STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, Board of Medical ) Examiners, )
)
Petitioner, )
)
vs. ) CASE NO. 81-1308
) RICARDO O. GERSHANIK, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on May 24-28, 1982, in Key West, Florida which was concluded on February 14-16, 1983, in Miami, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Douglas P. Jones, Esquire
and David W. Spicer, Esquire McFARLAIN BOBO STERNSTEIN
WILEY & CASSEDY, P.A.
Lewis State Bank Building Post Office Box 2174 Tallahassee, Florida 32316
For Respondent: Edward B. Johnson, Jr., Esquire
Post Office Box 1603
Lake Worth, Florida 33460
and
Jonathan P. Lynn, Esquire 2400 One Biscayne Tower Miami, Florida 33131
The issue for determination at the final hearing was whether the medical license of the Respondent Ricardo O. Gershanik, M.D., should be suspended, revoked or otherwise disciplined based on his care and treatment of Rose Mary Smith, Gary Sherertz and Rebecca Glover, which allegedly fell below the standard of care required of licensed medical doctors as stated in the Amended Administrative Complaint filed April 27, 1981.
PRELIMINARY STATEMENT
By five-count Amended Administrative Complaint filed April 27, 1981, the Respondent Ricardo O. Gershanik is charged in counts one and two with violating Sections 458.1201(1)(b) and (m), Florida Statutes (1977), and Sections 458.331(1)(1) and (t), Florida Statutes (1980), in his care and treatment of
Gary Sherertz while working at the Florida Keys Memorial Hospital in Key West, Florida, in August, 1977.
In counts three and four, the Respondent Gershanik is charged with violating Sections 458.1201(1)(b) and (m), Florida Statutes (1978), and Sections 458.331(1)(1) and (t), Florida Statutes (1980), in his care and treatment of Rose Mary Smith who was admitted to DePoo Memorial Doctors' Hospital in Key West, Florida, for lower back surgery in March, 1979.
The Respondent is charged in count five with violating Section 458.1201(1)(m), Florida Statutes (1978), and Section 458.331(1)(t), Florida Statutes (1980), in his care and treatment of Rebecca Glover following her emergency admittance to the Florida Keys Memorial Hospital for multiple injuries associated with an automobile accident which occurred on March 29, 1979, in Key West, Florida.
At the final hearing on May 24, 1982, Petitioner's Exhibits 1-3 were offered and admitted. 1/ Stephen Alan Nahm, administrator of DePoo Memorial Doctors' Hospital; Joanna Bazo, medical records custodian at DePoo Memorial Doctors' Hospital; Dr. Hubert Aronson, a neurosurgeon practicing in Miami; Clifford C. Smith, the husband of Rose Mary Smith; Christian Keedy, M.D., a neurosurgeon practicing in Miami, J. Lancelot Lester, M.D., a general surgeon practicing in Key West; Robert Emmett Lazarus, M.D., a general and vascular surgeon practicing in Key West; Herman K. Moore, M.D., a family practitioner practicing in Key West; and John D. Kreinces, M.D., a radiologist practicing in Key West, testified for the Petitioner Department of Professional Regulation.
Peter Carey, an anesthetist presently residing in Salem, Virginia; Dante Rainero, M.D., a general surgeon practicing in Key West; John Frances Calleja, M.D., an internal medicine specialist practicing in Key West; and Arturo Ortiz, M.D., a medical doctor specializing in orthopedics practicing in Miami, testified for the Respondent Ricardo O. Gershanik, M.D.
At the conclusion of the final hearing conducted February 14-16, 1983, in Miami, Florida, Petitioner's Exhibits 1-20 and Respondent's Exhibits 1-6 were offered and admitted into evidence.2 Hubert Aronson, M.D., testified on behalf of the Petitioner Department of Professional Regulation, Ricardo O. Gershanik, M.D.; Alphonso Rey, M.D., a psychiatrist practicing in Arcadia, Florida; Arturo Ortiz, M.D.; and Amilcar Correa, M.D., a neurosurgeon practicing in New Orleans, Louisiana, testified for the Respondent Gershanik.
Proposed Recommended Orders and Memoranda of Law have been submitted by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this Order, they are rejected as being not supported by competent and substantial evidence or as being irrelevant to the issues determined here.
FINDINGS OF FACT
Counts Three and Four: Rose Mary Smith
Dr. Keedy's examination of Rose Mary Smith
On March 13, 1978, Rose Mary Smith, a married, heavy set, forty-six year old female employed as a computer control clerk in Key West, Florida, visited Dr. Christian Keedy, a neurosurgeon practicing in Miami, Florida, complaining of back problems which had persisted for over twenty years. Mrs.
Smith told Dr. Keedy that her back went out frequently when she bent or turned slightly. Some radiation existed into her hip and left knee, but there was no radiation into her legs. Her pain was concentrated to the left of her midline with numbness and tingling in the left hip. Sitting for any extended period of time resulted in an aching and tingling sensation in her left hip and both lower extremities. Mrs. Smith further complained of being tired continually and of feeling fatigued when she awoke each morning.
Upon examination of Mrs. Smith, Dr. Keedy noted that she was tender to deep pressure just to the left of the midline over the area L4-5 and L5-S1. He noted no noticeable muscle atrophy, no definite sensory loss, no evidence of bony change, no evidence of scoliosis, and no evidence of spondylolisthesis or spondylolysis. Her tender reflexes were active and equal, and x-rays of the lower back showed her inner spaces to be fairly well preserved. There was induration of the articulate facets at L4-5 and marked asymmetry of the articulating facets at L5-S1, the one on the right being on a sagittal plane while the one on the left was in a completely frontal plane. It was Dr. Keedy's opinion that Mrs. Smith's problem was caused by the facets at L5-S1, particularly centering on the left facet, which was at a ninety degree angle as compared to the relatively normal forty-five degree angle on the right side. Such a condition creates a slued type of movement in the back which frequently becomes symptomatic and produces back pain.
Following his examination,Dr. Keedy recommended that Rose Mary Smith take an anti-inflammatory medication for two weeks which would be followed with a rhizotomy if no improvement was noted. Dr. Keedy next heard from Mrs. Smith on April 27, 1978, when she paid the remainder of her bill and sent a note stating she felt better.
Based on his initial examination of Rose Mary Smith, Dr. Keedy did not at that time believe surgery was indicated. After April 27, 1978, Dr. Keedy never heard from Rose Mary Smith nor was he consulted by any physician concerning his examination of Mrs. Smith prior to any surgical procedure being performed.
