STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1398

)

RAEES IFTEKHAR GAZI, )

)

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 case on August 24 and 25, 1980, at Brooksville, Florida.

APPEARANCES

For Petitioner: David Milford, Esquire

Department of Professional Regulation

130 North Monroe Street Florida 32399-0750

For Respondent: Jerry Gottlieb, Esquire

2753 State Road 580, Suite 204

Clearwater, Florida 34621

By Administrative Complaint filed March 2, 1988, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Raees Iftekhar Gazi, Respondent, as a medical doctor. As grounds therefor, it is alleged that, in treating some six patients in 1983 and 1984, Respondent's examinations, diagnoses and treatment were below minimum standards for the medical profession; that she failed to keep medical records to justify the treatment rendered; that she admitted these patients to the hospital when hospitalization was unnecessary; that she called in consultants to make diagnoses which should have made by her; and that she made diagnoses for which medical evidence was lacking; all in violation of Section 458.331(1)(n), (o) and (t), Florida Statutes (1985).

At the beginning of the hearing, the parties submitted a prehearing stipulation limiting the issues to whether Respondent practiced medicine with that level of care, skill and treatment which a reasonably prudent physician recognizes as acceptable under similar conditions and circumstances; and whether Respondent failed to keep medical records justifying the course of treatment on the six patients.

Thereafter, Respondent's motion to dismiss was denied as was the challenge to the eligibility of one expert witness to be called by Petitioner.

Petitioner's request for protective order involving the subpoenaed chief

investigator of Petitioner who took no part in the investigation that lead to the charges here involved, was granted. The Petitioner then called three witnesses, Respondent called six witnesses and 25 exhibits were offered and admitted into evidence.

Proposed findings have been submitted by the parties. 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 medical doctor in Florida, having been issued License No. ME 0031092. She has a general family practice and is not board certified or board eligible in any specialty.

   
   

2. The charges here involved stem from the treatment of six patients by the Respondent, who was the admitting physician for these patients at Lykes Memorial Hospital (Lykes) in Brooksville, Florida.

   
   

   PATIENT A. S.

   
   

3. When first seen in Respondent's office on December 3, 1983, A. S. was a

   62 year old female who had been seen at the Lykes emergency room a few days earlier complaining of pain in the right shoulder and indigestion.

   
   

4. When seen by Respondent, A. S. complained of stabbing pain in her right side, frequency of urination and constipation. Respondent did a complete physical on A. S. and discussed the patient's symptoms with Dr. Nazir Hamoui, a board certified urologist who concurred in the decision to hospitalize A. S. A urinalysis taken in Respondent's office noted bacteria too numerous to count and the white blood cell count within the normal range. During her examination, A.

   S. stated she was allergic to codeine, ampicillin and aspirin which Respondent noted on the patient's record.

   
   

5. While in the hospital the day before A. S.'s admission to Lykes, Respondent prepared the preadmission order in which she prescribed Tylenol 3 and Keflin for A. S. Upon returning to her office that evening and reviewing A. S.'s chart, Respondent realized Tylenol #3 which contains codeine, to which A.

   S. stated she was allergic, and Keflin were improper drugs to prescribe to this patient. The following morning, prior to A. S.'s admission, Respondent directed the prescription for Tylenol #3 be changed to Demoral, and the prescription for Keflin was changed to Erythromycin. These changes did not get placed on the patient's chart until after 12:25 when A. S. was offered Tylenol and refused it.

   A. S. was admitted to the hospital at 11:55 on December 4.

   
   

6. Upon admission, the admitting diagnosis for A. S. was: right flank pain, rule out pyelonephritis, rule out diverticulitis. Petitioner's experts witnesses testified the Respondent's records on A. S. would not support a diagnosis of possible diverticulitis and pyelonephritis; however, this testimony respecting pyelonephritis was based largely upon their conclusion that the urine specimen showing high bacteria count was probably contaminated. Respondent's notes did not indicate how the specimen was obtained. Respondent testified that she had established office policies in which the nurses explained to patients how to catch a clean sample, and that these procedures were followed in all cases.

7. While A. S. was hospitalized, Dr. Hamoui was called in as a consultant and he determined that a cystoscopy was necessary, and he performed that procedure.

   
   

8. Petitioner's witnesses also opined that the evidence contained in the patient's office records was insufficient to support a diagnosis of possible diverticulitis which was to be ruled out by the barium enema tests. Several reasons for this conclusion were given, yet one of the discharged diagnoses was possible diverticulitis. The other discharge diagnoses were chronic cystitis, urethral stricture and one degree heart block.

   
   

   PATIENT B. L.

