STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0869

)

BENJAMIN P. DELGADO, 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 July 11, 1991, in Orlando, Florida.

APPEARANCES

For Petitioner: William B. Nickell

Senior Attorney

Dept. of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Robert Rao, Esquire

20 South Rose Avenue Kissimmee, Florida 34741

and

Mark Dabold, Esquire Suite 1550, Firstate Tower

255 South Orange Avenue Orlando, Florida 32801

STATEMENT OF THE ISSUES

An administrative complaint dated November 9, 1990 alleges that Respondent violated Chapter 458, F.S., governing the practice of medicine, by failing to conduct a complete history and medical examination, failing to order an EKG, failing to admit for cardiac observation and failing to keep adequate written medical records of a patient which he treated in a hospital emergency room in Kissimmee, Florida.

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

PRELIMINARY STATEMENT

Respondent answered the administrative complaint with a timely request for a formal hearing.

At the hearing Petitioner presented the testimony of Frances Stewart and Jay W. Edelberg, M.D. The testimony of Guillermo V. Ruiz, M.D. was presented by deposition, received in evidence as Petitioner's exhibit #3. Also received in evidence were Petitioner's exhibits #1-2, 4-6, 8-9, and 11. Exhibit #7, an opinion letter from Michael J. Lerner, M.D., was marked and taken under advisement. On review, this exhibit is rejected as inherently unreliable and hearsay. The letter is authored by, and addressed to, individuals who did not appear in this proceeding. It references review of information furnished, but does not describe that information.

Another exhibit, Petitioner's exhibit #10, was identified but was not made part of the record. That exhibit, a deposition of Dr. Orban, was permitted to be late-filed, after its transcription. It was never filed at the Division of Administrative Hearings.

Respondent testified in his own behalf and presented the additional testimony of Janet Kusser, John Orban, M.D., Patrick Mathias, M.D., and Marilyn Carter Armstrong. Respondent's Exhibits #1-5 were received without objection.

Joint Exhibit #1 was marked and received as the Respondent's records of his emergency room treatment of the patient at issue.

The parties filed proposed recommended orders on August 29, 1991 and September 5, 1991. The findings of fact proposed by each are addressed in the attached appendix.

FINDINGS OF FACT

1. Respondent, Benjamin P. Delgado, M.D., is now and at all times relevant has been a licensed physician in the State of Florida, having been issued license number ME 0029222.

   
   

2. Dr. Delgado has been licensed in Florida since 1982, and for the last nine years has maintained a private practice of internal medicine in Kissimmee, Osceola County.

   
   

   Dr. Delgado has also provided emergency room services, under contract, at Humana Hospital in Kissimmee. He came on duty at the emergency room on February 23, 1989, at 8:00 p.m.

   
   

3. The patient, identified as "Patient #1" in the administrative complaint, checked into the emergency room on February 23, 1989 at approximately 8:19 p.m., accompanied by his wife.

   
   

   Patient #1 was a 56-year old male, approximately 6'1", weighing 181 lbs.

   He complained of severe upper abdominal pain.

   
   

4. After the emergency room clerk recorded the patient's name, address, relevant insurance information and chief complaint, the patient was seen by the emergency room staff nurse, Janet Kusser, R.N. The nurse noted on her chart that the patient had complained of severe pain in his upper abdomen on and off since 3:00 a.m. She recorded his temperature, pulse, respiration rate and blood

   pressure; she inquired about allergies and any medications he might be on. She also completed an emergency room assessment sheet, which involved circling relevant answers on a questionnaire form addressing a brief medical history, and current physical condition.

   
   

   The patient was ambulatory, had normal respiration, was alert and cooperative, had warm skin with pink extremities. He exhibited tenderness in his upper abdomen, and that is where he said the pain was -- centered beneath his chest.

   
   

5. Two attempts to notify the patient's family physician, at 8:25 and 8:55 p.m., were unsuccessful.

   
   

6. When the nurse completed her assessment, she introduced Dr. Delgado and gave him the chart.

   
   

7. The emergency room was not crowded, although staff was busy. A patient vocally complaining of chest pains was being seen around the same time that patient #1 checked in.

