BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

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

FERNANDO DOMINGUEZ GARCIA, M.D.) Case No. 08~2011-2172l0 ) ) OAH No. 2013070288

Physician's and Surgeon's ) Certificate No, A 37360 )

) Respondent. )

DECISION

The attached Proposed Decision is hereby adopted by the Medical Board of California, Department of Consumer Affairs, State of California, as its Decision in this matter.

This Decision shall become effective at 5 :00 p.m. on Jan u a r Y 2 ' 2 O 1 5

December 4 2014 IT IS SO ORDERED '

MEDICAL BOARD OF CALIFORNIA

fr-··

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

FERNANDO DOMINGUEZ GARCIA, M.D.

Physician and Surgeon's Certificate No. A37360

Res ondent.

Case No. 08-2011-217210

OAH No. 2013070288

PROPOSED DECISION

A hearing in this matter convened before Administrative Law Judge (ALJ) Marilyn A. Woollard, Office of Administrative Hearings (OAH), State of California, in Fresno, California, on August 18, 19, and 20, 2014.

Deputy Attorney General Steve Diehl represented complainant Kimberly Kirchmeyer, in her official capacity as Executive Director of the Medical Board of California (Board), State of California.

Dennis R. Thelen, Attorney at Law, LeBeau-Thelen, LLP, represented respondent Fernando Dominguez Garcia, M.D., who was present throughout the hearing.

Oral and documentary evidence was presented. After the conclusion of the evidentiary hearing, the parties offered oral closing arguments. The record was then closed and the matter was submitted for decision on August 20, 2014.

FACTUAL FINDINGS

1. Respondent obtained a Doctor of Pharmacy degree from the University of California, San Francisco Medical Center in 1973. He practiced as a pharmacist for three years before beginning his medical training at the University of Utah, School of Medicine. After receiving his medical degree in 1980, respondent completed a flexible internship at Valley Medical Center in Fresno, California.

1

On July 27, 1981, the Board issued Physician's and Surgeon's Certificate Number A 37360 to respondent. Since becoming licensed, respondent has worked in rural communities in California's Central Valley. From 1981through1999, respondent was a solo practitioner in general and industrial mediCine. Respondent worked briefly as a Staff Physician at Table Mountain Rancheria in Friant, and then for 14 months as the Medical Director of the Windwalker Rural Health Clinic in Avenal. He spent the next five years working as Staff Physician and Medical Director for the Tule River Indian Health Center, Inc., in Porterville. In December 2005, respondent began working as a Staff Physician with Sierra Kings Family Health Care (Sierra Kings) in Reedley, which was eventually purchased by Adventist Health. Respondent also worked in Visalia as a Staff Physician for the Visalia Walk-In Clinic (October 2008 - April 2009), and for Premier Walk-In Clinic (Premier) (May-November 2009). At all times relevant to this proceeding, respondent was working part-time at Sierra Kings and up to 30 hours a week at Premier, often as its sole provider. Respondent currently works as a Staff Physician with Adventist Health.

In 33 years of practicing medicine, respondent has had no prior disciplinary actions by the Board; he has not been denied hospital privileges; and, with the exception of this case, he has not been the subject of any malpractice claims. His license is current through July 31, 2015.

2. Circumstances Leading to Accusation: Respondent treated 19-year-old E.A. at Premier on two occasions: Friday, July 10, 2009, and Monday, July 13, 2009. These treatments were based on E.A. 's primary complaint oflow back pain radiating to her left buttock and leg. On both occasions, E.A. was accompanied by her mother D.P. 1

It is undisputed that on July 14, 2009, approximately 25 hours after respondent's last treatment visit with her, E.A. was transported by ambulance to the emergency room at Kaweah Delta Hospital (Kaweah), where she was found to have methicillin-resistant staphylococcus aureus (MRSA) and Pseudomonas. E.A. had sepsis with multiple organ system failure; she had to be intubated and was placed on respirator support. She was hospitalized for nearly two months, through September 9, 2009. During this time, E.A. had several toes partially amputated. She suffered auditory nerve damage, retinal detachment, gait disturbance, cognitive difficulties, and psychic trauma. E.A. subsequently filed a civil lawsuit against respondent, Premier and other doctors in Tulare County Superior Court (Case No. 10-237878), which was settled.

3. On August 8, 2011, the Board advised respondent it had received a Report of Settlement, Judgment or Arbitration Award from his malpractice insurance carrier, as required by Business and Professions Code section 801.01.

4. On October 31, 2012, respondent was interviewed by the Board's investigator Robert Glaspie and its medical consultant Herbert Boro, M.D. Respondent cooperated with

1 To protect confidentiality, the initials of the patient and her mother are used instead of their names, which are reflected on the Confidential Names List.

2

the interview and appeared without counsel. The Board later requested expert review from Kathleen Baron, M.D. Dr. Baron prepared an expert report dated December 2, 2012, in which she opined that respondent's treatment of E.A. and his medical records regarding both patient encounters constituted extreme departures from the standard of care, as more fully set forth below.

5. Accusation: On May 16, 2013, complainant's predecessor,2 in her official capacity, filed the Accusation alleging that respondent had engaged in unprofessional conduct under Business and Professions Code section 2234, subdivisions (b) (gross negligence), and ( c) (repeated negligent acts), and that his license should be disciplined based on his treatment of E. A. on July 10, and July 13, 2009. The Accusation did not allege that respondent had engaged in unprofessional conduct by failing to maintain adequate and accurate records relating to the provision of services to his patients, within the meaning of Business and Professions Code section 2266.

The specific allegations in the Accusation were that respondent failed to take an adequate history and physical of E.A.; that he "failed to perform appropriate laboratory [sic] such as a urinalysis" on E.A. at either treatment visit; that E.A. 's subsequent MRSA and Pseudomonas were from an origin in her kidneys; that respondent's medical records "are very brief and mostly from electronic templates;" that the medical record for July 13, 2009, did not indicate that respondent recognized the seriousness of E.A. 's condition; that respondent gave E.A. a prescription for "Ambien which is not indicated in the record as the patient made no complaint of insomnia;" that respondent gave E.A. narcotics (Vicoden) for back pain before trying other less dangerous treatments such as cold/hot packs, muscle relaxers or nonsteroidal anti-inflammatory drugs (NSAIDs); and that, on July 13, 2009, respondent diagnosed E.A. with "overmedication with opiates'' and, instead of reducing the opiate dose, "substituted a prescription of even more opiates."

6. On May 31, 2013, respondent filed his Notice of Defense. The matter was set for an evidentiary hearing before an Administrative Law Judge of the Office of Administrative Hearings, an independent adjudicative agency of the State of California, pursuant to Government Code section 11500, et seq.

7. At the hearing, the Board called E.A. and her mother, D.P., as percipient witnesses, and Kathleen Anne Baron, M.D., as its expert witness. Respondent testified on his own behalf and called Richard A. Johnson, M.D., and Michael H. Forman, M.D., as expert witnesses. The testimony of these witnesses is paraphrased as relevant below.

II

2 The Accusation was signed by Linda K. Whitney.

3

Preparation of Electronic Medical Records at Premier

8. Respondent testified that he took notes by hand during his patient encounters at Premier, which was a walk-in clinic. 3 Before seeing a patient, he would review the medical chart and a preprinted progress note form that described the patient's chief complaint that day, the duration and severity of the condition complained of, the nurse's notes, and the date of the patient's last visit. The nurse or medical assistant completed the chief complaint section, as well as the allergies, medication history, past surgical history, family history and vital signs.

During a patient encounter, respondent would independently review the patient's history and confirm the patient's current medications. He would complete the progress note form's Review of Systems template, which had spaces for the physician to add a positive or negative sign and additional information if positive.4 During the review of systems, respondent would focus on the current conditions of the patient's systems. Based on this review and his physical examination, respondent would add his own notes and impressions. Unlike the medical records respondent prepared at Sierra Kings, Premier's medical records procedure did not allow him to overwrite the chief complaint; instead, respondent would add any additional information under each of the systems he examined, as well as under the headings "physician comments" and "impressions," which reflected his working diagnosis.

At the end of each patient visit, respondent placed his handwritten notes into a box for Premier's transcriptionist, who typed them into the final electronic medical record. Respondent never saw his handwritten notes after submitting them to typing and he did not receive the typed medical records for review. He typically only saw his transcribed notes again when he next saw the patient and reviewed the chart. The medical records for respondent's July 10, and July 13, 2009, encounters with E.A. listed the transcriber's initials and indicated that these records were digitally signed by Premier's Medical Director Charles R. Newton, M.D. Respondent deferred to Premier's record protocols, but he agreed that it is his ultimate responsibility to ensure the accuracy of his medical records.

3 Although there was some confusion at the beginning of the hearing, respondent clarified that Premier is a walk-in clinic. Unlike an urgent care center, which is a step below an emergency room, Premier did not have defibrillators, x-rays and labs available on site. Premier was equipped to administer urine dip stick tests, but not to conduct full urinalysis or CBC labs. The results of such laboratory tests would typically take 24 to 48 hours to reach Premier.

