ALJDEC decisions subject to certification as final

08A-21941-MDX · Arizona Medical Board · 2008-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 19 -20, 2008; record held open until December 8, 2008 APPEARANCES: Attorney Scott Holden for Dr. Laursen; Assistant Attorney General Anne Froedge for the Arizona Medical Board ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ The Arizona Medical Board brought a Complaint against Dr. Mark Laursen alleging that Dr. Laursen violated A.R.S. §§ 32-1401(27)(e) and (27)(q). FINDINGS OF FACT The Arizona Medical Board (“Board”) is the duly constituted authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. Mark E. Laursen, M.D. is the holder of License No. 21941 issued by the Board for the practice of allopathic medicine in Arizona. On August 28, 2008 the Board issued a Complaint and Notice of Hearing setting this matter for hearing on November 19 and 20, 2008. The Complaint alleges that Dr. Laursen failed to recognize that a second EKG indicated a significant change with segment type elevation of 2 or greater that confirmed patient BG’s cause of chest pain was acute myocardial ischemia. See Complaint at ¶ 6.

The Complaint alleges that Dr. Laursen deviated from the standard of care because he failed to recognize a change in pattern on an EKG and because he did not direct appropriate care and disposition that included ordering cardiac specific medications such as beta blockers, anti-platelet agents, and IV nitrates and because he did not obtain a cardiac consultation and emergently transfer BG to a hospital with cardiac capability. See Complaint at ¶¶ 7 – 11. The Complaint alleges that Dr. Laursen’s records were inadequate because he did not document the change in EKG, he did not document BG’s chest pain, he did not document the repeat EKG, and he did not document the delay in initiating appropriate management of BG’s myocardial ischemia. See Complaint at ¶ 12. During the hearing, the Board acknowledged that the Complaint contains factual errors, but argued that these errors were immaterial as to whether or not Dr. Laursen committed the alleged violations. The Board presented the testimony of Case Manager Lorraine Brown and Dr. K. David Mosienko; Dr. Laursen testified on his own behalf. Twenty-five exhibits were entered into evidence. Dr. Mosienko has been licensed in Arizona since 2000; he was licensed to practice medicine in Canada in 1972 and first licensed in the United States in 1976. Dr. Mosienko practiced in emergency medicine from 1978 through January 2005 and is board certified in emergency medicine. Dr. Mosienko works at Banner Occupational and was working for Sun Health Systems in 2005 when he was hired by the Board to review the instant matter. See Exhibit 5 (Dr. Mosienko’s CV). Dr. Mosienko reviewed medical records from La Paz Regional Hospital, the EMS records and records from the Arizona Heart Institute and formed an opinion that Dr. Laursen did not meet the standard of care with respect to patient BG. Dr. Mosienko testified that his opinion is not in any part based on the records from the Arizona Heart Institute because he was able to “forget” about those records in forming his opinion. Dr. Mosienko prepared a report summarizing his findings (Exhibit 6) and two additional reports (Exhibits 8 and 9). Exhibits 8 and 9 were prepared at the Board’s request and were in response to information that Dr. Laursen submitted to the Board. Dr. Laursen was first licensed in 1982 and has been licensed in Arizona since 1994. From 1994 through 2005 Dr. Laursen worked in various emergency rooms in small Arizona communities under contract with EmCare. Prior to 1994, Dr. Laursen worked in emergency medicine in Los Angeles; since 2005 Dr. Laursen has had his own practice in general medicine. Ms. Brown’s testimony was limited to procedural matters and she offered no opinions related to the substance of the allegations against Dr. Laursen. Background On March 14, 2005, BG suffered from chest pain and two emergency crews were dispatched to her home. A basic life support (“BLS”) crew arrived first and an advanced life support (“ALS”) crew arrived shortly after the BLS crew. See Exhibit 11 at pp. 11 -12 (BLS report) and pp. 13 -14 (ALS report). When the BLS crew arrived, BG told them that she no longer had chest pain. The ALS crew transported BG to the La Paz Regional Hospital in Parker Arizona where she arrived at about 10:00 a.m. Dr. Laursen was the emergency room physician. During the transport, ALS administered aspirin and nitroglycerin. At