to give any credence” to what was being told to him by
the anesthesiology team during the surgery; (2) Dr. Ives’ “responses to the anesthesia
team” reflected “a lack of engagement or inability to accept concerns of a less than
favorable outcome” that led him to continue, not terminate, the surgery; and (3)
postoperatively, Dr. Ives abandoned Patient, leaving her in the ICU in the care of
another physician. Kauffman Report at 5-6; Reproduced Record at 1090a-91a (R.R.
____).
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
3
Patient’s hematocrit2 and hemoglobin3 levels had fallen and that there was bleeding.
The nurse anesthetist spoke to Dr. Ives about the blood loss. At 11:00 a.m., the nurse
anesthetist again spoke to Dr. Ives about Patient’s blood loss, and Patient was
administered a unit of packed red blood cells. Dr. Kauffman testified that Dr. Ives
proceeded with the surgery in spite of the concern expressed about Patient’s blood
loss.
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:
[There was a] lack of discussion between Dr. Ives and the
anesthesia team, between Dr. Ives and the [operating room]
team. Other people could see that the blood loss was continuing
without control. They mentioned that to him. So lack of getting
control of the bleeding, lack of a dialogue that’s critical in
situations like this between the surgeon and the anesthesia team,
the surgeon and the [operating room] team…
2
Dr. Kauffman explained that hematocrit “is the percentage of red cells in a given volume of
blood[,]” and it is an indication of the ability of the blood to carry oxygen to tissues. N.T. 32; R.R.
45a.
3
Hemoglobin is a protein in the red blood cell to which oxygen attaches so that it can be carried
throughout the body.
4
… Dr. Ives did not seem to give any credence to what was being
told to him by the anesthesia team and the [operating room] staff.
Rather than considering what was occurring at several time
points, perhaps packing to control bleeding when the patient was
unstable from a cardiovascular standpoint, allowing the
anesthesia team to catch up with the blood loss, recognizing
much earlier that hemostasis was inadequate, and requesting
surgical support from a surgical or gynecological colleague
would have been the standard of care.
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.
5
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 as
“staggering.” N.T. 146; R.R. 159a. Dr. Ives testified that because the
anesthesiologist did not notify him each time Patient was given blood (and usually
does not do so), Dr. Ives “didn’t realize how much blood was lost.” N.T. 148; R.R.
161a. Fresh frozen plasma usually stops bleeding in patients with a bleeding
disorder. Because the frozen plasma did not achieve this result, Dr. Ives ordered
platelets for Patient.
6
Dr. Ives denied failing to respond when Patient became unstable from
a cardiovascular standpoint. He testified that
whenever she became unstable, I immediately stopped. There’s
no sense in continuing if the patient might not survive. So when
they said she was unstable, I immediately packed her[.] I waited
until they gave the okay to finish the resection and I rapidly got
the specimen out. So within about 15 minutes or so after that, I
had the specimen out. And the rest of the case, as long as
everything is packed, you’re hoping that they’re going to be able
to accomplish something until [the other surgeon] came in.
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.
Board Adjudication
On March 20, 2017, the hearing examiner issued a proposed
adjudication. In pertinent part, the hearing examiner found:
44. The first documented evidence of a problem with
operative bleeding of [the patient] occurred at 10:45 a.m.,
as reflected in the anesthesia records…. (N.T. 31-32, 79,
7
141-142; Exhibits [Patient’s Anesthesia Records] and
[Expert Report])
***
49. … [T]he certified nurse anesthetist in the operating room[]
informed [Dr. Ives] what [Patient’s] hemoglobin and
hematocrit were, and asked if it would be okay to transfuse
[Patient]. (N.T. 32, 141-142, 145)
50. [Dr. Ives] voiced his hesitation about giving [Patient] a
blood transfusion at this point owing to his preference not
to transfuse these patients, but did not object to blood
being ordered for [Patient] and stated that he had already
typed and screened [patient] for two units of blood. (N.T.
