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ROBERT R. CASSELLA v. COMMONWEALTH PENNSYLVANIA (09/14/88)

decided: September 14, 1988.

ROBERT R. CASSELLA, M.D., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF MEDICINE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, RESPONDENT



Appeal from the Order of the Department of State, Bureau of Professional and Occupational Affairs, before the State Board of Medicine, File Nos. 78-ME-0173 and 78-ME-1796, in the Matter of the Imposition of Disciplinary or Corrective Measures against the License to Practice Medicine and Surgery, License No. MD-027634-L, issued August 10, 1961 to Robert R. Cassella, M.D., dated December 9, 1987.

COUNSEL

Felix J. DeGuilio, with him, Arnold M. Horovitz, for petitioner.

Joyce McKeever, Chief Counsel, Bureau of Professional and Occupational Affairs, with her, John F. Alcorn, Counsel, State Board of Medicine, and Velma A. Boozer, Chief Counsel, Department of State, for respondent.

President Judge Crumlish, Jr., Judge Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 119 Pa. Commw. Page 395]

Robert R. Cassella, M.D. (Petitioner) appeals an order of the State Board of Medicine, Bureau of Professional and Occupational Affairs (Board), revoking his license to practice medicine and surgery in the Commonwealth.

[ 119 Pa. Commw. Page 396]

In 1982, the Board issued a Citation and Order to Show Cause (citation) pursuant to Section 15(a)(8) of the Medical Practice Act of 1974,*fn1 against Petitioner alleging various instances of medical malpractice on his part. The citation was duly served upon Petitioner in Texas, where he was practicing at the time. Petitioner failed to answer the order or to appear at the hearing on May 19, 1983, at which time no testimony was taken.

On July 15, 1983, the hearing examiner issued an adjudication revoking Petitioner's license to practice medicine and surgery in Pennsylvania. Petitioner appealed the hearing examiner's decision to the Board and at the same time requested a new evidentiary hearing and permission to file an answer to the citation. By order dated November 3, 1983, the Board affirmed the decision of the hearing examiner and denied Petitioner's request.

During the proceedings before the hearing examiner, it was noted for the first time that the Board intended to notify the "authorities in Texas" of the adjudication for the purpose of seeing that Petitioner's license to practice medicine in that state is revoked. Finding that the citation failed to notify Petitioner that the Board intended to not only revoke his Pennsylvania license but also to notify the authorities in Texas, we vacated the Board's order and remanded with instructions to the Board to grant Petitioner's request to file an answer to the citation and to present testimony at a hearing.*fn2

[ 119 Pa. Commw. Page 397]

Hearings were held before a second hearing examiner for the Board on six different occasions from January 17, 1986 through November 8, 1986. By order dated April 23, 1987, the hearing examiner suspended Petitioner's license to practice medicine in Pennsylvania for two years from January 1, 1987 through December 31, 1988. The prosecuting attorneys for the Board*fn3 requested reconsideration claiming the two year suspension was too lenient a sanction. On reconsideration, the hearing examiner refused to increase the sanction. The prosecuting attorneys for the Board petitioned the Board to review the sanction imposed by its hearing examiner. The Board did not take additional evidence but adopted the hearing examiner's findings and conclusions. However, by adjudication and order dated December 9, 1987, the Board concluded that the sanction imposed by the hearing examiner was too lenient and revoked Petitioner's license to practice medicine and surgery in Pennsylvania.

Both the Board and the hearing examiner found that Petitioner was guilty of unprofessional conduct pursuant to Section 15(a)(8) of the Medical Practice Act of 1974 and Section 41 of the 1985 Act, in connection with three separate patients. A summary of the evidence presented in each case follows.

[ 119 Pa. Commw. Page 398]

Marlene Baumiller had a history of weight problems*fn4 when she began seeing Petitioner in December of 1975. In April of 1976, Petitioner performed a Mason Gastroplasty on Baumiller during which he stapled 10% of her stomach in order to curb her appetite. During the operation, Baumiller's gallbladder was removed for gallstones. Petitioner also removed Baumiller's spleen during the operation which he testified was oversized and would have prevented him from performing the surgery.*fn5

Drs. Diamond and Lloyd, both experienced surgeons, testified on behalf of the Commonwealth. Based upon their expert medical testimony, both the hearing examiner and the Board found that a spleen should only be removed during such an operation in a life-threatening situation such as where it has been nicked and the patient is hemorrhaging.*fn6 This is because whenever the proximal stomach is operated upon, there is the potential for a blood supply problem to the suture line across the stomach. Tissue will not heal without a good blood supply. When the spleen is removed, several blood vessels to the stomach are severed. This increases the potential for devascularization, which may prevent tissues from healing.*fn7

[ 119 Pa. Commw. Page 399]

The pathological report indicated Baumiller's spleen was lacerated. The Board noted that the spleen was lacerated and that although laceration is the most common reason for removal of a spleen during gastroplasty, this was inconsistent with Petitioner's testimony that the spleen was enlarged and would have prevented him from performing the surgery.*fn8 Further, Petitioner's testimony was inconsistent with his notes which stated that the spleen was removed because it interfered with the closing of the incision. The Board concluded that Petitioner either made a poor decision in removing Baumiller's spleen or lied about the reason for doing so.

The hearing examiner and the Board found that in Baumiller's case Petitioner departed from the accepted standard of care during the post-operative period. During the first several days following surgery, Baumiller ran a significant fever. She also experienced a rapid pulse, rapid and shallow breathing, an accumulation of fluid near her diaphragm and was experiencing pain. Based upon expert testimony, the hearing examiner and the Board found that these are all signs of a leak along the suture line. The Commonwealth's experts testified that Petitioner should have made this diagnosis within the first few days following surgery and should have been especially alerted to this possibility after having removed Baumiller's spleen.

According to Dr. Diamond, an early diagnosis is the most important factor in treating a patient with a leak in the suture line. He stated that Petitioner should have immediately taken action to enhance drainage as a leak within the abdomen can have potentially catastrophic

[ 119 Pa. Commw. Page 400]

    consequences.*fn9 Petitioner instead treated ...


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