Suffolk, ss. Division of Administrative Law Appeals
Docket No. RM-06-38
Board of Registration in Medicine,
Neena Chaturvedi, M.D.,
I. FACTUAL BACKGROUND
A. PROCEDURAL HISTORY
i. The Petitioner, the Board of Registration in Medicine ("the Board") referred allegations regarding the Respondent, Neena Chaturvedi, M.D. ("Dr. Chaturvedi") to the Division of Administrative Law Appeals ("the Division") on January 18, 2006.
ii. On February 16, 2006, Dr. Chaturvedi moved to stay the proceedings. No action was taken on the motion, but a 45-day stay was incorporated into a scheduling order with certain amendments. This April 6 order established a schedule allowing 45 days for settlement discussions, and also set discovery and other deadlines.
iii. On February 22, 2006, with the Board's assent, Dr. Chaturvedi moved to postpone the pre-hearing conference, initially scheduled for March 7, 2006, until a date in April when her counsel would be available. This motion was allowed on March 2, 2006.
iv. On June 16, 2006, Dr. Chaturvedi moved for partial summary decision and moved to stay discovery in the case a ruling on the motion for partial summary decision.
v. On June 22, 2006, both motions were denied without hearing. The order denying the motion for partial summary decision states the motion was denied "for the reasons set forth in the Board's opposition."
vi. On August 31, 2006, Daniel A. Curto gave notice of withdrawal of his appearance as counsel for Dr. Chaturvedi.
vii. On September 15, 2006, Attorneys Michael L. Blau and Lawrence M. Krause appeared as counsel for Dr. Chaturvedi.
viii. On September 15, 2006, Attorneys Blau and Kraus moved for leave to depose five witnesses: Dinesh Patel, M.D.; John Reed, President Cape Cod Branch NAACP; the Board investigators who conducted the investigation of these matters, including Norma Jaynes and others unidentified or unknown to Dr. Chaturvedi; Roscoe Trimmier, Jr., Esq., Chair of the Board Complaint Committee; and Nancy Achin Audesse, Executive Director of the Board.
ix. Dr. Chaturvedi argued through counsel that these witnesses would have material information as to the allegations at issue. According to the motion, Dr. Patel is a former member of the Board who counseled Dr. Chaturvedi not to have counsel when she appeared before the Board's Complaint Committee. As to Mr. Trimmier, the motion asserts that he was a member of the Complaint Committee and present during each of Dr. Chaturvedi's appearances before the Committee. According to the motion, depositions of the Board investigators, and particularly Ms. Jaynes, were important because, the motion avers, Ms. Jaynes granted Dr. Chaturvedi an extension of time to respond to an April 11, 2005 order of the Board. Dr. Chaturvedi argued through counsel that these witnesses would have material information about the investigation of complaints involving Dr. Chaturvedi, what was said and done at the Complaint Committee meetings, and Board policies pertaining to the allegations at issue.
x. According to the motion, Mr. Reed, identified in the motion as President of the Cape Cod Branch NAACP, could establish that the matter involving Patients A & B had been successfully resolved.
xi. On September 20, 2006, the motion seeking depositions was denied without hearing or memorandum, citing 801 Code Mass. Regs. 1.01(8)(c).
xii. On February 9, 2007, Attorneys Blau and Krause gave notice of their withdrawal "effective immediately" as counsel for Dr. Chaturvedi.
xiii. On March 16, 2007, Attorney Robert A. Bianchi appeared on behalf of Dr. Chaturvedi, filing her response to the amended Statement of Allegations.
xiv. On July 30, 2007, a second pre-hearing conference took place.
xv. On August 20, 2007, the Division gave notice that the hearing would take place on October 16 & 18, and November 13, 16, & 20, 2007 at the Division of Administrative Law Appeals.
xvi. On October 3, 2007, Attorney Bianchi filed a notice of purporting to withdraw his appearance as Dr. Chaturvedi's counsel, stating that she had informed him that she would be representing herself.
xvii. On October 16, 2007, responding to the suggestion of Administrative Magistrate Maria Imparato, who was then presiding, that a motion for leave to withdraw was in order, Attorney Bianchi moved to withdraw. In the motion, Attorney Bianchi gave notice that Attorney Robert Harris would be appearing for Dr. Chaturvedi. This motion was allowed on October 17, 2007.
xviii. On October 4, 2007 the Board moved to change the venue for the first day of hearing from the Division offices to a location more accessible to the twelve witnesses the Board intended to present on the first day of hearing. According to the motion, all of these witnesses lived in the Cape Cod area.
xix. On October 10, 2007, the motion to change venue was granted and the hearing schedule was revised as follows:
a. the first day of hearing would take place on October 18, 2007 in Barnstable;
b. three additional hearing days would be held on November 13, 2007, November 16, 2006 and November 20, 2007 at the Division of Administrative Law Appeals in Boston.
xx. On November 8, 2007, the parties jointly moved to cancel the day of hearing which was to have been held on November 13, 2007, and instead, to resume the hearing on November 16, 2007. The motion was allowed on November 9, 2007.
xxi. There were two pre-hearing conferences before the Division, on April 23, 2007 and on July 30, 2007, Magistrate Maria Imparato presiding.
xxii. Chief Administrative Magistrate Shelly Taylor convened three status conferences in this matter, on January 28, 2008 by phone, on February 1, 2008, and on February 11, 2009, by phone. Attorney Harris represented Dr. Chaturvedi at the two 2008 conferences. Dr. Rahul Chaturvedi represented her at the conference held on February 11, 2009.
xxiii. At the January 28, 2008 conference, the parties were notified that a new magistrate would be assigned to replace Magistrate Connolly pursuant to 801 Code Mass. Regs. 1.01 (11)(e), that the new magistrate would proceed in one of the two ways permitted in the regulation. Under the first option, a new magistrate would review transcripts and evidence admitted thus far, and schedule additional hearing days as needed and taking such other action as necessary to maintain the integrity of the proceeding, and for other good cause shown. The other option would be to start the hearing over from the beginning. At the conference, the parties were ordered to consult their clients and report back to the Division their positions on which option was preferable.
xxiv. At the February 1, 2008 status conference, counsel for each party reported that after having conferred with their respective clients, both preferred the first option, to continue on with the hearing with a new magistrate. Magistrate Taylor then selected this option and a final day of hearing was scheduled.
xxv. The final day of hearing took place on February 11, 2008, Magistrate Taylor presiding, at the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.
xxvi. At the close of the hearing, Dr. Chaturvedi made an oral closing argument. The parties were given until March 18, 2008 to submit any closing briefs.
On March 13, 2008, the Board moved for an extension to March 21, 2008 to file its closing brief. The motion recited that a meeting with Complaint Counsel and Board Investigators was planned for March 18, 2008; that the meeting was expected to last several hours, and Complaint Counsel and Board Investigators needed time to prepare for the meeting. This motion was granted on March 14, 2008.
xxvii. On July 24, 2008, Dr. Chaturvedi notified the Division that Mr. Harris no longer represented her in this matter and that she had designated Dr. Rahul Chaturvedi as her representative in this matter.
xxviii. On February 11, 2009, at the Board's request, I convened a status conference, by telephone, with the parties' respective representatives. At the conference, Dr. Chaturvedi was asked to report back to the Division on whether she wished to submit a closing brief, based on a colloquy related to the latest change in representation. Transcript of Telephone Status Conference, Thursday, February 12, 2009.
xxix. On February 12, 2009, Dr. Chaturvedi's new counsel notified the Division that he would file a written closing argument in the case. He subsequently requested a copy of the entire record in the case, which the Division supplied.
xxx. On February 12, 2009, I granted Dr. Chaturvedi until February 27, 2009 to submit written argument.
xxxi. On February 27, 2009, Dr. Chaturvedi submitted a written closing argument.
Amendments to the Statement of Allegations
xxxii. On April 4, 2006, on the Board's motion, the Statement of Allegations was amended as follows (emphasis supplied).
a. Paragraph 44 of the original states:
On May 11, 2005, a new complaint (Docket No. 05-243) was opened against the Respondent for failure to provide medical records to Patient C. The Respondent was notified of the complaint on the same day.
As amended, Paragraph 44 avers:
On May 11, 2005, a new complaint (Docket No. 05-243) was opened against the Respondent for failure to provide medical records to Patient C. The Respondent was notified of the complaint on the same day. In mid-June, Patient C received parts, but not all, of her medical record.
b. Paragraph 46 of the original states:
On August 2, 2005, the Respondent provided Patient C with her medical records.
As amended, Paragraph 46 avers:
On July 27, 2005, the Respondent provided Patient C with her medical records.
c. Paragraph 56 of the original states:
On July 7, 2005, Patient D's attorney made another written request to the Respondent for Patient D's medical records.
As amended, Paragraph 56 avers:
On July 21, 2005, Patient D's attorney made another written request to the Respondent for Patient D's medical records.
d. Paragraph 64 of the original states:
On July 22, 2005, Patient D's attorney received a copy of the Patient D's medical record via fax.
As amended, Paragraph 64 avers:
On July 22, 2005, Patient D's attorney received parts but not all of the Patient D's medical record via fax.
xxxiii. On February 21, 2007, the Board referred additional allegations to the Division for hearing. The pleading, Amendment to Statement of Allegations, makes averments about records requests involving Patient E, Patient F, Patient G, Patient H, Patient I, Patient J, Patient K, Patient L, Patient M, Patient N, and Patient O; a pharmacy complaint; and events at Cape Cod Hospital.
xxxiv. On the fourth day of hearing, January 3, 2008, on the Board's oral motion, the Amendment to Statement of Allegations was amended as follows.
a. The allegations regarding Patient G were stricken.
b. The allegations regarding Patient H were stricken.
c. The allegations regarding Patient J were stricken.
d. The following allegations were stricken:
54. Respondent authorized a transfer of a relative from Tufts New England Medical Center ("NEMC") in Boston to Cape Cod Hospital without verifying that there was a bed for him.
55. When the ambulance arrived at Cape Cod Hospital with Respondent's relative, the hospital was at full census and the crew was forced to care for the patient while the ambulance idled in the parking lot.
56. Respondent then discharged one of her own patients from the Intensive Care Unit in order to create a bed for her relative.
e. Paragraph 57, of the Amendment to Statement of Allegations was amended, striking "NEMC" and substituting "Boston Medical Center." As amended,
¶ 57 avers:
The transfer was medically inappropriate, because Cape Cod Hospital was not as well equipped to care for Respondent's relative as was Boston Medical Center."
IV, 567-69 (emphasis added).
On March 13, 2009, Dr. Chaturvedi file a Motion to Declare Mistrial, discussed below, which the Board opposed on March 20, 2009.
