JOSEPH WALTER FRANZ, Plaintiff and Appellant, v. BOARD OF MEDICAL QUALITY ASSURANCE, Defendant and Respondent.
L.A. No. 31314
Supreme Court of California
Apr. 8, 1982.
31 Cal. 3d 124
Fidler, Bell & Dyer, Morgan & Miceli, Victor L. Miceli, Selvin & Weiner and Paul Selvin for Plaintiff and Appellant.
George Deukmejian, Attorney General, and M. Gayler Askren, Deputy Attorney General, for Defendant and Respondent.
OPINION
NEWMAN, J.—Joseph Franz appeals from a judgment denying a writ of mandate against the Board of Medical Quality Assurance (Board). The Board, acting through its Division of Medical Quality, suspended his physician-and-surgeon license for one year and placed him on ten years’ probation1 after finding him guilty of gross negligence, dishon-
In January 1974 Wayne Wollweber consulted Dr. Franz, a general practitioner, because of abdominal pain. He had a 25-year history of recurrent peptic ulcer with episodes of perforation. In April 1974 Franz referred Wollweber to a surgeon, Dr. Tiffany, who performed surgery at Tustin Community Hospital (Tustin) with Franz’ assistance. After the operation Wollweber developed pneumonia. In July 1974 Franz himself performed a hemorrhoidectomy on Wollweber at Tustin; the patient again had postsurgical lung problems. There was testimony that the two operations with their complications made him a high risk for further surgery.
He complained of increasing abdominal pain. In October 1974, after examining X-ray reports and a gastric-juice analysis done at Tustin, Franz concluded that exploratory surgery was necessary. He suggested Anaheim Doctors’ Hospital (Anaheim)—a private, 24-bed institution where he had staff privileges. Unlike Tustin and Good Samaritan, another nearby hospital, Anaheim had no intensive care unit (ICU) or respirator.
Franz scheduled the surgery for October 7 and expected complications. He asked one of the owners of Anaheim, Dr. Olivet, whom Franz believed to be chief of surgery there, to recommend a surgeon. Olivet
On October 7, just before the operation, Franz and Ali conferred for the first time. Franz showed Ali the results of the preoperative X-rays and tests Franz had ordered. Ali then performed a subtotal gastrectomy, Franz assisting. A portion of the stomach was removed, and a new opening was created from the top of the stomach into the middle of the small intestine. The duodenum was bypassed and sewn shut. Ali used absorbable sutures. Franz doubted that was correct procedure but said nothing. No acid-secreting glands were removed.
Ali and Franz jointly assumed responsibility for Wollweber‘s care in the week after the operation. Though each of them entered progress notes and orders on Wollweber‘s medical chart, they did not communicate with each other. Franz questioned the wisdom of several of Ali‘s orders but neither countermanded them nor discussed them with Ali.
On October 8 the patient was restless and in pain; and there was fresh blood on his dressing and around the surgical drain, an indication of internal bleeding. On October 9 and 10 he had a “spiking” fever that varied from 99 to 103 degrees. Though the spikes were not ascending, those symptoms could indicate sepsis—a serious, continuing, blood infection. His pulse and blood pressure also fluctuated markedly, and four units of whole blood were administered. Yet Franz’ chart-notes at one point indicated that the patient was stable.
On October 11 Franz saw symptoms of pneumonia. He also suspected pulmonary embolism and ordered laboratory tests. Apparently the orders were not countersigned by the floor nurse and executed until the evening of October 12.
Meanwhile, on either October 11 or 12, Franz asked Dr. Fernandez, an internist on the staff, for a consultation. Fernandez did not examine Wollweber until the evening of October 12. He noticed tachypnea—rapid, difficult breathing—and an elevated pulse rate. He too suspected pulmonary embolism and considered the more-remote possibility of a ruptured stomach. He ordered tests that were completed shortly after 11 p.m. on the 12th. The results, including abnormal phosphate and bilirubin levels, were further indicators of embolism or perforation. Franz
On the morning of the 13th Fernandez became alarmed by Wollweber‘s deteriorating condition. The timing of events that followed is unclear. Olivet‘s testimony placed many of them in the predawn hours; other witnesses, including Franz, testified to a later time-frame. Fernandez telephoned Olivet and asked him to attend the patient. When Olivet arrived he noticed the patient was stuperous and had a distended abdomen. At some point Franz arrived. X-rays were taken. The patient began to complain of left-shoulder pain, a symptom characteristic of rupture of the sutured duodenal stem (a “duodenal stump blowout“). X-rays confirmed that catastrophic diagnosis.
