STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3925

) ROLANDO ROBERTO SANCHEZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, William F. Quattlebaum, held a formal hearing in this case on September 12-14, 1995, in Tampa, Florida.

APPEARANCES

For Petitioner: Steven Rothenberg, Esquire

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

Tampa, Florida 33619

For Respondent: Michael K. Blazicek, Esquire

STEPHENS, LYNN, KLEIN & McNICHOLAS, P.A.

4350 West Cypress Street, Suite 700

Tampa, Florida 33607 STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On June 14, 1995, by Emergency Order of Suspension, the Petitioner suspended the Respondent's license to practice medicine in Florida. An Amended Administrative Complaint was filed by the Petitioner on August 8, 1995. The Respondent requested a formal administrative hearing to address the allegations of the suspension and complaint. The request was forwarded to the Division of Administrative Hearings. The parties stipulated to the dates for hearing.

Essentially, the Petitioner alleges that in February, 1995, the Respondent amputated the incorrect limb from Patient number 1, and that in July, 1995, the Petitioner amputated a toe without the consent of Patient number 2.

At the hearing, Petitioner presented the testimony of sixteen witnesses and had exhibits numbered 1-11 admitted into evidence. The Respondent offered the testimony of fifteen witnesses, testified on his own behalf, and had exhibits

numbered 1-14 and 16 admitted into evidence. The prehearing stipulation filed by the parties was admitted as a Hearing Officer's exhibit.

The hearing transcript was filed on October 2, 1995. 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.

The proffered testimony of a Respondent's witness taken outside the presence of the Hearing Officer (after an objection to the testimony on the grounds of relevance was sustained) was filed as Volume IIA of the hearing transcript. The Hearing Officer excused himself from the room as a courtesy to the Respondent's witness, who had traveled from outside the state, so that the proffered testimony could be recorded. The testimony is not part of the record established at hearing and was not reviewed or considered by the Hearing Officer in the preparation of this Recommended Order. The testimony, identified as Volume IIA, has been sealed and is forwarded with 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, the Respondent has been a physician in the state, holding Florida license number ME0031630.

   
   

3. The Respondent is a well-trained vascular surgeon. During his residency, he served as chief resident at New York University. From 1982 to 1986, he taught surgery and was director of the hyperbaric chamber program at Einstein College of Medicine in New York.

   
   

4. The Respondent moved to Tampa in 1988 and has worked as a general and vascular surgeon since his move.

   
   

5. The Respondent is board certified in general surgery and has been recertified in his specialty. He has an excellent reputation as a surgeon.

   
   

   W. K., Patient number 1.

   
   

6. At all times material to this case, Patient number 1 was a 51 year old male with a history of severe peripheral vascular disease including peripheral neuropathy and nephropathy, hypertension, coronary artery disease, severe atherosclerosis, insulin dependent diabetes, and bilateral leg swelling.

   
   

7. On February 2, 1995, Patient number 1 was examined at University Community Hospital in Tampa, Florida. The examination revealed that no pulse was present at the popliteal level of either foot. Early gangrenous changes were present at the patient's right foot. Both feet were cold to the touch.

   
   

8. Based on the February 2 examination, Patient number 1 was diagnosed with congestive heart failure secondary to ischemic heart disease, chronic renal insufficiency secondary to diabetic neuropathy, anemia, hypertension, peripheral vascular disease with early gangrenous changes to the right foot, and diabetic peripheral bilateral neuropathy in both extremities.

   
   

9. On February 10, 1995, Patient number 1 was evaluated by the Respondent. Based on his review of the patient's arterial vascular studies, the Respondent recommended that the patient undergo "jump" bypass surgery.

10. The patient had previously undergone bypass surgery and declined to do so again, electing instead to receive treatment by medical therapy.

    
    

11. The medical therapy was unsuccessful. Patient number 1's right leg remained swollen and painful. The pain was persistent and severe, and interfered with his mobility.

    
    

12. The Respondent was called for another consultation. On February 17, 1995, Patient number 1 presented to the Respondent for evaluation of the continuing pain in the lower right extremity. At that time, the patient and the Respondent discussed surgical amputation of the affected right extremity. The patient decided to undergo the amputation.

