STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2205

) KENNETH DOUGLAS GLAESER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case on October 2, 1996, at Miami, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Monica L. Felder, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Marc P. Ganz, Esquire

McGrane and Nosich, P.A.

2801 Ponce de Leon Boulevard, Twelfth Floor Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the offenses set forth in the corrected administrative complaint, and, if so, what action should be taken.

PRELIMINARY STATEMENT

On February 19, 1996, the Agency for Health Care Administration, Board of Medicine (Petitioner) filed an administrative complaint against Kenneth Douglas Glaeser, M.D. (Respondent). By an election of rights sworn to on February 26, 1996, Respondent disputed the allegations of fact contained in the administrative complaint and requested a formal hearing. Subsequently, on March 7, 1996, Petitioner filed a two-count corrected administrative complaint alleging that Respondent violated: (1) Subsection 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances; and (2) Subsection 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of

treatment, including but not limited to, patient history, examination results, test results, records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations. By letter dated May 6, 1996, Respondent's counsel requested a formal hearing. On May 9, 1996, this matter was referred to the Division of Administrative Hearings.

At hearing, Petitioner presented the testimony of three witnesses and entered three exhibits into evidence. Subsequent to the hearing, Petitioner presented the deposition testimony of a witness, as a late-filed exhibit, which was entered into evidence. Respondent testified in his own behalf and entered five exhibits into evidence. The parties entered one joint exhibit into evidence.

A transcript of the hearing was ordered. The parties filed proposed findings of fact which have been considered in this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Kenneth Douglas Glaeser (Respondent) was a licensed physician in the State of Florida, having been issued license number ME 0058606.

   
   

2. Respondent's area of specialty is Emergency Medicine.

   
   

3. On or about May 30, 1993, at approximately 9:45 p.m., Patient L. H., a

   47 year old male, presented to the emergency room (ER) at Parkway Regional Medical Center (PRMC) in Miami, Florida complaining of chest pain.

   
   

4. Patient L. H. and his wife were visiting his mother in Miami. At first, Patient L. H. believed he had heartburn, but it would not go away. His mother convinced him to go to the hospital.

   
   

5. Patient L. H.'s wife and mother accompanied him to the hospital. His wife parked the vehicle while Patient L. H. and his mother entered the ER.

   
   

6. Patient L. H.'s wife completed paperwork for the ER while the ER staff attended to her husband. Patient L. H.'s mother was with him. After completing the paperwork, approximately 10 minutes later, Patient L. H.'s wife joined Patient L. H. and his mother in the examining room.

   
   

7. At the time, Respondent was the ER physician on duty at PRMC. Respondent was the only ER physician who attended to Patient L. H.

   
   

8. Respondent has no independent recollection of Patient L. H. or what happened during Patient L. H.'s visit to the ER at PRMC.

   
   

9. The first goal of an ER physician is to determine if the patient has a life-threatening condition, which, often times than not, involves excluding diagnoses. The second goal of an ER physician is to determine if the patient has a condition which can receive immediate treatment and to provide that immediate treatment whether the condition is life-threatening or not.

   
   

10. Respondent obtained Patient L. H.'s history which included the type of pain, description of the pain, location of the pain, associated symptomatology, time frame of the pain (including onset), and past history. Respondent recorded, among other things, that Patient L. H. had chest pressure which radiated bilaterally to his shoulders and a numb left shoulder; that the pain

    lasted for approximately 10-15 minutes, subsided, and re-occurred 30 minutes later; that Patient L. H. had no shortness of breath, diaphoresis (sweating), nausea or vomiting, or palpitations; and that Patient L. H. had no cardiac history.

    
    

11. Respondent's history of Patient L. H. was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances.

    
    

12. Respondent performed a physical examination on Patient L. H. The physical examination included taking vital signs and examination of the cardiovascular system, lungs, and pulses of the extremities.

    
    

13. Respondent's physical examination was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances.

    
    

14. Respondent had laboratory work performed on Patient L. H.

    
    

15. Respondent ordered SL (sublingual) nitroglycerine for Patient L. H. But, the nitroglycerine was not administered because Patient L. H. was not complaining of chest pains at the time.

