STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0930

) WALLINGFORD H. K. BOWLIN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on September 27, 1993, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Barbara Whalin Makant, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

For Respondent: V. James Facciolo, Esquire

KENT, HAYDEN, ET AL.

200 West Forsyth Street, Suite 1330 Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent has failed to practice medicine at the level of care, skill, and treatment recognized by reasonably prudent, similarly-situated physicians, by allegedly failing to appreciate the nature of a complaint, failing to order a proper diagnostic test, and failing to make a timely referral to an appropriate specialist, as well as whether the Respondent failed to keep adequate medical records documenting a rationale for his diagnosis of the patient, in alleged violation, respectively, of Sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes.

PRELIMINARY STATEMENT

This cause was initiated upon the filing of an Administrative Complaint by the above-referenced agency on July 1, 1992. It is charged in Count I of that complaint that the Respondent violated Section 458.331(1)(t), Florida Statutes,

by allegedly failing to practice medicine with that level of care, skill and treatment recognized by reasonably prudent, similarly-situated physicians for purported failure to appreciate the patient's complaint, failing to order a proper diagnostic test to confirm the Respondent's diagnosis of epididymitis, and the failure to make a timely referral to an appropriate specialist. Count II contains the charge that the Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to maintain adequate medical records of the care of the patient by specifically failing to document the Respondent's rationale for the diagnosis.

In due course, the Respondent executed an Election of Rights document and requested a formal proceeding to contest the charges, with the cause being ultimately transmitted to the undersigned Hearing Officer for adjudication.

The cause came on for hearing as noticed. The Petitioner presented the testimony of four (4) witnesses: Clarence C. Helton, Jr., the patient; Lynn P. Carmichael, M.D., an expert witness; Harold S. Laski, M.D., one of the patient's treating physicians; and Mohamed H. Antar, M.D., a subsequent treating physician and surgeon, who was also qualified as an expert witness. The Petitioner offered five (5) exhibits, all of which were admitted into evidence.

The Respondent presented the testimony of Arthur Herold, M.D., an expert witness; and the testimony of the Respondent himself. The Respondent offered one (1) exhibit into evidence, which was admitted.

The parties elected to order a transcript of the proceedings and after an extended briefing schedule, submitted proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The proposed findings of fact contained therein are addressed in this Recommended Order and again specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida charged with regulating the practice of medicine and enforcing the licensure and practice standards contained in Chapter 458, Florida Statutes, and appurtenant rules.

   
   

2. The Respondent, at all times material to this proceeding, has been a licensed physician in the State of Florida holding license number ME 0032003.

   
   

3. On or about October 3, 1986, Patient #1, a thirty-five year-old male, presented to the Respondent's office with complaints of testicular pain, swelling, and a lump in the vicinity of the left testicle. The patient was seen by Dr. Laski, a physician (M.D.) employed by the Respondent. Dr. Laski examined the patient and diagnosed him as suffering from epididymitis. Epididymitis is an inflammation of the epididymis, which is a series of tubules that runs from the testicle to the vas deferens. The epididymis partially surrounds the testicle but is not actually a part of the testicle itself. The epididymis is part of the scrotal structures, and is attached to and continuous with the testicle, both being located within the scrotum.

   
   

4. Patient #1 related that while working at his job as a truck driver, he was straining, trying to lift or move a 427-pound hot tub, when he felt pain and swelling in the left testicle, associated with a small lump. Upon diagnosing epididymitis, Dr. Laski started a treatment regimen of antibiotic and anti- inflammatory medications. He required the patient to return in four to five

   days. Dr. Laski saw the patient the second time on October 8, 1986 with continued complaints of left testicular pain. Dr. Laski again continued the same diagnosis and treatment.

   
   

5. On October 13, 1986, Patient #1 again presented to Dr. Laski with continued left testicular pain with a small mass on the left testicle. Dr. Laski continued his diagnosis of epididymitis and continued the antibiotic and anti-inflammatory medications, although he changed the type of antibiotic prescribed. The patient visited a fourth time on October 17, 1986, and Dr. Laski found a tender nodule over the left testicle but also found that the remainder of the symptoms, consisting of pain and swelling, had disappeared. Dr. Laski found on the patient's first and fourth visits to him, and noted in the medical records, a mass or nodule on the left testicle; however, on the

   fourth visit, he found that the acute symptoms had disappeared. Dr. Laski still felt the nodule, which he could not ascribe to anything related to the purported accident experienced by the patient. Therefore, Dr. Laski felt that a urologist would be the appropriate person to see, "to take no chances and to make sure that there was not something else." Dr. Laski, accordingly, noted in his records that a referral to a urologist was in order. This was on Friday afternoon, October 17, 1986.

