STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-7029

)

KEITH N. MARSHALL, D.O. )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on March 7, 1991 in Ormond Beach, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Francesca Small

Senior Medical Attorney

Department of Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Morton Morris, Esquire, and

Steven Ballinger, Esquire Suite 212

2500 Hollywood Boulevard

Hollywood, Florida 33020 STATEMENT OF THE ISSUE(S)

Petitioner's two-count Administrative Complaint charges Respondent with a violation of Section 459.015(1)(y) F.S. [1987] 1/ failure to practice osteopathic 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, and with a violation of Section 459.015(1)(p) F.S. [1987] /2, failure to keep medical records justifying the course of treatment.

PRELIMINARY STATEMENT

The parties' Prehearing Stipulation was admitted in evidence as Joint Exhibit A.

Petitioner presented the oral testimony of Wesley Gordon Starr, R.P.T., and presented the testimony of Joseph Rosin, D.O., (with exhibits), and the testimony of Carey Counihan Beninger, R.N., (with exhibits) by depositions taken

to perpetuate testimony. Petitioner offered two other exhibits into evidence. All four exhibits were admitted in evidence.

Respondent presented the oral testimony of Josephine A. Christnagel, R.T., Michael E. Danzig, D.O., Gloria H. Mikula, M.D., Perry Dworkin, D.O., and Dennis

J. O'Leary, D.O. Respondent testified on his own behalf.

At the close of Petitioner's case-in-chief, the Respondent moved to dismiss the charge regarding medical records. This motion was taken under advisement for resolution within this recommended order.

A transcript was filed in due course, as were the parties' respective proposed recommended orders, the proposed findings of fact of which have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. At all times material, Respondent was licensed as an osteopathic physician in the state of Florida, having been issued license number 050004170. Respondent practices in the field of general surgery, and at all times material to this action, Respondent was on staff as Chief of Surgery at the University Hospital, Holly Hill, Florida.

   
   

2. The incident which gave rise to the charges herein arose on August 5, 1987 when Respondent inserted a chest tube into patient W.T.'s right chest wall so as to relieve a pneumothorax which had actually occurred in W.T.'s left lung. A pneumothorax is a pocket of air in the cavity surrounding the lung which causes the lung to contract upon itself.

   
   

3. At all times material, Patient W.T. had a subcutaneous pacemaker on the left side of her chest. However, the evidence from all credible witnesses is consistent that pacemakers are routinely placed on either the right or left side and that there is no reasonable medical presumption that pacemakers are always placed in someone's left chest area. The subcutaneous pacemaker did not enter significantly into W.T.'s case management at University Hospital. It operated on "automatic" and since it did its job, none of the University Hospital physicians involved in W.T.'s care paid much attention to it.

   
   

4. W.T. was admitted to University Hospital for treatment of a drug overdose on July 9, 1987. As a part of her treatment, an Ewald tube was inserted into her stomach by a physician other than the Respondent. Patient

   W.T. was discharged from the hospital on July 18, 1987 with a portion of the tube inadvertently left in her stomach and her esophagus.

   
   

5. On July 21, 1987, W.T. was readmitted to University Hospital. She was suffering from septicemia and bilateral pneumonia. X-rays revealed that a portion of the tubing had not been removed. This tubing was removed by the Respondent via successful gastroesophagoscopy on July 23, 1987.

   
   

6. At Respondent's order, W.T. was placed in the Intensive Care Unit (ICU) following the removal of the tube. Dr. Desai was called in as a pulmonologist.

   
   

7. When W.T. had been admitted to University Hospital on July 21, 1987, she already had been in a "guarded" condition. Despite successful removal of the Ewald tube, W.T.'s overall condition continued to deteriorate. Prior to the night of August 4, 1987, W.T. had developed adult respiratory distress syndrome

   (ARDS) which involves a breakdown in the capillary barriers within the lung itself, resulting in a diffuse leakage of fluid throughout all of the air space of the patient's lung.

   
   

8. Because of the patient's serious lung condition, Dr. Desai placed her on a volume respirator, and the respirator pressure (PEEP) was progressively increased during her admission until it was set at 20 PEEP at the time of the incident. Twenty PEEP is an unusually high level of respirator pressure which was necessary in this case because of the patient's severe lung problem. The volume respirator essentially breathed for the patient and involved a tube being secured in her mouth. Often, between her admission to the ICU and the date of the incident, W.T. had torn the respirator tube out of her mouth, so she had been continuously restrained and sedated to keep this from happening again.

   Each time W.T. had extubated herself she had been "blue coded," meaning she had suffered either cardiac arrest or shock.

   
   

9. Whether or not W.T. weighed between 225 and 250 pounds or weighed 350- plus pounds cannot be determined with any reasonable degree of accuracy since there is equally credible evidence over the entire foregoing range of poundage. It is material, however, that by all accounts of all witnesses, W.T. was markedly and grossly obese to the extent that her size, shape, and weight contributed to her several health problems and rendered her a patient more difficult to diagnose, more difficult to x-ray, more difficult to move, and more difficult to nurse and medically attend than she would have been otherwise.

   
   

10. The evidence as to whether W.T.'s obesity impeded medical personnel from correctly interpreting her breath sounds on August 5, 1987, the date of the incident, is divided, as is the evidence as to whether or not on that date W.T.'s pacemaker was visible to the naked eye, but upon the greater weight of the credible evidence as a whole, it is found that on August 5, 1987, W.T.'s obesity, generally deteriorated condition, and left pneumothorax rendered the presence, volume, and location of breath in each lung subject to interpretation and "judgment call," and that unless one were specifically looking and feeling for a pacemaker, one would not necessarily have been able to detect the pacemaker in W.T.'s left chest due to the extraordinarily heavy pad of fat and the absence of scarring in that location. The foregoing finding of fact has been reached because with the exception of the complaining witness, Nurse Counihan, all factual witnesses either testified that they did not notice a pacemaker scar or they specifically noticed there was no scarring on W.T.'s chest. Also, with regard to breath sounds, both Mr. Starr and Respondent listened for W.T.'s breath sounds on the morning of the incident and within a very few minutes of each other. Mr. Starr described W.T.'s breath sounds when he entered her room as decreased on the right and absent on the left. His findings were consistent with a left pneumothorax but he never informed Respondent what he had found. Respondent arrived only a few minutes later and could not get any breath sounds from either side. Dr. O'Leary, accepted as an expert in pulmonology and the insertion of chest tubes, opined persuasively that one could not rely on breath sounds to locate which side the pneumothorax was on in the face of a recent x-ray. Also, the use of the respirator could have been misleading to either or both Mr. Starr or Respondent.

