vs. ) CASE NO. 89-3901F
Respondent. )
Pursuant to notice the Department of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on November 9, 1989 at Tampa, Florida.
For Respondent: Mary B. Radkins, Esquire
Whether Respondent was substantially justified in filing an Administrative Complaint charging Petitioner with gross or repeated malpractice or failure to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances.
Following the dismissal of an Administrative Complaint by the Department of Professional Regulation after certain discovery was taken, Marc Richman, D.O., Respondent in that proceeding, filed a petition for assessment of attorney's fees and costs with the Division of Administrative Hearings pursuant to the Equal Access to Justice Act, Sec. 57.111 Florida Statutes.
As grounds there for it is alleged that the filing of the Administrative Complaint was not substantially justified and that Petitioner incurred attorney's fees and costs in defending against those allegations.
At the commencement of the hearing the parties filed a prehearing stipulation in which they stipulated to findings of fact 1-6 below. The Respondent further stipulated that the attorney's fees and costs sought by Petitioner are reasonable. Thereafter, Respondent called one witness, Petitioner testified in his own behalf and 13 exhibits were admitted into evidence, three of which consisted of depositions of physicians.
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.
The Respondent is a state agency which initiated a proceeding with the filing of an Administrative Complaint against Marc Richman, D.O.
The said complaint was assigned to the Division of Administrative Hearings pursuant to a request for Administrative Hearing pursuant to Chapter
120 and was assigned Division of Administrative Hearing Case Number 88-5258.
On June 24, 1989, the Department of Professional Regulations issued a notice of voluntary dismissal in the above captioned proceeding and dismissed all charges against Marc Richman, D.O., in that case.
Marc Richman, D.O. is a prevailing small business party within the meaning of Section 57.111(3)(c) and (d).
The amount of attorney's fees and cost sought by the Petitioner in the Petition for Attorney's Fees is reasonable for the Representation of Marc Richman, D.O., in the defense of the Administrative Complaint through the date of issuance of the Notice of Dismissal.
The Department of Professional Regulation maintains that the proceeds (sic) above-captioned were substantially justified at the time the Administrative Complaint was initiated by the state agency in that it maintains that there existed a reasonable basis in law and fact at the time of the filing of the Administrative Complaint. This position is disputed by the Petitioner, Marc Richman, D.O.
The request for attorney's fees in the amount of $8,572.00 and costs of
$563.96 for a total of $9,225.96 is reasonable for the representation of Petitioner throughout the instant proceeding.
These proceedings were initiated by the filing of a complaint on September 16, 1986 with the Department of Professional Regulation (DPR), Petitioner in Case 88-5258, by the parents of G.H. who died October 18, 1984.
G.H. was a long time patient of Dr. Jaffee, D.O. who called in Dr. Richman, an orthopedic surgeon to consult and perform an arthodesis on the left ankle of
G.H. to relieve constant pain.
G.H. was a 34 year old male accountant who had suffered from juvenile rheumatoid arthritis since the age of 4. Although badly crippled he was able to lead a relatively independent life. As a result of his malady G.H. had for years taken steroid and corticosteroid medications.
These medications depress the body's immune system and the ability to fight off infections. Accordingly, G.H. was at more than normal risk anytime he was exposed to infectious diseases.
After Petitioner explained the procedure and the risks to G.H., the latter elected to have Petitioner perform the arthodesis.
This operation consists of grafting bone into the ankle to stabilize that joint. The donor site chosen for the bone to graft to the ankle was the crest of the left ilium of the patient.
This operation was successfully performed on August 2, 1984 at Metropolitan General Hospital, Pinellas Park, Florida.
In the hospital on August 9, 1984, while G.H. was being adjusted in his bed, he felt a pop in his left hip and a large hematoma developed over the wound at the donor site. It is not unusual for hematomas to develop over surgical wounds but it is important that such conditions be closely watched because hematomas are a fertile field for an infection.
The hematoma on G.H.'s hip showed no evidence of infection and G.H. was discharged from the hospital August 12, 1984 and sent home. Arrangements were made by Petitioner for Robert's Home Health Services, Inc. of Pinellas Park to send a nurse 3 times per week to check on G.H., take his vital signs, dress his wounds and attend to any other medical needs he may have. Verbal reports were made by the nurse to Richman reporting the condition of G.H.