   
   

6. The Respondent's office staff apparently made an attempt to refer the patient to a urologist that afternoon but was unsuccessful, due to the inability to contact the urologist's office. Apparently, the patient was instructed to call the Respondent's office the following Monday or Tuesday concerning the referral appointment. The patient maintains that he called the Respondent's office on Tuesday and was told that they could not send him to a specialist until the Respondent himself saw the patient. The Respondent disputes this and states that there is no such policy in his office that he had to see any patient before referral out to a specialist could occur. In any event, on October 22, 1986, Dr. Laski saw the patient again and called in the Respondent, who also examined the patient. The evidence of record does not indicate clearly why the Respondent took over the care and treatment of the patient from Dr. Laski at this point; however, that was apparently the case.

   
   

7. When the Respondent initially saw Patient #1 on October 22, 1986, the Respondent did not enter in his medical records information which would either affirm or negate the presence of a mass or nodule, as identified by Dr. Laski. The Respondent testified, however, that he felt something "because, here, I'm palpating something, yes." Because he felt something in the left testicle, the Respondent ordered a urinalysis. The urinalysis was a routine "dipstick" urinalysis without microscopic slide or culture evaluation for bacteria. The Respondent testified that he wanted the urinalysis as diagnostic information because he was "palpating something". He did the urinalysis by dipstick method, such that he was able to evaluate the color, quality, and specific gravity of the urine sample. The results were negative.

   
   

8. Dr. Carmichael testified, however, that the Respondent should have gone farther and done a microscopic evaluation in which white blood cells, if present, could have been visualized in the urine sediment. Dr. Carmichael testified that a urine culture could have been performed even though the patient had already been through two different antibiotic courses, because, as it was the Respondent's feeling that the epididymitis had not yet been resolved, there was the possibility of the presence of a type of bacteria which had not been affected by the antibiotics already administered. According to Dr. Carmichael, if the culture grew out of a pathogenic organism, "you would then have a very good likelihood that that is a causative organism, and you could tell what drug

   to use." The urinalysis, however, as Dr. Carmichael established, would not rule out epididymitis. The microscopic urinalysis, if done, could have been normal and the culture could have been negative; and epididymitis could still have been present. However, the lack of these tests contributed to the Respondent's inadequate assessment of the patient's status.

   
   

9. The Respondent had Patient #1 visit a second time on November 5, 1986. On the second visit, the Respondent found, and the medical records showed, that there was a small area of "prominence" (nodule) in the epididymis. The Respondent chose to continue to observe the patient, however, to continue the prescription of the anti-inflammatory medication and ordered the patient to return in one month. Dr. Carmichael opined that another diagnostic procedure could have been used with the patient, presenting in this status at this point in his treatment course, which could have helped differentiate whether there was actually a definite mass present or not. That is, the Respondent could have ordered an ultrasound test, a procedure which uses high-frequency sound waves to outline areas of soft tissue that will not be depicted on x-rays. Dr. Herold, the Respondent's expert witness, acknowledged that ultrasound could be ordered if there is some uncertainty in the doctor's mind about the diagnosis, although he opined that it would not be the usual procedure to order an ultrasound test when the doctor suspects epididymitis to be the problem. Here, the Respondent still felt comfortable with his diagnosis of epididymitis. However, in the face of Dr. Laski's finding on October 17, 1986 that there was some sort of nodule present and that he was uncertain enough to feel the need to refer the patient to a specialist, it was established by Dr. Carmichael that if the ultrasound had been ordered of the genital area, it could confirm the diagnosis of epididymitis or, correspondingly, whether an actual tumor was present at that time.

   
   

10. In any event, the Respondent's treatment plan as of November 5, 1986 was to continue observation and order Patient #1 to return in one month. The patient failed to return until January 12, 1987, for unexplained reasons. On that date, the Respondent examined the patient and immediately noted a hard, non-tender mass in the area of the epididymis. The Respondent then immediately referred the patient to a urologist, Dr. Antar, who testified on behalf of the Petitioner. On or about January 19, 1987, Dr. Antar evaluated the patient and determined that surgery was immediately necessary, because his immediate

    impression was that the mass was cancerous. Blood tests revealed that the tumor markers were very high, and Dr. Antar felt that there was no reason to observe further. Three days later, Dr. Antar performed a radical orchiectomy on the left testicle (removal of the testicle). The testicular tumor was a teratoma.