141-142)
***
53. [Dr. Ives] gave verbal orders … regarding red blood cells
and fresh frozen plasma. (N.T. 143-144)
54. The anesthesia record for [Patient] reveals that at 11:00
a.m. [Patient’s] estimated blood loss and hemoglobin and
hematocrit was again discussed with [Dr. Ives] and that
red blood cells were ordered to be given. (N.T. 33, 82;
Exhibit [Patient’s Anesthesia Records])
55. [Dr. Ives] gave a verbal order at 11:30 to “maintain 2 units
of [packed red blood cells] available typed & crossed @
all times.” (N.T. 83, 143-144; Exhibit [Ives’ Physician’s
Orders])
56. By 12:00 noon, [Patient] had lost 2,800 ccs of blood and
showed cardiovascular instability; [Patient’s] systolic
blood pressure was hovering between 70 and 80. (Exhibits
[Patient’s Anesthesia Records] and [Expert Report])
57. The anesthesia and surgical team were concerned about
the amount of blood loss and about the direction that the
operation was taking. (N.T. 38, Exhibits [Peer Review
Transcript] and [Expert Report])
58. [Dr. Ives] gave another verbal order at 12:15 p.m. for “two
units of fresh frozen plasma thawed and sent to [operating
8
room],” and the [operating room] charge nurse asked [Dr.
Ives] if he wanted another surgeon called; [Dr. Ives]
declined the offer. (N.T. 143-144; Exhibits [Ives’
Physician’s Orders], [Peer Review Transcript], and
[Expert Report])
59. At 12:45 p.m. [Patient’s] hemoglobin [was measured] at
7.8 and her hematocrit at 23; the anesthesia team found it
necessary to give [Patient] a vasopressor, phenylephrine[,]
to maintain her blood pressure. (Exhibits [Patient’s
Anesthesia Records], [Peer Review Transcript], and
[Expert Report])
60. Over 100 saturated laparotomy sponges were reportedly
used by operating room staff during [Patient’s] surgical
procedure. (N.T. 41; Exhibits [Peer Review Transcript]
and [Expert Report])
61. The anesthesia team and [operating room] staff expressed
concern to [Dr. Ives] about [Patient’s] instability around
1:00 p.m. and viewed [Dr. Ives] as unresponsive to their
concerns about ongoing blood loss and whether there
should be another pair of hands to help. (N.T. 38, 41;
Exhibits [Peer Review Transcript] and [Expert Report])
62. By 1400 hours, [Patient] had lost 8,000 ccs of blood and
six or seven units of packed red blood cells and at least
two units of fresh frozen plasma had been transferred.
(N.T. 147; Exhibits [Patient’s Anesthesia Records], page
two of three, and [Peer Review Transcript])
63. At 1400 hours, [Patient] was significantly hypotensive,
and the certified nurse anesthetist … called out to [Dr.
Ives] to “hold up, hold up,” or words to that effect, “we
need to catch up.” (N.T. 144)
64. [Dr. Ives] stopped and packed [Patient] to give anesthesia
a chance to recover and inquired what was going on. (N.T.
144-145)
65. At 1400 hours, one of the nurses in the [operating room]
called for platelets. (N.T. 145; Exhibit [Patient’s
Operating Room Records], p. 3)
9
***
68. Most bleeding disorders respond to fresh frozen plasma;
when they do not, the individual need[s] platelets. (N.T.
158)
69. Hemostatis was not established for [Patient] during her
surgical procedure. (N.T. 39)
***
71. [Dr. Ives] got the sigmoid colon, the rectum and the uterus
devascularized; by this time, there was only 10-15 minutes
left of dissection to completely remove the specimen.
(N.T. 155)
72. At approximately [3:00 p.m.], [Dr. Ives] asked the
operating room staff to request surgical assistance. (N.T.
43)
73. Platelets still had not arrived. (N.T. 148-149, 158)
***
76. At 1515 hours (3:15 p.m.), platelets were ordered a second
time; the anesthesia record contains a notation, “Lab stated
they will arrive in one & ½ hours.” (N.T. 148-149;
[Patient’s Anesthesia Records], page three of three)
***
81. [Patient] was transferred to the [intensive care unit] at
Ephrata Community Hospital at [4:20 p.m.] on the day of
her surgery.
***
83. [Dr. Ives] explained to [Patient’s] family that [Patient] had
a bleeding disorder and they were doing all they could;
[Dr. Ives] explained that [Patient] was given blood and
fresh frozen plasma to control the bleeding, but it did not,
and that platelets were ordered but they were still waiting
for them. (N.T. 159)
***
10
91. [Patient] remained in the [intensive care unit] at Ephrata
Community [Hospital] for approximately three hours; her
death is recorded as occurring at [7:20 p.m.] on December
28, 2012. (N.T. 55; [Patient’s Death Certificate])
***
93. The immediate cause of death listed on [Patient’s] death
certificate was bleeding. (Exhibit [Patient’s Death
Certificate]).