While being helped from his wheel chair into bed by his parents on or about August 15, 1984, G.H. apparently fell and caused additional bleeding of the wound on the left hip. On August 16, 1984 the nurse reported to Richman the additional bleeding and she was directed to have G.H. taken to the hospital to be seen by Richman. On August 16, 1984, Petitioner examined the wound, noted the reports that the hematoma was neither inflamed nor more tender, and that G.H.'s temperature had remained normal since the hematoma developed. He sent
G.H. back home without further tests.
The classic signs and symptoms of infection are redness, swelling, heat and pain. Redness of the skin due to intense hyperemia, is seen only in infections of the skin itself. Swelling accompanies infection unless the infection is confined to the bone which cannot swell. Heat results from hyperemia and may be detected even in the absence of redness. Pain is the most universal sign of infection. Along with pain goes tenderness, or pain to the touch, which is greatest over the area of maximal involvement. (Exhibit 12, Principals of Surgery, Fourth Edition). The hematoma on G.H.'s left hip between its inception and September 13, 1984 never exhibited any sign of infection.
On September 6, 1984, G.H. reported to the visiting nurse that he had a pain in his stomach and didn't feel well. The nurse described this as having flu-like symptoms. This was reported to Petitioner and the nurse received no additional orders.
On the nurse's next visit on September 10, 1984, G.H. reported his abdomen was still hurting and he didn't feel good. At this time his temperature was elevated at 101. The nurse called Dr. Jaffee's office and was told to have the patient admitted to Metropolitan Hospital.
Upon admission to the hospital on September 10, 1984, G.H. was nauseous, vomiting, and had a high fever (103). He had no complaints regarding his ankle or iliac crest and the hematoma had decreased greatly.
On September 13, 1984, while G.H. continued showing signs of infection (high fever) Petitioner operated on G.H. to remove the hematoma. At this time aerobic and anaerobic cultures were obtained. Forty-eight and seventy-two hours later these cultures had grown no infectious substance.
Further studies and tests revealed that G.H. had bleeding ulcers and surgery was required to patch the ulcers. At this time the spleen was also removed. Following this surgery G.H. was more debilitated and with the precarious condition of his immune system he continued to go down hill until he expired on September 18, 1984. Cause of death was cardiac pulmonary arrest caused by candida septicemia.
During the initial stage of the investigation, which was initiated some two years after the death of G.H., the investigator interviewed the parents of G.H., who had filed the complaint, and assembled the medical records including those kept by the home health agency. The parents contended that when the hematoma was removed by Dr. Richman he told the parents that he had found infection at that site. Dr. Richman denies making any such statement to the parents of G.H. and the medical records support the conclusion that there was no infection in the hematoma on September 13, when the hematoma was excised.
The parents complained of the treatment that G.H. received from Drs. Jaffee and Richman as well as Roberts Home Health Services. Accordingly the investigation started with both Jaffee and Richman charged with malpractice by the parents of G.H.
The investigator selected an orthopedic surgeon, Dr. Richard M. Couch, D.O., from DPR's consulting list and forwarded to him on January 7, 1987, the patient records of G.H. and requested he review those records and give his opinion on whether Drs. Jaffee and Richman diagnoses and treatment of G.H. was appropriate. In this letter (Exhibit 1) the investigator advised Dr. Couch that following surgery a hematoma developed, that after G.H.'s discharge from the hospital the hematoma ruptured and that G.H. was taken back to the emergency room where Dr. Richman saw the patient but found nothing significant about the hematoma. He also told Dr. Couch that when Richman cleaned out the hematoma he advised the family (of G.H.) that infection was found, and that, after this G.H. started internal bleeding which ultimately resulted in the patient's death.
Dr. Couch responded to this request with two letters, the first of February 16, 1987 and a second on March 6, 1987. In his first letter Dr. Couch concluded that the iliac wound began draining on or about August 14, 1984 and cultures of this wound were not secured until after G.H.'s hospitalization on September 10, 1984. Since the hematoma was a post-operative complication he opined that Richman failed to adhere to certain tenets regarding wound care in this situation. However, Dr. Couch suggested the records be referred to an internist who reviewed the treatment provided by Dr. Jaffee. In his second letter Dr. Couch opined that Richman was at fault for not incising, debriding and draining the hematoma when it developed and for not taking cultures when Richman saw G.H. in the emergency room on later dates. He also found Richman at fault for not referring G.H. to a consultant in infectious diseases.