   
   

   Still, Dr. Delgado was able to devote full attention to Patient #1 in his examination. He went through the same questions as the nurse did on the emergency room assessment form and substantially agreed with her findings. He also found the upper abdomen to be tender. The patient clutched his stomach and was doubled over. He was not grasping his arm and he denied having pain in any extremities. The patient denied having prior medical conditions as heart disease, asthma, hypertension or diabetes.

   
   

8. Negative findings were not recorded by Dr. Delgado on the chart. For example, he noted tenderness in the epigastrium, but did not note the lack of pain in the extremities.

   
   

   Dr. Delgado considered the complaints to be related to gastritis and ordered a complete blood count, urinalysis, SMA-7 and X-rays of the abdomen. The results of those tests are attached to the emergency room chart for the patient.

   
   

9. The total time Dr. Delgado spent with the patient was approximately 30 minutes. Dr. Delgado also inquired of the patient from time to time as to how he felt, as the other emergency room patients being attended were on stretchers nearby. The patient's wife remained in the waiting room and was not interviewed by the nurse or physician.

   
   

   After reviewing the laboratory reports and X-rays, Dr. Delgado diagnosed the problem as gastritis and released the patient with Donnatol for his stomach and suggested he contact his family physician in the morning.

   
   

   The patient checked out around 10:10 p.m.

   
   

10. The patient returned home with his wife. He died in bed early in the morning at approximately 2:30 a.m., on February 24, 1989.

    
    

    After an autopsy, the medical examiner, G.V. Ruiz, M.D., determined the immediate cause of death was cardiac arrhythmia due to arteriosclerotic cardiovascular disease. This is also referred to as sudden death due to clogging or hardening of the arteries. In this case the patient had severe occlusion, up to 75% in some areas, in all three main coronary arteries.

11. Based on a reading of the medical record, the pathologist's report and deposition of the pathologist, Petitioner's expert witness, Jay W. Edelberg, a Board-certified emergency room physician, opined that the patient's chart was not adequately documented and that the patient should have been worked up for the possibility of cardiac problems.

    
    

    From ten to twenty percent of people with cardiac problems present symptoms that mimic gastrointestinal complaints. A variety of risk factors needs to be documented to rule out or minimize the risk of a complaint being cardiac- related.

    
    

    Those risk factors include smoking, family history, history of hypertension, blood sugar problems, sedentary lifestyle, overweight, and high cholesterol.

    
    

12. Dr. Edelberg was unaware that Dr. Delgado did pursue questions with regard to those risk factors and simply did not note the negative findings. Dr. Delgado did observe that the patient was a smoker -- he had his cigarettes with him -- and did not note that on the record. The other risk factors identified by Dr. Edelberg were essentially negative.

    
    

    Moreover, Dr. Delgado had no substantial clue from his examination that cardiac problems should be suspected: there was no prior history of heart disease, no reported pains in the neck or arms, no observed sweating or shortness of breath. For that reason, the EKG or other cardiac work-up was not ordered.

    
    

13. David John Orban, M.D., Medical Director at Shands Teaching Hospital at the University of Florida, Board certified in emergency medicine, testified as an expert witness on behalf of Dr. Delgado.

    
    

    Dr. Orban agreed that the complaints and symptoms of the patient pointed to gastritis rather than heart disease, and that the medical record adequately reflected the basis for the diagnosis. Although brief, the notes focus on the problem at hand.

    
    

    The patient's vital signs were normal. An EKG is not generally indicated for patients who present abdominal pain.

    
    

    The chart is typical of charts found in busy community emergency departments.

    
    

14. Reasonable, competent, expert physicians simply disagree on whether Dr. Delgado's treatment and his medical records violate a standard of care.

    
    

    Dr. Edelberg stops short of saying that any 56 year old male who appears in an emergency room with upper abdominal pain should receive a cardiac work-up.

    On the other hand, Dr. Orban concedes that a reasonable prudent physician does not simply rely on what a patient tells him without further inquiry and observation.