Dr. Gershanik's examination of Rose Mary Smith
In March of 1979, Rose Mary Smith consulted the Respondent Gershanik regarding her continuing lower back problems. Her chief complaint centered on radicular pain which had increased over the previous seven month's. The pain radiated to the back, thigh, knee, calf, foot and big toe. She also complained of tingling, numbness and cramps, intractable pain, rigidity, increased weakness, inability to bend over and constipation. Additionally, Mrs. Smith informed the Respondent that she had suffered a back injury approximately ten years before, which resulted' in a long history of lumbosciatica which was no longer responding to rest, medication or heat.
Respondent Gershanik performed a physical examination of the patient and wrote an office report dated March 15, 1979, which revealed the following findings:
In relation to the cervical spine, the flexion was up to 30 degrees and the extension, 40 degrees; the right lateral rotation was 75 degrees, the left lateral rotation was 60 degrees with pain.
The right lateral flexion was 20 degrees while the left lateral flexion was 15 degrees.
In relation to the hands, the grip was six pounds on her right hand and ten on the left.
Tender jerk reflex; bicep, two plus; brachial radialus, two plus.
Also bilateral tricep, one plus, bilateral.
In relation with the lower extremities, knee reflexes were decreased bilaterally more on the left side and ankle reflexes
were decreased bilaterally to almost negative on both sides, with more evidence in the left. (See Transcript, Vol. 6 at 189-190 and Respondent's Exhibit 2)
Additionally, the Respondent performed a Lasegue test which was 25-30 degrees on the left and 35-40 degrees on the right and the Bragard test which was two plus, bilaterally. Sensory functions were tested with a pinwheel which demonstrated decreased sensation in both legs which was more evident at both sides of the L5 and 51 nerve root. According to the Respondent, the patient was unable to walk on her heels or toes.
Following the physical examination, the Respondent gave Mrs. Smith an informational sheet concerning back problems, prescribed Soma and physical therapy, and agreed to admit her to a hospital for additional tests and possible surgery.
The Respondent Gershanik next encountered Mrs. Smith at DePoo Memorial Doctors' Hospital when she was admitted March 19, 1979. An admission history and physical examination form which was completed by the Respondent for the patient, indicated that her chief complaint was .... increased and intractable lumbosciatalgia, weakness which started again progressively and worst the last few months without improvement with conservative treatment". [See Petitioner's Exhibit 20(3)] As indicated by progress notes dated March 19, 1979, the Respondent Gershanik examined Mrs. Smith and noted no discernible change in her condition from his previous examination of March 15, 1979. The nurse's admission notes confirmed that upon admission to DePoo, Mrs. Smith complained of ". . . pain in the cervical spine and lumbosacral spine radiating down to both legs with quote emphasis placed on the left leg". [See Petitioner's Exhibit 20(80)] She was admitted to DePoo with a diagnosis of acute and intractable lumbosciatalgia and cervicobraqualgia." [See Petitioner's Exhibit 20 at (2) and (6)]
The Respondent Gershanik recommended that the patient be given pain medication and physical therapy, including ultrasound, to see if she would respond to conservative treatment. When Mrs. Smith failed to respond to the conservative treatment prescribed, a cervical and lumbar myelogram was ordered and performed in conjunction with x-rays of the cervical spine. The myelogram film, which was first presented to the radiologist for interpretation on May 11, 1979, failed to reveal any demonstrative abnormalities. The x-rays of the chest, cervical spine and lumbar spine were entirely within normal limits
according to the radiological report of John D. Kreinces, M.D., radiologist at DePoo Hospital, dated March 20, 1979. [See Petitioner's Exhibit 20(38)]
Prior to the operation, the Respondent Gershanik apparently disagreed with Dr. Kreinces' interpretation of the x-rays and concluded that Mrs. Smith's cervical spine was abnormal in that an asymmetry was present at L5 and S1, and a degree of subluxation or partial dislocation existed at L5-S1, as did some degree of spondylolysis. [Petitioner's Exhibit 20(2)]
Based on his belief that Mrs. Smith suffered from nerve root compression as indicated by his physical examination and interpretation of the spinal x-rays of the patient, the Respondent Gershanik recommended surgery. Prior to the surgical procedure, scheduled for March 26, 1979, the patient was cleared for surgery by an anesthetist at the hospital and her family physician, Dr. Herman Moore.
Dr. Gershanik's surgical procedure
On March 26, 1979, at approximately 8:44 a.m., a decompressive lumbar laminectomy, L5-S1, partial, L4 and S1, bilateral, lateral herniated nucleus pulposus L5-S1, left side, foraminotomy both levels and cauterization of enlarged tremendous venous plexus, both levels, was begun on Rose Mary Smith. [Petitioner's Exhibit 20(57)] The surgery was performed under magnification loops, with the patient in a prone position on a lamina frame.
According to the surgery report dated March 27, 1979, the Respondent Gershanik made a vertical incision from L3 to 51. Abnormal movement was found at L5 and a laminectomy was performed at L5, partially at L4 and 51, bilaterally with preservation (complete) of the spinous process. Ligament was dissected and removed with a Kerrison ronguer. The laminas at L5, 51 and L4 were shaved and partially removed with a large ronguer and Kerrison ronguer. Later a very lateral disc was removed from the left side at L5-S1. A foraminotomy, both sides, bilaterally was performed to free up the nerves. [Petitioner's Exhibit 21(57)]
When the Respondent was preparing to close, the anesthetist, Peter Carey, indicated that the patient's blood pressure was a little low. Anesthesia was halted at approximately the same time that the surgery was completed, 10:45
a.m. At approximately 10:55 a.m., the patient was administered Ephedrine Sulphate, a medication used to increase blood pressure by increasing cardiac output. After the patient failed to respond to the Ephedrine, Decadron, a steroid drug used to assist a patient who may be going into shock, was given at 11:30 a.m. At 12:00 p.m., Rose Mary Smith was turned over onto a stretcher. Almost immediately, her blood pressure dropped significantly. A second dose of Ephedrine, a Dopamine drip and Levophed were administered at 12:05, 12:20 and 12:25, p.m., respectively.
Dr. Herman Moore, the patient's family physician, was called to DePoo around noon to consult with Dr. Gershanik concerning an emergency at the hospital. Upon his arrival, Dr. Moore, after assessing the situation, suggested that Mrs. Smith be given medication to raise her blood pressure, stated that her problem appeared to be cardiac-related, and left.
At approximately 12:20 p.m. the patient's blood pressure became inaudible. The Respondent Gershanik and Peter Carey, the anesthetist, discussed the possible causes for the significant and sudden loss of blood pressure and began to eliminate possible causes for the condition. Carey's first hypothesis
was that the patient had suffered a pulmonary embolism and ordered a blood gas analysis which showed excellent arterial-oxygen saturation. Also eliminated was myocardial infraction. The Respondent ordered a hemoglobin and hematic study which indicated the volume of blood in circulation. This latter test indicated that Mrs. Smith was bleeding internally and Dr. Gershanik ordered additional blood.
