BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

KIM MARKL SHERIDAN, M.D.

Physician's and Surgeon's Certificate No. G 75417

Respondent.

DECISION

) ) ) ) Case No. 08-2007-185883 ) ) OAH No. 2011040438 ) ) ) ) )

The attached Proposed Decision is hereby adopted by the Medical Board of California, Department of Consumer Affairs, State of California, as its Decision in this matter.

This Decision shall become effedive at 5:00 p.m. on August 10, 2012.

IT IS SO ORDERED July 13, 2012.

MEDICAL BOARD OF CALIFORNIA

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

KIM MARKL SHERIDAN, M.D.

Physician's and Surgeon's Certificate Number G 75417

Respondent.

Case No. 08-2007-185883

OAH Case No. 2011040438

PROPOSED DECISION

Administrative Law Judge (ALJ) Marilyn A. Woollard, Office of Administrative Hearings (OAH), State of California, heard this matter in Sacramento, California, on May 14, 15, 16, 22, 24, and 25, 2012.

Deputy Attorneys General Mia Perez-Castille and Jannsen Tan appeared on behalf of complainant Linda K. Whitney, Executive Director of the Medical Board of· California (Board).

Marvin Firestone, Attorney at Law, represented respondent Kim Markl Sheridan, M.D., who was present.

Oral and documentary evidence was presented. On May 25, 2012, the parties' offered oral closing arguments. The record was then closed and the matter was submitted for decision.

FACTUAL FINDINGS

1. On October 20, 1992, the Board issued Physician's and Surgeon's Certificate (certificate) Number G 75417 to respondent. As of the conclusion ofthe hearing in this matter, respondent's certificate was renewed and current, with an expiration date ofMay 31,2012.

2. On July 12, 2010, complainant signed the Ac.cusation in this matter and requested that respondent's certificate be revoked or suspended, based upon his alleged gross negligence, repeated acts of negligence and failure to maintain adequate

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and correct records in his care and treatment of patients A.M. and M.M., in violation of Business and Professions Code sections 2234, subdivisions (b) and (c), and 2266. 1

Complainant also requested that respondent's authority to supervise physician's assistants be denied, revoked or suspended. The specific allegations regarding respondent's care of each of these patients is detailed below.

3. On August 4, 2010, respondent's former attorney, Robert J. Sullivan, filed aN otice of Defense and Notice of Special Defenses (collateral estoppel, laches and statute of limitations) on respondent's behalf. Effective December 31, 2010, Mr. Firestone assumed respondent's representation.

4. The matter was set for an evidentiary hearing before an Administrative Law Judge of the Office of Administrative Hearings, an independent adjudicative agency ofthe State of California, pursuant to Government Code section 11500, et seq.

5. At the hearing, respondent offered no evidence or argument regarding special defenses.

Respondent's Background

6. Respondent obtained a Bachelor of Arts degree in chemistry in 1978. He attended medical school at the University of Kansas, and received his medical degree in 1985. Respondent then completed a one-year internship in internal medicine at Huron Road Hospital in Cleveland, Ohio.

Respondent's first specialization was in anesthesiology. From 1985 through 1987, respondent was a resident in anesthesiology at the Case Western Reserve Hospital in Cleveland. From 1988 through 1994, respondent was in private practice as an anesthesiologist in Overland Park, Kansas.

After several years in this field, respondent decided to become more involved in patient care and to retrain as an obstetrician-gynecologist (ob-gyn). From 1994 through 1997, respondent completed an ob-gyn residency at the University of California, Los Angeles (UCLA), Harbor Hospital. Respondent testified that 90 percent of the obstetric patients he cared for in this residency were considered high risk. The residency training focused on how to work-up and manage high risk

1 Unless otherwise indicated, all undesignated statutory references are to the Business and Professions Code.

To protect patient confidentiality, the patients' initials are substituted for their names, which are identified in the Confidential Names List. The patients' medical records, contained in Exhibits 6 (A.M.) and 8 (M.M.) are placed under seal, subject to review by a reviewing court of competent jurisdiction.

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pregnancies on a daily basis, through delivery, including by operative delivery using forceps and by Cesarean section (C-section).

After completing his ob-gyn residency, respondent was in private practice as an ob-gyn in Alabama (1997-1998) and in Louisiana (1998-2004).

7. In 2004, respondent began a private ob-gyn practice in Merced, California, with hospital privileges at Mercey Medical Center Merced (Mercy Merced). In July 2006, Mercy Merced's Medical Executive Committee (MEC) initiated an investigation of respondent's practice, which focused on his clinical management and surgical technique, behavior, and medical record-keeping with multiple patients. On July 26, 2007, the MEC notified respondent that he was required to submit to a comprehensive assessment by the University of California, San Diego PACE Program and a fitness evaluation.

On July 31, 2007, after his privileges were suspended, respondent voluntarily resigned his privileges at Mercy Merced.

8. After leaving Merced, respondent moved back to Kansas where he practiced for one year as a gynecologist. From 2008 through 2012, respondent was in private practice as a gynecologist in Tampa/Pensacola, Florida. His current address of record is in Las Vegas, Nevada. Since the Accusation was filed, respondent has been unable to obtain hospital privileges and consequently limits his practice to out­patient gynecology. 2

9. Respondent is Board-certified in obstetrics and gynecology. Including his UCLA residency, respondent has practiced obstetrics for approximately 14 years (1994-2008). Respondent testified that he has never been sued for malpractice as an ob-gyn. Prior to this case, respondent was the subject of one investigation by a licensing board in Kansas in 1991, which resulted in no action being taken against his license.

Board Investigation

10. . On August 8, 2007, approximately one week after respondent's resignation,"Mercy Merced's Medical Director filed a Health Facility/Peer Review Reporting Form (805 Report) with the Board and indicated that respondent had resigned from staff "following notice of an impending investigation based on information indicating medical disciplinary cause or reason."

2 As indicated in his subject interview, respondent holds active licenses in California, Florida, Georgia, Alabama, Arkansas and Ohio, and inactive licenses in Kansas, Lousisiana, and North Carolina.

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11. Shortly thereafter, Board Investigator Jessie Townsend was assigned to investigate the case. As part of his investigation, Mr. Townsend obtained Mercy Merced's medical records for patients A.M. and M.M.3 On October 6, 2008, Mr. Townsend obtained respondent's written comments on the investigation, including his "general response" regarding his treatment of A.M. and M.M.

· On June 30, 2009, Mr. Townsend conducted and recorded an interview (subject interview) with respondent who was accompanied by his attorney. Mr. Townsend referred the matter for expert review.

Background and Qualifications of Testifying Experts

12. Board's Expert Seung-Nam Kim, M.D.: In 1967, Dr. Kim obtained his medical degree from the Catholic Premedical & Medical College in Seoul, Korea. Following four years of military service, Dr. Kim came to the United States, passed a medical licensing examination, and completed a one-year rotating internship at Norwalk Hospital in Norwalk, Connecticut. From January through June 1973, Dr. Kim was in a surgical residency at Norwalk Hospital. For the next three years, Dr. Kim was a resident, including the chief resident, in obstetrics and gynecology at Montefiore-Morrisania Hospitals Medical Center in the Bronx, New York. Dr. Kim is licensed in California, Pennsylvania, New York and New Jersey.

In February 1981, Dr. Kim became board certified by the American Board of Obstetrics and Gynecology (ABOG). Although he was not required to do so, Dr. Kim voluntarily recertified with ABOG on two occasions: in 1989 and in approximately 1997. -

Dr. Kim has maintained a solo practiced as an ob-gyn in Fresno, California since 1978, and holds privileges at various hospitals. He has a subspeciality in urogynecology. Dr. Kim is an ABOG fellow and a fellow of the American College of Surgeons. He has served as President and Secretary of the Fresno Society of Ob­Gyns; as Chairman ofthe St. Agnes Hospital's Medical Records and Ob-Gyn Quality Assurance Committees; and as a member of the Fresno-Madera Medical Society's Medical Malpractice Advisory Committee.

Dr. Kim estimates that, over the years, he'has delivered 4,000 to 5,000 babies. Of these deliveries, approximately 10 to 15 percent were by Cesarean section and less than five percent were by use of forceps. In early 2008, Dr. Kim stopped delivering babies. He continues to practice gynecology. In 2011, Dr. Kim completed a four­month course in fetal heart monitoring and he passed a fetal monitoring test.

3 At hearing, the only medical records available for A.M. and M.M. were provided by Mercy Merced. Respondent testified that he still had his office records, that they were in storage, and that they had never been requested by the Board.

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Dr. Kim has worked as an expert reviewer for the Board on approximately four to five cases. He has not engaged in research for publication. Dr. Kim is · currently pending appointment as a clinical assistant professor within a residency program in gynecology surgeries.

Dr. Kim was qualified as an expert in obstetrics and gynecology.

13. Respondent's Expert Hanns C. Haesslein, M.D., MPH: Dr. Haesslein obtained his medical degree in 1970 from the Medical College of Virginia, School of Medicine. After a one-year rotating internship at the Santa Clara Valley Medical Center in San Jose, California, he completed a three-year residency in obstetrics and gynecology at Stanford University Medical Center. From 1976 through 1978, Dr. Haesslein completed a two-year fellowship in maternal-fetal medicine, at the University of California (UC) Davis Medical Center, Department of Ob-Gyn, Division of Maternal-Fetal Medicine.

Dr. Haesslein is Board-certified by ABOG (November 1976). He is licensed as a medical doctor in California and has inactive licenses in Nevada and Washington. In 1994, Dr. Haesslein earned a Masters in Public Health from the UC Berkeley School of Public Health, Maternal and Child Health Division.

In addition to private practice, Dr. Haesslein has been a Physician Specialist and an Acting Assistant Professor in the Department of Obstetrics and Gynecology at Stanford University School of Medicine; an Associate Clinical Professor in the Department of Family Practice at UC Davis Medical School and at UC San Franciso. He has been the Director of the Maternal-Fetal Medicine Divisions at both Sutter Memorial Hospital and UC Davis Medical Center. He has worked as a consulting perinatologist. Since 2002, Dr. Haesslein has worked in private practice at Sacramento Maternal Fetal Medicine-Perinatology. Dr. Haesslein has an extensive list of peer-reviewed publications and book chapters in the field of obstetrics and gynecology. Dr. Haesslein has also worked as an expert reviewer for the California and Alaska Medical Boards. In his work for the Board, Dr. Haesslein has testified against doctors in licensing cases.

Dr. Haesslein was qualified as an expet1 in maternal-fetal medicine and obstetrics.

I. PATIENT A.M.

14. Accusation: Complainant alleged that respondent's care of A.M. constituted gross negligence based upon his: (a) failure to recognize A.M.'s unsuccessful labor progress; (b) failure to recognize fetal distress; and (c) delay in performing a C-section in the presence of fetal distress. Complainant alleged that respondent's conduct constituted repeated acts of negligence for these same reasons and, additionally, because he failed to properly document his care and treatment of

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A.M. Complainant alleged respondent engaged in unprofessional conduct by failing to maintain adequate and accurate records.

A.M 's Mercy Merced Medical Records 4

15. Prenatal History: On February 11, 2005, A.M. began a series of 13 prenatal visits with respondent. A.M. was 16 years old and living at home with her mother. She was 10.4 weeks pregnant and had no previous pregnancies. Based upon her young age (under 18), A.M.'s pregnancy was considered "high risk." Her lab work during prenatal visits was normal except that her blood type was found to be Rh negative, which was an additional high risk factor with implications for future pregnancies.

On May 2, 2005, A.M. was admitted to Mercy Merced for right flank pain and fever at 22 weeks of pregnancy. She was treated with intervenous antibiotics and discharged on May 5, 2005, with a diagnosis of right pyelonephristis (kidney infection). Respondent prescribed antibiotics for the remainder of the pregnancy (Macrodantin).

A.M. did not deliver by her September 5, 2005 (40th week) due date.

September 12, 2005

16. On September 12, 2005, at 1730 (5:30p.m.), A.M. was admitted to Mercy Merced at 41 weeks pregnancy for postdate induction of labor. A.M.'s cervix was undilated; she had irregular contractions and a blood pressure of 135/82. Upon admission, an external monitor was placed on A.M.'s abdomen to monitor the fetal heart. At 1745 (5:45p.m.), a baseline fetal heart rate of"130's" was recorded.

Respondent examined A.M. at 1912 (7: 12 p.m.) and explained the induction procedure to her. In addition to standard orders, respondent ordered intravenous administration ofPitocin to induce A.M.'s labor, to gradually increase from 1 to 24 milliunits/minute (mU/min). At this time, the fetal heart rate was 125-135 with average variability. Respondent also ordered Stadol, a synthetic opiod analgesic, 1 mg IVP q 1 hour PRN (as requested) for mild labor pain, to increase to 2 mg IVP q 1 hour PRN for strong labor pain.

17. Respondent's Progress Note, at 1800 (6:00p.m.) documented his assessment of A.M.'s status ( 41 weeks) and the condition of her cervix (closed, long

4 Unless specifically indicated as taken from respondent's progress notes, the information provided is from the nurses' notes or entries by other Mercy Merced staff.