A letter similar to the letter sent to Dr. Couch was sent by the investigator to Neal B. Tytler, Jr., D.O., an internist. Although the investigator contends he submitted the records maintained by Roberts Home Health Services in this case to Dr. Tytler it is obvious that before he submitted his report on June 5, 1987, Dr. Tytler had not read those records and was concerned regarding the absence of medical records during the period between G.H.'s discharge from the hospital on August 12, 1984, and his readmission on September 10, 1984. In his report Dr. Tytler carefully noted G.H.'s long term medication for juvenile rheumatoid arthritis and the serious side effects, viz depression of the immune system, which results from long-term steroid therapy. Recognizing the risk to G.H. from any surgery Dr. Tytler questioned the wisdom of the arthodesis but recognized that this was more of an orthopedic problem than an internal medicine problem. From the records received, Dr. Tytler concluded that
G.H. developed a hematoma after his departure from the hospital and before September 6, 1984. Significantly, Dr. Tytler reported "Of concern to me is the apparent lack of records to document the events which transpired between August 12, 1984 and September 10, 1984. In this one month period an abscess formed at the surgical site and led to disastrous consequences. Unfortunately it can only be inferred that the first recognition of any problem occurred on September 6, 1984, when the patient developed `flu-like symptoms'. He was not examined and no one perceived that his problems were serious."
When the probable cause panel met on June 25, 1988 to consider the charges against Drs. Jaffee and Richman, no probable cause was found as to Jaffee. One of the two members of the probable cause panel disclosed at the opening of the panel meeting that he knew Dr. Richman socially and that Richman had been his treating physician for a finger injury. He was excused from further participation and the hearing was tabled regarding Dr. Richman.
At a subsequent panel meeting by telephone conference call, after a substitute lay panel member was selected and had been furnished the medical records, a vote was taken to find probable cause. The excerpt from those proceedings (Exhibit 8) shows that the DPR attorney opened the conference call by stating that Richman was charged with medical conduct falling below acceptable minimal standards and "at the last probable cause panel meeting you voted to find probable cause, and asked that administrative complaint be issued. At this time the Department recommends that you do find probable cause to believe that this violation exists." Following receipt of this erroneous information regarding the previous probable cause panel meeting, the Chairman, Mr. Wheeler, stated that after reviewing the entire file he believes probable cause exists to file an Administrative Complaint. Dr. Barker concurred.
The case against Dr. Richman began to unravel when the deposition of Dr. Tytler was taken on February 24, 1989. Prior to taking this deposition Dr. Tytler had been provided records from Metropolitan General Hospital, records from Roberts Home Health Services and a copy of the Administrative Complaint. In response to questions regarding the treatment of G.H. as afforded by Dr. Richman, Dr. Tytler stated that a review of all medical records clearly demonstrated that after the hematoma developed at the donor site for the transplant no indication of infection ever appeared; that considering the medical history of G.H. and his high susceptibility to infection it would be more dangerous to the patient to evacuate the hematoma and risk additional infection than it would to continue to observe the hematoma and let it cure itself; that the cultures taken on September 13, 1984, when the hematoma was evacuated clearly and unequivocally demonstrated that the hip wound was not the source of the infection that ultimately led to the demise of G.H.; and that the treatment rendered by Petitioner was in all respects in conformance with
required medical standards and procedures. Dr. Tytler further opined that treating an immune compromised patient with antibiotics without a specific infection in mind "could lead to the very scenario that caused his (G.H.) death", namely secondary infection. Further, with respect to the contention of Dr. Couch regarding the failure of Petitioner to take cultures at the hematoma site before September 10, 1984, Dr. Tytler opined that indiscriminate taking of cultures when no evidence of infection is present could result in a positive culture unrelated to the wound but which the doctor would be called upon to treat. This could invite a major change in therapy and an inappropriate prescribing of an antibiotic.
Following the deposition of Dr. Tytler, DPR referred the medical records to another orthopedic physician and this doctor concurred with the opinion of Dr. Tytler that Dr. Richman's treatment of G.H. was not below minimally acceptable standards, that no malpractice was involved and that the treatment was in accordance with acceptable medical standards. The Department then dismissed the Administrative Complaint.
