STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE,)
)
Petitioner, )
)
vs. ) CASE NO. 89-6819
)
AHMED ELKADI, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Panama City, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on October 5, 1990. The Division of Administrative Hearings received the hearing transcript on October 17, 1990.
Petitioner filed its proposed recommended order on November 17, 1990, and respondent filed his proposed recommended order on November 19, 1990. The attached appendix addresses proposed findings of facts by number. By motion to strike dated November 29, 1990, petitioner alleged that respondent "read and respond[ed] to [petitioner's] proposed findings of fact and conclusions of law .
. . contrary to the order requiring simultaneous filings." By ordered entered December 3, 1990, petitioner was authorized to "file a reply to
respondent's proposed recommended order on or before December 21, 1990."
Petitioner filed petitioner's response to respondent's proposed recommended order on December 26, 1990.
APPEARANCES
For Petitioner: Wellington H. Meffert, II, Esquire
0750
Francesca Small, Esquire 1940 North Monroe Street Tallahassee, Florida 32399-
For Respondent: Pro Se
PRELIMINARY STATEMENT
By administrative complaint dated November
14, 1989, petitioner alleges that respondent was "at all times material . . . a licensed physician in the State of Florida"; that "[o]n or about August 22, 1988, [a] patient . . . was admitted to Weems Hospital for the purpose of receiving a gastric bypass operation"; that the next day respondent performed "a Roux-[e]n-y gastric bypass" on the patient but "failed to adequately reconstruct the proximal jejunal limb portion of the Roux-[e]n-y gastric bypass operation" on account of which the "limb turned gangrenous and 'A. L.' developed peritonitis and sepsis"; that respondent was therefore "guilty of gross or repeated malpractice or fail[ure] to practice medicine with a level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable";
that A. L. developed "an elevated white blood count, severe abdominal pain, low back pain, excessive belching, bloody drainage from the nasogastric tube throughout the immediate post operative period, post operative period, tachyp[n]ea, tachycardia, and linear atel[e]ctasis"; that respondent misdiagnosed peritonitis "as post operative incisional pain and anxiety" "[d]espite all the aforementioned manifestations"; that, on August 27, 1988, A. L. received "intravenous valium which caused her to be over sedated"; that the "over sedation . . . in conjunction with the underlying sepsis culminated in hypoxemia, respiratory arrest and death" one hour after the valium was administered; that respondent failed to keep accurate or otherwise adequate written medical records "in violation of Section 458.331(1)(m), Florida Statutes," and that respondent violated Section 458.331(1)(t), Florida Statutes, not only in performance of the surgery but also in failing to diagnose peritonitis and in prescribing valium.
FINDINGS OF FACT
Respondent Ahmed Elkadi, who holds a license to practice medicine in Florida, No. 0031490, was one of two surgeons (among some half dozen physicians) on the staff of Weems Memorial Hospital in Apalachicola, Florida, in August of 1988. Whether the physicians on staff who were not surgeons had other specialties and, if so, what they were, the proof did not show.
A duly licensed 29-bed general hospital, Petitioner's Exhibit No. 7, Weems Memorial had, "on a . . . stat basis," (Fitzgerald Deposition at 13), despite its small size, "24-hour
respiratory therapy capability, 24-hour laboratory coverage, [and] 24-hour radiology coverage," (Fitzgerald Deposition at 5), which did not, however, include computed tomographic scanning or magnetic resonance imaging technology, both available only at facilities some 60 or 70 miles away.
Continuous cardiac monitoring was available in house. Id. at 16. Weems Memorial had a physician in house 24 hours a day and a registered nurse on duty 24 hours a day, along with "at least one LPN," (Fitzgerald Deposition at 6), and two nurse's aides. Id. On average, Weems Memorial only had five or six inpatients at any one time during 1988. Staff off premises but on call were required to report within 30 minutes of being summoned. Fitzgerald Deposition at 13.
On August 22, 1988, Dr. Elkadi admitted
A. L. as a patient, in preparation for gastric bypass surgery the following day. A 29-year-old woman, A. L. (who worked as a nurse at the hospital) stood 5 feet 1.5 inches tall and weighed
303 pounds, when admitted. A chest x-ray taken before she was admitted uncovered no abnormalities other than obesity.
