THE COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Dated: March 10, 2010

Suffolk, ss.


Board of Registration in Medicine,


Petitioner

v. Docket Nos. RM-06-241
RM-08-28
RM-08-157

Suzanne B. Rothchild, M.D.,

Respondent


Appearance for Petitioner:

Luz A. Carrion, Esquire

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

Appearance for Respondent:

J. Peter Kelley, Esquire

Foster & Eldridge, LLP
One Canal Park, Suite 2100
Cambridge, MA 02141

Presiding Administrative Magistrate:

Shelley L. Taylor

Successor/Deciding Administrative Magistrate:

Judithann Burke

SUMMARY OF DECISION


The Board of Registration in Medicine has met its burden of proving that the Respondent's treatment of Patients A-I included conduct that: fell below good and accepted medical practice standards; was tantamount to the commission of misconduct in the practice of medicine; undermines the public confidence in the integrity of the medical profession; and, calls into question her competence to practice obstetrics. Accordingly, the BRM has proven that the Respondent violated the statutory and regulatory sections set forth in each of the three Statements of Allegations.


DECISION


Pursuant to G.L. c. 112 §§ 5 and 61-62 and 243 CMR 1.03(5) (a) (3), the Petitioner, Board of Registration in Medicine (BRM), issued on April 12, 2006 an Order to Show Cause why the Respondent, Suzanne B. Rothchild, M.D., should not be disciplined. (RM-06-241). Specifically, the BRM charged in its Statement of Allegations:

A1. Patient A, a 33-year old woman, pregnant with her first child, was admitted to Winchester Hospital in labor on December 23, 2000.
A2. The Respondent assumed coverage and care for Patient at 8:00 AM on December 24, 2000.
A3. The Respondent performed a Cesarean section at approximately 2:33 PM on December 24, 2000.
A4. Patient A's baby suffered meconium aspiration and an entrapped fetal head.
A5. Patient A's baby could not be resuscitated and was pronounced dead.
A6. The Respondent's care of Patient A was below the standard of care.
A7. The Respondent failed to diagnose arrest of dilation in a timely manner.
A8. The Respondent failed to diagnose arrest of descent in a timely manner.
A9. The Respondent failed to recognize that fetal tachycardia with occasional
variable decelerations and no reassuring accelerations on the fetal monitor strips were indicators of a non-reassuring fetal status.
A10. The Respondent failed to intervene with delivery in a timely manner.
A11. The Respondent failed to perform a Cesarean section within a reasonable time.
B1. The Respondent cared for Patient B throughout her pregnancy.
B2. Patient B was admitted to Winchester Hospital in early labor on December 1, 2002.
B3. The Respondent cared for Patient B throughout her labor.

B4. Patient B's fetal monitor showed persistent late decelerations.

B5. Patient B's baby was nonresponsive at birth and suffered severe meconium aspiration syndrome, requiring transfer to Children's Hospital for intervention.
B6. The Respondent's care of Patient B was below the standard of care.
B7. The Respondent failed to recognize or respond to a non-reassuring fetal monitoring strip that was significant for persistent late decelerations.
B8. The Respondent failed to appropriately assess for fetal well being.
B9. The Respondent failed to intervene and deliver the infant at the critical time.
C1. Patient C was a 30-year old woman who was pregnant with her first child.
C2. The Respondent was Patient C's physician throughout her pregnancy.
C3. In June 2002, at 19 weeks gestation, an ultrasound showed that Patient C's
fetus had a two-vessel umbilical cord.
C4. In both July and September 2002, Patient C consulted with a Maternal Fetal Medicine physician at Winchester Hospital for evaluation.
C5. The Maternal Fetal Medicine physician recommended close fetal surveillance during pregnancy and labor, as a two-vessel cord is associated with increased fetal morbidity and mortality.
C6. At 37 weeks of pregnancy, the Respondent discovered that Patient C's fetus was in a breech position.
C7. The Respondent attempted an external version of the fetus in her office, but was unsuccessful.
C8. At 38.5 weeks of pregnancy, Patient C's membranes spontaneously ruptured.
C9. On presentation to Winchester Hospital on December 8, 2002, Patient C's fetus was still in frank breech position.
C10. The Respondent gave Patient C the option of a vaginal breech delivery.
C11. The Respondent failed to advise Patient C of the increased risks associated with vaginal breech delivery of a fetus with a 2-vessel cord.
C12. Patient C consented to have a vaginal breech delivery.
C13. The Respondent gave Patient C medication to initiate labor.
C14. The Respondent inserted Cervadil into Patient C's cervix to initiate labor.
C15. While laboring, Patient C suffered a cord prolapse and the Respondent performed an emergency Cesarean section.
C16. Patient C's baby was delivered with a cord pH of 6.89 and concerns for brain damage.
C17. The Respondent's care of Patient C was substandard.
C18. The Respondent attempted a version in her office instead of the operating room.
C19. The Respondent failed to recognize the increased risk of a two-vessel cord to this infant.
C20. The Respondent failed to intervene with a Cesarean section within thirty minutes of Patient C's fetal monitor strip showing variable decelerations.
C21. The Respondent failed to follow up on a missing Beta strep test and did not know Patient C's Beta strep test at the time of delivery.
D1. Patient D was a 16-year old woman with a past medical history significant
for depression, asthma, smoking and drug use.
D2. The Respondent cared for Patient D throughout her pregnancy and delivery.
D3. Patient D started her prenatal care at about 15 weeks of pregnancy.
D4. A maternal screen of Patent D showed an increased risk for Downe's Syndrome.
D5. On May 13, 2003, Patient D presented in the Respondent's office in premature labor at 34-3/7 weeks gestation.
D6. The Respondent admitted Patient D to the hospital and administered antibiotics and two doses of Terbutaline, to which Patient D did not respond.
D7. Patient D's fetal monitoring strips showed decreased long-term and short-
term variability, and no reactivity.
D8. Patient D's fetal heart rate was flat and exhibited late decelerations.
D9. Patient D delivered an infant weighing 2,150 grams with Apgar scores of 5 and 8.
D10. Patient D's baby was diagnosed with Respiratory Distress Syndrome, sepsis, Grade 2 IVH and possible meningitis.
D11. Patient D's baby required intubation.
D12. The Respondent's care of Patient D was below the standard of care.
D13. The Respondent failed to interpret the fetal monitoring strips correctly and
to intervene appropriately with a Cesarean section.
E1. Patient E was admitted to the hospital in early labor on or about May 10, 2003.
E2. Patient E was fully dilated by 3:00 AM on May 11, 2003.
E3. Beginning at about 6:00 AM, the fetal monitor showed more frequent variables, more prolonged variables, and some loss of variability.
E4. The baseline fetal heart rate increased to 170 beats per minute, sometimes increasing to 190 beats per minute.
E5. By about 9:10 AM, the fetal monitor strip showed absent fetal heart variability and more severe and persistent variable decelerations.
E6. Patient E's infant was delivered at 10:14 AM with cyanosis, muscle flaccidity, and no respiratory effort, with Apgars of 1 and 8.
E7. The Respondent did not obtain a cord pH test.

