STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6669

)

JAYAPRAKASH KAMATH, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

On April 30, 1992, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Francesca Plendl, Esquire

Senior Attorney

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Bruce D. Lamb, Esquire

Shear, Newman, Hahn & Rosenkranz, P.A.

201 East Kennedy Boulevard Suite 1000

Tampa, Florida 33601 STATEMENT OF THE ISSUES

The issues for determination in this case are whether the Board of Medicine should discipline the Respondent, Jayaprakash Kamath, M.D., on charges set out in the Administrative Complaint, DPR Case No. 89-8841. Specifically, the Administrative Complaint charges that the Respondent was guilty of gross or repeated malpractice or 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 and that he failed to keep written medical records justifying the course of treatment of a patient, in violation of Section 458.331(1)(m) and (t), Fla.

Stat. (1991)--and, if so, what discipline is appropriate.

PRELIMINARY STATEMENT

On or about September 17, 1991, the Petitioner, the Department of Professional Regulation, filed against the Respondent, Jayaprakash Kamath, M.D., an Administrative Complaint, DPR Case No. 89-8841, as described in the Statement

of the Issues. The Respondent timely requested formal administrative proceedings under Section 120.57(1), Fla. Stat. (1991), and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on or about October 17, 1991. The case initially was scheduled for final hearing on January 29, 1992, but was continued on the Respondent's unopposed motion to April 30, 1991.

At the final hearing, by agreement of the parties, the Respondent initially called five witnesses out of order. Then the DPR called an expert witness before the Respondent called two expert witnesses and testified in his own behalf.

The DPR also had Petitioner's Exhibits 1 through 9 admitted in evidence.

1/ Petitioner's Exhibit 7 is the transcript of the deposition of an expert witness.

The Respondent had Respondent's Exhibits 1 through 6 admitted in evidence and, by agreement of the parties, was permitted to file, as a late exhibit, Respondent's Exhibit 5, the transcript of a deposition to be taken.

Respondent's Exhibit 1 was an affidavit which the parties stipulated was sufficient in itself to support a finding. Respondent's Exhibits 3 and 4 were the transcripts of depositions of expert witnesses. Respondent's Exhibits 2 and

5 were the transcripts of depositions of fact witnesses, namely the radiologist and emergency room physician in the case, respectively.

At the end of the hearing, the DPR ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript, or the filing of Respondent's Exhibit 5, in which to file proposed recommended orders. The transcript of the final hearing was filed on June 11, and Respondent's Exhibit 5 was filed on June 15, 1992, making proposed recommended orders due to be filed on or before June 25, 1992. The Respondent's unopposed motion for a one day extension was granted.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 91-6669.

FINDINGS OF FACT

1. The Respondent, Jayaprakash Kamath, M.D., is a licensed physician in the State of Florida, having license ME 0036704. He is board certified in internal medicine and gastroenterology. He has had no prior complaints of any kind against him since he began practicing medicine in Florida in 1980, and he has a reputation for being a competent and caring physician.

   
   

2. On the morning of August 1, 1988, while making rounds at Morton Plant Hospital in Clearwater, Florida, the Respondent was paged by one of his partners, Belur Sreenath, M.D. The Respondent returned the call and was asked to see a patient whom Sreenath had just accepted and admitted on a 23-hour basis at Morton Plant. Sreenath reported that the patient was a referral from the Morton Plant emergency room. The patient's regular physician was on vacation, and the regular physician's on-call cover had recommended to the emergency room physician that the patient be referred to the Respondent and Sreenath to treat the patient for diagnosed fecal impaction. It was reported to the Respondent, through Sreenath, that the patient had come into the emergency room at about five in the morning complaining of abdominal pain and constipation. The emergency room physician, Jerry Julius Chase, M.D., had three X-rays done and

   had done his own "wet reads" of the X-rays before sending them to the radiology department for a definitive interpretation. According to Chase, the X-rays showed "much fecal matter, no obstruction." Chase did not mention any other significant findings. Chase's preliminary diagnosis was "fecal impaction." Sreenath also reported that he (Sreenath) had ordered enemas for the patient.