    
    

11. X-rays taken of W.T.'s chest at least ten times between July 23, 1987 and July 31, 1987 clearly depict that the pacemaker was on the left side of W.T.'s chest. These x-rays were reviewed by Respondent with a radiologist the day before the events which are the focus of these charges took place. The radiology reports of W.T.'s chest x-rays dated July 25, 1987, July 28, 1987, and July 31, 1987 specifically mention the pacemaker but only the report dated July

    28, 1987 states that the pacemaker overlies the left thorax. Respondent did not review any narrative reports when he and the radiologist were reviewing the actual x-rays together. There is no evidence that this procedure was outside the appropriate standard of care. Dr. Dworkin, expert in radiology and quality assurance and review, Dr. O'Leary, and Dr. Rosin, Petitioner's internal medicine expert, all testified that it is not below the professional standard of care for a treating physician to forget within a day after such an x-ray review which side a pacemaker is on unless the pacemaker enters significantly into his treatment of the patient, which in this case it did not.

    
    

12. By the early morning hours of August 5, 1987, W.T. had become even more critically ill with multiple system failures, including a failure in the cardiopulmonary systems, a neurological deficit, and failure of her renal functions. The mortality rate of a patient suffering from ARDS, without considering the other conditions from which W.T. was suffering, exceeds 50%, and responsible medical retrospective estimates made at formal hearing of W.T.'s specific survival chances in the early morning hours of August 5, 1987 fall in the 10-50% range.

    
    

13. During the early morning hours of August 5, 1987, the nurses on duty in ICU were having trouble maintaining W.T.'s blood pressure. They began telephoning Dr. Desai and Respondent at approximately 4:00 a.m. One of those doctors, most probably Dr. Desai, ordered a portable chest x-ray of W.T., which was accomplished at 6:30 a.m. by Josephine Christnagel, R.T., who is a registered x-ray technologist.

    
    

14. At the time this x-ray was performed, W.T. was already in critical condition and could not speak or respond. W.T.'s condition was such that she probably was not salvageable when Respondent arrived on the scene at 7:00 a.m. on August 5, 1987.

    
    

15. Unbeknownst to anyone at this point in time, the 6:30 a.m. x-ray had been inadvertently mislabeled by Ms. Christnagel so that the left side of the patient's chest appeared on the x-ray with a lead marker, "R" (for "right") , on it. This chest x-ray revealed that W.T. had a pneumothorax, and because it was mislabeled, the pneumothorax appeared to be on the right side.

    
    

16. If a chest tube is properly inserted from the outside chest wall on the side of the pneumothorax, into the chest cavity, the air can be released and the lung can re-expand, delivering oxygen to the patient and raising blood pressure to normal.

    
    

17. At all times material on August 4-5, 1987, the ranking ICU nurse on W.T.'s case was Carey Beninger ne' Counihan, R.N.

    
    

18. The ICU nurses notified Dr. Desai by phone of the pneumothorax and he, in turn, notified Respondent. Because Respondent was more nearly ready to go to the hospital, Respondent rushed to the hospital to insert a chest tube into W.T., treatment which he and Dr. Desai, the attending pulmonologist, had agreed was the appropriate treatment for W.T.'s pneumothorax. For the reasons given infra with regard to the time the nurses' notes were compiled and Nurse Counihan's confusion over the x-ray itself, the evidence is not clear and convincing that Respondent was ever told by Dr. Desai or by the nurses by phone that the pneumothorax was on W.T.'s left side (the correct side). Even if Respondent had been so informed by Dr. Desai, since Dr. Desai had never seen the x-ray, it still would have been appropriate for Respondent to rely on the x-ray

    itself once he got to the hospital, unless at the hospital, something or someone clearly alerted him to the fact that the pneumothorax was actually on the left side.

    
    

19. At approximately 7:00 a.m., just prior to the arrival of Respondent, Dr. Michael Danzig, D.O., who was the day-shift emergency room doctor, and Wesley Starr, R.P.T., a respiratory therapist, arrived at ICU and entered W.T.'s room. At approximately the time they arrived, the night-shift emergency room doctor, Dr. Haas, left the room. By all accounts, there was a continuing "commotion," a "ruckus," or "an emergency situation" in progress with at least two nurses, including Nurse Counihan, and other personnel providing various therapies to W.T. who had no palpable blood pressure and was in shock. This atmosphere continued after Respondent arrived shortly thereafter, with the nurses' and Mr. Starr's attention directed to care of the patient. When Respondent arrived, Dr. Danzig became, essentially, an observer.

    
    

20. Upon arrival at W.T.'s room, Respondent examined the 6:30 a.m. x-ray against a window with daylight showing through. The x-ray, as it was mismarked, showed a massive tension pneumothorax on W.T.'s right side and a pacemaker on the same side, the right.

    
    

21. After review of the x-ray, Respondent examined W.T., including listening for breath sounds. He heard nothing significant from either lung. Dr. O'Leary's opinion that such a finding was not unusual and that Respondent could not rely on either his own examination of breath sounds or that of Mr. Starr (had he even known of Mr. Starr's hearing breath sounds on the right but not the left) at that point is persuasive. Under these circumstances, breath sounds would not have alerted Respondent to a mislabeled x-ray.

    
    

22. Respondent relied on the mislabeled x-ray and began to prep the right side of the patient for the chest tube.

    
    

23. As Respondent began to prep W.T.'s right side, a dispute arose between himself and Nurse Counihan. Having weighed and evaluated all the testimony and the documentary evidence and exhibits, having reconciled that evidence which can be reconciled, and having eliminated that evidence which is not credible, it is found that the most credible version of this dispute is that Nurse Counihan asked Respondent why he was prepping the right side if W.T. had a left pneumothorax, and Respondent replied, "No, it isn't. Look at the x-ray." To this, Nurse Counihan said, "Yes, it is. I'm sure of it," and pointed to the lung on the x-ray which did not show a pneumothorax (the side next to the nameplate and the side without either a pacemaker or a pneumothorax).

    Respondent said, "No, it isn't. Look at the damn x-ray!" Respondent then proceeded to intubate on the right side while referring frequently to the mislabeled x-ray.

    
    

24. In making the foregoing finding, it is noted that there were significant differences between the testimony of Nurse Counihan and all other witnesses, both factual and expert. Nurse Counihan deposed/testified that both she and another nurse had pointed out to Respondent that the patient's pacemaker was on the patient's left side and so was the pneumothorax. The other three factual witnesses, Starr, Danzig, and Respondent, all testified that they have no recollection whatsoever of anyone mentioning a pacemaker. Even Wesley Starr, called by the Petitioner, and who was present in W.T.'s room at the head of the patient's bed throughout the time of these discussions, testified that, to the best of his recollection, no one mentioned a pacemaker and that he did not recall anyone except Nurse Counihan challenging the Respondent's prepping W.T.'s

    right side. Also, Dr. Danzig, who was present in the room during the argument, and who testified that he had placed over 200 chest tubes during the course of his medical residency training, testified that if Nurse Counihan had, indeed, mentioned a pacemaker, he would have intervened in order to assist Respondent in determining the correct side of the pneumothorax. Although Petitioner asserted that Dr. Danzig is not credible due to his friendship with Respondent, that argument is not persuasive both due to the remoteness and degree of the friendship and Dr. Danzig's insistence that if Respondent should say that Nurse Counihan pointed to the side of the x-ray showing the pacemaker, then Respondent would be wrong.