E8. Patient E's baby required chest compressions and positive pressure ventilation.
E9. The Respondent's care of Patient E was below the standard of care.
E10. The Respondent failed to recognize the significance of the fetal monitor showing decreased variability, persistent variable deceleration and a rising baseline rate.
E11. The Respondent failed to document a plan of care or decision-making
when there were concerns about fetal status.
E12. The Respondent failed to intervene to expedite delivery when there was a
fetus at risk.
E13. The Respondent failed to perform a cord pH despite an Apgar score kf 1.
F1. Patient F was a 27-year old woman, who had delivered one child previously.
F2. Patient F's first pregnancy had been complicated by gestational diabetes,
positive Group B strep, urinary tract infection, and shoulder dystocia during delivery.
F3. The Respondent cared for Patient F throughout this second pregnancy and
delivery.
F4. The Respondent did not request or obtain previous obstetrical records.
F5. The Respondent failed to take an adequate medical history from Patient F.
F6. Patient F came into the hospital in labor on or about April 9, 2000.
F7. The Respondent augmented Patient F's labor with Pitocin.
F8. The Respondent encountered a severe shoulder dystocia during delivery, leading to significant brachial plexus injury in the newborn.
F9. The baby suffered significant permanent injury and disability as a result of the brachial plexus injury.
F10. The Respondent's care of Patient F was below the standard of care.
F11. The Respondent failed to note the history of a shoulder dystocia in Patient F's previous delivery and failed to request or obtain previous obstetrical records.
F12. The Respondent failed to anticipate, manage, and diagnose a likely shoulder dystocia in Patient F.
F13. The Respondent augmented Patient F's labor with Pitocin, which is contraindicated when there is a potential shoulder dystocia.
F14. The Respondent failed to document performance of appropriate maneuvers to displace an impacted shoulder dystocia.


The Respondent filed an Answer to the Statement of Allegations and Request for Hearing on May 4, 2006. She admitted the allegations set forth in paragraphs A1-A4. She denied the allegations set forth in paragraphs A5-A11. She admitted the allegations set forth in paragraphs B1-B3. She denied the allegations set forth in paragraphs B4-B7 and B9. She was unable to admit or deny the allegations set forth in paragraph B8. The Respondent admitted the allegations set forth in paragraphs C1, C3, C4, C6-C15 and C18. She admitted to and denied part of the allegations set forth in paragraphs C5. She denied the allegations set forth in C2, C16-17 and C 19-21. The Respondent admitted the allegations set forth in paragraphs D1-D4, D6-D7, and D9. She denied the allegations set forth in paragraphs D5, D8 and D12-13. She was unable to admit or deny the allegations set forth in paragraphs D10-11. The Respondent admitted the allegations set forth in paragraphs E1-2, E6, and E8. She denied the allegations set forth in paragraphs E 7, E9-10, and E12-13. She was unable to admit or deny the allegations set forth in paragraphs E3-5 and E-11. The Respondent admitted the allegations set forth in paragraphs F1, F3-4, and F6-7. The Respondent denied the allegations set forth in paragraphs F2, F5, F8 and F10-14. The Petitioner was unable to admit or deny the allegations set forth in paragraph F9.

A hearing on the merits pertaining to RM-06-241 was held at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA on February 15-16, March 19 and March 23, 2007. Then Chief Administrative Magistrate Christopher F. Connolly presided. He marked into evidence: Exhibits A-F, the medical records of Patients A-F; and, Exhibits 1-20. Connolly heard the testimony of the following witnesses for the BRM: Patient A; the Respondent, Suzanne Rothchild, M.D.; Patrick Nugent, M.D., the BRM's expert in obstetrics; Michelle P. Johnson, Chief of the Obstetrics Department at Winchester Hospital from 2001-2003; Maureen Mulcahy-Paone, staff nurse in labor and delivery at the Winchester Hospital; and, Peter Rotolo, M.D., Chairman of the Obstetrics Department at Winchester Hospital from 1997 through 2005.

On March 23, 2007, the BRM received a copy of a Notice of Taking Deposition and Subpoena that the Respondent had served on the Winchester Hospital. The subpoena sought the records of four patients who were not subjects of the Statement of Allegations. Over the BRM's objection, the Chief Magistrate ordered the BRM to produce those medical records. On March 29, 2007, the BRM filed a Motion for Reconsideration of the Order to Produce Medical Records or, in the Alternative, for Leave to Take an Interlocutory Appeal pursuant to Standing Order 91-1. Connolly denied the Motion for Reconsideration and allowed the Alternative Motion to Take an Interlocutory Appeal on April 12, 2007. On June 20, 2007, the BRM considered the interlocutory appeal and vacated Connolly's order to produce the medical records.

On January 9, 2008, the BRM issued a second Statement of Allegations against the Respondent alleging that she provided substandard care to two patients. (RM-08-28).

The BRM charged:

G1. On or about October 20, 2001, Patient G was a 30-year old, insulin dependent, diabetic female, who was at 36 6/7 weeks gestation.
G2. Patient G began her obstetrical care with the Respondent, for the instant
pregnancy, on or about April 13, 2001.
G3. Patient G saw the Respondent for regular pre-natal visits between April 13, 2001 and October 19, 2001.
G4. Patient G had elevated blood sugars levels at various times between April 2001 and October 2001.
G5. The Respondent knew that Patient G's blood sugar was greater than 300 mg/DL on or about October 12, 2001.
G6. The Respondent knew that Patient G's blood sugar was greater than 300mg/DL on October 19, 2001.
G7. On or about October 19, 2001, the Respondent diagnosed an intrauterine
fetal demise in Patient G.
G8. Patient G was admitted to the Labor and Delivery Unit of Winchester Hospital on or about October 19, 2001 at approximately 1545,
G9. Between October 19, 2001 at 1710 and October 20, 2001 at 2343, Patient G had temperatures up to 103.6 degrees, shaking, chills, nausea, vomiting, diarrhea, leg cramps, and pain associated with labor.
G10. Between October 19, 2001 at 1710 and October 20, 2001 at 2343, Patient G was monitoring her own blood glucose levels and self-medicating with insulin via the transfusion pump. On or about October 20, 2001 at 2343, Patient G delivered her deceased fetus.
G11. The Respondent's pre-natal care of Patient G was substandard in that she failed to co-manage Patient G's pregnancy with a maternal fetal specialist.
G12. The Respondent's prenatal care of Patient G was substandard in that she failed to coordinate Patient G's diabetic care with Joslin Clinic specialists.
G13. The Respondent failed to timely admit Patient G to the hospital for management of high blood sugars.
G14. The Respondent failed to manage Patient G's insulin throughout Patient G's labor.
G15. The Respondent failed to order supplemental intravenous fluids for Patient G.
G16. The Respondent's care of Patient G during her labor and delivery was substandard in that she failed to manage Patient G's insulin.
G17. The Respondent's care of Patient G during her labor and delivery was substandard in that the Respondent failed to order intravenous fluids for Patient G.
H1. Patient H was admitted to Winchester Hospital on or about May 13, 2004 at 2308.
H2. On or about May 13, 2004, Patient H was in early labor at 38 6/7 weeks gestation with her first pregnancy.
H3. The Respondent was the obstetrician on-call for Patient H.
H4. At 1344, the Respondent performed artificial rupture of membranes for Patient H. Patient H's amniotic fluid was stained with a moderate amount of particulate meconium.
H5. Patient H was fully dilated and pushing at 1436.
H6. On May 14, 2004, between 1524 and 1547, Patient H's fetal heart monitor (FHM) displayed variable decelerations and decreased variability.
H7. On May 14, 2004, between 1550 and 1622, there were variable decelerations with increased depth and decreased beat to beat variability from 1630 until delivery.
H8. On May 14, 2004 at 1551, a nurse notified the Respondent that there was no fetal heart variability.
H9. On or about May 14, 2004, in an un-timed progress Note, the Respondent documented that she offered Patient H forceps to effect flexion of the fetus' head under the pubic bone.
H10. On or about May 14, 2004, in the same un-timed Progress Note as described above, the Respondent documented that Patient H assented to the forceps procedure.
H11. On May 14, 2004, after applying the forceps, the Respondent encountered a shoulder dystocia of the fetus.
H12. Patient H's baby suffered a brachial plexus injury and Patient H suffered a
4th degree laceration.
H13. The Respondent's care of Patient H fell below the standard of care in that she failed to assess the FHM tracings and develop a plan regarding non-reassuring fetal heart activity.
H14. The Respondent's care of Patient H failed to note the times in her medical record documentation.
H15. The Respondent failed to document the position of Patient H's baby's head prior to the application of the forceps.
The Respondent Filed an Answer to the second Statement of Allegations on January 30, 2008. She admitted to the allegations set forth in paragraphs G1-G2, G4 and G6. She admitted the allegations concerning the dates of the prenatal visits set forth in paragraph G3. She denied the remaining allegations in paragraph G3. The Respondent
admitted to knowing the blood sugar levels of Patient G as set forth in paragraphs G5 and

