STATE OF TENNESSEE DEPARTMENT OF HEALTHIN THE MATTER OF: ) BEFORE THE TENNESSEE) BOARD OF MEDICAL EXAMINERS

I. JURISDICTION AND NOTICE OF RIGHTS

• 1. The Tennessee Board of Medical Examiners (hereinafter the “Board”) is responsible for the regulation and supervision of the practice of medicine in the State of Tennessee. See Tennessee Medical Practice Act (hereinafter the “Practice Act”), Tennessee Code Annotated Section (hereinafter “TENN. CODE ANN. ﾧ”) 63-6-101, et seq.
• 2. TENN. CODE ANN. ﾧ 63-6-214 grants the Board the power and duty to suspend or revoke or otherwise discipline a licensee who has violated the provisions of Title 63, Chapter 6 of Tennessee Code Annotated.
• 3. The Tennessee Department of Health, Division of Health Related Boards, and the Board may initiate a civil penalty assessment with respect to any person required to be licensed by any board, commission or agency attached to it in an amount not to exceed one thousand dollars ($1,000.00) for each separate violation of a statute, rule or order pertaining to such Board. TENN. CODE ANN. ﾧ 63-1-134(a) and Rule 0880-2-.12, Official Compilation Rules and Regulations of the State of Tennessee (hereinafter “O.C.R.R.S.T.”).
• 4. Each day of continued violation by such person of the statute, rule or order constitutes a separate violation. TENN. CODE ANN. ﾧ 63-1-134(a).
• 5. The Board has established by rule a schedule designating the minimum and maximum civil penalties which may be assessed. TENN. CODE ANN. ﾧ 63-1-134 and Rule 0880-2-.12(4), O.C.R.R.S.T.
• 6. Contested cases provisions of Title 4, Chapter 5, Tennessee Code Annotated govern proceedings for the assessment of civil penalties. TENN. CODE ANN. ﾧ 63-1-134 and Rule 0880-2-.12(4)(d)(4), O.C.R.R.S.T.
• 7. Proceedings for disciplinary action against a license holder are conducted in accordance with the Tennessee Administrative Procedures Act, Title 4, Chapter 5, of Tennessee Code Annotated. TENN. CODE ANN. ﾧ 63-6-216
• 8. A Respondent in a disciplinary action is entitled to be represented by legal counsel, to personally appear before the Board, to present witnesses, to have subpoenas issued and to receive thirty (30) days notice of the charges before being required to appear for a hearing. A Respondent who cannot afford legal counsel may be eligible for free or low-cost counsel. TENN. CODE ANN. ﾧ 4-5-101, et seq.
• 9. The Division and the Board may initiate an assessment of costs for actual and reasonable costs of the prosecution of the matter incurred by the Office of General Counsel, Department of Health, including all attorney and paralegal time, all costs incurred by the Bureau of Investigations in connection with the prosecution of the matter, and all costs incurred by the Administrative Law Judge(s), court reporters and witnesses, including, but not limited to, travel and lodging during prosecution of this matter. TENN. CODE ANN. ﾧ 63-1-144; TENN. CODE ANN. ﾧ 63-6-214; and Rule 0880-2-.12(4)(d)(2), O.C.R.R.S.T.

II. FACTS

• 10. Respondent has been at all times pertinent hereto licensed by the Board as a medical doctor in the State of Tennessee, having been granted Tennessee medical license number 17792 by the Board on March 13, 1987.
• 11. At all times pertinent hereto, Respondent, an ear, nose and throat surgeon, practiced medicine in Hixson and Chattanooga, Tennessee.
• 12. On or around May 18, 2003, Respondent performed a partial thyroidectomy on patient J.H.a. Even though patient J.H. was found to have cancer in her thyroid, Respondent failed to perform a total thyroidectomy on J.H..b. Respondent removed J.H.’s parathyroid tissue during surgery.c. Respondent failed to note in the operative report as to whether or not a frozen section of the thyroid specimen was performed.

  d. Prior to J.H.’s surgery, Respondent failed to memorialize in J.H.’s medical records any physical exam or a complete history and physical.

  e. Prior to J.H.’s surgery, Respondent performed an incomplete pre-operative work-up on patient J.H. in that no ultrasound, thyroid scan or fine needle aspiration biopsy was performed.