    
    

13. Patient number 1 signed a consent for a right leg below knee, and possibly above knee, amputation.

    
    

14. On any given day, multiple surgical procedures are performed in a hospital's surgical facilities. At Tampa Community Hospital, surgeries are scheduled by a clerk who enters the patient's information into the facility's records. The records are maintained on computers.

    
    

15. The surgeries scheduled to be performed in the facility each day are identified on a printed surgical schedule which is generated from the computer records created by the clerk.

    
    

16. For each surgery scheduled during the day, the surgical schedule identifies the assigned operating room, the surgical procedure, and the names of the patient, surgeon, and anesthesiologist.

    
    

17. At University Community Hospital (UCH), the operating rooms are configured in a "U" shape. A control desk in the center of the "U" is staffed by an assistant nurse manager and a secretary.

    
    

18. A copy of the printed surgical schedule is located at the control desk. Information from the surgical schedule is written onto a "blackboard" located at the control desk.

    
    

19. The printed surgical schedule for February 20, 1995 incorrectly stated that Patient number 1 was to undergo a left below knee amputation.

    
    

20. The evidence fails to establish the cause for the original incorrect identification of the procedure.

    
    

21. At approximately 3:30 a.m. on February 19, 1995, Annette Beede, a pool nurse engaged in stocking and cleaning activities at UCH, received a telephone call from an unidentified person Ms. Beede identified as a floor nurse from the floor where Patient number 1 was housed.

    
    

22. A pool nurse is one called in to fill a need for staff beyond the normal staffing levels of a hospital.

    
    

23. The caller informed Ms. Beede that the surgery was incorrectly identified on the schedule. The caller told Ms. Beede that Patient number 1 was to undergo a right leg amputation.

24. According to proper hospital procedure, any change to a surgical schedule must be submitted by the surgeon or his office.

    
    

25. There is no evidence that the Respondent or his office was aware of or attempted to correct the erroneous surgical schedule.

    
    

26. Ms. Beede corrected the copy of the surgical schedule she had and initialed her correction.

    
    

27. Ms. Beede's corrected copy remained on a clipboard which was given to the nurse who relieved her from duty at about 11:00 a.m. on February 19, 1995.

    
    

28. Ms. Beede did not verbally discuss the change with the relief nurse.

    
    

29. There is no evidence as to why Ms. Beede was the nurse to whom the call was directed.

    
    

30. Proper procedure for the change would be that the amended surgical schedule would remain on the clipboard at the control desk until it was taken into the operating room by the circulating nurse.

    
    

31. At Tampa Community Hospital, multiple copies of surgical schedules were apparently made. Some circulating nurses had their own copies of surgical schedules. Copies of surgical schedules were also sometimes taped to walls in operating rooms or placed on operating tables.

    
    

32. A separate and uncorrected copy of the February 20 surgical schedule was placed in the operating room where Patient number 1's procedure would be performed. The schedule placed in the room stated that Patient number 1's left leg was to be amputated.

    
    

33. The blackboard at the control desk indicated that the patient's left leg was to be amputated.

    
    

34. On February 20, 1995 at about the time Patient number 1 was being taken to the operating suite area, the Respondent was "making rounds" at the hospital. The Respondent was paged and told that Patient number 1 was being brought to the operating room.

    
    

35. After hearing that the patient was on his way to the surgical area, the Respondent proceeded towards the lounge where surgeons generally wait to be called into the operating rooms.

    
    

36. Patient number 1 was wheeled to an area just outside the operating room, where he was met by Willie Mae Jones, a circulating nurse.

    
    

37. A circulating nurse is responsible for assuring that the surgical process operates smoothly. She is responsible for identifying the correct patient for surgery and for talking to the patient prior to surgery to ascertain his condition.

    
    

38. Ms. Jones spoke to the patient and found him to be alert. She discussed the procedure. He identified his right leg as the correct amputation site. Ms. Jones noted the information provided by the patient in his hospital records.

39. As Ms. Jones talked to the patient, the Respondent passed nearby, waived to the patient, and entered the lounge area.