The patient was taken from the operating room to the Intensive Care Unit at approximately 12:40 p.m., where her blood pressure could be read with a Doppler device. At approximately 1:00 p.m., Dr. Calleja, a specialist in internal medicine, examined Mrs. Smith in the recovery area, stated that she had. . . an acute anemia from some type of blood loss" and that there ". . . may have been internal vascular injury causing internal bleeding." (Transcript, Vol.
4 at 122) He suggested that a laparotomy be performed.
Once Dr. Calleja diagnosed the patient's problem, he telephoned Dr. Lester, a general surgeon, for assistance. Dr. Lester told Dr. Calleja that he could not assist in the laparotomy, concurred in the diagnosis that the probable cause of the shock was an injury to a major vessel anterior to the vertebral column, probably the aorta, and suggested that Dr. Lazarus, the only vascular surgeon in the community, be contacted. 3/ Dr. Rainero, a general surgeon, was called at his home by Dr. Calleja between 2:00 p.m. and 2:30 p.m., to assist. At 2:40 p.m., Dr. Rainero arrived at DePoo, went straight to the operating room, where after scrubbing, began an exploratory laparotomy of the patient at 2:50
p.m. After clearing the abdomen of accumulated blood, Dr. Rainero discovered an area where a retroperitoneal hematoma had developed. A clamp was placed above this point at approximately 3:00 p.m., by Dr. Rainero, who then waited for Dr. Lazarus, who arrived shortly thereafter. 4/ Mrs. Smith was not heparinized prior to any clamps being placed on her aorta by Dr. Rainero.
Dr. Lazarus' efforts to halt the patient's internal bleeding
After the patient's peritoneal hematona was opened and evacuated by Dr. Lazarus, the area where the aorta was bleeding, which was lateral and posterior, was discovered. The area of the bleed was a cup or crescent-shaped defect in the posterior lateral wall of the vessel, approximately 1/2 to 1 centimeter in size. The wound was sharply demarcated, but toward the lateral wall of the vessel it became more ragged. It was located on the posterior left lateral surface of the distal aorta at the bifurcation of the left common iliac artery.
Dr. Lazarus had never encountered this type of vessel damage before. He did not believe it was caused by either an aneurysm or any other vascular disease. The problem confronting Dr. Lazarus was how to close the defect, since it was partly composed of a hole with a piece of vessel wall missing rather than a clean tear.
Following a consultation with Dr. Rainero, Dr. Lazarus elected to surgically remove the damaged left common iliac artery, oversew the arterial end of the incision and run a graft from the anterior surface of the aorta to the left common iliac artery. After completing this procedure, a palpable pulse existed in the aorta but was absent below the graft, which was caused by some sort of blockage. A Foley catheter was inserted in the patient's femoral artery and clot material was removed from the incision. The catheter was reinserted and run towards the patient's head. It ran into resistance at the area of the distal anastomosis. The tip of the catheter went through an interstice between
sutures on the back wall of vessel due to a defect in the suture line at the graft. 5/
The original graft was removed and a new one inserted using the same hole in the aorta at the upper end and bypassing into the common femoral artery instead of the common iliac artery. At 10:45 p.m., the second procedure ended.
During the course of both procedures performed by Dr. Lazarus, the patient received approximately 36 units of whole blood. 6/ Throughout both procedures, Mrs. Smith had neither an audible pulse for blood pressure. When Dr. Lazarus concluded the second operation, he noted that the patient had developed disseminating intravascular coagulopathy, probably as the result of the multiple transfusions she had received, and was oozing blood from all cut surfaces. She was returned to the Intensive Care Unit in very critical condition and was pronounced dead on March 27, 1979, at 9:45 am.
Dr. Gershanik's diagnosis and justification for surgery, surgical procedure and postoperative diagnosis
Based on Rose Mary Smith's complaints, set forth supra, and his examination of the patient, the Respondent Gershanik concluded that she suffered from nerve root compression, L5, 51, and a possible lateral disc, L5-S1. This was based in part on the existence of an acute, intense radicular pain involving both legs, with emphasis on the left leg, accompanied by tingling, numbness, cramps, motor weakness, inability to walk on heels and toes and changed reflexes. As noted by Dr. Aronson, the Department's expert witness, these symptoms ordinarily would not be relieved by; the removal of a lateral disc at L5-S1. However, some of the symptoms exhibited by the patient indicated nerve root impairment caused by a lateral disc. As summarized by Dr. Aronson, Mrs. Smith exhibited diffuse and contradictory complaints which, when considered in conjunction with a negative myelogram, failed to justify the surgical procedure performed only eleven days after the Respondent initially examined the patient and deviated from the acceptable and prevailing neurosurgical practice.
Although the Respondent Gershanik testified that it was impossible for him to injure a major vessel due to the special technique he used when performing this type of surgery, the evidence indicates that the technique described by the Respondent was neither unusual nor did it eliminate the possibility of injury to a major vessel. The weight of credible evidence supports the conclusion that a cause-and-effect relationship exists between the surgery performed by the Respondent and the injury which occurred at the bifurcation of the aorta and the left common iliac artery during the operation. Such an injury is the major life-threatening complication of this particular surgery. Any surgeon who after performing this procedure is confronted with a patient in shock should presumptively diagnose an injury to a great vessel. 7/ When Rose Mary Smith's blood pressure failed to respond to the drugs administered to raise the same and eventually became inaudible, the Respondent failed to immediately recognize that the source of the problem was shock caused by internal vascular bleeding. 8/
That the Respondent failed to recognize or treat this major complication is demonstrated by his failure to immediately contact a vascular surgeon for assistance once the problem with Rose Mary Smith became evident. 9/ Instead, thee Respondent contacted a family physician, Dr. Moore, and some two hours after problems with her blood pressure and pulse had begun and one hour after they could no longer be detected, a specialist in internal medicine, Dr. Calleja, was contacted. Dr. Calleja, after consulting Dr. Lester, another
surgeon, correctly diagnosed the patient's vascular injury and, at this point, meaningful procedures .were begun to attempt to save her life. Additionally, prior to the surgery, the Respondent made no arrangements to have a vascular or other surgeon present or otherwise available to assist in the event this major complication occurred. Accordingly, the Respondent's treatment of Rose Mary Smith following the lumbar laminectomy, deviated from acceptable and prevailing neurosurgical practice.
Counts One and Two: Gary Sherertz
Gary Sherertz's admission to the emergency room at the Florida Keys Memorial Hospital and subsequent treatment for lower back pain
On August 21, 1977, Gary Sherertz, a twenty-year-old married truck driver, was involved in a single-vehicle automobile accident in the Florida Keys at which time he sustained a twisting injury to his lower back. He was taken to the emergency room at Florida Keys Memorial Hospital in Key West, Florida, where he was examined by Dr. Ronald Schwert, the emergency room physician.
