STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NOS. 81-3183

) 82-823

JOSE A. MIJARES, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matters, after due notice, at Tampa, Florida, on November 22-23, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Grover C. Freeman, Esquire

Freeman and Lopez, P.A.

4600 West Cypress, Suite 410

Tampa, Florida 33607

For Respondent: Tony Cunningham, Esquire

Wagner, Cunningham, Vaughan and McLaughlin, P.A.

708 Jackson Street

Tampa, Florida 33602

This proceeding arose upon the filing of an Administrative Complaint by Petitioner Department of Professional Regulation, Board of Medical Examiners, against Jose A. Mijares, M.D., Respondent, on November 14, 1981. The complaint alleged that Respondent had performed inappropriate surgical operations upon two patients in 1978 and 1979 which constituted grounds for discipline under Chapter 458, Florida Statutes. A second Administrative Complaint alleging similar charges involving operations performed in 1977 and 1979 on seven other patients was filed on March 10, 1982. The Respondent requested a Section 120.57(1), Florida Statutes hearing as to both complaints and the matters were referred to the Division of Administrative Hearings for appointment of a Hearing Officer.

The cases were consolidated for hearing pursuant to Rule 28-5.106, Florida Administrative Code, over objections of Respondent, on March 30, 1982. Final hearing was scheduled for May 26-28, 1982, but was reset for July 27-29, 1982, upon motion of Respondent and again to November 22-24, 1982, upon motion of Petitioner.

At the commencement of the hearing, Petitioner filed a motion to amend the Administrative Complaint in Case No. 82-823 with respect to paragraphs 3, 5, 9,

13 and 15 to reflect that certain patients had been admitted to the hospital by a physician other than Respondent. The motion was granted.

Petitioner announced that it was dismissing Counts 2, 5, and 7 of the Administrative Complaint in Case No. 82-823 involving patients Liduvina Suarez, Violet Gonzales, and Rose Morejon.

At the hearing, Petitioner presented the testimony of Dr. Charles F. James, Jr., and Dr. Lazaro Hernandez, and submitted eight exhibits in evidence.

Respondent testified in his own behalf, and presented the testimony of Dr. Robert W. Withers and Dr. Alfred Ferris, and submitted three exhibits in evidence. Due to the unavailability of two witnesses for Respondent, the parties stipulated that the deposition testimony of Dr. Robert Mason and Dr. Mahon Myers would be taken subsequent to the hearing and filed as late-filed exhibits. These depositions are received as Respondent's Exhibits 4 and 5.

Although the parties were advised that briefs or Proposed Recommended Orders could be filed within 15 days from filing of the hearing transcript, none was filed.

FINDINGS OF FACT

1. Dr. Jose A. Mijares is a general and thoracic surgeon who has practiced medicine in Tampa, Florida since 1967. He received his medical degree from the University of Havana in 1943. He served a five-year residency at Tampa General Hospital which was completed in 1967. He is Board certified in general surgery and limits his practice to that field. He is licensed to practice medicine in Florida and was so licensed at all relevant times herein. (Testimony of Respondent, stipulation)

   
   

2. In 1977, Respondent was on the staffs of five hospitals in the Tampa area, including Centro Asturiano Hospital. The allegations of the Administrative Complaints deal with Respondent's treatment of six patients at Centro Asturiano Hospital at various times during the period 1977 to 1979.

   
   

3. Ricardo Larzabal This sixteen-year-old patient was admitted to the hospital by Dr. A.B. Perez on May 12, 1977, with a diagnosis of abdominal pain and nausea. At admission, the patient's white blood count was slightly elevated at 11,000, but was at a normal range of 10,500 the following day. Respondent was called in for consultation on May 13. His impression was abdominal pain with possible appendical colic, and recommended a barium enema. The results of the barium enema showed that only about on-third of the appendix filled. On May 16, Respondent performed an exploratory laparotomy and appendectomy. He found the appendix kinked with a band in the proximal third of the appendix and fecalith in the distal two-thirds of the appendix. The pathological report reflected a congested vermiform appendix with lymphoid hyperplasia.