Because she "was in excess of twice her standard weight for height," (MacGregor Deposition, p.7) and had "blood cholesterol elevation and [elevated levels of] blood triglycerides," Id., p.8, and because of her age,
A. L. was an appropriate candidate for gastric bypass surgery, Corwin Deposition. She signed a form consenting to the operation.
Roux-en-Y
Dr. Elkadi performed the surgery, a "gastric bypass with Roux-en-y gastrojejunostomy," Petitioner, Exhibit No. 2, p. 7, on August 23, 1988. A. L., who was anxious about the impending operation, received Valium as well as anesthesia before the procedure began.
While A. L. lay on her back anesthetized, he cut open her abdomen and partitioned her stomach with staples, thus reducing the capacity of her stomach to receive food; and joined the small, newly segregated, upper portion of her stomach directly to the small intestine. In a contemporaneous operative note, Dr. Elkadi described the procedure:
. . . . The TA 90 stapler was used
twice to proximal gastric from the proximal
apply a double staple line across the stomach to separate a small proximal pouch with a capacity of about 30 cc remaining stomach cavity. A loop of
in side using inner for was
jejunal completed. 14
the
the
jejunum was pulled up through an opening the transverse mesocolon and anastomosed to side to the proximal gastric pouch
a running suture of 3-0 chromic for the layer and interrupted 3-0 silk sutures the outer layer. A naso-gastric tube passed into the distal limb of the
loop before the anastomosis was
The gastrojejunostomy measured about 12- mm in diameter. The proximal limb of
jejunal loop was then disconnected just proximal to the gastrojejunostomy using
GIA stapler, and the cut end was
anastomosed
to the distal limb about 60 cm distal to
the also
gastrojejunostomy. The GIA stapler was used for the entero-enterostomy
supported by
a running 3-0 silk suture for the
serosal
transverse loop
layer.
The edges of the opening of the mesocolon were sutured to the jejunal
. The using a fascia, a
of
using interrupted 3-0 silk sutures. . . abdominal wall was closed in layers running suture of #1 Dexon for the
running suture of #3-0 Dexon for the subcutaneous layer, and a running suture
#3-0 Nylon for the skin. . . .
Petitioner's Exhibit No. 2. As reported and as is customary, Dr. Elkadi severed the small intestine just above the newly fashioned connection to the "small proximal gastric pouch." Because gastric juices continue to leave the distal stomach and travel through the disconnected intestinal segment, the procedure was not complete until this segment of the jejunum was rejoined to the small intestine lower down. In manipulating the jejunum to accomplish the reconnection, it was necessary to cut and tie off various blood vessels, including tributaries of the mesenteric vein.
Dr. MacGregor, one of petitioner's expert witnesses, testified that "[t]he record indicates that [the surgery] was done appropriately." T.15. On deposition, petitioner's counsel asked and Dr. MacGregor answered:
Q. It seems to be a normal surgery?
A. Right.
Q. Except for the amount of time?
A. Correct
MacGregor deposition 15. The operation took four hours. The other surgeon petitioner called as an expert testified that "probably four hours would
be a reasonable time." Corwin Deposition at 12. Petitioner produced no witness who testified that respondent's work in the operating room failed to meet standards of any kind.
Sequelae
In the wake of operations of this kind, "mortality can be as high as 2.7 to 2.9 per cent at training centers who have documented teams of specialists and post op care specialists." T.15. Complications "tend to be in two major groups . .
. pulmonary embolism and infections." Id. The "most important complication of gastric bypass surgery is perforation or leakage," (MacGregor Deposition at 16) which leads to infection.
In many hospitals, nursing administration routinely assigns a formal nursing plan for postoperative patients, after consulting with the surgeon. MacGregor Deposition at 15. But practices vary (Corwin Deposition at 13) and the omission of a formal nursing plan altogether "in and of itself . . . is not unusual," (Fitzgerald Deposition at 12) at least in smaller hospitals. No formal, written nursing or contingency plan was drawn up for A. L.
Dr. Elkadi did not originally direct care for A. L. "beyond what [staff] would normally do [for] any postoperative surgical patient." Fitzgerald Deposition at 11. A. L. left the operating room at ten before two on the afternoon of August 23, 1988. An hour and 40 minutes later, her pulse rate was 84 and her respiration was 28. Petitioner's Exhibit NO. 2.
At ten o'clock that night, her pulse was
112 and her respiration was 36; and, at or about the same time, her temperature was approximately 97.2o F. A half hour later, with Dr. Elkadi present, A. L. was standing by her bedside and taking a few steps.
