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Dr. Leonard Rubin, Cheltenham Township Emergency Medical Services v. Jeremy Fox

November 19, 2012

DR. LEONARD RUBIN, CHELTENHAM TOWNSHIP EMERGENCY MEDICAL SERVICES MEDICAL DIRECTOR AND CHELTENHAM TOWNSHIP EMERGENCY MEDICAL SERVICE, PETITIONERS
v.
JEREMY FOX, RESPONDENT



The opinion of the court was delivered by: P. Kevin Brobson, Judge

Argued: October 17, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE BROBSON

Petitioners Dr. Leonard Rubin (Dr. Rubin), in his capacity as Cheltenham Township Emergency Medical Services Medical Director, and Cheltenham Township Emergency Medical Service (CTEMS) (hereafter Petitioners) seek review of an order of the Department of Health (Department). The Department overturned a decision to withdraw Respondent Jeremy Fox's (Fox) medical command authorization (MCA) and rendered the subsequent restriction of Fox's MCA null and void.*fn1 The Department also ordered all references to the withdrawal and restriction to be removed from Fox's emergency medical service (EMS) records and directed that Fox would not have to report the withdrawal or restriction on any future MCA forms or to any future EMS agency or agency medical director. For the reasons set forth below, we affirm the order of the Department.

At the outset, we note that Section 1003.28 of Title 28 of the regulations outlines both the process by which a decision regarding an EMT-paramedic's (paramedic) MCA is made and the procedure used to appeal a denial of a paramedic's MCA. First, an advanced life support (ALS) medical service director determines whether "to grant, deny, or restrict . . . [MCA] to a[] []paramedic . . . who seeks to provide EMS on behalf of the ALS ambulance service." 28 Pa. Code § 1003.28(a)-(b). In making this determination, the ALS service medical director is required to "document the [MCA] decision and how that decision was made," and "[t]he decision . . . shall affect the [MCA] status of the []paramedic . . . for that ALS ambulance service only." Id. § 1003.28(a). Furthermore, the regulation provides that when an ALS service medical director denies or restricts an individual's MCA, the ALS service medical director must do so "in a written document provided to the individual." Id. § 1003.28(b)(4).

Once MCA is initially granted, the ALS service medical director must review a paramedic's MCA at least annually. Id. § 1003.28(c). In conducting this review, the ALS service medical director must ensure, in part, that the paramedic "has demonstrated competence, as verified by the ALS service medical director, in performing each of the services that fall within the scope of the individual's [MCA]." Id. Once the ALS service medical director has reviewed the paramedic's MCA, he may (1) renew the paramedic's MCA, (2) renew the paramedic's MCA "and require continuing education courses in any field the ALS service medical director deems appropriate,"*fn2 (3) restrict the paramedic's MCA,*fn3 or (4) withdraw the paramedic's MCA. Id.

A paramedic who chooses to appeal a denial of his MCA must submit his appeal to the regional EMS medical director*fn4 within 14 days of the decision. Id. § 1003.28(d). After a hearing, the regional EMS medical director will render his own "written decision affirming, reversing or modifying the ALS service medical director's decision."*fn5 Id. A party that disagrees with the regional EMS medical director's decision has "the right of immediate appeal to the Department." Id. § 1003.28(e). In addressing the appeal, "[t]he Department will review the record before the regional EMS medical director, and if deemed advisable by the Department will hear argument and additional evidence." Id. The Department will then "issue a final decision containing findings of fact and conclusions of law which affirms, reverses or modifies the regional EMS medical director's decision." Id. The Department's scope of review is limited "to a review and determination of whether, at the time of the assessment conducted by the ALS service medical director, the individual possessed the competence to perform all services within the scope of the individual's [MCA] for the ambulance service." Id. § 1003.28(f).

