STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5317

) MITCHELL L. LEVIN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on June 14, 1991 in Orlando, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

730 S. Sterling St., Suite 201

Tampa, FL 33609

For Respondent: Salvatore A. Carpino, Esquire

Suite 1010 The Commons One North Dale Mabry Tampa, FL 32609

STATEMENT OF THE ISSUES

An Administrative Complaint dated May 22, 1991, and amended at the commencement of the hearing on June 14th, alleges that Respondent violated Section 458.441(1)(t), F.S. by rendering inappropriate treatment to a patient, by failing to ask appropriate follow-up questions as to her pain and condition, and by failing to see her in a timely manner.

The issue is whether the violations occurred, and if so what discipline is appropriate.

PRELIMINARY STATEMENT

The referenced Administrative Complaint originally alleged two counts of violations of Chapter 458, F.S. relating to the practice of medicine. At the hearing Petitioner voluntarily dismissed count two with regard to allegations that Respondent neglected to keep adequate written medical records regarding the treatment of a patient identified as "Patient #1". Other non-substantive amendments were made with regard to the allegations of count one, without objection by Respondent.

Petitioner presented the testimony of Anna Mae Miller, Michelle Spinelli and Curtis Benton, Jr., M.D.; and exhibits A-F, received without objection.

Respondent testified and presented the following additional witnesses: Charles Stuart, Sandra Wagner, Helen Grabowski and Linda Cipoletta. His five exhibits were received without objection. In addition, expert testimony of Leslie L. Chisholm, Jr., M.D. was presented by deposition filed on August 14, 1991.

The parties' proposed recommended orders were filed on August 26, 1991 and September 11, 1991. They have been considered, and the proposed findings of fact are specifically addressed in the attached appendix.

FINDINGS OF FACT

1. Mitchell L. Levin, M.D., the Respondent, is, and has been at all relevant times, a physician licensed in Florida with license number ME 0049608. He practices as a board-certified opthalmologist with a principal office in Kissimmee, Florida.

   
   

2. The prehearing stipulation filed by the parties at hearing establishes the following:

   
   

   1. From on or about May 18, 1989 until on or about May 22, 1989, Respondent treated patient #1 for pain in both her eyes and blurred vision.

   2. Respondent's initial examination of the patient on May 18, 1989 revealed that the patient had anatomical narrow angles in both of her eyes.

   3. Respondent administered Mydriacyl 1% to both of the patient's eyes to dilate them for examination.

   4. At the time of Respondent's examination the patient's intraocular pressure was 22,

      23 in the right eye and 17, 18 in the left eye.

   5. The patient developed acute glaucoma due to the administration of Mydriacyl, on May 18, 1989.

   6. At approximately 4:45 p.m. on May 18, 1989 the patient contacted Respondent's office and spoke with a member of Respondent's staff.

   7. At approximately 7:30 p.m. on May 18, 1989 the patient contacted Respondent's answering service. At approximately 8:00

      p.m. Respondent responded and spoke with the patient.

   8. At approximately 7:20 a.m. on May 19, 1989 the patient contacted Respondent's answering service and was advised that Respondent's associate would examine the patient at 9:00 a.m.

   9. Respondent's associate, Konrad W. Filutowski, M.D., examined the patient on May 19, 1989 and diagnosed the patient as suffering from acute glaucoma requiring surgery.

   10. At the time of Dr. Filutowski's examination of the patient, the patient related to Dr. Filutowski that she had suffered from pain and blurred vision since 3:00 p.m. the prior day.

   11. On May 19, 1989, the patient underwent bilateral surgical iredectomies to relieve pressure caused by the acute glaucoma.

       
       

3. The administration of Mydriacyl for dilation in this case is not a deviation from the standard of care.

   
   

   However, the patient's narrow angles and slightly elevated pressures alerted the physician that dilation could precipitate acute glaucoma.

