Opinion
A151469
08-03-2018
DEBORAH WOLFF-BAKER, Plaintiff and Appellant, v. BOARD OF REGISTERED NURSING et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV257444)
Plaintiff Deborah Wolff-Baker appeals from the trial court's order denying her a writ of administrative mandate. She sought a writ of mandate to overturn the decision of the California Board of Registered Nursing (Board) placing her on three years of probation based on findings of gross negligence. We conclude substantial evidence supports the trial court's decision. Accordingly, we affirm the court's order.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 1984 the Board issued plaintiff a license as a registered nurse (RN). Subsequently, the Board issued her certificates as a public health nurse, nurse practitioner, and nurse practitioner furnisher.
In July 2013 the Board filed an accusation against plaintiff seeking to revoke or suspend her license and certificates. The accusation alleged three causes for discipline for gross negligence and/or incompetence pursuant to Business and Professions Code section 2761, subdivision (a)(1), and a fourth cause for discipline for gross negligence and/or incompetence pursuant to Business and Professions Code sections 2761, subdivision (a)(1), 2762, subdivision (d), and California Code of Regulations, title 16, section 1474. The accusation alleged plaintiff had been incompetent and grossly negligent in that she failed to timely evaluate and treat an elderly patient, A.H., and failed to consult with a supervising physician about her treatment of A.H.
A hearing on the charges was held over four days in February 2015. After taking evidence, the administrative law judge (ALJ) issued a proposed decision finding that plaintiff had been grossly negligent in her evaluation and treatment of A.H., and recommending that plaintiff be placed on three years' probation.
The evidence presented at the administrative hearing follows.
In March 2011, plaintiff was employed by Northern California Medical Associates. Dr. Timothy Gieseke was her supervising/collaborating physician. In her work, she provided care to A.H., an 82-year-old male patient who resided in an assisted living facility (ALF) for patients suffering from dementia. Plaintiff communicated with the ALF staff primarily by fax.
On March 23, 2011, A.H. demonstrated evidence of a urinary tract infection (UTI). The shift manager at the ALF sent a fax to plaintiff's home office, indicating A.H. was in some distress and asking her if a urine analysis was needed. The fax was sent at 6:00 p.m. Plaintiff was at dinner with friends and did not see the fax until the following morning at 8:30 a.m.
On the morning of March 24, 2011, plaintiff left a message with the ALF and received a call back from Laura Schultz, the wellness nurse at the ALF, at about 10:20 a.m. Schultz told her that A.H.'s vital signs were stable, he was walking around, and he did not have abdominal distension. Plaintiff filled out a lab slip for a urinalysis and faxed it to the ALF. Schultz sent two additional faxes that afternoon, one at 1:49 p.m. and another at 4:34 p.m. The first fax reported that the patient had experienced two episodes of "chocolate-colored" diarrhea, and that the urine sample had been obtained and sent to the lab.
The fax Schultz sent at 4:34 p.m. was marked "URGENT." The body of the fax states: "I wanted to give you a further update about [A.H.]. He has, in the last 2 hours, urinated on the carpet a few drops while screaming in pain. He is VERY uncomfortable and when urinating, screams loudly. Please advise as soon as possible. Current time: 1634." Plaintiff arrived at the ALF and saw A.H. at around 8:30 p.m. After her exam, she called a pharmacy that was able to deliver antibiotics so he could get started on medication. He received the medication at 3:00 a.m. the morning of March 25, 2011.
On March 25, 2011 at 10:00 a.m., the ALF sent plaintiff another fax, reporting that A.H. had lost his balance and fallen to the floor. He was sweating, had no balance, and had been placed on one-on-one care. Plaintiff responded by fax, instructing that his condition should continue to be monitored. She also prescribed Norco (a narcotic) for him.
On March 27, 2011, Schultz called plaintiff to tell her that A.H. had vomited a "chocolate-like" substance after lunch. He had ingested chocolate pudding with his medications that afternoon. Plaintiff told her that the medications might be causing an upset stomach, so she advised to give him Gatorade and acidophilus. That evening, A.H. had another fall.
On March 28, 2011, A.H. was vomiting blood. The paramedics were called and he was transported to a hospital. He was diagnosed as suffering from acute renal failure and septic shock. He died in the hospital the following day. The emergency room doctor indicated it was likely that A.H. had been sick for several days, and offered the opinion that if the patient had been sent to the emergency room on March 23 or 24 he might have lived.