4 Premier's Review of Systems form addressed the following patient systems: constitution; ears; notes; throat/mouth; eyes; endocrine; gastrointestinal; genitourinary; hematologic/lymphatic; integumentary; musculoskeletal; neurological; psychiatric; respiratory; and cardiovascular.

4

9. Respondent reviewed his July 10, 2009, medical record for E.A. before seeing her again on July 13, 2009. Based on this review, respondent believed that the medical transcription of his notes for this date was accurate and he opined that the record looked pretty good. In his opinion, this record and his treatment of E.A. that day were within the standard of care.

10. Respondent never reviewed his July 13, 2009, medical record for E.A. Due to her hospitalization, respondent did not see E.A. again in two days as was indicated in his follow-up plan on their last visit. Because E.A. did not return to Premier, respondent never saw the transcribed medical record for this date until he was interviewed by the Board in late October 2012. Respondent noted several transcription errors that did not accurately reflect his treatment of E.A. on that date. Respondent testified to his belief that his treatment of E.A. on this visit was within the standard of care, and that his medical record for this dated "honestly ... does not reflect what I wrote down on my notes." Except for the incorrect statement that E.A. was in no apparent distress, respondent believed his record met the standard of care.

11. Except as otherwise indicated, the description of respondent's two treatment encounters with E.A. described below sets forth what is reflected in the medical records.

I. July 10, 2009 Treatment Encounter

12. Medical Record: E.A. presented at Premier at 12:20 p.m. on July 10, 2009. She was accompanied by her mother. E.A. had been seen at Premier before for an acne condition; however, respondent had not previously treated her.

13. Presenting Complaint and History: The medical record described E.A. 's "chief complaint" as: "complaints of back pain" that "has existed for 1 days [sic]." The nurse's notes indicated that E.A. "is having pain in lower back pain [sic] that radiates into left leg and buttock. She has muscle pain on right shoulder blade when turning neck." The severity of the condition was: "severe and is described as a 9 on a scale of 1-10 with 10 being the worst." E.A. had no known allergies. She had a history of taking the acne medication Minocin. Her past psychiatric history was positive for anxiety. Her past neurological history was positive for migraines.

14. Review of Systems: Under Review of Systems, respondent indicated that E.A.'s "musculo-skeletal" system was positive for "back pain and leg pain." All other systems, including genitourinary, integumentary (skin), neurological and psychiatric, were negative.

15. Physical Examination: E.A.'s blood pressure was 138/68; her heart rate was 106; her temperature was 98.8; and her oxygen-saturation was 98 percent. In his physical examination, respondent described E.A. as "a 19 year old female who appears Alert and Oriented, distressed and anxious." In relevant specific areas of examination, respondent noted E.A. 's respiratory condition as: "Lungs clear to auscultation with no rubs noted.

5

Chest is non-tender. No respiratory distress." Respondent described her heart as "'S 1 S2, regular sinus rhythm without murmur, rub, click or gallop." Respondent examined E.A.'s back and abdomen and reported:

Back: Examination of the back reveals tender Ll _,.S 1 noted to left paraspinal muscle. Tender left sacroiliac joints. Tender left buttocks. Gait disturbance.

Abdomen: Abdomen is without abnormal masses. There is no guarding or tenderness. No Casto Vertebral Angle Tenderness. Bowel sounds present.

Respondent documented his findings that E.A.' s skin was "intact, warm and dry, no suspicious lesions. Color is within normal limits, no rash." Neurologically, E.A. was "grossly intact. Oriented x 3, no motor sensory deficit." E.A.'s psychiatric condition was: "mood and affect normal, appropriate to situation."

16. Working Diagnosis and Plan: The record further indicated:

Physician Comments: The patient has been reaching and lifting groceries out of car and later left lower back pain (30 to 60 minutes). Initially pain to lower back then buttocks and pain down left leg.

Impression: Pain - Back ·-+Lumbar and Pain -·Limb.

Respondent indicated there were no procedures at this time. He "reassured" E. A. and told her to return to the clinic in one week for a follow-up appointment. The medical record indicated that respondent prescribed 20 tablets of Norco 325 mg -7.5, with no refills, and 30 tablets of Ambien - 10 mg, with no refills. The record did not reflect complaints of sleep disturbance.

17. Respondent's Testimony abollt the First Visit: Respondent's testimony regarding his July 10, 2009, treatment encounter with E.A. was largely consistent with the medical record. He completed the review of systems and conducted a physical exam as reflected in the record. Respondent testified that all of E.A. 's vital signs were normal except for her heart rate. Because it was slightly above 100, she was considered to have tachycardia. In respondent's experience, an elevated heart rate can occur from anxiety. It is also common to see some pulse elevation in a patient experiencing pain, especially pain subjectively characterized as a "9" on a 10-point scale. E.A. mentioned that she had some muscle pain in her right shoulder blade when turning her neck, but her primary complaint was her low back pain, which radiated through her buttock and into her left leg. E.A.' s

6

medical history indicated some past issues in her integumentary, psychiatric and neurological systems but, at the time of this visit, she was not having any problems in these systems. 5

In assessing the urinary component of her genitourinary system (kidney, ureter, bladder and urethra), respondent asked E.A. whether she had any problems with urination. E.A. denied having any such problems. Respondent did not ask E.A. any specific follow-up questions (i.e., whether she had any pain or burning on urination; whether she urinated, etc.), because he believed these to be encompassed in his broader question. In respondent's experience, patients with a bladder or kidney infection generally complain of urinary problems or discomfort. There was nothing in E.A.'s presentation on July 10, 2009, that suggested an infection as an explanation for her presenting problem. She was afebrile. E.A. 's problem appeared to be muscle spasms in her low back from lifting. As part of his examination, respondent percussed E.A.' s back near her spine at the level of the kidneys to determine whether she had any costovertebral angle (CVA) tenderness. He did so because any problems with the kidneys, including a kidney stone or pyelonephritis (kidney infection), would present as pain at the costovertebral angle. E.A. had no CV A tenderness. Respondent has never heard of a kidney stone causing pain that radiates from the back, into the buttocks and down one leg.

Respondent did not order any labs on E.A. that day (e.g., x-rays, blood counts, urinalysis/urine dip stick). In particular, on examination, respondent found no indication to do a urine dip stick on E.A. His physical examination of her included an abdominal examination of pressing on all quadrants of her abdomen, as well as in her supra-pubic area. E.A. had no painful response to the abdominal examination that caused him to suspect any bladder issues.

Based on E.A.'s history and physical examination, respondent had no reason to suspect that her symptoms were caused by a urinary tract infection (UTI), a kidney stone, or both. He formed an impression or working diagnosis that E.A. had radiating lumbar strain with muscle spasm, likely due to a musculoskeletal complaint. This was not unusual for a patient in E.A.'s age group. He recorded his impression as "Pain - Back --+Lumbar and Pain - Limb." In his experience, lumbar pain is a "quotable and billable diagnosis." Respondent typically treated such complaints with NSAIDs, such as Ibuprofen, and muscle relaxer. Given E.A.'s severe pain, however, respondent decided to prescribe 20 Norco (Vicodin),

5 E.A. had a past integumentary history positive for acne, but her skin looked clear and had no bearing on the reason for her July 10th visit; she had psychiatric history positive for anxiety, but her anxiety on this date about her condition seemed appropriate and did not suggest a psychiatric problem; she had a neurological history positive for migraines, but had no complaints of headaches or other neurological deficits like numbness or tingling that suggested any present neurological issues.

7

with no refills, and he instructed her to use heat and to rest, and to return within one week.6

Respondent also prescribed Ambien for E.A., based upon D.P.'s statement that E.A. had trouble sleeping due to her pain. Based on this report, which was not included in the medical record, respondent ordered Ambien in lieu of a muscle relaxant.

July 13, 2009 Treatment Encounter

18. Medical Record: E.A. returned to Premier at 9:31 a.m. on July 13, 2009, only three days after her first visit, when she had been instructed to return in one week. D.P. was present with E.A. on this visit.

19. Presenting Complaint and History: Respondent's medical records for this encounter documented that E.A. 's chief complaint that day was "complaints of back pain" for an "unknown duration." Nurse's notes indicated: "Patient is here for back pain. The pain is worse on the left side hip and buttocks area." Pain was "severe" and described as a "9-to-10" on a 10-point scale. Medication history indicated she was actively on ibuprofen and naproxen.

20. Review of Systems: Respondent's review ofE.A.'s systems was consistent with the previous record. All systems were checked as negative, except musculoskeletal, which indicated "back pain and hip pain."

21. Physical Examination: E.A. 's blood pressure on this visit was 114/76; her temperature was 98 degrees; and her oxygen saturation was 98 percent. Based on the nurse's manual reading, E.A. 's heart rate was 155. According to the transcribed medical record, respondent described E.A. as "a 19 year old female who appears her given age, well developed, well nourished, in no apparent distress and pleasant." Respondent testified that this was a transcription error in the medical record, which he had not seen until the prosecution of this case. (Findings 10, 23.)

