Judges: WILLIAM R. CAVE
Agency: Department of Health
Latest Update: Feb. 24, 1989
Summary: Physician's care of patient fell sufficiently below recognized care that it amounted to gross malpractice.
87-3022STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3022
)
TEOTIMO D. BONZON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice, a formal hearing was held in this case before William R. Cave, a Hearing Officer, Division of Administrative Hearings, on March 14 and 15, 1988, in Orange Park, Florida. The issue for determination is whether Respondent, Teotimo D. Bonzon's license to practice medicine in the State of Florida should be revoked, suspended or otherwise disciplined based on the facts and circumstances of this case.
APPEARANCES
For Petitioner: Mark A. Sieron, Esquire
Post Office Box 855
Orange Park, Florida 32067
For Respondent: John R. Weed, Esquire
605 South Jefferson Street Perry, Florida 32347
BACKGROUND
By Administrative Complaint dated January 15, 1986, filed with the Division of Administrative Hearings on July 16, 1987 and amended at the beginning of the formal hearing without objection on March 14, 1988, the Petitioner seeks to revoke, suspend or otherwise discipline the license of the Respondent to practice medicine in the State of Florida. As grounds therefore, it is alleged that Respondent is guilty of gross or repeated malpractice or the failure to practice medicine within that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
In support of its charges, Petitioner presented the testimony of Stephen J. Clark, M.D., and Howard C. McVeigh at the hearing and introduced the depositions of Allen Schonberg, M.D., Frederick Vontz, M.D., William Donald Walkett, M.D., and Victor M. Saenz, M.D. Petitioner's exhibits 1 through 8 were received into evidence.
Respondent testified on his own behalf and presented the testimony of Eulogio Vigcarra, M.D., at the hearing and without objection, was allowed to late file the deposition of Doroteo M. Barnes, M.D. Respondent's exhibits 1 and
2 were received into evidence.
It was agreed at the close of the hearing to allow the parties to depose other witnesses and file those depositions before submitting posthearing Proposed Findings of Fact and Conclusions of Law. By Posthearing Order, October 10, 1988, was established as the date for filing posthearing Proposed Findings of Fact and Conclusions of Law.
The parties submitted their posthearing Proposed Findings of Fact (Petitioner on October 11, 1988 and Respondent on November 3, 1988). A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documented evidence adduced at the hearing, the following relevant facts are found:
In General
Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; Chapter 458, Florida Statutes.
Respondent is and has been at all times material hereto a licensed physician in the state of Florida, having been issued license number ME 0016786.
On February 27, 1984, Florida Medical license of the Respondent was suspended for a period of one year in Department of Professional Regulation vs. Teotimo D. Bonzon, M.D., Case Number 82-799.
At all times material to this proceeding, Respondent was the primary care physician for Mary T. Upton, a patient with a history of bronchial asthma.
Valium
On January 11, 1985 the patient, Mary T. Upton, developed onset of acute respiratory distress and was seen by the Respondent, first in his office and then as an outpatient. On the second occasion, Respondent gave the patient valium, a Schedule IV Controlled Substance.
On January 12, 1985, Upton was admitted to Methodist Hospital of Jacksonville, Florida, with a complaint of Acute Asthmatic Bronchitis.
Bronchial Asthma is a condition that affects the respiratory drive.
Valium relaxes the muscles and sedates the central nervous system and respiratory drive of a person and, as such, is not a drug to be administered in an outpatient setting under the circumstances that Respondent administered valium to Upton.
Theo-Dur
After admission and initial treatment, the patient continued to experience respiratory distress, and the Respondent was notified. Respondent ordered the drug Theo-Dur to be given orally. This was after Upton was given Theophylline, but before she was stabilized on Theophylline.
Theo-Dur is a long sustained action form of Theophylline, which takes twelve hours to have an appreciable affect and, as such, is used primarily for maintenance and should not be used in acute situations such as Upton's until the patient is stabilized.
Theophylline
At the time Upton was admitted to the hospital on January 12, 1985 and Respondent started her on Aminophylline (also called Theophylline I.V.), Respondent was aware of Upton's previous use of medication containing Theophylline for her asthma condition and that she had a prescription to obtain such medication.
