Gabaldoni v. BOARD OF PHYSICIANS QUALITY ASSURANCE

SALMON, Judge. Under Maryland law, the final order of an administrative agency is subject to deferential review by the courts. Carriage Hill Cabin John, Inc. v. Maryland Health Resources Planning Commission, 125 Md.App. 183, 220 , 724 A.2d 745 (1999). Deferential review prohibits a court from substituting its judgment for that of the agency if substantial evidence exists to support the agency’s decision.

Banks v. Board of Physician Quality Assurance, 354 Md. 59, 68 , 729 A.2d 376 (1999). In applying these basic principles, an interesting question arises when an agency decides an issue after an Administrative Law Judge (ALJ) makes factual determinations with which the agency later disagrees. What a reviewing court should do under such circumstance was succinctly summarized by Judge Diana Motz, for this Court, in Department of Health and Mental Hygiene v. Shrieves, 100 Md.App. 283, 302-03 , 641 A.2d 899 (1994): [W]hen an administrative agency overrules the recommendation of an ALJ, a reviewing court’s task is to determine if the agency’s final order is based on substantial evidence in the record. In making this judgment, the ALJ’s findings are, of course, part of the record and are to be considered along with the other portions of the record.

Moreover, where credibility is pivotal to the agency’s final order, [the] ALJ’s findings based on the demeanor of witnesses are entitled to substantial deference and can be rejected by the agency only if it gives strong reasons for doing so. If, however, after giving appropriate deference to the ALJ’s demeanor-based findings there is sufficient evidence in the record to support both the decision of the ALJ and that of the agency, the agency’s final order is to be affirmed — even ²⁶² if a court might have reached the opposite conclusion. This approach preserves the rightful roles of the ALJ, the agency, and the reviewing court: it gives special deference to both the ALJ’s demeanor-based credibility determinations and to the agency’s authority in making other factual findings and properly limits the role of the reviewing court. (Emphasis added).

Earlier in Shrieves , Judge Motz made it clear that there is an important distinction between demeanor-based findings and derivative inferences, i.e., inferences drawn from the evidence itself. Id. at 299 , 641 A.2d 899 (citing Kopack v. National Labor Relations Board, 668 F.2d 946, 953 (7th Cir.1982)). In this regard, the Shrieves Court, 100 Md.App. at 300 , 641 A.2d 899 , quoted Penasquitos Village, Inc. v. National Labor Relations Board, 565 F.2d 1074 (9th Cir.1977), with approval, as follows: The [agency], therefore, is viewed as particularly capable of drawing inferences from the facts.... Accordingly, ... a [reviewing court] must abide by the [agency’s] derivative inferences, if drawn from not discredited testimony, unless those inferences are “irrational,” ... “tenuous” or “unwarranted.” ...

As already noted, however, the [agency], as a reviewing body, has little or no basis for disputing an administrative law judge’s testimonial inferences. Id. at 1079 (internal citations omitted). The central issues that we must decide are two interrelated ones: 1. Whether the factual findings by the ALJ, which were rejected by the Maryland State Board of Physician Quality Assurance (“the Board”) were “demeanor-based” factual findings and, .if so, 2.

Whether the Board set forth strong reasons for rejecting the findings of the ALJ. To answer these questions, it is necessary to carefully review the testimony heard by the.ALJ and to analyze the ALJ’s precise findings and those of the Board. ²⁶³ Our review reveals that in several instances the Board made derivative inferences based on “not discredited testimony” in reaching different factual conclusions than those reached by the ALJ. The derivative inferences utilized by the Board were not “irrational,” “tenuous,” or “unwarranted.” Moreover, to the extent the Board disagreed with demeanor-based findings of the ALJ, the Board set forth strong reasons for doing so. Therefore, we shall affirm the decision of the Board.

I. UNDISPUTED FACTS 1 Dr. Louis Y. Gabaldoni is a board certified obstetrician and gynecologist (OB/GYN). Prior to the disciplinary action that is the subject of this appeal, Dr. Gabaldoni had never been the subject of any complaint to the Board and enjoyed an excellent professional reputation. At all times here relevant, Dr. Gabaldoni had a private practice in Hagerstown, Maryland, and was on the staff at the Washington County Hospital (WCH) — which is also located in Hagerstown. While on WCH’s staff, Dr. Gabaldoni served as chairman of the OB/ GYN department twice and served on the quality assurance, medical records, and ethics committees.