Olivet telephoned Ali, but (despite pleas of urgency) whoever answered Ali‘s phone said he was not available. Franz finally reached Ali, who said there was nothing to worry about and he would see the patient later. Franz and Olivet took this to mean Ali had abandoned the patient. Olivet and other personnel then tried to obtain another surgeon for emergency repair-surgery. All those contacted declined to intervene.
Believing Wollweber was in extremis and could not be moved, Olivet decided to do the surgery himself—though he was not a surgeon, had never repaired a duodenal stump blowout, knew the operation would require great skill, and felt unqualified. The mortality rate for surgery of this kind is 80 percent. Franz did not object when Olivet decided to operate, and Franz assisted.
The postoperative report notes that the stump of the duodenum, sutured by Ali on October 7, had ripped open, spilling stomach contents into the peritoneum. Olivet resutured the stump but apparently made no thorough effort to drain and sterilize the peritoneal cavity.
Olivet and Franz participated in Wollweber‘s post-operative care along with Fernandez. The patient‘s condition continued to deteriorate. Fernandez concluded on October 14 that Wollweber was critically ill and in danger of respiratory failure. He decided that more thorough care was needed and transferred Wollweber to Good Samaritan on his own responsibility.
CHARGES AND FINDINGS
At the outset, the Board accused Franz of gross negligence and incompetence on two theories. First, it charged, he was liable for retaining Ali, an unskilled surgeon, then failing to intervene when Ali committed extreme violations of surgical and treatment standards. The charges based on failure to intervene were stricken later.
Second, the accusation asserted, Franz himself rendered grossly deficient treatment by making chart entries that were misleading and too optimistic, allowing food by mouth, ignoring symptoms of the blowout, ordering a barium test dangerous in the circumstances, and failing to obtain a competent surgeon when Ali abandoned the patient.
The Board also charged Franz with dishonesty and falsifying medical documents. It alleged that Franz had engaged in the practice of “ghost surgery” by concealing the identity of the surgeon in the consent form and in conversations with the patient; also, that Franz misrepresented the seriousness and risks of the operation and that entries on the postoperative chart were dishonest.
The matter was heard in October 1977 and February 1978 before a panel of Medical Quality Review Committee No. 13. Two of the three members were physicians, and an administrative law judge presided. The seven-member Division of Medical Quality (Division)3 adopted the
The panel and Division found that Franz was dishonest and had falsified a medical document by intentionally (1) failing to advise that Ali was the surgeon and that Wollweber‘s consent to his being surgeon was necessary, and (2) misrepresenting the identity of the surgeon on the consent form. Findings were made that, though Ali was grossly negligent in many ways, neither Franz’ method of selecting a surgeon nor his choice of Ali was gross negligence. Franz’ acceptance of a blind referral through Olivet, however, was deemed “not within the standard of good medical practice.” It was also determined that Franz’ chart notes did not misrepresent the patient‘s condition intentionally.
Franz sought mandamus review. Exercising independent judgment on the evidence the trial court approved the findings and the proposed discipline without substantial change.
SUBSTANTIAL EVIDENCE
Franz attacks several of the court‘s findings that were patterned on those of the Division. He contends (1) that there is no substantial evidence as to some acts asserted, and (2) that others, even if they did occur, do not prove gross negligence.
The role of appellate courts in administrative mandamus proceedings is well-settled. Even where the trial court must exercise independent judgment on the evidence, its findings are sustained on appeal if supported by substantial evidence on the whole record. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10 [93 Cal.Rptr. 234, 481 P.2d 242]; Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 308 [196 P.2d 20].)
We conclude that, with two exceptions, the record here supports the findings; and we will not burden this opinion with a detailed analysis. The two exceptions, however, are significant.
Yet careful questioning by Franz’ counsel forced Passaro to retreat from his criticism. He conceded that (1) the specific tests ordered by Fernandez on the 12th, including an abdominal X-ray, were proper, (2) the results available on the 12th were consistent with pulmonary problems, (3) the records through the 12th show no observed symptoms strongly suggesting perforation, (4) a rupture actually may not have occurred until the 13th, and (5) it was reasonable to conclude before then that none had taken place. No witness testified otherwise.
The finding, both administrative and judicial, is only that Franz failed to “consider and make any progress note” of the abnormal October 12 results. That language is puzzling in its technicality. There is no indication he did not “consider” the tests when he arrived at the hospital to assist in the emergency; all evidence is to the contrary. The finding implies a belief that Franz should have been at the hospital, or available for consultation, the moment the test results became known. Apparently all factfinders accepted Fernandez’ testimony that Franz could not be reached.
