LINDA BERGMANN alleges as follows:
1. She is the Executive Director of the Osteopathic Medical Board of the State of California (the "Board") and makes and files this Accusation solely in her official capacity as such.
2. In 1949, the Board issued License No. 20A1569 to Viola M. Frymann, D.O. ("respondent"), to practice as an osteopathic physician and surgeon. Said license expires on July 31, 2001. Disciplinary action was taken against respondent and she was placed on five years probation effective June 19, 1992. Early termination of probation was granted on January 6, 1995.
3. On November 7, 1922, the electors approved an initiative measure known as the Osteopathic Act (Stats. 1923, p. xciii). For convenient reference, the Osteopathic Act is set forth at Business and Professions Code (the "Code") sections 3600 to 3600-5. This Accusation refers to the following sections of the Code:
A. Section 3600-2 of the Code provides that the Board shall enforce those portions of the Medical Practice Act set forth in Article 12, Chapter 5, Division 2, sections 2220 and subsequent of the Code, as to persons holding licenses issued by the Board.
B. Section 2234 of the Code provides that unprofessional conduct includes, but is not limited to, the following:
"(a) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision of this chapter.
"(b) Gross negligence.
"(c) Repeated negligent acts.
C. Section 125.3 of the Code provides that the Board may request the administrative law judge to direct any licentiate found to have committed a violation or violations of the licensing act to pay the Board a sum not to exceed the reasonable costs of the investigation and enforcement of the case.
4. Respondent has subjected her license to disciplinary action under Code section 3600-2, as defined by section 2234, subdivision (b) of the Code, in that she has committed an act or acts of gross negligence as more particularly alleged hereinafter:
A. On or about October 11, 1996, the parents of male infant S.B., who was at the time between 9 and 10 months of age, brought him to the medical office of respondent, known as the Osteopathic Center for Children, located at 4135 54th Place, San Diego, California. Before being seen by respondent, the child's most recent evaluation had been on October 3, 1996. It was conducted by physicians at the UC Davis Medical Group, at Davis, California, the area where the family resided. The infant had a history of vomiting, congestion, rash and lethargy, and had failed to gain sufficient weight commensurate with his age. The Davis physicians' assessment and plan included, among other elements, evaluating the child for some viral etiology and recommending hospitalization to investigate and to treat the diagnosis of "failure to thrive," related to the child's recent decline in weight from 17 pounds 2 ounces to 16 pounds 6 ounces. The parents, however, chose to delay admission of their son until after he had been evaluated by respondent in San Diego.
B. S.B. was seen by respondent on October 11, 16, 18, 21, 25 and 31, and on November 4, 1996. On these dates, respondent recorded the patient's weight to be 17 pounds 5 ounces, 18 pounds 2 '/2 ounces, 18 pounds 2 '/2 ounces, 18 pounds 2 '/2 ounces, 17 pounds 1 O'A ounces, 17 pounds 6 ounces, and 17 pounds 7% ounces, respectively. Prior to or in conjunction with her evaluation and treatment of S.B., respondent reviewed previous medical records of the infant which had been provided to her by the parents.
C. Visit of October 11 1996
(1) Respondent conducted a history and physical of S.B.
(2) Respondent did not document a chief complaint per se.
(3) Respondent did not quantify the patient's history respecting stool nor frequency of spitting, nor duration of those problem conditions.
(4) Respondent did not obtain a complete review of systems.
(5) Respondent did not document a family history.
(6) Respondent measured the child's head circumference and weight, but did not measure his length.
(7) Respondent did not prepare a growth chart to plot growth parameters.
(8) Respondent did not check growth percentiles.
(9) Respondent did not conduct or record any cardiac, lung or abdominal examination.
(10) Respondent did not comment upon the patient's failure to gain weight or failure to thrive per se as a diagnostic category.
(11) Respondent did not record the possible causes of failure to thrive.
(12) Respondent did not conduct a nutritional assessment through diet history or observation.
(13) Respondent did not order an urinalysis, which would have been one of the basic screening tests for failure to thrive.