In relevant part, the record of respondent's examination ofE.A.'s respiratory system indicated that: her lungs were "clear to auscultation with no rubs noted. Chest is non-tender. No respiratory distress." Under cardiovascular, the record indicated that E.A. 's "heart auscultation reveals increased heart rate without murmur or gallop." E.A.' s extremities had full range of motion and were "warm with no evidence of clubbing cyanosis or edema"; and her skin was noted to be "clammy." She was neurologically "grossly intact" with ·'no motor sensory deficit." E.A. 's psychiatric condition was "mood and affect normal, appropriate to situation." The medical record for this visit further provided:

6 Respondent did not ask about E.A. 's prior narcotic history. In his opinion, there was no requirement to do so as E.A. was not a chronic pain sufferer seeing him over time for pain management.

8

Back: Back is symmetrical, with straight spine; no scoliosis.

Abdomen: Abdomen is without abnormal masses. There is no guarding or tenderness. No Casto Vertebral Angle Tenderness. Bowel sounds present.

22. Working Diagnosis and Plan: Under Physician Comments, respondent indicated that E.A. was "having adverse drug interaction. She is over medicated with Opiates." Respondent's impression was: ·'Pain - Back-+ Lumbar, Pain - Hip, Strain -Lumbar and Tachycardia." Procedures were the electrocardiogram (ECG/EKG) with at least 12 leads. Respondent also ordered lumbar x-rays with an instruction to "call report" the results. He instructed E.A. to increase her fluid intake, and to return to the clinic Wednesday (in two days) for follow up. The medical record indicated that respondent prescribed 30 tablets of Darvocet N 100, 100 mg tablets, for 30 days for severe pain.

23. Respondent's Testimony about the Second Visit: Respondent testified that, contrary to the transcribed medical record, on July 13, 2009, E.A. seemed to be in more pain and more anxious than she had on the first visit. Her presentation is what prompted him to order an EKG and lumbar x-rays. Her early return to the clinic was consistent with his previous instruction that she should do so or go to the emergency room if needed before the next appointment.

Based on E.A. 's elevated heart rate of 155 when she entered the clinic, respondent immediately ordered an EKG with at least 12 leads. This was an extremely high heart rate that was a "red flag" to him. Respondent was concerned that E.A. might have certain cardiac arrhythmias that could be fatal. Before the EKG machine came into the room, he listened to E.A. 's heart and breath sounds. The EKG report showed that E.A. 's heart rate was 132 beats per minute, with a normal sinus rhythm.

After the EKG, respondent concluded that E.A.'s increased heart rate was being affected by her level of pain and anxiety about her condition. Respondent ·'definitely put down [in his handwritten notes] that she was in more distress than the previous visit and in pain, seeming more anxious." Otherwise, E.A. seemed about the same as on the prior visit; i.e., she ''did not look toxic," but she was in distress. On physical examination, respondent again percussed her back and found no CVA tenderness. Respondent's review of E.A. 's present systems was the same as in the previous record. As in the previous visit, respondent found no indication to perform a urine dip stick.7

7 Respondent does not routinely performing urine dip sticks for all patients who present with back pain, nor was this required by Premier. His comment during his Board interview-- about a "standing order" to do such a test for all patients with complaints of back pain-- occurred during a theoretical discussion of what he might do differently, knowing E.A. 's subsequent history.

9

Respondent testified that during the examination, D.P. kept insisting that E.A. was out of pain medication and needed more pain pills. Respondent never saw a vial of unused Norco and assumed that E.A. had taken all 20 of the Norco within the past three days. 8

Respondent believed that, in addition to her ongoing lumbar spine problem, E.A. had taken too much Norco and that this resulted in both her tachycardia and her skin's "clamminess," which can occur due to withdrawal from opiates, when in extreme pain, or with high rate tachycardia. Even given her subjective pain level, respondent believed this to be too much narcotic and he was concerned about a possible abuse of medication.

Given her continuing pain level, respondent switched E.A. to Darvocet for pain control for two reasons. First, as a non-opiate pain medication, respondent considered Darvocet to be less susceptible to abuse. Second, Norco contains 325 milligrams of Tylenol and respondent was concerned that this might be obscuring other conditions, including fever. By changing the pain medication, eliminating the Tylenol, and instructing E.A. to return in two days after getting lumbar images, respondent believed he would have a better picture of her condition. Respondent wanted the lumbar images to determine whether E.A. had any discogenic problem or disease process in her spine. Respondent never had any indication during this encounter that E.A. had an underlying infectious process. After ordering these images and telling E.A. to return on Wednesday, respondent never saw E.A. at the clinic agam.

On cross-examination, respondent testified that he is not obligated to develop a differential diagnosis which considered "all the possibilities" that might be affecting the patient. Instead, using information from the history and physical, respondent goes through a mental process with each patient to determine the "likely problems" that could be causing the patient's complaint. Respondent considered various possible sources of E.A.'s pain, including a musculoskeletal problem, a kidney problem, and an infectious process. He excluded kidney, bladder and infectious processes by his abdominal and CVA (back) examinations of E.A. While his interview with the Board suggested a different response, respondent explained that E.A. 's radiating tenderness was from her paraspinal muscles, which were extremely tender from Ll to Sl, and not at the CVA area near the kidneys. If E.A. had presented to him on July 13, in a condition similar to her condition on July 14, 2009, he would have referred her immediately to the emergency room.

Testimony of E.A. and D.P.

24, Both E.A. and D.P. were deposed in the underlying civil action, in December 2010 and January 2011, respectively. In their depositions and testimony, E.A. and D.P. indicated that E.A. had no urinary complaints when she visited respondent or for any significant time before these visits, and that the sole complaint reported to respondent was

8 Respondent disputed D.P.'s testimony that she had given him a vial ofE.A.'s unused Norco. In his experience, clinics do not accept extra medications and instruct patients to dispose of unused medications themselves.

10

her low back pain which radiated through her left buttock and down her left leg toward the middle of her thigh.

25. E.A. had not used NSAIDs before seeing respondent. When she had discomfort, E.A. generally smoked marijuana to lessen her pain. She did so without relief before seeing respondent on July 10, 2009. At this visit, respondent told her she had sciatica. After the visit, she filled the prescription for Norco and her mother maintained custody of this medication to make sure she took it accurately. E.A. spent several nights at her boyfriend's house the weekend following this visit. D.P. gave E.A. the amount of Norco she would need during this time. E.A. never filled the prescription for Ambien.

26. D.P. denied that she had asked respondent for more pain medications for E.A. on their July 13, 2009 visit. D.P. recalled bringing the half-filled bottle of prescription Norco back to the clinic on this date and giving it to respondent.

27. E.A. was exposed to several individuals who had MRSA before she became severely ill. One of her brothers had been diagnosed with a "skin type" of MRSA, within the last several months before her hospitalization. According to Kawaeah's medical records dated July 20, 2009, E.A.'s brother had his most recent MRSA outbreak approximately one month before. In addition, the mother of E.A.' s boyfriend also had MRSA. Her boyfriend lived with his mother. After her high school graduation in June 2009, E.A. was frequently at her boyfriend's house. This information, about her regular contact with two individuals with MRSA, was never provided to respondent.

E.A. 's Actions after Second Visit and Subsequent Admission to Emergency Room

28. After her July 13, 2009 visit, E.A. and D.P. went to Visalia Imaging to have her ordered lumbar x-rays taken. The Patient Report ultimately issued by William Hooks, M.D., for the four lumbar views taken this day found no evidence of fracture, with E.A.' s lumbar disk spaces appearing normal. His impression was that E.A. had "mild levoscoliosis, suspected to be due to lumbar spasm given available clinical history."

29. E.A. returned home that afternoon. She then spent the night at her boyfriend's home. That evening, she smoked a bowl of marijuana to ease the pain. The next morning, E.A. 's boyfriend brought her back home. E.A. 's condition had significantly worsened, as reflected by her increased lethargy and inability to walk.

30. Origin of E.A. 's Condz"tion: E.A. was taken by ambulance to Kaweah and admitted at the emergency room at 10:15 a.m. on July 14, 2009. Her admission was approximately 25 hours after her last treatment encounter with respondent. The hospital records contain conflicting information about E.A.' s urinary history and the possible origins of her sepsis.

On admission, E.A.'s chief complaint was pain with a severity of "5/10." She was described as alert, with normal respiration and skin color. She was afebrile (99.0 F). The

11

presence of cannabinoids and opioids in her system was confirmed. Triage comments indicated: "generalized body pain, recent back injury x 1 week, states she hasn't urinated in 2 days ... " Gastrointestinal examination revealed a soft non-tender abdomen, with "no guarding or rebound +b/l cva tenderness." She had bilateral pulmonary infiltrates at the time of her admission.

