.. MOE all AUSTIN CASTRO ADMIN FAX lio. 5124200397 P. 001 March 10, 2007 Mr. Joel M. Androphy Berg Androphy 3704 Travis Street Houston, Texas 77002. Re: Case No. United States ex rel. Riley St. Luke Episcopal Hospital, at at; United States District Court, Southern District of Texas, Houston Division Dear Mr. Androphy, I have been retained by your-law ?rm as a consulting expert in the above-styled case - beginning on April 11, 2007. My compensation is $500 per hour. I have reviewed the documents, which your of?ce has provided to me. These include: 1. Medical records of patients numbered 1108146, 0524725, 1300735, 1251716, and 1153455 Plam??-Relator?s Second, Third and Fourth Amended Complaints Excerpts of Branislav Radovancevic?s personnel ?le St. Luke?s Episcopal Hospital (?St Luke?s?) and Texas Heart Institute Cardiac Transplant Protocols 5.- St. Luke?s Motion to Dismiss ?led on May 15, 2007 6. St. Luke?s Policy on Physician Orders 7. St. Luke?s Medication Policy and Standards 8 9 1 ewe . St. Luke?s Cardiac Physician Orders . Excerpts of St. Luke?s Medical Sta? Rules and Regulations 0. June 23, 1995 St. Luke?s Memorandum on Foreign Physicians and the Use of the Initials MD. 11. Depositions of Cathy L. Johnson, R.N., Joyce A. Riley, R.N., Hope Nienhuser, RN. 12. Multiple transcripts of Tapes 1 through 14 between Joyce Riley and various individuals 13. Depositions of Edward K. Massin, M.D., 0.1-1. Frazier, M.D., Ronald Bunger, and Lois Carpenter 14. Federal Rules of Civil Procedure governing experts 15. Anne Marie Mooney?s Expert Report dated January 31, 2008 Based on my training, education and experience as a Board Certi?ed anesthesiologist, attomey, medical practice Chief Executive Of?cer, former Deputy Executive Vice? President for Licensure of the Federation of State Medical Boards of the United States and former Executive Director of the Texas Medical Board (formerly the Texas State Board of Medical Examiners I am familiar with the licensure requirements for a physician in the state of Texas, what constitutes the practice of medicine in Texas, and what may be considered the unlicensed practice of medicine in Texas. This report represents my opinions as determined by my review of the above records as well as my it 18:07 AM AUSTIN CASTRO ADMIN FAX No. 5124200397 P. [102 experience and background. It is my opinion that Branislav Rad'ovancevic did not engage in the unlicensed practice of medicine as de?ned under the Texas Medical Practice Act nor did any of the physicians whose depositions I have read assist in the unlicensed practice of medicine. In addition, I ?nd no evidence of improper delegation of duty by any of the physicians involved. I believe the following case was in the last four years. I was a testifying expert in a case involving an ophthalmologist in Harris County concerning the Texas State Medical Board requirements for outpatient anesthesia monitoring in an Ophthalmologist?s of?ce. I believe that the ephtlialmologist?s name was Dr. Michael. Bloome. My CV. is attached TSBME Investigation in the Unlicensed Practice of Medicine I can neither con?rm nor deny whether an investigation occurred as regards Branislav Radovancevic or any associated physicians. Had a complaint come to TSBME about the unlicensed practice by an individual, an investigation would have been opened. An RN. investigator would have been assigned this case to investigate. After completion of the investigation, the investigator?s determination wduld be presented to the Disciplinary Committee of the TSBME composed of physicians and public members who would then make a determination as to validity of the allegation. Ifthey believed that the unlicensed practice of medicine was occurring, any physician involved would have been brought before the in the capacity of an Informal Settlement Conference. That physician would then have been disciplined for improper delegation of duty or improper delegation of licensure. The person committing the unlicensed practice would have been referred to a local District Attorney for prosecution of a third degree felony if patient harm had occurred. Professional Status of Branislav Radovancevic Branislav Radovancevic completed the requirements for his ?medical doctor? degree from the University of Belgrade on lune 29, 1978. He completed a three-year fellowship in cardiovascular surgical research laboratories at St. Luke?s. He was unable to pass the Educational Commission for Foreign Medical Graduates examination for licensure. He consistently participated in extensive cardiovascular transplant research activities at St. Luke?s and TI-II ?om the time he