   
   

9. B. L. was a 71 year old female when first seen by Respondent on October 23, 1984. B. L. complained of pressure in her lower abdomen, pain during urination, bowel problems and constipation. A urinalysis showed 2+ sugar in the urine. A blood sugar test taken this same date was reported by the lab to be

209. Patient records are unclear whether this was from a random sample, fasting or two hour post prandial.

1. B. L. was also seen by Dr. P. G. Desai, a board certified urologist, in Respondent's office on October 23, 1983, and he decided surgical intervention was indicated, and this required hospitalization.

   
   

2. Additional blood sugar tests were run on blood drawn from B. L. on October 24 and October 25. Although the office records do not clearly so indicate, Respondent testified that these blood tests were two hour post prandial or fasting. The post prandial readings were 209 and 196, and the fasting blood sugar test resulted in a reading of 141. All of these readings are at or slightly above the upper range for normal or lower range for diabetes.

   
   

3. Respondent put B. L. on a 1500 calorie diet and prescribed Orinase. While prescribing Orinase was questionable in view of the blood sugar readings and possible complication if a low blood sugar condition is obtained, B. L. was scheduled for surgery, and Respondent thought the Orinase would lower the blood sugar enough to allow the surgery to proceed without the complications of diabetes. Respondent had diagnosed B. L. as having urinary retention, caruncle, possible urethral stricture and diabetes uncontrolled. B. L. told Respondent that she had trouble staying on a diet.

   
   

4. Respondent took B. L. off Minizide which she had been on for some time and prescribed Diazide. Diazide can significantly affect blood sugar by increasing it 5 or 10 percent. This change in medication, therefore, could have affected the blood sugar reading for B. L.

   
   

   PATIENT M. H.

   
   

5. Respondent first-saw this patient on July 23, 1983 for an insect bite. Subsequent thereto, on September 17, 1983, at an office visit, M. H. revealed to Respondent an extensive history of transient ischemic attacks (TIA) for which she had earlier been tested and to control which she took aspirin every day. Respondent suggested that M. H. undergo a work-up for TIA, but M. H. declined since she did not want to undergo those procedures again.

   
   

6. On October 4,1983, M. H. came to Respondent's office complaining of frequency of urination, sporadic blood in urine, a 5 to 6 pound weight loss, anxiousness and an old history of vision problems, and a few times on and off

   weakness in the arms. Upon examination of M. H., Respondent found blood in the patient's urine (hematosis).

   
   

7. M. H. was admitted to the hospital by Respondent with differential diagnosis of hematuria, etiology to be determined; weight loss, etiology to be determined; hypertension by history; numbness of the left hand; and transient ischemic attacks, rule out CVA.

   
   

8. While in the hospital, M. H. was seen by Dr. Nazir Hamoui, a board certified urologist, who determined that a cystourethroscopy and urethral dilation were necessary, and which he performed. Prior to performing this surgery, Dr. Hamoui carefully examined the patient for evidence of active symptoms of TIA and found none.

   
   

9. The primary emphasis of the evidence submitted by Petitioner on the treatment rendered by Respondent, was that TIA is a precursor to strokes and that Respondent should have done more to push M. H. to consenting to a TIA work- up. However, these witnesses both admitted on cross-examination that the patient has the final word on whether a certain procedure is done, and that if the patient declines to have a TIA work-up, there is nothing more a physician can do.

   
   

10. Fasting blood tests taken on this patient revealed blood sugar slightly higher than the normal range, and Respondent made a discharge diagnosis of borderline diabetes mellitus.

    
    

    PATIENT L. R.

    
    

11. L. R. was admitted to Lykes on February 16, 1984 with a differential diagnosis of acute bronchitis and possible bilateral pneumonia. During hospitalization, one blood sugar reading of 97 was obtained, and the discharge diagnosis included "borderline diabetes." One blood sugar reading of 97 will not support a diagnosis of borderline diabetes. Although Respondent contends the diagnosis was based upon the patient's past history, the Respondent's office records would not support this diagnosis, and the hospital records for this history was missing from the file.

    
    

12. At the time of the hearing, the hospital records for this patient contained no patient physical or history. Hospital policy requires all records to be complete and include both a history and physical before they can be closed. No one was able to explain the absence of these documents from the hospital records, and it is as likely they were removed from the file after closing as it is that they were never prepared by Respondent and placed in the file. Accordingly, no permissible inference can be drawn that Respondent failed to take a history and physical on L. R.

    
    

13. Respondent treated this patient with an aminophylline IV solution without monitoring theophylline level in the patient's blood. Aminophylline is a dangerous drug with a low margin of safety. Too much theophylline in the blood will be toxic to the patient, and too little will not be effective. Here the IV solution was administered for only a short period of time, and no side effects were seen.

