dl~Qw;i- - The Patient Safety League4patientsafety.org/documents/Misra, Mukesh 2018-04-03.pdf ·...

BEFORE THE MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

MUKESH MISRA, M.D.

Physician's and Surgeon's Certificate No. A95774

Respondent

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Case No. 800-2014-005853

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DECISION·

The attached Stipulated Settlement and Disciplinary Order is hereby adopted as the Decision and Order of the Medical Board of California, Department of Consumer Affairs, State of California.

This Decision shall become effective at 5:00 p.m. on May 3, 2018.

IT IS SO 0RDERED: April 3, 2018.

MEDICAL BOARD OF CALIFORNIA

/dl~Qw;i-Kristina Lawson, JD, Chair Panel B

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XAVIER BECERRA Attorney General of California ROBERT MCKIM BELL Supervising Deputy Attorney General REBECCA L. SMITH Deputy Attorney General State Bar No. 179733 California Department of Justice

300 South Spring Street, Suite 1702 Los Angeles, California 90013 Telephone: (213) 269-6475 Facsimile: (213) 897-9395

Attorneys for Complainant

BEFORE THE MEDICAL BOARD OF CALIFORNIA


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In the Matter of the Accusation Against:

MUKESH MISRA, M.D.

P.O. Box 6711 Lancaster, CA 93539-6711

Physician's and Surgeon's Certificate No. A 95774,

Respondent.

Case No. 800-2014-005853

OAH No. 2017070805

STIPULATED SETTLEMENT AND DISCIPLINARY ORDER

19 IT IS HEREBY STIPULATED AND AGREED by and between the parties to the above-

20 entitled proceedings that the following matters are true:

21 PARTIES

22 1. Kimberly Kirchmeyer ("Complainant") is the Executive Director of the Medical

23 Board of California ("Board"). She brought this action solely in her official capacity and is

24 represented in this matter by Xavier Becerra, Attorney General of the State of California, by

25 Rebecca L. Smith, Deputy Attorney General.

26 2. Respondent Mukesh Misra, M.D. ("Respondent") is represented in this proceeding by

27 attorney Peter G. Bertling, whose address is 15 West Carrillo Street, Suite 104, Santa Barbara,

28 California 93101.

STIPULATED SETTLEMENT (800-2014-005853)

1 3. On or about June 1, 2006, the Board issued Physician's and Surgeon's Certificate No.

2 A 95774 to Respondent. The Physician's and Surgeon's Certificate was in full force and effect at

3 all times relevant to the charges brought in Accusation No. 800-2014-.005853, and will expire on

4 January 31, 2020, unless renewed.

JURISDICTION 5

6 . 4. Accusation No. 800-2014-005853 was filed before the Board, and is currently

7 pending against Respondent. The Accusation and all other statutorily required documents were

.8 properly served on Respondent on May 17, 2017. Respondent filed his Notice of Defense

9 contesting the Accusation.

10 5. A copy of Accusation No. 800-2014-005853 is attached as Exhibit A and

11 incorporated herein by reference.

12 ADVISEMENT AND WAIVERS

13 6. Respondent has carefully read, fully discussed with counsel, and understands the

14 · charges and allegations in Accusation No. 800-2014-005853. Respondent has also carefully read,

15 fully discussed with counsel, and understands the effects of this Stipulated Settlement and

16 Disciplinary Order.

17 7. Respondent is fuily aware of his legal rights in this matter, including the right to a

18 hearing ori. the charges and allegations in the Accusation; the right to confront and cross-examine

19 . the witnesses against him; the right to present evidence and to testify on his own behalf; the right

20 to the issuance of subpoenas to compel the attendance of witnesses and the production of

21 documents; the right to reconsideration and court review of an adverse decision; and all other

22 rights accorded by the California Administrative Procedure Act and other applicable laws.

23 8. Respondent voluntarily, knowingly, and intelligently waives and gives up each and

24 every right set forth above.

