STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3339

) ALEXANDER SONKIN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before James E. Bradwell, duly-designated Hearing Officer of the Division of Administrative Hearings, on April 13 and 14, 1994, in Tampa, Florida.

APPEARANCES

For Petitioner: Francesca Plendl, Esquire

Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: A. S. Weekley, Jr., M. D., Esquire

One North Dale Mabry Highway, Suite 800 Post Office Box 10430

Tampa, Florida 33679-0430 STATEMENT OF THE ISSUES

Whether Respondent engaged in malpractice by his alleged 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 in violation of Subsection 458.331(1)(t), Florida Statutes, warranting disciplinary action against his license.

PRELIMINARY STATEMENT

By its one-count Administrative Complaint filed herein on May 15, 1992, Petitioner seeks to impose disciplinary action against Respondent for an alleged violation of Subsection 458.331(1)(t), Florida Statutes. Respondent disputed the allegations of the Administrative Complaint and timely requested a formal hearing. Based upon that request, the matter was transferred to the Division of Administrative Hearings. The matter was initially scheduled for hearing on December 16, 1993 by Notice of Hearing dated September 3, 1993. The matter was

thereafter twice rescheduled for hearing but was continued. The matter was finally rescheduled for hearing on December 8, 1993 for hearing on April 13-15, 1994 and was heard as scheduled.

Petitioner presented the testimony of John G. Greene, M.D.; Reynold M. Stein, M.D.; Mary and David Daly; and Norma Pinner. Petitioner introduced 11 exhibits, which were received in evidence.

Respondent presented the testimony of Pat Johnson; Brad Bjornstad, M.D.; Barbara Raeckers; Lakshmi Patel; Richard P. Malloy, M.D.; and he (Respondent) testified on his own behalf. Respondent introduced four exhibits, which were received in evidence. Doctors Greene, Stein and Bjornstad were tendered and received as experts in the field of medicine.

The parties filed proposed Recommended Orders which were considered in preparation of this Recommended Order. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an appendix.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant:

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional Regulation (now the Agency for Health Care Administration), is the state agency charged with enforcing the statutes and regulations governing the practice of medicine in Florida pursuant to Chapters 20, 55, and 458, Florida Statutes, and the rules and regulations promulgated pursuant thereto.

   
   

2. Respondent, Alexander Sonkin, M.D., is a medical doctor licensed in Florida, having been issued License No. 0044838, and his principle place of practice is 11216 North Dale Mabry Highway in Tampa, Florida. Except for this proceeding, there is no evidence that Respondent has ever been the subject of disciplinary action in connection with his medical license.

   
   

3. From approximately December 28, 1988, through June 7, 1989, Respondent treated Patient #1, a 70 year old male as a primary care physician. During Respondent's first encounter with Patient #1, on December 28, 1988, he performed a history and physical examination in preparation of Patient #1's entry into a weight reduction program. Based on Respondent's physical examination and history of Patient #1 on December 28, 1988, Respondent diagnosed Patient #1 as suffering from "degenerative joint disease, emphysema, glaucoma and arteriosclerotic heart disease".

   
   

4. During the period in which Respondent was Patient #1's treating physician, there were six office visits for medical care. Patient #1's daughter-in-law, Mary Daly, often accompanied him to Respondent's office for treatment.

   
   

5. On January 30, 1989, Respondent diagnosed Patient #1 as suffering from hemoptysis (coughing up blood) and chronic obstructive pulmonary disease (COPD). On the January 30, 1989, office visit, Respondent ordered an x-ray which was completed on that same day. The x-ray that was performed on Patient #1 did not reveal any evidence of pulmonary malignancy (lung cancer). The x-ray did, however, reveal that Patient #1 was suffering from COPD and basilar atelectasis but there was no evidence of a mass or malignancy.

6. The primary diagnosis that family physicians usually consider, based on Patient #1's symptoms, would be chronic bronchitis which is the most common source for hemoptysis in the United States.