WCH has no residents or house officers. On November 5, 1997, the Board filed charges against Dr. Gabaldoni for alleged violations of several provisions of the Medical Practice Act (“the Act”). The Act is set forth in sections 14-401 et seq. of the Health Occupations article of the Maryland Code (1995 Repl.Vol.). Among other things, Dr. Gabaldoni was charged with having violated section 14- ²⁶⁴ 404(a)(22) of the Act by failing to meet the appropriate standard for the delivery of medical care.

The professional misconduct charges against Dr. Gabaldoni all related to the treatment he rendered to a young Hagers-town woman, who, for confidentiality purposes, will be referred to as Patient A. Patient A came under Dr. Gabaldoni’s care on November 28, 1994, when she was pregnant with her first child. Toward the later phase of her pregnancy, Patient A developed pre-eclamp-sia. 2 On July 8, 1995, at 5:11 p.m., Patient A, with Dr. Gabaldo-ni’s assistance, delivered a healthy baby boy. After delivery, Patient A began to hemorrhage due to uterine atony 3 and retained placental fragments. Patient A, due to hemorrhaging, lost more than 600 cc’s of blood.

Any blood loss over 500 cc’s is considered excessive, especially in persons, such as Patient A, who are already anemic. 4 Tachycardia (abnormally high heart rate) is a symptom of anemia. In an anemic patient, the heart sometimes races in an attempt to adequately oxygenate the body’s organs. Severe anemia, left untreated, can lead to deterioration of the heart muscle, causing decreased pumping ability, which can lead to congestive heart failure. Shortness of breath, fatigue, dizziness, and headache are symptoms often seen in anemic patients.

At 7:35 p.m., which was a little over two hours after her baby was delivered, Patient A expelled a large blood clot, which caused her blood pressure to fall to 67/42. At 8:30 p.m., Dr. Gabaldoni was called at home from WCH. He ordered ²⁶⁵ that hospital personnel caring for Patient A draw blood and do a complete blood count (CBC) the next morning. The standard pre-printed orders, which were already in Patient A’s chart, also called for a CBC in the morning.

Sunday Morning — July 9, 1995 On July 9, at 8:30 a.m., Sheryl Gray, a registered nurse employed at the WCH, phoned Dr. Gabaldoni at home and told him that the hospital lab had reported that Patient A’s CBC results showed that she had hemoglobin levels of 5.4 and a hematocrit of 14.8. These readings indicated a severe level of anemia. More specifically, it showed a lack of red blood cells so critical that the standard of care called for a CBC, including hematocrit and hemoglobin (“HEH”), within four hours of 7:00 a.m., followed by an immediate transfusion if the hematocrit did not rise. 5 At 8:30 a.m., Dr. Gabaldoni ordered that CBC levels be checked again at 5:00 p.m. At 10:35 a.m., however, Dr. Gabaldoni, after again talking with Sheryl Gray, ordered that a CBC be done at noon that day.

He also ordered that Patient A be typed and cross-matched for blood and ordered that her orthostatic blood pressure be checked regularly. 6 Sunday Afternoon — July 9; Monday — July 10 The lab results were reported to the WCH nursing staff at 12:30 p.m. on July 9. Patient A’s hematocrit reading at that point was 14.0. This level was so low that Patient A’s organs were no longer being oxygenated properly. At this hemato-crit level, the standard of care requires that the attending physician, in this case Dr. Gabaldoni, inform the patient that she remained extremely anemic and definitely needed a blood ²⁶⁶ transfusion to avoid a grave risk of serious adverse medical consequences.

The standard of care also required that Dr. Gabaldoni order a blood transfusion as soon as he received the hematocrit reading of 14.0, provided, of course, that Patient A consented. Dr. Gabaldoni did not receive the consent of his patient for a blood transfusion until 9:20 a.m. on Monday, July 10. The main factual questions that confronted the ALJ, and later the Board, was whether Dr. Gabaldoni ever adequately explained to Patient A the necessity of a transfusion at any time on July 9. Dr. Gabaldoni visited Patient A on the afternoon of July 9 and again on the afternoon of July 10.