Dr. Schwert did a neurological evaluation of the patient and ordered x-rays. The examination took approximately ten minutes and included checking reflexes, motion and sensation in the lower extremities and ability of the patient to stand and walk. The patient was told by Dr. Schwert that, in his opinion, the x-rays of the lumbosacral spine showed "no essential pathology." [Petitioner's Exhibit 5 at 7] He diagnosed ". . . mild or severe muscle spasm of the lumbar area," [Petitioner's Exhibit 5 at 8], ordered medication and bedrest, and discharged the patient.
The patient was taken to the discharge area by Patricia Johnson, a nurse, and was then returned to the emergency room for further examination by the Respondent. The Respondent's examination of the patient revealed a history of back pain radiating into both upper extremities as well as evidence of nerve changes to the lower extremities. As a result of this examination, the patient was readmitted to the hospital for conservative treatment including pelvic traction, ultrasound and analgesic medication. While at the hospital, Sherertz underwent a number of nerve blocks, none of which provided any significant relief of pain.
After several days of conservative treatment that was not effective in relieving the patient's pain, a myelogram was performed by the Respondent. Dr. Kreinces, the radiologist at the hospital, and Dr. Aronson, the Petitioner's expert, both interpreted the film as negative. The Respondent's experts, Drs. Ortiz, Correa and Dujovny, all agreed that the myelogram was abnormal.
Based on his interpretation of the myelogram, together with the patient's clinical signs and symptoms suggestive of neurological impairment and the patient's failure to respond to conservative treatment, the Respondent decided to operate on Sherertz. This decision was made approximately ten days after the patient's admission.
Gary Sherertz's back surgery.
On August 31, 1977, a decompressive lamihectomy bilateral, L5, partial at L4 and S1, disc excision and removal at L4-5 and L5-S1 (right side), and bilateral foraminectomy both levels, was performed on Gary Sherertz by the Respondent. The patient's diagnosis was lumbar spinal stenosis, subluxation S1
in L5, H.N.P. [herniated nucleus pulposus] L4-5, L5-S1. [Petitioner's Exhibit 3 at 104]
The Respondent described the procedure he utilized on the patient as follows:
With the patient under endotracheal anesthesia in the prone position with laminectomy frame, the patient was prepped with betadine and draped. A longitudinal incision was made from L3 to 51 which was carried down through subcutaneous tissues and fascia. The fascia was incised and the paraspinal muscles were decollated on both sides. Abnormal movement (Dandy
sign +) was more evident at L5. Bilateral laminectomies were done L5, partial L4 and
51 with preservation on the spinal processes. There were almost no spaces between L5 and
51 laminas which were very thick. Dissection and removal was done with the big ronguer wide open. Kerrison shaving was done to narrow down the laminas. The' canal was found to be tight and dissection laborious.
The bulging discs were removed L4-5 and L5-S1 right side. A foraminotomy was
performed to free up the nerve roots on both sides and both levels. Enlarged and hypertrophic vein plexus was cauterized. The incisional wound was closed with 2-0 dexon for the fascia, 3-0 dexon for the subcutaneous tissues and 4-0 nylon for the skin. The patient was sent to the recovery room in good condition. (Petitioner's Exhibit 3 at 104)
The Respondent's findings contained in the surgery report included:
Spinal lower lumbar stenosis, narrowing lumbar canal; subluxation of S1 in L5; upon exposure of the dura, it was found to be right at level L4-5 and L5-S1 right side;
Nerve roots L4 and L5 very hyperemic at
these levels and compromised with big bulging discs which were removed; Cauterization
of enlarged venous-lexus. id.
The Respondent's justification for surgery on Sherertz
Regarding this patient, all of the experts who testified differ in varying degrees concerning the diagnosis and surgical procedure performed. The pivotal issue, however, is what the Respondent believed to be the cause of Gary Sherertz's back problem and whether that diagnosis and surgical procedure deviated from acceptable medical standards.
A significant problem in determining whether the Respondent's care and treatment of Gary Sherertz deviated from acceptable medical standards has been the lack of certainty that the myelogram films and x-rays in evidence are complete and fairly depict the conditions which confronted the Respondent prior to the operation. Florida Keys Memorial Hospital does not have the original hospital records, including progress notes, for this patient. Apparently, the originals have been removed from the hospital and court files and, as of this date, are unavailable for review by any of the parties or experts in this proceeding. 10/
Accordingly, the undersigned is unable to ascertain with any reasonable degree of certainty, that the Respondent's decision to perform surgery on Gary Sherertz, based on the records available to him at that time, deviated from acceptable medical standards.
Count Five: Rebecca Glover
Rebecca Glover's admission to Florida Keys Memorial Hospital
On March 29, 1979, Rebecca Glover, a twenty-nine year-old, unmarried attorney, was involved in a serious automobile accident in Key West, Florida. Her father, Herbert F. Glover, was a passenger in the automobile which she was driving when they were struck by another car. Both Glover and her father were taken by ambulance to the emergency room at Florida Keys Memorial Hospital where she was initially examined and treated by Dr. Ronald Schwert, the emergency room physician, at 10:10 p.m.
Dr. Schwert diagnosed a severe concussion due to the disoriented state of the patient. He established an airway, immobilized the neck, started an IV line, and called in Drs. Gershanik and Rainero for assistance. Dr. Gershanik was called due to the patient's marked neurologic deficit coupled with signs of a severe concussion at the time of admission.
Dr. Raniero was called to treat the patient's chest and abdominal pathology. Dr. Calleja also responded and began to treat her respiratory problems which included a severely flailed chest from multiple fractured ribs and subcutaneous emphysema. The patient developed the subcutaneous emphysema from a blunt trauma she had experienced during the automobile accident. Prior to the time either Drs. Gershanik or Rainero arrived, Dr. Schwert ordered chest x-rays which confirmed extensive multiple rib fractures of the first through sixth ribs, bilaterally, and subcutaneous emphysema with no evidence of pneumothorax.
Mrs. Glover remained in the emergency room from 10:00 p.m. until 12:00 midnight. During this period, the patient showed a marked improvement. Within one or two hours, her neurologic signs were normalized, she became calmer and while breathing quietly, no flailing of the chest was evident, although she frequently complained of difficulty breathing and wanted to sit up. Most importantly, she was able to respond to questions and act appropriately in response to verbal commands. During the time that the patient was in the emergency room, her condition, although extremely serious due to her multiple chest injuries, was stabilizing and improving.
Upon her admission to the emergency room, Dr. Schwert had packed and controlled bleeding caused by a large deep wound on Glover's forehead which she had sustained in the accident. Cuts were also evident on her lip and both knees. None of these lacerations were life-threatening and were treated by Dr. Schwert in the emergency room prior to the arrival of either Dr. Gershanik or Rainero.
