STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

vs. ) CASE NO. 88-4785

)

ALLEN B. ERDE, M.D., )

)

Respondent. )

)

)

RECOMMENDED ORDER

The final hearing in this case was held on July 7, 1989, in Lakeland, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mary B. Radkins, Esquire

Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792

For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issue in this case is whether the license of Allen B. Erde, M.D., should be disciplined by the Florida Board of Medicine based upon actions he is alleged to have taken, or failed to have taken, between August and November, 1986, in the care and treatment of his patient, C.W.

PRELIMINARY STATEMENT

At the hearing, the Department of Professional Regulation (Petitioner) called C.W., the complaining witness, and Jim Bates, investigator, and also introduced twelve exhibits, including the expert testimony of Drs. Vincent Gatto and Eli Rose by deposition. At the request of the Petitioner, official recognition was taken of Rule 21M-20, Florida Administrative Code. Since there was no appearance on behalf of the Respondent, no evidence on his behalf was offered or admitted.

The transcript of the final hearing was filed on July 20, 1989. A ruling on each timely filed proposed finding of fact filed by the parties is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed as a physician in the State Of Florida, having been issued license number ME-0008625.

   
   

2. Respondent was C.W.'s obstetrician during her pregnancy in 1986, and initially examined her on August 26, 1986, when she was six weeks pregnant. During this initial visit, C.W. was informed by Respondent that her pregnancy was progressing normally.

   
   

3. At her second visit, on September 23, 1986, Respondent detected no fetal heartbeat. However, he informed C.W. that this was not a problem. He requested that she bring her husband with her for her third visit so that they both could hear the heartbeat.

   
   

4. Prior to her third visit, C.W. saw Respondent in his office on October 6, 1986, complaining of urinary problems, and a stiff neck and back. Respondent treated her for a urinary tract infection. Later that same day she began to bleed vaginally, passed clots and experienced cramping pains. She then saw Respondent at the Winter Haven Hospital emergency room, but was told that nothing seemed wrong. Respondent advised her simply to go home, put her feet up, and rest.

   
   

5. There were several other occasions during October, 1986, when C.W. experienced cramping and vaginal bleeding. She called Respondent each time to express her concerns, but was told simply to lie down, and keep her feet up.

   
   

6. On October 22, 1986, C.W. and her husband visited Respondent for her third scheduled visit. No heartbeat was heard. Respondent again told C.W. that there was no cause for concern, the baby was just small and probably behind her pelvic bone. C.W. was presumably 14 weeks pregnant at this time, but Respondent's office records indicate that the fetus was decreasing in size, there was no weight gain, and no heartone.

   
   

7. C.W. continued to experience pain and bleeding, sometimes accompanied by clots. She was not gaining weight, and had none of the other indications of pregnancy which she had experienced in her prior pregnancies. C.W. continued to express concern to Respondent, but his advice remained simply to lie down, and keep her feet up.

   
   

8. In response to a five day episode of bleeding, C.W. saw Respondent in his office on November 12, 1986. Although she was 17 weeks pregnant at that time, Respondent's office records indicate a fetus 14 weeks in size. Respondent did not order any fetal viability tests, and there is no evidence in his office record that he considered any testing of the fetus.

   
   

9. C.W. saw Respondent for her fourth scheduled visit on November 19, 1986, and, again, no fetal heartbeat was detected. She was still experiencing vaginal bleeding. Her uterus was only 10-12 weeks in size, although she was presumably 19 weeks pregnant at this time. C.W. was distraught, and expressed great concern to Respondent that she was presumably almost five months pregnant and no fetal heartbeat had ever been detected. C.W. demanded that Respondent do something. He then ordered a quantitative Beta-subunit Human Chorionic Gonadotropin blood test to determine her hormone level.

   
   

10. On November 2l, 1986, Respondent called C.W. at her place of employment, and informed her that her hormone levels were extremely low, and

    that she might not have a viable pregnancy. He told her she should keep her next regularly scheduled appointment with him, but if she experienced any severe bleeding or cramping to call him. C.W. left work and became increasingly upset. She contacted him later on that same day for a more complete explanation of what she should expect. Respondent told her that the fetus was "reversing itself and was losing weight instead of gaining." C.W. was not informed by Respondent that the fetus was not viable, and she took his advice to mean that if she was extremely careful there was still a chance of carrying the pregnancy to term.

    Respondent admitted to the Petitioner's investigator, Jim Bates, that he knew the fetus was dead at this time, but he was trying to let nature take its course, and if she did not abort in two or three months, he would take the fetus.