B. THE RECORD
Twenty-seven people testified at the hearing:
Timothy Arruda, MD
James Butterick, MD
Elmir Sehic, MD
There were five days of hearing before the Division of Administrative Law Appeals: on October 18, 2007, Administrative Magistrate Christopher Connolly (hereinafter "Magistrate Connolly") presiding, at the Barnstable Police Department, 1200 Phinneys Road, West Yarmouth, MA; on November 16, 2007, Magistrate Connolly presiding, at the Division office, located at 98 North Washington Street, Boston, MA; on November 20, 2007, Magistrate Connolly presiding, at the Division office; on January 3, 2008, Magistrate Connolly presiding, at the Division office; and on February 11, 2008, Chief Administrative Magistrate Shelly Taylor presiding, at the Division office.
The transcript of this proceeding is in six volumes. Volumes I - V, pages 1 - 764, is the hearing transcript. There is also a single, nine-page single volume transcript of the February 12, 2009 status conference, which was conducted by phone and recorded at the Board's request.
The Board proffered 63 potential exhibits. With Petitioner's List of Potential Exhibits for Hearing Date October 18, 2007, the Board submitted Exhibits numbered 1 through 24. With Petitioner's List of Potential Exhibits for Remaining Hearing Dates November 12. 16, 20, 2007, the Board submitted Exhibits numbered 25 through 58. Of these, the following exhibits were admitted and marked at hearing: 7, 21 ,22, 23, 27, 28, 29, 30, 31, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 50, 51, 52, 58. Additional exhibits, numbered 58, 61, 63, 64, 65, 66, 67, and 68 were also admitted and marked at hearing. In addition, one document, a witness list, was marked "Z" for identification.
On October 18, 2007, the then presiding magistrate indicated his intention to take in the other exhibits offered by the Board, subject to any objections by Dr. Chaturvedi. Hearing Transcript, Volume I, p. 105 (hereinafter "I, 105"). No objections were made. A portion of Exhibit 20 and Exhibit 25, proffered by the Board, were withdrawn on the Board's motion on the last day of hearing. IV, 746. All 68 exhibits are included in the record.
1. Dr. Chaturvedi is a physician specializing in internal medicine. She has been licensed in Massachusetts under registration number 151967 since 1996. She is board certified in internal medicine. Statement of Allegations ¶ 1; Answer to Statement of Allegations ¶ 1; II, 256.
2. Dr. Chaturvedi practiced in Hyannis, Massachusetts. In 2004, she moved her practice from a location on North Street in Hyannis to a building on Independence Drive in Hyannis. II, 257, 258.
3. After the move to Independence Drive, the size of the practice grew considerably. II, 265.
4. In 2004 and 2005, Dr. Chaturvedi's medical office converted from paper to electronic records. Existing paper records were scanned into a computer. From then on, medical record entries were made electronically. II, 267, 269.
5. Dr. Chaturvedi testified that there were delays in getting medical records to some patients after the move and that she took responsibility for some of the delays. II, 271.
6. She also testified that before the Board's intervention, medical records were sometimes given to the requesting patients in hand, and sometimes, nothing was done to document that the requested records had been supplied. II, 283.
Patients A & B Request for Medical Records
7. Karl Vrana testified at the hearing. Mr. Vrana is an attorney who practices personal injury, corporate and medical malpractice law. Patient A and Patient B, a mother and son, were his clients. II, 240.
8. Attorney Vrana took over representation of Patient A from another lawyer who forwarded the legal file to him. II, 241-42.
9. The file included a letter on letterhead from the Law Office of Aiken & Aiken, P.C. reciting that it is "By: Paul R. Aiken, Esq." And bears what appears to be a stamp signature "Paul R. Aiken." Ex. 27; II, 242-43.
10. The letter states in part, "Dear Pt. A, We have written on three separate occasions for the medical records from the office of Dr. Neena Chatuverdi [sic] and have submitted Medical Authorizations. However, Dr. Chatuverdi's [sic] office has not responded to our request for your medical records." Ex. 27; II, 242-43.
11. Attorney Vrana testified that on June 15, 2004, on September 13, 2004, and on October 22, 2004, he made written requests to Dr. Chaturvedi's office for Patient A's records and received no reply. II, 244-47; Ex. 29; Ex. 30; Ex. 31.
12. Attorney Vrana further testified that his client, Patient A, had "made some direct contact" with Dr. Chaturvedi's office, and also that his client had a gentleman from the NAACP contact the office to try to get those records. It appears this testimony was based upon the witness' information and belief, II. 247.
13. On November 8, 2004, John L. Reed, President of the Cape Cod Branch NAACP wrote a letter "to support the complaint filed by" Patient A. The letter states that Mr. Reed met with Dr. Chaturvedi's husband on September 7, 2004, and despite assurances that the records would be provided, "[A]s of this date, Patient A has not received any medical documents…." Ex. 28.
14. Dr. Chaturvedi testified that Patient A presented at her office seeking Patient B's records and that, according to office records, the records were supplied to Patient A in person after she paid the copying fee. II, 282, 286; IV, 580-81.
15. Exhibit 26 is a release by Patient A, dated December 3, 2003 authorizing the release of her son Patient B's records to her, i.e. by this release, the office was authorized to give Patient B's medical records to Patient A. Written in hand on the document is the notation "Pd $15.00." Below the authorization, under the heading "For internal use" is a receipt. Under the printed heading "Accepted by" is the name "Patient A," written in over the patient's redacted signature, dated 12/3/03, indicating that Patient A signed for and accepted the records on December 3, 2003. Ex. 26.
16. Regarding Attorney Vrana's requests, Dr. Chaturvedi testified that she and/or her staff were under the impression, possibly a correct impression, that the records he sought had already been supplied to his client, Patient A. She acknowledged a delay in responding to Attorney Vrana's requests for the records which, she testified, "really should not have happened." IV, 581.
Patient C Request for Medical Records
17. Patient C testified at the hearing. She is a former patient of Dr. Chaturvedi's. When she moved out of the area to be closer to a family member, she switched to another doctor. I, 95-96.
18. Patient C testified that while in Dr. Chaturvedi's care, normally, she received prescriptions for blood pressure, asthma medication and a Duragesic patch for chronic pain. I, 101-02.
19. Patient C testified further that after she moved and changed doctors, at first, her new doctor gave her refills of prescriptions written by Dr. Chaturvedi; he told her he could not continue to do so without her prior medical records. I, 96-97.
20. At some point, Patient C testified, her doctor said she would have to find another doctor because he would not continue to write prescriptions for her without the prior records. I, 96-98.
21. Patient C made several attempts to get her records from Dr. Chaturvedi's office, first calling and then making an appointment to see Dr. Chaturvedi. I, 96-97.
22. Patient C testified that she first requested her medical records in January of 2005, and that, about a month later, she received some but not all of her records: none of her medications or test results were included; without this information, she testified, her new doctor could not refill any of her medications. I, 98-99, 100.
23. Patient C testified further that at this point, she made an appointment to see Dr. Chaturvedi in person, that she had the appointment and received the additional records a couple of weeks after the appointment; she "would say" she received the records in April or May of 2005. I, 100.
24. Patient C testified further that at the office visit, Dr. Chaturvedi filled the prescriptions the patient had sought from her new doctor. I, 97.
25. Patient C estimated that she received her complete medical record in either April or May, about two weeks after the appointment with Dr. Chaturvedi. I, 101.
26. Exhibit 10 consists of six pages and includes a letter dated December 7, 2005 from John B. Howard, M.D. of Wareham Medical Associates to Dr. Chaturvedi. It states "This is to inform you that we are in receipt of the records you sent out on February 17, 2005 on Patient C. Sincerely, John B. Howard, M.D." No signature appears above Dr. Howard's name. Ex. 10.
27. Norma Jaynes, the Board investigator assigned to this matter, testified at the hearing. She testified that in the course of proceedings before the Board Complaint Committee and her investigation regarding Patient C's records, that she saw two letters from Dr. Howard's office, one was "a December letter saying the records were received in June of 2005, I believe." IV, 652.
28. Ms. Jaynes testified further that she saw a second letter from Dr. Howard's Office: "it was a letter, the same letter from Dr. Howard's office." However, the writing stated that the records were received in February of 2005 and that letter was not signed. IV, 652-53.
29. Ms. Jaynes also testified that she contacted Dr. Howard's office and a staff member told her that records indicated partial records had been supplied but the complete record was not received until late July of 2005. IV, 653-54.
30. Ms. Jaynes testified further that Patient C told her that prior to her appointment with Dr. Chaturvedi, she received notes regarding physical exams, but not prescription details, and received the rest of her records on the day of her appointment with Dr. Chaturvedi. IV, 655.
31. Ms. Jaynes testified that according to her understanding of the rules of the Board, a February 17 response to a record request in made in January is a timely response. IV, 657.
Patient D Request for Medical Records
32. Attorney Diller filed a complaint with the Board on July 21, 2005. According to the complaint, the attorney's office represented Patient D in connection with a car accident in 2004. The complaint recites that "On 3/3, 3/4, 5/20, 5/25, 7/21 my office sent written requests for medical records" on various dates, and as a result of Dr. Chaturvedi's lack of cooperation, "we have been unable to help [Patent D] recover for her losses and reimburse other medical providers who treated [Patient D]." Ex. 12.
33. A release by Patient D dated 04/25/05 authorizes the release of his/her records to Attorney Diller. Ex. 46; II, 312.
34. Correspondence from Marc Diller to Dr. Chaturvedi indicates that the office received accident-related medical records via fax on July 22, 2005 from Dr. Chaturvedi's office. Correspondence from Kelly L. Elam of Diller and Diller indicates that the office received specified records relating to Patient D via fax on December 6, 2005. Ex. 12
Patient E Request for Medical Records
35. Patient E testified at the hearing. She testified that she saw Dr. Chaturvedi eight to ten times, most recently in April of 2006, when she requested a refill of a prescription for migraine. She was told she had to be seen by the doctor because it had been six months since her last examination. She made an appointment, but when, on the day of the appointment, she was told that the wait to see the doctor could be as long as two hours, she cancelled the appointment. I, 47, 50-51.
36. She decided to leave the office because she considered the wait time inexcusable and returned to the office, possibly the day after the scheduled appointment, to authorize the release of her records. She presented at the office and completed the records release some time in April of 2005. I, 51-52.
37. According to Patient E, she was told she would receive her records in two days; when she returned for the records, she was told that they would not be available until Monday. II, 51-52. She did not return to the office but called at some point and was told it shouldn't take much longer to get her records, just a couple more days, but that at the end of the week, the records were still not ready. II, 53. She testified further that she called the office many times between April 12 and May 1. I, 53.
38. Patient E testified that on May 12, she was provided with a disk; she was told that the disk contained her medical records; that she found it hard to believe that her entire file was on the disc, but she was told that "everything we have from you is on this disk." II, 56, 63-64.
39. The record is not clear as to whether Patient E took the disc to her new physician and to a friend who was a physician's assistant. In any case, Patient E testified that neither she nor her physician and/or her friend were able to access any additional information on the disk. II, 57, 61.