   
   

7. Patients presenting with hemoptysis are difficult to diagnose as there are many different causes for the differential diagnosis of hemoptysis. Specifically, hemoptysis occurs with approximately equal frequency (30 percent) of patients who present with either lung cancer or those patients who present with pulmonary emboli.

   
   

8. Respondent next treated Patient #1 on February 21, 1989, at which time he presented with a swollen left leg. A unilateral swollen leg is significant in that the deep veins of the legs are a possible source of clots causing pulmonary emboli. On that visit, there were no complaints or indication of continued hemoptysis at that time.

   
   

9. Patient #1 was next treated by Respondent on April 18, 1989, at which time Respondent continued to treat him for COPD.

   
   

10. On or about May 9, 1989, Patient #1 was again treated by Respondent for hemoptysis and COPD. On this second episode of hemoptysis, Respondent ordered a chest x-ray and he was hospitalized from May 9 through May 17, 1989. Respondent's diagnosis of Patient #1, upon admission to the hospital, was bilateral pneumonia but he was later diagnosed and treated as a patient suffering from pulmonary emboli and COPD.

    
    

11. On May 24, 1989, Respondent again treated Patient #1 for a follow-up visit wherein he was again diagnosed as a patient suffering from COPD and pulmonary emboli.

    
    

12. Patient #1's final visit to Respondent was on June 7, 1989, wherein he returned to Respondent's office to undergo blood work studies.

    
    

13. Patient #1 was a 70 year old male during 1988 who had been a former smoker, however, he had not smoked for the preceding 15 years when he was first treated as a patient of Respondent.

    
    

14. During one of the visits to Respondent's office, Respondent's daughter, Mary Daly, brought a plastic bag of blood which Patient #1 had coughed up. Patient #1 requested that Respondent's nurse send it to the laboratory for analysis. Respondent did not send the blood to the laboratory for analysis as he considered that to be useless in treating Patient #1.

    
    

15. Respondent's nurse had a practice of recording everything that a patient complained of and these were reflected in the medical records for Patient #1. Respondent's records indicate that there were two instances wherein Patient #1 presented with hemoptysis and on those two occasions, January 30, 1989, and May 9, 1989, Respondent's records accurately indicate the episodes of hemoptysis.

    
    

16. When Respondent treated Patient #1 during his hospitalization in May, 1989 for the bilateral pneumonia and the ultimate diagnoses of pulmonary embolism and COPD, Respondent administered the medications Heparin and Coumadin. Both Heparin and Coumadin are anticoagulants (blood thinners) and can be used to treat patients suffering from pulmonary emboli. Heparin is a fast acting

    anticoagulant which is usually used to treat people suffering from blood clots and who need rapid action in thinning their blood. Coumadin is used for patients who have been on anticoagulants for long periods of time.

    
    

17. All of the experts agreed that a patient in otherwise good health, but who presents with a suspected pulmonary emboli, should be treated or investigated with an arterial blood gas work-up, a chest x-ray, and a Ventilation/Perfusion Scan (VQ Scan). These tests can assist a physician in determining whether a pulmonary emboli is the cause of a patient coughing up blood. All experts expressed an opinion as to whether Respondent deviated from the standard of care in treating Patient #1. 1/ A VQ Scan takes approximately

    3 hours and other treatments, such as administering anticoagulants, cannot be safely done when the VQ Scan is being performed. The VQ Scan is an invasive procedure, and a patient undergoing a scan must be lying down throughout the procedure. Patient #1 was not a proper candidate for a VQ Scan based on his medical condition at the time that he presented as he was "fading fast" in the eyes of his doctor. When Respondent administered Heparin to Patient #1, his condition improved quickly and he was able to be released from the hospital within a week's time. Respondent's administration of anticoagulants was indicated for the treatment of a pulmonary emboli and Respondent adequately treated Patient #1 on May 9, 1989.

    
    

18. On June 29, 1989, Patient #1 was treated by John G. Greene for a second opinion concerning hemoptysis which had occurred "off and on for a period of several months." This was of course subsequent to Respondent's last treatment of Patient #1.