At the administrative hearing, Ross Lauger testified as an expert in nurse practitioner practice on behalf of the Board. Plaintiff's counsel expressly indicated she had no objection to Lauger's designation as an expert witness. Lauger opined that plaintiff departed from the applicable standard of care when she failed to respond within an hour or two to the initial fax sent by the ALF on March 23, 2011, regarding A.H.'s symptoms. Due to A.H.'s advanced age, a reasonable response would have been to obtain a urine specimen and begin treatment with a standard antibiotic, while waiting for the culture to be completed in order to see if the medication would need to be changed. Lauger also opined that once plaintiff read the fax the following morning, she should have promptly assessed the patient herself or referred him to a care provider who could do so.
In Lauger's view, the report of "chocolate-colored diarrhea" in the fax that was sent on March 24, 2011 at 1:49 p.m. indicated that A.H. had a possible gastrointestinal (GI) bleed, suggesting that another body system had become compromised by the infection. At this point, plaintiff should have gone to evaluate the patient or he should have been sent to the hospital. Her delay in assessing the patient until 8:30 p.m. or 9:00 p.m. fell below the standard of care. Rather than delaying treatment, she could have instructed the facility to take A.H. to the emergency room, which would have satisfied the duty of care. The total delay, consisting of 27 hours between the time of the ALF's initial fax to her visit with A.H. at the facility, worsened his condition because he became septic.
Lauger also testified that once it was reported that A.H. was sweating and had lost his balance, plaintiff should have asked the ALF to call an ambulance and take him to the hospital. Instead, plaintiff's response was to direct the ALF staff to "continue to monitor." This was inadequate. In Lauger's view, the "chocolate like" vomit was further evidence of a possible GI bleed. The fact that A.H. had a Physician Order for Life Sustaining Treatment (POLST) did not change his opinion about plaintiff's departures from the standard of care in this case.
The POLST form limits medical interventions to comfort measures.
A.H.'s POLST form authorized "Comfort Measures Only," including the use of antibiotics "only to promote comfort." At the administrative hearing, plaintiff explained that the POLST signified A.H. "wished that his care would be comfort-focused, quality-of-life-focused; that he would have palliation of his symptoms, even if not aggressively treating meant that he could die." In Lauger's view, treating a UTI would be considered a "comfort measure" because the treatment would relieve the patient's pain. Both plaintiff and Dr. Gieseke testified that treating a UTI using antibiotics would be considered an appropriate comfort measure as to A.H.
At the administrative hearing, conflicting evidence was offered as to whether plaintiff had failed to consult with Dr. Gieseke regarding A.H.'s treatment. When she was interviewed by Board investigators in July 2011 and January 2012, she did not indicate that she had consulted with a physician about A.H.'s care during the relevant time period. She also provided a detailed timeline regarding the events in this case. The timeline contains no information about her consulting with any physician. At the hearing, however, she testified that she did consult with Dr. Gieseke by telephone on March 25, 2011. Dr. Gieseke testified that he recalled receiving a call, but could not recall the details. While the applicable procedural guidelines require consultations to be recorded in a patient's chart, there is no reference in A.H.'s treatment notes that would reflect a consultation occurred.
Plaintiff's expert witnesses also testified at the hearing. Conrad Rios, an expert witness on the standard of care for nurse practitioners, asserted that A.H.'s care fell within the standard of care. However, he also stated that plaintiff should have checked her home office in the evening for the first ALF fax. He also agreed with Lauger that a UTI in a patient like A.H. is very serious, and stated that he commonly prescribes an antibiotic before he obtains urine sample results. He also agreed that he would have inquired further as to the nature of A.H.'s chocolate-colored stools.
Phyllis Atkinson, a nurse practitioner from Ohio, also testified for plaintiff. She had never lived or worked in California. The ALJ noted her testimony would be of limited utility, because it would not be considered with regard to California standards of practice.
Dr. Jennifer Siegel, an emergency room physician, also testified for plaintiff. While she opined that plaintiff had complied with the standard of care, there was evidence of bias as Dr. Siegel had a personal relationship with plaintiff, in that plaintiff had previously provided care for Siegel's father.
