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State Board of Registration for the Healing Arts v. McDonagh12/23/2003
sease.
Application of this standard does not merely require a determination of what treatment is most popular. Were that the only determinant of skill and learning, any physician who used a medicine for off-label purposes, or who pursued unconventional courses of treatment, could be found to have engaged in repeated negligence and be subject to discipline. This would not be consistent with section 490.065.
Rather the statute requires only what it says -- that Dr. McDonagh use that degree of skill and learning used by members of the profession in similar circumstances. By analogy, one doctor may use medicine to treat heart problems while another might chose to perform a by-pass and a third to perform angioplasty, yet all three may be applying the requisite degree of skill and learning. That they came to differing conclusions by applying that skill and learning does not make one negligent and one non-negligent.
So too, here, if Dr. McDonagh's treatment, including his use of a diet and exercise regimen, and the lack of evidence of harm from his approach, demonstrates the application of the degree of skill and learning ordinarily used by members of his profession, then it is not a basis for discipline under the statute, even if other doctors would apply these facts to reach a different result.
Because, in concluding that Dr. McDonagh did not violate section 334.100.2(5), the AHC relied on Dr. McDonagh's experts' testimony and because this testimony failed to establish whether the experts were using the legal standard of care for "repeated negligence" set out in section 334.100.2(5), this Court must reverse and remand. The circuit court should remand to the AHC for reconsideration under section 490.065 and in light of the standard of care contained in section 334.100.2(5).
B. Record Keeping, Testing, and Misrepresentation Issues.
The parties dispute the AHC's findings and conclusions on the allegations that Dr. McDonagh failed to keep and maintain adequate records. These allegations were made as part of Counts II, III, IV, V, X, and XII, rather than set out in an independent count, and the Board presented expert testimony on Dr. McDonagh's record-keeping practices in regard to the standard of care. While the AHC made an independent finding that "no Missouri law or regulation sets forth standards or recommendations," it failed to consider the evidence as a component of the repeated negligence counts in which the allegations of inadequate record keeping arose. It should do so on remand.
The Board and Dr. McDonagh also dispute the AHC's findings regarding the Board's allegations of misrepresentation, and his alleged repeated ordering of inappropriate and unnecessary testing of patients. These issues should be remanded to the AHC for reconsideration in light of this opinion.
VI. CONCLUSION
Because the expert testimony upon which the AHC relied failed to furnish the appropriate legal standard of care, the circuit court's judgment is reversed, and the case is remanded. On remand, the circuit court is directed to remand to the AHC on all counts for further review in light of section 490.065 and in light of the standard of care set out in section 334.100.2(5) and this opinion.
Separate Opinion
Opinion Concurring In Part And Dissenting In Part by Judge Wolff:
I concur that section 490.065 sets the standards for admissibility and use of expert testimony. Because I believe that the Administrative Hearing Commission was correct in concluding that Dr. McDonagh was not subject to discipline for any of the acts alleged by the State Board of Registration for the Healing Ar
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