approximately 10:07 an initial EKG was taken with the result being non- diagnostic. Dr. Laursen ordered a cardiac work-up and BG was placed on a cardiac monitor, given oxygen and IV fluids, labs were drawn and a chest x-ray was taken. The medical records show that as of approximately 10:12 BG had no chest pain. See Exhibit 11 at p. 7a. At 10:23 Dr. Laursen ordered a second EKG. See Exhibit 11 at p. 4 (EKG). Dr. Laursen testified that the second EKG was non-diagnostic. The nurses’ notes show that BG was in pain at 10:55 at which time morphine was administered. The nurses’ notes also show that morphine was also administered at 11:12, 11:55, and 12:10. See Exhibit 11 at pp. 10 -11. As of 11:18, BG had been admitted to La Paz and was no longer in Dr. Laursen’s care. Dr. Laursen testified that the procedure at La Paz was for the physician to issue an order for morphine to be titrated as needed for pain with the nurses having discretion in administering that morphine. Dr. Laursen testified that the protocol at La Paz also called for nitroglycerin to be administered for pain if needed (in two doses), with the nurses having discretion to administer the nitroglycerin if required. In the area of the chart for physician notes, there are entries that were not made by Dr. Laursen and presumably were made by the nurses. See Exhibit at p. 7. Dr. Mosienko testified that these notes show that nitroglycerin was administered at 10:15 and morphine at 10:30, 10:35 and 10:42. Dr. Laursen’s opinion is that these notes show the times that the nurses took down his orders, although he acknowledged that these notes do create some ambiguity with respect to the morphine. Dr. Laursen testified that he issued only 1 order for morphine, which was the titration order that was entered as 2mg IVP and he could not explain the entries on the chart that he did not make, but in Dr. Laursen’s opinion, generally, the nurses’ notes (in the area for those notes) are more accurate than notes the nurses make elsewhere. Because the nurses’ notes do not show that nitroglycerin was actually given to BG, Dr. Laursen assumes it was not given. Dr. Mosienko testified that it was the nurse’s responsibility to chart a doctor’s verbal order for medication, but there is no entry in the medical records to show that Dr. Laursen made any verbal orders. Dr. Laursen testified about factors that he considered in his evaluation of BG’s condition and the treatment he recommended, which was to refer BG for admission to La Paz: BG’s pain had resolved by the time the BLS crew arrived at her home and she had no pain when she entered La Paz ; BG reported that her pain had been sharp and that it was worse with deep breaths or movement (but BG’s reports to Dr. Laursen were of prior, not existing pain); BG had no history of heart disease; there was no evidence of troponin; BG had gastritis about 1 week before the date at issue; aspirin can cause chest pain in patients with gastritis; BG’s respiration rate was at 20, which is borderline for hyperventilation and could account for tingling in her hands; there is a general rule that repeat symptoms are more likely to be related to an existing problem rather than due to a new problem; and the chest x-ray was non-contributory. Dr. Laursen’s opinion is that the second EKG was non-diagnostic and that none of the precordial leads showed an ST elevation of more than two millimeters. Dr. Laursen telephoned Dr. Oranyeli, the physician on call, and discussed BG’s situation. Dr. Laursen then prepared admission papers on Dr. Oranyeli’s behalf and based on Dr. Oranyeli’s direction, but it was Dr. Oranyeli that admitted BG to La Paz, not Dr. Laursen. Dr. Laursen did not have admitting privileges at La Paz. Dr. Laursen could not recall the specifics of his conversation with Dr. Oranyeli, but his practice was to discuss a patient’s age, history, present condition, the EKGs, the X-rays, the troponin level, and any significant lab results, which for BG would have been the white blood cell count. BG was admitted to La Paz and into Dr. Oranyeli’s care at about 11:18 a.m. Dr. Laursen understood that Dr. Oranyeli would be at the hospital within a short time after their phone conversation and, to the best of Dr. Laursen’s recollection, the policy at La Paz required Dr. Oranyeli to arrive in about minutes. Dr. Laursen later learned that Dr. Oranyeli had not come in. At that time Dr. Laursen contacted Dr. Oranyeli and advised him to come in, and although, he was not certain, he believes that he checked on BG. Dr. Oranyeli arrived