PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           1 August 2001
	DOCKET NUMBER:   AR1999032414

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr.  Melvin H. Meyer		Member	
	Mr. Ernest W. Lutz 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                       records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  In a DD Form 149, Application for Correction of Military Record, dated 8 October 1999, the applicant requests that he be reinstated to the General Surgical Residency Program at the Brooke Army Medical Center (BAMC) and that any mention of his termination from that program be removed from his service record.  In a 4 October 2000 memorandum to the Board, he further requests that an Officer Evaluation Report (OER) for the period 980701-990402 be removed from his Official Military Personnel File (OMPF) and that he be reinstated on the lieutenant colonel promotion selection list with the appropriate promotion date of rank and all back pay and allowances.  In his rebuttal to an advisory opinion provided to the Board by the Army Review Boards Agency legal advisor, he asks that a plastic surgery fellowship that he lost because of the termination of his surgical residency be reinstated.  Finally, in an electronic mail (email) to the staff of this Board, he asks that an adverse statement about him be removed from the National Practitioner Data Base (NPDB).

3.  The applicant states that he was terminated from the 5-year General Surgical Residency Program within 3 months of his completion date; that his termination resulted from his treatment of a terminally ill patient with a non-lethal, sub-paralytic dose of a muscle relaxant (rocuronium) in order to alleviate symptoms of gasping and facial contortions; that he properly recorded his actions in medical records and freely discussed them with his superiors; that his Program Director (and rater) accused him of murder and subjected him to a flawed investigative process that was driven by personal animus; that the Hospital Education Committee deprived him of his due process rights and dismissed from the General Surgical Residency Program; and that he was given an adverse change-of-duty OER which resulted in his removal from the lieutenant colonel promotion list.  Finally, he adds that the actions of the Hospital Education Committee caused him to lose a plastic surgery fellowship that he had been awarded.

4.  The applicant’s military records show that he was commissioned a Second Lieutenant in the Medical Services Corps upon graduation with a BS degree in chemistry from Fordham University on 26 May 1985.  He applied for and was granted a delay in entry on active duty in order to pursue a graduate degree at Georgetown University and Creighton University.  In 1988, he received an MS degree in biochemistry and, in 1992, he received a Ph.D. in biomedical science and an MD degree.  He entered on active duty as a Captain, Medical Corps, in June 1992 and served a 1-year general surgery internship at William Beaumont Army Medical Center, Fort Bliss, Texas, followed by a 2-year assignment as a Brigade Surgeon with the 82nd Airborne Division, Fort Bragg, North Carolina.  While at Fort Bragg, he earned a Parachutist Badge, an Expert Field Medical Badge, and also completed the Jumpmaster Course.  He was promoted to major on 1 October 1993.  In June 1995, the applicant began a General Surgical Residency Program at BAMC, Fort Sam Houston, Texas.  This was a 5-year program (counting the 1-year general surgery internship).

5.  In early 1999, the applicant was approximately 9 months through his fifth and final year of surgical residency when, on the evening of Wednesday, 17 February 1999, he and a staff surgeon operated on a 66-year old female patient for a suspected bowel obstruction.  Instead of an obstruction, the surgeons found massive bowel infarction, a nonreversible, fatal condition.  The staff surgeon notified the family that the patient’s condition was terminal and, in accordance with the patient’s living will and the desires of the family, the decision was made to not treat the condition surgically.  The patient was closed and taken intubated to the Surgical Intensive Care Unit where the applicant was instructed to keep the patient comfortable and to try to extubate her per the wishes of the family.  The staff surgeon then left the hospital.

6.  The patient was sedated with large doses of narcotics (morphine, fentanyl, and versed) and the applicant was able to extubate her.  Following extubation, the patient began displaying agonal respiration characterized by gasping and facial grimacing.  This was distressing to the family and the applicant was asked to do something for the patient.  A third-year surgical resident, who had drawn a dose of rocuronium in anticipation of having to reintubate the patient, gave the applicant the syringe.  The applicant then computed an intubation dose of 50mg based on the patient's body weight, but administered 5mg of the drug and the patient’s display stopped.  Several minutes later, the patient died.  The applicant recorded his actions on DA Form 4256, Clinical Record – Doctor’s Orders.

7.  On Thursday, 18 February 1999, the Program Director, General Surgical Residency (a lieutenant colonel), approached the applicant and asked him whether he had administered rocuronium to the dying patient.  When the applicant acknowledged that he had, the Program Director accused him of murder.  Later, the staff surgeon spoke with the applicant and asked him whether he was having any problem with what he had done and whether he would ever do it again.  His alleged answer was, “No, not as a resident.”

