STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, )

BOARD OF MEDICAL EXAMINERS )

Petitioner, )

)

vs. ) CASE NO. 81-1211

) JOSE ANTONIO BENAVIDES, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in the State Office Building at 1350 N. W. 12th Avenue, Miami, Florida. (The Recommended Order is being entered after receipt of a posthearing deposition of Dr. William Espinoza, which closed the record. This deposition was received in the office of the Division of Administrative Hearings on August 28, 1981.)

APPEARANCES

For Petitioner: Deborah Miller, Esquire

Assistant General Counsel

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: John Duhig, Esquire

1133 City National Bank Building

25 West Flagler Street Miami, Florida 33130

ISSUES

This case concerns an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Jose Antonio Benavides,

1. It accuses the Respondent of violating Subsection 458.331(1)(t) , Florida Statutes, related to gross or repeated acts of malpractice or the failure to practice medicine in keeping with the level of care, skill and treatment Prescribed by that provision. The matter specifically relates to Dr. Benavides' treatment of the patient Beatrice Fisher.

   
   

   FINDINGS OF FACT

   
   

   1. By Administrative Complaint dated April 10, 1981, State of Florida, Department of Professional Regulation, Board of Medical Examiners, Petitioner seeks to revoke, suspend otherwise discipline Jose A. Benavides, medical doctor. As grounds, it is alleged that the Respondent inappropriately failed to diagnose

      carcinoma in a patient in violation of Section 458.331(1)(t) , Florida Statutes (1979)

      
      

   2. At the hearing the Petitioner presented five (5) witnesses. Further, the Petitioner introduced five (5) exhibits which were received into evidence.

      
      

   3. The Respondent testified in his own behalf and was permitted to introduce the testimony of his expert witnesses in the form of deposition. The deposition of Dr. William Espinoza was taken on August 19, 1981.

      
      

   4. The Respondent's other expert witnesses, Dr. George Dabiglus and Dr. Bienendo Benach were unavailable for their scheduled depositions on August 19, 1981. At that time the parties contacted the Hearing Officer and the Respondent requested that the matter be continued so that the depositions of Dr. Benach and Dr. Dabiglus could be taken at a later date. Counsel for the Petitioner noted her objection to a continuance. In light of the fact that these witnesses were not subpoenaed and the prejudice to the Petitioner resulting from unwarranted delay in these proceedings, the Respondent's request for a continuance was denied. The petitioner, however, stipulated that the testimony of Dr. Benach and Dr. Dabiglus would be substantially the same as that of Dr. Espinoza.

      
      

      Material Facts

      
      

   5. Jose A. Benavides, .D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation as a medical doctor and was so licensed at all times pertinent to this case. The Respondent has engaged in family practice, obstetrics and gynecology since becoming licensed in Florida in 1975. In addition, Respondent has received special training in obstetrics, gynecology, and surgery.

      
      

   6. On August 13, 1979, the Respondent saw the patient Beatrice Fisher for the first time. Ms. Fisher had been the patient of Dr. T. Brandwein, whose practice Dr. Benavides assumed. On the occasion of the first visit, Ms. Fisher complained that she had blood in her urine and in the face of this complaint, the Respondent had an urinalysis performed, the results of which may be found in the Petitioner's Exhibit No. 1, admitted into evidence. Those results, by their general nature, were negative. At the time of this visit, no other procedures were undertaken by the Respondent to determine if the bleeding had its origin as a vaginal or rectal discharge. (Ms. Fisher was a woman in her seventies whose menopausal cycle had ceased a number of years before.)

      
      

   7. On this first visit, the patient was also concerned about not being able to sleep, and complained of back pain and swelling in her right hand. At that point the Respondent diagnosed the case as a matter of deep depression and continued the medication that had been prescribed by the prior physician.

      
      

   8. Dr. Benavides saw the patient again on August 20, 1979, and the normal urinalysis was reported. On this occasion the patient described a problem with pain when she walked or stood up. In response to this, Dr. Benavides continued the previously prescribed medication. (The medication prescribed on the August

      13 and 30, 1979, visits may be found in Petitioner's Exhibit No. 2.)

      
      

   9. The patient Fisher, returned to the office of Dr. Benavides on September 4, 1979, and had as complaint, the fact that she felt tired and was concerned about getting enough rest. She was particularly concerned about her inability to sleep. At this time, Dr. Benavides prescribed medication for depression as set forth in Petitioner's Exhibit No. 2.