What he told Patient A during these two visits and whether there were any other visits are issues that the parties vigorously dispute. At 4:30 p.m. on July 10, Patient A experienced slight nausea, shortness of breath, and blurred vision. Less than three hours later, at 7:10 p.m., Patient A’s condition worsened. Her blood pressure was very high (162/104), as was her pulse rate (124 beats per minute) and she needed to lean forward in order to breath.

The nursing staff observed that she was “shaky” and short of breath. There were crackles 7 in her lungs, indicating a build up of moisture in the lungs. On July 10, Brenda Horsch, a registered nurse at WCH, who began attending Patient A, at 7:00 p.m., phoned Dr. Gabaldoni at 7:20 p.m. Dr. Gabaldoni returned Nurse Horsch’s call at 7:30 p.m.

She advised Dr. Gabaldoni of Patient A’s condition. Dr. Gabaldoni ordered a CBC and arterior blood gases to be done as soon as possible. About this same time, the exact hour is not shown, Dr. Gabaldoni telephoned Dr. Dino Delaportas, a board certified infectious disease and internal medicine specialist. Dr. Dela-portas is a colleague and friend of Dr. Gabaldoni.

In this ²⁶⁷ phone conversation, Dr. Gabaldoni explained Patient A’s condition and asked Dr. Delaportas whether Patient A might have a pulmonary embolism or blood clot. Dr. Delaportas told Dr. Gabaldoni that Patient A’s anemia was her main problem, not pulmonary embolism. He also told Dr. Gabaldoni that it was very important that he convince Patient A to have a blood transfusion immediately and recommended that in the interim he give her some Lasix and oxygen. The lab tests that Dr. Gabaldoni ordered at 7:30 p.m. were given to Nurse Horsch at 7:45 p.m. and reported to Dr. Gabaldoni at 8:20 p.m.

The test results showed that Patient A’s hematocrit had fallen to 13.5 and her hemoglobin was 4.7. These were very low H & H levels. 8 The arterial oxygen content of Patient A’s blood was 56, which was also extremely low. Normal arterial oxygen readings should be in the 90’s. When these results were reported to Dr. Gabaldoni at 8:20 p.m., the doctor instructed Nurse Horsch to tell Patient A that she should “strongly reconsider” accepting blood.

Nurse Horsch, at 8:30 p.m., offered Patient A a blood transfusion. She also explained to Patient A and her husband the risks and benefits of the procedure. At that point, patient A and her husband did not immediately agree to a blood transfusion, although they did not flatly refuse one. Instead, they asked Nurse Horsch if they could wait until the respiratory therapist consulted with Dr. Gabaldoni before making a decision.

At 9:20 p.m., Patient A gave her consent to a blood transfusion, and the first transfusion was begun at 9:25 p.m. At the time the blood transfusion started, Patient A was in severe respiratory distress. Late July 10 to 11:00 a.m. on July 13, 1995 The first unit of blood was infused over a period of four hours while Patient A was still in distress and still anemic. The second unit was infused starting at 2:35 a.m. and finishing at 4:05 a.m. on July 11, which was more than twice as fast as ²⁶⁸ the first unit had been infused.

Infusing blood too rapidly can cause an anemic patient’s heart to go into congestive heart failure. At 3:55 a.m. on July 11, Nurse Horsch again called Dr. Gabaldoni at home to report to him that there had been no improvement in Patient A’s condition. Next, at 4:05 a.m., Nurse Horsch once more called Dr. Gabaldoni, reporting that Patient A’s condition was worsening, that she now had crackles in both lungs, front and back, all the way up. Dr. Gabaldoni immediately spoke to one of Nurse Horsch’s supervisors, Loma Thomas, R.N., who had, on her own, called in a respiratory technician to attend Patient A. After talking to Nurse Thomas, Dr. Gabaldoni ordered Lasix and some other medications.

