STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1935

)

ROBERT ALAN KAST, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on December 2 and 3, 1982, in Miami, Florida. The following appearances were entered: Spiro T. Kypreos, Tallahassee, Florida, appeared on behalf of the Petitioner, Department of Professional Regulation, Board of Medical Examiners; and Joel R. Wolpe, Miami, Florida, appeared on behalf of the Respondent, Robert Alan Kast, M.D.

On or about June 14, 1982, Petitioner issued an Administrative Complaint against the Respondent, a licensed physician. Petitioner is seeking to take disciplinary action against the Respondent based on an alleged violation of the provisions of law relating to the practice of medicine. Respondent requested a formal administrative hearing, and on July 14, 1982, Petitioner forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The Respondent filed a Motion to Dismiss the complaint, which was denied by Order entered August 30, 1982. A final hearing was scheduled to be conducted as set out above by notice dated August 30, 1982.

Petitioner called the following witnesses at the final hearing: Dawn Rae Johannsen, a former patient of the Respondent; Dr. Arthur I. Rudolph, a licensed physician who practices in Miami, Florida; and Dr. Sanford L. Yankow, a licensed physician who practices in Miami, Florida. The Respondent testified as a witness on his own behalf and called the following additional witnesses: Elizabeth P. Bailey, Betty Eason, and Margarita Rodriguez, all of whom are employees, of Dadeland Family Planning Center; Benjamin Graver, a licensed physician who practices in Pompano Beach, Florida; Richard I. Slatkin, a physician who practices in New York City; and Bernard H. Stern, a physician who practices in Miami, Florida. Petitioner's Exhibits 1 through 3 and Respondent's Exhibits 1 through 5 were offered into evidence and received. Petitioner's Exhibit 4 and Respondent's Exhibits 6 and 7 were offered into evidence and rejected.

The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been

otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of provisions of law relating to the practice of medicine and, if so, what disciplinary measures are appropriate. Petitioner contends that the Respondent committed acts of gross malpractice and failed to practice medicine with the level of care, skill, and treatment which is recognized as being acceptable under similar conditions in violation of the provisions of Section 458.331(1)(t), Florida Statutes, in connection with his treatment of a patient, Dawn Rae Johannsen. Respondent contends that his treatment of the patient was proper under the circumstances.

FINDINGS OF FACT

1. The Respondent is a licensed medical doctor, having been issued License No. 0038405 by the Petitioner. At all times material to this proceeding, the Respondent has been licensed as a physician in Florida and has maintained a private medical practice in Miami, Florida.

   
   

2. The Respondent specializes in the fields of obstetrics and gynecology. After graduating from medical school and completing an internship program, the Respondent completed a four-year residency program at Brookdale Medical Center, New York City, in June, 1981. The Respondent has completed the first part of examinations that could lead to his being classified as "board certified" in his specialty. When he has adequate experience, he will be eligible to take the remaining portion of the examination. While at Brookdale, the Respondent was specifically trained in termination of pregnancy, or abortion, procedures. A significant portion of the Respondent's practice is the performance of abortions. He is in good standing on the active staff of seven hospitals. He performs abortion procedures at a facility known as the Dadeland Family Planning Center. During his residency program and in private practice, the Respondent has performed approximately 3,000 abortion procedures. These procedures involved patients who were in the first and second trimesters of pregnancy.

   
   

3. During March, 1982, Dawn Rae Johannsen was a fifteen-year-old tenth grade student. On March 11, 1982, she visited the "Women's Referral Center" in Miami to be tested for pregnancy. The results of the test were positive. On March 17, 1982, she visited the Dadeland Family Planning Center to arrange for an abortion. On Saturday, March 20, she went to the center at approximately 10

   a.m. to have the abortion procedure performed. In her visits to the Women's Referral Center and to the Dadeland Family Planning Center, Johannsen used a fictitious name, Terri Marks. She also gave a fictitious telephone number and a fictitious address. It was Johannsen's desire to handle her situation on her own and to keep it secret from her parents.

   
   

4. The Respondent was working at the Dadeland Family Planning Center on March 20, 1982; and he performed the abortion procedure on Johannsen. He identified himself to Johannsen and checked her file to see that the consent forms had been signed. He talked with Johannsen to assure himself that she understood the nature of the procedure. The Respondent then examined Johannsen. He checked the size of her uterus and estimated that she was approximately thirteen weeks' pregnant. This would place her in the second trimester of pregnancy. This conflicted somewhat with Johannsen's patient history, which reflected that she had had her last period on approximately December 31, 1981.