    
    

    PATIENT C. K.

    
    

14. After treating this patient in her office for a short period, Respondent admitted C. K. to Lykes for further treatment with a diagnosis of

    abdominal pain, bloody diarrhea, possible acute diverticulitis, rule out ulcerative colitis and rule out infection.

    
    

15. While hospitalized, C. K. was seen by Dr. P. K. Paul, a board certified gastroenterologist, who determined a proctosigmoidoscopy was indicated, which he performed. Dr. Paul concurred with testing the patient for diverticulitis. When discharged seven days after admission, the discharge diagnosis of C. K. was internal hemorrhoids and proctitis.

    
    

16. It is rare for a thirty-two year old woman to have diverticulitis. Petitioner's expert witness opined that a general practitioner should be able to diagnose internal hemorrhoids and proctitis without calling in an expert; while Respondent's expert witnesses, who were equally, if not better qualified, opined that respondent's actions were proper.

    
    

    PATIENT R. B.

    
    

17. R. B. was seen in Respondent's office on March 24, 1984, and was admitted to the hospital the same day with an admitting diagnosis of acute abdomen, abdominal pain, rule out appendicitis, rule out colitis, G. I. bleeding.

    
    

18. In the admitting order, Respondent directed R. B. receive nothing by mouth and an IV set at keep vein open. Dr. Soliman, a consultant called in, changed the order to sips of water and finally to full liquids.

    
    

19. Normally a patient with suspected appendicitis will be kept hydrated, but not allowed to take liquids orally. Two of the expert witnesses called by Respondent, one a board certified urologist and the other, a board certified gastroenterologist and internist, both testified that the admission of R. B. to the hospital was proper as were the admission orders.

    
    

    GENERAL

    
    

20. The principal import of the charges here involved is that Respondent called in consultants when it should not have been necessary, admitted patients to the hospital when not justified and diagnosed patients with diabetes on insufficient evidence. Respondent's own testimony that she called in a consultant every time before admitting a patient to the hospital supports the excessive use of consultants. However, this does not equate with malpractice.

    
    

21. At the time the hospital admissions here complained of occurred, a major change in Medicare reimbursements also took place with the advent of Diagnostic Related Groups (DRG) whereby the U.S. Government withdrew the blank check formerly given the hospitals to fill in and inserted fixed payments for specified diagnoses. This resulted in hospitals no longer encouraging doctors to admit patients to the hospital, unless the diagnosis was such that someone would pay for the patient's hospital expenses. Although no direct testimony was presented in this regard, it appears that Respondent was caught in this transition, and the hospital had difficulty getting treatment received by the patients and whether 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.

With respect to the patient records maintained by Respondent, Petitioner's expert witnesses' primary complaints were that the records were not complete in that blood and urine samples taken for tests were not definitive in that the

blood test often did not indicate whether it was a fasting test, two hour post prandial or random. Similar for the urine samples taken, the records did not specify how the sample was taken so as to insure a clean catch. Respondent testified that all blood sugar tests were fasting or two hour-post prandial and that standard office procedures were set up to be sure uncontaminated urine specimens were obtained.

Other objections to these records resulted from the witnesses being unable to read Respondent's handwriting or decipher some of the abbreviations used.

When the record was understood, some of these objections were withdrawn. It could be said that all or nearly all patient records could be more complete and the handwriting easier to read.

Petitioner's witnesses also contended that the blood sugar readings on several of these patients were not high enough to justify a diagnosis of diabetes or borderline diabetes, yet one of these patients is today still being treated for diabetes. It clearly appears that Respondent is more likely to diagnose an elderly patient with elevated blood sugar levels as diabetic than would many other family practitioners. However, this does not equate to clear and convincing evidence that patient records fail to justify the diagnosis or treatment of these patients by Respondent. Respondent's expert witnesses, who were equally, if not better, qualified than were Petitioner's witnesses, all opined that the patient records were adequate.

The fact that Respondent conferred with a specialist before admitting each of her patients to the hospital indicates that Respondent is unsure of her diagnosis or is ultraconservative. Again, the parties' expert witnesses were poles apart in their testimony regarding whether the diagnoses and treatment of six patients was below the minimally acceptable standards. This does not constitute clear and convincing evidence that Respondent failed to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

Finally, it is noted that in Exhibit 25 of the Board of Medical Examiners took disciplinary action against Respondent at a time well after the treatment of the patients involved in these charges. Although the basis for that action was not included in Exhibit 25, it would appear that the investigation that led to the stipulation and Exhibit 25, if thorough, should have revealed the charges here involved, and these charges should have been disposed of at that time.