    
    

40. On February 20, 1995, the Respondent did not discuss the procedure with the patient prior to the surgery. The effective standard of care did not require the Respondent to speak to the patient at that time.

    
    

41. Prior to the surgery, Ms. Jones was responsible for "prepping" the appropriate area for surgery. In this case, prepping included cleaning the leg with an antiseptic solution.

    
    

42. A leg holder was used to position and stabilize the leg prior to cleaning.

    
    

43. The patient's left leg was edemous and ulcerated.

    
    

44. At Ms. Jones' direction, her assistant placed the patient's left leg in the holder.

    
    

45. In preparing a patient for an amputation, the appearance of an extremity, without additional review of records, is not an appropriate indicator of whether it is the correct extremity to be amputated.

    
    

46. After the leg was secured, it was removed from the leg holder at the direction of the nurse anesthetist in order to permit the spinal anesthesia to take effect.

    
    

47. After the patient was anesthetized, the anesthesiologist replaced the left leg into the holder.

    
    

48. Ms. Jones prepped Patient number 1's left leg.

    
    

49. The rest of the patient's body, including his right leg, was draped with a sheet or blanket.

    
    

50. After the administration of anesthesia was complete and the patient was draped, the Respondent, having finished scrubbing, entered the room and the surgical procedure began.

    
    

51. Normally, operating room personnel work from 7:00 a.m. to 3:00 p.m. By the time the amputation of Patient number 1's leg began, it was 5:45 p.m.

    
    

52. The Respondent had reviewed the incorrect blackboard information and the incorrect written surgical schedule prior to the surgery.

    
    

53. The effective standard of care did not require that the Respondent review the patient's medical records or the executed consent form prior to the surgery. He did not review the documentation.

    
    

54. As the surgery began, the nurse anesthetist inquired as to the pre- operative diagnosis. The Respondent replied "ischemic left lower extremity." Ms. Jones recorded the Respondent's statement in the appropriate position on the patient's surgical record.

    
    

55. While the operation was in progress, Ms. Jones recorded the surgical procedure as a "left below knee amputation," based on the information provided by the Respondent to the surgical team during the procedure.

56. While the Respondent was amputating the patient's lower left leg, Ms. Jones began to review Patient number 1's medical records. She noticed that the patient's medical history and consent identified the correct amputation site as the patient's right leg.

    
    

57. Ms. Jones, who had been facing away from the operating area of the room, turned towards the area where the surgery was taking place. She looked under the draped blanket. She began to cry and the surgical team then discovered that the wrong leg was being amputated.

    
    

58. After a momentary pause, the amputation, having passed the stage at which it could have been reversed, was completed.

    
    

59. After the patient was sufficiently recovered from the surgery, the Respondent entered the recovery area and discussed the mistake with the patient.

    
    

60. The patient was subsequently transferred to Tampa General Hospital where his right leg was amputated.

    
    

61. Prior to it's amputation, the patient's left leg was also affected by poor circulation. There is evidence that the condition of the patient's left leg was as deteriorated as that of his right leg. He had previously been treated for left leg pain.

    
    

62. It is likely that at some future point, Patient number 1's left leg would have required additional treatment and possibly amputation.

    
    

63. Notwithstanding the condition of the left leg, at the time it was amputated, Patient number 1 relied on it for mobility.

    
    

64. There is no evidence that the Respondent and Patient number 1 discussed amputation of any portion of the patient's left leg.

    
    

65. The applicable standard of care requires that a surgeon verify that the appropriate site is prepared prior to surgery and that the correct surgical procedure is performed. On February 20, 1995, the Respondent failed to meet the standard of care by failing to verify that the appropriate site had been prepared for surgery and by amputating the incorrect extremity.

    
    

66. The applicable standard of care requires that a surgeon obtain the written consent of a patient prior to performing a surgical procedure. On February 20, 1995, the Respondent failed to meet the appropriate standard of care by performing a surgical procedure for which he did not have the written consent of the patient.

    
    

67. Although there is evidence that errors by persons other than the Respondent contributed to the amputation of the improper extremity, there is no credible evidence to establish that such errors excuse the Respondent's failure to meet the appropriate standard of care.

