 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Tendai v. Missouri State Board of Registration for the Healing Arts4/5/2005
ent decision, the decision not to refer S.G. to a perinatologist. During S.G.'s subsequent visits after the November 2 decision, the doctor merely adhered to the decision he had previously made.
In the context of a disciplinary proceeding, to consider each of these three visits after November 2 to be a separate act of negligence is to engage in bootstrapping. In medical negligence litigation, where a "continuing care" exception is invoked to avoid the statute of limitations, the act of negligence is generally treated as a single act and is not divided into multiple separate acts of negligence, so that the negligence relates back to treatment that may otherwise have occurred before the period of the statute of limitations. See Montgomery v. South County Radiologists, Inc., 49 S.W.3d 191, 194-95 (Mo. banc 2001); Thatcher v. De Tar, 173 S.W.2d 760, 762 (Mo. 1943). Similarly, Dr. Tendai's actions, all part of the same treatment decision, can only be considered as a single negligent act. The record does not support the commission's conclusion that Dr. Tendai committed "repeated negligence," which is the statute's requirement.
Incompetency
"Incompetency" is not defined in section 334.100.2(5). As with gross negligence, when a term is undefined, the Court looks to its plain and ordinary meaning according to the dictionary. Asbury v. Lombardi, 846 S.W.2d 196, 201 (Mo. banc 1993). Random House Webster's Dictionary (1997) defines "incompetence" as "the quality or state of being incompetent," and defines "incompetent" as "1. lacking qualification or ability; incapable. 2. characterized by or showing incompetence. 3. not legally qualified."
The commission considered the meaning of incompetency to be: "a general lack of present ability or lack of disposition to use a present ability to perform a given duty." That definition is appropriate.
"Incompetency" refers to a state of being. It is clear that incompetency means something different than "gross negligence" or "repeated negligence." Otherwise, there would be no reason to list "incompetency" in the statute as a separate ground for discipline and "incompetency" would be redundant. " very word in a statute is presumed meaningful." Gott v. Dir. of Revenue, 5 S.W.3d 155, 158 (Mo. banc 1999). A doctor who is generally competent could commit gross negligence or repeated negligence; thus, "incompetency" must mean something different from these other terms.
Taken in the light most favorable to the commission's decision, the evidence that Dr. Tendai was incompetent is as follows: He was aware, as of November 2, 1992, that S.G.'s fetus had IUGR and that the fetus had a two-vessel umbilical cord; the standard of care required that an amniocentesis or non-stress testing be completed; Dr. Tendai did not have the equipment to conduct an amniocentesis or non-stress testing; Dr. Tendai was concerned that the only available perinatologist would try to deliver S.G.'s baby too soon; Dr. Tendai did not refer S.G. to a perinatologist, who could conduct the appropriate testing; and Dr. Tendai violated the standard of care by not referring S.G. to a perinatologist. This is evidence of ordinary negligence, but not incompetency.
None of the expert witnesses testified that Dr. Tendai was incompetent. There is no evidence that Dr. Tendai was not legally qualified to practice as a physician. The healing arts board did not present evidence that Dr. Tendai was incapable of practicing medicine or that he lacked the qualities needed for effective action or was unable to function properly as a physician.
Rather, Dr. Tendai made a decision -- not to refer S.G. to a perinatologist or to do non-stress testing
Page 1 2 3 4 5 6 7 8 9 10 11 12 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|