IN THE CASE OF:	

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20100020923 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the documents that led to the revocation of the applicant's clinical privileges from his record and correction of the erroneous facts that have been posted to State and National medical boards.

	a.  Counsel requests that the Army Board for Correction of Military Records (ABCMR) determine whether the:

		(1)  Army published false or inaccurate facts about the applicant and whether privileges were taken on 7 January 2009,

		(2)  applicant met medical standards of care in Cases 1 through 5,

		(3)  applicant was counseled so as to have a chance to improve before privileges were suspended,

		(4)  investigation constituted a thorough, fair, honest, and unbiased review of matters and whether the applicant had an opportunity to make a meaningful response to allegations during the investigation,

		(5)  Peer Review Panel gave the applicant notice of what it was considering or asked him for information before deciding against him and recommending revocation of privileges,

		(6)  formal Peer Review process complied with Army regulation both to evaluate the available information and to determine if the standard of care was met,

		(7)  multiple denials of due process resulted in a stigma on the applicant's professional reputation and damaged his ability to practice his chosen profession, and

		(8)  Credentials Committee hearing based on the prior record was a foregone conclusion.

	b.  Counsel requests that the ABCMR provide the following relief:

		(1)  a hearing before the ABCMR and

		(2)  restore medical privileges and rescind the adverse action report with notice to each medical board copied with the adverse action report.

	c.  Counsel requests that the ABCMR find:

		(1)  the denial of privileges to the applicant occurred without due process under the Fifth Amendment of the U.S. Constitution,

		(2)  the Army failed to abide by Army regulations in denial of privileges to the applicant, and

		(3)  the actions against the applicant were inequitable and unjust.

	d.  Counsel requests that the ABCMR rescind and remove from all Army files where retrievable by the applicant's name or other identifying characteristic and from personnel files any and all documents concerning the following:

		(1)  notice of proposed adverse clinical privileging action by the commander, dated 4 August 2008;

		(2)  Credentialing Committee minutes and documents of August 2008;

		(3)  External Peer Review Report, dated 29 July 2008;

		(4)  Investigating Officer (IO) Clinical Quality Management-Quality Assurance (CQM QA) Report, dated 1 June 2008;

		(5)  Notice of Abeyance of Clinical Privileges/Practice, dated 14 May 2008; and

		(6)  memorandum of Walter Reed Army Medical Center (WRAMC) Anesthesia and Operative Service Quality Improvement Meeting, dated 5 May 2008.

* Case 1 – 1 May 2008 supporting documentation for D.L. 30/4905
* Case 2 – 25 March 2008 supporting documentation for M.P. 20/0742
* Case 3 – 20 March 2008 supporting documentation for K.G. 02/5853
* Case 4 – 18 April 2008 supporting documentation for Formal MRI Staff complaint
* Case 5 – 4 January 2008 supporting documentation for V.B. 30/3918.

	e.  Counsel requests that the ABCMR correct records to show retroactive entitlement to special pay for the applicant him since 14 May 2008 when he was given notice of abeyance of clinical privileges/practice.

	f.  Counsel requests that the ABCMR correct records to show retroactive special pay of the difference between special pay or not paid and increased amounts in the maximum amount in special pay paid physicians at the applicant's rank and experience as if he had special privileges.

	g.  Counsel requests that the ABCMR rescind the 2007-2008 officer evaluation report (OER).

	h.  Counsel requests that the ABCMR rescind the 2010 OER or correct the 2010 OER to reflect a recommendation to retain and to maintain his privileges.

	i.  Counsel requests the following relating to promotion:

		(1)  that the ABCMR find the applicant's failures to be promoted to colonel (COL) were substantially due to the loss of privileges and 2007 to present OER's;

		(2)  that the ABCMR, not a special promotion board, promote the applicant to COL/O-6;

	j.  Counsel requests an investigation for mitigation of damages, specifically:

		(1)  order an investigation into the damage to applicant's reputation and pecuniary losses caused by the denial of privileges and

		(2)  correct records and take such other action to make the applicant whole or restored to the position and status he would have occupied but for the denial of access and medical privileges, the investigation and process here, and the OER's.

2.  In a subsequent request, counsel asks the ABCMR to reinstate the applicant to active duty retroactive to 11 April 2011 and, effectively, to remove from his record the elimination action that resulted in the applicant's separation on that date with an honorable discharge for unacceptable conduct.

3.  Counsel states the applicant was not given due process when his clinical privileges were revoked and the Army impugned the applicant's medical reputation and ability to practice medicine.  The applicant's clinical privileges were revoked for several reasons.  Training, proper orientation, counseling, OER's, and other Army mechanisms could have resolved the complaints relating to his behavior.  The Army did not need to impugn the applicant's medical reputation and ability to practice medicine.  Counsel provides a detailed description of the unfairness and impropriety involved in the actions taken against the applicant by the Army.

4.  Counsel argues, in essence, that the abeyance and later suspension of the applicant's clinical privileges was improper because he was not provided an opportunity to improve his conduct or performance after a 28 April 2008 counseling concerning his professional and clinical shortcomings.

