RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-01487
INDEX CODE: 134.02
COUNSEL: Mr. James L. Stanton
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. The findings and recommendations of a Medical Practice Review Board
(MPRB) restricting her from practicing Emergency Room (ER) medicine be
removed from her records.
2. The determination of the --th Medical Group commander restricting her
from practicing medicine in the Family Practice/Primary Care/Aerospace
Medicine clinics without 100 percent supervision for six months be removed
from her records.
3. The adverse correspondence provided to the National Practitioner Data
Bank (NPDB) by the Office of the Surgeon General of the Air Force (AF/SG)
be rescinded, or in the alternative, the restriction be reduced to
supervised practice in the ER and clinical settings.
4. She be granted physicians incentive pay and other benefits from 1 Jan
99 through 1 Dec 00.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The findings and recommendations of the MPRB held at --- AFB, ---, and the
subsequent actions by her commander and the AF/SG did not meet the criteria
set forth in AFI 44-119. The basis for convening the MPRB was primarily 10
patient complaints. Of the 10 complaints the MPRB found that 8 pertained
to waiting times that did not appear to have resulted in any adverse
outcomes. The two remaining complaints were a letter from an NCO about the
applicant crying during his appointment, inappropriate comments she made
about hospital officials, a dream she related about shooting hospital
leadership, and having discussed her childhood sexual abuse with a
technician in the front office. The MPRB concluded that because the
applicant did not deny them, the incidents did occur. A physician agreed
that while inappropriate, the outbursts were secondary to stress and
concluded that she was neither suicidal nor homicidal. The MPRB concluded
that these incidents were consistent with her inability to handle stressful
situations in an appropriate manner and felt that she should limit her
practice to settings which do not produce undue stress. The other incident
involved a complaint about the applicant's treatment for a cat bite by a
patient who contended that the applicant failed to render proper care by
failing to initiate a tetanus shot, delivering the wrong oral antibiotic,
and prescription of an incorrect dosage of rabies immunoglobin. The MPRB
found that the allegations were true and that they were corrected
immediately and had no adverse effect upon the patients care.
In another incident, the applicant prescribed a patient Tylenol but handed
the patient a bottle of Benadryl instead. The MPRB concluded that the
mistake did occur but noted that both medicines were elixir-type drugs in
identical bottles with identical labels of the same color manufactured by
the same manufacturer. The Pharmacist testified that this error was not
uncommon and not isolated to the applicant. The Pharmacist also testified
that the applicant was highly regarded for her pharmacological knowledge.
The MPRB also noted that there were only two medication errors by the
applicant since her arrival 6 month earlier and that she had seen well over
1,000 patients during that time.
The more serious complaint was a "Code Blue" situation. The main
complaints in this situation were her inadequate airway control, inability
to properly follow Advanced Cardiac Life Support (ACLS) guidelines, CPR,
and defibrillation. The patient died from cardiac arrest. The applicant
was in charge of directing Code Blue on the patient with the assistance of
Major B--- and Colonel O---. The MPRB found that there was a breach in the
standard of care by the applicant and that her conduct did have a potential
to adversely affect the quality of patient care. The MPRB noted, however,
that it was difficult to objectively assess the situation because they were
not provided certain support documents, notwithstanding their request that
such documents be produced. Major B-- testified that the requested
materials were not available but for some unexplained reasons, they
reappeared after the MPRB hearing. The MRPB stated that it had to rely
upon eyewitness testimony of Major B--- and Colonel O--- and concluded that
the applicant was unable to successfully intubate the patient and failed to
adequately follow ACLS protocol. The MPRB noted that she demonstrated a
visible uneasiness when confronted with a hypothetical ACLS scenario and
did appear to be in control of the situation. The MPRB concluded by
stating that under nonstressful situations, she is capable of performing
airway management and made the additional comment that there is a
tremendous difference between real code and a controlled environment.
Counsel states that even including the Code Blue, all of the complaints and
allegations against the applicant were non-life threatening and did not
affect any of the patients adversely. She saw 1,151 patients in the 8
months that she practiced as an ER provider. There were only two
medication complaints and nine complaints dealing with patient concerns
with time waiting to be seen in the ER. The applicant should have been
able to continue to practice ER medicine, or clinical medicine as
recommended by the MPRB instead of never being permitted to treat any
patients from the time of the board until her medical discharge.