40. Patient E testified that she and her new physician tried to "unlock any programs" on the disk but could find nothing other than the dates she had been seen by Dr. Chaturvedi on the disk. They were unable to unlock what if any additional information or programs were on it. I, 56-57, 66.
41. Patient E testified that she later took the disc home and was able to access additional information, which she described as "a few notes….two sentences, two, three sentences." I, 62.
42. Patient E testified that she does not know what was on the disk; all she knows is that she and the people to whom she gave it were unable to access the substantive medical records. I, 61.
43. Patient E testified that she contacted Dr. Chaturvedi's office and came to understand that a staff member named Eva was handling her inquiry; after several requests for a call back, Eva called Patient E and told her everything was on the disk. I, 63; II, 63-64.
44. Patient E testified at one point that she did not recall asking Eva to open the disk for her, and later, that she did not recall whether or not she asked for assistance in opening the disk. I, 64, 65.
45. Patient E testified that she believed the records supplied on the disk were not complete because she had brought records from her prior physician to Dr. Chaturvedi, and she found it hard to believe that all of those records were on the disk. I, 64.
46. According to Patient E, she received her complete medical records on September 22, 2006. II, 58.
47. Dr. Chaturvedi testified initially that she was "absolutely sure" and later "pretty sure" Patient E was supplied with a disk containing the entire medical record. II, 314.
48. The disk Patient E received and the records she received on September 22, 2006 are not in evidence
49. Patient E identified Exhibit 7 as a document she printed at some point and that it shows the extent of the information she was able to obtain using the disk. I, 69-71.
Patient F Request for Medical Records
50. Patient F did not testify. According to Dr. Chaturvedi's testimony, Patient F filed a complaint asserting that she failed to supply requested medical records for Dr. Chaturvedi, and later filed a complaint with the Board regarding her alleged failure to provide medical records and the Board notified Dr. Chaturvedi of Patient F's Complaint. II, 314-16. See also Ex. 15.
51. Dr. Chaturvedi testified that she supplied the records to Patient F before the Board required her to provide the records and before the Board docketed a complaint against her alleging the failure to respond timely. II, 317.
Patient I Request for Medical Records
52. Patient I testified at the hearing. She testified that she was Dr. Chaturvedi's patient for approximately three years; further that in 2004, she needed a referral to another provider and Dr. Chaturvedi provided the referral. I, 107, 108.
53. Patient I testified that she works as an in-take counselor at a substance abuse treatment facility and is familiar with the HIPAA law. I, 121.
54. On May 30, 2006, Patient I and her daughter, Patient J, each had appointments with Dr. Chaturvedi for their annual GYN appointments. Patient I also sought a birth control pill prescription for her daughter. I, 108, 109, 112.
55. Patient I testified as follows regarding her May 30, 2006 visit. While waiting alone in an examination room, she saw a computer. She could see on the computer monitor information about other patients being seen at the medical office that day. For each person, Patient I saw their name, what exam room they were in, the reason for their visit, and how long they had been waiting. Patient I saw this information about herself and about her daughter listed on the screen. Patient I did not notify anyone in the doctor's office about the problem. I, 109-10, 115.
56. Patient I later filed a complaint with the Board asserting that Dr. Chaturvedi had provided substandard care and had been in "breach of federal HIPPA laws." I, 123. Ex. 11. The date Patient I signed the complaint is redacted, however, it appears from the assertions in the complaint and the date of the Board's acknowledgement of receipt of the complaint that the complaint to the Board was filed sometime after October 2, 2006. Ex. 11.
57. Patient I testified that in her three years with Dr. Chaturvedi's practice, she only saw patient information visible on an exam room monitor once, i.e., during the May 30, 2006 visit. I, 114.
58. After waiting over three hours to be seen, Patient I left and took her daughter with her. I, 111.
59. Patient I testified that some time after May 30, 2006, she phoned the office several times seeking to have a prescription for her daughter's birth control pills called in to a pharmacy so that her pills would not be interrupted. Eventually, she testified, Brooks Pharmacy informed her that Doctor Chaturvedi's office would not call a prescription in unless the patient first had an office visit. I, 111-12.
60. Patient I testified that Dr. Chaturvedi's office told her the same thing, i.e. that her daughter would have to have an office visit before Dr. Chaturvedi would prescribe birth control pills. I, 112.
61. Patient I testified that she believed her daughter had already been examined by the time they left the office on May 30, 2006, but she did not know whether or not her daughter had been examined that day. I, 112.
62. According to Patient I's testimony, she moved on to another doctor and requested her medical records from Dr. Chaturvedi's office. She testified to her belief that she requested her records in the fall [following the May 2006 visit], when she switched to her new doctor. I, 126.
63. Patient I testified that she did not recall exactly when she received the records; that she believed she received them in December 2006 or January 2007. I, 113.
Patient K Request for Medical Records
64. Patient K testified at the hearing. He testified that he is a house painter. I, 138
65. Patient K testified further that he was not sure how long he saw Dr. Chaturvedi but would say that he treated with her for maybe a year-and-a-half or two years, and that Dr. Chaturvedi prescribed Percocet for his neck. I. 138, 145.
66. Patient K testified further that he stopped seeing Dr. Chaturvedi because he got tired of the extreme length of time his visits to the office took. I, 138.
67. Patient K testified that he first requested his medical records the Fall of 2006. I, 139.
68. He testified that he called more than once inquiring about his records, and was told they were ready for pick up, only to arrive at the office and learn that the records were not available. I, 140.
69. He later testified that he did not know when he first requested his records. I, 143.
70. Patient K filed a complaint with the Board. I, 142, 143. The Complaint bears the stamp "RECEIVED OCT 31, 2006 Board of Registration in Medicine." Ex. 14.
71. Patient K testified at one point that when he filed his complaint with the Board, he had not received his records, that three months passed from the date he first requested the records and the date of his complaint to the Board, and he received the records a couple of months after his complaint. I, 141-142.
72. Patient K testified further that he did not know when he first requested the records, I, 143, and he did not know when he received the records. I, 144.
73. Dr. Chaturvedi testified that Patient K requested his medical records on October 26, 2006 and they were mailed out on December 1, 2006. II, 327.
Patient L Request for Medical Records
74. Patient L testified at the hearing. She requested her records from Dr. Chaturvedi's office and visited the office approximately six or seven times in an attempt to get them, beginning in approximately June or July, 2006. I, 129, 134.
75. Patient L testified that she did not remember exactly when she requested her records. I, 135.
76. Further, she testified, she had been trying to get her records for three months when she filed a complaint with the Board, and as of October 28, 2006, when Patient L filed her complaint, she had not received her records. I, 134, 131,133.
77. Patient I testified that she received the records a few months after she filed her complaint with the Board. I, 133. When asked if she received the records on December 1, she testified that "that sounds about right." I, 133.
Patient M Request for Medical Records
78. Patient M testified that she saw Dr. Chaturvedi on April 6, 2006. I, 76.
79. Patient M testified further that two weeks later, she returned for a follow up, but left without seeing the doctor, because she was in pain and dissatisfied with how long she had to wait. Before she left the office, she told a staff member that she would be moving out of state at the end of August, and completed a request for her records before leaving the office. I, 79.
80. According to Patient M, she did not receive the records until six months after having requested them. After reading an article on the internet about Dr. Chaturvedi "stating that there are a lot of complaints about" her, Patient M called the office, and she later received her records. I, 82-83.
81. Patient M testified that she filed a complaint with the Board on November 6, 2006 and that she had received her records before she filed her complaint. I, 84-85.
Patient N Request for Medical Records
82. Patient N testified at the hearing. Patient N was a patient of Dr. Chaturvedi's for approximately three years. I, 218.
83. Patient N testified that she had an ultrasound in the Fall of 2004 due to concern over her liver. I, 222, 227. The patient requested copies of the results. After two or three weeks, she had not received them; she called the office twice and had no response. I, 222.
84. Patient N testified that she visited the office and was told by a young girl that the records would be ready in two weeks "or something like that." I, 223.
85. According to Patient N, on June 1, 2005, her attorney wrote a letter requesting the records. I, 225.
86. On November 6, 2006, Patient N filed a complaint with the Board. As of the date of that complaint, she had not received the records. I, 225.
87. According to Patient N, she never received the ultrasound results, although she requested that they be sent to her. I, 231-32.
88. The record is not entirely clear as to Patient N's complaint. As I read it, Patient N learned after the second of two ultrasounds that they showed no problem with her liver; however she sought, and was unable to obtain, documentation of the ultrasound results, such as a technician's print-out of the ultrasound images, or a written report by the person(s) who conducted and/or reviewed the ultrasounds.
Patient O Request for Medical Records
89. Patient O is a former airline captain with Pan American Airways, I 17, and is retired from the U.S. Marine Corps. I, 27. He testified that he saw Dr. Chaturvedi because he needed to have a physical exam for the Department of Transportation in connection with a job as a bus driver. I, 19.
90. Patient O testified further that he has accumulated military records, and Pan Am records, and records of FAA physicals. He took most, but not all, of these records with him to the appointment with Dr. Chaturvedi. I, 20; Ex. 60. He had had many medical exams to establish his fitness for duty and work as a bus driver and always took his personal copies of his records to such examinations.
91. He took to the appointment his personal copies of his records, which he had collected from other physicians and/or physical exams over the years, as he always did for exams like this one. He testified further that he left the records with Dr. Chaturvedi or a member of her staff, and that despite multiple attempts, the records were never returned.
92. According to Patient O, Dr. Chaturvedi told him she would like to scan the records, to which he assented. He testified that he told her "You can scan them, do whatever you want, but I have to have them when I leave," to which the doctor replied "Okay, I'll do it right away." I, 20.
93. Patient O testified further that after additional medical tests were conducted by another person in the office, he inquired about his records at the front desk. The person at the desk said he/she knew nothing about it. Patient O tried to reach Dr. Chaturvedi without success and eventually left without his records. I, 22.
94. He returned to the office on a different day and also contacted an attorney in an attempt to retrieve his records. Patient O had never received the records. I, 25.
95. Dr. Chaturvedi first testified that she could not recall whether she received the records of patient O or not. She then testified further as follows:
A: He claims he left the records with me.
Q: What happened to them?
A: He did not.
Q: You are certain he didn't?
A: I'm very certain he did not. He was here for DOT complaint, for DOT exam, and I have done numerous DOT examines in the office and never needed old medical records for DOT exam is number one.
96. According to Patient O, Dr. Chaturvedi said she would like to scan in his records and she took them, presumably to have them scanned. I, 20. He testified further that after he underwent additional tests by another person in the office, he inquired about his records at the front desk. And someone at the desk said he/she knew nothing about it; Patient O tried to reach Dr. Chaturvedi without success and eventually left without his records. I, 22.
