Tendai v. Missouri State Board of Registration for the Healing Arts

RICHARD B. TEITELMAN, Judge,

dissenting.

I respectfully dissent from the principal opinion to the extent it holds that there was insufficient evidence to support the commission’s finding that Dr. Tendai committed repeated negligence and engaged in conduct harmful to the patient.

The primary purpose of statutes authorizing the board to discipline a doctor’s license is to safeguard the public health and welfare. Missouri Board of Registration for the Healing Arts v. Levine, 808 S.W.2d 440, 442 (Mo.App.1991). To effectuate this purpose, the statutes must be construed broadly “with a view to suppression of wrongs and mischiefs undertaken to be remedied.” Bhuket v. State Board of Registration for the Healing Arts, 787 S.W.2d 882, 885 (Mo.App.1990) (quoting, Bittiker v. State Board of Registration for the Healing Arts, 404 S.W.2d 402, 405 (Mo.App.1966)). Non-technical words and phrases in the statutes are to be given their plain, ordinary and usual sense. Id.

Repeated Hegligehiee

The phrase “repeated negligence” is not a technical term and must be given its plain and ordinary meaning. The plain and ordinary meaning is set forth in section 334.100.2(5), which defines repeated negligence as the “failure, on more than *372 one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances” by another physician.

The facts of this case perfectly track the statutory definition. Dr. Tendai examined S.G. on November 2, 1992, recognized that the fetus was not developing properly, and negligently failed to refer her to a perina-tologist. Dr. Tendai examined S.G. on three subsequent occasions and, each time, recognized that the fetus was not developing properly. Although the fetus continued to display signs of abnormal development, Dr. Tendai repeatedly failed to refer S.G. to a perinatologist. Thurs., Dr. Ten-dai negligently failed to refer S.G. to a perinatologist on three separate occasions. This case fits squarely within the plain statutory definition of “repeated negligence.” The principal opinion’s attempt to construct a different meaning of “repeated negligence” through an analogy to the continuing care exception to the statute of limitations in medical negligence cases is, therefore, unwarranted. 1

Conduct which “is or might be” harmful to the patient or the public

Section 334.100.2(5) permits discipline for “any conduct which is or might be harmful or dangerous to the mental or physical health of a patient or the public.... ” The commission found that Dr. Tendai’s conduct was harmful to the health of S.G. There is substantial evidence in the record to support the commission’s finding.

First, the autopsy concluded that “[i]n-trauterine fetal death was most likely due to the combined effects of a tight nuchal cord with severe chronic villitis of unknown etiology involving the placenta with associated intrauterine fetal growth retardation.” The principal opinion states that the autopsy supports the position that the death was caused by strangulation “and that Dr. Tendai was not negligent.” In fact, the autopsy report specifically mentions IUGR as a contributing factor to the death while offering no opinion as to whether Dr. Tendai was negligent. Where evidence warrants either of two opposed findings, the reviewing court must uphold the factual findings the agency has made. Fritzshall v. Bd. of Police Commissioners, 886 S.W.2d 20, 28 (Mo.App.1994). The autopsy findings supports the commission’s decision that IUGR was a contributing factor to the baby’s death and that Dr. Tendai’s negligent monitoring of the IUGR was harmful to the patient. This Court is not in a position to substitute its lay medical judgments for the commission’s factual findings.

Second, Dr. Cameron testified that the death could have been prevented if Dr. Tendai had properly monitored the development of the fetus. Specifically, Dr. Cameron testified that the death could have been foreseen and the baby could have been delivered via caesarian section. The principal opinion’s rejection of Dr. Cameron’s testimony as “a statement merely of timing” ignores the thrust of Dr. Cameron’s testimony that, in this case, *373 timing may have been crucial to the medical outcome. Again, this Court is no position to substitute its conjecture regarding medical matters for the factual findings of the commission. There is sufficient evidence to support the commission’s decision to discipline Dr. Tendai’s license for conduct which “is or might be harmful” to a patient.

I would uphold the circuit court’s judgment affirming the discipline of Dr. Ten-dai’s license for repeated negligence and conduct harmful to the patient.

. An analogy is only as strong as the underlying comparison. The attempt to analogize concepts from fundamentally different legal contexts is not only unwarranted, it is also untenable. Medical malpractice litigation and physician discipline proceedings have different purposes. Malpractice litigation seeks compensation for injured patients, while disciplinary proceedings serve to protect the public from poor medical practice. Furthermore, the common law continuing care exception was created to benefit injured patients by preserving their claims against negligent physicians against the expiration of the statute of limitations. It is incongruous with the original impetus for the continuing care exception to argue that the exception supports a judicial construction of the disciplinary statutes that shields a negligent physician from discipline.