Although Respondent was aware of Upton's previous use of medication containing Theophylline, Respondent did not inquire of Upton, or in any other manner determine, if she had ingested any form of Theophylline before administering the Aminophylline I.V. upon admission to the hospital on January 12, 1985. Upton had taken Theophylline before the Theophylline I.V. was administered.
It is the recognized standard of care for a physician to obtain the level of Theophylline in the patient's body before administering Theophylline and, to periodically check the level of Theophylline to assure the best therapeutic level is achieved.
Upton was on the hospital floor at approximately 11:20 a.m. on January 12, 1985 and the first time a physician ordered the Theophylline level checked was between 4:00 p.m. and 5:00 p.m. on January 12, 1985 after Respondent consulted with Dr. Libao.
Before the Theophylline level was checked, Respondent had already administered Theo-Dur.
Toxicity of Theophylline occurs when the content of the blood exceeds
20 milligrams per 100cc and any level over the 20 milligrams per 100cc may cause the patient to have gastrointestinal side affects such as nausea, vomiting and nervousness which may be life threatening.
Respondent's failure to monitor the Theophylline level resulted in the patient receiving a toxic level of 24 milligrams per 100cc of Theophylline; however, there was no evidence that Upton suffered any side affects.
D. Thoracostomy
On January 17, 1985, routine chest x-rays confirmed a pneumothorax in Upton's left lung which was reported to the Respondent by the radiologist, Dr. Victor Saenz, by telephone between 10:00 a.m. and 11:00 a.m. on January 17, 1985.
Without reviewing the x-rays, Respondent proceeded to treat the left pneumothorax with a chest tub (or Thoracostomy) in Upton's right lung. There was sufficient time to review the x-rays since the Thoracostomy was not performed until between 2:00 p.m. and 3:00 p.m. on January 17, 1985.
Respondent did not order follow-up x-rays the day of the surgery to determine the effectiveness of the surgery.
It is accepted medical practice for the physician, particularly a surgeon who performs an invasive procedure such as a thoracostomy, to order x- rays immediately following the surgery to make sure the procedure is working
By placing the chest tub in the wrong side of the lung, Respondent created a situation wherein another pneumothorax might occur; however, by removing the chest tub from the right lung and placing it in the left lung alleviated this possibility.
Respondent failed to realize that the chest tub had been placed in the wrong side of the lung (the right side) until the morning of January 18, 1985 when he was advised by the nurse that Upton had a pneumothorax on the left side rather than the right side where the chest tub had been placed by Respondent.
Respondent's error was discovered as a result of routine x-rays performed by Dr. Walkett at 7:45 a.m. on January 18, 1985, the day following surgery. These follow-up x-rays also revealed Subcutaneous Emphysema throughout Upton's chest.
Placing the chest tub in the right lung will not re-expand the left lung.
Upon being informed of his error, Respondent proceeded to the hospital and removed the chest tub from Upton's right lung and placed it in her left lung.
As a result of Respondent's error, Upton's heart beat increased around 3:00 a.m. on January 18, 1985 causing cardiac distress.
Allergies
At the time of the patient's admission it was noted that she was allergic to iodine. However, Respondent having treated Upton for some time prior to this admission, had knowledge that she was not allergic to iodine.
Prior to the Thoracostomy and Tracheostomy, Respondent used Betadine scrub on Upton. Betadine contains iodine.
Other solutions are readily available at Methodist Hospital that are not iodine-based.
Tracheostomy
On January 17, 1985 at or about the same time he performed the Thoracostomy, the Respondent performed a surgical procedure known as a Tracheostomy on Upton.
Following the Tracheostomy, performed by the Respondent, the patient's condition did not improve and she continued to experience complications, including Subcutaneous Emphysema.
Subcutaneous Emphysema occurs when air pockets form under the patient's fat tissue layer which cause swelling and can compromise the patient.
On January 18, 1985, the Respondent's temporary admitting and consultation privileges at Methodist Hospital were suspended in a letter from Dr. Wallace Walkett, the president of the Medical and Dental Staff. The treatment of Upton was turned over to other physicians.
Dr. Frederick Vontz, a Board Certified Cardiovascular and Thoracic Surgeon was called in by Dr. Walklett to repair the problems with Upton's trachea. When Dr. Vontz first saw Upton she was in moderate to severe distress and her body was swollen from the Subcutaneous Emphysema.