5.  Counsel contends the IO's investigation was not thorough and fair because the IO:

* interviewed the applicant in an open setting with other physicians within hearing distance
* failed to show the applicant written allegations or records concerning the patients in question
* neglected to discuss a lack of preoperative reports concerning Case 2 (which was later cited during the Peer Review process) or ask the applicant about that patient
* failed to report in Case 5 that the patient was semi-emergent (not an emergency), whether the patient later arrested, or a cardiology consultation
* omitted from his report exculpatory records or information corroborating that the applicant met standards of care
6.  Counsel asserts the Peer Review Panel was flawed in several respects and deprived the applicant of due process.

	a.  The applicant claims he received verbal notice of the board, which may or may not have been followed by a written notice.  He was not told he had no right to be present and should be available by telephone, and he was not aware he could make a verbal statement to the board.

	b.  The panel failed to give him sufficient records in advance or telephone him to allow him a chance to make a meaningful reply or answer questions.

	c.  The panel did not have the applicant's 8-lined statement or pre-anesthesia evaluations for Cases 2 and 3, but concluded he failed to document these reviews.

	d.  The panel's report erroneously states the applicant did not submit matters to the panel for consideration.

7.  Counsel contends that the Credentials Committee hearing based on the prior record was a foregone conclusion.  Counsel cites pages in the hearing transcript to indicate the hearing members were focused on supporting the prior conclusions by the IO and Peer Review Panel.

8.  Counsel refers to an email from Dr. D.B.C. to The Surgeon General (TSG) of the Army outlining several due-process concerns in the applicant's case.  These included:

	a.  Case 1 – the applicant's 8-lined statement provided to his supervisor after the incident was not provided to the panel;

	b.  Case 2 – the IO did not ask about this case and the Peer Review Panel rendered its decision without speaking to the applicant, the panel did not ask the applicant about conducting pre-anesthesia evaluations, and the panel improperly concluded a pre-anesthesia evaluation was not completed;

	c.  Case 3 – the panel did not tell the applicant that a pre-anesthesia evaluation was an issue and improperly concluded one was not done.

	d.  Case 4 – the applicant was not told the standard of care he failed to meet; and

	e.  Case 5 – the panel did not have the medical records and the panel failed to ask him about the nature of the surgery before concluding he delayed emergency surgery.

9.  Counsel contends the Army published false or inaccurate reasons for the revocation of the applicant's clinical privileges to NPDB.

	a.  "Incompetence" was not a finding in the privileging process.

	b.  The applicant met all standards of care for a supervisory physician with the residents (Case 1).

	c.  The applicant conducted pre-anesthetic evaluations in Cases 2 and 3.  Counsel provides an exhibit (undated) pertaining to Case 2 and alleges that WRAMC misplaced the report for Case 3.

	d.  The applicant did not fail to listen to or cooperate with the opinions of his colleagues concerning administration of anesthesia to the patient in Case 2.  His decision to forego a special ventilator and NO was intended to keep the patient alive and stabilize him for surgery.  His actions prevented a cardiovascular collapse, which may have happened had he followed the protocol suggested by others.

	e.  The applicant did not fail to listen to advice in administering anesthesia to the patient in Case 3.  His choice of anesthesia for the patient was appropriate according to published literature.

	f.  The applicant did not delay emergency surgery in Case 5.  The patient was semi-urgent, meaning surgery could be postponed for a cardiology consultation.

10.  Counsel continues to state that the applicant met the standard of care in all five cases.

	a.  Case 1 involved allegations concerning medical actions by residents and other health providers, not medical omissions or decisions by the applicant.

	b.  Two unpaid, independent physicians (Dr. P.C.B., in a letter, dated 24 June 2010, and Dr. M.F.R., in a letter, dated 3 September 2009) reviewed the available records for Case 2 and opined the applicant met the standard of care.

	c.  Two physicians (Dr. R.K., in email, dated 30 July 2009, and Dr. J.P.E., in a letter, dated 16 June 2010) opined the applicant met the standard of care in administering anesthesia to the patient in Case 3.
	d.  The patient in Case 4 did not believe the applicant disregarded his safety.

	e.  Two independent physicians (Dr. P.C.B and Dr. M.F.R.) reviewed the available records and opined the applicant met the standard of care in delaying surgery and seeking a cardiology consult in Case 5.

11.  Counsel asserts the applicant improved his performance with time and counseling.  After the removal of his clinical privileges, the applicant was assigned to the WRAMC Disability Evaluation Service where he performed non-patient care duties.  The applicant provides statements from:

	a.  his direct supervisor in his position as a medical evaluation board (MEB) physician (where the applicant served until his separation).  His supervisor observed the applicant's work, diligence, clinical skills, judgment, and responsiveness to the needs of the unit, etc., and he has never given him any problems.  This same individual admits he has no personal knowledge of the allegations that led to the revocation of the applicant's clinical privileges;

	b.  another medical doctor who states he was the applicant's supervisor for 1 year.  He states the applicant consistently documented his work and evaluations of records.  He also states the applicant exercised sound professional judgment and professionally handled responsibilities with regard for colleagues and supervisor concerns; and

	c.  a psychiatrist with the MEB of the Disability Evaluation Service at WRAMC.  He states he has no personal knowledge of the alleged grounds for revoking the applicant's clinical privileges.  He does, however, state he found the applicant to be competent, knowledgeable, compassionate, and energetic in his work.  The applicant exercised sound professional judgment, met emergent needs, and professionally handled responsibilities with regard for colleague and supervisor concerns.

