THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Board of Registration in Medicine,

Petitioner

v. Docket No. RM-07-1083

Jay Stearns, M.D.,

Respondent

Appearance for Petitioner:

Karen Rolley, Esquire

Complaint Counsel
Board of Registration in Medicine
200 Harvard Mill Square, Suite 330
Wakefield, MA 01880

Appearance for Respondent:

Alan B. Almeida, Esquire

Connor & Hilliard, P.C.
1350 Main Street
Walpole, MA 02081-1731

Administrative Magistrate

Judithann Burke

CASE SUMMARY

Psychiatrist who had responsibility of supervising the practice of psychiatric nurse/mental health clinical specialist did not violate and Board regulation or Prescriptive Practice Protocol when he indicated he could not care for patient due to conflict of interest and referred patient to the clinical director or another staff psychiatrist.

RECOMMENDED DECISION

Pursuant to G. L. c. 112, §§ 5 and 61-62 and 243 CMR 1.03(5)(a)(3), on November 14, 2007, the Petitioner, Board of Registration in Medicine (BRM) issued a Statement of Allegations ordering the Respondent, Jay Stearns, M.D., to show cause why he should not be disciplined for engaging in conduct which calls into question his competence to practice medicine, misconduct in the practice of medicine, and conduct that undermines the public confidence in the medical profession, all due to his alleged failure to adequately supervise a nurse practitioner under his supervision in late 2005 and early 2006. The Respondent filed an Answer on December 7, 2007 wherein he averred that he had not engaged in any misconduct or regulatory violations related to the treatment of the nurse practitioner or the complaining patient.


A pre-hearing conference was held at DALA on February 1, 2008. A hearing was
held on April 28, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. At the hearing, one exhibit was marked.

The Petitioner presented the testimony of the following two witnesses: Rosemary MacFarlane, psychiatric mental health clinical nurse specialist at Bayview Associates in Wareham, MA; and, Bernadette Forsberg, Department of Public Health Division of Health Care Quality surveyor. The Respondent, Jay Stearns, M.D., testified in his own behalf.

The hearing was stenographically recorded. The record was left open for the filing of the transcript and post hearing briefs. The last of the initial submissions was received on June 5, 2008.

On August 29, 2008, during the review of the case file in preparation for writing the Recommended Decision, the Administrative Magistrate had a question about the testimonial evidence in relation to the exact dates that the Respondent supervised Rosemary McFarlane. The record was left open for the clarification by the parties as to the specific period of time during which the Respondent exercised supervision over Rosemary MacFarlane's prescriptive practice. The last of the submissions was received from the Respondent on October 17, 2008, thereby closing the record.


FINDINGS OF FACT

Based upon the testimony and documents submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:

1. The Respondent, Jay Stearns, M.D., 60 y.o.a., is a psychiatrist licensed to practice in Massachusetts. He is board-certified in psychiatry and neurology. (Testimony).

2. The Respondent has been licensed to practice medicine in Massachusetts since 1978 and he has never had his license to practice suspended or revoked, and, prior to this case, he has never been the subject of any disciplinary action by the Petitioner. (Id.).

3. The Respondent accepted a position as a "staff psychiatrist" at Bayview Associates (Bayview), Wareham, MA, in June 2002. (Id.).

4. The Respondent was one of four "prescribing professionals" (two psychiatrists and two clinical nurse specialists) who worked at Bayview during the period in question in this case. (Id.).

5. Between October 1, 2002 and on or about October 31, 2006, as part of his duties as staff psychiatrist at Bayview, the Respondent assumed the responsibility of supervising the prescriptive practice of psychiatric nurse/mental health clinical specialist Rosemary MacFarlane (RM). During that period, the Respondent supervised RM's prescriptive practice pursuant to written guidelines. (Exhibit 1).

6. The written guidelines were set forth in a document dated October 1, 2004, entitled "Rosemary MacFarlane, RN, CS, Guidelines For Practice." The Guidelines were based on a form that had been developed in the Arbor Health Care System. Bayview administrators used the form Guidelines routinely at the time the Respondent became a staff psychiatrist at Bayview, and he and RM signed them. The Guidelines were also signed by a Kathleen M. Sinar of Bayview. (Id. and Testimony).

7. From October 2002 through on or about October 31, 2006, the Respondent had his own patients whom he treated and for whom he prescribed medications. (Testimony).