25 CULPABILITY

26 9. Respondent does not contest that, at an administrative hearing, Complainant could

27 establish a prima facie case with respect to the charges and allegations contained in Accusation

28 No. 800-2014-005853 and that he has thereby subjected his license to disciplinary action.

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10. Respondent agrees that if he ever petitions for early termination or modification of

2 probation, or if the Board ever petitions for revocation of probation, all of the ·charges and

3 allegations contained in Accusation No. 800-2014-005853 shall be deemed true, correct and fully

4 admitted by Respondent for purposes of that proceeding or any other licensing proceeding

5 involving Respondent in the State of California.

6 11. Respondent agrees that his Physician's and Surgeon's Certificate is subject to

7 discipline and he agrees to be bound by the Board's probationary terms as set forth in the

8 Disciplinary Order below.

9 CONTINGENCY

1 O 12. This stipulation shall be subject to approval by the Medical Board of California.

11 Respondent understands and agrees that counsel for Complainant and the staff of the Medical

12 Board of California may communicate directly with the Board regarding this stipulation and

13 settlement, without notice to or participation by Respondent or his counsel. By signing the

14 stipulation, Respondent understands and agrees that he may not withdraw his agreement or seek

15 to rescind the stipulation prior to the time the Board considers and acts upon it. If the Board fails

16 to adopt this stipulation as its Decision and Order, the Stipulated Settlement and Disciplinary

17 Order shall be of no force or effect, except for this paragraph, it shall be inadmissible in any legal

18 action between the parties, and the Board shall not be disqualified from further action by having

19 considered this matter.

20 13. The parties understand and agree that Portable Document Format ("PDF") and

21 facsimile copies of this Stipulated Settlement and Disciplinary Order, including PDF and

22 facsimile signatures thereto, shall have the same force and effect as the originals.

23 14. In consideration of the foregoing admissions and stipulations, the parties agree that

24 . the Board may, without further notice or formal proceeding, issue and enter the following

25 Disciplinary Order:

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STIPULATED SETTLEJ\.1ENT (800-2014-005853)

DISCIPLINARY ORDER

2 IT IS HEREBY ORDERED THAT Physician's and Surgeon's Certificate No. A 95774

3 issued to Respondent Mukesh Misra, M.D. is revoked.- However, the revocation is stayed and

4 Respondent is placed on probation for three (3) years on the following terms and conditions.

5 1. EDUCATION COURSE. Within sixty (60) calendar days of the effective date of this

6 Decision, and on an annual basis thereafter, Respondent shall submit to the Board or its designee

7 for its prior approval educational program(s) or course(s) which shall not be less than forty (40)

8 hours per year, for each year of probation. The educational program(s) or course(s) shall be

9 aimed at correcting any areas of deficient practice or knowledge and shall be Category I certified.

10 The educational program(s) or course(s) shall be at Respondent's expense and shall be in addition

11 to the Continuing ·Medical Education ("CME") require1,11ents for renewal of licensure. Following

12 the completion of each course, the Board or its designee may administer an examination to test

13 Respondent's knowledge of the course. Respondent shall provide proof of attendance for sixty-

14 five (65) hours of CME of which forty (40) hours were in satisfaction of this condition.

15 2. CLINICAL COMPETENCE ASSESSMENT PROGRAM. Within sixty (60)

16 calendar days of the effective date of this Decision, Respondent shall enroll in a clinical

17 competence assessment program approved in advance by the Boi:i.rd or its designee. Respondent

18 shall successfully complete the program not later than six (6) months after Respondent's initial

19 enrollment unless the Board or its designee agrees in writing to an extension of that time.

20 The program shall consist of a comprehensive assessment of Respondent's physical and

21 mental health and the six general domains of clinical competence as defined by the Accreditation

22 Council on_ Graduate Medical Education and American Board of Medical Specialties pertaining to

23 Respondent's current or intended area of practice. The program shall take into account data

24 obtained from the pre-assessment, self-report forms and interview, and the Decision(s),

25 Accusation(s), and any other information that the Board or its designee deems relevant. The

26 program shall require Respondent's on-site participation for a minimum of three (3) and no more

27 than five (5) days as determined by the program for the assessment and clinical education

28 evaluation. Respondent shall pay all expenses associated with the clinical competence

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1 assessment program.

