STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PODIATRY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0277

) MARVIN E. LOWENHARDT, D.P.M., )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this action was held on May 17, 1988, in Melbourne, Florida before Mary Clark, Hearing Officer from the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Robert D. Newell, Esquire

Newell & Stahl, P. A. 817 North Gadsden Street Tallahassee, Florida

For Respondent: John A. Baldwin, Esquire

Baldwin & Baum, P. A. 7100 South Highway 17-92 Fern Park, Florida 32730

BACKGROUND AND PROCEDURAL MATTERS

On January 13, 1988, Marvin Lowenhardt, D.P.M., through counsel, responded to Petitioner's Administrative Complaint with a request for hearing and motion for more definite statement.

The motion was denied in an order dated March 21, 1988. Final hearing was set, then continued at the parties' request, until May 17, 1988.

At the commencement of the final hearing both parties presented motions and thorough arguments.

Respondent moved to strike the testimony of two witnesses anticipated to be called by the Petitioner:

Milton Lapoff, M.D., an expert witness, and Jerome Maynor, the agency investigator.

Counsel for Respondent had attempted in March to schedule a deposition of Dr. Lapoff; when he was unsuccessful, he served a notice and subpoena for

deposition on May 4, 1988. In the meantime, Dr. Lapoff informed Petitioner that he would not be available for the May 17th hearing. His letter is dated April 7th and is addressed to former counsel for Petitioner. Petitioner then sent its own notice of deposition to perpetuate Dr. Lapoff's testimony at the same date, time and place, as Respondent's notice, in West Palm Beach.

Several days before the scheduled deposition, Dr. Lapoff reported to Respondent's counsel's office that he would not appear at the deposition, that he had other matters to handle. Apparently Respondent's counsel, did not share this information with Petitioner's counsel and both attorneys showed up at the West Palm Beach Courthouse for the deposition as scheduled.

Dr. Lapoff did not appear, and counsel for Petitioner attempted to reschedule the deposition at some evening or to get Respondent's counsel to agree to a deposition after hearing and a late-filed exhibit. Counsel for Respondent insisted on a right to a pre-trial deposition and was reluctant to travel back down to West Palm Beach.

Respondent's Motion to Stride and Petitioner's reply to the motion were filed at the Division of Administrative Hearings on May 16th, the day before the final hearing. Neither party attempted to set up a motion hearing, but waited until the opening of the final hearing the next day to present argument.

Petitioner also waited until the final hearing to move for a continuance or for leave to late-file the testimony of Dr. Lapoff. As anticipated by the parties, Dr. Lapoff did not appear at the final hearing.

Respondent's motion to strike that witness was moot. Petitioner's ore tenus motion to continue or to allow for late filed testimony was denied.

Petitioner had knowledge at least a month before the hearing that its expert witness would not appear at the hearing. At that point it was Petitioner's problem, not Respondent's as to how to get the testimony in the record.

Respondent's motion for fees and costs related to the trip to West Palm Beach for the Lapoff deposition was denied. Counsel knew before he left that the doctor would not appear and did not inform opposing counsel.

Respondent's Motion to Strike the testimony of Jerome Maynor was also denied. Mr. Maynor's name did not appear in earlier responses to interrogatories but Respondent was informed two weeks before hearing that he would be called. There was no pre-trial order in this proceeding, and there is no continuing duty to update responses to interrogatories, pursuant to Rule 1.280(e), Fla. R. Civ. P.

Petitioner's evidence at hearing consisted of testimony of Briant Moyles,

1. and Jerome Maynor. The testimony of John Viso, M.D., by deposition, was admitted as Petitioner's Exhibit #6, without objection. Four other exhibits were received and another exhibit, a two-page letter from Dr. Lapoff reflecting his review of the file and opinion was rejected, but appears in the record as a proffer, exhibit #7.

   
   

   Respondent testified in his own behalf and presented the testimony of his receptionist and a single exhibit.

   
   

   After the hearing both parties submitted written motions renewing their arguments made at the hearing. These were denied in an order dated June 17, 1988.

   The parties also submitted proposed findings of fact and conclusions of law. The proposed findings of fact are addressed in the attached appendix.

   
   

   ISSUES

   
   

   The Administrative Complaint, dated January 22, 1987, alleges that Marvin Lowenhardt violated Section 461.013(1)(t), F.S., relating to gross or repeated malpractice or failure to practice podiatry at a level of care, skill and treatment recognized by a reasonably prudent podiatrist as being acceptable under similar conditions and circumstances.