at La Paz at about 3:45 p.m. At about 4:05 p.m. Dr. Oranyeli arranged for BG to be transported to Arizona Heart Institute where she arrived at about 8:45 p.m. An EKG conducted at Arizona Heart Institute showed that BG had suffered a heart attack. La Paz has no cardiologist on staff and no catheterization lab. The Second EKG The Complaint alleges that Dr. Laursen failed to recognize that the second EKG indicated a significant change with segment type elevation of 2 or greater that confirmed patient BG’s cause of chest pain as acute myocardial ischemia. See Complaint at ¶ 6. Dr. Laursen testified that none of the precordial leads in the second EKG showed an ST elevation of more than two millimeters. During his testimony on the point, each of the 6 precordial lead segments were projected by computer and Dr. Laursen directed his attorney to draw in a baseline from which the respective ST elevations could be measured. Dr. Laursen read the ST elevations as: V1 less than 2 mm; V2 about 1.2 mm; V3 about 1.7 mm; V4 about 1.6 or 1.7 mm; V5 about 1.1 or 1.2 mm; and V6 less than 2mm. See Exhibit 11 at p. 4 (second EKG) and Exhibit 21 (enlargements of second EKG without J points or baselines marked). Dr. Mosienko testified about the EKGs while showing these using an overhead projector. On direct examination, Dr. Mosienko testified that in his opinion the V3 lead in the second EKG shows the ST segment is elevated by more than 2. At that time (direct examination) he did not testify that any of the other V- leads also showed ST segment elevations of more than 2, but noted that the V4 lead did show an elevation of an amount that he did not specify. In his direct examination, Dr. Mosienko specifically stated that the point he wanted to make was that there was a change from the first EKG to the second in that there was ST elevation in the second EKG, but not the first, and because the T wave had flipped from negative to positive. During his rebuttal testimony, Dr. Mosienko again discussed the EKGs at which time he presented enlarged copies of the leads from the second EKG on which he had marked J points and baselines. Dr. Mosienko’s opinion is that the ST elevation in lead V2 reaches the 2 mm threshold and that lead V3 shows an increase of approximately 2mm. See Exhibit 23 (enlargement of second EKG leads V2 and V3 with J points and baselines added by Dr. Mosienko) and Exhibit 25 (enlargement of second EKG leads V4 and V5 with J points and baselines added by Dr. Mosienko). In his report Dr. Mosienko wrote that in the second EKG V2, V3, V4, and V5 all showed ST elevations of 2 mm or greater. Dr. Mosienko’s opinion is that the second EKG standing alone would not allow for a diagnosis, but in this instance the first EKG provides a baseline from which to conclude that there had been a change in BG’s condition. In Dr. Mosienko’s opinion the first EKG shows that BG does not have baseline ST elevation, but she does in the second EKG. Dr. Laursen testified that many people have elevated ST segments and that it is routine for two EKGs to show different results because of the leads are not likely to be placed in the same spot on the patient for each EKG. The preponderance of the evidence does not show that there are ST segment elevations greater than 2 mm in the second EKG. Determining the change in ST elevation requires the physician to exercise his judgment in locating the J point and in locating the baseline. In the instant matter, Dr. Laursen and Dr. Mosienko have different opinions as to the changes in the ST elevations, but Dr. Laursen provided the more persuasive testimony because Dr. Mosienko’s testimony was not fully consistent with his report. In assessing the persuasiveness of each doctor on this issue, the ALJ also considered facts that show that Dr. Mosienko’s other opinions are not fully supported by the medical records (which are discussed below) and that Dr. Mosienko acknowledged that his report contains errors, which impact the weight that can be attached to Dr. Mosienko’s opinions. Dr. Mosienko’s testimony was not fully consistent with his report in that the report does not discuss the T wave shift, and because his testimony was that V3 was “approximately” 2 mm which is not the same as 2 or more as he wrote in his report, and because he did not provide testimony to support the report’s assertion that the V4 and V5 leads show ST elevations of 2 or more. Appropriate Care and Disposition The Complaint alleges that Dr. Laursen deviated from the standard of care because he failed to direct appropriate