STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0163

) DAVID AMSBRY DAYTON, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on May 21, 1987, at Tampa, Florida.

APPEARANCES

For Petitioner: David E. Bryant, Esquire

1107 East Jackson Street, Suite 104

Tampa, Florida 33602

For Respondent: John R. Keifner, Jr., Esquire

100 Second Avenue South, Suite 400 St. Petersburg, Florida 33701

By Administrative Complaint filed July 16, 1986, the Department of Professional Regulation (DPR), Petitioner, seeks to revoke, suspend, or otherwise discipline the license of David Amsbry Dayton, Respondent, as a medical doctor. As grounds therefore it is alleged that, as treating physician for patient Alexander Stroganow at IMC-HMO, Gold-Plus, Respondent refused to see the patient or make arrangements for the patient to be taken to an emergency Room for treatment, thereby violating Section 458.383(1)(t), Florida Statutes, relating to malpractice.

This case was consolidated with DOAH Case No. 86-2591, Department of Professional Regulation v. Sanchez, because both cases involve the same witnesses and treatment of the same patient. The cases are otherwise unrelated and separate recommended orders are submitted.

At the hearing, Petitioner called nine witnesses, Respondent called three witnesses, including himself, and six exhibits were admitted into evidence.

Objection to Exhibit 3 was sustained and Exhibits 4, 5 and 6 are depositions of physicians. One of Respondent's witnesses, who was subpoenaed failed to appear and the parties were allowed fifteen days from the close of the hearing to submit this witness' deposition as a late filed exhibit. That deposition has not been filed (or taken within the time specified) and is no longer admitted into evidence.

Proposed findings have been submitted by Petitioner. Treatment accorded those proposed findings is contained in the appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto Respondent was licensed as a physician in the State of Florida having been issued license number ME0040318. Respondent completed a residency in internal medicine and later was a nephrology fellow at Mayo Clinic. He was recruited to Florida in 1952 by Humana. In 1984 he became associated with a Health Maintenance Organization (HMO) in an administrative position but took over treating patients when the owner became ill. This HMO was affiliated with IMC who assimilated it when the HMO had financial difficulties.

   
   

2. At all times relevant hereto Respondent was a salaried employee of IMC and served as Assistant Medical DIRECTOR in charge of the South Pasadena Clinic.

   
   

3. On October 17, 1985, Alexander Stroganow, an 84 year old Russian immigrant and former cossack, who spoke and understood only what English he wanted to, suffered a fall and was taken to the emergency Room at a nearby hospital. He was examined and released without being admitted for inpatient treatment. Later that evening his landlady thought Stroganow needed medical attention and again called the Emergency Medical Service. When the ambulance with EMS personnel arrived they examined Stroganow, and concluded Stroganow was no worse than earlier when he was transported to the emergency Room, and refused to again take Stroganow to the emergency Room. The landlady then called the HRS hotline to report abuse of the elderly.

   
   

4. The following morning, October 18, 1985, an HRS case worker was dispatched to check on Stroganow. Upon arrival, she was admitted by the landlady and found an 84 year old man who was incontinent, incoherent, and apparently paralyzed from the waist down, with whom she could not engage in conversation to determine his condition. She called for a Cares Unit team to come and evaluate Stroganow.

   
   

5. An HRS Cares Unit is a two person team consisting of a social worker and nurse whose primary function is to screen clients for admission to nursing homes and adult congregate living facilities (ACLF). The nurse on the team carries no medical equipment such as stethoscope, blood pressure cuff, or thermometer, but makes her evaluation on visual examination.

   
   

6. Upon arrival of the Cares Unit, and, after examining Stroganow, both members of the team agreed he needed to be placed where he could be attended. A review of his personal effects produced by his landlady revealed his income to be above that for which he could qualify for medicaid placement in a nursing home; that he was a member of IMC's Gold-Plus HMO; his social security card; and several medications, some of which had been prescribed by Dr. Dayton, Respondent, a physician employed by IMC at the South Pasadena Clinic.

   
   

7. The Cares team ruled out ACLF placement because Stroganow was not ambulatory, but felt he needed to be placed in a hospital or nursing home and not left alone with the weekend approaching. To accomplish this, they proceeded to the South Pasadena HMO clinic of IMC to lay the problem on Dr. Dayton, who was in charge of the South Pasadena Clinic, and, they thought, was Stroganow's doctor.

8. Stroganow had been a client of the South Pasadena HMO for some time and was well known at the clinic as well as by EMS personnel. There were always two, and occasionally three, doctors on duty at South Pasadena Clinic between 8:00 and 5:00 daily and, unless the patient requested a specific doctor he was treated by the first available doctor. Stroganow had not specifically requested to be treated by Respondent.