(14) Respondent did not order a repeat CBC.
(15) Respondent did not order a chemistry 23 panel, including electrolytes, nutritional screens like total protein and albumin, and liver function tests.
(16) Respondent arrived at diagnostic impressions of "I) plagiocephaly, 2) GI dysfunction, 3) PND [believed to indicate postnasal drainage], 4) sacral compression [and] 5) developmentally delayed." Throughout the course of subsequent visits, respondent did not arrive at any further or different diagnostic impressions.
(17) Respondent did not arrive at or document any medical cause and effect between plagiocephaly, postnasal drip, or sacral compression, and a failure of the infant to thrive.
(18) Respondent's diagnosis of 01 dysfunction was a nonspecific description only, and she did not indicate whether malabsorption, dysmotility, or other GI dysfunction was considered as the cause of, or the result of, the infant's failure to thrive.
D. Subsequent Visits
(1) Respondent recorded the weight of S.B. at each visit.
(2) Respondent did not take any additional history of the patient.
(3) Respondent did not conduct a physical examination relevant to the patient's symptoms, which included:
(a) October 18, more spitting up.
(b) October 21 vomiting. Respondent did not comment upon frequency of vomiting or duration, nor did she comment upon the sign of "extremities cold," urine output, blood pressure, or pulse of S.B.
(c) October 25 sleeplessness and vomiting. Respondent did not comment upon the weight loss of 8 ounces since the visit of October 21.
(d) October 28, very little appetite, no vomiting.
(e) November 4 vomited, emaciated, and wrinkled skin. Respondent did not determine urine output, frequency of feedings, pulse, blood pressure, or status of mucus membranes. Respondent did not comment upon the patient's weight loss of 83/4 ounces as compared to October 21.
(4) Respondent's treatment of S.B. simply included:
(a) October 11, osteopathic treatment, without any more specific description; homeopathy, without specifics; and "sleep pattern to change," without explanation.
(b) October 16, various osteopathic manipulation, including "venous sinus technique" and "lymphatic stimulation."
(c) October 21, osteopathic manipulation, including "fascial release," "bilateral scapular, subscapular release," and "release to left of midline."
(d) October 25, osteopathic manipulation, including "bilateral scapular, subscapular release," and "diaphragm release of solar plexus and crura."
(e) October 28, osteopathic manipulation, including "further reflex stimulation to pancreas and adrenals," "profound relaxation with tympanic portion of intraviscous temporal," and "parietomastoid." Respondent prescribed "Carbo Veg 30" for feeding.
(f) October 31, osteopathic manipulation, including "further release of adrenal and thoracic regions," and "SBS decomp." Respondent prescribed "Carbo Veg 30" to be given between feedings.
(g) November 4 osteopathic manipulation, including "abdominal fascial release," "OA decompression," and "tents to zygomae." Respondent prescribed "Carbo Veg 30" to be given daily. Respondent referred S.B. and his family to one "Patricia Kane, Ph.D.," a person based in New Jersey, for "nutritional guidance to overcome his failure to thrive."
(5) On the last visit, November 4, 1996, respondent recommended against hospitalization of the infant for the stated reason that he would be administered pedialyte in a hospital. Instead, respondent stated to the parents that the child needed some "wise nutritional counseling and advice on meeting his biochemical needs." At the time, the infant had sustained an increase of vomiting, had further weight loss, and showed evidence of dehydration.
E. On November 4, 1996, the parents of S.B. terminated his treatment by respondent.
F. On November 6, 1996, the parents of S.B. presented him at the emergency department of UC Medical Center Davis, through which he was admitted to the hospital for evaluation. During the admission, S.B. was found to be dehydrated and to have a severe electrolyte imbalance. A urinalysis showed pyuria, hematuria, and bacteriuria, and his urine eventually grew kiebsiella bacteria. Evaluation of S.B.'s kidneys revealed grade 2 left hydronephrosis, moderate left hydroureter, and mild right distal hydroureter. Intravenous fluids were administered for hyponatremia, hypochioremia and acidosis. Antibiotics were administered for kiebsiella pylonephritis. These treatments and follow up care resolved his failure to thrive.