On March 9, 2015, the ALJ issued her proposed decision.
The Board adopted the ALJ's decision on May 15, 2015.
On May 29, 2015, plaintiff filed a request for reconsideration.
On June 16, 2015, the Board denied plaintiff's request for reconsideration.
On July 15, 2015, plaintiff filed a petition for writ of mandate in the trial court, seeking a writ directing the Board to set aside its decision.
On March 22, 2017, the trial court issued a written statement of decision, denying the petition. This appeal followed.
DISCUSSION
I. Standard of Review
"Code of Civil Procedure section 1094.5 provides a trial court reviewing the decision of an administrative agency exercises its independent judgment in reviewing the evidence and that an 'abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.' (Code Civ. Proc., § 1094.5, subd. (c).) Under the independent review standard, the trial court may weigh the credibility of witnesses." (San Diego Unified School Dist. v. Commission on Professional Competence (2011) 194 Cal.App.4th 1454, 1461 (San Diego Unified).)
Though the trial court is required to exercise its independent judgment on the evidence, it is to give a " ' "strong presumption of . . . correctness" ' " to the Board's findings. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) In a proceeding on a writ of administrative mandate, "the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Id. at p. 817.) Independent judgment review " 'does not mean that the preliminary work performed by the administrative board in sifting the evidence and in making its findings is wasted effort. . . . [I]n weighing the evidence the courts can and should be assisted by the findings of the board.' " (Id. at p. 812.)
" 'After the superior court makes an independent judgment upon the record of an administrative proceeding, [the] scope of review on appeal is limited.' [Citation.] We must sustain the trial court's findings if they are supported by substantial evidence. [Citation.] In reviewing the evidence, we resolve all conflicts in favor of the party prevailing at the trial court level and must give that party the benefit of every reasonable inference in support of the judgment. ' " 'When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court.' " ' " (San Diego Unified, supra, 194 Cal.App.4th at p. 1461.) "Substantial evidence" is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. (Hosford v. State Personnel Bd. (1977) 74 Cal.App.3d 302, 307.) It is sufficient " 'if any reasonable trier of fact could have considered it reasonable, credible and of solid value.' " (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52.)
"If there is substantial evidence, the judgment must be affirmed. [ Citation.] We do not reweigh the evidence. Our inquiry 'begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact.' " (San Diego Unified, supra, 194 Cal.App.4th at pp. 1461-1462.) II. Substantial Evidence Supports the Trial Court's Findings
We conclude Lauger's testimony regarding plaintiff's failures to comply with the requisite standard of care, and the Board's evidence submitted in support of that testimony, constitutes substantial evidence supporting the trial court's decision in this matter. We note that even plaintiff's expert Rios conceded certain deficiencies on plaintiff's part, such as her failure to have seen and responded in a timely manner to the initial fax from the ALF. Rios also agreed that due to A.H.'s condition, the UTI in this case was an emergency situation, and antibiotics should have been prescribed on the morning of March 24, 2011.
In attacking Lauger's testimony, plaintiff requests that we take judicial notice of a December 2016 report prepared by the California State Auditor, entitled Board of Registered Nursing—Significant Delays and Inadequate Oversight of the Complaint Resolution Process Have Allowed Some Nurses Who May Pose a Risk to Patient Safety to Continue Practicing. The request is denied. " 'Reviewing courts generally do not take judicial notice of evidence not presented to the trial court' absent exceptional circumstances." (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2; see People v. Tate (2010) 49 Cal.4th 635, 672-673, fn. 21.) The report was published prior to the trial court's issuance of its final decision, yet plaintiff did not draw the court's attention to it. Moreover, even if we were to take judicial notice of the report, doing so would not establish the truth of the report's contents. (People v. Castillo (2010) 49 Cal.4th 145, 157; see People v. Moore (1997) 59 Cal.App.4th 168, 178; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1565.) In any event, the document does not reference plaintiff's specific case, but rather focuses on the overall need to improve the Board's investigation process so that nurses are more efficiently and effectively disciplined. Thus, even if we were to take judicial notice of the document, it lacks relevance as it would not establish her contention that there was a lack of due process in the Board's investigation and prosecution of her disciplinary action.
