STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF ) OSTEOPATHIC MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-291

)

PAUL GLASSMAN, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the final hearing was conducted in the above case on June 20 and 21, 1978, in Miami, Florida. The following appearances were entered: Ronald C. LaFace, Tallahassee, Florida, for the Petitioner, Florida State Board of Osteopathic Medical Examiners; and Alan E. Weinstein, Miami, Florida, for the Respondent, Paul Glassman, D.O.

On or about February 4, 1977, the Petitioner, Florida State Board of Osteopathic Medical Examiners, filed an Administrative Complaint against the Respondent, Paul Glassman, D.O. The Petitioner is seeking to suspend or revoke the Respondent's license to practice as an osteopathic physician. The Respondent requested that a formal hearing be conducted. On February 14, 1977, the Petitioner forwarded the Respondent's request for a hearing to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was originally scheduled to be conducted on June 14, 1977, by notice dated March 18. The Petitioner filed a Motion for Continuance, which was granted, and the final hearing was rescheduled to be conducted on September 27, 1977. The parties thereafter filed a Joint Motion for Continuance, and the hearing was rescheduled to be conducted on December 5, 1977. The Respondent then moved for a continuance and the final hearing was rescheduled to be conducted on January 19, 1978. The Petitioner then filed a Motion to Amend its Complaint by Adding an Additional Count. The motion was granted, and an Amended Notice of Hearing was issued to reflect the second count of the complaint. Count II related to matters for which the Respondent was being criminally prosecuted. The Respondent requested a continuance pending trial of the criminal charges. The motion was granted. On April 4, 1978 the undersigned was advised that the criminal trial was completed, and the final hearing was scheduled to be conducted on June 20 and 21, 1978, by notice dated April 10.

At the commencement of the final hearing, the Respondent moved to dismiss both counts of the complaint, to include television media, specifically cameras, from the hearing room, and for recusal of the Hearing Officer. The motions were unmeritorious and were denied. The basis for the motion for recusal was that the Hearing Officer is employed by the State of Florida, and that the Petitioner is an agency of the State of Florida; and that the Hearing Officer has heard other cases at which counsel for the Petitioner participated. No assertion was made that the Hearing Officer was in any manner prejudiced or biased against the

Respondent, or that the Hearing Officer was in any manner incompetent to conduct the proceeding.

The Petitioner called the following witnesses: Karen Puntervold, an employee of the medical records section at Osteopathic General Hospital in Miami Beach, Florida; Dr. Stanley B. Kaye, an osteopathic surgeon associated with Osteopathic General Hospital; Roy Willis, a former employee of the maintenance section of Martin Luther King Memorial Hospital, Miami Beach, Florida; Lewis Hernandez, a registered nurse formerly employed at King Memorial Hospital; Dr.

Miguel Dreize, a resident at Jackson Memorial Hospital, Miami, Florida who formerly worked at King Memorial Hospital; Dr. Carlo F. Corrales, an osteopathic physician who is associated with Osteopathic General Hospital; Dr. Thomas B. Turner, the Medical Director of the John Elliott Blood Bank, Inc., Miami, Florida; Dr. Donald C. Bergman, an osteopathic physician associated with Osteopathic General Hospital; Ron Paulin, a claims supervisor employed by Allstate Insurance Company; Dr. Jay M. Cohen, an osteopathic physician; and Dr. Ronald Keith Wright, the Deputy Chief Medical Examiner for Metro-Dade County, Florida. The Respondent testified as a witness on his own behalf, and called the following additional witnesses: Dr. Maxwell N. Greenhouse, an osteopathic physician, and a medical doctor; Dr. Mark Feinstein, an osteopathic physician who is in general practice in North Miami Beach, Florida; Dr. Leon Shore, a general surgeon who is in general practice in Dade County, Florida; Dr. Richard

1. Litt, a physician who is in general practice in Dade County, Florida; and Dr. Alan Noah Fields, an osteopathic surgeon who practices in Dade County, Florida. Hearing Officer's Exhibit 1; Petitioner's Exhibits 2, 3, 4, 6, 8, 10, and 11-15; and Respondent's Exhibits 1-4 were offered into evidence and were received. Petitioner's Exhibits 1, 5, and, 7 were offered into evidence and were rejected. Petitioner's Exhibits 9 and 16 and Respondent's Exhibit 5 were identified for the record, but were not placed in evidence and did not become a part of the record.