    
    

25. Respondent apparently did not review W.T.'s records either before or after the dispute with Nurse Counihan. These records were either in her room or elsewhere in the ICU unit, but since, at that point, the nurses' notes had not been compiled from their scratch pads to the patient's chart since before 4:00 a.m., there was nothing in W.T.'s chart/records to alert Respondent that the x- ray was mislabeled or that the patient had a pneumothorax on the left side even if he had reviewed the record. Also, he would have had to go back to the July

    31 x-ray or the July 28 radiology narrative before he could have discovered that the pacemaker was on the left. This would have been very time consuming. Also, Dr. Danzig, who actually had made a cursory review of the patient's records when he first arrived in the room, was not alerted by Nurse Counihan's words or her pointing to the x-ray to any reason to search the records for information about the pacemaker.

    
    

26. In further assessing Nurse Counihan's testimony, the undersigned has weighed in her favor the consistency of her recent deposition testimony with her notes and the incident report which she completed within five hours after the intubation incident on August 5, 1987. However, weighing against her credibility with regard to her statements then and now that she told Respondent that the pacemaker was on W.T.'s left side is the fact that even her August 5, 1987 report and notes were prepared in the glow of a hindsight favorable to her position and that her deposition shows that she is confused about how a pneumothorax appears on an x-ray. Reconciling all the testimony one can, it is remotely possible that Nurse Counihan said, "It is a left pneumothorax," while pointing to the lung shown on the x-ray as not having a pneumothorax and which, due to the "R" marker on the other lung could be inferred to be the left lung. It is even remotely possible (although not probable or persuasive given the three other factual witnesses' testimony that she had never mentioned a pacemaker) that Nurse Counihan could have told the Respondent, "The pneumothorax is on the same side as the pacemaker," which also was consistent with the x-ray as mislabeled. However, upon the credible evidence as a whole, the only reasonable conclusion is that if Nurse Counihan did mention a pacemaker at the time of her dispute with Respondent, she was ineffective in clearly conveying to Respondent or to anyone else in the room that the pacemaker and the pneumothorax were on the patient's left side or that there was any reason to further search the records or the patient's body to resolve the dispute.

    
    

27. It is uncontroverted that, prior to the insertion of the chest tube in W.T.'s right side, absolutely no one, including Nurse Counihan, was aware that the x-ray was reversed, and that Ms. Counihan never informed the Respondent that the x-ray was reversed.

    
    

28. Respondent's testimony is accepted that upon placement of the chest tube in W.T.'s right side (the side without the pneumothorax) he heard an immediate audible gush of air. That others in the room did not hear this rush of air is understandable due to the noise and confusion in the room,

    particularly the respirator sounds. Also, it is uncontroverted that upon placement of the chest tube in W.T.'s right side, the patient's blood pressure, which had been zero, immediately rose into normal range. A dramatic and rapid reestablishment of the patient's blood pressure is the expected result of a proper placement of a chest tube with a tension pneumothorax. All health care personnel present seem to have regarded the blood pressure stabilization as proof that the Respondent had placed the chest tube on the correct side of the patient, because no one, including Nurse Counihan, thereafter protested that a misplacement had occurred.

    
    

29. Release of pressure and a return in blood pressure is not normally associated with placement of a chest tube in the wrong side of a patient and there is no definitive medical explanation of why it occurred in this instance, despite Dr. O'Leary's speculation that the gush of air could have been a leak of air across the Mediastrum.

    
    

30. After placement of the chest tube in the patient's right side, Respondent ordered an immediate repeat chest x-ray to be certain the tube was placed in the correct lung and was placed correctly.

    
    

31. After the patient's blood pressure had been reestablished, Dr. Danzig left the intensive care unit because he believed that the pneumothorax had been relieved completely and because the patient was now stable. If W.T. had not been stable, Dr. Danzig would have remained in the room since he was the day- shift emergency room doctor and he did not know if any physicians other than Respondent and himself were even in the hospital yet.

    
    

32. After securing the chest tube and dressing the chest, Respondent left the floor and went to the operating room (OR) to notify the OR staff that there would be a delay before he could begin previously scheduled surgery. Thereafter, on his way to check the new x-ray he had just ordered, Respondent met Ms. Christnagel, who was bringing it to him. Ms. Christnagel then informed Respondent that she had mislabeled the 6:30 a.m. preintubation x-ray. Respondent simultaneously reviewed the new, postintubation x-ray and discovered that he had placed the chest tube in the wrong side of W.T.'s chest. At approximately the same time, W.T.'s blood pressure again dropped and a "code blue" was called.

    
    

33. Dr. Gloria Mikula, M.D., who happened to be in the ICU at the time

    W.T. coded, "ran the code" to attempt to reestablish the patient's blood pressure. Throughout the time in which Dr. Mikula was running the code on this patient, no one, including Nurse Counihan, said anything to the effect that W.T. may have had a chest tube placed in the wrong side. In fact, the nursing staff did not even inform Dr. Mikula that this patient had had a pneumothorax and chest tube insertion prior to the code being called. Such information would have been important from a medical standpoint because it would have allowed Dr. Mikula to act immediately to relieve the tension in the patient's chest.

    
    

34. Immediately upon reviewing the repeat chest x-ray and upon hearing the announcement of the code blue at the same time, Respondent rushed back to W.T.'s room, placed a chest tube in the patient's left side, and the patient's blood pressure was again reestablished. However, some time later in her hospitalization, W.T. expired.

    
    

35. Nurse Counihan's failure to say anything to Dr. Mikula about the pneumothorax is further indicative of her immediate satisfaction that Respondent's intubation on the right side had been acceptable and that it was

    only after he discovered his error through the new x-ray and correctly intubated

    W.T. on the left side that Nurse Counihan completed her notes and incident report describing his error for the chart. The notes were transposed from her scratch pad and memory at approximately noon, August 5, 1987.

    
    

36. Dr. Rosin, Petitioner's expert in internal medicine, criticized Respondent's performance as below the professional standard of care because he felt that once Respondent was made aware in the patient's room by Nurse Counihan that the pneumothorax could be on the patient's left side, Respondent had an obligation to make further inquiry or investigation before inserting the chest tube in the patient's right side. In Dr. Rosin's opinion, Respondent's investigation could have taken several routes: review of earlier x-rays and the patient's record, further conversation with the nurse, further hands-on examination of the patient for signs of the pacemaker, and/or ordering a new x- ray.