5. In performing abortions, the Respondent utilizes a technique known as a "suction termination." He first inserts a speculum into the vaginal canal. A speculum is a gynecological instrument that is used to visualize the vaginal area and contents. He then cleanses the area, using Betadine on a sponge. He then places a tenaculum on the anterior cervical lip. A tenaculum is a sharp- toothed instrument which provides traction. He then utilizes a local anesthesia. Once the anesthesia takes effect, Respondent utilizes "Pratt dilators" to dilate the cervix. Once the cervix is dilated, Respondent performs a "suction curettage" which serves to evacuate most, if not all, of the contents of the pregnant uterus. At that point, the Respondent utilizes a "sharp curettage." This is a sharp surgical instrument approximately 10 inches long. It serves as an extension of Respondent's hand and is used to remove any possible products of conception which were not removed by the suction technique. With this technique, the Respondent is able to determine if any debris remains in the uterus and if the side walls are firm, smooth, and clean. At that point, the Respondent reinserts the "cannula tube" that was used to do the suction curettage. This technique is used to rid the uterus of any possible cellular debris. It is an extra step that is not performed by all physicians, but which Respondent was taught in his residency program helps assure that all debris have been removed.

   
   

6. In performing an abortion upon Dawn Johannsen, Respondent followed his usual techniques. The suction curettage and sharp curettage procedures proceeded normally. It appeared to Respondent that eight to ten weeks of fetal material were removed by the suction curettage. The sharp curettage did not reveal additional debris. Johannsen's uterine wall was smooth and clean. When the Respondent reinserted the cannula tube, he noticed that it entered a bit farther than he had remembered it entering initially. At that time, he stopped the procedure because of the possibility of a perforation in the posterior midline uterine wall. He removed the instrument. At this point, he examined the tissue that had been removed by the first suction curettage. He examined the material in a sink in the room where abortions are performed at the center. He estimated that there were eight to ten weeks' worth of tissue. He observed the tissue and saw no evidence of any bone formation or anything other than pregnancy tissue. Respondent advised Johannsen of the possibility of a perforation. He told her that he wanted to have her wait in the recovery room for a period of at least an hour and to monitor her vital signs to make sure that she was stable. He administered Pitosin to help shrink the uterus and control bleeding. Based upon the date of the patient's last period and the amount and nature of material that had been removed, Respondent concluded that she was ten weeks' pregnant rather than the thirteen weeks that he had originally estimated based upon the size of her uterus. This was a logical conclusion, since the size of a uterus provides only a guess as to the length of a pregnancy. A two-weeks' margin of error is commonly accepted, and errors in excess of that are possible. If a patient is nervous, for example, muscle contraction is likely to cause a uterus to appear larger than its actual size. The Respondent also concluded that all material had been removed from the uterus based upon his examination of the material, the sharp curettage technique, the probable length of the pregnancy, and the fact that Johannsen's uterus immediately shrunk to a size compatible with an eight-to ten-week pregnancy.

   
   

7. There are two dangers that follow from the perforation of a uterus during an abortion. The first of these is the danger of hemorrhaging. The second is the possibility of infection. The Respondent administered the Pitosin and observed the patient for an hour after the proceeding because of the danger of hemorrhaging. Her vital signs were monitored. After the hour passed, it

   appeared that she was not hemorrhaging. This is usually the case with perforations that occur in the location of the possible perforation that Respondent observed. The Respondent properly concluded that she was not hemorrhaging. He also reexamined her and found her uterus to be firm. This was consistent with his conclusion that there was no bleeding and that all of the material had been removed from her uterus. To guard against infection, he prescribed an antibiotic and told the patient to take her temperature twice a day. He also told her to observe herself for any signs or symptoms of any kind of bleeding, pain, signs of infection, nausea, vomiting, or anything out of the ordinary in terms of her daily routine. He specifically instructed her to return to the center within a week for examination. He told her that he would be there on Monday and that she should return on that date. He also said that if anything out of the ordinary occurred, she should immediately contact the center and that a doctor was on call on a 24-hour basis.

   
   

8. The danger of infection resulting from a perforation is increased if any debris remain in the uterus. The Respondent had good medical reasons to believe that there was no such debris and that the possibility of infection with the patient Johannsen was minimal. He correctly felt that by reexamining the patient within a week and by having her monitor for signs of infection, danger from infection was minimal and remote.

