Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06CS01440
SCOTLAND, P. J.
The Physician Assistant Committee of the Medical Board of California (the Committee) appeals from the superior court’s judgment issuing a peremptory writ of administrative mandate that directs the Committee to set aside its decision disciplining Stanley McCartney pursuant to the Business and Professions Code and to redetermine the penalty based on the only charge supported by evidence introduced at the administrative hearing. The Committee challenges the court’s ruling that the weight of the evidence does not support the Committee’s finding that cause existed to discipline McCartney for gross negligence and incompetence in the treatment of patient F.B., who died of a heart attack after being treated by McCartney. (Bus. & Prof. Code, § 2234, subds. (b) & (d), 3527, subd. (c); further section references are to the Business and Professions Code unless otherwise specified.) We shall affirm the superior court’s judgment.
The Committee correctly asserts that the judgment is an appealable order. (Bus. & Prof. Code, §§ 3527-3528; Gov. Code, § 11523.)
FACTS
The Committee’s executive officer filed an accusation against McCartney, seeking disciplinary action based on McCartney’s alleged gross negligence and incompetence in treating F.B. when she came to the emergency room at Kaiser Permanente (Kaiser) where McCartney was employed as a physician assistant. The accusation also alleged that McCartney improperly administered medication without authorization when he ordered and/or prescribed Demerol and Vicodin for F.B.
Evidence adduced at the hearing before an Administrative Law Judge (ALJ) revealed the following:
On January 14, 2002, at around 2:00 a.m., 64-year-old F.B. went to a Kaiser emergency room complaining of acute pain in her left shoulder and arm, which radiated to her hand. She reported her pain level was a 10 out of 10. Her pulse rate, pulse oximeter reading, and respiration were normal, and her blood pressure was mildly elevated at 168/96, which was not unusual for a person experiencing pain.
The triage nurse, who had 30 years of experience, did not document any chest pain, altered consciousness, lightheadedness, shortness of breath, diaphoresis (profuse sweating), or nausea. According to F.B.’s husband, F.B. was nauseous, but they did not report this to any of the health care professionals. The triage nurse did not identify F.B. as a cardiac patient; consequently, she was not placed on a cardiac monitor, given an electrocardiogram (EKG), or directed to an emergency room physician.
McCartney examined F.B. around 2:25 a.m., after she had been seen by the nurse. F.B. denied chest pain or pressure, shortness of breath, lightheadedness, diaphoresis, and having any history of heart, lung, or epigastric problems. She complained of pain in the scapulothoracic area and upper back. She had full range of motion, but experienced a mild aggravation of her pain with movement. McCartney found no palpable pain in the anterior shoulder but noted palpable soft tissue tenderness in F.B.’s back in the area of the rhomboid musculature between the scapula and thoracic spine. F.B. placed McCartney’s hand on the sore area and “expressed marked discomfort (arching her back)” when McCartney palpated it.
McCartney ordered X-rays of F.B.’s back and shoulder, which came back negative. He also ordered the administration of Demerol and Vistaril, without obtaining a supervising physician’s approval for the administration of Demerol.
A nurse injected the Demerol intramuscularly around 2:45 a.m. F.B. continued to complain of pain when McCartney returned to check on her about 20 to 30 minutes later. Demerol has a slower onset when delivered intramuscularly, rather than intravenously, and McCartney advised F.B. it would take a while for the medication to work. He returned to see F.B. a third time around 3:50 a.m. At that time, her pain had been reduced to a level 4 out of 10. McCartney ordered the administration of Toradol to help reduce the pain further.
During McCartney’s initial visit with F.B., he asked if she had suffered any recent trauma or changed her physical activities. She denied both; but during one of McCartney’s subsequent checks, F.B.’s husband said they had trimmed shrubs two days earlier. Thus, McCartney surmised F.B. was suffering from acute scapulothoracic pain.
F.B. was discharged at 4:15 a.m., at which time her pain was level was reduced to a level 1 out of 10 and her blood pressure had fallen to 152/86. Prior to discharging F.B., McCartney prescribed Vicodin and Ibuprofen for pain, advised her to apply ice to the sore area, to place her arm in a sling, and to follow up with her primary care physician. F.B. returned home and died a few hours later of an acute myocardial infarction.
The Committee contended that (1) in the absence of any trauma, McCartney should have considered F.B.’s acute onset of pain in the left upper extremity to be cardiac in nature until proved otherwise and, thus, McCartney was grossly negligent and incompetent in his evaluation and assessment of F.B., and (2) applicable regulations prohibited McCartney from administering or prescribing Demerol or Vicodin without a physician’s approval.