97. Tricia Leonard is a former employee of the doctor's office. Two electronic entries in office records regarding Patient O, under Ms. Leonard's name, read as follows:
2/15/2006 10:54:39 AM: Told him we will give his MR back after scanning. Pt will discuss with Dr.discussed w/Neena pt paid $75.00 for
2/15/2006 11.09.51 AM: discussed w/Neena pt paid $75.00 for DOT physical. Told Neena pt saying will not leave his records in this hell hole. Will not pay for physical.
98. Additional entries show numerous requests for the records by or on behalf of Patient O subsequent to his visit on February 15. Ex. 60.
99. Dr. Chaturvedi testified that prior to December 2005, her office did not routinely send records by certified mail or fed ex, i.e., the office did not maintain documentation to verify that records were sent or given to the patient. At the Board's request, she sent them by FedEx. II, 283-4.
Affiliated Monitors, Inc.
100. Chaturvedi retained Affiliated Monitors, Inc. to review how timely the practice responded to record requests. II, 276-279.
101. According to a September 21, 2006 report by Affiliated Monitors and Dr. Chaturvedi's testimony, the company visited on July 10, August 21 and September 18, and during these visits, documentation of records requests and related practices were reviewed. The report noted:
it appears that Dr. Chaturvedi's office has made noticeable progress in improving both the timeliness and the completeness of their responses to requests for patient treatment records since the monitoring process began in July of this year. While a significant amount of work is still necessary to complete the implementation of the computerized clinical record-keeping system now being developed, it appears that Dr. Chaturvedi's office has implemented some interim measures which are designed to improve their ability to respond fully and quickly to patient record requests, and that these measures are yielding improved results. Dr. C's office has made noticeable progress in improving both the timeliness and the completeness of their responses to requests for patient treatment records since…July of .
102. Dr. Chaturvedi wrote the following letter, dated September 28, 2005, to "Roscoe Trimmier JD" at the Board:
Dear Atty Trimmier:
Pursuant to complaints 04-673, 05-031, 05-409, 05-243, 05-193 and subsequent to a meeting with the complaint committee, I write the following.
I take responsibility for administrative delays of getting the medical records to patients or lawyers but I would like to offer the committee a perspective in our office's reality as mitigating circumstances. Our office handles 7 - 10 medical records/documentation requests on a daily basis at least five days a week. The vast majority of them are handled appropriately.
As we set up our practice in the new location last year - there were some delays regarding general document handling as we suffered from employee transition, back log in filing and implementation of a new paperless medical record system. Regardless, we handled the requests and I happily compensated by reaching out to providers and peers and sharing information so that care did not suffer. But an overwhelming amount of records were processed and we are now on the verge of fully deploying a new system where records will be available online in a HIPPA compliant system.
But the approximately over 2000 medical record/documentation requests our office has handled over the last year (our first year of practice in this new location), the 4 (Four) patients involved in the complaints [REDACTED] deserve special mention. Their requests were responded to, however documentation and supporting evidence regarding release of records was not collected or readily available.
As a very busy internal medicine practice, we see significant numbers of patients who have accidents or need disability form requests. Some of these patients are not satisfied with some entries in their accident/disability forms and routinely will seek other providers to further pursue their goals or seek relief. In some instances, especially if there are other issues involved, our office staff routinely will witness erratic behavior. We have limited administrative manpower resources in an era of decreasing compensation to handle outliers. On a detailed review with my office, some things of importance were brought to my notice.
In the specific circumstance of [REDACTED], there is a real issue that their forms and certain pieces of the record were hand delivered to them by certain front desk employees who are no longer in our employ. They inadvertently or maliciously gave the [REDACTED] documents after I filled them without scanning them in the system. Later, I was asked to redo them with specific focus on what my report should say as somehow the original forms I filled were never received.
I was not comfortable with the specific focus as was requested. My colleague, Dr. Rahul Chaturvedi met them to explain why I was not comfortable with certain needs that [REDACTED] may had relative to what the disability form should say.
After they left from the meeting with some documents, my office was asked to produce the paper documents of the disability form that originally had already been handed over to the [REDACTED].
I would like to seek the Committee's guidance regarding disclosure of patient's specific medical history and issues which may allow the committee to better understand context of the delay in getting the medical records out for [REDACTED]
I again underscore my acknowledgement of the legal, ethical and clinical responsibilities of releasing medical records when asked. But of the approximate 2000 record requests, the four patients and in particular 2 - [Patient A and Patient B] had other issues.
Also, not responding to the Board of Medicine's request was genuinely an oversight in our mail handling. I offer my sincere apology. My office staff and I are evermore sensitive and are making definite progress towards achieving a stellar rating in maintenance of and access to our medical records.
The Promutual medical records audit is scheduled for October the 3rd 2005 and we will strive to meet and exceed my legal and ethical burden relative to our practice administration.
I thank you for your forbearance and willingness to understand the full picture and giving us necessary time to remedy some administrative issues.
Neena Chaturvedi, MD.
Exhibit 44; II, 272-276.
103. Norma Glover testified at the hearing. She testified that she worked as a medical assistant in Dr. Chaturvedi's office for almost five years. 4, 676.
104. She testified that computer screens in exam rooms were supposed to be locked. If a machine was left on, the only thing one could see was the name of the person in each room. IV, 675
105. She testified that any time a patient requests medical records from a doctor's office, they must sign a form. In Dr. Chaturvedi's office, the process could not begin until the patient came in and completed an authorization for release of their records. IV, 682-83.
106. Dr. Chaturvedi testified that she accepted the responsibility for providing medical records: "I do know now that ultimately everything that happens in the office is a responsibility of the physician, of me," and that at the time of the conversion from paper records, she probably was not paying sufficient attention to administrative aspects of running the practice, instead focusing more on "the medical aspect of trying to be a good caring physician." IV, 585.
107. A pharmacist, Nancy Barsic, testified that one of Dr. Chaturvedi's patients came into the pharmacy with an electronic prescription for Ativan, a brand of the medicine Lorazepam; that Ativan prescriptions require an original signature; and that in this instance, there was no original signature. According to Ms. Barsic, she called Dr. Chaturvedi's service and office six or more times over the weekend and the following Monday and Tuesday and got no response. II, 151-53.
108. She testified that she saw others in this category that were unsigned. I, 150.
109. She testified that on one or more occasions, she called Dr. Chaturvedi's office to ask for a verbal order or a faxed signature, which would permit the prescription to be filled. I, 150, 151, 156
110. She testified about another occurrence, which took place after the presentation of the unsigned Ativan prescription, involving a prescription for Humalog. When she or an associate called Dr. Chaturvedi's office, she and another person or persons were told to tell patients that if there is a problem with their prescription, they should return to the doctor's office. I, 156, 171-72
111. According to Ms. Barsic, she told to patient she must return to the office and the patient got very angry but did return to the doctor's office. The patient later returned to the pharmacy with the correct (signed) prescription, which Ms. Barsic filled. I, 157.
112. She also testified that sometimes a doctor can make a mistake, writing Humalog when they meant to write Humulin, or writing prescriptions which are ambiguous as to what strength of Humalog the doctor intended to prescribe. I, 158-59
113. In May of 2006, Ms. Barsic filed a complaint with the Board. I, 160. She testified that the purpose of her call to the Board was to make sure her opinion, that a signature was required for that medicine, was correct. I, 174, 175, 176.
114. The complaint was not offered as an exhibit.
115. Ms. Barsic also testified further that at some point, someone in Dr. Chaturvedi's office told her a signature was not needed for Lorazepam and this prompted her call to the Board. I, 178-79. When asked if she was aware at the time that she was making a complaint, she testified "It's not how it happened." I, 180.
116. According to Ms. Barsic's testimony, she may have given the patient some pills, either because the patient had another prescription or because, according to Ms. Barsic's understanding, if she could legally do so under certain circumstances, it was her responsibility to help a patient out. She did not remember if she gave the patient some pills or not. I, 167, 169.
117. According to Dr. Chaturvedi, the electronic prescription, without an original signature, was given to the patient by mistake at a time when the office had recently converted to electronically issued prescriptions. Further, she testified, there were advantages to use of electronic prescriptions including the fact that they were more legible. IV, 588.
118. She testified that the staff told the pharmacist that when the patient comes, direct her to Dr. Chaturvedi and the doctor would sign the prescription. IV, 586-588
Cape Cod Hospital Events
119. Dr. Chaturvedi testified she had privileges to admit patients at Cape Cod Hospital from 1999 until 2006. II, 339-40.
120. Dr. Elmir Sehic testified that he was part of a group, referred to as a "call group," in which physicians in the group cover for each other. II, 347.
121. Dr. Sehic was in a call group with Dr. Chaturvedi for three years and six months and they covered for each other a couple of times. II, 348
122. At some point, Dr. Chaturvedi asked Dr. Sehic to admit to Cape Cod Hospital a person to whom she was related in law (hereinafter "in-law"). Dr. Sehic understood this person to be very ill. II, 350. At the time, the in-law was a patient at Boston Medical Center. Dr. Sehic asked why Dr. Chaturvedi did not admit the patient herself and she indicated that she had already been told by the Cape Cod Hospital admitting officer that she could not do so. II, 377.
123. Dr. Sehic attempted to admit the patient but was unable to do so because there were no rooms available. He relayed this information to Dr. Chaturvedi and suggested to her that the proposed transfer of the patient be postponed. II, 351
124. Later, Dr. Chaturvedi called Dr. Sehic and informed him that her in-law was in the emergency room and asked Dr. Sehic to come to the Emergency room to admit him because no staff member there would do so.
125. Dr. Sehic testified that he came to understand that hospital staff were unhappy with the attempt to admit Dr. Chaturvedi's in-law; in his condition, bringing him to the emergency room when no bed was available in the intensive unit where the appropriate level of care could have been given, had put the patient in unnecessary jeopardy. II, 353.
126. After learning that Dr. Chaturvedi's in-law was in the emergency room, Dr. Sehic admitted him despite having his own reservations. He noted a concern with this type of transfer, i.e., admission to the emergency room, because in a non-emergency transfer, the receiving physicians have the opportunity to receive a summary of the status and treatment of the patient from the transferring physicians. Dr. Sehic did not have that information when he admitted Dr. Chaturvedi's in-law. II, 354-55.
127. Dr. Sehic proceeded to evaluate the patient and, after talking with the patient's family, asked if he could be transferred to a facility where staff had more experience with the type of care he required. II, 355
128. According to Dr. Sehic, the family's hope was that Dr. Chaturvedi's in-law would become strong enough in Cape Cod Hospital to be able to go to a medical center where they could provide care for him, including rehabilitation, yoga, meditation and other things that would improve his condition, and that in the presence of his priest, family members and the children, his recovery would be much easier. II, 357-58.
129. Dr. Sehic testified that he agreed with Dr. Chaturvedi and her husband, who is also a physician, that while he (Sehic) would remain the attending physician, they agreed to consult daily regarding the treatment plan for Dr. Chaturvedi's in-law, and Dr. Sehic would do whatever they agreed upon. II, 361.
