BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against: ) ) ) ) ) ) ) )

Nneamaka Mbagwu, M.D. Physician's and Surgeon's Certificate No. A-53749

Petitioner.

Case No. 08-2012-223450

DENIAL BY OPERATION OF LAW PETITION FOR RECONSIDERATION

No action having been taken on the petition for reconsideration, filed by Marvin H. Firestone, MD, JD, on behalf of Nneamaka Mgabwu, M.D., and the time for action having expired at 5 p.m. on August 5, 2016, the petition is deemed denied by operation of law.

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

NNEAMAKA MBAGWU, M.D.

Physician's and Surgeon's Certificate No. A 53749

) ) ) ) ) ) ) )

____________________ R~es~p~o=n=de=n=t _______ )

MBC No. 08-2012-223450 OAHNo. 2015040191

ORDER GRANTING STAY

(Government Code Section 11521)

Marvin H. Firestone, MD, JD. on behalf ofrespondent, Nneamaka Mbagwu, M.D., has filed a Request for Stay of execution of the Decision in this matter with an effective date of July 15,2016.

Execution is stayed until August 5, 2016.

This stay is granted solely for the purpose of allowing the Respondent to file a Petition for Reconsideration.

DATED: July 7, 2016

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation ) Against: )

) )

NNEAMAKA MBAGWU, M.D. ) )

Physician 1 s and Surgeon 1 s ) Certificate No. A 53749 )

) Respondent )

Case No. 08-2012-223450

OAH No. 2015040191

DECISION

The attached Proposed Decision is hereby adopted as the Decision and Order of the Medical Board of California, Department of Consumer Affairs, State of California.

This Decision shall become effective at 5:00p.m. on July 15, 2016.

IT IS SO ORDERED: ,June 16, 2016.

MEDICAL BOARD OF CALIFORNIA

~d: ... il. -'U owardKtiuss, M. ~' Chair

Panel B

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

NNEAMAKA MBAGWU, M. D.,

Physician's and Surgeon's Certificate No. A-53749,

Respondent.

Case No. 08-2012-223450

OAH No. 2015040191

PROPOSED DECISION

This matter came on regularly for hearing on March 1 and 2, 2016, in Los Angeles, California, before Laurie R. Pearlman, Administrative Lmv Judge, Office of Administrative Hearings, State of California.

Rebecca L. Smith, Deputy Attorney General, represented Kimberly Kirchmeyer (Complainant), Executive Director of the Medical Board of California (Board).

Edward 0. Lear, Attorney at Law, represented Nneamaka Mbagvvu, M.D. (Respondent), who was present.

Oral and documentary evidence was received. The record was held open until April 15, 2016, for the parties to file written closing briefs (marked for identification as Exhibits 14 and DD) and for complainant to file a motion for sealing order to protect confidential documents (marked for identification as Exhibit 15). These documents were timely filed, the record was closed, and the matter was submitted for decision on April 8, 2016.

PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION

This case involves Respondent's care and treatment of Baby I I. (referred to in the Accusation as Patient C.G.V .) The Administrative Law Judge granted Complainant's motion for a protective order sealing certain exhibits in order to maintain patient privacy, and the court repmier was instructed to use the patient's initials in any transcript in lieu of his name.

I I I

FACTUAL FINDINGS

Jurisdiction

1. On November 27,2013, Complainant made and filed the Accusation in her then official capacity as the Interim Executive Director of the Board. Respondent filed a timely notice of defense and this matter ensued. All jurisdictional requirements have been met.

Respondent's License

2. On December 7, 1994, the Board issued Physician's and Surgeon's Cetiificate Number A 53749 to Respondent. It is current and is due to expire on June 30, 2016. Respondent has no history of license discipline.

805 Report

3. From 2000 to May 2012, Respondent worked as a physician in the pediatrics and neonatology department at San Joaquin Community Hospital (Hospital), in Bakersfield, California. Review by the Board was initiated after the Hospital filed a Business and Professions Code section 805 Health Care Facility report with the Board in August 2012. following Respondent's resignation from the Hospital's medical statJ.

Care and Treatment olBahy H

4. On April 16, 2012, at approximately 10:00 p.m., Baby H. was delivered at the Hospital by cesarean section at 36 weeks. due to breech presentation. His Apgar scores were 8 and 9. 1

5. Following delivery, Baby H. was taken to the newborn nursery. Respondent was his assigned physician. Less than an hour after birth, Baby H. was dusky in color and was grunting with mild subcostal retractions. Nursing notified Respondent by telephone at 10:58 p.m. ofthese signs of respiratory distress. Respondent made a telephone order to admit Baby H. to the Neonatal Intensive Care Unit (NICU) for respiratory distress and dcsaturation episodes. Respondent made other orders over the telephone at that time, including continuous positive airway pressure (CPAP) to help Baby H. breathe, a chest x-ray, laboratory studies. antibiotics, and intravenous i1uids.

6. On April 17, 2012 at 5:00 a.m., nursing staff contacted Respondent by telephone with Baby H.'s laboratory results. The initial blood gas was pH 7.31, PC02 47, and HC03 25. At 7:00a.m., Baby H. was noted to have mild respiratory distress (mild retractions, CPAP 5, 28 percent oxygen.)

Apgar scores represent a baby's condition one minute and five minutes after delivery, on a scale of 1-10. vvith 10 being optimal.

2

7. On April 17,2012 at 10:55 a.m., Respondent was at Baby H.'s bedside performing her first in-person evaluation of the patient. At that time, she was aware that Baby H.'s clinical picture was consistent with respiratory distress syndrome. Baby H. required increased oxygen to maintain oxygen saturations between 90-94 percent. CP AP was increased to 6.

8. On April17, 2012 at 1:00 p.m., Baby H. was on 100 percent oxygen. Nursing staff telephoned Respondent to inform her that the newborn was having oxygen desaturation despite being on a ventilator. Respondent gave telephone orders to increase the ventilation settings, ordered an immediate echocardiogram, and a blood gas to be taken at 4:00p.m.

9. On April 17, 2012 at 1:20 p.m., Baby H. was intubated by a respiratory therapist and placed on conventional mechanical ventilation with 100 percent oxygen. At 1 :25 p.m., a chest x-ray for endotracheal tube placement was taken, with results obtained at 1:39 p.m. Nursing staff called Respondent at approximately 1 :40 p.m., 10 minutes after she had left the hospital, to ask that she come to Baby H.'s bedside to review the chest x-ray and update his parents, but she did not do so. At 2:14p.m., the chest x-ray was reviewed by a radiologist who reported no definite pneumothorax? The radiologist described Baby H. as having stable to moderate respiratory distress syndrome with a high endotracheal tube.