As to the substantive issue in this appeal, plaintiff essentially asserts that Lauger was unqualified to act as an expert witness in her case. However, it is undisputed that her attorney assented to have him testify as an expert at the hearing before the ALJ. Further, plaintiff does not claim that she was prevented from cross-examining Lauger, or from presenting her own expert witnesses. Indeed, in her opening brief she asserts that she met or exceeded the standard of care applicable to A.H.'s case "as testified to by experts in the field and her own supervising MD." Additionally, there was conflicting evidence as to whether plaintiff did, in fact, consult with Dr. Gieseke about A.H.'s care. Because substantial evidence in the record supports the trial court's findings, under the standard of review that we must apply to this case we conclude the lower court did not err in denying plaintiff's petition for writ of administrative mandate.
The respective applications of the American Academy of Home Care Medicine, Peter P. Patterson, M.D., M.B.A. and Debra Bakerjian, Ph.D., APRN, FAAN, FAANP, FGSA to file amicus curiae briefs are denied. (Cal. Rules of Court, rule 8.200(c).) The briefs appear to be an attempt to present expert witness evidence to the appellate court that was not presented to the trial court or the ALJ. Again, as a general rule, if evidence was not presented to the trial court, it is disregarded by the Court of Appeal.
DISPOSITION
The order is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Margulies, Acting P. J.
CONCURRENCE OF BANKE, J.
I concur in the judgment, as I agree that under the controlling standard of appellate review, we must affirm the trial court's determination that the Board's findings are supported by the weight of the evidence. (See generally Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811-824 [discussing " 'independent judgment' "/weight of the evidence standard applied by trial courts in reviewing administrative mandamus challenges affecting "vested rights"; also discussing substantial evidence standard applied by Courts of Appeal in reviewing a trial court's judgment in such cases].)
I write separately because, in my view, several aspects of this case are troubling and warrant discussion.
The first is the apparent legal misunderstanding of both the trial court and the Board's expert witness, Ross Lauger, of A.H.'s Physician Orders for Life Sustaining Treatment (POLST). A.H.'s POLST instructed that "Comfort Measures Only" be taken by providers, in contrast to more aggressive "Limited Additional Interventions" and, most aggressively, "Full Treatment." To put it gently, A.H.'s POLST directed providers not to provide treatment for the purpose of curing his ailments and extending his life, but rather, to provide palliative care only, so that he would pass from this life experiencing, to the degree reasonably achievable, the least amount of pain and discomfort. (See generally Jennison, Reflections on the Graying of America: Implications of Physician Orders for Life-Sustaining Treatment (2015) 12:3 Rutgers J. of L. & Pub. Policy 295, 321-324 (hereafter Jennison); Wolf et al., The Physician Orders for Life-Sustaining Treatment (POLST) Coming Soon to a Health Care Community Near You (2014) 49 Real Property, Trust and Estate L.J. 71, 81-83 (hereafter Wolf).) As discussed in paragraphs to follow, as long as A.H.'s POLST remained in effect (and it is undisputed it was in effect during the events in question), any provider aware of it was legally required to comply with its directive.
The POLST defines "Comfort Measures Only" as follows: "Use medication by any route, positioning, wound care and other measures to relieve pain and suffering. Use oxygen, suction and manual treatment of airway obstruction as needed for comfort. Antibiotics only to promote comfort. Transfer if comfort needs cannot be met in current location." (Boldface added.)
In its statement of decision, the trial court characterized Lauger's testimony as "adamant that" plaintiff departed from the standard of care because a UTI in an elderly and frail patient such as A.H. "poses a potentially fatal condition that would clearly require prompt treatment." It similarly commented that plaintiff's "delay" in treatment put A.H.'s "life at risk." The court was critical that the "one treatment" plaintiff prescribed for the UTI, "antibiotics, was simply to alleviate the pain, rather than to combat the infection." The court repeated this criticism in commenting that plaintiff prescribed antibiotics only to "reduce the pain" but not to "resolve the UTI itself." (Italics omitted.) These statements appear to reflect the view that more aggressive, curative-focused treatment should have been provided in order to prolong A.H.'s life, a perspective that is at odds with A.H.'s POLST, of which the trial court, inexplicably, made no mention.
