STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5118

)

CARLOS A. SOLORZANO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

On March 3, 1995, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Britt Thomas, Esquire

Agency for Health Care Administration Department of Business and

Professional Regulation 1940 North Monroe Street Northwood Centre, Legal A

Tallahassee, Florida 32399-0792

For Respondent: Carlos A. Solorzano, M.D., pro se

7211 North Dale Mabry Highway, Number 101 Tampa, Florida 33614

STATEMENT OF THE ISSUES

The issues in this case are framed by the parties' Joint Pre-Hearing Stipulation. Essentially, they are whether, in connection with his care and treatment of two patients, R.B., and D.T., the Respondent, who is an opthalmologist, violated Section 458.331(1)(t) and (m), Fla. Stat. (1993), by:

1. 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; or (m) failure to keep written medical records justifying the course of treatment of the patients.

   
   

   PRELIMINARY STATEMENT

   
   

   On April 26, 1994, the Petitioner, the Agency for Health Care Administration, through its predecessor, the Department of Business and Professional Regulation, filed an Administrative Complaint against the Respondent, BPR/AHCA Case No. 93-00645. The Respondent denied the charges and

   demanded a formal administrative proceeding. The matter was referred to the Division of Administrative Hearings (DOAH) on September 16, 1994. After receipt of a Joint Response to Initial Order, the case was scheduled for final hearing in Tampa, Florida, on March 3, 1995.

   
   

   At final hearing, the AHCA had Petitioner's Exhibits 1 through 6 admitted in evidence (6 being the transcript of the deposition of its expert) and rested. The Respondent then testified in his own behalf and called an expert of his own to testify. (The Respondent was permitted to late-file his expert's c.v. as Respondent's Exhibit 1, but no exhibit has been filed.)

   
   

   At the conclusion of the evidence, the AHCA ordered the preparation of a transcript of the final hearing, and the parties asked for and were given 20 days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on March 22, 1995.

   
   

   Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 94-5118.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent, Carlos A. Solorzano, M.D., is licensed to practice medicine in Florida. He holds license ME 0041368. The Respondent practices in the field of opthalmology. He is not Board-certified.

      
      

      Patient R.B.

      
      

   2. The patient, R.B., a 92 year-old female, was referred to the Respondent and was seen for the first time on February 2, 1988. The Respondent diagnosed chronic uveitis (inflammation) in both eyes, secondary cataracts in both eyes, and secondary glaucoma in the right eye. The Respondent prescribed two medications (inflamase and atropine).

      
      

   3. When R.B. was next seen by the Respondent on February 11, 1988, the Respondent prescribed a third medication (betagan) and recommended a YAG laser iridotomy on the right eye to relieve high pressure.

      
      

   4. In performing an iridotomy, the opthalmologist bores a hole in the iris to relieve abnormal pressure in the eye (glaucoma). Sometimes, especially when glaucoma is caused by active uveitis, a patient can be treated effectively by controlling the inflammation solely with medication and later dilating the pupil. If successful, medical treatment obviates the need for surgery.

      
      

   5. In the case of R.B., medical treatment was not and would not be successful. As a result of chronic uveitis, R.B. had a history of abnormally high pressures in the eye. In addition, and of even more concern, the pressures were subject to "spiking" seriously high pressures. Whereas pressures of 21 mm of Mercury (Hg) are considered high normal, R.B. had readings of 38 mm Hg in both eyes on January, 24, 1988. On her first visit to the Respondent on February 2, 1988, the readings were 30 mm Hg in the right eye and 20 mm Hg in the left eye. On her second visit to the Respondent on February 11, 1988, the readings were 29 mm Hg in the right eye and 19 mm Hg in the left eye.

      
      

   6. Clearly, the Respondent's recommendation that R.B. have an iridotomy performed on her right eye was within that level of care, skill, and treatment

      which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

      
      

   7. The Respondent's records indicate that, instead of an iridotomy, the Respondent performed an iridoplasty on R.B. on March 23, 1988.

      
      

   8. In an iridoplasty, the opthalmologist treats the surface of the iris with laser energy to cause some shrinkage and change of shape in the iris but does not bore a hole through the full thickness of the iris.

      
      

   9. The Respondent's medical records do not explain why an iridoplasty was performed on March 23, 1988, instead of the recommended iridotomy. The Respondent has no independent recollection of which procedure he performed and can only speculate that, if in iridoplasty was performed, perhaps it was because he was unable to complete the iridotomy and did an iridoplasty instead in preparation for a subsequent iridotomy. In that respect, the Respondent's written medical records were insufficient to justify the course of treatment of the patient.

