STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIRK A. WOODSON, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 91-4278F

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Respondent. )

)

FINAL ORDER

On September 17, 1991, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lee Sims Kniskern, Esquire

100 Almeria Avenue, Suite 360 Post Office Box 144635

Coral Gables, Florida 33114-4635

For Respondent: Mary B. Radkins, Esquire

Senior Attorney

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether the Respondent, the Department of Professional Regulation, should pay the Petitioner, Kirk A. Woodson, M.D., attorney fees and costs under Section 57.011, Fla. Stat. (1989), the Florida Equal Access to Justice Act. As reflected in the Preliminary Statement, the parties stipulate that the Petitioner is a "prevailing small business party" and that reasonable fees and costs exceed $15,000, the statutory cap. The only remaining issue under the statute is whether the Respondent was "substantially justified" in filing the Administrative Complaint in Case No. 90- 5986 against the Petitioner. 1/

PRELIMINARY STATEMENT

On or about July 3, 1990, the Respondent, the Department of Professional Regulation, filed a two-count Administrative Complaint seeking to discipline the Petitioner, Kirk A. Woodson, M.D., a Florida licensed physician. Count I alleged that, in treating a patient who presented at the emergency room at University Community Hospital in Tampa, Florida, with heavy and continuous

vaginal bleeding, Woodson failed to practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances, in two respects: first, Woodson allegedly caused volume overload in the patient by ordering units of whole blood, instead of packed blood, to replace the patient's blood loss; and, second, Woodson allegedly took too long, without justification, to perform the necessary surgery. Count II alleged that Woodson failed to keep written medical records justifying the course of treatment of the patient, specifically with respect to ordering whole blood instead of packed units and with respect to the length of the surgical procedures.

The Administrative Complaint was referred to the Division of Administrative Hearings and was assigned DOAH Case No. 90-5986. In the course of formal administrative proceedings, the case was set for hearing on May 10, 1991, but on May 8, 1991, the Department filed a Notice of Voluntary Dismissal, and on or about May 10, 1991, an Order Closing File was entered. On July 9, 1991, the Petitioner filed a Petition for an Award of Attorney's Fees and Costs.

After some initial procedural delays, the Department filed the Respondent's Response to Petition for Attorney's Fees and Costs. In its response, the Department admitted that the Petitioner is a "prevailing small business party" and that reasonable fees and costs exceed $15,000, the statutory cap. The only remaining issue under the statute was whether the Department was "substantially justified" in filing the Administrative Complaint in Case No. 90-5986. 2/ Because the Department had the burden to prove that its Administrative Complaint in Case No. 90-5986 was "substantially justified," 3/ the Department proceeded to present evidence on the issue and had Respondent's Exhibits 1 through 5 admitted in evidence. (Respondent's Exhibit 3 was the transcript of the deliberations of the panel that found probable cause and included the entire investigative report, which included a draft copy of the Administrative Complaint, that was presented to the probable cause panel.) The Department also called one witness to testify. Petitioner's Exhibits 1 and 3, and 6 through 11, were admitted in evidence. (Documents that had been marked Petitioner's Exhibit's 2, 4 and 5 were not offered in evidence.)

At the conclusion of the final hearing, the Department ordered the preparation of a transcript, which was filed on September 25, 1991. The Petitioner requested, and the Department did not oppose, an October 15, 1991, deadline for filing proposed final orders. The parties later agreed to a further extension to October 18, 1991. Explicit rulings on the proposed findings of fact in the parties' proposed final orders may be found in the attached Appendix to Final Order, Case No. 91-4278F.

FINDINGS OF FACT

1. On or about June 7, 1988, a complaint was filed against the license of the Petitioner, Kirk A. Woodson, M.D., subsequent to closure of a professional malpractice liability claim against him without payment of indemnity. The substance of the complaint was that, on January 1, 1986, Woodson saw and performed a hysterectomy on a patient who had presented at the emergency room at University Community Hospital in Tampa, Florida, with heavy and continuous vaginal bleeding. The complaint stated that post-surgery the patient developed Adult Respiratory Distress Syndrome (ARDS) and died. The complaint questioned whether Woodson failed to practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances.

2. By letter dated June 30, 1988, the Department of Professional Regulation (the Department or DPR) notified Woodson that it had received the complaint and that it was initiating an investigation.

