STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4397

)

ERNEST P. PHILLIPS, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held pursuant to notice before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on April 5, 1995 in Jacksonville, Florida.

APPEARANCES

For Petitioner: Hugh R. Brown, Staff Attorney

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Michael J. Obringer, Esquire

Osborne, McNatt, Shaw, O'Hara, Brown and Obringer

One Enterprise Center

225 Water Street, Suite 400 Jacksonville, Florida 32202-5147

STATEMENT OF THE ISSUE

Whether the Respondent committed the acts alleged in the administrative complaint contrary to Section 458.331(1)(t), Florida Statutes.

PRELIMINARY STATEMENT

On June 3, 1993, the Petitioner filed an Administrative Complaint against the Respondent alleging that he violated the standard of care for medical treatment contrary to Section 458.331(1)(t), Florida Statutes, by his postoperative treatment of a patient, referred to in the complaint as Patient #1, by failing to order and obtain a monitored bed for said patient given the patient's medical history and condition.

The Petitioner presented the testimony of Dr. David Wells by video and introduced 9 exhibits, including the depositions of Dr. Robert Edwards, Janice Lipsky, Vonda Burnsed, Mary Cavin, and Dr. William McCullagh, which were

received into evidence. The Respondent presented the testimony of James Calvin Campbell, Jr., M.D., and Ellen Gilmore, M.D., and the Respondent. The parties stipulated to certain facts which are identified in the Findings below.

Both parties submitted post hearing briefs and findings of fact which were read and considered. The appendix to this order states which of those findings were adopted, and which were rejected and why. The findings indicating citations to the record are made by the Hearing Officer. Those findings without citation are taken from proposed findings submitted by the parties.

FINDINGS OF FACT

1. (Stipulated) The Respondent is and was at all times material to the allegations a licensed physician in Florida, holding license number ME 0050839 issued by the state.

   
   

2. The Respondent was a board certified internist and board certified cardiologist practicing with Diagnostic Cardiology Associates at St. Vincent's Medical Center (St. Vincent's) at the time of the events which gave rise to these allegations.

   
   

3. On or about June 25, 1988, W.V., referred to in the complaint as Patient #1, was admitted to St. Augustine General Hospital in St. Augustine, Florida. W.V. was a 68 year old male with a history of heart problems including four bypasses performed in 1977, a pacemaker implantation in 1979, chronic obstructive pulmonary disease, and prior prostate surgery. W.V. was determined to have had an acute myocardial infarction for which he was treated at St. Augustine General Hospital for five days.

   
   

4. As W.V.'s condition improved, he was encouraged to walk at St. Augustine where he complained of chest pain and weakness. A echocardiogram showed segmental wall motion disturbance involving the posterior wall of the heart. A second electrocardiogram was performed which showed ventricular pacemaker rhythm and ST-T wave changes. On this basis, given his history and myocardial infarction, he was referred for a cardiac catheterization to St. Vincent's where his earlier heart surgeries had been performed. The patient was monitored during his hospitalization in St. Augustine, and did not show any signs of arrhythmias.

   
   

5. On June 30, 1988, W.V. was transferred to St. Vincent's and received through the Emergency Room, where he was interviewed by the Respondent. After giving the Respondent a brief outline of his problems, W.V. was placed on a general medical floor for the evening, and scheduled for cardiac catheterization the following day. Cardiac catheterization and its risks were explained to W.V., who signed the patient consent forms authorizing the procedure.

   
   

6. On the morning of July 1, 1988, after examining the patient and finding no changes, the Respondent performed on W.V. a cardiac catheterization, which verified the recent acute myocardial infarction, the blockage of two of the bypasses, damage to the heart muscle serving the lungs, and high vascular resistance with severe pulmonary hypertension. The patient tolerated the procedure well and showed no signs of arrhythmias during or after the procedure. The test results indicated that he could not benefit from surgery or angioplasty.

   
   

7. W.V.'s primary health threat was from congestive heart failure, a condition likened to drowning in one's own fluids. (Tx-129, line 1.)