The next morning she sat up, first on the side of her bed, then in a chair. At half past one on August 24, 1988, she walked to the nursing station, which she "tolerated well." But, after she returned to her bed, she complained of "surgical pain." At six o'clock that evening she walked a short distance in the hall, returned to her room, sat in a chair and, after she had gone back to bed, again complained of "surgical pain."
A chest x-ray taken the day after the operation revealed "[s]mall areas of linear atelectasis . . . in the lung bases,"
Petitioner's Exhibit No. 2, p. 43, which a radiologist attributed to A. L.'s not having taken a full breath. He found that a "full inspiration was not taken during filming," Id., and that the atelectasis was "probably for this reason." Id.
On the evening of August 24, 1988, the nursing notes reported "slight drainage of dark green fluid" from the nasogastric tube. Earlier that day, bloody drainage ("scant") was reported for what may have been the first and only time. The last entry in the nurse's notes characterized the drainage as dark brown; "scant amt greenish drainage," Petitioner's Exhibit No. 2, was reported as late as four o'clock on August 26, 1988.
Also at four o'clock on the afternoon of August 26, 1988, the nurse's notes reported, "Bowel sounds [were] audible in all 4 quadrants." Petitioner's Exhibit NO. 2. At seven o'clock that evening, according to the same source, A. L. "had small tan colored lo[ose] stool." Id. A blood specimen drawn at nine o'clock on the morning of August 26, 1988, yielded a "WBC" test result of "19.9." Id. at an unnumbered page. The white blood cell count had "c[o]me down to 11,000 on the day of [A. L.'s] admission." Petitioner's Exhibit No. 2, p. 7.
On the morning of August 25, 1988, another walk in the hall ended with A. L.'s sitting in a chair. The nurses' notes reported that she was "[t]olerating activity well." Petitioner's Exhibit No. 2. At eleven o'clock that night, "belching incessantly," she complained of back and stomach pain, and a nurse helped her take a walk. She was still up (sitting in a chair) at midnight, when a second walk resulted in "much relief in stomach." Pain and belching persisted, nevertheless, and Dr. Elkadi was called, arriving at ten before one o'clock in the early morning of August 26, 1988.
After seeing A. L., respondent ordered an enema and a dose of Vistaril. At quarter past one, she was pushing on her stomach to relieve gas pains. The nurses' notes reported that she was "extremely anxious," and Dr. Elkadi prescribed five milligrams of Valium. She continued to belch, and Dr. Elkadi was notified of her distress and anxiety at three o'clock in the morning.
After she received another five milligrams of Valium (presumably at Dr. Elkadi's behest), she fell asleep. At 5:20 that morning, she was given a third five milligram dose of Valium, and at seven o'clock three milligrams more. In each instance, it was administered intravenously by "slow push."
Awake by seven, when she complained of abdominal pain, she was given two milligrams of Levodromoran, after walking to and from the nursing station. When the respiratory therapist saw her at nine o'clock, she was sitting in a chair, again complaining of abdominal pain. But an hour later, when she went to the shower, she said she had less gas pain. That afternoon, she rested in bed, sat in a chair, and walked in the hall.
The day after the operation, A. L.'s temperature had risen to 100.5o F., and her pulse had reached 128. When her pulse declined on the following day, August 25, 1988, her temperature remained elevated. On August 26, however, her temperature dropped to normal and her pulse leveled off at the low to mid 90s.
On August 23, 1988, the day of the surgery, and again on each of the two following days, Dr. Elkadi ordered extra intravenous fluids.
On more than one occasion, the nurse's notes reported that intravenous solution was infusing with difficulty, or words to that effect. While a 1500-milliliter per day discrepancy between fluid intake and urine output is to be expected, the discrepancy averaged some 3500 milliliters per day in A. L.'s case, following her surgery.
After surgery, she was given morphine in five-milligram doses, intravenously, as needed. The day after the operation, A. L. also received Levodromoran for pain. On August 25, 1988, although she again received both pain-killing medications, she required less morphine. On August 26, 1988, however, in response to complaints of pain, the amounts both of morphine and of Levodromoran she received increased over the previous day's totals.
