STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1896

)

BRIAN HARDCASTLE, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Administrative Law Judge, on July 15, 1996, in Gainesville, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Joseph S. Garwood, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Brian Hardcastle, M.D., pro se

6604 South West 35th Way Gainesville, Florida 32608

STATEMENT OF THE ISSUE

The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine in the State of Florida, for committing the violations alleged in an Administrative Complaint entered March 26, 1996.

PRELIMINARY STATEMENT

On March 26, 1996, an Administrative Complaint was entered against Respondent, Brian Hardcastle, M.D., alleging violations of Sections 458.331(1)(m) and (t), Florida Statutes. Dr. Hardcastle disputed the facts alleged in the Administrative Complaint and requested a formal administrative hearing.

Respondent's request for hearing was filed with the Division of Administrative Hearings by letter dated April 19, 1996. The matter was designated case number 96-1896 and was assigned to the undersigned.

At the formal hearing, Petitioner presented the testimony of Kim Ingram.

Petitioner also presented the testimony of Cora Stokes (Petitioner's exhibit 4), Juanita F. Navarro (Petitioner's exhibit 5), D. C. (Petitioner's exhibit 6), and

William Darby Glenn, III, M.D. (Petitioner's exhibit 7), by deposition. Petitioner offered 8 exhibits. All were accepted into evidence.

Respondent testified on his own behalf. Respondent offered exhibits 1-5, 7-14, 17, and 21-56 (exhibit 36 was not provided by Respondent). All of the exhibits except 1-5 have been determined to not be relevant to this proceeding. All of the exhibits except 1-5, 10-14 and 21-24 are also hearsay.

A copy of the transcript of the final hearing was filed October 29, 1996.

A proposed recommended order was filed by Petitioner. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, the Agency for Health Care Administration, is an agency of the State of Florida charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, and Chapters 455 and 458, Florida Statutes.

   
   

2. Respondent, Brian Hardcastle, M.D., is a licensed physician in the State of Florida. Dr. Hardcastle was licensed by the State of Florida at all times relevant to this proceeding.

   
   

3. Dr. Hardcastle was issued license number ME 0015980.

   
   

4. On or about August 27, 1991, D.C. presented to Dr. Hardcastle with complaints of headaches.

   
   

5. D.C. is a female. In August of 1991, D.C. was twenty years of age and was taking birth control pills.

   
   

6. Dr. Hardcastle diagnosed D.C. as suffering from rhinitis, with a secondary diagnosis of a deviated nose and septum. Rhinitis is an inflammation of the mucous membrane. There are two major categories of rhinitis: (a) allergic rhinitis; and (b) non-allergic or vasomotor rhinitis.

   
   

7. Dr. Hardcastle followed a course of treatment that first ruled out allergic rhinitis.

   
   

8. Dr. Hardcastle failed to adequately assess D.C.'s complaint when he failed to take into account the fact that D.C. was taking birth control pills. Dr. Hardcastle failed to consider the possibility that D.C. was suffering from vasomotor rhinitis as a result of taking birth control pills.

   
   

9. Dr. Hardcastle concluded that surgery was necessary. A second opinion from a Dr. Walker also recommended surgery. Dr. Walker only recommended that a septoplasty be performed.

   
   

10. Septoplasty is a procedure whereby a deviation, thickening or abnormality of the septum, the partition in the middle of the nose, is corrected surgically.

    
    

11. Dr. Hardcastle recommended that D.C. undergo a septorhinoplasty: septoplasty and rhinoplasty.

    
    

12. Rhinoplasty is cosmetic and involves some reduction, thinning, or narrowing of the outer nose.

13. A separate form describing each surgical procedure was provided to

    D.C. (see Respondent's exhibits 2 and 3), and a film (not offered into evidence) was provided to D.C. by Dr. Hardcastle. The evidence failed to prove that the description of the types of procedures to be performed on D.C. were not adequate or that D.C. was not adequately informed on the possible results of the rhinoplasty procedure. The evidence also failed to prove that Dr. Hardcastle failed to keep adequate medical records of his explanation of the procedure to D.C.

    
    

14. The surgery recommended by Dr. Hardcastle was performed on D.C. by Dr. Hardcastle on December 19, 1991.

    
    

15. During the surgery Dr. Hardcastle removed approximately 1 inch x 1/2 inch of cartilage. Dr. Hardcastle also performed an osteotomies or the separation of the nasal bone, which according to Dr. Hardcastle's notes, was to correct a minor tilting of the nose to one side.

    
    

16. The procedure performed by Dr. Hardcastle was poorly planned, and did little, if anything, to address the problems for which D.C. had first presented to Dr. Hardcastle.