The MPRB noted that it was alleged that the applicant suffered from
Multiple Sclerosis (MS), neuropsychological deficits, and carpal tunnel
syndrome. The MPRB noted that she faced a Medical Evaluation Board (MEB)
and was returned to duty following a determination that she did not have a
clinical diagnosis of MS. While stationed in --- she was evaluated at
Wilford Hall Medical Center by the Chairman of Neurology, whose findings
were consistent with the diagnosis of MS. An independent neurologist
evaluation at the Beth Israel Deaconess Medical Center determined that
further clinical symptoms were necessary before a final conclusion was
drawn and that her symptoms were more consistent with Guillan-Barre
syndrome/Miller Fisher variant. The MPRB agreed that further clinical
symptoms should occur before MS could be substantiated and limiting her
practice as a physician based on physical disability could not be
justified. However, that is exactly what happened despite the MPRB's
recommendation. The Air Force had a duty to give her the opportunity to
comply with the restrictions placed on her by the MPRB and her commander.
She was never given the opportunity to practice as a physician in a
clinical setting (except at Keesler AFB) and was not placed in a clinical
setting at ---- AFB. Because ---- AFB was scheduled to close, she was
reassigned to ---- AFB. She was sent on temporary duty for two weeks to
the medical facility at Keesler AFB for observation of her ER capabilities.
The commander of the medical facility at Keesler AFB made a report to her
commander at ---- AFB that all the Air Force physicians at Keesler AFB who
observed her actions recommended that she not be returned to duty in an ER
but that she would be quite capable of performing medical duties in less
stressful medical clinics. While assigned at ---- AFB she was not assigned
to a clinical setting as a physician but instead was relegated to duties of
reviewing medical records and those of a file clerk. This arbitrary action
totally destroyed her ability to practice as a physician and resulted in
another MEB followed by a Physical Evaluation Board (PEB). This action
demonstrated the Air Force's quest to remove her from practicing medicine
and to ultimately remove her from the Air Force.
The Air Force conducted its hearings, made its recommendations and her
commander added his approval with the slight modification of having her
clinical practice 100 percent supervised for 6 months instead of the
recommended 3 months. Her commander made the decision to go forward with
her practicing in clinics instead of the ER. The MPRB noted that she
possessed requisite knowledge to be a physician and the physicians who
reviewed her ER capabilities agreed that she should be permitted to
practice in a clinical setting. Notwithstanding these recommendations, she
was never placed in a clinical setting. This not only humiliated her as a
military physician but also took away her ability to demonstrate and
improve her clinical abilities, but most importantly, took away her
livelihood as a physician for the rest of her life. The applicant had the
right to rely on the MPRB's recommendation and her commander's statement
that she would be placed in a clinical setting. Had this happened she
could have at least salvaged her medical career from a standpoint of
rendering medical service in a non-emergency room setting both while in the
Air Force and as a civilian. The Air Force initiated a second MEB in July
2000 based again on its assertion that she had MS. The MEB recommended a
PEB be conducted which eventually resulted in her medical disability
retirement. The Air Force indicated that because of this condition, she
should not be placed even in a clinical position. Neither the first PEB
nor the MPRB concluded that she could not provide clinical care, therefore,
any claim that her medical condition would prevent her from providing
routine care was without any basis in fact.
In support of her request, applicant provided her counsel's brief,
documentation associated with her clinical privileges hearing and appeals
thereof, documentation associated with her MEB and PEB determinations, a
copy of her permanent change-of-station orders, documentation associated
with her medical skills evaluation at Keesler AFB, a personal statement,
copies of clinical neuropsychological reports, a letter from her attorney
and her commander's response, policy on medical licensure letter, her
statement of military compensation; a copy of her Active Duty Service
Commitment Counseling Statement, a Leave and Earnings Statement, and
extracts for several Air Force instructions. Her complete submission, with
attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 20 Jun 92, the applicant, a prior service Army Reserve officer, was
appointed a major, Medical Corps, Reserve of the Air Force. She was
voluntarily ordered to extended active duty on 28 Jul 92.
A credentials hearing was conducted to address matters that pertain to her
clinical proficiency, professional conduct as well as matters affecting her
mental and physical well-being. The hearing addressed patient complaints,
mental/physical limitations mounting to an unacceptable impairment,
forgetful/disorganization in the clinical setting, inappropriate actions,
and allegations of substandard care in the ER setting. The applicant was
represented by counsel and presented her own evidence and witnesses. The
hearing committee unanimously concluded that she should not practice in an
ER setting due to the concern that she does not adequately manage task-
saturated events, family practice/primary care/aerospace medicine
privileges should be allowed, she should be monitored with 100 percent
chart review for no less than 3 months, and at the conclusion of the three
month period her privileges should be reevaluated. She appealed the
decision to the AF/SG on the basis that the government failed to produce
crucial medical records, the government introduced records not provided to
the applicant prior to the hearing, the government exerted command
influence upon at least one witness, the government failed to assure
impartiality of the Hearing Committee, and the government went outside the
hearing record to investigate an incident without advising the applicant.