Dr. Elkadi also prescribed Valium and Vistaril; and A. L. received a total of 100 milligrams of the latter, on August 26, 1988, in multiple doses. In addition, Dr. Elkadi prescribed and A. L. received Nubain, an analgesic that, according to Dr. MacGregor, "is a narcotic antagonist." Petitioner's Exhibit No. 1 to MacGregor Deposition. It is therefore possible that Nubain offset the increased dosages of narcotics in whole or in part.
The Last Day
A. L. awoke at half past six on the morning of August 27, 1988, complained of pain, and received an injection of Nubain. Only 30 minutes later, she complained of "pain between shoulders," but she received no more pain medication, according to the nurse's notes, until five after two that afternoon, when she was given an injection of five milligrams of Valium. (Twelve hours earlier, she had received ten milligrams of Valium.)
At seven o'clock on the morning of August 27, 1988, the nurse's notes again reported "good bowel sounds heard in all quad." Id. Early that afternoon, after an enema, according to the nurse's notes, "pt had good results of flatus & sm amt of lg stool." Id. At four o'clock, she "passed some flatus." Id.
At quarter of eight that morning, and again at nine, A. L. used a spirometer. Dr. Solman saw her at eight o'clock. She complained of shortness of breath at nine. A chest x-ray taken August 27, 1988, showed "areas of atelectasis in each lung base, somewhat more pronounced on the right side." Id. at 44. At three o'clock that afternoon, she was hyperventilating. When Dr. Loutfi saw her at half past three, her lungs were clear, and the X-ray taken earlier in the day had evidently not yet been seen by a radiologist.
At half past four, a nurse gave A. L. ten milligrams of Valium "for relaxation/rest," Petitioner's Exhibit No. 2, and, fifteen minutes later, a "bag to breathe in," which A. L. used for about five minutes. The nurse initialled A. L.'s chart next to a physician's order that concluded: "Valium 10 mg. IV slowly." Petitioner's Exhibit No. 2. Asked on deposition who ordered the Valium, Dr. Corwin testified:
And then it says. I can't read what it
says.
record to Loutfi
in
far as
NAR?
I don't know.
DR. ELKADI: Dr. Ludwig [sic].
BY DR. ELKADI: Q. All right. In patients having - -
MRS. SMALL: I would object for the
the questioner testifying.
Corwin Deposition at 42. Perhaps Dr. ordered the Valium. The order was not, any event, given by the respondent, as the evidence shows.
At quarter past five, the nurse "encouraged [A. L.] to slow/deep breathe." Id.
Ten minutes later she found A. L., whom she had last seen sitting on the side of her bed, sprawled across it. Cyanotic around the mouth, she was not breathing. After Drs. Loutfi and Elkadi tried in vain to resuscitate A. L., respondent pronounced her dead, at 6:30 p.m. on August 27, 1988.
Cause of Death Unclear
Each of the four physicians who testified at hearing or on deposition assigned a different reason for A. L.'s death. Dr. Elkadi reported the following in a discharge summary:
The postoperative course during the
first 4 occasional
the
blood of
be
Patient the
The was
patient was
days was uneventful except for
episodes of anxiety, usually related to incisional pain or discomfort caused by
NG-tube, and which always responded to sedation or analgesis medication. The
oxygenation was measured during several these anxiety episodes and was found to
satisfactory with 02 saturation level of 95-97% using the finger tip oxymeter.
was walking outside the room already on
first postoperative day. By the fourth postoperative day the Foley catheter was removed and she had 2 bowel movements.
incision was healing well, and the chest clear to auscultation.
On 8/27/88, about 5:20 p.m., the
suddenly arrested, and cardiopulmonary resuscitation was carried out. There
heart to
over an
The of
considerable airway resistance, and the was in asystole which failed to respond large doses of cardiac drugs. After
hour of intensive resuscitative efforts, patient was pronounced dead at 6:30 p.m.
course of events was strongly suggestive massive pulmonary embolism.
Petitioner's Exhibit No. 2. After the autopsy revealed that the only blood clots in the lungs had formed post mortem, Dr. Elkadi refined his hypothesis, and posited a fat embolus or emboli in the lungs, which, he surmised, degraded into free fatty acids before the autopsy took place, perhaps before death occurred. He testified that free fatty acids produce serotonin, which causes bronchospasms, and he cited resistance the airway offered during the unsuccessful attempt to resuscitate A. L. Ventilation and oxygenation were virtually impossible, even though the endotracheal tube was already in place.