8. A patient suffering from congestive heart failure will call for assistance from the nursing staff, as one of the expert's phrased it, "he would have been crawling out the door on his hands and knees calling for the nurse." (See Dr. Gilmore, Tx-130, line 8.) Conversely, heart failure alone would not have caused the patient to have chest pains, unless the patient developed elevated pressures to the point where pulmonary hypotension caused chest pain. However, the chest pain in such a case is not caused by clogged arteries or an impending heart attack, but by build up of fluid in the lungs which causes the heart to work harder to pump the blood through the lungs. (Dr. Campbell, Tx- 107, line 16.)

   
   

9. The Respondent's post-catheterization order initially directed that

   W.V. be moved to a monitored bed following the procedure. The purpose of monitoring a patient is to observe, document and ultimately treat cardiac rhythm disturbances. (Dr. Gilmore, Tx-117,line 6.) Approximately 75 percent of post- catheterization patients were placed on telemetric monitoring (monitoring or telemetry hereafter).

   
   

10. Monitored beds existed on 3 East (eight monitored beds), 5 East (eight monitored beds), Coronary Care Unit (eight monitored beds), Intensive Care Unit (12 monitored beds), and open heart unit which, although monitored, would not take catheterization patients.

    
    

11. Notwithstanding the number of monitored beds, the critical piece of equipment is the monitor because each room on a monitoring unit was set up to receive telemetry. The monitor is a small radio transmitter that relays information from leads attached to the patient to receivers in each room. The monitors are removed by patients upon discharge, thrown into the laundry, and into the trash. They also require repair. As a result, the actual number of monitors varied from the planned number of monitored beds.

    
    

12. Upon completion of the catheterization, the catheterization nurse would advise the nurse in charge of placing patients that the cardiac catheterization patient was ready for admission to the hospital, and whether the doctor had ordered a monitored or unmonitored bed. If the doctor had ordered a monitored bed and one was not available, the placement nurse would ask the admitting physician whether the patient being admitted really needed monitoring given the critical number of monitored beds available and the necessity to poll the treating physicians of all the monitored patients to see if any could be taken off monitoring. Inferentially, the Respondent considered the status of his other patients who were being monitored. If the physician deemed the patient's need for monitoring critical, then the placement nurse would poll the physicians of all other monitored patients, and request that they reassess the needs of their patients on monitoring. (See Lipsky Deposition, Page 26)

    
    

13. The unit which normally received post-catheterization patients, 5 East, had eight monitored beds and eight unmonitored beds which were used as "stepdown" beds for patients taken off monitoring so that the monitors could be changed, but the patient retained in the same bed. Not only were all the monitored beds occupied on 5 East, the post-catheterization unit, but that unit had almost a full census. (See Lipsky Deposition, Page 20 - Page 26)

    
    

14. The hospital's procedures required cardiac catheterization patients to remain in the catheterization laboratory until a monitored bed was available if the doctor stated that the patient was to go to a monitored bed. The catheterization patient would be held in the catheterization laboratory where

    there was a shortage of nursing care until a bed was found. Contrary to the experts' testimony which presumed the authority of the Respondent to place the patient in a monitored bed, it was the placement nurse who placed the patient once the doctor ordered a monitored bed post-catheterization. No evidence was received regarding her authority to place patients requiring monitoring in the ICU or CICU.

    
    

15. Typically, doctors reassessed their patients' need for monitoring during morning rounds, and those that were stable were removed from monitoring so the monitor became available for a more critical patient. (See Libsky deposition, Page 24, line 20)

    
    

16. W.V. catheterization was completed at approximately 11:00 a.m., following morning rounds when a maximum number of monitors should have been available; however, no evidence was received when a monitor would have been available. Testimony revealed that the wait could be as long as two hours for a monitored bed. During that time, under hospital protocols, W.V. would have remained in the catheterization lab.

    
    

17. Contrary to facts assumed by the Petitioner's experts, the Respondent's options for placing the patient were:

    
    

    1. to place the patient in an unmonitored bed on the cardiac floor, or

    2. to retain the patient in a monitored bed in the holding area where he would be monitored by the cardiac catheterization nurse until the patient placement nurse found a monitored bed.