Roger Wu, D.O., noted under his Review of Genitourinary System that "patient denies any recent frequency, urgency, dysuria." E.A. 's chest x-ray that date showed "patchy consolidation of both mid to lower lung field with left greater than right, suggesting possible patchy pneumonia, atypical emboli or fungus infection."

Gregory Warner, M.D., noted a family report that E.A. had "signs and symptoms of urinary infection even as long as 2 weeks ago and as far as I know, she had dysuria and pain on urination, had some frequency. Now she comes into the emergency room and she has got body aches and pains, says she had some sort of back injury about a week ago. She has not urinated in 2 days and just aches and pains everywhere as most of her symptoms." He noted that E.A. "had a fair amount of delirium in the ICU," was presently "definitely delirious and looks very, very sick." Her blood pressure had fallen to 70-80/50; she was tachycardic with a heart rate of 150 and a temperature of 99.5. Her white count was 5.3. She had acute renal insufficiency; rhabdomyolysis; and "many white cell clumps in her urine, moderate bacteria in her urine." Dr. Warner's assessment was that E.A. ''clearly has sepsis. Source of sepsis is not clear, possibly pyelonephritis, acidosis, lactic acidosis." In referenced pyelonephritis as a possible cause of E.A.'s sepsis, Dr. Warner wrote "if you believe the story, which could be true." Given her abnormal chest x-ray, he noted the need to ''rule out coccidioidomycosis ... [as well as] endocarditis."

31. It was not established that E.A.'s MRSA and Pseudomonas were from an origin in her kidneys as alleged in the Accusation. The origin of her condition was complicated and initially unclear. E.A.' s complex condition was assessed by numerous specialists. For example, the July 20, 2009 impression of infectious disease specialist Mina Raju, D.O., was that E.A. had MRSA "sepsis, radiographic changes consistent with pneumonia. Nodular infiltrates just suspect are related to septic emboli from probable tricuspid valve endocarditis .... [MRSA] urinary tract infection probably secondary to hematogenous seeding ... " The July 23, 2009, impression of surgeon Rebecca Zulim, M.D., was that E.A. had "diffuse sepsis, bilateral cavitating abscesses of her lungs and resultant left pneumothorax, dissemination of the MRSA to her skin, ischemic necrosis of toe tips ... acute renal failure and myositis and rhabdomyolysis as presenting problems ... " Under recommendation, Dr. Zulim indicated she "'could not identify any other source for her initial infection except for her lungs. I wonder if she was somehow exposed to MRSA during her brother's infection ... ''

While there was initially some concern that E.A. had MRSA/sepsis that had originated in her urinary tract, it was ultimately determined that the source was in her lungs

12

and heart. Any infection in E.A.' s kidneys, or reported in her urinalysis, was a secondary infection from the primary pulmonary/cardiac infection.

Report and Testimony of Kathleen Baron, M.D.

32. Dr. Baron is a practicing family physician who has also worked as a Board reviewer. Dr. Baron earned a Bachelor of Science degree in Biochemistry from the University of California (UC) Davis (1970). She obtained her medical degree from Baylor College of Medicine, Houston Texas. After completing medical school in June 1974, Dr. Baron entered UC San Francisco's Family Practice Residency Program at Valley Medical Center in Fresno, which she completed in June 1977. She worked as a physician with the Fresno County Health Department briefly, before entering private practice in 1977. Since that time, Dr. Baron has practiced medicine in a family practice, as Primary Care Consultants, Inc., a medical group. Dr. Baron is a Fellow of the American Academy of Family Physicians. She is a Diplomate of the American Board of Family Medicine, and has been Board certified since 1978. In 1994, Dr. Baron obtained a Master's degree in Business Administration (MBA) from Pepperdine University.

33. At the Board's request, Dr. Baron reviewed documents and prepared a report setting forth her opinions on respondent's treatment of E.A. To do so, she reviewed the following documents: a draft investigation report; the 801 report; a summary of care; medical records and depositions from the insurance company; medical records from Premiere; hospital records from Kaweah on a C.D. consisting of3100+ pages; respondent's curriculum vita; and a recording of the Board's interview with respondent. When she wrote her report, Dr. Baron had not reviewed the depositions of E.A. or D.P., and was unfamiliar with their testimony that E.A. had no urinary symptoms or complaints on July 10 or 13, 2009.

34. December 2, 2012 Expert Report: In her December 2, 2012 report, Dr. Baron summarized E.A. 's July 10 and 13, 2009 visits with respondent. In doing so, she referenced Dr. Warner's July 14, 2009, critical care admission note about the family's report that E.A. had symptoms of a urinary infection for the previous two weeks and had not urinated for two days. (Finding 30.) Dr. Baron's report addressed whether respondent had complied with the standard of care for maintaining medical records for E.A., and for evaluating and treating E.A. on July 10, and July 13, 2009.

35. Medical Records: Regarding medical records, Dr. Baron indicated that "the standard of care requires that the physician must maintain accurate and complete records demonstrating a history and physical exam along with evaluations, consultations, treatment plans and objectives, informed consent, medications prescribed and follow-up documentation." Dr. Baron found that respondent's medical records for E.A. "were clearly substandard, very brief and mostly templated." Specific deficiencies were that: (1) respondent's history did not include any documentation of his investigation ofE.A. 's "co­complaint of neck and shoulder pain, specifically to explore the possibility that this patient had an all-over pain syndrome"; (2) respondent did not document ''any specific questioning

13

about the possibility of dysuria. The documentation of "Genitourinary-neg' in the review of systems can only be taken at face value"; (3) there was no documentation on the July 10, 2009, visit that respondent noticed E.A. 's abnormally high pulse rate, and "when it was even higher on the second visit, an appropriate differential diagnosis was not entertained"; ( 4) the documentation of the physical exam "did not adequately describe a thorough back exam for the diagnosed condition for which narcotics were prescribed"; and (5) there was no documentation that E.A. was educated as to warning signs or symptomatic care.

In Dr. Baron's opinion, respondent's medical records for E.A. "clearly demonstrate a failure to take an adequate history, a failure of an adequate physical exam, and a failure of appropriate laboratory testing leading to an accurate diagnosis. The medical records are furthermore largely templated and not individualized suspicious for inaccuracies, such as on the second visit when her pulse was recorded at 155 and her skin was described as "clammy,'· she was also described as being pleasant and "in no apparent distress," which is just not possible."

Dr. Baron concluded that respondent had not complied with the standard of care for medical records:

Given the extent of the illness that patient [E.A.] demonstrated on admission to Kaweah ... just one day later, Dr. Garcia's medical records ... clearly demonstrate a failure to provide adequate care and represent an extreme departure from the standard of care.

36. Medical Treatment: Regarding respondent's treatment of E.A., Dr. Baron noted that "the standard of care requires that the physician take an adequate history, perform an appropriate physical examination, [and] order appropriate laboratory testing." She concluded that respondent had not met this standard on either of his two treatment visit with E.A. and that his treatment of her was an extreme departure from the standard as more specifically described below.

A. July 10, 2009 visit: Based on E.A. 'slack of prior history of back pain, musculoskeletal complaints, or drug-seeking behavior, Dr. Baron opined that respondent should have had a level of suspicion when E.A. reported back pain from the "trivial activity such as lifting groceries, that something other than back stain [sic] was causing the complaint." She elaborated:

We know from a history taken by another physician (Greg Warner, M.D.) after [E.A.] was ultimately hospitalized, that she had had two weeks of dysuria. Dr. Garcia did not enquire [sic] at any time specifically about dysuria and had he done this at this first visit, the patient likely would have had a completely different outcome. The patient was noted to have an elevated pulse and appeared anxious. This again would not be expected in a young otherwise healthy young woman who simply lifted groceries, and should have prompted a

14

urinalysis to look for evidence of kidney stone, which would be much more likely to produce back pain requiring narcotics than lifting grocenes" ..

Dr. Baron also questioned the prescriptions respondent issued. In her opinion, neither Ambien nor Vicoden appear to have been indicated, "as the patient was not complaining of insomnia, and there was no first line treatment such as hot or cold packs, or muscle relaxer/NSAID medication considered prior to narcotics."

Dr. Baron concluded that respondent's treatment ofE.A. on July 10, 2009, was an extreme departure from the standard of care in three ways: first, by failing to take an adequate history and perform appropriate laboratory testing; second, by prescribing Ambien without any complaint of insomnia; and third, by prescribing Vicoden to a "narcotics naYve teenager with acute back pain."

B. July 13, 2009 visit: Dr. Baron characterized E.A. 's early return to Premier with a pulse of 155 and skin that was "clammy" as "a big red flag" that respondent's original assessment was incoffect. Despite this, respondent "did not investigate more thoroughly nor obtain the positive history of dysuria, order a Urinalysis nor document any evidence he recognized the seriousness of E.A. 's condition. Instead, in the medical record, respondent described E.A. as "'pleasant' and 'in no distress' when she was obviously greatly distressed. Furthermore, his diagnosis of 'overmedication with opiates' - if it had been true, was treated outside the standard of care by his substitution of a prescription of even more opiates."