AF/SG completed a review of the adverse action and her appeal. AF/SG
agreed with the MPRB and directed this action be reported to the NPDB and
States of known licensure.
While stationed at ---- AFB, the Air Force offered her an additional
reevaluation of her emergency room practice. She was sent to Keesler AFB
for reevaluation. During this time six ER physicians provided direct
evaluation of her ER practice. Their recommendations stated that it would
not be prudent to leave the applicant alone in charge of an emergency
department, that she was not a competent emergency physician, and most (but
not all) evaluators believed that she could perform in a satisfactory
manner in a controlled, slower clinical setting. They concluded that she
has good clinical knowledge in most settings but all agreed that she
couldn't handle the "multi-tasking" needed in the emergency medicine
specialty.
An MEB was convened on 1 Dec 98 and referred her case to an Informal
Physical Evaluation Board (IPEB) with a diagnosis of Gullian-Barre
syndrome, MS, antisocial, histrionic, and narcissistic personality traits,
cognitive disorder, and glaucoma. On 28 Jan 99, the IPEB recommended that
she be returned to duty.
On 12 Jul 00, an MEB was convened and referred her case to an IPEB with a
diagnosis of MS versus, less likely, recurrent Miller-Fisher variant of
Gullian-Barre. On 10 Aug 00, the IPEB found her unfit for further military
service based on a diagnosis of MS, associated with secondary cognitive
deficit and recommended that she be permanently retired with a compensable
percentage of 30 percent. The applicant disagreed with the findings and
recommended disposition of the IPEB and requested a Formal PEB (FPEB). On
20 Sep 00, the applicant elected to waive her right to an FPEB and
indicated that she concurred with the findings and recommended disposition
of the IPEB. On 17 Oct 00, the Office of the Secretary of the Air Force
directed that she be retired in the grade of major with a compensable
rating of 30 percent. She was retired on 1 Dec 00. She served 8 years, 4
months, and 4 days on active duty.
_________________________________________________________________
AIR FORCE EVALUATION:
AFMPA/SGZC reviewed applicant's request and recommends denial. SGZC states
that it is important to note that she was provided a Credentialing package
upon her arrival at ---- AFB. She only applied for ER clinical privileges.
She did not apply for Family Practice clinic privileges. Because she did
not apply for Family Practice privileges, the facility did not have an
opportunity to reevaluate her after a period of supervision in this
clinical setting.
Regarding the applicant's allegation that her rights were violated for
failure to produce crucial medical records used by the Credentials Hearing,
SGCZ states that the medical documentation was missing for a period of time
during the adverse privileging action and was found just prior to the
hearing. AF/SG did not consider this information as a basis for the action
taken upon her privileges. Regarding her allegation that there was undue
command influence upon at least one witness, SGCZ states that the witness
stated she felt pressured not to testify for the applicant, she did testify
on her behalf and the testimony did not have any negative impact on the
applicant. Regarding her allegation that the medical treatment facility
failed to assure impartiality of the hearing committee, SGCZ states that
this allegation is based on one statement from a hearing member who stated
he had confidence in Major B---'s performance during the code blue
incident, Major B---'s performance was not in question and this is
irrelevant to this case. Regarding her allegation that one member of the
medical treatment facility went outside the Hearing record to investigate a
peer review at a different medical facility, SGCZ states that one committee
member telephoned Langley AFB to inquire about the results of a peer review
on the code blue involving the applicant. No information was provided to
the member and giving her the benefit of the doubt, was not considered as a
factor in the final decision by AF/SG. Regarding her allegation that she
does not have a higher patient complaint rate than her peers, SGCZ states
that this allegation cannot be validated since patient complaint rates were
submitted by the medical treatment facility. The patient complaints
submitted on her behalf demonstrated labile emotional and behavioral
issues. Regarding her allegation that she did not have opportunity to
respond to the patient complaints and there is no documentation of poor
patient outcomes, SGCZ states that there is general agreement that she
posses good medical knowledge. Her diagnosed cognitive deficits have
impacted her ability to manage a fast-paced, multi-tasked emergency room
environment. Once this problem was recognized the facility took action to
prevent any medical mishaps. Regarding her allegation that other
physicians supported her medical care, SGCZ states that some physicians
provided supportive statements; however, none of the statements was from
her peer emergency room physicians, the specialty where she was felt to be
deficient. Regarding her allegation that the medical facility produced new
evidence without providing the evidence to her, SGCZ sates that there is no
reference to this information, it was not considered as a factor by the
Hearing Committee or the MPRB and had no impact on the final outcome.
