STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2942

)

MARY-CLAIRE CHAPMAN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on November 29 and 30, 1994. The hearing was conducted by videoconference, with the parties, their counsel and witnesses and the court reporter participating from the videoconference center in Ft. Myers, Florida; and the hearing officer presiding from the videoconference center in Tallahassee, Florida.

APPEARANCES

For Petitioner: Britt Thomas, Esquire

Agency for Health Care Administration Northwood Centre

1940 North Monroe Street, Legal A Tallahassee, Florida 32399-0792

For Respondent: Anthony D. Demma, Esquire

Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

In an administrative complaint dated December 20, 1993, Petitioner alleges that Respondent violated section 458.331(1)(t), F.S. with regard to the treatment of two inmate patients at Charlotte Correctional Institution, where Respondent was chief health officer. The issues for disposition in this proceeding are whether the violations occurred and, if so, what discipline is appropriate.

PRELIMINARY STATEMENT

The Petitioner forwarded the case to the Division of Administrative Hearings after Respondent filed her election of rights disputing the allegations of the administrative complaint. After several continuances for good cause, the hearing proceeded as provided above.

In support of its position, Petitioner presented the testimony of C. A. Rosenberg, M.D. and Michael P. Sweeney, M. D. Petitioner's exhibits #1 through #8 were received in evidence.

Respondent testified in her own behalf and presented the additional testimony of the following: Sheila Vander Linde, Dorothy J. Gilfert, Harry I. Shuman, M.D., Robert Swartz, M.D. and Barkat Kahn, M.D. The additional testimony of Hassan Bukhari, M.D. was presented by deposition, received in evidence as Respondent's exhibit #7. Respondent's exhibits #1-4, 6-7 and 9-11 were received in evidence; exhibit #5 was withdrawn and exhibit #8 was rejected as irrelevant.

The transcript of proceeding was filed on December 29, 1994, and the parties' proposed recommended orders were filed on January 27 and 31, 1995. Specific rulings on the findings of fact proposed by the parties are found in the attached appendix.

FINDINGS OF FACT

1. Respondent, Mary-Claire Chapman, M.D. (Dr. Chapman) is now, and at all relevant times was licensed as a physician in the State of Florida, having been issued license number ME 0049241. From May 1989 until May 1992, Dr. Chapman was the chief health officer at Charlotte Correctional Institution (CCI), a prison in the Florida correctional system, in Punta Gorda, Florida.

   
   

   Patient A.J.

   
   

2. Inmate A.J. arrived at CCI on August 9, 1989, with no apparent medical complaints. From August 1989, until March 1990, he attended sick call or clinic with complaints related primarily to digestive disorders; the treatment given to him during that period is not at issue.

   
   

3. A.J.'s first noted complaints of headaches was on March 8, 1990, when he was seen at Doctor's Clinic at CCI by staff physician, Dr. DeCespedes. He was given Motrin. On March 10, A.J. completed an inmate medical request seeking to have his eyes checked as he stated he was getting daily headaches for three weeks. He was seen in sick call on March 12, with complaint of "severe migraine headache" for two weeks. He was given Motrin and was referred to the senior nurse, who saw him on March 13. The nurse noted his complaint of severe pounding headache and stuffy nose and ears "like on an airplane". He was given Dimetapp and Ibuprofen.

   
   

4. A.J. appeared at sick call again on March 16 complaining of headaches that affected his vision. He was referred by the nurse to Dr. DeCespedes, who examined him and noted no acute distress, supple neck and 20/20 vision. Dr. DeCespedes gave him Ibuprofen and suggested return in ten days for follow up.

5. On March 18, A.J. completed an inmate request form to medical: Doc I have been having headakes real bad ones,

   every day for three weeks now. On 3/17/90 I started to have trouble seeing. I can not fockus with both eyes open but can with one open at atime. Can you pleas help me quickely.

   
   

   thank you

   (Pet. Ex. #1, p. 15)

   
   

   The form is stamped received on March 19, 1990, "Medical, Charlotte Correctional Institution". That same date A.J. sent an "emergency grievance" to the assistant superintendent stating that the pain was very bad, that he was walking into things and stating that he needed medical assistance as soon as possible.