      
      

   10. On March 28, 1988, the Respondent saw R.B. again and recommended an iridotomy on the left eye. The patient's left eye pressure reading on that day was 14 mm Hg, well within normal range. Other left eye pressure readings also were within normal range, although closer to high normal: 20 mm Hg on February 2, 1988; and 19 mm Hg on February 11, 1988. But there also was the history of a

       38 mm Hg "spike" on January 24, 1988, and the history of abnormally high pressures in the patient's right eye. Despite the normal readings for the left eye, taking all of the pertinent factors into consideration, it was not proven that the Respondent's recommendation of an iridotomy for the left eye was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. (A subsequent "spike" 76 mm Hg in April, 1990, further validated the recommendation.)

       
       

   11. The Respondent performed an iridotomy on R.B.'s left eye on April 20, 1988.

       
       

   12. The Respondent's medical records do not reflect the absence of cells or flares until an entry on June 6, 1988. The Respondent does not always record what he considers to be "negative findings." "Negative findings" should sometimes be recorded if they are pertinent and necessary, but these "negative findings" are subsumed in the diagnosis of chronic, rather than active, uveitis.

       
       

   13. Patients undergoing an iridotomy procedure should be seen for follow- up care within one to three days to ensure that the opening is patent, that the symptoms are relieved, and that no secondary inflammation is present.

       
       

   14. As indicated, the Respondent saw the patient, R.B., on March 28 and on April 25, 1988. The Respondent's records for those visits indicate intraocular pressures, but otherwise the Respondent's written medical records for any

       follow-up care on those dates were insufficient. (The March 28, 1988, records indicate an evaluation and recommendation for a iridotomies for both eyes but do not address the March 23, 1988, procedure on the right eye. The April 25, 1988, records do not address the April 20, 1988, procedure on the left eye.) The records for both of those visits indicate prescriptions for atropine, betagan, and inflamase.

   15. The next visit indicated in the Respondent's records for R.B. was June 6, 1988. At that time, the Respondent recommended a lensectomy and vitrectomy for the left eye, which he performed on August 30, 1988.

       
       

   16. A lensectomy is the removal of the lens. A lensectomy is indicated under several different circumstances. It is appropriate when a less involved cataract procedure cannot be performed, or when the anterior approach to removing a cataract cannot be utilized.

       
       

   17. A vitrectomy is the removal of the vitreous, the jelly-like material in the globe of the eye. A vitrectomy also is indicated under various different circumstances, including: biopsy; infection; blood in the eye; inflammation; and retinal repair.

       
       

   18. In the case of the patient, R.B., there was no improvement in the patient's vision (hand movement, only, in the left eye), despite the use of a strong corticosteroid, a beta blocker, and a strong pupil dilator. The patient continued to suffer from the effects of chronic uveitis. Synequies, or adhesions, continued to prevent fluid from escaping. The patient also had thick cataracts and membranes in the vitreous that were obscuring vision.

       
       

   19. Under these facts, it was not proven that the lensectomy and vitrectomy on the left eye were below 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 lensectomy and vitrectomy were safer than ordinary cataract surgery in this patient and safer than not doing anything. But the Respondent's written medical records were insufficient to justify the course of treatment of the patient. They did not adequately explain the reasons for the Respondent's recommendations.

       
       

       Patient D.T.

       
       

   20. The patient, D.T., was referred to the Respondent for evaluation regarding a detached retina at the seven o'clock position in the right eye.

       
       

   21. On September 28, 1988, the Respondent performed a procedure known as cryopexy to reattach the patient's retina. In cryopexy, the opthalmologist applies liquid nitrogen to the area of detachment. The low temperature of the liquid nitrogen (minus 60o centigrade) causes inflammation and scarring. The scarring reattaches the retina.

       
       

   22. It was the Respondent's responsibility to check the pressure in the liquid nitrogen tank supplied by the hospital facility the Respondent was using. He failed to check the pressure and, unfortunately, it was low. The Respondent attempted the procedure despite the low pressure in the liquid nitrogen tank but was not sure if it would be effective.

       
       

   23. The Respondent wanted to proceed with a follow-up procedure using a laser to be sure the reattachment succeeded, but the patient declined. In part in order to further facilitate reattachment pending the laser procedure, the Respondent injected air into the eye to serve as an internal tamponade to put pressure on the point of reattachment to hold it in place. (Other reasons for injecting air in the eye were to maintain proper intraocular pressure and to keep fluid away from the point of reattachment for access and visibility during the subsequent laser procedure.)