    
    

37. Although Dr. Rosin testified that Respondent should have ordered a repeat x-ray so as to resolve the dispute with Nurse Counihan before inserting the chest tube on W.T.'s right side, he also conceded that the only possible adverse effect of the decision Respondent made was the delay in relieving W.T.'s condition. The chest intubation involved is not a benign or casual procedure, but no actual harm occasioned by misplacement of the chest tube was demonstrated in this case, and the maximum amount of time which would have been saved, under Dr. Rosin's approach, would have been that short period of time it took for the Respondent to place the chest tube and dress the wound. Under the circumstances, if Respondent had delayed intubation, W.T. would probably have "coded blue" before the correctly labelled chest x-ray could have been performed anyway. In light of the confused state of the patient's breath sounds, obesity, and lack of scarring, the fact that no nurses' notes had been codified since before 4:00 a.m., Nurse Counihan's own confusion about the mismarked x-ray, and how far back in the patient's chart Respondent would have had to look before he would have been able to locate anything useful about the pacemaker, it is found that Respondent behaved reasonably in an emergency situation, and Dr. O'Leary's and Dr. Dworkin's expert opinions that he did not violate the professional standard of care in the first insertion of the chest tube are accepted.

    
    

38. It is also found that the Respondent's procedure in ordering the new chest x-ray and leaving the room after the first intubation without further search of the records or further conversation in the room was reasonable and appropriate under the circumstances.

    
    

    CONCLUSIONS OF LAW

    
    

39. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

40. Respondent's motion to dismiss the medical records charge is well- taken and should be granted. The count alleging a violation of Section 459.015(1)(p) F.S. [1987] has not been supported by competent substantial evidence. Petitioner only argued that because the patient's records did not reflect a right pneumothorax and Respondent treated W.T. for a right pneumothorax, the medical records did not justify Respondent's course of treatment of W.T. Since there is no suggestion that Respondent's preprocedure or postprocedure records are anything but thorough and accurate, to find Respondent guilty of a violation of Section 459.015(1)(p) F.S. because of a mislabeled x-ray he did not label or because he simply performed the wrong

    emergency procedure without referral to all the correct medical records would be the equivalent of punishing him twice for the single act of a mistaken, wrong procedure.

    
    

41. Respondent also is not guilty of violating Section 459.015(1)(y) F.S. [1987], failure to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions. Therefore, the medical records charge could not have been sustained even if the motion to dismiss were not well taken for the reasons given supra.

    
    

42. The overwhelming evidence in this case is that on August 5, 1987, W.T. had less than a 50% chance of survival regardless of what procedure Respondent followed. He admittedly performed the right procedure on the wrong side of the patient, which in this case is regrettable but understandable. In so doing, he relied on a mismarked x-ray, which in itself is not below the acceptable standard for the practice of osteopathy. Indeed, all the witnesses seem to have concurred in at least one thing: that mismarked x-rays are a fact of life. Where the witnesses disagree is in how much further investigation of the patient and her charts/records was required because of Nurse Counihan's alerting Respondent to a potential problem with the x-ray.

    
    

43. The evidence is neither clear and convincing nor competent or substantial that Nurse Counihan alerted Respondent that the pneumothorax and the pacemaker were on the patient's left side. Had she done so, further visual search and feeling of Petitioner's body to locate the pacemaker or further perusal of earlier, correctly marked x-rays and diagnostic imaging narratives would certainly have been in order if time had not been of the essence. Here, Nurse Counihan gave a confusing and inconclusive alert, and the emergency situation which Respondent was faced with was such that time was of the essence. Under these circumstances, Respondent made a reasonable and appropriate professional decision which balanced a procedure of low patient risk against a potential for immediate and essential patient relief.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Physicians enter a Final Order dismissing all charges against Respondent.

DONE and ENTERED this 25th day of July, 1991, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 25th day of July, 1991.

ENDNOTES

1/ Formerly Section 459.016(1)(t) F.S. 2/ Formerly Section 459.015(1)(n) F.S.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-7029

The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF):

Petitioner's PFOF:

1-6 Accepted.

7 Rejected as contrary to the greater weight of the credible record evidence. 8-10 Accepted.

1. Accepted in part and rejected in part as not supported or clear on the record. See FOF 25.

2. Accepted except for unnecessary, subordinate, or cumulative material. 13-14 Accepted.

15 Accepted in part and rejected in part as not supported or clear on the record. See FOF 13 and 15.

16-17 Accepted except for unnecessary, subordinate, or cumulative material and legal argument.

18 Accepted except for that which is not supported by the greater weight of the credible record evidence. See FOF 10, 20-21.

19-20 Rejected as not supported by the credible record evidence as a whole. See FOF 11, 23-26, 36-37.

1. Rejected as not supported by the credible record evidence as a whole. See FOF 28-29.

2. Accepted that Respondent did not make further checks but the remainder is rejected as legal argument and not controlling. See FOF 25, 28-38.

3. Accepted except that the 45 minutes was never conclusively established and there is evidence that the time elapsed was considerably less. See FOF 32, 34- 38.

4. Rejected for the same reasons set out immediately above. See FOF 32, 34-38. 25-26 Rejected as immaterial, since ease and speed are not the same thing and because the greater weight of the credible record evidence supports a finding that Nurse Counihan never clearly alerted Respondent to make further investigation and neither did the postintubation circumstances. See FOF 23-38. 27-29 Rejected as legal argument and as not supported by the greater weight of the credible record evidence. See FOF 23-27, 35-38.

30 Rejected as immaterial and as legal argument. Dr. Danzig satisfactorily explained his signature and the weight assessment in the remainder of his testimony.

31-32 Rejected as legal argument and not supported by the greater weight of the credible record evidence.

33 Rejected as a conclusion of law. Petitioner submitted no evidence to support this allegation and so no finding has been made. See the Preliminary Statement and COL 2-5.

Respondent' s PFOF:

1-23 Accepted except where subordinate, unnecessary, or cumulative to the facts as found. (Footnote 1 is rejected as legal argument but the subject is covered within the Recommended Order)

24-28 Accepted in part and rejected in part upon the greater weight of the credible record evidence as a whole as set out in FOF 23-27. PFOF 27 (including footnote) and 28 are also rejected in part as legal argument.

29 Rejected as legal argument. Covered in FOF 23-27, 34- 38, and the COL.

30-45 Accepted except where subordinate, unnecessary, or cumulative to the facts as found.

1. Rejected as legal argument. Covered in FOF 23-27, 34-38, and the COL.

2. Accepted but cumulative to the facts as found.

48-49 (including footnote to 48) Accepted in part and rejected in part for the reasons set out in 9-10, 21.

1. Accepted.

2. (including footnote) Accepted in part and rejected in part upon the record evidence discussed in FOF 10, 21.

52-56 (including footnote) Accepted except where subordinate, unnecessary, or cumulative or legal argument.

57-58 Rejected as cumulative and as proposed conclusion of law. See FOF 36-38 and COL 2-5.

59-69 (including footnotes to PFOF 66-67) Accepted except where subordinate, unnecessary, or cumulative or legal argument.