In his deposition the physician member of the probable cause panel, James H. Barker, D.O., emphasized that his conclusion that probable cause existed to go forward with the Administrative Complaint was significantly influenced by the fact that no culture was done at the hematoma site. From his subsequent testimony it is clear that Dr. Barker was unaware, when he voted to find probable cause, that the culture taken from the hematoma site on September 13, 1984 was negative. The record clearly shows this to be a fact. As stated by Dr. Tytler in his testimony "hematoma yes; infection no." Dr. Barker was also concerned, and perhaps rightly so, that any time that someone goes in for an elective procedure and he dies "that alone makes you think there may be probable cause here." However, there must be factual evidence to support a finding of probable cause and here there was no such evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings.
Section 57.111(4)(c), F.S. (1987), mandates an award of attorney's fees and costs to a prevailing small business party in an adjudicatory proceeding pursuant to Chapter 120 which was initiated by a state agency. There are two exceptions to this mandate:
If the actions of the state agency were substantially justified; or
If special circumstances exist which would make the award unjust.
In applying the Florida Equal Access to Justice Act (the Act), guidance can be found in the federal cases under the Equal Access to Justice Act, 5 USC Sec. 504, on which the Act is patterned. Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987). The Act is subject to the same construction as the federal Act so long as "such construction is harmonious with the spirit and policy of Florida legislation on the subject." Pasco County School Board v. Florida Public Employee Relations Commission, 353 So.2d 108, 116, (Fla. 1st DCA 1977). Gentele, supra at 673.
The Petitioner bears the initial burden of proving that it is a small business party, that it prevailed, and that the underlying adjudicatory proceeding pursuant to Chapter 120 was initiated by a state agency. Once this showing is made, the burden shifts to the Department of Professional Regulation to demonstrate that its actions were substantially justified or that special circumstances exist which would make the award unjust. The allocation of the burden of proof is clearly stated in Gentele v. Department of Professional Regulation, Board of Optometry, 9 FALR 310, 327 (DOAH June 20, 1986), affirmed on other bases in Gentele, supra:
The conclusion that the agency must prove its actions were substantially justified, or that special circumstances exist which would make an award unjust, is buttressed by the plain language of the statute. In mandatory language, Section 57.111(4)(a) declares the general rule -- that fees and costs "shall" be awarded to a prevailing small business party. Then, following a comma, the Act
creates two exceptions (actions substantially justified or special circumstances which make an award unjust) which, if proven, make the general rule inapplicable. The agency is the best party to know the factual and legal basis of its prior actions, and whether special circumstances exist which would make an award unjust. Hence, it is the agency which must affirmatively raise and prove the exception.
The parties have here stipulated that Petitioner is a "small business party" as defined by the statute and that he was the prevailing party in DOAH Case No. 88-5258.
The burden now shifts to the agency to prove the exception that its actions were substantially justified. Section 57.111(3)(e) defines it as follows:
A proceeding is "substantially justified" if it had a reasonable basis in law and in
fact at the time it was initiated by a state agency.
The standard to be applied is less restrictive than the "complete absence of a justiciable issue of either law or fact" of Section 57.105 Florida Statutes, and is more restrictive than an automatic award of fees to every prevailing small business party. McCallister v. Department of State, Division of Licensing, 9 FALR 4064 (DOAH 1987); Robaina v. Division of Professional Regulation, 9 FALR 4072 (DOAH 1987). Federal authority defining the standard is persuasive. Gentele, supra at 673. In discussing the meaning of the term "substantially justified," the court in Ashburn v. U.S., 740 F.2d 843 (11th Cir. 1984), said
The government bears the burden of showing that its position was substantially justified. (Citations omitted) The standard is one of reasonableness; the government must
show "that its case had a reasonable basis both in law and fact." (Citations omitted) The fact that the government lost its case does not raise a presumption that the government's position was not substantially justified. (Citations omitted) Nor is the government required to establish that its decision to litigate was based on a substantial probability of prevailing. (Citations omitted).
Quoted with approval in Structured Shelters Financial Management Inc., et. al.
v. Department of Banking and Finance, Division of Securities, DOAH Case No. 87- 1015F (Final Order December 24, 1987).