   
   

3. Soon after the Respondent received the call from his partner, the Respondent called Chase, who was still in the emergency room and still had the X-rays. Chase confirmed what Sreenath had told the Respondent, again not mentioning any other significant findings.

   
   

4. After talking to Chase, the Respondent visited the patient in his hospital room. By this time it was about 10:00 a.m. The Respondent took a history from the patient, examined the patient, and read the patient's chart. The chart included the results of lab work and the "ER sheet," which included the emergency room physician's diagnosis of abdominal pain and impaction and the results of his "wet-read" of the X-rays, but it did not yet include a report from the radiology department or the X-rays themselves. The Respondent did not contact the radiology department for a definitive interpretation of the X-rays or obtain the X-rays for his own review.

   
   

5. By the time the Respondent saw the patient, the patient already had one enema and seemed to be responding to the treatment. Based on the information he had, the Respondent made a diagnosis of fecal impaction, confirmed his partner's orders for enemas for the patient, and added a stool softener. The nursing staff was ordered to monitor the patient's progress.

   
   

6. The patient continued to respond satisfactorily to treatment during the day. Between ten and eleven in the evening of August 1, 1988, the patient complained of some abdominal pain or cramping (symptoms that are consistent with a diagnosis of fecal impaction and enema treatments) and the nurses on duty contacted the Respondent's partner, who was on call. Sreenath ordered a combination of demerol and vistaril as an analgesic. One small dose was enough to relieve the patient's pain, and the patient slept through most of the night. He ate 80% of his breakfast the next morning and was not complaining of pain or asking to see a doctor.

   
   

7. At approximately 9:15 a.m. on August 2, 1988, a nurse telephoned the Respondent for a decision whether the patient was being discharged or was being admitted as an inpatient. The Respondent still had not seen the patient's X- rays, seen or had reported to him the radiology report on them, or spoken to the radiologist. On questioning, the nurse reported the patient's status to the Respondent. The nurse's report satisfied the Respondent that the patient was responding to the treatment for fecal impaction and could be discharged. The nurse was given orders to have arrangements made for the patient to see his regular physician within a week and to instruct the patient on symptoms to report if they occurred between discharge and seeing his regular physician. In accordance with the Respondent's telephone instructions, the patient was discharged at approximately 9:30 a.m. on August 2, 1988.

   
   

8. Although there were no clinical signs or symptoms of it during the patient's stay at Morton Plant, the patient had a large aortic aneurysm, approximately eight centimeters in diameter, in his abdomen just below the renal arteries. The aneurysm was readily apparent on the X-rays, yet Chase did not report it to either the Respondent or to his partner, Sreenath. The radiologist either did not contact Dr. Chase to point out to him that the report of Chases's "wet read" of the X-rays omitted the aneurysm or, if he did, Chase did not relay

   this information to the Respondent or his partner. The radiologist's written report, stating that the X-rays revealed the large aneurysm, was sent to Chase, not to the Respondent, and Chase did not relay the information in it to the Respondent or his partner.

   
   

9. If the Respondent had known about the aneurysm, he would have considered the aneurysm to be the patient's most serious medical concern. He might not have accepted the patient or, if he did, he probably would have brought a vascular surgeon into the case and had the vascular surgeon, or perhaps a cardiologist, closely monitor the patient for possible leaking or dissecting or rupture of the aneurysm. The Respondent also would have had to give consideration to whether the aneurysm was a cause of the patient's abdominal pain.

   
   

10. In addition to treating the aneurysm as the patient's most serious medical concern, giving consideration to whether the aneurysm was a cause of the patient's abdominal pain, the Respondent would have had to give consideration to altering his diagnosis for the patient had he reviewed the X-rays or the radiologist report, or had spoken with the radiologist. In addition to showing the existence of the aneurysm, the X-rays indicated that the patient technically may not have been impacted. (The gas pattern was non-specific.)

