Administrative Hearing Commission

Richard Maseles, Esquire

Retaliatory tax validly charged against Kansas-based insurer, because Kansas imposed charges on Missouri-based workers’ compensation insurers that Missouri did not impose on the Kansas-based insurer.  Midwest Builders’ Casualty Ins. Co. v. Director of Revenue, et al. No. 10-1964 RG (Mo.  AHC, Aug. 15, 2011), Dandamudi, C.

The insurer was based in Kansas and sold workers’ compensation insurance in Missouri. Kansas law assessed workers’ compensation insurers for the costs of its second injury fund and the costs of administering its workers’ compensation program. Missouri, however, imposed those costs on policyholders and self-insuring employers, not the insurers.

The insurer was liable for retaliatory tax under Section 375.916, RSMo, because Kansas imposed a tax on a hypothetical Missouri insurer that Missouri did not impose on a Kansas insurer. It did not matter that Midwest had a statutory liability to collect and remit the Missouri charges— the obligation to pay rested with the policyholders, not Midwest.

Surgeon committed unprofessional conduct for failure to inform patient or spouse of error in surgery before operating again to correct it, and for operating on another patient without consulting prior doctors who had recently treated her. Board of Registration for the Healing Arts v. Egan, No. 10-0405 HA (Mo. AHC, Aug. 26, 2011), Winn, C.

Egan, an experienced surgeon, performed a colostomy on patient A due to a large sacral decubitus ulcer that failed to heal. Egan diverted the wrong limb of the bowel to the surface, resulting in complete colonic obstruction. A CT scan revealed the error, and Egan operated again to correct it without telling patient A or her husband of the error, and before patient A or her husband could get a second opinion, which they had asked for. Patient B was diagnosed with diverticulosis, and another doctor performed a colonoscopy on her. A month later, patient B showed Egan pictures of her colon taken during the colonoscopy and asked whether she should have a growth in her colon removed, and Egan said yes. Egan did not consult with patient B’s prior doctors before performing a colectomy. The Board sought discipline for, among other things, conduct that was unprofessional, negligent, harmful, and dangerous to the physical health of his patients. The Board’s expert testified that Egan’s failure to tell patient A or her husband about his error was unprofessional because it was unethical, but Egan, equally experienced as the expert, disagreed, and the Commission considered the arguments to cancel each other.

The Commission found the failure to inform to be unprofessional, and did not need expert testimony to so find, even though fixing the earlier error was required to save patient A’s life. The Commission also found that Egan did not have sufficient medical justification to perform a colectomy on patient B when he decided to operate on her. Further, the two instances, together, constituted repeated negligence under Section 334.100.2(5), RSMo, because in both instances, Egan’s conduct fell below the standard of care.