   Respondent's discharge diagnosis was "Abdominal pains. Appendical colic due to fecalith in the appendix. Chronic appendicitis." (Testimony of Respondent, Petitioner's Exhibit 4)

   
   

4. Vivian Morejon Dr. C. Castellanos admitted this seventeen-year-old patient to the hospital on May 15, 1977, with a diagnosis of epigastric pain and colitis. On admission, the patient had a normal white blood county of 9,000. A barium enema was administered and reflected no abnormality. Respondent was called in for consultation on May 18 and his impression was "Abdominal pain,

   appendical colic." He performed an exploratory laparatomy and appendectomy on May 19, at which time he found blood in the peritoneal cavity caused by a ruptured follicle of an ovary. The appendix was retrocecal and covered by adhesions as in chronic appendicitis. His final diagnosis was "Abdominal pain, appendical colic due to chronic appendicitis, and ruptured follicle of the right ovary." The pathology report reflected that the patient had a vermiform appendix with lymphoid hyperplasia. (Testimony of Respondent, Petitioner's Exhibit 7)

   
   

5. Ramiro Companioni, Jr. This fourteen-year-old patient was admitted to the hospital by Dr. C. Castellanos on September 24, 1977, due to pain in the right lower quadrant which had not been relieved with medication, and vomiting for two days prior to admission. The patient had been admitted to the hospital during the previous February with the same condition. At time of admission, he had a white blood count of 5,200 which was slightly lower than normal. Respondent was consulted on the day of admission and his impression was abdominal pain, appendical colic. A barium enema was ordered, but the appendix could not be observed. On September 27, Respondent performed an exploratory laparatomy and appendectomy. He found that the appendix was congested, edematous with fecalith in mid-portion covered by adhesions. The pathology report showed a microscopic diagnosis of acute appendicitis, as did Respondent's discharge diagnosis. The patient recovered without complications. (Testimony of Respondent, Petitioner's Exhibit 6)

   
   

6. Shirley Alvarez This fifteen-year-old patient was admitted to the hospital by Dr. C. Castellanos on September 26, 1977, with acute abdominal pain in the right side with nausea and vomiting, which was diagnosed as possible appendicitis. Her white blood count was 6,900 and a barium enema did not visualize the appendix. Respondent was consulted on September 28, and his impression was that the patient had abdominal pain, appendiceal colic. He performed an exploratory laparotomy and appendectomy on September 29. The appendix was retrocecal and covered with adhesions as in chronic appendicitis. The pathology report showed on microscopic diagnosis a vermiform appendix with multiple serosal adhesions. The patient was discharged with a final diagnosis of chronic appendicitis. (Testimony of Respondent, Petitioner's Exhibit 8)

   
   

7. Luisa Areu This forty-two year old patient was admitted by Respondent to the hospital on July 18, 1978, complaining of abdominal pain in the right flank. On examination, Respondent's impression was cervical polyp and possible enlarged uterus. The patient had experienced an exploratory laparotomy some 10 years before, but no records were available to determine the cause or results of the operation. On July 21, 1978, Respondent performed a dilation and four quadrant biopsy of the cervix. Although no polyp was found, there was severe chronic cervicitis and the uterus on palpation was enlarged. Respondent determined that a hysterectomy was advisable due to the enlargement of the uterus and the advanced severe chronic cervicitis. On July 27, Respondent removed the uterus, both fallopian tubes, and the appendix. The ovaries were not removed. The uterus was found to be of normal size, but both tubes were congested and edematous as in salpingitis. The pathology report confirmed the diagnosis of chronic cervicitis but found no significant abnormalities with the patient's tubes or appendix. Respondent's discharge diagnosis was severe chronic cervicitis. His discharge summary stated that in spite of the pathological report that the tubes looked normal, both tubes were congested and edematous like chronic salpingitis. (Testimony of Respondent, Petitioner's Exhibit 1)