Dr. Baron concluded that respondent's treatment of E.A. on this date was an extreme departure from the standard of care, based on his "failure to recognize urosepsis and his treatment of presumed opiate excess with more opiates."

37. Dr. Baron's Testimony: Dr. Baron's testimony was largely consistent with, and expanded on, the opinions in her report, finding respondent engaged in numerous extreme departures from the standard of care for medical records and treatment.

For example, she criticized respondent's medical record for July 10th, based on a perceived inconsistency between E.A. 's documented past history as positive in certain areas (integumentary, psychiatric and neurological) and respondent's present review of these systems as negative. (Finding 17, footnote 5.) She noted that the purpose of the review of systems is to consider other possible options that should be investigated rather than the patient's focused complaint. Respondent's review of systems for "constitution" was negative, but this is where it would have been appropriate to note if E.A. had sleeping problems. It was a departure from the standard of care for respondent to simply indicate a negative sign under the genitourinary review of systems. To develop a differential diagnosis of kidney stones, more extensive questioning about urinary conditions would be required and respondent should have included the specific questions he asked E.A. in the record.

15

Dr. Baron clarified that respondent's comments under impressions could show that he independently confirmed the patient history obtained by the nurse. She opined that respondent's examination was inadequately documented, because there was no indication that he checked E.A. 's reflexes, range of motion or straight leg raises. Dr. Baron added to the list of extreme departures that respondent had violated the standard of care for records on July 13, by not documenting that E.A. returned to the clinic within three days, earlier than ordered, because it was a red flag.

Dr. Baron faulted respondent for not including a diagnosis, explaining that pain is only a symptom, and that he needed to identify a medical condition that is causing the symptom. She conceded that an impression or working diagnosis was appropriate but a medical cause needed to be documented within a short time. She insisted that an actual diagnosis, rather than an impression of pain, had to be recorded before a physician could prescribe medication. Respondent "should have written muscle strain, muscle spasm, slip disc, or something substantial." Even if respondent had written "muscle strain," he should not have prescribed Norco because it is not indicated for muscle strain. Dr. Baron later conceded that the standard of care allows a physician to prescribe narcotics in response to musculoskeletal complaints; however, she believed that it was "not recommended."

While testifying that no differential diagnosis was documented, Dr. Baron agreed that, based on the history in the record, a musculoskeletal issue was a reasonable possibility as the cause of E.A.'s pain on July 10. She acknowledged that, on July 10, respondent appropriately tried to rule out flank pain by checking E.A. for CV A tenderness, which can be associated with various complaints, including pyelonephritis. She also agreed: that back pain radiating through the buttock and into the leg might indicate a possible disc or nerve irritation in the lumbar spine; that the standard of care did not require respondent to order x­rays of E.A. on July 10; and that respondent appropriately considered that E.A. 's pulse rate of 106 was attributable to her pain complaints on that date.

38. Regarding treatment, Dr. Baron testified that UTis and kidney stones are also common causes of back pain. It was an extreme departure from the standard of care for respondent not to perform a urine dip stick on E.A. on either visit, particularly in light of her reports of severe pain, which could be caused by a kidney stone.9 Dr. Baron reviewed the Laboratory Data in Dr. Raju's July 20, 2009 Consultation Report, which stated in pertinent part: ''Urinalysis on the day of admission revealed turbid fluid, bilirubin, large amount of blood, moderate bacteria, WBCs clumps and myoglobin ... " Dr. Baron testified that a simple and inexpensive urine dip stick would have tested for all of these things, except myoglobin (a specific protein which comes from the breakdown of muscle cells) which would show up as general protein. Dr. Baron testified that the timeline for the development of sepsis is that "people go from well to having a low-grade infection to having [septic] shock over the time

9 Dr. Baron agreed pain was subjective. She testified that, if she was advised by a patient of a high rate of pain that was not consistent with her clinical observations, she would not write that in the record.

16

frame of several days if not weeks." 1° Consequently, in her opinion, E.A. would have had an abnormal urine test several days before her hospital admission on July 14, 2009. If similar urine results were received on July 13, these results would have been significant because bilirubin is generally not in the urine; blood could be present if there was an infection or a kidney stone; and clumps of WBCs would mean there is an infection. Such results might have caused respondent to reevaluate his working diagnosis of back pain and, coupled with E.A. 's tachycardia, to send E.A. to the emergency room.

Dr. Baron acknowledged that, according to Dr. Raju, the primary site of E.A. 's sepsis before it became systemic was in the pulmonary fields or endocarditis. She conceded that a urine dip stick taken the day before E.A.' s hospitalization would not have been a powerful enough diagnostic tool to indicate a MRSA infection in E.A. 's lung fields or the heart, and that E.A.'s WBC on July was 5.3, within normal limits. Dr. Baron further agreed that, if respondent had obtained a CBC the day before it probably would not have been substantially different and that there was never a sign of fever while E.A. was in the office. Dr. Baron testified that a urine dip stick would tell if nitrates are present and that nitrates are present with infection. Dr. Baron agreed that, on July 14, E.A.' s urinalysis indicated that urine nitrate was negative, and that a urine dip stick administered the previous day would also likely have been negative.

Dr. Baron testified that, in her opinion, it is fair to evaluate a physician's treatment of a patient in light of the patient's subsequent medical history because looking back is "how we learn things in medicine." In her view, a retrospective evaluation is appropriate for determining whether or not a physician complied with the standard of care at an earlier stage of treatment.

39. Regarding treatment on July 13, Dr. Baron acknowledged that excessive use of opioids can produce clamminess of the skin. In her view, "clammy" and "sweaty" pertain to the same thing. The most important finding on this date was E.A.'s initial pulse of 155. Dr. Baron agreed that respondent acted reasonably in getting an EKG immediately. The resulting pulse of 132 could have been explainable on the basis of E.A. 's severe pain and anxiety. In Dr. Baron's opinion, E.A.' s elevated pulse and her early return to the clinic provided respondent with an "opportunity to reevaluate" her, but there was no indication that respondent reconsidered his working diagnosis. Dr. Baron insisted that respondent's decision to order x-rays of EA's lumbar spine at this point ''was not indicated," but she conceded that to do so was reasonable and within the standard of care.

40. Regarding medications, Dr. Baron testified that it was not within the standard of care for respondent to prescribe Norco to E.A. on July 10, when he was just treating pain from an unknown, undiagnosed source. He should first have the patient try NSAID medications. She clarified that it was a simple departure from the standard of care to

111She conceded that, in some sepsis cases, a patient can rapidly go from a relatively normal clinical state to one of multiple organ failure.

17

prescribe narcotics without first trying non-narcotic analgesics. 11 It was an extreme departure for respondent not to obtain and document E.A.' s drug history before prescribing Norco to her. The simple departure for using Norco as a first-line treatment presupposed that respondent had complied with the obligation to obtain E.A.'s drug history. Prescribing Ambien without a complaint of insomnia is an extreme departure from the standard of care, and it is not appropriate for a doctor to assume a patient with pain might suffer from sleep problems.

Dr. Baron was critical of respondent's prescribing Darvocet. In her opinion, it would have been more reasonable for him not to give E.A. any narcotics if he felt she was taking them inappropriately. Dr. Baron conceded that Darvocet was a reasonable choice if the physician believed the patient's complaints of pain were real and wanted to provide a narcotic for pain relief.

Respondent's Expert Richard A. Johnson, MD.

41. Dr. Johnson has practiced family medicine for 34 years. After receiving his Bachelor of Science degree in Physics (1973), he attended medical school at Washington University School of Medicine in St. Louis, Missouri, graduating in 1977. From 1977 through 1980, Dr. Johnson completed a residency at the University of California, Los Angeles (UCLA), in the Division of Family Medicine. He became licensed to practice medicine in California in 1978 (Physician's and Surgeon's Certificate 037531). In 1981, Dr. Johnson became certified by the American Board of Family Practice and he has maintained this certification by periodic recertifications.

Dr. Johnson has extensive experience in both academic and clinical family practice medicine. From 1980 through 2004, Dr. Johnson was a full-time faculty member at UCLA's School of Medicine in the Family Medicine Division. He was an Assistant Professor of Family Medicine (1980-1987), and an Associate Professor of Clinical Family Medicine ( 1987-1996). Dr. Johnson became a Clinical Professor of Family Medicine in 1996, and acted in this capacity full time through 2004. As a faculty member, Dr. Johnson was responsible for his own group of patients and he also taught medical students, interns and residents. In addition, for 19 years, he was the director of UCLA's ambulatory care center, which functioned as both an urgent care and walk-in care center. As part of his ongoing teaching responsibilities at UCLA, Dr. Johnson has taught medical record keeping to medical students, interns and residents. In 2004, Dr. Johnson and three partners purchased the Pacific Palisades Medical Group (PPMG), an ambulatory facility that was owned by UCLA. Since this purchase, PPMG has remained clinically affiliated with UCLA and Dr. Johnson

11 Dr. Baron testified that she was not clear about the difference between a simple and an extreme departure from the standard of care; she then explained that she viewed a simple departure as a paperwork error or an administrative problem, and an extreme departure as something that is life-threatening.

