STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1507

)

MOHEB ISHAD GIRGIS EL-FAR, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Punta Gorda, Florida on September 7, 1989, before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Larry McPherson, Jr., Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For the Respondent: David K. Oaks, Esquire

The Professional Centre

201 West Marion Avenue, Suite 201 Punta Gorda, Florida 33950

STATEMENT OF THE ISSUES

The issue for consideration was whether the Respondent's license as a physician in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

On February 22, 1989, Stephanie A. Daniel, Chief Medical Attorney for the Department of Professional Regulation, (Department), on behalf of Larry Gonzalez, Secretary, filed an Administrative Complaint in this case against the Respondent which, in six counts, alleged various violations of the provisions of Chapter 458 and Chapter 455, Florida Statutes, and sought to discipline his license for those reasons. The filing of the Administrative Complaint followed by several days the Department's issuance of an emergency restriction order against the Respondent on February 13, 1989.

After the filing of the Administrative Complaint, on March 6, 1989, the Respondent requested a formal hearing, and on March 16, 1989, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

By Notice of Hearing dated April 19, 1989, the undersigned set the case for hearing in Venice, Florida on June 9, 1989. However, by Amended Notice of Hearing dated April 25, 1989, the place of hearing was changed to Punta Gorda and the date of the hearing was moved back to June 26, 1989. The hearing was again continued until July 7, 1989 and on June 29, 1989, the undersigned granted Petitioner's Motion To Continue, moving the hearing back to September 7, 1989 in Punta Gorda, at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of Richard A. Cook, an investigator for the Department; Jean P. Clyne, an investigation specialist with the Department; Michelle S. Hampton, an investigator with the Department;

C. L., (Patient 2), in person and by deposition; S. A. K. (Patient 1); and T. E. K., S.'s husband. Petitioner also introduced Petitioner's Exhibits 1 through 7. By deposition, Petitioner also presented the testimony of Dr. Pierre J. Borris and Dr. Janet A. Marley, both experts in the field of obstetrical medicine.

Respondent testified in his own behalf and introduced Respondent's Exhibit A, B, and D. Respondent's Exhibit C for Identification was not admitted into evidence. The undersigned also took official recognition of Rule 21M-20.001, F.A.C., and those portions of the Florida Statutes cited in the Administrative Complaint.

A transcript was furnished and both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, the Respondent, Moheb Ishad Girgis El-Far was licensed as a physician in Florida under license number ME 0026895, and the Board of Medicine was the state agency responsible for the licensing and monitoring of physicians in this state.

   
   

2. At all times pertinent to the issues herein, Respondent practiced medicine with a specialty in obstetrics at his clinic located a 401 East Olympic Avenue, Punta Gorda, Florida.

   
   

3. Patient 2, C.L., first went to see Respondent at his office in Punta Gorda in January, 1989 because she was pregnant and had heard he was delivering babies in his office. She was referred to the Respondent by the Sarasota Health Department when she indicated she wanted to have her child in a birthing center. During that first visit, the doctor and patient agreed on a treatment plan which would culminate with the baby's being delivered in his office and C.L. paid for this pursuant to their agreement. During the period of the patient's prenatal care with the Respondent, he told her her baby was due on August 30, 1987, and when labor began, she was to come to his office and bring her own sheets.

   
   

4. On August 24, 1987, C.L. began her labor and went to Respondent's office as agreed. By the time she got there, she was about ready to deliver and a few minutes after her arrival, she did so in a birthing room with her husband present. At the time of the delivery, both Respondent's wife and Ms. L.'s boss, neither of whom played any part in the proceedings, were standing in the doorway to the birthing room. No nurse was present and C.L. cannot recall seeing any sterilization or resuscitation equipment in the room.

   
   

5. C.L. experienced little pain during the delivery, which appeared to go smoothly. Afterwards however, Respondent told her she had sustained an inverted

   uterus and when Respondent attempted to remove the afterbirth, she started to hemorrhage. When this happened, Respondent gave her a shot and towels with which she was to try to stem the bleeding while he tried to correct the uterine problem. He was unsuccessful and thereafter called the paramedics who came to his office and took C.L. to St. Joseph's Hospital in Punta Gorda for treatment.

   
   

6. Respondent did not treat her at the hospital because he had no hospital privileges. While there she required 6 units of blood and 2 units of plasma.

   At no time during the course of her prenatal care did Respondent advise her to go to the hospital. She fully recovered.

   
   

7. C.L. was shown pictures of Respondent's office taken by Department investigators at some time subsequent to her delivery. With the exception of the fetal monitor which she had seen in his office, the pictures she saw bore little similarity to the condition of the office whenever she was there. Though the office was not as messy as the pictures show, she was, nonetheless concerned about its condition at the time of her delivery. The carpet was dirty and so was the aquarium. She could not do anything about it at that time, however, and it was not so bad as to cause her to feel unsafe.

