STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1955
)
FIRTH S. SPIEGEL, M.D. and )
RICHARD K. EBKEN, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, R. L. Caleen, Jr., a hearing officer with the Division of Administrative Hearings, conducted a formal hearing in this case on February
3 and 4, 1983, in Miami, Florida.
APPEARANCES
For Petitioner: J. Riley Davis, Esquire
225 South Adams Street, Number 250 Tallahassee, Florida 32301
For Respondent A. H. Toothman, Esquire Spiegel: 900 Brickell Center
799 Brickell Plaza
Miami, Florida 33131
For Respondent Francis A. C. Sevier, Esquire Ebken: 3300 Ponce de Leon Boulevard
Coral Gables, Florida 33134 ISSUE
Whether respondents' licenses to practice medicine in Florida should be revoked, suspended, or otherwise disciplined on charges of professional misconduct violative of Section 458.331(1)(t), Florida Statutes (1981).
BACKGROUND
By administrative complaint, petitioner Department of Professional Regulation, Board of Medical Examiners, ("DEPARTMENT") charged respondents Firth
Spiegel ("SPIEGEL") and Richard K. Ebken ("EBKEN") with violating Section 458.331(1)(t), Florida Statutes (1981). The DEPARTMENT alleged, in four separate counts, that the respondents 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.
Both respondents disputed the charges and requested a formal Section 120.57(1) hearing. On July 19, 1982, the DEPARTMENT forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer.
Hearing was then set for February 3-4, 1983. The DEPARTMENT presented the testimony of Milton Caster, M.D.; Exhibit Nos. 1-5 1/ and 9-10 were received into evidence. Ruling was deferred on Exhibit Nos. 6-8 and 11, pending submittal of posthearing memoranda. Having considered those memoranda, Exhibit Nos. 6-8 and 11 are now received into evidence as "former testimony" within the meaning of Section 90.804(2)(a), Florida Statutes (1981).
Respondents testified in their own behalf and presented the testimony of Bernard L. Waltuck, M.D., Iswald Coury, M.D., William L. Joseph, M.D., and Robert M. Hartog, M.D.; Exhibit Nos. 1-4 2/ were received into evidence.
The transcript of hearing was filed on March 24, 1983, proposed findings of fact by April 25, 1983. Based on the evidence presented at hearing, the following facts are determined:
FINDINGS OF FACT
I.
Respondents Are Licensed General Surgeons.
At all times material hereto, respondents SPIEGEL and EBKEN were licensed to practice medicine in Florida as general surgeons.
They practiced as a professional association, with offices located at 9299 Coral Reef Drive, Miami, Florida. They worked closely together, frequently assisting each other in surgical procedures.
The respondents are charged with professional misconduct in connection with surgery they performed on Caroline Pedraza, 25, respondent SPIEGEL's patient. (Hereafter she will be referred to as "the Patient.") In four separate courts, the DEPARTMENT accuses them of failing to conform to standards of acceptable and prevailing medical practice in their area of expertise (general surgery). Count I alleges that respondent SPIEGEL, assisted by respondent EBKEN, surgically removed the Patient's uterus (a procedure commonly referred to as a hysterectomy) together with her right ovary, and that, based on what respondent SPIEGEL knew of the Patient's medical history and symptoms, such surgery was unjustified and unnecessary.
II.
Count I: Removal of the Patient's Uterus and Right Ovary
The Patient first saw respondent SPIEGEL on August 1, 1977, pursuant to a referral by Marilyn Marcus, M.D., a general practitioner who also practices office gynecology. As explained by the Patient, Dr. Marcus had referred her to respondent SPIEGEL for a hysterectomy, subject to his decision that such an operation was appropriate. (Testimony of Spiegel; P-3)
Upon questioning, the Patient appeared to be troubled and uncomfortable. She complained of irregular menses; severe pain, cramps, and blood spotting during menses; headaches before and during menses; and severe
pain during sexual intercourse ("dyspareunia"). She explained that she had experienced these symptoms since her sterilization (by tubal ligation) three years earlier; that a D and C ("dilation and curettage," a procedure by which the cervix is dilated and the inside of the uterus is curetted to obtain tissues for pathologic diagnosis) had been performed on her one year earlier and fibroids had been removed; and that her last menses had lasted three weeks.
