STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-1696

)

ARCHBOLD M. JONES, JR., M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on September 27, 1987 in Tampa, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Joseph G. Donahey, Jr., Esquire

13584 49th Street, North, Suite A Clearwater, Florida 33520-34622

Background and Procedural Matters

In an Administrative Complaint filed on March 25, 1987, Petitioner ("DPR") alleged four counts of violations of Section 458.331, F.S. by Archbold M. Jones, Jr., M.D. (Dr. Jones). At that time another case was pending involving the same parties and some similar allegations. (DOAH Case #86-3920) The parties did not wish to consolidate the cases and final hearing was held in Case #86- 3920 on May 14, 1987. A Final Order adopting the Recommended Order was entered on August 10, 1987. The similar allegations in cases #86-3920 and #87-1696 relate to Dr. Jones' violation of probation for failure to attend Grand Rounds. The earlier complaint was amended by stipulation of the parties to insure that the time periods were different in each case. That is, the complaint in #86- 3920 alleged non-attendance between entry of the Final Order imposing conditions of probation and June 15, 1986. The complaint in #87-1696 alleged failure to attend consistently between June 16, 1986 and September 30, 1986. Each complaint alleged other violations that were not similar.

At the final hearing in case #86-3920, some testimony was presented relating to a attendance at Grand Rounds after June 15, 1986; however, no finding of fact was made relative to the later period, except as follows:

8. June 15, 1986 was the close of the relevant period regarding attendance at Ground Rounds according to the Administrative Complaint, as amended. From the testimony and evidence, I am unable to determine conclusively whether Dr. Jones has attended regularly since that date. (Recommended Order, p. 4., July 6, 1987)

This procedural detail is material since counsel for Dr. Jones now argues that failure to attend is not a new cause or course of conduct and does not warrant a penalty in addition to that imposed in case #86-3920. This argument is rejected as addressed in Conclusions of Law, paragraph 4.

At the hearing on September 27, 1987, DPR presented the testimony of six witnesses, including Dr. Jones. Exhibits #1-#9 were admitted without objection. Dr. Jones testified also in his own behalf and introduced exhibits #1-#8, admitted without objection. The parties presented one joint exhibit, a concise and helpful stipulation.

Both parties submitted proposed recommended orders after the preparation of a transcript. These have been carefully considered, with all the evidence in this proceeding, and specific rulings on each proposed finding of fact are found in the attached Appendix.

Issue

The issue presented in Count One is whether Dr. Jones violated Sections 458.331(1)(h) and (x), F.S. by failing to comply with terms of previously entered probationary orders by failing to attend Grand Rounds.

The issue presented in Count Two is whether Dr. Jones actually attended Grand Rounds on each of the days for which he signed in on the attendance sheets indicating attendance; and if not, whether that failure constituted a violation of Section 458.331(1)(1) F.S.

The issue presented in Count Three is whether Dr. Jones violated Section 458.331(1)(t), F.S. by failing to make arrangements for the proper admission of a patient to All Children's Hospital in St. Petersburg, Florida on January 20, 1986.

The issue presented in Count Four is whether Dr. Jones, subsequent to the questioned admission in Count Three, made deceptive, untrue or fraudulent representations to a physician making an inquiry about that admission, in violation of Section 458.331(1)(1), F.S.

FINDINGS OF FACT

1. Respondent, Archbold M. Jones, M. D. is now, and has been at all relevant periods, a licensed physician in the State of Florida, having been issued license number ME 0017104. At the time of final hearing, Dr. Jones' license was under a three-month disciplinary suspension arising out of DOAH case #86-3920.

   
   

2. Dr. Jones' home and medical practice are located in Seminole, Florida.

   
   

3. On or about April 21, 1986, a Final Order was entered by the Board of Medicine (then, Board of Medical Examiners) resolving by an amended stipulation a twenty-count Administrative Complaint that had been filed against Dr. Jones on December 1, 1983.

   
   

4. That order placed Dr. Jones on five years probation and included, among other terms, the requirement that he attend Grand Rounds weekly during the course of the probationary period both at All Children's Hospital in St. Petersburg, Florida, and the University of South Florida in Tampa, Florida.

   
   

5. Grand Rounds are conducted on Fridays, at the University of South Florida (USF), at 8:00 A.M., and at All Children's Hospital (ACH), at 12:30 P.M.