    
    

15. Dr. Delgado's conduct falls between those two extremes. He conducted a physical examination and an inquiry into the patient's history and symptoms. He made cursory notes without duplicating the information already obtained by the emergency room staff nurse. He failed to document that the patient was a

    cigarette smoker, but in other respects documented relevant positive findings, such as tenderness in the epigastrium.

    
    

    The patient's external physical signs, his history, and the complaints he articulated reasonably led Dr. Delgado to conclude that the patient was suffering from gastritis.

    
    

    The patient's age and his smoking habit did not, given his other signs and symptoms, require a cardiac work-up, and Dr. Delgado reasonably did not suspect nor pursue possible cardiac complications.

    
    

    Dr. Delgado's failure to record the fact of cigarette smoking does not alone make his medical records of the patient inadequate. Essential information was noted, albeit briefly, and was consistent with standards for community emergency facilities.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Section 458.331(1), F.S., provides that disciplinary action in the form of license revocation or suspension, probation, a fine or reprimand, may be taken for the following violations alleged in the administrative complaint:

    
    

    * * *

    (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

    * * *

    (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. The Board of Medicine has adopted rules describing disciplinary guidelines for the imposition of the above described penalties. Rule 21M- 20.001, F.S., provides the following range of penalties for the alleged violations:

    
    

    * * *

    (m) Failure to keep (m) From a reprimand to written medical denial or two (2) years

    records. suspension followed by (458.331(1)(m), F.S.) probation and an

    administrative fine from $250.00 to

    $5,000.00.

    * * *

    (t) Malpractice (t) From two (2) years (458.331(1)(t), F.S. probation to revocation

    or denial, and an administrative fine from

    $250.00 to $5,000.00.

    * * *

    
    

19. In general, the agency has the burden of proving its allegations with evidence that is clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

    Section 458.331(3), F.S. (1989) provides:

    
    

    (3) 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 the evidence, to establish the existence of grounds for disciplinary action. The division shall establish grounds for revocation or suspension of license by clear and convincing evidence.

    
    

    On August 29, 1991, Counsel for Petitioner filed a post-hearing stipulation stating that neither suspension nor revocation would be sought, and asserting that the lesser standard of proof would apply.

    
    

20. It is not necessary to resolve which standard applies where, as here, the disciplinary guidelines plainly include the ultimate license penalty.

By either standard, the Petitioner has failed its burden.

Petitioner's expert witness based the substance of his opinion on assumptions that proper history and physical examinations were not conducted in the emergency room. Respondent established that the examinations were conducted. The results of those examinations were recorded, albeit summarily. The results of the tests ordered by Respondent are included in the emergency room records.

As recognized in Breesmen v. Department of Professional Regulation, 567 So.2d 469 (Fla. 1st DCA 1990), no statute nor rule apprises the physician of a duty to document in the patient's medical chart the reason for not performing particular tests or procedures. In Respondent's circumstances a minimal amount of information was available to allow neutral third parties to observe what transpired during the course of treatment of the patient. See Robertson v.

Department of Professional Regulation, 15 F.L.W. D1647, 1649 (Fla. 1st DCA, June 19, 1990).

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That a Final Order be entered dismissing the Administrative Complaint against Respondent, Benjamin P. Delgado, M.D.

DONE AND RECOMMENDED this 16th day of October, 1991, in Tallahassee, Leon County, Florida.

MARY CLARK

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 16th 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 3.

4. Rejected as contrary to the evidence or immaterial.

5. Rejected as immaterial or contrary to the evidence. The questions were asked or the conditions were observed and primarily positive findings were recorded.

6. Rejected as contrary to the evidence.

7.-8. Rejected as immaterial. Evidence indicates the examination and tests were sufficient for the symptoms presented.

1. Rejected as contrary to the evidence. See Joint Exhibit #1, where the test results are found attached.

2. Adopted in paragraph 9.

3. Adopted by implication in paragraph 9.

4. Adopted in paragraph 10.

13.-14. Rejected as contrary to the weight of evidence.

