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Ob-Gyn Wins Early Termination of Probation
A California Ob-Gyn was one of a small group of specialists serving a rural area. A patient whom the physician had previously treated , having delivered her children, presented with complaints of unusual, continuous bleeding. The doctor asked the patient to undergo a pelvic exam and Pap smear to help determine the cause of bleeding. The patient demurred, saying she had just undergone a Pap smear and exam with her primary care physician who referred her to the Ob-Gyn. She said she was embarrassed and uncomfortable undergoing further examination.
Unfortunately, the physician accepted the patient’s refusal to undergo testing and examination and only wrote the single word “deferred” in the patient’s chart relative to conducting an exam and Pap smear. The doctor asked the patient to return to her primary physician to acquire the Pap smear and exam results which the doctor had not received with the referral. The patient did return to her primary care doctor, but was told by staff her Pap test results were not available.
Months passed and the patient did not return to the Ob-Gyn. Unbeknownst to the doctor, the patient’s Pap smear results had returned to her primary care physician’s office with positive indications for cancer. The primary care physician’s office staff, however, failed to locate and forward these results. The results remained unread in the patient’s file for over a year.
Approximately one year later, the patient returned to the Ob-Gyn with renewed complaints of continuing bleeding. The Ob-Gyn insisted on an examination and immediately recognized signs of cancer. He referred the patient for emergency evaluation and surgery. Her life was saved. However, the patient subsequently filed suit against all concerned. The case was settled, based on the expressed interests of the insurance company on advice of its legal counsel.
A report of insurance settlement to the Medical Board under Bus. & Prof. Code Section 801.1 resulted in an investigation of the Ob-Gyn. Expert review indicated that he or she should have insisted on conducting an initial pelvic exam and Pap smear of the patient or alternatively more clearly recorded her refusal in the patient chart. The Medical Board filed an accusation charging the physician with gross negligence.
Settlement with the Medical Board resulted in 35 months probation. Business and Professions Code Section 2307 provides for petitions for early termination of probation. For a probationary term of less than three (3) years, the physician can petition for termination of probation after only one year. Probationary terms over three years require that two full years be served before a petition for termination can be filed. Since the physician had received a probation term of less than three years, he or she was eligible to petition for termination of probation after only one year.
We represented the physician at an administrative hearing before the Medical Board at the Office of Administrative Hearings. We assisted the physician with preparing to testify, compiling documentary evidence, letters of support from other physicians, and preparation of witnesses in support of the petition. Following the hearing, the Medical Board granted the petition terminating probation early.
Effective legal representation of this physician meant that the damage to his or her career was minimized. The doctor is now moving on with his or her life and practice.