Although Dr. Mahoney, the pathologist who performed the autopsy, found a fatty liver, he ruled out a pulmonary fat embolism because he saw no evidence of infection or trauma to the liver (which might have dislodged fat) and because examination of lung and brain tissue (a single section of each) revealed no fat globules. "No intravascular lipid vacuoles were identified in the lung." Petitioner's Exhibit No. 2. On the other hand, "[o]ccasional perivascular lipid vacuoles were seen . . . in the brain section .
. . ," Id., indicating fat cells must have passed through the lungs at some point.
The autopsy report made no mention of any mechanical blockage or of distension of any part of the gastrointestinal track. Nor was there evidence of alimentary leakage. All sutures held. "Inspection [during the autopsy] of the surgical sites where the surgeon had done anastomotic, reanastomosis of stomach and bowel .
. . [showed] these sites were intact and grossly appeared viable." T. 9.
Dr. Mahoney listed as a major finding in the autopsy report "[i]schemic enteritis with focal necrosis of the proximal jejunal segment at the entero-enterostomy junction of the Roux-en-y procedure; mesenteric vein thrombosis." Petitioner's Exhibit No. 2. But at hearing he testified, consistently with reported results of microscopic examination, that "major findings at the autopsy . . . [included] a segment of intestine, the jejunal segment, which had undergone a hemorrhagic necrosis." T. 8. Ischemic changes occur when blood supply is insufficient, while hemorrhagic changes are the result of insufficient ability to remove blood. Blood clots blocked veins serving the necrotic tissue.
At hearing, Dr. Mahoney concluded "that the most probable cause [of A. L.'s death] was this dead bowel segment essentially causing sepsis." T. 13. Microorganisms penetrating the transmural necrosis caused localized infection outside the bowel or peritonitis, he testified, which led to infection in the blood stream. Septic toxins circulating in the blood caused cardiovascular failure, he theorized. These
conclusions rest on autopsy findings of serositis and "approximately 1 liter of cloudy brown fluid with fibrin strands," (Petitioner's Exhibit No. 2) in the abdominal cavity.
But Dr. Mahoney did not find "certain types of cells" (T.94) usually found two and a half to three days after peritonitis sets in. In fact, the autopsy findings "are not unusual findings after abdominal surgery without any complication." T.130. Dr. Corwin, one of two surgeons testifying as experts for petitioner, testified that "the autopsy report . . . [contained] essentially no indication of peritonitis." Corwin Deposition at 46. In a report petitioner put in evidence, Dr. Corwin had earlier written that "there really is no evidence of peritonitis."
Dr. Corwin wrote, on June 25, 1990, after examining A. L.'s records, "In my opinion the heavy dose of intravenous Valium within the hour before the patient's sudden cardiac arrest almost certainly caused apnea, respiratory shutdown and subsequent to this, the patient suffered a cardiac arrest from which she could not be resuscitated." Petitioner's Exhibit No. 3.
Dr. Mahoney testified that the final administration of Valium "may have actually contributed to a respiratory arrest" (T.15) and so to A. L.'s death.
A. L. received her last dose of valium
45 minutes before she was last seen alive and 55 minutes before she was found dead. Dr. Corwin conceded that he had ordered Valium for patients in circumstances comparable to A. L.'s over a period of some 17 years, but always, he said, in
situations where the patient would be watched, until the effects of the drug wore off. When administered intravenously, Valium has its maximum effect within five minutes. As far as the evidence showed, A. L. did not have an adverse effect to any earlier dose of Valium.
For moderate anxiety, the Physicians' Desk Reference (1987 ed.) recommends dosages of "2 mg to 5 mg, I. M. or I. V. Repeat in 3 to 4 hours, if necessary." For severe anxiety, the same reference recommends dosages of "5 mg to 10 mg, I. M. or I. V. Repeat in 3 to 4 hours, if necessary." "Valium is indicated for the management of . . . short-term relief of the symptoms of anxiety." Respondent's Exhibit No. 2. Contraindications are "known hypersensitivity" and glaucoma.
Dr. MacGregor, the other surgeon whose opinion petitioner relied on, testified that the "fundamental cause [of A. L.'s death was hypovolemic shock . . . [shock brought on by l]ow blood volume." MacGregor Deposition at 30. When asked, Dr. MacGregor agreed that Valium "may have contributed," id. at 29, to A. L.'s death. But his principal contention was that the focal necrosis created an ileus or physiological obstruction, which caused distension of the stomach and upper gastrointestinal tract which in
turn led to a loss of fluid into the lining of the stomach and bowel and ultimately to hypovolemic shock.