   24. Unfortunately, due to gravity and the inferior position of the retinal detachment, the internal tamponade only would be effective if the patient maintained a face-down position. On follow-up the next day, the patient was maintaining proper position and the laser procedure was scheduled for the following day. But on preop evaluation on September 30, 1988, the patient was found to be in sitting position, and it was not possible to perform the laser procedure. Instead, the Respondent recommended redoing the operation. The patient declined, preferring to "wait a few days."

       
       

   25. During follow-up evaluation on October 4, 1988, it was determined that the cryopexy had been at least partially successful after all, despite the low liquid nitrogen pressure. Pigment 1+ was seen, indicating inflammation and scarring, and the area of detachment of the retina appeared to be smaller. The macula remained attached. During another evaluation October 7, 1988, it was noted that the macula still remained attached.

       
       

   26. Although the Respondent urged the patient, D.T., to have the cryopexy procedure on the right eye repeated more quickly, the patient wanted to wait, and the Respondent repeated the procedure on October 14, 1988.

       
       

   27. It was not proven that the delay in repeating the procedure was below 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 initial procedure apparently was at least partially successful, and the macula remained attached. In addition, inferior retinal detachments usually do not extend quickly, and it was not proven that there was any urgency in repeating the procedure.

       
       

   28. The Respondent's medical records do not include any indication that he advised or encouraged the patient not to wait until October 14, 1988, to have the cryopexy procedure repeated, but it was not proven that this omission was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

       
       

   29. The Respondent testified that he saw the patient at her home on several occasions but his medical records make no mention of any such visits.

       
       

   30. It became apparent from participating in the final hearing (and can be surmised to some extent from the Respondent's "proposed findings of fact") that the Respondent's biggest difficulty in the practice of medicine may be the difficulty he has in communicating (at least in English). It is possible that patients and other physicians perceive incompetence when they do not understand what the Respondent is telling them, whether orally or in writing. His difficulty with written English may contribute to the inadequacy of some of his medical records.

       
       

       CONCLUSIONS OF LAW

       
       

   31. Section 458.331(1)(t) and (m), Fla. Stat. (1993), provide in pertinent part that the following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: (t) 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; and (m) failure to keep written medical records justifying the course of treatment of the patients.

   32. Section 458.331(3), Fla. Stat. (1993), provides:

       
       

       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 discip- linary action. The division shall establish grounds for revocation or suspension of license by clear and convincing evidence.

       
       

       See also Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987) (otherwise, the burden on the agency in license discipline proceedings, generally, is to prove the charges against the Respondent by clear and convincing evidence).

       
       

   33. As found, in this case, the AHCA only was able to prove that the Respondent failed to keep written medical records justifying some of the course of treatment of the patient, R.B. See Findings of Fact 9, 14 and 19.

       
       

   34. Section 458.331(2), Fla. Stat. (1993), provides:

       
       

       1. When the board finds any person guilty of any of the grounds set forth in subsection (1), including conduct that would constitute a substantial violation of subsection (1) which occurred prior to licensure, it may enter an order imposing one or more of the following penalties:

          1. Refusal to certify, or certification with restrictions, to the department an appli- cation for licensure, certification, or regis- tration.

          2. Revocation or suspension of a license.

          3. Restriction of practice.

          4. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

          5. Issuance of a reprimand.

          6. Placement of the physician on probation

             for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

          7. Issuance of a letter of concern.

          8. Corrective action.

          9. Refund of fees billed to and collected from the patient.

             
             

             In determining what action is appropriate, the board must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the physician. All

             costs associated with compliance with orders issued under this subsection are the obligation of the physician.

             
             

   35. Under F.A.C. Rule 59R-8.001, the range of penalties for a violation of Section 458.331(1)(m) is from a reprimand to a two-year suspension, followed by probation, and an administrative fine from $250 to $5,000. The rules also require that consideration be given to both aggravating and mitigating factors, but consideration of those factors in this case does not warrant the assessment of a penalty outside the recommended range.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent guilty of violating Section 458.331(1)(m), but not (t), Fla. Stat. (1993); (2) reprimanding him; and (3) imposing a $1,000 administrative fine.

RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 May, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5118

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-17. Accepted and incorporated to the extent not subordinate or unnecessary.

18.-20. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence.

1. Accepted. Subordinate to facts found. (The diagnosis was chronic, not active, uveitis.)

2. Rejected as not proven. (Cells and flares indicate active uveitis.)

3. Accepted. Subordinate to facts found. See 21., above.

24.-26. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence.

1. Accepted and incorporated.

2. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence as to intraocular pressure. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

29.-32. Accepted and incorporated to the extent not subordinate or unnecessary.

33.-35. Accepted and incorporated.

36.-37. Accepted and incorporated. However, there also are other indications.