The evidence available at the time the charges were preferred in Case 88-5258 is factually insufficient to support the charge of gross negligence or failure to conform to prescribed standards of osteopathic medical treatment. It is clear that erroneous assumptions or conclusions were drawn, the most significant being that the hematoma became infected.
The investigator accepted as fact what he was told by the parents of
G.H. two years after the death of G.H., that Dr. Richman had told them that there was infection in the hematoma on September 13, 1984, when the hematoma was evacuated under sterile conditions by Dr. Richman. Dr. Barker's conclusion of probable cause was predicated upon Dr. Richman's failure to earlier determine the hematoma was infected than on September 13, 1984 when he removed the hematoma. It is obvious from his testimony that Dr. Barker was unaware there was no infection in the hematoma when cultures were taken September 13, 1984.
If no infection existed at that time and G.H. experienced no pain, tenderness, or temperature prior thereto at the hematoma site it is abundantly clear that no infection was shown to exist at the hematoma prior to the time G.H. was operated on to correct his bleeding ulcers. Shortly thereafter, with numerous sites to host an infection, with the debilitated condition of G.H. following two surgical procedures, and the status of his immune system after years of cortisone medication to alleviate juvenile rheumatoid arthritis, G.H. was a prime candidate in which an opportunistic organism such as the candida tropical is fungus could grow. In fact, this fungus spread rapidly throughout his body and was directly responsible for his death.
Although Drs. Couch and Barker fault Petitioner for not calling in an expert in infectious diseases for consultation in this case, the facts are clear that between the time the arthodesis was performed on G.H.'s left ankle and September 13, 1984 G.H. had no infection related to this operation.
Accordingly, there was no medical basis for consulting such an expert and such consultation would serve only as a tactic to "cover ones backside" and unnecessarily increase the cost of medical services.
From the foregoing it is concluded that in investigating this complaint the investigator concluded the hematoma to be the source of the infection which ultimately led to the demise of G.H.; that this indication was passed to the consultant and to the probable cause panel; the conclusion became obvious that Dr. Richman failed to do what he should have done to correct an infection in the hematoma site; and this led directly to the death of G.H. Since the conclusion was based on the false premise regarding infection in the hematoma, absent such infection there was no factual basis to support a charge that Dr. Richman failed to practice osteopathic medicine with that level of
care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances. Accordingly, these charges were not factually substantially justified and Petitioner, as the prevailing small business party, is entitled to recover attorney's fees and cost in defending against these charges.
It is ordered that the Department of Professional Regulations pay attorney's fees and cost in the total sum of $9,225.96 to Marc Richman, D.O., as the prevailing party in DOAH Case No. 88-5258.
DONE and ORDERED this 12th day of December, 1989, in Tallahassee, Leon County, Florida.
K.N. AYERS Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1989.
and have been included in the Hearing Officer's findings of fact except for those facts in proposed fact #3 relating to the bias of Dr. Couch which is not supported by credible evidence; and proposed finding No. 7 which shows attorney Susan Proctor represented DPR at the September 28, 1988 probable cause panel meeting instead of Ms. Sims which the record of proceedings (Exhibit 8) shows.
Proposed findings submitted by Respondent are accepted except for proposed findings listed below which are rejected for the reasons noted.
14. Finding that Petitioner failed to examine hematoma on August 29, 1984 not supported by credible evidence (only uncorroborated hearsay).
18. On September 10, 1984 Dr. Misischia was the admitting physician not Petitioner although it is likely Petitioner ordered the cultures from the hematoma if drainage is noted.
32. Dr. Tytler disputes receiving the medical records of Roberts Home Health Service. See Hearing Officers Nos. 35 and 32.
48. While Dr. Barker expressed the opinions attributed to him in the proposed findings, all of these opinions were predicated upon Dr. Barker's belief that on September 13, 1984 G.H. had infection in the hematoma.
61. Rejected.
Mary B. Radkins, Esquire Department of Professional
1940 N. Monroe St., Suite 60
Lawrence A. Gonzales, Secretary Department of Professional
1940 N. Monroe St., Suite 60
Kenneth D. Easley, Esquire General Counsel
1940 N. Monroe St., Suite 60
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 DIVISION OF ADMINISTRATIVE HEARINGS 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 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