   
   

9. When the Cares unit met with Respondent they advised him that Stroganow had been taken to Metropolitan General Hospital Emergency Room the previous evening but did not advise Respondent that the EMS squad had refused to return Stroganow to the emergency Room when they were recalled for Stroganow the same evening. Respondent telephoned the Metropolitan General Emergency Room and had the emergency Room medical report on Stroganow read to him.

   
   

10. With the information provided by the Cares unit and the hospital report, Respondent concluded that Stroganow needed emergency medical treatment and the quickest way to obtain such treatment would be to call the EMS and have Stroganow taken to an emergency Room for evaluation. When the Cares unit arrived, Respondent was treating patients at the clinic. A clinic, or doctors office, is not a desirable or practical place to have an incontinent, incoherent, and non-ambulatory patient brought to wait with other patients until a doctor is free to see him. Nor is the clinic equipped to perform certain procedures that may be required for emergency evaluation of an ill patient. At a hospital emergency Room such equipment is available.

    
    

11. EMS squads usually arrive within minutes of a call being placed to 911 for emergency medical treatment and it was necessary that someone be with Stroganow when the EMS squad arrived. Accordingly, Respondent suggested that the Cares team return to Stroganow and call 911 to transport Stroganow to an emergency Room for an evaluation.

    
    

12. Upon leaving the South Pasadena clinic the Cares team returned to Stroganow. Enroute they stopped to call a supervisor at HRS to report that the HMO had not solved their problem with Stroganow. The supervisor then called the Administrator at IMC Tampa Office to tell them that one of their Gold-Plus HMO patients had an emergency situation which was not being property handled.

    
    

13. Respondent left the South Pasadena Clinic around noon and went to IMC's Tampa Office where he was available for the balance of the afternoon. There he spoke with Dr. Sanchez, the INC Regional Medical Director, but Stroganow was not deemed to be a continuing problem.

    
    

14. By 2:00 p.m. when no ambulance had arrived the Cares Unit called 911 for EMS to take Stroganow to an emergency Room. Upon arrival shortly thereafter the EMS squad again refused to transport Stroganow. The Cares team communicated this to their supervisor who contacted IMC Regional Office to so advise. At this time Dr. Sanchez authorized the transportation of Stroganow to Lake Seminole Hospital for admission. Although neither Respondent nor Sanchez had privileges at Lake Seminole Hospital, IMC had contracted with Lake Seminole Hospital to have IMC patients admitted by a staff doctor at Lake Seminole Hospital.

    
    

15. Subsequent to his meeting with the Cares team Respondent received no further information regarding Stroganow until well after Stroganow was admitted to Lake Seminole Hospital.

16. No entry was made on Stroganow's medical record at IMC of the meeting between Respondent and the Cares Unit.

    
    

17. Respondent was a salaried employee whose compensation was not affected by whether or not he admitted an IMC Gold-Plus patient to a hospital.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

19. Respondent is here charged with violation of Section 458.331(1)(t) , Florida Statutes which provides disciplinary action may be taken for:

    
    

    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 provision of s.768.45 when enforcing this paragraph. As used in this paragraph "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous

    5-year period resulting in indemnities being paid in excess in $10,000 each to the claimant in a judgement or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph "gross negligence" 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 or circumstances," shall not be construed so as to require more than one incident, event or act.

    
    

20. No allegations of repeated malpractice were here made; only that Respondent failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

21. Petitioner's witness, Daniel Frazier, M.D., opined that Respondent failed to practice medicine with that level of care, skill and treatment required in his treatment of Stroganow. Under the circumstances presented by the Cares Unit to Respondent, Dr. Frazier concluded several options were available to Respondent. 1. Have the patient brought to the clinic; 2. Go to the patient; 3. Send the patient to a hospital emergency Room; or 4. Call Emergency Medical Services and have the patient taken to an emergency Room. On cross examination, Dr. Frazier acknowledged that he would not have an incontinent, non-ambulatory and incoherent patient brought to his office, nor would he leave an office fully of patients to go to attend Stroganow. This left two viable options for Respondent to follow -- either send an ambulance to pick up Stroganow and take him to a hospital emergency Room for evaluation or call emergency medical services.

22. The evidence was unrebutted that once EMS is called the crew with ambulance arrives shortly. In fact, when the Cares Unit finally called EMS from a telephone a block from Stroganow's location the EMS crew was rounding the corner a block away when the Cares Unit got back to Stroganow's location. Had Respondent called EMS while the Cares team was at the clinic, no one would have been with Stroganow when the EMS personnel arrived. To ensure someone would be there when the EMS squad arrived, Respondent told the Cares Unit to call 911 for the EMS personnel when they returned to Stroganow. At this time, Respondent was unaware that EMS had once before refused to return Stroganow to an emergency Room for an evaluation and/or treatment. Under the circumstances, that request for the Cares team to dial 911 was reasonable.