   
   

6. Dr. Chapman examined A.J. on March 20; fundoscopy, temperature and neck movements were normal. Dimetapp was given, and a staff optometry appointment was scheduled for April 2.

   
   

7. The staff optometrist examined A.J. and found no problems with his retina or vision but ordered glasses to help with the focusing. The optometry note in A.J.'s medical record states that the patient needs to be reevaluated by the M.D. because of the headaches.

   
   

8. A.J. saw the nurse in the clinic on April 8 with complaints of continued, unchanged headache. He was given Ibuprofen and an appointment to see the doctor on April 10.

   
   

9. Dr. DeCespedes' notes of examination on April 10 reflect normal findings and an order of an X-ray for sinuses. The X-rays, taken on April 12, reflected sinusitis. Dr. Chapman reviewed the file on April 10 and April 13; she found the work-up for headaches adequate and ordered Keflex for the sinusitis.

   
   

10. Dr. Chapman examined A.J. at the clinic on April 17, when he reported feeling bad and unable to go to work. He refused a "lay-in" because he did not want to lose gain time and said, "my boss understands." The examination revealed normal findings. Dr. Chapman added Dimetapp to the Keflex already being taken and advised A.J. to keep his follow-up appointment with Dr. DeCespedes.

    
    

11. A.J. appeared at the clinic several time on April 24. In the morning he reported, "I think I'm dying", stated his headache was much worse, held one eyelid half-shut and complained of blurred vision, tinnitis and photophobia. He said his sinuses no longer caused pain. The nurse gave him Ibuprofen and told him he had a doctor's appointment on the next day. The nurse noted he had lost

    22 pounds since the end of November and 31 pounds since August.

    
    

12. That same day, later in the afternoon A.J. reported to the clinic again, stating that he had gotten up to get a drink of water, blacked out and came to with someone holding him up. He said the Motrin provided no relief from his severe headache. His throat was slightly inflamed with some swelling on the right side. He was referred to the staff physician who observed the patient in distress and hyperventilating. He was given Darvocet; Dr. DeCespedes was consulted; and another sinus X-ray was ordered.

    
    

13. On April 26, Dr. DeCespedes admitted A.J. to the infirmary after he had reportedly passed out in his bunk. The sinus X-rays reflected the sinusitis was resolved. From April 26 through April 30, A.J. continued to complain of headaches and loss of vision. A CT scan and bloodwork were ordered. Nursing notes from the infirmary reflect that A.J. was "looking" at TV with no apparent blindness. He was examined on April 30, by Dr. DeCespedes and by the optometrist, who found abnormal fundi (swelling of the optic nerve). The optometrist recommended an opthomologist (MD) consultation as soon as possible.

14. Dr. Chapman examined A.J. at 6 p.m. on May 1. By then he was lethargic, unable to get up without assistance and had difficulty swallowing. Dr. Chapman noted the swelling of the optic nerve and ordered A.J. transferred to the local hospital.

    
    

15. Laboratory work on admission showed elevated white blood count which had not been revealed in laboratory findings earlier. Other tests, CT scan and MRI, were initially normal, but brain edema appeared after the third day. Similarly, spinal taps indicated elevated spinal fluid which was clear at first, but, after the fourth hospital day tested positive for streptococcus. The diagnosis after several days was cryptococcal meningoencephalitis.

    
    

16. A.J. lapsed into a coma and died at the hospital on May 8, 1990.

    
    

    Patient J. D.

    
    

17. J. D., aged fifty-one, entered the Florida Department of Corrections system at the South Florida Reception Center on January 30, 1990. He had a history of peripheral vascular disease (PVD), diabetes and hypertension, and had undergone vascular surgery.

    
    

18. In February 1990, under the auspices of the Department of Corrections,

    J.D. underwent further surgery to repair a prior graft. The patient had a bypass graft performed from the left groin to the right groin using an interposition graft at the left common femoral position, and a 6mm cross-over graft placed from the interposition graft to the right superficial femoral artery.