12.  Counsel provides several opinions from other medical doctors who reviewed the available records in the case and validated his handling and involvement in the five cases in question.  They all indicate he did meet medical standards of care in each of the cases.

13.  The applicant submitted several documents with his request which the Board will consider:

	a.  a letter from the U.S. Army Medical Command (MEDCOM) to Federation of State Medical Boards, dated 10 June 2009, and Adverse Action Report to the National Practitioner Data Bank, dated 10 June 2009;
	b.  a pre-anesthetic evaluation for Case 3, dated 11 March 2008;

	c.  a progress note, dated 4 January 2007;

	d.  a Report of Peer Review for [applicant], dated 23 July 2008;

	e.  a letter from Dr. P.C.B. concerning Case 2 and Case 5, dated 24 June 2010;

	f.  a letter from Dr. M.F.R. concerning Case 2 and Case 5, dated 3 September 2009;

	g.  email from Dr. R.K. concerning Case 3, dated 30 July 2009;

	h.  a letter from Dr. J.P.E. concerning Case 3, dated 16 June 2010;

	i.  a letter from Dr. S.Y.K. concerning Case 4, dated 23 October 2008;

	j.  a memorandum from a staff anesthesiologist concerning Case 3, undated;

	k.  the applicant's rebuttal to the Hearing Board, dated 8 November 2008;

	l.  a letter from the applicant to Senator M., dated 9 April 2009;

	m.  the Army Surgeon General's response to applicant's appeal, dated 3 June 2009;

	n.  email from Dr. D.B.C., dated 15 June 2009;

	o.  a letter from COL M.G., dated 9 April 2010;

	p.  an OER for the period 20070918-20080917;

	q.  an OER for the period 20090325-20100323;

	r.  a letter from Dr. D.B.C., dated 21 April 2010;

	s.  a letter from Dr. M.R.

	t.  the Notice of Proposed Adverse Clinical Privileging Action, dated 4 August 2008;

	u.  the External Peer Review Report, dated 29 July 2008;
	v.  the Investigating Officer's CQM QA Report, dated 1 June 2008;

	w.  the WRAMC Anesthesia and Operative Service Quality Improvement Meeting Re:  [Applicant] memorandum, dated 5 May 2008;

	x.  a memorandum assigning the applicant to administrative duties, dated 7 May 2008;

	y.  supporting documents for Case 1, dated 1 May 2008;

	z.  supporting documents for Case 2, dated 25 March 2008;

	aa.  supporting documents for Case 3, dated 20 March 2008;

	bb.  supporting documents for Case 4, dated 18 April 2008

	cc.  supporting documents for Case 5, dated 4 January 2008

	dd.  the transcript of the Credentials Committee hearing for the applicant, dated 11 September 2008;

	ee.  the Termination of Multi-Year Incentive Pay and Multi-Year Special Pay Agreements for [Applicant], dated 10 December 2010;

	ff.  a memorandum from the Deputy Assistant Secretary of the Army (Review Boards) approving the applicant's elimination under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b, dated 15 March 2011; and

	gg.  separation orders for the applicant, dated 11 March 2011.

CONSIDERATION OF EVIDENCE:

1.  The applicant applied for a commission in the U.S. Army Reserve (USAR) on 25 January 2007.  He was ordered to active duty on 16 July 2007 in the rank of lieutenant colonel and assigned as a staff anesthesiologist at WRAMC.  

2.  On 7 May 2008, the WRAMC commander placed the applicant's clinical privileges/practice in abeyance from 7 May 2008 until 5 June 2008 based on substandard performance and unprofessional conduct.  The applicant received written notice of this action on 14 May 2008.  This notice informed the applicant that:

	a.  a CQM QA investigation would be conducted.  Based on this investigation, if substantial cause existed, a Peer Review under the auspices of the Credentials Committee would be conducted;

	b.  his abeyance, if not closed within 30 days, would automatically become a summary suspension of clinical privileges; and

	c.  he would be placed on administrative duties during the period of any abeyance/suspension.

3.  On 1 June 2008, a CQM QA investigating officer (IO) recommended continuance of the abeyance and summary suspension of the applicant's clinical privileges subject to a Peer Review.  The IO reviewed five cases involving patient care and interviewed medical staff, to include the applicant.  The IO report summarized the five cases.

	a.  Case 1 involved anesthesia residents on call who specifically requested the applicant's assistance (he was supervising the residents) for an emergency airway management case that eventually ended with the patient needing an emergency tracheotomy.  The applicant indicated he did not receive or hear multiple pages, but did not further involve himself with the patient's care.  As a result, the residents lost confidence in him as a staff member and they contacted the next day's anesthesia floor runner for further guidance.

	b.  Case 2 involved a critically-ill patient requiring an emergency procedure on a nonviable limb.  The patient was on a bi-level ventilator and required the use of a special ventilator and nitrous oxide (NO) to maintain/optimize his pulmonary status.

		(1)  Several staff members and an intensivist recommended the special ventilator and NO be set up in the operating room.  The applicant refused to use this special ventilator for the patient's transit or in the operating room (OR).  While in the OR, the patient demonstrated significant hypoxia and another staff anesthesiologist requested the special ventilator and NO be brought to the OR, but again the applicant refused to use it.

		(2)  The applicant informed the IO that he did not feel the special ventilator and NO were needed inter-operatively, but denied that these items were brought to the OR or that he refused them.  The applicant stated his belief that the changes he made were to optimize the patient for the OR.