    
    

    M. S., Patient number 2.

    
    

68. At all times material to this case, Patient number 2 was a 69 year old female with a history of diabetes, end stage renal failure requiring hemodialysis, pericarditis, severe peripheral vascular disease, and osteomyelitis.

69. Osteomyelitis is an infection which results in the decay of bone mass and soft tissue.

    
    

70. In 1993, four toes of Patient number 2's left foot had been amputated due to infection and to osteomyelitis.

    
    

71. The infections were a result of her diabetes and poor vascularization to the affected tissues.

    
    

72. At all times, Patient number 2 was very concerned about keeping her limbs intact and was extremely resistant to amputation of her legs. The previous toe amputations were an attempt to maintain the integrity of her limb.

    
    

73. On April 11, 1995, the Respondent amputated the fifth toe from Patient number 2's right foot. She was suffering from inoperable vascular disease in her right leg. The toe was necrotic and infected.

    
    

74. The April 11th amputation was performed using typical amputation technique. An elliptical incision was made at the base of the toe, the bleeding was controlled, the bone was cut through above the metatarsal head, tendons were sliced and the toe was removed. Sutures were used to close the wound.

    
    

75. The toe removed during the April 11th amputation was sent as one piece to the hospital pathology department.

    
    

76. After the amputation of the fifth toe, the patient's infection continued.

    
    

77. On June 30, 1995, she was admitted to Town and Country Hospital in Tampa, Florida. At the time of her admission, she was suffering from spiking fever related to the infection in her right foot.

    
    

78. Upon examination, the Respondent determined that the site of the amputation was necrotic and infected. A foul smelling fluid drained from the wound. The foot was swollen.

    
    

79. An x-ray revealed abnormality in the area of the right fourth toe. There were erosions around the area of the toe indicating likely infection and osteomyelitis.

    
    

80. The Respondent performed a limited removal of necrotic tissue at the patient's bedside and ordered tests and medical treatment to confirm the condition.

    
    

81. The patient's physicians were concerned that the infection would become more pervasive and could cause increasing medical problems.

    
    

82. The Respondent discussed Patient number 2's condition with other physicians who were involved in her care. The possibility of a right below knee amputation was discussed with the physicians as was the removal of the remaining toes from her right foot. The Respondent believed that removal of her remaining toes was not appropriate because the right foot was not viable.

    
    

83. Patient number 2's primary care physician spoke with her about the need to resolve the continuing infection in her right foot and discussed below

    knee amputation of the leg. She remained very concerned about losing her leg and emphasized to her physician that she wanted to save the limb.

    
    

84. The patient's physician discussed with the Respondent a transmetatarsal amputation, involving removal of part of her right foot. However, given the vascular problems in her right leg, the Respondent determined that the procedure would be unlikely to heal adequately.

    
    

85. The Respondent discussed amputation with Patient number 2, who declined to have her leg amputated.

    
    

86. The Respondent then discussed debridement of the right foot with the patient.

    
    

87. Debridement is a procedure where necrotic tissue is surgically removed by a scalpel or scissors.

    
    

88. The debridement of tissue requires exercise of the surgeon's clinical judgement and discretion. Ideally, a surgeon removes necrotic material to the point where normal bleeding begins to occur.

    
    

89. In this case, the purpose of the debridement was to remove the necrotic tissue and attempt to restrain the infection.

    
    

90. On July 6, 1995, Patient number 2 executed her consent to a debridement of her right foot.

    
    

91. There is no credible evidence that the Respondent discussed with the patient the removal of the fourth toe on her foot during the debridement.

    
    

92. The debridement was scheduled for July 7, 1995, but was postponed when the patient developed pneumonia.

    
    

93. On July 10, 1995, the debridement was again discussed by the Respondent with the patient, who remained in emotional turmoil and was concerned about saving her foot and leg.

    
    

94. On July 10, 1995, the patient met with an infectious disease doctor who noted an increased white blood count (indicating an active infection) and a non-healing wound which displayed necrotic changes. The desirability of a transmetatarsal amputation was again discussed, because the physician believed antibiotics would be insufficient to control the infection. Again the patient declined the amputation.

    
    

95. The debridement was scheduled for July 11, 1995. On that day, a surgical nurse, Margaret Pratt, spoke to the patient about the procedure. The patient said the Respondent was to remove dead tissue from her foot.