   
   

   The complaint bases this allegation on the further allegation that Dr. Lowenhardt failed to take more than one X-ray of a patient, Herman Day, and failed to properly diagnose that patient's condition.

   
   

   The issue for determination is whether the violation occurred and, if so, what discipline is appropriate.

   
   

   FINDINGS OF FACT

   
   

   1. Marvin E. Lowenhardt is a licensed podiatrist with Florida license number PO 0000775. He has practiced in the State of Florida since 1982, and is currently located at 2087 Sarno Road, in Melbourne, Florida.

      
      

   2. Herman Day, visited Dr. Lowenhardt on April 30, 1986, with a complaint of swelling and pain in his right ankle. He told Dr. Lowenhardt that he had hit his heel on a dresser about 10 days prior to the visit.

      
      

   3. Dr. Lowenhardt did not observe any swelling. He took a single X-ray, lateral view of the ankle, and applied a compression bandage with an Unna boot, Gelo cast (a bandage impregnated with zinc oxide which hardens, but does not get rigid). He gave the patient a follow-up appointment on May 5th.

      
      

   4. Mr. Day appeared for the appointment, but left after a short while because no one was at the office and he had another appointment. The receptionist, who was new, had arrived late to the office to open it and called Mr. Day to apologize. He was irate and refused to make another appointment.

      
      

   5. On May 26, 1986, Herman Day visited his regular physician, John Viso, M.D., still complaining of trouble with his right ankle. He told Dr. Viso that he had twisted his ankle while strolling on the beach, and that he had been to see Dr. Lowenhardt. He also said he removed the cast himself after about six days.

      
      

   6. Dr. Viso diagnosed the condition as an old sprain, but he wanted to rule out an old fracture and referred Mr. Day to another physician with X-ray equipment.

      
      

   7. That physician, Briant Moyles, D.P.M., saw the patient on May 27, 1986. The complaint was pain and swelling in the right ankle due to a twisted foot six or seven weeks prior to the visit. Dr. Moyles found some swelling at a +2 level, which means clear swelling that dimples to the touch. He took five X- rays and concluded that there was a fracture obliquely through the malleolus (the large bump on the ankle) with no separation of the fragments (a "hairline" fracture). Dr. Moyles applied a compression bandage and told Mr. Day to limit his walking activity.

   8. Dr. Moyles could not tell when the fracture occurred and suggested that Mr. Day obtain the X-ray taken earlier by Dr. Lowenhardt. Mr. Day accomplished this, but the X-ray was of such poor quality it was impossible to tell whether or not the fracture existed at the time that Dr. Lowenhardt made his examination.

      
      

   9. Dr. Lowenhardt conceded to the investigator and at hearing that the X- ray was of poor quality. It is blurred and overexposed. The X-ray has deteriorated since it was originally taken, since it was not developed long enough. The view taken would not have revealed the type of injury suffered by Day.

      
      

   10. Dr. Lowenhardt also admitted to the investigator that he made a misdiagnosis. However, Dr. Lowenhardt claims that, given the patient's history of injury (hitting his heel), the X-ray was unnecessary. He never explained why the X-ray was taken, but after the investigation he apologized to Mr. Day for the mix up regarding the May 5th appointment and refunded all fees paid for his treatment.

       
       

   11. The history of injury given to Dr. Lowenhardt was somewhat different from that given to Drs. Viso and Moyles later: he hit his heel, rather than twisted his ankle.

       
       

   12. According to Dr. Lowenhardt and Dr. Moyles, a follow-up after the first visit was very important to the proper treatment of this patient. Dr. Lowenhardt was not informed of the circumstances of Mr. Day's missed appointment until well after the matter was referred to DPR. Dr. Lowenhardt insists that if he had seen Mr. Day again and had heard the continuing complaint and had seen the swelling, he, too, would have taken more X-rays and would likely have discovered the fracture.

       
       

   13. Dr. Lowenhardt's treatment still may have been the same, the compression bandage. This was Dr. Moyles' treatment, and is generally the treatment of older fractures. At ten days after an injury Dr. Moyles felt he would have had a choice as to whether to apply a rigid case or the compression bandage.

       
       

   14. Mr. Day did not testify at hearing and the only competent evidence of what he told Dr. Lowenhardt and what his foot looked like on April 30, 1986, is Dr. Lowenhardt's testimony and his office notes.

       
       

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1),

       F.S. and Section 455.225(4), F.S., Florida Statutes.

