STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 96-2703

)

RAUL ENRIQUE PORTELA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 28, 1997, at Fort Lauderdale, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Hugh R. Brown, Esquire

Agency for Health Care Administration Medical Section

Post Office Box 14229 Tallahassee, Florida 32317-4229

For Respondent: Marc P. Ganz, Esquire

Miles A. McGrane, III, Esquire McGrane & Nosich, P.A.

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

STATEMENT OF THE ISSUES

Whether Respondent, a physician, violated the provisions of Sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes, as

alleged in the administrative complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondent is an emergency room physician who, at the times pertinent to this proceeding, was practicing at Palm Springs General Hospital (Palm Springs), Hialeah, Florida. Petitioner filed an administrative complaint against Respondent that alleged certain facts pertaining to Respondent's treatment of a patient at the emergency room of Palm Springs on December 24, 1991. Based on the alleged facts, Petitioner charged in count one of the administrative complaint that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, and in count two that he violated the provisions of Section 458.331(1)(m), Florida Statutes. Respondent timely requested a formal hearing to challenge the allegations; the matter was referred to the Division of Administrative Hearings; and this proceeding followed.

At the formal hearing, the parties offered two joint exhibits, which were accepted into evidence. Petitioner presented the testimony of Anthony Scarcella, M.D., who was accepted as an expert in the field of emergency room medicine. Petitioner presented one additional composite exhibit, which was accepted into evidence. Respondent testified and presented the additional testimony of Richard Dellerson, M.D., who was accepted as an expert in the field of emergency room medicine.

Respondent presented three additional exhibits, each of which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was licensed as a physician in the State of Florida and held medical license number ME00597713.

2. Respondent graduated from medical school in the Dominican Republic in 1981. Subsequent to medical school, Respondent completed a year residency at St. Clare's Hospital and Memorial Center in New York City, which was affiliated with New York Medical College. Respondent completed a second year of surgical residency at University of Miami, Jackson Memorial Hospital. Respondent then completed one year of flexible residency and three years of internal medicine residency at Mercy Catholic Medical Center, which was affiliated with Thomas

   Jefferson University in Philadelphia, Pennsylvania. Respondent has practiced as an emergency medicine physician since 1988.

   Respondent has served as the medical director of the emergency department of Palm Springs General Hospital, Hialeah, Florida, since 1990. At the times pertinent to this proceeding, Respondent was not board certified in any specialty.

3. The administrative complaint centers on Respondent's treatment of patient R. A., a 48 year old male, at the Palm Springs emergency room on December 24, 1991.

   EMERGENCY ROOM TREATMENT ON DECEMBER 23, 1991

   
   

4. R. A. presented to the Palm Springs emergency room on December 23, 1991, at 3:50 p.m., via ambulance. He complained of severe epigastric pain over the past 24 hours that radiated to the right quadrant of his back. His blood pressure reading was 230 over 110. R. A. reported that he smoked a pack of cigarettes a day, did not drink alcohol, and had no allergies.

   R. A. also reported that he had not been vomiting.

   
   

5. On December 23, 1991, R. A. was treated by Dr. Wilfred

   
   

   P. Fernandez, an emergency room physician employed by Palm Springs. Dr. Fernandez took the patient's medical history and then proceeded with his physical examination. The examination of the head, ears, eyes, nose, and throat were within normal limits. The lungs were clear and the heart rate and rhythm were regular. The abdominal evaluation demonstrated positive bowel sounds and positive epigastric tenderness. There was no guarding or rebound tenderness. A rectal exam revealed there was no blood in the stool. The extremity evaluation was within normal limits, as was the neurological evaluation.

6. Dr. Fernandez ordered several diagnostic studies, including a complete blood count, an EKG, chest x-ray, abdominal

   film, and gallbladder sonogram. For reasons that were not made clear, the gallbladder sonogram was not performed. All other diagnostic tests were unremarkable.

7. At 4:45 p.m. on December 23, 1991, Dr. Fernandez prescribed the following medications for R. A.: Donnatal, Maalox, Procardia, and Reglan. Donnatal contains a mild sedative and belladonna contains alkaloids to treat spasms. Maalox is an anti-acid. Procardia contains a channel blocker and was used to treat his hypertension. Reglan was administered via IV to clear R. A.'s bowels.