   
   

9. On the afternoon of Monday, March 22, 1982, Dawn Johannsen called the Dadeland Family Planning Center. She reported that her temperature was above

   100 degrees and that she was experiencing abdominal pain. She was instructed to come to the clinic at 5:30 that afternoon, when the Respondent would be available to examine her. Johannsen did not appear at the clinic that afternoon. The Respondent was concerned that the symptoms she had reported over the telephone indicated the possibility of infection. He instructed his staff to contact her. An attempt was made by the center staff to contact Johannsen. That was impossible, however, because of the fact that Johannsen had used a fictitious name and given a fictitious phone number and address. Johannsen did not return to the clinic.

   
   

10. Johannsen apparently continued to experience abdominal pain during ensuing days. Eventually, she told her parents what had occurred, and she was taken to her family physician. She first visited her family physician on approximately March 31. Her family physician referred her to a gynecologist. She was admitted to Baptist Hospital of Miami, Inc., on April 1, 1982. By that time, the infection was severe. The gynecologist observed fetal material, including some bone, in the patient's uterus and two perforations. He was not able to control the infection through antibiotic techniques, and a complete hysterectomy was performed on April 4, 1982. Her gynecologist felt that the bone had "quickened" and estimated that she was sixteen weeks' pregnant at the time that the abortion was performed. As a result of the hysterectomy, Dawn Johannsen will not be able to bear children.

    
    

11. If the patient had been reexamined by the Respondent during the week subsequent to the abortion, it is very likely that material could have been removed from her uterus and the infection controlled with less dramatic techniques. The hysterectomy would in all probability have been unnecessary.

    
    

12. There is a difference in medical opinion as to what steps the Respondent should have taken when he suspected a perforation of the patient's uterus following the abortion. Two physicians testified at the hearing that they would have immediately hospitalized the patient based upon the possibility of a perforation, alone. They would have employed observational techniques to

    determine the existence and the extent of any perforation. These techniques are known as a "laparoscopy" and a "laparotomy." The laparoscopy is the less severe of these procedures. It carries with it the same basic possible complications as an abortion procedure. The laparotomy is more dramatic and carries with it more severe possible complications. The doctors who testified that they would have immediately hospitalized the patient, while highly qualified in the fields of obstetrics and gynecology, had limited experience in performing abortions.

    Neither had performed more than 200 abortions, neither had performed any second trimester abortions, and neither had performed any abortion in which a perforation resulted. They agreed that a perforation is a risk that attends abortion procedures and that the fact that one occurs does not call into question the physician's skill.

    
    

13. Three physicians testified that they would not have hospitalized the patient based upon the mere suspicion of a perforation. These physicians testified that most perforations are self-healing and that subjecting patients to the additional risk of the observational techniques would not be justifiable. They testified that they would have hospitalized the patient only if they were persuaded that there was a perforation and that all material had not been removed from the uterus. In those cases, the witnesses concluded that the dangers were such that steps to remove additional materials should be undertaken.

    
    

14. Both of these lines of medical opinion are viable. It does not appear that following one or the other line of opinion would constitute gross malpractice or would depart from the level of care recognized within the medical community.

    
    

15. When the Respondent released the patient Dawn Johannsen, he had good reason to believe that the risk of a possible perforation was minimal. She was not hemorrhaging. He properly examined her, and his observations were compatible with a conclusion that all materials had been removed from her uterus. The patient was properly instructed to observe herself for signs of infection. If she had done that and returned to the center, the sad ending of this case would likely have been different. It does not appear that the Respondent's treatment of Dawn Johannsen constituted gross malpractice or that it departed from the level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

    
    

17. Section 458.331(1)(t), Florida Statutes, provides that the following act constitutes a ground for taking disciplinary action against a physician

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. The board shall give great weight to the provisions

of s. 768.45 when enforcing this paragraph.

Petitioner has failed to establish that the Respondent violated this provision in his care and treatment of the patient Dawn Johannsen. While there are physicians who would have reacted differently than the Respondent reacted, it appears that the Respondent's peers who perform abortion procedures as a substantial part of their practices would have reacted to the facts and circumstances in the same manner as the Respondent.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Board of Medical Examiners dismissing the Administrative Complaint filed against the Respondent, Robert Alan Kast, M.D.

RECOMMENDED this 25th day of February, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1983.

COPIES FURNISHED:

Spiro T. Kypreos, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Joel R. Wolpe, Esquire Wolpe & Leibowitz

Suite 607, Biscayne Bldg.

19 West Flagler Street Miami, Florida 33130

Steven R. Berger, Esquire Suite B-8

Oak Plaza Professional Center 8525 S.W. 92nd Street

Miami, Florida 33156

Ms. Dorothy Faircloth Executive Director

Board of Medical Examiners Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001935

Orders for Case No: 82-001935