   
   

6. On June 20, 1986, Dr. Jones did not attend Grand Rounds either at USF or ACH. His van was broken in the morning and his wife had to use her car to get to work. Later, he scheduled a lunch-time conference at his office with a working parent of one of his patients.

   
   

7. On June 27, 1986, Grand Rounds were cancelled at USF. Dr. Jones appeared at Grand Rounds at ACH, signed in, and left. He claims that he returned later, but Marilyn Wagner, Medical Staff Services Coordinator at ACH, disputes this. She is responsible for coordinating the lectures; she sets up the room, takes attendance and stays at a table by the door. She watched Dr. Jones on this date because a DPR investigator had previously contacted her regarding his attendance. She made a notation on the attendance sheet that Dr. Jones signed in and left the building. Dr. Jones' explanation that he was beeped on his pager and had to leave in his van to use the telephone makes no sense, as he admits there are telephones at the front desk at ACH.

   
   

8. On July 4, 1986, Grand Rounds were cancelled at both USF and ACH, for the holiday.

   
   

9. On July 11, 1986, Dr. Jones did not attend Grand Rounds at USF because he woke up with the flu. He attended Grand Rounds at ACH.

   
   

10. Dr. Jones did not attend Grand Rounds at either USF or ACH on July 18, 1986 and July 25, 1986. He was depressed because of domestic problems and went on a trip with his wife for two weeks.

    
    

11. On August 1, 1986, Dr. Jones attended Grand Rounds at USF but did not sign in. Later, when the Administrative Complaint was filed, he remembered having attended and was allowed to sign the sheet. There was no evidence to controvert this assertation. He attended Grand Rounds at ACH and signed in, but left before the session was over. Marilyn Wagner made a notation on the attendance sheet.

12. On August 8, 1986, Dr. Jones again neglected to sign in at USF but was permitted to sign the sheet later on his statement that he did attend. Again, there is no evidence to the contrary. He appeared at Grand Rounds at ACH, signed in at 11:55 A.M., and left. Marilyn Wagner made a notation on the attendance sheet of the fact and remembers seeing him leave. Dr. Jones claims that he left after being beeped on his pager and had to see a sick child. His pager card shows a call at 12:25 P.M. The office notes he produced indicate that the child was treated on that date for flat feet and "borderline hyperactivity", with no indication of an emergency

    
    

13. Dr. Jones attended all Grand Rounds conducted at USF and at ACH between August 15, 1986 and September 30, 1986.

    
    

14. Dr. Jones' excuses for non-attendance at Grand Rounds evince disdain and lack of judgment with regard to those terms of his probation. At the final hearing, his counsel insisted that testimony had already been taken at the hearing in DOAH Case #86-3920, with regard to the same dates for non-attendance. This is not so, as revealed by a review of the transcript received into evidence as Petitioner's Exhibit #6. The excuses, however, are strikingly similar: broken van, noon conference with patient's mother, flu, trip with the family. (See Recommended Order in case #86-3920, p. 4, adopted in Final Order dated August 10, 1987.)

    
    

15. On or about January 18, 1986, an infant, C. W., was treated at the Lake Seminole Hospital emergency room for injuries sustained in an automobile accident. He was released, but returned on January 20, 1986 at 7:00 A.M., because of seizures.

    
    

16. Frank Norton, M.D., the emergency room physician at Lake Seminole Hospital, called Dr. Jones and asked him to come evaluate the patient. Dr. Jones responded to the call and examined C.W. in the emergency room that morning.

    
    

17. Dr. Jones determined that the child should be in a hospital with a pediatric department, and Lake Seminole, at that time, did not have one.

    
    

18. He attempted to call Dr. Mary Andriola, a physician based at All Children's Hospital, to arrange for a transfer of the patient. Dr. Andriola was out of town, but her nurse Phyllis Diane Ketcham told Dr. Jones that she would give the information to an admitting resident who would then contact Dr. Jones.

    
    

19. Nurse Ketcham learned that the resident on call was Dr. Castellvi, so she beeped him, gave him the information and asked him to call Dr. Jones. Dr. Castellvi told her that he would admit "pending neurosurgical acceptance" since the child had a head injury. Nurse Ketcham had no further contact on the subject with Dr. Jones nor Dr. Castellvi.