The plastic repair of Glover's lacerations
Shortly before midnight, the Respondent decided that it was necessary to repair the lacerations on Glover's forehead, lip and knees. Prior to this decision by the Respondent, Dr. Calleja and Mark Williams, chief respiratory therapist, had discussed a conservative course of treatment for Glover which included careful monitoring of blood gases and excluded intubation. However, once the decision was made by the Respondent to open, clean and repair Glover's forehead laceration, Calleja concurred in the decision to intubate and anesthetize the patient so she would not become agitated and flail her chest during this time-consuming and painful procedure.
At approximately midnight, anesthesia was begun. The surgery report prepared by the Respondent on March 30, 1979, describes the procedure utilized as follows:
When under endotracheal assistance, the patient's head was placed in the proper position. The skin was prepared with Betadine, Peroxide, large amounts of normal saline and then again with Betadine.
Furthermore, beneath the detachment and lacerated skin it was irrigated and foreign bodies were removed. The area was outlined and towel sutured to strategic points.
Later, formal draping of the patient was completed and the large lacerated wound 10 cm. on forehead and wide excision of traumatized edges was done. Afterwards, undermining of scalp with periosteal elevator to allow mobilization of scalp and for closure
with advanced flat. The bone was visualized throught (sic) the inflicted wound and it had been inspected before visually and by palpation for possible fracture. Later, the wound was closed with 5-0 and 6-0 nylon. The lacerated wound of the lower lip was repaired with 6-0 nylon sutures. When we started to repair the lacerated wound of her right leg, the patient suddenly experienced cardiac arrest which was followed by extensive emphysema. CPR was done STAT with no results. The patient expired. (Petitioner's Exhibit 17, at App. p.18)
The hospital records indicate that the patient went into cardiac arrest at 2:10 a.m., a little more than two hours after anesthesia was begun. Before any CPR was begun, Glover developed massive subcutaneous emphysema. Around 2:30 a.m., Dr. Schwert was called to surgery for a condition "gray". When he arrived, the Respondent and Dr. Beltranena, the anesthesiologist were present and were
administering CPR. The patient was cyanotic and exhibited massive swelling of the head, upper chest and neck. 11/ She was pronounced dead at 2:45 a.m.
Justification for the plastic repairs and procedure used during and subsequent to the operation
In deciding to operate on a patient, the surgeon in charge, who is ultimately responsible for making the decision to operate, is required to weigh the possible benefits of surgery against the possible risks to the patient. In the case of Rebecca Glover, the benefits of this surgery, i.e., prevention of infection and lessening of possible scarring from a large forehead laceration, were minimal when compared to the risks of anesthetizing her while she exhibited bilateral flailed chest and evidence of subcutaneous emphysema. By definition, such a patient has an injury to major airways and is at risk of developing a pneumothorax or tension pneumothorax depending on treatment.
While one of the accepted treatments for flailed chest is intubation when a patient is no longer able to exchange air, the intubation must be accompanied by appropriate support in order to avoid creating a tension pneumothorax which is a life-threatening condition. The accepted treatment for a patient with a flailed chest and subcutaneous emphysema who must be placed on a respirator, is the insertion of chest tubes into the pleural space by the surgeon to drain blood or air and re-expand the lung if a pneumothorax begins to develop. Prior to the insertion of chest tubes in such a patient, x-rays' should be ordered by the surgeon or anesthesiologist. No evidence was presented in this case to indicate that any x-rays of Glover were taken during surgery. Additionally, during the surgery it is necessary to take frequent arterial blood gas readings to check the patient's course under anesthesia and ensure that the lungs are properly oxygenating blood. There is no evidence in the record that any blood gases were ordered by Dr. Gershanik or Dr. Beltranena to monitor Glover during the time she was anesthetized.
The procedure itself took an inordinate amount of time to perform, largely because of the decision by the Respondent to do a plastic repair to minimize scarring. This required the patient to remain anesthetized for over two hours, thus increasing the risk of developing a pneumothorax. Indeed, the repairs to Glover's knees were not even begun when she went into cardiac arrest.
The autopsy performed on Glover indicated that her lungs were collapsed with minimal lung parenchyma identified. [Petitioner's Exhibit 11, App. I at 2] Dr. Aronson interpreted this finding as massive bilateral pneumothorax with total compression of the lungs, both sides, so that the patient had no way of oxygenating air. When this condition occurs, cardiac arrest and possibly death ensues.
As stated previously, prior to surgery, it was noted that Glover had subcutaneous emphysema, multiple fractured ribs, bilaterally, and, accordingly, was in danger of developing a tension pneumothorax. To monitor her lungs to ensure that a tension pneumothorax was not developing, arterial blood gas readings were necessary. Without such tests, neither the Respondent nor the anesthesiologist had any accurate way of guarding against this condition developing and recognizing it once it did develop.
When the patient went into cardiac arrest, chest tubes should have been inserted immediately to remove the air or blood in the pleural space. This would have instantaneously relieved the tension pneumothorax so that her lungs
could be reinflated. The second major possible cause of the arrest, cardiac tamponade 13/ should have been dealt with after the chest tubes were inserted by tapping the pericardial sac and removing any blood.
That neither the Respondent nor the other doctors attending Glover at Florida Keys Memorial Hospital recognized the possibility that this patient could develop tension pneumothorax is a reasonable inference from the records in this case and the actions of the Respondent as well as the other doctors who attempted to treat her. Nothing in the hospital records indicates that, prior to surgery, any of the doctors involved in the decision to intubate and anesthetize this patient recognized the life-threatening complications which could develop as a result of flailed chest and bilateral subcutaneous emphysema. Neither x-rays, blood gases, nor chest tubes were utilized during the procedure. When the patient went into cardiac arrest, neither the Respondent nor any doctor present recognized the likely cause of the arrest, and, accordingly, meaningful steps to immediately attempt to save the patient were never instituted.
Dr. J. Parker Mickle, a neurosurgeon, testifying via deposition for the Petitioner noted his "amazement" and "astonishment" that no doctor who consulted with the Respondent prior to surgery advised against putting this woman to sleep in order to perform what was essentially an elective procedure. However, the fact that no other physician present objected to the Respondent's plan, neither excuses nor mitigates the responsibility of the Respondent toward this patient. The initial decision to perform the surgery, presumably because of outwardly stabilizing indicators, was the Respondent's. 14/
Finally, even assuming that Glover's condition was terminal upon admission, such a factor is not relevant to this proceeding. None of the doctors who treated her, including the Respondent, believed that she was terminal up until the time she expired. While she was alive, Glover was entitled to careful and competent medical care including proper evaluation and treatment for her recognized symptoms.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Counts Three and Four: Rose Mary Smith
In his care and treatment of Smith, the Respondent Gershanik is charged with violating Sections 458.1201(1)(b), Florida Statutes (1978), revised and carried forward as Section 458.33l(1)(1), Florida Statutes (1980), and Section 458.1201(1)(m), Florida Statutes (1978), substantially reenacted as Section 458.331(1)(t), Florida Statutes (1980), which subject a licensee to specified disciplinary proceedings when adjudged unqualified or guilty of:
(b) Making misleading, deceptive, untrue,
or fraudulent representations in the practice of medicine; employing a trick or scheme in the practice of medicine; practicing fraud or deceit in obtaining a license to practice medicine; or making a false or deceptive annual registration with the board.