10. On April 17, 2012, Respondent left the Hospital from 1:30 p.m. until 5:00p.m. in response to a call from her son's school, stating that he was having an asthma attack. After she left the Hospital campus, Respondent telephoned Dr. Sudhir Patee to ask him to review Baby H.'s x-ray for an opinion. Dr. Patel told Respondent that he was not physically at the Hospital, but could remotely review the x-ray, and Respondent was agreeable to having Dr. Patel review the infant's x-ray remotely. Respondent did not ask Dr. Patel to take over the care of Baby H. or any other patient in her absence, nor did she inform the nurses that Dr. Patel, or anyone else, would be covering any of her patients that afternoon. The nurses on duty made several unsuccessful attempts to contact Respondent regarding Baby H. They left messages, but Respondent did not respond.

11. In the early afternoon, Dr. Patel reviewed Baby H.'s x-ray and determined that it showed signs of respiratory distress syndrome. When he tried to reach Respondent by telephone to notify her of his findings, she did not answer.

12. On April 17, 2012, Dr. Patel went to the Hospital for an unrelated meeting. At approximately 3:00 p.m., he went to the NI CTJ to follow up with Respondent regarding Baby H.'s chest x-ray. NICU nurses informed Dr. Patel that Baby H. was in distress and they had

2 A collection of air between the lungs and chest. Dr. Patel is board certified in neonatology by the American Board of

Pediatrics, with subspecialty certification in Neonatal-Perinatal Medicine. He has privileges at the Hospital, and treats patients in the newborn nursery and NICU. I I

3

been unable to reach Respondent concerning his deteriorating condition.4 Dr. Patel evaluated the infant and noted a left pneumothorax. Because this was an urgent condition which needed to be treated, and could not be delayed until Respondent was reached or returned, Dr. Patel intervened and stabilized Baby H. by performing a needle aspiration of the pneumothorax. Shortly thereafter, at 4:43 p.m., surfactant was administered, and Dr. Patel placed an umbilical arterial and venous catheter.

13. On April 17, 2012, at approximately 5:00p.m., Respondent came to the NICU and assumed care of Baby H. At 5:25p.m., the infant's blood gas test measured 7.24/52/3 II -5 (1 00 percent oxygen.) Baby H's respiratory distress continued to worsen. At approximately 6:50 p.m., Respondent elected to transfer the infant to a higher level of care for fmiher treatment. At 6:50p.m., the blood gas test measured 7.14/69/ 17/-5 (100 percent oxygen.) At 8:40p.m., the blood gas test measured 6.71/74/52/-16 (100 percent oxygen.) 5

An echocardiogram revealed pulmonary hypertension. Baby H. was placed on high frequency ventilation and transported to Kaiser Permanente Los Angeles Medical Center on inhaled nitric oxide.

14. On April 17, 2012, after being admitted to Kaiser Permanente Los Angeles Medical Center, Baby H. was treated for severe pulmonary hypertension. and severe hypoxemic respiratory failure. He was given nitric oxide and respiratory support, with some improvement.

15. On April20, 2012, a computerized tomography (CT) scan ofBaby H.'s brain showed multiple areas of ischemic injury involving both hemispheres, greater on the left than on the right side. The CT scan report notes indicate that the injury was likely due to severe metabolic acidosis6 and hypoxemia which occurred soon after birth.

16. On April22, 2012, Baby H. was extubated, and nasal cannula was discontinued one week later. He was discharged home on May 2. 2012.

Complainant's Ecpert Witness Eileen Hoke, MD.

17. Complainant o±Tered the reports and testimony of an expert witness who was highly qualified to offer expert opinions in this matter. 7 Eileen Hoke, M.D., earned her

On April 17, 2012, nursing staff telephoned Respondent at 3:15 p.m., 4:00 p.m., 4:15 p.m., 4:30p.m., and 4:45 p.m., without success.

5 Normal blood oxygen levels are 90 percent or above. These readings indicate that even with full oxygen support, Baby H. had a dangerously low concentration of oxygen in the blood.

6 Metabolic acidosis is an imbalance of acids and bases in the blood. Hypoxemia occurs when the body is deprived of an adequate oxygen supply.

7 On the first day of hearing. Complainant's unopposed motion in limine to preclude expert testimony in support of Respondent was granted on the grounds that

4

medical degree from Georgetown University School of Medicine in 1995. She completed an internship (1996) and residency ( 1998) at the Naval Medical Center, Department of Pediatrics in San Diego. Dr. Hoke completed a fellowship in the Division ofNeonatology, Department of Pediatrics, at the Uniformed Services University of the Health Sciences, in Bethesda, Maryland in 2003. She is board certified by the American Board of Pediatrics, with subspecialty certification in Neonatal-Perinatal Medicine, and is the NICU Medical Director and Division Head at the Naval Medical Center in San Diego.

18. Dr. Hoke reviewed the 805 complaint from the Hospital, Baby H.'s medical records in this matter, and the transcripts of the Board interview. 8 She defined the standard of care, establishing that: a physician must usc the same level of skill, knowledge, and care in diagnosing and treatment that other reasonably careful physicians would use when practicing in the same or similar circumstances; gross negligence is an extreme departure from the standard of care; and incompetence is an absence of qualification, ability or fitness to perform a prescribed duty or function.

19. Dr. Hoke formed the opinion that Respondent committed gross negligence with respect to her care and treatment of Baby H., and that Respondent was incompetent in her qualifications, ability and fitness to treat Baby H. Her expert testimony was both credible and persuasive.

20. Dr. Hoke opined that Respondent failed to provide timely care to Baby H., failed to provide direct patient care and failed to properly turn over patient care when she left the hospital. She also opined that Respondent exhibited a lack of knowledge regarding the treatment of Baby H.'s condition. Respondent failed to recognize pulmonary hypertension, and was unresponsive to calls from the nursing staff. Dr. Hoke credibly opined that Baby H. was sick and worsening, required early aggressive management, and Respondent should have been at his bedside aggressively managing him. Respondent was not readily available to care for her patient.

21. Dr. Hoke opined that Respondent had committed an extreme departure from the standard of care. In her report (Exhibit 5), Dr. Hoke wrote:

Dr. Mbagwu missed several opportunities, in which an intervention might have avoided clinical deterioration, by managing [Baby H.] almost entirely over the phone. She admitted the infant (over the phone) to the NICU with obvious respiratmy distress. She ordered the infant to be placed on

Respondent had not designated any expert witnesses pursuant to Business and Professions Code section 2334.

Respondent participated in an interview with an investigator for the Medical Board in Fresno, California on May 9, 2013. and prepared a written summary ofher care and treatment of Baby H. for the Board.

5

CPAP of 5 without ever seeing the x-ray that she ordered. She attributed this infant's respiratory distress to him being premature but there are many other diagnoses that can cause these symptoms including cyanotic heart disease, pneumonia, and congenital airway anomalies. There are also diagnoses that would worsen with CPAP, e.g. a pneumothorax or meconium aspiration.