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:
107. The appropriate standard of care for a surgeon when
[Patient] became unstable from a cardiovascular
standpoint during the surgical procedure would have been
to pack everything that was bleeding to try to stop the
ongoing bleeding, and to allow the anesthesia team to get
more intravenous fluids and blood and blood products, and
then focus on the hemostasis rather than proceed with what
the intent of the operation was to be. (N.T. 51)
108. During [Patient’s] surgery, the standard of care would
have been to call in another surgeon much earlier than 3:00
p.m. when Dr. Keyser arrived. (N.T. 51-52)
109. [Dr. Ives] departed from, or failed to conform to, standards
of acceptable and prevailing medical practice for a
surgeon by disregarding the concerns expressed to him by
the anesthesia and [operating room] team regarding
[Patient’s] continued and uncontrolled blood loss during
the surgical procedure. (N.T. 48; Exhibit [Expert Report])
110. [Dr. Ives] departed from, or failed to conform to, standards
of acceptable and prevailing medical practice for a
surgeon by proceeding with the surgical procedure while
[Patient] was experiencing uncontrolled bleeding. (N.T.
49-50; Exhibit [Expert Report])
11
Proposed Adjudication at 16-17, Findings of Fact Nos. 107-110. Based on these
findings of fact, the hearing examiner concluded that Dr. Ives departed from the
accepted standard of care in violation of the Medical Practice Act of 1985.4
However, she also concluded that leaving Patient in the ICU to perform emergency
surgery at another hospital did not constitute abandonment of a patient.5 Proposed
Adjudication at 18, Conclusions of Law Nos. 3-4.
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
4
Act of December 20, 1985, P.L. 457, as amended, 63 P.S. §§422.1 - 422.51a.
5
Under the Board’s regulations, a practitioner can be subject to disciplinary action for
abandonment of a patient. Specifically, Section 16.61(a)(17) of the Board’s regulations states, in
relevant part, as follows:
(a) A Board-regulated practitioner who engages in unprofessional or immoral
conduct is subject to disciplinary action under section 41 of the act (63 P.S.
§422.41). Unprofessional conduct includes, but is not limited to, the following:
***
(17) Abandoning a patient. Abandonment occurs when a physician
withdraws his services after a physician-patient relationship has
been established, by failing to give notice to the patient of the
physician’s intention to withdraw in sufficient time to allow the
patient to obtain necessary medical care. Abandonment also occurs
when a physician leaves the employment of a group practice,
hospital, clinic or other health-care facility, without the physician
giving reasonable notice and under circumstances which seriously
impair the delivery of medical care to patients.
49 Pa. Code §16.61(a)(17).
12
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.6
Dr. Ives petitioned for this Court’s review.
Appeal
On appeal,7 Dr. Ives has raised multiple issues.8 First, he contends that
the Board erred in admitting the Peer Review Transcript and in rejecting his hearsay
objection to Dr. Kauffman’s testimony and expert report for the stated reason that
they were based upon the Peer Review Transcript. Second, he contends that the
Bureau did not prove he violated the accepted standard of care in providing medical
treatment to Patient. Third, he contends that the Board denied him equal protection
under the law by treating him differently than other physicians. Fourth, he contends
that the Board abused its discretion in ordering a public reprimand, a sanction
rejected by its own hearing examiner. Fifth, he contends that the Board denied him
6
The Board’s order stated that Dr. Ives’ failure to follow the recommendations “of the nationally-
recognized comprehensive physician re-education program shall constitute a violation of this Final
Order.” Board Adjudication, Order ¶15, at 33. Further, should that program “believe” Dr. Ives is
not in compliance, its notification to the Board “shall result in the IMMEDIATE TEMPORARY
SUSPENSION of [Dr. Ives’] license and [Dr. Ives] shall IMMEDIATELY cease practice in the
Commonwealth[.]” Id. ¶21, at 33-34.
7
The Court’s review determines whether constitutional rights were violated, an error of law was
committed, or necessary findings of fact are supported by substantial evidence. Stoner v. Bureau
of Professional and Occupational Affairs, State Board of Medicine, 10 A.3d 364, 371 n.4 (Pa.
Cmwlth. 2010).
8
In his appeal, Dr. Ives raises 10 issues. For purposes of this opinion, we have rearranged and
combined several of the issues.