G6. She denied the remaining allegations set forth in paragraphs G5 and G6. The Respondent admitted to the date of admission of Patient G to the hospital and the intrapartum conditions of Patient G as well as the delivery of Patient G's
deceased fetus as set forth in paragraphs G8-G10. She denied the remaining allegations in paragraphs G8-G10. The Respondent denied the allegations set forth in paragraphs G11-G17. The Respondent was unable to admit or deny the allegations set forth in paragraphs H1-H3, H5-H10 and H14-H15. She admitted the allegations set forth in Paragraph H4. She admitted to encountering shoulder dystocia as set forth in paragraph H11, but denied the remaining allegations set forth therein. The Respondent denied the allegations set forth in paragraphs H12-13.

In early 2008, then-Chief Administrative Magistrate Shelly Taylor assumed control over cases RM-06-241 and RM-08-28 after Chief Magistrate Connolly departed from DALA. The parties agreed to have Taylor continue the hearing in progress rather than re-commence an all-new hearing.

On March 12, 2008, the BRM issued an Order for Temporary Suspension of the
Respondent's license to practice medicine pending a hearing on the merits. On that same date, the BRM also issued an Amendment to the Statement of Allegations, RM-08-157.

The BRM charged:

I1. Patient I was a 32 year old female who was admitted to Winchester Hospital in labor on March 10, 2007 at approximately 9:08 AM.
I2. The Respondent assumed coverage and care for Patient I on March 10, 2007.
I3. The Respondent delivered Patient I's baby on March 10, 2007 at approximately 1:38 PM.
I4. Patient I's baby was born flaccid and pale with no signs of respiratory effort. The umbilical was flat, empty of blood.
I5. Patient I's baby was transferred to Children's Hospital.

I6. Patient I had suffered placental abruption.
I7. The Respondent failed to perform the appropriate fetal monitoring during Patient I's labor.
I8. The Respondent failed to provide the appropriate level of assistance to the nurse during Patient I's labor.
I9. The Respondent failed to develop a plan for expedited delivery.
I10. The Respondent failed to intervene in a timely manner.
I11. The Respondent failed to order the Kleihuer-Betke test in a timely manner.
I12. The Respondent failed to meet the standard of care with regard to Patient I.
The Respondent appealed the Order for Temporary Suspension on March 14, 2008. Taylor conducted a hearing on that appeal on March 18, 2008.

The hearing on the merits was scheduled to continue on March 26 and 27, 2008.

On March 25, 2008, the Respondent filed a Motion to Continue the Hearing Pending Decision of Appeal of Summary Suspension, which was denied by Taylor. The hearing on the merits pertaining to Docket No. RM-06-241 was held on March 26 and 27, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. The Chief Magistrate heard additional testimony from Patrick Nugent, M.D. and testimony from Patient C. The Respondent presented the testimony of her expert witness in obstetrics, Alan Pinshaw, M.D. Exhibits 21-22 were marked.

On April 7, 2008, Taylor issued a Recommended Decision on the Summary Suspension upholding the BRM's Order of Temporary Suspension. She denied the BRM's Motion in Limine to limit the evidence presented on March 18 appeal to the same evidence the BRM considered at the hearing on the summary suspension that was held at the BRM.

The Respondent filed her Answer to the Amended Statement of Allegations on June 12, 2008. On July 3, 2008, Taylor allowed the BRM's Motion to Consolidate Docket Nos. RM-06-241, RM-08-28 and RM-08-157. The hearing on the merits resumed on October 21, 2008 and was continued to November 6, 2008 when it
concluded. Taylor marked Exhibits Z1-Z10 and 23-29. She also heard additional testimony from Drs. Nugent and Pinshaw and the Respondent, Dr. Rothchild.
All of the proceedings were stenographically recorded. The record was left open for the filing of post-hearing Proposed Findings of Fact and Conclusions of Law. The last of these submissions was received on January 13, 2009.

After Chief Magistrate Taylor's departure from DALA, a status conference was held on January 21, 2010. It was agreed that, due to Chief Magistrate Taylor's unavailability to issue a decision on the merits in the above-numbered cases, Administrative Magistrate Judithann Burke would serve as successor magistrate and decide the case on the current record in accordance with 801 CMR 1.01(11)(e). An Order and Summary of the Status Conference was issued to the parties on January 21, 2010. An inventory of the record was sent to the parties on January 22, 2010.

FINDINGS OF FACT

Based upon a review of all of the evidence and written submissions that comprise the record in this case, I hereby render the following findings of fact:

1. The Respondent, Suzanne B. Rothchild, M.D., was born on December 28, 1948 and graduated from the State University of New York (SUNY) Downstate Medical Center in 1973. She became board-certified in obstetrics and gynecology in 1979. In 1981, she became certified in maternal/fetal medicine, the care of high-risk pregnant women and fetuses at risk for complications. The Respondent was initially licensed to practice medicine in Massachusetts under certificate of registration number 39314 in the year 1976. (Stipulation).

2. The Respondent had a private practice in obstetrics and gynecology and, until April 2004, she had privileges at both Winchester Hospital and Hallmark Health System. (Id.).

3. Patient A, a 33-year old woman pregnant with her first child, was admitted to Winchester Hospital in labor on December 23, 2000. Her membranes had spontaneously ruptured. Patient A's estimated date of delivery was December 19, 2000. Dr. Fullerton attended to Patient A from her admission until the next day, December 24, 2000 at 8:00 AM. (Id.).

