STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-870

)

RALPH H. ADEN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, in Miami, Florida.

APPEARANCES

For Petitioner: Spiro T. Kypreos, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: William Hoppe, Esquire

Suite 810, Concord Building

66 West Flagler Street Miami, Florida 33130

ISSUE

This matter concerns the issue of whether the Respondent's license to practice medicine in the State of Florida should be suspended, revoked, or other disciplinary action taken for the Respondent's alleged failure to properly deliver the baby of Mrs. Barbara M. Katz on September 15, 1979.

During the hearing, the Petitioner, Department of Professional Regulation, called as its witnesses, Deborah Ferrell, one of the attending nurses, and Ms. Shirley Rascom, the senior nurse on duty in the labor and delivery area on September 14 and 15, 1979, when Mrs. Katz was in labor and delivery. By deposition, the Petitioner presented the testimony of its expert witness, Emanuel A. Friedman, M.D., Se.D. Dr. Aden, the Respondent, was the only witness who testified for the Respondent.

The Petitioner offered into evidence eight exhibits and these exhibits were accepted without objection by the Respondent. Those exhibits included as Exhibit 1, the curriculum vitae of Dr. Emanuel A. Friedman; Exhibit 2, Dr.

Friedman's notes; Exhibit 3, a composite exhibit of the Baptist Hospital medical records of Barbara Katz; Exhibit 4, an extract of the Baptist Hospital medical

records of Barbara Katz; Exhibit 5, the deposition of Dr. Ralph Aden taken on June 9, 1980, in the civil action, Case No. 80-5595, CAO9; Exhibit 6, the Jackson Memorial Hospital medical records of Baby Katz; Exhibit 7, the deposition of Dr. Emanuel Friedman; and Exhibit 8, complete copies of pages 51377 and 51378 of the fetal monitoring strips. The Respondent had two exhibits marked which were articles attached to the deposition of Dr. Emanuel Friedman.

These articles were not offered into evidence by the Respondent.

Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this Recommended Order, they have been rejected as being irrelevant to the issues in this cause, or as not having been supported by the evidence.

FINDINGS OF FACT

1. The parties stipulated to the following facts:

   
   

   1. That the Division of Administrative Hearings has jurisdiction over the sub- ject matter and over the Respondent.

   2. That the Respondent is, and at the

      times alleged in the Administrative Com- plaint was, a licensed physician in Florida with License No. ME0011047.

   3. That a doctor/patient relationship existed between the Respondent and Barbara Katz prior to and during her labor and delivery on September 14 and 15, 1979.

      
      

2. Barbara Katz became a patient of Dr. Aden in approximately 1968, and remained his patient through the birth of the child on September 15, 1979. He first saw Barbara Katz with regard to the pregnancy in 1979, in the early part of 1979. She was approximately three months pregnant at the time he first saw her. The history of Barbara Katz, with which Dr. Aden was familiar, included two prior pregnancies. One prior pregnancy was a hydrocephalic infant, weighing four pounds, seven ounces. Her second child was born by spontaneous vaginal delivery and weighed six pounds, seven ounces. The pelvis of a woman is considered to be "proven" if she has given birth to an infant above five and

   one-half pounds by spontaneous vaginal delivery. There was nothing about the patient's history or her condition at the time Dr. Aden initially saw her that caused Dr. Aden to believe that she could not have a normal pregnancy.

   
   

3. Dr. Aden and his partner Dr. Zellner provided the prenatal care for Barbara Katz. Between the time that Dr. Aden initially saw her in early 1979 and the time of delivery, Barbara Katz had experienced a weight gain of approximately twenty-six or twenty-seven pounds. This was within normal limits. Dr. Aden and his partner Dr. Zellner saw Mrs. Katz approximately ten times prior to her entering the hospital on September 14, 1979. During her prenatal care, the patient requested and Dr. Aden agreed that he specifically would deliver her baby.

   
   

4. At some point in the early morning hours of September 14, 1979, Barbara Katz experienced a spontaneous rupture of her membranes. She checked into Baptist Hospital at 1:25 A.M. that same morning. She was examined initially by Dr. Zellner. The examination revealed that her cervix was thick and closed and

   the vertex was floating. The patient was not in active labor at the time she entered the hospital. The membranes were also found to have been ruptured with meconium stain. This can mean fetal distress when coupled with other problems and can often be seen in cases of cephalopelvic disproportion.

