STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT )

OF PROFESSIONAL REGULATION, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2203

) DPR NO. 90-12147

PETER A. INDELICATO, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

This case has been presented upon a joint stipulation by which the Hearing Officer is requested to enter a recommended order. The factual basis for entry of the recommended order is pursuant to a joint composite exhibit. The parties did not intend to present additional evidence through a formal hearing and a hearing was not convened. The parties in their stipulation assert that the jurisdiction to proceed against the Respondent through disciplinary action directed to his license to practice medicine in Florida is as set forth in Chapter 455 and 458, Florida Statutes. Further the parties stipulate that Respondent was at all times relevant to the proceeding duly licensed to practice medicine in Florida. The stipulation as to the admission of the joint composite exhibit was by agreement to waive objections as to authenticity, relevance, applicability and hearsay. Among the items in the joint composite exhibit are letters stating the opinion of Drs. Haney, Kannell and Shea, related to Respondent's conduct for which he stands accused. The parties through their stipulation agree that those three physicians are well-qualified similar health- care providers when compared to the Respondent. Finally, the parties have stipulated to the jurisdiction of the Division of Administrative Hearings to entertain this dispute in the manner described and in accordance with Section 120.57(1), Florida Statutes.

The stipulation by the parties contemplated the opportunity to submit proposed recommended orders. Both parties have utilized that opportunity and the suggested fact finding set forth in those proposed recommended orders are addressed in an appendix within this recommended order.

APPEARANCES

For Petitioner: Mary Radkins, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: William B. Furlow, Esquire

Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge, P.A.

106 East College Avenue Tallahassee, Florida 32301

STATEMENT OF ISSUES

The issues in this case are those framed by the Administrative Complaint, DPR Case No. 90-12147, directed by Petitioner against Respondent. In this complaint Respondent is accused of performing a diagnostic arthroscopy on the patient's right knee when the appropriate knee for diagnostic arthroscopy evaluation was the left knee. By such conduct Respondent is alleged to have failed to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, in that he performed that diagnostic arthroscopy on the wrong knee without looking at the x-ray and patient's history. As a consequence the patient had to undergo the diagnostic arthroscopy on both knees. Respondent is said to have violated Section 458.331(1)(t), Florida Statutes, and is subject to discipline in accordance with Chapter 458, Florida Statutes. In the proposed recommended order by the Petitioner, its counsel recommends that the discipline be limited to a fine in the amount of

$1,000.00 and the issuance of a "Letter of Concern."

FINDINGS OF FACT

1. Petitioner has the responsibility to regulate the practice of medicine in the State of Florida under authority set forth in Chapters 20, 455 and 458, Florida Statutes.

   
   

2. Respondent is licensed to practice medicine in Florida. His license number is ME0030676. He has held that license at all times relevant to the inquiry. The events in this case transpired while Respondent was practicing medicine in Gainesville, Florida.

   
   

3. The dispute in this case concerns Respondent's treatment of a 16 year old male. That patient consulted the Respondent concerning injury to his left knee. Respondent took the history of the patient's complaints and noted that the patient was playing basketball and experienced pain in the left knee while running down the court and cutting. The history goes on to describe how the patient continued to play the game, ice his knee that night and felt that there was some mild swelling. The patient then played two more games the following day. He did not play after that time due to the pain that he experienced. The patient reported a similar episode that had occurred a year before. Nonetheless the patient reported that he had been able to complete a varsity sports schedule the year before without problems. The patient denied any locking, giving way or sense of instability in the left knee.

   
   

4. The patient history and physical which Respondent took on August 8, 1990, under the heading of physical examination, which is found at pages 47 and

   48 within the joint composite exhibit details the condition of the left knee. Following this examination Respondent suggested the possible use of diagnostic arthroscopy on an outpatient basis as a response to the condition. That procedure was anticipated to be performed on August 10, 1990, if the patient concurred and the parent consented. Respondent had explained to the patient and his mother that the patient may have damaged his knee and discussed the options which Respondent felt were appropriate in addressing the patient's condition.

   Those options included the diagnostic arthroscopy or watching or observing the condition of the knee for a period of time. The patient exercised the option to have the diagnostic arthroscopy performed on August 10, 1990.

   
   

5. Francis R. Croft, who is a financial assistant counselor for the orthopedic clinic at the University of Florida, was involved in scheduling the patient's diagnostic arthroscopy at the Florida Surgical Center (Center). She made contact with the Center at Respondent's behest. Ordinarily the individual who was responsible for making the scheduling contact with the Florida Surgical Center was a person whose name is Robin. Because Robin was not available to coordinate the scheduling for Respondent, Ms. Croft undertook that duty. In doing so she called to see if the patient could be added to the existing operation schedule at the Center for either Wednesday or Friday. Croft advised the Respondent that the Center personnel felt that it was necessary for the Respondent to speak to a nurse at the Center to arrange for the scheduling. Respondent discussed the scheduling with a nurse at the Center and the patient was added to the August 10, 1990 schedule.