    
    

96. Ms. Pratt saw that the toe appeared to be necrotic and marginally attached to the foot.

    
    

97. Based on her view of the toe, Ms. Pratt discussed with the Respondent whether she needed to obtain the patient's consent for removal of the toe. The Respondent said he was not going to amputate the toe.

    
    

98. Continuing to be concerned, Ms. Pratt spoke to her supervisor, Kathy Dzikowski, about the condition of the toe and the Respondent's intentions. Ms.

    Dzikowski contacted the Respondent to discuss his intentions. He continued to indicate that he planned only to debride the foot.

    
    

99. Another nurse, preparing for the procedure, asked the Respondent if he needed a large "Horsley" bone cutter. He replied that he did not need a large bone cutter.

    
    

100. On July 11, 1995, the debridement procedure was performed. Using a number 10 blade scalpel, the Respondent removed necrotic tissue from the bottom and then from around the "ball" of the patient's right foot. The Respondent also debrided the right side of the patient's right fourth toe.

     
     

101. The Respondent then prepared to debride the left side of the toe. Holding the blade in this right hand, and grasping the fourth toe with his left hand, the Respondent pulled the toe to the right to access the area between the third and fourth toe, in order to debride the left side of the fourth toe.

     
     

102. As he grasped the toe, the bone of the toe disconnected from the metatarsal joint and was connected only by tendon and necrotic tissue.

     
     

103. There is no evidence that the toe was in proper condition to be saved.

     
     

104. Using the scalpel, the Respondent cut the tendon and removed the toe.

     
     

105. After the toe was removed, the joint and bone were exposed from the wound. The Respondent took a small clipper called a "ronguer" and removed the top of the metatarsal joint.

     
     

106. The ronguer is part of the standard set of surgical instruments which is set out for use during debridement.

     
     

107. The removal of the bone was medically indicated, given the condition of the foot.

     
     

108. After the toe was removed, the toe was handed to Ms. Pratt, who was receiving the debrided tissue at a table facing away from the operating site. She inquired as to how to label the material. The Respondent told her to label it as "debridement of right foot." Because the toe was visibly a toe, he assumed that she was referring to the remaining tissue which had been removed.

     
     

109. Apparently assuming that the Respondent was attempting to conceal the removal of the toe, Ms. Pratt asked her supervisor how the tissue should be labeled, and was told to label it as "toe and debridement."

     
     

110. There is no credible evidence that the Respondent attempted to conceal the fact that a toe had been removed. The toe was clearly identifiable and visible in the debrided material. Everyone in attendance at the surgery was aware that the toe had been removed.

     
     

111. After the removal of the necrotic toe, the Respondent continued the debridement and completed the procedure.

     
     

112. Immediately following completion of the procedure, the Respondent dictated his operative report, which identified the procedure as "debridement of right foot and amputation of fourth toe."

113. After the patient recovered from the procedure, the Respondent discussed the procedure with her. He told her that her toe had fallen off (or words to that effect) during the debridement. He also discussed the manipulation, dislocation and subsequent removal of the toe.

     
     

114. It is reasonable for a physician to speak to a patient in non-medical terminology in order to provide information which can be easily understood by the patient.

     
     

115. The evidence fails to establish that the Respondent attempted to conceal the nature of the procedure from the patient.

     
     

116. All of the tissue removed from the patient, including the toe, was sent to the hospital pathology department for examination. There is no evidence that the Respondent attempted to obstruct or prevent the delivery of any debrided material to pathology.

     
     

117. Pathological review of the toe is consistent with debridement performed by sharp dissection; however, the toe joint reveals no sharp dissection other than at the metatarsal head, which was removed by clippers after the dislocation and removal of the digit.

     
     

118. A toe amputation generally results in a one-piece specimen as the toe is usually removed by cutting through the bone above the metatarsal joint. The specimen in this case was in two pieces, the piece that disconnected from the joint, and the joint section which was cut off by the Respondent after the dislocation and removal of the digit.