    
    

20. Dr. Jones talked with a resident at ACH; he does not remember who. He understood that the resident would meet the child at the emergency room at Bayfront Center Hospital, since the two hospitals are adjacent and share an emergency facility. He also understood that a neurological examination was to be done on the child, and he claims that he was referred to Dr. Gaines, a neurosurgeon. Dr. Jones also claims that he spoke with a nurse at Dr. Gaines' office. Neither Dr. Gaines nor the two women he had working for him at the time have any recollection of the call from Dr. Jones, nor do any of Dr. Gaines' records reflect the conversation or the patient, C.W.

21. Dr. Jones cannot remember precise instructions to the nurse at Lake Seminole Hospital emergency room or to the ambulance driver, but he admits giving instructions for sending the child to ACH. The child was sent in a stabilized condition, (wearing an IV device in his arm) with a nurse in the ambulance, and with the Lake Seminole emergency room records and a note to Dr. Andriola from Dr. Jones summarizing the emergency room visits.

    
    

22. At this time, January 1986, Dr. Jones did not have admitting privileges at ACH. The ambulance took the child to the admitting desk of the hospital, arriving at approximately 10:20 A.M. There was confusion as to who was the admitting physician and the child was not actually admitted until 11:30

    A.M. During the wait, the IV stopped and had to be started by another resident at ACH, Dr. Patranella.

    
    

23. It was Dr. Jones' intention that the child be taken to the emergency room, not the admitting room. He presumed since there was common knowledge that Bayfront Medical Center and ACH shared an emergency room that the child would be taken there rather than to the admitting desk. He also felt that the obvious condition of the child would alert the nurse and driver to the appropriate destination.

    
    

24. Under the circumstances, a reasonably prudent similar physician would not transfer a patient to a facility, but rather to an admitting physician. He would contact the receiving physician and make appropriate arrangements for the patient to be admitted. ACH is a teaching hospital and a resident physician there would suffice for admission.

    
    

25. Dr. Castellvi did not testify, nor did the nurse who accompanied the patient or the ambulance driver.

    
    

26. From the medical records, Dr. Jones' testimony and the testimony of Dr. Andriola's nurse, it is apparent that Dr. Jones did make arrangements with an ACH resident to meet the child at the emergency room. However, he did not give sufficient instructions with regard to the destination of the patient and the patient was taken to the wrong place, resulting in a delay of treatment. Without a specific instruction to go to "the emergency room" or to "ACH emergency room", the ambulance driver would be expected to take a patient to the admissions desk of the hospital.

    
    

27. By a letter dated July 18, 1986, the ACH Chief of Staff, Mark Morris,

    M.D. informed Dr. Jones that the transfer was determined to be inappropriate. Sometime after receipt of that letter Dr. Jones called Dr. Morris. Dr. Morris claims that Dr. Jones told him it was Dr. Norton's patient, not his. Dr. Jones categorically denies this. Neither physician's statement is corroborated and neither made notes of the conversation. As Dr. Jones argues, it would be foolhardy for him to deny having responsibility for the patient when he knew that his treatment records had gone with the patient to the hospital.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. Section 120.57(1) F.S. and 455.225(4) F.S.

    
    

29. The Board of Medicine is impowered to revoke, suspend or otherwise discipline the license of any physician who commits any of the violations

    described in subsection 458.331(1) F.S., including the following pertinent provisions:

    
    

    * * *

    (h) Failing to perform a statutory or legal obligation placed upon a licensed physician (now section 458.331(g), Florida Statutes).

    (l) Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine (now section 458.331(1)(k), Florida Statutes).

    (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by reasonably prudent similar physician as being acceptable

    under similar conditions and circumstances.

    (x) Violating any provisions of this chapter, a rule of the board or depart- ment, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.

    
    

30. The Final Order entered by the Board, dated April 21, 1986, is a lawful order previously entered in a disciplinary hearing. Dr. Jones had a legal obligation to comply with that order.

    
    

31. The standard of proof in disciplinary actions such as this is greater than a mere preponderance of the evidence. The evidence must be clear and convincing. Ferris v. Turlington,510 So.2nd 292, 294. (Fla. 1987)

    
    

32. Between June 20, 1986, and August 15, 1986, Dr. Jones did not regularly attend Grand Rounds. He attended some, but not all, and his excuses fail to mitigate this material violation of his probation.

