ALJDEC decisions subject to certification as final

08A-19324-MDX · Arizona Medical Board · 2008-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 23 and 24, 2008. APPEARANCES: The Arizona Medical Board was represented by its attorney, Philip A. Overcash, Esq. Troy J. Nelson, MD appeared personally and was represented by his attorney, Michael R. Golder, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. The Arizona Medical Board (“Board”) is the authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. 2. Troy J. Nelson, M.D. (“Respondent”) is the holder of License No. 19324 for the practice of allopathic medicine in the State of Arizona. 3. Respondent is a board certified pediatrician. 4. Respondent is a pediatric hospitalist, which is a pediatric physician who practices in the hospital. 5. The Board began an investigation in Case No. MD-05-1137A after receiving notice of a malpractice lawsuit against Respondent as a result of his treatment of patient GS. 6. On or about December 2, 1999, GS was admitted to Mesa Lutheran Hospital by his primary care physician, Dr. H. Glenn Garner. GS was approximately 16 months old at the time. The patient presented with fussiness and fever, which he had experienced for approximately three weeks. 7. Prior to the hospital admission of GS, Dr. Garner had performed a lumbar puncture. The laboratory results were consistent with meningitis. 8. At the time of admission, GS was weak and not wanting to weight bear, which are common complaints with meningitis. 9. The common types of meningitis are viral meningitis and bacterial meningitis. A rarer form of meningitis is cocci meningitis or fungal meningitis. 10. Medications for the treatment of cocci meningitis are toxic. 11. There is no treatment for viral meningitis, which runs its course over a short period of time. Viral culture testing for diagnosing viral meningitis can take weeks to obtain results. 12. GS was treated with IV Antibiotics and IV fluids while hospitalized. 13. While GS was hospitalized, a basic metabolic panel was performed. The lab results were reported using adult ranges rather than a range for children, the latter being a lower range. 14. The lab results of the lumbar puncture performed by Dr. Garner were negative for establishing a diagnosis of bacterial meningitis. 15. Lab results revealed that GS’s protein and glucose were not normal. His red blood count of 8 was due to a lumbar puncture. 16. GS’s sodium level was normal. Respondent opined that he did not have syndrome of inappropriate antidiuretic hormone (“SIADH”). 17. During his hospitalization, GS was treated by several health care professionals in addition to Respondent. 18. GS improved during his hospitalization. 19. Respondent discharged GS on December 6, 1999. Although he was discharged from the hospital, he was to receive ongoing treatment. The patient’s temperature had improved, he was not longer vomiting, and his weight bearing issue had been resolved. No one protested his discharge. 20. Respondent did not order a second set of labs prior to the patient’s discharge because GS was improving. 21. Several days after being discharged from Mesa Lutheran Hospital, GS suffered a stroke. He was admitted to Phoenix Children’s Hospital, a tertiary care facility. 22. While admitted to Phoenix Children’s Hospital, GS was examined by a neurology consultant, who did not diagnose him having cocci meningitis. 23. A brain biopsy established that GS had cocci meningitis. 24. The Board issued a Complaint and Notice of Hearing in this matter. The Board forwarded the case to the Office of Administrative Hearings, an independent agency, for formal hearing. 25. At the hearing, Drs. Mary Cochran and Maher Eldadah testified as the Board’s medical experts. 26. Dr. Mary Cochran is a private general pediatrics practitioner. She has treated patients with meningitis, but not patients with cocci meningitis. 27. Dr. Cochran testified that the standard of care in assessing meningitis requires a patient history, physical examination, and lab testing. She testified that lumbar puncture is an appropriate test. 28. Dr. Cochran conceded that Respondent’s missed diagnosis of cocci meningitis did not lead to the patient’s subsequent neurological damage. 29. Dr. Cochran testified that patients with cocci meningitis typically get worse with time. 30. Dr. Cochran testified that GS had no signs of cocci meningitis at the time of his admission to Mesa Lutheran Hospital. 31. Dr. Cochran noted that Respondent did not consider a pediatric neurology or infectious consultation. 32. Dr. Maher Eldadah practices intensive care pediatrics in Florida. He is licensed in Arizona, but he has never practiced medicine in the state. 33. Dr. Eldadah has never treated a patient with cocci meningitis. 34. Dr. Eldadah testified that the standard of care is the same for a pediatric hospitalist and a pediatrician. 35. Dr. Eldadah opined that Respondent fell below the standard of care by not transferring GS to a tertiary care facility for evaluation and treatment by a specialist. 36. Dr. Eldadah opined that Respondent fell below the standard of care by discharging GS with a diagnosis of viral meningitis without considering cocci meningitis. However, Dr. Eldadah did not fault Respondent for not diagnosing cocci meningitis. 37. Dr. Eldadah is critical of Respondent’s course of treatment. 38. Dr. Eldadah opined that Respondent’s use of antibiotics in treating GS was appropriate, but he thought that the patient should also have been treated with medications for bacterial meningitis. 39. Dr. Richard J. Dimand practices as an intensive care pediatrician in California. He has had numerous positions as a professor of pediatrics at several universities. 40. Dr. Dimand treats children with cocci meningitis in a tertiary care facility. 41. Dr. Dimand opined that GS was making reasonable progress while being treated at Mesa Lutheran Hospital. 42. Dr. Dimand opined that Respondent was reasonable in discharging GS. He further added that Respondent’s course of treatment did not affect the patient’s outcome. 43. Dr. Dimand testified that GS did not have an infectious disease. 44. Dr. Dimand holds a full-time pediatric hospitalist to a higher standard of care than a pediatrician. 45. Dr. Dimand noted that the doctors, including a neurology consultant, at Phoenix Children’s Hospital did not immediately diagnose cocci meningitis. 46. Dr. Dimand further noted that no one protested the discharge of GS. 47. Dr. Dimand testified that GS is “neurologically devastated.” 48. Respondent did not fall below the standard of care by not diagnosing GS with cocci meningitis. 49. Respondent did not fall below the standard of care by not transferring the patient to a tertiary care facility. 50. Respondent did not fall below the standard of care by not obtaining a consultation with a specialist.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 41-1092.08(G) (2), the Board has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent did not commit unprofessional conduct pursuant to A.R.S. § 32-1401(27) (q), as alleged by the Board. Respondent met the standard of care in his examination and treatment of GS. 4. Respondent did not commit unprofessional conduct pursuant to A.R.S. § 32-1401(27) (ll), as alleged by the Board. Respondent met the standard of care in his examination and treatment of GS.

RECOMMENDED ORDER

The Board’s Complaint in Case No. MD-05-1137A shall be dismissed on the effective date of the Order entered in that matter.

Done this day, July 14, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Lisa Wynn, Executive Director Arizona Medical Board 9545 East Doubletree Ranch Road Scottsdale, AZ 85258

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826