1. Accepted and incorporated.

2. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence as to "indications"; accepted and incorporated as to "discussion."

3. Accepted and incorporated.

4. Accepted and incorporated as to inadequate medical records; otherwise, rejected as not proven and as contrary to facts found and to the greater weight of the evidence.

42.-44. Accepted and incorporated.

1. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. (It was at least partially successful and may have been completely successful, but the Respondent was unsure due to the low pressure and wanted to repeat the procedure to make sure.)

2. Accepted. Subordinate to facts found. (The medical records were written before subsequent follow-up evaluation showed successful cryopexy.) 47.-48. Accepted and incorporated. (As to 48., there also were other

reasons for it.)

1. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence that it was "necessary due to insufficient freezing." (The Respondent thought it was appropriate due to questions he had about the efficacy of the cryopexy and for other reasons.)

2. Accepted but subordinate and unnecessary. (The Respondent did not perform a pneumatic retinopexy.)

3. Rejected as not proven that it would not be "viable." Accepted that it was not appropriate, but subordinate and unnecessary. See 50., above. Also, rejected as not proven that "the patient could not be positioned to cause the desired effect."

4. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence that "the Respondent was advised." (The Respondent made the determination.) Otherwise, accepted and incorporated.

53.-54. Accepted and incorporated.

1. Accepted but subordinate and unnecessary.

2. Rejected as as not proven and as contrary to facts found and to the greater weight of the evidence.

57.-58. Accepted and incorporated.

1. Accepted but subordinate and unnecessary.

2. First sentence, accepted and incorporated. Second sentence, rejected as not proven and as contrary to facts found and to the greater weight of the evidence. See 45., above.

61.-65. Accepted but subordinate and unnecessary.

66.-67. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence.

Respondent's Proposed Findings of Fact.

(The Respondent's "proposed findings of fact" were presented in an unorthodox fashion that makes ruling difficult. He introduced a subject on a sheet of paper, sometimes commented on the subject, and attached copies of medical records in evidence that relate to the subject. These rulings are restricted to the Respondent's comments and attempt to follow the format chosen by the Respondent. No rulings are made on the attached copies of medical records as they are accepted but subordinate.)

FACTS RELATED TO PATIENT #1, RB

LASER PROCEDURES. Accepted and incorporated to the extent not subordinate or unnecessary.

REGARDING HIGH INTRAOCULAR PRESSURE. Accepted but subordinate. (Only copies of medical records.)

REGARDING A VERY HIGH SECOND EPISODE OF INTRAOCULAR PRESSURE. Accepted but

subordinate. (Only copies of medical records.)

POINT REGARDING THE APPOINTMENTS. As to R.B., accepted but subordinate and unnecessary. As to the other patients, rejected as not supported by any evidence.

PATIENT RB DIDN'T HAVE ACTIVE UVEITIS . . .. First sentence, accepted and incorporated. Second sentence (regarding slit lamp), accepted but subordinate and unnecessary. (AHCA apparently has dropped the charge that the Respondent did not use a slit lamp and that his records did not reflect its use.)

THE SURGICAL PROCEDURE LENSECTOMY VITRECTOMIE [sic]. Generally accepted

and incorporated to the extent not subordinate or unnecessary.

REGARDING SLIT LAMP EXAMINATIONS. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that the Respondent did not use a slit lamp and that his records did not reflect its use.)

FACTS RELATED [TO] PATIENT #2, DT

PAGE# 5. Accepted and incorporated. PAGE# 6. Accepted and incorporated.

PAGE# 7. Accepted (assuming "denied to" means "refused to") but largely subordinate and unnecessary. Only "home visits" comments are incorporated.

PAGE# 8. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the allegation that the proliferative vitreous retinopathy occurred between the two surgeries.)

PAGE# 9. Accepted and incorporated to the extent not subordinate or unnecessary.

PAGE# 10. Accepted and incorporated to the extent not subordinate or unnecessary.

PAGE# 11. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that, after the second surgery, the Respondent did not advise the patient concerning alternatives such as pars plana vitrectomies.)

PAGE# 12. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that the Respondent went on vacation in October, 1988.)

COPIES FURNISHED:

Britt Thomas, Esquire

Agency for Health Care Administration Department of Business and Professional Regulation

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

Carlos A. Solorzano, M.D., pro se 7211 North Dale Mabry Highway, #101

Tampa, Florida 33614

Dr. Marm Harris Executive Director

Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre

Tallahassee, Florida 32399-0792

Jerome W. Hoffman, Esquire General Counsel

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Board of Medicine 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 consult with the Board of Medicine concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-005118

Orders for Case No: 94-005118