Lauger testified extensively during the administrative hearing. Some of this testimony does support the Board's findings and the trial court's judgment that the Board's decision is supported by the weight of the evidence. For example, Lauger testified, as did every other witness, including plaintiff's expert, Conrad Rios, that prompt attention to the reported UTI symptomology and prompt treatment with antibiotics fell within the POLST's directive for "Comfort Measures Only"—because treating a UTI relieves a patient's discomfort. Lauger testified specifically that plaintiff's failure to check for the initial fax sent by Primrose on the evening of March 23, and more importantly, failure early the following morning, on March 24, to immediately call Primrose and prescribe antibiotics, failed to provide the "Comfort Measures" called for by the POLST. Rios, in turn, said he would have checked for faxes on returning home and in this case would have immediately prescribed antibiotics. Lauger further testified plaintiff should have examined A.H. promptly the morning of the 24th, or if she could not, should have arranged for another provider to see him or directed that he be taken to the ER. He additionally testified that as soon as plaintiff became aware of the mid-day report on the 24th of A.H.'s "chocolate" colored stool, she should have been alerted to a possible gastrointestinal (GI) bleed and should have directed that he be sent to the ER. Rios testified that on seeing a report of "chocolate" stool, he would have followed up with fairly intensive questioning. Plaintiff's examination of A.H. around 8:30 p.m. on the 24th and prescription for antibiotics shortly after that, were, according to Lauger, too late even as comfort measures, particularly since the antibiotics were not delivered until the very early hours of the following day, March 25th, and not administered until several hours thereafter. Lauger did not criticize plaintiff's choice of antibiotic or, except for its timeliness, its manner of administration.
As the majority opinion observes, plaintiff's counsel made no objection at the administrative hearing to Lauger's testifying as an expert witness. Accordingly, we cannot revisit whether Lauger was qualified to provide expert testimony in this case, even though plaintiff raises serious issues in this regard. (See People v. Dowl (2013) 57 Cal.4th 1079, 1087 ["We have long and repeatedly held that a defendant who fails at trial to object that a witness lacks the qualifications to render an expert opinion may not on appeal contest the opinion's admissibility."].)
As the majority opinion indicates, the "weight" of the evidence does not turn on how many witnesses a party presents.
Plaintiff testified she did call Primrose when she retrieved the fax at about 8:30 a.m. She previously had told Investigator Emily Kendrick the same thing. The Board took the position no call was made because plaintiff could not produce phone records to prove it. While plaintiff had records showing all calls made and received on her cell phone, AT&T could not provide such records for her landline, which was the phone sitting next to her fax machine in her home office. It was undisputed that around 8:30 a.m., plaintiff sent a return fax requesting a urine sample and lab test. It is also undisputed plaintiff spoke with licensed vocational nurse Laura Shultz, the Primrose wellness nurse, at approximately 10:20 a.m. and repeated the request for a urine sample and lab test, and told Shultz she had a full patient schedule and was unable to see A.H. Plaintiff testified she also told Schultz A.H. should be taken to the ER if Primrose could not manage his pain. No notation of this last instruction appears in any record. Schultz testified plaintiff did not tell her that. It is undisputed that Primrose, itself, was independently required, both pursuant to the directive in A.H.'s POLST and by state regulation, to transport A.H. to the ER if the facility could not provide sufficient "Comfort Measures."
Although Rios also testified such immediate action was not required by the standard of care, both the Board and the trial court could reasonably view Rios's testimony as to what he would, in fact, have done under the circumstances as lending weight to Lauger's opinion.
Plaintiff testified she did not see either this mid-day fax or the subsequent fax with the "Urgent" notation until around 11:00 p.m., when she returned home after examining A.H. at Primrose at approximately 8:30 p.m., ordering antibiotics and making numerous telephone calls to find a pharmacy that was open and could fill the prescription and deliver it, and completing her medical notes. There was no evidence plaintiff saw the fax describing "chocolate" colored stool or the fax with the URGENT notation any earlier, before she examined A.H. There also was no evidence that, despite having sent the two faxes, Shultz thereafter attempted to reach plaintiff by phone, even though Shultz admitted she knew plaintiff could be reached by cell phone, that she had done so before, and that plaintiff promptly responded. Investigator Kendrick testified Schultz said she mentioned the stool color to plaintiff because she thought there might have been blood in it. The investigator did not indicate, however, whether Schultz actually spoke with plaintiff or whether Schultz had simply noted the stool color in the fax. By the time of the hearing, Schultz had no independent recollection about the fax and the stool color.