Because the accusation concerning unauthorized administration of controlled substances is not at issue in this appeal, it is unnecessary to relate any further evidence or the regulations supporting this charge.
The Committee’s expert, Vito Almaraz, P.A., testified that F.B.’s presentation was atypical of a heart attack victim but that women often present without classic heart attack symptoms. Almaraz opined that the standard of care required McCartney to consider F.B.’s symptoms as cardiac in nature until additional testing showed otherwise; at a minimum, McCartney should have ordered an EKG, and his failure to do so was an extreme departure from the standard of care. Almaraz based his opinion on the patient’s history, the lack of a specific injury, and “the outcome” that “the patient expired a few hours following the visit.”
McCartney’s experts, Stanley Kalter, M.D., and Craig Reid, P.A., disagreed with Almaraz.
Dr. Kalter, the medical director of the emergency department at Huntington Memorial Hospital, opined that McCartney’s treatment of F.B. met the standard of care and did not demonstrate a lack of ability. F.B.’s symptoms were more suggestive of a musculoskeletal problem than a cardiac problem. She did not have chest pain, nausea, diaphoresis, shortness of breath, or palpitations. Moreover, her temperature was subnormal while people experiencing heart attacks tend to have a higher than normal temperature. The absence of chest pain was important because, even when patients presenting with heart attacks relate that they have pain in the arm, the neck or the jaw, the majority also have chest pain. If they do not have chest pain, then they are usually short of breath, lightheaded, or sweaty. According to Dr. Kalter, “[I]t would be almost unreportable for somebody to come in with just arm pain, no associated symptoms, no chest pain whatsoever, and still have a heart attack.”
Reid, a physician assistant with a residency and 12 years of work experience in emergency medicine, also opined that McCartney met the standard of care and was a capable physician assistant. In Reid’s view, a “Monday morning quarterback” knowing the ultimate outcome might believe McCartney should have done things differently but, based on the information presented to him when he saw F.B., McCartney was not negligent in treating her for a musculoskeletal injury.
McCartney testified that when he asked F.B. questions intended to elicit whether she was having cardiac symptoms, all her answers were negative. Based on the information that she had been trimming shrubs, her medical history, and his physical examination of her, McCartney concluded F.B. was suffering from acute scapulothoracic pain. In his experience, it was not unusual for patients to come to the emergency room in the middle of the night with shoulder girdle injuries that keep them from sleeping due to sharp or severe pain. McCartney explained that he now has a lower index of suspicion concerning the possibility of an atypical presentation of cardiac problems. According to McCartney, “[y]ou can't order EKGs on every back or neck or shoulder pain that you see in the ER. I guess you can, but it is not good practice to; it’s a waste of resources in many cases. You can’t order a CAT scan on every headache that comes in. You don’t call the general surgeon for every abdominal pain that you see.”
The ALJ found the following: McCartney’s failure to pursue the possibility of a cardiac problem did not rise to the level of an extreme departure from the standard of care, only simple negligence, and he was also negligent in administering and prescribing Demerol and Vicodin without prior approval from a supervising physician. However, McCartney was not incompetent. He had been licensed since 1987 and had no prior discipline; many former supervising physicians attested to McCartney’s competence; McCartney had learned from his mistakes; and he now seeks approval before administering controlled substances and is more cautious in his examination of patients.
The ALJ held that good cause existed to suspend McCartney’s license for 90 days, stayed the suspension for one year, placed McCartney on probation under specified conditions, and ordered him to pay $5,173.78, which reflected the costs of investigation and prosecution.
The Committee issued a “Notice of Non-Adoption of Proposed Decision” and, after conducting its own review of the evidence, concluded (1) McCartney had engaged in gross negligence, not simple negligence, and was incompetent in his care and treatment of F.B., and (2) he was repeatedly negligent and engaged in unprofessional conduct in ordering controlled substances without advance approval of a supervising physician. The Committee revoked McCartney’s license, stayed the revocation, and placed him on probation for three years.
McCartney filed a petition for writ of mandate in the superior court, contending the Committee’s findings of gross negligence, repeated acts of negligence, and incompetence were not supported by the weight of the evidence. He also argued that the Committee abused its discretion in finding repeated acts of negligence based on his administering or prescribing Demerol and Vicodin without a supervising physician’s authorization.