2 At the end of the evaluation, the program will submit a report to the Board or its designee

3 which unequivocally states whether Respondent has demonstrated the ability to practice safely

4 and independently. Based on Respondent's performance on the clinical competence assessment,

5 the program will advise the Board or its designee of its recommendation(s) for the scope and

6 length of any additional educational or clinical training, evaluation or treatment for any medical

7 condition or psychological condition, or anything else affecting Respondent's practice of

8 medicine. Respondent shall comply with the program's recommendations.

9 Determination as to whether Respondent successfully completed the clinical competence

10 assessment program is solely within the program's jurisdiction.

11 If Respondent fails to enroll, participate in, or successfully complete the clinical

12 competence assessment pro grail! within the designated time period, Respondent shall receive a

13 notification from the Board or its designee to cease the practice of medicine within three (3)

14 calendar days after being so notified. Respondent shall not resume the practice of medicine until

15 enrollment or participation in the outstanding portions of the clinical competence assessment

16 program have been completed. If Respondent did not successfully complete the clinical

17 competence assessment program, Respondent shall not resume the practice of medicine until a

18 final decision has been rendered on the accusation and/or a petition to revoke prohation. The

19 cessation of practice shall no~ apply to the reduction of the probationary time period.

20 3. MONITORING - PRACTICE. Within thirty (30) calendar days of the effective date

21 of this Decision, Respondent shall submit to the Board or its designee for prior approval as a

22 practice monitor, the name and qualifications of one or more licensed physicians and surgeons

23 . whose licenses are valid and in good standing, and who are preferably American Board of

24 Medical Specialties ("ABMS") certified. A monitor shall have no prior or current business or

25 personal relationship with Respondent, or other relationship that could reasonably be expected to

26 compromise the ability of the monitor to render fair and unbiased reports to the Board, including

27 but not limited to any form of bartering, shall be in Respondent's field of practice, and must agree

28 to serve as Respondent's monitor. Respondent shall pay all monitoring costs.

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1 The Board or its designee shall provide the approved monitor with copies of the Decision

2 and Accusation, and a proposed monitoring plan. Within fifteen (15) calendar days of receipt of

3 the Decision, Accusation, and proposed monitoring plan, the monitor shall submit a signed

4 statement that the monitor has read the Decision and Accusation, fully understands the role of a

5 monitor, and agrees or disagrees with the proposed monitoring plan. If the monitor disagrees

6 with the proposed monitoring plan, the monitor shall submit a revised monitoring plan with the

7 signed statement for approval by the Board or its designee.

8 Within 60 calendar days of the effective date of this Decision, and continuing throughout

9 probation, Respondent's practice shall be monitored by the approved monitor. Respondent shall

1 O make all records available for immediate inspection and copying on the premises by the monitor

11 at all times during business hours and shall retain the records for the entire term of probation.

12 If Respondent fails to obtain approval of a monitor within sixty (60) calendar days of the

13 effective date of this Decision, Respondent shall receive a notification from the Board or its

14 designee to cease the practice of medicine within three (3) calendar days after being so notified.

15 Respondent shall cease the practice of medicine until a monitor is approved to provide monitoring

16 responsibility.

17 The monitor shall submit a quarterly written report to the Board or its designee which

18 includes an evaluation of Respondent's performance, indicating whether Respondent's practices

19 are within the standards of practice of medicine, and whether Respondent is practicing medicine

20 safely. It shall be the sole responsibility of Respondent to ensure that the monitor submits the

21 quarterly written reports to the Board or its designee within ten (10) calendar days after the end of

22 the preceding quarter.

23 If the monitor resigns or is no longer available, Respondent shall, within five (5) calendar

24 days of such resignation or unavailability, submit to the Board or its designee, for prior approval,

25 the name and qualifications of a replacement monitor who will·be assuming that responsibility

26 within fifteen ( 15) calendar days. If Respondent fails to obtain approval of a replacement monitor

27 within sixty (60) calendar days of the resignation or unavailability of the monitor, Respondent

28 shall receive a notification from the Board or its designee to cease the practice of medicine within

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three (3) calendar days after being so notified. Respondent shall cease the practice of medicine

2 until a replacement monitor is approved and assumes monitoring responsibility.