* * *
(m) Being guilty of immoral or unprofessional
conduct, incompetence, negligence or willful misconduct. Unprofessional conduct shall include any departure from, or failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of his practice,
whether committed within or without this state.
In administrative proceedings to suspend or revoke a professional license, the burden is on the state to prove its allegations by clear and convincing evidence. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). When, such as here, it is alleged that a licensee breached a standard of conduct not explicitly fixed by statute or rule, "the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences." Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).
Measured by these standards, it is concluded that the evidence establishes that the Respondent violated Section 458.1201(1)(m), Florida Statutes (1978), as substantially reenacted by Section 458.331(1)(t), Florida Statutes (1980), in his care and treatment of Rose Mary Smith. Specifically, the Respondent acted negligently and/or unprofessionally in performing the stated surgical procedures on Mrs. Smith, only eleven days after he had first examined her, when she had diffuse and contradictory complaints and her myelogram, which was not read by a radiologist prior to surgery, failed to demonstrate a clearly abnormal pathology. Additionally, the Respondent's failure to take proper and timely measures to treat the patient's condition which resulted from the damaged vessel demonstrates negligent and/or unprofessional conduct. 15/ See Lester v. Department of Professional and Occupational Regulation, 348 So.2d 923 (Fla. 1st DCA 1977), in which the court stated at 926, "[i]t is clear that what the legislature was condemning as unprofessional conduct in this particular subsection [458.1201(1)(m)] was conduct by a practicing physician which did not conform to the prevailing standards of practice exercised by other practitioners in the same area of practice or expertise. The proscription is against poor medical practice as measured by the prevailing standards of good practitioners."
No evidence was presented to prove that the Respondent Gershanik violated Section 458.1201(1)(b), Florida Statutes (1975), substantially reenacted as Section 458.331(1)(1), Florida Statutes (1980), by intentionally making false or misleading representations to Mrs. Smith as to her condition and her need for surgery, and accordingly, count three should be dismissed.
Counts One and Two: Gary Sherertz
The Respondent Gershanik is charged in counts one and two with violating Section 458.1201(1)(b), Florida Statutes (1977) afrd Section 455.1201(1)(m), Florida Statutes (1977), as set forth, supra
As stated previously in the factual discussion concerning Gary Sherertz, confusion and uncertainty exists as to whether the records introduced at the final hearing are complete and accurately depict the information which was available to the Respondent when he formed his diagnosis and treatment plan for this patient.
The burden of proof in disciplinary proceedings is on the state. It was, therefore, encumbent on the Petitioner to produce either the original records of Sherertz's examination by the Respondent or a clear and complete copy of the original. Having reviewed the records and testimony of the witnesses concerning these records, it remains questionable that the Sherertz records are complete and, accordingly, the Petitioner has failed to demonstrate a violation of these statutory provisions, and counts one and two should be dismissed.
Count Five: Rebecca Glover
In the final count, the Respondent Gershanik is charged with violating Section 458.1201(1)(m), Florida Statutes (1978), as substantially reenacted as Section 458.331 (1)(t), Florida Statutes (1980), and set forth, supra.
Based on the facts previously established concerning the care and treatment of Glover, it is concluded that the Respondent acted negligently and/or unprofessionally in deciding to perform a plastic repair on her forehead, lip and knees, while she was under general anesthesia, which was contraindicated by the patient's serious chest injuries which included multiple fractured ribs and subcutaneous emphysema. Additionally, the Respondent Gershanik acted negligently and/or unprofessionally by failing to properly monitor Glover's condition during the time she was administered general anesthesia, see Lester, supra, which resulted in his inability to recognize and effectively treat the tension pneumothorax which developed during the plastic repair procedure which ultimately resulted in the patient's death.
The Respondent Gershanik came to the United States from Argentina in 1975 to practice medicine in his specialty, neurosurgery. He obtained his training in Argentina, which included a seven-year medical degree from the Rosario University School of Medicine, with specialty training in neurosurgery and a doctorate in forensic medicine. Following his specialty training, the Respondent became affiliated with the Acute General Surgery Hospital in Buenos Aires, Argentina, where he was an instructor in neurosurgery and published articles and conducted research in his specialty area.
The Respondent became board certified in Argentina in 1971. Although he is not board certified in the United States, he is certified by the American Board of Neurological and Orthopaedic Surgeons.
While practicing as a surgical resident at American Hospital, in Miami, Florida, in 1975, he took training at the University of Miami School of Medicine and later passed the examination of the Educational Council for Foreign Medical Graduates. In 1976, he passed the Florida State Board examination and became licensed in Florida. The Respondent moved to Key West, Florida, where he resided from 1976 until 1982. He presently resides in Miami, Florida, and until recently, was the Chief of the Department of Neurosurgery for the Clinica Associana Cubana, one of the largest Health Maintenance Organizations in South Florida. Additionally, he has been on the medical staff of Westchester General Hospital, Miami, Florida, since March 1982, with privileges in neurosurgery and neurology.
In determining an appropriate penalty in this case, careful consideration has been given to the well-established principle that the state's power to revoke a license to practice a profession should be exercised cautiously and directed only toward those who, by their conduct, have forfeited their right
based upon substantial causes. Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Pearl v. Florida Estate Commission, 394 So.2d 189 (Fla. 3d DCA 1981). In specific regard to the medical profession, the state's interest in protecting the public health and safety by ensuring competency is unquestioned. In return for the powers which the profession enjoys pursuant to Chapter 458, Florida Statutes,. the state has required that such powers be exercised in a reasonable and competent manner.
In this case, the Petitioner demonstrated by clear and convincing evidence that the Respondent failed to treat two patients with the level of competence and professionalism required by law. The Respondent's testimony at the final hearing when considered in conjunction with what actually occurred during the two procedures, and his apparently well-intended belief that both patients were handled correctly, indicate that the Respondent lacks the requisite judgment and competence to continue to act as a licensed medical doctor in this state.
Pauline v. Boer, 274 So.2d 1 (Fla. 1974).
Therefore, based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That the Petitioner Board of Medical Examiners enter a Final Order finding the Respondent Ricardo O. Gershanik, M.D., not guilty of violating counts one, two and three of the Amended Administrative Complaint, guilty of violating counts four and five, and revoking his license.