• 13. On or around June 12, 2003, Respondent performed a left superficial parotidecotmy on patient N.T., who had initially presented with a possible left parotid tumor.a. In his pre-operative work-up, Respondent failed to perform a CT scan on patient N.T.’s neck or perform a needle aspiration biopsy of the patient’s parotid mass. In addition, Respondent failed to prescribe antibiotics to shrink the mass before considering surgery.b. During N.T.’s surgery, Respondent removed N.T.’s parotid specimen in a piece-meal fashion without knowing the pathology present. In the alternative, Respondent failed to submit a parotid specimen to pathology for analysis.c. Respondent failed to include in N.T.’s medical records N.T.’s pathology report.
• 14. On or around November 12, 2003, Respondent performed major naso-septal sinus surgery and a thyroidectomy on patient P.B.a. Respondent performed both the major naso-septal sinus surgery and the thyroidectomy on patient P.B. at the same time.b. Post-operatively, patient P.B. had considerable airway distress and had to be taken back to the operating room to have a hematoma evacuated and controlled. After the second surgery, patient P.B. had to have an emergency tracheotomy performed. Patient P.B. was discharged with the tracheotomy.c. In P.B.’s operative note, Respondent failed to identify P.B.’s parathyroids.
• 15. On or around April 28, 2003, Respondent performed a tonsillectomy and adenoidectomy (with tube placement) on patient H.S., an 11-year old child.a. Patient H.S. initially presented with otitis media, adenotonsillar hypertrophy and Eustachian tube dysfunction.b. Prior to surgery in which he placed PE tubes, Respondent failed to perform audiometric testing on patient H.S.
• 16. On or around May 7, 2003, Respondent performed an adenoidectomy (with tube placement) on patient J.H., a 5-year old child. Prior to the surgery, Respondent failed to perform audiometric testing on patient J.H.

III. CAUSES OF ACTION

The facts as alleged in Section II of this Notice of Charges are sufficient to establish violations by the Respondent of the following statutes or rules, which are part of the provisions of the Tennessee Medical Practice Act, (TENN. CODE ANN. ﾧ 63-6-101, et seq.), for which disciplinary action before and by the Board is authorized:

• 17. The allegations of Fact in Section II, paragraphs 12 through 16, supra, constitute grounds for disciplinary action against Respondent’s medical license in the State of Tennessee pursuant to TENN. CODE ANN. ﾧ 63-6-214(b)(1): Unprofessional, dishonorable, or unethical conduct.
• 18. The allegations of Fact in Section II, paragraphs 12 through 16, supra, constitute grounds for disciplinary action against Respondent’s medical license in the State of Tennessee pursuant to TENN. CODE ANN. ﾧ 63-6-214(b)(2): Violation or attempted violation, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision of this chapter or any lawful order of the board issued pursuant thereto, or any criminal statute of the state of Tennessee.
• 19. The allegations of Fact in Section II, paragraphs 12 through 16, supra, constitute grounds for disciplinary action against Respondent’s medical license in the State of Tennessee pursuant to TENN. CODE ANN. ﾧ 63-6-214(b)(4): Gross malpractice, or a pattern of continued or repeated malpractice, ignorance, negligence or incompetence in the course of medical practice.
• 20. The allegations of Fact in Section II, paragraphs 12(d) and 13(c), supra, constitute grounds for disciplinary action against Respondent’s medical license in the State of Tennessee pursuant to TENN. CODE ANN. ﾧ 63-2-101(c)(2) and Rule 0880-2-.15, O.C.R.R.S.T, which requires all medical records produced in the course of the practice medicine to include the patient’s medical history, records, reports, summaries, diagnoses, prognoses, records of treatment and medical ordered and give, X-ray and radiology interpretations, physical therapy charts and notes, and lab reports.