   
   

8. S.K., Patient 1, first went to the Respondent for her pregnancy care in November, 1987 on a referral from a friend. They agreed on a fee of $1600.00 for prenatal care and delivery in his office. During these initial discussions, Respondent did not discuss in detail with the patient the possibility of complications. He stated only that if there were complications, they could probably be treated in the office.

   
   

9. S.K. went to Respondent's office about 6 times after that initial visit. During this period, on an early visit, Respondent gave her some medicine samples and a prescription for vitamins. When she asked about the cost, he said he would include the cost of the samples when he billed her insurance company. During these visits, she also saw his personal office, an examining room, and a small room where the patient's blood pressure was taken. She noted that the office was not as clean and orderly as others she had seen, and in fact, was usually in a state of disarray. On one occasion when Respondent examined her, he was wearing a wrinkled shirt with a blood spot on it. The next time she went for a visit, Respondent was wearing the same shirt.

   
   

10. S.K. was shown pictures of Respondent's office taken by investigators and several were similar to conditions she observed there. His personal office was not well organized and there was clutter about but not as aggravated as appears in the photos. Based on her experience with other doctors, Respondent's office was far more untidy and in disarray but not necessarily nonsterile or unsafe.

    
    

11. On February 5, 1988, S.K. went to Respondent's office because she was having pains and thought she was in labor. When she called him and explained her symptoms, he told her to come in and he examined her when she did. He gave her something to calm her and to try to stop her labor in an attempt to save her baby. He gave her a shot of demerol and put her in an examining room to lie down. She slept there for quite a while with her husband present. When she awoke she again began to have pains but Respondent would not give her any more medicine. After a while, the baby spontaneously delivered while Respondent was sleeping in another room. He was called but by the time he came in, the baby was dead. He asked S.K. if she wanted to see the fetus but she declined. After a period of recovery, she was released to return home.

12. When this patient came into the office that day and it appeared she was going to deliver, her husband asked Respondent if he thought she should be in the hospital. Respondent replied that it was up to her because the baby, if delivered, was too premature to survive. The decision not to go to the hospital was hers. Respondent did not try to dissuade her from going. In fact, in most ways she considered Respondent's treatment of her to have been satisfactory. During the period she was in his office Respondent was in and out of the room checking on her. The only complaint she has relates to his handling of the fetus she delivered.

    
    

13. About 2 weeks after delivery she again went to see Respondent at his office where he showed her her baby which he had preserved in a jar of formaldehyde. This was a strange and sad experience for her.

    
    

14. Mr. K. basically confirms that testified to by his wife. While she was in labor or sleeping prior to the delivery, he wandered about the building into other parts of the clinic. He also rested in one of the examining or birthing rooms and observed the general state of cleanliness of the facility was poor. For example, the floor and rugs were spotted throughout with a dark stain and the examining table also had a dark stain on it. These stains looked to him like blood. In addition, the hallway carpets were dirty, there were bags off debris laying out, spare pieces of wood were stacked in the halls, and medical instruments were left out in the birthing and examining rooms. In his opinion, many of the pictures shown to him displayed scenes similar to what he saw when he was there with his wife.

    
    

15. Both Dr. Borris and Dr. Marley agreed that Respondent's treatment of Ms. K. had no relationship to her miscarriage. By the same token, neither claims that his treatment of Ms. L.'s inverted uterus was inappropriate. Both agree, however, that other factors in Dr. El Far's operation of his practice as regards both patients failed to conform to generally accepted standards of care in providing obstetrical services. Specifically, he failed to have a nurse present during the delivery; he failed to have emergency equipment in the form of resuscitative and lifesaving equipment available to handle potential surgical complications which might have arisen; he had no emergency backup care available; and he had no hospital privileges in Punta Gorda, the area in which he was engaged in an obstetrical practice. Without those privileges, it was not prudent for him to undertake a delivery in the office.

    
    

16. While the prenatal care of patient 1 was within standards, the balance of Respondent's practice was below standards because: the patient was not monitored while in the office; if the conditions as appearing in the pictures existed at the time he was seeing patients, he did not meet sanitation standards because of the general disarray.; he attempted a delivery in his office when a hospital was only 1.5 miles away, (not prudent in light of the patient's condition when there was no emergency to justify it); and his records were not complete.

    
    

17. The standard of a reasonably prudent physician is the same regardless of the locality. Acceding to the wishes of a patient, when to do so is not in the patient's best interests, is not necessarily acceptable medical care.