The SGZC evaluation, with attachments, is at Exhibit C.
AFPC/DPAMF1 reviewed applicant's request and recommends denial. DPAMF1
states that revocation of the applicant's ER privileges was authorized in
accordance with AFI 44-9119 and was done so appropriately as the discretion
of the medical facility commander and supported by AF/SG. Title 37,
Chapter 5 of the United States Code states that an officer in not eligible
for incentive special pay unless the Secretary concerned has determined
that such officer is qualified in the medical profession. The Secretary of
the Air Force delegated to approve and disapprove physician special pays on
22 Jun 98. AFI 41-9109, Special Pay for Health Professionals, states that
a Medical Corps officer is entitled to incentive pay if the individual is
fully qualified in a medical specialty and practicing in that specialty.
Based on the determination of the Air Force MPRB and the AF/SG, she was not
eligible to receive physician incentive pays.
The DPAMF1 evaluation, with attachments, is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Counsel responded and states that the MPRB did not recommend that the
applicant's medical privileges be "revoked" but only that she should be
monitored with 100 percent chart review for no less than 3 months and then
reevaluated at the conclusion of that period. This, in fact did not occur.
It was her commander who expanded the MPRB's recommendation to "rescind"
her emergency medicine privileges and to direct that her clinical
privileges "be continued in Category 2 with 100 percent chart review and
full supervision for a period of 6 months." While the physicians at the ER
at Keesler AFB did not think she should be left alone and in charge of an
emergency department, counsel points out that this should not preclude her
from being able to prove herself in the future by being an assistant ER
provider in a civilian hospital. The significance of the fact that most,
but not all of the ER evaluators believed that she could perform in a
satisfactory manner in a controlled slower clinic setting seems to have
been lost in the review. Nobody in authority in the Air Force has given
the applicant the benefit of these positive statements and counsel contend
that these statements are very significant in evaluating her abilities to
perform medical duties in a clinical setting.
SGCZ states that when she was given a credentialing package, she only
applied for ER clinical privileges claiming that it was her responsibility
to apply for credentialing and that credentialing is not awarded until
application is made for them. This may be the routine under normal
circumstances but not under the applicant's circumstances. The Air Force
had the duty to take the steps necessary to insure that she was reevaluated
in both the ER and clinical settings regardless in where she was assigned.
The statement of her commander clearly shows that it was the responsibility
of the Air Force, not the applicant, to assure that both her clinical
privilege status' be reevaluated. In the Staff Judge Advocate's memorandum
to her commander, he recommended against reassigning her because he
believed it would give the appearance of reprisal against her because of
the adverse hearing outcome. He further recommended such action be
coordinated with the major command and that her gaining unit officials be
notified of her situation. From the time the applicant arrived at ---- AFB
she was only allowed to do administrative tasks and was never permitted to
see any patients in any clinic despite her repeated voicing of her desire
to do so. The Air Force was at fault for not assigning her to clinical
duties and in failing to follow through with reevaluating her performance
of clinical duties.
Her commander noted that he had reviewed the record of the MPRB hearing,
including the AETC Form 1280 Code Blue Record, which was noted as missing
at the time of the hearing. This corroborates the applicant's allegation
that the MPRB did not have the opportunity to review this crucial document
which would have been to her benefit because it shows that even though she
was unable to intubate the patient, the patient was intubated by Major B---
. This documentation also refutes testimony of Major B--- where he related
that the applicant failed to defibrillate the patient in a timely manner.
The facts are that the procedures were done but the MPRB did not review
this documentation before it made its report.
During the hearing, her attorney challenged Major B--- testimony concerning
the Code Blue and the challenge was not allowed by the Chairman of the
Board. His statement clearly showed that the Chairman was biased in Major
B---'s favor which is crucial to understanding that not only was Major B---
a key witness against the applicant but on his own initiative he prepared a
letter to the commander recommending what action should be taken and also
recommending that her monitoring and reevaluation not be accomplished at ---
- AFB.