    
    

16. The ordering of the nitroglycerine and not administering it until chest pain developed was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances.

    
    

17. Respondent ordered diagnostic tests to be performed on Patient L. H. The tests included an electrocardiogram (EKG), a chest x-ray, and cardiac enzymes.

    
    

18. Neither Patient L. H.'s wife nor his mother were present during the tests.

    
    

19. ER physicians are trained to read EKGs. Generally, a cardiologist is not immediately available to the ER for the reading of EKGs. An ER physician looks for an injury pattern in the EKG, which would evidence an acute cardiac event. Most times, a cardiologist will over-read the EKG a day or two after the EKG is performed on a patient.

    
    

20. Respondent's reading of Patient L. H.'s EKG did not show an injury pattern which would evidence an acute cardiac event. Respondent determined that Patient L. H.'s EKG was within normal limits. Even though an abnormality was demonstrated in the EKG, the abnormality could have been a false/positive reading.

    
    

21. Respondent's reading of the EKG was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances.

    
    

22. A cardiologist over-read Patient L. H.'s EKG after he left PMRC. The cardiologist found a "definite abnormality."

    
    

23. Respondent's reading of Patient L. H.'s chest x-ray indicated that it was within normal limits.

24. Respondent's reading of the chest x-ray was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances.

    
    

25. Respondent's interpretation of the cardiac enzymes tests (CPK and LDH) indicated that they were within normal limits. If a heart is damaged, often times the enzymes contained in the heart cells will be released, and the cardiac enzymes tests would detect the enzymes.

    
    

26. Respondent's interpretation of the cardiac enzymes tests was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances.

    
    

27. It is undisputed that based upon Patient L. H.'s history, the physical examination, the tests results, including diagnostic and laboratory results, a recommendation to Patient L. H. by Respondent for admission to PRMC was medically warranted. Admission would allow for monitoring and further evaluation. However, a patient has a right to refuse admission.

    
    

28. Respondent discussed his findings with the doctor who was listed as Patient L. H.'s primary physician on the ER record. The primary physician was the private physician, a cardiologist, of Patient L. H.'s mother. The primary physician authorized Respondent to contact the physician on-call.

    
    

29. Respondent discussed his findings and his concern with Patient L. H. Respondent recommended to Patient L. H. that he be admitted to PRMC. However, Patient L. H. did not wish to be admitted; he wanted to leave the hospital. Patient L. H. rejected Respondent's recommendation for admission to PRMC. 1/ Patient L. H.'s mother attempted to convince him to agree to admission and remain in the hospital, but he refused.

    
    

30. It is undisputed that if a patient refuses admission, the physician should advise the patient of the risks involved and recommend admission. In Patient L. H.'s circumstances, it was medically warranted that Respondent advise Patient L. H. that, if he was not admitted, he could suffer a heart attack and die and recommended admission to Patient L. H.

    
    

31. Taking the totality of the circumstances, an inference is drawn and a finding is made that Respondent advised Patient L. H. of the risks involved if he rejected admission and recommended to Patient L. H. that he be admitted.

    
    

32. Respondent did not record in the ER record that he advised Patient L.

    H. of the risks involved in rejecting admission and recommended admission. ER physicians are not medically required to spell-out in the medical record what risks are discussed with a patient and that the patient left against medical advice. It is sufficient that the ER physician explains the risks to the patient.

    
    

33. Respondent ordered a GI cocktail (Maalox, Donnatal, and viscous Lidocaine) for Patient L. H. 2/ The GI cocktail was not administered until approximately 12:15 a.m. on May 31, 1993. 3/

    
    

34. The ordering or not of the GI cocktail for or the time in which the GI cocktail was given to Patient L. H. has no effect on the standard of care that Respondent provided to Patient L. H.

35. Respondent diagnosed Patient L. H.'s condition as atypical chest pain. This diagnosis essentially indicates that a number of different things may have been causing Patient L. H. to experience chest pain.