   
   

   In addition to the testimony offered at the hearing, the parties stipulated to the submission of the testimony of various persons through a transcription of testimony given during the pendency of the related criminal proceeding. These transcriptions were ultimately received by the undersigned on December 18, 1978. The parties were thereafter granted several extensions in the briefing schedule that had been arranged at the final hearing, and the parties have each submitted proposed findings of fact and conclusions of law.

   
   

   In Count I of the Administrative Complaint, it is alleged that the Respondent performed a termination of pregnancy procedure on a patient, that complications developed after the procedure was completed, and that the Respondent failed to adequately react to the complications, which failure ultimately resulted in the patient's death. The Respondent is charged with unprofessional conduct in violation of 459.14(2)(m), Florida Statutes. In Count II it is alleged that the Respondent conspired with other individuals to commit grand larceny, and that the Respondent did commit grand larceny. At the hearing the allegations of Count II respecting a conspiracy were dismissed by the Petitioner. With respect to Count II the Petitioner and the Respondent stipulated that in the event the Respondent's conviction of criminal charges should later be reversed on appeal, the Petitioner would thereafter dismiss Count II of the Administrative Complaint, and void any penalty that may have been assessed based upon an adjudication with respect to the allegations of Count II.

   
   

   Several competent expert witnesses, familiar with acceptable standards of care in the community in which the Respondent practices, and familiar with what

   would constitute unprofessional conduct, testified with respect to whether the Respondent's conduct constituted unprofessional conduct. The witnesses' testimony diverged sharply. In resolving the conflicting testimony, regard has been given to the professional qualifications of the witnesses, the demeanor of the witnesses at the hearing, and the degree to which the witnesses were interested in the outcome of the proceeding, either because of their personal or professional relationship with the Respondent, or because of an interest in the proceeding revealed by their demeanor.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent is duly licensed by the Florida State Board of Osteopathic Medical Examiners as an osteopathic physician and surgeon. He has been a licensed practicing osteopathic physician since July, 1962. He has a very sound educational and professional background, and is on the staff of three hospitals. He is presently engaged in the general practice of osteopathic medicine in Dade County, Florida.

      
      

   2. During March, 1976, the Respondent was associated with the Martin Luther King Memorial Hospital in Miami Beach, Florida. King Memorial is not a full service hospital. Its facilities are approximately the size of an average house. It has x-ray equipment, but it does not have a blood bank. King Memorial is not equipped to perform major surgery. Prior to March 13, 1976, Cycloria Vangates, a 32-year old black female, visited King Memorial. She was pregnant, and she wished to terminate the pregnancy. Miguel Dreize, M.D., who was at that time associated with the Respondent at King Memorial, examined Mrs. Vangates. He had difficulty determining the precise term of Mrs. Vangates' pregnancy, but he estimated that she was at the beginning of the second trimester. Dr. Dreize determined that Mrs. Vangates was anemic. He treated her in order to improve that condition. She was scheduled to have an abortion on the morning of March 13, 1976. Her blood was re-tested prior to the operation being performed, and it was determined that she was in good condition.

      
      

   3. The Respondent was in charge of performing the abortion. He was assisted by Dr. Dreize. The procedure was performed without significant incident. A small laceration on the cervix on the outside of the uterus was observed, and it was corrected. Immediately after the surgery at approximately 9:30 a.m., Mrs. Vangates' vital signs were good. Her blood pressure was 120/60, and her pulse rate was normal. Within ten to thirty minutes later the patient's blood pressure was again taken by a nurse, and the pressure had fallen drastically to 60/?. The nurse summoned the Respondent. The Respondent placed the patient on i.v. fluid, and administered Aramine. Aramine is a drug which constricts blood vessels, thus reducing the cardiovascular space, causing blood pressure to increase. Aramine can effectively raise blood pressure, but if reduction of blood pressure is caused by a loss of blood, Aramine does nothing to replace the lost fluid. The patient's blood pressure rose, but only to approximately 70/40. Her blood pressure remained fairly stable at that rate, falling gradually until by approximately 1:40 p.m. the blood pressure reading was 50/40. No vaginal bleeding was observed, and the patient's stomach was not hardened nor distended, which would indicate severe internal bleeding. By 1:00