   
   

   Dr. Levin was sufficiently concerned about the patient's potential for glaucoma that he had his technician set up a glaucoma movie for the patient to watch after the administration of the drops and while the eyes were dilating before his examination.

   
   

4. The patient remembers a movie but none of its details, as her eyes were mostly closed from the effect of the drops.

   
   

5. Dr. Levin has a packet of information on glaucoma that he has written and that he routinely hands out to patients. No one specifically remembers giving one of these to Patient #1, and she denies receiving one.

   
   

6. When the patient first left Dr. Levin's office on May 18, 1989, her eyes were starting to water and she observed that light was very bright. This is not unusual when eyes are dilated for examination.

   
   

   Later in the afternoon when she was home she felt the watering increase, felt pressure and then could not see at all out of her right eye.

   
   

   She called Dr. Levin's office to let them know in case something was wrong.

   The receptionist referred her to someone whom she believed was the doctor's technician and who told the patient she could expect some discomfort for up to two days.

   
   

7. By approximately 7:00 p.m. the pressure was worse, and the patient could not see out of either eye. She had her daughter call the doctor's answering service to explain that something was terribly wrong.

   
   

8. Dr. Levin returned the call within a half hour. The patient gave her name and told him she had called his office earlier but that the watering was worse and that she could not see out of either eye.

   
   

   He tried to figure out who she was and then told her the same thing she had heard earlier, that the discomfort could last up to two days. When she apologized for calling again, he told her it was all right to call.

9. As the evening wore on, the pressure became worse. The patient kept thinking that it was something she had to endure since the doctor said it might last for two days. She kept applying a wet washcloth and could not sleep.

   
   

   In the early morning she tried calling her daughter, was unsuccessful, and attempted to walk across the street to her daughter's house. Her daughter found her disoriented and going the wrong way.

   
   

   Shortly after 7:00 a.m. they called Dr. Levin's office again and were referred to his associate, Dr. Filutowski for a 9:00 a.m. appointment.

   
   

10. At Dr. Filutowski's office the patient was nauseous and vomited with the pain.

    
    

11. An acute glaucoma attack is accompanied by rapidly progressive symptoms: blurry vision, then loss of vision, discomfort from pressure, then increasing pain to the point of nausea and vomiting.

    
    

    There is no question that the patient was in extreme pain in the afternoon of May 18th and throughout the night. She communicated that pain to Dr. Levin's office staff and to him through terms such as "pressure", "watering", "discomfort", and "blindness".

    
    

12. Under the circumstances described above, when a patient reports that she is calling for the second time and that her condition has worsened, a reasonably prudent physician should make a specific inquiry with regard to the symptoms and degree of pain and should make arrangements to see or have the patient seen immediately.

    
    

13. Dr. Levin has an office protocol which requires his staff to ask certain questions to determine a patient's condition when the patient calls in. Dr. Levin also has an algorithm, or pathway of questions, which he uses to determine a patient's needs. He believes that he followed that routine with this patient but that her answers did not alert him to a glaucoma attack.

    
    

    He took the May 18th evening call at home and did not have any patients' records with him. He has no recollection of the conversation with this patient. He sees from 15 to 70 patients a day in his office and speaks with as many as 40 or 50 a week on the telephone.

    
    

14. Both the patient and her daughter remember the telephone conversation with Dr. Levin the evening of May 18, 1989. The daughter called and spoke with the answering service. When Dr. Levin returned the call the patient spoke directly to him while her daughter was present.

    
    

    While she may not have used the term, "pain", she conveyed her pressure, extreme discomfort, worsening condition and blindness. Dr. Levin did not inquire into specifics and did not make arrangements for the patient to be examined. Those omissions constitute failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances.

    
    

15. Respondent's disciplinary history includes a stipulated disposition of a prior Administrative Complaint, adopted by final order on April 6, 1990 and relating to violations other than Section 458.331(1)(t), F.S.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding pursuant to Sections 120.57(1), F.S. and 455.225(5), F.S.