     
     

119. The technique used in the July 11, 1995 procedure was not standard for amputation. The Respondent removed the necrotic tissue from the toe. There is no reason to have debrided the toe had he planned to remove it entirely. The toe was not removed using bone cutters.

     
     

120. The evidence fails to establish that the Respondent intended to amputate the toe prior to beginning the debridement procedure on July 11, 1995.

     
     

121. The evidence establishes that due to the condition of the patient's foot, the Respondent should have known that the toe could become disconnected and should have obtained the patient's consent for removal of the toe, if and when the disconnection occurred.

     
     

122. It would be reasonable to consider, given the patient's osteomyelitis, that during the debridement, the toe bone could have fractured, or that the tissue, tendon, fascia and capsule of the toe could be eroded or weakened, resulting in dislocation or separation of the toe from the normal anatomic position.

     
     

123. According to an expert for the Respondent, a planned debridement resulting in an amputation of the toe after it disengages or dislocates is not unique, and in fact has occurred in his personal experience.

     
     

124. The Respondent did not discuss with the patient the possibility that the toe could disconnect and have to be removed during the procedure.

     
     

125. The standard of care for obtaining surgical consent requires that a surgeon discuss the risks and benefits of an operative procedure with the patient. In this case, although the Respondent discussed the risks and benefits

     of the surgery with the patient, he did not address the possibility that the necrotic toe could become disconnected and have to be removed.

     
     

126. The consent form executed by Patient number 2 does not authorize the Respondent to amputate the toe if it detached from the foot during the debridement.

     
     

127. Although the consent form authorized by the patient permitted the Respondent to act beyond the boundaries in the event of "unusual circumstances," the evidence fails to establish that the disconnection of a necrotic toe during the debridement of this patient's right foot can reasonably be identified as an unusual circumstance.

     
     

128. The Petitioner asserts that at the time the toe became disconnected, the surgical procedure should have been halted, the patient allowed to recover and that the Respondent should have obtained the patient's consent to remove the detached necrotic toe. Given the circumstances of this case, the Petitioner's assertion is unreasonable.

     
     

129. After the debridement, the condition of the patient's did not improve. It remained infected and necrotic. Eventually, a right below knee amputation was performed on Patient number 2.

     
     

     CONCLUSIONS OF LAW

     
     

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

     
     

131. 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.

     
     

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

     
     

     The following acts shall constitute grounds for which the disciplinary actions in sub- section (2) may be taken:

     * * *

     (k) Making deceptive, untrue, or fraudulent representations in and related to the practice of medicine or employing a trick or scheme in the practice of medicine.

     * * *

     (p) Performing professional services which have not been duly authorized by the patient or client, or his legal representative, except as provided

     in s. 743.064, s. 766.103, or s. 768.13.

     * * *

     (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 circum-

     stances. 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.

     
     

133. Count One of the complaint charges the Respondent with violation of Section 458.331(1)(t), Florida Statutes, by failing to verify that Patient number 1's correct leg had been draped and by inappropriately performing a left leg amputation.

     
     

134. Count Two of the complaint charges the Respondent with violation of Section 458.331(1)(p), Florida Statutes, by performing a surgical procedure on Patient number 1 for which the patient's consent had not been obtained.

     
     

135. Count Three of the complaint charges the Respondent with violation of Section 458.331(1)(t), Florida Statutes, by failing to practice medicine within an acceptable level of care in inappropriately performing a surgical procedure which was not authorized by the Patient number 2. Similarly, Count Four of the complaint charges the Respondent with violation of Section 458.331(1)(p), Florida Statutes, by performing a surgical procedure on Patient number 2 for which the patient's consent had not been obtained.

     
     

136. As to Counts One, Two and Four, the Petitioner has met the burden of establishing by clear and convincing evidence that the allegations of the Administrative Complaint are correct.

     
     

137. As to Counts One and Two, the evidence clearly establishes that on February 20, 1995, the Respondent amputated the wrong limb from W. K. without his consent, and in doing so violated Sections 458.331(1)(p) and (t), Florida Statutes.

     
     

138. As to Count Four, the evidence clearly establishes that on July 11, 1195, the Respondent amputated M. S.'s right fourth toe without her consent, when the necrotic toe dislocated during debridement of the foot. The evidence establishes that such dislocation should have been reasonably anticipated, should have been discussed with the patient, and that the patient's consent should have been obtained. The circumstances of this case constitute a violation of Section 458.331(1)(p), Florida Statutes.

