STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1663

)

HERMAN BOUGHTON, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., conducted a formal hearing in this case on November 3, 1981, in Miami, Florida.

APPEARANCES

For Petitioner: Deborah J. Miller, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Herman Boughton, M.D., pro se

Miami National Bank Building

8101 Biscayne Boulevard, Suite 512

Miami, Florida 33138

ISSUE

Whether respondent's license to practice medicine should be disciplined on grounds that: (1) he engaged in gross or repeated malpractice or failed to practice medicine with the required level of care, skill, and treatment, and (2) he is unable to practice medicine with the requisite skill and safety by reason of illness or as a result of a mental or physical condition.

BACKGROUND

By administrative complaint dated June 11, 1981, petitioner Department of Professional Regulation, Board of Medical Examiners ("Department"), seeks to revoke, suspend, or otherwise discipline the medical license of respondent Herman Boughton, M.D. As grounds, the Department alleges that respondent improperly performed two abortions and improperly treated ulcerated lesions.

The Department contends that respondent, by such conduct, violated Section 458.331(1)(t), Florida Statutes (1979), by engaging in gross or repeated malpractice or failing to practice medicine with that level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. The Department also contends that respondent is in violation of Section 458.331(1)(s), Florida

Statutes (1979), because he is unable to practice medicine with reasonable skill and safety to patients by reason of illness or as a result of a mental or physical condition.

On June 17, 1981, respondent disputed the Department's allegations and requested a formal hearing. Shortly thereafter, the Department referred this case to the Division of Administrative Hearings.

At the Department's request, hearing was set for October 15 and 16, 1981.

On August 3, 1981, respondent requested that the hearing be continued and rescheduled for another date. The Department did not oppose his request, and the hearing was subsequently rescheduled for November 3, 1981.

At hearing, the Department called Frank E. Bishop, M.D., and Arthur I. Rudolph, M.D., as its witnesses and offered Petitioner's Exhibit 1/ Nos. 1 through 4 into evidence, each of which was received. The respondent testified in his own behalf and offered Respondent's Exhibit 1/ Nos. 1 and 2 into evidence, each of which was received.

After hearing, the Department filed proposed findings of fact and conclusions of law; the respondent did not. Neither party requested that a transcript of the hearing be prepared.

FINDINGS OF FACT

Based upon the evidence presented at hearing, the following facts are determined:

1. Respondent is an 80-year-old physician licensed to practice medicine in Florida. He has been a general practitioner in the Miami area for over 40 years; during that time, he has earned the respect and esteem of the medical community. During the 1940s, he helped establish the first cancer clinic in Dade County; he is recognized as one of the community's early medical pioneers. He has never before been the subject of a disciplinary action for professional misconduct. (Testimony of Bishop, Boughton; R-2.)

   
   

   I.

   
   

   The Claresta Halloran Abortion

   
   

2. On July 3, 1980, Ms. Claresta Halloran, age 35, visited respondent's office for a therapeutic abortion. She told respondent that her last menstrual period was "sometime in April." (P-3.) Respondent palpated her, examined her by use of a sounding instrument, and dilated her uterus. After determining that she was approximately 12 weeks pregnant, respondent attempted to abort the fetus by suction and curettage. Fearing that he had perforated Ms. Halloran's uterus, respondent had her transported to North Miami General Hospital for an exploratory laparotomy. Results of the exploratory surgery were negative; there was no evidence of perforation of the uterus or injury to the bowel. (Testimony of Boughton; P-3.)

   
   

3. William Wickman, M.D., performed the exploratory surgery on Ms. Halloran at the hospital. His bimanual examination revealed an enlarged uterus, "the size of approximately [a] 12 week pregnancy." (Testimony of Boughton; P-3.)

4. Two days after the surgery, Ms. Halloran passed a macerated fetus which, after pathological examination, was estimated to be of 17 weeks' gestation. Her convalescence from surgery was otherwise uneventful and she was discharged from the hospital the next day, July 6, 1980. (Testimony of Boughton; P-3.)

   
   

5. Absent specialized training, abortions "from below," that is, by dilating the cervix and removing the contents of the uterus, should not be performed on pregnancies which have progressed beyond 12-weeks. This is because, after 12 weeks, the fetus's bones have developed calcium and sharp, razor-like edges which can perforate the uterus and endanger the health and safety of the patient. (Testimony of Rudolph.)

   
   

6. Respondent has not received specialized training which would enable him to safely use the "from below" method on pregnancies beyond 12 weeks. However, his examination of Ms. Halloran led him to believe she had been pregnant for 12 weeks. In reaching that conclusion, he did not rely solely on the date of the patient's last menstrual period. His palpation and examination of the patient's uterus confirmed that the pregnancy was approximately 12 weeks. Dr. Wickman's subsequent examination of the patient at the hospital confirmed that the patient's uterus indicated an approximate 12-week pregnancy. (Testimony of Rudolph, Boughton; P-3.)