Regardless of the fact that these charges were not then considered (in 1985), Exhibit 25 may not now be used in aggravation of the charges involving events occurring before Exhibit 25 was entered should Respondent be found guilty of these charges.

From the foregoing, it is concluded that Petitioner has failed to prove, by clear and convincing evidence, that Respondent failed to keep medical records justifying the course of treatment on the six patients, or failed to practice medicine with the level of care, skill and treatment which a reasonably prudent physician recognizes as acceptable under similar conditions and circumstances.

It is

RECOMMENDED that all charges against Raees Iftekhar Gazi be dismissed.

ENTERED this 1st day of November, 1988, 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 1st day of November, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1398

Treatment Accorded Petitioner's Proposed Findings

1. Accepted.

2. Last sentence rejected as irrelevant.

3. Rejected.

4. Included in H.O. #8.

5. Rejected.

6. Rejected.

51,52,53. Included in H.O. #9.

1. Accepted, but irrelevant.

2. Accepted.

3. Included in H.O. #12.

4. Included in H.O. #11.

58-60. Accepted.

1. Included in H.O. #12.

2. Included in H.O. #11.

3. Accepted.

4. Included in H.O. #11.

5. Rejected.

6. Rejected.

7. Accepted.

68,69,70,71. Included in H.O. #13.

72. Included in H.O. #12.

73,74,75. Accepted.

1. Rejected.

2. Rejected.

78,79. Accepted.

80,81. Included in H.O. #14.

82. Accepted.

83,85. Included in H.O. #15.

84. Included in H.O. #16.

1. Accepted.

2. Included in H.O. #17. 88,89,90,91,92. Accepted.

1. Included in H.O. #19.

2. Accepted.

95,96,97. Included in H.O. #20.

98,99. Included in H.O. #21.

100,101. Included in H.O. #20.

102,103,104. Included in H.O. #22.

1. Included in H.O. #23.

2. Included in H.O. #24.

3. Included in H.O. #25.

4. Accepted.

5. Included in H.O. #25. 110,111,112. Accepted.

113. Included in H.O. #26. 114,115. Included in H.O. #27. 116,117. Included in H.O. #28.

118-122. Accepted. However, these are ideals which are rarely met by the average physician.

123,124. Included in H.O. #29.

Treatment Accorded Respondent's Proposed Findings

1. Included in Preamble.

2,3. Included in H.O. #1.

1. Included in H.O. #21.

2. Included in Preamble.

3. Included in H.O. #3.

4. Included in H.O. #4.

5. Included in HO. #6.

6. Included in H.O. #7.

7. Accepted.

8. Rejected insofar as relating to Petitioner's witness.

9. Included in H.O. #8.

10. Accepted.

14,28,42,58,50,72. Rejected as immaterial. 15,16. Included in H.O. #5.

17-20. Accepted.

21,22. Rejected as conclusion only.

23. Included in H.O. #10.

24,25,26. Accepted.

27. Included in H.O. #10.

29. Rejected.

30,31. Included in H.O. #11.

32,33. Included in H.O. #12.

1. Rejected as conclusion only.

2. Accepted.

3. Included in H.O. #20.

4. Included in H.O. #21.

5. Included in H.O. #20.

6. Accepted insofar as included in H.O. #22. 40,41,43,44,46. Accepted.

45. Rejected as conclusion only.

1. Included in H.O. #23.

2. Included in H.O. #24.

3. Accepted.

1. Included in HO. #24.

2. Accepted as testimony of witness.

3. Accepted.

4. Included in H.O. #26.

5. Accepted. Included in H.O. #28.

56,57. Accepted.

1. Accepted as mere testimony of witness.

2. Rejected as conclusion.

3. Accepted.

4. Included in H.O. #14.

63,64. Accepted.

1. Included in H.O. #15.

2. Included in H.O. #16.

3. Included in H.O. #17.

68,69. Accepted.

1. Included in H.O. #17.

2. Accepted.

1. Rejected as conclusion only.

2. Accepted.

75,76. Accepted.

77-79. While one of Petitioner's expert witnesses did express some confusion regarding the term "standard of care", nevertheless, this witness opined that much of the treatment Respondent provided these six patients was below acceptable standards. In view of the opinions expressed by the witnesses called by Respondent, it is concluded that Petitioner failed to sustain its burden of proof; not that Respondent is an exemplary physician.

COPIES FURNISHED:

David Milford, Esquire Department of Professional Regulation

130 North Nonroe Street Tallahassee, Florida 32399-0750

Jerry Gottlieb, Esquire 2753 State Road 580

Suite 204

Clearwater, Florida 34621

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce D. Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001398

Orders for Case No: 88-001398