Even thus interpreted the finding is unsupported. There was evidence of pneumonia from the 10th or 11th on. The recurrent fever and bleeding were causes for concern, especially in a patient with a tendency to pulmonary weakness and gastrointestinal perforation. But Wollweber had made normal recoveries from his prior surgeries. And Fernandez testified that, though worried about Wollweber‘s condition on the evening of the 12th, he saw no immediate threat to life at the time he tried to call Franz. There was no expert testimony that the primary-care physician is expected to be on 24-hour call for a hospital patient with Wollweber‘s symptoms. There was no evidence that Franz did not respond promptly when an emergency became apparent. He participated fully in consultation and care from the time he arrived at the hospital. We see no basis from which the trial court could conclude that Franz’
We reach a parallel result on the finding that Franz was guilty of gross negligence in failing to retain a competent emergency surgeon on the 13th. Franz knew Olivet had made at least three urgent calls to surgeons after the blowout was apparent and Ali had refused to respond. Each surgeon called declined to attend. There was evidence that other hospital personnel also tried to obtain a qualified surgeon. Olivet reported that it looked as if nobody wanted to get involved in a malpractice suit, and they would have to act on their own. He and Franz both testified without contradiction that, when Olivet decided to operate, all present believed the patient would die within an hour or two if the blowout were not repaired; and there was no time for transfer to another hospital. There was no testimony that those conclusions were wrong or unreasonable.
Moreover, Franz had cause not to be acquainted with surgeons who might assist. Testifying for the Board, Shirokov explained, “In Dr. Franz’ case, I know many of the details, and I do not believe his action was a departure from acceptable limits. [¶] He was new to the community. He had just started working, as I understand, at Doctor‘s Hospital of Anaheim. His contact was Dr. Olivet, who was chief of staff and Dr. Franz made no attempt to call any other surgeon. He didn‘t know any other surgeon. . . .”
Passaro provided the only contrary opinion. In response to a question whether there was “any other negligence” in the record, he said, “Yes. I think this patient became critically ill and they couldn‘t find anybody to take care of him. [¶] And, finally it wound up that he was operated on by a nonsurgeon as a desperation move.” That, though, seems no more than an opinion that prior negligence, Franz’ included, had caused the patient‘s condition to deteriorate to a conceded crisis. As we have seen, other Passaro testimony tends to absolve Franz from negligence of that kind.
Finally, the fact of emergency also should absolve Franz from the finding that he was grossly negligent in allowing Olivet, a nonsurgeon, to operate. There was expert testimony that Franz was reasonable in failing to inquire about Olivet‘s surgical qualifications, since Olivet was titular chief of surgery at Anaheim. More crucially, there was no reason
GROSS NEGLIGENCE—AGENCY EXPERTISE
The agency and the court found that Franz’ choice of Anaheim was gross negligence because Wollweber was a high-risk patient, Anaheim had no adequate ICU, and Franz made the choice—without regard to his patient‘s needs—in order to obtain surgical privileges he did not have elsewhere. They also ruled that he committed gross negligence by scheduling surgery before selecting the surgeon. He contends that those findings lack substantial evidence because the Board offered no expert testimony that acts of that kind demonstrate “the want of even scant care or an extreme departure from the ordinary standard of conduct,” the definition of gross negligence. (Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 196 [167 Cal.Rptr. 881]; Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 941 [123 Cal.Rptr. 563]; both quoting Van Meter v. Bent Construction Co. (1956) 46 Cal.2d 588, 594 [297 P.2d 644].)4
The Board answers that any gap in the record was filled by the panel‘s expertise in medical matters. Because two of the panel‘s three members were doctors, the Board urges, it could apply special knowledge in assessing gross negligence by a doctor and needed no expert testimony on the pertinent medical standards. Moreover, as we have seen, four of the seven members of the Division that adopted the panel‘s decision also were doctors. On mandamus review, the Board argues, courts must defer to this off-the-record agency expertise.
The argument lacks merit. California law provides for judicial review of agency decisions to revoke or suspend medical licenses. (See
To rule that the agency record must be complete enough to allow judicial review of technical questions imposes no unreasonable burden on the administrative process. The Board did introduce “medical standards” testimony as to most of the gross negligence findings in this case, and inclusion of that kind of testimony appears routine in discipline matters. (See, e.g., Gore, supra, 110 Cal.App.3d 184, 195; Cooper, supra, 49 Cal.App.3d 931, 941.)