13
due process because of the delay between the surgery in 2012 and the Board’s
adjudication in 2018. Sixth, he contends that the Board lacked authority to suspend
his license without a prior hearing should the private third party administering the
clinical competency skills assessment and remediation program notify the Board that
Dr. Ives was non-compliant.
Medical Practice Act of 1985
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, 547 A.2d 506, 512 (Pa. Cmwlth. 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:
(ii) A practitioner departs from, or fails to conform to, a quality
standard of the profession when the practitioner provides a
medical service at a level beneath the accepted standard of care.
The board may promulgate regulations which define the accepted
standard of care. In the event the board has not promulgated an
applicable regulation, the accepted standard of care for a
practitioner is that which would be normally exercised by the
average professional of the same kind in this Commonwealth
under the circumstances, including locality and whether the
practitioner is or purports to be a specialist in the area.
14
63 P.S. §422.41(8)(ii) (emphasis added). With this background, we turn to Dr. Ives’
appeal.
Analysis
I.
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.
The Peer Review Transcript contains testimony given by doctors,
nurses, and other medical staff about the surgery in question and their interpretations
of the events that transpired. The Bureau offered the transcript into evidence for the
purpose of establishing what happened in the operating room so that Dr. Kauffman
could opine about whether Dr. Ives’ conduct of the surgery fell below the accepted
standard of care. The parties acknowledge that the transcript is hearsay, which “is a
statement that ‘(1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the matter asserted
in the statement.’” Ray v. Civil Service Commission of Borough of Darby, 131 A.3d
1012, 1022 (Pa. Cmwlth. 2016).
15
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:
(1) Hearsay evidence, [p]roperly objected to, is not competent
evidence to support a finding of the Board[;]
(2) Hearsay evidence, [a]dmitted without objection, will be
given its natural probative effect and may support a
finding of the Board, if it is corroborated by any competent
evidence in the record, but a finding of fact based [s]olely
on hearsay will not stand.
Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa.
Cmwlth. 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:
The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
16
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or
lawful deposition, whether given during the current
proceeding or a different one; and
(B) is now offered against a party who had--or, in a
civil case, whose predecessor in interest had--an
opportunity and similar motive to develop it by
direct, cross-, or redirect examination.
PA. R.E. 804(b)(1) (emphasis added). The former testimony exception applies when
the declarant is unavailable.9 The Board acknowledged this limitation in its
adjudication but dismissed the “unavailability of a declarant” requirement as serving
“no useful purpose in an administrative proceeding where the objective is to
adjudicate issues in an expeditious manner.” Board Adjudication at 9, n.13. The
lapse of six years between the incident and the Board’s adjudication belies this
rationalization.
9
A declarant is unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement
because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter, except as provided in Rule
803.1(4);
(4) cannot be present or testify at the trial or hearing because of death or a then-
existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been
able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception
under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay
exception under Rule 804(b)(2), (3), or (4).
But this paragraph (a) does not apply if the statement’s proponent procured or
wrongfully caused the declarant’s unavailability as a witness in order to prevent the
declarant from attending or testifying.
PA. R.E. 804(a).
17
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:
(b) General rule.--A record of an act, condition or event shall,
insofar as relevant, be competent evidence if the custodian or
other qualified witness testifies to its identity and the mode of its
preparation, and if it was made in the regular course of business
at or near the time of the act, condition or event, and if, in the
opinion of the tribunal, the sources of information, method and
time of preparation were such as to justify its admission.
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
18
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:
Medical charts or records of any health care facility licensed
under the laws of this Commonwealth … may be proved as to
foundation, identity and authenticity without any preliminary
testimony, by use of legible and durable copies, certified in the
manner provided in this subchapter by the employee of the health
care facility charged with the responsibility of being custodian
of the originals thereof.
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).10 Assuming, arguendo, that the Peer Review Transcript is a “medical
chart” or a “medical record,” it lacks a certification from the custodian of records for
Ephrata Community Hospital. Because the Peer Review Transcript is not
10
It states:
(d) Certification.--The certification shall be signed before a notary public by the
employee of the health care facility charged with the responsibility of being
custodian of the records and shall include the full name of the patient, the patient’s
medical record number, the number of pages in the medical records and a legend
substantially to the following effect:
“The copies of records for which this certification is made are true
and complete reproductions of the original or microfilmed medical
records which are housed in (name of health care facility). The
original records were made in the regular course of business at or
near the time of the matter recorded. This certification is given
pursuant to 42 Pa.C.S. Ch. 61 Subch. E (relating to medical records)
by the custodian of the records in lieu of his personal appearance.”