    
    

17. Following surgery, D.C. experienced difficulty breathing. She returned to Dr. Hardcastle from December of 1991 until May of 1992 in an attempt to get the problem corrected. Dr. Hardcastle addressed D.C.'s problem breathing by prescribing antihistamines and suggesting that the problem was allergies, even though Dr. Hardcastle had already concluded that D.C. was not suffering from any significant allergies.

    
    

18. A reasonably prudent physician should have recognized that the procedure Dr. Hardcastle had performed on D.C. had not been effective and that she was suffering from a septum that was more deviated, or that had redeviated, or was obstructed. Dr. Hardcastle failed to discover this problem.

    
    

19. D.C. ultimately presented to an allergist who determined that her septum was deviated or obstructed.

    
    

20. It was subsequently determined that a bone spur on D.C.'s septum had not been removed by Dr. Hardcastle. The bone spur was removed during a second operation performed by another physician, Dr. Groff, in December of 1992.

    
    

21. Based upon the foregoing, it is concluded that Dr. Hardcastle failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances in that he failed to consider the possibility that

    D.C. was suffering from vasomotor rhinitis as a result of taking birth control pills, his treatment of D.C. was poorly planned, and did little, if anything, to address the problems for which D.C. had first presented to him, and he failed to provide adequate postoperative treatment and care.

    
    

22. It is also concluded that Dr. Hardcastle failed to keep adequate medical records in that he failed to note that D.C. was taking birth control pills.

    
    

23. Dr. Hardcastle has one prior disciplinary action. On August 8, 1992, Dr. Hardcastle received a reprimand, was required to pay an administrative fine and he was prohibited from practicing otolaryngological surgery. See the Final Order in DRP Case Nos. 90-2824 and 90-4978.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

24. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Sections 120.57 and 455.225, Florida Statutes.

    
    

    1. Burden of Proof.

       
       

25. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); and Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In this case, Petitioner is asserting the affirmative and, therefore, had the burden of proof.

    
    

26. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). Petitioner was, therefore, required to prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987).

    
    

    1. The Charges Against Dr. Hardcastle.

       
       

27. Section 458.331, Florida Statutes, provides that the following acts, among others, will constitute grounds for which disciplinary action may be taken against a physician's license:

    
    

    . . . .

    (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

    . . . .

    (t) . . . the failure to practice medicine with that level of care, skill, and treat- ment which is recognized by a reasonably prudent similar physician as being accept- able under similar conditions and circum- stances. . . .

    
    

28. It is concluded that Petitioner proved by clear and convincing evidence that Dr. Hardcastle failed to keep adequate medical records in that he failed to note that D.C. was taking birth control pills. Dr. Hardcastle has, therefore, committed the prohibited act defined in Section 458.331(1)(m), Florida Statutes.

    
    

29. It is also concluded that Petitioner proved by clear and convincing evidence that Dr. Hardcastle failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances in that he failed to consider the possibility that D.C. was suffering from vasomotor rhinitis as a

    result of taking birth control pills, his treatment of D.C. was poorly planned, and did little, if anything, to address the problems for which D.C. had first presented to him, and he failed to provide adequate postoperative treatment and care. Dr. Hardcastle has, therefore, committed the prohibited act defined in Section 458.331(1)(t), Florida Statutes.

    
    

    1. Penalty.

    
    

30. Section 458.331(2), Florida Statutes, authorizes the Board of Medicine to impose one or more specified penalties if it is found that a physician is guilty of any of the violations described in Section 458.331(1), Florida Statutes.

    
    

31. Rule 59R-8.001, Florida Administrative Code, sets out guidelines for the imposition of penalties pursuant to Section 458.331(2), Florida Statutes.

    
    

32. In this case, Petitioner has requested that Dr. Hardcastle receive a reprimand, be required to pay a $5,000.00 administrative fine, be placed on probation for a period of two years and that a permanent restriction on his license prohibiting him from performing surgery be imposed. These penalties are consistent with the guidelines provided in Rule 59R-8.001, Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Board of Medicine enter a Final Order finding that

Respondent, Brian Hardcastle, M.D., committed acts prohibited by Sections

458.331(1)(m) and (t), Florida Statutes. It is further

RECOMMENDED that the Board of Medicine impose the following penalties on Dr. Hardcastle: (1) an administrative fine in the amount of $5,000.00; (2) a reprimand; (3) probation for a period of two years; and (4) a permanent restriction on Dr. Hardcastle's license prohibiting him from performing surgery.

DONE and ENTERED this 30th day of October, 1996, in Tallahassee, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1996.

COPIES FURNISHED:

Albert Peacock, Esquire Joseph S. Garwood, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Brian Hardcastle, M.D. 6604 Southwest 35th Way

Gainesville, Florida 32608

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

Jerome W. Hoffman, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

Sam Power, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001896

Orders for Case No: 96-001896