STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1981

)

JOHN ISAAC DELGADO, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 28, 1995, a formal administrative hearing in this case was held in Tampa, Florida, before William. F. Quattlebaum, Hearing Officer, Division of Administrative Hearings. The Hearing Officer conducted the proceeding by videoconference and by telephone conference.

APPEARANCES

For Petitioner: Steve Rothenburg

Senior Attorney

Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210

Tampa, Florida 33619

For Respondent: Clifford L. Somers, Esquire

3242 Henderson Boulevard, Suite 301

Tampa, Florida 33609 STATEMENT OF THE ISSUE

The issue in this case is whether the allegations of the Administrative Complaint are correct, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 7, 1994, the Petitioner alleges that the Respondent practiced medicine below the acceptable standard of care by failing to diagnose a ruptured abdominal aortic aneurysm, by failing to review x-rays "which would have led to a diagnosis of ruptured abdominal aortic aneurysm" and by failing to timely obtain appropriate emergency consultations. The Respondent requested a formal administrative hearing to address the allegations of the complaint. The request was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner presented the testimony of two witnesses and had exhibits numbered 1-2 admitted into evidence. The Respondent presented the testimony of two witnesses, testified on his own behalf, and had exhibits

numbered 1-2 admitted into evidence. Joint exhibits numbered 1-2 were also admitted, as was the prehearing stipulation filed by the parties.

A transcript of the hearing was filed. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged by statute with regulating the practice of medicine in Florida.

   
   

2. At all times material to this case, John Isaac Delgado (Respondent) has been a physician in the state, holding Florida license number ME 0054871.

   
   

3. The Respondent's last address of record is 7820 North Armenia Avenue, Tampa, Florida, 33629.

   
   

4. The Respondent has been licensed to practice in Florida since 1989.

   
   

5. At about 8:30 p.m. on February 9, 1992, Patient W. S. (Patient) presented to the Emergency Room at St. Joseph's Hospital, Tampa, apparently complaining of right lower quadrant pain.

   
   

6. Immediately prior to being seen at the emergency room, the Patient had been playing cards with friends and had apparently fainted.

   
   

7. The Patient, a 74 year old obese white male, had a history of diabetes, coronary artery disease and had a previous myocardial infarction.

   
   

8. At the emergency room, the Patient was initially examined by John C. Siano, M.D. Dr. Siano ordered chest and abdominal x-rays.

   
   

9. The Respondent was the internist on call at the time the Patient was examined in the emergency room. Dr. Siano contacted the Respondent and notified him of the situation.

   
   

10. The Respondent examined the Patient at about 10 p.m. The examination was extensively documented.

    
    

11. At the time the Respondent initially examined the Patient, the Patient provided an incomplete summary of his symptoms.

    
    

12. The Patient had apparently informed emergency room personnel of severe pain; however, this information was not provided to the Respondent. The Respondent was aware only of intermittent abdominal pain.

    
    

13. The Patient's emergency room records were missing at the time of the Respondent's examination. The Respondent unsuccessfully attempted to locate the Patient's records during his examination of the patient.

    
    

14. Upon examination, the Respondent determined that the Patient's blood pressure was within normal range and was stable. The Patient was alert and oriented. Vital signs were normal. The patient appeared to be in stable condition.

15. While in the emergency room, the Patient had a bowel movement which tested positive for the presence of blood. A nasogastric tube exiting from the Patient indicated "coffee grounds" material. These factors are indicative of a gastrointestinal problem.

    
    

16. The presence of blood in the intestinal tract and abdominal pain is indicative of a gastrointestinal disorder.

    
    

17. The evidence fails to establish that the patient presented an emergency condition at the time of the Respondent's examination.

    
    

18. Back pain is a symptom of an expanding abdominal aortic aneurysm. An expanding aneurysm presses against nerves and muscle in the back and sides of a patient. In this case, the aneurysm was of considerable size; nonetheless, the evidence fails to establish that the Patient informed the Respondent of severe back pain.