		(3)  The IO found this case represented an inappropriate risk to patient safety, a variance from clinical management, and obstinacy to advice from other medical consultants involved in his care in the intensive care unit.

	c.  Cases 3 and 4 involved the applicant's anesthesia support in the magnetic resonance imaging (MRI) scanner.

		(1)  Case 3 involved sedation of a small child for an MRI scan for follow-up chemotherapy treatment, an 80-minute procedure.  The applicant teamed up with another anesthesiologist.  The records did not reflect anyone from the anesthesiology department came down to familiarize themselves with the MRI, the anesthesia equipment available, or the patient's chart prior to the procedure.  The child's parent also complained the applicant failed to review the chart or the procedure.  The anesthesia technique utilized was not optimal because the patient moved continuously and the procedure exceeded the scheduled time by an hour.  As the scan was not completed, it had to be rescheduled.  Also, the available records documented the applicant acted very unprofessionally towards the MRI staff during the study.

		(2)  The applicant explained he felt he was being punished by the anesthesia department by being tasked to perform pediatric sedation in the MRI scanner and was not comfortable with pediatric sedation because he received minimal opportunity to perform them in the OR.  This explained his conservative approach to the child's sedation.  He admitted to being abrupt with the staff, but claimed it was not to the extent alleged.

		(3)  The IO found the applicant's conduct was unprofessional and was a variance from clinical practice.  It also caused undue stress/anxiety upon a mother and her sick child.

	d.  Case 5 involved an 85-year old patient for semi-emergent placement of a screw for an odontoid fracture.  The patient had a history of hypertension, a dual chamber pacemaker, coronary artery disease, and myocardial infarctions.  The procedure was delayed for 8 hours to allow for an 8-hour "nothing by mouth" status.  The patient reported an episode of chest pain on 3 January 2008, which initiated a protocol to rule out myocardial infarction.  The applicant declined to proceed with the case because of the chest pain episode and requested a cardiology consult.  A consult was obtained and, after a risk/benefit analysis was done, it concluded that the patient should proceed to the OR without delay.  The applicant still refused to proceed with the procedure and the procedure had to be delayed until 4 January 2008.  The IO concluded this conduct reflected unprofessional conduct and a variance in clinical practice.

	e.  During the investigation, the applicant stated his belief that dishonest people were making up some of the allegations and "ageism" had contributed to his problems.  He stated he was never oriented to the department in any significant way.  He also believed he did not have the opportunity to do the "good cases" and this led to frustration and his problems at WRAMC.

4.  On 17 June 2008, the WRAMC Deputy Commander for Clinical Services requested an external Peer Review of the five cases.

5.  On 2 July 2008, an external Peer Review of the applicant's professional practice was conducted by the Department of Anesthesia and Operative Services, Brooke Army Medical Center, Fort Sam Houston, Texas.

	a.  The applicant received notice of the Peer Review and the deadline to provide input.  The Peer Review Report shows the applicant waived his opportunity to provide both written and verbal statements to the Peer Review members prior to being reviewed.  The applicant apparently submitted comments to the WRAMC Department of Anesthesiology.  However, since this was an outside review, it was the applicant's responsibility to provide the information to the committee.

	b.  The applicant was available by telephone to discuss any questions the Peer Review Panel may have had.

	c.  The Peer Review Panel reviewed the applicant's behavior in the five medical cases.  During the review, the group asked the WRAMC Department of Anesthesiology for several documents, but WRAMC was unable to produce them, specifically:

		(1)  Case 1 – the applicant's 8-lined statement (which was the applicant's response to his Interim Chief of Anesthesia and Operative Service explaining his actions during this case),

		(2)  Case 2 – a copy of the preoperative evaluation, and

		(3)  Case 3 – a copy of the preoperative evaluation.

	d.  The Peer Review Panel asked WRAMC about the outcome of Case 1 and the status of another doctor at WRAMC.  WRAMC replied that the patient in Case 1 suffered anoxic brain injury.  The doctor was an attending staff anesthesiologist.

6.  The Peer Review Panel issued its report and recommendation on 23 July 2008.  As to each case, the panel:

	a.  Case 1 – found unanimously that the standard of care was not met due to the applicant's failure to respond when requested and failure to become clinically involved in the case.  The panel noted the applicant, as the attending anesthesiologist, was responsible for this case even though he chose not to supervise his residents.  The board believed the applicant, as the most experienced anesthesiologist, should have been personally managing the case at his first opportunity;

	b.  Case 2 – found by a 2-to-1 vote, that the standard of care was not met concerning his decision not to proceed with the special ventilator and NO.  The majority felt the applicant's decision to discontinue a therapy which had a positive influence on the patient's status reflected poor clinical judgment, especially in light of the recommendations of the patient's other providers to continue the therapy.  His failure to reinstitute the therapy after a blood gas test confirmed a severe decrement in oxygenation displayed a stubborn inflexibility.  The minority member opined that a clinical judgment not widely agreed upon does not mean the standard of care was not met.  All three panel members agreed the applicant failed to meet the standard of care in failing to document the pre-anesthetic evaluation;

	c.  Case 3 – found the standard of care was not met because the applicant failed to document a pre-anesthetic evaluation.  The panel also noted the applicant was late and unprepared to perform the procedure, demonstrated a severe lack of professionalism in interacting with the patient and her mother, and used a poor choice of drugs to sedate the patient.  These factors raised concerns about the applicant's ability to consistently render sound clinical judgment;

	d.  Case 4 – found the applicant failed to exhibit professional conduct in his interactions with the MRI staff, the mother, and the patient; and

	e.  Case 5 – unanimously found the standard of care was not met because the applicant unnecessarily delayed the patient's emergency surgery.  He did this without personally examining or evaluating the patient or documenting his reason for the delay.  The extended delay may have increased the risk of neurologic injury and was not in the patient's best interest.