Exercising its independent judgment, the superior court made the following findings:
The testimony of McCartney and his experts, Dr. Kalter and Reid, was more credible than the testimony of the Committee’s expert, Almaraz, who had not worked in a hospital emergency room since 1988. Dr. Kalter had practiced as a Board-certified emergency room physician for over 30 years and was an assistant professor in emergency medicine at USC School of Medicine. Reid had worked as an emergency room physician assistant for 12 years, and McCartney had done so since 1994. Thus, Almaraz had significantly less experience in the emergency room setting.
In forming his opinion that McCartney’s conduct was an extreme departure from the standard of care, Almaraz improperly considered the resulting harm to the patient. The superior court noted that the Committee had recognized Almaraz’s error and thus had disregarded this portion of his opinion; but the court observed that “in the absence of Almar[a]z’[s] opinion, there is no evidence that [McCartney’s] conduct constituted an extreme departure from the standard of care.”
Even with Almaraz’s opinion, “the weight of the evidence does not support [the Committee’s] finding that [McCartney] committed an extreme departure from the standard of care....” If F.B. was experiencing a heart attack when McCartney examined her, it is undisputed that her symptoms were atypical; she did not have any of the classic symptoms; she had no history of cardiac problems; “her vitals, including her pulse, respiration, oxygen saturation, and blood pressure were ‘unremarkable’”; an experienced triage nurse did not suspect a cardiac etiology; and, when she was examined by McCartney, F.B.’s symptoms “suggested a musculoskeletal, not cardiac, origin.” Thus, “[e]ven if it could be said, with the benefit of hindsight, that [McCartney] made an error in judgment by failing to order an EKG,” his conduct was not an extreme departure from the standard of care, and he was not incompetent. Citing Black v. Caruso (1960) 187 Cal.App.2d 195, the superior court observed: “The law does not demand medical professionals to exhibit prophetic insight or infallible judgment, nor does it condemn them simply because their efforts ultimately prove unsuccessful. [See id. at p. 201, fn. 2.] ‘[I]t is quite possible for a [medical professional] to err in judgment, or to be unsuccessful in his treatment, or to disagree with others of his profession, without being negligent.’” (Ibid.)
With respect to the discipline of McCartney for ordering controlled substances without a supervising physician’s approval, the superior court upheld the Committee’s decision.
Accordingly, the court remanded the matter to the Committee with directions to set aside its findings McCartney was grossly negligent and incompetent, and to redetermine the appropriate discipline that should be imposed based solely on the finding concerning McCartney’s administration of controlled substances without the approval of a supervising physician.
STANDARD OF REVIEW
Where, as here, the fundamental vested right to practice one’s profession is involved, the trial court exercises its independent judgment in reviewing the administrative decision. (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 789.) The superior court resolves evidentiary conflicts, assesses the witnesses’ credibility, and arrives at its own independent findings of fact. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45.)
Government Code section 11425.50, subdivision (b), which is a part of California’s Administrative Procedure Act, provides in pertinent part: “If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it.”
Regardless of the standard of review employed by the superior court, our review on appeal is guided by the substantial evidence test. (Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 368.) We must resolve all conflicts in the evidence, and indulge all reasonable inferences, in favor of the superior court’s judgment. (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 135; Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 659.) But we are not bound by that court’s decision where questions of law are presented based on undisputed facts. (Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d 398, 407.)
DISCUSSION
The Committee challenges the superior court’s determination that the weight of the evidence does not support the Committee’s decision that McCartney was grossly negligent and incompetent.
Gross negligence is “‘the want of even scant care or an extreme departure from the ordinary standard of conduct.’” (Franz v. Board of Medical Quality Assurance, supra, 31 Cal.3d at p. 138.) Incompetence is not synonymous with negligence; it “indicate[s] an absence of qualification, ability or fitness to perform a prescribed duty or function.” (Pollak v. Kinder (1978) 85 Cal.App.3d 833, 837; accord, Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1054-1055.) As a general rule, expert testimony is required to establish a health care practitioner's failure to satisfy the necessary standard of care, unless the practitioner’s negligence on the part of a doctor is demonstrated by matters within the common knowledge of a layperson and no scientific enlightenment is necessary. (Franz v. Board of Medical Quality Assurance, supra, 31 Cal.3d at p. 141; Ewing v. Northridge Hospital Medical Center (2004) 120 Cal.App.4th 1289, 1302; see also Evid. Code, § 801, subd. (a).)
Exercising its independent judgment, the superior court found that McCartney’s medical experts were more persuasive than was the Committee’s expert and that the weight of the evidence did not support the Committee’s determination that McCartney was incompetent or grossly negligent.