    
    

11. With respect to this patient, the Respondent practiced medicine below that level of care, skill and treatment which is recognized by a reasonably prudent similar physicians as being acceptable under similar conditions and circumstances (below the standard of care) in that he did not either personally review the X-rays on the patient, read or have reported to him the contents of the radiologist's report, or talk to the radiologist. Instead, he relied totally on the emergency room physician's "wet read." As a result, the Respondent's diagnosis of "fecal impaction" may not have been correct, and he did not give proper consideration to the aneurysm. However, except for the failure regarding the X-rays, the DPR otherwise did not prove that it was below the standard of care for the Respondent, who was treating the patient for fecal impaction, to discharge the patient without seeing him on the morning of August 2, 1988, based on the nurse's report to the Respondent.

    
    

12. Although it was below the standard of care for the Respondent not to either read the X-rays himself or obtain the radiologist's definitive interpretation, it was reasonable for the Respondent to expect that the emergency room physician would have told him, and noted in the "ER sheet," that the patient he was being referred had an aneurysm of the kind and size of the one the patient had in this case. Even if the emergency doctor had not initially communicated to the Respondent the existence of the aneurysm, either directly or through the "ER sheet," it was reasonable for the Respondent to expect that, in the normal course, the radiologist reviewing the X-rays would have noted that, according to the "ER sheet," the ER doctor "missed" the aneurysm and would have contacted the ER physician to bring this to his attention, and that the ER doctor then would have contacted the Respondent to advise him of the omission.

    
    

13. The patient did not experience abdominal pain after his discharge from Morton Plant, but he began to experience back and groin pain. The aneurysm was becoming symptomatic. The patient's symptoms markedly worsened in the early morning hours of August 4, 1988. The patient's wife had him taken to the emergency room at HCA New Port Richey Hospital at approximately half past midnight. The patient was confused, and was complaining of pain in the back and groin area. His blood sugars were three times normal. He was diagnosed

    preliminarily in the emergency room as having out-of-control diabetes and confusion and as being near sycope. No X-rays were taken in the emergency room at New Port Richey Hospital, and no information was obtained from Morton Plant Hospital. Because the patient and his wife did not know about the aneurysm, they were unable to report it when the emergency room physician took the patient's history.

    
    

14. The patient was admitted to New Port Richey Hospital at approximately 2:30 a.m. on August 4, 1988. However, the admitting physician did not see the patient or order diagnostic medical imaging at that time. The admitting physician saw the patient at approximately 9:00 a.m., and ordered X-rays and a CAT scan.

    
    

15. Before the X-rays or CT scan were taken, at approximately ten o'clock, the patient suffered an acute hypotensive event while in his hospital room. An emergency abdominal sonogram was ordered, and it was determined that the patient was suffering from the rupture of the abdominal aortic aneurysm (the same one that was evident on the X-rays taken at Morton Plant). Surgery was attempted to resect the ruptured aneurysm. The patient was a poor candidate for surgery of that kind due to his age and other health factors. The patient died on August 6, 1988.

    
    

16. If the patient knew of the aneurysm, it is likely that his treatment on August 4, 1988, would have been far different. First, when the aneurysm became symptomatic, they probably would have contacted the vascular surgeon, who would have been on the case already, either immediately or on arrival at the emergency room. The aneurysm would have been closely monitored from the time of arrival at the hospital, and the vascular surgeon would have been prepared for surgery when indicated. 2/ At the very least, the patient and his wife probably would have reported the aneurysm during the taking of a history in the emergency room at HCA New Port Richey Hospital, and the emergency room surgeon could have immediately taken appropriate steps, such as contacting a vascular surgeon and immediately ordering appropriate diagnostic medical imaging. 3/

    
    

17. The Respondent did not dictate admission notes for the patient until August 17, 1988. The Respondent did not dictate discharge notes.

    
    

18. The DPR did not prove that it was below the standard of care for the Respondent to delay the dictation of admission notes or for him not to prepare a discharge summary for a patient in the hospital on a 23-hour basis.

    
    

19. The DPR also did not prove that the Respondent failed to keep written medical records justifying the course of treatment of the patient.