Despite an intervention (CPAP) the infant continued in respiratory distress. Dr. Mbagvvu stated in her interview and her summary of care (Attachment 4) that she assessed the infant at around 0800 and spoke with the parents around 0900. However, nursing documentation and the date and time on Dr. Mbagwu's admission dictation shows that she was not there until around 1055 --more than 14 hours after birth with worsening respiratory distress, and requiring more oxygen to maintain oxygen saturations. Despite not reviewing the chest x-ray from admission, she increased the CPAP to 6 and then ordered the next blood gas for 1800 -- a full 7 hours later. As stated above, there was NO further documentation from Dr. Mbagwu.

At 1245 she was notified of worsening respiratory distress for which she ordered intubation and surfactant administration (over the phone), without assessing the infant. She also ordered an x-ray post intubation to check endotracheal tube (ETT) placement. though she left the hospital for lunch before looking at the x-ray.

At 1300 the infant had a desaturation to 50% while agitated (a sign or persistent pulmonary hypertension of the newborn -PPHN). Again, by telephone, without assessing the infant in person, she ordered the Fi02 be increased to 100%, a STAT echo and a capillary blood gas at 1600. It is at this point that central lines, including an umbilical arterial catheter should have been placed. Had it been placed at this time, and arterial gases drawn with frequency, it is likely that the severe [persistent pulmonary hypertension] would have been diagnosed at this time.

At 1325, the x-ray was obtained for ETT placement that showed a ''prominent cardiothymic silhouette"9 but Dr. Mbagwu never smv this x-ray.

9 Meaning that the heart and thymus gland appeared to be enlarged.

6

At 1330, the shift leader called Dr. Mbagwu and requested that she come to the bedside to review the x-ray and update the parents. There is no evidence that Dr. Mbagwu did this. During the [Board] interview Dr. Mbagwu admitted to being called to the bedside but that it was not urgent. She said that the nurses just wanted her to review the x-ray. She said, "They can read x-rays". Nurses and respiratory therapists are usually not credentialed to read x-rays.

It is at this time that the timeline established in the record and all hospital documentation conflicts with Dr. Mbagwu's timeline. It is around this time that Dr. Mbagwu left the hospital for lunch (and then a family emergency), despite her patient requiring intubation and I 00% oxygen without review of an x-ray that she ordered. She reports that she called Dr. Patel to cover for her (for an undetennined period of time). Dr. Mbagwu wavered back and forth in the [Board] interview whether she called Dr. Patel to simply review the x-ray or to cover for her. In her summary of care (Attachment #4 ), she stated that she called Dr. Patel to "look at Baby H' s chest x-ray". She also stated that she called the NI CU at 1515 to check on the baby. However there is nursing documentation from this same time that showed they were persistently trying to reach her but were unable (p.1 00). She said that she received the message that they had called at I 600 saying that the infant's oxygen saturation had started to drop from 93-97% to the high 80's. She reported that that she "immediately called Dr. Patel and told him to cover me for one hour (until 1700) as I had an emergency. Dr. Patel told me that he would go to NICU, and that he was very close to the hospital." (Attachment #4).

This does not coincide with the records. In fact, Dr. Patel was at the bedside by 1500. She did not provide a proper turnover to Dr. Patel. In the recorded interview she reported only asking Dr. Patel to review the x-ray and that she was available for "emergencies", yet she was unreachable for a full two hours-with multiple phone calls from nursing documented in the notes. In addition, she did not tell the nurses that Dr. Patel was "covering" for her. Therefore, she was unavailable by phone AND she did not turn over the patient's care properly to another physician.

Dr. Mbagwu's provision of timely care failed at many levels. First, she did not come in to evaluate the infant on admission who was in respiratory distress requiring assisted ventilation

7

with an oxygen requirement. In fact she did not see the infant until 14 hours of life. On her exam the infant was still in respiratory distress and requiring more oxygen to maintain saturations. She increased the CP AP to 6 and ordered a blood gas for 7 hours later. Then, despite multiple documented phone calls (one even requesting her to come to the bedside), she never came back to reassess the infant and managed him entirely over the phone. This lack of direct observation and evaluation likely lead to a delay in the diagnosis of persistent pulmonary hypertension of the newborn (PPHN). The infant displayed most of the signs of PPHN very early on -- respiratory distress, cyanosis, desaturations with agitation, and differences in pre and post-ductal saturations. Dr. Mbagwu made the diagnosis correctly but perhaps too late. As early as 1300 he had eli tferences in his pre and post -ductal saturations. The diagnosis and management of PPHN is a mainstay for neonatologists. Many would argue that the prompt recognition and treatment will lead to much better outcomes. As long ago as 1983, Drs. Fox and Duara wrote, "One of the critical guidelines is early intervention to prevent the progressive worsening of the right-to- left shunt'' (p. 510, Reference #5). In a review article published in 2009. this is reiterated multiple times, "Rapid evaluation of a neonate who is cyanotic and in respiratory distress is essential for achieving a good outcome., and "Prompt diagnosis and management, including a timely referral to a tertiary care center can dramatically improve the chances of survival" and "A systematic approach to the hypoxemic infant with serial interventions and tests is needed for a timely and accurate diagnosis of PPHN .'' (pp. 1, 2, and 6, Reference #6).

Last, the proper turnover of patient care is absolutely essential. In fact this has become a major focus for Joint Commission Accreditations. There is an entire pmiion of their website dedicated to "Improving Transitions of Care: Hand-ofT Communications". They define this as "a transfer of patient care responsibility achieved through ciTcctive communication. It is a real-time process of passing patient specific information fi"om one caregiver to another for the purpose of ensuring the continuity and safety of the patient's care." (p. 1-2, Reference #7).

Dr. Mbagwu was nearly absent from this infant's bedside and mostly managed his care over the phone without visual assessment. In addition there were several hours (at least from 1325-1700) that she was unavailable by phone without

8

arranging for coverage with a true transfer of care. This likely lead to the delayed diagnosis and subsequent poor management of an infant with severe PPHN. For these reasons, I would consider this an extreme departure from the standard of care.

(Exhibit 5, pages 6-9.)

Respondent's Evidence

22. Respondent grew up in Lagos, Nigeria as part of a tightknit, devoutly Catholic family. Respondent and her husband have five children who are active participants at St. Philip the Apostle Church in Bakersfield. Respondent is raising her children "with strong Christian values" and she proudly makes ongoing donations to numerous charities.

23. Respondent pursued a medical career based upon her desire to help people. She received her medical degree in 1987 from the University of Lagos, College of Medicine, in Lagos, Nigeria. Respondent completed a one-year internship, one year of National Youth Service, and three years of private practice in Nigeria. Respondent relocated to the United States in 1991 for better opportunities. She did a residency from 1993 to 1996, as well as a fellowship in neonatology from 1996 to 1999, at Martin Luther King Drew Medical Center in Los Angeles. In 1996, she became board certified in pediatrics. She is not board certified in neonatology. She has had no previous disciplinary action against her license, and has never been named in any medical malpractice lawsuits.