Recordkeeping
Petitioner presented evidence from the same two surgeons on the question whether respondent had adequate medical records while treating A. L. In a letter attached to Dr. Corwin's deposition as an exhibit, he wrote:
Did the subject prepare and keep written medical records justifying the course of treatment of the patient, including
history,
examination and test results? The
answer to
this question is yes.
Deposition of Corwin, Petitioner's Exhibit No. 3. Dr. MacGregor testified that respondent's operative note was "inadequate in terms of . . . [d]etails of sutures and the techniques that were used . . . the instruments used . . . not the number of sutures but the type of sutures and the number of layers." Deposition of MacGregor at 12. But on cross-examination, Dr. MacGregor conceded that "similar operative notes [are] found in many other surgeons' records." Deposition of MacGregor at 35. The hospital records contain a separate, presumably complete list of the surgical instruments Dr. Elkadi used.
Although Dr. Elkadi ordered arterial blood gas evaluations, and blood tests specifically to determine oxygen saturation, results of these tests are not in the hospital records, insofar as the hearing officer could discover. Dr. MacGregor testified the results were not in the copy of the records he was furnished. He testified:
I think a blood gas was obtained but
it's not two helpful normal
in the records; and oxygen saturation on occasions. . . . [T]hey would be quite because they might well indicate fairly
levels in a patient who has a rapid respiratory rate . . .
Deposition of MacGregor at 24. Dr. MacGregor testified that he "would have thought that [it] would have been standard hospital procedure for whoever obtained those, to have recorded them in the record." Deposition of MacGregor at 25.
CONCLUSIONS OF LAW
Since the Department of Professional Regulation referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989).
License revocation proceedings have been said to be "'penal' in nature." State ex rel.
Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida
Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980).
Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d
292 (Fla. 1987). See Addington vs. Texas, 441
U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.
With regard to disciplinary action short of revocation or suspension, however, petitioner need only prove allegations sufficient to justify the discipline by a preponderance of the evidence. Section 458.331(3), Florida Statutes (1989) so provides.
Petitioner has undertaken to prove violations of the practice act, which includes among grounds for disciplinary action the following:
records the
test of
the level
similar similar
(m) Falling to keep written medical justifying the course of treatment of
patient, including, but not limited to, patient histories; examination results;
results; records of drugs prescribed, dispensed or administered; and reports
consultations and hospitalizations.
. . .
(t) Gross or repeated malpractice or
failure to practice medicine with that
of care, skill, and treatment which is recognized by a reasonably prudent
physician as being acceptable under
conditions and circumstances. The board shall give great weight to the
provisions of
s 766.102 when enforcing this paragraph.
As
used in this paragraph, "repeated
malpractice"
includes, but it is not limited to,
three or
more claims for medical malpractice
within the
previous 5-year period resulting in
$10,000
used
or "the level
similar similar be
this that
this
indemnities being paid in excess of
each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As
in this paragraph, "gross malpractice" failure to practice medicine with that
of care, skill, and treatment which is recognized by a reasonably prudent
physician as being acceptable under conditions and circumstances," shall not
construed so as to require more than one instance, event, or act. Nothing in
paragraph shall be construed to require
a physician be incompetent to practice medicine in order to be disciplined to
paragraph.
The administrative complaint alleges that respondent violated Section 458.331(m), Florida Statutes (1989), by keeping inadequate records.
But testimony that respondent's operative note was insufficiently detailed was unconvincing, as was the same witness's testimony that respondent should be faulted for the absence of arterial blood gas test results in the hospital chart. Petitioner produced another expert, moreover, who expressed the view that respondent's
medical records were satisfactory. Petitioner's own evidence on this allegation was contradictory, and the weight of the evidence did not establish the violation.
Petitioner also alleged that respondent committed gross malpractice in executing the surgical procedure he performed on A. L., in failing to diagnose her peritonitis, and in prescribing Valium. In this connection, the practice act requires that "great weight" be given to the provisions of Section 766.102, Florida Statutes (1989), which states:
Medical negligence; standards of
recovery. damages any
death of a shall greater actions a
provider. care
In any action for recovery of based on the death or personal injury of person in which it is alleged that such or injury resulted from the negligence health care provider . . . the claimant have the burden of proving by the
weight of evidence that the alleged
of the health care provider represented
breach of the prevailing professional standard of care for that health care
The prevailing professional standard of
be that which, in
acceptable similar
whose the
for a given health care provider shall level of care, skill, and treatment
light of all relevant surrounding circumstances, is recognized as
and appropriate by reasonably prudent health care providers.