4. At about 7:00 AM on December 24, 2000, Dr. Fullerton had examined Patient A and learned that she had been pushing for about 2.5 hours. Dr. Fullerton's exam revealed that Patient A was not fully dilated, had an anterior lip, and was still at 1+ station. The doctor also noted that the infant was in a vertex, occiput posterior position and that Patient A no longer felt pressure to push. (Exhibit A).

5. Dr. Fullerton's plan of care prior to transferring Patient A to the Respondent was to have her rest for one hour and then increase the Pitocin to 30 milliunits per minute. He documented same in the medical record. Dr. Fullerton discussed with Patient A the need for an operative delivery by Cesarean section if Patient A pushed for a total of 3 to 3.5 hours without descent. (Id.).

6. When the Respondent assumed care of Patient A at 8:00 AM on December 24, 2000, Patient A still had an anterior lip and was 100% effaced. She had been resting and pushing off and on, inefficiently, for approximately two hours. The fetal heart monitor indicated that at or around 8:00 AM, Patient A's baby had developed an elevation in heart rate and was in fetal tachycardia. (Exhibit A Patient A and Rothchild Testimony).

7. The Respondent reassessed Patient A's condition some time around 11:30 AM or noon. By then, Patient A had been fully dilated since approximately 9:30 AM, she had been 100% effaced for over 12 hours and she was at a +1 station for about four hours. The anterior lip had resolved. The Respondent and Patient A spoke at the time and a Cesarean section was discussed. The Respondent told Patient A to rest and that they would reassess later. The Respondent then went to lunch. (Patient A, Rothchild and Nugent Testimony).

8. The Respondent never reviewed the medical record or the fetal monitoring strip after she assumed care of Patient A. (Rothchild Testimony).

9. The Respondent next evaluated Patient A at 1:30 PM. At this time, the Respondent noted that Patient A was still at a +1 station. (Exhibit A).

10. Patient A's baby was finally delivered at 2:55 PM. Upon entering the uterus, the Respondent noted meconium stained fluid. The baby was wedged in Patient A's pelvis and had to be pushed up from the vagina area. The baby was pronounced dead at 3:47 PM after 45 minutes of resuscitative efforts. (Id. and Patient A, Rothchild and Nugent Testimony).

11. The cause of Patient A's baby's death was determined to be "meconium aspiration." The pathologist determined that the aspirated meconium was approximately three hours old. (Exhibit A).

12. The medical records kept by the Respondent of her treatment of Patient A do not indicate the time of the entries. (Exhibit A and Rothchild Testimony).

13. The Respondent deviated from the standards related to management of a protracted active phase of labor. (Exhibits 9 and 13).

14. The Respondent failed to intervene with delivery in a timely manner. (Nugent and Johnson Testimony).

15. In December 2001, Hallmark Health System initiated concurrent monitoring of the Respondent's cases for one year for timeliness of response, patient coverage and appropriate documentation. (Respondent's Answer to Statement of Allegations).

16. The Respondent cared for Patient B throughout her pregnancy and admitted her to Winchester Hospital in early labor at 11:12 PM on November 30, 2002.
At that time, Patient B was 26 years old and pregnant for the first time. (Stipulation).

17. The Respondent examined Patient B at approximately midnight on December 1, 2002. She determined that Patient B's cervix was 2-cm dilated, her pelvis was adequate for delivery, and that the infant weighed approximately 6.8 pounds. (Id.).

18. During the early morning hours of December 1, 2002, the fetal heart monitor showed many variable decelerations that suggested cord compression. At
5:13 AM, there was no variability, indicating that Patient B's baby could be in distress.
By 9:00 AM the readings were back to baseline. (Rothchild Testimony).

19. The Respondent ruptured Patient B's membranes at approximately 1:22 PM on December 1 and observed meconium stained fluid. This was indicative of the fetus's low reserve to tolerate labor. (Id.).

20. The Respondent had noticed that Patient B's fetal monitoring strip readings were non-reassuring. She failed to recognize and act on these non-reassuring strips from and after the early morning readings. (Id.).

21. Patient B began pushing at 3:45 PM and the baby was delivered at 4:57, more than three hours after the Respondent observed the meconium stained fluid.
The Respondent noted that, upon delivery, the infant was "stunned" with no spontaneous respiratory effort. The baby was born hypotonic, cyanotic and with poor respiratory effort. Patient B's baby was diagnosed with meconium aspiration syndrome.
The baby required transfer to Children's Hospital. (Exhibit B, Stipulation, Respondent's Answer and DALA Recommended Decision on Motion for Summary Suspension, Expert Opinion Testimony, paragraph 5).

22. The Respondent did not intervene in a timely manner to deliver Patient B's baby. (Nugent Testimony).

23. The Respondent failed to adequately monitor and manage Patient B's delivery. (Id. and Exhibits 1 and 11).

24. In January 2003, the Winchester Hospital disciplined the Respondent for
inadequate investigative techniques to prove fetal well-being. Winchester Hospital also required the Respondent to complete a course in fetal monitoring. (Exhibit 1).The Respondent's failure to "adequately monitor and manage " Patient A
and Patient B led to the 2003 disciplinary action by Winchester Hospital. The Respondent's peers in the Obstetrics-Gynecology Department at Winchester Hospital rated the Respondent's "failure to adequately monitor and manage" Patient A and B as a "Level 3", which denotes "a significant departure from the standards of care with actual or potential patient injury." (Id.).

25. Patient C was a 30 year old woman in her first pregnancy in 2002. The Respondent provided prenatal care to Patient C beginning in June 2002 at 19 weeks gestation. An ultrasound performed on Patient C in July 2002 showed that her fetus had a two-vessel umbilical cord. (Exhibit C and Stipulation).

26. Patient C consulted with a Maternal Fetal Medicine Physician at Winchester Hospital in July and September 2002. This doctor recommended close fetal surveillance during pregnancy and labor, as a two-vessel cord is associated with, among other things, intolerance to labor and low Apgar scores. (Exhibit C and Rothchild Testimony).

27. At 37 weeks gestation, Patient C's fetus was in a frank breech presentation. The Respondent attempted an external cephalic version of the fetus in her office, but was unsuccessful and the baby remained in a frank breech presentation. (Stipulation).

28. The Respondent should have performed the external cephalic version in a hospital or a place where an emergency Cesarean section could be performed if the fetus became distressed. The fetal heart rate needed to be monitored when being turned by the physician in order to ensure that the fetus was not having a deceleration. (Nugent Testimony and Exhibit 7).

29. The Respondent failed to insure the well-being of Patient C's baby by performing the external cephalic version in her office without proper monitoring of the fetus's status and without the ability to perform an emergency Cesarean section if required. (Id., Exhibit C and Nugent Testimony).

30. At 38 weeks gestation, Patient C's membranes spontaneously ruptured. On presentation to Winchester Hospital on December 8, 2002 at approximately noon, Patient C's fetus was still in a frank breech position. The Respondent gave Patient C the option of a vaginal breech delivery. Patient C consented to have a vaginal breech delivery and the Respondent inserted Cervadil into Patient C's cervix to initiate labor. (Exhibit C and Testimony).