8.  On 22 February 1999, the Program Director notified the applicant in writing that a commander's inquiry would be conducted into the events surrounding the death of the elderly female patient.  The applicant was also instructed that he was to be placed on probation and relieved of all clinical duties until the inquiry was completed.  The applicant acknowledged receipt of this information.  At a 24 February 1999 meeting of the Executive Subcommittee of the Hospital Education Committee, the applicant was formally placed on probation pending completion of the commander's inquiry.  The applicant acknowledged notification on 3 March 1999.

9.  The commander's inquiry, which was accomplished under the provisions of Army Regulation 15-6, was concluded on 3 March 1999.  The investigating officer found that:  (1) the applicant "by his own admission administered 5mg of rocuronium bromide to [patient] minutes before her death; (2) this act hastened the patient's death; and (3) "[applicant] exercised extremely poor judgment."  The investigating officer recommended that the applicant be terminated from the general surgical residency program and that his medical license be suspended or revoked.  The applicant submitted a rebuttal to the commander's inquiry.  After considering the applicant's rebuttal, the Commanding General approved the investigating officer's findings and recommendations on 9 March 1999.

10.  On 10 March 1999, the Program Director submitted a request to the Hospital Education Committee to terminate the applicant's general surgical residency training.  The committee convened on 24 March 1999.  The Program Director presented the case in support of termination.  Following the Program Director's comments, the applicant gave testimony before the committee.  After hearing from the applicant and other key witnesses, the committee voted 25 to 5 (with 2 abstentions) to terminate the applicant from the program.  The committee's recommendation was forwarded to the Commanding General who conducted a personal interview with the applicant.  On 31 March 1999, the Commanding General terminated the applicant's general surgical residency.  The applicant was permitted to appeal his termination to the Office of The Surgeon General (OTSG) of the Army.  Following a review, The Surgeon General declined to reverse the termination decision.

11.  On 5 August 1999, the applicant's rater and senior rater completed his OER for the period 980707-990402.  In Part IVa, Army Values, the rater indicated that the applicant did not display courage (a4), nor was he loyal (a7).  In Part IVb, Leader Attributes/Skills/Actions, the rater indicated that the applicant did not demonstrate conceptual skills (b2.1) and did not employ sound judgment (b3.2), did not utilize evaluation tools to facilitate improvement (b3.6), or foster an ethical environment (b3.8).  In Part V, Performance and Potential Evaluation, the rater checked the block for "OTHER" in lieu of "OUTSTANDING PERFORMANCE, MUST PROMOTE" or "SATISFACTORY PERFORMANCE" or "UNSATISFACTORY PERFORMANCE."  In his narrative, the rater stated that the applicant was a "controversial resident" who had "recurrent problems with acting too independently and failing to keep his staff supervisors adequately informed of his actions."  He added that the applicant's behavioral pattern "culminated in an event considered unethical, unprofessional, and illegal [and] was dismissed from the training program . . . and reassigned."  The senior rater added that the applicant "lagged his peer group in academics [and] successful completion of his residency was stymied by his tendency to make decisions independent of his immediate staff supervisor(s)"  The senior rater rated the applicant below center of mass.

12.  On or about 14 June 2000, the Army reported the applicant to the National Practitioner Data Bank (NPDB) for unprofessional conduct and his subsequent removal from the general surgical residency program.  The NPDB is a central repository of information on physicians, dentists, and other health care practitioners.  Established and maintained by the US Department of Health and Human Services, it contains reports on medical malpractice payments, adverse licensure actions, adverse clinical privilege actions, and adverse professional society membership actions.

13.  On 26 September 2000, the US Total Army Personnel Command (PERSCOM) notified that applicant that his name had been removed from the FY1999 Lieutenant Colonel, Medical Corps, Promotion List.

14.  On 6 December 2000, the OTSG notified the applicant that, upon further review, the decision to terminate him from the General Surgical Residency Program at BAMC had been modified and he would be afforded the opportunity to complete his surgical residency at Walter Reed Army Medical Center (WRAMC), located in Washington DC.  The applicant accepted the opportunity.