7.  The Peer Review Panel recommended that the Credentials Committee revoke the applicant's clinical privileges.  The panel believed the five cases showed a pattern of poor judgment and unwillingness to accept advice, inflexibility, lack of preparation, inadequate documentation, and lack of professionalism.  The panel felt that if the applicant were reinstated, he would be prone to repeat these behaviors.

8.  On 2 August 2008, the Credentials Committee at WRAMC reviewed the investigation of Peer Review Report and recommended suspension of the applicant's privileges with the intent to revoke.  On 4 August 2008, the Commander notified the applicant of the intent to revoke his privileges.  On 6 August 2008, the applicant acknowledged receipt of the notice and requested a formal hearing and representation by an attorney.

9.  On 26 August 2008, the Credentials Committee informed the applicant his case was scheduled for a hearing on 11 September 2008 and informed him of his procedural rights.  The committee provided the applicant documents to review prior to the hearing.

10.  On 11 September 2008, the Credentials Committee held a hearing to determine if the applicant's practices fell outside of the standard of care because of:  unacceptable patterns of behavior crossing both clinical and professional bounds; poor judgment and an unwillingness to accept advice; inflexibility and lack of preparation; inadequate documentation; and a lack of professionalism.  The applicant appeared before the hearing without counsel and answered questions posed by members of the board.  Of particular note, the applicant:

	a.  Case 1 – provided extensive testimony concerning his actions and interactions with residents involved in Case 1.  This included an opportunity to discuss the 8-line statement he provided to his supervisor following the event.  He also had the opportunity to discuss his involvement with this case and supervision of the residents involved with the patient's care;

	b.  Case 2 – explained to the panel he did a preoperative assessment.  He also had the opportunity to address his decision and thought process in not using the special ventilator and NO.  During this portion of the hearing, the applicant indicated he could have better charted his work;

	c.  Case 3 – addressed whether he did a preoperative evaluation.  He noted he conducted it that morning, but could not print it or find it, so he annotated it on the chart the mother had.  He admitted he used different drugs than those the mother suggested.  The mother made this request because the drugs used by the applicant caused nausea;

	d.  Case 4 – addressed his interactions with the noncommissioned officers at the MRI facility; and

	e.  Case 5 – disputed the assertion that he delayed emergency surgery on this patient.  He acknowledged an email he wrote at the time of the incident wherein he stated the patient was pending emergency surgery.  However, he also noted that the surgeon involved never wrote on the patient's chart that a surgical procedure was emergent, even though the surgeon verbally indicated as much.

11.  The board found the applicant's practices were outside of the standard of care.

12.  The applicant's OER for the period 18 September 2007 through                      17 September 2008 shows this was a referred report in Part IId and the applicant did not wish to make comments.  In Part V (Performance and Potential Evaluation), the block for "Unsatisfactory Performance, Do Not Promote" is checked.  Specific comments are included in Part Vb.

	a.  The rater's narrative comments include the following:

[Applicant] has performed substandard in his duties as a staff anesthesiologist at Walter Reed, based on departmental care review and patient complaints.  Additionally, anesthesiology leadership has received numerous complaints from professional and ancillary staff regarding [applicant's] unwillingness to accept advice and his unprofessional demeanor.  Resident anesthesiologists have also complained of a lack of confidence in [applicant's] capability to serve as a supervising staff anesthesiologist.…[Applicant] has consistently failed to provide requested written documentation pertaining to patient care despite numerous requests.  Furthermore, he has failed to acquire the requisite computer skills needed to function as a physician within the hospital.  Despite counseling, this officer demonstrates a lack of insight into his own professional limitations and an unwillingness to change behaviors.  However, [applicant] has demonstrated courage, laudable military bearing, and has been honorable despite professional adversity…

	b.  The senior rater marked the block "Do Not Promote," provided comments, and indicated "Below Center of Mass, Do Not Promote" in Part VIIb.

13.  On 8 October 2008, the applicant received the Credentials Committee hearing transcript and notice of his right to request reconsideration.  On 23 October 2008, he received the Hearing Board's finding and was re-advised of his right to request consideration.

14.  On 18 November 2008, the applicant appealed the action to revoke his privileges and submitted a lengthy rebuttal to the Credentials Committee hearing defending his actions and professional performance in each of the five medical cases that were the basis of the revocation of his clinical privileges.  He requested reconsideration of the hearing board's recommendations.

15.  On 19 December 2008, the WRAMC Office of the Staff Judge Advocate reviewed the proceedings and found them to be legally sufficient.  The Staff Judge Advocate found the hearing complied with all legal requirements and the findings were supported by sufficient evidence.  On 7 January 2009, the WRAMC Commander denied the applicant's request for reconsideration and revoked the applicant's clinical privileges.  The applicant acknowledged receipt of this action on 8 January 2009.