   10. The next office visit by Ms. Fisher to Dr. Benavides occurred on September 28, 1979. At that time, Ms. Fisher complained about vaginal bleeding. Dr. Benavides conducted a pelvic examination which revealed a bloody vagina and odorous discharge from the vaginal region. The pelvic examination in its gross terms found the vagina to be acceptable and the uterus to be small and hard. According to the patient, this discharge had been occurring for approximately two weeks. Dr. Benavides also did a pap smear. No other examination or tests were conducted at that time to ascertain the agent responsible for the bleeding. Dr. Benavides did note in the file the probability of a malignancy and recommended that the patient return to his office in a month. Although there was no discussion about malignancy with the patient, the patient told Dr. Benavides about problems with cancer in her family and the fact that her son, mother, aunt and brother had died from this disease. On this visit, Dr. Benavides found that the patient's state of depression had improved.

       
       

   11. On October 2, 1979, Ms. Fisher called Dr. Benavides to get the results of the pap smear test and she was told that he might have to conduct another pap smear test, notwithstanding negative results from the test.

       
       

   12. The next office visit with the patient occurred on October 15, 1979. At that time, the patient was still experiencing a discharge in the way of staining, or spotting. Again Dr. Benavides noted his concern about possible malignancy. He also expressed concern about infection in the vaginal area. He described this spotting as chocolate in color, and odorous. A vaginal culture was taken and the results of that culture were normal, with the exception of a moderate amount of proteus mirabilis for which he prescribed tetracycline, an antibiotic. The prescription was dated the date of the visit. The results of the vaginal culture were made known on October 18, 1979, and may be found in Petitioner's Exhibit No. 2. Dr. Benavides did not discuss the possible malignancy with the patient Fisher on the October 15, 1979, visit.

       
       

   13. Dr. Benavides was of the persuasion that the vaginal culture was indicated to rule out the malignancy; however, the testimony of experts in the field of medicine offered in the course of the hearing, shows that such a test would not rule out a malignancy in the uterus. Ms. Fisher at this visit continued to express her concern that her condition might be caused by cancer.

       
       

   14. On October 18, 1979, the patient Fisher called the Respondent and was still complaining of staining, a bloody discharge. Medication was prescribed as set forth in the Petitioner's Exhibit No. 2 and the patient was told that the results of the laboratory test performed from the vaginal culture were negative.

       
       

   15. The records of the Respondent indicate a further prescription was written for the patient on November 6, 1979, and this followed a call on that date by the patient Fisher to the Respondent in which she continued to complain about staining.

       
       

   16. On December 7, 1979, the patient Fisher returned to the doctor's office and complained of the problem with her knee and certain medications were prescribed. No further discussion was held on the subject of vaginal bleeding and no further tests were performed to ascertain the cause of that bleeding.

   17. On January 23, 1980, Ms. Fisher went to see her Opthalmologist, Dr. Robert Goldwyn. Dr. Goldwyn mentioned that he felt Ms. Fisher did not look well and there ensued discussion about the reason for her appearance, in which she described her problem with vaginal bleeding. Dr. Goldwyn immediately referred the patient to Dr. Arthur Rudolph, a specialist in obstetrics and gynecology, who was in Dr. Goldwyn's building.

       
       

   18. On January 23, 1980, Dr. Rudolph saw Ms. Fisher. Dr. Rudolph is a physician admitted to practice in the State of Florida, who has twenty-five (25) years experience. After examining the patient Fisher, he indicated to her that she needed to be hospitalized to have dilatation and curettage performed. He also performed a pap smear and found it to be Class III, that is suspicious carcinoma.

       
       

   19. On January 31, 1980, the patient Fisher was admitted to Baptist Hospital of Miami. A dilatation and curettage examination was performed revealing adenocarcinoma of the endometrium with superficial invasion. There followed a total abdominal hysterectomy and bilateral salpingo-oophorectomy. Following the operation, Dr. Rudolph finds the patient's outlook to be good. Nevertheless, it is not known whether or not the problem with carcinoma is concluded. The findings of Dr. Rudolph's proceedings may be found in Petitioner's Exhibit No. 3, admitted into evidence.

       
       

   20. Further, testimony by Dr. Rudolph establishes that there is a presumption of possible malignancy any time bleeding is observed in a post- menopausal patient whose last menstrual cycle occurred one year or more before the event of bleeding. In this instance, Ms. Fisher's last menstrual cycle had occurred some twenty (20) years before her complaints with bleeding. To determine if there is carcinoma in the uterus, Dr. Rudolph correctly indicates that suction curettage or dilatation and curettage are proper methods of detection. A pap smear would be a method of detection of carcinoma in the cervix, but not in the endometrium, as established by the expert, Dr. Rudolph. Assuming that September 28, 1979, was the first complaint of this bleeding, it was inappropriate for a month to transpire before scheduling the next appointment, as identified by Dr. Rudolph. The pap smear followed by suction curettage or dilatation and curettage should occur as soon as possible from detection of bleeding, in that there is a correlation between treatment success and time before treatment.