       
       

18. The Respondent did not retain the patient in the cardiac catheterization area because the nurses could not adequately monitor W.V. and perform their other duties.

    
    

19. The Respondent did not place W.V. in the Cardiac Care Unit or the regular Intensive Care Unit to obtain monitoring because it was not his function to place the patient. The only way he could have placed W.V. in CICU or ICU would have been to change W.V.'s status to justify the overall intensive care of the patient. However, this would have been unsupportable if questioned given the patient's condition which was stable upon admission six days after the myocardial infarction, and remained stable after the procedure. See Dr. Edwards Depostion, Page 41, line 19 et seq.

    
    

20. Staffing levels on 5 East at the time of W.V.'s hospitalization were one nurse to four or five patients. There were five nurses, a charge nurse, and nursing assistant, and 22 beds on the unit. (See Lipsky Deposition, Page 72, line 15.)

    
    

21. The Hospital's Standing Order 01-009 provided that "The critical care nurse, in consultation with the charge nurse, may initiate the following (list of nursing interventions) and notify the physician as soon as possible in the event of an acute deterioration [of] patient status and in the absence of a physician." (See Burnsed Deposition, Page 112, line 4)

22. The Hospital Standing Order 01-017 provided "Any changes in the patient's condition will be called to the attention of the attending physician and appropriate consulting physicians. The emergency standing orders may be initiated by the nursing staff, but the physician must be informed of their use." (See Burnsed Deposition, Page 113, line 10)

    
    

23. The Respondent placed the patient on 5 East, the cardiac care floor, in an unmonitored bed at approximately 11:50 a.m., as indicated by the notation on the patient's chart "nonmonitored," which indicated a change from the initial orders. (See Cavin Deposition, Page 34, line 7 and Page 35, line 7 et seq.) There was no order that W.V. should not be resuscitated. The Respondent's standing orders called for the patient's vital signs, together with shortness of breath and chest pain, to be monitored every 15 minutes for four hours. This was done until 3:15 p.m., when the monitoring was reduced to every 30 minutes.

    
    

24. The Respondent advised the cardiac catheterization nurse, Mary Cavin, who accompanied the patient to the floor, of his findings, to include evidence of a recent myocardial infarction, and the patient's response to the procedure. (See Cavin Deposition, Page 19-20) Ms. Cavin identified her handwriting on the charts describing the Respondent's findings. However, these notes do not mention the recent myocardial infarction. The referenced notes were not sufficiently identified to check in the patient's charts.

    
    

25. W.V. was taken to 5 East by Mary Cavin. Ms. Cavin had worked in this area at St. Vincent's for three years. Cardiac catheterization nurses were described by one of the experts as being among the best trained nurses in the profession, who because they work with the medical staff continuously during the procedures, are aware of the physician's findings and the patient's status.

    They pass this information along to the floor nurses when they transport the patients back to the floor.

    
    

26. Ms. Cavin did not remember specifically W.V., but testified in her deposition regarding her normal practice when delivering a patient. She advised the staff on 5 East how the patient did during the catheterization, and what the findings had been. However, as stated above, in Cavin's notes she did not mention the recent myocardial infarction, and it is unclear whether she mentioned this to the staff of 5 East.

    
    

27. The record is unclear to whom Ms. Cavin reported W.V.'s condition; however, Ms. Burnsed received a report on W.V. when she came on duty from Carolyn Johnson, the nurse who had cared for W.V. on the preceding shift. Ms. Burnsed was advised by Ms. Johnson that W.V. was stable post-catheterization, that he had previous open heart surgery, and that one of his grafts was blocked, but "had good collateral circulation to that." Further, Johnson advised Burnsed that W.V.'s vital signs were good, and he had no problems. Johnson did not mention the recent myocardial infarction suffered by W.V.

    
    

28. Although Ms. Burnsed could not specifically remember her actions, her general course of action was to do a complete assessment upon starting the shift, make sure her patients were all right and having no problems, and orient them about the call light and calling her. Her physical assessment of W.V. revealed an apical heart rate of 72, respiration 18, and blood pressure of 100/70.

    
    

29. W.V.'s vital signs were monitored by the staff of 5 East every 15 minutes as ordered by the Respondent until 3:15 p.m., when this was reduced to every 30 minutes.