130. Dr. Sehic testified that he was ultimately responsible for placing physician orders for the patient from 9:00 a.m. to 5:00 p.m. and when he was on call, and the covering physician was responsible after hours. II, 361.
131. Working with other doctors, Dr. Sehic and the Drs. Chaturvedi attempted to manage an intractable illness with many complicating conditions. Eventually, Dr. Sehic arranged a transfer to another facility, acting on a concern he had from the time of the admission to Cape Cod Hospital that the patient should be in a different type of facility. II, 374-75. A transfer by ambulance to another hospital was arranged; however, the patient's condition deteriorated to such a degree that he had to be returned to Cape Cod Hospital. II, 376. Another attempt to transfer, this time by air-lift, was made; however, the patient went into cardiac arrest in transit to the airport, and was again returned to Cape Cod Hospital, where he died. II, 376.
132. Timothy Arruda, M.D. testified at the hearing. He is a physician at Cape Cod Hospital. He is board certified in internal medicine. III, 433.
133. At the time of his testimony, he had been an hospitalist at Cape Cod Hospital for approximately four and a half years, which means he is an employee of the hospital who takes care of and manages inpatients exclusively. III, 434.
134. In January 2006, Dr. Arruda became Chief of Medicine at Cape Cod Hospital. Also in January 2006, he became aware of the admission of Dr. Chaturvedi's in-law to the hospital.
135. At the time of his testimony, Dr. Arruda had known Dr. Chaturvedi for approximately four years. III, 435.
136. Dr. Arruda testified that the transfer of the patient to the hospital when there was not a bed available was not acceptable to the department or to the hospital. 439. He testified further that the department and hospital administration recommend that someone other than a relative or in-law take care of a patient and that the patient is best served that way, although he did not believe it was illegal for a physician to treat a relative or in-law. III, 440.
137. Dr. Arruda testified that his sense, upon reviewing the orders for Dr. Chaturvedi's in-law, was that her involvement was
a detriment to good patient care because we were in a situation where we had Dr. Chaturvedi was not the physician of record who was not rounding and writing daily progress notes but yet using the chart to write orders. And some of these orders would contradict or change orders that had been written by consultants who were involved in the case or the attending who was involved in the case.
III, 448. He felt that Dr Chaturvedi's orders sometimes contradicted Dr. Sehic's or some of the other consultants' orders and that it was inappropriate for her to be doing that. III, 441.
138. According to Dr. Arruda, Dr. Chaturvedi signed the authorization for her in-law's treatment. He considered this to be "a little bit of a conflict of interest" and one of the main reasons it is frowned upon for a physician to be involved in a relative's care "because it's very tough to be objective…you cannot be objective as a treating physician as you would be to a patient who you weren't familiar with." III, 450-452.
139. Dr. Arruda testified that he discussed the issue with Dr. Chaturvedi on or about January 9; that he asked her not to write orders in the chart, since she was not the attending physician of record; that she agreed that this was inappropriate and agreed to refrain from doing so. III, 441.
140. Dr. Arruda later learned that Dr. Chaturvedi may have contacted the lab directly to have blood work done. He spoke with her again, on January 15, 2006 to reinforce that it was not appropriate for her to do this. He sent a message to her confirming that discussion. III, 443. Ex. 62. Dr. Arruda also notified the lab that the orders called in to the lab should not be accepted and that this was not proper procedure for the hospital anyway. III, 442.
141. At some point, the call group arranged for Dr. Chaturvedi not to be among those to be called to cover in a case involving her in-law. II, 360.
142. Dr. Chaturvedi testified that she was involved in her in-law's treatment after his admission in the beginning, that she issued written and/or phone orders. V III, 419, 420. Ex. 61.
143. She testified further that when Dr. Arruda told her she could not write orders for her in-law, she checked the hospital bylaws and found there was nothing on the subject of treating a relative or in-law in the bylaws, but she decided to go along with Dr. Arruda's directive although she knew there was nothing written down. IV, 604.
144. She also testified that she developed a concern regarding her in-law's condition: she felt that he should have been dialyzed more frequently, that he should not have received intravenous Lasix or Clonodine, because his blood pressure had dropped and these medications are not indicated in that situation and Atropine, a blood pressure boosting medication, was indicated. Further, she testified, she attempted to contact the on-call doctor about this but got no response. IV, 607-09
145. Dr. Chaturvedi testified that an increase in fluids for a patient who is on Compazine, an anti-nausea drug, is not per se contraindicated. It depends on the circumstances. III, 423.
146. She also testified that a patient in renal failure may have difficulty getting rid of fluid in general, but that you look at the whole picture when you order fluids. III, 424-25.
147. She also testified that Lasix is used to get rid of fluid, and that Bactrim, an antibiotic, may be appropriate to give a patient who may have renal failure or renal insufficiency; in a patient with Wegner's granulomatosis, you take the whole picture and other aspects of the disease into account. III, 426.
148. As to her in-law, Dr. Chaturvedi testified that the patient had been healthy while living in India and then was diagnosed with Wegner's granulomatosis, a rare disease. He was admitted to Boston Medical Center in order to have procedures not available in India. He responded well and improved in the Boston Medical center. Since (1) the rate of infection, the nosocomial infection rate was higher in tertiary hospitals, (2) the patient wanted to be transferred to the Cape Cod area, which was more of a home to him, and (3) the patient had improved to a point where what he needed was basic medical care, which she wanted to make sure he received, it was decided to move him to Cape Cod. IV, 599-600.
Lyme Disease Treatment, Answering Pager
149. Dr. Arruda testified that he became familiar with concerns about Dr. Chaturvedi's professional conduct with specific regard to timeliness of answering pages and the treatment of Lyme disease with IV infusion. He testified that timeliness of answering pages was the most prominent thing that was brought to his attention. III, 436.
150. Sometimes, Dr. Arruda was called in to cover for Dr. Chaturvedi. III, 437. He testified that there are problems with some of the beepers at Cape Cod Hospital and could not say whether the problem is with the beepers or with the operators. III, 468.
151. Dr. Arruda also testified that there is controversy as to how best to treat patients who have neuro Lyme disease with chronic symptoms; that another physician at the hospital, a Dr. Sugar, disagrees with long-term use of antibiotics for treatment of chronic Lyme disease; and had concerns about Dr. Chaturvedi's orders for antibiotics in several cases. III, 475-76. Dr. Arruda testified that he knew nothing about the patients about whom Dr. Sugar expressed concern. III, 476-77.
Completion of Medical Records
152. At some point in 2005 and/or 2006,Saralyn MacKenzie, M.D. was Chief of Staff and Conrad Benoit was Chief of the Department of Medicine at Cape Cod Hospital. Ex. 50.
153. James Butterick, M.D. testified at the hearing. At the time of his testimony, he had been serving as Cape Cod Hospital's chief medical officer for two and a half years, since April 2005. III, 486.
154. In a meeting in 2005 with Drs. Benoit, MacKenzie and Butterick, Dr. Chaturvedi was told to complete medical records in a timely fashion. III, 413.
155. After this meeting, she offered to carry two pagers, so that if she did not respond to one pager, they would try the other pager. III, 417.
156. Sometimes, she received notices that if she did not complete her records by a date certain, she would be suspended. She completed the records before the deadline. According to Dr. Chaturvedi, this was a normal way of letting staff doctors know it is time to finish their charts. III, 414.
Voluntary Agreement Not to Practice
157. Dr. Chaturvedi testified that around the time her in-law passed away, her call group, which included two hospital employees, met with her and told her they could no longer cover her, citing unresponsiveness and the treatment of her in-law. IV, 603
158. She testified further that she received a letter from the hospital saying they wanted to take away her ICU privileges, citing the same issues the call group gave; she discussed the matter with Dr. Cederbaum, and decided to change her application from active to courtesy staff; she understood from the hospital chairman, Dr. Cederbaum, that this would not be a reportable event and her insurance and access to Meditech would not be affected; further, she estimated that based on the number of patients she had, this change in her status meant the loss of $700,000 in in-patient practice and more if billed at hospital rates. IV, 604-05.
159. According to Dr. Chaturvedi's testimony, the event was reported two or three days later. IV, 612.
160. Dr. Chaturvedi testified she met with Lowry Heussler, formerly a prosecutor with the Board, in September of 2006. She testified as follows regarding the meeting:
I was in my eighth month of my pregnancy, seventh, eighth month of my pregnancy. I had very high blood pressure, severe eclampsia and I had headaches and nose bleeds and stressed out by all that was happening and not getting anywhere. And so she did, when I met her she came up with more complaints. She talked about the Cape Cod Hospital complaint. And I didn't have a chance to respond. Whenever I was trying to respond to her, I was cut short. And the offer, she said the offer you have on the table right now is to accept the voluntary agreement to not to practice medicine, that's open for 24 hours or 48 hours, or I can get your license suspended. I have enough evidence, I can get your license suspended. So I knew the charges that I had was, did not surmount for me to give up my license, but I did not have the fight in me or the strength in me to do anything more and I signed the voluntary agreement not to practice medicine. And also she said that in a way it was good for me, because it almost coincided with my maternity leave and that she, you know, that she would help me come back. She was very friendly and she smiled and she said, I would help you come back. I have a soft corner for you. I'm going to help you come back to practice, but nothing of that happened."
161. Dr. Chaturvedi testified that Ms. Heussler told her that under the agreement, whatever referrals she had made or whatever prescriptions she had written would be honored, including refills; further, that she received a call from a local pharmacist stating that he could not fill her prescriptions because he had been contacted by a Board investigator and told that her license had been pulled and her prescriptions would not be honored; that Ms. Heussler later clarified that this should not have happened; and that because the practice had a lot of patients with a lot of prescriptions, there was an uproar in the community when they could not be filled and this led to a Cape Cod Times article, and "it just went downhill…" IV, 615.
162. The agreement provides in part:
This agreement will remain in effect until the Board…determines that the Agreement should be modified or terminated; or until the Board takes other action against my license to practice medicine; or until the Board takes final action on the above-referenced matter….
I understand that this Agreement is a voluntary restriction of my license to practice medicine and is considered to be a disciplinary action that is reportable by the Board to national data reporting systems, pursuant to G.L. c. 112, §2.
163. Dr. Chaturvedi testified that she attempted to minimize the "chaos generated" by the news article and the restriction on her license, which, it appeared to her, led to an increase in requests. The agreement not to practice was executed on September 27, 2006 and ratified by Board vote on October 4, 2006. Dr. Chaturvedi testified further that the office was not equipped to handle the influx and there were delays as a result. Ex. 68; IV, 616.
Failure to Respond to Board Inquiry
164. A Board of Registration in Medicine Policy 94-003, adopted February 9, 1994 and amended March 14, 2001, is entitled LICENSEES WHO FAIL TO RESPOND TO BOARD INQUIRIES.