We do not, of course, hold that agency adjudicators may not apply their expert opinions to decide issues of legislative fact. (See 3 Davis, Administrative Law Treatise (2d ed. 1980) § 15.2, p. 138.6) A unique efficiency of many agencies is the professional competence they bring to matters delegated to them by the Legislature. We think an agency factfinder may, for example, reject uncontradicted opinion testimony that his own expertise renders unpersuasive. (See
Yet due process requires, when in an adjudication an agency intends to rely on members’ expertise to resolve legislative-fact issues, that it notify the parties and provide an opportunity for rebuttal. (See, e.g., Jaffe v. State Department of Health (1949) 135 Conn. 339 [64 A.2d 330, 338, 6 A.L.R.2d 664]; 3 Davis, Administrative Law Treatise (2d ed. 1980) supra, § 15:1 et seq., p. 133 et seq.; cf. In re Ruffalo (1968) 390 U.S. 544, 550-551, rehg. den., 391 U.S. 961.)
The California Administrative Procedure Act requires notice and opportunity to rebut whenever an agency intends to take “official notice . . . of any generally accepted technical or scientific matter within the agency‘s special field, [or] of any fact which may be judicially noticed by the courts of this State.” (
The agency‘s notification must be complete and specific enough to give an effective opportunity for rebuttal. It must also help build a record adequate for judicial review. If it meets those requirements we can see no prejudice to the parties.8
We cannot accept the premise of Brennan v. State Bd. of Medical Examiners (1950) 101 Cal.App.2d 193 [225 P.2d 11] that it is improper “for the board to decide . . . questions [of violation of professional standards] upon the basis of the opinions held by the several members
Some questions concerning medical negligence require no expertise. Technical knowledge is not requisite to conclude that complications from a simple injection (Bardessono v. Michels (1970) 3 Cal.3d 780, 790), a surgical clamp left in the patient‘s body (Leonard v. Watsonville Community Hosp. (1956) 47 Cal.2d 509, 515), or a shoulder injury from an appendectomy (Ybarra v. Spangard (1944) 25 Cal.2d 486, 488-490) indicate negligence. Common sense is enough to make that evaluation. Only where the professional significance of underlying facts seems beyond lay comprehension must the basis for the technical findings be shown and an opportunity for rebuttal given. (Cf. Cobbs v. Grant (1972) 8 Cal.3d 229, 236.)
We think the record here supports a lay inference that the choice of the Anaheim hospital was grossly negligent. There was ample evidence that Wollweber was a high-risk patient who had suffered pulmonary complications after prior operations. The operation itself was major and serious; and Franz expected complications, including pneumonia. Yet witnesses confirmed that Anaheim had no ICU, cardiac care unit, or respirator. Olivet, its titular chief of surgery, was not a surgeon and did not consider himself a surgery supervisor. The hospital granted surgical privileges on a casual basis, required no formal evidence of competence, and maintained no consistent system of evaluating physicians it allowed to operate on its premises. It had no surgical residents or readily accessible surgical resources.
Thus when Ali refused to attend in Wollweber‘s crisis Olivet felt compelled to perform emergency surgery himself. After the operation Wollweber continued to show pulmonary weakness, and Fernandez finally found it necessary to transfer him to Good Samaritan. He later explained to Olivet: “[Wollweber needs] a modern type of treatment. This is a respiratory problem of a certain entity, of a certain degree.
When a patient faces risky surgery of a kind that previously has caused him difficulty, common sense requires he be admitted to a hospital that can cope with foreseeable complications. Franz knew the patient‘s history. His prior use of privileges at Anaheim had exposed him to the conditions there. In any event he had an obligation to be aware of them. It is common knowledge that populous Orange County has many hospitals with modern facilities and qualified staffs. Several are mentioned in the record. No expertise is necessary to conclude that Franz’ choice of Anaheim for Wollweber‘s operation was an extreme departure from the acceptable standard of medical care in that county.9 Accordingly there was no need for the panel to give notice of its own opinion or allow an opportunity for rebuttal. The trial court could resolve the issue on the record presented.
The same is not true, though, of the court‘s finding that scheduling surgery before choosing a surgeon was grossly negligent. Passaro did testify that the surgeon is responsible for independent diagnosis and evaluation of the need for an operation. Moreover, the Board‘s brief on appeal explains why premature scheduling involves the vice of interfering with the surgeon‘s independent role.
However, Ali apparently was retained the same day as surgery was scheduled or within a day or two afterward. There is no evidence he could not have cancelled the operation had he found it unnecessary after independent examination. There was no expert testimony that Franz’ conduct in this instance was an extreme departure from community medical standards. Common knowledge does not supply the link between premature scheduling and independent surgical evaluation. The record does not disclose the basis of either the panel‘s or the Division‘s
BIAS
Franz argues that he was denied a fair hearing because Dr. Tepper, one of the panel members, was biased against him, a fact that became apparent only during the hearing. This issue was not raised before the agency or the trial court. Appellate courts generally will not consider matters presented for the first time on appeal. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 779-780, cert. den. (1972) 405 U.S. 1030; Amluxen v. Regents of University of California (1975) 53 Cal.App.3d 27, 36; see Cal. Administrative Agency Practice, supra, § 3.12, p. 149; but cf.