   
   

5. Dr. Zellner again saw her and found no change at 4:10 A.M. At 5:30 A.M., an examination revealed that the cervix was softer and very posterior. At 6:22 A.M., Dr. Zellner began Pitocin infusion for stimulation of labor. It is unclear whether Dr. Zellner began the Pitocin for the purpose of stimulating sufficient labor to allow the baby to move down far enough to attach an internal monitor. Dr. Aden was uncertain but felt that it had been begun merely to allow Dr. Zellner to attach an internal monitor. At 8:35 A.M., the cervix had dilated to 2 to 3 centimeters and the internal monitor was placed.

   
   

6. At 8:55 A.M., Dr. Aden saw Barbara Katz for his second time in Baptist Hospital and stopped the Pitocin stimulation. He gave no specific medical reason for stopping the Pitocin. Stopping Pitocin after it has been begun increases the risk of infection. However, no such infection developed in this case.

   
   

7. The progress of a patient in labor is measured primarily in three ways: dilatation, effacement, and station. Dilatation describes the dilation of the cervix from 0 to 10 centimeters at full dilation. Effacement refers to the thinning out of the cervix. Station addresses how far the presenting part is down into the pelvis and basically describes the progress of the movement of the child down through the birth canal.

   
   

8. By 6:35 P.M. on September 14, 1979, Mrs. Katz had not progressed and Dr. Aden decided to start the Pitocin once again in order to put her into labor and deliver her. At this point, approximately eighteen hours had passed since her membranes had ruptured.

   
   

9. At 8:00 P.M. Dr. Aden again examined Mrs. Katz and found that she was dilated 3 to 4 centimeters with the effacement of 80 percent and the station was minus 2. At that time, he still felt that they would have a vaginal delivery.

   
   

10. The patient was again examined at 9:15 P.M. and the dilatation was found to be 4 to 5 centimeters with a station of minus 2. At 11:00 Mrs. Katz was examined by Dr. Aden and there was no change in dilatation, effacement or station from the previous examination at 9:15.

    
    

11. At 11:00 P.M. the doctor still felt that they would have a vaginal delivery. There had been very little progress between 6:20 P.M. and 11:00 P.M. and the cervix was still rigid and leathery. At this time, the doctor decided that if there was no further progress or change by 2:00 A.M., then he would perform a Cesarean section.

    
    

12. At 1:04 A.M. on September 15, 1979, the cervix had dilated to 5 centimeters and was 80 percent effaced. The station of the fetus remained at negative 2. The station had now remained at minus 2 since 8:00 P.M. of the previous evening.

    
    

13. The patient had dilated to 5 to 6 centimeters by 2:35 A.M. and effacement was at 80 percent. The station of the fetus remained at minus 2. By 3:45 .M. the patient was at rim which means just a small portion of the cervix was left and she was almost completely dilated to 10 centimeters. The station had changed to plus 1.

14. At approximately 6:00 A.M., just before Mrs. Katz was taken to the delivery room, Shirley Bascom, in the process of helping the patient push, determined the fetal station to be plus 1. There was no examination performed by Dr. Aden between 3:45 and 6:20 A.M. to determine the station of the fetus. Just before going into the delivery room, Shirley Bascom informed Dr. Aden that the station was plus 1.

    
    

15. At 6:20 A.M. Mrs. Katz was taken into the delivery room by Nurses Ferrell and Bascom. Mrs. Katz had previously requested that she be put to sleep during the delivery and following entry into the delivery room she was given a general anesthetic.

    
    

16. At approximately 6:26 or 6:27 A.M., after scrubbing and dressing, Dr. Aden attempted to apply forceps. He had difficulty in getting the forceps into place and never got the forceps to completely lock. He attempted to apply the forceps several times between 6:26 and 6:50 A.M. After getting the forceps to partially lock, Dr. Aden attempted to Bull the baby down and deliver the baby with the forceps. He used what appeared to Nurse Ferrell to be a lot of strength in pulling on the forceps. Nurse Ferrell observed only the handles of the forceps as being exposed.

    
    

17. Prior to entering the delivery room, the fetal monitor had shown patterns of cord compression. This pattern was not severe and with this cord comoression, they observed immediate recovery. At approximately 6:32 A.M. a true difference in this fetal monitor pattern appeared. At that point they began to experience prolonged deceleration which meant that the heart beat of the fetus would go down and stay down longer and longer this indicates fetal distress.