3 In lieu of a monitor, Respondent may participate in a professional enhancement program

4 approved in advance by the Board or its designee that includes, at minimum, quarterly chart

5 review, semi-annual practice assessment, and semi-annual review of professional growth and _

6 education. Respondent shall participate in the professional enhancement program at

7 Respondent's expense during the term of probation.

8 4. NOTIFICATION. Within seven (7) days of the effective date of this Decision, the

9 Respondent shall provide a true copy of this Decision and Accusation to the Chief of Staff or the

10 Chief Executive Officer at every hospital where privileges or membership are extended to

11 · Respondent, at any other facility where Respondent engages in the practice of medicine,

12 including all physician and locum tenens registries or other similar agencies, and to the Chief

13 Executive Officer at every insurance carrier which extends malpractice insurance coverage to

14 Respondent. Respondent shall submit proof of compliance to the Board or its designee within

15 fifteen (15) calendar days.

16 This condition shall apply to any change(s) in hospit~ls, other facilities or insurance carrier.

17 5. SUPERVISION OF PHYSICIAN ASSISTANTS AND ADVANCED PRACTICE

18 NURSES. During probation, Respondent is prohibited from supervising physician assistants and

19 advanced practice nurses.

20 6. OBEY ALL LAWS. Respondent shall obey all federal, state and local laws, all rules

21 governing the practice of medicine in California and remain in full compliance with any court

22 ordered criminal probation, payments, and other orders.

23 7. QUARTERLY DECLARATIONS. Respondent shall submit quarterly de~larations

24 under penalty of perjury on forms provided by the Board, stating whether there has been

25 compliance with all the conditions of probation.

26 Respondent shall submit quarterly declarations not later than ten (10) calendar days after

27 the end of the preceding quarter.

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8. GENERAL PROBATION REQUIREMENTS.

2 Compliance with Probation Unit

3 Respondent shall comply with the Board's probation unit.

4 Address Changes

5 Respondent shall, at all times, keep the Board informed of Respondent's business and

6 residence addresses, email address. (if available), and telephone number. Changes of such

7 addresses shall be immediately communicated in writing to the Board or its designee. Under no

8 circumstances shall a post office box serve as an address ·of record, except as allowed by Business

9 and Professions Code section 2021 (b ).

1 O Place of Practice

11 Respondent shall not engage in the practice of medicine in Respondent's or patient's place

12 of residence, unless the patient resides in a skilled nursing facility or other similar licensed

13 facility.

14 License Renewal

15 Respondent shall maintain a current and renewed California physician's and surgeon's

16 license.

17 Travel or Residence Outside California

18 Respondent shall immediately inform the Board or its designee, in writing, of travel to any

19 , areas outside the jurisdiction of California which lasts, or is contemplated to last, more than thirty

20 (30) calendar days.

21 In the event Respondent should leave the State of California to reside or to practice,

22 Respondent shall notify the Board or its designee in writing thirty (30) calendar days prior to the

23 dates of departure and return.

24 9. INTERVIEW WITH THE BOARD OR ITS DESIGNEE. Respondent shall be

25 available in person upon request for interviews either at Respondent's place of business or at the

26 probation unit office, with or without prior notice throughout the term of probation.

27 10. NON-PRACTICE WHILE ON PROBATION. Respondent shall notify the Board or

28 its designee in writing within fifteen (15) calendar days of any periods of non-practice lasting

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more than 30 calendar days and within fifteen (15) calendar days of Respondent's return to

2 practice. Non-practice is defined as any period of time Respondent is not practicing medicine as

3 defined in Business and Professions Code sections 2051 and 2052 for at least forty (40) hours in a

4 calendar month in direct patient care, clinical activity or teaching, or other activity as approved by

5 the Board. If Respondent resides in California and is considered to be in non-practice,

6 Respondent shall comply with all terms and conditions of probation. All time spent in an

7 intensive training program which has been approved by the Board or its designee shall not be

8 considered non-practice and does not relieve Respondent from complying with all the terms and

9 conditions of probation. Practicing medicine in another state of the United States or Federal

1 O jurisdiction while on probation with the medical licensing authority of that state or jurisdiction

11 sqall not be considered non-practice. A Board-ordered suspension of practice shall not be

12 considered as a period of non-practice.