    
    

19. J. D. was transferred to CCI around May 2, 1990. On arrival, he was evaluated by staff physician, Dr. DeCespedes, who noted his history, including the recent surgery. He was given a pass for no prolonged standing, was placed on a low cholesterol diet and was given a lower bunk assignment.

    
    

20. Thereafter, J.D. was reevaluated by the staff physician on May 16, 1990; July 10, 1990; October 23, 1990; and February 21, 1991. February 21, 1991, is the first day that a complaint of pain by the inmate was noted.

    
    

21. On February 21, 1991, Dr. DeCespedes' clinic notes reflect complaint of pain in J. D.'s legs and a mass in the left inguinal area. Dr. DeCespedes gave J.D. a light duty pass for a few days.

    
    

22. On March 5, 1991, J.D. sent this inmate request to Dr. Chapman:

    
    

    Dr.Chapman. I am in the need of help. I

    have hardening and blood clots in the arteries. I had surgery at So. Fla. Reception in Feb. of last yr. at Larkin Hospital. For the past month I have been experiencing severe pain in my legs. More in the right leg and foot than the left.

    I saw Dr. DeCespedes last week and told her of the pain and numbness. I also told her that I was having trouble walking to the mess hall and back. She said "you have to walk" and didn't even look at my legs! Dr. I'm really afraid if I don't get some attention soon I may lose my leg. Inmate Logan Ward told me that you are familiar with this type of illness. Would you

    please call me to see you as soon as possible. I am really scared. My right foot is red and cold and numb most of the time. I have a lot of pain. Thank you.

    
    

    (Pet. #3, p. 169)

    
    

    An inmate request of similar urgency was sent by J.D. to the assistant superintendent the same day.

    
    

23. Dr. Chapman responded by setting an appointment for J.D. to see her on March 29.

    
    

24. On March 8, J.D. came to clinic reporting a medical emergency. The nurse noted left toes were purplish and cool; the right ankle and foot were cold and dark red and "unable to appreciate peripheral pulses". J.D. complained of pain behind his left knee and severe pain on slight touch to the right leg. He was referred to Dr. DeCespedes, who admitted him to the infirmary for observation. On examination, Dr. DeCespedes noted pulses and no edema.

    
    

25. Dr. Chapman examined J.D. in the infirmary on March 13. She could not detect pulses in his lower extremities. She continued current medications and added Trental, a medication to increase blood flow. She ordered a Doppler pulse check and noted that the inmate should sign a medical release for records so that his prior hospital records could be obtained. Dr. Chapman also noted that the inmate should sign a consent sheet for peripheral vascular testing.

    
    

26. On March 14, J.D. requested discharge from the infirmary, stating he felt better. He had complained early that morning that he could not sleep in the infirmary. Pulses were present but his lower extremities were cold.

    
    

27. Dr. Chapman examined J.D. on March 29 and noted his severe peripheral vascular disease with leg pain. J.D. complained that he had been unable to get to the dining hall and guards were bringing him bagged lunches at times or a wheelchair. Dr. Chapman ordered a quad cane and crutches until the quad cane could be provided. She noted that he should have extra time to get to meals, but should not be given a wheelchair or bagged meals. She noted that she completed a consultation request for peripheral vascular testing by a vascular surgery consultant.

    
    

28. For some reason unknown by Dr. Chapman and undisclosed by the record of this proceeding, J.D. was sent to a cardiologist, not a vascular surgeon. He was seen by Robert B. Garrett, M.D. on April 3. That same date, Dr. DeCespedes noted in J.D.'s clinical record that the cardiologist reported severe ischemia in the patient's legs, that J.D. needed special tests and he should be in a wheelchair, but twice daily he should walk 50 to 100 feet to exercise his legs.

    
    

29. On April 10, J.D. sent an inmate request to the superintendent complaining about his medical treatment, stating he had pain and trouble walking, that he was given a wheelchair but that it was taken away, even though the specialist had recommended it. Dr. Chapman's response states that J.D. had a quad cane and was to be encouraged to be active. Further, the response states that J.D. had an appointment with her after his next specialist appointment.