The Committee appears to recognize that ample evidence supports the superior court’s judgment under a straightforward application of the substantial evidence test. After all, two medical experts opined that McCartney’s conduct did not fall below the standard of care, given that F.B. did not present with typical cardiac symptoms. The Committee thus attempts to transform the issue into a question of law that requires us to exercise our independent judgment.
In the Committee’s view, the superior court failed to apply the correct standards when it did not give appropriate weight to Kaiser’s protocols, which McCartney was required to follow under the applicable regulatory scheme and his delegation of services contract. Although McCartney’s experts testified the protocols are only guidelines, the Committee asserts the exact role of protocols are questions of law upon which we must exercise our independent judgment. In its words: “Given the necessity of statutory and regulatory interpretation in determining the status of protocols in the practice of physical therapists [sic], the issue is clearly a question of law for determination by a court.” As we shall explain, the Committee’s arguments are not persuasive.
The Committee notes that the practice of a physician assistant is circumscribed by law and regulation. Section 3502, subdivision (a) states “a physician assistant may perform those medical services as set forth by the regulations of the board when the services are rendered under the supervision of a licensed physician and surgeon....” Subdivision (c)(1) of the statute provides: “A physician assistant and his or her supervising physician and surgeon shall establish written guidelines for the adequate supervision of the physician assistant. This requirement may be satisfied by the supervising physician and surgeon adopting protocols for some or all of the tasks performed by the physician assistant....”
Section 3502 states in pertinent part: “(a) Notwithstanding any other provision of law, a physician assistant may perform those medical services as set forth by the regulations of the board when the services are rendered under the supervision of a licensed physician and surgeon who is not subject to a disciplinary condition imposed by the board prohibiting that supervision or prohibiting the employment of a physician assistant. [¶]... [¶] (c)(1) A physician assistant and his or her supervising physician and surgeon shall establish written guidelines for the adequate supervision of the physician assistant. This requirement may be satisfied by the supervising physician and surgeon adopting protocols for some or all of the tasks performed by the physician assistant. The protocols adopted pursuant to this subdivision shall comply with the following requirements: [¶] (A) A protocol governing diagnosis and management shall, at a minimum, include the presence or absence of symptoms, signs, and other data necessary to establish a diagnosis or assessment, any appropriate tests or studies to order, drugs to recommend to the patient, and education to be provided to the patient. [¶] (B) A protocol governing procedures shall set forth the information to be provided to the patient, the nature of the consent to be obtained from the patient, the preparation and technique of the procedure, and the followup care. [¶] (C) Protocols shall be developed by the supervising physician and surgeon or adopted from, or referenced to, texts or other sources. [¶] (D) Protocols shall be signed and dated by the supervising physician and surgeon and the physician assistant....”
California Code of Regulations, title 16, section 1399.545, which regulates the supervision required, states in pertinent part in subdivision (e)(3): “The supervising physician may adopt protocols to govern the performance of a physician assistant for some or all tasks. The minimum content for a protocol governing diagnosis and management as referred to in this section shall include the presence or absence of symptoms, signs, and other data necessary to establish a diagnosis or assessment, any appropriate tests or studies to order, drugs to recommend to the patient, and education to be given the patient....”
Kaiser and McCartney chose the use of protocols in their delegation of services agreement, which states: “We agree to practice utilizing the Southern California Kaiser Permanente’s Physician Assistant Protocols and the Kaiser Permanente Drug Formulary, and care/procedures specifically authorized by the supervising physician.”
Asserting that McCartney was required to follow Kaiser’s protocols in treating F.B., the Committee contends the coronary artery disease and angina pectoris protocol (the protocol) governed F.B.’s condition and it required McCartney to assume the source of F.B.’s pain was cardiac in nature and to take required steps to rule this out.
The protocol provides in pertinent part:
“ Definition:
“... Angina pectoris is symptomatic chest pain resulting from myocardial ischemia.
“ Subjective Data:
● The following history is suggested:
Cardiovascular history, especially coronary artery disease, coronary artery bypass graft surgery, angioplasty, myocardial infarction, peripheral arterial disease, and/or cerebral vascular disease[.] Family history of cardiac disease, especially sudden death from MI in a family member under age 55 years. Risk factors: hypertension, hyperlipidemia, diabetes mellitus, smoking, obesity[.]
