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Tendai v. Missouri State Board of Registration for the Healing Arts4/5/2005
hat " ntrauterine fetal death was most likely due to the combined effects of a tight nuchal cord with severe chronic villitis of unknown etiology involving the placenta with associated intrauterine fetal growth retardation." The principal opinion states that the autopsy supports the position that the death was caused by strangulation "and that Dr. Tendai was not negligent." In fact, the autopsy report specifically mentions IUGR as a contributing factor to the death while offering no opinion as to whether Dr. Tendai was negligent. Where evidence warrants either of two opposed findings, the reviewing court must uphold the factual findings the agency has made. Fritzshall v. Bd. of Police Commissioners, 886 S.W.2d 20, 33 (Mo. App. 1994). The autopsy findings supports the commission's decision that IUGR was a contributing factor to the baby's death and that Dr. Tendai's negligent monitoring of the IUGR was harmful to the patient. This Court is not in a position to substitute its lay medical judgments for the commission's factual findings.
Second, Dr. Cameron testified that the death could have been prevented if Dr. Tendai had properly monitored the development of the fetus. Specifically, Dr. Cameron testified that the death could have been foreseen and the baby could have been delivered via caesarian section. The principal opinion's rejection of Dr. Cameron's testimony as "a statement merely of timing" ignores the thrust of Dr. Cameron's testimony that, in this case, timing may have been crucial to the medical outcome. Again, this Court is no position to substitute its conjecture regarding medical matters for the factual findings of the commission. There is sufficient evidence to support the commission's decision to discipline Dr. Tendai's license for conduct which "is or might be harmful" to a patient.
I would uphold the circuit court's judgment affirming the discipline of Dr. Tendai's license for repeated negligence and conduct harmful to the patient.
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