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State Board of Medical Examiners v. McCroskey9/12/1994
In Colorado State Board of Medical Examiners v. McCroskey, No. 92CA1433 (Colo. App. June 17, 1993) (not selected for publication), the court of appeals reversed the final order of the Colorado Board of Medical Examiners (the Board) directing that a letter of admonition be issued to Dr. Brian L. McCroskey for unprofessional conduct. We granted certiorari in order to determine whether the Board was bound by the finding of the administrative law Judge (the ALJ) on the existence and nature of a "generally accepted standard of medical practice." We now reverse and remand this case to the court of appeals with directions.
I
McCroskey is a physician licensed to practice medicine in Colorado and thus is subject to the Medical Practice Act, sections 12-36-101 through -137, 5B C.R.S. (1991 & 1993 Supp.). In 1990, an inquiry panel of the Board issued a letter of admonition to McCroskey based upon a series of well-publicized incidents arising from the care of a stab-wound victim at Denver General Hospital (DGH) in 1988. Although the patient's initial condition was thought to be stable, he bled to death several hours after his admission. As the attending surgeon on the date of the events in question, McCroskey had the final word on the patient's treatment and was responsible for the accurate completion of the patient's medical record. McCroskey declined to accept the letter of admonition and, pursuant to section 12-36-118(4)(c)(III), a formal disciplinary hearing was held.
Initially, the inquiry panel charged McCroskey with four counts of unprofessional conduct under section 12-36-117(1)(p), alleging that McCroskey committed two or more acts which failed to meet generally accepted standards of medical practice. One count was dismissed either prior to or at the hearing before the ALJ and alleged that McCroskey requested that a pathologist alter the patient's official autopsy report. A second count, which the ALJ found was not supported sufficiently by the evidence, charged that McCroskey unreasonably delayed getting to the hospital after being called by the chief resident.
The remaining two counts involved alterations or additions to the patient's medical record. First, the ALJ found that medical record-keeping is part of "medical practice," and thus falls within the scope of section 12-36-117(1)(p). The ALJ further found that McCroskey committed an act which failed to meet generally accepted standards of medical practice when he erased and wrote over a pre-operative note made by another physician concerning the patient's estimated blood loss.
After listening to conflicting expert testimony, the ALJ concluded that McCroskey did not violate generally accepted standards of medical practice by adding a "staff note" to the patient's medical record days or weeks after the patient's death and backdating the note to the date of death. "While the better practice is to date such an entry as of the date it is made, in practice many physicians date their entries as of the date of the occurrence." According to the ALJ, this fact brought McCroskey's conduct within the standard of care under the "respectable minority" rule articulated in Hamilton v. Hardy, 37 Colo. App. 375, 379-80, 549 P.2d 1099, 1104 (1976) (only when it is shown that a respectable minority of physicians approved of a course of action should a medical malpractice case be taken from the jury). Since section 12-36-117(1)(p) requires proof of two or more acts of substandard care to support disciplinary action, the ALJ concluded that McCroskey was not subject to disci
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