care and disposition for BG. Dr. Mosienko’s opinion was that because BG had continuing severe chest pain, there was a change in the EKGs, and there were no contraindications, BG should have been given IV nitroglycerin, administered beta blockers, administered Plavix to limit platelet aggregation, and a thrombin antagonist such as Lovenox. Dr. Mosienko’s opinion is not persuasive because it is based on facts that are not fully supported by the medical records, and, to a lesser extent, because he did not respond to all the issues raised by Dr. Laursen when Dr. Laursen testified as to why he treated BG in the manner in which he did. According to Dr. Mosienko, by about 10:23 (after the second EKG) BG had had chest pain for half an hour, but this is not supported by the records showing that BG had no pain at 10:12 or the nurses’ notes that show the first entry for pain at 10:55. Dr. Laursen’s testimony also shows that BG was not reporting pain while in the emergency room. In support of his opinion that BG had continuing pain, Dr. Mosienko relies on his belief that BG received nitroglycerin at 10:15 and morphine beginning at 10:30, based on the nurses’ entries in the physician’s notes. But no nitroglycerin was administered based on the nurses’ notes (in the area for those notes), which is supported by Dr. Laursen’s testimony about the procedures and protocols at La Paz. The records provide less certainty with respect to the morphine but the area for nurses’ notes shows that morphine was first administered at 10:55, which corresponds to the first entry for pain. To the extent that there is ambiguity created by the nurses’ entries in the physician’s note area, this ambiguity is not sufficient to prove Dr. Mosienko’s contention that morphine was administered at the times shown in that area. See A.A.C. R2-19-119. Dr. Mosienko’s opinion is that BG’s pain first resolved in the ambulance after she was given nitroglycerin. But this is not fully consistent with the BLS record showing that BG’s pain had resolved by the time the BLS crew arrived at BG’s home. Also, it is not clear that the ALS crew administered the nitroglycerin for existing pain as opposed to as a precaution. Dr. Mosienko testified that the only reason to give nitroglycerine to a patient is for pain. But there is no evidence to show that the ALS crew was aware of, or agreed that nitroglycerin should not be administered as a precaution or for pain that had resolved. Moreover, Dr. Mosienko later testified that there was no risk and only benefit from the administration of nitroglycerin, which raises the possibility that the ALS crew administered it as a precaution. And Dr. Mosienko did not point to a specific spot in the ALS record that verifies BG was experiencing pain while in the ambulance. Consequently, Dr. Mosienko’s opinion that the ALS crew administered the nitroglycerine for existing pain is not fully supported by the evidence and is based at least in part on an assumption about the ALS crew’s rationale for administering nitroglycerin. On cross-examination, Dr. Mosienko acknowledged that BG had a low blood pressure and pulse and, that beta blockers would act to reduce both the blood pressure and pulse, which could have very serious consequences for the patient. BG was given aspirin, which in Dr. Laursen’s opinion is the safest anti- platelet medication. Dr. Laursen’s opinion is that Lovenox (or beta blockers) should not be administered to a patient that has gastritis because there is a risk of hemorrhaging. Dr. Mosienko addressed BG’s gastritis on rebuttal and testified that more testing would have been required before administering any beta blockers. Until the hearing Dr. Mosienko was not certain that BG had reported that she had gastritis despite the fact that this information is in the medical records and was independently provided to Dr. Mosienko. Exhibit 11 at page 7a shows that BG reported that she had suffered from gastritis and Exhibit (a letter that was provided to Dr. Mosienko) shows that BG had had gastritis one week before the chest pain. Dr. Mosienko testified that he had circled the entry on Exhibit 11 and added a question mark because he was not sure what it said, but he thought it might have been gastritis. When asked about Exhibit 3, Dr. Mosienko testified that he did not base his opinion on letters from the attorney (i.e., Exhibit 3), but rather only on the medical record and what happened in the case, although Dr. Mosienko subsequently added that he had read and considered the information provided by