Copies shall be separately enclosed and sealed in an inner envelope or wrapper
bearing the legend “Copies of Medical Records.”
42 Pa. C.S. §6152(d) (emphasis added).
19
authenticated or certified, it does not pass the threshold for having a document
admitted under 42 Pa. C.S. §6151.
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.
II.
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.11 The Board
responds that experts may rely upon information that is not admitted into evidence
to develop their expert opinion. Accordingly, it contends that Dr. Kauffman could
rely on the Peer Review Transcript even if it was not properly admitted into evidence
at the administrative hearing.
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:
In Pennsylvania, our cases have heretofore ruled that an expert
may not state a conclusion which is based on evidence not in the
record…. However, several jurisdictions influenced by the
teaching of highly regarded legal commentators have recognized
an exception to this rule and have permitted medical witnesses to
express opinion testimony on medical matters based, in part,
11
Dr. Ives also challenges the competency of Dr. Kauffman’s opinion because he did not review
Patient’s postoperative records from the ICU or Dr. Ives’ orders during the surgery. Ives Brief at
37.
20
upon reports of others which are not in evidence, but which the
expert customarily relies upon in the practice of his profession….
As Professor Wigmore explains, “where the information is that
of an attending nurse or physician having personal observations
and an interest in learning and describing accurately, there seems
to be every reason for admitting testimony based in part on
this.”….
It appears to us that the foregoing limited exception is wise and
salutary, hence we adopt it as the law in Pennsylvania.
Commonwealth v. Thomas, 282 A.2d 693, 698-99 (Pa. 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), 29
A.3d 762, 770 n.12 (Pa. Cmwlth. 2011). Pennsylvania Rule of Evidence 703 states
as follows:
An expert may base an opinion on facts or data in the case that
the expert has been made aware of or personally observed. If
experts in the particular field would reasonably rely on those
kinds of facts or data in forming an opinion on the subject, they
need not be admissible for the opinion to be admitted.
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:
An expert’s opinion may be based upon years of professional
experience, schooling and knowledge, not all of which can be
presented on a first-hand basis in court. Moreover, … the expert
is assumed to have the mastery to evaluate the trustworthiness of
the data upon which he or she relies, both because the expert has
demonstrated his expert qualifications and because the expert
21
regularly relies on and uses similar data in the practice of his or
her profession. The kind of data contemplated by the rule is often
… the kind of data used daily by experts in making judgments,
reaching diagnoses, and taking action.
***
The fact that experts reasonably and regularly rely on this type
of information merely to practice their profession lends strong
indicia of reliability to source material, when it is presented
through a qualified expert’s eyes.
Primavera v. Celotex Corporation, 608 A.2d 515, 519-20 (Pa. Super. 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 base their diagnoses on
information obtained from other sources, such as patient statements, “nurses’
22
reports, hospital records, and laboratory tests.” Woodard v. Chatterjee, 827 A.2d
433, 444 (Pa. Super. 2003). As our Supreme Court has noted:
[W]here the information is that of an attending nurse or physician
having personal observations and an interest in learning and
describing accurately, there seems to be every reason for
admitting testimony based in part on this.
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.
III.
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
23
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 (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.
Nevertheless, the Board made some findings of fact based solely upon
Patient’s hospital records and Dr. Ives’ testimony related thereto. These findings are
supported by substantial evidence. However, these findings do not support the
24
Board’s conclusion that Dr. Ives departed from the accepted standard of care in
providing medical treatment to Patient.
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.
25
Conclusion
For all the reasons set forth above, we reverse the adjudication of the
Board.12
____________________________________________
MARY HANNAH LEAVITT, President Judge
12
Because we hold that the Board’s findings of fact on the accepted standard of care are not
supported by substantial evidence, we need not address the other issues Dr. Ives has raised on
appeal.
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William L. Ives, M.D., :
Petitioner :
:
v. : No. 646 C.D. 2018
:
Bureau of Professional and :
Occupational Affairs, State :
Board of Medicine, :
Respondent :
ORDER
AND NOW, this 28th day of February, 2019, the adjudication of the
State Board of Medicine, in the above-captioned matter, dated April 13, 2018, is
REVERSED.
____________________________________________
MARY HANNAH LEAVITT, President Judge