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and thick). Respondent documented the NST (fetal non-stress test) as reactive, with good variability, no decelerations, with a fetal heart rate of 140s. Respondent's plan was to induce with Pitocin, routine orders and electronic fetal monitor (EFM).

In a Progress Note at 1920 (7:20p.m.), respondent documented A.M.'s cervix as "no change" and the NST as good variability, no decelerations.

18. Pitocin began at 1945 (7:45p.m) at 1 mU/min and increased at intervals. By 2400 (midnight), A.M. was receiving 14 mU/min pitocin and was resting comfortably, with mild contractions every two to three minutes. Her cervix remained closed.

September 13, 2005

19. During the early morning hours of September 13, 2005, A.M.'s EFM showed the fetal heart rate as ranging from 125 to 140, with occasional accelerations to 160. By 0600 that morning, A.M. remained undilated, with mild contractions every one to two, then every two to three minutes. She reported no discomfort. Fetal heart rate was 120 to 130. Pitocin was increased to 16 mU/min at 0600 and to 18 mU/min at 0615.

At 1000 (10:00 a.m.), A.M.'s cervix was dilated 1 centimeter (em). The fetal heart rate was 140' s with accelerations to 160.

At 1100 (11 :00 a.m.), respondent was present and received a report on A.M.'s condition. At this time, A.M. was receiving 21 mU/min Pitocin. She was resting, eating a clear diet, and tolerating mild uterine contractions well. Respondent ordered labs and the continued increase in Pitocin, which was then increased to 22 mU/min at 1130 and to 23 mU/min at 1230.

At 1330 (1 :30 p.m.), A.M. was sleeping. Respondent received a report of her blood pressure and labs. He ordered that the Pitocin continue at 24 mU/min.

By 1500 (3:00p.m.), AM's cervix was dilated 2 ems. The fetal heart rate was 150s with accelerations to 170's. A.M. was described as comfortable, although feeling some back pain.

In his Progress Note for 1700, respondent documented A.M.'s cervix (2/50/-3/mod/mid) and described the NST as reactive.

20. Artificial Rupture of Membranes: At 1931 (7:31 p.m.) on September 13, 2005, respondent examined A.M. who was still at 2 em dilation, with moderate contractions every two to three minutes. The fetal heart rate was 130- 140 with accelerations to 165. Respondent performed an artificial rupture of A.M.'s

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membranes (AROM). On breaking A.M.'s water bag, "clear amniotic fluid mod amt" was noted. Pitocin infusion continued.

Respondent's 2000 (8:00p.m.) Progress Note documented the AROM (clear) and A.M.'s cervix (3/70/-1/soft/ant), with a plan to continue Pitocin.

21. By 2215 (10:15 p.m.), A.M. was dilated to 3 em. Her cervix was 70 percent effaced and the fetus was in vertex position at -2 station. A.M. had mild contractions every one to two minute. The fetal heart rate was 130 to 140. AM requested pain medication and Stadol 2 mg IVP was given.

September 14, 2005

22. At 0040 (12:40 a.m.) on September 14, 2005, A.M. was dilated to 3-4 em and her cervix was 80 percent effaced. Her contractions were moderate. AM requested pain medication and Stadol 2 mg IVP was given.

A.M. requested and received Stadol 2 mg IVP for back pain again at 0330 . I

(3:30a.m.), and at 0520 (5:20a.m.).

23. At 0810 (8:10a.m.), the fetal heart rate was noted as 150s with decreased variability. A.M.'s blood pressure was 159 over 98. Her temperature was 100.

24. At 0900 (9:00a.m.), fetal tachycardia of 160-170 was noted. Respondent was paged and "informed of mat. temp. & fetal tachycardia." He ordered Ampicillen and Erythromycin (A.M. is allergic to penicillin). A.M. was having strong contractions.

25. At 0930 (9:30 a.m.), A.M.'s cervix was dilated to 4 em. Pain was 10/10. A.M. requested pain medication and Stadol2 mg IVP was administered.

26. At 0935 (9:35a.m.), A.M.'s temperature was retaken and reported as 101.5. Her pulse was 113, and her blood pressure was 140/74. At 1020, A.M. began receiving Tylenol600 mg for temperature.

27. Request for C-section/Pitocin Discontinued: At 1130 (11 :30 a.m.), A.M. was having strong contractions every two minutes. Her cervix remained at 4 em and her temperature was 1 00.9. Fetal heart rate was 170s. A.M. called the nurse and stated she was tired of the induction. A.M. and her family wanted the Pitocin stopped and wanted respondent to perform a C-section. Respondent was paged and informed of A.M.'s requests.

At 1204 (12:04 p.m.), Pitocin was discontinued by respondent's order.

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28. Respondent's Progress Note for September 14, 2005 at 1210 hours documents that he discussed with A.M. the plan "if no progression c/s likely for failure to dilate. Pt requests Pit to stop." Respondent documented the following plan: "(1) discontinue pitocin; (2) observe." In this Progress Note, respondent did not document the fetal heart rate, the NST, or any significant findings on the EFM.

29. At 1430 (2:30p.m.), the nurses' notes indicate that a C-section was scheduled for 1730- 1800 (5:30 to 6:00p.m.) that night.

30. At 1500 (3:00p.m.), the fetal heart rate was" 180's" with decreased variability. Maternal temperature was 100.4 with blood pressure of 139/71. A.M. reported not feeling any contractions. A.M. was prepped for surgery. A foley catheter was inserted with "clear amber urine return."

31. At 1555 (3:55p.m.), respondent was "paged & informed of fetal tachycardia [with] decreased LTV (variability).

32. At 1620 (4:20p.m.), fetal tachycardia was 180-190 with decreased variability. A.M. was given Tylenol 650 mg and oxygen was started. The nurses' notes indicate: "Fetal monitor strip faxed to Dr. Sheridan's office."· At 1625 (4:25 p.m.), respondent called and confirmed that he received the fetal monitor strip. The nurses' notes indicate: "he will come in."

33. In his Progress Note for 1640 hours (4:40p.m.), respondent documented maternal temperature of 101; "NST-non reacting minimal variability 180-190; contractions every two to four minutes; with a cervix at "4/80/-1/soft/ant." His assessment and plan was "pregnancy, 41 wks, failure to dilate; chorio [ chorioamnionitis ]; fetal intolerance to labor; proceed w 1 LTCS [primary low transverse C-section]."

34. At 1650 (4:50p.m.), respondent was "present in unit." Fetal heart rate was 180. Maternal temperature was 100.7; her blood pressure was 130/83.

35. In his Progress Note for 1700 (5:00p.m.), respondent wrote: "cont to await anesth for c/s; unable to find anesth available to proceed with operative delivery [illegible] pt."

36. C-section: At 1711 (5: 11 p.m.), A.M. was taken to the Labor and Delivery (L&D) operating room and met with anesthesiologist Vinod Raj ani, M.D. Mercy Merced's OB Operating Room Nursing Record for the C-section provided: "Case Status: EMERGENCY; Acuity Level: HIGH." In his Anesthesia Assessment Note, Dr. Raj ani indicated a diagnosis of "fetal intolerance to labor and chorioamnionitis." At 1720 (5:20p.m.), Dr. Raj ani administered general anesthesia to A.M.

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At 1729 (5:29p.m.), respondent began performing a primary low transverse C­section on A.M., with assistant surgeon Frank Baudino, M.D.

At 1733 (5 :33 p.m.) on September 14, 2005, A.M.'s baby boy was delivered by C-section. After delivering the baby, respondent clamped the umbilical cord and removed A.M.'s placenta manually. He then closed the incision. A frozen section of A.M.'s placenta, fetal membranes, and umbilical cord was sent to pathology.

The baby's fetal heart tone at birth was "180's." The baby's Apgar score at one minute after birth was three out often. At five minutes, the Apgar score was seven out often. A 10-minute Apgar score was not taken. 5

The baby's cord blood showed a pH of7.26.

37. Operative Report: On September 14, 2005 at 6:55p.m., respondent dictated his surgical note for A.M.'s C-section. Preoperative and postoperative diagnoses were: "(1) Pregnancy. (2) 41 weeks postdates. (3) Rh-negative. (4) Fetal intolerance oflabor. (5) Chorioamnionitis [and] (6) Failure to dilated [sic]."

38. Surgical Pathology Report: In his September 19, 2005 Surgical Pathology Report, pathologist James A. Wilkerson, M.D., analyzed A.M.'s frozen sections and provided the following description and diagnosis:

MICROSCOPIC DESCRIPTION: Sections from the umbilical cord demonstrate three vascular structures with early funisitis and acute chorioamnionitis. No meconium staining is identified. The placental substance is composed of the usual villi with area of hyalinization, syncytial knots, and calcifications. No villitis or other lesion is seen.

DIAGNOSIS: Third trimester placenta with acute funisitis and acute chorioamnionitis. [Bolding in original.]

39. On September 29, 2005, respondent dictated his admission note for A.M.'s admission to Mercy Merced on September 12,2005. He outlined A.M.'s history and his plan for "primary low transverse cesarean section." Under history of

5 Apgar score is a measure of a newborn's condition at one, five and 10 minutes after birth. It ranges from a low of one to a high of 10. At one minute, any Apgar score under five is considered a cause for concern. The five-minute score is more significant than the one minute score, and the 1 0-minute score is the best predictor of the baby's prognosis.

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present illness, respondent noted that after being admitted for postdate induction, A.M. "has prolonged rupture of membranes with maternal fever and fetal tachycardia, positive fetal movement, with fetal intolerance of labor is noted [sic] associated with maternal fever ... " The C-section was "secondary to fetal intolerance of labor and failure to dilate." Under "Physical Examination," respondent reported A.M.'s genitourinary condition as: Cervix is 5 em, 80%, -1, soft, and anterior." Under "nonstress test," respondent reported: "Fetal tachycardia at 180, no decelerations noted. Contractions every 2-3 minutes with decreased variability." Respondent's admitting impression was: (1) Intrauterine pregnancy at 41 weeks. (2) Postdates induction. (3) Rh negative. (4) Chorioamnionitis. (5) Fetal tachycardia.

Alleged Failure to Recognize A.M 's Unsuccessful Labor Progress

40. It was undisputed that respondent acted within the standard of care when he induced A.M.'s labor following her admission on September 12,2005. Both Dr. Kim and Dr. Haesslein agreed that a 41-week, post-date status is sufficient reason to initiate induction. Post-date induction of labor is the standard of care for women who are 41 weeks or more pregnant. The outcome for post-term babies starts to worsen after 41 weeks. Induction of labor by artificial means is within accepted standards. Induction can occur by various means, including by the administration of Pitocin and by artificially rupturing the membranes to increase uterine contractions.

41. The Board alleged that respondent failed to recognized A.M.'s unsuccessful labor progress. As indicated above, A.M.'s cervix was closed on admission. The induction of her labor began with the administration of Pi toe in on September 12, 2005 at 1945. Approximately 14 hours later, at 1000 on September 13, 2005, A.M.'s cervix was 1 em dilated. Five hours later, at 1500 on September 13, 2005, A.M.'s cervix was 2 em dilated. AROM occurred on September 13, 2005 at 1931. A.M.'s total time in labor from induction to AROM was approximately 24 hours.

A.M.'s total time in labor from induction to delivery by C-section was approximately 46 hours.6 A.M.'s total time in labor from AROM to delivery (September 14 at 1733) was approximately 22 hours. Respondent examined A.M. prior to the C-section and determined that her cervix was dilated to 5 em. After discontinuing Pitocin, it took eight hours for A.M.'s cervix to dilate from 4 em to 5 em.

42. Dr. Kim and Dr. Haesslein generally agreed that labor is divided into three stages: (1) first stage (from onset to full dilation of cervix [0 to 10 centimeters]); (2) second stage (from full dilation of the cervix to delivery); and (3)

6 Although Pitocin was discontinued at 1204 on September 14, 2005, AROM is a distinct method of labor induction.

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third stage (from delivery of the infant to delivery of the placenta), as indicated in one recognized textbook on maternal-fetal medicine. 7 First stage labor is subdivided into the latent phase and the active phase. Prodromal labor, or "false labor," occurs before the first stage and is characterized by symptoms such as uterine contractions, cramps and some spotting.

The parties dispute when A.M.'s labor began, if and when she entered "active" labor, and whether the time she was in labor was abnormal.

43. Dr. Kim testified that the standard of care for recognizing unsuccessful labor progress for a first baby is normally 18 hours of labor. He clarified that all women are different and that the three stages of labor may individually vary in length. Once the membranes are ruptured, the risk of infection is increased. Typically, infection begins 12 hours after rupture. At this point, the longer the wait to delivery, the greater chance that infections will occur. In Dr. Kim's opinion, typically "you do not go more than 24 hours" from rupture due to infection potential. After a doctor ruptures the membranes, there should be a certain degree of progress in labor and 80 percent or more women will deliver within 12 hours. If they do not spontaneously

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deliver, the doctor should stimulate the labor with medications and try to deliver. Dr. Kim stated "there is no strict rule" and that "usually you try not to pass more than 12 hours, certainly not 24 hours, because usually something happen. If it's not progressing, there's something wrong."