8. During that same period, RM had her own patients whom she treated and for whom she prescribed medications. (Id.).

9. The Respondent had a limited role in RM's practice. He supervised her prescribing of medications and he provided diagnostic advice when requested to do so by RM. (Id.).

10. The Respondent and RM met regularly to discuss and review RM's prescriptive practice with respect to those of her patients for whom she prescribed medications. Their meetings took place twice per month and lasted one hour. (Id.).

11. On October 31, 2005, RM had an initial consultation with Patient A, a female who had been referred to her by a licensed social worker at Bayview. The purpose of the meeting was to evaluate Patient A's current antidepressant medications. RM interviewed Patient A and recommended a medication change because Patient A was symptomatic and her current medication was not totally effective in alleviating her symptoms. (Id.).

12. At their first meeting, Patient A informed RM that: she was not willing to change her medication at that time because she was leaving on an extended trip to visit her daughter-in-law; she was happy with her primary care physician who was the prescriber of her current long time medication, Effexor, for anxiety and depression; and, she might contact RM in the future if she decided to change her medication at that time. (Id.).

13. During the October 31, 2005 meeting, Patient A also informed RM that she had a pending sexual harassment claim against her former primary care physician (Dr. M.). Patient A presented RM with a manuscript detailing her complaints against Dr. M. (Id.).

14. RM met with the Respondent on the following day. They discussed several of her patients for whom she was prescribing medications. RM also informed the Respondent of her meeting with Patient A and the sexual harassment claim against Dr. M. (Id.).

15. Upon learning of the sexual harassment claim against Dr. M., the Respondent, who knew Dr. M. and had a prior professional relationship with him, advised RM that, if she were to treat Patient A in the future, he could not be involved in that treatment due to a "conflict of interest." The Respondent advised RM further that she should consult with the Clinical Director at Bayview, Dr. David Daniels, in order to arrange for another psychiatrist to supervise RM in prescribing medications to Patient A. He also suggested that RM consider advising Patient A to contact the Massachusetts Psychiatric Association (MPA) for a referral. RM neither consulted with Dr. Daniels nor advised Patient A to contact the MPA. (Id.).

16. On November 1, 2005 at the time of the discussion between RM and the Respondent, there was at least one other psychiatrist and one clinician at Bayview who could have assumed responsibility over RM's treatment of Patient A. (Id.).

17. RM concluded that if the Respondent could not supervise her treatment of Patient A due to the conflict of interest, then she could not be involved in any future treatment of Patient A. (Id.).

18. The Respondent did not advise RM that she could not or should not treatPatient A in the future due to his conflict of interest. (Id.).

19. Because RM had not entered into a treatment relationship with Patient A on October 31, 2005, and she was uncertain whether she would treat Patient A in the future, she did not communicate to Patient A that she would be unable to treat the patient due to the conflict of interest. (Id.).

20. At their next meeting in November 2005, RM informed the Respondent that the matter of Patient A had been resolved because the patient had moved to the Azores to buy a bed and breakfast and that her therapist, the social worker from Bayview, had closed her case. The Respondent heard nothing about Patient A again until June 2006. (Id.).

21. In February 2006, unbeknownst to the Respondent, Patient A contacted RM in order to arrange for a medication consult. RM did not advise the patient of the conflict of interest at that time. Instead, she referred Patient A back to her therapist in order to procure a referral. Patient A's therapist advised her of the conflict of interest in or about April 2006. (Id.).


CONCLUSION

The Petitioner has failed to prove by a preponderance of the evidence that the Respondent violated any BRM regulation or statute in relation to his advising RM that he could not be involved in the treatment of Patient A. The evidence in this case is not reflective of his: engaging in misconduct in the practice of medicine; engaging in conduct that calls into question his ability to practice medicine; or engaging in conduct that undermines the public confidence in the integrity of the medical profession.