165. The policy states in part:
In an effort to make licensees more fully aware of the ramifications of failure to respond to the Board, the Board adopts the following procedure for communications with licensees who are the subject of a complaint filed with the Board. While the details of the procedure apply to the complaint process in particular, the Board will be diligent in pursuing timely responses from all licensees with whom the Board, its committees or staff wish to communicate.
1. Following receipt of a complaint, the Board will send notice of the complaint to the physician with a request for a response within 30 days. Physicians who believe they may have difficulty responding within this period of time may request an extension…which may be allowed at the discretion of the staff.
2. If no response is received within 30 days or within the extended period…the Board will send notice by certified mail that the physician has 30 days to respond or the matter of the physician's failure to respond will be referred to the Complaint Committee with a request that Complaint Committee recommend to the Board that a Statement of Allegations be issued….
3. Upon failure to reply within these time limits, the matter will be referred to Complaint Committee and a new complaint on the charge of failure to respond will be opened and docketed. Complaint Committee will issue an order that the physician must respond within 10 days or it will recommend that the Board issue a Statement of Allegations for failure to respond. The Committee may also recommend issuance of a Statement of Allegations on the underlying complaint.
4. If a response is received within 10 days following Complaint Committee's order, the matter of failure to respond will be placed on the next Complaint Committee agenda and the physician will be notified of his or her opportunity to appear before the committee on this charge. Alternatively, at its discretion, the Complaint Committee may consider the failure to respond at the time it considers the underlying complaint.
5. If a response to the Complaint Committee order is not forthcoming within 10 days, the matter will be placed on the next Board agenda with a recommendation that at Statement of Allegations issue, and the physician will be so notified and informed of his or her opportunity to request to be heard by the Board. At this meeting, the Board my [sic] issue a Statement of Allegations on the charge of failure to respond regardless of whether the physician is heard at the meeting.
Licensees should be aware that the Board intends to discipline individuals who fail to respond to multiple Board inquiries. Those who have disregarded Board inquiries, and who have not responded according to the guidelines and time frames set forth in a letter from the Board, may face disciplinary actions including sanctions and/or a fine. These disciplinary actions are reportable to the national data banks and to the public.
166. I take notice that, according to the Board web site, this policy was rescinded on February 15, 2006. "Board Policies," http://www.massmedboard.org/regs/.
167. Dr. Chaturvedi testified that after notice of a November 2004 complaint, she requested and was granted an extension of time to respond by either Norma Jaynes, a Board investigator, or by one of the Board members. II, 288-289.
168. Further, Dr. Chaturvedi testified, she met with the Complaint Committee four times. II, 290.
169. Dr. Chaturvedi corresponded with Ms. Jaynes in August 2005 in a letter that refers to prior communications from Ms. Jaynes. Ex. 43.
170. Norma Jaynes testified at the hearing. She testified that she had been a Board investigator since 1993; that she was assigned to the Chaturvedi matter in June 2005; and that there were three Complaint Committee meetings at which Dr. Chaturvedi appeared and Ms. Jaynes was present at all three. VI, 646-47.
171. Ms. Jaynes testified further, that in the first of three Complaint Committee meetings, in September 2005, Dr. Chaturvedi told the Committee that she was not aware that the patients had not received their records and to her knowledge, they had received their records. IV, 647-48.
172. Further, Ms. Jaynes testified that, after the September meeting, she spoke to Dr. Chaturvedi directly after the meeting, but did not recall what that conversation involved. IV, 648.
173. Ms. Jaynes testified further that, in addition to speaking with Dr. Chaturvedi after the September meeting, she had three phone conversations with her during the course of her involvement in the matter. IV, 648.
174. Norma Jaynes testified that she investigated some of the complaints about Dr. Chaturvedi; that the Board's Complaint Committee met three times about the matter, with Dr. Chaturvedi and Ms. Jaynes present at each of the three meetings. Further, Ms. Jaynes attested that at the first meeting, in September 2005, there was discussion of the documentation of Patient A and Patient B's records; that after that meeting the Complaint Committee directed Ms. Jaynes to investigate Dr. Chaturvedi's claim that she was not aware that patients A and B had not received their records, and Dr. Chaturvedi's assertion that, to her knowledge, these patients had received their records. IV, 646 - 650.
175. Ms. Jaynes testified that Dr. Chaturvedi never gave her a copy of the receipt which indicated that Patient A had received her records. IV, 649. The record does not show whether and when it was requested.
176. Ms. Jaynes testified further that after the September meeting, she did speak directly with Dr. Chaturvedi, but that she could not recall what Dr. Chaturvedi said; she did recall what the Complaint Committee said to Dr. Chaturvedi - that Ms. Jaynes had made phone calls prior to that meeting and the parties were still saying they did not have their records. IV, 648, 650.
177. Ms. Jaynes testified that after the first meeting, the Complaint Committee asked Dr. Chaturvedi to return the following month; at the November meeting, Dr. Chaturvedi stated that the clients had received their medical records. Ms. Jaynes believed that Dr. Chaturvedi may have been referring to Patient A, Patient B and Patient C. IV, 650.
178. Ms. Jaynes testified further that the Complaint Committee asked Dr. Chaturvedi to have a ProMutual audit and told her that she was in jeopardy of having discipline against her license. IV, 650-651.
179. The testimony of numerous witnesses was proferred, eight of whom were permitted to testify as to Dr. Chaturvedi's good character and reputation in the community. Each attested vigorously and without exception to her skill, caring and compassion as a physician who was involved and respected in the community. V, 708-738.
II. CONCLUSIONS OF LAW
A. MOTION TO DECLARE MISTRIAL
As grounds for her Motion to Declare Mistrial ("Motion"), Dr. Chaturvedi asserts that the allegations at issue in this proceeding were brought for improper reasons, and by a process tainted by unfairness. In addition, the Motion asserts that once the charges were brought, the proceedings before the Division were also flawed.
In support of the Motion, Dr. Chaturvedi makes a series of allegations, briefly summarized here. First, it is alleged that Dr. Chaturvedi resigned from BMC HealthNet, represented in the Motion as an independent physician's association (IPA), because of alleged improprieties in the IPA's Medicaid practices, and that when this came to light, it caused the IPA to lose significant, potential federal funding.
A second set of allegations concern a person related to Dr. Chaturvedi in law. According to the Motion, while the in-law was an in-patient at "BUMC," the office of a BUMC official, formerly a BMC Health Net official, issued an ultimatum: Dr. Chaturvedi and/or her husband would have to remove the in-law to another facility, or, if the patient was to remain, Dr. Chaturvedi and/or her husband would have to agree to never visit "BUMC" and to leave the patient in the care of hospital physicians. Motion, ¶ 13. Further, the same official allegedly canvassed Boston area hospitals "to not take" the in-law "to teach [Dr. Chaturvedi's] husband a lesson." Motion, ¶ 14. Additional allegations appear to address the circumstances under which the in-law was admitted to Cape Cod Hospital and problems in the hospital's treatment of the in-law after the admission.
Third, the Motion alleges that, using a pretext, "Cape Cod Health Care" relieved Dr. Chaturvedi of unspecified obligations to admit patients and be on call, and then, without notice to her, disciplined her for failing to perform those duties; and this, it is alleged, was done in conspiracy with "the BRM" to label her non-performance "as a violation of the BRM rules." Motion, ¶ 24. The Motion also asserts that Dr. Chaturvedi was tricked into "agreeing for a few months VANP as maternity leave," Motion, ¶ 27, and that "the BRM" attempted to improperly influence to exclude or divorce her husband or to exclude him from her practice. Motion, ¶ 34.
In addition, the Motion raises several alleged procedural defects as grounds for voiding the proceedings. These include allegations that the Division's rulings deprived Dr. Chaturvedi of discovery "into the egregious actions of the BRM," Motion, ¶ 27; that the trial was "rushed" "without any semblance of due process," Motion, ¶ 29 ; that Dr. Chaturvedi "was severely compromised by a local attorney … influenced by the Cape Cod bigotry," Motion, ¶ 28; that Dr. Chaturvedi's legal representative did not fully inform her of her options regarding the change of magistrates, Motion, ¶¶ 32, 33; and that no "decision in DALA was offered for over 9 months despite repeated requests." Motion, ¶ 36.
Some of these arguments were made or alluded to in colloquies at the hearing and in the oral closing statement by Dr. Chaturvedi's counsel at the end of the hearing. See V, 752-53. Some of them touch on matters as to which there was evidence at the hearing before the Division. I do not discount the seriousness of these allegations; however, they do not afford a factual or legal basis for me to declare a mistrial because, with the possible exception of the ruling on depositions, discussed below, they are beyond the scope of the Division's jurisdiction.
The matter before the Division is the Statement of Allegations as amended, which the Board referred to the Division for a hearing in accordance with the Standard Adjudicatory Rules of Practice and Procedure. See 243 Code Mass. Regs. 1.04. Dr. Chaturvedi's Motion challenges the legality of proceedings before the Board. This challenge is beyond the scope of the Division's authority. Cf. Westland Housing Corp. v. Commissioner of Ins., 352 Mass. 374, 382-383 (1967) (suit for declaratory relief will lie to challenge the legality of an administrative action) (citation omitted).
Having said this, I note that evidence was taken on one of the issues raised in the Motion to Declare Mistrial, i.e. the circumstances under which Dr. Chaturvedi agreed not to practice medicine, without any objection from the Board. For reasons noted, this evidence does not alter my conclusion as to the Motion to Declare Mistrial, but it may be pertinent in further proceedings before the Board or otherwise.
On one procedural claim, the denial of the request for depositions, Dr. Chaturvedi's claim is that she was deprived of an opportunity to obtain evidence which might have bearing on the proceedings before the Division when, without a hearing, her request for leave to depose certain witnesses was denied. The ground for that request was to discover evidence as to the deeds and motives of the Board, Cape Cod Hospital, and/or their agents and others to determine whether there was impropriety in bringing charges against Dr. Chaturvedi. Dr. Chaturvedi argues that, had she been permitted to depose Mr. Trimmier, Ms. Audesse and Ms. Jaynes and others, she might have developed relevant or potentially relevant evidence, such as facts which might have impeached the credibility of witnesses and facts pertaining to the board policies at issue.
For example, Ms. Jaynes, the chief investigator in this case, did testify and was subject to cross-examination, but she testified to a lack of memory on certain points. Had her deposition been taken in 2006, any prejudice to Dr. Chaturvedi or the Board arising from the passage of time between her 2005 investigation and her 2006 testimony might have been mitigated. In addition, other proposed depositions might have shed light on what constitutes a violation of the duty to timely provide patient records, and what rules apply when a licensee treats an in-law.