    
    

30. On April 11, 1991, Dr. Chapman reviewed Dr. Garrett's report and immediately requested a vascular surgery consultation. At some point, J.D. was

    transferred to administrative confinement, as requested by Dr. Chapman, so that he could have his meals delivered.

    
    

31. J.D.'s vascular surgery consultation was scheduled for April 22, but was cancelled by security personnel and was rescheduled for May 9.

    
    

32. CCI staff physician, Evidio Tornin, examined J.D. on April 30. He noted "no acute distress", but found a ischemic ulcer, nickel-sized, on J.D.'s right lower leg. He found severe circulatory insufficiency and was unable to detect pulses in J.D.'s extremities. The physician's notes acknowledge that

    J.D. had a vascular specialist appointment scheduled.

    
    

33. Dr. Sweeney, the vascular surgeon, saw J.D. on May 9, 1991. His notes of the examination reveal he found a large ulceration on the right leg and a smaller ulceration on the left Achilles' tendon. Dr. Sweeney's impression was that the bypass grafts had occluded. Dr. Chapman's notes dated May 13 acknowledge the consultation with Dr. Sweeney, including Dr. Sweeney's concern that both legs would likely be lost if surgery were not done within the next two weeks. Dr. Chapman also noted that same date she had informed the regional utilization review nurse of the seriousness of the situation and the nurse agreed to an emergency admission to Southwest Florida Regional Medical Center under Dr. Sweeney's care.

    
    

34. An arteriogram was scheduled for May 21, 1991, but was postponed for a day because of hospital equipment problems. After the test was done, Dr. Sweeney concluded that J.D.'s prior grafts were completely blocked and collateral vessels were supplying the only blood to his legs. Dr. Sweeney performed surgery to remove the infected grafts on May 28, 1991. After surgery, J.D.'s status deteriorated; his legs became non-viable and his temperature elevated to 103. On June 7, 1991, J.D. was taken to the operating room where Dr. Sweeney performed bilateral above the knee amputations.

    
    

    The Standard of Care

    
    

35. CCI was a new prison when Dr. Chapman was hired to become its chief health officer. Originally built to house 700 inmates, it double-bunked to a maximum capacity of 1488 inmates by August 1989, and approximately 1400 inmates were housed there while Dr. Chapman was chief health officer.

    
    

36. CCI was a close custody, medical grade IV institution. That is, it contained the most violent criminals with a full range of medical problems. Medical grade IV includes the sickest population in the correctional system, as well as all of the less serious medical grades.

    
    

37. Dr. Chapman provided overall supervision to approximately 45 employees and direct supervision to approximately 10 employees. She held weekly and monthly staff meetings and was expected to review five sick call charts each day, Monday through Friday.

    
    

38. There is ample evidence that Dr. Chapman periodically reviewed the files of both inmates at issue here. She was directly involved in their treatment and examined them personally on occasion. She was also responsible for their care as the supervisor of Dr. DeCespedes and the other staff physicians.

    
    

39. Dr. Chapman's job was difficult, if not impossible, as conceded by the agency's expert witness. However, she violated the appropriate standard of care

    as to inmates A.J. and J. D. by failing to adequately supervise the treating physicians and by failing to obtain appropriate and timely consultations.

    
    

40. The ultimate tragic outcomes of the two inmates' cases are plainly not the basis for this conclusion. Cryptococcal meningitis is a difficult disease to diagnose. And, there is a possibility J.D. would ultimately have lost his legs as a result of his persistent smoking, according to the warning of the cardiologist. Yet, in both cases there were increasingly urgent complaints by the subject inmates. Those complaints were deferred by punctilious observance of hollow routine, at best , and misplaced scepticism, at worst.

    
    

41. In A.J.'s case, the treatment for sinusitis was appropriate, but the continued complaints of headaches and progressive loss of vision should have alerted the staff to a more pernicious cause. In J.D.'s case, although Dr. Chapman contends that his prior medical records were not obtained until several months after the amputations, the medical staff was well aware of his recent surgery and his history at the time he was received at CCI. The clues, in subjective complaints and in such objective physical signs as weak or non- existent pulse and ischemic ulcers, should have prompted a more immediate evaluation of his peripheral vascular status.