He was reassured by what Nurse Thomas told him about Patient A, and therefore he did not come to the hospital at that point, nor did he consult with a specialist in emergency medicine. Patient A’s condition continued to deteriorate. Nurse Horsch called Dr. Gabaldoni around 4:45 a.m., telling him that Patient A was ashen in color, unresponsive, and sweating. She also told Dr. Gabaldoni that it was urgent that he come to the hospital.

Dr. Gabaldoni, who lives about 20 minutes from the hospital, left immediately and on his car phone spoke to Nurse Thomas at 4:50 a.m. He arrived at the hospital at 4:55 a.m., at which point Patient A had gone into respiratory arrest and was being administered CPR. Patient A was intubated incorrectly by hospital personnel who administered CPR. The intubation tube was entered into her esophagus rather than her trachea, which caused her to be deprived of oxygen for about thirteen minutes.

Patient A was transferred to the intensive care unit of the WCH, and later, on July 11, transferred to the University of Maryland Hospital, where she died on July 13, 1995, at 11:00 a.m. Cause of Death The Office of the Chief Medical Examiner, after reviewing the autopsy findings and viewing all medical records and ²⁶⁹ investigative information, issued a report on September 11, 1995, which concluded that the cause of Patient A’s death was that she had suffered sudden onset of cardiac arrhythmia, which had occurred because of postpartum hemorrhage superimposed on a low hemoglobin level prior to delivery. Her original death certificate was amended to show that the immediate cause of death was cardiac arrhythmia with postpartum hemorrhage and anemia of pregnancy.

II

CONTENTS OF DR. GABALDONFS PROGRESS NOTES When Patient A was transferred to the University of Maryland Hospital on July 11, so were her medical records (“the original records”). Dr. Gabaldoni’s original progress notes read, in material part, as follows: 7/9/95 — VSS (vital signs stable)[,] aferbrile (no fever) [,] HOT [hematocrit] 14.5[sic][,] abdomen soft[.] ... vagina dry (no bleeding)[,] feels dizzy[,] plan[:] CBC ... orthostacics[,] consider transfusion. 7/10/95 — VSS[,] aferbrile[,] HTC 14.5[sic][,] ... vagina dry[,] no dizziness now[,] refuses transfusion[,] continue H & H [hemoglobin and hematocrit testing] ... Two days after Patient A’s death, Dr. Gabaldoni made changes to his progress notes.

The changes were made in the same color ink as the original progress notes — blue ink for the July 9 entry and black ink for the July 10 entry. These changes were made in such a manner that the alterations would not be readily apparent. Under the entry for 7/9/95, Dr. Gabaldoni wrote, “1:00 p.m.” in the margin and added these words: No orthostatic changes in BP (blood pressure) or pulse. The patient still refused transfusion[,] will continue with H/H’s[,] iron, PC and regular orthostatic checks.

Under the entry for 7/10/95, Dr. Gabaldoni (1) added: “A.M.” in the margin, (2) added the words “feels much better” between the phrases “no dizziness now” and “refuses transfu ²⁷⁰ sion,” and (3) added the words “consider transfusion at later date” at the end of the entry.

III

THE ADMINISTRATIVE LAW JUDGE’S CONCLUSIONS Saundra Spencer, the ALJ who heard this case, concluded that Dr. Gabaldoni had appropriately advised Patient A of the need for a blood transfusion oh the morning of July 9, 1995, but Patient A nevertheless refused to have that transfusion until 9:20 p.m. on July 10. She also concluded that, after the July 9 morning visit, Dr. Gabaldoni repeatedly advised his patient to have a transfusion but the advice was consistently rejected up until 9:20 a.m. on July 10. The ALJ opined that, although the Board did establish that Dr. Gabaldoni had failed to properly make additions to his progress notes and did not accurately reflect in those notes the severeness of Patient A’s condition, no sanctions were warranted. She noted that, since Patient A’s death, Dr. Gabaldoni had already taken continuing medical education courses concerning appropriate record keeping.

As a consequence, no sanctions should be imposed due to his record keeping lapses because, if sanctions had been imposed, the sanction would have been duplicative, i.e., would have required him to attend the medical education classes he had already attended.