18

continues his affiliation as a Clinical Professor of Family Medicine. In 2011, he was named as one of U.S. News and World Report's "Top Doctors."

42. At respondent's request, Dr. Johnson reviewed his treatment ofE.A. in the context of her lawsuit. He was later asked to provide his opinion on whether respondent met the standard of care in treating E.A., in light of the allegations in the Accusation. To do so, Dr. Johnson reviewed the medical records from Premier for respondent's two treatment visits with E.A., the Board's investigation report, the depositions of E.A. and D.P., the Board's interview of respondent (transcript and audio), selected hospital records from Kaweah regarding E.A.'s treatment, and Dr. Baron's expert report. Dr. Johnson prepared a report dated May 1, 2014, and testified at hearing.

43. Based on his review, Dr. Johnson concluded that respondent met the standard of care in his treatment of E.A. over the course of these two visits, individually and cumulatively, when viewed prospectively, based on the facts and circumstances known to respondent at the time he treated E.A. Dr. Johnson opined that respondent had the dubious distinction of having been "in the wrong place at the wrong time," by treating a patient appropriately for musculoskeletal back pain, who had no indication of an infectious process, but who rapidly developed a catastrophic, life-threatening sepsis within 25 hours of her last treatment encounter with him.

A. July 10, 2009 encounter: In Dr. Johnson's opinion, E.A. presentation on July 10, 2009, was that of a "garden-variety" low back case. He disagreed with Dr. Baron's opinions about the care and treatment respondent offered to her on this visit.

First, Dr. Johnson disagreed with Dr. Baron's opinion that respondent's medical record is an extreme departure from the standard of care. In his view, Dr. Baron's "justification for this opinion appears to be primarily that the findings recorded in the medical record just 'could not have been true' based upon the subsequent course of the patient." In Dr. Johnson's opinion, respondent's records "are of high quality and certainly contain sufficient information relating to the history, physical exam, assessment and plan. These medical records are well within the acceptable standard of care for record keeping."

Second, Dr. Johnson disagreed with Dr. Baron's opinion that respondent had engaged in extreme departures from the standard of care by allegedly: failing to take an adequate history and perform appropriate laboratory testing; prescribing Ambien in the absence of a complaint of insomnia; and prescribing Vicoden to an opioid-naive teenager with acute back pain. By contrast, Dr. Johnson opined that:

The history taken by Dr. Garcia is more than adequate to comply with the acceptable standard of care, and no laboratory testing would be indicated based upon the presentation. There was no reasonable suspicion of any infection as an explanation for the patient's back pain, given the absence of any genitourinary symptoms, fever, or costo-vertebral tenderness. It

19

is not beneath the standard of care to prescribe a sleep aide, such as Ambien, for an individual in pain, who may have trouble sleeping. Additionally, it is well within the applicable standard of care to prescribe a limited amount of narcotic pain medication, e.g., Vicoden 325-7.5 for a 19-year-old female with back pain reported to be a 9 out of 10 on a pain scale.

B. July 13, 2009 Encounter: In Dr. Johnson's opinion, E.A. presentation on July 13, 2009, was substantially similar to that of July 10, 2009. He disagreed with Dr. Baron's opinions that respondent had engaged in extreme departures from the standard of care by: failing to properly evaluate E.A.'s tachycardia more thoroughly; failing to obtain a history of dysuria; and failing to recognize the seriousness of E.A. 's condition.

Responding to these criticisms, Dr. Johnson noted that: (1) respondent investigated the tachycardia and objectified the rate by performing an EKG, which showed the rate to be 132; and (2) respondent's review of systems "clearly documents no genitourinary complaints, and his description of E.A. as being in no apparent distress and pleasant." He explained:

Clearly a pulse rate of 132 is abnormal and there are many causes. This is the only real substantial issue when I review this matter. The issue is was it reasonable and within the standard of care for Dr. Garcia to accept the patient's pain level and possible overmedication with opiates as a sufficient reason to explain the pulse of 132. In a 19 y/o female (maximum pulse rate = 200), a pulse of 132 represents a rate of 66 % of her maximum pulse. Clearly, a pulse rate of 66% of maximum can certainly be caused by a pain level of 9 on a scale of 10. Her clinical appearance being in no apparent distress and pleasant is consistent with her use of the pain medications.

The pulse rate was higher than normal on the second visit, but the explanation was acceptable. The patient was sent for x-rays of the L/S spine and informed to return in two days. There were not signs or symptoms that would have required Dr. Garcia to obtain additional studies, nor suspect that E.A. was septic from a genitourinary source. This care and treatment complied with the acceptable standard of care.

44. In summary, Dr. Johnson indicated that it appeared to him that Dr. Baron's criticisms of respondent "are primarily predicated upon the gravity of the illness that E.A. presented with'' to Kaweah on July 14, 2009, "as opposed to the contemporaneous record and testimony of Dr. Garcia. In general, review of physician conduct from the retrospective perspective is fraught with danger. The course of many illnesses are [sic] highly variable, and a physician who is seeing a patient in real time does not have the advantage of

20

retrospection. [i!] I am of the opinion that all of Dr. Garcia's care for E.A. complied with the acceptable standard of care."

45. Dr. Johnson's testimony was consistent with his repo1i. In his experience, respondent's medical records were ''quite complete," and probably in the upper quartile of the thousands of records he has reviewed. The template used by Premier was one of the better ones he had seen. Particularly at this time (2009), "glitches" were not uncommon in electronic medical records. The physician is responsible to review their records for accuracy, but ensuring complete accuracy may be unrealistic. Record errors do not necessarily violate the standard of care.

The review of systems focuses on contemporaneous issues, so respondent's records were not inconsistent with E.A.'s past medical history. In Dr. Johnson's opinion, simply asking E.A. if she had any problem urinating was sufficient, without specific follow-up questions. The terms "diagnosis" and "impression" have been used interchangeably. Respondent's impression of a musculoskeletal complaint was reasonable; such conditions are frequently described as "low back pain" or "lumbar pain." Prescribing Ambien as an aid to a patient in pain was appropriate. Respondent's failure to document the reason for prescribing it an "oversight," but was within the standard of care.

In Dr. Johnson's opinion, neither a MRSA infection in E.A.'s lungs or heart nor a kidney stone would have manifest as back pain radiating into the buttock and lower leg. Kidney stones typically cause intermittent cramping pain with blood in the urine and flank pain. This was not E.A.'s presentation. There was nothing in E.A.'s presentation on July 10 to suggest an infectious process. The sepsis process does not evolve over extended time periods. Patients may progress from non-septic to septic in a rapid period of time. While E.A. may have been in the very early stages of sepsis on July 13, there were no reasonable indications in her presentation during that visit to point to an infectious process or that would have caused a reasonable physician to perform a urine dip stick test on July 13. There is no reason to routinely perform a urine dip stick on all people with back pain. In Dr. Johnson's opinion, respondent acted appropriately in using an EKG to assess E.A. 's tachycardia on July 13. Once it was determined she had a normal sinus rhythm, respondent appropriately attributed her still elevated heart rate to pain and anxiety. The standard of care did not require respondent to send E.A. to an emergency room or to a cardiologist. Dr. Johnson's opinion was not altered by knowledge that the transcribed record for July 13 erroneously indicated that E.A. was in no apparent distress. This error did not affect respondent's course of treatment.

Respondent's Expert Michael H. Forman. MD.

46. Dr. Forman has practiced emergency medicine for over 30 years. After receiving his medical degree from the University of Pittsburg (1980), Dr. Forman interned at Mercy Hospital and Medical Center in San Diego (1980-81), and completed his residency in emergency medicine at Denver General Hospital in Denver, Colorado (1981-1983). He has been licensed to practice medicine in California since 1981 (Physician's and Surgeon's

21

Certificate G046089). Dr. Forman has been a Diplomate of the American Board of Emergency Medicine since 1984, most recently recertified in 2012, and a Diplomat of the National Board of Medical Examiners since 1981. Since 1985, Dr. Forman has worked as an emergency physician with the Tri-City Medical Center (Tri-City), Department of Emergency Medicine, in Oceanside. His work at Tri-City has included stints as Assistant Medical Director (1989-1991; 2000 -2002), and as Medical Director (1991-1993; 2005-2006). Dr. Forman is also a senior partner with the Tri-City Emergency Medical Group in Oceanside, and has functioned as its Chief Financial Officer since 1985. Since 1990, he has been a voluntary Associate Clinical Professor of Medicine at the University of California, San Diego, School of Medicine (UCSD) and, since 2013, as a voluntary Associate Clinical Professor of Emergency Medicine at UCSD.