Dr. Kim characterized A.M.'s first 24 hours of labor as very slow. When induction began, her cervix was closed and very thick. In his opinion, the issue in this case is the amount of time to delivery after AROM. There should be one centimeter dilatation per hour on the average after rupture of membranes. At AROM, A.M. was dilated two centimeters; she was three to four centimeters dilated at midnight and nine hours later at 0900 only 4 em dilated. She remained at 4 em at 1640, which Dr. Kim estimated to be 23 hours post-AROM. (Actual time was approximately 21 hours). In Dr. Kim's opinion, there was a very clear indication of arrested labor. As indicated in Dr. Kim's report,

The standard of care is to recognize the abnormal progress of labor. Normal labor progress of first baby is variable, usually 18 hours. Labor progress is more rapid and effective with AROM. Normal or abnormal labor progress should be immediately interrupted if fetal distress is evidenced.

Dr. Kim noted that, in this case, even after AROM, the progress of labor was not normal. "There was no progress of labor for 9 hours after AROM between midnight and 9 a.m. on September 14. This is a clear indication of arrested labor. C-

7 Creasy and Resnick's Maternal-Fetal Medicine: Principles and Practice (Sixth Edition, 2009) (hereafter Creasy & Resnick), Chapter 36.

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section was decided at noon, 15-16 hours after AROM." Dr. Kim concluded that "not recognizing clear indication of arrested labor is extreme departure of standard of care."

44. Dr. Haesslein described first stage "latent labor" as all the time a woman spends having uterine contractions without reaching three and four centimeters of dilation. A.M. entered the latent phase of labor after Pitocin began. Active labor does not begin with the rupture of the membranes. The "active phase" of labor begins, usually after 3 to 4 em dilation, from the time at which the rate of cervical dilation begins to change rapidly to full dilation. Arrest of labor is generally defined as the failure of the cervix to dilate during the active labor phase for longer than two hours. By definition, an "arrest of labor" can only occur in the active phase of labor.

Dr. Haesslein described studies that have been conducted regarding the duration of labor in the active phase in relation to the stage of cervical dilation. In the 1950s, Dr. Friedman invented a labor curve to graphically demonstrate the changes in the cervix over time before and during active labor. As indicated in Creasy & Resnick, Dr. Freidman defined no cervical dilation for two hours as an arrest of the active phase of labor and a rate of dilation in the active phase of 1.2 cm/hr as a protracted active phase. More recent studies by Zhang, et al., in 2002, demonstrated that, using the current population, there is a more gradual transition from latent to active-phase labor, with a length of active labor of 5.5 hours rather than the 2.5 hours described by Friedman. Zhang also noted the common occurrence of at least two hours elapsing in the active phase without cervical dilation.

In Dr. Haesslein's opinion, following the induction of labor, A.M. never progressed beyond the late latent phase to the active phase of labor. As a result there was no arrest of labor. A.M. had induction of labor from admission until Pitocin was stopped at approximately noon on September 14, 2005. A.M. decided to end her induction at noon on September 14, 2005 and asked to be delivered. AM's baby was "relatively big-sized." The baby weighed roughly nine pounds, 11 ounces, which was the likely reason A.M.'s labor was so slow. Respondent's treatment of A.M. regarding the progress of her labor was not below the standard of care.

Alleged Failure to Recognize Fetal Distress

45. Dr. Kim and Dr. Haesslein disagreed on what constitutes "fetal distress." Both agree that a fetal heart rate over 160 beats per minute (bpm) is considered to be fetal tachycardia. Both agree that the presence or absence of fetal distress can be seen in the tracings of the external electronic fetal monitor, which A.M. wore almost consistently, except for toileting care, until the time of the C­section.

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46. The EFM tracing strip shows the fetal heart rate in relation to maternal contractions. The EFM graphically records beats per minute; the long term pattern of the fetal heart beat (accelerating, decelerating, or remaining constant with or without contractions or after contractions); and the variability in heartbeat (the random changes in the fetal heart rate from the baseline, shown on a beat per minute basis). The normal fetal heart rate at full term is between 110 and 160 bpm. The more fixed the heartrate (i.e., the less variability), the smoother the line on the EFM strip. Fetal heart rate variability is classified as poor (also referred to as minimal) when the fluctuations from the fetal heart rate baseline is from 0 to 5 bpm; moderate when the fluctuations are from 6 to 25 bpm; and marked when the fluctuations are greater than 25 bpm.

47. Dr. Kim defined fetal distress as a representation of the baby's condition showing that it is in distress. In this case, Dr. Kim considered fetal distress to be the persistent combination of two "non-reassuring signs," fetal tachycardia and poor or minimal variability, on the EFM.8 Dr. Kim testified that the standard of care for recognizing fetal distress, both currently and in 2005, is to use the EFM tracing to look at the baby's heartbeat patterns in utero. As indicated in his testimony and report:

Fetal distress is an emergency because baby is suffering inside of uterus, and the best treatment is to remove the factors causing the distress. Labor contraction is a big stress to this compromising baby, therefore should be stopped to help this sick baby by delivering baby immediately either through normal or C-section delivery.

In Dr. Kim's opinion, variability is the most important measure on the EFM because it reflects the baby's brain function. When the baby's brain functions are decreased, the variability is decreased. Generally, when the baby is awake, variability is good. A decrease in variability could be caused by the baby not getting enough oxygen or ifthere is some kind of medication, such as analgesics. To determine if the baby is in distress, the doctor has to review the entire picture to make a complete interpretation.

Based upon his review of A.M.'s medical records, Dr. Kim determined that signs of fetal distress started to manifest at 0550 on September 14, 2005, about 12 hours before delivery, and persisted and worsened until delivery. A.M.'s baby had tachycardia beginning at 9:30a.m. on September 14, 2005. Tachycardia was combined with decreased variability and this combination was not a good sign.

8At one point in his testimony, Dr. Kim made several references to "the baby's bradycardia" (abnormally slow heart rate). Dr. Kim later clarified that he misspoke and was referencing tachycardia (rapid heart rate) not bradycardia.

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A.M.'s fever, reported as 101.5 at 9:35 a.m. on September 14, 2005, was significant because her membranes had been ruptured the previous day and there was no longer any barrier or protection from a vaginal infection going up to infect the placenta and uterus. In Dr. Kim's opinion, this was obviously a sign of chorioamnionitis, an "infection of the placenta plus the baby and mother both. So that's quite [an] unfavorable condition."

Tachycardia persisted for a total of nine hours. Fetal distress was clearly manifested after noon on that date. In Dr. Kim's opinion, A.M.'s baby was in "fetal distress" from the time tachycardia began at 8:50a.m. on September 14, 2005, until delivery at 5:55p.m. In addition, the EFM for A.M. showed that the fetus had consistently poor variability -shown as almost a straight line- on September 14, 2005, from 8:50a.m .. until delivery at 1650. AM was given oxygen at 1620 on September 14, 2005. This is a routine procedure when a fetus shows distress with an abnormal heartbeat. By giving oxygen to the mother, the hope is to increase the oxygen received by the fetus. While the fetal heart rate occasionally recovered from poor variability, poor variability persisted and became worse in the afternoon, and particularly after 1200. Dr. Kim found that consistent poor variability was present for six hours and 50 minutes prior to delivery. During this time the fetal heart rate was mostly between 170 and 180 and as high as 185-190. Dr. Kim was also concerned that a sinusoidal rhythm was seen on the EFM at 9:00a.m. on September 14,2005.

Respondent was paged by the nurse at 1535 (3:35pm) and informed about the tachycardia and decreased variability. As part of his review, Dr. Kim listened to respondent's interview with Investigator Townsend, and noted that respondent stated that the baby has been stable until 4:00 p.m. Dr. Kim opined that this statement clearly indicated that respondent did not recognize the fetal distress before that time. He reported that "in fact induction was stopped at noon due to abnormal tracing by his telephone order." Dr. Kim concluded that not recognizing these emergency signs of fetal distress is an extreme departure from the standard of care.

48. Dr. Haesslein: Dr. Haesslein defined fetal distress as the point when the human fetus can no longer oxygenate itself adequately through the blood supply pumping through the placenta (i.e., is hypoxic) and therefore becomes acidotic, with the pH dropping, resulting in injury. Because the brain and kidneys are preferentially supplied with oxygen, these are the main organs affected when the fetus is in distress.

In Dr. Haesslein's opinion, "fetal distress" in full term pregnancies is a catch­all term that has no specific meaning, but reflects the obstetrician's conclusion that the fetus is no longer able to safely continue without emergency intervention. There are no gradations of fetal distress. It is an ali-or-nothing effect. The baby either dies or is resuscitated. In adequate, well-staffed hospitals, the majority of babies who are acidotic and hypoxic (i.e., have fetal distress) survive intact; a smaller percent will have learning disabilities or cerebral palsy. It is not a hindsight analysis because there

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are fetal heart rate monitor tracings and conditions in labor that are so clear cut as to be considered fetal distress by "everyone."

Dr. Haesslin cautioned about the limits of reliance on EFMs to determine fetal distress. He testified that studies by the University of Southern California have shown that EFMs are only effective to prevent sudden fetal catastrophe in labor and that their use does not result in "better baby outcomes" in the general population. Fetal distress over a fairly long time results in one of two things: either the baby dies, or it is resuscitated with no damage. There is an extremely narrow window of stress that results in brain injury as measured by the rate of cerebral palsy. Despite the use of EFMs over the last 40 years, the rate of infants developing cerebral palsy from brain injury during delivery has remained unchanged.

Fetal tachycardia was present in A.M.'s EFM strips on September 14, 2005, and this is always something for the obstetrician to worry about (i.e., whether the baby is getting into trouble). While persistent tachycardia can be a nonreassuring pattern, it does not constitute fetal distress requiring an emergency intervention. Fetal tachycardia alone may be a sign of increased fetal stress, which means that the fetus has to work harder, but not distress. The obstetrician must pay attention to this sign and try to reduce the mother's fever.

On the morning that induction stopped, the fetal heart rate elevated a little and A.M. had a low grade fever of 101. In Dr. Haesslein's opinion, although A.M. had a fever, it was difficult to determine the cause of her fever, or to conclude that she had an infection. A.M. was in labodnduction for a number of hours and temperature increases are not uncommon in laboring women. Antibiotics were appropriately administered as a protective measure.9 While the pathologist's report found acute chorioamnionitis, a bacterial infection of the amniotic cavity, this is a "ubiquitous diagnosis" that does not really indicate that a major infection has occurred. In Dr. Haesslein's experience, almost all women who have labored for an extended time will have findings on the fetal membrane, as well as on the umbilical cord (funisitis), that indicate changes in the cells which look like inflammation. The fact that induction continued after A.M. developed a fever during her labor was not below the standard of care.

In Dr. Haesslein 's opinion, decreased fetal heart rate variability in the face of tachycardia does not amount to fetal distress. Physiologically, the fetal heart sucks in blood to fill itself and then pumps it out to the body. The higher the heart rate, the fewer seconds there are for the heart to fill itself. The maximum fetal heart rate is 220

9 Dr. Haesslein testified that it is not below the standard of care for an obstetrician to suspect the development of chorioamnionitis when the patient develops a fever.

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to 240. After that, the fetus will go into high output failure, meaning it cannot refill itself fast enough.

In Dr. Haesslein's opinion, the combination of tachycardia and decreased beat­to-beat variabilility were normal physiologic responses to the rise in A.M.'s temperature during labor. A decrease in variability always occurs when there is a fast heart rate and the mother has a low-grade fever. Where there is both tachycardia and poor variability, the standard of care is to determine the cause of the tachycardia and act to decrease the maternal temperature. Respondent appropriately ordered the administration of antibiotic Erythromycin and Tylenol. At noon on September 14, A.M. made a decision to stop induction and to request a C-section. Respondent assessed A.M. at noon and discontinued Pitocin; however, the standard of care does not require that Pitocin induction be stopped due to tachycardia. This was A.M.'s personal choice and was not required due to the presence of tachycardia. Even though tachycardia had persisted for over four hours at this point, an emergency C­section was not required.

Dr. Haesslein also noted that A.M. had been given multiple doses of the pain medication Stadol, which typically flattens out the heart rate and is manifested as decreased fetal heart rate variability. Stadol has a half-life of four to five hours. This means that after four to five hours, a person who has taken Stadol will have metabolized 50 percent of the drug and the remaining 50 percent is still in the blood stream. When Stadol is given to a woman during labor, it processes through her placenta to the fetus. The fetus's respiration is depressed by Stadol.