13 In the event Respondent's period of non-practice while on probation exceeds eighteen (18)

14 calendar months, Respondent shall successfully complete the Federation of State Medical Boards'

15 Special Purpose Examination, or, at the Board's discretion, a clinical competence assessment

16 program that meets the criteria of Condition 18 of the current version of the Board's "Manual of

17 Model Disciplinary Orders and Disciplinary Guidelines" prior to resuming the practice of

18 medicine.

19 Respondent's period of non-practice while on probation shall not exceed two (2) years.

20 Periods of non-practice will not apply to the reduction of the probationary term.

21 Periods of non-practice for a Respondent residing outside of California will relieve

22 Respondent of the responsibility to comply with the probationary terms and conditions with ,the

23 exception of this condition and the following terms and conditions of probation: Obey All Laws;

24 General Probation Requirements; Quarterly Declarations; Abstain from the Use of Alcohol and/or

25 Controlled Substances; and Biological Fluid Testing.

26 11. COMPLETION OF PROBATION. Respondent shall comply with all financial

27 obligations (e.g., restitution, probation costs) not later than one-hundred twenty (120) calendar

28 days prior to the completion of probation. Upon successful completion of probation,

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Respondent's certificate shall be fully restored.

2 12. VIOLATION OF PROBATION. Failure to fully comply with any term or condition

3 of probation is a violation of probation. If Respondent violates probation in any respect, the

4 Board, after giving Respondent notice and the opportunity to be heard, may revoke probation and

5 carry out the disciplinary order that was stayed. 1 If an Accusation, or Petition to Revoke

6 Probation, or an Interim Suspension Order is filed against Respondent during probation, the

7 Board shall have continuing jurisdiction until the matter is final, and the period of probation shall

8 be extended until the matter is final.

9 13. LICENSE SURRENDER. Following the effective date of this Decision, if

1 O Respondent ceases practicing due to retirement or health reasons or is otherwise unable to satisfy

11 the terms and conditions of probation, Respondent may request to surrender his or her license.

12 The Board reserves the right to evaluate Respondent's request and to exercise its discretion in

13 determining whether or not to grant the request, or to take any other action deemed appropriate

14 and reasonable under the circumstances. Upon formal acceptance of the surrender, Respondent

15 shall within fifteen ( 15) calendar days deliver Respondent's wallet and wall certificate to the

16 Board or its designee and Respondent shall no longer practice medicine. Respondent will no

17 longer be subject to the terms and conditions of probation. If Respondent re-applies for a medical

18 license, the application shall be treated as a petition for reinstatement of a revoked certificate.

19 14. PROBATION MONITORING COSTS. Respondent shall pay the costs associated

20 with probation monitoring each and every year of probation, as designated by the Board, which

21 may be adjusted on an annual basis. Such costs shall be payable to the Medical Board of

22 California and delivered to the Board or its designee no later than January 31 of each calendar

23 year.

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ACCEPTANCE

2 r'havc carefully read the above Stipulated Settlement and Disciplinary Order and have fully

3 discussed it with my attorney, Peter G. Bertling. I understand the stipulation and the effect it will

4 have on my Physician's and Surgeon's Certificate. I enter into this Stipulated Settlement and

5 Disciplinary Order voluntarily, knowingly, and intelligently, and agree to be bound by the

6 Decision and Order of the Medical Board of California.

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DATED: MUKESH MISRA, M.D. Respondent

11 I have read and fully discussed with Respondent Mukesh Misra, M.D. the terms and

12 conditions and other matters contained in the above Stipulated Settlement and Discip!"inary Order.

13 I approve its form and content.

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DATED: Jbu"r;J-1. JQtl 14,.1;,r,,~ 0

,c' ·.· t PETER G. BERTLING {) ·

Attorney for Respondent

ENDORSEMENT

The foregoing Stipulated Settlement and Disciplinary Order is hereby respectfully

submitted for consideration by the Medical Board of California.