24. From 2000 to April 2012. Respondent was employed in Bakersfield, California by the Southern California Permanente Medical Group. practicing as a pediatrician and neonatologist. In April 2012, Respondent treated patients in the Hospital's nursery and NICU until she was suspended by the Southern California Permanente Medical Group and resigned from the Hospital. Respondent no longer has privileges there. Respondent was repmied to the Board by her employer and the Hospital for falling below the standard of care and patient abandonment of Baby H. Since June 2012, she has practiced pediatrics and neonatology, with privileges at Mee Memorial Hospital in King City, California.

25. Two physician character witnesses testified on behalf of Respondent. Seyed A. Tamjidi, M.D., is an obstetrician in Bakersfield, and Hasmukh Sheth. M.D., is a pediatrician in San Diego. Both testified that they had a professional relationship with Respondent when they worked at Southern California Permancnte Group in Bakersfield, California. Respondent has cared for babies delivered by Dr. Tamjidi. Dr. Sheth observed Respondent's abilities and considers her to be a very good clinician. Neither Dr. Tamjidi nor Dr. Sheth reviewed any records relating to Baby H. Both Drs. Tamjidi and Sheth have a limited understanding of the circumstances of this matter, based solely upon what Respondent has told them. Respondent also submitted numerous character reference letters from individuals who praised her for her integrity, professionalism, and compassion.

9

26. Respondent does not acknowledge any wrongdoing on her part, nor does she take responsibility for her own actions or inactions in regard to the care and treatment of Baby H. Respondent contends that she provided care and treatment to Baby H. to the best of her abilities. She asserted that, at times, she had to manage his care by telephone due to a shortage of doctors at the Hospital. Respondent contended at the hearing that she advised the Hospital of her family emergency, and obtained temporary coverage for the infant's care from Dr. Patel, for whom Respondent regularly provided coverage. She testitled that the Hospital falsely alleged to the Board that she abandoned Baby H. in retaliation for a discrimination complaint she had made against the Hospital. She asserted that inconsistencies between her testimony at the hearing, her written summary of care, and her Board interview were due to the fact that her previous attorney had advised her to alter the facts. Respondent failed to corroborate these assertions, and her testimony was not persuasive.

27. Respondent was assigned to take care of Baby H. on April 16, 2012, following delivery, and on April 17, 2012. While she was managing the care of Baby H., Respondent was also taking care of other infants in the NICU and the newborn nursery.

28. On April 16, 2012, Respondent admitted Baby H. to the NICU by telephone order. She testified that she was tlrst at bedside with Baby H. at 8:00a.m. on April 17, 2012. However, that is not reflected in the medical records. Nursing notes document that she was first at the patient's bedside at 11:00 a.m. Respondent testified that she diagnosed Baby H. with pulmonary hypertension, but this was not ref1ected in the chart until after 5:00 p.m., when arrangements were made to transfer Baby H. to Los Angeles for a higher level of care.

29. Respondent testitled that at 12:34 p.m., she was notified by Nursing that Baby H. had increased respiratory distress. She gave orders to intubate Baby H., check the ETT placement with x-ray, continue CPAP, and advance the blood gas from 6:00p.m. to 4:00 p.m. Respondent testified that she did not go to the patient's bedside because she was participating in an in-hospital emergency delivery when she gave the telephone order to intubate Baby H. This claim is not corroborated by any witnesses or documents, and is inconsistent with her testimony at the Board interview, her written summary of care. and Baby H.'s medical records.

30. i\t 1:00 p.m., following a repm1 from Nursing that Baby H. was having oxygen desaturations despite being on a ventilator, Respondent gave telephone orders to increase the ventilation settings and a STAT echoeardiogram, which in her opinion is the gold standard for diagnosing pulmonary hypertension. However, Respondent did not follow up regarding the completion of the cchocardiogram until hours later.

31a. Respondent testified that when nursing staff called her at 1:30 p.m. and asked her to go to the patient's bedside to read the chest x-ray and speak with the baby's parents, she could not do so because she was still involved in the in-hospital emergency. Respondent testified that her only option was to handle Baby H. over the phone. She did not call Dr. Patel to assist. Respondent testified that she later called Dr. Patel to cover Baby H. after she

10

had left the Hospital to attend to her son, who had experienced an asthma attack while at school. After leaving the Hospital on the afternoon of April 17, 2012, Respondent picked up her son from school and drove him to the home of an adult who could look after him while she returned to the Hospital. Respondent did not believe that her son was in need of medical care.

31 b. Respondent provided inconsistent accounts as to why she left the hospital that afternoon. Initially, in her written summary of care, Respondent stated, "At 1415, I left the hospital for lunch." (Exhibit 12. p. 2.) At her Board interview, she stated that she went to lunch and then had a family emergency. (Exhibit 8, pp. 60-62.) At the hearing. Respondent testified that she did not leave for lunch, but rather left to pick up her son at day care because he had had an asthma attack.

32. There are differing versions ofthe events ofthe afternoon of April 17, 2012. Complainant's version is supported by the medical record documentation and Dr. Patel's testimony. Respondent has provided multiple versions of events: the version given in her "Summary of Care for Baby H." provided to the Board before her May 9, 2013 Board Interview; the version given in her May 9, 2013 Board Interview; and the version given during testimony at the hearing. She failed to corroborate the truth of her assertions at the hearing, and her testimony was not persuasive.

33. At hearing, Respondent submitted a phone log which she had created, using online account information. The log ref1ects out-going calls that Respondent placed, showing that she made no out-going calls between 2:06p.m. to 4:26p.m. The phone log does not reflect any in-coming calls to Respondent, including those from nursing staff: or the call from Dr. Patel after he reviewed the patient's x-ray. However, nursing records establish that nursing staff called Respondent at 3:15 p.m .. 4:00 p.m., 4: 15 p.m., 4:30p.m., and 4:45 p.m.

34. It is undisputed that Respondent did not notify the NICU nurses caring for Baby H. that Dr. Patel would be covering for her. As a result, on April 17, 2012, the nurses tried unsuccessfully to reach Respondent, who was unavailable. In her Board interview, Respondent acknowledged that she should have notified nursing staff as to a change in coverage.

LEGAL CONCLUSIONS

l. Cause exists to discipline Respondent's certificate, pursuant to Business and Professions Code section 2234, subdivision (b), for gross negligence in the care and treatment of patient BABY H., as set forth in Factual Findings 4-34.

2. Cause exists to discipline Respondent's certificate, pursuant to Business and Professions Code section 2234, subdivision (d), for incompetence in the care and treatment of patient BABY II., as set forth in Factual Findings 4-34.

1 1

3. The law is clear that the standard of proof to be used in this proceeding is "clear and convincing." (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856.) This means the burden rests on Complainant to establish the charging allegations by proof that is clear, explicit and unequivocal--so clear as to leave no substantial doubt, and sufficiently strong to command the unhesitating assent of every reasonable mind. (In re Marriage of Weaver (1990) 224 Cal.App.3d 478.) "Evidence of a charge is clear and convincing so long as there is a 'high probability' that the charge is true. (See, e.g., In re Angelia P., supra, 28 Cal.3d at p. 919; BAJI No. 2.62 (8th ed. 1994); 1 Witkin, Cal. Evidence (3d ed. 1986) Burden of Proof and Presumptions, § 160, p. 137.) The evidence need not establish the fact beyond a reasonable doubt." (Broadman v. Comm 'non Judicial Perfhrmance (1998) 18 Cal.4th 1079, 1090.) Complainant sustained her burden of proof with regard to the care and treatment of patient Baby H.