    
    

    CONCLUSIONS OF LAW

    
    

20. In this proceeding, the burden is on the Petitioner, the Department of Professional Regulation, to prove the charges in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

21. Section 458.331, Fla. Stat. (1991), provides in pertinent part:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection

    2. may by taken:

       * * *

       (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) Being guilty of 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.

       * * *

       (2) When the board finds any person guilty of any of the grounds set forth in subsection (1), . . . it may enter an order imposing one or more of the following penalties:

       * * *

       1. Revocation or suspension of a license.

       2. Restriction of practice.

       3. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

       4. Issuance of a reprimand.

       5. Placement of the physician on probation for a period of time and subject to such conditions as the board may specify . . ..

       6. Issuance of a letter of concern.

       
       

22. As to paragraph (t) of Section 458.331(1), the DPR charges in essence:

    1. that the Respondent should have either personally looked at the patient's X- rays, reviewed the radiologist's report, or talked to the radiologist; (2) that the Respondent should have seen the patient prior to discharge; and (3) that the Respondent took too long to dictate his admission notes. 4/

       
       

23. It is clear that the health care system failed the patient in this case. The Respondent did not know of, and no one ever advised the patient of, the presence of a large aortic aneurysm near the patient's renal arteries that was obvious on X-rays taken in the Morton Plant Hospital emergency room. As a result, the appropriate course of treatment was not followed. Nor was the appropriate course of diagnosis and treatment followed at the HCA New Port Richey Hospital. The Respondent, in his defense, blames it all on others involved in the delivery of health care to the patient. The issue is the extent to which the Respondent, as opposed to just others, was at fault.

    
    

24. As found in Finding of Fact 11, with respect to this patient, the Respondent practiced medicine below that level of care, skill and treatment which is recognized by a reasonably prudent similar physicians as being acceptable under similar conditions and circumstances (below the standard of care) in that he did not either personally review the X-rays on the patient, read or have reported to him the contents of the radiologist's report, or talk to the radiologist. Instead, he relied totally on the emergency room physician's "wet read." As a result, the Respondent's diagnosis of "fecal impaction" may not have been correct, and he did not give proper consideration to the aneurysm. However, except for the failure regarding the X-rays, the DPR otherwise did not prove that it was below the standard of care for the Respondent, who was treating the patient for fecal impaction, to discharge the

    patient without seeing him on the morning of August 2, 1988, based on the nurse's report to the Respondent.

    
    

25. As found in Finding of Fact 18, DPR also did not prove that it was below the standard of care for the Respondent to delay the dictation of admission notes or for him not to prepare a discharge summary for a patient in the hospital on a 23-hour basis.

    
    

26. As to paragraph (m) of Section 458.331(1), as found in Finding of Fact 19, the DPR did not prove that the Respondent failed to keep written medical records justifying the course of treatment of the patient. Cf. F.A.C. Rule 21M-

    27.003. Cf. also Breesmen v. Dept. of Prof. Reg., 567 So. 2d 469 (Fla. 1st DCA 1990).

    
    

27. Based on the penalty guidelines set out in F.A.C. Rule 21M-20.001, the appropriate recommended penalty range for one count of violating Section 458.331(1)(t) would be from two years probation to revocation, and an administrative from $250 to $5,000. 5/ Aggravating and mitigating factors are set out in F.A.C. Rule 21M-20.001(3).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent, Jayaprakash Kamath, M.D., guilty of one count of violating Section 458.331(1)(t), but dismissing the other count of the Administrative Complaint;

1. reprimanding him; and (3) fining him $2,000.

RECOMMENDED this 27th day of July, 1992, 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 27th day of July, 1992.

ENDNOTES

1/ Petitioner's Exhibit 8 was admitted in evidence but it constitutes hearsay that would not be admissible over objection in a civil action and is not sufficient in itself to support a finding.

2/ It is quite possible, due to the patient's poor surgical status, that surgery to repair the aneurysm still would have been delayed until it ruptured. But it also is possible that surgery would have been initiated before the rupture in light of the marked and rapidly increasing symptoms being experienced by the patient.