       
       

   21. Dr. Rudolph's testimony established that the vaginal culture was not an adequate method for determining cancer unless that cancer happened to be in the wall of the vagina.

1. Dr. Rudolph's examination of the medicines prescribed for the patient Fisher by the Respondent, with the exception of polymax with which Dr. Rudolph was not familiar, established that those other medicines were not valid in the detection of carcinoma. Dr. Rudolph correctly asserts that the Respondent's care and treatment of the patient Fisher, especially as related to diagnostic tests and procedures, was inconsistent with the care which is recognized by a reasonably prudent physician in the Dade County, Florida, community in which Dr. Rudolph and Dr. Benavides practice medicine, either for specialists in obstetrics and gynecology or family practitioners.

   
   

2. Dr. Edwin Crane, a specialist in obstetrics and gynecology, licensed in the State of Florida, also gave testimony. Dr. Crane correctly stated in his testimony that complaints of vaginal bleeding in post-menopausal patients indicates possible carcinoma. He also identified the fact that a pap smear will

   not detect bleeding from the uterus and identified the proper method for establishing the cause of bleeding from the uterus to be the gravilee jet wash; endometrial bio-suction curettage and that if these methods proved negative a dilatation and curettage (scraping of the lining of the uterus) . The pap smear is not acceptable because if the cancer is high in the uterus, the smear is only positive 15 percent of the time. This fact was established through the witness Crane.

   
   

3. Assuming September 28, 1979, as being the first date of complaint of spotting, Dr. Crane felt that one or two weeks delay in any further consideration of this case might be acceptable, but in this instance Dr. Benavides intended to put off further procedures for a period of one month and when the patient returned on October 15, 1979, still did not undertake methods for identitying carcinoma in the uterus. Dr. Crane rightly indicates that speed in detection and treatment are vital in promoting a likelihood of cure.

   
   

4. An analysis of the drugs which Dr. Benavides, prescribed to the patient Fisher, as conducted by Dr. Crane, reveals those drugs were not valid in the detection or treatment of carcinoma.

   
   

5. Dr. Crane was of the persuasion that Dr. Benavides' treatment of the patient Fisher is not what would be expected from a reasonably prudent medical practitioner in the State of Florida, and that at a minimum, Dr. Benavides should have recommended procedures to be followed in detecting the reason for the bleeding and informed the patient that there was a possible malignancy, which was not done on this occasion.

   
   

6. Dr. William T. Mixson, licensed in the State of Florida, and an expert in obstetrics and gynecology, gave testimony. Dr. Mixson testified that if confronted with vaginal bleeding, the physician should take the history and describe the amount, color, odor of the blood, how long it had been present, any hormonal therapy and any trauma associated with this discharge. A physician, according to Dr. Mixson, when confronted with this condition, should examine the abdomen, pelvis (speculum) and rectum and should take a pap smear if there is no excessive bleeding. According to Dr. Mixson, post-menopausal bleeding is a sign of possible malignancy. The sources of that bleeding, per Dr. Mixson, would be the vagina, cervix or uterus, and the explanation for the bleeding in order of occurrence would be polyps, atropic vaginitus and carcinoma. In addition to a pap smear, an office biopsy from the endometrium or dilatation and curettage would have been an appropriate diagnostic method and to wait one month to conduct these proceedings was inappropriate. In Dr. Mixson's opinion vaginal cultures are not designed to detect carcinoma, but are more appropriate for identifying infections and the medications prescribed by Dr. Benavides for the benefit of the patient Fisher were not designed to diagnose or treat carcinoma. According to Dr. Mixson, Dr. Benavides' actions were not in keeping with those of a reasonably prudent physician either in the field of obstetrics and gynecology, or as a general practitioner. Dr. Mixson's perceptions as described are accepted.

   
   

7. The testimony by Dr. William Espinoza does not vary in a significant way on the subject of the proper care and treatment of a patient such as Ms. Fisher when contrasted with that of Drs. Crane, Rudolph and Mixson. If the facts were as established in this Recommended Order, Dr. Espinoza would not find Dr. Benavides' performance to be in keeping with that of a reasonably prudent practitioner licensed in the State of Florida. The difference in Dr. Espinoza's perception comes about in view of the fact that he would believe the Respondent's explanation of having discussed and advised Ms. Fisher of a

   possible malignancy on several occasions and attempting to have Ms. Fisher undergo dilatation and curettage. This explanation by the Respondent is not accepted. Therefore, the experts offered in the course of the hearing are in accord on the standard for a reasonably prudent practitioner confronted with a case similar to that of Ms. Fisher.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

9. By Administrative Complaint, the Petitioner has accused the Respondent of a violation of Subsection .458.331(1)(t), Florida Statutes, which makes it a violation for a physician to engage in gross malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician to be an acceptable practice under similar conditions and circumstances.