IV

THE BOARD’S CONCLUSIONS The conclusions of the Board were as follows: Dr. Gabaldoni’s postpartum treatment of Patient A violated the standard of care. Dr. Gabaldoni should have been aware that this anemic patient who lost an abnormally high amount of blood at delivery required closer monitoring of her blood count than the normal patient. He did not order any special or more frequent monitoring at first. When the first postpartum hematocrit results of 14.8 came back at 8:30 a.m. on July 9th, he should have realized that these results showed that ²⁷¹ Patient A’s blood count was critically low and she was at risk of cardiac decompensation, and he should have ordered a transfusion at that point.

At the very least, Dr. Gabaldoni should have acted at once when the second hematocrit reading of 14.0 was recorded at 12:00 noon on July 10th [sic]. Patient A was at this point not oxygenating her organs, and any competent physician should have recognized the crucial need for a blood transfusion. Dr. Gabaldoni did not order a blood transfusion and did not even order further H & H testing until 7:30 p.m. on the following day. During this period, Patient A frequently displayed many of the symptoms of severe anemia, including tachycardia, shortness of breath, vomiting and dizziness.

Dr. Gabaldoni did not request that any nurse offer Patient A a blood transfusion until after 8:20 p.m. on July 10th, after cardiac decompensation had begun and Patient A was in respiratory distress. Dr. Gabaldoni had no conversations with Patient A or her family in which he informed her that she definitely needed a blood transfusion to avoid the risk of serious adverse medical consequences. Dr. Gabaldoni also breached the standard of care when, after being repeatedly informed, between 7:20 p.m. on July 10th and 4:05 a.m. on July 11th, of Patient A’s worsening laborotory [sic] results, respiratory distress and rapidly decompensating condition, he failed to assure that a physician, either himself or a consultant physician, was available in person to manage her care at this critical point. The Board has consistently held that the creation of an accurate medical record is a part of the standard of care required of all physicians.

The records which Dr. Gabaldoni created with respect to July 9th and July 10th violate this standard of care. The records were inaccurate in that they recorded an incorrect hematocrit level, because the time (“AM.”) was inaccurately recorded for July 10th, because the record for both dates incorrectly reported that continued H & H testing had been ordered, and because the record of July 9th incorrectly stated that Patient A refused ²⁷² a transfusion. (See discussion at Section III of this decision.) The creation of these records also violated the standard of care because Dr. Gabaldoni added notations to these records two days after Patient A’s death in a way which did not indicate that these additions were added later. The standard of care requires that later additions be dated as to when made, and clearly shown as later additions.

Dr. Gabaldoni not only failed to note that the additions were added later; he also used two different pens, a blue pen which matched the blue ink on the original note concerning July 9th and a black pen which matched the black ink used on the original note concerning July 10th. In addition, for July 10th, Dr. Gabaldoni’s additions were interspersed throughout the note, from beginning to end, in such a way that it would be natural to mistake the record as one which had been written all at one time. This type of record-keeping violates both the letter and the spirit of the standard of care enunciated above. And the changes made are obviously of critical significance.

Based on these conclusions, the Board found that Dr. Gabal-doni had “failed to meet the appropriate standard for delivery of medical care,” within the meaning of section 14-404(a)(22) of the Act. The Board issued Dr. Gabaldoni a reprimand for his violation. V. THE TRIAL COURT’S RULING Dr. Gabaldoni filed, in the Circuit Court for Baltimore City, a petition for judicial review. The matter was assigned to the Honorable David Ross.

On March 16, 2000, Judge Ross ruled that the Board did not abuse its discretion in overruling the decision of the Administrative Law Judge.

VI

ISSUES PRESENTED As phrased by appellant, the issues presented are: I. Whether the decision of the lower court was erroneous because it relied on an improper standard of review. ²⁷³ II. Whether the Board gave appropriate deference to, and strong reasons for, overturning the credibility-based findings of the Administrative Law Judge. We shall not address the first issue raised by appellant because, in an administrative appeal, it makes no difference whether or not the trial judge applied the correct standard for review. “Our role in reviewing the decision of an administrative agency is precisely the same as that of the circuit court.” Consumer Protection Div. v. Luskin’s, Inc., 120 Md.App. 1, 22 , 706 A.2d 102 (1998), rev’d on other grounds, 353 Md. 335 , 726 A.2d 702 (1999). We, therefore, do not evaluate the findings of fact and conclusions of law made by the circuit court; instead, “[w]e review the administrative decision itself, ... and not the decision of the trial court.” Id.; see also, Giant v. Department of Labor 124 Md.App. 357, 363 , 722 A.2d 398 (1999).