(2)(a) If the health care provider
negligence is claimed to have created
cause of action is not certified by the appropriate American board as being a specialist, is not trained and
experienced in
a medical specialty, or does not hold
himself care
regulatory same medical
the
out as a specialist, a "similar health provider" is one who:
Is licensed by the appropriate
agency of this state;
Is trained and experienced in the
discipline or school of practice; and
Practices in the same or similar
community.
If the health care provider whose negligence is claimed to have created
cause of action is certified by the appropriate American board as a
specialist,
provider" same American
described or
within the condition care
is to for of
pursuant provider
is trained and experienced in a medical specialty, or holds himself out as a specialist, a "similar health care
is one who:
Is trained and experienced in the
specialty; and
Is certified by the appropriate
board in the same specialty.
However, if any health care provider
in this paragraph is providing treatment diagnosis for a condition which is not his specialty, a specialist trained in treatment or diagnosis for that
shall be considered a "similar health
provider."
The purpose of this subsection establish a relative standard of care various categories and classifications
health care providers. Any health care provider may testify as an expert in any action if he:
Is a similar health care provider
to paragraph (a) or paragraph (b); or
Is not a similar health care
pursuant to paragraph (a) or paragraph
(b)
but, to the satisfaction of the court, possesses sufficient training,
experience,
and knowledge as a result of practice or teaching in a related field of medicine,
so
as to be able to provide such expert
testimony
as to the prevailing professional
standard of
care in a given field of medicine. Such training, experience, or knowledge must
be as
the the rise
have
prove was not
a result of the active involvement in practice or teaching of medicine within 5-year period before the incident giving to the claim.
(3)(a) If the injury is claimed to
resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to
a breach of the prevailing professional standard of care, show that the injury
within the necessary or reasonably
foreseeable
results of the surgical, medicinal, or diagnostic procedure constituting the
medical
intervention, if the intervention from
which
was prevailing reasonably
shall was the
the injury is alleged to have resulted carried out in accordance with the professional standard of care by a
prudent similar health care provider.
(b) The provisions of this subsection apply only when the medical intervention undertaken with the informed consent of
patient in compliance with the
provisions of
s. 766.103.
The existence of a medical injury
shall of
not create any inference or presumption negligence against a health care
provider, and
the claimant must maintain the burden of proving that an injury was proximately
caused
by a breach of the prevailing
professional
standard of care by the health care
provider. of a forceps,
or facie
However, the discovery of the presence foreign body, such as a sponge, clamp,
surgical needle, or other paraphernalia commonly used in surgical examination,
diagnostic procedures, shall be prima
the
and the diagnosis, different
or shall
provider for care.
evidence of negligence on the part of
health care provider.
The Legislature is cognizant of the changing trends and techniques for the delivery of health care in this state
discretion that is inherent in the care, and treatment of patients by
health care providers. The failure of a health care provider to order, perform,
administer supplemental diagnostic tests not be actionable if the health care acted in good faith and with due regard the prevailing professional standard of
In its proposed recommended order, petitioner alleges that respondent was also guilty of malpractice in performing surgery on A. L. "at a facility such as this, with no [written] contingency plans for post-operative emergencies, and without the availability of specialists and diagnostic equipment." At p. 9. But due process forbids disciplinary action predicated on facts not pleaded in the administrative complaint. Wray
v. Department of Professional Regulation, 435 So.2d 312 (Fla. 1st DCA 1983).
Petitioner failed to prove malpractice in the execution of the surgical procedure. Even though the procedure is the most likely
explanation for the focal hemorrhagic necrosis of the jejunum, the mere "existence of a medical injury shall not create any inference or presumption of negligence." Section 766.102(4), Florida Statutes (1989). The pathologist whose complaint to the Department of Professional Regulation resulted in these proceedings did not testify at hearing that the operation had been performed improperly or, indeed, that he was qualified to offer an opinion. Neither surgeon testifying for petition found fault with the way the operation was performed.