Respondent SPIEGEL then physically examined her. (Testimony of Spiegel; P-3)
His examination revealed, and his office notes document, that the lower portion of the Patient's abdomen was tender. Pelvic examination indicated that her external genitalia, the Bartholin, and the urethra were normal; the cervix showed chronic cystic cervicitis; the ovary (right or left) was of normal size but tender; and the uterus was large, retroverted and retroflexed. When a uterus is retroverted and retroflexed, it is tipped backwards, can impinge on the colon, and is frequently associated with symptoms similar to those complained of by the Patient. (Testimony of Spiegel; P-3)
The uterus serves to carry babies and is vital to the birthing process. When a female is sterilized, the uterus no longer serves a useful purpose. Rather, it remains and becomes a potential source of bleeding, infection and cancer. Based on the Patient's complaints and his physical examination, respondent SPIEGEL recommended that she have a hysterectomy, reasoning that removal of the uterus would end her dysfunctional uterine bleeding and cramps; that the Patient's symptoms had been chronic and progressive during the last three years; and that a D and C had previously been performed and fibroids removed. The Patient agreed to the operation and appeared pleased to have some potential for relief. (Testimony of Spiegel, Ebken; R-3)
On August 9, 1977, several days later, respondent SPIEGEL admitted her to Miami-Dade General Hospital for the purpose of performing the hysterectomy. The next day he performed the operation and, at his request, respondent EBKEN acted as a surgical assistant.
Respondent EBKEN functioned solely as a surgical assistant in this operation; his role was narrow and limited. He did not know the patient, had not talked with her prior to her admission, and was unfamiliar with her medical condition. His lack of knowledge about the Patient was consistent with prevailing and acceptable standards of medical care governing general surgery, which do not require surgical assistants to examine the patients prior to surgery, review their records, or ascertain whether the surgery is justified or necessary. (Testimony of Caster, Ebken, Spiegel)
Before performing the hysterectomy on the Patient, respondent SPIEGEL performed a D and C to check for cancer -- the result was negative. (If a cancer had been discovered, he would have first treated the uterus with radiation therapy.) As a precaution he also performed a pregnancy test. Then he commenced surgery. On opening the Patient, respondent SPIEGEL noted that the left ovary looked normal, but that the right ovary was enlarged and appeared to have a corpus lutiem cyst. He judged it appropriate to remove the right ovary, the tubes, and the uterus, but leave the left ovary intact. (Testimony of Spiegel; P-3)
He removed the right ovary because it was cystic and enlarged. Normal ovary size is 4 centimeters, which it exceeded. Further, when he manipulated the ovary, it was friable or bled -- an abnormal condition. (Testimony of Spiegel; P-3)
The DEPARTMENT contends that respondent SPIEGEL is guilty of misconduct, claiming that the right ovary and uterus were normal and that the operation was unnecessary and unjustified. This contention is unsupported by the weight of the evidence, and is rejected. Under the circumstances of this case, removal of the Patient's uterus and right ovary conformed to, and did not deviate from, standards of acceptable and prevailing medical practice in the area of general surgery. Respondent SPIEGEL's decision to recommend and perform a hysterectomy was consistent with the Patient's complaints, symptoms and medical history; it was a reasonable and permissible exercise of medical judgment. During the operation, the right ovary was observed to be abnormal, enlarged, cystic, and friable. The decision to remove it was also a reasonable, justifiable and permissible exercise of medical judgment. (Testimony of Spiegel, Ebken; R-3)
Respondent EBKEN, as a surgical assistant, assisted with the operation. He observed that the Patient's uterus looked normal, but did not protest or question respondent SPIEGEL concerning the purpose or necessity of the operation. (Testimony of Ebken, Spiegel)
Respondent EBKEN's conduct as a surgical assistant was proper and conformed to standards of acceptable and prevailing medical practice in the area of general surgery. The primary surgeon is the decision maker in the operating room; an assisting surgeon may give advice, but his main role is to provide assistance to the primary surgeon. A patient's uterus may (and often does) look totally normal on an operating table, yet is properly removed. The decision to remove is arrived at by using a variety of diagnostic tools other than visualization. (Testimony of Spiegel, Ebken; R-3)
The DEPARTMENT contends that respondent EBKEN has a medical duty to protest or question respondent SPIEGEL about the necessity for the hysterectomy because the uterus looked "normal." This contention is also unsupported by the weight of the evidence and is rejected. The testimony of Milton P. Caster, M.O. on this question is equivocal and unconvincing. Acceptable and prevailing standards of medical practice in the area of general surgery did not impose such a duty on respondent EBKEN. The retroverted uterus, alone, could have caused some of the symptoms complained of by the Patient and provided justification for its removal. Finally, given the symptoms and medical history of the Patient, the surgery performed by respondent SPIEGEL conformed to prevailing and acceptable standards of medical practice; it follows that respondent EBKEN cannot be guilty of misconduct by virtue of his surgical assistance. (Testimony of Joseph, Spiegel, Ebken; R-3)
III.