    
    

18. Mr. Cook, the Department's investigator, inspected Respondent's office on September 16, 1988, in the company of investigator Clyne, as a result of a call he received from an agent of the Florida Department of Law Enforcement who was then on the premises. When they arrived, they observed a female sitting on the couch in the waiting room changing a baby's diaper. From conversation he

    had with Respondent at the time, Mr. Cook inferred the lady was a patient. In addition to the previously mentioned lady and the state investigative personnel, Cook also noticed two children, who Respondent indicated were his, running freely about throughout the building. Cook examined the patient log maintained by Respondent for that day and noted that two patients were scheduled.

    Nonetheless, while he was there, there were no nurses, receptionists or office staff present. Though Respondent claims he did not have any patients that day, and though Cook did not see any other than the lady aforementioned, from the patient log and the fact that at least one patient was there, it is found that Respondent was engaged in at least a minimum practice and was available to see patients.

    
    

19. Mr. Cook observed conditions in Respondent's office on the day in question that were inconsistent with a proper medical practice. Trash was not contained, food was left open, and dust and dirt were in evidence, all in the area where medical services were or would be rendered. Mr. Cook took photos and a video tape of the condition of Respondent's office. The photos were those shown to the two patients who testified herein and to Mr. K. Though he looked throughout the office, Mr. Cook could find no sterilization equipment, no general anesthesia equipment, no blood transfusion equipment, and no emergency resuscitation equipment. When asked about his sterilization capability, Respondent stated his "heater" was broken and in for repairs. When during a visit to Respondent in October, 1988, Ms. Clyne told him he needed sterilizer equipment, he indicated it had recently been purchased. On that visit, Respondent had a patient in the office. Ms. Clyne again went to Respondent's office on February 15, 1989 and observed it to be still in a state of disarray.

    
    

20. Ms. Hampton, another Department investigator, visited with Respondent in his office on January 11, 1989 and found it to be unsatisfactory. The waiting area was cluttered, the carpet was dirty, the walls stained, and magazines were laying around. The clinic area was piled up with mail leaving no counter space. Respondent took Ms. Hampton on a tour through the office during which she observed the computer, patient records, and the typewriter to be unclean. Her examination of the halls, examining rooms, birthing rooms, and the like revealed that in one room, a sink had an unclean speculum in it and others were lying about. The paper on one examining table was soiled and when Respondent saw that, he quickly tore it off. The spread in one of the birthing rooms was soiled and the floor needed sweeping. Trash cans were not lined and needed cleaning. The covering on the baby examining table was soiled and there were bloody cotton balls on a table in the room. She, too, saw no evidence of any sterilization, anesthesia, or emergency resuscitation equipment. On this visit, Respondent indicated he was not seeing any new patients; only those former patients who were still pregnant.

    
    

21. Respondent indicates that during the period from July 4 through September 16, 1988 he had closed up his office for an extensive vacation and was living in his office on that latter date. He does not deny that his office was in the condition as depicted in the photos when they were made but contends he has since cleaned it up and put new carpet down. During the period his office was closed, he referred his patients to other doctors and has not been actively practicing while waiting for his malpractice insurance to come through.

    
    

22. Respondent also does not deny that the Certificate of Education form he signed and submitted to the Board was in error. He contends, however, that at the time he signed it he believed it to be a certificate of regular continuing education hours, not a certification used for approval for dispensing drugs. He also claims that at no time did he intend to defraud the Board, and

    when Ms. Clyne brought the error to his attention, he wrote to the Board explaining what had happened.

    
    

23. He contends that when he affirmed the statement that he had the appropriate hours, he considered the "a" in "affirm" to be a negative prefix indicating he did not have the required hours. This contention is both ingenuous and unbelievable. It is found that Respondent well knew the meaning and effect of the certification he signed and his affixing his signature thereto was both false and with intent to mislead.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

25. Prior to the taking of testimony in this matter, Petitioner voluntarily dismissed Count II of the Administrative Complaint relating to the alleged improper disposal of fetal remains. Consequently, any evidence relating to fetal remains was admitted solely far its relationship to other Counts which were not dismissed prior to hearing.

    
    

26. In the Administrative Complaint as heard, Petitioner charged Respondent with failure to practice medicine with the requisite level of care, skill and treatment found acceptable by a reasonable prudent similar physician under similar conditions and circumstances by treating patients in an office which posed a health risk to his patients, in violation of Section 458.331(1)(t), Florida Statutes, (Count I), and failing to have adequate equipment, professional assistance, and provisions for emergency treatment, (Count III).

    
    

27. It also alleged he failed to keep written records justifying the course of his treatment, in violation of Section 458.331(1)(m), Florida Statutes, (Count IV), and filed a false report with the Board of Medicine regarding his continuing medical education, in violation of Section 458.331(1)(h), (Count V), and Section 455.2275, Florida Statutes, (Count VI).