On September 14 at 1520, tachycardia persisted in the 180 moderate range, with decreased vari.ability. During this period, there was fetal heart rate acceleration to 190 which, in Dr. Haesslein's opinion, means that the baby was not compromised. Dr. Haesslein agreed that, typically, tachycardia over 180 is considered "severe;" however, A.M.'s temperature as of 1500 was 100.4 and the fetal heart rate increased briefly in response to the fever. Even at this point, an emergency C-section was not required. -

49. Based upon his review of A.M.'s medical records, Dr. Haesslein concluded that none of AM's EFM strips showed any indications of fetal distress. In his opinion, fetal distress is indicated only by the presence of "late decelerations" on the EFM strips. Late decelerations are fetal heart rate changes that occur after the peak of the uterine contraction. The fetal heart rate gets lower and recovers more than 30 seconds after the contraction stops. Late decelerations are a warning sign that the baby may be getting hypoxic and acidotic (i.e., having fetal distress) and is unable to maintain normal metabolic control. There were no late decelerations on A.M.'s EFM strips, including during the period from 1620 through 1640 on September 14, 2005, where the fetal heart rate was tachycardic at approximately 185 bpm. In particular, Dr. Haesslein interpreted the EFM of September 14, 2005, at 1640 as "a normal fetal heart rate, baseline normal, good variability, with "nice little accelerations. All signs

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of a happy baby." Nothing on the EFM strips showed late decelerations that would raise an alarm.

Dr. Haesslein specifically reviewed parts of the EFM strips as to which Dr. Kim had expressed concern. There was no tachycardia at 5:50a.m. as indicated by Dr. Kim. Fetal tachycardia began around 0840, after AM had developed a fever of 100 at approximately 0800. Maternal fever can cause the fetal heart to beat faster to cool the placenta. There may have been fetal stress at this time, but not fetal distress. The EFM at 0840-0850 did not display a "nonreassuring" pattern, because decreased variability was followed by fetal heartrate accelerations, which are "reassuring" patterns. By definition in fetal distress, the fetus cannot accelerate the heart rate, so accelerations are always a reassuring sign. Here, there were small accelerations throughout.

While Dr. Kim found the EFM for September 14, 2005 at 0900 to be worrisome, Dr. Haesslein testified that this was a normal variation of the f~tal heart rate and was not a sinusoidal pattern that would be a sign of potentially severe fetal anemia. Similarly, while the EFM strip on September 14, 2005 from 0850 through 0920 showed a fetal heart rate of 170, the EFM strip was a "completely reassuring tracing, no decelerations, no decrease in beat to beat variability -nothing that makes you think we've got to pay attention."

50. Dr. Haesslein was questioned about a May 1999 peer-reviewed article entitled "Interpretation of the Electronic Fetal Heart Rate During Labor," by Amir Sweha, M.D., Trevor Hacker, M.D. and Jim Nuovo, M.D., published in the American -Family Physician. This article identified "nonreassuring and ominous patterns" on fetal heart rate recordings. "Fetal tachycardia"" and "variable decelerations associated with a nonreassuring pattern" were included among the article's list of"nonreassuring patterns." In response to this inquiry, Dr. Haesslein indicated that these lists were designed to assist family practitioners, typically not trained in obstetrics, who are often called upon to deliver babies particularly in rural areas. In his view, this list is designed to alert the family practitioner when to call for help. This article did not change his opinion that there was no fetal distress.

51. Dr. Haesslein testified that the absence of fetal distress was confirmed by post-delivery pathology showing normal pH and no acidosis in the newborn. This was "completely, entirely normal" and there was no evidence that the fetus was ever in any trouble. Dr. Haesslein characterized the cord blood analysis as ''the gold standard" for diagnosing fetal well-being or nonwell-being on delivery. It was also significant that there was no meconium or meconium staining identified in the pathology report. Meconium is fecal matter from the fetus that can be discharged in utero, particularly if there is high stress. This results in meconium staining of the amniotic fluid. In general, meconium staining would be expected ifthere were fetal distress; however, this is not absolute, because not every fetal distress results in the

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fetus emptying the colon. The pathology report for A.M. indicated that no meconium staining was identified.

Alleged Delay in Performing C-section in the Presence of Fetal Distress

52. Dr. Kim testified that the standard of care for performing a C-section in the presence of fetal distress is to deliver a distressed baby as soon as possible before the baby deteriorates further, either by expedited operative vaginal delivery or by C­section. Based upon his review, Dr. Kim determined that signs of fetal distress started to show up at 0550 on September 14, 2005, approximately 12 hours before delivery, and that it persisted and worsened until delivery. He further opined:

Even after recognizing these troubles, immediate delivery by C-section was delayed 5 hours after decision. Dr. Sheridan stated in his interview that no anesthesia doctors were available for the C-section because they were doing elective surgeries. If it was true, hospital has serious liability. Any hospital in California anesthesia coverage for obstetrics is mandatory - emergency C­section in 30 min [sic] is ACOG (American College of Obstetricians & Gynecologists) guidelines. Obstetrician is responsible to do emergency C-section like this case as soon as possible, not for 7 hours.

Dr. Kim concluded that respondent's failure to deliver AM's "troubled baby" by C-section for seven hours is an extreme departure from the standard of care. A.M.'s baby had a poor one-minute Apgar of one; however, the five-minute score of seven was "not bad." A 1 0-minute score was not recorded.

53. In Dr. Haesslein's opinion, A.M.'s C-section was not an "emergency" because there was no "fetal distress." Neither A.M. nor her baby were in particularly compromised shape. The C-section turned out well. As previously indicated, the pathology after surgery confirmed that A.M.'s baby did not have acidosis and there was no meconium staining. These results confirmed the EFM strips. The one-minute Apgar score for A.M.'s baby is the least significant and generally means the baby is "coming out a little bit floppy, the heart rate is a little bit down, it isn't breathing straight out of the shoot." This is a common condition inC-sections. The baby's five-minute score of seven is considered "normal."

Respondent's Testimony

54. Respondent testified A.M. was in latent labor from AROM to delivery and that he did not consider this an abnormal length of time for an induction. The fetal heart rate remained under 160 until approximately 8:00a.m. on September 14, 2005. Shortly thereafter, by 9:15a.m., respondent was informed of A.M.'s increased

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temperature and fetal heart rate. A.M.'s condition was a concern, but a maternal fever occurring in labor after AROM is likely caused by either the thermogenic process of labor itself or by an infection in the uterus that could reach the baby. For this reason, antibiotics were ordered.

When respondent met with A.M. at noon on September 14,2005, she clearly informed him to stop induction and that she wanted a C-section. Respondent had reservations about proceeding with a C-section, but he did not object to A.M.'s request, given her exhaustion and the time she had already spent in labor.

Respondent's definition of fetal distress was consistent with that provided by Dr. Haesslein; i.e., as the process where the baby is receiving low oxyen that leads to acidosis, and that is reflected on the EFM by "late decelerations." Fetal tachycardia is a normal response to fever in the mother, and decreased variability is secondary to tachycardia. Respondent testified that he reviewed A.M.'s fetal monitoring strips and saw no signs of fetal distress or "non-reassuring patterns" that would require an immediate C-section, either at noon or at 4:00p.m. on September 14, 2005. Specifically, there were no "late decelerations" on the E;FM and there were accelerations of the fetal heart rate, which indicated fetal well-being.

Respondent did not consider A.M.'s C-section to be an emergency at any time. By 4:00p.m. on September 14, 2005, respondent believed the situation was "unstable" after he received a call from labor and delivery that fetal tachycardia continued to increase. Respondent would have preferred to do the C-section earlier because A.M. was in discomfort and anxious, but there was no anesthesiologist available. Respondent did not find a need for a "crash" C-section due to the presence of fetal distress. While respondent referred to the situation as an "emergency" in his communications with the Board, he did so only because Mercy Merced had a policy of calling all C-sections that were not on the surgery schedule the previous day "emergency" C-sections. Respondent used this terminology. Respondent testified that he made calls to locate an anesthesiologist and an assistant surgery as required by hospital protocol, but was not able to hasten the surgery. Ultimately, the C-section proceeded quickly and there was no evidence of fetal distress as reflected in the pH reading on the cord blood.

Discussion

55. A.M 's Labor Progress: A.M.'s prolonged labor was the result of a medically appropriate slow induction by Pitocin and AROM, during which she was in the latent and late-latent stages oflabor. The records establish that during her first 27 hours of labor induction, A.M. was relatively comfortable under the circumstances. After AROM and as the Pitocin became effective, A.M. requested and received five doses ofStadol (September 13 at 2215, and September 14 at 0040,0330, 0520 and 0930 hours). This first portion of A.M.'s labor induction was not abnormal or outside the standard of care.

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As acknowledged by Dr. Kim, the standard labor curves are important as theoretical teaching devices but are malleable in the real world. Dr. Kim recognized that the key issue was the length of time from AROM to delivery, and he set an outside limit of 24 hours. A.M. was delivered by C-section within 22 hours. If viewed simply as a product of time, A.M.'s labor from AROM to delivery was riot abnormal or outside the standard of care.

Dr. Haesslein' s opinion that A.M. could never have an "arrest of labor" because she never entered "active labor" may be technically correct, but logically authorizes the indefinite induction of a post-date, post-AROM, high risk patient. As such, Dr. Haesslein's opinion ignores the larger picture of the condition of A.M. and her fetus during those last 22 hours. Ultimately, Dr. Kim's explanation that the standard of care requires the immediate interruption of either "normal or abnormal labor progress ... if fetal distress is ,evidenced" is persuasive. Consequently, ifthere was no fetal distress, respondent did not fail to recognize A.M.'s unsuccessful labor progress. Conversely, if fetal distress was present in the hours after AROM, respondent's failure to perform an emergency C-section would establish that he also failed to recognized A.M.'s unsuccessful labor progress.

56. Fetal Distress: The determination of whether there was "fetal distress" during A.M.'s labor sufficient to require emergency intervention by C-section is made more difficult by the lack of standard definition of this conclusory term. As noted in the article, Interpretation ofthe Electronic Fetal Heart Rate During Labor:

. The most important risk ofEFM is its tendency to produce false-positive results. Unfortunately, precise information about the frequency of false-positive results is lacking, and this lack is due in large part to the absence of accepted definitions of fetal distress. (Italics supplied.)

In addressing this issue, the critical window oftime is September 14, 2005, between 9:00 a.m., when respondent was first paged and informed of fetal tachycardia and maternal temperature, and A.M.'s scheduled C-section at 1729 (5:29p.m). During this window, tachycardia was persistent and entered the severe ranges (180-190), and was accompanied by persistent poor variability.

57. Dr. Haesslein's knowledge, training and experience in maternal-fetal medicine are substantial. Dr. Haesslein's practice focuses on extremely high risk deliveries, where the laboring mother may be unconscious, gravely injured or severely impaired. In Dr. Haesslein's opinion, there was no fetal distress at any time in A.M.'s labor on September 14, 2005, because there were no late decelerations on the EFM, and no acidosis as confirmed by pathology results. The persuasiveness of Dr. Haesslein's opinion that there was no fetal distress at any time in A.M.'s labor is tempered by the following factors: his opinion that EFM analysis does little to reduce

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fetal catastrophy (i.e., the child either dies or is resuscitated); his opinion that fetal distress is, by definition, a condition that results in injury and the fact that there was no negative outcome in this case; and his reliance on post-delivery pathology to confirm the lack of fetal distress. These factors suggest that Dr. Haesslein 's opinion is largely a hindsight analysis.

Ultimately, Dr. Haesslein agreed that after 1200 on September 14, 2005, there were multiple factors particular to A.M.'s situation that should have been considered to determine the existence of fetal distress. These factors, which were also considered by Dr. Kim, included A.M.'s high risk, post-date status; her long induction; the length of time post-AROM and the increased risk of infection due to the rupture; AM's fever; and persistent fetFJ.l tachycardia going into the 180-190 range, with decreased variability. Dr. Haesslein testified that this was not a clear cut case, but he maintained his opinion that there was no fetal distress to require an emergency C-section. Dr. Haesslein testified that, under these circumstances, he "might have waited to see if a vaginal delivery was possible"' and that he "would ultimately be responsible for the end result." While it was appropriate to do a C-section at A.M.'s request under these circumstances, Dr. Haesslein agreed that respondent did not list A.M.'s request as the basis for the C-section in his notes, but instead indicated maternal fever and fetal intolerance to labor. Dr. Haesslein agreed that, assuming respondent found fetal intolerance to labor, the standard of care would be to perform an emergency C­section.

58. The standard of care looks forward in an effort to maintain best practices and to avoid the potential for injury. Considered in light of A.M.'s unique presentation on the afternoon of September 14, 2005, Dr. Kim's opinion that fetal distress exists when there is a persistent combination of two "non-reassuring signs," fetal tachycardia and poor variability, on the EFM is persuasive. While Stadol depresses variability, A.M.'s last Stadol dose was at 0930; consequently, any depressant effect on fetal variability was no longer a factor after 1430 (2:30p.m.), at the latest. Dr. Kim's opinion that there was fetal distress requiring an emergency C­section persuasively establishes that, as of no later than 1600 on September 14,2005, A.M.'s fetus was experiencing fetal distress and required an emergency C-section.

59. Approximately three hours after being advised of her fever and the baby's tachycardia, respondent saw A.M., and formulated a plan to discontinue Pitocin and "observe." After this point (1210 Progress Note), respondent absented himself and failed to monitor A.M.'s increasingly unstable situation. Respondent abdicated responsibility by relying on the nurses to keep him informed of the EFM. While he attempted to deflect responsibility for delay on hospital policies regarding unscheduled surgeries and lack of anesthesiologists, respondent never initiated a "crash" C-section.