    A teratoma is a tumor which appears to be benign but behaves like a malignancy. Moreover, however, a biopsy of a lymph node from the left side of the patient's neck showed three elements of cancer: the teratoma, embryonal cancer cells, and choriocarcinoma cancer cells.

    
    

11. Dr. Antar established that all three indications were coming from the left testicle. Thus, the cancer had metastasized from the left testicle to the lymph system. However, Dr. Antar established that through chemotherapy the cancer cells which had migrated were eliminated, since this type of cancer, although it is virulent, is particularly amenable to chemotherapy.

    
    

12. The medical records show that the Respondent saw the patient on three occasions; October 22, 1986, November 5, 1986, and January 12, 1987. The patient had also been seen by Doctor Laski independently of the Respondent for the first four visits and in conjunction with the Respondent's initial examination on October 22, 1986. Thus, Dr. Laski, before the Respondent, had seen the patient four times in three weeks. It was Dr. Laski's judgement that

    the symptoms of the acute problem had gone away but that, because a nodule remained which Dr. Laski could not explain, he should be referred to a urologist. The Respondent then took over his care for unexplained reasons but did not carry out Dr. Laski's recommendations for a urological evaluation by a specialist. The Respondent contended in his testimony that he would always honor another physician's recommendation but did not specifically indicate in his testimony or in the medical record why Dr. Laski's recommendation that a urologist be consulted and see the patient was not carried out. Even though, in fact, the Respondent noted in his subsequent examinations the prominence in the left testicle, he simply continued to diagnose the problem as epididymitis and elected to continue to "observe".

    
    

13. The medical record prepared by Dr. Laski included the recommendation that the patient be referred to a urological specialist. Thus, the Respondent should have known of this recommendation whether or not he actually conversed with Dr. Laski about the referral (the record does not indicate whether they actually conversed about this subject or not). In any event, as shown by Dr. Carmichael, the Respondent's notes in the medical record do not provide any explanation or justification for merely continuing to observe the patient. The medical records prepared by the Respondent do not support his decision not to follow up and have the patient actually referred to a urologist and not to conduct further tests or investigation of the left testicle, such as an ultrasound test. Given the course of treatment by the Respondent, consisting merely of continuing to observe for another month, along with the continuing of a prescription for an anti-inflammatory, with the unexplained inconsistent deletion of the prescription for an antibiotic, even though the Respondent believed that the epididymitis was continuing; the medical record kept by the Respondent for the patient did not justify this course of treatment. He did not order any further diagnostic tests and yet, according to the record, ignored the recommendation that a specialist consultation be effected.

    
    

14. All three of the medical experts testifying established that such a tumor could have initially presented as epididymitis. Dr. Carmichael opined that when a person has a lump or soreness in the testicle, he frequently tries to relate it to some type of activity, like lifting or straining. He opined that the usual presenting complaint of a testicular tumor would be a lump, with some sort of soreness or discomfort. Dr. Antar, the urologist who ultimately saw the patient and operated, testified that people with testicular cancer can present as having epididymitis. Dr. Antar testified that they need to be treated with antibiotics for two to three weeks, to be rechecked to be sure the epididymitis is dissolved and that the testicle has returned to normal. Dr. Herold also opined that the inflammation of epididymitis can occur as a result of trauma or as a reaction to the presence of a tumor. If the Respondent had such an awareness, as described by these experts, he did not act on it, however. He elected merely to continue the anti-inflammatory medication and part of the course of treatment already tried by Dr. Laski, in spite of the fact that his employee and colleague had already shown, and entered in his medical record, that the rest of the supposed epididymitis symptoms had disappeared, that there still remained a tenderness and small mass on the left testicle and that a consultation with a specialist was in order.