    
    

19. Dr. Greene retired and sold his practice sometime after he last treated Patient #1. He no longer has all of his patient records concerning Patient #1. At the time of his visit, Patient #1 told Dr. Greene that he had been coughing up blood periodically for several months. His daughter-in-law, Mary Daly, also told Dr. Greene that Patient #1 had been periodically coughing up blood. Dr. Greene performed a physical examination and took a medical history. Dr. Greene also determined that Patient #1 had been a heavy smoker approximately 15 years earlier in his life. Dr. Greene sent Patient #1 for a pulmonary work-up including a CAT Scan on the following day. Dr. Greene also ordered a bronchoscopy and a biopsy and made an immediate referral to a pulmonary specialist. The biopsy confirmed cancer approximately one week after his first visit to Dr. Greene.

    
    

20. On or about December 25, 1989, Patient #1 expired due to adenocarcinoma of the lung.

    
    

21. All of the experts agree that lung cancer is difficult to detect and diagnose as even the most thorough practitioner who utilizes a battery of tests, including a CAT Scan and an MRI, usually cannot detect lung cancer until the growth has reached approximately one centimeter. The experts also agree that a patient, when properly diagnosed with lung cancer, usually has less than a year to live.

    
    

22. The experts also all agree that in medically treating a patient who had been a former smoker but who had not been smoking for a period of 15 years or more, would be treated as a nonsmoker since all of the medical problems related to smoking would no longer be evident.

23. Petitioner subpoenaed copies of Respondent's records of his treatment of Patient #1. Upon obtaining Petitioner's request, Respondent reviewed the records and made certain specific findings and additions to the records relative to his recall of specific symptoms and other treatment modalities that he used for treating Patient #1. Respondent admits that he made these specific changes and additions so that the medical records would be complete. The changes were not made for any improper purpose and his treatment modalities, other than the specifics, remain unchanged.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.57(1) and 455.225, Florida Statutes.

    
    

25. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

26. The authority of the Petitioner is derived from Chapter 458, Florida Statutes.

    
    

27. Pursuant to Subsection 458.331(2), Florida Statutes, the Board of Medicine is authorized to revoke, suspend or otherwise discipline the license of a physician for the following violation of Section 458.331(1)(t), Florida Statutes:

    
    

    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.

    
    

28. Petitioner has the burden of establishing, by clear and convincing evidence, that Respondent engaged in the alleged violation of Subsection 458.331(1)(t), Florida Statutes. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987).

    
    

29. Petitioner failed to establish, by clear and convincing evidence, that Respondent violated Subsection 458.331(1)(t), Florida Statutes, as alleged. Specifically, the evidence revealed that Respondent's treatment of Patient #1 was in keeping with the level of care, skill and treatment which a reasonably prudent similar physician would have treated a patient, such as Patient #1, under similar conditions and circumstances. Specifically, the type of invasive procedures which would have perhaps enabled Respondent to detect the lung cancer could not have been safely made given Patient #1's medical condition at the time when a VQ scan was indicated. Furthermore, based on the extended hiatus within which Patient #1 abstained from smoking, Respondent could have reasonably concluded that he was not, and did not require the similar treatment that would have been given to a patient who was a known heavy smoker. There has not been a showing that Respondent deviated from the standard of care in his treatment of Patient #1.

    
    

30. Respondent was not charged with failing to keep written medical records as set forth in Subsection 458.331(1)(m), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Petitioner enter a final order dismissing the Administrative Complaint filed herein in its entirety.

DONE AND ENTERED this 31st day of October, 1994, in Tallahassee, Florida.

JAMES E. BRADWELL

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, 1994.

ENDNOTE

1/ Since divergent opinions were expressed by the experts in some instances, the undersigned has accepted the most credible and persuasive testimony and it is embodied in the findings.