31. A nurse's note at 3:50 PM reflects that Patient C was informed of her options for labor and delivery and wanted a vaginal delivery. (Exhibit C).

32. While laboring, Patient C suffered a cord prolapse, a known complication
with breech presentations. Some time just after midnight on December 9, 2002, the Respondent then performed an emergency Cesarean section with the assistance of Dr. Rotolo. Patient C's baby emerged limp, blue, without spontaneous respirations and had to be resuscitated. The baby was transferred to Children's Hospital with the presumptive diagnoses of: aspiration pneumonia and possible seizure activity. Patient C's baby has since been diagnosed with cerebral palsy. (Id.).

33. The Respondent's care of Patient C was substandard in that she allowed Patient C to attempt a vaginal breech delivery without ideal conditions. (Nugent Testimony).

34. The Respondent did not appropriately obtain informed consent from Patient C to attempt a vaginal breech delivery without ideal conditions. The Respondent did not appropriately obtain informed refusal from Patient C for a cesarean section. The Respondent did not document the reasons for refusal or what she told Patient C about the risks associated with vaginal breech delivery, particularly with the presence of a two-vessel cord. The Respondent did not obtain appropriate consent for a vaginal breech delivery and failed to advise Patient C of the increased risks associated with vaginal breech delivery of such an infant. (Id.).

35. Patient D was a 16-year old woman who was in her first pregnancy in 2002. Her past medical history was significant for depression, asthma, smoking and drug use. She continued these behaviors throughout her pregnancy. Patient D's estimated due date, by ultrasound, was June 12, 2003. (Exhibit D, Stipulation and DALA Recommended Decision on Summary Suspension, Admitted Fact d).

36. The Respondent provided prenatal care to Patient D. Patient D presented
to the Respondent's office on May 13, 2003 at 34 3/7 weeks gestation complaining of pain on urination. Her urinalysis was negative for blood and infection. (Stipulation).

37. At 7:00 PM on May 13, 2003, Patient D was admitted to the Winchester Hospital in premature labor. Upon admission, the Respondent administered antibiotics and two doses of Terbutaline, a tocolytic used to stop labor. Patient D did not respond to the Terbutaline. (Stipulation and Rothchild Testimony).

38. Trying to stop labor at 34 weeks gestation and with a question of infection
would be more risky than allowing labor to continue. Allowing the baby to stay in labor too long in the uterus under these circumstances could have an increased risk of fetal jeopardy, cerebral palsy, fetal distress and fetal infection. (Exhibit D and Rothchild Testimony).

39. At the time of Patient D's labor, the Respondent was under the monitoring agreement imposed as a result of the first disciplinary action related to Patients A and B. (Exhibit 4).

40. Patient D's fetal monitor strips showed decreased long-term and short-term variability, no reactivity and exhibited late decelerations. At around 7:30 PM, the fetal monitoring strip started to show decreased fetal variability, both long and short term, some decelerations and tachycardia. (Exhibit D and Rothchild Testimony).

41. At approximately 11:35 PM, the nurse discussed the still non-reassuring
strip with the Respondent and the Respondent refused to intervene. It was at that point that the nurse went up the chain of command. The nurse made contact with a Dr. Johnson at approximately 11:41 PM. The Respondent spoke with Dr. Johnson via telephone at that time. The Respondent told Dr. Johnson that Patient D had started to make progress and that her plan of care was to wait one hour and then rupture the patient's membranes if there was no progress. Dr. Johnson agreed with the plan. (Exhibits D and 4 and Johnson and Rothchild Testimony).

42. The fetal monitoring strip was non-reassuring from 7:30 PM up through at least 11:59 PM. The nurse contacted Dr. Johnson again around midnight and the doctor again spoke with the Respondent. The two decided that the Respondent was going to re-evaluate Patient D's cervix again in one hour and either rupture the membranes or decide to deliver the baby. At 12:48 AM, she ruptured Patient D's membranes. She noted clear fluid. (Id.).

43. At 1:31 AM, the strip was showing loss of short-term and long-term variability. This continued until 2:06 AM. At 2:14 AM, the baby was not responding to scalp stimulation. Patient D was fully dilated at around 3:00 AM. At that time, the strip was showing persistent variables with a late component, possible signs of acidima or hypoxia. (Exhibit D and Nugent Testimony).

44. At around 3:34 AM, the strip showed more consistent variables and was losing the baseline, which indicated the possibility that the baby was continually lacking the opportunity to recuperate from the stress of labor. At approximately 3:43 AM, the strip showed overshoots, which could indicate that the baby was overcompensating and not able to react to continuous contractions. (Id.).

45. Patient D delivered her baby vaginally at approximately 3:56 AM on May 14, 2003. The baby was limp and blue and required oxygen, positive pressure ventilation and intubation. Patient D's baby was diagnosed with Respiratory Distress Syndrome, sepsis, Grade 2IVH and possible meningitis. (Exhibit D).

46. The Respondent's care of Patient D was below the standard of care in that
she failed to intervene appropriately and timely. Based upon the strip readings that werei indicative of distress for several hours, the Respondent should have considered a Cesarean section sometime around 8:00 PM on May 13, 2003. (Nugent Testimony).

47. Patient E was 25 years old and pregnant with her first baby in 2003. Her estimated due date was May 8, 2003. The Respondent provided prenatal care to Patient E. (Stipulation).

48. Patient E was admitted to Winchester Hospital in labor at 8:03 PM on May 10, 2003 at 40.3 weeks gestation. By 3:00 PM on May 11, 2003, Patient E was fully dilated. (Id. and Exhibit E).

49. At around 5:30 PM on May 11, the fetal monitoring strip was showing some variables, but was reassuring. At around 6:00 PM, Patient E's baby's well being started to become compromised. Patient E had been pushing for three hours and the baby was exposed to a fever. Patient E's membranes spontaneously ruptured at 6:30 PM and clear fluid was noted. (Id. and Nugent Testimony).

50. Patient E was pushing with no real effort, and, around 7:00 PM, the strip showed persistent and deeper variables with a slow rise back. The strip was not reassuring at that time. At 8:03 PM, the strip showed a prolonged variable which could mean that the umbilical cord was wrapped around some part of the baby's anatomy or between the baby and the uterus. (Rothchild and Nugent Testimony).

51. At around 8:30 PM on May 11, 2003, Patient E had been fully dilated for six hours. This time period was off of the Friedman curve by 3 hours. The baby was continuing to have a non-reassuring strip. The strip showed variables with a late component, a possible indication of insufficient flow of oxygen to the baby. (Rothchild Testimony).

52. At around 9:10 PM, Patient E wanted the baby to be pulled out and did not want to push any longer. At around 9:14 PM, the fetal monitor strip showed persistent variable decelerations with overshoots. By 10:06 PM, Patient E had been fully dilated for 7.5 hours and the strip continued to be concerning with no long term or short term variability or overshoots, signs that the baby might be acidotic and hypoxic and in jeopardy of dying in labor. (Exhibit E and Nugent Testimony).


53. Patient E's baby was finally delivered at 10:14 PM on May 11, 2003
hypotonic (no tone), cyanotic (not breathing) and with muscle flaccidity with Apgar scores of 1 and 8. The baby required chest compressions and positive pressure ventilation. (Exhibit E).