• 23. The Tennessee Medical Practice Act provides guidance for use by the Board in assessing civil penalties pursuant to that legislation.
• 24. Rule 0880-2-.12(4)(d)(3), O.C.R.R.S.T. reads in pertinent part: “In assessing a civil penalty pursuant to these rules the board may consider the following factors:(i) Whether the amount imposed will be a substantial economic deterrent to the violator; (ii) The circumstances leading to the violation;(iii) The severity of the violation and the risk of harm to the public;(iv) The economic benefits gained by the violator as a result of non-compliance; and,

  (v) The circumstances leading to the violation.”

• 25. Based upon the facts and causes of action in this Notice of Charges, the Division proposes the assessment of the following number, type, and amount of civil penalties, pursuant to TENN. CODE ANN. ﾧ 63-1-134 and Rule 0880-2-.12(4)(b)(1), O.C.R.R.S.T.:Five (5) Type ‘A’ civil penalties in the amount of one thousand dollars ($1,000.00) each, for a total amount of five thousand dollars ($5,000.00) in civil penalties, representing five (5) violations of the Tennessee Medical Practice Act or regulations or both..
• 26. Civil penalties may also be initiated and assessed by the Board during consideration of any Notice of Charges. In addition, the Board may, upon good cause shown, assess a type and amount of civil penalty which was not recommended by the Division. Rule 0880-2-.12(4)(d)(2), O.C.R.R.S.T.

V. NOTICE AND PETITION FOR RELIEF

WHEREFORE, premises considered, the Division, by and through counsel, hereby:

• 27. Issues to the Respondent a copy of this Notice of Charges and Memorandum for Assessment of Civil Penalties.
• 28. Gives Notice that if the Respondent does not enter an appearance and defend, a default judgment may be entered.
• 29. Gives Notice that this matter will be presented for full hearing as a contested case to a panel of the board on July 18, 2007, beginning at 8:30 a.m. C.S.T., or as soon thereafter as the Board may take up this matter, at the First Floor, Heritage Place, MetroCenter, 227 French Landing, Nashville, Tennessee 37243, or at a location yet to be determined.
• 30. Petitions that at the hearing of this cause, the Board determine:(1) whether the Respondent is guilty of violating the provisions of TENN. CODE ANN. ﾧ 63-6-101, et seq. or the rules duly promulgated by the Board;(2) whether the proposed civil penalties shall be assessed or whether a different type and amount of civil penalty is justified; and(3) whether Respondent’s license to practice as a medical doctor should be suspended, revoked or otherwise disciplined.

  Respectfully submitted this _____ day of June, 2007.

  S. Alexa Whittemore (B.P.R. #021279)

  Assistant General Counsel

  Office of General Counsel

  Tennessee Department of Health

  Plaza I, Suite 210

  220 Athens Way

  Nashville, Tennessee 37243

  (615) 741-1611

  CERTIFICATE OF SERVICE

  The undersigned hereby certifies that a true and correct copy of this document has been served upon Respondent, Bruce D. Pancake, M.D., 1736 Gunbarrel Road, Chattanooga, Tennessee, 37421 and 1622 Riverview Road, Chattanooga, Tennessee 37405, by delivering same in the United States Mail, Certified Mail Numbers 7005 2570 0001 2271 6041 and 7005 2570 0001 2271 6058, return receipts requested, and United States First Class Mail, Postage Prepaid, and Respondent’s attorney, Garrett E. Asher, Esq., Parker, Lawrence, Cantrell and Dean, Noel Place 5th Floor, 200 Fourth Avenue North, Suite 500, Nashville, Tennessee 37219-2102, by United States First Class Mail, Postage Pre-Paid, with sufficient postage thereon to reach its destination.

  This ______ day of June, 2007.

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  S. Alexa Whittemore Assistant General Counsel Tennessee Department of Health