       
       

   16. Section 461.013(2), F.S. authorizes the Board of Podiatry to revoke, suspend or otherwise discipline the license of a podiatrist found guilty of any one of the acts enumerated in Section 461.013(1), F.S.

       
       

   17. The violation with which Dr. Lowenhardt is charged is:

       
       

       (t) Gross or repeated malpractice or the failure to practice podiatry at a level of care, skill, and treatment which is recognized by a reasonably prudent podiatrist

       as being acceptable under similar conditions and circumstances. The board shall give great weight to the standards for malpractice in Section 768.45 in interpreting this provision.

       (Section 461.013(1), F.S. (1985)

       
       

   18. Section 768.45(1), F.S. (1985) provides a definition of prevailing professional standard of care that is similar to the standard described above:

       
       

       * * *

       The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

       
       

       Section 768.45(5), F.S. (1985), provides:

       
       

       (5) The legislature is cognizant of the changing trends and techniques for the delivery of health care in this state and the discretion that is inherent in the diagnosis, care, and treatment of patients by different health care providers. The failure of a health care provider to order, perform, or administer supplemental diagnostic tests shall not be actionable if the health care provider acted in good faith and with due regard for the prevailing professional standard of care.

       (emphasis added)

       
       

   19. There is no evidence that Dr. Lowenhardt was acting in bad faith in his treatment of Mr. Day. Although there was evidence corroborating Dr. Lowenhardt's own admissions that the X-ray was defective, that usually at least two X-rays are taken and that he made a misdiagnosis, there was no competent evidence that in similar conditions and circumstances a reasonably prudent podiatrist would have made a series of X-rays and properly diagnosed the condition.

       
       

   20. Dr. Moyles observed swelling; Dr. Lowenhardt did not. Dr. Moyles was told of an injury to the ankle; Dr. Lowenhardt was not. Dr. Moyles had an opportunity to see the patient for a follow up visit and to remove the cast; Dr. Lowenhardt did not.

       
       

   21. Even if Dr. Moyles' testimony could otherwise be evidence of a violation of Section 461.013(1)(t), F.S., his testimony, standing alone as a subsequent treating physician, is not sufficient evidence to support a finding of guilt under the holding of Robinson v. Florida Board of Dentistry, 447 So.2nd 930 (Fla. 3rd D.C.A. 1984).

       
       

   22. Nor do Dr. Lowenhardt's admissions regarding his diagnosis and X-rays constitute an admission of guilt, as argued by Petitioner. He adequately

       explained the circumstances of that diagnosis. That he took one X-ray was peculiar; he did not err, as alleged in the administrative complaint, by failing to take more than one X-ray.

       
       

   23. Ferris v. Turlington, 510 So.2nd 292 (Fla. 1987) requires a standard of proof by clear and convincing evidence in license discipline cases such as this. Petitioner failed to meet that standard.

RECOMMENDATION

Based on the foregoing, it is, hereby RECOMMENDED:

That the Administrative Complaint against Marvin E. Lowenhardt be dismissed.

DONE and RECOMMENDED this 31st day of August, 1988, 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 31st day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0277

The following constitute my rulings on the parties proposed findings of fact:

Petitioner's Proposed Findings

1. Adopted in paragraph #1.

2. Adopted in paragraph #2.

3. Adopted in paragraph #3. 4-6. Adopted in paragraph #7.

1. Adopted in paragraph #5.

2. Adopted in paragraph #6. 9-10. Adopted in paragraph #7.

1. Rejected as irrelevant. It was not established that the circumstances warranted X-rays.

2. Rejected as unsupported by Competent evidence.

Respondent's Proposed Findings

1. Adopted in paragraph #1.

2. Adopted in paragraphs #2 and 3, except that the medical history form reflects a complaint of ankle pain.

3-4. Adopted in paragraph #3.

1. Adopted in paragraph #4.

2. Adopted in paragraph #5.

3. Adopted in paragraph #6.

4. Adopted in paragraph #7.

5. Adopted in paragraph #8.

6. Addressed in background statement.

COPIES FURNISHED:

Robert D. Newell, Esquire Newell & Stahl, P. A.

817 North Gadsden Street Tallahassee, Florida 32303-6313

John A. Baldwin, Esquire Baldwin & Baum, P. A.

7100 South Highway 17-92 Fern Park, Florida 32730

Marcelle Flanagan Executive Director

Board of Podiatric Medicine Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Lawrence A. Gonzales, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-000277

Orders for Case No: 88-000277