8. Deborah Fisher This 22-year-old patient was admitted by Respondent to the hospital on February 4, 1979, complaining of lower abdominal pain. Approximately seven months prior to her admission, she had had a tubal ligation and had experienced pain and occasional vomiting thereafter. The patient's history indicated that intercourse was very painful and that she had not had menstrual periods since September, 1978. Respondent's impression was "lower abdominal pain, rule out chronic pelvic inflammatory disease." All laboratory and other tests of the patient were negative. On February 8, 1979, Respondent performed a total abdominal hysterectomy, bilateral salpingectomy, and appendectomy. He found the tubes to be congested and edematous as in sub-acute salpingitis. The pathology report on microscopic diagnosis showed chronic cervicitis, mild with reserve call hyperplasia and slight dysplasia. No patholgoical diagnosis was found as to the fallopian tubes and appendix. (Testimony of Respondent, Petitioner's Exhibit 2, Respondent's Exhibit 1)

   
   

9. It is difficult to diagnose acute appendicitis, particularly in the case of children between 12 and 18 years of age. About 70% to 85% of appendices removed incident to an operating diagnosis of appendicitis are pathologically acute. This generally is because physicians are reluctant to permit the possibility of appendices developing abscesses and perforations if appendectomies are forestalled for too long a period. It is particularly difficult to diagnose acute appendicitis in females between the ages of 14 and

   18 because they often have other causes for pain, such as an ovarian cyst. It is an accepted and customary practice to remove a normal appendix in conjunction with other surgery in the right lower quadrant, unless there are contra- indicating problems. This precludes the later possibility of appendicitis attacks, and also lessens the probability of erroneous diagnosis later because of the presence of a lower incision scar. (Testimony of Myers, [Deposition- Respondent's Exhibit 4], Mason [Deposition-Respondent's Exhibit 5] Respondent)

   
   

10. In cases that are difficult to diagnose, particularly in young children, the use of the barium enema as a diagnostic tool for appendicitis is accepted medical practice. It helps to determine if an appendix is normal. If the appendix fills completely, it is considered to be normal, but if it does not fill normally and there is also swelling and other complaints, a physician can imply pathology in the area near the appendix. (Testimony of Respondent, Myers, Ferris, Respondent's Composite Exhibit 2, 4)

    
    

11. Expert testimony at the hearing established that all six of the operations in question were necessary and proper, and that the care and treatment rendered by Respondent to the patients met acceptable and medical standards in the community.

    
    

12. In the case of patient Larrabal, although his white blood count had subsided on the second day of admission, his prior history, coupled with the fact that the barium enema only partially filled the appendix, showed, in the opinion of one expert, that there was a "diagnostic dilemma" which justified the operation after waiting an appropriate time. Although the pathology report reflected a normal appendix, the fact that lymphoid hyperplasia was also found indicated the presence of an abnormality.

13. As to patient Companioni, Respondent testified that he saw no need to operate immediately because the white blood count was normal which could have indicated the presence of viral rather than bacterial infection. Again, however, the barium enema only partially filled the appendix, thus justifying the operation when considered along with the patient's complaints and other indications. Expert opinion established that Respondent's delay was justified in waiting an appropriate time to determine if the patient's illness was minor in nature or acute.

    
    

14. The exploratory laparotomy which Respondent performed on patient Morejon was justified in that it was impossible to determine in advance whether the pain she had experienced was caused by appendicitis or something else. It was discovered upon operating that she had had a ruptured follicle of the ovary which was the source of pain. The removal of her normal appendix as incident to the surgery was necessary and proper under the circumstances. Even Petitioner's expert testified that it had been a "close call" as to whether or not to operate on the patient, and he agreed that the appendix should have been removed as incidental to the surgery.