    
    

18. At 6:50 A.M., after unsuccessful attempts at forceps delivery, Dr. Aden ordered the nurses to prepare for a Cesarean section. At least twice prior to 6:50 A.M., the baby's heart rate had gone to zero. On the second time it went to zero, a new electrode was placed and once it was confirmed that there was no heartbeat present, the doctor ordered the Cesarean section. The first time the heartbeat went to zero, Nurse Bascom had apparently been able to pick up some heartbeat with the stethoscope. For a period of approximately five to seven minutes prior to ordering the C-section at 6:50 .M., there had been no verifiable heartbeat of the fetus. At least twice between 6:20 and 6:50 A.M. Nurse Shirley Bascom had asked Dr. Aden whether he wanted theirs to prepare for a Cesarean section or not.

    
    

19. While in the delivery room, the fetal station was at plus 2 and the fetus was in a right occiput position. This was the station and the position at the time the doctor was attempting to apply forceps and attempting to accomplish a forceps delivery.

    
    

20. There was some question raised as to whether the doctor attempted a low or mid forceps delivery. Dr. Aden contended that it was a low forceps delivery based on the fact that the station of the fetus was at plus 3 while in the delivery room. The only time the fetus, according to his testimony, was at plus 3 station was during the one contraction which Mrs. Katz had in the delivery room. At that point Dr. Aden testified that he saw the baby crown. Nurse Ferrell, who was in a position shortly following entry into the delivery room to see the baby crowning, never saw the baby crown. Although Dr. Aden's contention was based upon the fact that the baby had crowned and the vertex was at plus 3, his operative report reflects:

    The patient was in the delivery room when the fetal heart tones went to zero. The vertex, right occiput pos- terior at a plus 2 station. The forceps were applied several times unsatisfactorily. (See page 28, Petitioner's Composite Exhibit 3.)

    
    

    Just prior to entering the delivery room, Shirley Bascom had reported to the doctor that the baby's station was plus 1. After the one contraction in which Dr. Aden says he saw the baby crown, the patient, Barbara Katz, had no more contractions in the delivery room and, although the baby descended during that contraction, it went back up. There was an arrest of descent of the baby in the delivery room. Dr. Friedman, based upon a station of plus 2 and the positioning of the fetal head in a right occiput posterior position, testified that beyond any question this was a mid forceps operation. As finder of fact, I so find that Dr. Aden attempted a mid forces delivery and not a low forceps delivery.

    Dr. Aden, in his own deposition (Petitioner's Exhibit 5, at cage 165), indicated that with the baby in the right occiput posterior position a mid-low forceps delivery could be made.

    
    

21. When Dr. Aden applied the forceps he did not move the baby's head or vertex.

    
    

22. Between the time of 9:15 P.M. on the evening of September 14, and 2:35 A.M. on the morning of September 15, 1979, the patient, Barbara

    ,experienced an arrest of dilation. At 9:15 she was at 4 to 5 centimeters and at 2:35 A.M. she was at 5 to 6 centimeters. At 3:45 A.M. when Dr. Aden first attempted to apply forceps, the station was at plus 2. This essentially showed a condition of arrest of descent. This arrest of descent over that long a period of time was quite in excess of what one would expect in a multi-para (a woman who has given birth to more than one child). Both of these conditions, either alone or in conjunction with each other, signify the probability that the patient has an obstruction of labor. That is, that the head size was too big for the pelvis. Either of these conditions required that reasonably prudent physician perform an examination for determining whether there is in fact a cephalopelvic disproportion. At no time did Dr. Aden perform an examination to specifically determine whether cephalopelvic disproportion was in fact present.

    
    

23. The presence of arrest of dilation and arrest of descent places the likelihood of vaginal delivery in doubt. The fact that a patient had a proven pelvic by prior deliver will not preclude the existence of cephalopelvic disproportion in a future delivery and does not eliminate the need for an examination to determine the presence of cephalopelvic disproportion when indicated by the circumstances of labor and the progress of that labor. There were two methods available to Dr. Aden in 1979, for assessing cephalopelvic disproportion. The first approach involves X ray or pelvimetry which is not widely used. The second approach involves the use of the fingers for purposes of determining whether there is any available room within the pelvis between the bones of the fetal head and the bones of the maternal pelvis. Neither of these examinations was ever performed by Dr. Aden.

    
    

24. The use of forceps for delivering a baby is a risky procedure. A baby whose head is in the right occiput posterior position at station plus 2 is not in the optimum position for use of forceps in the delivery. The use of mid forceps under the circumstances of this labor and delivery was inappropriate.