      p.m. the patient was described as "clammy". At approximately 12:00 noon the Respondent ordered blood from a local blood bank. He requested that the blood be ordered "STAT". This is an acronym which would indicate that the blood was needed on an emergency basis. Despite the Respondent's instruction, the nurse who filled out the order form ordered the blood on an "ASAP" basis. This designation would indicate that the blood was needed "as soon as possible", but not on a high priority basis. An employee of King Memorial was sent to the

      blood bank (the John Elliott Blood Bank). The blood bank is located approximately 30 minutes away from King Memorial by automobile. The employee drove to the blood bank, and submitted the order form. He waited there, and approximately 30 minutes later was told that he had the wrong papers, and insufficient samples. He returned to King Memorial, and received a corrected order form, which still reflected that the blood was needed on an "ASAP" basis. He returned to the John Elliott Blood Bank. He then waited 30 to 45 minutes more before the blood was delivered to him, and he returned with it to King Memorial. The blood did not ultimately arrive at King Memorial until approximately 3:00 p.m. when it was immediately administered to the patient.

      The Respondent had earlier administered a plasma substitute known as Dextran. The Respondent left King Memorial at approximately 1:40 p.m. to attend to patients at a different facility. He left the patient under the care of another physician. By 3:00 p.m. the patient's condition was deteriorating. Her stomach was beginning to distend. The Respondent was contacted, and he gave instructions to immediately arrange a transfer of the patient to Osteopathic General Hospital in Miami Beach. Osteopathic General Hospital is located approximately 8 minutes by automobile away from King Memorial. The Respondent notified physicians at Osteopathic General of Mrs. Vangates' condition, and personnel at Osteopathic General prepared for emergency surgery. At least three phone calls were made to the ambulance service following 3:00 p.m. Despite these efforts, and the fact that the two hospitals were located in such close proximity, the ambulance did not arrive at King Memorial until 4:22 p.m.

      
      

   4. When Mrs. Vangates arrived at Osteopathic General, she was in hypovolemic shock. This is a condition characterized by loss of fluid within the vascular space. She had virtually no vital signs, and an irregular heart beat. She was suffering from uterine hemorrhage, and brain damage which resulted from the loss of blood. An abdominal incision was made, and considerable blood and blood clots were found. An artery on the right side of her abdomen was damaged, and there was a 6 cm x 7 cm tear in the uterus, and a rupture of the entire uterine wall. An emergency hysterectomy was performed. On March 17, 1976, Mrs. Vangates died. She had lost considerable blood following surgery on March 13, and the loss of blood caused damage to the patient's vital organs. She died as a result.

      
      

   5. When the patient's blood pressure dropped drastically following surgery, the Respondent concluded that since there were no additional indications of hemorrhage, the cause was loss of blood during surgery, and a reaction to the anesthesia that had been administered. It is for that reason that he took steps to administer Aramine, so as to cause a rapid rise in the blood pressure. The Respondent's conclusion as to the cause of the drop in blood pressure was at that time reasonable under the circumstances. Lacerations and ruptures of the uterus are not an uncommon occurrence during the performance of abortions. This is especially so when an abortion is performed in connection with a pregnancy in the second trimester. In view of the possibility that the drop in blood pressure could have been the result of a substantial loss of blood, and the fact that blood was not available at King Memorial, the Respondent should have immediately ordered blood at the first signs of the drastic reduction in the patient's blood pressure. Administering Aramine was at best a temporary solution. Administering a plasma substitute was also a temporary measure. The Respondent did not make any effort beyond superficial ones to determine whether the patient was bleeding. By waiting until 12:00 noon to order the blood, he subjected the patient to the risk that the blood could not be obtained efficiently. Due to the facts that the blood was not ordered until 12:00 noon, that the blood was not obtained efficiently, and that the ambulance was slow in arriving, the patient's vital organs were subjected to

      damage as a result of loss of blood, ultimately resulting in her death. While the Respondent is not fully responsible for the delays, he was in a position to have taken steps that would have obviated the disastrous effects of the delays.