As for consulting with her supervising physician, Dr. Gieseke, both plaintiff and Gieseke testified they consulted on the 25th by telephone. Neither supplied phone records that confirmed this, the conversation was not noted in any medical record, and plaintiff did not mention the call in the timeline of events she prepared several months after the events in question. Rios testified documenting the consultation would have been a "best practice." Plaintiff also did not tell either investigator about this conversation. Investigator Kimberly Miller testified plaintiff told her in a telephone interview that she had not consulted with any physician and had become "upset and angry" when Miller stated she thought plaintiff "worked under" Gieseke. Miller claimed plaintiff took the "position" she "didn't need anyone's supervision." Plaintiff disputed that she had been angry and testified she had attempted to explain to Miller that as a family nurse practitioner (FNP) she can, within standardized procedures, write orders and prescribe medications. Miller admitted that at the time she interviewed plaintiff she had not been aware that an FNP can write orders and prescriptions without the immediate approval of his or her supervising physician. This lack of knowledge as to the scope of plaintiff's practice authority was the basis for her opinion at the time she prepared her investigative report that plaintiff had failed to consult with her supervising physician. The Board found no telephone consultation occurred.
Given the applicable standard of appellate review, I must conclude the evidence recited above is enough to support the trial court's determination that the Board's findings of failure to timely evaluate and treat, and failure to consult with plaintiff's supervising physician, are supported by the weight of the evidence.
Other portions of Lauger's testimony, however, raise significant concern. When initially asked about A.H.'s POLST, Lauger characterized assessment and treatment of the possible GI bleed as an additional "comfort measure." But then he said: "I think you still would treat a[] GI bleed, especially in this case. Because he's not in the facility because he has a GI issue. He's there because he has diabetes and Alzheimer's. A GI bleed is a new condition, and a decision would have to be [based] on whether to treat that or not, based on the family, I guess. [¶] . . . [¶] [A] GI bleed can be life threatening. And if he's—if the decision not to resuscitate is from [a] GI bleed, then you would say that falls under that, and you would not treat that. But the GI bleed is not part of his POLST order, as far as I can tell."
Lauger's response was not only equivocal, but it reflects a serious legal misunderstanding of POLSTs, since he seems to suggest a POLST is condition-specific and that before a provider can act in accordance with such an order, he or she must first determine whether the immediately presenting problem is a more acute symptom of the condition summarized in the box on the bottom of the POLST form entitled "Summary of Medical Condition" (which in this case, was "Alzheimer's dementia[,] DMT2; HTD").
Lueger admitted he had seen "very few" patients with POLSTs. It also appears the bulk of his experience had been in the emergency room setting and that he had no experience in the extended care setting, let alone with long-term care patients with POLSTs. However, again, despite this lack of relevant experience no objection was made either to his testifying as an expert or his testimony concerning the POLST in particular.
California, like a number of states, has enacted an entire statutory scheme governing the form, content and legal effect of a POLST. (Prob. Code, § 4780 et seq.; see generally Wolf, supra, The Physician Orders for Life-Sustaining Treatment, 49 Real Property, Trust and Estate L.J. at pp. 76-81, 152.) These statutes are codified in division 4.7 (entitled "Health Care Decisions"), part 4 (entitled "Request Regarding Resuscitative Measures"). As this legislative scheme makes clear, a POLST is not merely an "advance directive." Rather, it is a medical order, prepared and signed by a physician after consultation with the patient and/or the patient's legally authorized surrogate for health care decisions, concerning the extent to which medical treatment is to be provided and with which a provider aware of the order must comply (except in specified, limited circumstances, none of which existed in this case). (Prob. Code, §§ 4780, subds. (b) & (c), 4781.2; see generally Jennison, Reflections on the Graying of America, supra, 12:3 Rutgers J. of L. & Pub. Policy at pp. 308-312.)