   
   

6. Croft gave necessary information to Keri Bedford at the Center concerning the scheduling of the patient. Croft gave Bedford a yellow slip that was required to be given to the center. That slip indicated the diagnosis and the procedure that would be performed, that being a total left knee arthroscopy to rule out meniscus tear. In providing information Croft circled the letter "L" and wrote the word "left". The information being provided, including the diagnosis and the procedure to be completed was presented to Bedford.

   
   

7. Bedford was the scheduling secretary for the Center. She received the call to schedule the patient two days prior to the date upon which the surgery was scheduled. Among the information which Croft provided Bedford was the patient's name, date of birth and social security number. Bedford recalls that Croft told Bedford that the arthroscopy was to be performed on the left knee. Bedford then asked Croft if the procedure was for the left knee and Croft said "right". Croft meant to verify that the site of the arthroscopy was the left knee. Bedford interpreted the response "right" to mean that the procedure was to be performed on the right knee, not the left knee. When Bedford typed in the information concerning the patient in preparing the operation schedule, she typed in "right knee." This caused the scheduling printout to report the surgery as surgery for the right knee when the correct site for the diagnostic procedure was the left knee.

   
   

8. Ann Vadnais, R.N., was working in the pre-op area at the Center on the date of the surgery. She received a call from the front desk at the Center advising that the patient was ready to come back for surgery. She went out and greeted the patient and his mother and two other persons, a friend of the patient and his brother. The patient had been instructed to have his leg shaved in preparation for the procedure and that preparation was to occur a day prior to the surgery. Vadnais observed that the preparation had not been made. Vadnais asked another nurse, Kathy Cisco who was working in the area, if Cisco could make the preparation by shaving the leg of the patient. Cisco complied with that request. Vadnais also noticed that the consent form for the performance of the operation was not in the patient file. Vadnais asked the patient if the arthroscopy was to be performed on the right knee or the left knee. The patient stated that the left knee was the knee to be examined. Vadnais filled out forms related to the patient and called the operating room to notify the circulating nurse and the orthopedic surgeon that the patient was ready but needed a consent form signed. Respondent within the knowledge of Vadnais came through the area and had the consent form signed by the patient's

   mother. Vadnais observed that the doctor's order sheet read "left knee". Vadnais also observed that the patient was taken to the operating room by the circulating nurse and checked. Vadnais is aware that the patient was checked by the anesthesiologist who administered a drug designed to relax the patient prior to the surgery.

   
   

9. The circulating nurse who has been referred to was Barbara Lucas. She noticed that the operating room schedule identified the right knee as being the knee upon which the arthroscopy was to be performed. For this reason she set the operating room up to accommodate a procedure on the right knee. In the pre- op area she looked at the consent form which said right knee. She saw the anesthesiologist resident take the patient back on a stretcher to be anesthetized. The patient was placed under a general anesthesia, following which Dr. Howard Brown came into the operating room and applied a tourniquet to the right leg and examined the leg. He placed the right leg into a holder prepped and draped the leg to have it ready for the incision. Lucas recalls that after the Respondent made the incision he asked to see the consent for surgery permit which showed that the consent was for a procedure on the right knee but a comparison by the Respondent of that item to the history and physical showed that the history and physical contemplated a procedure on the left knee.

   
   

10. Nurse Cisco, who has been mentioned before, was working in the recovery room on August 10, 1990. She had also been helping out in pre-op on the date in question. In addition to shaving the patient's left leg, she started an IV and put it in the right hand which would be opposite from the side of the body which was being operated on, that side being the left knee.

    
    

11. Dr. Brown had been involved in 2 or 3 cases prior to the patient's surgery. He was told that there was no consent form and was too busy to obtain one. Therefore, the Respondent obtained the consent form and the patient was taken into the operating room. Dr. Brown noted that the Respondent did the diagnostic arthroscopy on the right knee in the standard fashion and noted that the meniscus was normal as was the patella. Then Dr. Brown observed the Respondent look at the x rays and note that the x-rays indicated the left knee. Dr. Brown and the Respondent questioned which knee and checked the consent form and it read "right" knee which had been crossed out and the word "left" substituted. A copy of the consent form is page 26 to the joint composite exhibit. The two doctors checked the history and the history said left knee. Dr. Brown observed the Respondent finish the procedure on the right knee. Respondent then went outside to talk with the family and came back in and completed arthroscopy on the left knee.

