Linda J. Bergmann, complainant, as cause for disciplinary action, alleges:
1. Complainant is the Executive Director of the California State Board of Osteopathic Examiners (hereinafter the "Board") and makes and files this accusation solely in her official capacity.
2. In 1949, License No. 20A1569 was issued by the Board to Viola H. Fryniann, D.O. (hereinafter "respondent"), and at all times relevant herein was, and currently is, in full force and effect. The License will expire on July 31, 1992, unless renewed.
3. This accusation is made in reference to the following statutes of the California Business and Professions Code (hereinafter "Code"):
a. Section 3600, a provision of the Osteopathic Act, Stats. 1933, c. 399, p. 1298, S 3600, provides that the law governing licentiates of the Board is found in the Osteopathic Act and in Chapter 5 of Division II, §§ 2000 et seq. of the Code, relating to Medicine.
b. Section 3600-2, a provision of the Osteopathic Act, provides that the Board shall enforce those provisions of the Medical Practice Act identified as Articles 12, 13, and 14, as now existing or hereafter amended, as to persons who hold certificates subject to the jurisdiction of the Board.
c. Section 2234 provides that unprofessional conduct includes, but is not limited to, the following:
". . .
"(c) Repeated negligent acts.
d. Section 2227 provides that the Board may revoke suspend for a period not to exceed one year, or place on probation, the license of any licensee who is found guilty of unprofessional conduct under the Medical Practice Act.
4. Respondent Viola M. Frymann, D.O. is subject to disciplinary action on account of the following:
a. Zachary P. was born on or about November 7, 1990. He was first examined by respondent when he was two days old, on November 9, 1990.
b. Respondent again examined Zachary P. on or about November 14, 1990, when he was one-week old. His mother gave a history of fever commencing the night before and reported coughing and crossing of the eyes. When examined by respondent, Zachary P had a rectal temperature of 100.4. Respondent prescribed vitamin C and performed cranial manipulation. No diagnosis or impression were charted.
c. On November 16, 1990, Zachary P. was again examined by respondent. His mother reported the child had fever the previous afternoon and evening, together with diarrhea. No diagnosis or impression were charted and no temperature or vital signs were documented. A complete -blood chemistry was performed, but the results were not documented in the progress notes. The laboratory report showed toxic granulation, abnormalities in the white blood count, red blood count, and platelet count, and indications of sepsis.
d. On November 18, 1990, respondent's progress notes indicate that she received a "report of recurrent fever -- to consult pediatrician in the morning."
e. On November 20, 1990, respondent's notes show that Zachary P. was hospitalized with a urinary tract infection and was on antibiotics.
5. Respondent failed to perform a full evaluation for sepsis when the child presented with fever on November 14, 1990. Respondent failed to document vital signs (except temperature), hydration status and overall alertness and consolability. She failed to provide or recommend appropriate treatment.
6. Respondent failed to take appropriate steps on or after November 16, 1990, in that she failed to record vital signs, hydration status and overall alertness and consolability. She failed to arrange for immediate hospitalization for full septic work-up and administration of antibiotics, all of which were indicated by the history and abnormal laboratory test results.
7. As a result of the conduct described in paragraphs 4 through 6, above, respondent is guilty of repeated acts of negligence, or of incompetence, in violation of Code section 2234.
WHEREFORE, complainant requests that the Board hold a hearing on the matters alleged herein, and that following the hearing, the Board issue a decision:
1. Revoking or suspending License Number 20A1569, issued to respondent Viola H. Frymann, D.O.;
2. Taking such other and further action as the Board deems appropriate to protect the public health, safety and welfare.
DATED: November 7, 1991
Linda J. Bergmann
Board of Osteopathic
State of California
In the interest of a prompt and speedy settlement of this matter, consistent with the public interest and the responsibility of the Board of Osteopathic Examiners of the State of California, (hereinafter "Board"), the parties submit this Stipulation and Decision to the Board for its approval and adoption as the final disposition of the Accusation.
The parties stipulate the following is true:
1. An Accusation, No. 91-19, is currently pending against Viola M. Frymann, D.O. (hereinafter "respondent"), before the Board. The Accusation, together with all other statutorily required documents, was duly served on the respondent on or about November 13, 1991, and respondent filed her Notice of Defense (contesting the Accusation) on or about November 19, 1991. A copy of Accusation No. 91-19 is attached as Attachment "A" and hereby incorporated by reference as if fully set forth.