completed his research fellowship obtaining a recognized status as an expert in transplant rejection and left ventricular assist mechanisms. During this time, he was able to co?author 95 medical abstracts, 91 original articles, 14 book chapters, and 108 presentations and attendance at prestigious national and international scienti?c meetings. Having spent all of his time in this one important endeavor, it is unlikely that he could spend the time to study the basic science requirements for the passage of his ECFMG. He had taken these basic science courses at least ten years earlier. In addition, during this time period there were very few review courses available for foreign medical grad?ates to help them in this endeavor. ?It was not 10:07 AM AUSTIN CASTRO ADMIN FAX lit. 5124200307 003' . uncommon for over ?fw percent of foreign graduates to be unable to pass the ECFMG exam. Branislav Radovancevic?s Participation as a Member of the Transplant Team Clinic research involves the participation of many individuals to provide optimum care. The lead researcher cannot perform all the necessary activities individually. They must be able to delegate to other quali?ed individuals functions that can be accomplished within their education and ability. The Texas Medical Practice Act allows for delegation of duty to an individual within the scope of his or her knowledge, education, experience and ability. The act allows for a broad range of delegation of duty so as not to restrict the quality practice of medicine. Branislav Radovancevic had unique knowledge and skills as related to the rejection of cardiac transplants and left ventricular support of the failing heart. As a team member, he helped relay that information to the decision-making physicians for optimal patient care. He also provided guidance to residents and fellows in this regard and helped answer questions as related to Speci?c patients. It is common in medical education for scientists to provide the hull: of the training of physicians. The ?rst two years of medical school almost all of the education is provided by basic scientists, not by licensed physicians. There is no prohibition of which I am aware that would have precluded Branislav Radovancevic from educating medical students in any of our Texas medical institutions. Branislav Radovancevic acted solely in his research capacity in helping to evaluate these patients, providing education to residents and staff, consulting with physicians on rounds, visiting with patients before and after their transplants, advising ?oor nurses on transplant issues, and he did not independently initiate patient care. Patient specific Issues I make the following observations about the Plain?dffuRelator's allegations as to the ?ve patients at issue. A. Patient 1153455 Paragraph 13 l?As part of post?operative transplant research, it is appropriate for a research director to visit with patients to determine their ongoing status. There is nothing improper about Branislav Radovancevic visiting patients in this situation. In fact, it is Dr. Galati on September 28, 1994 who is recommending after examining the patient that retransplant is what is indicated. Paragaphs 132, 134, and Lil?Dr. Hogan was uncertain how to proceed at this point. He was requesting Branislav Radovancevic to act as a resource in obtaining information for him, so that he could make a more knowledgeable decision. Dr. Galati?s information referenced above was also available at this time to help in the decision-making process for Dr. Hogan. l0:08 Ali AUSTIN CASTRO ADMIN FAX N0. 5124200397 P. 004 B. Patient 1251716 Paragraph 192?Patient?s wife confronted Branislav Radovancevic about her husband?s transplant status. Branislav Radovancevic did not initiate this conversation and apparently could not give her any de?nite information. Paragraph 195-??Branislav Radovancevic and transplant team there. The patient had previously been made NPO after midnight the night before. The tranSplant team was reminding the nurses to hold all meds and keep the patient in this NPO status. Paragraph l99-?