    
    

23. Here the burden is on Petitioner to prove the allegations made. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The quality and quantity of the evidence required for disciplinary action in a license revocation proceeding has received various treatments by the courts. Prior to the passage of the current Administrative Procedure Act of 1974, the court in Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966) held that penal sanctions (license revocation procedures) be directed only toward those who by their conduct have forfeited their right to the privilege, and "then only upon clear and convincing proof of substantial causes justifying the forfeiture."

    
    

24. In Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974) the court held that an administrative tribunal measures proof presented to it by the preponderance of the evidence standard. In the later case of South Florida Water Management District v. Caluwe, 459 So.2d 390 (Fla. 4th DCA 1984), the court held that preponderance of the evidence is the standard to apply to sustain a State agency's discharge of an employee.

    
    

25. The Supreme Court of the United States in Santoski v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) held that due process requires a factual certainty by clear and convincing evidence to extinguish a parent-child relationship instead of a mere preponderance of the evidence. Similarly, in cases involving deportation proceedings, the factual situation justifying deportation must be by clear and convincing evidence. Williams v. Wilson, (Fla. 1st. DCA 1983).

    
    

26. In Dowling v. Department of Insurance, 354 So.2d 165 (Fla. 1st DCA 1981) the court hinted at a higher standard of proof in license revocation proceedings, without adopting the clear and convincing standard, in holding the violation must, in all its implications, be shown "by evidence which weighs as

    `substantial' on a scale suitable for evidence as the penalty does on the scale of penalties."

    
    

27. In a proceeding involving disciplinary action of the judiciary, In Re Inquiry Concerning a Judge, Richard E. Leon, 440 So.2d 1267 (Fla. 1983) the Court held the clear and convincing evidence standard was required to sustain disciplinary action against the judge.

    
    

28. The most recent case clearly expressing the evidentiary standard to be used in proceedings leading to the revocation of a license is Turlington v. Ferris, 496 So.2d 177 (Fla. 1st DCA 1986) where the standard prescribed is preponderance of the evidence to support revocation of a teacher's certificate. Accordingly, that is the standard here used since this, too, is a disciplinary

    proceeding against a professional or occupational license and a standard of conduct by a physician should at least be as high as that required of a teacher. So long as the preponderance of evidence standard is used, it should be applied equally to all professions and occupations across the board.

    
    

29. Applying this standard of proof, the evidence failed to support a finding that Respondent 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.

    
    

30. Although witnesses so testified, and Respondent also acknowledged, that he should have made an entry on Stroganow's patient record regarding the Cares team conversation, Respondent was not charged with such a violation of the Medical Practices Act and this evidence is disregarded.

    
    

31. From the foregoing, it is concluded that, under the circumstances, by requesting the Cares team to return to Stroganow and dial 911 for the EMS crew to take Stroganow to a hospital emergency Room for evaluation and treatment, Respondent exercised the care, skill and treatment expected of a reasonably prudent physician.

It is

RECOMMENDED that David A. Dayton, M.D. be found not guilty of malpractice involving his treatment of Stroganow and that these charges be dismissed.

Entered this 8th day of July, 1987, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0163

Treatment accorded Petitioner's Proposed Findings of Fact:

1. Included in Hearing Officer #1.

2. Included in Hearing Officer #6.

3. Included in Hearing Officer #3.

4. Included in Hearing Officer #9.

5, 6. Rejected as irrelevant to this case. 7, 8. Rejected as irrelevant to this case.

9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 24, 25, 26, 27, 28, 29, 30, 31, 32,

33, 38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, and 50 are rejected as mere testimony of the witness.

16. Accepted. However, irrelevant to the charges.

20, 21. Rejected as contrary to the evidence.

1. Included in Hearing Officer #12.

2. Accepted insofar as included in Hearing Officer #14, otherwise rejected as uncorroborated hearsay, irrelevant or immaterial to the issues.

34 - 37. Accepted. However, immaterial to the charges.

40. Accepted insofar as included in Hearing Officer #10, otherwise rejected.

COPIES FURNISHED:

David E. Bryant, Esquire 1107 East Jackson Street Suite 104

Tampa, Florida 33601

John R. Kiefner, Jr., Esquire Riden, Watson & Goldstein, P.A.

100 Second Avenue South, Suite 400 St. Petersburg, Florida 33701

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Dorothy Faircloth Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-000163

Orders for Case No: 87-000163