16.  The applicant's request for reconsideration was forwarded as an appeal to the Surgeon General (TSG).  On 15 January 2009, the applicant submitted additional matters for consideration by TSG.

17.  On 1 April 2009, the MEDCOM Office of the Staff Judge Advocate found the applicant received due process consistent with the requirements of Department of Defense Instruction (DODI) 6025.13-R and Army Regulation 40-68.

18.  On 30 April 2009, the MEDCOM Appeals Board reviewed the applicant's appeal, including the matters submitted on 15 January 2009, and recommended TSG uphold the revocation of the applicant's privileges.

19.  On 3 June 2009 after reviewing the entire record and the applicant's appeal, TSG concluded the revocation of the applicant's clinical privileges was proper.  TSG informed the applicant in writing on the same day of the decision.  The memorandum further informed him that the action would be reported to the National Practitioner Data Bank (NPDB), Federation of State Medical Boards, and all the known states where he is licensed to practice.  Appropriate notices, dated 10 June 2009, were sent to NPDP and Federation of State Medical Boards announcing that the applicant's privileges had been revoked on 7 January 2009 based on his failure to document pre-anesthetic evaluations, failure to exercise sound professional judgment in selecting anesthetic agents, unnecessarily delaying emergency surgery, unprofessional handling of supervisory responsibilities for resident physicians, and disregard for patient safety.  The stated basis of the adverse action was incompetence.

20.  The applicant's OER for the period 25 March 2009 through 23 March 2010 documents the applicant's performance as an MEB physician.  In this position, he provided disability evaluations and advocacy for wounded Soldiers.  He did not provide patient care in this capacity.

21.  On 4 October 2010, the WRAMC Commander initiated elimination proceedings against the applicant under the provisions of Army Regulation 
600-8-24, paragraph 4-14(b)(9), for conduct that resulted in the loss of a professional status necessary for the performance of his military duties.  Specifically, the action was based on the applicant's substandard performance as a staff anesthesiologist in which he demonstrated an unacceptable pattern of behavior which crossed both clinical and professional bounds.  This included inadequate documentation of procedures, poor judgment, inflexibility, lack of preparation, and unwillingness to accept advice.  This conduct led to revocation of his clinical privileges.

22.  On 21 March 2011, the Deputy Assistant Secretary of the Army (Review Boards), acting under authority delegated by the Secretary of the Army to make a final decision in officer elimination cases, approved the applicant's separation with an honorable discharge based on misconduct and moral or professional dereliction under the provisions of Army Regulation 600-8-24, paragraph 4-2b.

23.  On 12 April 2011, the applicant was accordingly discharged for "unacceptable conduct."

24.  An advisory opinion was obtained from Headquarters, MEDCOM.  MEDCOM states the applicant was provided notice of the Peer Review Panel and the deadline to provide any input.  The panel did not have written matters from the applicant.  The applicant claims he submitted a written reply to the Department of Anesthesia at WRAMC; however, it was his responsibility to provide input to the panel.  MEDCOM opined that any deficiencies in the Peer Review process noted by the applicant were cured later at the formal hearing which the applicant attended.

25.  The MEDCOM advisory opinion states the applicant was informed of his procedural rights before the Credentials Committee hearing and the reasons for the credentialing action.  The applicant was provided documents to review prior to the hearing.  The applicant elected to attend the hearing without the assistance of counsel.

26.  In response to the MEDCOM advisory, counsel asserts the applicant was told WRAMC would give his response to the Peer Review Panel.  Counsel reasserts the applicant was never informed of his right to make a verbal statement to the panel and was not provided records to review prior to the panel.

27.  Army Regulation 40-68 (Clinical Quality Management) provides regulatory guidance on the Peer Review process.

	a.  Paragraph 6-5a states when a privileged or nonprivileged staff member is removed from all or a portion of his/her patient care duties, the Peer Review function must be initiated to determine the extent of the problem and to make recommendations for further action on the professional issues in the case (for example, retraining, supervised practice, a licensing action).  The focus of the Peer Review is on how the action under review impacts the individual's ability to practice clinically.

	b.  Paragraphs 10e and 10f address the Peer Review process.  Paragraph 10e states the Peer Review Panel convenes to evaluate the available information and to determine whether the standard of care was met.  Paragraph 10f sets forth a provider's due-process rights which begin with written notice to the provider within 14 days of decision to conduct the panel, which will contain:

* the date, time, and location of the Peer Review
* a statement of alleged facts, events, conduct, or omissions subject to review
* the provider's rights regarding participation in the Peer Review proceedings
* a point of contact for providing any written correspondence or provider-supplied information
* reference to the MTF Peer Review policy for additional guidance

28.  The provider does not have a right to be present during the proceedings; however, he shall have the opportunity to provide a written statement concerning the events under review, to appear before the panel and make a verbal statement, to clarify issues in the case as needed, to ask questions, and to respond to questions from the panel.  The regulation does not grant the provider the right to review documents or medical records.