These points are well taken with the benefit of hindsight, but what matters is whether the ruling to deny the request for depositions was proper when it was made. To the extent Dr. Chaturvedi's Motion seeks reconsideration of that ruling, I note that the prerequisites for granting leave to take depositions were not established at the time. A magistrate may not grant such a request unless two conditions are met: (1) either the parties have agreed to submit the deposition in lieu of live testimony, or the witness cannot appear at the hearing without substantial hardship; and (2) the testimony sought is significant, relevant, and not discoverable by alternative means." 801 CMR 1.01(8)(c).
Neither of these elements were shown nor does it appear any attempt was made to establish these prerequisites. Therefore, even assuming arguendo that the evidence sought by deposition was significant and relevant, the magistrate could not properly have granted the motion. However, given how events later unfolded, the Board may wish to take additional evidence on these issues before imposing any discipline on Dr. Chaturvedi.
As to the allegations of procedural irregularities, the Motion asserts that this proceeding, in toto, denied Dr. Chaturvedi due process of law. This is a claim that the proceeding did not comport with applicable rules, set forth in G.L. c. 30A, §§ 10 - 11 and elsewhere, which are intended to ensure that due process to one in jeopardy of the loss of, or restrictions upon, her license to practice medicine. The challenges to the rulings on depositions and the change in presiding officers; the implication that there may have been some inadequacy in Dr. Chaturvedi's representation; and the claim of rushed proceedings and improper delay in rendering a decision are matters which Dr. Chaturvedi is entitled to raise in a request for judicial review as provided in G.L. c. 30A, § 14, or with respect to the suspension, revocation, or cancellation of Dr. Chaturvedi's license, in the Supreme Judicial Court, as provided in G.L. c. 112, § 64. The Division is not the forum in which these contentions can be resolved.
I construe the Motion to Declare Mistrial as a Motion to Dismiss pursuant to 801 Code Mass. Regs. 101.(7)(g). Assuming that the Division can grant such a motion in the posture of this case, for the reasons noted, I conclude that the Motion does not meet the requirements for dismissal of the allegations in this case and therefore deny the Motion.
B. RULINGS ON THE BOARD'S ALLEGATIONS
The Board ordered Dr. Chaturvedi to show cause why she should not be disciplined for the conduct alleged. The initial burden, then, is on the Board to establish that the conduct occurred and that it affords a legal basis for taking disciplinary action.
1. Responses to Records Requests
The Board charges that Dr. Chaturvedi failed to comply with a Board regulation regarding responding to requests for medical records. The legal basis for this charge is in G.L. c. 112, § 5(h) and 243 Code Mass. Regs. 2.07(13)(b). Read together, these provisions empower the Board to discipline a physician who fails "[u]pon a patient's request, [to] provide in a timely manner, to a patient, other licensee or other specifically authorized person …[a] copy of such record." 243 Code Mass. Regs. 2.07(13)(b)(2).
There is very little in the record as to what constitutes timely compliance under the regulation cited. Ms. Jaynes, the Board investigator, testified as to her understanding of Board rules, that a response on February 17 to a request made in January is a timely response. The Board, in its closing brief, asserts that "the Board considers two to three weeks to be reasonable response time to such requests." Board's closing brief, p. 19.
As authority for this, the Board refers to an article entitled Your Medical Record Rights in Massachusetts, Health Policy Institute, Georgetown University 2005, pp. 1, 8, and refers to the agency's website. These sources are not in evidence but I take notice that in June 2009 a consumer information brochure posted on the site included the following Q & A:
"How Long Should It Take? A physician must provide copies of a medical record in a timely manner to the patient or the patient's representative. Two to three weeks is considered "reasonable" [sic] by the Board. In the case of a medical emergency, records should be provided as soon as possible.
If the web information is an accurate statement of Board policy, this may dispose of most of the allegations involving record requests. What is not clear is whether the Board intends to establish a bright line rule - two-to-three weeks in non-emergency circumstances, or if, instead, the Board is adopting a standard of reasonableness under the circumstances. See Arthurs v. Board of Registration in Medicine, 383 Mass. 299, 312-315 (1981) (discussing ad hoc rulemaking announcing a rule by adjudication versus generally preferred method of rulemaking by formal promulgation. In the latter case, evidence of what is reasonable for a modern medical practice, such as industry standards, could be relevant. In addition, under a reasonableness standard, the Board might take into account the fact that Dr. Chaturvedi's office was undergoing a shift to electronic records when most of the complaints at issue were lodged. Other factors could be relevant to the determination as well, such as the lack of evidence anyone's health or safety was put at risk due to the alleged non-compliance.
Having said this, the definition of timely is for the Board to determine based upon its special expertise and experience. In making this determination, the board may not use its expertise if the evidentiary basis of that expertise does not appear in the record. Id., 383 Mass. at 309-10)(failure to include in record evidentiary basis for expertise applied "would not only render absolute a finding opposed to uncontradicted testimony but would render the right of appeal completely inefficacious as well") (quoting New Jersey Bd. of Optometrists v. Nemitz, 21 N.J.Super. 18, 28, 90 A.2d 740 (1952)).
Subsidiary to the Board's determination as to timeliness, I make the following rulings.
a. Requests by Patients A and B
The record shows that (1) Dr. Chaturvedi received multiple written requests from Attorney Vrana, Patient A's attorney, for the patient's records beginning in June of 2004; (2) the records were provided in December of 2005; and (3) Patient B's records may have been provided to Patient A in-hand on the day she requested them. At a minimum, a finding that records were not timely produced requires evidence that a request was made, when the request was made and when, if ever, the requested records were supplied. For reasons discussed, there may be other circumstances relevant to the issue of timeliness.
To the extent the Board seeks to impose discipline based on the alleged failure to provide Patient A and Patient B with their records, the complaint cannot be sustained because the only evidence is that the records were supplied to Patient A on the day they were requested. Although the Board questions why Dr. Chaturvedi did not produce the evidence of this, i.e. the receipt signed by Patient A indicating she accepted the records, to the Board sooner, this does not change the result. Dr. Chaturvedi is not required to prove her compliance with the request. The absence of proof to rebut an unsubstantiated allegation does not create substantial evidence to the contrary. Merisme v. Board of Appeals on Motor Vehicle Liability Policies and Bonds, 27 Mass.App.Ct. 470, 475 (1989) (citing Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 251-52).
b. Attorney Vrana's Requests
The alleged failure to respond to Attorney Vrana is in a different posture. The record clearly shows that the attorney, acting on behalf of Patient A, made multiple requests for records, and these went unanswered for at least four months. Dr. Chaturvedi conceded that this should not have happened. Under these circumstances, the Board could conclude that the failure to respond to Attorney Vrana's requests was untimely.
c. Record Requests by Patient C
The evidence of a record violation in Patient C's case is as follows. There is Patient C's testimony that she requested her records in January, and received partial records about a month later, but did not receive all of her records until April or May, shortly after she saw Dr. Chaturvedi. There is a letter from the office of Dr. Howard indicating that unspecified records were received on February 17, 2005, and Ms. Jaynes' testimony that she saw a letter from Dr. Howard's office indicating that Patient C's records were not received until June of 2005, but no such letter is in the record.
I credit Patient C's testimony that she first requested her records in January, and received partial records about a month later, but did not get her complete records until April or May after she made an appointment and saw Dr. Chaturvedi in person. Her account is uncontradicted and consistent with the letter from Dr. Howards office indicating that unspecified records were received in February 2005. It is also consistent with Ms. Jaynes testimony as to what she found in the course of her investigation of Patient C's complaint. Therefore, the Board could conclude that the failure to respond to Patient C's records request was untimely.
d. Record Requests by Patient D
The complete record on this allegation is in Ex. 12, consisting of Attorney William Diller's complaint to the Board, correspondence from Diller & Diller to Dr. Chaturvedi's office, and Patient D's authorization for the release of the records. These documents show that on April 25, 2005, Patient D executed an authorization for the release of her records to Diller & Diller, Attorneys at Law; that Attorney William Diller complained to the Board about Dr. Chaturvedi on July 21, 2005; the next day, according to a letter from Marc Diller, the law office received unspecified medical records by fax from Dr. Chaturvedi's office; and, according to a letter from Kelly Elam of Diller & Diller, on December 6, 2005, the law office received specified medical records by fax.
The allegations at issue are that Attorney Diller made multiple requests for records and the records were not timely supplied. Although William Diller's complaint to the Board recites that multiple, written requests for the records were made, the requests themselves are not in evidence and there is no other evidence as to what is recited in the his complaint to the Board. Neither Patient D nor attorney Diller testified. See Merisme v. Board of Appeals on Motor Vehicle Liability Policies and Bonds, 27 Mass.App.Ct. at 473-76 and cases cited (discussing relation between hearsay and substantial evidence in administrative proceedings).
In addition, there is no evidence from which to determine what records were or were not supplied or when. The correspondence from Diller & Diller does not show this, the records themselves are not in evidence. Because there is insufficient evidence on the central issues - when were the records requested and when were they supplied - the Board has not met its burden as to the alleged untimely response to requests for Patient D's records.
e. Record Request by Patient E
The record shows that some time in April of 2005, Patient E requested her records. The record does not show what records were provided. In order to find that the records supplied were not complete, Patient E's testimony that the disk she received did not contain all her records, must be credited. I decline to do so without benefit of the disk itself, or any competent testimony as to what it contained. The allegations as to Patient E's records may be appropriate for a remand to the Division to take further evidence. However, on the current record, the allegation that Dr. Chaturvedi failed to respond to Patient E's records request has not been sustained.
f. Record Request by Patient F
It is not clear that the Board intends to press any claims involving Patient F. It is alleged that Patient F requested copies of his medical records fourteen times without success. Amended Statement of Allegations, ¶ 7. No evidence was introduced pertaining to these allegations. For reasons discussed elsewhere, the complaint to the Board does not suffice to establish the necessary facts, i.e., that the record requests were made as recited in the Board complaint, when they were made, etc., and there is no evidence that Dr. Chaturvedi did not timely comply. No basis for disciplinary action appears as to Patient F.
g. Record Request by Patient I
Although the Statement of Allegations avers that Patient I requested her records in May 2006, Patient I testified that she requested her records sometime in the Fall of 2006. She did not recall exactly when she received the records, but she believed it was in December 2006 or January 2007. Patient I did not cite failure to supply her medical records in her complaint to the Board and it appears from her testimony that her greater concern was with a potential HIPAA violation, unduly long wait time, and the extreme difficulties this caused her in attempting to keep Patient J's prescription current.