    
    

15. As to patient Alvarez, the fact that the appendix didn't "visualize" as a result of the barium enema indicated something was blocking the appendix and warranted the operation. The fact that fibrous adhesions were found showed that the appendix was abnormal. Although Petitioner's expert, Dr. Charles F. James, testified that the presence of adhesions indicated that the patient had probably had previous attacks of appendicitis, he felt that the operation was unjustified because there was no acute inflammation. However, he acknowledged that it is common to remove an appendix in such a case and could not be considered improper. (Testimony of Respondent, Myers, Mason, James, Respondent's Exhibit 4, 5)

    
    

16. Petitioner's expert had reviewed the records of 15 appendectomy cases of Respondent, including the four which are the subject of charges herein. He testified that, although his opinion might be different from that of Respondent as to the treatment in question, none of the cases justified disciplinary action. (Testimony of James)

    
    

17. There was conflicting expert testimony at the hearing with regard to the property and necessity of Respondent's surgical procedures regarding patients Area and Fisher, but the opinions expressed in the testimony of Dr. Robert W. Withers are accepted. He found that patient Areu's complaints, past medical history, and the fact that a sonogram reflected that she had an enlarged uterus indicated that the only reasonable location for her pain was in the uterus. It was therefore his opinion that such pain related to the uterus is best cured in someone who has had previous surgery in that area by the surgical procedures performed by Respondent. As to patient Fisher, similar surgical procedures performed by Respondent. As to patient Fisher, similar surgical procedures performed by Respondent were considered indicated and proper by Dr. Withers based on the patient's complaints and the prior history of tubal ligation which had resulted in the existence of post-tubal sterilization syndrome. In the opinion of Dr. Withers, there could be no other effective treatment for the patient to relieve her problem than the surgical procedures employed by Respondent. Additionally, it was found that the patient had a precancerous condition known as dysplasia, indicative that Respondent's operative procedures were fortuitous and to the patient's benefit. (Testimony of Respondent, Withers)

    CONCLUSIONS OF LAW

    
    

18. Petitioner's Administrative Complaints, as amended, allege that Respondent should be disciplined for violation of subsection 458.1201(I)(m), Florida Statutes (1977 and Supp. 1978), for unprofessional conduct, incompetence, or negligence, and for violation of subsection 458.333(1)(t), Florida Statutes (1979 and 1981), by engaging in gross or repeated malpractice or the 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. Additionally, as to patients Areu and Fisher, Petitioner alleges that Respondent violated subsection 458.1201(1)(h), Florida Statutes (Supp. 1978), by engaging in unethical or deleterious conduct or practice harmful to the public.

    
    

19. The facts alleged in support of the above purported grounds for discipline as to each patient are as follows:

    
    

    1. Ricardo Larzabal It is alleged that Respondent utilized an ineffective diagnostic test -- a barium enema -- to determine the necessity of an appendectomy, and that the patient's temperature and white blood count and examination results did not indicate that an appendectomy was appropriate.

       
       

    2. Shirley Alvarez It is alleged that Respondent performed an appendectomy which was unjustified because the pathology report showed a normal appendix.

       
       

    3. Ramiro Companioni, Jr. It is alleged that Respondent inappropriately utilized a barium enema to determine the presence of appendicitis, and that although the patient, in fact, had appendicitis, the Respondent inappropriately delayed the necessary surgery for three days which was potentially dangerous to the patient.

       
       

    4. Vivian Morejon It is alleged that the patient's white blood count was within normal limits, but the Respondent inappropriately performed an exploratory laparotomy, and inappropriately removed a normal appendix.

       
       

    5. Luisa Areu It is alleged that although a sonography revealed a slightly enlarged uterus, an exploratory laparotomy was not justified, but a more conservative diagnostic procedure should have been utilized. Further, it is alleged that the abdominal hysterectomy, bilateral salpingectomy and appendectomy were inappropriate and without medical justification. This conclusion apparently was based on the allegation that all tissue was reported normal except for a finding of chronic cervicitis.