    
    

42. In making the above findings of violations, substantial weight has been accorded the opinion of the agency witness, C. A. Rosenberg, M.D., who was appointed by the Federal District Court in 1983 after his nomination by the Department of Corrections, to serve on a three-physician survey team to monitor settlement of a case involving medical care in the Florida correctional system. Dr. Rosenberg's testimony was clear, competent and credible. He was not biased against the system, and was experienced in the role of a supervising physician. His analysis of the records he reviewed was incisive; that is, he distinguished convincingly between medical care that was appropriate and what was not. He acknowledged the difficulty of providing medical care under the circumstances experienced by Dr. Chapman and he confined his criticism to discrete, specific areas where action could have been taken, but was not. In that sense, although he articulated a standard of care that is the same standard imposed on a physician outside of an institutional setting, it is plain that he considered the conditions and circumstances under which Dr. Chapman labored in framing his opinion.

    
    

43. Just as it is appropriate to consider these conditions and circumstances in determining whether a violation occurred, it is also appropriate to consider them in recommending an appropriate penalty. From her own testimony and those who have worked with her, Dr. Chapman is a caring physician and is well-respected. No evidence of other past discipline or cause for discipline appears in the record of Dr. Chapman's public service presented in this proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

44. The Division of Administrative Hearings has jurisdiction in the proceeding pursuant to sections 120.57(1), F.S. and 455.225(5), F.S.

    
    

45. Pursuant to Section 458.331(2), F.S. the Board of Medicine may revoke or suspend or otherwise discipline the license of a physician found to have committed any violations of section 458.331(1), F.S., including the following with which the Respondent was charged:

    (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recog-

    nized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s.766.102 when enforcing this paragraph. . . . As used in

    this paragraph "gross 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," shall not be construed as to require more than one instance, event, or act.

    Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.

    
    

46. In a license disciplinary case the agency has the burden of proving the allegations of the complaint. The standard of proof in physician license cases is described in section 458.331(3), F.S.:

    
    

    (3) In any administrative action against a physician which does not involve revocation or suspension of license, the division shall have the burden, by the greater weight of the

    evidence, to establish the existence of grounds for disciplinary action. The division shall establish grounds for revocation or suspension of license by clear and convincing evidence.

    
    

47. The Administrative Complaint dated December 20, 1993, simply urges an order imposing one or more of the entire range of penalties provided by statute, from revocation to reprimand; however, the proposed recommended order by counsel for Petitioner suggests a $5000 fine and three years probation. Under such circumstances the clear and convincing standard applies.

    
    

48. Here, the agency proved by clear and convincing evidence that Dr. Chapman failed to practice medicine with that level of care, skill and treatment which is recognized as being acceptable under similar conditions and circumstances as to inmate patients A.J. and J. D.

49 Rule 59R-8.001(2)(t), F.A.C. provides a relevant range of penalties from two years probation to revocation, and administrative fine from $250 to

$5000. The penalty recommended here is within that range.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That the Board of Medicine enter its final order finding that Respondent violated section 458.331(1)(t), F.S. and establishing a penalty of two years probation and $2000 fine.

DONE AND RECOMMENDED this 3rd day of March, 1995, in Tallahassee, Leon County, Florida.

MARY CLARK

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 3rd day of March, 1995.

APPENDIX

The following constitute specific rulings on the findings of fact proposed by the parties as required by section 120.59(2), F.S.

Petitioner's Proposed Findings

Adopted or adopted in substance: Paragraphs #1-5, 7-8, 10-19, 21-25, 29-

35, 38-39, 42-52, 54-59, 61-67, 69-76, 81-84.

Rejected as unnecessary: Paragraphs #9, 20, 26-28, 36-37, 40-41, 53, 78-

80.

Rejected as unsupported by the weight of evidence: Paragraphs #60, 68, 77. Rejected as a conclusion of law, rather than finding of fact. (Moreover,

the standard applied here is described in section 458.331(1)(t), F.S.): Paragraph #6

Respondent's Proposed Findings Adopted or adopted in substance:

Paragraphs #1-3, 10-15, 17-21, 23-36 (with exception of final sentence),

37-48, 50.