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As indicated below, respondent's conduct and statements before the hearing establish that there was fetal distress and a need for a "crash" C-section by 1600 on September 14.

First, respondent testified at hearing that his definition of fetal distress was consistent with that of Dr. Haesslein (i.e., was manifested only by "late decelerations on the EFM). Respondent also testified that he continued to review A.M.'s EFM strips, but saw no signs of fetal distress, or "non-reassuring patterns" on them. Respondent's testimony is not supported by any documentation that he, in fact, reviewed A.M.'s EFM strips during the critical window. Respondent's last progress note to describe the fetal heart rate was penned at 1931 (7:31 p.m.) on September 13, 2005. Respondent's next progress report to document the fetal heart rate was penned on September 14,2005, at 1640 hours (4:40p.m.), when he noted maternal temperature of 101 and a "NST -non reacting minimal variability 180-190." Respondent's testimony that he was monitoring the EFM for late decelerations and for non-reassuring patterns is not persuasive.

Second, respondent's Progress Notes and his statements to the Board during the investigation establish that, as of 1600, he considered A.M.'s condition to require an emergency C-section using the factors that Dr. Kim considered as the standard of care to show fetal distress. While respondent's testimony at hearing conformed to Dr. Haesslein's definition of fetal distress, respondent's earlier statements provide a more reliable picture of his definition of fetal distress and perceived need for an emergency C-section. As previously indicated, respondent listed "fetal intolerance to labor" and "chorioamnionitis" as reasons for the C-section ultimately performed in both his 1640 Progress Note and in his delivery note. Maternal request is not indicated. Further, in his October 6, 2008, written comments to Investigator Townsend regarding his treatment of A.M., respondent wrote, in pertinent part, that:

Induction stopped at 1600 after I saw the fetal monitor strip showed fetal tachycardia with maternal fever. The mother and baby's condition had been monitored throughout the day and up to this point both had been in good condition. The decision made at this point was that an emergency C-section was appropriate. I anived on labor and delivery at 1615 for the procedure.

Upon an·ival, it was discovered that an anesthesiologist was not available ...

Unfmiunately, an hour to two hour wait to do an emergency, unscheduled C-section was not unusual at this facility due to the unavailability of anesthesiologists. This was a continuing point of controversy between myself and the Department Chair. The ACOG policy is

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for the time from decision to emergency C-section to first incision to be no longer than thirty minutes ...

Again, in his June 30, 2009, subject interview, respondent explained that, at noon when A.M. told respondent she wanted to stop the induction and have a C­section, respondent told her that he would perform the C-section at the end of the day if she did not progress. Respondent then stated that "everything changed" at 4:00 p.m. when the nurses called and informed him A.M.'s baby was tachycardic. Respondent stated that: "at this point, the baby is no longer stable" and needs a C­section immediately. Respondent came into the hospital immediately to perform a crash C-section, but had to wait one and a half hours for an anesthesiologist and no one at the hospital did anything about this. All the anesthesiologists were doing elective surgeries. As a result, the baby had tachycardia for one and a half hours. Respondent believed that low Apgars were due to the delay in the C-section.

60. There was clear and convincing evidence to a reasonable medical certainty that, by no later than 1600 hours on September 14, 2005, respondent committed an extreme departure from the standard of care based upon his: (a) failure to recognize A.M.'s unsuccessful labor progress; (b) failure to recognize fetal distress; and (c) delay in performing a C-section in the presence of fetal distress.

Alleged failure to properly document care and treatment of A.M in the medical record and to maintain adequate and accurate records

61. Dr. Kim testified that the standard of care regarding documentation of the medical record requires that a doctor has to document significant medical care. An induction of labor is a serious medical care issue and the doctor must document reasons, plans and assessment. While Dr. Kim indicated in his report that there was no documentation of A.M.'s induction, on further review of the record, he determined that respondent had documented the basis for A.M.'s induction in a report that was dictated a week after her admission. This documentation was untimely and a simple departure from the standard of care.

Dr. Kim then reviewed respondent's handwritten Progress Note on September 12, 2005, the date of AM's admission. This note was difficult to read but provided some documentation of his care. On balance, because respondent indicated in the Progress Note that A.M. was 41 weeks pregnant and documented the condition of her cervix, Dr. Kim believed this was a sufficient explanation for the induction and that "we shouldn't be too picky on this." Dr. Kim retracted his opinion that respondent had deviated from the standard of care on this point.

62. The only testimony regarding record-keeping deficiencies focused on the admission note. Based upon Dr. Kim's testimOny, respondent did not violate the standard of care in this regard.

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II. PATIENT MM

63. Accusation: Complainant alleged that respondent's care ofM.M. constituted gross negligence based upon his: (a) numerous attempts at delivery with Simpson forceps; and (b) failure to perform a C-section in a timely manner. Complainant alleged that respondent's conduct constituted repeated acts of negligence for these same reasons, and for failure to properly document his care and treatment of M.M. Complainant alleged respondent engaged in unprofessional conduct by failing to maintain adequate and accurate records. 10

Medical Records

64. M.M. was a 26 year old woman who had previously been pregnant, but never had a baby (nulliparous). She received seven prenatal visits from respondent. M.M. was administered routine prenatal testing. From these tests, it was determined that M.M. had an abnormal three-hour glucose tolerance test (GTT) and was positive for gram negative streptococci (GBS). All other testing was normal. M.M. was a high risk pregnancy based upon these factors.

65. On April 12, 2006 at 1:50 a.m., M.M. was admitted to Mercy Merced at 39 weeks-two days of pregnancy with complaints of bleeding. Her membranes had spontaneously ruptured. M.M. 's cervix was dilated to 3+ em, 80 percent effaced and she was having uterine contractions every three minutes since 1:30 a.m. M.M. was informed that the plan was to observe the progression of her labor. She was placed on an external EFM which recorded the fetal heart rate as 120-130 bpm.

At 2:45 a.m., respondent was notified ofM.M. 's status and he issued routine orders. Respondent's Progress Note for Aprill2, 2006 (no time indicated), contains an admission note that describes M.M. 's condition, the status of her dilation, and a plan for Pitocin augmentation with routine orders.

At 3:00a.m., M.M. was given Penicillin G, 5 mil by IV. At 3:40a.m., Pitocin augmentation was initiated to increase contractions, and· the amount thereafter increased over time.

At 3:55a.m., M.M. was given 2 mg Stadol pain medication by IV. Her second and last dose of Stadol was administered at 5:35a.m.

10 At hearing, complainant expressed an intention to amend the accusation regarding an alleged failure to resuscitate MM's baby on delivery. Complainant was allowed to question Dr. Kim regarding the standard of care on this issue. However, when complainant later advised that an amended accusation would not be filed, respondent's motion to strike Dr. Kim's testimony on the issue of resuscitation was granted and this testimony was not considered.

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66. At 6:00a.m., M.M. began having strong contractions. The fetal heart rate was 130s with decreased variability. At 6:30a.m., M.M. was transferred to the delivery room. At 6:50a.m., it was noted that M.M. "has the urge to push." Her cervix was completely dilated, effacement was 100 percent, and the baby was in vertex position. The fetal heart rate was 130s with accelerations to 140s. M.M. was prepared for delivery.

By 7:00a.m., M.M. was "pushing fairly well." Pitocin augmentation continued. Fetal heart rate was 130s with accelerations to 150s. There was a deceleration to 11 Os.

At 7:10 a.m., M.M. was given oxygen. She was encouraged to push more forcefully. From 7:10 through 7:50a.m., the fetal heart rate was in the 140s with decreased variability.

67. Respondent's Progress Notes for 7:48a.m. described the status of M.M. 's cervix and indicated: "expect NSVD," or normal spontaneous vaginal delivery.

68. At 8:05a.m., respondent was with M.M. and she was encouraged to push harder. From 8:00 to delivery at 8:56a.m., the EFM showed a heart rate ranging from 130s to a maximum of 160 and good(+) long term variability.

69. As discussed in Factual Finding 77 below, between 8:20 and 8:35 a.m., respondent placed Simpson forceps on the head ofM.M. 's undelivered baby, while M.M. continued to push. The parties have different interpretations about the number oftimes respondent placed the forceps on the baby's head as reported in the nurses notes, and whether respondent simply placed the forceps or also pulled on the baby with the forceps.

70. At 8:56a.m., M.M. had a "vag[inal] del[ivery] ofviable female infant." The Apgars were one, five and eight at, respectively, one, five and 10 minutes after birth. The baby was given oxygen and Narcan, to reverse the respiratory depression effect of the Stadol.

71. During the delivery, M.M. suffered a perineal laceration. Respondent began a repair immediately after delivery, which he completed by 9:08 a.m. At 10:46 a.m., Hemabate was given to M.M. for her postpartum bleeding.

72. Respondent's contemporaneous handwritten delivery notes on the Delivery Room Record reported that M.M. had "s/p VD over 1st degree perineal laceration." Vaginal laceration is circled on the Delivery Room Record. Respondent documented that there were "[zero with a slash through] vag. lac/hematoma" and "[zero with a slash through] complications." Respondent's delivery notes did not

26

mention use of forceps; however, a note at the top of this document, in different handwriting, documents: "Forcep's used prior to del."

Respondent's Statements during Investigation and Testimony

73. In his October 6, 2008 comments to Investigator Townsend, respondent reported that, when he arrived for delivery, M.M. had been pushing incorrectly and inefficiently for 1.5 hours due to improper instruction by the nurse, and she was exhausted. Respondent obtained a Spanish language interpreter for M.M. and provided her instruction on how to push properly. Respondent wrote: "Initially, forceps were attempted to be placed. This proved unsuccessful because the head was rotated and asynclitic [tilted to side]. M.M.'s pushing efforts improved promptly with proper instruction and a vaginal delivery was achieved."

74. In his June 30, 2009, subject interview, respondent stated that he used a "phantom" application of Simpson forceps on the head ofM.M. 's baby to assist in delivery after he determined M.M. was exhausted from pushing for approximately two hours. Respondent described the phantom application as trying to put on forceps to see if there was a good fit and whether he could use the forceps safely. He placed the forceps one time and determined it could not be used safely because the baby's head was rotated. He never used or pulled on the forceps because they did not fit the baby's head. He never thought there was a need to perform a C-section because the mother continued to make progress.

75. At hearing, respondent testified that in his residency training at UCLA, he was taught and used the term "phantom forceps." This was another term for trial application of forceps where you try to place the forceps on the baby's head in vertex position and attempt to deliver. The phantom or trial application is designed to see if the forceps fit the baby's head correctly, so the handles of the forceps will lock to assist in the delivery.

Respondent was with M.M. beginning at 8:05 a.m. Due to M.M. 's exhaustion, respondent decided to attempt forceps application to assist in delivery as she pushed. Respondent placed the forceps once at 8:20a.m., but he could not get a good fit and could not lock the handles. M.M. continued to push and made progress, so respondent removed the forceps. He tried to place the forceps again, but the baby's head was rotated and he could not get a good placement and removed the forceps. M.M. delivered vaginally within a short time. There was never any evidence of fetal distress on the EFM to suggest a need for C-section. While there was decreased variability, respondent expected this because M.M. had been given Stadol.

Following delivery, respondent quickly repaired a small laceration. M.M. lost 400 ccs of blood, which is slightly higher than the normal 250 to 300 ccs, but is less than a postpartum hemorrhage which typically involves a blood loss of 500 or more ccs. Respondent prepared his delivery note and signed off after noting that the nurse

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had written "forceps prior to delivery" on the top. Respondent did not perceive a need to document his use of forceps because he did not use them for operative delivery.

Expert Opinions

76. Dr. Kim's Report: In his undated Case Review Report, Dr. Kim provided a summary of M.M. 's .case, which indicated that her "labor progressed normally to full dilation 5 hours after admission with no significant fetal distress. Baby girl ... was delivered by forceps and forceps were applied 3 times previously during 36 min. She had postpatium bleeding which was stopped by Hemabate."

Describing the standard of care for forceps delivery, Dr. Kim indicated that:

Forceps deliver is an operative delivery to expedite the delivery process to benefit mother and baby. It is indicated for acute fetal distress and maternal exhaustion from prolonged labor ... It has to meet minimum criteria to apply, such as complete dilation of cervix, baby's head should be in the perineum, should not be tried too many times, in general (ACOG guideline) not more than 3 application or not more than 20 min. Prudent obstetrician sometimes performs this with double setup (Anesthesia and C-section team stand by in case of failed forceps).

Describing the standard of care for medical record documentation, Dr. Kim wrote that the "standard of care is to keep accurate and timely medical records, particularly for important events like delivery note." Based upon his review of M.M. 's medical records, Dr. Kim concluded that "there was no delivery note on this case," and that respondent violated the standard of care by failing to provide a delivery note for a complicated operative delivery using forceps. This was an extreme depmiure from the standard of care. In particular, the delivery notes should provide minimum facts of "the indication of operative delivery and the stage and lie of a baby's head when forceps was applied first and how many times applied, as well as the consequence of delivery." Because there was no delivery note, "there was no knowledge about this difficult operative delivery except labor record and nurses notes."