   
   

10. An examination of the Respondent's care and treatment of the patient, Beatrice Fisher, leads to the conclusions that his diagnostic methods were not acceptable and that his failure to advise the patient about the possible implication related to her gross physical condition, was such as to constitute gross malpractice and to reflect a failure on the part of Dr. Benavides to practice medicine with that level of care, skill and treatment, which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Therefore, Dr. Benavides is subject to the penalties set forth in Subsection 458.331(2), Florida Statutes.

    
    

11. In connection with the appropriate penalties, there is no indication in this record that the actions of Dr. Benavides were malicious in intent, rather as is suggested by the post hearing proposed order of the Petitioner's counsel, it reflects an educational deficit on the part of this practitioner in the area related to detection, and treatment of conditions such as that experienced by the patient Fisher. For that reason, it is:

RECOMMENDED that the Respondent, Jose A. Benavides, M. D., be suspended for a period of three (3) years from the practice of medicine in the State of Florida; however, that the operative terms of that suspension be withheld pending completion of a three (3) year probationary period in which time the Respondent shall be required to comply with terms of the Board of Medical Examiners relating to the scope of his practice of medicine, the structure of that practice, and the necessity for continuing medical education to be determined by the Board of Medical Examiners. If prior to the expiration of the three (3) year probationary term the Board of Medical Examiners were to determine, upon a showing given by the Respondent, that he is sufficiently competent to practice medicine with reasonable care and safety to patients, he should be released from this condition of probation. A further condition of probation is that the Respondent refrain from violating any statute or rule related to the practice of medicine in the State of Florida. In the event the Respondent should violate the terms and conditions of his probation as set forth, then the three (3) year suspension as set forth in this Recommended Order shall be imposed. (This Recommendation is in keeping with the suggested disposition made by Petitioner's counsel.) 1/

DONE and ENTERED this 14th day of September, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1981.

ENDNOTE

1/ Petitioner's counsel has submitted a Proposed Recommended Order and this Proposed Recommended Order has been reviewed prior to the entry of this Recommended Order. To the extent that that proposal is consistent with this Recommended Order, it has been utilized. To the extent that the proposed Recommended Order is inconsistent with this Recommended Order, it is hereby rejected.

COPIES FURNISHED:

Deborah Miller, Esquire Assistant General Counsel

130 North Monroe Street Tallahassee, Florida 32301

John Duhig, Esquire

1133 City National Bank Building

25 West Flagler Street Miami, Florida 33130

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DOAH CASE NO. 81-1211

JOSE ANTONIO BENAVIDES, M.D.,

License Number: 28797,

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This matter came for final action by the Board of Medical Examiners pursuant to Section 120.57(1)(b)9., F.S., at a public meeting on February 6, 1982, in Tampa, Florida, for review of the recommended order of the hearing officer entered herein. A transcript of the proceedings is available, if necessary.

FINDINGS OF FACT

1. Following a review of the complete record, the Board of Medical Examiners adopts and incorporates by reference the Findings of Fact of the hearing officer.

   
   

   CONCLUSIONS OF LAW

   
   

2. Following a review of the complete record the Board of Medical Examiners hereby adopts and incorporates by reference the Conclusion of Law of the hearing officer.

   
   

3. The Board hereby adopts the Recommendation of the hearing officer with the addition of the following: that Respondent be suspended unless and until he appears before the Board with a plan outlining a structured medical environment which is approved by the Board. IT IS THEREFORE

ORDERED AND ADJUDGED that the license to practice medicine in the State of Florida of Jose Antonio Benavides, M.D. , be and the same hereby is suspended for a period of three years; however, said suspension shall be stayed and the Respondent placed on probation for a period of three (3) years subject to the following terms and conditions: Respondent shall not in the future violate Chapters 455 or 458, F.S., or the rules promulgated thereunder: Respondent shall only practice in a structured medical environment approved by the Board; the Board may restrict the scope of Respondent's practice of medicine until Respondent has gone through retraining; and if prior to the expiration of the

three (3) year probationary term, the Board of Medical Examiners were to determine, upon a showing given by the Respondent, that he is sufficiently competent to practice medicine with reasonable care and safety to patients, he may be released from these conditions of probation; and in the event the Respondent should violate the terms and conditions of this probation as set forth, then the three (3) year suspension shall be imposed.

DONE AND ORDERED this 23rd day of February, 1981.

BOARD OF MEDICAL EXAMINERS

RICHARD T. CONARD, M.D.

Vice Chairman

cc: All Counsel of Record.

Jose Antonio Benavides, M.D. 18055 Franjo Road

Perrine, Florida 33156

Docket for Case No: 81-001211

Orders for Case No: 81-001211