On January 26, 1985, Dr. Vontz performed a Bronchoscopy on Upton that showed granulation tissue, which is scar tissue that may be an obstacle to breathing.
The cause of this granulation tissue was the tracheostomy procedure performed by Respondent.
Due to Upton's difficulty in breathing and the continuing Subcutaneous Emphysema, she was taken to the operating room on January 31, 1985.
In the operating room, Dr. Vontz discovered a tear in the trachea that extended to six and one-half centimeters above the carina. Dr. Vontz also discovered that the air causing the Subcutaneous Emphysema was escaping from a false channel in the trachea.
The damage to the posterior wall of the patient's trachea was caused by the improper tracheostomy procedure performed by Respondent on January 17, 1985.
Upton died at 12:00 noon on March 6, 1985 and, although there is evidence that the tear in Upton's trachea may have contributed to Upton's death, there is insufficient evidence to show that it was clearly the sole cause of Upton's death.
The record is clear that the level of care, skill and treatment provided Upton by the Respondent, fell below that which would be recognized as being acceptable under similar conditions and circumstances by a prudent similar physician.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
Section 458.331, Florida Statutes, empowers the Board of Medicine (Board) to revoke, suspend or otherwise discipline the license of physicians to practice medicine in the state of Florida found guilty of any one of the acts enumerated in Section 458.331(1)(a - gg), Florida Statutes.
Respondent is charged with the violation of Section 458.331(1)(t), Florida Statutes, which provides as follows:
(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. The board shall give great weight to the provisions 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 of
$10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross 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," shall not be construed so as to require more than one instance, event, or act.
In disciplinary proceedings, tee burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino v Department of Health and Rehabilitative Services, 348 So. 2d 349 (1 DCA Fla. 1977). Petitioner has clearly shown that the level of care and treatment provided Upton by Respondent fell below that which would be recognized as being acceptable under similar conditions and circumstances by a prudent similar physician and, that the Respondent is guilty of gross malpractice and has therefore met its burden of proof to show that the Respondent has violated Section 458.331(1)(t), Florida Statutes. Ferris v. Turlington, 510 So. 2d 392 (Fla. 1987). However, the Petitioner has failed to show that Respondent is guilty of repeated malpractice.
RECOMMENDATION
Having considered the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses, and Rule 21M- 20.001(2), Florida Administrative Code, it is, therefore
RECOMMENDED that the Board enter a Final Order suspending the Respondent, Teotimo D. Bonzon's license to practice medicine in the state of Florida for a period of two (2) years with condition for reinstatement determined by the Board as it deems appropriate.
RESPECTFULLY SUBMITTED and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550 904/488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-3022
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner
In General
1.-4. Adopted in Findings of Fact 1-4.
Valium
1.-4. Adopted in Findings of Fact 5, 8, 7 and 6, respectively.
Theo-Dur
1.-2. Adopted in Findings of Fact 9 and 10.
Theophylline
1.-2. Adopted in Findings of Fact 11 and 13, respectively.
3.-4. Adopted in Finding of Fact 14.
Adopted in Finding of Fact 15.
Adopted in Findings of Fact 12 and 16. 7.-8. Adopted in Findings of Fact 12 and 17,
respectively.
Thoracostomy
1.-4. Adopted in Finding of Fact 18.
Adopted in Finding of Fact 19.
Adopted in Finding of Fact 20. 7.-8. Adopted in Finding of Fact 19.
Adopted in Finding of Fact 21.
Adopted in Finding of Fact 20.
Adopted in Finding of Fact 22.
Adopted in Finding of Fact 23.
Adopted in Finding of Fact 24.
Adopted in Finding of Fact 26. 15.-l6. Adopted in Finding of Fact 27.
17. Adopted in Finding of Fact 25.
Allergies
1.-2. Adopted in Findings of Fact 28 and 29.
3. Rejected as not being material or relevant.
Tracheostomy
1.-9. Adopted in Findings of Fact 31-39
Unnecessary in reaching a conclusion in this case.
Adopted in Finding of Fact 40.
12.-13. Subordinate to facts actually found in the Recommended Order.
Specific Rulings on Proposed Findings of Fact Submitted by Respondent
A. | General |
|
| 1.-3. | Adopted in Findings of Fact 2, 1 and 4, respectively. |
B. | The Use | of Betadine |
| 1. | Adopted in Finding of Fact 28, but clarified. |
Theophylline
Adopted in Finding of Fact 9, but clarified.