47. Dr. Forman was asked by respondent to review his care of E.A. in light of the allegations in the Accusation, and to comment on Dr. Baron's criticisms. In his April 30, 2014, expert report, Dr. Forman indicated that he "strongly disagreed" with Dr. Baron's opinions in this case. In formulating his opinion in this matter, Dr. Forman reviewed the depositions ofrespondent, E.A. and D.P .; the Board's investigation materials; the medical records from Premier; the emergency room records from Kaweah, including consultative reports from E.A. 's hospitalization; and respondent's statements to the Board during the investigation. Dr. Forman viewed these materials "prospectively so as not to be influenced by knowing the patient's ultimate outcome." He noted that "to evaluate for standard of care considerations, prospective review is required because in the real world practice of medicine, no physician can ever know, with certainty, what will transpire in any given patient's future."

48. July 10, 2009 Visit: Dr. Forman concluded that respondent's treatment of E.A. on this first visit was within the standard of care. Low back pain, neck pain and other musculoskeletal complaints are frequently heard in an urgent care, walk-in clinic or emergency room setting. E.A. 's presentation "gave no reason to believe or suspect that a systemic process, including infection of any kind, was afoot." E.A. 's "clinical appearance did not suggest a toxic process at all, and Dr. Garcia's diagnostic impression for lumbar strain was entirely reasonable on a prospective basis." The only vital sign that was not normal was a "very mild" tachycardia of 105 which was clinically quite normative, given her history of low back pain subsequent to lifting. Respondent did not fail to recognize that this pulse was abnormal; Dr. Baron's conclusion to this effect was contradicted by the fact that respondent prescribed pain medication as a response to E.A. 's report of severe pain as well as the very mild tachycardia noted at that time.

Dr. Forman took issue with Dr. Baron's opinion that respondent had engaged in an extreme departure from the standard of care by failing to investigate E.A. 's neck pain to exclude the possibility of an "all over pain syndrome." This criticism was misplaced.

In the absence of a fever or complaint of nuchal rigidity, it is completely unrealistic to expect a primary care provider in Dr. Garcia's position to focus his attention on a complaint which is ultimately never repeated by the patient thereafter (this proves

22

that this aspect of the history was incident to the patient's actual reason for being seen on July 10, 2009), and as a board-certified emergency room physician who frequently interacts with family practice and general practice physicians, I am not certain what Dr. Baron is referring to when she referenced "all over pain syndrome" in her report.

Dr. Forman also strongly disagreed with Dr. Baron's opinions about respondent's failure to inquire more specifically about dysuria. Given the history provided by E.A. and D.P., he could not imagine why any physician in respondent's position would have done so on July 10, 2009. Dr. Forman noted that Dr. Baron appeared to have been influenced by the history elicited by Dr. Warner when E.A. was admitted that E.A. "had had difficulty with urination for approximately two weeks and had not urinated for two days when she presented to the emergency room." Dr. Forman noted that no one else at Kaweah had elicited a similar history. Further, this infonnation was not provided to respondent on July 10, 2009, and "was not verified by the deposition testimony given by the patient and/or her mother in the underlying medical case. To suggest that Dr. Garcia should have specifically inquired about dysuria on July 10, 2009, does not appear sensible nor evidence-based, and to characterized it as an extreme departure does not reflect objectively on the clinical reality faced by a practitioner in Dr. Garcia's circumstances as of that date."

Dr. Forman did not find any standard of care violations regarding respondent's recordkeeping on this date. ''Musculo-skeletal pain is exceptionally common and in the absence of signs or symptoms pointing to a more serious problem, Dr. Garcia was well within the standard of care to manage the patient as outlined. On a prospective basis, no clinician would be critical of Dr. Garcia's efforts on this date if one hypothesized that the patient's complaints resolved completely after a trial of pain medication, rest and moist heat."

49. July 13, 2009 Visit: When E.A. returned three days later on July 13, with complaints of greater pain, her manually-taken pulse rate was in the 150s. Dr. Forman noted that respondent "was understandably concerned" about the patient's tachycardia. He ordered further workup by objective testing in the nature of an office-based EKG, which found E.A.'s heart rate to be in the low 130s, with a nom1al sinus rhythm. In all other vital signs, E.A. was normal. It was noteworthy that E.A. was afebrile and did not provide any history to suggest she had any problem voiding or with her urinary tract in general. E.A. did not complain to respondent that day, or to anyone at Kaweah the following day, of shortness of breath, chest pain, or cough. "The patient was not obese and had no history for any medical condition that would predispose to clot formation or pulmonary emboli. Likewise, there was no reason to suspect that the patient's heart rate was elevated secondary to bleeding."

Respondent's diagnostic impression was that E.A. 's pain complaints, which were severe, were likely the cause for her elevated heart rate. In the absence of a fever or any history to suggest infection as a cause, "it would not be unreasonable for a clinician in Dr. Garcia's position, on a prospective basis, to attribute the patient's pain complaint, including

23

tachycardia, to her ongoing back discomfort, especially with the history that the patient had run out of pain medication which, by implication, suggested the patient had not taken pain medication in the recent past before seeing Dr. Garcia on July 13, 2009." Respondent's conduct of referring E.A. out for x-rays with the direction to return in two days was reasonable, particularly given her understanding that she could return sooner or go to the emergency room. Dr. Forman did "not feel that criticism of Dr. Garcia is fair in terms of expecting a clinician in his position to suspect an infection as a possible cause for the patient's return presentation on July 13, 2009."

Regarding E.A. 's ultimate sepsis, Dr. Forman described the ''Systemic Inflammatory Response Syndrome" or SIRS paradigm for initiating an early sepsis workup that is commonly used in emergency rooms throughout the United States. The SIRS criteria are met if there are at least two of the following four criteria present:

1. Temp> 100.4F or< 96.SF 2. Heart rate > 90 3. Respiratory rate> 20 or PaC02 <32 mm Hg 4. WBC > 12,000 or< 10% bands

Dr. Forman noted that, in this case:

... while [E.A.] had a pulse greater than 90, "there are many, many medical conditions which will elevate the pulse, including pain. Dr. Garcia did not get a WBC, but the emergency room CBC the following day indicated that the patient's white cell count was 5,300, which is entirely normal. Had Dr. Garcia obtained a CBC on July 13, 2009, the WBC presumably would have been within normal limits because it was found to be within normal limits the following day. The patient never had a documented increase in her respiratory rate and also was afebrile when seen the following day in the emergency room. Hence, even with the application of the sepsis paradigm to this case, the patient did not meet the criteria for initiating a sepsis workup based on a prospective evaluation of Dr. Garcia's management on July 13, 2009. While it is true that Dr. Garcia obtained no labs for that visit, it would appear also true that no labs were indicated on the basis of the patient's re­presentation at that time.

Dr. Forman acknowledged that, during his voluntary interview with Board, respondent said, if he had to do it over again, he would get a urinalysis on E.A. In his opinion, this statement "makes perfect sense" in light of information later derived from E.A.' s 6-week stay at Kaweah. In his opinion, this type of retroactive decision-making is contrary to what happens in the clinical practice of medicine; i.e., that "diagnostic workup depends largely on the history obtained from a patient and findings on physical exam, along

24

with clinical intuition." Respondent's conduct and treatment on July 13, 2009, was not inconsistent with the standard of care and was certainly not an extreme departure from that standard.

Dr. Forman noted that, to the extent some lab work should have been obtained on July 13, 2009, labs would not have been ordered on a stat basis, and respondent would not have seen any such results until after E.A. presented to the emergency room. There was nothing in E.A. 's presentation that required referral to an emergency room or other specialist. In Dr. Forrnan's opinion, ''[t]o the extent that Dr. Baron would offer the opinion that the patient's outcome would have been changed, such an opinion would not appear to be premised on evidence-based medicine at all.''

50. Dr. Forrnan's testimony was consistent with his report. He has been a national speaker on medical documentation and for several decades has chaired his group's compliance committee which reviews charts. In his opinion, respondent did a pretty good history and physical on E.A. A reasonable patient who had not urinated in days would volunteer that information in response to the question whether they had any trouble urinating. Whether to use a NSAID before prescribing a narcotic depends on the patient. Prescribing Norco and Ambien were appropriate for pain and reasonably anticipated sleep issues. In the thousands of patients Dr. Forman has seen with kidney stones, none had pain radiating down the leg. As a result, with this history, Dr. Forman would not have even considered kidney stones in the differential diagnosis. Dr. Forman found no standard of care issues for respondent's treatment of E.A. on either visit.

On July 13, respondent had no duty to document E.A. 's early return to the clinic. Respondent had pointed out two transcription errors in the record pertaining to E.A. 's non­distressed presentation and her normal back examination despite his abnormal findings that date. Dr. Forman testified that, with the increase in the use of medical scribes for electronic medical records, mistakes occur, but mistakes do not always rise to the level of a standard of care issue. Respondent appropriately addressed E.A. 's tachycardia and found her hemi rate was reasonably explained by her pain and anxiety.