4. The purpose of the Medical Practice Act 10 is to assure the high quality of medical practice; in other words, to keep unqualified and undesirable persons and those guilty of unprofessional conduct out of the medical profession. (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 574.) The purpose ofphysician discipline is to protect the life, health and welfare of the people at large and to set up a plan so that those who practice medicine will have the qualifications which will prevent as far as possible the evils which result from ignorance or incompetence or a lack of honesty and integrity. The imposition of license discipline does not depend on whether patients were injured by unprofessional medical practices. (See, Bryce v. Board of Medical Quality Assurance (1986) 184 Cal.App.3d. 1471; Fahmy v. Jv!edical Board ofCalij'ornia (1995) 38 Cal.App.4th 810, 817.) " ... Business and Professions Code section 2234 does not limit gross negligence or unprofessional conduct to the actual treatment of a patient-as opposed to administrative work-and does not require injury or harm to the patient before action may be taken against the physician or surgeon." (Kearl v. Board qf A1edical Quality Assurance (1986) 189 Cal.App.3d 1040, 1053.)

IIJ

The law demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient. (Citations.) The same degree of responsibility is imposed in the making of a diagnosis as in the prescribing and administering oftreatment. (Citations.) Ordinarily, a doctor's failure to possess or exercise the requisite learning or skill can be established only by the testimony of cxpe1is. (Citations.) Where. however, negligence on the part of a doctor is demonstrated by facts which can be evaluated by resort to common knowledge, expert testimony is not required

Business and Professions Code sections 2000 through 2521.

12

since scientific enlightenment is not essential for the determination of an obvious fact. (Citations.)

(Lawless v. Calaway (1944) 24 Cal.2d 81, 86.)

5. Gross negligence has been defined as an extreme departure from the ordinary standard of care or the "want of even scant care." (Gore v. Board of lvfedical Quality Assurance (1970) 110 Cal.App.3d 184, 195-198.)

6. "Incompetence generally is defined as a lack of knowledge or ability in the discharge of professional obligations." (.Jwnes v. Bd. of Dental Examiners (1985) 172 Cal. App. 3d 1096, 1109.)

7. Respondent committed an extreme departure from the standard of care, and committed gross negligence, in several ways on April 17, 2012. Respondent did not come in to evaluate Baby H. who was in respiratory distress requiring assisted ventilation on admission. She did not see the infant until 14 hours of life. Despite multiple phone calls to Respondent from nursing staff, she never came back to reassess Baby H., and managed his care entirely over the telephone. She was then unavailable, even by telephone, for several hours during which she failed to arrange for coverage or inform nursing statT of a transfer of care. This lack of direct observation and evaluation lead to a delay in the diagnosis of persistent pulmonary hypertension of the newborn and subsequent poor management of Baby H. This also demonstrates incompetence in her care and treatment of her patient.

8. Respondent does not accept responsibility for the events of April 17, 2012. She blames Dr. Patel, the Hospital, and her former attorney. However, Respondent failed to establish the truth of any of those claims.

9. Respondent is neither regretful nor remorseful for her actions and inactions in connection with the care of Baby H. It is well-established that a respondent convinced of her innocence is not required to demonstrate artificial acts of contrition. (Calaway v. State Bar (1986) 41 Cal.3d 743, 74 7-748; Hall v. Committee of Bar Examiners (1979) 25 Cal. 3d 730, 744-745.) However, it is also well-established that remorse for one's conduct and the acceptance of responsibility are the cornerstones of rehabilitation. Rehabilitation is a "state of mind'' and the law looks with favor upon rewarding with the opportunity to serve one who has achieved "reformation and regeneration." (Pacheco v. State Bar (1987) 43 Cal.3d 1041, 1058.) Fully acknowledging the wrongfulness of past actions is an essential step towards rehabilitation. (Seide v. Committee ofBar Examiners (1989) 49 Cal.3d 933, 940.) Mere remorse does not demonstrate rehabilitation. A truer indication of rehabilitation is sustained conduct over an extended period of time. (In re Menna (1995) 11 Cal.4th 975, 991.) Finally, the evidentiary significance of misconduct is greatly diminished by the passage of time and by the absence of similar, more recent misconduct. (Kwasnik v. State Bar (1990) 50 Cal.3d 106L 1070.)

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10. The clear and convincing evidence in this case showed that Respondent failed to provide timely care and treatment to Baby H. Dr. Hoke established that Respondent exhibited an extreme departure from the standard of care, and was incompetent in her lack of direct patient care and her failure to properly turn over patient care. This expert testimony was not refuted. Respondent should have been at the bedside aggressively managing Baby H.'s condition, and her failure to do so constituted an extreme departure from the standard of care. At no time did Respondent advise nursing sta±T that she transferred Baby H.'s care over to Dr. Patel. The medical records of Baby H. lack any indication of such a transfer of care.

11. For nearly 22 years, Respondent has had a successful career as a physician, with no prior history of discipline. The allegations in the Accusation pertain to care and treatment provided to one patient in 2012. Though Respondent has continued to practice since then, no evidence was provided as to any additional incidents. These factors, taken collectively, indicate that outright revocation of Respondent's certificate would be overly harsh and punitive. Instead, Respondent should be placed on probation with courses and other terms and conditions designed to protect the public health, safety, welfare and interest, and aid in the rehabilitation of Respondent.

ORDER

Certificate No. A 53749 issued to Respondent, Nneamaka Mbagwu, M.D., is revoked. However, the revocation is stayed and Respondent is placed on probation for five years. upon the following terms and conditions:

1. Education Course

Within 60 calendar days of the e±Tective date of this Decision, and on an annual basis thereafter, Respondent shall submit to the Board or its designee for its prior approval educational program(s) or course(s) which shall not be less than 40 hours per year, for each year of probation. The educational program(s) or course(s) shall be aimed at correcting any areas of deficient practice or knowledge and shall be Category I certified. The educational program(s) or course(s) shall be at Respondent's expense and shall be in addition to the Continuing Medical Education (CME) requirements for renewal of licensure. Following the completion of each course, the Board or its designee may administer an examination to test Respondent's knowledge of the course. Respondent shall provide proof of attendance for 65 hours of CME of which 40 hours were in satisfaction of this condition.