Respectfully submitted,

XAVIER BECERRA Attorney General of California ROBERT MCKIM BELL Supervising Deputy Attorney General

26 REB . SMITll Deputy Attorney General

27 Attorneys for Complainant LA2017505661

28 62686129.doc

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. STIPULATED SEITLEMENT (800-2014-005853)

Exhibit A

Accusation No. 800-2014-005853

KAMALA D. HARR.rs Attorney General of California JUDITHT. ALVARADO Supervising Deputy Attorney General CHRISTINA L. SEIN Deputy Attorney General State Bar No. 229094

California Department of Justice 300 So. Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213} 897-9444 Facsimile: (213) 897-9395

Attorneys for Complainant

FILED STATE OF CALIFORNIA

MEDICAL BOARD OF CALIFORNIA SACRA~E~O tt\Q'(' t'1. 20_fl BY~~.l . ~c§ll\f)qa{:bAf11ALYST

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BEFORE THE MEDICAL BOARD OF CALIFORNIA ..


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11 In the Matter of the Accusation Against:

12 MUKESH MISRA, M.D. P.O. Box 6711

13 Lancaster, CA 93539-6711

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Physician's and Surgeon's Certificate No. A95774,

Respondent. 11-~~~~'--~~~~~~----~~~--'

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18 Complainant alleges:

Case No. 800-2014-005853

ACCUSATION

19 PARTIES

20 1. Kimb~rly Kirclnneyer (Cof!1plainant) brings this Accusation solely in her official

21 capacity as the Executive Director of the Medical Board of California, Department of Consumer

22 Affairs (Board).

23 2. On or about June 1, 2006, the Medical Board issued Physician's and Surgeon's

24 Certificate Number A95774,to Mukesh Misra, M.D. (Respondent). The Physician's and Surgeon's

25 Certificate was in full force and effect at all times relevant to the charges brought herein and will

26 expire on January 31, 2018, unless renewed.

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(MUKESH MISRA, M.D.) ACCUSATION NO. 800-2014-005853

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JURISDICTION

2 3. This Accusation is brought before the Board, under the authority of the following

3 laws. All section references are to the Business and Professions Code unless otherwise indicated.

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4. Section 2234 of the Code states; in pertinent part:

"The board shall take action against any licensee who is charged with unprofessional

conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not

limited to, the following:

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"(b) Gross negligence.

"(c) Repeated negligent acts. To be repeated, there must be two or more negligent acts or

omissions. An initial negligent act or omission followed by a·'separate and distinct departure froni

- the applicable standard of care shall constitute repeat~d negligent acts.

"(l) An initial negligent diagnosis foll~we~ by an act or omission medically appropriate for

that negligent diagnosis of the patient ·shall co~~titute a single negligent act.

"(2) When the standard of care requires a change in the diagnosis, act, or omission that . . . . -~~- .::~ .·

constitutes the negiigent act described in paragrapb(l\ including, but not limited to, a

reevaluation of the dfagnosis or a change in treatment, and the licensee's coriduct departs from the

applicable standard of care, each departure constitutes a separate and distinct breach of the

standard of care. .;

" "

5. ·Section 2266 of the Code states:

22 · "The failure of a physician and surgeon to mainta~ adequate records relating to the

23 provision of services to their patients constitutes unprofessional conduct:"

.24 FIRST CAUSE FOR DISCIPLINE

(Gross Negligence) 25

26 6. Respondent's license js subject to disciplinary action·under section 2234, subdivision

27 (b), of the Code in that he was grossly negligent in his care an<l treatment ofR.L. The

28 circumstances are as follows:

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7. At all times relevant to the allegations contained herein, Respondent was a licensed

2 physician and surgeon practicing in the area of neurological surgery.

3 8. On or about August 11, 2011, patient R.L., 1 a_mafo then 70 years old, presented to

4 Respondent with radicular symptoms predominantly on the left side. At this visit, Respondent

5 recommends physical therapy, analgesics, muscle relaxants, and facet blocks. Despite the absence

6 of any trial of the non-invasive therapies recommended, two days later on August 13, 2011,

7 Respondent performs bilateral C4-5, C5-6, and C6". 7 facet blocks. The operative report fails to

8 cite an indication for the procedure and there is no.documentation of any discussion of the risks,

9 potential ·complications, or alternatives to the procedure.

10 9. On a follow up visit on or about December 29, 2011, Respondent recommends

11 anterior cervical discectomy, decompression, and fusion. There is no physical examination .