2. At all times relevant herein, respondent has been licensed by the Board of Osteopathic Examiners under License No. 20A1569.
3. Respondent is represented by counsel John T. Borje, Esq. in this matter. Respondent has fully and completely discussed with her counsel the effects of this stipulation.
4. Respondent understands the nature of the charges alleged in the Accusation and that they constitute causes for imposing discipline upon her license. Respondent is fully aware of her right to a hearing on the charges and allegations contained in said Accusation, her right to seek reconsideration, to appeal, and all other rights which may be accorded her pursuant to the California Business and Professions Code and Government Code, and freely and voluntarily waives those rights.
5. Admissions made by respondent in this Stipulation are solely for the purpose of resolving this case, for any other disciplinary proceedings which may be instituted by the Board, and for any petition for reinstatement, reduction of penalty, or application for relicensure filed by respondent. They shall have no force or effect in any other case or proceeding. For these purposes respondent admits the truth of the allegations in Paragraphs 4, 5, and 6 of Accusation No. 91-19 and agrees to the Board's imposition of penalty as set out in the Order below.
6. This stipulation shall be subject to the approval of the Board. If the Board fails to adopt this stipulation and order, the stipulation shall be of no force or effect for either party.
7. In consideration of the foregoing admissions and findings, the parties agree that the Board shall, without further notice or formal proceeding, issue and enter an order as follows:
A. IT IS HEREBY ORDERED that License number 20A1569 issued to Viola M. Frymann, D.O. is revoked. However, the revocation is stayed and respondent is placed on probation for five years on the following terms and conditions:
1. Within 90 days of the effective date of this decision, respondent shall submit to the Board for its prior approval an educational program related to the violations charged in the accusation. This program shall be in addition to the Continuing Medical Education requirements for re-licensure. The program shall include the following classes, to be taken at an approved medical school:
a. Physical Diagnosis;
c: Pediatric refresher course.
All courses are to be completed within 2 years following the effective date of this decision. Following the completion of each course, the Board or its designee may administer an examination to test respondent's knowledge of the course. If respondent fails to take and pass this examination by the end of the second year of probation, respondent shall cease the practice of medicine until this examination has been successfully passed and respondent has been so notified by the Board in writing.
2. Respondent shall obey all federal, state and local laws, and all rules governing the practice of medicine in California.
3. Respondent shall submit quarterly declarations under penalty of perjury on forms provided by the Board, stating whether there has been compliance with all the conditions of probation.
4. Respondent shall comply with the Board's probation surveillance program.
5. Respondent shall appear in person for interviews with the Board's medical consultants upon request at various intervals and with reasonable notice.
6. In the event respondent should leave California to reside or to practice outside the State, respondent must notify the Board in writing of the dates of departure and return. Periods of residency or practice outside California will not apply to the reduction of this probationary period.
7. If respondent violates probation in any respect, the Board may revoke probation and carry out the disciplinary order that was stayed after giving respondent notice and the opportunity to be heard. If an Accusation and/or Petition to Revoke Probation is filed against respondent during probation, the Board shall have continuing jurisdiction until the matter is final, and the period of probation shall be extended until the matter is final. Upon successful completion of probation, respondent's certificate will be fully restored.
I concur in the stipulation and order.
DATED: April 9, 1992
DANIEL E. LUNGREN, Attorney General
of the State of California
Anthony M. Summers
Supervising Deputy Attorney General
Attorneys for Complainant
DATED: April 22, 1992
John T. Borje
Attorney for Respondent
I have carefully read and fully understand the stipulation and order set forth above. I have discussed the terms and conditions set forth in the stipulation and order with my attorney John T. Borje, Esq. I understand that in signing this stipulation I am waiving my right to a hearing on the charges set forth in the Accusation on file in this matter. further understand that in signing this stipulation the Board shall enter the foregoing order placing certain requirements, restrictions and limitations on my right to practice in the State of California.
VIOLA M. FRYMANN, D.O. Respondent
The foregoing Stipulation and Order, in No. 91-19, is hereby adopted as the Order of the California Board of Osteopathic Examiners. An effective date of June 19, 1992, has been assigned to this Decision and Order.
Made this 19th day of June, 1992.
RICHARD T. PITTS, D .O., PRESIDENT
FOR THE BOARD