    
    

36. Patient L. H. left PRMC on May 31, 1993, at approximately 12:20 a.m. against medial advice even though the ER record indicates that he was discharged. 4/ Before leaving PRMC, Patient L. H. was informed by Respondent to, among other things, follow-up with the primary physician and return to the ER if needed.

    
    

37. Neither Patient L. H. nor his wife completed any discharge papers or received discharge instructions.

    
    

38. It is not uncommon for a patient to be discharged from a hospital without completing discharge papers or receiving discharge instructions. However, hospitals attempt to prevent such occurrences.

    
    

39. When a patient leaves PRMC against medical advice, the patient is requested to complete certain documentation. That documentation was not completed in the case of Patient L. H. However, the absence of the documentation is not considered to evidence that Respondent failed to advise Patient L. H. of the risks involved in rejecting admission and to recommend admission.

    
    

40. On May 31, 1993, at approximately 8:45 a.m., Patient L. H. went into cardiac arrest at his mother's home. He was transported to the ER at PRMC by emergency vehicle, where he was pronounced dead.

    
    

41. On June 1, 1993, Respondent entered an addendum to the ER notes of May

    30 and 31, 1993. The addendum provided, among other things, that Patient L. H. was opposed to admission to PRMC and that, even when Respondent explained the risks to Patient L. H., he continued to oppose admission and wanted to leave. Furthermore, the addendum provided, among other things, that Respondent instructed Patient L. H. to return to the ER if the chest pain returns and to follow-up with the primary physician.

    
    

42. An addendum to ER notes by an ER physician is not unusual and is an accepted practice.

    
    

43. The Dade County Medical Examiner determined that Patient L. H.'s cause of death was occlusive coronary artery disease.

    
    

44. Respondent's medical records justified the course of treatment of Patient L. H.

    
    

45. Respondent practiced medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances.

    
    

46. Respondent is a defendant in a pending civil suit brought by Patient

    L. H.'s surviving spouse.

    
    

    CONCLUSIONS OF LAW

    
    

47. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

48. License revocation proceedings are penal in nature. Petitioner must establish by clear and convincing evidence the truthfulness of the allegations set forth in the corrected administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

49. Subsection 458.331(1), Florida Statutes, provides in pertinent part that acts for which disciplinary action may be taken include:

    
    

    (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.

    * * *

    1. [T]he 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. The board shall give great weight to the provisions of s. 766.102 when enforcing this paragraph....

50. Section 766.102, Florida Statutes, provides in pertinent part: (6)(a) In any action for damages involving

    a claim of negligence against a physician

    licensed under chapter 458 providing

    emergency medical services in a hospital emergency department, the court shall admit expert medical testimony only from physicians

    ... who have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department.

    (b) For purposes of this subsection:

    1. The term "emergency medical services" means those medical services required for the immediate diagnosis and treatment of medical conditions which, if not immediately diagnosed and treated, could lead to serious physical or mental disability or death.

    
    

51. Petitioner failed to demonstrate by clear and convincing evidence that Respondent violated Subsections 458.331(1)(m) and (t), Florida Statutes. The evidence shows that Respondent's medical records justify the course of treatment of Patient L. H. and that Respondent practiced medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar emergency room physician as being acceptable under similar conditions and circumstances.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine dismiss the corrected administrative

complaint.

DONE AND ENTERED in this 27th day of January 1997 in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of January 1997.

ENDNOTES

1/ Also, at some time prior to Respondent discussing his findings with Patient

L. H., the attending nurse informed Patient L. H. that he would probably be admitted. Patient L. H. expressed his refusal to be admitted. The attending nurse did not testify but signed two affidavits which were entered into evidence.

2/ The time at which the GI cocktail was ordered is unclear.

3/ The attending nurse, who was on the 11:00 p.m. shift on May 30, 1993, is deceased.

4/ Ibid. Also, this same nurse was the attending nurse on May 31, 1993, when Patient L. H. left the hospital against medical advice.

COPIES FURNISHED:

Monica L. Felder, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Marc P. Ganz, Esquire McGrane and Nosich, P.A. 2801 Ponce de Leon Boulevard Twelfth Floor

Coral Gables, Florida 33134

Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3, Suite 3431

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: 96-002205

Orders for Case No: 96-002205