     
     

139. The allegations of Count Three are specifically addressed in Count Four. Count Three should be dismissed.

140. Count Five of the complaint charges the Respondent with violation of Section 458.331(1)(k), Florida Statutes, by directing a surgical nurse to label tissue as debridement, when the material included an amputated toe. As to Count Five, the Petitioner has not met the burden. The evidence related to Count Five fails to clearly and convincingly establish that the Respondent attempted to make a deceptive, untrue, or fraudulent representation when he directed the recording nurse to identify the tissue specimens she had possession of as debridement. The Respondent testified that he believed she was referring to tissue other than the clearly visible toe at the time she asked how she should label the material. The Respondent's testimony as to this point is credited.

     
     

141. Rule 59R-8.001, Florida Administrative Code, sets forth the disciplinary guidelines of the Board of Medicine applicable to violations of Section 458.331, Florida Statutes, and in relevant part, provides as follows:

     
     

     1. Purpose. Pursuant to Section 2, Chapter 86-90, Laws of Florida, the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 458, F. S. The

        purpose of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The range of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of violations may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are to punish the appli- cants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations. (emphasis added)

        
        

142. Penalty guidelines for violation of disciplinary statutes are set forth at Rule 59R-8.001(2), Florida Administrative Code. The penalty for each violation of Section 458.331(1)(p) ranges from a reprimand to denial or two years suspension, and an administrative fine from $250 to $5,000. The penalty for each violation of Section 458.331(1)(t) ranges from two years probation to revocation or denial, and an administrative fine from $250 to $5,000.

     
     

143. As stated in Rule 59R-8.001(1), Florida Administrative Code, the purposes of the imposition of discipline are to punish the licensees for violations and to deter them from future violations, and to deter other applicants or licensees from violations. One could hope, given the personal impact of this case on the Respondent and on his patients, that the Respondent would be deterred from future violations. Yet, discipline also serves to punish the offender and to deter other practitioners from committing similar offenses. Accordingly, the discipline must be meaningful within the context of this case. Considering the nature of these offenses, discipline can include revocation of the Respondent's licensure.

144. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the disciplinary guidelines. The aggravating and mitigating factors which the Board shall consider are stated in Rule 59R-8.001(3), Florida Administrative Code, as follows:

1. Exposure of patient or public to injury or potential injury, physical or otherwise:

   none, slight, severe, or death;

2. Legal status at the time of the offense: no restraints, or legal constraints;

3. The number of counts or separate offenses established;

4. The number of times the same offense or offenses have previously been committed by the licensee or applicant;

5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

6. Pecuniary benefit or self-gain inuring to the applicant or licensee;

7. Any other relevant mitigating factors.

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 determining that Rolando Roberto Sanchez has violated Sections 458.331(1)(p) and (t), Florida Statutes, and suspending his license for a period of two years from the date of the Emergency Order of Suspension, imposing a fine of $15,000 and placing the Respondent on probation for a period of five years from the date upon which the suspension expires. Further, during the period of probation, the Respondent shall not perform any surgical procedure without the direct supervision of a licensed physician who, prior to the commencement of the surgery, shall certify that the anatomical site which has been prepared for surgery is correct.

DONE and RECOMMENDED this 19th day of October, 1995, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 19th day of October, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3925

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact were inappropriately numbered and set forth in separate sections. For purposes of the following, the proposed findings have been re-numbered consecutively beginning from the section titled "FACTS," and are accepted as modified and incorporated in the Recommended Order except as follows:

20-21. Rejected, subordinate.

22. Rejected as to "good medical practice" of cited witness, irrelevant.

30. Rejected as to Ms. Pratt's expertise or knowledge which would establish that the toe "would come off" if the foot were touched, not supported by the greater weight of the evidence.