       
       

    6. Deborah Fisher It is alleged that since all diagnostic tests were negative, Respondent performed an unindicated exploratory labatomy, and a total abdominal hysterectomy, bilateral salpingectomy, and appendectomy, without sufficient medical justification since the pathological report revealed all tissue removed was normal except for mild cervicitis which was an insufficient medical justification for the procedures performed.

       
       

20. Contrary to Petitioner's allegations, the Findings of Fact herein established that Respondent's surgical procedures were appropriate and that he practiced medicine in those instances with a reasonably prudent level of care, skill and treatment. The evidence shows that the use of a barium enema as a diagnostic tool is entirely appropriate in cases of suspected appendicitis involving teenage children. The evidence shows that it is a usual and

    acceptable practice for a physician to remove a normal appendix incidental to other surgery in the area. Expert testimony established that in each instance the surgical procedures used by Respondent were justifiable in light of the complaints, test results, previous histories, and actual conditions of the patients.

    
    

21. License revocation proceedings are penal in nature. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). As such, "the critical matters in issue must be shown by evidence which is undoubtedly as 'substantial' as the consequences." Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). Therefore, the evidence which is required to "substantially" support a license revocation must be greater than that required to support conventional forms of regulatory action. In this instance, Petitioner has failed to meet its burden of proof. In fact, as heretofore stated, the weight of the evidence shows that Respondent acted properly under the circumstances. Accordingly, grounds for disciplinary action have not been established.

RECOMMENDATION

That Petitioner dismiss the Administrative Complaints herein.

DONE AND ENTERED this 3rd day of February, 1983, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.

COPIES FURNISHED:

Grover C. Freeman, Esquire Freeman and Lopez, P.A.

4600 West Cypress, Suite 410

Tampa, Florida 33607

Tony Cunningham, Esquire Wagner, Cunningham, Vaughan

and McLaughlin, P.A. 708 Jackson Street

Tampa, Florida 33602

Dorothy Faircloth, Executive Director Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

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

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

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS,

Petitioner,

vs. CASE NOS. 81-3183

82-823

JOSE A. MIJARES, M.D.,

License Number: 12114,

Respondent.

/

FINAL ORDER

THE BOARD OF MEDICAL EXAMINERS

This matter came before the Board of Medical Examiners (Board hereinafter) pursuant to Section 120.57(1)(b)9., Florida Statutes, on April 9, 1983, in Sarasota, Florida, for the purpose of considering the Recommended Order (a copy of which is attached) issued by the hearing officer in the above-styled matter. The Petitioner was represented by Joseph W. Lawrence, II, Esq. The Respondent was represented by Tony Cunningham, Esq. After review of the complete record, the argument of the parties, and being otherwise fully advised in the premises, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The hearing officer's findings of fact are approved and adopted in toto and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence to support the Board's findings of fact.

   
   

   CONCLUSIONS OF LAW

   
   

3. The hearing officer's conclusions of law are approved and adopted in toto and are incorporated herein by reference.

   
   

4. There is competent, substantial evidence to support the Board's conclusions of law.

   
   

5. The hearing officer's recommendation is approved and adopted.

WHEREFORE, it is ORDERED AND ADJUDGED that the Administrative Complaint filed against the Respondent in the case of Department of Professional Regulation, Board of Medical Examiners v. Jose A. Mijares, M.D., Case Nos. 81- 3183 and 82-823, be and hereby is dismissed. This Order becomes effective upon the date of filing.

DONE AND ORDERED this 21 day of April, 1983.

BOARD OF MEDICAL EXAMINERS

By Dorothy Faircloth

cc: Counsel of Record

Jose A. Mijares, M.D. 6101 Webb Road

Suite 109

Tampa, Florida 33615

Docket for Case No: 81-003183

Orders for Case No: 81-003183