VII

ANALYSIS A close reading of the decision of the Board, quoted supra, shows that the Board found that Dr. Gabaldoni breached the standard of care in several distinct ways. For convenience, we shall separately label each alleged breach. Breach A: Immediately after Patient A delivered her baby, Dr. Gabaldoni should have ordered closer monitoring of Patient A than of a normal patient because she was severely anemic and had lost a great quantity of blood. Moreover, he should have ordered that her H & H be tested regularly.

Although on the morning of July 9 he did order an H & H test for noon of that day, he failed to order a further H & H test until 7:30 p.m. on July 10. Breach B: Between 7:30 p.m. on July 10 and 4:05 a.m. on July 11, he failed to make sure that either he or a “consulting physician” was available in person to manage Patient A’s care. Breach C: Two days after the patient died, he added notations to the records in such a way that it would not be clear to a reader of the progress note that additions had been made. ²⁷⁴ Breach D: Dr. Gabaldoni created inaccurate medical records inasmuch as the records inaccurately recorded the he-matocrit on two occasions. Breach E: He incorrectly reported twice that continued H & H testing had been ordered.

Breach F: His progress notes incorrectly stated that Patient A refused a transfusion. Breach G: He had no conversation with Patient A (or her family) in which he informed the patient that she definitely needed a blood transfusion “to avoid the risk of adverse medical consequences;” he should have given her this advice, at the latest, on the afternoon of July 9. In his brief, Dr. Gabaldoni argues: The Board blatantly rejected the ALJ’s credibility findings on the key issues that form the basis of the reprimand. Whether the [ajppellant told the patient that she needed a blood transfusion, whether he personally attended the patient on July 9 and July 10, and whether his records accurately reflected what was done, are credibility issues ... that go to the very center of the controversy in this case.

This argument is somewhat misleading. It implies that the only “big issues” upon which the Board based its decision to reprimand Dr. Gabaldoni were the ones concerning what and when Dr. Gabaldoni told Patient A about her need for a blood transfusion. But the breaches of the standard of care that we have labeled A, B, C, D, and E also formed the basis of the reprimand. None of those adverse findings had anything whatsoever to do with what Dr. Gabaldoni told Patient A. To reach the conclusion that Breaches A-E occurred, the Board did not have to make credibility determinations.

The Board simply utilized its collective expertise and enunciated the appropriate standard of care; the Board determined, based on facts shown in Patient A’s chart, that Dr. Gabaldoni breached ²⁷⁵ the standard of care. 9 Breaches F and G do involve, at least to some extent, rejection of the ALJ’s credibility assessments of certain witnesses by the Board. Technically speaking, whether Breaches F and G occurred depends, in large part, upon what Dr. Gabaldoni did, and what he advised Patient A and her family on only one date, viz, July 9. But, to a minor degree, as to Breach F (the record keeping issue) the Board’s findings involve activities up until the afternoon of July 10. We will therefore discuss the difference between the conclusions of the ALJ and those of the Board as to what transpired on both July 9 and 10.

A. July 9, 1995 Dr. Gabaldoni testified that on the morning of July 9, sometime before 10:30 a.m., he had an extensive conversation with Patient A, in the presence of her husband, about the need for an immediate blood transfusion. According to Dr. Gabal-doni, he told the couple that Patient A was in a dangerous situation and urgently needed an immediate transfusion. He did not, however, tell her that she might die without a transfusion because he did not want to unduly frighten her. According to Dr. Gabaldoni, both Patient A and her husband had a fear of AIDS and other blood-borne diseases; this fear caused Patient A to refuse to have a blood transfusion.

Patient A’s husband denied that Dr. Gabaldoni either talked to his wife or even came into Patient A’s room on the morning of July 9. Patient A’s mother testified that she talked to her daughter on the phone repeatedly, on July 9 and 10, and sat with her for five hours on July 10. According to Patient A’s mother, her daughter told her that she had not spoken to Dr. Gabaldoni at any time concerning a transfusion. Sheryl Gray, R.N., testified that she worked a sixteen-hour shift on July 8 and 9, 1995, at the WCH.