5. In his examination, evaluation and treatment of S.B., respondent acted with gross negligence, in that she:
A. Failed to examine S.B.'s heart, lungs and abdomen.
B. Failed to recognize that the work up of S.B.'s failure to thrive was incomplete at the time of his arrival under her care.
C. Failed to arrive at a medically correct and medically efficacious work up or evaluational strategy to determine the etiology of S.B.'s failure to thrive, including differential diagnosis and testing.
D. Failed to arrive at medically correct and medically efficacious treatment recommendations and treatment plan.
E. Advised against hospitalization of the patient or administration of pedialyte to him when the patient had increased vomiting, weight loss and dehydration. Respondent's treatment recommendations constitute a failure by respondent effectively to
treat "failure to thrive," in that there are no medically accepted benefits of such treatments for that condition.
6. Respondent has further subjected her license to disciplinary action under Code section 3600-2, as defined by section 2234, subdivision (c), in that she has committed repeated negligent acts as more particularly alleged hereinafter: Paragraphs 4 and 5, and their subparagraphs, ante, are hereby realleged and incorporated by reference as if fully set forth herein. As further allegations:
A. Respondent failed to obtain adequate measurements of S.B.'s growth and to plot him on a growth curve, on or about October 11, 1996.
B. Respondent failed to conduct a comprehensive or medically adequate physical examination for the condition of failure to thrive.
C. Respondent failed to obtain any laboratory evaluation of S.B.
D. Respondent failed to obtain or to document a medically adequate history of the patient at each and every visit.
7. Respondent has further subjected her license to disciplinary action under Code section 3600-2, as defined by section 2234, subdivision (d), in that she has committed an act or acts of incompetence as more particularly alleged hereinafter: Paragraphs 4, 5 and 6 and their subparagraphs, ante, are hereby realleged and incorporated by reference as if fully set forth herein. As further allegations:
A. Respondent failed to recognize and to treat the deteriorating condition of the patient, in a manner consistent with the standard of care, in that she failed to respond to increased vomiting, weight loss, and signs of dehydration.
B. Respondent failed to assess the child's failure to gain weight and failed to diagnose a failure to thrive as a diagnostic entity.
C. Respondent failed to perform a work up of the child's failure to thrive, and in this connection, respondent:
(1) Failed to follow any organized evaluation of nonorganic or organic etiologies of failure to thrive.
(2) Failed to perform a comprehensive medical and physical evaluation of the patient.
(3) Failed to conduct an anthropometric assessment and longitudinal growth monitoring.
(4) Failed to measure the length of the infant.
(5) Failed to place the child's head circumference and weight on standard growth charts for evaluation.
(6) Failed to perform nutritional assessment by diet history or observation.
(7) Failed to order a urinalysis, which is a basic screening test for an organic cause of failure to thrive.
(8) On the last visit, November 4, 1996, respondent recommended against hospitalization of the infant for the stated reason that he would be administered pedialyte.
D. Failed to obtain any laboratory evaluation of S.B., in that she:
(1) Failed to order urinalysis.
(2) Failed to order a repeat complete blood count (CBC).
(3) Failed to order a chemistry panel #23.
(4) Failed to order electrolytes.
(5) Failed to order nutritional screening tests like total protein and albumin.
(6) Failed to order liver function tests.
E. Advised against hospitalization of the patient or administration of pedialyte to him when he had increased vomiting, weight loss, and dehydration.