30. At 5:00 p.m., the Respondent saw W.V., who had no complaints and was stable. Ms. Burnsed found W.V. up going to the bathroom at 5:30 p.m., and got him back into bed explaining that it was important that he stay in bed because of his incision for at least 24 hours. Ms. Burnsed checked W.V.'s incision, and found that it was not bleeding at that time.

    
    

31. At 7:00 p.m., Ms. Burnsed administered Lasix to W.V., and W.V. asked for and was provided sleeping medication at 9:00 p.m., at which time, Ms. Burnsed took W.V.'s vital signs which were essentially unchanged and stable.

    
    

32. At 9:20 p.m. the patient's charts reflect that he was complaining of mild shortness of breath (SOB), and pains in his chest. Pursuant to the Respondent's orders, Ms. Burnsed administered nitroglycerin, 150 grains times one, after checking his blood pressure to insure it was within limits for the administration of nitroglycerine, and oxygen via nasal cannula, two liters, pursuant to emergency orders. This relieved the patient's symptoms.

    
    

33. Ms. Burnsed did not report to the Respondent that W.V. had suffered mild shortness of breath and chest pain because the nitroglycerin and oxygen relieved his symptoms.

    
    

34. The decision to notify or not to notify the treating physician was described as a nursing judgment based upon the nurse's assessment of the patient's condition after being medicated and placed upon oxygen. (See Lipsky Deposition, Page 56, line 8 et seq.) Ms. Burnsed did not consider the patient's condition to have deteriorated given his response to the medication, and did not notify the Respondent.

    
    

35. Subsequent to administering the nitroglycerin and oxygen, Ms. Burnsed spoke with W.V.'s wife on the telephone. It is intimated in the depositions that Mrs. W.V. called to advise that her husband had called complaining of shortness of breath and chest pains and an inability to get anyone to assist him; however, no evidence was submitted regarding the content of the conversation between Ms. Burnsed and Mrs. W.V.

    
    

36. Five to ten minutes after speaking with W.V.'s wife, Ms. Burnsed returned to W.V.'s room, where she found him resting in bed without complaint.

    W.V. stated that he wanted to go to sleep. Ms. Burnsed did not remember checking his vital signs on this second visit, and it is most probable that she did not because he was trying to go to sleep.

    
    

37. Ms. Burnsed checked W.V. at 10:10 p.m., and found he was not breathing, had no pulse, and was unresponsive. The Cardiac Resuscitation Team was called, and responded. Despite their efforts, W.V. was pronounced dead at 10:50 p.m.

    
    

38. Although a partial autopsy was performed which confirmed the findings of the catheterization and the diagnosis of a recent myocardial infarction, the cause of death was not precisely determined.

    
    

39. It was assumed by the experts that W.V. did not die of congestive heart failure because he would have complained more. Therefore, the experts concluded that his death was relatively sudden, most probably brought on by an arrhythmia or perhaps a stroke.

40. There was a suggestion that the Respondent did not put W.V. on a monitor because he had a pacemaker. While patients with pacemakers are at no less risk of developing arrhythmias than patients without pacemakers, there was no evidence that this was a consideration of Respondent in placing the patient on a cardiac floor following cardiac catheterization.

    
    

41. It was general practice to place cardiac catheterization patients who exhibited signs of cardiac pathology on telemetry for 24 hours following the procedure. The initial orders of the Respondent were consistent with this practice.

    
    

42. Testimony was received from the Petitioner's experts was that the Respondent's care was substandard because he did not place the patient on monitoring as they would have done by placing the patient in the emergency room, or the intensive care unit, or the cardiac intensive care unit to obtain telemetry monitoring, or retain the patient in the cardiac catheterization area pending the availability of a monitored bed. Their assumptions regarding the doctor's authority were inconsistent with the procedure for placing patients at St. Vincent's which was the function of the placement nurse.

    
    

43. The Petitioner's experts also testified that placing a patient on telemetry notified the nursing staff that the patient required special attention. The Respondent's witnesses were more credible in stating that placing a patient on telemetry was not the way to indicate to nursing staff that the patient required special attention.