      
      

   6. In Count II of the Petitioner's complaint against the Respondent it is alleged as follows:

      
      

      That you, PAUL S. GLASSMAN, beginning on the 21st day of June, 1975 and continuing

      through the 22nd day of April, 1976, did unlaw- fully and feloniously agree, conspire, combine or confederate with ESTEBAN BOVEDA; MERCEDES BOVEDA; ESTEBAN BOVEDA, JR; MARIVA BOVEDA;

      OSWALDO MAERO and with others, to commit a felony to-wit: Grand Larceny and in further- ance of the unlawful scheme or conspiracy, you did meet with the above mentioned indi- viduals on various occasions to discuss and plan details as to the time, place and method of the commission of acts leading to the said larceny of monies from insurance companies

      by way of false and fraudulent claims to be made upon them as a result of contrived and

      false injuries, in violation of Section 777.04(3) and Section 833.04, Florida Statutes.

      
      

      In addition, on the following dates and

      times you did unlawfully and feloniously steal from the possession and lawful custody of the following named companies goods and lawful

      money in excess of One Hundred Dollars ($100.00) with the intent to permanently deprive or defraud the true owner of its property in vio- lation of Section 812.021(1)(a), (2)(a)

      Florida Statutes:

      
      

      November 3, 1975 Allstate Insurance Company

      March 3, 1976 Omaha Indemnity Company December 24, 1975 The Unity Mutual Life

      Insurance Company January 15, 1976 The Prudential Insurance

      Company of America

      
      

      The above is in violation of Section 459.14(2) (h), (k), (m) and (n) , Florida Statutes.

      
      

   7. At the hearing the Petitioner, through counsel, dropped the allegations of conspiracy, and stipulated that in the event the Respondent's conviction on the remaining charges were overturned on appeal, those charges would also be dismissed. To establish the allegations contained in Count II, the Petitioner presented a transcription of the testimony of Esteban Boveda, Mercedes Boveda, Esteban Boveda, Jr., and Maria Boveda. This testimony was originally presented at a criminal trial involving the same facts. The testimony of the Bovedas has been carefully examined, and it is concluded that their testimony is not worthy of belief. Esteban Boveda testified that he arranged with Oswaldo Maero to stage an automobile accident, and to stage fake injuries on the part of members of his family. Boveda testified that Maero made all of the arrangements, and

      gave all the instructions. Ultimately each of the Bovedas was examined by the Respondent, Dr. Glassman, who had them hospitalized. Esteban Boveda's testimony is not credible. In the first place, he was an admitted conspirator in a scheme to defraud numerous insurance companies, and he was willing to involve his wife, his 13 year old son, and his 10 year old daughter in the scheme, instructing each of them to lie about the accident. Furthermore, he plead guilty to criminal charges similar to those lodged against the Respondent, in exchange for an agreement that he would be placed on probation rather than in prison. It is clear that these events occurred at a time when Boveda had very little understanding of the English language, and none of his testimony with respect to anything Dr. Glassman said or did is worthy of belief. Mercedes Boveda, Esteban's wife, gave conflicting statements to the State's Attorney, during her depositions prior to the criminal trial, and at the criminal trial. Her willingness to lie on her husband's behalf was amply demonstrated. She, like her husband, had very little understanding of the English language, and her testimony is not creditable. The testimony of the two Boveda children is likewise not worthy of belief. They each testified that they would lie on their father's behalf if they were instructed to do so. It is evident that they were instructed to do so during the course of the accident, and that they would be willing to lie in court if so instructed by their father. The children had been in the United States for only one year at the time of these events, and had minimal understanding of the English language. All of the testimony that exists with respect to anything the Respondent said to the Bovedas about their injuries came from the two Boveda children. Their testimony was too clear and unambiguous in this respect, while being totally ambiguous and unclear in all other respects, to be worthy of belief.