These are legitimate concerns; however, the Board did not charge Dr. Chaturvedi on this basis. According to the evidence, the records may have been requested in November and provided in December. If a two-to-three week response time is the standard, Dr. Chaturvedi may have met it. The Board has made not the requisite showing that there was an untimely response to record requests by Patient I.
h. Record Request by Patient K
A generous reading of the testimony would put the time between the request and receipt of the records at five or more months, but it can also be read as consistent with Dr. Chaturvedi's testimony, that the records were requested in October 26 and supplied on December 1. Like other patients, Patient K was distressed by the extreme wait times he experienced at Dr. Chaturvedi's office, and the sense that he was being given "the runaround." This and the equivocal testimony as to dates lead me to conclude that the Board has not met its burden as to these allegations.
i. Record Request by Patient L
Patient L's uncontroverted testimony is that she requested her records and did not receive them until five or more months later. On this basis, the Board could find that Dr. Chaturvedi's response to Patient L's records request was not timely.
j. Record Request by Patient M
The same is true with respect to Patient M's records request, i.e., that based on the evidence presented, the Board could find that Dr. Chaturvedi's response to Patient M's records request was not timely. I note that the patient had received her records by the time she filed her complaint with the Board, and she did not pursue her records request until after reading that others had complained about Dr. Chaturvedi. I note this not to discredit the witness, who has every right to her records, but for purposes of the assessment of the public harm which the Board must undertake before any disciplinary action is taken.
k. Record Request by Patient N
The records pertaining to Patient N and which allegedly were not timely supplied are ultrasound records. The Board has not met its burden with respect to these allegations. Whether there were any such records in Dr. Chaturvedi's custody, and when or if the patient authorized the release of these records, does not appear in the record.
l. Record Request by Patient O
The Board has met its burden with respect to Patient O. Although Dr. Chaturvedi's testimony and Patient O's testimony conflict, I am persuaded by the evidence presented that Patient O did in fact supply his records to Dr. Chaturvedi on the date of his office visit in February 2006. This account is corroborated by the electronic entries made by Dr. Chaturvedi's office staff, and those entries tend to confirm not only that the interactions to which Patient O testified took place, but that they took place as he described them at the hearing. In addition, the office records document that Patient O made repeated attempts to retrieve the records.
Although Dr. Chaturvedi testified that she did not receive Patient O's records, her testimony on this point does not overcome the competing evidence for purposes of this proceeding. Her first statement on this point, in answer to the Statement of Allegations, was that she did not recall, but also did not deny, having received the records. This suggests that her subsequent testimony may have been based on an assumption or other information, rather than her personal recollection.
Her testimony that she did not receive the records is based on her experience with DOT examinations, i.e., that such examinations do not require patient records. Accepting this as true, however, it does not go to the question of whether Patient O himself provided the records, regardless of whether they were or were not required for a DOT exam. Further, in Patient O's testimony, there is a plausible explanation of why he would have brought his records: having undergone numerous medical clearance examinations in which the records are often required, he always brings his records.
For these reasons, I find that there is sufficient and substantial evidence to establish that Patient O provided records to Dr. Chaturvedi which were never returned to him. It is beyond dispute that a complete failure to respond to a records request is an untimely response.
2. Alleged Inappropriate Transfer of a Patient & Care of In-Law
The allegations regarding the improper transfer of a relative have been stricken with the exception of the assertion that the transfer was medically inappropriate. There is no evidence which would permit a finding that Dr. Chaturvedi was responsible for the transfer and no evidence at all regarding the transferor, who initiated and authorized the transfer, etc. Dr. Sehic, not Dr. Chaturvedi, admitted the patient to Cape Cod Hospital. Disciplinary action against Dr. Chaturvedi on the basis of these transfer allegations is therefore unwarranted.
As to the other events at Cape Cod Hospital, the Board alleges Dr. Chaturvedi interfered with the care of her in-law. What the record shows is that she had no reason to believe that, as a physician with privileges at the hospital, she was not entitled to consult in the care of a patient who was attended not by her, but by a hospitalist who, it appears, freely consulted with her. No rule prevented a doctor from participating in the care of an in-law or blood relative. Although Dr. Aruda and others frowned upon it, he did not become chief of staff until after she had been involved for some time. In addition, the hospital permitted it.
While the record shows there are good reasons for concern when a physician is involved in treatment decisions regarding a relative or in-law, reasonable minds may differ as to whether this is appropriate and also as to whether this is preventable. By bringing this allegation, the Board may have chosen to announce a proscription barring licensees from being involved in the care of an in-law or relative. If so, a better record as to how this serves the public interest would be an advantage.
There are three opinions in evidence on this issue, Dr. Sehic's, Dr. Arruda's and Dr. Chaturvedi's. Dr. Sehic's opinion, that care of a relative is not a good idea, is somewhat impeached by the fact that, given that opinion, he made medical decisions against his better medical judgment.
Dr. Arruda's opinion on treating a relative could support a finding by the Board that Dr. Chaturvedi's conduct was inappropriate. However Dr. Chaturvedi's contrary opinion, also in evidence, makes this a difficult call. Given all the circumstances of this case, including the fact that that the hospital rules, to which Dr. Chaturvedi adhered, did not prohibit her from participating in her in-law's care, such a result seems unfair.
3. Failure to Respond to Board Inquiry
Although the Board cites Policy 94-003 in its closing brief, if the Board website information is correct, the policy on responding to Board inquiries is no longer in effect. Assuming, without deciding, that the policy applies, the record is clear that although Dr. Chaturvedi may not have responded to the Board's inquiry to the satisfaction of the Complaint Committee, she clearly responded to the Committee, in writing and in person. Whether or not she responded to the satisfaction of the Committee is immaterial. Under the policy, the Board retains complete discretion as to what if any discipline is imposed in such a case. A determination as to these allegations therefore rests with the Board.
As to the Board's assertion that Dr. Chaturvedi failed to respond within 30 days to a request as required under 243 Code Mass. Regs. 2.07(12), the Board has not met its burden. Ms. Jaynes recalled having phone conversations with Dr. Chaturvedi in 2005, but she did not recall the substance of these conversations. Dr. Chaturvedi testified that Ms. Jaynes gave her an extension of time to respond. On this record, the charge of non-compliance with the regulation cannot stand.
4. Pharmacy Complaint
In its closing brief, the Board takes the position that Dr. Chaturvedi violated General Laws Chapter 94C, § 23(g). If so, she is subject to discipline under either of two statutory provisions. She would be
guilty of an offense against any provision of the laws of the commonwealth relating to the practice of medicine, or any rule or regulation adopted thereunder, G.L. c. 112. s. 5(b);
guilty of conduct which places into question the physician's competence to practice medicine."
G.L. c. 112 § 5(c).
Chapter 94C, § 23(g) provides:
Unless otherwise prohibited by law, a prescription shall be: (1) written in ink, indelible pencil or by other means; or (2) transmitted electronically; and (3) signed by the prescriber. A prescription may be transmitted electronically with the electronic signature and electronic instructions of the prescriber, and shall be transmitted directly from the prescriber to the pharmacy designated by the patient without alteration of the prescription information, except that third-party intermediaries may act as conduits to route the prescription from the prescriber to the pharmacy.
An electronically signed prescription is not per se improper under this provision, even for a controlled substance. Id. It is permissible so long as it is transmitted electronically with the electronic signature and electronic instructions of the prescriber, and transmitted directly from the prescriber to the pharmacy, by fax or by a person (other than the patient) authorized to do so. Id.
What's missing here is an explanation of what role if any Dr. Chaturvedi played in the transport of the unsigned electronic prescription to the pharmacy. According to the pharmacist, the patient did return with a properly executed prescription. In other words, once the matter reached Dr. Chaturvedi's attention, it was addressed. The record does not show whether Dr. Chaturvedi herself gave it to the patient. If so, then she neglected to sign it, and this was a violation of the requirement that generally, all prescriptions must bear an original signature. If, however, the prescription reached the patient some other way, for example, if a staff member gave it to the patient, on the presumption that when the patient took it to the pharmacy, she would issue an oral order to fill it, then Dr. Chaturvedi did not issue an improper prescription and therefore did not violate the statute.
While this may seem to be an overly technical distinction, I decline to overlook it for several reasons. First, the prescriptions themselves, which would presumably constitute prima facie evidence in a case of violation of the prescription laws, are not in evidence, having been withdrawn by the Board on the last day of hearing. IV, 746. The document Ms. Barsic filed with the Board, which she declined to characterize as a complaint, is not in evidence and might shed more light on the circumstances under which the matter came to her attention, what the patient said, etc.
In addition, there are other requirements governing prescriptions for controlled substances in G.L. c. 94C, § 23, and elsewhere. See G.L. c. 94C, § 17. Oral prescriptions for controlled substances can be filled in certain circumstances. See id. ("drugs in said Schedule II may be dispensed upon oral prescription of a practitioner, reduced promptly to writing and filed by the pharmacy pursuant to the provisions of subsection (a) of section twenty.") This may explain, in part, why Ms. Barsic was so persistent in her efforts to contact Dr. Chaturvedi's office; she recognized that if the objective was to have the prescription filled, it could have been accomplished if Dr. Chaturvedi had faxed the electronically signed record, or given verbal orders to fill the prescription over the phone. The record would permit a finding that in fact, that is what Dr. Chaturvedi intended as well.
There is no allegation and no evidence that Dr. Chaturvedi, alone or in conjunction with the patient, purposefully attempted to skirt the controlled substance laws. While she may be held accountable for the release of the unsigned prescription, it could not have been filled under any circumstances, because it was not transmitted from the prescriber in the manner specified in § 23(g). There was no risk to the patient or the public due to the release of the unsigned prescription unless it fell into the hands of a pharmacist willing to violate the law on dispensing controlled substances. That did not happen here.
I accept and agree with the contention, conceded by Dr. Chaturvedi, that the electronically signed prescription for a controlled substance should not have left her office. This is further evidence that Dr. Chaturvedi did not have command of her office systems and/or staff for which the Board may impose discipline. However, I conclude that the Board has not established by sufficient evidence that Dr. Chaturvedi violated c. 94C §. 23(g). Discipline on the basis of this allegation is therefore not permitted.
The record does suggest that there was delay in getting the prescription filled. According to Ms. Barsic, she got no response from Dr. Chaturvedi after trying to reach her over the weekend and the following Monday and Tuesday. Here again, this may evidence deficits, perhaps significant, in her accessibility, but it may also be a consequence of confusion on the part of both the pharmacist and Dr. Chaturvedi, as to what was permissible in the wake of the suspension of her right to practice medicine, occasioned by the entry of the Voluntary Agreement Not To Practice. Whether these circumstances rise to the level of a discipline-worthy violation is a question for the Board.
It is clear on the entire record that Dr. Chaturvedi failed to adequately manage the growth in her practice and that attempts to modernize administrative systems may have created more problems than they solved. Also clear is that there are mitigating circumstances. Moreover, it appears, with the Board's guidance, Dr. Chaturvedi's management of records and patients was improving. In all this, I found no evidence that any patient's health was put in jeopardy by Dr. Chaturvedi's conduct. Based on the foregoing, I recommend that the Board take such action as is consistent with the foregoing rulings.
DIVISION OF ADMINISTRATIVE LAW APPEALS
/s/ Shelly Taylor
Dated: October 1, 2009