Tendai v. Missouri State Board of Registration for the Healing Arts

Summary

The Supreme Court of Missouri reversed disciplinary findings against Dr. Mark Tendai arising from his treatment of a pregnant patient whose fetus had intrauterine growth retardation and a two-vessel umbilical cord. The Court held that the record did not contain substantial evidence supporting findings of gross negligence, repeated negligence, incompetence, or conduct harmful to a patient. The Court also addressed the evidentiary treatment of post-investigation “sticky notes” documenting alleged referrals to a perinatologist.

Holdings

1. The sticky notes were not proper medical records or admissible business records because they were not made as part of the regular medical record for use by other health-care providers; they were hearsay and were properly excluded.
2. A deviation from the professional standard of care is not gross negligence unless the evidence shows conscious indifference to professional duty or a gross deviation from the applicable standard of care. The record did not contain substantial evidence of gross negligence.
3. The record did not support a finding of repeated negligence because Tendai's failure to refer S.G. or arrange testing arose from one treatment decision, and his later visits merely adhered to that decision rather than constituting separate negligent acts.
4. A single negligent act does not establish incompetence. Incompetence requires a general lack of present ability or disposition to perform the relevant professional duty, and the record did not contain substantial evidence that Tendai was incapable of practicing medicine or lacked the qualifications necessary to do so.
5. To sustain a finding that conduct was harmful to a patient's health under section 334.100.2(5), the Board had to prove that the conduct caused or contributed to cause the asserted injury. The Board failed to prove that Tendai's conduct caused or contributed to cause the fetal death.

Questions Presented

1. Whether substantial evidence supported the Commission's finding that Tendai committed gross negligence under section 334.100.2(5), RSMo.
2. Whether substantial evidence supported a finding of repeated negligence based on Tendai's conduct during multiple visits with the same patient.
3. Whether substantial evidence supported a finding that Tendai was incompetent under section 334.100.2(5).
4. Whether substantial evidence established that Tendai's conduct was harmful to the patient's health by causing or contributing to cause the fetal death.
5. Whether the sticky notes were admissible business records supporting Tendai's claim that he referred S.G. to a perinatologist.

Disposition

reversed