Rejected as unnecessary: Paragraphs #4-9, 16, 49.

Rejected as unsupported by the weight of evidence: Paragraphs #22 (as to nursing notes being inconsistent with the blindness complaint), 27, 36 (final sentence-At least some evidence indicates he could not sleep in the infirmary and that is why he wanted to leave), 51-53.

COPIES FURNISHED:

Dr. Marm Harris Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Tom Wallace, Assistance Director Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Brett Thomas, Esquire

Agency for Health Care Administration Legal Section

1940 North Monroe Street Tallahassee, Florida 32399-0792

Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302

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.

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

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,

Petitioner,

AHCA CASE NO: 92-08959

vs. DOAH CASE NO: 94-2942

LICENSE NO: ME 0049241

MARY-CLAIRE CHAPMAN, 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 June 9, 1995, in Gainesville, Florida, for consideration of the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order and Petitioner's Response to Respondent's Exceptions (Attached as App. A, B and C) in the case of Agency for Health Care Administration, Board of Medicine v. Mary-Claire Chapman, M.D. At the hearing before the Board, Petitioner was represented by Britt Thomas, Medical Attorney. Respondent was present and represented by Anthony Demma, 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:

RULINGS ON RESPONDENT'S EXCEPTIONS TO FINDINGS OF FACT

1. Respondent's Exception to paragraph 28 of the Findings of Fact of the Recommended Order to the extent that it supports an implication that the Respondent did not follow a consulting cardiologist's recommendation in regard to patient J.D., is rejected. There was competent, substantial evidence to support this finding.

   
   

2. Respondent's exception to paragraph 29 of the Findings of Fact of the Recommended Order to the extent that it implies that the Respondent was indifferent regarding the care provided to patient J.D., is rejected. There was competent, substantial evidence to support the finding that despite patient J.D's complaints, the Respondent denied him the use of a wheelchair.

   
   

3. Respondent's exception to paragraph 38 of the Findings of Fact of the Recommended Order that the Respondent, in her position as Chief Health Officer at Charlotte Correctional Institute, was responsible for the medical care of patients A.J. and J.D., is rejected. The Hearing Officer incorporated both the testimonial evidence presented with the demonstrative exhibits and appropriately found that as the supervisor of the staff physicians, the Respondent was responsible for the care of A.J. and J.D.

   
   

4. Respondent's exception to the Hearing Officer's evidentiary determination that a letter containing information from the Agency Clerk regarding possible disciplinary action against other doctors who cared for patient A.J. and/or J.D. was irrelevant, is rejected. The information contained therein was in no way probative regarding whether the Respondent deviated from the appropriate standard of care for patients A.J. and J.D., and exclusion of this information by the Hearing Officer was proper.

   
   

5. Respondent's exception to the Hearing Officer's ruling that a memorandum from the Respondent to the Superintendent of the correctional facility where she was employed be admitted for mitigation purposes only, is rejected. No evidence was presented to indicate that the problem spoken of in the memorandum regarding outside consultations was addressed as a matter of the care rendered to patient J.D. The evidence was properly admitted for mitigation only.

   
   

6. Respondent's exception to paragraph 39 of the Findings of Fact of the Recommended Order, a re-statement of the exception to paragraph 38 of the Findings of Fact, is rejected. Competent, substantial evidence existed to support the allegation that the Respondent failed to obtain timely and

   appropriate consultations for patients A.J. and J.D. Additional comment by Respondent was argument and conclusory, rather than proper exception.

   
   

7. Respondent's exception to paragraph 40 of the Recommended Order in that the Respondent failed to appropriately respond to patient A.J.'s and J.D.'s increasing complaints, is rejected. The Hearing Officer weighed the testimony and entered an appropriate finding based on competent, substantial evidence.

   
   

8. Respondent's exception to paragraph 41 of the Recommended Order wherein the Hearing Officer found that patient A.J.'s complaints should have alerted medical staff to a more serious cause, is rejected. The Hearing Officer weighed the testimony and entered an appropriate finding based on competent, substantial evidence.