Petitioner alleged malpractice for failure to diagnose peritonitis but did not allege an ileus or failure to diagnose an ileus. The evidence did not establish that A. L.'s clinical course should have led a practitioner to diagnose peritonitis. Evidence that generalized peritonitis ever existed was problematic, although the necrosis would presumably have resulted in such infection, if A. L. had lived. The autopsy report, which one of petitioner's experts testified contained "essentially no indication of peritonitis," conclusively ruled out the possibility that peritonitis could have persisted for as long as two and a half to three days. Petitioner did not prove that respondent was guilty of gross or repeated malpractice in failing to diagnose peritonitis.
The evidence clearly and convincingly established that Valium was an inappropriate response to A. L.'s respiratory distress. But the administrative complaint charges something else:
Approximately one hour prior to
the
[sic] #1 which
in arrest
caused the
respiratory arrest, and pursuant to Respondent's orders, patient patient
was administered intravenous valium caused her to be over sedated.
The over sedation of patient #1
conjunction with the underlying sepsis, culminated in hypoxemia, respiratory
and death.
Respondent was guilty of gross or repeated malpractice . . . in that he
the aforesaid problems which resulted in death of patient #1.
The administrative complaint does not call into question the propriety of any administration of Valium other than the last. See Wray v.
Department of Professional Regulation, 435 So.2d
312 (Fla. 1st DCA 1983). The proof was unclear about who prescribed the final dose and did not,
in any event, show that respondent did. Nor did the evidence establish that Valium caused A. L.'s death.
It is, accordingly, RECOMMENDED:
That petitioner dismiss the administrative complaint against respondent.
DONE and ENTERED this 25th day of January, 1991, in Tallahassee, Florida.
Administrative Hearings
1550
the
Administrative Hearings 1991.
ROBERT T. BENTON, II
Hearing Officer Division of
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, FL 32399-
(904) 488-9675
Filed with the Clerk of Division of
this 28th day of January,
APPENDIX TO RECOMMENDED ORDER
Petitioner's proposed findings of fact Nos. 1 through 7, 12, 14, 15, 16, 18, 20, 21, 22 and 28
have been adopted, in substance, insofar as material.
With respect to petitioner's proposed findings of fact Nos. 8 and 9, see paragraphs 11 through 28 of the findings of fact.
With respect to petitioner's proposed findings fact No. 10, the record showed dosages, before the final dose, of five, five, five, three, ten and five milligrams.
With respect to petitioner's proposed finding of fact No. 11, some tests were done; others were not.
Petitioner's proposed findings of fact Nos.
13, 19, 23, 24, and 26 pertain to subordinate matters.
With respect to petitioner's proposed findings of fact Nos. 17 and 25, the cause of death was not clear.
Petitioner's proposed findings of fact Nos.
27 and 29 were not proven.
Petitioner's proposed findings of fact No. 31 is immaterial.
Respondent's proposed findings of fact Nos. 1, 2 and 3 in Part 1 and 3 in Part 2, have been accepted, in substance, insofar as material.
With respect to respondent's proposed finding of fact No. 4 in Part 1 and No. 10 in Part 3, these matters are not material to the allegations of the administrative complaint.
With respect to respondent's proposed finding of fact No. 5 in Part 1 and Part 2, the cause of death is unclear.
With respect to respondent's proposed findings of fact Nos. 1, 2 and 8 in Part 3, see findings of fact Nos. 11 through 28.
With respect to respondent's proposed finding of fact No. 4 in Part 3, the autopsy report does not reflect this but he so testified at hearing.
Respondent's proposed findings of fact Nos.
5, 6, 7 and 9 pertain to subordinate matters.
COPIES FURNISHED:
Wellington H. Meffert, II, Esquire Department of Professional Regulation 1940 North Monroe Street
Tallahassee, FL 32399-0792
Ahmed Elkadi, M.D.
236 S. Tyndall Parkway Panama City, FL 32404
Jack McRay, General Counsel
Department of Professional Regulation
1940 North Monroe Street Tallahassee, FL 32399-0792
Dorothy Faircloth Executive Director Board of Medicine
1940 North Monroe Street Tallahassee, FL 32399-0792
| Issue Date | Proceedings |
|---|---|
| Jan. 25, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 26, 1991 | Agency Final Order | |
| Jan. 25, 1991 | Recommended Order | Surgeon's failure to diagnose post-op peritonitis not proven malpractice. Unless pleaded, proof of violation is no basis for disciplinary action. |