The Legislature's findings and declarations in 2008, when it made significant modifications to the existing statutory scheme, explain: " '(c) Advance directives give individuals the ability to put their wishes in writing and to identify the person who would speak for them should they become unable to speak for themselves. [¶] (d) The Physicians Orders for Life Sustaining Treatment (POLST) form complements an advance directive by taking the individual's wishes regarding life-sustaining treatment, such as those set forth in the advance directive, and converting those wishes into a medical order. [¶] (e) The hallmarks of a POLST form are (1) immediately actionable, signed medical orders on a standardized form, (2) orders that address a range of life-sustaining interventions as well as the patient's preferred intensity of treatment for each intervention, (3) a brightly colored, clearly identifiable form, and (4) a form that is recognized, adopted, and honored across treatment settings.' " (Historical and Statutory Notes, 52b West's Ann. Code (2009 ed.) foll. § 4780, p. 482; see generally Jennison, Reflections on the Graying of America, supra, 12:3 Rutgers J. of L. & Pub. Policy at pp. 299-300, 308-312; Wolf, supra, The Physician Orders For Life-Sustaining Treatment, 49 Real Property, Trust and Estate L.J. at pp. 76-81, 152; Terman, It Isn't Easy Being Pink: Potential Problems With POLST Paradigm Forms (2013) 36:2 Hamline L.Rev. 177, 179-183 (hereafter Terman); Kapp, The Nursing Home As Part Of The POLST Paradigm (2013) 36:2 Hamline L.Rev. 151, 163-169.)
Advance directives are governed by a different statutory scheme, codified immediately prior to the statutes governing POLSTs. (Prob. Code, § 4700 et seq.)
"In the absence of knowledge to the contrary," a medical provider is entitled to "presume that a request regarding resuscitative measures [i.e., a POLST] is valid and unrevoked." (Prob. Code, § 4784.) The statutory scheme expansively defines "health care provider" to include not only licensed physicians and nurse practitioners, but also "[e]mergency response employees," including "firefighters, law enforcement officers, emergency medical technicians I and II, [and] paramedics." (Prob. Code, §§ 4621, 4781; see generally Jennison, Reflections on the Graying of America, supra, 12:3 Rutgers J. of L. & Pub. Policy at pp. 300, 312.)
The Legislature has also recently adopted the statutory framework for an "eRegistry Pilot" project in order to enhance immediate and statewide availability of POLSTs to all such providers. (Prob. Code, § 4788.)
A medical provider aware of a POLST is required to treat in accordance with its terms, except in the limited situations set forth by statute. (Prob. Code, § 4781.2, subds. (a), (b), (e).) For example, even when a POLST instructs that "Full Treatment" be given, a provider is not required to provide such treatment if it would, for the particular patient, be ineffectual and cause the patient additional injury and pain. (Prob. Code, § 4781.2, subd. (b); see Alexander v. Scripp's Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 212, 237-240 [although advance directive stated "all measures taken to prolong her life," providers were not required to provide additional treatment to terminal cancer patient that would, given her condition, be ineffective, injurious and prolong her suffering].) Providers who comply with a POLST are "immune" from criminal and civil liability, nor can they be subject to disciplinary action. (Prob. Code, § 4782.)
Further, "[i]f the orders in an individual's" POLST "directly conflict with his or her individual health care instruction, as defined in Section 4623 [part of the statutory scheme governing advance directives], then, to the extent of the conflict, the most recent order or instruction is effective." (Prob. Code, § 4781.4.)
No statutory provision remotely suggests a POLST is limited in the manner Lauger described, to only more acute symptoms of the particular "medical condition" summarized on the POLST at the time it was executed. On the contrary, the Legislature has provided for a uniform, readily spotted, and easily identifiable order (and one that will eventually be immediately available electronically) that an array of providers must adhere to except in extremely limited circumstances. (E.g., Prob. Code, §§ 4780, 4781.2, 4781.4, 4783, 4788.) This includes emergency personnel (Prob. Code, § 4781), who are unlikely to have either the medical records or even the medical training to try to determine whether the presenting problem is a more acute symptom of the summarized "medical condition" or is a symptom of a different condition. (See generally Wolf, supra, The Physician Orders for Life-Sustaining Treatment, 49 Real Property, Trust and Estate L.J., at p. 94 ["When a response to an emergency situation is required, the POLST form must be followed first, even before discussion with the patient's physician."].)