   
   

9. Respondent's exception to paragraph 42 of the Recommended Order, an exception to the Hearing Officer's finding that Dr. Rosenberg, expert for the Petitioner, provided unbiased, clear, competent, and credible testimony, is rejected. The Respondent cited factual conflict in support of this exception, however, resolution of factual conflict is solely within the province of the Hearing Officer. There was competent, substantial evidence to support this finding.

FINDINGS OF FACT

1. The Hearing Officer's 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.

   
   

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

RULINGS ON RESPONDENT'S EXCEPTIONS TO CONCLUSIONS OF LAW

1. Respondent's exception to paragraph 48 of the Recommended Order, an exception to the Conclusion of Law that the Respondent deviated from the appropriate standard of care regarding patients A.J. and J.D., is rejected. The Hearing Officer incorporated both the testimonial evidence with the demonstrative exhibits in determining factual findings and in appropriately concluding as a matter of law that the Respondent did deviate from the appropriate standard of care.

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 findings of fact set forth above establish that Respondent has violated Section 458.331(1)(t), Florida Statutes as charged in the Administrative Complaint.

   
   

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

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law, the Hearing Officer recommended the following penalty:

1. That the Respondent is guilty of violating Section 458.331(1)(t), Florida Statutes.

In light of the foregoing Findings of Fact and Conclusions of Law the Board hereby determines that pursuant to Rule 59R-8, Florida Administrative Code, the penalty recommended by the Hearing Officer is inappropriate as set forth in the Recommended Order.

WHEREFORE, it is found, ordered and adjudged that the Respondent is guilty of violating Section 458.331(1)(t), of the Administrative Complaint and pursuant to Rule 59R-8, F.A.C., the Board of Medicine imposes the following penalty:

1. Within thirty (30) days of the filing of the Final Order in this cause, Respondent shall pay an administrative fine in the 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 9th DAY OF JUNE, 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 Mary-Claire Chapman, M.D., Gulf Coast Learning Center, 5820 Buckingham Road, Ft. Myers, Florida 33905, Anthony Demma, Esquire, P.O. Box 1547, Tallahassee, Florida 32302, Mary Clark, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 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 19th day of July, 1995.

Marm Harris, Ed.D. Executive Director

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

AGENCY CORRECTED FINAL ORDER

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,

Petitioner,

AHCA CASE NO: 92-08959

vs. DOAH CASE NO: 94-2942

LICENSE NO: ME 0049241

MARY-CLAIRE CHAPMAN, M.D.,

Respondent.

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CORRECTED FINAL ORDER

THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on June 9, 1995, in Gainesville, Florida, for consideration of the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order and Petitioner's Response to Respondent's Exceptions (Attached as App. A, B and C) in the case of Agency for Health Care Administration, Board of Medicine v. Mary-Claire Chapman, M.D. At the hearing before the Board, Petitioner was represented by Britt Thomas, Medical Attorney. Respondent was present and represented by Anthony Demma, 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:

RULINGS ON RESPONDENT'S EXCEPTIONS TO FINDINGS OF FACT

1. Respondent's Exception to paragraph 28 of the Findings of Fact of the Recommended Order to the extent that it supports an implication that the Respondent did not follow a consulting cardiologist's recommendation in regard to patient J.D., is rejected. There was competent, substantial evidence to support this finding.

   
   

2. Respondent's exception to paragraph 29 of the Findings of Fact of the Recommended Order to the extent that it implies that the Respondent was indifferent regarding the care provided to patient J.D., is rejected. There was competent, substantial evidence to support the finding that despite patient J.D's complaints, the Respondent denied him the use of a wheelchair.

   
   

3. Respondent's exception to paragraph 38 of the Findings of Fact of the Recommended Order that the Respondent, in her position as Chief Health Officer at Charlotte Correctional Institute, was responsible for the medical care of patients A.J. and J.D., is rejected. The Hearing Officer incorporated both the testimonial evidence presented with the demonstrative exhibits and appropriately found that as the supervisor of the staff physicians, the Respondent was responsible for the care of A.J. and J.D.