    
    

12. The Respondent describes being advised by "the nurse" that the consent form was missing. At that moment Respondent had just finished care of another patient and was in the pre-op holding area. He checked the operating room schedule and it indicated that the arthroscopy on the subject patient was to be performed on the right knee. Respondent filled out the consent form in accordance with the operating schedule's reference to the right knee and gave the form to the patient's mother and had her read it. The patient's mother read and signed the form. Respondent noted that the right leg had been prepped and draped and the arthroscopy was inserted. At approximately 15 seconds into the operation on the right knee Respondent noticed that the right knee was "fine." He looked at the x rays and they revealed that the arthroscopy procedure should have been performed on the left knee. Respondent concluded the procedure on the right knee without damage to that knee. He went outside of the operating room spoke with the patient's mother and explained the mistake and received permission from the mother to perform surgery on the left knee by having the

    mother correct the consent form to show the left knee. Respondent returned to the operating room and performed the arthroscopy on the left knee. Having concluded that diagnostic procedure Respondent notified the risk manager at the facility that the error had been committed.

    
    

13. The physician's order sheet in its August 9, 1990 entry states signed

    O.R. consent for arthroscopy possible medial meniscectomy left knee.

    
    

14. No medical complications have occurred as a result of the mistake by the Respondent in operating on the wrong knee.

    
    

15. As stated in the preliminary discussion concerning this case, several physicians have stated their opinion concerning Respondent's conduct in which he operated on the incorrect knee. Dr. Tom C. Haney in his letter dated October 7, 1991, found at pages 4 and 5 to the joint composite exhibit, notes his review of the circumstances of the case. He describes those circumstances as unusual in several respects. First, Respondent filled out records to schedule the surgery on the correct knee and then the surgery was scheduled on the incorrect knee due to a communication problem. The operating room permit was filled out requesting permission to do surgery on the incorrect knee as a consequence. At some point, as Dr. Haney understands it, the patient's mother filled out the permit for the incorrect knee. The incorrect knee was prepped and draped by the resident physician as a prelude to the surgery. Dr. Haney sees these as extremely rare circumstances which are unlikely events to happen to the vast majority of orthopedists in the state. He goes on to state that surgeons working and teaching at large teaching institutions frequently have to make decisions based on the judgement and information provided by the resident physician. In summary, Dr. Haney does not feel that the Respondent failed to provide the appropriate standard of care in the case. Instead, Dr. Haney perceives this as an unfortunate event that could have happened to many orthopedic surgeons in teaching institutions given the same set of circumstances.

    
    

16. Dr. Daniel R. Kannell submitted his opinion by correspondence dated December 4, 1991, found at pages 6 and 7 in the joint composite exhibit. He also believes that the series of unusual circumstances effectively circumvented the established systems of checks and balances that should have prevented the error from occurring. Those circumstances as he sees them involve the fact of the error in scheduling the procedure on the incorrect knee. The fact that the case was added on to an existing operating schedule. The fact that the patient was a minor and in Dr. Kannell's understanding that the parent was not present to sign the consent form for surgery when the initial examination had been made as would be routine. The fact that upon admission the error in scheduling was discovered and corrected on the face sheet and the proper leg was shaved but was not reconciled with the operating room schedule nor was the operating room staff notified. The fact that the resident in the operating room was not the one who had obtained the history and physical prior to the surgery and that the incorrect knee was prepped and draped for surgery by that resident. Dr. Kannell also points to the parent signing the consent form for operation on the incorrect knee after Respondent wrote the incorrect knee on that form. Dr. Kannell goes on to describe how Respondent discovered the error very soon after initiating the procedure and explained the situation to the mother who gave her consent to evaluate the correct knee. Dr. Kannell also points out how the patient was saved a second anesthetic induction experience by Respondent arranging to have the surgery performed on the correct knee while undergoing a single anesthesia induction. Dr. Kannell credits Respondent for maintaining the patient and parent's confidence in the Respondent and the staff and the fact that the patient and parent were pleased with the results of the surgery. Dr.

    Kannell remarks that it is sobering to consider that even with checks and balances and with competent professional staff, errors do occur. Dr. Kannell is impressed with the calm, efficient response of the health team under Respondent's direction in resolving the problem with dispatch and effectiveness. In his conclusion Dr. Kannell does not believe that Respondent provided other than appropriate care for the patient.