33-34. Rejected, not supported by the greater weight of credible and persuasive evidence. The implication is that the Respondent requested that the witness obtain a "Horsley" bone cutter to permit removal of the toe. The evidence fails to establish that a Horsley bone cutter was obtained by the witness, notwithstanding her assertion that the Respondent directed her to do so. The evidence fails to establish that the witness could clearly view the procedure. The witness did not see the toe being debrided prior to the toe's dislocation from the foot; however, the evidence establishes that the toe was debrided.

35. Rejected, cumulative.

1. Rejected, contrary to the greater weight of credible and persuasive evidence.

2. Rejected, irrelevant. There is no credible evidence that in postoperative notation, the Respondent attempted to conceal the surgical procedure performed on Patient number 2. The cited witness acknowledged that her recollection of the conversation with the Respondent was not an exact quoting of his remarks.

1. Rejected, immaterial. There is no credible evidence that the children were authorized to consent to any procedure on behalf of the patient.

2. Rejected, contrary to the greater weight of credible and persuasive evidence.

3. Rejected, recitation of testimony is not finding of fact.

4. Rejected, subordinate.

45. Rejected, recitation of testimony is not finding of fact. 46-47. Rejected, cumulative.

1. Rejected, recitation of testimony is not finding of fact.

2. Rejected, cumulative.

3. Rejected, recitation of testimony is not finding of fact.

4. Rejected, unnecessary.

52-53. Rejected, recitation of testimony is not finding of fact.

Respondent

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

8. Rejected, unnecessary. Goes to the credibility of his testimony which has been determined in, and is reflected by, the Findings of Fact set forth herein.

10-11. Rejected, subordinate.

22. Rejected, subordinate.

23-24. Rejected, irrelevant. The evidence fails to establish that such "reasonable reliance" relieves a surgeon of responsibility for performance of an improper procedure.

26. Rejected as to assertion that "ninety percent" of Florida surgeons "would have made the same mistake," not supported by credible evidence.

31-33. Rejected, subordinate.

1. Rejected. There is no evidence that on February 20, 1995, the Respondent performed any review of medical records or examined the patient whatsoever prior to beginning the surgery.

2. Rejected, unnecessary.

42. Rejected, not supported by the weight of credible and persuasive evidence.

43-48. Rejected, cumulative.

51. Rejected as to race of patient, immaterial.

63. Rejected, irrelevant.

66-70. Rejected, cumulative.

1. Rejected, subordinate.

2. Rejected, recitation of testimony is not finding of fact.

1. Rejected, subordinate.

2. Rejected, recitation of testimony is not finding of fact.

3. Rejected, irrelevant. There is no credible evidence as to Ms. Pratt's knowledge that the toe "might fall off" of the foot.

1. Rejected, recitation of testimony is not finding of fact.

2. Rejected, subordinate.

3. Rejected, recitation of testimony is not finding of fact. 105-107. Rejected, subordinate.

108-110. Rejected, unnecessary.

112. Rejected, contrary to the greater weight of credible and persuasive evidence.

1. Rejected, cumulative.

2. Rejected, contrary to the greater weight of credible and persuasive evidence.

120-121. Rejected, contrary to the greater weight of credible and persuasive evidence. There is no credible evidence that the patient was told that the toe could dislocate and require removal during the debridement, or that "debridement of a right foot can include removal of digits, including portions of the mid-foot."

122. Rejected, contrary to the greater weight of credible and persuasive evidence which establishes that the disarticulation was not unique or unpredictable.

125-127. Rejected, immaterial.

128-141. Rejected, unnecessary, irrelevant. These proposed findings are based on Respondent's Exhibit number 13, a collection of Final Orders issued by the Petitioner (or a predecessor agency) wherein various physicians were the subject of disciplinary action. None of the cited cases involved the incorrect and complete surgical amputation of an extremity, or involve the failure to reasonably anticipate the possible complications of a procedure and the failure to obtain consent from the patient to resolve the complication. The cited cases involve factual situations sufficiently distinguished from those at issue in this case.

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, FL 32399-0792

Steven Rothenberg, Esquire

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

Tampa, Florida 33619

Michael K. Blazicek, Esquire

STEPHENS, LYNN, KLEIN & McNICHOLAS, P.A.

4350 West Cypress Street, Suite 700

Tampa, Florida 33607

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 ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 95-003925

Orders for Case No: 95-003925