Count II: Performance of Bilateral Subcutaneous Mastectomy
In Count II, the DEPARTMENT charges that respondent SPIEGEL, assisted by respondent EBKEN, performed a bilateral subcutaneous mastectomy (removal of internal breast tissue without damaging skin or nipple) on both breasts of the Patient; that this surgery was unnecessary; that neither respondent SPIEGEL nor EBKEN explained the possible adverse effects of surgery to the Patient; and that respondent EBKEN provided surgical assistance without questioning the need for the surgery. Such conduct, the DEPARTMENT alleges, violated acceptable and prevailing standards of medical practice in the area of general surgery, in violation of Section 458.331(1) Florida Statutes (1981).
Respondent SPIEGEL next saw the Patient on August 19, 1977, when she came to his office complaining of soreness when she slept on her abdomen and a mass or lump on her left breast. Upon examination, he detected a lump or mass at 2 o'clock on her left breast, preliminarily diagnosed it as fibrocystic disease, and told her to return in two weeks for reexamination. (Testimony of Spiegel; P-3)
On September 6, 1977, she returned to his office complaining of a week-long headache, and pain in her left breast. Explaining that she had a family history of breast cancer, she was nervous and jumpy. His examination of her left breast indicated that the lump was larger, dominant, and more tender. Because the lump had become larger and more defined, he recommended a biopsy, to which she agreed. He explained that the biopsy would lead to one of three alternatives. First: If, on examination, the pathologist determined that the breast lump was benign, they would close the incision and send her home.
Second: If, instead, the tissue is found to be malignant (cancerous) he recommended the immediate performance of a radical mastectomy--removal of the entire breast, including the skin, nipple, and the pectoralis major and minor chest muscles. He explained that there were alternative cancer treatments which would cause less disfigurement -- radiation, lumpectomy, and a modified radical mastectomy -- but that, in his opinion, the radical mastectomy was the most statistically effective method for eliminating breast cancer. She agreed that if her breast was found to be cancerous, he should immediately perform a radical mastectomy. Third: If the pathologist, for one reason or another, is unable to definitively determine whether the breast lump is benign or cancerous, no further surgery would be performed until a definite conclusion was forthcoming. (Testimony of Spiegel; P-3)
On September 9, 1977, the Patient was admitted to Miami-Dade General Hospital for the scheduled biopsy. Before it was performed, a hospital physician did a patient history and physical on her -- a procedure the hospital routinely followed prior to surgery. The history described her illness:
Patient is a 25-year-old white female admitted to Miami-Dade Hospital with left breast mass. Patient has strong family history of carcinoma of the breast and is scheduled for biopsy and frozen section in the A. M. and possible mastectomy. Patient states that she noticed the lump two years ago and on [sic] the past two months
she has been getting pain and increase in size. Patient states lump is in the lower left quadrant of the left breast (TR 112-113)
Respondent SPIEGEL then performed the biopsy. (Respondent EBKEN did not attend, assist, or have any involvement with, the biopsy.) The pathologist, who was at first unable to make a definite determination, ultimately determined that the breast lump was not cancerous; that, rather, it indicated three diseases: fibrocystic disease, intraductal papillomatosis, and sclerosing adenosis of the breast. These are "pre-malignant" diseases. (Testimony of Spiegel, Ebken; P-3)
Respondent EBKEN visited the Patient in the hospital the day after the biopsy (a Saturday), since he had agreed to cover respondent SPIEGEL's patients
that weekend. Respondent EBKEN discussed the pathology reports with the pathologist, then met with the Patient and told her that she did not have cancer. He explained the significance of the three "pre-malignant" diseases and described alternative treatments, including monitoring and frequent breast examination, and a subcutaneous mastectomy. The nurses' progress notes confirm that respondent EBKEN explained the pathology report to the Patient at that time, and the patient's denial that this occurred is rejected. Respondent EBKEN also wrote a progress note on the Patient, then issued an order authorizing her discharge from the hospital. (Testimony of Spiegel, Ebken, Waltuck; P-5, R-1,
R-3)