15.  In the processing of this case, an 83-page advisory opinion was obtained from the Army Review Boards Agency Legal Advisor which basically stated that the applicant's actions in administering a paralytic drug to the dying patient constituted gross negligence and/or willful misconduct.  His termination from the General Surgery Residency Program was, therefore, lawful and equitable.  However, the opinion found that the subject OER contained inaccuracies that caused the applicant's removal from the lieutenant colonel promotion list and was, thus, unjust and inequitable.  The opinion recommended denial of the applicant's requests for reinstatement of his surgical residency and plastic surgery fellowship, but approval of his requests to remove the subject OER and reinstate him on the lieutenant colonel promotion list.  The applicant was provided an opportunity to respond to the advisory opinion and did so.  In an 
18-page rebuttal with 30 enclosures, he argued that he did not exhibit willful misconduct or act with gross negligence.  He pointed out that he administered a sub-paralytic dose of rocuronium in a slow intravenous drip (infusion as opposed to bolus); that giving increased doses of narcotic drugs would have caused respiratory depression or arrest; that he was not obligated to communicate with the staff surgeon in this matter; and that he did nothing to hide his actions in the matter.  He added that The Surgeon General, after a complete review of the matter, reinstated him in the General Surgical Residency Program.

16.  Following a review of the applicant's rebuttal to the legal advisory opinion, the legal advisor issued a 10-page revision to his opinion in which he recommended further relief.  While still maintaining that the evidence supported that the applicant engaged in willful misconduct and/or gross negligence, the decision by The Surgeon General to allow the applicant to complete his surgical residency had the de facto effect of voiding the termination action in favor of a probationary period.  This action completely invalidated the subject OER that was rendered upon his "termination" from the surgical residency program and reassignment to instructor duties.  It also nullified the applicant's removal from the lieutenant colonel promotion list.  However, the extension of the applicant's surgical residency through his placement in a probationary status effectively nullified the awarding of his plastic surgery fellowship.

17.  The applicant was afforded the opportunity to respond to the revised advisory opinion.  In a 9 May 2001 response, he stated that his conduct in the care and treatment of the dying patient did not result in his placement on probation.  He provided a letter from the Program Director, General Surgical Residency at WRAMC stating "The reason for his being on Probation is secondary to the two-year period of time between his prior general surgery training and his coming to my program."  He also provided documentation to show that his performance on standardized, American Board of Surgery examinations placed him well above the acceptable national percentile score.  He again requested the Board restore his plastic surgery fellowship.

CONCLUSIONS:

1.  The applicant's request that he be reinstated to the General Surgical Residency Program at BAMC is moot, having been resolved by The Surgeon General's offer, and the applicant's acceptance, of a plan to fulfill his surgical residency at WRAMC.

2.  The Surgeon General's offer to reinstate the applicant in the General Surgical Residency Program had the practical effect of voiding the termination action against the applicant and replacing it with a period of probation.  The Board therefore believes that any mention of the termination action should be removed from the applicant's file and any other repository (i.e., NPDB) to which it may have been reported.

3.  Since the subject OER was written upon the applicant's termination from the General Surgical Residency Program, and since The Surgeon General has, in essence, changed that termination to probation, the OER is invalid and should be removed from the applicant's OMPF.  Furthermore, the applicant should be reinstated on the lieutenant colonel promotion list and promoted to that rank on the appropriate date, with all due back pay and allowances.

4.  The Board finds that the applicant's conduct in the death of the terminally ill patient resulted in his placement on probation in the General Surgical Residency Program and effectively caused the loss of his plastic surgery fellowship.  The Board sees no injustice or inequity in this matter; the applicant is not entitled to relief in this area.

5.  In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

	a.  Voiding the action of the Executive Subcommittee of the BAMC Hospital Education Committee that terminated the individual concerned from the BAMC General Surgical Residency Program, and reinstating him in the General Surgical Residency Program in a probationary status;

	b.  Ensuring that no record of the termination action remains in the records of the individual concerned, or any other repository/data base, including the National Practitioner Data Base, to which such record may have been sent;

	c.  Voiding the OER for the period 980701-990402 and entering an appropriate nonprejudicial statement in the OMPF of the individual concerned to explain the nonrated period; and

	d.  Reinstating the individual concerned on the Lieutenant Colonel, Medical Corps, FY99 Promotion Selection List and promoting him to lieutenant colonel on the appropriate date of his scheduled promotion, with all back pay and allowances due him.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__JH____  ___MHM_  __EWL__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____June Hajjar______
		        CHAIRPERSON

INDEX

CASE ID	AR1999032414	
SUFFIX		
RECON		
DATE BOARDED	20010801	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	DASA	
ISSUES         1.	111.0005	
2.	131.0200	
3.	134.0000	
4.		
5.		
6.