WHEREFORE, complainant prays that the Osteopathic Medical Board of the State of California hold a hearing on the allegations contained herein and that following that hearing, it:
1. Revoke License No. 20A1569 issued to respondent Viola M. Frymann, D.O.;
2. Order recovery of the Board's reasonable costs of investigation and prosecution, as proved at hearing, pursuant to Code section 125.3;
3. Take such other and further action as it may deem proper.
Osteopathic Medical Board
State of California
OAH No. L-2000010473
Complainant, LINDA J. BERGMANN, Executive Director of the Osteopathic Medical Board of California (Board) of the State of California, by and through BILL LOCKYER, Attorney General of the State of California, by M. Gayle Ashen, Deputy Attorney General, and Viola M. Frymann, D.O. ("respondent"), by and through her attorney John T. Borje, Esq., hereby stipulate as follows:
1. The Board acquired jurisdiction over respondent by reason of the following:
A. Respondent was duly served with a copy of the Accusation, Statement to Respondent, Request for Discovery, Form Notice of Defense and copies of Government Code sections 11507.5, 11507.6 and 11507.7 as required by section 11503 and 11505, and respondent timely filed a Notice of Defense within the time allowed by section 11506 of the Code.
B. Respondent has received and read the Accusation which is presently on file as Case No. 99-18, before the Board. Respondent understands the nature of the charges alleged in the Accusation and that the charges and allegations constitute cause for imposing discipline upon respondent's license to practice osteopathic medicine and surgery which was issued by the Board.
2. Respondent and her counsel are aware of each of respondent's rights, including the right to a hearing on the charges and allegations, the right to confront and cross-examine witnesses who would testify against respondent, the right to present evidence in her favor and call witnesses on her behalf, or to testify, her right to contest the charges and allegations, and other rights which are accorded to respondent pursuant to the California Administrative Procedure Act (Gov. Code, § 11500 et seq.), including the right to seek reconsideration, review by the superior court, and appellate review.
3. Respondent freely and voluntarily waives each and every one of the rights set forth in paragraph 2.
4. Respondent understands that in signing this Stipulation rather than contesting the Accusation, she is enabling the Board to issue the following order without further process.
5. The parties agree that the Stipulation recited herein shall
be null and void and not binding upon the parties unless approved
by the Board, except for this paragraph, which shall remain in
effect. The respondent understands and agrees that in deciding
whether or not to adopt this Stipulation the Board may receive
oral and written communications from its staff and the Attorney
General's office. Communications pursuant to this paragraph shall
not disqualify the Board or other persons from future participation
in this or any other matter affecting respondent. In the event
the Board in its discretion does not approve this settlement,
this Stipulation, with the exception of this paragraph, is withdrawn
and shall be of no evidentiary value and shall not be relied
upon or introduced in any disciplinary action by either party
hereto. Respondent agrees that should the Board reject this Stipulation
and if this case proceeds to \\\
hearing, respondent will assert no claim that the Board was prejudiced by its review and discussion of this Stipulation or of any records related hereto.
6. Respondent admits that she is guilty of violating Business arid Professions Code (Code) section 3600-2, as defined by Code section 2234, subdivision (d), as alleged in paragraphs 4A, 4B, 4C, 5C and 5D of the Accusation, a copy of which is attached to this Stipulation as Exhibit A. All remaining factual and charging allegations of the Accusation are deemed dismissed and of no further force or effect in this proceeding.
7. The parties agree that facsimile copies of this Stipulation, including facsimile signatures of the parties, may be used in lieu of original documents and signatures. The facsimile copies will have the same force and effect as originals.
8. Based upon the foregoing, it is stipulated and agreed that the Board may issue the following as its decision in this case.
IT IS HEREBY ORDERED that Accusation No.99-18 issued to Viola M. Frymann, D.O., is revoked. However, the revocation is stayed and respondent is placed on probation for five (5) years on the following terms and conditions:
(1) Obey all laws: Respondent shall obey all federal, state and local laws, and all rules governing the practice of medicine in California, and remain in full compliance with any court ordered criminal probation, payments and other orders.
(2) File quarterly reports: Respondent shall submit to the Board quarterly declaration under penalty of perjury on the Quarterly Report of Compliance Form, OMB 10 (5/97) which is hereby incorporated by reference, stating whether there has been compliance with all the conditions of probation.
(3) Probation surveillance program: Respondent shall comply
with the Board's probation surveillance program. Respondent shall,
at all times, keep the Board informed of her addresses of business
and residence which shall both serve as addresses of record.
Changes of such addresses shall be immediately communicated in
writing to the Board. Under no circumstances shall a post office
box serve as an address of record.