    
    

19. Severe continuing abdominal pain may be a symptom of a ruptured abdominal aortic aneurysm. The evidence fails to establish that the Patient informed the Respondent of severe continuing abdominal pain.

    
    

20. There was no palpable pulsatile mass in the Patient's abdomen which would have been indicative of an aneurysm.

    
    

21. There was no "bruit" sound emanating from the patient's abdomen. Such sounds are indicative of an aneurysm.

    
    

22. There was no asymmetry of pulses in the Patient's legs which would have been indicative of the aneurysm.

    
    

23. Hypotension, such as may result in fainting, can be indicative of an aneurysm. The patient was hypotensive when he arrived at the emergency room; however, treatment with intravenous fluids brought the Patient's pressure back to a normal range within a few minutes, indicating that internal bleeding was not significant.

    
    

24. Based on the symptoms described by the patient and on review of the patient's condition, the Respondent's tentative diagnosis was upper gastrointestinal bleeding, likely peptic ulcer disease with bleeding secondary to chronic aspirin usage and colonic polyps. There was also a suggestion of acute diverticulitis with associated bleeding.

    
    

25. The Respondent ordered a series of abdominal x-rays be taken. The Respondent ordered appropriate diagnostic studies based on his tentative diagnosis. The tests were scheduled for the morning. The Respondent also requested a surgical consultation, which was also scheduled for the morning.

    
    

26. Based on the examination and discussion with Dr. Siano, the Respondent admitted the Patient to a regular floor for further observation.

    
    

27. At the time the Patient was admitted, the Respondent had not reviewed the results of the abdominal x-rays. The Respondent did not review the x-rays prior to leaving the hospital that night.

    
    

28. The evidence is insufficient to establish that the Respondent's failure to review the x-rays prior to admission or prior to leaving the hospital for the night violated the acceptable standard of care.

29. Based on the patient's condition as expressed to the Respondent and on the results of the examination, the evidence fails to establish that the Respondent should have diagnosed the situation as an aneurysm.

    
    

30. The mere existence of an aneurysm is not a surgical emergency. Whether to surgically treat an aneurysm depends on a number of other factors.

    
    

31. A ruptured aneurysm is an emergency life threatening condition. Time is critical when responding to a ruptured aneurysm.

    
    

32. The evidence is insufficient to establish that the Respondent knew or should have known that the Patient was suffering from a ruptured aneurysm.

    
    

33. In the morning of February 10, 1992, a general surgical consultation was done by Frederick Reddy, M.D.

    
    

34. Dr. Reddy examined the patient and reviewed the abdominal x-rays which had been taken on the Respondent's orders.

    
    

35. According to Dr. Reddy, at the time of his exam the patient complained of intermittent abdominal pain, and said that he had a history of back pain, but did not complain of back pain at that time.

    
    

36. Dr. Reddy's review of the x-rays indicated the presence of calcification. While calcification is indicative of an possible aneurysm, the evidence fails to establish that the Patient's aneurysm is clearly indicated by the x-rays.

    
    

37. Dr. Reddy saw no indication of rupture, but referred the case to a radiologist and ordered a CT scan on the radiologist's recommendation. The CT scan indicated that an aneurysm had ruptured.

    
    

38. The Patient was taken to surgery where G. K. James, M.D. repaired the ruptured aneurysm and performed an aortobifemoral bypass graft. The Patient's condition deteriorated and he expired on February 10, 1992.

    
    

39. The evidence fails to establish that the outcome of the case would have been different had the Respondent diagnosed the problem as a ruptured abdominal aortic aneurysm or had the surgical procedure been performed at an earlier time after the Patient's arrival at the hospital emergency room.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

41. The Petitioner has responsibility for disciplinary action taken against licensed physicians. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Amended Administrative Complaint by clear and convincing evidence. Section 458.331(3), Florida Statutes.