54. The Respondent's care of Patient E was below the standard of care in that
she failed to recognize fetal compromise and intervene in a timely and adequate manner by not considering a Cesarean section at around 8:00 PM.

55. The Respondent failed to document a plan of care or decision-making when she allowed Patient E to go off of the labor curve with a non-reassuring strip. (Id.).

56. Patient F, a 27 year old woman, was in her second pregnancy. The Respondent cared for her throughout the second pregnancy and delivery. The Respondent did not obtain Patient F's previous obstetrical records. (Respondent's Answer to Statement of Allegations).

57. Patient F came into the hospital in labor on April 9, 2000. The Respondent augmented the labor with Pitocin. The Respondent encountered a severe shoulder dystocia in the infant during the delivery. This led to a significant brachial plexus injury in the newborn. (Id. and DALA Recommended Decision on Summary Suspension, Admitted Fact f).

58. The Respondent met the standard of care in planning for vaginal delivery and she adequately managed the shoulder dystocia that was encountered. (Nugent Testimony).

59. Patient G was an insulin-dependent diabetic who was a patient of the Respondent's since 1995. She suffered a miscarriage in 1999. She became pregnant again in 2001 at the age of 30. She continued seeing the Respondent for her prenatal care and she went to the Joslin Clinic for management of her diabetes. (Exhibit 23 and Rothchild and Nugent Testimony).

60. Control of blood sugar levels during pregnancy is critical, especially late in the pregnancy. Diabetes during pregnancy is a high risk situation. Patients who are already diabetic prior to pregnancy have a higher risk of miscarriage, congenital abnormalities and other complications. (Nugent Testimony).

61. Patient G used an insulin pump during her second pregnancy. This is a
better way of treating an insulin-dependent patient. (Id.).

62. Patient G had elevated blood sugar levels at various times between April 2001 and October 2001. On April 26, the Respondent noted that Patient G's blood sugars were "still erratic." On May 14, the Respondent noted that Patient G's blood sugars were "creeping up." On May 29, the patient's blood sugars were under better control. Patient G's blood sugars remained under control until September 4, 2001 when her glucose was elevated to 192. (Exhibit 23).

63. On October 12, 2001 at 35 weeks gestation, the Respondent noted that Patient G had a pump malfunction the previous evening and that her blood sugars were greater than 300. The Respondent ordered a biophysical profile, which indicated that the baby was doing well. The Respondent did not admit Patient G to the hospital or maintain close follow up of the significantly elevated blood sugars. The Respondent did not contact the Joslin Clinic to inquire whether they were managing the patient's malfunctioning insulin pump or watching her blood sugar levels. The Respondent sent the patient home. (Id. and Nugent Testimony).

64. Patient G returned to the Respondent's office on October 19, 2001, one week later. At that time, the Respondent diagnosed an intrauterine demise. The patient was admitted to the Labor and Delivery Unit of the Winchester Hospital at 6:16 PM on that date. (Exhibit 23).

65. During her labor and delivery on October 19 and 20, 2001, Patient G's
insulin was out of control and the Respondent told her to contact the Joslin Clinic. Between 9:10 PM on October 19 and 11:43 PM on October 20, 2001, Patient G had temperatures up to 103.6 degrees, chills, nausea, diarrhea, leg cramps and pain associated with labor. She was also shaking and vomiting. Also during this period, she was monitoring her own blood sugar glucose levels and self-medicating with insulin via the infusion pump. When Patient G's husband inquired about the need to adjust the basal rate of the pump, the Respondent indicated that the couple should contact the Joslin Clinic. At 11:43 PM on October 20, 2001, Patient G delivered her deceased baby. The Respondent then reported the infant's death as a cord accident, notwithstanding the paucity of evidence to support this conclusion. (Id.).

66. The Respondent's care of Patient G was substandard in that she failed to manage Patient G's insulin throughout Patient G's labor or find someone at the hospital who could manage insulin. There were concerns for risk of maternal bleeding with intrauterine fetal demise and the risk of uterine rupture. The Respondent should have managed Patient G more closely. (Nugent Testimony and Exhibit Z1).

67. When Patient G had a high blood sugar reading of 300 at 35 weeks gestation and her insulin pump was malfunctioning and not ensuring adequate control during the critical stage of her pregnancy, the Respondent should have either admitted Patient G or maintained close follow up of her during the final weeks of her pregnancy.The one-week follow up was too late. (Id.).

68. In January 2003, Winchester disciplined the Respondent for inadequate investigative techniques to prove fetal well-being. The hospital also required the Respondent to complete a course of fetal monitoring. (Exhibit 1).

69. The following year, in February 2004, the Respondent's malpractice carrier, ProMutual Group (ProMutual), imposed a Secondary Remedial Action against the Respondent that included a surcharge, practice restrictions, and limitation of her practice to one hospital only. (Id. and Respondent's Answers to Statement of Allegations).

70. Patient H was a 28-year old female who was pregnant for the first time.
She was admitted to Winchester Hospital on May 13, 2004 at 11:08 PM in labor at 39 weeks gestation. The Respondent was the physician on-call for Patient H. (Exhibit 24).

71. On May 14, 2004, in an un-timed progress note, the Respondent documented that she offered Patient H forceps to effect flexion of the fetus' head under the public bone. In the same un-timed progress note, the Respondent documented the station as "VTX+3/+4". (Exhibit 24).

72. In another un-timed progress note, the Respondent documented that forceps were applied at "low station." After applying the forceps, the Respondent encountered a shoulder dystocia of the fetus. Patient H's baby suffered a brachial plexus injury and Patient H suffered a 4th degree laceration. (Id.).

73. The peer review committee at the Winchester Hospital found that the Respondent's documentation of the station as "low" was a minor to moderate deviation from the practice standards. Dr. Nugent concluded that the Respondent did not deviate from the standard of care with regard to Patient H; however, her inadequate documentation was problematic. Documentation in shoulder dystocia cases is very important. (Exhibit Z3 and Nugent Testimony).

74. On February 15, 2007, the Respondent testified before then-Chief Magistrate Connolly that she had been intervening sooner in her obstetrics cases and that she had not had any problems since undergoing retraining. (Rothchild Testimony).

75. On March 10, 2007, the Respondent attended to Patient I's labor and delivery. Patient I, 32 years of age, was admitted to the Winchester Hospital at 9:08 AM, in labor during her third pregnancy. She had received prenatal care from another physician. Her labor was uncomplicated until 12:54 PM. (Exhibit 25).

76. Early in the afternoon, there was a drastic change in Patient I's circumstances. Patient I began writhing in pain, asking for pain medication and not tolerating labor. The fetal monitoring strip drastically changed from reassuring to non-reassuring with loss of short-term and long-term variability. The Respondent planned to offer phenergan for anxiety and rupture the patient's membranes at the point in time when Patient I regained control. The Respondent did not place an internal monitor lead on the baby at the time of the drastic change. At around 1:25 PM, the Respondent ruptured Patient I's membranes and left the room. She was quickly called back in by a nurse. When the Respondent returned at 1:29 PM, she noted bloody fluid trickling over the perineum. (Id.).