8. R. A. was discharged from the Palm Springs emergency room at approximately 6:30 p.m. on December 23, 1991. On discharge, Dr. Fernandez gave R. A. a tablet of Clondine for his hypertension and prescriptions for Clondine 1 mg. and Zantac 150 mg. Dr. Fernandez instructed R. A. not to smoke, not to drink, and not to operate dangerous machinery while on the prescribed medication. R. A. was instructed to see his personal physician or return to the emergency room if his condition worsened.

9. R. A. did not have his prescription for Clondine or for Zantac filled before his second admission to Palm Springs emergency room on December 24, 1991.

   EMERGENCY ROOM TREATMENT ON DECEMBER 24, 1991

   
   

10. On December 24, 1991, R. A. presented to Palm Springs emergency room for the second time. R. A. was transported to

    the emergency room by Hialeah Fire Rescue and arrived at approximately 6:05 p.m. On arrival, R. A. complained of epigastric pain. His vital signs at 6:10 p.m. included his blood pressure reading of 230 over 130. The nurses notes for this visit reflect that the patient had been seen the day before and had received a GI (gastrointestinal) cocktail, which is a reference to the concoction given to him to relieve his epigastric pain.

11. Respondent treated R. A. while he was at the Palm Springs emergency room on December 24, 1991.1

12. At 6:20 p.m., Respondent performed his initial evaluation of R. A. Respondent took a history from the patient and observed the patient's appearance and composure. R. A. reported that he had not filled his prescriptions from the prior day. He reported to Respondent that he had epigastric pain in the mid-epigastric region that had been ongoing for several days. R. A. also reported that the medications he had received the previous day had helped him. Respondent noted the initial blood pressure on admission and that the patient had not filled his prescription for Clondine. Respondent discussed with R. A. the importance of taking Clondine for his hypertension.

13. After observing the patient initially and obtaining a history, Respondent requested the emergency room records for

    R. A. from the previous day. He noted that Dr. Fernandez

    diagnosed the patient's condition as dyspepsia and hypertension. He also noted the laboratory and radiological studies that had been ordered, including that a gallbladder ultrasound had been ordered. The records did not at that time indicate that the gallbladder ultrasound had not been performed. Respondent discussed R. A.'s prior visit with an emergency room nurse who had participated in his treatment on December 23, 1991. The nurse told Respondent that all tests were normal. Respondent understood from what the nurse had told him that the gallbladder ultrasound was also normal. It is common practice for an emergency room doctor to rely on such statements from an emergency room nurse.

14. Respondent thereafter performed an appropriate physical examination of R. A. The patient's eyes were found to be slightly jaundiced (icteric), which was a factor in leading Respondent to suspect that the patient may have had an illness affecting his liver, such as hepatitis. The abdominal evaluation revealed epigastric tenderness on palpation but no rebound. The patient's blood pressure was elevated. All other physical findings were within normal limits.

15. A consistent blood pressure of 230 over 130 or higher is considered hypertension that warrants treatment before discharge. Labile hypertension is the acute elevation of blood pressure caused by anxiety, stress, or pain. Labile

    hypertension will often resolve itself without treatment once stressors or pain is resolved. A patient with a blood pressure of 230 over 130 who is suspected of suffering labile hypertension should have his blood pressure checked no less than every fifteen minutes to observe whether the hypertension resolves itself.

16. Based on the patient's history and his evaluation and observation of the patient, Respondent determined that R. A. was more likely suffering from labile hypertension than from an emergent condition that warranted emergency treatment of the patient's hypertension. Respondent thereafter administered to the patient what was referred to as a GI cocktail to relieve his epigastric distress. The GI cocktail consisted of Zantac, Connatal, and Viscous Lidocaine and was administered at approximately 6:30 p.m. Respondent believed it likely that the GI cocktail would reduce the patient's pain and result in a lowering of the patient's blood pressure.

17. The emergency room staff checked R. A.'s blood pressure every fifteen minutes and advised Respondent of the readings. Respondent ordered additional tests to evaluate whether the patient's epigastric pains were symptoms of a condition that required emergency care. Respondent ordered a complete blood count, a liver profile, and EKG and an abdominal x-ray. The blood studies came back within normal limits. The

    liver profile indicated an elevation of serum bilirubin as well as an elevation of the liver enzymes. All other tests were within normal limits.