    
    

15. Respondent's reaction upon first seeing the patient on October 22nd was that there was a tenderness in the left testicle and a swelling in the epididymitis, as well. The Respondent's testimony and his medical records simply do not explain why he ignored Dr. Laski's recommendation that a

    specialist see the patient and be consulted, if all he himself was going to do, at least for the ensuing one and one-half months, was to continue the anti- inflammatory therapy the patient had already been given.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

17. The clear and convincing evidence of record culminating in and supportive of the above Findings of Fact shows that Dr. Laski found a mass or nodule on the left testicle during the first four visits the patient made to him. On the fourth visit he noted the acute symptoms of pain and swelling had gone away, but he still felt the nodule that he could not ascribe to anything related to the reported accident. Thus, he believed that at that point a urologist would be the most appropriate person to see the patient, referred the patient, and noted that fact in the patient record. Then, for unknown reasons, the Respondent took over the care and treatment of the patient with a visit on October 22, 1986. He did not affirm or negate in his medical record the mass or nodule which was identified in the record by Dr. Laski. He testified that he did feel something on the first visit of October 22, 1986; and on the second visit of November 5, 1986, he felt "a small area of prominence" in the epididymis on the left testicle. Yet the Respondent did not refer the Respondent to a urologist until January 12, 1987, when he finally palpated the hard, discreet mass on the left testicle. Given the findings of Dr. Laski, and his decision to refer the patient to a specialist on October 17th, given that he still found the nodule even after the pain and swelling had dissipated, which would tend to make one feel that epididymitis is not the cause of the problem, the Respondent, in taking over care of the patient and being chargeable with the knowledge of Dr. Laski, since it was entered in the record and since they practiced in the same office, ignored the recommendation, and instead treated the patient in the third and fourth week by merely observing and proscribing anti-inflammatory medication and then calling for another month of "observation" before asking to see the patient again. The testimony of Dr. Carmichael, Dr. Laski and to some extent the findings of Dr. Antar, established that such protracted, conservative treatment was certainly not justified. Accordingly, based upon the above Findings of Fact it has been proven by clear and convincing evidence that the Respondent practiced below the standard of care in this regard, as charged in Count I of the Administrative Complaint.

    
    

18. It is alleged in Count II that the Respondent failed to keep written medical records justifying the course of treatment of the patient, including but not limited to, the failure to include a rationale for the diagnosis of epididymitis in violation of Section 458.331(1)(m), Florida Statutes. The medical records in evidence show that the Respondent saw the patient on three occasions, when he had previously been seen by Dr. Laski five times in the previous three weeks. In Dr. Laski's judgment, as noted in his record, the symptoms of the epididymitis had dissipated but because the nodule remained, he felt it necessary to refer the patient to a urologist as found above. When the Respondent took over care of the patient and did not carry out Dr. Laski's recommendation for urological evaluation, the Respondent did not explain in his record why that recommendation was not carried out. This is especially significant in view of the fact that the Respondent himself noted that in subsequent examinations, the left testicle was displaying a prominent feature or nodule. The Respondent, however, continued to simply diagnose the problem as epididymitis and continued to merely observe. Dr. Carmichael established that

    in the Respondent's medical record, he did not provide a justification for continued observation. The Respondent's medical records do not support a decision not to have the patient referred, or not to have further investigation of the left testicle, with testing going beyond mere observation.

    
    

19. It has been recognized that "good medical records are the foundation of the practice of medicine," DPR v. Roehm, M.D., 11 FALR 869, 861 (Final Order entered October 26, 1988), and that the reason for keeping thorough medical records is so that "neutral third parties can observe what transpired during the course of treatment of a patient." Robertson v. DPR, 574 So.2d 153, 156 (Fla. 1st DCA 1991). The legislatively mandated minimum standard of record keeping by physicians is found in the Medical Practice Act:

    
    

    "Failing to keep written medical records justifying the course of treatment of the patient, including but not limited to, patient histories, examination results, and test results."

    
    

    Section 458.331(1)(m), Florida Statutes.

    
    

20. In consideration of the clear and convincing evidence of record, supportive of the above Findings of Fact in regard to the record-keeping issue, it has been established by clear and convincing evidence that the Respondent has violated Section 458.331(1)(m), Florida Statutes, as charged in Count II.

    
    

21. Finally, the Respondent maintains that investigation of this matter was begun by the Department as early as October 27, 1989, and that interrogatories answered by the Department indicate no basis for any delay, hindrance, or difficulty in conducting the investigation of this matter. The Respondent thus maintains that Section 455.225, Florida Statutes, concerning the requirement that complaints be investigated expeditiously, has been violated by the Department and that the delay has impaired the Respondent's ability to defend against this claim, in that a well-qualified witness who was at one time familiar with the case and prepared to testify, refused to become re-involved in the case and to assist the Respondent as a witness.