● Any or all of the following symptoms may be present:
Chest discomfort: Classic symptoms include substernal chest discomfort that usually lasts for several minutes and is precipitated by an increase in cardiac work load, i.e., exertion or emotional upset. May radiate to or originate in the chest, neck, jaw, the left or both arms and/or shoulders, the epigastrium or the mid-upper back and may be described as heaviness, pressure, burning, squeezing, smothering and/or indigestion. These symptoms are typically predictable and reproducible. Other symptoms may include shortness of breath, diaphoresis, severe fatigue, and/or nausea.
Note: Persistent discomfort suggestive of angina lasting longer than 10-15 minutes and unrelieved by nitroglycerin may represent infarct and should be treated as an emergency.”
The protocol goes on to provide objective data to be considered, assessment information, and a diagnostic plan that suggests the physician assistant “[c]onsider” an EKG.
The Committee interprets the protocol as stating that a cardiac patient may experience chest discomfort as only radiating arm pain; that when this type of discomfort is present, an EKG is required; and that when the pain lasts longer than 10 to 15 minutes, the physician assistant should treat the matter as an emergency because the patient may be having a heart attack. The Committee asserts McCartney failed to follow the protocol when he neglected to order an EKG and chest X-ray to rule out a cardiac problem after F.B. reported that she had pain radiating from her left shoulder down her arm and her pain was not relieved in a timely manner by the administered medications. Thus, the Committee argues (1) because McCartney did not follow the protocol, he necessarily was grossly negligent and incompetent despite the expert testimony to the contrary, and (2) because the superior court did not properly consider that McCartney’s conduct was governed by the protocol, it erroneously gave undue weight to the testimony of McCartney’s experts that McCartney was not negligent or incompetent in failing to recognize that F.B.’s atypical symptoms were cardiac in nature. We are not persuaded.
McCartney did not ignore or fail to apply the protocol. As Dr. Kalter pointed out, McCartney acted within the protocol by considering a cardiac source for F.B.’s pain, but her presentation did not require McCartney to do anything more than he did. F.B. did not have shortness of breath, diaphoresis, severe fatigue, and or nausea. She did not have chest pain or discomfort. She complained of scapular and arm pain and flinched when McCartney palpated her scapular area. Thus, Dr. Kalter opined, McCartney was not grossly negligent or incompetent in diagnosing F.B. with, and treating her for, a musculoskeletal problem given the reported symptoms.
McCartney’s error, if any, was that he did not interpret the protocol in the same manner as the Committee. Neither do we.
The protocol defines angina pectoris as “symptomatic chest pain resulting from myocardial ischemia.” It states that one of the symptoms is chest discomfort, which “[m]ay radiate to or originate in... the left or both arms and/or shoulders....” Saying that chest discomfort may originate in the arms and shoulders does not eliminate the need for the presence of the underlying symptom of chest discomfort. Nothing in the plain language of the protocol states that chest discomfort may be absent, particularly in women, and that the patient may experience only radiating pain in the shoulder and arm. Nor does the protocol direct that every patient presenting with scapulothoracic pain radiating to the arm should be treated by physician assistants as cardiac patients until cardiac problems are ruled out via an EKG, a chest X-ray, cardiac enzyme tests, or any other specific diagnostic test. The protocol does not direct that, even in the absence of chest discomfort indicative of angina, patients presenting with scapulothoracic pain should be given nitroglycerin to see if this relieves their pain and, if it does not, they should be treated as potential heart attack patients. And the protocol does not state that patients presenting with scapulothoracic pain which is not relieved in 10 to 15 minutes by medications other than nitroglycerin should be treated as potential heart attack victims.
If the protocol was intended to mean any or all of the above, then it should be rewritten. We leave the wisdom of such blanket rules to the medical professionals. For our purposes, it suffices to say that McCartney cannot be faulted for failing to discern the Committee’s skewed interpretation of the protocol.
Substantial evidence supports the superior court’s judgment that McCartney was not grossly negligent or incompetent in his treatment of F.B., and nothing in the protocol compels a different result.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, J., BUTZ, J.
In California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, this court held that the aforementioned statutory language applied both to the decision of an ALJ and to the decision of an administrative board reviewing the decision of an ALJ. (Id. at p. 588.) However, before a court is required to give “great weight” to a credibility determination of the decision maker, the decision maker must identify “the observed demeanor, manner, or attitude of the witness that supports [the credibility determination].” (Id. at p. 596.)
In this case, although the ALJ found McCartney’s experts more credible, neither the ALJ nor the Committee identified any observed demeanor, manner, or attitude of any witness. Accordingly, neither the trial court nor this court must give “great weight” to any credibility determinations of the ALJ or the Board. (California Youth Authority v. State Personnel Bd., supra, 104 Cal.App.4th at p. 596.)