Dr. Laursen (and his attorney). That Dr. Mosienko provided his opinion without full knowledge of all the pertinent facts negatively impacts the weight to be given to Dr. Mosienko’s opinions. Dr. Mosienko also opined that Dr. Laursen did not meet the standard of care because he admitted BG to a hospital (La Paz Regional) that could not appropriately care for her. But Dr. Mosienko subsequently acknowledged that he knew of no hospital in which an emergency room doctor would have admitting privileges and it was Dr. Oranyeli that actually admitted BG to La Paz, not Dr. Laursen, which also calls into question the weight to be given to Dr. Mosienko’s opinions. Given that Dr. Mosienko’s opinion is not based on information that is fully supported by the medical records and that he was not fully aware of BG’s relevant medical history when forming his opinion, Dr. Mosienko’s testimony is not sufficient to show that Dr. Laursen did not meet the standard of care in his care and disposition of BG when that testimony is weighed against Dr. Laursen’s testimony. Medical Records The Complaint alleges that Dr. Laursen’s records were inadequate because he did not document the change in EKG, he did not document BG’s chest pain, he did not document the repeat EKG, and he did not document the delay in initiating appropriate management of BG’s myocardial ischemia. See Complaint at ¶ 12. Dr. Laursen testified that his records were appropriate in that these showed the pertinent positives and considering the emergency room setting where it is necessary to treat the patients first and the charts later. The Board presents insufficient evidence to support the allegations with respect to the EKGs because it presented only the testimony of Dr. Mosienko, which is not persuasive because his opinions were not fully supported by the medical records, he offered opinions without a complete understanding of BG’s history, and he acknowledged other errors in his report. Also, Dr. Mosienko’s opinion is that a physician must mark the chart to prove that he has done things such as review the lab reports and, in Dr. Mosienko’s view, if a doctor does not document that he did something, then the doctor did not do it, which raises the possibility that Dr. Mosienko’s opinion was based on a standard that is beyond that required by the statute. The preponderance of evidence shows that BG was not experiencing chest pain while she was under Dr. Laursen’s care and, consequently, the evidence does not support a finding the Dr. Laursen’s records are inadequate in this regard. The Complaint has factual errors including that it shows that BG was under Dr. Laursen’s care after she was admitted to La Paz and when she was transferred to Arizona Heart Institute, which is incorrect. There is insufficient evidence to show that Dr. Laursen failed to adequately document any delay in initiating appropriate management of BG’s myocardial ischemia because there is no evidence to show that it was Dr. Laursen’s responsibility, and not Dr. Oranyeli’s, to provide the documentation that the Board alleges is lacking.

CONCLUSIONS OF LAW The Board has jurisdiction over Respondent and the subject matter in this case. The Board has the burden of persuasion. A.R.S. § 41-1092.07(G)(2). The burden of proof on all issues that of the preponderance of the evidence. A.A.C. R2-19-119(A). A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). The Board alleges that Dr. Laursen violated A.R.S. §§ 32-1401(27)(e) (failing or refusing to maintain adequate records on a patient) and (27)(q) (any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public). The Board had not met the burden of persuasion with respect to either allegation. The Board’s evidence is all based on Dr. Mosienko’s opinions and, as discussed in the Findings of Fact, his opinions are in large part based on information that is not fully supported by the medical records or are based on assumptions about what parts of those records that were not created by Dr. Laursen show. In addition, Dr. Laursen provided credible testimony about the factors he considered in his treatment of BG, many of which factors Dr. Mosienko did not address in his testimony. Because the Board has not met the burden of persuasion, there is no basis to discipline Dr. Laursen and the Complaint should be dismissed. RECOMMENDED ORDER IT IS ORDERED that the Complaint against Dr. Laursen is dismissed.

Done this day, December 29, 2008

______________________________________ Thomas Shedden 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