DONE and ENTERED this 6th day of May, 1983, in Tallahassee, Leon County, Florida.
SHARYN L. SMITH, 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 6th day of May, 1983.
ENDNOTES
1/ The exhibits in this case have been renumbered and identified as per the exhibit list attached as Appendix "A".
2/ Ruling was reserved on Petitioner's Exhibits 6, 7 and 8, the deposition of the Respondent Gershanik taken on April 17, 1978, in conjunction with another then-pending circuit court proceeding, Sherertz v. Florida Keys Memorial Hospital, et al., Case No. MM78-1, Sixteenth Judicial Circuit, Monroe County. Pursuant to Pules 1.290(a)(4) and 1.330, Florida Rules of Civil Procedure, and Section 120.58(1)(a), Florida Statutes, this deposition is hereby admitted.
3/ Mrs. Smith was returned to the operating room between 1:30 p.m. and 2:00 p.m., shortly after Dr. Calleja's initial diagnosis was confirmed by Dr. Lester.
4/ At this point, the patient had been given two units of blood, one in the operating room and another in the Intensive Care Unit. Additionally, she was administered 1,000 liters of saline and two liters of lactated Ringer's during the first operation. The patient had received another three units of blood before Dr, Lazarus began his procedure, for a total of five units.
5/ Dr. Lazarus' problems with the graft were apparently caused in large measure by DePoo's lack of vascular pick-ups or needle holders which he first discovered while initially attempting to repair the patient's vessel. Prior to surgery, Dr. Lazarus was informed that DePoo had the necessary vascular instruments and, accordingly, Dr. Lazarus did not bring his own set from Florida Keys Memorial Hospital. Following his experience with the first unsuccessful graft, Dr.
Lazarus sent out for his vascular instruments, which were used during the second procedure.
6/ Dr. Calleja's physician order, Petitioner's Exhibit 20 at 74, notes that from 3/26 to 3/27, 48 units of whole blood were administered to this patient. This conforms to the orders for whole blood filed in the hospital records, but conflicts with the records maintained by the anesthetist in the operating room.
7/ At this point, time is of the essence and the injury must be corrected as quickly as possible in order to save the patient's life.
8/ It is possible that the Respondent did not recognize the symptoms of the patient because of his belief that it was impossible to damage a vessel due to the technique he utilized during this operation.
9/ In all probability, the patient was terminal before Dr. Lazarus began the operation to repair the vessel. The patient had been in shock at this point since 10:45 a.m., and approximately four hours elapsed before Dr. Rainero began the laparotomy, the first step in actually solving the problem.
10/ Subsequent to the final hearing, a subpoena was issued to counsel for the Respondent in order to ascertain whether Gary Sherertz's counsel in another proceeding had possession of the original file concerning this patient. The x- rays identified as Petitioner's Exhibits 2(a-o) and (r) and copies of other original documents were apparently furnished to Petitioner by Sherertz's counsel. The Hearing Officer is presently unaware of the final disposition of Respondent's counsel's attempt to locate the original set of records from Sherertz's counsel.
11/ Dr. Schwert described Mrs. Glover's upper body, neck and head as being approximately one-fourth larger than normal upon his arrival in the operating room.
12/ A pneumothorax is free air inside the cavity of the chest between the chest wall and lung tissue.
13/ Cardiac tamponade is to the heart what a pneumothorax is to the lung; free fluid, usually blood, is contained in the pericardium, the sac that surrounds the heart, and the heart itself, which if it increases, will eventually stop the heart from beating due to the exertion of external pressure.
14/ It should also be noted that the hospital records indicate that consent for surgery in this case was not given by Glover, but rather by her father, at 12:30 a.m., thirty minutes after she was already anesthetized. It is unclear why consent was not obtained directly from Glover prior to the procedure, in light of her allegedly stable condition and the non-emergency nature of the plastic repairs performed by the Respondent.
15/ Insufficient evidence was presented that the act itself of damaging a vessel while performing this surgery, constitutes negligence. This is a recognized complication which, although rare, can occur when performing this procedure.
COPIES FURNISHED:
Douglas P. Jones, Esquire and David W. Spicer, Esquire McFARLAIN BOBO STERNSTEIN
WILEY & CASSEDY, P.A.
Lewis State Bank Building Post Office Box 2174 Tallahassee, Florida 32316
Edward B. Johnson, Jr., Esquire Post Office Box 1603
Lake Worth, Florida 33460
Jonathan P. Lynn, Esquire 2400 One Biscayne Tower Miami, Florida 33131
Dorothy Faircloth, Executive Director Florida Board of Medical Examiners Old Courthouse Square Building
130 North Monroe Street Tallahassee, Florida 32301
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
APPENDIX A
Department of Professional Regulation, Board of Medical Examiners v. Ricardo
O. Gershanik - Case No.: 81-1308
Exhibit List
Petitioner's Exhibits
Deposition of John D. Kreinces, M.D., January 6, 1983.
2(a-r).Deposition of John D. Kreinces, M.D., January 5, 1983, including x-rays of Gary Sherertz, (a-o) all the myelogram films (la-lo); (p-q) all the chiropractic films (2a-2b); (r), is dated August 21, 1977.
Deposition of Norma Schattner, January 5, 1983, with attached copies of the hospital records of Gary Sherertz.
Deposition of Patricia Johnson, January 6, 1983.
Deposition of Ronald Schwert, M.D., January 4, 1983.
6,7&8. Deposition of Ricardo O. Gershanik, M.D.,
in Sherertz v. Florida Keys Memorial Hospital, Case No. MM78-1, Sixteenth Circuit, Monroe County, April 17, 1978. (pp. 1-118)
Deposition of Dante L. Rainero, M.D., January 5, 1983.
Deposition of Ronald Schwert, M.D., January 4, 1983.
Deposition of A. J. Fernandez, January 6, 1983, with attached autopsy report on Rebecca Glover.
Deposition of John F. Calleja, M.D., January 6, 1983, with attached affidavit dated May 24, 1979.
Deposition of Humberto Beltranena, Sr., M.D., January 4, 1983, with enclosed affidavit.
Deposition of Mark Williams, January 6, 1983.
Deposition of Darene Cahill, January 5, 1983.
Deposition of John D. Kreinces, M.D., January 6, 1983, and x-ray films dated March 29, 1979.
Deposition of Norma Schattner, January 5, 1983, with attached hospital records of Rebecca Glover.
Deposition of Humberto Beltranena, Sr., M.D., January 5, 1983.
Deposition of J. Parker Mickle, M.D., February 9, 1983.
Rose Mary Smith's records from DePoo Hospital. (pp. 1-102)
Transcript of DePoo Hospital inquiry into
the death of Rose Mary Smith, with cover letter dated May 10, 1979, (pp. 1-107) with attached documents and diagrams.