On September 19, 1977, the Patient visited respondents' offices for the removal of the biopsy sutures. She asked respondent EBKEN (because respondent Spiegel was absent) about breast cancer, stating that she had two maternal aunts who had breast cancer and that she had decided to "go ahead" with the subcutaneous mastectomy (with implants), the procedure which he had earlier discussed with her in the hospital. He removed her sutures and told her to return in three weeks and discuss the matter further with respondent SPIEGEL. (Respondent EBKEN did not see or talk with the Patient again until May, 1978, subsequent to her undergoing a subcutaneous mastectomy in October, 1977, and a left oophorectomy (removal of left ovary) in May, 1978.)(Testimony of Ebken, Spiegel; P-3)
As instructed by respondent EBKEN, the Patient returned on October 5, 1977, and talked to respondent SPIEGEL. She told him that she wanted a subcutaneous mastectomy, with implants, something that SPIEGEL had not previously discussed with her. Although it appeared that she had already made up her mind, he described the risks and benefits of such surgery and told her that, if he performed the operation, he required the assistance of a plastic surgeon. He described alternative treatment methods such as follow-up monitoring and frequent reexamination, and the potential for future biopsies. She indicated that she was anxious to proceed with the subcutaneous mastectomies, that she did not want more biopsies or further worry, that she wanted to end her breast pain and have steps taken which were most likely to eliminate the possibility of her getting breast cancer. She understood that her diagnosed breast diseases increased the likelihood of her getting cancer; her fear of cancer had some basis. Intraductal papillomatosis is a pre-malignant lesion which significantly increases the risk of getting breast cancer. (Testimony of Spiegel, Ebken, Coury; R-3)
On October 6, 1977,--at respondent SPIEGEL's request--the Patient and her husband visited Frederick C. Swenson, M.D., the plastic surgeon scheduled to assist with the breast reconstruction phase of the mastectomy. Dr. Swenson discussed the proposed surgery, including breast implants and reconstruction, and gave them an opportunity to ask questions and express their concerns. (Testimony of Spiegel; R-1)
On October 10, 1977, respondent SPIEGEL admitted the Patient to Miami- Dade General Hospital for the subcutaneous mastectomy and implants. Prior to surgery, a hospital physician took a medical-history of the Patient which indicated that she had breast masses, "with previous papillomatosis of left breast, fibrocystic disease and adenosis of breast. Patient has family history of cancer of the breast . . . ." (TR 129) Respondent SPIEGEL's note on her admission to the hospital contained a similar description, reciting that the Patient had a "family history of breast cancer and cancer phobia." (Testimony of Spiegel, Ebken; P-3)
On that day, October 10, 1977, the bilateral subcutaneous mastectomy, with implants, was performed on the Patient by respondent SPIEGEL; Dr. Swenson assisted with placing the implants and reconstructing the breasts. The surgery was uneventful, and the DEPARTMENT does not allege that the results were other than promised or reasonably expected. (Testimony of Spiegel, Ebken; R-1; P-3)
Rather, the DEPARTMENT contends that, under the circumstances, the bilateral subcutaneous mastectomy of both breasts was inappropriate, unjustified, and violated standards of acceptable and prevailing medical practice in the area of general surgery. This contention is unsubstantiated by the weight of the evidence and is rejected. General surgeons are allowed a wide range in the exercise of judgment and discretion on whether to perform a mastectomy when the breast is not malignant but other indicators are present which increase the likelihood of cancer occurring in the future. Here, the indicators were: a strong family history of cancer, multiple papillomatosis, severe lump in the breast, severe breast pain, and extreme fear of cancer. The pre-malignant diseases in the Patient's breast increased her risk of acquiring cancer in the future by three to five times that of the general public. The DEPARTMENT has shown that reasonably prudent similar physicians would have recommended treatment different than that recommended by respondent SPIEGEL, and refused to perform the mastectomies. Conversely, the evidence shows, with equal force, that other reasonably prudent similar physicians agree with, and have no objection to respondent SPIEGEL's actions. Since the evidence does not convincingly show, with the requisite substantiality, that respondent SPIEGEL's conduct violated the standard of acceptable and prevailing medical practice in the area of general surgery, it must be concluded that his actions constituted a permissible exercise of medical judgment and discretion. (Testimony of Coury, M.D., Joseph, M.D.; R-4)
As to the conduct of respondent EBKEN, the evidence is insufficient to prove that he was negligent or guilty of professional misconduct toward the Patient. He informed her of the results of the pathology report, described a bilateral subcutaneous mastectomy and alternative treatments, including risks and benefits; he did not assist in the actual surgery. (Testimony of Ebken)
IV.