70 Accepted, but because there is no evidence on this allegation, see the Preliminary Statement and COL 2-5.

COPIES FURNISHED:

Francesca Small Senior Attorney

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

Morton J. Morris, Esquire Steven R. Ballinger, Esquire Morris & Green

Suite 212

2500 Hollywood Boulevard

Hollywood, FL 33020

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ) OSTEOPATHIC MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-7029

)

KEITH N. MARSHALL, D.O., )

)

Respondent. )

)

CORRECTED RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on March 7, 1991 in Ormond Beach, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Francesca Small

Senior Medical Attorney Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Morton Morris, Esquire, and

Steven Ballinger, Esquire Suite 212

2500 Hollywood Boulevard

Hollywood, Florida 33020 STATEMENT OF THE ISSUE(S)

Petitioner's two-count Administrative Complaint charges Respondent with a violation of Section 459.015(1)(y) F.S. [1987], 1/ failure to practice osteopathic 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, and with a violation of Section 459.015(1)(p) F.S. [1987], 2/ failure to keep medical records justifying the course of treatment.

PRELIMINARY STATEMENT

The parties' Prehearing Stipulation was admitted in evidence as Joint Exhibit A.

Petitioner presented the oral testimony of Wesley Gordon Starr, R.P.T., and presented the testimony of Joseph Rosin, D.O., (with exhibits), and the testimony of Carey Counihan Beninger, R.N., (with exhibits) by depositions taken to perpetuate testimony. Petitioner offered two other exhibits into evidence.

All four exhibits were admitted in evidence.

Respondent presented the oral testimony of Josephine A. Christnagel, R.T., Michael E. Danzig, D.O., Gloria H. Mikula, M.D., Perry Dworkin, D.O., and Dennis

J. O'Leary, D.O. Respondent testified on his own behalf.

At the close of Petitioner's case-in-chief, the Respondent moved to dismiss the charge regarding medical records. This motion was taken under advisement for resolution within this recommended order.

A transcript was filed in due course, as were the parties' respective proposed recommended orders, the proposed findings of fact of which have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. At all times material, Respondent was licensed as an osteopathic physician in the state of Florida, having been issued license number OS0004170. Respondent practices in the field of general surgery, and at all times material to this action, Respondent was on staff as Chief of Surgery at the University Hospital, Holly Hill, Florida.

   
   

2. The incident which gave rise to the charges herein arose on August 5, 1987 when Respondent inserted a chest tube into patient W.T.'s right chest wall so as to relieve a pneumothorax which had actually occurred in W.T.'s left lung. A pneumothorax is a pocket of air in the cavity surrounding the lung which causes the lung to contract upon itself.

   
   

3. At all times material, Patient W.T. had a subcutaneous pacemaker on the left side of her chest. However, the evidence from all credible witnesses is consistent that pacemakers are routinely placed on either the right or left side and that there is no reasonable medical presumption that pacemakers are always placed in someone's left chest area. The subcutaneous pacemaker did not enter significantly into W.T.'s case management at University Hospital. It operated on "automatic" and since it did its job, none of the University Hospital physicians involved in W.T.'s care paid much attention to it.

   
   

4. W.T. was admitted to University Hospital for treatment of a drug overdose on July 9, 1987. As a part of her treatment, an Ewald tube was inserted into her stomach by a physician other than the Respondent. Patient

   W.T. was discharged from the hospital on July 18, 1987 with a portion of the tube inadvertently left in her stomach and her esophagus.

   
   

5. On July 21, 1987, W.T. was readmitted to University Hospital. She was suffering from septicemia and bilateral pneumonia. X-rays revealed that a portion of the tubing had not been removed. This tubing was removed by the Respondent via successful gastroesophagoscopy on July 23, 1987.

6. At Respondent's order, W.T. was placed in the Intensive Care Unit (ICU) following the removal of the tube. Dr. Desai was called in as a pulmonologist.

   
   

7. When W.T. had been admitted to University Hospital on July 21, 1987, she already had been in a "guarded" condition. Despite successful removal of the Ewald tube, W.T.'s overall condition continued to deteriorate. Prior to the night of August 4, 1987, W.T. had developed adult respiratory distress syndrome (ARDS) which involves a breakdown in the capillary barriers within the lung itself, resulting in a diffuse leakage of fluid throughout all of the air space of the patient's lung.

   
   

8. Because of the patient's serious lung condition, Dr. Desai placed her on a volume respirator, and the respirator pressure (PEEP) was progressively increased during her admission until it was set at 20 PEEP at the time of the incident. Twenty PEEP is an unusually high level of respirator pressure which was necessary in this case because of the patient's severe lung problem. The volume respirator essentially breathed for the patient and involved a tube being secured in her mouth. Often, between her admission to the ICU and the date of the incident, W.T. had torn the respirator tube out of her mouth, so she had been continuously restrained and sedated to keep this from happening again.

   Each time W.T. had extubated herself she had been "blue coded," meaning she had suffered either cardiac arrest or shock.

   
   

9. Whether or not W.T. weighed between 225 and 250 pounds or weighed 350- plus pounds cannot be determined with any reasonable degree of accuracy since there is equally credible evidence over the entire foregoing range of poundage. It is material, however, that by all accounts of all witnesses, W.T. was markedly and grossly obese to the extent that her size, shape, and weight contributed to her several health problems and rendered her a patient more difficult to diagnose, more difficult to x-ray, more difficult to move, and more difficult to nurse and medically attend than she would have been otherwise.

   
   

10. The evidence as to whether W.T.'s obesity impeded medical personnel from correctly interpreting her breath sounds on August 5, 1987, the date of the incident, is divided, as is the evidence as to whether or not on that date W.T.'s pacemaker was visible to the naked eye, but upon the greater weight of the credible evidence as a whole, it is found that on August 5, 1987, W.T.'s obesity, generally deteriorated condition, and left pneumothorax rendered the presence, volume, and location of breath in each lung subject to interpretation and "judgment call," and that unless one were specifically looking and feeling for a pacemaker, one would not necessarily have been able to detect the pacemaker in W.T.'s left chest due to the extraordinarily heavy pad of fat and the absence of scarring in that location. The foregoing finding of fact has been reached because with the exception of the complaining witness, Nurse Counihan, all factual witnesses either testified that they did not notice a pacemaker scar or they specifically noticed there was no scarring on W.T.'s chest. Also, with regard to breath sounds, both Mr. Starr and Respondent listened for W.T.'s breath sounds on the morning of the incident and within a very few minutes of each other. Mr. Starr described W.T.'s breath sounds when he entered her room as decreased on the right and absent on the left. His findings were consistent with a left pneumothorax but he never informed Respondent what he had found. Respondent arrived only a few minutes later and could not get any breath sounds from either side. Dr. O'Leary, accepted as an expert in pulmonology and the insertion of chest tubes, opined persuasively that one could not rely on breath sounds to locate which side the pneumothorax was on

    in the face of a recent x-ray. Also, the use of the respirator could have been misleading to either or both Mr. Starr or Respondent.