Strictly speaking the Board is not prejudiced by Franz’ tardiness in claiming bias since that is not a new “theory of trial” on which the Board might have introduced rebuttal evidence before the panel. (Cf. Bogacki, supra; see Ernst v. Searle (1933) 218 Cal. 233, 240.) Appellate courts often examine trial records for evidence of bias.
Yet to allow the issue to be raised here, when not presented before the trial court, would undermine orderly procedure on administrative mandamus.
VARIANCE
Franz also argues that the finding of gross negligence for choosing Anaheim hospital varied materially from the charges. It is well settled, however, that variance between pleadings and proof is not a basis for reversal unless it prejudicially misleads a party. A variance
This rule clearly applies here. It was established without contradiction early in the hearing that Wollweber was a high-risk patient who faced probable complications from surgery, but that Anaheim had no ICU, cardiac care unit, or respirator. Franz presented his side of the case after a recess of more than four months. He offered a spirited defense of his choice of hospital. Although he argues his defense would have been different had he been apprised of this issue, he does not explain and we cannot see how that is so.
WAS FRANZ DISCIPLINED FOR ALI‘S NEGLIGENCE?
Franz urges he was tried for Ali‘s derelictions. We disagree. The administrative law judge struck all charges that Franz was vicariously liable for Ali‘s acts in treating Wollweber. The panel rejected the only remaining theory of vicarious liability, Franz’ selection of Ali as surgeon. The panel expressly found that the choice of Ali was not gross negligence since “[i]t was not established that [Franz] knew, or should have known, that there was an unreasonable risk that Dr. Ali was grossly incompetent or that there was an unreasonable risk that Dr. Ali would be guilty of grossly negligent acts or omissions as such surgeon.” All unprofessional conduct of Franz found by the panel was based on his own acts and omissions in Wollweber‘s treatment.
Evidence of Ali‘s conduct could not be severed from the proceedings; though Ali was not a party, the entire course of Wollweber‘s tragedy involved the intertwined acts of Ali and Franz. The conduct of Ali was necessary to place that of Franz in context. Our review of the record satisfies us that evidence of Ali‘s negligence was not used unfairly against Franz.
COUNTERFINDINGS
Franz asserts he was prejudiced by the trial court‘s failure to make certain proposed counterfindings. We disagree. All the examples cited in his brief are either unnecessary because subsumed in findings actually made, irrelevant because they do not undermine the judgment, or not established by the evidence.
CONCLUSION
We have decided that two of the trial court‘s findings—failure to consider and note test results, and failure to obtain a competent emergency surgeon—did not prove gross negligence under the circumstances. A third determination of gross negligence, based on premature scheduling of surgery, is deficient because the record fails to show the agency‘s basis for concluding that this conduct was an extreme departure from medical standards. Thus, the finding was subject to neither rebuttal by Franz nor independent mandamus review.
If an agency has imposed a single discipline for multiple charges, some of which are found not sustained by evidence, and if there is “real doubt” whether the same action would have been taken on proper findings, the matter will be returned to the agency for redetermination of penalty. (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 635; Bonham v. McConnell (1955) 45 Cal.2d 304, 306; Cooper v. State Bd. of Medical Examiners (1950) 35 Cal.2d 242, 252.)
The findings held improper in this opinion imply serious dereliction of a doctor‘s duty to his patient. We cannot say they had no influence in setting the discipline. On the other hand, major charges have been sustained and some discipline clearly is warranted. Franz should not practice free of restrictions while the penalty is being reconsidered. The conditions imposed by the stay order therefore should apply in the interim.
The judgment is reversed and the superior court is directed to issue a peremptory writ of mandate requiring the Board to reconsider petitioner Franz’ discipline in light of our conclusions. Pending the reconsideration, the stay order restricting petitioner‘s practice shall remain in effect. The parties shall bear their own costs. (Cal. Rules of Court, rule 26(a).)
KAUS, J.—I concur in the result and in the disposition. In doing so I feel bound to state my view that the opinion‘s discussion of the legislative v. adjudicative fact dichotomy, and of
Were it essential to do so, I would argue at greater length that the effect of taking judicial notice under
There is, however, language in
Bird, C. J., concurred.
Appellant‘s petition for a rehearing was denied May 20, 1982, and the opinion was modified to read as printed above.