-Dr. Frazier had already made a medical decision concerning this patient and relayed it the patient and his wife. All that the nurses? notes re?ect is that Branislav Radovancevic later visited with the patient. As stated previously, it is my Opinion that it is entirely appropriate for a member of the transplant team to visit with a patient. C. Patient 1300735 Paragraphs 203, 204, and 208?1 ?nd some discrepancy between the Plaintiff?s allegations and the actual medical records. It appears to me that Dr. Lim wrote the orders on December 23rd modifying the IMV setting and ordering a blood sugar and potassium study. On the 24th, Dr. Lint wrote orders to modify the pacer rate and Inocor. On the 25th, the skin test, Inocor, Insulin and, I believe, sodium bicarbonate were written by an illegible signature, but possibly Dr. Jonsyn. . I ?nd no orders signed by Branislav Radovancevic. Paragraph 205?As the record re?ects, orders to transfer to 736 were made by Dr. Massin and Dr. Springer. Paragraph 206?Transplant rounds as previously referred to. Paragraph 207?Dr. Massin?s progress notes re?ect his concern about the per?lsion of the transplanted heart. Cardiac output studies are ordered ostensibly through a verbal order by Branislav Radovancevic. Whether this was done as part of rounds, I cannot conclude either way from the information given. D. Patient 0524725 Paragraph I?ll?No evidence that the visit was one that was inappropriate for the Associate Director of Transplant Research to make. No orders ensued. Paragraphs 172, 179, review of the records supplied reveals that these visits were . with the transplant team on rounds. Paragraphs 173, 182?1 found no evidence that these patient visitations by Branislav Radovancevic accompanied by a licensed physician were inappropriate. 10:09 AM AUSTIN CASTRO ADMIN I FAX NB. 5124200397 P. 005 Paragraph 170?As described, not a speci?c physician issue. Paragraph I?M?This appears to be an action that occurred while the transplant team was on rounds. The records re?ect a groin lesion. In my review of the records, I have not i found other instances ofBranislav Radovancevic examining patients. Paragraph l75?There is a discrepancy here between a verbal order ascribed to ?Dr. Branno? for a potassium serum level and the resulting treatment; however, the results of the potassium were given to a different physician identi?ed as Dr. or 0524725-3885) who was noti?ed and then the potassium was given. Logically one Would expect that the results of a test would be given to the ordering physician. Paragraph 176, 183?-?These orders had been previously dealt with through standard post? operative orders. ?Cardiac Transplant Service Physician Orders,? #16 2382) re?ect a pacemaker at bedside ordered by Dr. Patel and ?Protocol for Administration of Prednisone and PosteTranSplant in Absence of Rejection? ordered by Dr. Khan denote steroid therapy (VEM-0524725-2916). Paragraph 177?There was no evidence that this infonnative discussion with a licensed physician was inappropriate. Paragraph 178'?There is a discrepancy in the records. Branislav Radovancevic was apparently called; however, the order for hemoglobin and ABG with next blood draw was ordered by Dr. Frazier. - Paragraph orders that were attributed to Branislav Radovancevic were actually written by Dr. Uddin Paragraph 181?-?The correct time ?om the record appears to be 2210, not midnight. Again, Dr. Uddin is the one who ordered the ventilator setting to be changed 0524725-2930). - Paragraph 185?The order to discontinue was made by Dr. Ayala (var/1.0524725- 2973) Paragraph role that Branislav Radovancevic played in this was that of an intermediary with no decision-makin requirement. E. Patient 1103146 Paragraph Ell?Dre. Puig and Murray at bedside with Branislav Radovancevic (VEM- 1108146-3305). Edecrin given at that time, physician?s signature illegible, possibly Murray. (WM-11081462704). 10:10 AM AUSTIN ADMIN FAX Ne. 5124200397 P. 008 1 . Paragraph 212?Transplant fellow noted that a biopsy was scheduled for next Wednesday 108146?4445). Usage of Physician Stamp or Signature Facsimile to Sign Documentation Prior to the advent of electronic medical records, in a busy physician?s hospital-based practice, a large volume of medical records Would reach the medical records department still requiring original signatures. It was not uncommon in large institutions at this time for physicians to delegate this duty to to complete this task using a signature stamp. Under the Texas Medical Practice Act, such delegation is an allowable act so long as the responsibility still resides with the physician for the delegation of this duty. Therefore, it was incumbent for the physician to limit the stamp usage to only those who through their knowledge and training could lcuowledgeably accomplish this task. In my 3 review of this material, I ?nd no evidence of improper delegation of this task. Harvesting of Organs In my experience as a practicing anesthesiologist, organs were harvested by technicians and not licensed personnel. To my knowledge, the Texas Medical Practice Act does not speak to any requirements for the harvesting of organs. Mil Bruce Lew/@D,