    
    

11. Because she was extremely upset and her friends were concerned about the advice she was receiving from the Respondent, an appointment with another obstetrician, Dr. Vincent Gatto, was made for C.W. by one of her friends. Dr. Gatto saw C.W. on or about November 21, 1986, and after examining her he immediately diagnosed her as having had a missed abortion. A sonogram confirmed this diagnosis. A dilation and curettage was performed on C.W., and subsequent pathological reports revealed remnants of an 8-week fetus.

    
    

12. The medical records which Respondent maintained of his care and treatment of C.W. are incomplete and contain discrepancies concerning his evaluation of the patient. They do not reflect C.W.'s numerous telephone calls, or that she was increasingly upset over the course of her pregnancy. There is no delineation of a plan of treatment in these records, or any explanation of the type of treatment he was pursuing for her. There is no explanation or justification in these records of Respondent's failure to order a sonogram or test, other than the one Beta-subunit Human Chorionic Gonadotropin, for C.W., although she repeatedly reported vaginal bleeding and cramping, and there was a continuing inability to detect a fetal heartbeat.

    
    

13. Respondent failed to carry out the correct tests on C.W., and therefore, he failed to make a correct diagnosis of missed abortion, or to treat her correctly. He allowed her to carry a dead fetus for almost two months. Retention of the products of a non-viable pregnancy can lead to several complications, including infection, blood clotting and psychological trauma. In fact, this experience caused C.W. severe emotional anguish.

    
    

14. In his care and treatment of C.W., Respondent failed to meet the standard of care that is required of a physician practicing under similar conditions and circumstances.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. Since this is a case in which the Petitioner is seeking to discipline the Respondent's license, and could thereby adversely affect his ability to continue to engage in the practice of medicine, Petitioner has the burden of establishing the basis for license disciplinary action by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. Petitioner has charged Respondent with violating Sections 458.331(1)(m) and (t), Florida Statutes, in that he is alleged to have failed to practice medicine with the level of care and skill which is recognized as acceptable under similar conditions by a reasonably prudent similar physician,

    and also that he failed to maintain adequate medical records justifying the care and treatment of C.W. Petitioner has clearly and convincingly proven that Respondent failed to properly diagnose C.W.'s missed abortion, or to perform appropriate tests at the time which would have revealed her condition. He failed to terminate the missed abortion in a timely manner, and allowed her to carry the dead fetus for almost two months, thereby placing her at risk for complications which can result therefrom. Additionally, Respondent failed to appreciate C.W.'s mental distress, or to fully inform her of the prospects for her pregnancy. Respondent's medical records of his care of C.W. are inadequate in that they fail to justify the course of treatment he was pursuing, or explain why he did not order appropriate tests for her under these circumstances.

    
    

17. It has, therefore, been clearly and convincing established that Respondent violated Sections 458.331(1)(m) and (t) in his care and treatment of C.W.. The Florida Board of Medicine is authorized to take license disciplinary action in this case, which may include revocation, suspension or other appropriate action. Section 458.331(2), Florida Statutes. In recommending an appropriate penalty for the Respondent's violations, the disciplinary guidelines set forth in Rule 21M- 20.001(2), Florida Administrative Code, have been considered, as well as mitigating and aggravating factors enumerated in Rule

21N-20. 001(3)

RECOMMENDATION

Based upon the foregoing, it is recommended that Florida Board of Medicine enter a Final Order suspending Respondent's license to practice medicine for a period of five years, and imposing an administrative fine of $3,000.

DONE AND ENTERED this 21st day of August, 1989 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1989.

APPENDIX

(DOAH CASE NO. 88-4785)

Rulings on the Petitioner's Proposed Findings of Fact:

1. Adopted in Finding l.

2. Adopted in Finding 2.

3. Adopted in Finding 3.

4. Adopted in Finding 4.

5. Adopted in Finding 5. 6-7. Adopted in Finding 6.

1. Adopted in Finding 7.

2. Adopted in Finding 8.

3. Adopted in Finding 9.

4. Adopted in Finding 10.

5. Adopted in Finding 11.

6. Rejected as irrelevant. 14-17. Adopted in Finding 13. 18-21. Adopted in Finding 12.

22. Adopted in Finding 14.

The Respondent did not file Proposed Findings of Fact.

COPIES FURNISHED:

Mary B. Radkins, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792

Allen B. Erde, M.D.

P. O. Box 1817

Winter Haven, FL 33883-1817

Allen B. Erde, M.D.

198 First Street, South Winter Haven, FL 33880

Dorothy Faircloth Executive Director Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Kenneth Easley, General Counsel Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0729

Docket for Case No: 88-004785

Orders for Case No: 88-004785