   
   

3. DPR subpoenaed the hospital records which revealed that the patient arrived at the UCH emergency room at 5:28 a.m. on January 1, 1986, with at least a three-day history of vaginal hemorraging. An emergency room physician saw the patient, gave her two units of packed blood cells, and admitted her to Woodson's service. Woodson was called at approximately 8:30 a.m. and saw the patient later that morning. The patient's admission to surgery to determine the cause of the bleeding and perform necessary procedures was delayed until at least approximately 2:00 p.m. because the patient refused to consent to a dilation and curettage (D and C); she was insisting on a hysterectomy only. She finally consented to a D and C to be followed by a hysterectomy if Woodson found it to be medically necessary. During this delay, the patient continued to bleed and was transfused with two more units of packed blood cells at approximately 1:45

   p.m. After the consent was given, there was a further delay, not explained by the records, until approximately 6:00 p.m. in getting the patient to surgery. The patient continued to bleed. Surgery took almost five hours. During surgery, the patient's bleeding got worse, and she was transfused with four more units of whole blood during the surgery. The DPR investigator was unable to ascertain from the hospital records the reason for the length of the surgery.

   
   

4. The DPR investigator attempted to arrange an interview with Dr. Woodson and his attorney on or about February 28, 1989. The appointment was cancelled. When the DPR investigator contacted Woodson to reschedule the interview, Dr. Woodson questioned why DPR was pursuing the complaint when the malpractice claim was closed without payment of indemnity. Dr. Woodson agreed to be interviewed but expressed his preference that the investigator first review the "extensive depositions" taken in the malpractice litigation. 4/ Having already determined to request an expert evaluation of the case, the investigator decided to postpone the interview with Dr. Woodson.

   
   

5. On July 10, 1989, the DPR asked a probable cause panel of the Board of Medicine to authorize the retention of an expert in gynecology to review the information obtained through investigation to that point in time to assist in the determination whether Woodson's treatment of the patient fell below that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances. On July 22, 1989, the probable cause met and authorized the expert review.

   
   

6. On or about November 2, 1989, the DPR requested an expert review by Doris N. Carson, M.D., a Board-certified gynecologist with extensive surgical experience, including emergency room experience. Dr. Carson reviewed the hospital records supplied by DPR, some of which were difficult to read.

   
   

7. By letter dated November 20, 1989, Dr. Carson reported her impressions.

   
   

   Dr. Carson believed the records supported Dr. Woodson's diagnosis and ultimate course of treatment. In the patient's condition, the proper course of treatment was to attempt to stop the vaginal bleeding by doing a D and C; a hysterectomy only should have been attempted if the D and C did not stop the bleeding.

   However, Dr. Carson perceived other problems that were not explained to her satisfaction by the hospital records.

   
   

   First, Dr. Carson did not see anything in the records to justify the length of the surgical procedures performed by Dr. Woodson. She reported:

   Careful review indicated that the subject attempted to remove the fibroids vaginally, and when this only increased the bleeding, then decided to do a laparotomy. The uterus, although enlarged, was not huge and the procedure as described seemed to move along without difficulty. When, however, the time is reviewed five hours would indicate very serious problems of technique or what seems more likely a lot if indecision about how to proceed. Evidently there was no physician surgical assistant, and the subject proceeded alone. In retrospect better operationg room help should have been available.

   
   

   Second, Dr. Carson felt that the patient received too much whole blood replacement during the course of the day and the surgery. Her reading of the hospital records indicated to her that five units of whole blood were given to the patient in addition to four units of packed cells. She felt: "Packed cells altogether would have been a better choice in light of the volume given to the patient." Her concern was that "volume overload," rather than ARDS, may have resulted ultimately in the death of the patient. However, she disclaimed the necessary expertise to render a conclusive opinion on the question and recommended that, if the DPR wanted a conclusive opinion on the cause of death, it should have a specialist in intensive care or a respiratory expert review the records.

   
   

   Dr. Carson had some difficulty with the delay in getting the patient to the operating room. The records indicated that at least some of the delay was caused by the patient's unwillingness to give consent to the recommended D and

   C. But Dr. Carson nonetheless had concerns that the delay added to the amount of blood transfused.

   
   

   Dr. Carson closed her letter with this remark: "In conclusion: A poorly done sugical proceeding below the recognized normal level of care."

   
   

8. For reasons not apparent from the evidence presented, DPR did not interview Dr. Woodson before asking the probable cause panel to find probable cause and file a draft Administrative Complaint against Dr. Woodson based on Dr. Carson's expert review and the rest of the investigative report, including the hospital records. The draft Administrative Complaint, drawn in two counts, sought to discipline Dr. Woodson under Count I for failure to practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances, in two respects: first, for allegedly causing volume overload in the patient by ordering units of whole blood, instead of packed blood, to replace the patient's blood loss; and, second, for allegedly taking too long, without justification, to perform the necessary surgery. Count II alleged that Woodson failed to keep written medical records justifying the course of treatment of the patient, specifically with respect to ordering whole blood instead of packed units and with respect to the length of the surgical procedures.