Additionally, a POLST remains operative until it is changed or revoked. (Prob. Code, § 4781.2, subds. (c)-(e).) Thus, many months or even years may pass after a POLST is on file, during which time the patient's medical condition may, and likely will, change. (See generally Wolf, supra, The Physician Orders for Life-Sustaining Treatment, 49 Real Property, Trust and Estate L.J. at pp. 92-93, 109-110, 140-141 [discussing passage of time, changing medical conditions, and periodic review of POLST and new POLST if patient desires to change treatment choices]; Terman, It Isn't Easy Being Pink, supra, 36:2 Hamline L.Rev. at pp. 183, 193-194 [discussing periodic review of POLST and also specifically discussing POLST in context of dementia].) Indeed, if POLSTs were condition-specific, as Lauger opined, that would mean, for example, that if a person with a POLST that summarized his or her "medical condition" as hypertension were involved in a catastrophic accident and sustained injuries entirely unrelated to his or her blood pressure, providers could not comply with the POLST. Not only is this result not sanctioned by any part of the statutory scheme, it is contrary to it.
To the extent Lauger's testimony rested on a mistaken legal understanding of POLSTs, his testimony was highly problematic. Accordingly, in my view, much of his testimony as to the possible GI bleed should have been disregarded. The extent of A.H.'s care, whether for the UTI or the possible GI bleed, or for any other emergent problem, was governed by the POLST, and providers aware of that document were legally required to provide "Comfort Measures Only." To the extent Lauger opined otherwise, he was legally in error.
Likewise, the ER physician's notes cannot be considered as evidence that treatment more aggressive than "Comfort Measures Only" should have been provided. That physician did not testify. In fact, he spoke only briefly to Inspector Miller by telephone and declined to elaborate on A.H.'s condition because he did not have all of A.H.'s medical records. There also is no indication in the notes that the physician was aware of A.H.'s POLST.
Likewise, to the extent the trial court considered any of Lauger's legally incorrect testimony, or was, itself, of the view that treatment more aggressive than "Comfort Measures" should have been taken in an effort to prolong A.H.'s life, the court also was in error. However, given the other evidence supporting the Board's decision I have recited above, I must, under the governing standards of review, conclude this error, alone, is not sufficient to mandate reversal of the lower court's judgment.
The second troubling aspect of this case is the apparent accepted reliance on reports prepared for potential disciplinary purposes that summarize interviews that, apparently as a matter of practice, are not routinely recorded. Plaintiff's interview by Investigator Kendrick was tape recorded, but apparently only at her request. Other interviews were not taped, including plaintiff's telephone interview by Inspector Miller, which featured prominently in the Board's case. The failure to electronically record investigative interviews conducted in connection with potential disciplinary proceedings inevitably results, as it did in this case, in disputes over not only precisely what was said during the interview (critical in the medical realm), but also how it was said, which, as this case illustrates, can be absolutely critical in the fact finding process. In this day and age of readily available and inexpensive electronic technology, it seems to me no investigative interview should be conducted, by telephone or in person, in the absence of a functional recording device to ensure that there is a completely accurate record. There is certainly nothing in this record that suggests any witness or either investigator (both of whom were trained law enforcement officers) did anything other than try their best to recall exactly what occurred and when. But, reports (and testimony based on reports) that only summarize an interview and which, inherently, cannot convey vocal tone and inflection (the best an investigator can do is relate his or her own subjective impression), are highly unsatisfactory tools for a fact finder to assess the kind of exacting medical detail and nuances of tone that are significant in a case like this one.
Finally, I think it is important in this troubling case to quote the following from the Board's decision, stating why it imposed the minimum level of discipline and also departed from its standard disciplinary restrictions and expressly allowed plaintiff to continue to provide services in the home health setting: "[Plaintiff] has an otherwise unblemished 40-year career in nursing, and she has no prior disciplinary action in California. She is to be commended for being one of the few nurse practitioners willing to make house calls to the vulnerable elderly population. Furthermore, the support of her colleagues establishes that [plaintiff] has demonstrated a capacity to practice safe nursing. This matter involves an aberration in an otherwise error-free career for a dedicated and competent nurse practitioner." For the reasons I have discussed, I harbor considerable doubt that even an aberration occurred in plaintiff's practice devoted to this underserved population.
/s/_________
Banke, J.