    
    

44. The testimony of Respondent's witnesses that intensive care personnel were not as well trained as personnel on the cardiac floor to deal with cardiac emergencies is not credible. Both groups of personnel, if not equally versed in cardiac care, are sufficiently skilled in steps to be taken in the event of a cardiac emergency that there would be no appreciable difference in the care provided.

    
    

45. Placing the patient in the regular intensive care unit or the cardiac intensive care unit would have required changing the patient's medical status be changed, and there was no change in the patient's condition which would have warranted the change.

    
    

46. The patient was extremely ill upon admission, and his prognosis was very poor. W.V. was going to die because of his cardiac condition and chronic pulmonary congestion unless he had a stroke. His condition was irreversible in the opinions of the various experts; however, he would have been released the day following the catherization and treated medically for his problems.

    
    

47. The Petitioner's experts opined that the Respondent's decision not to place W.V. in a monitored bed was substandard care because they felt that there was an ethical duty to monitor the patient in the absence of orders directing that efforts not be made to resuscitate notwithstanding the dismal chances for success. Their opinion assumed the Respondent could direct the placement of the patient in a monitored bed on a specific unit within a relatively short period of time because of all the monitored beds in the hospital.

    
    

48. The Respondent's experts opined that the decision not to monitor W.V. was within the acceptable standards of medical care by physicians under similar circumstances, i.e., retain the patient in the catherization laboratory where

    nursing care would have been inadequate pending availability of a monitored bed for up to two hours. Their opinion considered the circumstances at St.

    Vincent's, and is deemed more credible.

    
    

    CONCLUSIONS OF LAW

    
    

49. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.

    
    

50. The Respondent is charged with violation of Section 458.331(1)(t), Florida Statutes, "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." The burden is upon the Petitioner to prove the allegations by clear and convincing evidence. See State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973). Clearly, under the facts of this case there is no allegation of repeated wrong doing, and the conduct is not "gross." Therefore the issue is whether the Respondent violated the standard of care.

    
    

51. Standard of care is defined as "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 this case, the Board presented evidence regarding normal practice regarding post-catheterization patients who show significant signs of cardiac pathology. The experts testified that they would place the patient on telemetry monitoring. That is what the Respondent sought to do.

    
    

52. The departure from the recognized standard of care does not relate to the level of skill of the physician, but the level of care or treatment provided under the circumstances of this case in which the hospital advises there are no telemetry beds. Again, the Petitioner bears the burden to show that the care provided was less than that which would have been provided by a reasonably prudent similar physician under similar conditions and circumstances.

    
    

53. Concerning the circumstances of the case, the Petitioner's experts assumed that they could have placed the patient in the emergency room, ICU, or CICU to obtain a monitored bed. Their opinions were based upon a different set of facts than those in this case which clearly indicated that the placement nurse placed monitored patients. The only choices open to Respondent were to retain W.V. in the cardiac catheterization lab for up to two hours, or place him in an unmonitored bed because there was no medical basis for downgrading the patient's status to place him in a critical care bed in order to obtain monitoring.

    
    

54. Further regarding the circumstances, the experts disagreed about the status of the patient. One of the Petitioner's experts opined that he was not stable, and the Respondent's experts and the other expert of Petitioner opined that he was stable. The facts indicate that W.V.'s vital signs had been stable for over five days, he had experienced no arrhymias, and was stable.

    
    

55. Dr. Edward's, who opined W.V. was stable, would have monitored W.V. for 24 hours post catherization because of W.V.'s severe heart disease, notwithstanding he was stable. The Respondent's experts agreed that this was desirable, but not medically necessary. The facts reveal that the Respondent was faced with a situation in which the optimum treatment of W.V. had to be

    reconsidered in light of the available resources, and a determination made whether monitoring was medically necessary in light of the adverse consequences of holding W.V. in the catherization laboratory until 1:00 p.m.

    
    

56. Because the Respondent was one of the principal doctors performing heart catherizations at St. Vincent's, inferentially, the Respondent considered upgrading the status of his other patients who were on 5 East as well as the medical needs of W.V. The Respondent considered the ability to manage W.V. in the catheterization laboratory with limited nursing support and the impact of W.V.'s discomfort and anxiety on his condition balanced against his medical needs.