Adopted in Finding of Fact 13 that Respondent had ordered Theophylline intravenously before checking the Theophylline level in the patient.
Theo-Dur
Rejected as not supported by substantial competent evidence in the record.
Valium
Rejected as not supported by substantial competent evidence in the record.
Thoracostomy
Adopted in part in Findings of Fact 18-27, otherwise rejected.
Tracheostomy
Adopted in Finding of Fact 31, but modified.
Adopted in Finding of Fact 34.
Adopted in Findings of Fact 24, 32 and 33, but modified.
Adopted in Finding of Fact 36.
The first sentence and the first phrase of the second sentence are adopted in Findings of Fact 38 and 39. The balance is rejected as being a restatement of testimony rather than a finding of fact. However, even if the last sentence was stated as a finding of fact, it would be rejected as not being supported by substantial competent evidence in the record.
Rejected as not supported by substantial competent evidence in the record.
COPIES FURNISHED:
MARK A. SIERON, ESQUIRE POST OFFICE BOX 855
ORANGE PARK, FLORIDA 32067
JOHN R. WEED, ESQUIRE
605 SOUTH JEFFERSON STREET PERRY, FLORIDA 32347
STEPHANIE A. DANIEL, ESQUIRE CHIEF ATTORNEY
DEPARTMENT OF PROFESSIONAL REGULATION
130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
KENNETH D. EASLEY, ESQUIRE GENERAL COUNSEL
DEPARTMENT OF PROFESSIONAL REGULATION
130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
DOROTHY FAIRCLOTH, EXECUTIVE DIRECTOR BOARD OF MEDICINE
130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
=================================================================
AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. DPR CASE NUMBER: 0057042 DOAH CASE NUMBER: 87-3022 LICENSE NUMBER: ME 0016786
TEOTIMO D. BONZON,
Respondent.
/
FINAL ORDER
This cause came before the Board of Medicine (Board) pursuant to Section
(1)(b)9, Florida Statutes, on April 8, 1989, in Miami, Florida, for the purpose of considering the Hearing Officer's Recommended Order (a copy of which is attached hereto as Exhibit A) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Stephanie A. Daniel, Attorney at Law. Respondent was present and represented by John W. Weed, Attorney at Law.
Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.
FINDINGS OF FACT
Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein, with two exceptions:
Paragraph 40 of the Findings of Fact is rejected on the basis that there is no competent substantial evidence in the record to support the finding of fact.
The Board finds that the term "chest tub" is a typographical error and is intended to read "chest tube."
There is competent substantial evidence to support the findings of fact adopted by the Board.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57 (1), Florida Statutes, and Chapter 430, Florida Statutes.
The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the conclusions of
law.
PENALTY
Upon a complete review of the record in this case, the Board determines
that the penalty recommended by the Hearing Officer be accepted as appropriate.
WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
Respondent's license to practice medicine in the State of Florida is SUSPENDED for a period of two years. The Board recommends that the future Board ruling on any request for reinstatement require Respondent to establish his then current ability to practice with skill and safety to patients by proof that he has completed an entire ACGME accredited residency program in a specialty field selected by Respondent or some other appropriate proof of retraining under supervision.
Upon reinstatement, Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of five years, subject to terms and conditions set by the Board at that time.
This order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 13 day of April, 1989.
BOARD OF MEDICINE
FUAD S. ASHKAR, M.D CHAIRMAN
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Teotimo D. Bonzon, M.D., 830 Gary Street, Jacksonville, Florida 32207 and John R. Weed, Attorney at Law, 605 South Jefferson Street, Perry, Florida 32347, by U.S. Mail to William R. Cave, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Stephanie A. Daniel, Attorney at Law, Department of Professional Regulation,
130 North Monroe Street, Tallahassee, Florida 32399-0750 at or before 5:00 P.M., this 19th day of April, 1989.
Dorothy J. Faircloth
Docket for Case No: 87-003022
Orders for Case No: 87-003022
| Issue Date |
Document |
Summary |
|
Apr. 13, 1989 |
Agency Final Order
|
|
|
Feb. 24, 1989 |
Recommended Order
|
Physician's care of patient fell sufficiently below recognized care that it amounted to gross malpractice.
|