    
    

42. In relevant part, Section 458.331(1), Florida Statutes, provides as follows:

    The following acts shall constitute grounds for which the disciplinary actions 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 and 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, "repeated malpractice" includes but is not limited to, three or more claims for medical malpractice within the

    previous 5-year period resulting in indemnities being paid in excess of $10,000 each to the claimant in a judgement or settlement and

    which incidents involve negligent conduct by the physician. 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 so 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.

    
    

43. The Administrative Complaint charges the Respondent with violation of Section 458.331(1)(t), Florida Statutes, by failing to appropriately diagnose the Patient's ruptured abdominal aortic aneurysm, by failing to review the x- rays which could have led to a diagnosis of the Patient's ruptured abdominal aortic aneurysm, and by failing to obtain an emergency surgical consultation in order to treat the Patient's ruptured abdominal aortic aneurysm.

    
    

44. In this case, the evidence that the Respondent has violated the acceptable standard of care is not clear and convincing.

    
    

45. The greater weight of the evidence establishes that the Patient's symptoms, based on the Respondent's interview and examination of the Patient, suggested a problem in the gastrointestinal tract. Information suggesting diagnosis of an abdominal aortic aneurysm, including emergency room records, were not available to the Respondent. The evidence is insufficient to establish that the Respondent's failure to diagnose the aneurysm at the time of the examination is a violation of the acceptable standard of care.

    
    

46. Under the circumstances of the case and the medical complaint presented to the Respondent, the failure to immediately review abdominal x-rays is not clear and convincing evidence of a violation of an acceptable standard of care. Likewise, the clear and convincing evidence is insufficient to establish that the failure to obtain an emergency surgical consultation is a violation of the acceptable standard of care.

RECOMMENDATION

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

That the Agency for Health Care Administration enter a Final Order dismissing the Administrative Complaint filed in this case.

DONE and ENTERED this 27th day of February, 1996, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM, Hearing Officer Division of Administrative Hearing

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1981

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

Petitioner's Proposed Findings of Fact.

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1. Rejected, not supported by cited evidence. Petitioner's exhibit Number

1 identifies the Respondent's address as set forth herein.

1. Rejected. The greater weight of evidence fails to establish that the x-rays revealed the presence of a ruptured aneurysm. The ruptured aneurysm was diagnosed after a CT scan and review by a radiologist.

2. Rejected, subordinate. While the statement that the cited physician always reads his ordered x-rays is correct, the evidence fails to establish that failure to do so is a violation of the acceptable standard of care.

3. Rejected. The cited evidence does not establish that the x-ray "very clearly" suggests the aneurysm.

1. Rejected. The greater weight of the evidence fails to establish that the Patient described pain indicative of an aneurysm to the Respondent.

2. Rejected. No evidence that the Respondent was aware of the statement made by the Patient.

1. Rejected. The greater weight of the evidence fails to establish that the Patient described pain indicative of an aneurysm to the Respondent.

2. Rejected. The greater weight of the evidence fails to establish that the Patient's condition as determined by the Respondent required an immediate consultation.

3. Rejected. The greater weight of the evidence fails to establish that the Patient's condition as determined by the Respondent indicated a course of treatment other than as set by the Respondent.

4. Rejected, subordinate.

5. Rejected. Not supported by the greater weight of credible and persuasive evidence.

Respondent's Proposed Findings of Fact.

The Respondent's proposed findings of fact are set forth in unnumbered paragraphs, many of which fail to contain citation to the record as required by Rule 60Q-2.031(3), Florida Administrative Code. Proposed findings which cite to the record are accepted as modified and incorporated in the Recommended Order, or are otherwise rejected as subordinate or as recitation of testimony.

COPIES FURNISHED:

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman General Counsel

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Steve Rothenburg Senior Attorney

Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210

Tampa, Florida 33619

Clifford L. Somers, Esquire

3242 Henderson Boulevard, Suite 301

Tampa, Florida 33609

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 95-001981

Orders for Case No: 95-001981