25. The baby of Barbara Katz died as a result of widespread damage to the brain resulting from hypoxic and traumatic damage. This condition, and thus the cause of death, was the direct result of the attempted delivery by forceps by Dr. Aden.

    
    

26. At all times from 8:55 A.M. on the morning of September 14, Dr. Aden was only two to three minutes away from the hospital and available by phone to come to the hospital, if Mrs. Katz had developed an emergency during the course of the day. Dr. Aden was physically present at the hospital itself from 6:20

    P.M. on the 14th until after the delivery at 7:02 A.M. on the 15th of September.

    
    

27. Dr. Aden's background reflects that he received his bachelor's degree from the University of Rhode Island and his master's degree from the School of Public Health, Columbia University. He received his M.D. degree from the University of Lausanne, Lausanne, Switzerland. He completed his internship at Georgetown Medical School, service at D. C. General Hospital, Washington, D. C. He then performed three years' residency at Albert Einstein Medical Center, Southern Division, Philadelphia, Pennsylvania. After completing his residency, he became licensed in Florida and has been in the active practice of obstetrics and gynecology in Florida since 1965. He is board certified and has taught as a clinical associate professor at the University of Miami Medical Center.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

29. Florida Statutes 458.331(1)(t)(1979) authorizes the Petitioner to discipline a physician who fails 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."

    
    

30. As to Count I of the administrative complaint, the stopping of the Pitocin at 8:55 in the morning was not the most appropriate action to take under the circumstances, but was not proven to fall below the level of care, skill and treatment recognized by a reasonably prudent similar physician under similar conditions and circumstances.

    
    

31. In using mid forceps and attempting to apply such forceps for a period of twenty-four minutes under the circumstances and conditions of this patient, Barbara Katz, Dr. Aden failed 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.

    
    

32. In failing to examine Barbara Katz for cephalopelvic disproportion, Dr. Aden failed 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.

32. The actions of Dr. Aden, as described in paragraphs 3, 4 and 5 above, do not constitute gross or repeated malpractice.

RECOMMENDATION

Upon consideration of the foregoing, it is

RECOMMENDED:

1. That petitioner dismiss Counts I and IV of the administrative complaint.

   
   

2. That Petitioner place the Respondent on probation for a period not to exceed one year.

DONE and ENTERED this 15th day of February, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Spiro T. Kypreos, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

William Hoppe, Esquire Suite 810, Concord Building

66 West Flagler Street Miami, Florida 33130

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth Executive Director

Board of Medical Examiners Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

=================================================================

STATE OF FLORIDA

BEFORE THE BOARD OF MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS,

Petitioner,

vs. CASE NO.: 82-870

RALPH ADEN, M.D.,

License Number: 11407,

Respondent.

/

FINAL ORDER OF

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) is sued by the hearing officer and the exceptions thereto filed in the above-styled matter. The Petitioner was represented by Joseph W. Lawrence, II, Esquire The Respondent was represented by Bill Hoppe, Esquire After review of the complete record, the Exceptions to Recommended Order filed by the parties, 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 except for the finding that the Respondent failed to examine Barbara Katz for cephalopelvic disproportion. The remaining findings of the hearing officer make it impossible for this finding to be supported by competent, substantial evidence. Respondent's exception to this finding is accepted.

   
   

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

   
   

   CONCLUSIONS OF LAW

   
   

3. Paragraphs Nos. 1, 2, 3, 4 and 6 of the hearing officer's Conclusions of law are approved and adopted in toto and are incorporated herein by reference.

   
   

4. Respondent's exception to paragraph No. 5 of the hearing officer's conclusions of law is accepted and that conclusion is rejected as there is no competent, substantial evidence to support this conclusion.

   
   

5. Petitioner verbally withdrew its exception to the hearing officer's recommended penalty at the time of the Board's consideration of the recommended order.

   
   

6. The recommended penalty is rejected as being inappropriate under the circumstances of this case.

WHEREFORE, it is ORDERED AND ADJUDGED that Ralph Aden, M.D., is guilty of violating Section 458.331(1)(t), Florida Statutes, as charged in Count II of the Administrative Complaint. The remaining counts of the Administrative Complaint are dismissed. The Board imposes no penalty in this case. This Order becomes effective upon filing.

DONE AND ORDERED this 26th day of April, 1983.

BOARD OF MEDICAL EXAMINERS

BY Dorothy Failcloth

cc: All Counsel of Record.

Ralph Aden, M.D.

9595 North Kendall Drive Miami, Florida 33176

Docket for Case No: 82-000870

Orders for Case No: 82-000870