    
    

57. The Respondent made his decision after considering his special orders for the patient, the hospital's standing orders, and his expectations regarding being notified of significant changes in the patient's condition. The Respondent's orders called for monitoring every 15 minutes for four hours followed by monitoring every 30 minutes for the remainder of his stay in the hospital. The standing orders called for staff to advise the treating physician of any changes in the patient's condition, or any deterioration in the patient's condition. The Respondent could not know that the treating nurse had not been advised that W.V. had a recent myocardial infarction. The facts indicate that this fact was not passed to Ms. Johnson to Ms. Burnsed. Had Ms. Burnsed known about the myocardial infarction, perhaps she would have reached a different decision about notifying the Respondent about W.V.'s chest pains and shortness of breath.

    
    

58. In any event, the correctness of the Respondent's decision is revealed in the fact that the change in W.V.'s symptoms was caught under the level of care ordered by the Respondent. A monitor was not needed to detect the critical change in breathing and chest pain. At this point, the Respondent would have been warranted in downgrading the patient's status and ordering him moved to CICU or ICU had he been notified in accordance with standing orders. The Respondent never had this opportunity because the treating nurse, exercising her professional judgment which her supervisors found appropriate, failed to notify the Respondent or his service. This was, however, not the fault of the Respondent.

    
    

59. Had the patient been placed in CICU or ICU, he would have been monitored after 9:30 p.m. when he suffered his fatal episode. Under the circumstances of allocating limited medical resources and the stability of the patient, notwithstanding his severe cardiac disease, the actions of the Respondent are determined to have been within the required standard of care, treatment, and skill, and the Respondent did not violate the statute as alleged.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED: That the charges against the Respondent be dismissed.

DONE and ENTERED this 2nd day of June, 1995, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 2nd day of June, 1995.

APPENDIX

The parties filed proposed findings of fact which were read and considered.

The following states which of those findings were adopted, and which were rejected and why:

Petitioner's Recommended Order Findings

Paragraph 1-3 Paragraph 1-3.

Paragraph 4 Paragraph 5.

Paragraph 5 Paragraph 3.

Paragraph 6 Paragraph 6.

Paragraph 7 While true, this finding is unnecessary to a consideration of the issues.

Paragraph 8 Paragraph 7.

Paragraph 9 Paragraph 9.

Paragraph 10 Paragraph 32.

Paragraph 11 Subsumed in Paragraph 37.

Paragraph 12 Subsumed in Paragraph 38,39.

Paragraph 13 Rejected as contrary to more credible evidence.

Paragraph 14 If arrythmias were undetected, they would have been irrelevant to consideration of the patient's condition.

Paragraph 15 Subsumed in Paragraph 9.

Paragraph 16 Paragraph 46.

Paragraph 17 Subsumed in Paragraph 9.

Paragraph 18 Contrary to more credible evidence; See Parag 48. Paragraph 19 Rejected at Paragraph 43.

Paragraph 20 Rejected at Paragraph 40.

Paragraph 21 Rejected as contrary to more credible evidence; See Paragraph 12.

Paragraph 22 Accurately states the expert's credentials, but is not relevant to consideration of the issues.

Paragraph 23 Rejected as contrary to more credible evidence; See Paragraphs 42 and 47.

Paragraph 24 Subsumed in Paragraphs 9,12,47-49.

Paragraph 25 Rejected at Paragraph 16. Paragraph 26 See comments to Paragraph 22. Paragraph 27 See comments to Paragraph 23.

Paragraph 28 While the may have been a national standard of care, there was not a national set of circumstances which impact the issue of whether the Respondent adhered to the appropriate standard of care.

Paragraph 29 Subsumed in Paragraph 47.

Paragraph 30 Subsumed in Paragraph 24.

Paragraph 31 Subsumed in Paragraph 9.

Respondent's Recommended Order Findings

Paragraph 1 Paragraph 4,5.

Paragraph 2,3 Paragraph 6.

Paragraph 4 Paragraph 6,4.

Paragraph 5 Paragraph 9.

