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Anderson v. Illinois Dep't of Professional Regulation

May 13, 2004

KENNETH ANDERSON, M.D., PLAINTIFF-APPELLEE,
v.
ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, AND FERNANDO E. GRILLO, DIRECTOR OF THE ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Nancy J. Arnold, Judge Presiding.

The opinion of the court was delivered by: Justice Hartman

PUBLISHED

This administrative review action was brought by plaintiff, Kenneth Anderson, M.D., against defendants, the Illinois Department of Professional Regulation (the Department) and its Director, to contest the Director's decision that Dr. Anderson's acts "and/or" omissions constituted gross negligence and dishonorable, unethical, or unprofessional conduct in violation of the Medical Practice Act of 1987 (the Act) (225 ILCS 60/1 et seq. (West 2000)). The circuit court reversed the Director's decision and the Department appealed.

The Department filed a two count complaint against Dr. Anderson alleging that he had committed gross negligence and unethical or unprofessional conduct by performing hernia surgery on the wrong side of a four year old patient. Specifically, the complaint alleged that Dr. Anderson had (1) failed to examine C.S. prior to starting surgery on April 13, 1998; (2) performed unnecessary surgery on the incorrect side of C.S.'s body; and (3) subjected C.S. to unnecessary surgery which could not resolve his medical condition.*fn1

The following testimony was adduced at an evidentiary hearing before an administrative law judge (ALJ):

Dr. Anderson testified that he is a board certified general surgeon. He had been chairman of the surgery department at St. Francis Hospital since July 1, 1997. On March 10, 1998, C.S. came to Dr. Anderson's office for an examination and evaluation of an inguinal hernia, upon referral by Dr. Robert Jordan. The referral authorization form from Dr. Jordan stated inguinal hernia, but did not indicate which side. On March 10, 1998, a history and physical form was filled out by a nurse after interviewing the patient and his mother. The history and physical form, which was completed prior to Dr. Anderson entering the examining room, stated left inguinal hernia. Dr. Anderson scanned this form from top to bottom before examining C.S.

Dr. Anderson examined C.S. on March 10, 1998, diagnosed a right inguinal hernia, and recommended surgery. The office chart included a progress note dictated and signed by Dr. Anderson indicating his diagnosis of right inguinal hernia. Dr. Anderson wrote a note to Dr. Jordan on March 10, 1998, stating that he had seen C.S. for a right inguinal hernia and would schedule surgery to repair the condition. The office chart also contained a consent to surgery form, however, prepared by Dr. Anderson's nurse and signed by C.S.'s mother which authorized repair of a left inguinal hernia.

On March 12, 1998, Dr. Anderson's office sent a referral request form to the managed care network requesting authorization to perform surgery to repair a right inguinal hernia. The referral form received on April 10, 1998, from the managed care network authorized repair of a right inguinal hernia. Upon receipt of the authorization, Yolanda, a nurse in Dr. Anderson's office, scheduled surgery for a left inguinal hernia. Dr. Anderson never saw the referral form received from the managed care network. Neither the referral form, nor Dr. Anderson's office notes were included in the hospital chart.

Dr. Anderson testified that he did not bring his office notes to the hospital on the day of the surgery; nor did he review those notes at any time prior to performing the surgery. He admitted that if he had, he would not have performed the surgery on C.S.'s left side. Dr. Anderson did not examine C.S. on the day of surgery. The reason was that he thought it impractical to do so in the surgical holding area due to the lack of privacy. Further, all documents in the hospital chart indicated a left inguinal hernia: (1) the consent to surgical procedure form filled out by a nurse at the office and signed by C.S.'s mother indicated a left inguinal hernia; (2) the admission assessment listed C.S.'s chief complaint as left inguinal hernia; (3) the pre-anesthesia evaluation form noted a pre-operative diagnosis of left inguinal hernia; (4) the surgical procedure permit filled out on the day of the surgery and signed by C.S.'s mother indicated left inguinal hernia; and (5) the same day surgery/short stay form signed by Dr. Anderson indicated he had performed a physical examination of the patient and stated that there was a left inguinal hernia. Dr. Anderson testified that he relied upon the documents in the hospital chart and his memory in preparing the same day surgery/short stay form.

On April 13, 1998, Dr. Anderson attempted to perform a herniorrhaphy on C.S.'s left side. The post-operative report indicated that no hernia was found on the left side. Two hours after surgery, Dr. Anderson explained to C.S.'s parents that he did not find a hernia and believed there had been a misdiagnosis. When C.S.'s mother saw the dressing on the surgical site she informed Dr. Anderson that the hernia was on the right side.

Dr. Andrew Gorchynsky, chief medical coordinator for the Department, testified as an expert for the Department. He explained that "laterality" refers to a medical situation involving a particular side or area. According to Dr. Gorchynsky, it is imperative to identify the anatomic location in any type of surgery involving laterality. The surgeon must be 100 per cent certain that he is operating on the proper side or area. Dr. Gorchynsky stated that a surgeon should rely on his own examination and his own records because the surgeon ultimately is responsible for the care of the patient. Prior to performing surgery Dr. Gorchynsky reviews his own notes from the original and any subsequent consultations with the patient and speaks with the patient on the day of the surgery. He usually reviews his notes the day before the surgery and generally brings his records to the hospital; but not always. He relies on his own personal records if laterality is involved in the surgery.

In Dr. Gorchynsky's opinion, Dr. Anderson engaged in unprofessional and unethical conduct based on a breach of responsibility to his patient by operating on the wrong side. Dr. Anderson also caused actual harm to a member of the public. Dr. Gorchynsky believed that by performing surgery on the wrong side, Dr. Anderson committed an act or omission that constituted recklessness or carelessness causing injury to C.S. According to Dr. Gorchynsky, Dr. Anderson could have avoided the situation by referring to his original progress note, re-examining C.S. on the day of the surgery, or speaking to C.S.'s parents to confirm the surgical site.

Dr. Gorchynsky observed that all of the hospital records available to Dr. Anderson on April 13, 1998, indicated that C.S. required surgery for a left inguinal hernia, except for one document which did not indicate a side. A surgeon has the duty to operate on the correct side of a patient and it is careless and reckless to operate on the wrong side. Dr. Anderson was reckless and careless in not checking his own personal records prior to conducting the surgery, whether or not he brought them to the hospital. Further, he was reckless and careless when he completed the same day/short stay record in which he indicated that C.S. had a left inguinal hernia which was inconsistent with his initial diagnosis as reflected in his dictated progress note and his letter to Dr. Jordan. On cross-examination, Dr. Gorchynsky stated that a physician might rely on his memory even if the surgery were over a month after his physical examination of the patient and that there was no standard as to how much a physician can rely upon his own memory as opposed to reviewing the medical records.

Dr. Barry Rosen testified as an expert witness for Dr. Anderson. He reviewed C.S.'s hospital records and Dr. Anderson's office records. Dr. Rosen stated that it was within the standard of care not to examine C.S. in the surgical holding area prior to surgery since all the documents in the hospital chart indicated C.S. suffered from a left inguinal hernia. He also noted that there was too little privacy in the surgical holding area to allow for an examination. According to Dr. Rosen, Dr. Anderson did nothing with regard to his treatment of C.S. that was reckless, careless or in breach of his duty of care. Dr. ...


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