Respondent' s Exhibits
Resume of Ricardo O. Gershanik, M.D., PhD, ME, FICS, FAANaOS, with attached letters and documents.
Office report completed on Rose Mary Smith on March 15, 1979.
Report of office examination of Rose Mary Smith, March 9, 1979.
Deposition of Aleida Lowe, May 25, 1982.
Deposition of Manuel Dujovny, M.D., January 12, 1983, with attached cirriculum vitae.
Deposition of Dante L. Rainero, M.D., January 5, 1983.
=================================================================
AGENCY FINAL ORDER
================================================================= BEFORE THE BOARD OF MEDICINE
NOTICE OF INTENT TO DENY THE REQUEST TO PETITION FOR
REINSTATEMENT OF DOAH CASE NO.: 81-1308 DPR CASE NO.: 80-156
RICARDO O. GERSHANIK
/
ORDER
THIS CAUSE came before the Board of Medical Examiners in Orlando, Florida, on August 2, 1906, on the Request to Petition for Reinstatement filed on behalf of Ricardo O. Gershanik. Dr. Gershanik was present and represented by Richard
Pettigrew, Esquire.
FINDINGS OF FACT
Ricardo O. Gershanik was a licensed medical doctor in Florida, having been issued license number 28445.
In April of 1981 a five count administrative complaint was filed against him.
He requested and received a formal administrative hearing, which hearing was held on May 24, 1982, before Sharyn L. Smith, a hearing officer of the Division of Administrative Hearings. The Recommended Order was submitted to the Department of Professional Regulation and the Board of Medical Examiners on May 6, 1983.
At the Board meeting of June 5, 1983, the Board of Medical Examiners adopted a policy that any license revoked thereafter would be permanently revoked and mot subject to reinstatement, unless leave to petition for reinstatement was sepcifically authorized in the final order. Prior to that time the Board had routinely considered petitions for reinstatement of revoked licenses. See, Griffith v. Board of Medical Examiners, 454 So.2d 683 (Fla. 1st
D.C.A. 1984)
The Recommended Order by the hearing officer relating to Gershanik was heard by the Board in August of 1983. Upon consideration of the case, the Board adopted the Recommended Order in toto and revoked Dr. Gershanik's medical license.
Gershanik took an appeal of the Board's Final Order and the Board's action was affirmed by the Third District Court of Appeal. Among the issues raised in that appeal was that of the penalty imposed. Gershanik v. Department of Professional Regulation, Board of Medical Examiners, 458 So.2d 302 (Fla. 3d
D.C.A. 1984)
In May of 1986 Respondent filed a request for reinstatement and the matter was scheduled to be heard at the June, 1986 meeting of the Board. At the June meeting Gershanik, through counsel, offered an amended petition. The matter was continued until the August 1986 meeting.
CONCLUSIONS OF LAW
The Board find's that it is without jurisdiction to act in this matter. The Board has determined that a license revoked after June of 1983 is not subject to reinstatement. This policy and the Board's authority to set it has been recognized by the appellate decisions in Griffith, English v. Florida Board of Medical Examiners, 461 So.2d 200 (Fla. 1st D.C.A. 1984), and Wood v. Department of Professional Regulation, Board of Dentistry, 490 So.2d 1079 (Fla. 1st D.C.A. 1986). In Wood the Court explicitly upheld the authority of a Board to interpret that "revocation" the statute means "forever." In the instant case, the Medical Board has done so by announced policy, which policy was of record prior to the August 1983 action, and has promulgated a rule, Rule 21M- 20.003, Florida Administrative Code, on that matter. The rule was effective January 3, 1985.
In applying the June 1983 policy to Dr. Gershanik and ruling that the Board does not have jurisdiction over his current request for reinstatement, the Board points out that such decision does not necessarily forever bar Gershanik from attaining a new Florida medical license (see, Rule 21M-20.003, Florida Administrative Code) it only prohibits him from ever reinstating the medical license he once had -- it shall forever stand revoked.
Several arguments made by Gershanik need to be addressed. First of all, the fact that the hearing officer made her recommendation of revocation prior to the change in policy is of no moment. The hearing officer's recommendation on penalty was only that, a recommendation. It was, and is, the Board's decision that determines what penalty shall actually be imposed, and that decision was made in August 1903.
Second, Gershanik asserts that the Board in June of 1983 effectively terminated his "then existing right" to subsequently petition for reinstatement. He needed no such right in June of 1983; he had an unencumbered license.
Nothing prevented him from addressing the issue of the finality of the
revocation when the case was heard in August 1983. The Board itself, having just adopted the policy at the June meeting, was surely well aware of the effect of revoking Gershanik's license, and there is no evidence or reason to believe that the Board did not fully consider the hearing officer's recommendation in light of its policy.
Finally, it must be noted that an appeal was taken and the penalty was affirmed by the appellate court. Thus, the Final Order rendered by the Board in 1983 and affirmed by the appellate court has become the "law of the case." As stated in Wood, the Board no longer has the authority to rescind or notify the order revoking Gershanik's license.
Accordingly, IT IS ORDERED
That the Request to Petition for Reinstatement of Ricardo O. Gershanik is hereby DENIED on the basis that the Board is without jurisdiction.
Dr. Gershanik is hereby notified that he may seek review of the above, by filing a petition with the Executive Director of the Board within twenty-one
(21) days of his receipt of this notice. He may request formal proceedings pursuant to Section 120.57(1), Florida Statutes, or informal proceedings pursuant to Section 120.57(2), Florida Statutes. If he requests formal proceedings, the petition must contain the information required by Rule 28- 5.201, Florida Administrative Code, particularly a statement of the disputed issued of material fact.
Unless a request for a hearing is received by certified mail on or before the above-stated deadline, the BOARD OF MEDICINE will act in accordance with the provisions of Section 120.57, Florida Statutes, and Rule 28-5.111(2) Florida Administrative Code, and this Order shall become final.
This Order takes effect upon filing.
DONE and ORDERED this 19th day of May, 1987.
BOARD OF MEDICINE
WILLIAM F. BRUNNER, M.D. CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order was provided by certified mail to Ricardo O. Gershanik, c/o Richard A. Pettigrew, Esquire, Morgan, Lewis & Bockius, 5300 Southeast Financial Center, 200 South Biscayne Boulevard, Miami, Florida 33133-2339 and-to Richard A. Pettigrew, Esquire, 5300 Southeast Financial Center, 200 South Biscayne Boulevard, Miami, Florida, on this 26th day of May, 1987.
Dorothy J. Faircloth
| Issue Date | Proceedings |
|---|---|
| Aug. 29, 1990 | Final Order filed. |
| May 06, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 19, 1987 | Agency Final Order | |
| May 06, 1983 | Recommended Order | Respondent failed to use reasonable care and standard practice in treating patients despite his belief he did use such care. Revoke license. |