    
    

28. Petitioner has the burden of proof in this matter to establish its allegations against the Respondent by clear and convincing evidence of his misconduct. Ferris v. Turlington, 510 So.2d 292, 295 (Fla. 1987).

    
    

29. The Board is authorized to discipline a licensee's license under Section 458.331(1), Florida Statutes, for:

    
    

    (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.

    (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.

    (h) Making or filing a report which the licensee knows to be false, ....

    
    

30. Under the provisions of Section 455.2275, the act of knowingly giving false information in the course of applying for or obtaining a license to practice as a health care practitioner pursuant to, inter alia, hapter 458, constitutes a felony of the third degree. The instant hearing is not a criminal hearing, however.

    
    

31. In this case, the evidence of record clearly indicates that at the time he treated both patients in issue, Respondent failed to have the proper emergency equipment, sterilization equipment, and anesthesia equipment. His office was, if not unsanitary and a health hazard, maintained in a manner certainly well below those standards of cleanliness expected of and maintained by the average practicing physician. He attempted critical obstetrical procedures in an office setting, without professional nursing assistance and without prior arrangements for emergency backup. Further, the medical records he maintained on the two patients in issue here have been considered, by two highly qualified experts in the Respondent's field, to be inadequate for the purposes for which kept. Taken together, the evidence is clear that Respondent, as regarding both patients alleged, failed to practice medicine with that degree of care, skill, and treatment recognized as acceptable by a reasonably prudent similar physician under similar conditions. This is not to say, and both experts agreed, that Respondent's actual medical treatment of his patients' conditions was without skill. To be sure, he delivered patient 1 without complications, and his handling of the inverted uterus situation of patient 2 was considered acceptable. However, the overall conditions under which he practiced fell far below acceptable standards and constitutes, as to both patients, a violation of Section 458.331(1)(t).

    
    

32. In addition, the inappropriate record keeping also constitutes a violation of Section 458.331(1)(m).

    
    

33. With regard to the submittal of the erroneous certification regarding continuing medical education, the evidence, taken in a light most favorable to Respondent, establishes his culpability. He claims to have misunderstood the prefix "a" in the word, "affixed". This is not some esoteric phraseology misconstrued by one unfamiliar with the nuances of its meaning. It is a straightforward word, capable of uncomplicated definition and Respondent had demonstrated a skill with and understanding of the English language sufficient not to be mislead by this common, uncomplicated word. It is clear Respondent filed a false report of his continuing medical education and knew it to be false, in violation of Section 458.331(1)(h), Florida statutes.

    
    

34. Petitioner urges in its Proposed Recommended Order that Respondent's license to practice medicine in this state be revoked. While there is, by implication from certain of the collateral evidence, indication that what was aired at this hearing is not the complete litany of Respondent's misconduct, there is no direct evidence of other misconduct. Further, both experts indicated that Respondent demonstrated appropriate skill and knowledge in his performance of the required medical procedures when needed. From this it is clear Respondent has the potential to practice acceptable medicine. It is also

clear that at the time in question, Respondent was undergoing independent personal problems which impacted strongly on him. While this does not excuse or justify his offenses, it may mitigate them, and under the circumstances, a penalty less than revocation is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent's license to practice medicine in Florida be suspended for two years and that he thereafter be placed on probation for an additional period of three years under such terms and conditions as are imposed by the Board of Medicine.

RECOMMENDED this 30th day of October, 1989, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 30th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1507

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Fact submitted by the parties to this case.

For the Petitioner:

1.- 3. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Rejected in so far as it editorializes on the condition of the clinic. While below standard, there was no evidence of health hazard to patients.

6.-8. Accepted and incorporated herein.

9. & 10. Accepted and incorporated herein.

11. & 12. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein

3. Accepted and incorporated herein.

4. Accepted.

5. & 18. Accepted and incorporated herein.

19. Accepted.

For the Respondent:

1. & 2. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted.

3. Rejected as contra to the weight of the evidence.

4. Rejected as contra to the weight of expert testimony.

5. Rejected as contra to the weight of the evidence.

6. Accepted in so far as it finds that Respondent's performance of medical procedures was within standard. Rejected as to the finding that overall care and practice was within standards.

7. Accepted.

COPIES FURNISHED:

Larry G. McPherson, Jr., Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

David K. Oaks, Esquire The Professional Center

201 West Marion Avenue Suite 205, Box 3288

Punta Gorda, Florida 33950

Kenneth E. Easley General Counsel DPR

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dorothy Faircloth Executive Director Board of Medicine DPRB

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-001507

Orders for Case No: 89-001507