Dr. Rubin serves as the ALS service medical director for CTEMS. (Finding of Fact (F.F.) no. 3.) Fox was hired by CTEMS in January 2009, and on January 10, 2009, Dr. Rubin granted Fox restricted MCA for initial service preceptoring.*fn6 (F.F. nos. 4, 6.) Fox eventually obtained full MCA in late April or early May 2009, but shortly thereafter he was placed on medical leave for approximately six months as the result of a non-work related injury. (F.F. nos. 7-8.) On December 4, 2009, while Fox was on medical leave, he submitted his application for MCA for 2010. (F.F. no. 10.) Fox returned to work on January 20, 2010, under a rotating preceptor arrangement. (F.F. nos. 9, 11.)

On January 29, 2010, Fox responded to an ALS call that involved a woman in a serious car accident. (F.F. no. 21.) Mr. Riley (Riley) and Mr. Smaltini (Smaltini), two CTEMS paramedics, were among the other medical personnel that responded to the call along with Fox. (F.F. nos. 14-15, 21, 23.) Riley served as Fox's preceptor during this incident. (F.F. no. 25). During the course of providing care to the woman, Fox administered two doses of a drug (Versed) to the woman to facilitate intubation, in violation of statewide protocol. (F.F. nos. 29, 32, 35.) The first dose was given without receiving authorization from a medical command physician, but the second dose reportedly was authorized. Id. Although the parties dispute whether someone else suggested to Fox that Fox administer the first dose of Versed, the record does indicate that Riley witnessed Fox administer a drug and that no one prohibited Fox from administering either dose. (F.F. no. 30-31.)

After leaving the hospital, Fox returned to the substation and prepared a patient care report (PCR), which Riley edited. (F.F. nos. 38, 39). Fox, Riley, and Smaltini all submitted an incident report regarding the events of January 29, 2010. (F.F. nos. 40-43.) Dr. Rubin interviewed Smaltini and Riley about the incident, but did not interview Fox. (F.F. nos. 47-48.) On or about February 10, 2010, Dr. Rubin provided a comment to the PCR, stating that the "[o]verall care on th[e] case appear[ed] to be good." (F.F. no. 44.) Dr. Rubin also acknowledged that the initial dose of Versed was made in violation of protocol, but that the approval of the second dosage by Dr. Bates "gave tacit approval [of] the first dose." (Id.)

As a result of his investigation into the events of January 29, 2010, Dr. Rubin required that Riley take an airway course, but he did not restrict Riley's MCA due to his years of service as a paramedic. (F.F. no. 49.) Dr. Rubin initially disciplined Fox by withdrawing Fox's MCA on February 16, 2010, using the MCA form that was initiated by Fox on December 4, 2009. (F.F. no. 50; Reproduced Record (R.R.) 626a.) In filling out the form, Dr. Rubin did not provide any reasoning in support of his decision to withdraw Fox's MCA. (Id. at 636a-637a.)

Dr. Rubin also indicated on the form that Fox had received notice of the withdrawal and a copy of the MCA form. (Id. at 637a.) Dr. Rubin, however, never provided the form or any formal paperwork to Fox indicating that Fox's MCA had been withdrawn; rather, Dr. Rubin assumed that CTEMS would provide a copy of the MCA form to Fox. (Id.) In fact, Fox was verbally notified of his MCA withdrawal by Smaltini and Mr. Hellendall, the EMS director for CTEMS, at a meeting on February 16, 2010. (Id.; F.F. no. 42.) Fox was also notified at that meeting that he had been fired from CTEMS. (R.R. at 637a.)

After Fox's MCA was initially withdrawn, Fox filed a "protective conditional and preliminary appeal" on March 16, 2010, to Dr. Usatch, the Montgomery County Regional EMS Medical Director. (Id. at 626a.) Fox took this action because, as of that point in time, he had still not yet been provided with any paperwork concerning the reason for the withdrawal of his MCA, but he did not want to risk losing his appeal rights. (Id.)

In March 2010, Dr. Rubin attended a Montgomery County Medical Advisory Committee (MAC) meeting, where he spoke with Dr. Usatch and another doctor concerning Fox's MCA. (F.F. no. 51.) As a result of this meeting, Dr. Rubin issued an addendum to Fox's MCA withdrawal, in which he changed the withdrawal to a restriction, and dated ...


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