It should be noted that prior to her evaluation at Keesler AFB her ER
experiences were at relatively small ER facilities, which by their very
nature would limit the extent of her capabilities. Keesler AFB, however,
was home to the Air Force's second largest emergency services department
with an annual patient volume of 30,000 to 35,000 visits per year. The
fact that most but not all of the Keesler AFB physicians states that she
could perform in a satisfactory manner in a controlled, slower clinic
setting and felt that she had good clinical knowledge in most settings
should be given strong consideration in restoring unlimited primacy care
privileges.
Counsel's statement is at Exhibit F.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law or
regulations.
2. The application was timely filed.
3. Insufficient relevant evidence has been presented to demonstrate the
existence of error or injustice that would warrant full relief of the
applicant's requests. We note that the credentials hearing committee,
after deliberation of all the facts of her case, recommended that she
should not practice in an ER setting and that she should be allowed
clinical privileges with 100 percent chart review and reevaluation after a
period of time. Her commander concurred with that recommendation. The
MPRB reviewed the facts of her case and made their recommendation to the
AF/SG. After review of all the facts of her case and consideration of her
appeal, the AF/SG subsequently concurred with the recommendations of the
MPRB. The applicant contends that the actions taken to revoke her ER
privileges and limit her to clinical duties were arbitrary, capricious, and
were in violation of laws and policy; and requests that those findings and
determination be removed from her records. After a thorough review of the
evidence of record, it is our opinion that the actions taken to affect
revocation of her ER privileges and restrict her to clinical practices were
taken appropriately and in accordance with established directives.
Evidence has not been presented which would lead us to believe that her
commander abused his discretionary authority in this matter or that the
actions taken against the applicant were based on anything other than her
own performance. Upon her application for ER clinical privileges, she was
reevaluated in an ER setting and it was further confirmed and recommended
that she should not be placed in an ER department and she be limited to
duties in a clinical setting. We note the applicant's requests that the
adverse correspondence provided to the MPRB be rescinded, or in the
alternative amended. However, we carefully reviewed the data contained in
the Adverse Action Report provided to the MPRB and are not persuaded that
the data therein is factually incorrect or that the report was improperly
submitted. Therefore, we agree with the Air Force offices of primary
responsibility regarding these matters, and adopt their rationale as basis
for our conclusion that she has not been the victim of an error or
injustice.
4. Sufficient relevant evidence has been presented warranting approval of
the applicant's request to receive Additional Special Pay (ASP) for the
years 1998 and 1999. A review of her pay records reflects that she
remained eligible for, and continued to receive payments on her Incentive
Special Pay, Multi-year Special Pay, Board Certification Pay, and Variable
Special Pay contracts. Based on our review of the evidence of record, it
is our opinion that although her ER privileges were revoked, the MPRB had
determined that she was qualified to perform in a clinical setting. While
we believe that it was at her commander's discretion to relegate her to
other duties, we note that based on the findings of the MPRB, the applicant
could have practiced in a clinical setting and therefore was entitled to
the Additional Special Pay. Accordingly, we recommend that her records be
corrected to the extent indicated below.
5. The applicant's case is adequately documented and it has not been shown
that a personal appearance with or without counsel will materially add to
our understanding of the issues involved. Therefore, the request for a
hearing is not favorably considered.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating
to APPLICANT be corrected to show that:
a. On 27 July 1998, she executed, and competent authority approved,
a 1-year Additional Special Pay Contract, effective 28 July 1998.
b. On 27 July 1999, she executed, and competent authority approved,
a 1-year Additional Special Pay Contract, effective 28 July 1999.
_________________________________________________________________
The following members of the Board considered Docket Number 02-01487 in
Executive Session on 18 Dec 02, under the provisions of AFI 36-2603:
Mr. Thomas S. Markiewicz, Vice Chair
Mr. Billy C. Baxter, Member
Mr. Grover L. Dunn, Member
All members voted to correct the records, as recommended. The following
documentary evidence was considered:
Exhibit A. DD Form 149, dated 25 Apr 02, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFMOA/SGZC, dated 16 Aug 02, w/atchs.
Exhibit D. Letter, AFPC/DPAMF1, dated 25 Sep 02, w/atchs.
Exhibit E. Letter, SAF/MRBR, dated 4 Oct 02.
Exhibit F. Letter, Counsel, dated 7 Nov 02.
THOMAS S. MARKIEWICZ
Vice Chair
AFBCMR 02-01487
MEMORANDUM FOR THE CHIEF OF STAFF
Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:
The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that:
a. On 27 July 1998, she executed, and competent authority
approved, a 1-year Additional Special Pay Contract, effective 28 July 1998.
b. On 27 July 1999, she executed, and competent authority
approved, a 1-year Additional Special Pay Contract, effective 28 July 1999.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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