Count III: Alleged Misrepresentation
in Obtaining Patient's Consent to Mastectomy
In Count III, the DEPARTMENT alleges that the respondents induced the Patient to consent to the mastectomy by telling her that her left breast was malignant and that a mastectomy was an absolute necessity; that such misrepresentation deviates from standards of acceptable and prevailing medical practice in the area of general surgery.
This charge, too, is unsupported by the weight of the evidence. As already established, the respondents described to the Patient, prior to surgery, the true nature of her breast disease -- that her breast was not malignant, although the diseases were considered pre-malignant. The Patient's own statements believe the allegation that respondents told her she had breast cancer. On separate occasions, she acknowledged to Oswald Coury, M.D., Bernard Waltuck, M.D., and Robert Hartog, M.D. that she knew, prior to surgery, that her breast was not cancerous. The physicians' and nurses' notes made during her hospitalization also corroborate respondents' assertion that they had told the Patient, and she was aware, that her breast was not cancerous. (Testimony of Coury, Hartog, Waltuck, Ebken, Spiegel; P-3, P-5)
The only evidence offered to substantiate this charge is the deposition testimony of the Patient. She was an interested witness, having already sued respondents for civil damages. Her testimony was marked by evasiveness and uncertainty; she had difficulty recalling, and responding to questions about the facts. Her testimony lacks credibility.
Count IV: Removal of the Patient's
Left Ovary
In Count IV, the DEPARTMENT alleges that respondent SPIEGEL surgically removed the patient's left ovary without medical justification.
On October 28, 1977, the Patient returned to respondent SPIEGEL's office complaining of hot flashes, and pain in her breasts. The breasts appeared to be healing normally. Tubal ligations and hysterectomies may affect the supply of blood to the ovaries. (Knotting-off some of the nearby vessels may affect the functioning of an ovary.) Respondent SPIEGEL concluded that she had a hormone deficiency because the remaining left ovary was not functioning properly. As treatment, he prescribed Premarin, an estrogen-type (hormonal) medication to be taken the first 25 days of each month. (Testimony of Spiegel; P-3)
On November 18, 1977, the Patient returned to respondent SPIEGEL's office with more complaints of hot flashes. He doubled the Premarin dosage. (Testimony of Spiegel; P-3)
On December 16, 1977, the Patient returned to respondent SPIEGEL's office complaining of pain on the lower left side of her abdomen. He conducted a pelvic examination and found her left side tender but could not detect a mass. She appeared otherwise to be normal. As treatment, he increased the Premarin, prescribed an antibiotic, and suggested warm douches. (Testimony of Spiegel; P- 3)
When she returned on January 17, 1978, she again complained of pain in the lower left quadrant of her abdomen. On examination, respondent SPIEGEL found tenderness, the left ovary was palpable and tender. He told her to return in two months for reexamination. (Testimony of Spiegel; P-3)
She returned to his office in May, 1978, complaining of continued pain and tenderness in the lower left part of her abdomen, where the left ovary is located. He conducted another pelvic examination, this time finding that the left ovary was tender, and larger than four centimeters. He concluded, based on his seven months of treatment, that she had developed a pathologically enlarged left ovary. He discussed and recommended surgical removal of the remaining left ovary, explaining that such surgery would require her to take hormone supplements on a continuing basis. (Testimony of Spiegel; P-3)
She consented to the surgical removal of her left ovary, a technique known as a left oophorectomy. Respondent SPIEGEL admitted her to the hospital, and, on May 10, 1978, performed the left oophorectomy. The left ovary was shown to be larger than normal, cystic and suggestive of endometriosis, a painful ovarian abnormality. The surgery was uneventful, and properly performed. (Testimony of Spiegel; P-3, P-5)
This surgical procedure unequivocally provided the Patient relief from her abdomen pain, her complaints ceased. (Testimony of Spiegel; P-3)
This charge, too, is unsubstantiated by the requisite quantum of evidence. The Patient's left ovary was enlarged, cystic, tender, and a source of chronic pain from December, 1977 to May, 1978. Its sole function was to produce female hormones, but since the Patient's right ovary had already been removed, she required, in any case, hormone supplements. Under these circumstances, respondent SPIEGEL's performance of a left oophorectomy conformed to, and did not deviate from, standards of acceptable and prevailing medical practice in the area of general surgery 2/ . The surgery, in fact, relieved the Patient of the chronic pain she had been suffering during the preceding six months. (Testimony of Spiegel, Joseph; P-3)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. s. 120.57(1), Fla. Stat. (1981).