   
   

7. There are other more advanced methods, such as sonography, which enable one to more accurately determine the gestational age of a fetus. However, the evidence does not support a finding that respondent's failure to use such methods constitutes malpractice or a failure 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. (Testimony of Rudolph.)

   
   

8. Respondent admits that he erred in his diagnosis of the stage of Ms. Halloran's pregnancy. However, his diagnosis was not shown to have been unjustified or unreasonable in light of the facts known to him at the time. Both the date of the patient's last menstrual period and manual examination of the uterus supported a determination that the pregnancy was approximately 12 weeks. The "from below" abortion procedure which respondent utilized is only unacceptable for use on pregnancies in excess of 12 weeks. In short, respondent's treatment of the patient was consistent with his diagnosis. While

   the diagnosis was in error -- the fetus was of 17 weeks' gestation, not 12 weeks

   -- other physicians, under similar circumstances, would likely have made the same error. (Testimony of Boughton; P-3.)

   
   

   II.

   
   

   The Wilhemina Evans Abortion

   
   

9. On August 5, 1980, Ms. Wilhemina Evans, age 18, visited respondent's office for a therapeutic abortion. She told respondent that her last menstrual period was at the end of April. He palpated her, placed a sounding instrument, and dilated her uterus. After concluding that she was at least 13 weeks pregnant; 2/ he attempted to abort the fetus "from below" by use of placental forceps and a curette. He thought the abortion had been successful and permitted the patient to, return home. (Testimony of Rudolph, Boughton; P-4.)

10. The next day, the patient went to Jackson Memorial Hospital complaining of abdominal pain. Several minutes after arriving at the emergency room, she passed a 750-gram male still-born fetus. Subsequent pathological examination indicated that the fetus was of 24 weeks' gestation. (P-4.)

    
    

11. Respondent failed, in several respects, to provide Ms. Evans with treatment which is recognized by a reasonably prudent similar physician as acceptable under similar circumstances. Without special training, the "from below" method of aborting the fetus should not have been used on a woman beyond

    12 weeks pregnant. 3/ Moreover, if respondent was uncertain of the gestational age of the fetus, he should not have attempted to abort the fetus "from below" in an office setting. Despite the patient's obesity, respondent should have been able to determine the advanced gestational stage of the fetus. Finally, a reasonably prudent similar physician would have realized that the attempted abortion had been unsuccessful and would not have permitted the patient to immediately return home. Thus, it is concluded that respondent's treatment of Ms. Evans was inconsistent with acceptable medical practice. 4/ (Testimony of Rudolph.)

    
    

    III.

    
    

    Treatment of Skin Lesions of Bernice Riordan

    
    

12. Since 1951, Bernice Riordan, age 68, has been a patient of respondent's. Over the years, he treated her for various ailments, including basal cell carcinomas and squamous cell carcinomas on her face and neck. He used different techniques to treat the carcinomas; electrocoagulation in 1955; electrodesiccation and silver nitrate in 1961, 1962, 1972, and 1976; bichloracetic acid in 1976; and 5-Fluorouracil in 1978. In April, 1961, respondent referred Ms. Riordan to a dermatologist for specialized treatment. In 1969, he referred her to Jackson Memorial Hospital for radiation therapy because of multiple lesions on her face. She was a difficult and eccentric patient; she continually resisted his efforts to refer her to specialists for

    treatment of her increasingly serious carcinomas. Finally, in 1980, he referred her to two specialists -- a plastic surgeon and another dermatologist. By 1980, the cancer of the skin on her face had destroyed the entire nose and perioral skin. (Testimony of Boughton; P-2.)

    
    

13. The Department presented, by deposition, the testimony of Dr. Richard

    C. Childers, a dermatologist who had reviewed the patient records of Ms. Riordan. He graduated from medical school in 1969 and was licensed to practice medicine in Florida in 1971. Since 1974, he has engaged in the private practice of dermatology in Gainesville, Florida, with a clinical appointment at Shands Teaching Hospital. It was Dr. Childers' opinion that respondent should have referred Ms. Riordan, no later than 1959, to a specialist for treatment of recurring skin lesions. Dr. Childers also opined that respondent, on numerous occasions over the years, had used ineffective or inappropriate treatment techniques on Ms. Riordan's lesions. (P-2.)

    
    

14. Dr. Childers' testimony is rejected as inadequate to establish that respondent failed to provide treatment to Ms. Riordan which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. Dr. Childers is a specialist in dermatology, not a general practitioner. He practices in Gainesville, not Miami. When respondent applied many of the complained of treatment techniques to Ms. Riordan, Dr. Childers had not yet begun medical school. It would be patently unfair to measure treatment for carcinomas furnished by a general practitioner in 1961 by a specialist's

    with the standard of care applicable to general practitioners in the Miami area during the period in question.

    to establish an appropriate standard of care applicable to respondent's treatment of Ms. Riordan. (Testimony of Boughton; P-2.)

    
    

    IV.