77. Patient I's baby was delivered at 1:38 PM. The baby was born flaccid and pale with no signs of respiratory effort. The umbilical cord was flat, empty of blood. Patient I had suffered a placental abruption. (Id.).

78. The Respondent failed to meet the standard of care with regard to Patient I. The Respondent failed to perform appropriate fetal monitoring during Patient I's labor and failed to intervene in a timely manner by developing a plan for expedited delivery. She should have had a plan for expedited delivery by 1:00 PM and instead opted to give the patient the phenergan and waiting in this case where there were signs of an obstetrical emergency. There had also been several calls from the nurse that went unanswered prior to the delivery. (Nugent and Pinshaw Testimony).

79. In October 2007, ProMutual imposed another Secondary Remedial Action.
This time, ProMutual decided that it would not provide malpractice coverage to the Respondent's practice of obstetrics. (Exhibit 26).

80. The Respondent's substandard care of Patient I led to a third hospital disciplinary action. In November 2007, Winchester Hospital disciplined the Respondent for failing to perform appropriate fetal monitoring, assess the results of fetal monitoring and provide the appropriate level of assistance to the nursing staff. The Winchester Hospital requested that the Respondent take another course in fetal monitoring. (Exhibits 1 and Z4).

CONCLUSION AND RECOMMENDED DECISION

After a thorough review of all of the evidence in this case, I have concluded that
the BRM has met its burden of proving that the Respondent's treatment of Patients A-I included conduct that: fell below good and accepted medical practice standards; was tantamount to the commission of misconduct in the practice of medicine; undermines the public confidence in the integrity of the medical profession; and, calls into question her competence to practice obstetrics. Accordingly, the BRM has proven that the Respondent violated the statutory and regulatory sections set forth in each of the three Statement of Allegations.

Substandard Care and Malpractice

The care rendered by the Respondent to her obstetrics patients fell below the standard of care on repeated occasions. Her care of Patients A-E, G and Patient I fell short of good and accepted medical practice standards, in violation of G.L. c. 112 § 5¶ 9(c) and 243 CMR 1.03(5)(a)3.

G.L. c. 112 § 5 ¶ 9 (c) provides, in pertinent part:
The board may, after a hearing pursuant to chapter 30A, revoke, suspend, or cancel the certificate of registration, or reprimand, censure, impose a
fine not to exceed ten thousand dollars for each classification of violation,
require a course of education or training or otherwise discipline a physician registered under said sections upon proof satisfactory to a majority of the board that said physician:-

(c) is guilty of conduct which places into question the physician's
competence to practice medicine, including but not limited to gross misconduct in the practice of medicine or of practicing medicine fraudulently, or beyond its authorized scope, or with gross incompetence,
or with gross negligence on a particular occasion or negligence on repeated occasions… (Emphasis added).

In the case of Patient A, the Respondent failed to appropriately assess and recognize the arrest of dilation and the arrest of descent in a timely manner, resulting in a very protracted active phase of labor that placed the unborn fetus at great risk. The Respondent did not follow the medical plan or carefully review the treatment notes of the physician who had immediately preceded her in caring for Patient A at the Winchester Hospital. Further, she failed to recognize that, when she first saw this patient at 8:00 AM, the fetal monitor indicated that the baby had developed an elevation in heart rate and was in fetal tachycardia. In fact, she did not read or heed the fetal monitoring strips at any time during Patient A's labor. Her failure to recognize all of the indicators of fetal vulnerability resulted in the extreme delay in delivery of the baby by Cesarean section. This unreasonable lack of skill and/or utter lack of professional concern had dire consequences for Patient A and her infant. The BRM is correct in its contention that this failure to follow good and accepted medical practice standards also warrants discipline for malpractice within the meaning of G.L. c. 112 § 61 ¶ 1. D'Amour v. Board of Registration in Dentistry, 567 N.E.2d 1226, 409 Mass. 572 (1991) and Probst v. Board of Registration of Psychologists, 62 Mass. App. Ct. 1102 (2004).

The Respondent failed to adequately monitor Patient B's labor and delivery. She did not demonstrate the ability to render proper medical care to this patient and her unborn child when the fetal monitoring strips showed persistent decelerations and were continuously non-reassuring. Her care of Patient B was substandard in that the Respondent failed to appropriately assess for fetal well-being and to intervene and deliver the infant at the critical time. Her treatment of Patient B also warrants discipline for medical malpractice. D'Amour, supra, Probst, supra.

The Respondent knew that Patient C's fetus had a two-vessel cord, a condition associated with increased fetal morbidity and mortality. The Respondent also knew that the fetus was in a frank breech position. Yet, the Respondent undertook an attempted version of the infant in her office, away from fetal monitoring equipment and an operating room where she would have been able to perform a Cesarean section should the fetus become distressed or any other obstetrical emergency arise. Then, during Patient C's labor, the Respondent failed to acknowledge and communicate effectively to Patient C that there were increased risks with a vaginal delivery of a breech infant with a two-vessel cord. The consequences to Patient C and her baby were dire and life-altering. The Respondent's care of Patient C was substandard in that she failed to recognize the risk of a two-vessel cord to the infant and she failed to intervene with a Cesarean section within thirty minutes of the fetal monitor showing variable decelerations. The Respondent's actions in the case of Patient C were tantamount to malpractice and warrant discipline by the BRM on that basis as well.

The Respondent's aversion toward reading and heeding fetal monitor strips continued with her treatment of Patient D. Patient D was only 16 yeas of age and she had some health issues of concern throughout the pregnancy. The Respondent was aware that, when Patient D was in premature labor, too long a period of labor increased fetal jeopardy with the risk of fetal infection, cerebral palsy and fetal distress. The Respondent did not expedite delivery when, at 7:30 PM, the fetal monitoring strip showed decreased fetal variability, with some decelerations and tachycardia. The strips remained non-reassuring until after midnight with no intervention by the Respondent. The nurse had to go up the chain of command because the Respondent, already under a monitoring agreement after being disciplined for mishandling the treatment of Patients A and B, refused to intervene at 11:35 PM. Patient D's child was not born until nearly 4:00 AM and showed signs of serious infection and breathing difficulties. The Respondent's care of Patient D was below the standard of care in that she failed to interpret the fetal monitoring strips correctly and intervene timely and appropriately with a Cesarean section. This conduct, too, was tantamount to malpractice and warrants discipline for same. D'Amour, supra and Probst, supra.
Patient E's unborn baby was exposed to a fever. The patient was not making progress in her labor when her fetal monitoring strips started showing persistent and deeper variables. The Respondent knew or should have known that the readings at 8:30, a prolonged variable, could indicate that the umbilical cord was wrapped around some part of the baby's anatomy or between the baby and the uterus. By the time Patient E's baby was delivered at 10:14 PM, she had been fully dilated for nearly eight hours.

The Respondent's care of Patient E was below the standard of care in that she failed to recognize the myriad, persistent signs of fetal compromise and intervene in a timely and adequate manner by commencing a Cesarean section at around 8:00 PM. This treatment,too, was tantamount to malpractice and warrants discipline by the BRM pursuant to Section 61 ¶ 1. D'Amour, supra and Probst, supra.