2. Medical Record Keeping Course

Within 60 calendar days of the effective date of this Decision, respondent shall enroll in a course in medical record keeping equivalent to the Medical Record Keeping Course offered by the Physician Assessment and Clinical Education Program. University of California, San Diego School of Medicine (Program), approved in advance by the Board or its designee. Respondent shall provide the program with any information and documents that

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the Program may deem pertinent. Respondent shall participate in and successfully complete the classroom component of the course not later than six ( 6) months after respondent's initial enrollment. Respondent shall successfully complete any other component of the course within one ( 1) year of enrollment. The medical record keeping course shall be at respondent's expense and shall be in addition to the Continuing Medical Education (CME) requirements for renewal of licensure.

A medical record keeping course taken after the acts that gave rise to the charges in the Accusation, but prior to the effective date of the Decision may, in the sole discretion of the Board or its designee, be accepted towards the fulfillment of this condition if the course would have been approved by the Board or its designee had the course been taken after the effective date of this Decision.

Respondent shall submit a certification of successful completion to the Board or its designee not later than 15 calendar days after successfully completing the course, or not later than 15 calendar days after the effective date of the Decision, whichever is later.

3. Professionalism Program (Ethics Course)

Within 60 calendar days of the effective date of this Decision, respondent shall enroll in a professionalism program, that meets the requirements of Title 16, California Code of Regulations (CCR) section 1358. Respondent shall participate in and successfully complete that program. Respondent shall provide any information and documents that the program may deem pertinent. Respondent shall successfully complete the classroom component of the program not later than six (6) months after respondent's initial enrollment, and the longitudinal component of the program not later than the time specified by the program, but no later than one ( 1) year after attending the classroom component. The professionalism program shall be at respondent's expense and shall be in addition to the Continuing Medical Education (CME) requirements for renewal of licensure.

A professionalism program taken after the acts that gave rise to the charges in the Accusation, but prior to the effective elate of the Decision may, in the sole discretion of the Board or its designee, be accepted towards the fulfillment ofthis condition if the program would have been approved by the Board or its designee had the program been taken after the effective date of this Decision.

Respondent shall submit a certification of successful completion to the Board or its designee not later than 15 calendar days after successfully completing the program or not later than 15 calendar clays after the effective elate of the Decision, whichever is later.

4. Clinical Training Program

Within 60 calendar days of the efTecti ve elate of this Decision. respondent shall enroll in a clinical training or educational program equivalent to the Physician Assessment and Clinical Education Program (PACE) ofTered at the University of California- San Diego

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School of Medicine ("Program"). Respondent shall successfully complete the Program not later than six (6) months after respondent's initial enrollment unless the Board or its designee agrees in writing to an extension of that time.

The Program shall consist of a Comprehensive Assessment program comprised of a two-day assessment of respondent's physical and mental health; basic clinical and communication skills common to all clinicians; and medical knowledge, skill and judgment pertaining to respondent's area of practice in which respondent was alleged to be deficient, and at minimum, a 40 hour program of clinical education in the area of practice in which respondent was alleged to be deficient and which takes into account data obtained from the assessment, Decision(s), Accusation(s), and any other information that the Board or its designee deems relevant. Respondent shall pay all expenses associated with the clinical training program.

Based on respondent's performance and test results in the assessment and clinical education, the Program will advise the Board or its designee of its recommendation(s) for the scope and length of any additional educational or clinical training, treatment for any medical condition, treatment for any psychological condition, or anything else affecting respondent's practice of medicine. Respondent shall comply with Program recommendations.

At the completion of any additional educational or clinical training, respondent shall submit to and pass an examination. Determination as to whether respondent successfully completed the examination or successfully completed the program is solely within the program's jurisdiction.

If respondent fails to enrolL participate in, or successfully complete the clinical training program within the designated time period, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified. The respondent shall not resume the practice of medicine until enrollment or participation in the outstanding portions of the clinical training program have been completed. lf the respondent did not successfully complete the clinical training program, the respondent shall not resume the practice of medicine until a final decision has been rendered on the accusation and/or a petition to revoke probation. The cessation of practice shali not apply to the reduction of the probationary time period.

5. Monitoring - Practice

Within 30 calendar days ofthe effective date ofthis Decision, respondent shall submit to the Board or its designee for prior approval as a practice monitor(s), the name and qualifications of one or more licensed physicians and surgeons whose licenses are valid and in good standing, and who arc preferably American Board of Medical Specialties (ABMS) certified. A monitor shall have no prior or cunent business or personal relationship with respondent or other relationship that could reasonably be expected to compromise the ability of the monitor to render fair and unbiased reports to the Board, including but not limited to

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any form of bartering, shall be in respondent's field of practice, and must agree to serve as respondent's monitor. Respondent shall pay all monitoring costs.

The Board or its designee shall provide the approved monitor with copies of the Decision( s) and Accusation( s ), and a proposed monitoring plan. Within 15 calendar days of receipt of the Decision(s), Accusation(s), and proposed monitoring plan, the monitor shall submit a signed statement that the monitor has read the Decision(s) and Accusation(s), fully understands the role of a monitor, and agrees or disagrees with the proposed monitoring plan. Ifthe monitor disagrees with the proposed monitoring plan, the monitor shall submit a revised monitoring plan with the signed statement for approval by the Board or its designee.

Within 60 calendar days of the effective date of this Decision, and continuing throughout probation, respondent's practice shall be monitored by the approved monitor. Respondent shall make all records available for immediate inspection and copying on the premises by the monitor at all times during business hours and shall retain the records for the entire term of probation.

Ifrespondent fails to obtain approval of a monitor within 60 calendar days of the effective date of this Decision, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified. Respondent shall cease the practice of medicine until a monitor is approved to provide monitoring responsibility.

The monitor(s) shall submit a quarterly written report to the Board or its designee which includes an evaluation of respondent's performance, indicating whether respondent's practices are within the standards of practice of medicine, and whether respondent is practicing medicine safely, billing appropriately or both. It shall be the sole responsibility of respondent to ensure that the monitor submits the quarterly written reports to the Board or its designee within 10 calendar days after the end ofthe preceding quarter.

If the monitor resigns or is no longer avai !able, respondent shall, within 5 calendar days of such resignation or unavailability, submit to the Board or its designee, for prior approval, the name and qualifications of a replacement monitor who will be assuming that responsibility within 15 calendar days. If respondent fails to obtain approval of a replacement monitor within 60 calendar days of the resignation or unavailability of the monitor, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified Respondent shall cease the practice of medicine until a replacement monitor is approved and assumes monitoring responsibility.

In lieu of a monitor, respondent may participate in a professional enhancement program equivalent to the one offered by the Physician Assessment and Clinical Education Program at the University of California, San Diego School of Medicine, that includes, at minimum, quarterly chart review, semi-annual practice assessment, and semi-annual review

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of professional growth and education. Respondent shall participate in the professional enhancement program at respondent's expense during the term of probation.

6. Solo Practice Prohibition

Respondent is prohibited from engaging in the solo practice of medicine. Prohibited solo practice includes, but is not limited to, a practice where: 1) respondent merely shares office space with another physician but is not affiliated for purposes of providing patient care, or 2) respondent is the sole physician practitioner at that location.