Dr. Kirn concluded that respondent had failed to provide a delivery note about the operative forceps delivery. In Dr. Kim's opinion, respondent's statements to Investigator Townsend that he never used the forceps to deliver the baby, but only as 'phantom forceps' and that the baby was delivered spontaneously, were not credible. Respondent "should declare the failure of forceps operation and move on to C-section to deliver baby soon after trial a couple of times in the presence of compromising

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fetus." Dr. Kim suggested that it was possible respondent applied the forceps too soon and that, since he did not make an operative note, his statement was not credible. The record indicated that respondent applied forceps "4 times during 36 min" and also "it was forceps delivery, not spontaneous delivery." Dr. Kim concluded that respondent had engaged in an extreme departure from the standard of care because there were "too many forceps attempts (x4) for too long period (36 min) ... " Dr. Kim further concluded: "Not recognizing the failure of forceps and failure of C-section in time is extreme departure of standard of care."

77. Documentation of Application of Forceps on MM: There was no documentation from respondent in M.M.'s medical records about his use of Simpson forceps before or during her delivery. The primary source of documentation is found in entries in the nurses' notes on a single page of M.M. 's Labor Progress Flow Sheet (Flow Sheet) for the times 0805, 0820, 0830, and 0840 hours. From its left margin to beyond the middle of the page, the Flow Sheet is comprised of a grid with individual columns to record date, time, and various signs (e.g., length and strength of contractions, dilation, fetal heart rate, etc.) On its right side, the Flow Sheet has a distinct column entitled "Comments." Beneath the "Comments" column are blank lines for completion as necessary. The Comments are aligned horizontally across,, from a time entry on the far left hand column. The parties disagree about how to interpret these entries in the nurses' notes.

Dr. Kim read the note for Aprill2 at 0820, to say: '"Simpson forceps placed x3 to push harder. Then Simpson forceps placed x 3 to push.' And the next line [at 0830] is, 'pushing better. Pitocin increased pushes."' Under "Comments," Dr. Kim read the note to say "0805 Dr. Sheridan here to see pt [patient]. Supine position. Pt. enc. Simpson forcep placed times three to push harder. And Simpson forcep placed times three pushing better." He believed M.M. was told to push harder and then to push better.

Respondent and Dr. Haesslein read the note by separating the "Comments" section, as follows: "0805 Dr. Sheridan here to see pt. Supine position. Pt. enc. [0820 line] to push harder. Simpson forceps placed x 3 pushes." On the 0820 entry line to the left is the entry: "Simpson forceps placed x3 pushes." The word "pushes" was inserted on the grid under "x3" and was positioned slight above the 083Q entry line.

The parties agreed that "enc." meant "encouraged" and that the 0835 entry under Comments was: "Simpson forceps placed x 1 push."

78. Based upon the lack of clear documentation regarding the use of forceps, the parties dispute the number of times respondent applied forceps and whether he should have performed a C-section after a failed forceps delivery.

79. Dr. Kim's Testimony: On the first day of his two-day testimony, Dr. Kim explained that he had reviewed M.M.'s records three years ago and then freshly

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reviewed them prior to his testimony. Dr. Kim testified, consistent with his Report, that respondent used forceps to deliver M.M. 's baby. The standard of care allows the use of forceps two to three times during a deli very or attempted deli very. Dr. Kim acknowledged that an unsuccessful attempt to deliver a baby by forceps is not below the standard of care. What is important is what the doctor does next.

Dr. Kim testified that respondent failed to document his use of forceps for delivery in his delivery note, and instead wrote it was a spontaneous vaginal delivery. The Flow Sheet documented the use of forceps and, in Dr. Kim's opinion, indicated that this was a forceps delivery. Forceps delivery is a kind of surgery, known as an operative delivery, which should be done for compelling reasons such as fetal distress or maternal exhaustion and inability to push.

The standard of care requires documentation of operative procedures and deliveries. The doctor must provide details on the delivery note, indicating what he did, how he did it, what the situation was at the time, including the position and location (lie) of the baby's head, the number oftimes the forceps were applied, and the number and duration of the pulls on the baby. Respondent failed to provide this information and he failed to "put the facts straight" by documenting "a forcep delivery, not a normal spontaneous delivery [as indicated] in his delivery note." In Dr. Kim's opinion, respondent's forceps application involved a lengthy time, of"Iike 35 minutes during that time prior about four to seven times. To me, that's very long, particularly when baby showing a fetal distress." In Dr. Kim's opinion, respondent's departure from the standard of care was extreme.

80. After re-reviewing M.M. 's medical record overnight, Dr. Kim acknowledged that M.M. 's baby was actually delivered via a spontaneous vaginal delivery and not by vaginal delivery using forceps, and that this was accurately recorded in respondent's delivery note. Dr. Kim retracted his criticism of respondent's delivery note in this regard.

81. Dr. Kim did not change his opinion that this was a failed forceps delivery that should have been properly documented. In his opinion, by using the forceps, respondent had engaged in an operative procedure and was required to document "why he put it in, how he put it in, how many times he did, what was the condition ofthe baby's head. Those are very essential because that's the part of the operative procedure, and he didn't put that in delivery note ... " While use of forceps prior to delivery was indicated on the delivery note, this was not in respondent's handwriting and did not relieve him of his obligation as a doctor to appropriately document forceps use. With this new information, Dr. Kim changed his opinion that respondent had engaged in an extreme departure from the standard of care for documentation. Respondent's failure to document the forceps delivery was a simple departure from the standard of care.

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82. Although he acknowledged that M.M. had a spontaneous vaginal delivery, Dr. Kim did not change his opinion that respondent had engaged in an extreme departure from the standard of care in how he applied the forceps and the time period in which he applied them. Dr. Kim also expressed his "final theory" that respondent "might put the forceps too early" when the baby was not properly descended, because there were 21 minutes between the last forceps application and delivery.

83. Dr. Kim testified that he listened to respondent's interview with Investigator Townsend, and heard respondent's statement that "phantom forceps was used as a term where he trained and it meant applying the forceps but not pulling the baby." In his testimony, Dr. Kim reiterated that he had never heard of "phantom forceps application." Dr. Kim was unfamiliar with this term in textbooks or journals, and it was not in the ACOG Guidelines. In Dr. Kim's opinion, this term meant that respondent "failed the forceps delivery many times" because there is no such thing as an attempt to use forceps (" ... there is no such thing you apply don't pull") .

. On the first day of his testimony, Dr. Kim changed his original opinion in his Report that respondent had placed the forceps on M.M. 's baby four times. Instead,.· Dr. Kim counted seven applications of forceps, based on notes indicating "x3 pushes," "x 3 pushes," and "xl push. (See Factual Finding 77.) On the second day of testimony, Dr. Kim accepted that respondent applied the forceps four times rather than seven times. He then testified that respondent applied the forceps twice and pulled it four times.

Dr. Kim conceded that it was possible that respondent had placed the forceps on the infant one time and left them on the infant during three pushes by M.M., and that he placed the forceps on the infant a second time during one push by M.M. Dr. Kim explained that, in his opinion, the number of times the forceps was applied was not important. This was because in his view, each forceps application meant that respondent had pulled the baby, and these pulls placed stress on the baby. This is the "natural thing to do when you put the forceps. You always pull, not push." Dr. Kim speculated that references on the EFM at 8:20a.m. to "SH" indicated that the baby was being pulled; however, he acknowledged that he did not know what "SH" meant and that the words "pull" or "pulled" were not reported in M.M. 's record. He agreed that a similar reaction on the EFM could have occurred if the mother was pushing.

84. In Dr. Kim's opinion, respondent's failure to arrange for and perform a C-section on failure of operative delivery was an extreme departure from the standard of care. His opinion in this regard was unchanged. Because this was a failed forceps delivery, respondent should have given up and gone to the next step for C-section. Once there is a failed operative delivery by forceps (after two to three attempts), the doctor should be prepared to go immediately into a C-section. To do this, the doctor should arrange a "double set up" by having an anesthesiologist and an operating team there that can go immediately into C-section if the operative delivery fails.

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85. · Dr. Kim based his opinion that a C-section was the necessary next step on his opinion that M.M. 's baby was in distress. Dr. Kim reviewed M.M. 's EFM strips. At 6:50 a.m., there was fair variability with a variable deceleration type of bradycardia, with heart rate dipping under 120. Between 7:20 and 7:46 a.m., the EFM showed decreased variability with severe variable deceleration. In Dr. Kim's opinion, this was a nonreassuring fetal heart pattern and meant the baby was in a distressed condition. At 8:20a.m., the time the Simpson forceps was applied, the heartbeat kept dropping and going back and then dropping again.

86. Dr. Kim understood that Stadol decreased fetal heart rate variability, but he believed the last dose was given at 5:30a.m. and that Stadol's half-life was two to three hours. He believed four hours was too long. Dr. Kim agreed it was possible that the baby's depressed function at birth was due to the Stadol, ifthe half-life was four hours. He was aware that the infant was given Narcan to reverse narcotic medications at birth, but believed there was some issue about whether Narcan really reverses Stadol, because it is "not like morphine or anything ... " He agreed that the 1 0-minute Apgar of eight was normal.

87. Dr. Kim described M.M. 's postpartum bleeding as "quite significant" and "very severe." Her vagina was lacerated and there was a hematoma that · respondent had to repair. Dr. Kim believed this was likely caused, if unintentionally, by respondent's application of forceps. He opined that respondent placed the forceps too soon which required "a lot of manipulation" that was likely to have injured the vagina and caused a big laceration and hematoma. There was no documentation by respondent to tell the location or position of the baby when the forceps were first applied.

88. Dr. Haesslein 's Testimony: In Dr. Haesslein's opinion, respondent did not violate any standard of care by his use of Simpson forceps prior to the delivery of M.M. 's baby. To facilitate his testimony, Dr. Haesslein demonstrated the lise of Simpson forceps for delivery. Each spoonlike forcep is placed individually on one side of the baby's head. Once this is done, if the forceps are in correct position, the English lock will close. The doctor can then pull on the baby's head, with or without maternal pushes, to guide it through the pelvic arc to vaginal delivery.

89. Dr. Haesslein was not familiar with the term "phantom forceps" used by respondent in his interview with Investigator Townsend. However, he interpreted "phantom forceps" as synonymous with the recognized technique of "trial" forceps. If the baby's head is not positioned correctly in the pelvis, trial forceps can be applied. If the forceps are not in line, the English lock will not lock properly. 11 This indicates that the baby's head is not properly positioned. The doctor can then wait to.

11 Dr. Haesslein could not determine from the medical records whether M.M.' s baby's head was asynclitic.

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see if the position of the baby's head changes or descends after several more pushes by the mother. It it is not uncommon to leave forceps on the baby while asking the mother to push. Once the forceps start to match up and lock, the doctor knows that there is a good application of forceps and can pull. Pulling is not done unless the lock on the forcep is engaged. Dr. Haeslein indicated that, frequently, forceps are applied but the doctor never pulls as the mother will suddenly push harder (the "clank effect").

90. Based upon his review of the record, Dr. Haeslein determined that respondent placed the trial forceps twice: first for three pushes by the mother, then a second time for one push. (Factual Finding 77.) Use of the trial forceps twice was appropriate and within the standard of care. Based upon a review of respondent's 0748.Progress Note, the forceps were placed after M.M. 's cervix was completely open and the baby's head was well positioned below the maternaJ spines and ready for delivery. Once they were placed, M.M. pushed three times. The forceps were removed and then at 0840 (sic; 0835) were placed a second time for anothe.r push by M.M. It appeared to Dr. Haesslein that respondent had difficulty getting the Simpson forceps to lock. M.M. pushed, but the record says noting about "pulling" by respondent. Respondent then removed the forceps. Respondent did not "attempt to deliver" M.M. 's baby by forceps because there was no indication that respondent engaged the forceps to pull on the baby. Respondent's use of forceps was not below the standard of care.

91. In Dr. Haesslein's opinion, respondent did not fail to perform a C-section in a timely manner as alleged because there was no need for a C-section. The standard of care does not require delivery by C-section ifthere is difficulty applying the forceps. Maternal exhaustion does not mean that vaginal delivery will not occur. In this case, M.M. had a very normal labor curve and delivered within seven hours of admission.

92. Further, Dr. Haesslein reviewed M.M. 's EFM strips and found no indication of fetal distress that would require an emergency C-section. There was no tachycardia or nonreassuring fetal heart rates. EFM strips showed moderate

. variability (5 - 15 bpm) and minimal decelerations. M.M. had repeated doses of Stadol, which decreased variability. The combination of "miniscule" multiple variable decelerations and decreased variability is not a sign of fetal distress. While there were variable decelerations, they were not persistent. 12 These reflect vagal decelerations due to compression of the fetal skull by contractions and are

12 Dr. Haesslein was questioned about a sentence in the article, Interpretation of the Electronic Fetal Heart Rate During Labor that stated: "Variable decelerations are generally associated with a favorable outcome. ·However, a persistent variable deceleration pattern, if not corrected, may lead to acidosis and fetal distress and therefore is nonreassuring."