    
    

33. The record in DOAH case #86-3920 reflects that the violations found in that proceeding related to an earlier time period and the penalty assessed in that case was for those violations only. The evidence in the instant case shows that the violations did continue, up to August 15, 1986, thus warranting an additional penalty.

    
    

34. Petitioner failed to prove by clear and convincing evidence that Dr. Jones fraudulently misrepresented his attendance at Grand Rounds or that he lied to Dr. Morris regarding his involvement with the patient, C.W.

    
    

35. While the evidence was complicated and confused regarding contacts with a proper admitting physician at All Children's Hospital, Dr. Jones' assertions with regard to the contact are corroborated by Dr. Andriola's nurse and by the hospital records. However, competent testimony established that a reasonably prudent similar physician under similar conditions and circumstances would have insured that appropriate instructions were given with regard to the transfer of the patient. Those instructions were not given and the patient was

taken to the wrong place. A pattern or continuing course of conduct is not required for the finding of a violation of subsection 458.331(1)(t) F.S.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED:

That the Board of Medicine enter a final order finding Archbold M. Jones,

M. D. violated subsections 458.331(1)(h), (t) and (x) F.S., but not subsection 458.331(1)(1), F.S.; suspending his license for 90 days, in addition to the suspension imposed in case #87-3920; and continuing in full force and effect all other terms and conditions of the Final Orders dated April 21, 1986 and August 10, 1987.

DONE and RECOMMENDED this 18th day of November, 1987 in Tallahassee, Florida.

MARY CLARK

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 18th day of November, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1696

The following constitute my specific rulings on the findings of fact proposed by each party.

Petitioner' s Proposed Findings of Fact 1-2. Adopted in paragraph #1.

3-4. Adopted in paragraph #2.

5-8. Adopted in paragraph #3.

1. Rejected as inconsistent with the weight of evidence.

2. Rejected as unsupported by competent substantial evidence. While the evidence supports a finding that he did leave after signing in, the evidence does not support a finding that his signing in was deceptive or fraudulent.

11-13. Adopted in paragraph #5.

1. Adopted in paragraph #8.

2. Adopted in paragraph #9.

3. Adopted in part in paragraph #12. The weight of evidence establishes that arrangements were made with an admitting physician but appropriate instructions were not given to the nurse and ambulance driver and the child was not sent to the intended destination.

4. Adopted in paragraph #11.

5. Rejected as cumulative and unnecessary.

6. Rejected. The conflict in testimony cannot be resolved with the available evidence. The possibility exists that Dr. Morris simply misunderstood what Dr. Jones said about Dr. Norton.

7. Rejected as unsupported by competent substantial evidence.

8. Adopted in paragraph #4.

9. Rejected as unsupported by competent substantial evidence.

Respondent's Proposed Findings of Fact: 1-3. Adopted in paragraph #1.

1. Adopted in paragraph #2.

2. Adopted in substance in paragraph #1, except that the Board's order is dated August 10, 1987, not July 6, 1987.

3. Adopted in paragraph #2.

7-8. Addressed in Background and Procedural Matters.

1. Rejected as immaterial.

2. Rejected as immaterial and incomprehensible, due to an apparent typographical error.

3. Adopted in paragraph #3, except that the Grand Rounds are 8:00 A.M., not P.M.

4. Rejected as immaterial. 13-17. Adopted in substance in paragraph #3.

18. Rejected as immaterial. 19-23. Adopted in substance in paragraph #3, except for the fact that Dr. Jones returned to the meeting at ACH on June 27, 1986; the weight of evidence supports a finding that he did not return.

1. Adopted in substance in paragraph #5.

2. Adopted in paragraph #10.

26-27. Rejected as cumulative and unnecessary.

1. Adopted in paragraph #10.

2. Adopted in paragraph #11.

3. Rejected as unnecessary. 31-34. Adopted in paragraph #5. 35-38. Adopted in paragraph #6.

39. Rejected as unsupported by competent substantial evidence.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph G. Donahey, Jr., Esquire 13584 49th Street, North

Suite A

Clearwater, Florida 33520-34622

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Tom Gallagher, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-001696

Orders for Case No: 87-001696