      
      

   8. The Respondent testified on his own behalf with respect to the allegations of Count II. He testified that he diagnosed the Bovedas' ailments based on the history, and that his diagnosis was confirmed by other physicians. He testified that he was not part of any conspiracy to defraud insurance companies, and that he received only a single payment for the treatment that he administered the Bovedas. The Respondent's testimony is creditable, and has been accepted.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Sections 120.57(1), 120.60, Florida Statutes.

      
      

   10. Section 459.14(2)(m), Florida Statues, provides that the State Board of Osteopathic Medical Examiners may suspend or revoke the license of an osteopathic physician for the following reason:

       
       

       A finding by the board that the individual is guilty of immoral or unprofessional conduct. Unprofessional conduct shall include any departure from, or failure

       to conform to, the minimal standards of acceptable and prevailing osteopathic medical practice, without regard to the injury of a patient, or the committing of any act contrary to honesty, whether the same is committed in the course of practice or not.

       The Respondent's treatment of Cycloria Vangates subsequent to the termination of pregnancy procedure, failed to conform to the minimal standards of acceptable and prevailing osteopathic medical practice. The evidence does not establish that the Respondent performed the abortion in other than a proper manner, and it appears that his diagnosis and treatment subsequent to the abortion were acceptable. In view of the facts, however, that blood was not available for the patient at King Memorial Hospital, that her symptomatology was consistent with internal bleeding, that a laceration of the uterus was known to have occurred during the abortion, and that the consequences of internal bleeding were potentially so severe, minimal standards of acceptable osteopathic medical practice would have required that Dr. Glassman check further with respect to the possibility of internal bleeding, and immediately have blood available in the event that that was the case. The testimony in this case would not support a finding that the Respondent was responsible for the death of Cycloria Vangates. His staff failed to adequately follow his instructions in ordering blood. The blood bank took a cavalier attitude toward delivery of the blood. The ambulance did not respond promptly. Whether the Respondent is accountable for the patient's death, however, is not the issue in this proceeding. His failure to take adequate precautions in view of all attendant circumstances establishes that the Respondent is guilty of a violation of the statute.

       
       

   11. The Petitioner has failed to establish that the Respondent committed the offenses charged in Count II of the complaint.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby

RECOMMENDED:

1. That a final order be entered finding the Respondent, Dr. Paul Glassman, guilty of a violation of Section 459.14(2)(m), Florida Statutes, and suspending his license to practice osteopathic medicine for a period of one year.

   
   

2. That a final order be entered finding that the Petitioner has failed to establish that the Respondent committed the offenses charged in Count II of the Administrative Complaint, and dismissing Count II.

RECOMMENDED this 26th day of April, 1979, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302

Alan E. Weinstein, Esquire Suite 386,

420 Lincoln Road

Miami Beach, Florida 33139

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF ) OSTEOPATHIC MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-291

)

PAUL GLASSMAN, D. O., )

)

Respondent. )

)

APPENDIX TO RECOMMENDED ORDER, RULINGS

IN ACCORDANCE WITH FLORIDA STATUTES 120.59(2)

The parties have submitted proposed findings of fact and conclusions of law. Rulings upon the proposed findings and conclusions are set out herein in accordance with 120.59(2), Florida Statutes.

Proposed findings of fact set out in paragraphs 1 and 3 of the Petitioner's proposed findings of fact respecting Count I of the complaint are hereby adopted. The proposed findings set out in paragraph 2 under Count I are adopted, except that Dr. Wright's conclusion that the Respondent was guilty of manslaughter is not adopted. Petitioner's proposed findings of fact with respect to Count II have been rejected. The testimony of the Bovedas has been found to be not creditable.

The Respondent's proposed findings of fact have been substantially adopted in the Recommended Order. The Respondent's proposed findings are hereby adopted to the extent that they are not directly in conflict with the findings set out in the Recommended Order, except as follows: The proposed findings or conclusions set out in paragraphs A and B of Part II beginning on page 4, and paragraph 3 beginning on page 6 are rejected.

ENTERED this 26th day of April, 1979, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302

Alan E. Weinstein, Esquire Suite 386

420 Lincoln Road

Miami Beach, Florida 33139

Docket for Case No: 77-000291

Orders for Case No: 77-000291