STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2567

) JESSE QUIMBY SEWELL, III, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Peter S. Fleitman, Esquire

Tallahassee, Florida

For Respondent: Jesse Q Sewell, III, M.D.

Marathon, Florida, pro se

This matter was heard on August 20, 1987, in Tavernier, Florida by William

1. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. A transcript of the Proceedings was filed on September 23, 1987. A proposed recommended order was filed by the Department on September 30, 1987, and a one-page letter was filed by Dr. Sewell on October 5, 1987 which constitutes his proposed findings of fact. The parties' proposed findings have been addressed in the Appendix to this Recommended Order.

   
   

   ISSUE

   
   

   The issue is whether, in his treatment of patient H.M., Dr. Sewell failed to practice medicine with the level of care, skill and treatment which is recognized by reasonably prudent, similar physicians as acceptable under similar conditions and circumstances.

   
   

   FINDINGS OF FACT

   
   

   1. Jesse Q. Sewell, III, M.D., is a licensed physician in the State of Florida, holding license ME0028694. He has been licensed for eleven years.

      
      

   2. On or about February 11, 1986, Dr. Sewell was the treating physician for H.M.

      
      

   3. When H.M. visited his office, Respondent performed a pelvic examination and concluded that the patient was not pregnant, and prescribed a legend drug for birth control, Ortho- Novum. No test was done to determine if H.M. was pregnant because Dr. Sewell regarded those tests as an unnecessary expense to the patient.

      
      

   4. Dr. Sewell did not instruct the patient to wait until her next menstrual period to begin to take the birth control pills. Rather, he told H.M.

      to discontinue the pills if she did not have a period by the time she finished the first packet of pills. At the time of the examination, the patient was already six to eight weeks pregnant.

      
      

   5. By failing to perform a urine or blood pregnancy test on February 11, 1986, the care rendered by Dr. Sewell fell below that level of care, skill and treatment recognized as appropriate by reasonably prudent physicians. Under proper care, a urine or blood pregnancy test would have been ordered and Dr. Sewell would have instructed the patient not to use the birth control pills until she had had a period. It is generally recognized that birth control pills should not be prescribed for anyone who is pregnant or suspected of being pregnant.

      
      

   6. Dr. Sewell relies on six articles from medical journals to demonstrate that there is no discernible risk to a woman or fetus when taking birth control pills prior to, during or after conception. These articles include:

      
      

      1. Smithells, R.W. (1981) "Oral

         Contraceptives and Birth Defects," 23 Journal of Developmental Medical Childhood Neurology at 369;

      2. Rothman, K.J., and Louik, C. (1978),

         "Oral Contraceptives and Birth Defects," 299 The New England Journal of Medicine, at 522;

      3. Harlap, S. and Eldor, J. (1980), "Births Following Oral Contraceptive Failures," 55 Journal of Obstetrics and Gynecology at 447;

      4. Savolainen, E., Saksela, E. and Saxen,

         L. (1981) "Teratogenic Hazards of Oral Contraceptives Analyzed in a National Malformation Register," 140 American Journal of Obstetrics and Gynecology at 521;

      5. Cuckle, H.S. and Wald, N.J. (1982), "Evidence against Oral Contraceptives as a Cause of Neural-Tube Defects," 89 British

         Journal of Obstetrics and Gynecology, at 547;

      6. Harlap, S., Shiono, P.H., and Ramcharan,

         S. (1985), "Congenital Abnormalities in the Offspring of Women Who Used Oral and Other Contraceptives Around the Time of Conception," 30 International Journal of Fertility at 39.

         
         

   7. Dr. Sewell's contention that the current medical literature indicates no statistically significant risk to a woman taking birth control pills prior to, during or after conception, is accepted.

      
      

   8. The deposition testimony of Dr. Edward J. Zelnick was entered by the Board of Medicine. Dr. Zelnick indicated that the failure to perform a blood or urine pregnancy test and starting the patient on birth control pills without testing to determine whether or not the patient was pregnant was imprudent practice, and fell below community standards. He went on to testify that Dr. Sewell's action did not constitute malpractice because it resulted in no injury.

      
      

   9. In determining whether or not the care rendered failed to meet community standards, it is not relevant that the patient was not harmed. A patient may be fortunate enough to suffer no ill effects even though the care

      provided was substandard. The issue is quality of the care, not the severity of any injury which may or may not result from inadequate care.