12 documented nor any discussion of the details of the surgery, risks, potential complications, or

13 alternatives. The notes of this visit as well as other records such as,-pre-operative orders and

14 intake notes, indicate that the surgery will be a C4-5, C5-6, and C6-7 anterior cervical discectomy

15 and fusion. R.L. also signs a consent on or about January 16, 2012 for anterior cervical

16 discectomy and fusion at C4-5, C5-6, and C6-7.

17 10. On or about January 16, 2012, Respondent performs a two-level C5-6 and C6-7

18 anterior cervical discectomy, fusion, and arthrodesis with the use ofLDR PEEK cages and cage

19 plate~. During the surgery, Respondent encounters difficuity implanting at the C6-7 level and.

20 therefore one of the plates could not be placed into C7, which represents a deviation from the

21 standard procedure when implanting LDR cages of the type used by Respondent. There is no

22 documentation to support tha,t R.L. was informed of this deviation, nor is there any explanation in

23 · the medical record for the deviation (or any notation of a discussion with R.L.) regarding the.

24 deviation from the cohsented to procedure of a three-lev~l ~urgery at C4-5, C5-6, and C6-7.

25 Respondent do,es not document any complications and describes the surgery as uneventful. R.L. is

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discharged home on or about January 18, 2012 with a Miami-J collar, however, there are no

1 Individuals are referred to by initial to protect their privacy.

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(MUKESH .MISRA, M.D.) ACCUSATION NO. 800-2014-005853

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records indicating how long the collar w~s to be worn or what instructions were provided to R.L.

2 11. Respondent treats R.L. on or about February 1, 2012, however, no physical

3 examination or post-operative directions/instructions are documented. Respondent treats R.L. on

· 4 or about April 9, 2012, however, there are no details-of what was physically examined and no plan

·5 is noted.

6 12. Respondent treats R.L. on or about May 3, 2012, after x-rays of the cervical spine

7 have been performed. The x-rays of the cervical spine (performed on May 2, 2Ql2) reveal failure

8 of the implants at both operated levels and possible pseudoarthroses. Respondent only discloses to

9 R.L. tlie migration of the locking plate at C6~ 7 and not the fracture of the 1ockmg plates at CS-6 or

10 the possibility ofpseudoarthroses. Respondent also only comments on the failure of the locking

11 plate at the C6-7 level in his May 3, 2012 record. There is no plan to work up the etiolqgy for the

12 multilevel hardware failure. Instead, Respondent recommends a second invasive surgery to

13 remove the displaced locking plate. There is no physical examination or.documented discussion of

14 the details of the' proposed second surgery, its risks,. benefits, Or alternatives.

15 13. On or about May 5, 2012,.Respondent performs surgery removing the displaced plate

16 at C6-7.

17 14. R.L.'s last visit with Respondent occurs on or about August 1, 2012. Respondent

18 reports the performance of a :MRI taken on or about May 16, 2012, but does not cite any of its

· 19 fin~ings. It is unclear whether Respondent actually reviewed the images. Despite the presence of

20 residual stenosis at C4-5, C5-6, and C6-Ton the May 16, 2012 MRI, coincident with recurrent

21 neck and shoulder pain, Respondents fails to immediately diagnose a recurrent cervical

22 pathological process and instead appears to more strongly consider shoulder pathology.

23 15. Respondent's care and treatment ofR.L. as set forth above in Paragraphs 7 through

24 14, include the following acts and/or omissions which constitute extreme departures from the

25 standard of care:

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A. The repeated absence of an informed consent discussion with R.L.

B. The repeated failure to perform a physical examination in the pre-operative and

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C. The failure to consider medical conditions, failure to accurately review

2 diagnostic studies, failure to obtain necessary diagnostic studies, and the failure to apply the most

3 effective and applicable therapeutic intervention.

4 D. The repeated failure to disclose complications and deviations from pl~nned

5 interventions.

6 16. Respondent's acts and/or omissions as set forth above, whether proven individually,

7 jointly, or in any combination thereof, constitute gross negligence pursuant to section 2234,

· 8 subdivision (b), of the Code .. Therefore, cause for discipline exists.