Like Dr. Johnson, Dr. Forman agreed that patients can go from a non-septic state to a septic state rapidly. Sepsis can have a subtle presentation. Based on her presentation at the clinic on July 13, E.A. would not have met the criteria for SIRS. The only relevant factor was her elevated heart rate, but two of the four criteria must be met for a patient to fall under suspicion for early sepsis. Dr. Forman noted that E.A. 's presentation did not meet the SIRS criteria for sepsis when she was admitted to the emergency room either. Her low blood pressure is what caused her to be evaluated for sepsis. In Dr. Forman's opinion, any patient presenting with unexplained low blood pressure should be differentially evaiuated for sepsis. He pointed out that E.A.'s blood pressure was in the normal range on both of her treatment visits with respondent.

There was no objective basis for respondent to pursue a urine dip stick or urinalysis. While the hospital records clearly showed E.A. had an infection in the urine, it was

25

secondary to her lung infection. E.A. had no pulmonary complaints at all. Pyelonephritis was ruled out as a source ofE.A. 's sepsis. Dr. Forman opined that E.A. had a genuine musculoskeletal issue that coincided with "a rare issue that was not going to be detected by very many physicians before the E.R. visit.''

Discussion

51. It is well settled that the standard of care for physicians is the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances." (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 470; Brown v. Calm (1974) 11 Cal.3d 639, 643.) A medical professional is held to the standard of care in his or her own "school" or specialty. As a general practitioner, respondent is held to that standard of learning and skill normally possessed by such physicians in the same or similar locality under the same or similar circumstances. Proof of this standard is ordinarily provided by another physician. (Brown, supra, 11 Cal.3d at p. 643.)

52. Medical Treatment: Based on a review of the record as a whole, the opinions of Dr. Johnson and Dr. Forman regarding respondent's treatment ofE.A. on both July 10, and July 13, 2009, were more persuasive than those of Dr. Baron and are entitled to more weight. 12

In determining whether respondent complied with the standard of care, it is appropriate to view the facts and circumstances known to him at the time of his treatment. It is not appropriate to determine whether he complied with the standard of care based upon facts that were not known to him at that time or that developed after his treatment. Dr. Baron's opinions were strongly influenced by E.A.' s life-threatening conditions following her admission to the emergency room, including by the conflicting and, ultimately, erroneous reports of E.A. 's history of urinary complaints and dysuria. The reports and testimony of Dr. Johnson and Dr. Forman persuasively establish that, on both the July 10 and 13 visits, respondent obtained an appropriate history, performed an appropriate physical examination of E.A., and arrived at an appropriate working diagnosis. Both experts agreed that the standard of care did not mandate that respondent administer a urine dip stick test to E.A. on either date, in light of her presenting complaints, her denial of any problems with urination, her negative response to the abdominal examination on July 10, and her lack of CV A tenderness on either dates. The lack of reasonably objective indicators suspicious for a UTI, a kidney stone or an incipient infection was reinforced by the distinctive, radicular nature of E.A. 's back pain through her buttocks and down one leg. E.A. 's subsequent MRSA and Pseudomonas were not from an origin in her kidneys. (Finding 31.)

The opinions of DL Johnson and Dr. Forman that sepsis can have a rapid onset were also more persuasive than Dr. Baron's opinion that sepsis typically takes days or weeks to

12 Differences between the experts' opinions go to the weight of the evidence. (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 632.)

26

develop. For this reason, respondent did not "'fail to recognize the seriousness of E.A. 's condition" on July 13. In this case, E.A. 's clinical presentation to respondent on July 13 was not toxic and her tachycardia was reasonably attributable to her combination of pain and anxiety. E.A.'s activities subsequent to this visit also demonstrated that she was functioning normally until early the following day. Respondent's treatment ofE.A. on July 13 was reasonable and within the standard of care: he ruled out any life-threatening heart arrhythmias, verified a continuing absence of CV A tenderness, ordered imagining studies to determine the presence of any disc problem or disease, and ensured she had appropriate pain relief pending a return visit within the next two days.

Similarly, the opinions of Dr. Johnson and Dr. Forman regarding respondent's prescribing decisions were also more persuasive than those of Dr. Baron. Respondent acted within the standard of care in prescribing Norco on July 10, and in changing this prescription to Darvocet on July 13. The decision to substitute Darvocet for Norco for a patient in severe pain, while eliminating a medication that might depress other potentially relevant symptoms (Tylenol), was within the standard of care.

53. Medical Records: Based on a review of the record as a whole, the opinions of Dr. Johnson and Dr. Forman regarding respondent's medical records for E.A. on both July 10 and July 13 were more persuasive than those of Dr. Baron. As detailed above, respondent's medical record for his treatment of E.A. on July 10, was within the standard of care. While respondent candidly testified that he should have documented the reason he prescribed Ambien on July 10, Dr. Johnson persuasively testified that this conduct was within the standard of care.

The medical record for July 13 is significant for an error that respondent credibly testified was a transcription error. Respondent's testimony that E.A. was in distress is contrary to that record, but it is consistent with her presentation that date with high rate tachycardia and with respondent's conduct of immediately ordering an EKG. Respondent acknowledged his responsibility to ensure the accuracy of his medical records. In this case, following Premier's policy, respondent did not review this record, but reasonably believed he would see his transcribed medical record when E.A. returned in two days. Respondent acknowledged that Premier's electronic record-keeping policy was not appropriate. He has not worked at Premier since November 2009, and he reviews his records at Adventist Health. Contrary to the argument of complainant's counsel, Dr. Johnson did not testify that a fifty percent medical record error rate is within the standard of care. Rather, Dr. Johnson attempted to explain that some undisputed medical record errors do not rise to the level of a standard of care violation, as in this case. His testimony on this point, viewed in light of the record as a whole, was persuasive.

In analyzing this case, it is significant that many of Dr. Baron's opinions that respondent engaged in extreme departures from the standard of care for maintaining accurate and complete medical records extended far beyond the narrow allegations in the Accusation. As indicated in Finding 5, the Accusation did not allege that respondent failed to maintain adequate and accurate records within the meaning of section 2266, which provides that "[t]he

27

failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct."

54. When all the evidence is considered, complainant did not establish that respondent engaged in gross negligence or repeated negligent acts in his care of E.A. on July 10, 2009, and/or on July 13, 2009, or in his medical recordkeeping on either date. There is no evidence that respondent poses any risk to the public. As such, the Accusation must be dismissed.

LEGAL CONCLUSIONS

1. Purpose of Physician Discipline: The purpose of the Medical Practice Act is to assure the high quality of medical practice. (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 574.) Disciplinary proceedings protect the public from incompetent practitioners by eliminating those individuals from the roster of state-licensed professionals. (Fahmy v. Medical Board of California (1995) 38 Cal.App.4th 810, 817.)

2. Burden and Standard of Proof: To revoke or suspend resp_ondent's medical license, the complainant must establish the allegations and violations alleged in the Accusation by clear and convincing evidence to a reasonable certainty. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856.) The requirement to produce clear and convincing evidence is a heavy burden, far in excess of the preponderance of evidence standard that is sufficient in most civil litigation. Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 84.)

3. Unprofessional Conduct: Business and Professions Code section 2234 provides that the Board ·'shall take action against any licensee who is charged with unprofessional conduct." Unprofessional conduct described in section 2234 includes, but is not limited to, gross negligence and repeated negligent acts.

4. Gross Negligence: Pursuant to Business and Professions Code section 2234, subdivision (b ), the Board may discipline a licensee's medical license for gross negligence. Gross negligence is defined as "the want of even scant care or an extreme departure from the ordinary standard of conduct." (Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 941; Franz v. Board of Medical Quality Assurance (1982) 31Cal.3d124, 138; Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 196.)

5. As set forth in the Factual Findings and Legal Conclusions as a whole and, particularly, in Findings 31 and 41 through 54, complainant did not establish by clear and convincing evidence that respondent was grossly negligent in his care and treatment of patient E.A., or in his medical records, on either July 10, 2009, or July 13, 2009. Legal cause

28

was not established to discipline respondent's license based on the allegations of gross negligence.

6. Repeated Negligent Acts: Pursuant to Business and Professions Code section 2234, subdivision ( c ), the Board may discipline a licensee's medical license for ''repeated negligent acts." To be repeated, there must be two or more negligent acts or omissions: an initial negligent act or omission followed by a separate and distinct departure from the applicable standard of care. Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. A physician is required to exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by other prudent physicians under similar circumstances. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998.)

7. As set forth in the Factual Findings and Legal Conclusions as a whole and, particularly, in Findings 31 and 41through54, complainant did not establish by clear and convincing evidence that respondent engaged in repeated negligent acts or omissions in the care and treatment of patient E.A. on his initial treatment encounter on July 10, 2009, on his second treatment encounter of July 13, 2009, or in his medical records. Legal cause was not established to discipline respondent's license based on the allegations of repeated negligent acts.

ORDER

Pursuant to the Legal Conclusions 1 through 7, the Accusation against Physician's and Surgeon's Certificate No. A37360 issued to respondent Fernando Dominguez Garcia, M.D., is DISMISSED.

DATED: October 31, 2014

MARILYN A. WOOLLARD Administrative Law Judge Office of Administrative Hearings

29