   
   

9. The probable cause panel considered the matter at its meeting on June 22, 1990. Counsel for the panel pointed out that the "extensive depositions" Woodson had indicated he wanted the DPR investigator to read before Woodson was

   interviewed were not in the packet of materials reviewed by the panel. 5/ But members of the panel indicated that they had reviewed the material that was in the packet and that they thought the information contained in it was adequate to make a probable cause determination. One of the doctors on the panel called it a "horrendous case." She felt that Woodson had "swamped out the patient" and had performed "inappropriate types of fluid therapy and blood therapy." The other member mentioned the "five-hour operating time . . . without any real explanation." The panel's attorney pointed out the part of the report of investigation that referenced the patient's refusal to consent to Dr. Woodson's proposed surgery and asked whether it constituted "any semblance of an explanation for a delay?" It is not clear from the transcript of the probable cause proceeding how the panel resolved the attorney's question, but the panel voted to find probable cause notwithstanding the question. 6/

   
   

10. There is information in the materials reviewed by Dr. Carson, and by the probable cause panel, which tends to explain some of the time it took for Dr. Woodson to perform surgery on the patient. Some of this partially exculpatory information was difficult to read and decipher in the records. Some of the partially exculpatory information was acknowledged by Dr. Carson and may also have been taken into account independently by the panel. Notwithstanding this partially exculpatory information in the record, the finding of probable cause was substantially justified.

    
    

    CONCLUSIONS OF LAW

    
    

11. This proceeding commenced with the filing of a Petition for an Award of Attorney's Fees and Costs under the Florida Equal Access to Justice Act, Section 57.111, Fla. Stat. (1989). The Department's response to the petition admits both that the Petitioner is a "prevailing small business party" and that reasonable fees and costs exceed $15,000, the statutory cap. See Section 57.111(4)(d)2. In pertinent part, Section 57.111 provides for the payment of attorney fees and costs incurred in a formal administrative proceeding to a "prevailing small business party," as defined in the statute, "unless the actions of the state agency were substantially justified . . .." Section 57.111(4)(a). "A proceeding is substantially justified if it had a reasonable basis in law and in fact at the time it was initiated by the state agency." Section 57.111(3)(e). The only remaining issue under the statute is whether the Department was "substantially justified" in filing the Administrative Complaint in Case No. 90-5986. 7/

    
    

12. The Respondent has the burden to prove that its Administrative Complaint against the Petitioner was "substantially justified." See Dept. of Prof. Reg. v. Toledo Realty, Inc., 549 So. 2d 1715 (Fla. 1st DCA 1989).

    
    

13. As indicated by the language of Section 57.111(3)(e), the question whether an agency proceeding is "substantially justified" hinges on the the basis for the proceeding "at the time it was initiated by the state agency." See Lindsey v. Dept. of Ins. and Treasurer, 11 F.A.L.R. 94, 99 (DOAH 1988); Romaquera v. Dept. of Prof. Reg., 10 F.A.L.R. 929 (DOAH 1988). The results of subsequent investigation or discovery, like the evidence presented at a final hearing, are not directly relevant to the inquiry.

    
    

14. In this case, the Administrative Complaint "had a reasonable basis in law and in fact at the time it was initiated by the state agency" and was "substantially justified," under Section 57.111. See Gentele v. Dept. of Prof. Reg., 513 So. 2d 672, 673 (Fla. 1st DCA 1987).

15. The Petitioner contends that the Department's investigation of the Administrative Complaint was not a "meaningful inquiry" into the Petitioner's culpability. Cf. Fieber v. Dept. of Banking and Finance, 9 F.A.L.R. 5236 (DOAH 1987). But, without condoning the practice, which increases the possibility of the initiation of unwarranted prosecutions, it is concluded that, particularly under the circumstances of this case, the DPR's failure to interview the physician being charged does not require the conclusion that the Administrative Complaint has no "reasonable basis in law and in fact." Similarly, it is concluded that the presence of partially exculpatory information in the materials reviewed by Dr. Carson and by the panel does not require the conclusion that the Administrative Complaint has no "reasonable basis in law and in fact."

    
    

16. It is concluded that, under the circumstances of this case, notwithstanding the DPR's failure to interview the physician being charged, and notwithstanding the presence of partially exculpatory information in the materials reviewed by Dr. Carson and by the panel, the finding of probable cause was substantially justified, and the Administrative Complaint had a "reasonable basis in law and in fact."

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the Petition for an Award of Attorney's Fees and Costs is dismissed.

ORDERED this 31st day of October, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 31st day of October, 1991.

ENDNOTES

1/ The Respondent does not contend that "special circumstances exist which would make the award unjust."

2/ See footnote 1, above.

3/ See Conclusion of Law 2, below.

