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Tendai v. Missouri State Board of Registration for the Healing Arts4/5/2005
Opinion Vote: REVERSED.
White, C.J., Stith, Price and Russell, JJ., concur; Teitelman, J., dissents in separate opinion filed; Limbaugh, J., concurs in opinion of Teitelman, J.
Opinion:
This physician disciplinary action arose from Dr. Mark Tendai's care of S.G., an 18-year-old woman pregnant with her second child in 1992. The tragic outcome of her pregnancy was the delivery of a stillborn child with the umbilical cord wrapped around the baby's neck.
The Missouri State Board of Registration for the Healing Arts filed two complaints with the Administrative Hearing Commission seeking to discipline Dr. Tendai, a Springfield physician specializing in obstetrics and gynecology, based on his treatment of S.G. and another obstetrical patient, J.W. The commission determined that Dr. Tendai was not subject to discipline for his treatment of J.W. As to S.G., the commission concluded that there was cause for discipline under section 334.100.2(5) for "gross negligence," "repeated negligence," "incompetency," and "conduct harmful to a patient."
After the commission's decision, the board imposed discipline that included a 60-day suspension from medical practice, a ban from the practice of obstetrics and a requirement that Dr. Tendai attend a course on medical documentation. Dr.Tendai appealed to the circuit court of Cole County, which entered judgment upholding the commission's decision and the board's discipline.
On appeal to this Court, Dr. Tendai raises numerous challenges to the statute under which he was disciplined, to the healing arts board's procedures and to the alleged disparity of treatment in the disciplinary process. Resolution of this appeal, however, involves principally the task of applying the disciplinary statute, in its plain and ordinary meaning, to the facts of this case and determining whether there was substantial evidence to support the commission's decision.
This Court concludes that the commission's decision under the disciplinary statute is not supported by substantial evidence in the record as a whole. The judgment is reversed.
Facts and Procedural History
S.G., 18 years old and pregnant with her second child in 1992, made 13 visits to Dr. Tendai's office between April and November 1992. During S.G.'s first visit, Dr. Tendai determined that S.G.'s due date was approximately November 27, 1992. During her periodic visits with Dr. Tendai, her pregnancy appeared to be normal until October 1992.
On October 16, 1992, Dr. Tendai first became concerned that S.G.'s unborn baby was not growing adequately. Dr. Tendai suspected that the fetus had developed intrauterine growth retardation (IUGR), which would cause the fetus to stop growing. He testified that he discussed IUGR with S.G. and recommended that S.G. see a perinatologist, a physician specializing in late pregnancy complications. Dr. Tendai testified that S.G. "panicked" and refused to see a perinatologist. He also testified that he was unsure whether he observed a normal three-vessel umbilical cord or an abnormal two-vessel cord. A two-vessel cord is associated with birth defects. Dr. Tendai produced a "sticky note" dated October 16 that reflected that he was aware that S.G.'s fetus might have a two-vessel cord; however, the flow chart completed by the doctor's office nurse after the October 16 visit indicates a three-vessel cord.
When the healing arts board's investigator obtained Dr. Tendai's office records for S.G., there was no reference to the doctor having referred S.G. to a perinatologist. Later, however, Dr. Tendai produced a "sticky note" dated October 16 that states that S.G. refused his advic
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