29.  Army Regulation 40-68, paragraph 10-2,  states it is the commander's prerogative to hold in abeyance or summarily suspend clinical privileges when reasonable cause exists to doubt a medical provider's competence or for any other cause affecting the safety of patients or others.  Reasonable cause includes a single act of gross negligence, a pattern of substandard care, an act of incompetence or negligence causing death or serious bodily injury, or significant unprofessional conduct.  The specific intent of all those involved in any adverse action against a provider's privileges should be to protect the safety and well-being of all patients, to safeguard the quality and efficiency of care delivered, protect the rights of the individual in question (afford due process), ensure timely resolution of the issues related to provider/professional performance, separate professional actions and considerations from administrative or legal considerations, and allow timely reporting of individuals to professional regulatory agencies, if required.

30.  Army Regulation 40-68, paragraph 10-6, directs a commander or department chief to place a provider's clinical privileges in abeyance or under suspension when the provider's conduct, condition, or performance requires action to protect the health or safety of patients.  During the period of abeyance, the provider is assigned to nonclinical duties.  This provision requires written notification to the provider within 14 days of the abeyance.  The notification will state the basis for the abeyance, the direction of the action, that a QA investigation will be conducted, and results of that process will be reviewed by a Credentials Committee.

31.  Army Regulation 40-68, paragraph 10-6(d), sets forth the requirements for a CQM QA investigation in cases involving abeyances and summary suspension of clinical privileges.  This provision requires the IO make every effort to ensure a thorough, fair, honest, and unbiased review of the matters under investigation.  The investigation may include voluntary consultation with the individual in question, review of any relevant documents, or discussions with individuals having knowledge of the situation.  The IO's report will present the factual findings with appropriate justification or details and may include the IO's conclusions and recommendations.

32.  Army Regulation 40-68, paragraph 10-7, sets forth the provider's rights at a Credentials Committee provider hearing.  A provider has the right to:

* receive written notice specifying the deficiencies substantiated by the Peer Review process, the proposed adverse privileging action to be taken by the commander, and the right to request and be present at a formal hearing
* respond in writing to the to the Credentials Committee chairperson
* access to all information that will be presented for consideration at the hearing

33.  Army Regulation 40-68 sets forth the Credentials Committee provider hearing board procedures.

	a.  The provider has the right to:

* notice of the adverse privileging action under consideration and any specific dates, facts, and all pertinent documents applicable to the case
* submit evidence, question witnesses called, and call witnesses on his behalf
* consult and have legal counsel present at the hearing (the provider is encouraged to consult legal counsel)

	b.  Upon conclusion of the hearing, the Credentials Committee may make a recommendation, to include:

* reinstatement of privileges
* identification of specific provider deficiencies that require improvement and establishment of requirements to address the deficiencies
* suspension, reduction, or restriction of clinical privileges for a specific length of time
* revocation of clinical privileges

34.  Army Regulation 40-68, paragraph 14-3, states TSG is the sole reporting authority to NPDB, State regulatory authorities, Federation of State Medical Boards, and/or other appropriate central clearinghouses.  TSG is responsible for reporting malpractice history information and adverse privileging actions, unprofessional conduct or behavior, and any legal charges for which the provider/professional is found guilty, pleads guilty, pleads nolo contendere, or requests discharge from the military in lieu of trial by court-martial.  DOD 6025.13 (Medical Quality Assurance and Clinical Quality Management in the Military Health System), paragraph C4.2.4.2.1, similarly provides adverse privileging actions shall be reported to NPDB.  Per Title 45, Code of Federal Regulations, section 60.9, reports of adverse action(s) on clinical privileges must include a description of the act(s) or omission(s) or other reasons for privilege loss.

35.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for preparing, processing, and using the OER.  It states an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials, and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.  It states the burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

36.  Army Regulation 623-3, chapter 4, sets forth the responsibilities of commanders and raters in evaluating USAR officers serving on extended active duty.  Paragraph 4-2 states commanders will provide timely counseling to subordinates on professionalism and job performance and they encourage self-improvement when needed.  Paragraph 4-3 requires the rater to advise the Soldier at the beginning of the evaluation period of the objectives he or she is expected to accomplish in his or her duty position.

37.  Army Regulation 600-8-24 sets forth the basic authority for the separation of officer personnel.  Chapter 4 establishes policy and prescribes procedures for separating members for misconduct, moral or professional dereliction, or in the interest of national security.  Paragraph 4-2(b)(9) provides conduct or actions that result in the loss of a professional status as a basis for separation.  For Army physicians, this includes the partial or complete suspension, limitation, withdrawal, or denial of clinical practice privileges.

38.  Army Regulation 600-8-24, paragraph 4-20, sets forth the rules for processing an elimination of a probationary officer (a Regular Army or USAR officer with less than 5 years of commissioned service).  A probationary officer is not entitled to a hearing before a Board of Inquiry unless the initiating authority for the separation recommends the officer receive an under other than honorable conditions characterization of service.  If the initiating authority recommends the officer's separation for a reason listed under paragraph 4-2(b) with an honorable or general discharge, the officer's options are limited to:

* tendering a resignation in lieu of elimination
* requesting discharge in lieu of elimination
* applying for retirement in lieu of elimination, if eligible
* submitting a statement and submitting matters in rebuttal to the elimination action

39.  The final authority to approve a probationary officer's elimination with either an honorable or a general characterization of service rests with the Deputy Assistant Secretary of the Army (Review Boards) or, in some cases, the Assistant Secretary of the Army (Manpower and Reserve Affairs).