    
    

    Respondent's Ability to Practice Medicine with Reasonable Safety to His Patients

    
    

15. On April 27 and 30, 1981, a mental status examination was given

    
    

    psychiatrist's opinion, respondent's appearance, behavior, and overall thinking was intact; there was no evidence of psychosis. However, respondent's response

    
    

    was somewhat impaired. Dr. Bishop concluded that respondent suffers from of Bishop.)

16. Respondent recognizes that his advanced age affects his ability to

However, he believes that he is able to operate an office practice with reasonable skill and safety and without endangering his patients. He is willing

his work. The practice of medicine is his avocation as well as his profession; it is the habit and pleasure of his life. (Testimony of Boughton.)

interfere with his ability to practice medicine with reasonable skill and safety to his patients. The ability to remember facts is essential to a physician's

patient's illness. (Testimony of Bishop.)

1. However, the evidence is insufficient to demonstrate that respondent's

   
   

   his livelihood. The evidence on the extent which his impairment will affect his ability to practice is problematic. He is willing to submit to the supervision

   
   

   supervision of another physician, it is likely that he will be able to practice medicine with reasonable skill and safety to his patients. (Testimony of

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the

   
   

3. Section 458.331, Florida Statutes (1979), provides in pertinent part:

   
   

   1. The following acts shall

      tute grounds for which the disciplinary actions specified in subsection (2) may be

      
      

      1. Being unable to practice medicine with reasonable skill and safety to patients

         any mental or physical condition. A

         physician affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of medicine

         with reasonable skill and safety to patients.

      2. Gross or repeated malpractice or the failure to practice medicine with that legal of care, skill, and treatment which

      is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions

      of s. 768.45 when enforcing this paragraph.

   2. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order impos- ing one or more of the following penalties:

      1. Revocation or suspension of a license.

      2. Restriction of practice.

      3. Imposition of an administrative

         fine not to exceed $1,000 for each count or separate offense.

      4. Issuance of a reprimand.

      5. Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the super- vision of another physician.

      
      

4. In proceedings to suspend or revoke a professional license, the term "substantial competent evidence" takes on vigorous implications. Bowling v. Department of Insurance, 394 So.2d 165, 171 (Fla. 1st DCA 1981) Matters in issue must be proven by evidence "which is indubitably as 'substantial' as the consequences [for the licensee]." Id. at 172. Violations are

   
   

   [N]ot to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as "substantially" on a scale suitable for evidence as the penalty does on the scale of penalties. In other words, in a world ensnarled by false assump- tions and hasty judgments, let the prosecu- tor's proof be as serious-minded as the intended penalty is serious. Id. at 172.

   
   

5. In this case, the evidence establishes that in attempting to perform an abortion on Ms. Evans, respondent violated Section 458.331(t), Florida Statutes (1979), by failing "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." Id. The evidence also establishes that respondent suffers from an illness, or mental

or physical condition, which impairs his ability to practice medicine; that unless meaningful restrictions are placed on his practice, he will be "unable to

s458.331(s), supra. However, under the Bowling standard of proof, the evidence is insufficient to establish that respondent's treatment of Ms. Claresta

treatment violated a standard of care recognized by a "reasonably prudent similar physician as being acceptable under similar conditions. . . ." Id.

penalty which is imposed should be justified by the facts of this case. He is held

in esteem by his colleagues and patients; his prior record is unblemished. His

age. Both parties agree that he should no longer perform surgery or abortions. However, the evidence does not establish, with the requisite substantiality,

license. Such action should not be taken absent convincing evidence.

24. Rather than outright revocation, respondent's practice should be

allowed to work, in a probationary status, under the supervision of another physician. The supervising physician, and the level and extent of supervision

Until and unless respondent submits to the Board a proposal which ensures that his work will be adequately supervised, his license should be suspended.

of law. To the extent they are incorporated by the above findings, they are adopted; otherwise, they are rejected as unnecessary to resolution of the issues

RECOMMENDATION

Based on the foregoing, it is

That respondent's license to practice medicine be suspended until respondent submits to the Board an acceptable proposal which ensures that his

the Board approves the proposal, respondent should be placed on a probationary status and his practice restricted to exclude the performance of surgery and

DONE AND RECOMMENDED this 20th day of November, 1981, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 20th day of November, 1981.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively.

2/ Because of the patient's obesity--weighing approximately 150 pounds--he was unable to determine a more exact duration of the pregnancy.

3/ It is physically impossible to abort a 24-week fetus from below.

4/ These findings are based on the testimony of Dr. Arthur I. Rudolph, an obstetrician and gynecologist on the staff of the University of Miami Medical School. He has practiced medicine for many years.

5/ The standard of care is not an absolute or unchanging standard; it is a relative one which is based on testimony of a reasonably prudent similar physician. See, s458.331(1)(t), and 768.45, Fla. Stat. (1979).

COPIES FURNISHED:

Deborah J. Miller, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Herman Boughton, M.D. Suite 512

Miami National Bank Building 8101 Biscayne Boulevard

Miami, Florida 33131

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-001663

Orders for Case No: 81-001663