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commonplace. This is not a non-reassuring pattern. There were no sinusoidal rhythms or other abnormalities of concern on M.M. 's EFM strips.

Dr. Haesslein disagreed that the standard of care is to deliver the baby as quickly as possible given variable decelerations and/or failed application of forceps. In his opinion, application of this standard would require C-section on 80 percent of all laboring women. Mild variable decelerations are common and are caused by the compression of the vagal nerve. The doctor needs to examine the EFM strips over a wide swath of time (i.e., three hours) rather than the last five minutes to make this decision. In Dr. Haesslein's opinion, it "would have been a shame" to deliver M.M. by C-section. There are always operative risks from C-sections, which are more dangerous than normal vaginal deliveries. Performing a C-section has long-term consequences for the mother, including for future childbearing. Each C-section increases the risk that the mother will have future medical consequences and that subsequent deliveries will be by C-section. An emergency C-section was not indicated at any time for M.M. because there was no fetal distress or maternal problems justifying an operation.

M.M. was successful in vaginal delivery of an eight-pound baby girl within 36 minutes of the first forceps application. The Apgar scores for M.M. 's baby were normal. The one-minute score of one "means nothing." The five-minute score of five means the baby is a little slow getting started. The ten-minute score of eight means the baby is a normal newborn. This is the most important Apgar score.

93. M.M. 's perineal laceration was fairly typical for a first delivery and was repaired by respondent in a maximum of 12 minutes. During these 12 minutes, respondent also delivered the placenta. To Dr. Haesslein, it was clear that M.M. did not.require extensive reconstruction of the vaginal perineal area. She was later given Hemabate due to uterine atony, to stop bleeding due to the failure of the uterine muscle to contract.

94. In Dr. Haesslein's opinion, respondent's deli·very note was adequate.

Discussion

95. In his testimony, Dr. Kim demonstrated a willingness to alter the opinions he expressed in his Report and in his previous testimony after his re­examination of M.M. 's record. This trait can lend credibility to a witness. A review of the record regarding M.M. as a whole, however, demonstrates numerous errors and inconsistencies in Dr. Kim's Report and testimony.

For example, within his Report, Dr. Kim inconsistently stated the number of forcep applications as three within 36 minutes and as four within 36 minutes. In the Report's "Summary" ofM.M. 's Case, Dr. Kim reported there was "no significant fetal distress," yet he testified that fetal distress existed and that respondent should

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have proceeded to a C-section. When he wrote his Report for the Board, Dr. Kim erroneously concluded that respondent had delivered M.M.'s baby by forceps. In his testimony, Dr. Kim conceded that the Flow Sheet entry at 0856 states: "vag. del. of viable female infant." In addition, the L & D Recovery Record Narrative Notes (L&D Notes) state: "0856 Vag. del. of viable female infant over intact appearing perineum," and respondent's Delivery Room Record notes indicate "s/p VD over 1st

degree perineal laceration." Dr. Kim erroneous concluded that respondent's delivery note indicated "vag. lac/hematoma." Dr. Kim testified that this note was how he knew that M.M. had suffered a severe laceration, and also because after delivery, it had taken respondent approximately one hour to repair the laceration. Respondent's handwritten delivery note, while somewhat difficult to read, contained a symbol consisting of a zero with a slash through mark before the words "vag. lac/hematoma" to indicate there was no vaginal laceration or hematoma. Dr. Haesslein testified that this symbol is a standard designation meaning there were "no" problems. Further, the repair ofM.M. 's first degree perineal laceration was relatively short and was legibly documented in the L&D Notes to have been finished by 0908, approximately 12 minutes later. These errors suggest Dr. Kim was not attentive to detail in M.M. 's medical record. It is also concerning that Dr. Kim repeatedly stated in his Report that respondent was not credible in his statements about use of "phantom" forceps or that M.M. had a spontaneous vaginal delivery. These erroneous conclusions planted seeds of distrust in respondent's credibility that persisted up to the present. Cumulatively, these errors weaken reliance on Dr. Kim's testimony.

96; Based upon a review of the record as a whole, it is determined that respondent did not violate the standard of care regarding his trial use of Simpson forceps or by numerous attempts at delivery with Simpson forceps. Dr. Kim was unfamiliar with "phantom" or trial forceps terminology and techniques, and noted that, unlike Dr. Haesslein, he had been trained on the East Coast where this was not a part of his residency training. By contrast, Dr. Haesslein is a clinical professor at major medical schools in California and frequently teaches this type of operative delivery to his students. While he was unfamiliar with respondent's "phantom forceps" terminology, Dr. Haesslein persuasively testified that the process respondent described was consistent with "trial forceps" and that its use is within the standard of care.

Dr. Kim testified that the use of Simpson forceps a maximum of two to three times was within the standard of care. This standard was undisputed. Dr. Kim's reading of the record that respondent applied the forceps four or seven times, based upon notations that correlated application of the forceps with the number of maternal pushes, was not persuasive. Dr. Kim's testimony that forceps are never applied unless they are also used to pull the baby was based upon his own experience, and the fact that he had not read this term in texts, journals or ACOG guidelines. Dr. Haeslein' s testimony that trial forceps are an appropriate technique and that the English lock on the Simpson forceps will not engage to pull unless each side of the forcep is properly aligned with the baby was credible and entitled to substantial

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weight, based upon his training and experience as an academic and clinical professor teaching ob-gyn residents operative delivery techniques.

97. Based upon a review of the record as a whole, it is determined that respondent did not violate the standard of care by failing to perform a C-section on M.M. in a timely manner after trial use of Simpson forceps. Dr. Haesslein's testimony that the standard of care does not automatically require a C-section following failed application of trial forceps and that there was no fetal distress reflected on the EFM to necessitate a C-section is entitled to substantial weight.

·98. There was clear and convincing evidence to a reasonable medical certainty that respondent engaged in repeated acts of negligence and in unprofessional conduct based upon his failure to document his. trial or phantom use of Simpson forceps in the context ofM.M. 's labor and delivery. Dr. Haesslein offered little testimony on this issue. By contrast, Dr. Kim persuasively testified that the use of forceps is a significant medical intervention that must be carefully documented, regardless of whether the delivery is ultimately by forceps or by spontaneous vaginal delivery. As was patently clear from the evidence in this case, respondent failed to document the specific reasons for applying the forceps, how he used them, the number oftimes he used them, the specific position of the baby's head in relation to the maternal pelvis, and whether the application was successful and enabled him to pull on the baby to assist in delivery, and the number of pulls. Use of forceps, even on a trial basis, is a significant medical intervention that carries risk of damage to both the fetus and to the mother's reproductive structures. It must be properly documented. These were simple departures from the standard of care.

Respondent's Rehabilitative Actions

99. For the last four years, respondent's practice has been limited to outpatient gynecology. Respondent testified that he had intended to participate in the PACE program when this was required by Mercy Merced, but was unable to enroll quickly enough to avoid suspension of privileges. Since leaving Merced Merced, respondent has not taken the PACE program. He has maintained his required continuing education units.

LEGAL CONCLUSIONS

1. In this action to revoke respondent's medical license, complainant bears the burden of proof on the charges alleged in the Accusation. The standard of proof is clear and convincing evidence to a reasonable medical certainty. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 855-856.) Clear and convincing evidence requires a finding of high probability or evidence so clear as to leave no substantial doubt and sufficiently strong as to command the unhesitating

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assent of every reasonable mind. (In re Michael G. (1998) 63 Cal.App.4th 700, 709, fn. 6.)

2. Under the Medical Practice Act (Act), Business and Professions Code section 2000 et seq., "[p ]rotection of the public shall be the highest priority for the Medical Board of California in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount." (Bus. & Prof. Code,§§ 2001.1, 2229.)

Pursuant to Business and Professions Code section 2227, following a hearing, the license of a physician who has been determined to have violated the Act may be revoked, suspended, or placed on probation with appropriate conditions. When considering license discipline, the protection of the public includes the prevention of future harm. (Medical Board a/California v. Superior Court (2003) Ill Cal.App. 4th 163.)

3. The Board is required to take action against any licensee who is charged with "unprofessional conduct." (Bus. & Prof. Code, § 2234.)

4. Gross Negligence: Pursuant to Business and Professions Code section 2234, subdivision (b), the Board may discipline a licensee's medical license for "gross negligence." Gross negligence is defined as "the want of even scant care or an extreme departure from the ordinary standard of conduct." (Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 941; Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 138; Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 196.)

5. Repeated Negligent Acts: Pursuant to Business and Professions Code section 2234, subdivision (c), the Board may discipline a licensee's medical license for "repeated negligent acts." To be repeated, there must be two or more negligent acts or omissions. An initial negligent act or omission followed by a separate and distinct departure from the applicable standard of care shall constitute repeated negligent acts. (Bus. & Prof. Code, § 2234, sub. (c).)

6. Record Keeping: Business and Professions Code section 2266 provides that the "failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct."

Legal Cause for Discipline Regarding A.M

7. As set forth in the Factual Findings and Legal Conclusions as a whole, and patiicularly in Factual Findings 55 through 60, there was clear and convincing evidence to a reasonable medical certainty that respondent engaged in an extreme

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departure fi·om the standard of care based upon his: (a) failure to recognize A.M.'s unsuccessful labor progress; (b) failure to recognize fetal distress; and (c) delay in performing a C-section in the presence of fetal distress. Legal cause is established to discipline respondent's license pursuant to Business and Professions Code section 2234, subdivision (b).

8. As set forth in the Factual Findings and Legal Conclusions as a whole, and particularly in Factual Findings 61 and 62, it was not established that respondent engaged in repeated acts of negligence or unprofessional conduct within the meaning of Business and Professions Code sections 2234, subdivision (c) or 2266, based upon his failure to properly document his care and treatment of A.M. or to maintain adequate and accurate records.

Legal Cause for Discipline Regarding MM

9. As set forth in the Factual Findings and Legal Conclusions as a whole, and particularly in Factual Finding 96, respondent did not engage in gross negligence or repeated acts of negligence within the meaning of Business and Professions Code section 2234, subdivisions (b) or (c), based upon his alleged numerous attempts at delivery of M.M. with Simpson forceps.

10. As set forth in the Factual Findings and Legal Conclusions as a whole, and particularly in Factual Finding 97, respondent did not engage in gross negligence or repeated acts of negligence within the meaning of Business and Professions Code section 2234, subdivisions (b) or (c), based upon his alleged failure to perform a C­section on M.M. in a timely manner.

11. As set forth in the Factual Findings and Legal Conclusions as a whole, and particularly in Factual Finding 98, there was clear and convincing evidence to a reasonable medical certainty that respondent engaged in repeated acts of negligence within the meaning of Business and Professions Code section 2234, subdivision (c), by failing to properly document his care and treatment of M.M. specifically regarding the applications of trial forceps prior to delivery.

12. As set forth in the Factual Findings and Legal Conclusions as a whole, and particularly in Factual Finding 98, there was clear and convincing evidence to a reasonable medical certainty that respondent engaged in unprofessional conduct within the meaning of section 2266, by failing to maintain adequate and accurate records relating to the provision of services to M.M., specifically regarding the applications of trial forceps prior-to delivery.

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Discipline

13. In determining the appropriate discipline in this matter, the disciplinary guidelines entitled 'Manual of Model Disciplinary Orders and Disciplinary Guidelines' (11th Edition/2011) have been considered. (Cal. Code Regs.,§ 1361.)

14. Based upon the record as a whole, and on Legal Conclusions 7, 11 and 12, respondent's license shall be revoked, revocation shall be stayed, and respondent shall be placed on probation for a period of four ( 4) years. A period of suspension from all practice during probation is not appropriate; however, respondent shall be prohibited from practicing obstetrics until he successfully completes the Medical Records and Clinical Training Programs outlined in Orders 2 and 3, below. Once respondent completes the Clinicial Training Program and returns to the practice of obstetrics, he shall have a clinical practice monitor for a period of 18 months and, during this time, he shall not engage in solo practice. Respondent shall fully comply with all probationary conditions. If these conditions are satisfied earlier than four years, respondent may petition for early termination of probation pursuant to Business and Professions Code section 2307, subdivision (b)( 1 ).

ORDER

Certificate No. G 75417 issued to respondent KIM MARKL SHERIDAN, M.D., is REVOKED pursuant to Legal Conclusions 7, 11 and 12. However, revocation is STAYED and respondent is placed on probation for four (4) years upon the following terms and conditions.

1. Education Course: Within 60 calendar days of the effective date of this Decision, and on an annual basis thereafter, respondent shall submit to the Board or its designee for its prior approval educational program(s) or course(s) which shall not be less than 40 hours per year, for each year of probation. The educational program(s) or course(s) shall be aimed at correcting any areas of deficient practice or knowledge and shall be Category I certified. The educational program(s) or course(s) shall be at respondent's expense and shall be in addition to the Continuing Medical Education (CME) requirements for renewal of licensure. Following the completion of each course, the Board or its designee may administer an examination to test respondent's knowledge of the course. Respondent shall provide proof of attendance for 65 hours of CME of which 40 hours were in satisfaction of this condition.