    
    

17. Dr. J. Darrell Shea offered his opinion of the Respondent's performance by correspondence of February 18, 1992, found at pages 10-13 in the joint composite exhibit. Dr. Shea believes that the ultimate responsibility resided with the Respondent to evaluate the patient, make the diagnosis, make recommendations for management of the condition, discuss with the patient the pros and cons of the patient's condition and advantages and disadvantages, potential risks and complications of the surgery and most significantly that Dr. Shea believes that the responsibility resided with the Respondent as surgeon to identify the appropriate surgical site at the time of surgery. Having said that, Dr. Shea remarks about the complications in this case in that several individuals had contact with the patient following the initial evaluation and recommendations by the Respondent. In particular, he notes the confusion about the right and left leg and the conduct by Respondent in eventually operating on the wrong knee. Dr. Shea does not believe a surgeon can claim error in the consent form as justification for operating on the wrong extremity. Dr. Shea is complimentary of the Respondent's management of the case once the problem was recognized. Dr. Shea remarks about the fortunate outcome in which there were no complications as a result of the arthroscopy being performed on the incorrect knee. He describes the violation here, in his opinion, to be one which is minimal and should be addressed by a Letter of Concern. Finally, Dr. Shea comments about the fact that mistakes involving bilateral organs are not uncommon and it is therefore incumbent that the physician have in place the appropriate procedures to avoid errors concerning left and right and to manage those errors if they occur.

    
    

18. Notwithstanding the confusing circumstances that existed, not promoted by the Respondent, that led Respondent to believe that the procedure was to be performed on the right knee, Dr. Shea is more compelling in his opinion that it was the Respondent's responsibility to identify the appropriate surgical site at time of the surgery. The opinion expressed by Drs. Haney and Kannell, that the underlying confusion excuses Respondent's conduct in performing the procedure on the wrong knee is not accepted. In summary, Respondent fell below the level of care expected of him in performing the diagnostic arthroscopy on the wrong knee which caused the patient to have to undergo that procedure on both knees.

    
    

19. Respondent's reaction to the error was commendable and serves to mitigate the disciplinary response.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

21. Given that the prosecution does not intend to request revocation or suspension of Respondent's license, the greater weight of the evidence must favor the Petitioner to sustain its burden to establish existence of grounds for taking disciplinary action. See Section 458.331(3), Florida Statutes.

22. Petitioner has met the burden by showing that Respondent violated Section 458.331(1)(t), Florida Statutes, in that he failed 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 when he performed the diagnostic arthroscopy on the patient's wrong knee causing the patient to undergo surgeries on both knees.

    
    

23. Because the facts in this case reveal that the Respondent did not create the confusing circumstances that led to his error, rather he failed to take the proper initiative at the moment of surgery to identify the appropriate surgical site and in view of the fact that his response to the problem was timely, effective and forthright, leading to a favorable outcome for the patient, a Letter of Concern constitutes reasonable discipline. The opportunities to impose greater discipline as envisioned by Rule 21M-2.001, Florida Administrative Code, should not be exercised on this occasion.

RECOMMENDATION

Based upon the consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a Final Order be entered which finds Respondent in violation of Section 458.331(1)(t), Florida Statutes, and that a Letter of Concern be provided to the Respondent and a copy placed in his license file.

DONE and ENTERED this 23rd day of September, 1992, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 23rd day of September, 1992.

APPENDIX CASE NO. 92-2203

The following discussion is given concerning the proposed facts of the parties:

Petitioner's Facts:

Paragraphs 1 through 9 are subordinate to facts found.

Paragraph 10 is rejected in that a review of the joint composite exhibit does not lead to the conclusion that Ms. Vadnais filled out a consent form indicating that surgery was to be performed on the left knee nor does that review lead to the conclusion that Paragraph 11 is accurate in its suggestion that the mother of the patient signed the consent form for the left knee as

corrected by Ms. Vadnais. Although a change was made on the consent form by placing the word "left" after the word knee; whereas initially the word "right" was placed before the word "knee", it is not clear when this occurred and that Ms. Vadnais was responsible for bringing about that correction.

Paragraphs 12 through 14 are subordinate to facts found.

The first sentence in Paragraph 15 is rejected in that there is nothing within pages 22 and 46 to the joint composite exhibit which establishes that the Respondent was informed that there was no anesthesia or operative permit. The remainder of Paragraph 15 through Paragraph 21 are subordinate to facts found.

Paragraph 22 is contrary to facts found.

Paragraphs 23 and 24 are subordinate to facts found.

Respondent's Facts:

Paragraphs 1 through 5 are subordinate to facts found as is the first sentence in Paragraph 6. The second sentence in Paragraph 6 is contrary to facts found.

Paragraph 7 in its first sentence is subordinate to facts found. The remaining sentences within that paragraph constitute legal argument.

Paragraph 8 is contrary to facts found.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0792

Mary Radkins, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

William B. Furlow, Esquire

Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge, P.A.

106 East College Avenue Tallahassee, FL 32301

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 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: 92-002203

Orders for Case No: 92-002203