APPENDIX TO RECOMMENDED ORDER

Rulings on Petitioner's proposed findings of fact:

Paragraph 3, adopted as relevant, paragraph 4, Recommended Order.

Paragraph 4, adopted as modified, paragraph 14, Recommended Order. The remainder is rejected as being contrary to the greater weight of evidence, paragraphs 14 and 15, Recommended Order.

Paragraphs 6, rejected, contrary to the greater weight of evidence, paragraphs 6 through 12, Recommended Order.

Paragraphs 7 and 8, rejected, not probative.

Paragraph 9, rejected, contrary to the greater weight of evidence, paragraph 15, Recommended Order.

Paragraphs 11 and 12, rejected, irrelevant and not probative, paragraphs 15, 19 and 23, Recommended Order.

Paragraphs 13 and 17, rejected, not probative. Paragraphs 20 and 21, rejected as being conclusions. Paragraphs 23 and 24, rejected, legal argument.

Paragraph 35, rejected, irrelevant and not probative, paragraphs 22 and 23, Recommended Order.

Paragraphs 39, 40 and 41, rejected, legal argument.

Paragraphs 46-66, rejected as being legal argument and a recitation of testimony.

Rulings on Respondent's proposed findings of fact:

Respondent's Proposed Findings of Fact are included in a 174 paragraph brief which is in the nature of legal arguments and commentary on the arguments. As such, no specific rulings are made, as the argument and commentary are not in the form of proposed findings of fact. However, Respondent's proposed findings were considered as noted in the Preliminary Statement to this Recommended Order.

COPIES FURNISHED:

Francesca Plendl, Esquire Senior Attorney

Agency for Health Care Administration

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

A.S. Weekley, Jr., M.D., Esquire SHOFI, SMITH, ET AL.

One North Dale Mabry Highway Suite 800

Post Office Box 10430 Tampa, Florida 33679-0430

Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care

Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Harold Lewis General Counsel

Agency for Health Care Administration

1940 North Monroe Street Tallahassee, Florida 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.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE, AGENCY CLERK

Petitioner, CASE NO: 89-12719 DOAH CASE NO: 93-3339

1. LICENSE NO: ME 0044838

   
   

   ALEXANDER SONKIN, M.D.,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on February 11, 1995, in Tampa, Florida, for consideration of the Hearing Officer's Recommended Order (Attached as App. A) in the case of Agency for Health Care Administration, Board of Medicine v. Alexander Sonkin, M.D. At the hearing before the Board, Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent was not present, however, he was represented by A.S. Weekley, Jr., M.D., Esquire. Upon consideration of the Hearing Officer's Recommended Order after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:

   
   

   FINDINGS OF FACT

   
   

   1. Paragraph 23 of the Recommended Order is rejected as irrelevant.

      
      

   2. The remaining Recommended Findings of Fact are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause, as amended.

      
      

   3. There is competent, substantial evidence to support the Board's findings herein.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.

   
   

2. Paragraph 30 of the Recommended Order is rejected as irrelevant.

   
   

3. The remaining Conclusions of Law of the Recommended Order are approved and adopted and incorporated herein.

DISPOSITION

Based upon the Recommended Findings of Fact, as amended, and Conclusions of Law, as amended, the Hearing Officer's recommendation is appropriate as set forth in the Recommended Order.

WHEREFORE, the Administrative Complaint filed in this case is DISMISSED. This Final Order becomes effective upon its filing with the Clerk of the

Agency for Health Care Administration.

NOTICE

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

DONE and ORDERED this 22nd DAY OF February, 1995.

BOARD OF MEDICINE

GARY WINCHESTER, M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Alexander Sonkin, M.D., 11216 N. Dale Mabry, Tampa, Florida 33618-3806, A.S. Weekley, Jr., M.D., Esquire, One No. Dale Mabry Hwy., Suite 800, P.O. Box 10430, Tampa, Florida 33679-0430, and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 27th day of February, 1995.

Marm Harris, Ed.D. Executive Director

Docket for Case No: 93-003339

Orders for Case No: 93-003339