2. Medical Record Keeping Course: Within 60 calendar days of the effective date of this Decision, respondent shall enroll in a course in medical record keeping equivalent to the Medical Record Keeping Course offered by the Physician Assessment and Clinical Education Program, University of California, San Diego School of Medicine (Program), approved in advance by the Board or its designee. Respondent shall provide the program with any information and documents that the

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Program may deem pertinent. Respondent shall participate in and successfully complete the classroom component ofthe course not later than six (6) months after respondent's initial enrollment. Respondent shall successfully complete any other component of the course within one (1) year of enrollment. The medical record keeping course shall be at respondent's expense and shall be in addition to the Continuing Medical Education (CME) requirements for renewal of licensure.

A medical record keeping course taken after the acts that gave rise to the charges in the Accusation, but prior to the effective date of the Decision may, in the sole discretion of the Board or its designee, be accepted towards the fulfillment of this condition if the course would have been approved by the Board or its designee had the course been taken after the effective date of this Decision.

Respondent shall submit a certification of successful completion to the Board or its designee not later than 15 calendar days after successfully completing the course, or not later than 15 calendar days after the effective date of the Decision, whichever is later.

3. Clinical Training Program: Within 60 calendar days of the effective date of this Decision, respondent shall enroll in a clinical training or educational program equivalent to the Physician Assessment and Clinical Education Program (PACE) offered at the University of California- San Diego School of Medicine ("Program"). Respondent shall successfully complete the Program not later than six (6) months after respondent's initial enrollment unless the Board or its designee agrees in writing to an extension of that time.

The Program shall consist of a Comprehensive Assessment program comprised of a two-day assessment of respondent's physical and mental health; basic clinical and communication skills common to all clinicians; and medical knowledge, skill and judgment pertaining to respondent's area of practice in which respondent was alleged to be deficient, and at minimum, a 40 hour program of clinical education in the area of practice in which respondent was alleged to be deficient and which takes into account data obtained from the assessment, Decision(s), Accusation(s), and any other information that the Board or its designee deems relevant. Respondent shall pay all expenses associated with the clinical training program.

Based on respondent's performance and test results in the assessment and clinical education, the Program will advise the Board or its designee of its recommendation(s) for the scope and length of any additional educational or clinical training, treatment for any medical condition, treatment for any psychological condition, or anything else affecting respondent's practice of medicine. Respondent shall comply with Program recommendations.

At the completion of any additional educational or clinical training, respondent shall submit to and pass an examination .. Determination as to whether respondent

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successfully completed the examination or successfully completed the program is solely within the program's jurisdiction.

If respondent fails to enroll, participate in, or successfully complete the clinical training program within the designated time period, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified. The respondent shall not resume the practice of medicine until enrollment or participation in the outstanding portions of the clinical training program have been completed. If the respondent did not successfully complete the clinical training program, the respondent shall not resume the practice of medicine until a final decision has been rendered on the accusation and/or a petition to revoke probation. The cessation of practice shall not apply to the reduction of the probationary time period.

4. Practice Monitoring: Within 30 calendar days of the effective date of this Decision, or other time period approved by the Board, respondent shall submit to the Board or its designee for prior approval as a practice monitor(s), the name and qualifications of one or more licensed physicians and surgeons whose licenses are valid and in good standing, and who are preferably American Board of Medical ,. Specialties (ABMS) certified. A monitor shall have no prior or current business or personal relationship with respondent, or other relationship that could reasonably be expected to compromise the ability of the monitor to render fair and unbiased reports to the Board, including but not limited to any form of bartering, shall be in respondent's field of practice, and must agree to serve as respondent's monitor. Respondent shall pay all monhoring costs.

The Board or its designee shall provide the approved monitor with copies of the Decision(s) and Accusation(s), and a proposed monitoring plan. Within 15 calendar days of receipt of the Decision(s), Accusation(s), and proposed monitoring plan, the monitor shall submit a signed., statement that the monitor has read the Decision(s) and Accusation(s), fully understands the role of a monitor, and agrees or disagrees with the proposed monitoring plan. If the monitor disagrees with the proposed monitoring plan, the monitor shall submit a revised monitoring plan with the signed statement for approval by the Board or its designee.

For eighteen (18) months following completion ofthe Programs required by Orders 2 and 3 above, respondent's obstetric practice shall be monitored by the approved monitor. Respondent shall make all records available for immediate inspection and copying on the premises by the monitor at all times during business hours and shall retain the records for the entire term of probation.

If respondent fails to obtain approval of a monitor within 60 calendar days of the effective date of this Decision or other Board-approved time period, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified. Respondent shall

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cease the practice of medicine until a monitor is approved to provide monitoring responsibility.

The monitor(s) shall submit a quarterly written report to the Board or its designee which includes an evaluation of respondent's performance, indicating whether respondent's practices are within the standards of practice of medicine, and whether respondent is practicing medicine safely. It shall be the sole responsibility of respondent to ensure that the monitor submits the quarterly written reports to the Board or its designee within 10 calendar days after the end of the preceding quarter.

If the monitor resigns or is no longer available, respondent shall, within 5 calendar days of such resignation or unavailability, submit to the Board or its designee, for prior approval, the name and qualifications of a replacement monitor who will be assuming that responsibility within 15 calendar days. If respondent fails to obtain approval of a replacement monitor within 60 calendar days of the resignation or unavailability of the monitor, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified Respondent shall cease the practice of medicine until a replacement monitor is approved and assumes monitoring responsibility.

In lieu of a monitor, respondent may participate in a professional enhancement program equivalent to the one offered by the Physician Assessment and Clinical Education Program at the University of California, San Diego School of Medicine, that includes, at JJ;linimum, quarterly chart review, semi-annual practice assessment, and semi-annual review of professional growth and education. Respondent shall participate in the professional enhancement program at r~spondent' s expense during the term of probation.

5. Solo Practice Prohibition: Respondent is prohibited from engaging in the solo practice of obstetric medicine until such time as he successfully completes the Medical Record Keeping and Clinical Training Programs outlined in Orders 2 and 3, as confirmed in writing by the Prograrn/s. Prohibited solo practice includes, but is not limited to, a practice where: 1) respondent merely shares office space with another physician but is not affiliated for purposes of providing patient care, or 2) respondent is the sole physician practitioner at that location.

If respondent fails to establish a practice with another physician or secure employment in an appropriate practice setting within 60 calendar days of the time he successfully completes Programs outlined in Orders 2 and 3, as confirmed in writing by the Prograrn/s, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified. The respondent shall not resume practice until an appropriate practice setting is established.

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If, during the course of the probation, the respondent's practice setting changes and the respondent is no longer practicing in a setting in compliance with this Decision, the respondent shall notify the Board or its designee within 5 calendar days of the practice setting change. If respondent fails to establish a practice with another physician or secure employment in an appropriate practice setting within 60 calendar days of the practice setting change, respondent shall receive a notification from the Board or its designee to cease the practice of medicine within three (3) calendar days after being so notified. The respondent shall not resume practice until an appropriate practice setting is established.

6. Prohibited Practice: During probation, respondent is prohibited from practicing obstetrics until such time as he successfully completes the Medical Record Keeping and Clinical Training Programs outlined in Orders 2 and 3, as confirmed in writing by the Program/s. After the effective date of this Decision, all patients being treated by the respondent shall be notified that the respondent is prohibited from practicing obstetrics. Any new patients must be provided this notification at the time of their initial appointment.

Respondent shall maintain a log of all patients to whom the required oral notification was made. The log shall contain the: 1) patient's name, address and phone number; patient's medical record number, if available; 3) the full name of the person making the notification; 4) the date the notification was made; and 5) a description of the notification given. Respondent shall keep this log in a separate file or ledger, in chronological order, shall make the log available for im111ediate inspection and copying on the premises at all times during business hours by the Board or its designee, and shall retain the log for the entire term of probation.

7. Notification: Within seven (7) days of the effective date of this Decision, the respondent shall provide a true copy of this Decision and Accusation to the Chief of Staff or the Chief Executive Officer at every hospital where privileges or membership are extended to respondent, at any other facility where respondent engages in the practice of medicine, including all physician and locum tenens registries or other similar agencies, and to the Chief Executive Officer at every insurance carrier which extends malpractice insurance coverage to respondent. Respondent shall submit proof of compliance to the Board or its designee within 15 calendar days.

This condition shall apply to any change(s) in hospitals, other facilities or insurance carrier.

8. Supervision of Physician Assistants: During probation, respondent is prohibited from supervising physician assistants.

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9. Obey All Laws: Respondent shall obey all federal, state and local laws, all rules governing the practice of medicine in California and remain in fuii compliance with any court ordered criminal probation, payments, and other orders.

10. Quarterly Declarations: Respondent shall submit quarterly declarations under penalty of perjury on forms provided by the Board, stating whether there has been compliance with all the conditions of probation.

Respondent shaH submit quarterly declarations not later than 10 calendar days after the end of the preceding quarter.

11. General Probation Requirements

Compliance with Probation Unit: Respondent shall comply with the Board's probation unit and aH terms and conditions of this Decision.

Address Changes: Respondent shall, at all times, keep the Board informed of respondent's business and residence addresses, email address (if available), and telephone number. Changes of such addresses shall be immediately communicated in writing to the Board or its designee. Under no circumstances shall a post office box serve as an address of record, except as allowed by Business and Professions Code section 2021 (b).

Place of Practice: Respondent shall not engage in the practice of medicine in respondent's or patient's place of residence, unless the patient resides in a skilled nursing facility or other similar licensed facility.

License Renewal: Respondent shall maintain a current and renewed California physician's and surgeon's license.

Travel or Residence Outside California: Respondent shaH immediately inform the Board or its designee, in writing, of travel to any areas outside the jurisdiction of California which lasts, or is contemplated to last, more than thirty (30) calendar days.

In the event respondent should leave the State of California to reside or to practice respondent shall notify the Board or its designee in writing 30 calendar days prior to the dates of departure and return.

12. Interview with the Board or its Designee: Respondent shall be available in person upon request for interviews either at respondent's place of business or at the probation unit office, with or without prior notice throughout the term of probation.

13. Non-practice While on Probation: Respondent shaii notify the Board or its designee in writing within 15 calendar days of any periods of non-practice

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lasting more than 30 calendar days and within 15 calendar days of respondent's return to practice. Non-practice is defined as any period oftime respondent is not practicing medicine in California as defined in Business and Professions Code sections 2051 and 2052 for at least 40 hours in a calendar month in direct patient care, clinical activity or teaching, or other activity as approved by the Board. All time spent in an intensive training program which has been approved by the Board or its designee shall not be considered non-practice. Practicing medicine in another state of the United States or Federal jurisdiction while on probation with the medical licensing authority of that state or jurisdiction shall not be considered non-practice. A Board-ordered suspension of practice shall not be considered as a period of non-practice.

In the event respondent's period of non-practice while on probation exceeds 18 calendar months, respondent shall successfully complete a clinical training program that meets the criteria of Condition 18 of the current version of the Board's "Manual of Model Disciplinary Orders and Disciplinary Guidelines" prior to resuming the practice of medicine.

Respondent's period of non-practice while on probation shall not exceed two (2) years.

Periods of non-practice will not apply to the reduction of the probationary term.

Periods of non-practice will relieve respondent of the responsibility to comply with the probationary terms and conditions with the exception of this condition and the following terms and conditions of probation: Obey All Laws; and General Probation Requirements.

14. Completion of Probation: Respondent shall comply with all financial obligations (e.g., restitution, probation costs) not later than 120 calendar days prior to the completion of probation. Upon successful completion of probation, respondent's certificate shall be fully restored.

15. Violation of Probation: Failure to fully comply with any term or condition of probation is a violation of probation. If respondent violates probation in any respect, the Board, after giving respondent notice and the opportunity to be heard, may revoke probation and carry out the disciplinary order that was stayed. If an Accusation, or Petition to Revoke Probation, or an Interim Suspension Order is filed against respondent during probation, the Board shall have continuing jurisdiction until the matter is final, and the period of probation shall be extended until the matter is final.

16. License Surrender: Following the effective date of this Decision, if respondent ceases practicing due to retirement or health reasons or is otherwise unable to satisfy the terms and conditions of probation, respondent may request to

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surrender his or her license. The Board reserves the right to evaluate respondent's request and to exercise its discretion in determining whether or not to grant the request, or to take any other action deemed appropriate and reasonable under the circumstances. Upon formal acceptance of the surrender, respondent shall within 15 calendar days deliver respondent's wallet and wall certificate to the Board or its designee and respondent shall no longer practice medicine. Respondent will no longer be subject to the terms and conditions of probation. If respondent re-applies for a medical license, the application shall be treated as a petition for reinstatement of a revoked certificate. ·

17. Probation Monitoring Costs: Respondent shall pay the costs associated with probation monitoring each and every year of probation, as designated by the Board, which may be adjusted on an annual basis. Such costs shall be payable to the Medical Board of California and delivered to the Board or its designee no later than January 31 of each calendar year.

DATED: June 19, 2012

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