    
    

11. X-rays taken of W.T.'s chest at least ten times between July 23, 1987 and July 31, 1987 clearly depict that the pacemaker was on the left side of W.T.'s chest. These x-rays were reviewed by Respondent with a radiologist the day before the events which are the focus of these charges took place. The radiology reports of W.T.'s chest x-rays dated July 25, 1987, July 28, 1987, and July 31, 1987 specifically mention the pacemaker but only the report dated July 28, 1987 states that the pacemaker overlies the left thorax. Respondent did not review any narrative reports when he and the radiologist were reviewing the actual x-rays together. There is no evidence that this procedure was outside the appropriate standard of care. Dr. Dworkin, expert in radiology and quality assurance and review, Dr. O'Leary, and Dr. Rosin, Petitioner's internal medicine expert, all testified that it is not below the professional standard of care for a treating physician to forget within a day after such an x-ray review which side a pacemaker is on unless the pacemaker enters significantly into his treatment of the patient, which in this case it did not.

    
    

12. By the early morning hours of August 5, 1987, W.T. had become even more critically ill with multiple system failures, including a failure in the cardiopulmonary systems, a neurological deficit, and failure of her renal functions. The mortality rate of a patient suffering from ARDS, without considering the other conditions from which W.T. was suffering, exceeds 50%, and responsible medical retrospective estimates made at formal hearing of W.T.'s specific survival chances in the early morning hours of August 5, 1987 fall in the 10-50% range.

    
    

13. During the early morning hours of August 5, 1987, the nurses on duty in ICU were having trouble maintaining W.T.'s blood pressure. They began telephoning Dr. Desai and Respondent at approximately 4:00 a.m. One of those doctors, most probably Dr. Desai, ordered a portable chest x-ray of W.T., which was accomplished at 6:30 a.m. by Josephine Christnagel, R.T., who is a registered x-ray technologist.

    
    

14. At the time this x-ray was performed, W.T. was already in critical condition and could not speak or respond. W.T.'s condition was such that she probably was not salvageable when Respondent arrived on the scene at 7:00 a.m. on August 5, 1987.

    
    

15. Unbeknownst to anyone at this point in time, the 6:30 a.m. x-ray had been inadvertently mislabelled by Ms. Christnagel so that the left side of the patient's chest appeared on the x-ray with a lead marker, "R" (for "right"), on it. This chest x-ray revealed that W.T. had a pneumothorax, and because it was mislabelled, the pneumothorax appeared to be on the right side.

    
    

16. If a chest tube is properly inserted from the outside chest wall on the side of the pneumothorax, into the chest cavity, the air can be released and the lung can re-expand, delivering oxygen to the patient and raising blood pressure to normal.

    
    

17. At all times material on August 4-5, 1987, the ranking ICU nurse on W.T.'s case was Carey Beninger ne' Counihan, R.N.

    
    

18. The ICU nurses notified Dr. Desai by phone of the pneumothorax and he, in turn, notified Respondent. Because Respondent was more nearly ready to go to the hospital, Respondent rushed to the hospital to insert a chest tube into

    W.T., treatment which he and Dr. Desai, the attending pulmonologist, had agreed was the appropriate treatment for W.T.'s pneumothorax. For the reasons given infra with regard to the time the nurses' notes were compiled and Nurse Counihan's confusion over the x-ray itself, the evidence is not clear and convincing that Respondent was ever told by Dr. Desai or by the nurses by phone that the pneumothorax was on W.T.'s left side (the correct side). Even if Respondent had been so informed by Dr. Desai, since Dr. Desai had never seen the x-ray, it still would have been appropriate for Respondent to rely on the x-ray itself once he got to the hospital, unless at the hospital, something or someone clearly alerted him to the fact that the pneumothorax was actually on the left side.

    
    

19. At approximately 7:00 a.m., just prior to the arrival of Respondent, Dr. Michael Danzig, D.O., who was the day-shift emergency room doctor, and Wesley Starr, R.P.T., a respiratory therapist, arrived at ICU and entered W.T.'s room. At approximately the time they arrived, the night-shift emergency room doctor, Dr. Haas, left the room. By all accounts, there was a continuing "commotion," a "ruckus," or "an emergency situation" in progress with at least two nurses, including Nurse Counihan, and other personnel providing various therapies to W.T. who had no palpable blood pressure and was in shock. This atmosphere continued after Respondent arrived shortly thereafter, with the nurses' and Mr. Starr's attention directed to care of the patient. When Respondent arrived, Dr. Danzig became, essentially, an observer.

    
    

20. Upon arrival at W.T.'s room, Respondent examined the 6:30 a.m. x-ray against a window with daylight showing through. The x-ray, as it was mismarked, showed a massive tension pneumothorax on W.T.'s right side and a pacemaker on the same side, the right.

    
    

21. After review of the x-ray, Respondent examined W.T., including listening for breath sounds. He heard nothing significant from either lung. Dr. O'Leary's opinion that such a finding was not unusual and that Respondent could not rely on either his own examination of breath sounds or that of Mr. Starr (had he even known of Mr. Starr's hearing breath sounds on the right but not the left) at that point is persuasive. Under these circumstances, breath sounds would not have alerted Respondent to a mislabelled x-ray.

    
    

22. Respondent relied on the mislabelled x-ray and began to prep the right side of the patient for the chest tube.

    
    

23. As Respondent began to prep W.T.'s right side, a dispute arose between himself and Nurse Counihan. Having weighed and evaluated all the testimony and the documentary evidence and exhibits, having reconciled that evidence which can be reconciled, and having eliminated that evidence which is not credible, it is found that the most credible version of this dispute is that Nurse Counihan asked Respondent why he was prepping the right side if W.T. had a left pneumothorax, and Respondent replied, "No, it isn't. Look at the x-ray." To this, Nurse Counihan said, "Yes, it is. I'm sure of it," and pointed to the lung on the x-ray which did not show a pneumothorax (the side next to the nameplate and the side without either a pacemaker or a pneumothorax).

    Respondent said, "No, it isn't. Look at the damn x-ray!" Respondent then proceeded to intubate on the right side while referring frequently to the mislabelled x-ray.

    
    

24. In making the foregoing finding, it is noted that there were significant differences between the testimony of Nurse Counihan and all other witnesses, both factual and expert. Nurse Counihan deposed/testified that both

    she and another nurse had pointed out to Respondent that the patient's pacemaker was on the patient's left side and so was the pneumothorax. The other three factual witnesses, Starr, Danzig, and Respondent, all testified that they have no recollection whatsoever of anyone mentioning a pacemaker. Even Wesley Starr, called by the Petitioner, and who was present in W.T.'s room at the head of the patient's bed throughout the time of these discussions, testified that, to the best of his recollection, no one mentioned a pacemaker and that he did not recall anyone except Nurse Counihan challenging the Respondent's prepping W.T.'s right side. Also, Dr. Danzig, who was present in the room during the argument, and who testified that he had placed over 200 chest tubes during the course of his medical residency training, testified that if Nurse Counihan had, indeed, mentioned a pacemaker, he would have intervened in order to assist Respondent in determining the correct side of the pneumothorax. Although Petitioner asserted that Dr. Danzig is not credible due to his friendship with Respondent, that argument is not persuasive both due to the remoteness and degree of the friendship and Dr. Danzig's insistence that if Respondent should say that Nurse Counihan pointed to the side of the x-ray showing the pacemaker, then Respondent would be wrong.