The Respondent knew, or should have known, that, as a diabetic, Patient G had a higher risk of miscarriage, congenital abnormalities and other complications. Further, the Respondent knew, or should have known, that control of blood sugar levels late in the pregnancy is critical. Yet, she waited a full week to see Patient G again after noting that the patient's blood sugar levels had been elevated on and off throughout the pregnancy and they were greater than 300 on October 12, 2001. The Respondent also knew that the patient had an insulin pump malfunction the previous day. Yet, she sent the patient home and did not contact the Joslin Clinic about the malfunctioning pump or the elevated blood sugar levels. The baby died. Then, when the patient's insulin was out of control during labor and delivery, the Respondent failed to obtain assistance from the Joslin Clinic or anyone else at the hospital. This failure to monitor Patient G more closely during the late stages of pregnancy and in the hospital and the lack of close management of the patient's insulin intake fell below the standard of care. The subpar treatment constituted malpractice. D'Amour, supra and Probst, supra.

Patient I experienced a drastic change in her labor after approximately four hours. The fetal monitoring strip drastically changed to non-reassuring. The patient herself demonstrated an inability to tolerate labor at that point in time. The Respondent failed to put an internal monitor on the infant's scalp. She ruptured the patient's membranes and left the room. When she returned in a few minutes, she noted bloody fluid, however, she did not deliver the infant for another full hour. The Respondent failed to meet the standard of care with regard to Patient I by failing to perform appropriate fetal monitoring after the drastic change in the fetal monitoring strip and by failing to intervene in a timely manner by developing an expedited plan for delivery. She committed malpractice via her treatment of Patient I. D'Amour, supra and Probst,
supra.

Misconduct

G.L. c. 112 § 5 ¶ 9 (c) and 243 CMR 1.03(5)(a)(18) also provide authority for the BRM to discipline a physician for misconduct in the practice of medicine. The Petitioner has aptly noted that the Supreme Judicial Court defined the term "misconduct" in Hellman v. Board of Registration in Medicine, 404 Mass. 800, 804 (1989):

"Misconduct", in general is improper conduct or wrong behavior, but as used in speech and law it implies that the conduct complained of was
willed and intentional. It is more than that conduct which comes about
by reason of error of judgment or lack of diligence. It involves intentional wrongdoing or lack of concern of one's conduct. Whether or not an act constitutes misconduct must be determined from the facts surrounding the act, the nature of the act, and the intention of the actor.

Misconduct in the practice of the profession is not limited to that which is done in the diagnosis and treatment of a patient, but includes all conduct of the practitioner in carrying out her professional activities. Cf. Forsiati v. Board of Registration in Medicine, 128 N.E.2d 789, 333 Mass. 125 (1955).
The Respondent's failure to follow the care plan of the first physician to treat
Patient A, Dr. Fullerton, showed very poor judgment, nonchalance and a lack of professional concern for Patient A and her infant. Instead of preparing for a Cesarean section at 11:30 AM or noon when Patient A's labor changed, after the patient had been pushing for longer than Dr. Fullerton had felt was safe, the Respondent put her own needs first and went off to lunch for over one hour. The Respondent was also oblivious to, or dismissive of, the fetal monitoring strips which showed that the fetus was in distress during the protracted active phase of labor.


The Respondent failed to obtain informed consent from Patient C to proceed with the far more risky vaginal breech delivery. Not only did she fail to explain the risks and benefits of all of the options, but she also misrepresented to a nurse and another physician that Patient C had refused to have a Cesarean section. During her testimony at the DALA hearing, the Respondent indicated that Patient C was a graduate student who had not wanted to e hospitalized for a longer period of time after a Cesarean section, and had insisted on a vaginal delivery. These misrepresentations of the truth are highly improper and constitute misconduct in the practice of medicine. Cf. Dugdale v. Board of Registration in Medicine, 169 N.E. 547, 247 Mass. 65 (1930).

The evidence concerning the Winchester Hospital peer review of the Respondent's care of several patients and the subsequent disciplinary actions supports the assertion that the Respondent committed misconduct in the practice of medicine. This evidence can be relied on not only to support the finding of misconduct, but also to buttress the credibility of the BRM's witnesses, many of whom provided testimony that the Respondent committed the aforementioned misconduct in her dealings with Patients A and C. In the Matter of John Wang, M.D., Board of Registration in Medicine,Adjudicatory Case No. 87-68-CA (Final Decision and Order, March 16, 1988), affirmed, Wang v. Board of Registration in Medicine, 537 N.E.2d 1216, 405 Mass. 15 (1989).

Conduct That Undermines Public Confidence in the Integrity of the Medical Profession

Conduct that undermines public confidence in the integrity of the medical profession is an independently sufficient ground for discipline by the BRM. The BRM has authority to discipline a physician for engaging in conduct that undermines public confidence in the integrity of the medical profession. Raymond v. Board of Registration in Medicine, 443 N.E.2d 391, 387 Mass. 708, 710 (1982); Levy v. Board of Registration in Medicine, 392 N.E.2d 1036, 378 Mass. 519, 528 (1979); Sugarman v. Board of Registration in Medicine, 662 N.E.2d 1020, 422 Mass. 338 (1996).
The Respondent's lack of professional concern for Patient A and her misrepresentation regarding Patient C refusing a Cesarean section both undermine the public confidence in the medical profession. The same can be said for her chronic disregard of non-reassuring fetal monitoring strips, even after being mandated to take a
remedial course. In the case of seven of the nine patients mentioned in this record, she
failed to act quickly with a plan for delivery after the fetal heart rates changed and were non-reassuring. She failed to correct her behavior after hospital disciplinary actions. Further, the Respondent did not time any of her notes in the cases of any of the patients referred to herein. The Petitioner's treatment of all nine patients that are the subjects of this case fell short of the type of conduct which demonstrates a high degree of integrity worthy of the public trust. Levy, supra at 528.
Credibility
In establishing the Findings of Fact and conclusions set forth herein, I have credited the testimony of the BRM's witnesses and weighed that of the BRM's expert, Dr. Nugent more heavily than that of the Respondent's expert, Dr. Pinshaw. The BRM's witnesses did not display any bias or personal agendas. Their memories were sharp. Dr. Nugent's responses to questions on both direct and cross examination were crisp, consistent and well explained.
In contrast, the testimony of Dr. Pinshaw was conclusory without foundation. Many of his responses were glib and/or evasive. He was unable to explain why his opinion as to the standard of care with regard to seven of the nine patients deviated from those of the BRM witnesses as well as those of the peer review committee and the malpractice carrier.

Likewise, the Respondent, who does not appear to have displayed any degree of accountability or remorse throughout the hearing notwithstanding the serious mistakes that were made, was glib and evasive in many of her responses. She claimed to be unable to remember many of the key details related to labor and delivery of the patients in question. She acted undaunted and self satisfied in the midst of the serious charges set forth by the BRM.

In conclusion, the BRM has proven that the Respondent engaged in conduct during her practice of obstetrics for which she may be disciplined by the BRM. The evidence demonstrates her lack of medical knowledge, lack of professional concern and lack of integrity in caring for obstetrics patients.

DIVISION OF ADMINISTRATIVE LAW APPEALS:
By:


Judithann Burke
Administrative Magistrate

DATED: March 16, 2010