3/ As pointed out by the Respondent in his defense, it may well also have been below the standard of care for the ER physician, and the admitting physician, at HCA New Port Richey Hospital not to have ordered X-rays at the earliest opportunity, perhaps on stat basis and that their failure to do so also caused delays in appropriate care for the patient. But those issues were not fully litigated and, in any event, other failures would not excuse the Respondent's failures.

4/ The DPR also charges that the Respondent should have followed a different course of treatment, including referring the case to a vascular surgeon, and should have told the patient, certainly before the patient left Morton Plant Hospital, that he had an abdominal aneurysm. But there is no reason to think the Respondent would not have done so had he known about the aneurysm.

5/ The Petitioner's Proposed Recommended Order, cites F.A.C. Rule 21M-37.001, but that rule does not seem to apply.

APPENDIX TO RECOMMENDED ORDER

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-15. Accepted and incorporated.

16.-17. Accepted and incorporated to the extent necessary. 18.-19. Accepted and incorporated.

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

1. Rejected as not proven and as contrary to facts found.

   
   

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

   
   

3. Rejected as not proven and as contrary to facts found.

   
   

4. Accepted and incorporated.

   
   

5. Dr. Wu's purpose was not clear from the evidence, but otherwise accepted and incorporated to the extent not subordinate or unnecessary.

27.-30. Accepted and incorporated.

31. Accepted and incorporated. See Finding of Fact 16.

32.-33. Rejected in part and accepted and incorporated in part, as in part subordinate to facts found and in part subordinate to facts contrary to those found.

34. Accepted and incorporated.

35.-36. Rejected as not proven and as contrary to facts found.

1. Accepted and subordinate to facts found.

2. Rejected as not proven that it is "impossible." Otherwise, accepted but subordinate to facts found and unnecessary.

39.-40. Accepted but subordinate to facts found and unnecessary.

41. Rejected in part as not proven, contrary to the greater weight of the evidence and subordinate to facts contrary to those found. (He testified that, if the patient is admitted in the middle of the night and he does not see the patient until morning, he sometimes does not see the patient again before discharge.) Otherwise accepted, but the decision made by the Respondent in this case, given his ignorance of the existence of the aneurysm, was similar to the "objective" decisions about which the witness testified.

42.-45. Accepted but subordinate to facts found and unnecessary.

Respondent's Proposed Findings of Fact.

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

29. Second sentence, rejected as not clear from the evidence when the radiology report became a part of the patient's chart. The rest, accepted and incorporated.

30.-35. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Accepted and incorporated to the extent not subordinate or unnecessary. However, they do not rely on it in lieu of a definitive interpretation or a personal review of the X-ray.

   
   

2. Rejected as contrary to facts found.

38.-40. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as a finding in that the issue was not fully litigated in this case, and could only have been fully litigated in this case if the other physicians had been named as parties. However, it is clear that the circumstances suggested the appropriateness of a different course of diagnosis and treatment by the New Port Richey Hospital physicians as well.

   
   

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

   
   

3. Accepted and incorporated.

   
   

4. First sentence, rejected as contrary to the greater weight of the evidence and to facts found. (See Finding of Fact 16.) Second sentence, accepted and incorporated. Third sentence, rejected as not clear from the evidence that the patient would not have survived surgery if initiated earlier, but the odds were against the patient due to the nature of the surgery and the patient's poor surgical status.

45.-46. Accepted but subordinate to facts found, and unnecessary.

1. Accepted and incorporated.

2. Rejected in part (not informing himself as to the X-rays, either by personally reading them or by obtaining the radiologist's definitive interpretation) as contrary to facts found; accepted in part (as to the other charges) and incorporated.

COPIES FURNISHED:

Francesca Plendl, Esquire Senior Attorney

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Bruce D. Lamb, Esquire

Shear, Newman, Hahn & Rosenkranz, P.A.

201 East Kennedy Boulevard Suite 1000

Tampa, Florida 33601

Dorothy Faircloth Executive Director 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 SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE BOARD OF MEDICINE WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE BOARD OF MEDICINE CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 91-006669

Orders for Case No: 91-006669