   
   

4. Respondent's exception to the Hearing Officer's evidentiary determination that a letter containing information from the Agency Clerk regarding possible disciplinary action against other doctors who cared for patient A.J. and/or J.D. was irrelevant, is rejected. The information contained therein was in no way probative regarding whether, the Respondent deviated from

   the appropriate standard of care for patients A.J. and J.D., and exclusion of this information by the Hearing Officer was proper.

   
   

5. Respondent's exception to the Hearing Officer's ruling that a memorandum from the Respondent to the Superintendent of the correctional facility where she was employed be admitted for mitigation purposes only, is rejected. No evidence was presented to indicate that the problem spoken of in the memorandum regarding outside consultations was addressed as a matter of the care rendered to patient J.D. The evidence was properly admitted for mitigation only.

   
   

6. Respondent's exception to paragraph 39 of the Findings of Fact of the Recommended Order, a re-statement of the exception to paragraph 38 of the Findings of Fact, is rejected. Competent, substantial evidence existed to support the allegation that the Respondent failed to obtain timely and appropriate consultations for patients A.J. and J.D. Additional comment by Respondent was argument and conclusory, rather than proper exception.

   
   

7. Respondent's exception to paragraph 40 of the Recommended Order in that the Respondent failed to appropriately respond to patient A.J.'s and J.D.'s increasing complaints, is rejected. The Hearing Officer weighed the testimony and entered an appropriate finding based on competent, substantial evidence.

   
   

8. Respondent's exception to paragraph 41 of the Recommended Order wherein the Hearing Officer found that patient A.J.'s complaints should have alerted medical staff to a more serious cause, is rejected. The Hearing Officer weighed the testimony and entered an appropriate finding based on competent, substantial evidence.

   
   

9. Respondent's exception to paragraph 42 of the Recommended Order, an exception to the Hearing Officer's finding that Dr. Rosenberg, expert for the Petitioner, provided unbiased, clear, competent, and credible testimony, is rejected. The Respondent cited factual conflict in support of this exception, however, resolution of factual conflict is solely within the province of the Hearing Officer. There was competent, substantial evidence to support this finding.

FINDINGS OF FACT

1. The Hearing Officer's 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.

   
   

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

RULINGS ON RESPONDENT'S EXCEPTIONS TO CONCLUSIONS OF LAW

1. Respondent's exception to paragraph 48 of the Recommended Order, an exception to the Conclusion of Law that the Respondent deviated from the appropriate standard of care regarding patients A.J. and J.D., is rejected. The Hearing Officer incorporated both the testimonial evidence with the demonstrative exhibits in determining factual findings and in appropriately concluding as a matter of law that the Respondent did deviate from the appropriate standard of care.

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 findings of fact set forth above establish that Respondent has violated Section 458.331(1)(t), Florida Statutes as charged in the Administrative Complaint.

   
   

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

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law, the Hearing Officer recommended the following penalty:

1. That the Respondent is guilty of violating Section 458.331(1)(t), Florida Statutes.

In light of the foregoing Findings of Fact and Conclusions of Law the Board hereby determines that pursuant to Rule 59R-8, Florida Administrative Code, the penalty recommended by the Hearing Officer is appropriate as set forth in the Recommended Order.

WHEREFORE, it is found, ordered and adjudged that the Respondent is guilty of violating Section 458.331(1)(t), of the Administrative Complaint and pursuant to Rule 59R-8, F.A.C., the Board of Medicine imposes the following penalty:

1. Within thirty (30) days of the filing of the Final Order in this cause, Respondent shall pay an administrative fine in the amount of two thousand dollars ($2,000.00) to the Board of Medicine.

This Corrected 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.

This Corrected Final Order takes effect upon filing with the Clerk of the Agency Nunc Pro Tunc.

DONE and ORDERED this 11th DAY OF AUGUST, 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 Mary-Claire Chapman, M.D., Gulf Coast Learning Center, 5820 Buckingham Road, Ft. Myers, Florida 33905, Anthony Demma, Esquire, P.O. Box 1547, Tallahassee, Florida 32302, Mary Clark, Hearing, Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 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 11th day of August, 1995.

Marm Harris, Ed.D. Executive Director

Docket for Case No: 94-002942

Orders for Case No: 94-002942