    
    

25. Respondent apparently did not review W.T.'s records either before or after the dispute with Nurse Counihan. These records were either in her room or elsewhere in the ICU unit, but since, at that point, the nurses' notes had not been compiled from their scratch pads to the patient's chart since before 4:00 a.m., there was nothing in W.T.'s chart/records to alert Respondent that the x- ray was mislabelled or that the patient had a pneumothorax on the left side even if he had reviewed the record. Also, he would have had to go back to the July

    31 x-ray or the July 28 radiology narrative before he could have discovered that the pacemaker was on the left. This would have been very time consuming. Also, Dr. Danzig, who actually had made a cursory review of the patient's records when he first arrived in the room, was not alerted by Nurse Counihan's words or her pointing to the x-ray to any reason to search the records for information about the pacemaker.

    
    

26. In further assessing Nurse Counihan's testimony, the undersigned has weighed in her favor the consistency of her recent deposition testimony with her notes and the incident report which she completed within five hours after the intubation incident on August 5, 1987. However, weighing against her credibility with regard to her statements then and now that she told Respondent that the pacemaker was on W.T.'s left side is the fact that even her August 5, 1987 report and notes were prepared in the glow of a hindsight favorable to her position and that her deposition shows that she is confused about how a pneumothorax appears on an x-ray. Reconciling all the testimony one can, it is remotely possible that Nurse Counihan said, "It is a left pneumothorax," while pointing to the lung shown on the x-ray as not having a pneumothorax and which, due to the "R" marker on the other lung could be inferred to be the left lung. It is even remotely possible (although not probable or persuasive given the three other factual witnesses' testimony that she had never mentioned a pacemaker) that Nurse Counihan could have told the Respondent, "The pneumothorax is on the same side as the pacemaker," which also was consistent with the x-ray as mislabelled. However, upon the credible evidence as a whole, the only reasonable conclusion is that if Nurse Counihan did mention a pacemaker at the time of her dispute with Respondent, she was ineffective in clearly conveying to Respondent or to anyone else in the room that the pacemaker and the pneumothorax were on the patient's left side or that there was any reason to further search the records or the patient's body to resolve the dispute.

27. It is uncontroverted that, prior to the insertion of the chest tube in W.T.'s right side, absolutely no one, including Nurse Counihan, was aware that the x-ray was reversed, and that Ms. Counihan never informed the Respondent that the x-ray was reversed.

    
    

28. Respondent's testimony is accepted that upon placement of the chest tube in W.T.'s right side (the side without the pneumothorax) he heard an immediate audible gush of air. That others in the room did not hear this rush of air is understandable due to the noise and confusion in the room, particularly the respirator sounds. Also, it is uncontroverted that upon placement of the chest tube in W.T.'s right side, the patient's blood pressure, which had been zero, immediately rose into normal range. A dramatic and rapid reestablishment of the patient's blood pressure is the expected result of a proper placement of a chest tube with a tension pneumothorax. All health care personnel present seem to have regarded the blood pressure stabilization as proof that the Respondent had placed the chest tube on the correct side of the patient, because no one, including Nurse Counihan, thereafter protested that a misplacement had occurred.

    
    

29. Release of pressure and a return in blood pressure is not normally associated with placement of a chest tube in the wrong side of a patient and there is no definitive medical explanation of why it occurred in this instance, despite Dr. O'Leary's speculation that the gush of air could have been a leak of air across the mediastrum.

    
    

30. After placement of the chest tube in the patient's right side, Respondent ordered an immediate repeat chest x-ray to be certain the tube was placed in the correct lung and was placed correctly.

    
    

31. After the patient's blood pressure had been reestablished, Dr. Danzig left the intensive care unit because he believed that the pneumothorax had been relieved completely and because the patient was now stable. If W.T. had not been stable, Dr. Danzig would have remained in the room since he was the day- shift emergency room doctor and he did not know if any physicians other than Respondent and himself were even in the hospital yet.

    
    

32. After securing the chest tube and dressing the chest, Respondent left the floor and went to the operating room (OR) to notify the OR staff that there would be a delay before he could begin previously scheduled surgery. Thereafter, on his way to check the new x-ray he had just ordered, Respondent met Ms. Christnagel, who was bringing it to him. Ms. Christnagel then informed Respondent that she had mislabelled the 6:30 a.m. preintubation x-ray. Respondent simultaneously reviewed the new, postintubation x-ray and discovered that he had placed the chest tube in the wrong side of W.T.'s chest. At approximately the same time, W.T.'s blood pressure again dropped and a "code blue" was called.

    
    

33. Dr. Gloria Mikula, M.D., who happened to be in the ICU at the time

    W.T. coded, "ran the code" to attempt to reestablish the patient's blood pressure. Throughout the time in which Dr. Mikula was running the code on this patient, no one, including Nurse Counihan, said anything to the effect that W.T. may have had a chest tube placed in the wrong side. In fact, the nursing staff did not even inform Dr. Mikula that this patient had had a pneumothorax and chest tube insertion prior to the code being called. Such information would have been important from a medical standpoint because it would have allowed Dr. Mikula to act immediately to relieve the tension in the patient's chest.

34. Immediately upon reviewing the repeat chest x-ray and upon hearing the announcement of the code blue at the same time, Respondent rushed back to W.T.'s room, placed a chest tube in the patient's left side, and the patient's blood pressure was again reestablished. However, some time later in her hospitalization, W.T. expired.

    
    

35. Nurse Counihan's failure to say anything to Dr. Mikula about the pneumothorax is further indicative of her immediate satisfaction that Respondent's intubation on the right side had been acceptable and that it was only after he discovered his error through the new x-ray and correctly intubated

    W.T. on the left side that Nurse Counihan completed her notes and incident report describing his error for the chart. The notes were transposed from her scratch pad and memory at approximately noon, August 5, 1987.

    
    

36. Dr. Rosin, Petitioner's expert in internal medicine, criticized Respondent's performance as below the professional standard of care because he felt that once Respondent was made aware in the patient's room by Nurse Counihan that the pneumothorax could be on the patient's left side, Respondent had an obligation to make further inquiry or investigation before inserting the chest tube in the patient's right side. In Dr. Rosin's opinion, Respondent's investigation could have taken several routes: review of earlier x-rays and the patient's record, further conversation with the nurse, further hands-on examination of the patient for signs of the pacemaker, and/or ordering a new x- ray.