    
    

17. Section 458.331, F.S., provides, in pertinent part:

    
    

    (1) The following shall constitute grounds for which the disciplinary action specified on subsection (2) may be taken:

    * * *

    (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. . . .

    
    

18. Generally, the Department must prove the allegations in an Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). However, Section 458.331(3), F.S., as amended in 1988 provides that, in any administrative action against a physician which does not involve revocation or suspension of license, the Division shall have the burden, by the greater weight of evidence, to establish the existence of grounds of disciplinary action. The disciplinary guidelines for the violations alleged against Respondent include a range of penalties from probation to revocation.

    
    

19. Based upon the Findings of Fact set forth herein it is concluded that Respondent has violated Section 458.331(1)(t), F.S., and that Petitioner has established this violation by clear and convincing evidence.

    
    

20. Rule 21M-20.001(2), F.A.C. describes disciplinary guidelines as required by Section 455.2273, F.S., and provides this specific guidance for the violation at issue:

* * *

(t) Malpractice (t) From two (2) years (458.331(1)(t), probation to

F.S.) revocation or denial, and an administrative fine from $250.00 to

$5,000.00

* * *

The penalty recommended below is within the specified range.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That a final order be entered finding Respondent guilty of violating Section 458.331(1)(t), F.S., and imposing the following penalty:

A two year period of probation with terms and conditions to be specified by the Board of Medicine, and a fine in the amount of $1,000.00.

DONE and RECOMMENDED this 9th day of October, 1991, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1991.

APPENDIX

The following constitute specific rulings on the findings of fact proposed by the parties.

Petitioner's Proposed Findings

1. Rejected as unnecessary.

2. Adopted in paragraph 1.

3. Adopted in paragraph 2a.

4. Adopted in paragraph 2b.

5. Adopted in paragraph 2c.

6. Adopted in paragraph 2d.

7. Adopted in paragraph 3.

8. Adopted in paragraph 3.

9. Adopted in paragraph 2e.

10. Adopted in paragraph 2f.

11. Adopted in paragraph 2g.

12. Rejected as unnecessary.

13. Adopted in paragraph 8.

14. Adopted in paragraph 11.

15. Adopted in paragraph 14.

16. Adopted in paragraph 2h.

17. Adopted in paragraph 2h.

18. Adopted in paragraph 2i.

19. Adopted in paragraph 2j.

20. Adopted in paragraph 2k.

21. Adopted in paragraph 14.

22. Adopted in paragraph 15.

Respondent's Proposed Findings

1. Adopted in paragraph 1.

2. Adopted in paragraph 2a.

3. Adopted in paragraph 2b.

4. Adopted in paragraph 2c.

5. Adopted in paragraph 2d.

6. Adopted in paragraph 2e.

7. Adopted in paragraph 2f.

8. Adopted in paragraph 2g.

9. Adopted in paragraph 2h.

10. Adopted in paragraph 2i.

11. Adopted in paragraph 2j.

12. Adopted in paragraph 2k.

13. Adopted in part in paragraph 3, otherwise rejected as unnecessary.

14. Rejected as unnecessary.

15. Rejected as unnecessary.

16. Rejected as unnecessary.

17. Rejected as contrary to the weight of evidence.

18. Adopted in summary in paragraph 13.

19. Adopted in summary in paragraph 11.

20. Rejected as unnecessary.

21. Rejected as contrary to the weight of evidence.

COPIES FURNISHED TO:

Bruce D. Lamb, Esquire Department of Professional

Regulation

730 S. Sterling St., Suite 201

Tampa, FL 33609

Salvatore A. Carpino, Esquire Suite 1010 The Commons

One North Dale Mabry Tampa, FL 32609

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Dorothy Faircloth, Executive Director DPR-Board of Medicine

1940 N. 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 CONTACT 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: 90-005317

Orders for Case No: 90-005317