Respondent shall also immediately inform the Board, in writing, of any travel to any areas outside the jurisdiction of California which lasts, or is contemplated to last, more than thirty (30) days.
(4) Interviews with medical consultants: Respondent shall appear in person for interviews with the Board's medical consultants upon request at various intervals and with reasonable notice.
(5) Cost recovery: The respondent is hereby ordered to reimburse the Board in the amount of $3,800, said sum being the total of the cost of expert review ($800) and of legal prosecution ($3,000), within 90 days from the effective date of this decision for its investigative and prosecution costs. Failure to reimburse the Board's cost of its investigation and prosecution shall constitute a violation of the probation order, unless the Board agrees in writing to payment by an installment plan because of financial hardship.
(6) License surrender: Following the effective date of this decision, if respondent ceases practicing due to retirement, health reasons, or its otherwise unable to satisfy the terms and conditions of probation, respondent may voluntarily tender her certificate to the Board. The Board reserves the right to evaluate the respondent's request and to exercise its discretion whether to grant the request, or to take any other action deemed appropriate and reasonable under the circumstances. Upon formal acceptance of the tendered license, respondent will no longer be subject to the terms and conditions of probation.
(7) Tolling of probation, if out of state/if not practicing: In the event respondent should leave California to reside or to practice outside the State or for any reason should respondent stop practicing medicine in California, respondent shall notify the Board or its designee in writing within ten (10) days of the dates of departure and return or the dates of non-practice within California. Non-practice is defined as any period of time exceeding thirty days in which respondent is not engaging in any activities defined in section 2051 and/or 2052 of the Business and Professions Code. All time spent in an intensive training program approved by Board or its designee in or out of state shall be considered as time spent in the practice of medicine. Periods of temporary or permanent residence or practice outside California or of non-practice within California, as defined in this condition, will not apply to the reduction of the probationary period.
(8) Probation violation/completion of probation: 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 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.
(9) Education course: Within 90 days of the effective date of this decision, and on an annual basis thereafter, respondent shall submit to the Board for its prior approval an educational program or course in pediatric medicine. This program shall be comprised of 25 continuing medical education hours per year, to be completed during each year of probation. This program shall be in addition to the Continuing Medical Education requirements for re-licensure. Following the completion of each course, the Board or its designee may administer an examination to test the respondent's knowledge of the course. Respondent shall provide proof of attendance for both continuing medical education requirements and education course on a yearly basis.
(10) Supervision/Monitoring. Within thirty (30) days of the
effective date of this decision, respondent shall submit to the
Board or its designee for its prior approval a plan of practice
in which respondent's charts shall be reviewed by a Board--certified
pediatrician (hereinafter Supervisor-Monitor), who shall provide
quarterly reports to the Board or its designee. Said Supervisor-Monitor
shall exercise his or her discretion, after or in conjunction
with reviewing respondent's charts, in furnishing supervision
of respondent's diagnostic and treatment plans.
If the Supervisor-Monitor resigns or is no longer available, respondent shall, within fifteen (15) days, move to have a new Supervisor-Monitor appointed, through nomination by respondent and approval by the Board or its designee. We concur in the Stipulation and Order.
BILL LOCKYER, Attorney General of the State of California
M. GAYLE ASKREN
Deputy Attorney General
Attorneys for Complainant
JOHN T. BORJE, Esq.
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. I further understand that in signing this Stipulation the Board may enter the foregoing order placing certain requirements, restrictions and limitations on my right to practice osteopathic medicine and surgery in the State of California. I agree that a facsimile copy of this Stipulation, including a facsimile copy of my signature, may be used with the same force and effect as the originals.
VIOLA M. FRYMANN, D.O.
The foregoing Stipulation and Order, in No. 99-18, is hereby adopted as the Order of the Osteopathic Medical Board of California. An effective date of September 1 , 2000,,has been assigned to this Decision and Order.
Made this 1st day of September 2000.
JAMES M LALLY, D.O., PRESIDENT
FOR THE BOARD