    
    

22. Specifically, the Respondent contends that the testimony of Dr. Lawrence Einhorn, who had initially reviewed the facts of the case and was prepared to testify on the Respondent's behalf in a civil lawsuit, in 1989, concerning this matter, became no longer available because of the passage of time during the long investigation before the Administrative Complaint was filed and this cause proceeded toward hearing before the Hearing Officer. The civil action settled several years ago and Dr. Einhorn no longer had the necessary materials readily at hand and was unwilling to re-invest the time necessary to re-acquaint himself with the case according to the Respondent's testimony. Dr. Einhorn is an expert on testicular cancer, specializing in the medical treatment of the disease. The Respondent thus maintains that the Department provided no justification for the three year delay between the initiation of the investigation and the filing of the complaint which the Respondent contends resulted in Dr. Einhorn no longer being available as a witness to assist the Respondent in the defense of his case. Thus the Respondent contends the complaint should be dismissed as a result of the violation of Section 455.225, Florida Statutes, and his constitutional right to due process of law.

23. The Respondent's position is without merit. The Respondent himself testified that Dr. Einhorn was simply no longer willing to invest the time necessary to prepare himself for this case. It was not true that Dr. Einhorn no longer had access to the materials with which to get prepared to discuss the facts of the case. In fact, the Respondent's testimony, concerning his communication with Dr. Einhorn, revealed that Dr. Einhorn acknowledged that the Respondent, through counsel, had offered to provide Dr. Einhorn with the necessary materials to re-acquaint himself with the background facts of the case. Dr. Einhorn, as shown by the Respondent's own testimony, simply did not want to expend the time or energy to again prepare to discuss the same case, involving the same patient, as he had become prepared to do during the course of the civil action back in 1989. There was no showing that Dr. Einhorn, by appropriate process, could not have been compelled to testify on the Respondent's behalf, after adequate preparation. Rather, at most, it was shown that Dr. Einhorn had a strong desire not to be a witness. Consequently, contrary to the Respondent's argument, the requirements set forth in Carter v. Department of Professional Regulation, Board of Optometry, 19 FLW 544 (Fla. January 20, 1994), have not been established, for even if the Department violated the time limits of Section 455.225, referenced by the court in that opinion, that consequential delay was not shown to have truly prejudiced the Respondent's ability to defend against this claim, "impaired the fairness of the proceedings or the correctness of the action." Although a well-qualified witness did not wish to become involved with the case, it was not shown that if his presence and employment as a witness was necessary to the Respondent's defense, compulsion of his testimony could not have been obtained. Thus, as required by the Carter holding, it has not been demonstrated that the three-year period of investigation in this case has unduly prejudiced the Respondent's defense.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that a Final Order be entered by the Board of Medical Examiners finding that the Respondent has violated Section 458.331(1)(t), Florida Statutes, as found and concluded above, for which a penalty of a $1,000.00 fine and one year's probation should be imposed.

It is FURTHER RECOMMENDED that the Final Order determine that Section 458.331(1)(m), Florida Statutes, has been violated, for which the penalty of a reprimand and administrative fine in the amount of $500.00 be imposed.

It is FURTHER RECOMMENDED that, as to both Counts, that 20 hours of continuing medical education in the area of oncology and five hours in the area of risk management, over and above that required for licensure, be imposed.

DONE AND ENTERED this 5th day of April, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF 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 6th day of April, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-930

Petitioner's Proposed Findings of Fact: 1-8. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter.

2. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter.

11-20. Accepted.

Respondent's Proposed Findings of Fact:

Respondent did not submit numbered proposed findings of fact and it is, therefore, difficult to rule on the proposed findings of fact specifically. Nevertheless, the first two paragraphs of the proposed findings of fact are accepted. The third paragraph is, for the most part, established by the evidence of record. However, it is rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter to the extent that they differ from the proposed findings of fact in the third paragraph in the Respondent's proposed findings of fact. The fourth paragraph of the Respondent's proposed findings of fact is accepted but not necessarily for the material import the Respondent proposes.

COPIES FURNISHED:

Barbara Whalin Makant, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0792

James Facciolo, Esquire KENT, HAYDEN, ET AL.

200 West Forsyth Street Suite 1330 Jacksonville, FL 32202

Dr. Marm Harris, Executive Director Board of Medicine

Department of Business and Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esquire General Counsel

Department of Business and Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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 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: 93-000930

Orders for Case No: 93-000930