If respondent fails to establish a practice with another physician or secure employment in an appropriate practice setting within 60 calendar days of the effective date of this Decision, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified. The respondent shall not resume practice until an appropriate practice setting is established. If, during the course of the probation, the respondent's practice setting changes and the respondent is no longer practicing in a setting in compliance with this Decision, the respondent shall notify the Board or its designee within 5 calendar days of the practice setting change. If respondent fails to establish a practice with another physician or secure employment in an appropriate practice setting within 60 calendar days of the practice setting change, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified. The respondent shall not resume practice until an appropriate practice setting is established.

7. Notification

Within seven days of the effective date of this Decision, Respondent shall provide a true copy of this Decision and Accusation to the Chief of Staff or the Chief Executive Officer at every hospital where privileges or membership are extended to Respondent, at any other facility where Respondent engages in the practice of medicine, including all physician and locum tenens registries or other similar agencies, and to the Chief Executive Ofiicer at every insurance carrier which extends malpractice insurance coverage to Respondent. Respondent shall submit proof of compliance to the Board or its designee within 15 calendar days.

This condition shall apply to any change(s) in hospitals, other facilities or insurance earner.

8. Supervision of Physician Assistants

During probation, Respondent is prohibited from supervising physician assistants.

Ill

II I

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9. Obey All Laws

Respondent shall obey all federal, state and local laws, all rules governing the practice of medicine in California and remain in full compliance with any court ordered criminal probation, payments, and other orders.

10. Quarterly Declarations

Respondent shall submit quarterly declarations under penalty of perjury on forms provided by the Board, stating whether there has been compliance with all the conditions of probation.

Respondent shall submit quarterly declarations not later than 10 calendar days at1er the end of the preceding quarter.

11. General Probation Requirements

Compliance with Probation Unit

Respondent shall comply with the Board's probation unit and all terms and conditions of this Decision.

Address Changes

Respondent shall, at all times, keep the Board informed of Respondent's business and residence addresses, email address (if available). and telephone number. Changes of such addresses shall be immediately communicated in writing to the Board or its designee. Under no circumstances shall a post oHicc box serve as an address of record, except as allowed by Business and Professions Code section 2021, subdivision (b).

Place of Practice

Respondent shall not engage in the practice of medicine in Respondent's or patient's place of residence, unless the patient resides in a skilled nursing facility or other similar licensed facility.

License Renewal

Respondent shall maintain a current and renewed California physician· s and surgeon's license.

Travel or Residence Outside California

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Respondent shall immediately inform the Board or its designee, in writing, of travel to any areas outside the jurisdiction of California which lasts, or is contemplated to last, more than 30 calendar days.

In the event Respondent should leave the State of California to reside or to practice, Respondent shall notify the Board or its designee in writing 30 calendar days prior to the dates of departure and return.

12. Interview with the Board or its Designee

Respondent shall be available in person upon request for interviews either at Respondent's place of business or at the probation unit office, with or without prior notice throughout the term of probation.

13. Non-practice While on Probation

Respondent shall notifY the Board or its designee in writing within 15 calendar days of any periods of non-practice lasting more than 30 calendar days and within 15 calendar days of Respondent's return to practice. Non-practice is defined as any period of time Respondent is not practicing medicine in California as defined in Business and Professions Code sections 2051 and 2052 for at least 40 hours in a calendar month in direct patient care, clinical activity or teaching, or other activity as approved by the Board. All time spent in an intensive training program which has been approved by the Board or its designee shall not be considered non-practice. Practicing medicine in another state of the United States or Federal jurisdiction while on probation with the medical licensing authority of that state or jurisdiction shall not be considered non-practice. A Board-ordered suspension of practice shall not be considered as a period of non-practice.

In the event Respondent's period of non-practice while on probation exceeds 18 calendar months, Respondent shall successfully complete a clinical training program that meets the criteria of Condition 18 of the current version of the Board's "Manual of Model Disciplinary Orders and Disciplinary Guidelines" prior to resuming the practice of medicine.

Respondent's period of non-practice while on probation shall not exceed two years.

Periods of non-practice will not apply to the reduction of the probationary term.

Periods of non-practice will relieve Respondent of the responsibility to comply with the probationary terms and conditions with the exception of this condition and the following terms and conditions of probation: Obey All Laws; and General Probation Requirements.

14. Violation of Probation

Failure to fully comply with any term or condition of probation is a violation of probation. If Respondent violates probation in any respect, the Board, after giving

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Respondent notice and the opportunity to be heard, may revoke probation and carry out the disciplinary order that was stayed. If an Accusation, or Petition to Revoke Probation. or an Interim Suspension Order is filed against Respondent during probation, the Board shall have continuing jurisdiction until the matter is final, and the period of probation shall be extended until the matter is final.

15. License Surrender

Following the effective date of this Decision, if Respondent ceases practicing due to retirement or health reasons or is otherwise unable to satisfy the terms and conditions of probation, Respondent may request to surrender his license. The Board reserves the right to evaluate Respondent's request and to exercise its discretion in determining whether or not to grant the request, or to take any other action deemed appropriate and reasonable under the circumstances. Upon formal acceptance ofthe surrender, Respondent shalL within 15 calendar days, deliver Respondent's wallet and wall certificate to the Board or its designee and Respondent shall no longer practice medicine. Respondent will no longer be subject to the terms and conditions of probation. If Respondent re-applies for a medical license, the application shall be treated as a petition for reinstatement of a revoked certificate.

16. Probation Monitoring Costs

Respondent shall pay the costs associated with probation monitoring each and every year of probation, as designated by the Board, which may be adjusted on an annual basis. Such costs shall be payable to the Medical Board of California and delivered to the Board or its designee no later than January 31 of each calendar year.

17. Completion of Probation

Respondent shall comply with all financial obligations (e.g., restitution, probation costs) not later than 120 calendar days prior to the completion of probation. Upon successful completion of probation, Respondent's certificate shall be fully restored.

Dated: May 12,2016

r-:DocuSigned by:

~~E~~----------LAURIER. PEARLMAN Administrative Law Judge Office of Administrative Hearings

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KAMALA D. HARRIS Attorney General of California ROBERT MCKIM BELL Supervising Deputy Attorney General MICHEL W. VALENTINE Deputy Attorney General State Bar No. 153078 California Department of Justice

300 South Spring Street, Suite 1702 Los Angeles, California 90013 Telephone: (213) 897-1034 Facsimile: (213) 897-9395

Attorneys for Complainant

FILED STATE OF CALIFORNIA "

MEDICAL BOARP pF C~L~~~~~tl SACRAMENTO/Jt'·i~-t.P~ -z_ :..C.~t.v--BY· :r

JURISDICTION

2 3. This Accusation is brought before the Board under the authority of the following

3 laws. All section references are to the Business and Professions Code ("Code") unless otherwise

4 indicated.