    
    

37. Although Dr. Rosin testified that Respondent should have ordered a repeat x-ray so as to resolve the dispute with Nurse Counihan before inserting the chest tube on W.T.'s right side, he also conceded that the only possible adverse effect of the decision Respondent made was the delay in relieving W.T.'s condition. The chest intubation involved is not a benign or casual procedure, but no actual harm occasioned by misplacement of the chest tube was demonstrated in this case, and the maximum amount of time which would have been saved, under Dr. Rosin's approach, would have been that short period of time it took for the Respondent to place the chest tube and dress the wound. Under the circumstances, if Respondent had delayed intubation, W.T. would probably have "coded blue" before the correctly labelled chest x-ray could have been performed anyway. In light of the confused state of the patient's breath sounds, obesity, and lack of scarring, the fact that no nurses' notes had been codified since before 4:00 a.m., Nurse Counihan's own confusion about the mismarked x-ray, and how far back in the patient's chart Respondent would have had to look before he would have been able to locate anything useful about the pacemaker, it is found that Respondent behaved reasonably in an emergency situation, and Dr. O'Leary's and Dr. Dworkin's expert opinions that he did not violate the professional standard of care in the first insertion of the chest tube are accepted.

    
    

38. It is also found that the Respondent's procedure in ordering the new chest x-ray and leaving the room after the first intubation without further search of the records or further conversation in the room was reasonable and appropriate under the circumstances.

    CONCLUSIONS OF LAW

    
    

39. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

40. Respondent's motion to dismiss the medical records charge is well- taken and should be granted. The count alleging a violation of Section 459.015(1)(p) F.S. [1987] has not been supported by competent substantial evidence. Petitioner only argued that because the patient's records did not reflect a right pneumothorax and Respondent treated W.T. for a right pneumothorax, the medical records did not justify Respondent's course of treatment of W.T. Since there is no suggestion that Respondent's preprocedure or postprocedure records are anything but thorough and accurate, to find Respondent guilty of a violation of Section 459.015(1)(p) F.S. because of a mislabelled x-ray he did not label or because he simply performed the wrong emergency procedure without referral to all the correct medical records would be the equivalent of punishing him twice for the single act of a mistaken, wrong procedure.

    
    

41. Respondent also is not guilty of violating Section 459.015(1)(y) F.S. [1987], failure to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions. Therefore, the medical records charge could not have been sustained even if the motion to dismiss were not well taken for the reasons given supra.

    
    

42. The overwhelming evidence in this case is that on August 5, 1987, W.T. had less than a 50% chance of survival regardless of what procedure Respondent followed. He admittedly performed the right procedure on the wrong side of the patient, which in this case is regrettable but understandable. In so doing, he relied on a mismarked x-ray, which in itself is not below the acceptable standard for the practice of osteopathy. Indeed, all the witnesses seem to have concurred in at least one thing: that mismarked x-rays are a fact of life. Where the witnesses disagree is in how much further investigation of the patient and her charts/records was required because of Nurse Counihan's alerting Respondent to a potential problem with the x-ray.

    
    

43. The evidence is neither clear and convincing nor competent or substantial that Nurse Counihan alerted Respondent that the pneumothorax and the pacemaker were on the patient's left side. Had she done so, further visual search and feeling of Petitioner's body to locate the pacemaker or further perusal of earlier, correctly marked x-rays and diagnostic imaging narratives would certainly have been in order if time had not been of the essence. Here, Nurse Counihan gave a confusing and inconclusive alert, and the emergency situation which Respondent was faced with was such that time was of the essence. Under these circumstances, Respondent made a reasonable and appropriate professional decision which balanced a procedure of low patient risk against a potential for immediate and essential patient relief.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Osteopathic Medical Examiners enter a Final Order dismissing all charges against Respondent.

RECOMMENDED this 5th day of August, 1991, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 5th day of August, 1991.

ENDNOTES

1/ Formerly Section 459.016(1)(t) F.S. 2/ Formerly Section 459.015(1)(n) F.S.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-7029

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

1-6 Accepted.

7 Rejected as contrary to the greater weight of the credible record evidence.

8-10 Accepted.

1. Accepted in part and rejected in part as not supported or clear on the record. See FOF 25.

2. Accepted except for unnecessary, subordinate, or cumulative material. 13-14 Accepted.

15 Accepted in part and rejected in part as not supported or clear on the record. See FOF 13and 15.

16-17 Accepted except for unnecessary, subordinate, or cumulative material and legal argument.

18 Accepted except for that which is not supported by the greater weight of the credible record evidence. See FOF 10, 20-21.

19-20 Rejected as not supported by the credible record evidence as a whole. See FOF 11, 23-26, 36-37.

1. Rejected as not supported by the credible record evidence as a whole. See FOF 28-29.

2. Accepted that Respondent did not make further checks but the remainder is rejected as legal argument and not controlling. See FOF 25, 28-38.

3. Accepted except that the 45 minutes was never conclusively established and there is evidence that the time elapsed was considerably less. See FOF 32, 34-38.

4. Rejected for the same reasons set out immediately above. See FOF 32, 34- 38.

25-26 Rejected as immaterial, since ease and speed are not the same thing and because the greater weight of the credible record evidence supports a finding that Nurse Counihan never clearly alerted Respondent to make further investigation and neither did the postintubation circumstances. See FOF 23-38. 27-29 Rejected as legal argument and as not supported by the greater weight of the credible record evidence. See FOF 23-27, 35-38.

30 Rejected as immaterial and as legal argument. Dr. Danzig satisfactorily explained his signature and the weight assessment in the remainder of his testimony.

31-32 Rejected as legal argument and not supported by the greater weight of the credible record evidence.

33 Rejected as a conclusion of law. Petitioner submitted no evidence to support this allegation and so no finding has been made. See the Preliminary Statement and COL 2-5.

Respondent's PFOF:

1-23 Accepted except where subordinate, unnecessary, or cumulative to the facts as found. (Footnote 1 is rejected as legal argument but the subject is covered within the Recommended Order)

24-28 Accepted in part and rejected in part upon the greater weight of the credible record evidence as a whole as set out in FOF 23-27. PFOF 27 (including footnote) and 28 are also rejected in part as legal argument.

29 Rejected as legal argument. Covered in FOF 23-27, 34-38, and the COL. 30-45 Accepted except where subordinate, unnecessary, or cumulative to the facts as found.

1. Rejected as legal argument. Covered in FOF 23-27, 34-38, and the COL.

2. Accepted but cumulative to the facts as found.

48-49(including footnote to 48) Accepted in part and rejected in part for the reasons set out in 9-10, 21.

50 Accepted.

51(including footnote) Accepted in part and rejected in part upon the record evidence discussed in FOF 10, 21.

52-56(including footnote) Accepted except where subordinate, unnecessary, or cumulative or legal argument.

57-58 Rejected as cumulative and as proposed conclusion of law. See FOF 36-38 and COL 2-5.

59-69(including footnotes to PFOF 66-67) Accepted except where subordinate, unnecessary, or cumulative or legal argument.

70 Accepted, but because there is no evidence on this allegation, see the Preliminary Statement and COL 2-5.

COPIES FURNISHED:

Francesca Small Senior Attorney

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

Morton J. Morris, Esquire Steven R. Ballinger, Esquire Morris & Green

Suite 212

2500 Hollywood Boulevard

Hollywood, FL 33020

Bill Buckhalt Executive Director

Board of Osteopathic Medical Examiners Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 89-007029

Orders for Case No: 89-007029