4/ It is not clear from the record whether the depositions, assuming they were taken as part of the malpractice litigation, ever were transcribed or, if they were transcribed, whether they ever were reviewed by the DPR investigator. They were not made part of his investigative report.

5/ See footnote 4, above.

6/ The question actually did not appear germane to the draft Administrative Complaint, which did not charge Woodson with responsibility for the delay in getting the patient to the operating room.

7/ See footnote 1, above.

APPENDIX TO FINAL ORDER, CASE NO. 91-4278F

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-6. Accepted and incorporated to the extent not subordinate or unnecessary.

7. Accepted and incorporated to the extent not subordinate or unnecessary. However, although the patient's vital signs were stable, her vaginal bleeding was continuous and a serious concern.

8.-9. Accepted and incorporated to the extent not subordinate or unnecessary.

10. Accepted and incorporated to the extent not subordinate or unnecessary. However, although the patient's vital signs were stable, her vaginal bleeding was continuous and a serious concern.

11.-14. Accepted and incorporated to the extent not subordinate or unnecessary.

15. The recitations of the various entries in the chart, although not readily apparent in each case, are accepted and incorporated to the extent not subordinate or unnecessary. However, the proposed findings as to what the chart entries "indicated" are rejected as not proven.

16.-18. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as not proven that the case was "extraordinary." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. Rejected as not proven that "the radiology report indicated that there were . . . infiltrates which were based on a non-cardiogenic pulmonary edema or ARDS." (The report stated that they were "most likely" based on non-cardiogenic pulmonary edema.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

22.-23. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as not proven that Dr. Schwartz ruled out volume overload, but rather that he ruled out volume overload as the direct and continuing cause of, and medical explanation for, the patient's respiratory problems. (It also was not proven that volume overload was not a contributing factor to the patient's ARDS.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. Rejected as not proven what the pathology report "indicated." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

4. Accepted and incorporated to the extent not subordinate or unnecessary.

5. Second and third, and sixth through eigth sentences rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

6. Accepted and incorporated to the extent not subordinate or unnecessary.

7. Accepted and incorporated to the extent not subordinate or unnecessary. (These are excerpts with emphasis selected by the Petitioner.)

8. Accepted and incorporated.

9. Accepted and incorporated to the extent not subordinate or unnecessary. (The prosecutor was paraphrasing the draft Administrative Complaint.)

10. Rejected as unclear and not proven. (The excerpt from the transcript is accepted and incorporated to the extent not subordinate or unnecessary.

11. Rejected as being a conclusion of law.

12. As for a.) and d.), accepted that these details were not discussed per se; but these facts are subordinate to facts contrary to those found. As for e.), rejected as not proven and as conclusion of law that the panel did not take a "formal vote." (Even if no "formal vote" was taken, the evidence is clear that the panel voted to find probable cause.) The rest is accepted and incorporated to the extent not subordinate or unnecessary.

36.-38. Accepted but subordinate to facts contrary to those found.

39. Rejected as not proven and as conclusion of law. It is found and concluded that their practices were similar enough for DPR to utilize Dr. Carson's opinions as the basis for a probable cause determination.

40.-41. See 36.-38. and 39., above.

1. Accepted but subordinate to facts contrary to those found.

2. Accepted but subordinate to facts contrary to those found.

3. Rejected as not proven that the records were "clear." The rest is accepted but subordinate to facts contrary to those found.

4. First and third sentences, rejected as not tried and therefore not proven. (The issue was whether the probable cause determination was substantially justified, not the merits of the Administrative Complaint.) Second sentence, accepted but not probative and unnecessary. Also, subordinate to facts contrary to those found.

Respondent's Proposed Findings of Fact.

1.-17. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as argument and unnecessary.

2. Rejected as contrary to the greater weight of the evidence that the patient bled "profusely" all the time. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

20.-32. Accepted and incorporated to the extent not subordinate or unnecessary.

33. Accepted and incorporated to the extent not subordinate or unnecessary.

34.-37. Accepted but irrelevant and unnecessary.

1. Accepted and incorporated.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. Accepted. Subordinate to facts found (or not found.)

4. Accepted and incorporated to the extent not subordinate or unnecessary.

5. Rejected in part as argument. In part, accepted and incorporated to the extent not subordinate or unnecessary.

43.-44. Accepted but irrelevant and unnecessary.

45. Last sentence, rejected as not established. The rest, accepted but irrelevant and unnecessary.

COPIES FURNISHED:

Lee Sims Kniskern, Esquire

100 Almeria Avenue, Suite 360 Post Office Box 144635

Coral Gables, Florida 33114-4635

Mary B. Radkins, Esquire Senior Attorney

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

George Stuart Secretary

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, Esquire General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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 DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-004278F

Orders for Case No: 91-004278F