Paragraph 6 Rejected as contrary to most credible evidence; See Paragraphs 12-14.

Paragraph 7-10 Subsumed in Paragraphs 17-19.

Paragraph 11 Accurate; however, the patient was stable upon admission.

Paragraph 12 Subsumed in Paragraph 46.

Paragraph 13 Paragraph 46.

Paragraph 14 Paragraph 24.

Paragraph 15 Subsumed in Paragraph 25-28.

Paragraph 16 Paragraph 24.

Paragraph 17 Paragraph 31.

Paragraph 18 Subsumed in Paragraph 33.

Paragraph 19 Paragraph 37.

Paragraph 20 Subsumed in Paragraph 46.

Paragraph 21 Paragraph 38,48.

COPIES FURNISHED:

Hugh R. Brown, Esq.

Agency for Health Care Administration 1940 N. Monroe St.

Tallahassee, FL 32399-0792

Michael J. Obringer, Esq. Osborne, McNatt, Shaw, et al One Enterprise Center

225 Water St., Ste. 400 Jacksonville, FL 32202-5147

Marm Harris, M.D. Executive Director Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esq. Department of Business and

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. 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,

Petitioner, AHCA CASE NO. 91-07406 DOAH CASE NO. 93-4397

vs. LICENSE NO. ME 0050839

ERNEST P. PHILLIPS, 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 August 5, 1995, in Palm Beach Gardens, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached) in the case of Department of Agency for Health Care Administration v. Ernest P. Phillips, M.D. At the hearing before the Board, Petitioner was represented by Steven Rothenberg, Senior Attorney.

Respondent appeared before the Board with Michael J. Obringer, Attorney at Law. 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 rulings, findings and conclusions:

RULINGS ON EXCEPTIONS

At the hearing before the Board, Petitioner took exception to the Hearing Officer's recommended conclusions of law with regard to the burden of proof imposed on the Petitioner. The Administrative Complaint that initiated this case specifically states that the Petitioner was not seeking a penalty of suspension or revocation of Respondent's license to practice medicine in Florida. Section 458.331(3), Florida Statutes, provides for the standard of proof in cases that do not involve suspension or revocation of licensure to be the greater weight of the evidence. However, in the Recommended Order in this case, the Hearing Officer specifically applied the clear and convincing standard of proof. The Board finds it appropriate to accept the exception of the Petitioner and reject paragraph 50 of the Hearing Officer's Recommended Order.

FINDINGS OF FACT

1. The Hearing Officers Recommended Findings of Fact are approved and adopted and are incorporated herein by reference in toto.

   
   

2. 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. The Hearing Officer's Recommended Conclusions of Law are approved and adopted and are incorporated by reference with the exception of paragraph 50 as set forth above.

   
   

3. The findings of fact set forth above do not establish that Respondent has violated Section 458.331, Florida Statutes, as charged in the Administrative Complaint.

DISPOSITION

In light of the foregoing findings of fact and conclusions of law the Board finds that the disposition recommended by the Hearing Officer is appropriate.

WHEREFORE, it is found, ordered and adjudged that the Administrative Complaint filed against Respondent in this case shall be 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 16th day of August, 1995.

BOARD OF MEDICINE

GARY E. 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 Ernest P. Phillips, M.D. c/o Michael J. Obringer, Attorney at Law, One Enterprise Center, Suite 1400, 225 Waters Street, Jacksonville, Florida 32202-5179 and to Stephen F. Dean, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and hand delivery to Steven Rothenberg, Senior Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0992 on this day of , 1995. (FILED UNDATED)

(FILED UNSIGNED)

AMENDED CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Ernest P. Phillips, M.D., 9143 Barnstaple Lane, Jacksonville, Florida 32257-5078, Michael J. Obringer, Esquire, One Enterprise Center Suite 1400, 225 Waters Street, Jacksonville, Florida 32202- 5179, Stephen F. Dean, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by interoffice delivery to Larry G. McPherson, Chief Medical Attorney, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, at or before 5:00 p.m., this 22nd day of August,1995.

MARM HARRIS

Docket for Case No: 93-004397

Orders for Case No: 93-004397