5 4. Section 2227 of the Code provides that a licensee who is found guilty under the

6 Medical Practice Act may have his or her license revoked, suspended for a period not to exceed

7 one year, placed on probation and required to pay the costs of probation monitoring, or such other

8 action taken in relation to discipline as the Board deems proper.

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5. Section 2234 ofthe Code states:

"The board shall take action against any licensee who is charged with

unprofessional conduct. In addition to other provisions of this article, unprofessional

conduct includes, but is not limited to, the following:

"(a) Violating or attempting to violate, directly or indirectly, assisting in or abetting

the violation of, or conspiring to violate any provision of this chapter [Chapter 5, the

Medical Practice Act]."

"(b) Gross negligence."

"(d) Incompetence."

FIRST CAUSE FOR DISCIPLINE

6.

(Gross Negligence)

Patient C.G.V. 1

Respondent is subject to disciplinary action under section 2234, subdivision (b), of

22 the Code in that his care and treatment of C.G.V. constituted gross negligence:

23 7. Respondent worked as a physician in the pediatrics and neonatology department at

24 San Joaquin Community Hospital, in Bakersfield, California from 2000 to May of2012.

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8. C.G.V. is a 36-week, 3230 gram birth weight male infant born by C-section for

breech presentation, on April 16, 2012, at approximately 10:00 p.m. The Apgar scores were 8 and

1 In this Accusation, the patients are referred to by initials. The full names of the patients will be disclosed to Respondent when discovery is provided pursuant to Government Code, section 11507.6.

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ACCUSATION (MBC No. 08-20 12-223450)

9. C.G.V. was brought to the NICU for respiratory distress and desaturation episodes and was

2 started on nasal CP AP. A blood culture was sent and IV ampicillin and gentamicin were started

3 for possible sepsis. The initial blood gas was pH 7.31, PC02 47 and HC03 25.

4 9. On April 17, 2012, the following day, C.G.V. was noted to have mild respiratory

5 distress (mild retractions, CPAP 5, 28% oxygen) in the morning at 7:00a.m. At 11:00 a.m,

6 C.G.V. was examined by Respondent. C.G.V. required increased oxygen to maintain oxygen

7 saturations between 90-94%. CPAP was increased to 6. At 1 :00 p.m., C.G.V. was on 100%

8 oxygen with a pre-ductal 02 sat 100%, and post-ductal 02 sat 92%. C.G.V. was intubated at 1:20

9 p.m., by respiratory therapist and placed on conventional mechanical ventilation with 100%

10 oxygen. At 1:39 p.m. a chest x-ray was obtained and the registered nurse called Respondent at

11 approximately 1 :40 p.m. in order to review the x-ray and update the parents. The x-ray was not

12 read by Respondent, but was described by the radiologist as "stable to moderate respiratory

13 distress syndrome with a high endotracheal tube."

14 10. On April 17, 2012, at approximately 1:30 p.m., Respondent left the hospital for

15 lunch and to pick-up her child from daycare, and asked another neonatologist, Dr. Patel, to review

16 the chest x-ray and to cover the ICN infant in her absence. Respondent did not return until 5:00

17 p.m. Respondent did not inform the ICN nurses that another physician, Dr. Patel, was covering in

18 her absence. Dr. Patel indicated that he was asked to check the chest x-ray by Respondent (which

19 he did from his office at another location, from outside the confines of the hospital), but was not

20 asked to evaluate C.G.V. in the ICN. The nurses on duty indicate that several attempts to contact

21 Respondent were not successful and phone messages left for Respondent were not returned.

22 11. On April 17, 2012, at approximately 3:00p.m., Dr. Patel arrived to the bedside after

23 just concluding a hospital meeting, in order to see C.G.V. Dr. Patel was contacted by the ICN

24 nurses due o their inability to contact Respondent concerning the deteriorating condition of

25 C.G.V. C.G.V. was repositioned and a repeat CXR at 4:20p.m., showed a small to moderate left

26 pneumothorax. Dr. Patel performed needle aspiration for the pneumothorax. Shortly there after,

27 surfactant was administered at 4:43p.m., UAC and UVC were placed. At 5:25p.m., the blood

28 gas test measured 7.24/52/311-5 (100% oxygen), at 6:50p.m., the blood gas test measured

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ACCUSATION (MBC No. 08-20 12-223450)

7.14/69/17/-5 (100% oxygen), at 8:40p.m. the blood gas test measured 6.71/74/52/-16 (100%

2 oxygen). An echocardiogram revealed pulmonary hypertension. C.G.V. was placed on high

3 frequency ventilation and transported to Kaiser Los Angeles on inhaled nitric oxide.

4 12. On April 17, 2012, after being admitted C.G.V. to Kaiser Los Angeles, C.G.V began

5 treatment for severe pulmonary hypertension and severe hypoxemic respiratory failure. C.G.V.

6 was treated with nitric oxide and respiratory support with some improvement. On April 22, 2012,

7 C.G.V. was extubated, nasal cannula was discontinued on April29, 2012 and C.G.V. was

8 discharged home on May, 2, 2012.

9 13. On April20, 2012, aCT scan ofC.G.V.'s brain showed multiple areas of ischemic

10 injury involving both hemispheres greater on the left than on the right side. The CT scan report

11 notes indicate that the injury is likely due to severe metabolic acidosis and hypoxemia that

12 occurred on the day C.G.V. was born (April 16, 2012).

13 14. Respondent is subject to disciplinary action under section 2234, subdivision (b), of

14 the Code in that his care and treatment of C.G.V. constituted gross negligence.

15 15. The standard of care requires that timely care be provided to the patient (C.G.V.), or

16 arranging for another physician to provide timely care.

17 16. Respondent's acts and/or omissions as set forth in paragraphs 1 through 15 above,

18 whether proven jointly, or in any combination thereof, constitute gross negligence pursuant to

19 section 2234 (b) of the Code. Therefore, cause for discipline exists.

20 SECOND CAUSE FOR DISCIPLINE

21 (Incompetence)

22 Patient C.G.V.

23 17. Respondent is subject to disciplinary action under section 2234, subdivision (d), of

24 the Code in that her care and treatment of C.G.V. constituted incompetence. The circumstances

25 are as follows:

26 18. The allegations of the First Cause for Discipline are incorporated herein by reference

27 as if fully set forth.

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ACCUSATION (MBC No. 08-20 I 2-223450)

PRAYER

2 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

3 and that following the hearing, the Medical Board of California issue a decision:

4 1. Revoking or suspending Physician's and Surgeon's Certificate No. A53749, issued to

5 Nneamaka Mbagwu, M.D.;

6 2. Ordering her to pay the Board, if placed on probation, the costs of probation

7 monitoring;

8 3. Prohibiting her from supervising physician assistants pursuant to section 3527 of the

9 Code; and

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4. Taking such other and further action as deemed necessary and proper.

November 27, 2013 DATED: ---------------------

Interim Execut · Director Medical Board of California Department of Consumer Affairs State of California

Complainant

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ACCUSATION (MBC No. 08-20 12-223450)