40.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of officers on active duty.  This regulation states promotion reconsideration by a special selection board may only be based on erroneous non-consideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration.

41.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

42.  Army Regulation 15-185, paragraph 2-2, states the ABCMR is not an investigative body.  The Board decides cases based upon the evidence of record.

43.  Title 10, U.S. Code, section 1552(c)(1), provides that the Secretary of the Army may pay a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits based upon a correction ordered by the ABCMR.  This provision does not allow for payment of damages or attorney's fees.

DISCUSSION AND CONCLUSIONS:

1.  Through counsel, the applicant requests removal of the documents that led to the revocation of the applicant's clinical privileges from his record and correction of the erroneous facts that have been posted to State and National medical boards and nationally.  Additionally, he requests removal of an OER resulting in restoration of retroactive special pay, retroactive reinstatement on active duty, promotion to COL, and an investigation into the damage to his reputation and pecuniary losses caused by the denial of privileges.

2.  The Army afforded the applicant due process in revoking his clinical privileges.

	a.  The applicant's commander was not obligated to provide the applicant counseling and an opportunity to improve before placing the applicant's clinical privileges in abeyance.  Army Regulation 623-3 ensures Soldiers are fairly evaluated and are aware of deficiencies and expectations early in the rating process to allow time for improvement.  However, Army Regulation 40-68 allows a commander to place a provider's privileges in abeyance when questions arise that may have an impact on the quality and safety of patient care.  This regulation does not require commanders to allow the health care provider a chance to improve before taking action as a first step.  Patient safety is first priority; the credentialing process does not require a commander to allow a physician to continue to practice and improve when issues have arisen about the physician's competency to meet the standard of care.

	b.  The IO properly conducted the CQM QA investigation.  The IO was not required to – but did – speak to the applicant.  The report addressed each case.  Even though the IO may not have specifically addressed some of the concerns raised by the applicant, the overall product established a sufficient basis to question the applicant's competence and warrant a Peer Review.

	c.  The Peer Review process did not deprive the applicant of due process.  The burden of proof before the ABCMR rests with the applicant.

		(1)  The record contains no evidence to show he failed to receive proper notice.  The MEDCOM advisory opinion and legal reviews conducted during the credentialing process show he was provided notice.

		(2)  There is no evidence of record to show the applicant received assurances that the WRAMC Department of Anesthesiology would forward the applicant's written presentation to the panel.  It was the applicant's responsibility to submit anything he wanted considered to the panel, not WRAMC’s responsibility.

		(3)  To the degree the applicant was deprived of an opportunity to present information, the error was harmless.  The applicant was later given access to the evidence concerning his credentialing action and the right to appear at a formal hearing.  A review of the transcript of that hearing reveals he had an opportunity to address fully all five cases and the asserted deficiencies in patient care and professionalism.  He later availed himself of the opportunity to submit a lengthy and detailed appeal to TSG.  Viewed as a whole, the applicant was afforded due process during the credentialing process.

	d.  The applicant was afforded all due process prior to and during the Credentials Committee hearing.  He was provided the opportunity to address each case and explain his actions and medical decisions.

		(1)  The Credentials Committee recommended revocation of the applicant's clinical privileges after providing him a full and thorough opportunity to review the evidence and rebut the allegations against him.

		(2)  The hearing transcript and evidence provided by the applicant contain sufficient information to show the Credentials Committee did not make its recommendation arbitrarily or capriciously.

		(3)  The ABCMR agrees with the MEDCOM advisory opinion's assessment that the Credentials Committee hearing – which provided the applicant an opportunity to examine all of the evidence and testify concerning each case under review – cured any error that may have occurred in the Peer Review Panel or in the IO's investigation.

	e.  The applicant was afforded all due process in appealing the commander's decision to revoke his clinical privileges.  In addition to submitting matters as part of his reconsideration request, he submitted additional matters for consideration by TSG prior to a final decision.

3.  TSG properly reported the credentialing action to NPDB and State authorities.  By law and regulation, TSG must notify these authorities when a physician's clinical privileges are revoked.  There is no discretion involved.  The report reflected the findings of the Credentials Committee review, as approved by TSG.

4.  The applicant contends the contested OER was processed without him seeing the report and that he did not receive counseling from anyone in his chain of command.  He also contends he was fully available for signature and the senior rater did not know the corresponding statement was entered on the subject OER.  He further contends the flaws in his OER caused material error that resulted in his non-selection for promotion.  The report reflects his electronic signature.  Other than the uncorroborated statement of the applicant, there is no evidence showing the applicant was not properly counseled by his rater and/or senior rater during the rating period in question.

5.  As for the OER for the period ending 23 February 2010, there is no basis to amend it to show a recommendation that the applicant retain and maintain privileges since the evidence shows his privileges were properly revoked.

6.  There is no evidence the applicant was eligible for promotion or that he would have been promoted.  Given his short period of service and the pending adverse clinical action, it is unlikely he would have been selected even if he had been eligible.

7.  The applicant's elimination under Army Regulation 600-8-24 was proper and afforded him all due process as a probationary officer.  The action was necessitated by the loss of his clinical privileges.  Since the evidence shows the privileging action was proper, there is no basis on which to change the reason for his separation or reinstate him on active duty.

8.  The applicant's request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

9.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _____________X____________
              CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                            AR20100020923



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                            AR20100020923



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1