Her shift started at ²⁷⁶ 7:00 p.m. on July 8 and she finished about 11:00 a.m. on the 9th. During that shift, Patient A was her only patient. At 8:30 a.m. on July 9, Nurse Gray phoned Dr. Gabaldoni and told him of the lab results from the 7:00 a.m. H & H test.

Dr. Gabaldoni ordered an H & H test be repeated at 5:00 p.m. that day. Shortly after she found out about the 14.8 hematocrit result, Nurse Gray had a conversation with Patient A and her husband in which she told them that because the blood count was low, Patient A should not “be surprised if Dr. Gabaldoni comes in and offers ... [you] a blood transfusion.” At that point, Patient A’s husband asked some questions about a transfusion, which Nurse Gray characterized as “normal conversations about blood,” i.e., questions were asked about the source of the blood and about whether the patient was likely to contract HIV or hepatitis from a transfusion. Nurse Gray testified that Patient A did not refuse a blood transfusion at that point because none was being offered; Nurse Gray simply was alerting the couple that a blood transfusion might be suggested by Dr. Gabaldoni. Nurse Gray further testified that during the first four hours of the shift, she never left Patient A’s room because Patient A and her baby needed so much care.

Thereafter, she was in the patient’s room “almost my entire shift.” Nurse Gray did not recall ever seeing Dr. Gabaldoni in Patient A’s room during her shift. At the end of her 16 hour shift, on July 9, when she was reporting to Lucille Ecker, the nurse who was about to take over for her, Nurse Gray recalled seeing Dr. Gabaldoni “in the nurse’s section in front of the chart rack as he [Dr. Gabaldoni] was coming in” and she was about to leave. At that point Nurse Gray gave Dr. Gabaldoni an oral report about her care of Patient A over the previous sixteen hours. When she concluded her report, Dr. Gabaldoni changed his previous order and directed that a CBC be obtained at 12 noon — rather than at 5:00 p.m.

During this conversation, Nurse Gray and ²⁷⁷ Dr. Gabaldoni did not discuss the possibility of Patient A having a blood transfusion. When Nurse Gray was cross-examined by Dr. Gabaldoni’s counsel about when she had first seen the doctor on the morning of July 9, Nurse Gray said: At the time he would have been coming through, he was coming around into the nurses’ station, I was entering from the other end. Our nurses’ station has two entrances, one from the front of the hall and one from — I mean towards the front of the hall and one towards the back that goes around like a semicircle. So, I came from the patient’s room, which is beyond the nurses’ station, up towards the front; he was coming in towards the middle.

We would have been right in front of the chart rack. Nurse Ecker, who came on duty at 7:00 a.m. on July 9 and worked until 7:00 p.m. that evening, took over as Patient A’s nurse at 11:00 a.m. She was in Patient A’s room “numerous times” between 11:00 a.m. and 7:00 p.m. but never saw Dr. Gabaldoni in Patient A’s room during her shift. Patient A’s husband, however, was present throughout — according to Nurse Ecker.

Nurse Ecker recalled that she saw Dr. Gabaldoni at the nurses’ station at the hospital about 11:00 a.m. on the 9th. In this regard, she testified as follows: Dr. Gabaldoni had been in making his morning rounds and was there at the time of report. You know, in fact, I don’t know whether he was at the desk right at that time when Sheryl [Gray] was reporting to me, but he did turn to me and say that he would be calling me for the results of the blood work as well as the orthostatic blood pressures. Q [COUNSEL FOR THE BOARD]: When was that?

A: That was approximately around 11:00, in that vicinity, because I got the report [from Nurse Gray] probably about quarter of 11:00 — to 11:00, in that time span there. Sheryl was due to go off at 11:00. Later, however, Nurse Ecker made it clear that she did not see Dr. Gabaldoni making his rounds because she had been ²⁷⁸ busy with [her] patients and, at eleven o’clock, “they were giving me more patients.” In her words, Dr. Gabaldoni “could have been back [in] the hall for the past half-hour [before eleven o’clock], and I maybe would not have seen him.”