License revocation proceedings, such as this, are penal in nature.
The prosecuting agency must prove its charges by clear and convincing evidence -
- by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2d DCA 1975); Bowling v. Dept. of Insurance, 394 So.2d 165, 172 (Fla.
1st DCA 1981).
The Board of Medical Examiners is authorized to suspend, revoke, or otherwise discipline a licensed physician for grounds specified in Chapter 458, Florida Statutes. During 1977 and 1978, the statutory ground relating to negligence or unprofessional conduct authorized discipline of a physician if he was found guilty of:
(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct. Unprofessional conduct shall include any departure from, or the failure to
conform to, the standards of acceptable and prevailing medical practice in his
area of expertise . . . s. 458.1201(1)(m), Fla.Stat. (1975)
This statute was subsequently repealed, revised, and reenacted. A physician may now be disciplined for:
(t) 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. . . .
s. 458.331(1)(t), Fla.Stat. (1981).
These two statutory provisions prescribe similar misconduct. If the complained of conduct by respondents violates the statute in effect in 1977, it
also violates the statute as subsequently revised and reenacted. See, Solloway
v. Department of Professional Regulation, 421 So.2d 573 (Fla. 1st DCA 1982).
In the instant case, the DEPARTMENT charges respondents with four counts of violating this statutory proscription. These charges, however, have not been proved by "evidence which is indubitably as 'substantial' as the consequences." Bowling, supra at 172. The charges must, therefore, be dismissed.
Notably, the DEPARTMENT's proposed recommended order, at page 11, asserts that this statute is violated whenever a reasonably prudent similar physician testifies that an accused physician has failed to practice medicine with that level of care, skill, and treatment which is recognized (by the reasonably prudent similar physician) as being acceptable under similar conditions and circumstances.
This argument misreads the statute. Medicine is not an exact science; physicians are allowed a wide range in the exercise of their judgment and discretion. Bourgeois v. Dade County, 99 So.2d 575, 577 (Fla. 1956). This being so, honest and reasonable physicians may (as in this case) differ on the proper course of treatment for a patient. Under the interpretation urged by the DEPARTMENT, a physicians license could be revoked simply because another physician testifies that, under similar conditions, he would have acted differently. The implications are disturbing. The slightest provocation or disagreement between physicians could place one or the other's license in jeopardy.
In this case, the DEPARTMENT presented a reasonably prudent similar physician who testified that the respondents failed to practice medicine with the level of care, skill, and treatment which he recognized as acceptable under similar conditions. The respondents countered with equally or, in some instances, more credible expert testimony to the contrary. The DEPARTMENT has simply failed to sustain its burden of persuasion. When alleging breach of a professional standard, one announced after-the-fact and in case-by-case adjudication, the measuring standard must be established by evidence as substantial as the consequences. Evidence that is inconclusive, equivocal, debatable, or simply unconvincing, cannot supply a basis for revocation of a professional license.
The parties filed proposed findings of fact and conclusions of law.
To the extent the proposed findings are included in this recommended order, they are adopted; otherwise they are rejected as unsupported by the weight of the evidence or as unnecessary to resolution of the issues presented.
Based on the foregoing, it is RECOMMENDED:
That all administrative charges against respondents be Dismissed.
DONE and ENTERED this 10th day of June, 1983, 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 10th day of June, 1983.
ENDNOTES
1/ Petitioner's and respondents' exhibits will be referred to as "P- " and "R-
," respectively. Pages in the transcript of hearing will be referred to as "TR "
2/ The contrary testimony of Dr. Milton Caster is considered unpersuasive.
COPIES FURNISHED:
J. Riley Davis, Esquire
225 South Adams Street, #250 Tallahassee, Florida 32301
A. H. Toothman, Esquire 900 Brickell, Center 799 Brickell Plaza Miami, Florida 33131
Francis A. C. Sevier, Esquire 3300 Ponce deLeon Boulevard Coral Gables, Florida 33134
Fred M. Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Dorothy Faircloth, Executive Director
Department of Professional Regulation
Board of Medical Examiners
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| May 08, 1990 | Final Order filed. |
| Jun. 10, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 30, 1983 | Agency Final Order | |
| Jun. 10, 1983 | Recommended Order | Respondents charged with gross malpractice and lack of reasonable care. Petitioner didn't meet its burden of proof. Recommend dismissal of charges. |