The Petitioner has alleged that the Respondent violated 243 CMR 2.10(4)(a)2 in not delegating the treatment of Patient A to another physician. Said section provides:

(4) Development, Approval, and Review of Guidelines for a Nurse Engagedin Prescriptive Practice. A Physician who supervises a nurse engaged in prescriptive practice shall do so in accordance with written guidelines mutually developed and agreed upon with the nurse.
(a) In all cases, the written guidelines shall:
2. Include a defined mechanism for the delegation of supervision
to another physician, including, but not limited to, duration and scope of the delegation;…

There are three sections of the Guidelines For Practice (Exhibit 1) that contemplate and provide for the delegation of supervision of a patient to another physician. The first reference appears in the section entitled "Diagnostic Protocol" and addresses the role of the nurse practitioner in seeking an alternate referral. The final paragraph in this section provides:
If my assessment or case review suggest that a requested treatment is not indicated or the appropriate treatment is beyond the scope of my practice, the patient and the referral source is informed and alternate referrals are suggested…

In the present case, while RM was not in a present nurse/patient relationship with Patient A after their initial consultation, she felt that she could not provide care to Patient A by virtue of the Respondent's conflict of interest. Because her supervisor could not assist her, RM adopted the belief that she herself would not be able to treat Patient A if the patient contacted her at some later date.

herefore, when Patient A contacted RM again in February 2006, it was incumbent upon RM at that time to advise the patient of her inability to provide care and to then provide an alternate referral at that time, in accordance with the paragraph above. The Respondent had no obligation to make an alternate referral at that time himself because he was unaware of the February 2006 communication between Patient A and RM. It should be noted here, however, that the Respondent himself was in compliance with this proviso on November 1, 2005 when he advised RM to contact Dr. Daniels or to refer her to the MPA.

The next reference in the Guidelines For Practice pertaining to the delegation of supervision to another physician may be found in the last paragraph of the section entitled "Emergency Management." This provision reads:
When I am unable to provide direct service to my patients, (vacation, illness, involvement in emergency management of another patient, etc.) necessary services are provided by other members of the clinical team and/or CIT clinicians. Identification of backup service providers is determined according to patient problems.

Implicit in this provision is the intention of the parties to ensure continuity of patient care for Bayview patients under any circumstances via the invoking of appropriate backup service providers who will be responsive to a patient's specific problems. RM did not need to comply with this provision in November 2005 because she was not treating Patient A at that time. However, when Patient A contacted her in February 2006, RM could have contacted Dr. Daniels about assigning another psychiatrist from Bayview, or, she could have approached the Respondent again for a referral. She also could have referred Patient A to the MPA. She did none of these.

The final reference to the delegation of supervision to another physician in the Guidelines For Practice appears in a section entitled "Prescriptive Practice Protocols." The final paragraph provides, in pertinent part:
In order to ensure safe, judicious patient care, as well as to further my clinical expertise, I (3) obtain emergency consultation from CITs DOC and/or another on-site psychiatrist.

While RM's predicament with Patient A, i.e., her belief that she could no longer treat her, was not an emergency in the conventional sense, it was certainly a situation in which care from a psychiatrist other than her supervisor, the Respondent, was warranted. The conflict of interest that prevented the Respondent from being able to supervise any prescriptive practice of RM and Patient A was certainly a situation that warranted a consultation with and eventual assumption of supervision by another on-site psychiatrist. Notwithstanding the Respondent's advice that she contact the Clinical Director, Dr. Daniels, for a reassignment of Patient A's case in February 2006, RM did not pursue this avenue. Nor did she heed another of his suggestions, that of having Patient A contact the Massachusetts Psychiatric Association for a referral.
In rendering the aforestated conclusions about the Respondent's lack of culpability in any wrongdoing, I have credited the Respondent's testimony concerning his having advised RM to speak to Dr. Daniels. Instead of following this advice, she decided for herself, without telling the Respondent or Dr. Daniels, that she could not treat Patient A. Therefore, the mechanism for referral of Patient A to another psychiatrist was never put into place.
In conclusion, there is no factual or legal basis upon which to support the Petitioner's Statement of Allegations against the Respondent. His conduct relative to RM and Patient A did not:
- call into question his ability to practice medicine; constitute misconduct in the practice of medicine; undermine the public confidence in the integrity of the medical profession; or violate any rule or regulation of the board or state statute.

He has argued convincingly that there is no legal or factual basis upon which to warrant any disciplinary action against him. I recommend that the BRM dismiss the Statement of Allegations against Dr. Stearns.


Division of Administrative Law Appeals,
BY:
/s/
________________________________,
Judithann Burke,
Administrative Magistrate

DATED: July 28, 2009