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. SECOND CAUSE FOR DISCIPLINE

(Repeated Negligent Acts)

11 17. Respondent's license is subject to disciplinary action under section 2234, subdivision

12 (c), of the Code in that he committed repeated.negligent acts in his ·care and treatment ofR,.L.

13 The circumstances are as follows:

14 18. The allegations of the First Cause for Discipline are incorporated herein by reference

15 as if fully set forth.

16 19. Respondent's care. and treatment ofR.L. as set forth above in Paragraphs 7 through

17 14, include the following acts and/or omissions. which constitute repeated negligent acts:

18 A. The repeated absence of an informed consent discussion with RL.

19 B. The repeated failure to perform a physical examination in the pre-operative and

20 post-operative period.

21 C. The failure to consider medical conditions, failure to ~ccurately review

22 diagnostic studies, failure to obtain necessary diagnostic studies, and the failure to apply the most

23 effective and applicable therapeutic intervention.

24 D. The repeate~ failure to disclose complications and deviations from planned

25 interventions.

26 E. The performance of invasive procedures prior to demonstrated failure of the·

27 non-invasive therapies.

28 F. The failure to disclose off label use of the LDRplate-cage construction to R.L.

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and the lack of employing additional steps to ensure patient safety following this off label use.

2 20. Respondent's acts and/or omissions as set forth above, whether proven individually,·

3 jointly, or in any combination thereof, constitute repeated.negligent acts pursuant to section 2234,

4 subdivision (c), of the Code. Therefore, cause for discipline exists.

5 TIDRD CAUSE FOR DISCIPLINE

6 (Failure to Maintain Adequate and Accurate Records)

7 21. Respondent's license is subject to disciplinary action under section 2266 of the Code

8 in that he failed to· maintain adequate and. accurate records of his care and treatment of patie~t R.L.

9 The circumstances are as follows:

10 22. Complainant refers to and, by this reference, incorporates Paragraphs 7 through 14,

11 above, as though set forth fully herein.

12 23. Respondent's acts and/or omissions as set forth in Paragraph 22, above, whether

13 proven individually, jointly, or in any combination there6f;constitute failure to maintain adequate

14 and accurate records, pursuant to section 2266 of the Code." Therefore, cause f~r discipline exists.

15 DISCIPLINARY CONSIDERATIONS

16 24. To determine the degree of discipline, if any, to .be imposed on Respondent,

17 Complainant alleges that on or about June 28, 2012, in a prior disciplinary action entitled In the

18 Matter of the Accusation Against: Mukesh Misra, MD., before the Medical Board of California,

19 Case No. 08-2007-186068, Respondent's license was disciplined and he was required to take

20 educational courses, a medical recbrd keeping course, ~nd a professionalism program. Respondent

21 successfully completed the coursework and, on or about April 26, 2016, Respondent was publicly . '

22 reprimanded for failing to adequately document a surgical procedure and the post operative

23 condition and care of the patient. That decision is now final and is incorporated by reference as if

24 . fully set (orth herein.

25 PRAYER

26 ·WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

27 and that following the hearing, the Medical Board of California issue a decision:

28 1. Revoking or suspending Physician's and Surgeon's Certificate Number A95774, issued

6 (MUKESH MISRA, M.D.) ACCUSATION NO. 800-2014-005853

1 to Mukesh Misra, M.D.;

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2. . Revoking, suspending or denying approval ofMukesh Misra, M.D.'s authority to

supervise physician assistants, pursuant to section 3527 of the Code, and advanced practice nurses;

3. Ordering Mukesh Misra, M.D., if placed on probation, to pay the Board the costs of

probation monitoring; and

4. Taking such other and further action as deemed necessary and proper.

8 DATED: Ma·y 17, 2017

9 Executive Director Medical Board of California

10 Department of Consumer Affairs State of California

11 Complainant

12 LA2016500736

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(MUKESH WSRA, M.D.) ACCUSATION NO. 800-2014-005853

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dl~Qw;i- - The Patient Safety League4patientsafety.org/documents/Misra, Mukesh 2018-04-03.pdf ·...

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Transcript of dl~Qw;i- - The Patient Safety League4patientsafety.org/documents/Misra, Mukesh 2018-04-03.pdf ·...