      
      

   10. Whether the patient suffered an injury, and if so, whether that injury was severe is an appropriate consideration in assessing any penalty for failure to practice medicine with that level of care and skill recognized as appropriate by similar physicians.

       
       

   11. The testimony of Dr. Zelnick that a pelvic examination was insufficient, that urine or blood pregnancy test should have been performed, and the patient should have been informed not to use the birth control pills until after a period, is persuasive. Even if no injury was caused, it is obviously useless for a physician to prescribe oral contraceptives for a patient who, already being pregnant, requires no protection against conception. Accordingly, a physician ought to determine whether the patient is pregnant before prescribing oral contraceptives.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over this matter pursuant to Section 120.57(1), Florida Statutes (1987).

       
       

   13. By failing to perform a urine or blood pregnancy test and failure to inform the patient that oral contraceptives should not be started until after the patient had her next period, Dr. Sewell violated Section 458.331(1)(t), Florida Statutes (1985), by failing to practice medicine with that level of care, skill and treatment which is recognized by reasonably prudent, similar physicians as acceptable under similar conditions and circumstances.

       
       

   14. The range of penalties prescribed for a finding of malpractice by Rule 21M-20.001(2)(t), Florida Administrative Code, is from probation for two years through revocation of licensure, and an administrative fine of $250 to $5,000. The Board may deviate from this range under Rule 21M-20.001(3), Florida Administrative Code, based on the following aggravating or mitigating factors:

       
       

       1. Exposure of patient or public to injury or potential injury, physical or otherwise:

          none, slight, severe, or death;

       2. Legal status at the time of the offense: no restraints or legal constraints;

       3. The number of counts or separate offenses established;

       4. The number of times the same offense or offenses have previously been committed by the licensee or applicant;

       5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

       6. The pecuniary benefit or self-gain inuring to the applicant or licensee;

       7. Any other relevant mitigating factors.

       
       

   15. That there was no injury to the patient or her fetus weighs in Dr. Sewell's favor. He was under no constraints as to his practice from the Board of Medicine at the time of the offense, and there was only a single offense. No prior offenses by Dr. Sewell were proven and he has no disciplinary history in

       any other jurisdiction over his eleven years of practice. Pecuniary benefit appears to have played no part in this matter.

       
       

   16. The Board of Medicine has recommended that Dr. Sewell complete three hours of continuing medical education dealing with prescription of legend drugs, birth control drugs or courses of similar scope.

       
       

   17. On balance, the appropriate penalty in this case would be a nominal fine and a period of probation less than the minimum ordinarily prescribed as the appropriate penalty under Rule 21M-20.001(2)(t), Florida Administrative Code, and continuing medical education.

RECOMMENDATION

It is RECOMMENDED that Dr. Sewell be found to have violated Section 458.331(1)(t), Florida Statutes, that he be fined $250, placed on probation for three months, and required to complete three hours of continuing medical education in the prescription of legend drugs, including birth control drugs.

DONE AND ORDERED this 20th day of October, 1987, in Tallahassee, Leon County, Florida.

WILLIAM R. DORSEY

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 20th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2567

The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985).

Rulings on Petitioner's Proposed Findings:

1. Adopted in finding of fact 1.

2. Adopted in finding of fact 2.

3. Adopted in finding of fact 3.

4. Adopted in findings of fact 5 and 7.

5. Adopted in findings of fact 5 and 7.

6. The gist of this finding is adopted in finding of fact 4 by stating the period of pregnancy as of the time of Dr. Sewell's examination and prescription of Ortho-Novum for the patient.

Rulings on Respondent's Proposed Findings:

The argument contained in Dr. Sewell's letter of September 28, 1987 is dealt with in finding of fact 6, adopting Dr. Sewell's argument that there is no

statistically significant risk to a woman or her fetus in taking birth control pills prior to, during or after conception. Nonetheless, his actions constitute malpractice for the reasons stated in findings of fact 7 through 10. See also the Conclusions of Law.

COPIES FURNISHED:

Peter Fleitman, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Jesse Quimby Sewell, 111, M.D. 2855 Overseas Highway

Marathon, Florida 33050

Ms. Dorothy Faircloth Executive Director Board of Medicine

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: 87-002567

Orders for Case No: 87-002567