1. Adopted in paragraph 12.

2. Adopted in paragraphs 3 and 9.

3. Adopted in paragraph 9.

4. Rejected as immaterial.

5. Rejected as contrary to the evidence.

6. Rejected as immaterial.

7. Adopted in paragraph 12.

8. Adopted in paragraph 7.

23.-24. Rejected as contrary to the weight of evidence. Respondent's Proposed Findings

1. Adopted in paragraph 1.

2. Rejected as unnecessary.

3. Adopted in paragraph 3.

4.-5. Adopted in substance in paragraph 15.

1. Adopted in paragraph 12.

2. Adopted in paragraph 15.

3. Adopted in paragraph 12.

9.-10. Adopted in substance in paragraph 12.

1. Adopted in substance in paragraph 15.

2. Adopted in paragraph 10.

3. Adopted by implication in paragraph 12.

COPIES FURNISHED:

William B. Nickell, Sr. Atty. Dept. of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792

Robert Rao, Esquire

20 S. Rose Avenue Kissimmee, FL 34741

Mark Dabold, Esquire Suite 1550, Firstate Tower

255 South Orange Avenue Orlando, FL 32801

Dorothy Faircloth, Exec. Director DPR-Board of Medicine

1940 N. Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Dept. of Professional Regulation 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DPR CASE NUMBER: 89-07546

-vs- DOAH CASE NUMBER: 91-0869

LICENSE NUMBER: ME 0029222

BENJAMIN P. DELGADO, M.D.,

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on December 6, 1991, in Miami, Florida, for the purpose of considering the Hearing Officer's Recommended Order (a copy of which is attached hereto as Exhibit A) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Bruce D. Lamb, Attorney at Law. Respondent was present and represented by Robert Rao, Attorney at Law.

Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The conclusions of law by the Hearing Officer set forth on page 11 with regard to Section 458.31(1)(m), Florida Statutes, are rejected. In lieu thereof, the Board finds that the standard to be applied is a statutory standard, not a standard based on testimony by other physicians as to their practice. The Hearing Officer's citation to the Breesman and Robertson cases is inapposite. While Breesman v. Department of Professional Regulation, 567 So.2d

   469 (Fla. 1st DCA 1990), does hold that there was at that time no statute or

   rule 1/ apprising the physician of a duty to document in the patient's medical chart the reason for not performing particular tests or procedures, it does NOT stand for the proposition that a physician is not required to document in the chart those tests, procedures, or examinations which the physician does assert he performed. Contrary to the Hearing Officer's findings, the case of Robertson

   v. Department of Professional Regulation, Board of Medicine, 574 So.2d 153 (Fla. 1st DCA 1991), specifically asserts, in affirming the Hearing Officer:

   
   

   It is clear from the evidence and from the hearing officer's findings that the hearing officer applied neither a local or national standard, but the Florida statutory standard in finding a violation on this charge. 2/ [Emphasis supplied.]

   
   

3. The other conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

4. There is competent substantial evidence to support the conclusions of

law.

DISPOSITION

Upon a complete review of the record in this case, the Board determines

that the disposition recommended by the Hearing Officer be ACCEPTED and ADOPTED. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

The Administrative Complaint filed in this cause is DISMISSED.

This order takes effect upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 19th day of December , 1991.

BOARD OF MEDICINE

ZACHARIAH P. ZACHARIAH, M.D. CHAIRMAN

ENDNOTE

1/ However, see new Rule 21M-27.003, Florida Administrative Code, adopted in December 1991.

2/ That charge was a violation of Section 458.331(1)(m), Florida Statutes.

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST -BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Benjamin P. Delgado, M.D., 801 West Oak Street, #104, Kissimmee, Florida 32742 and Robert Rao, Attorney at Law, 20 S. Rose Avenue, Kissimmee, Florida 34741, by U.S. Mail to Mary Clark, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32 399- 1550; and by interof fice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792 at or before 5:00 P.M., this day of , 1991

DOROTHY J. FAIRCLOTH

Docket for Case No: 91-000869

Orders for Case No: 91-000869