18. The GI cocktail relieved most of R. A.'s epigastric pain. Because he had lingering discomfort, Respondent administered a small dose of Demerol and Vistaril, which completely relieved R. A.'s pain.

19. Respondent determined that R. A. was not suffering from a condition that required emergency care. He formed the opinion that the patient had hepatitis, but that his condition did not require immediate hospitalization.

20. At approximately 9:00 p.m., R. A. was discharged from the Palm Springs emergency room. At the time of his discharge,

    R. A.'s blood pressure was approximately 160 over 80, which is within acceptable limits. Prior to his discharge, Respondent spoke with the physician who he thought would be following

    R. A.'s condition. This physician had treated R. A.'s wife, but he had not treated R. A. The patient was also given the name of a doctor who was on the hospitals primary physician call list. Also prior to discharge the patient was instructed not to drink any alcohol while taking his medication, to fill his prescriptions for Zantac and Clondine, and to follow-up with his primary care physician in three to four days. He was also instructed to eat lightly and increase fluid intake. Respondent

    told R. A. to return to the emergency room or go to his primary physician if his condition worsened.

21. Respondent's care and treatment of R. A., including his determination that the patient did not require further emergency treatment did not fall below the standard of care imposed on emergency room physicians. As will be discussed below, his diagnosis of hepatitis was incorrect. The testimony of Dr. Dellerson established that the incorrect diagnosis did not fall below the standard of care imposed on emergency room physicians.

    THE MEDICAL RECORDS FOR DECEMBER 24, 1991

    
    

22. R. A.'s records for the emergency room visit to Palm Springs on December 24, 1991, indicate that his blood pressure reading at 6:45 p.m. was 230 over 170. This is the last recorded blood pressure reading for R. A. on December 24, 1991. Respondent testified, credibly, that R. A.'s blood pressure was checked approximately every 15 minutes and that his blood pressure came down to an acceptable level during the course of his emergency room stay on December 24, 1991,2 but that the records do not reflect those blood pressure readings.

23. While it was the emergency room nurse's responsibility to take and to record that blood pressure, Respondent had the ultimate responsibility for the records as the treating physician. Although Respondent's practice did not fall below

    the standard of care imposed on emergency room physicians, the records that were kept were inadequate to reflect the patient's condition or to justify the Respondent's course of treatment.3 EMERGENCY ROOM TREATMENT ON DECEMBER 25, 1991

24. On December 25, 1991, R. A. presented to Jackson Memorial Hospital at approximately 2:10 p.m. He complained of epigastric pain that radiated to his back. He had vomited earlier that morning and had noticed blood in his vomit and blood in his stool. These were complaints and symptoms that were not present the day before. At the time of his presentation, his blood pressure was 160 over 110. The following day a CT scan was performed that led to a diagnosis of gall stones in the gallbladder and in the distal common bile duct, which did not require emergency surgery. R. A. was also diagnosed as having suffered a recent hypertensive stroke. This stroke most likely occurred after the patient presented at Jackson Memorial Hospital.

    CONCLUSIONS OF LAW

    
    

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

26. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing

    Co. v. Department of Agriculture and Consumer Services, 550

    
    

    So. 2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.

    2d 797, 800 (Fla. 4th DCA 1983).

    
    

27. Section 458.331(2), Florida Statutes, provides that the Board of medicine is empowered to discipline the license of a physician who violates Section 458.331(1), which provides, pertinent to this proceeding, as follows:

    (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) gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

28. Petitioner failed to prove by clear and convincing evidence that Respondent's treatment of R. A. violated the provisions of Section 458.331(1)(t), Florida Statutes. Consequently, Petitioner should dismiss count one of the administrative complaint.

29. Petitioner proved by clear and convincing evidence that the medical records for which Respondent was responsible failed to meet the standard imposed by Section 458.331(1)(m), Florida Statutes. At a minimum, the medical records should have reflected the patient's blood pressure on discharge since the only reported blood pressure readings were too high to justify discharging the patient. Consequently, Respondent, as the treating physician and the person responsible for the medical records, violated Section 458.331(1)(m), Florida Statutes, as alleged in count two of the administrative complaint.

30. Rule 59R-8.001, Florida Administrative Code, contains disciplinary guidelines pertinent to this proceeding. For a violation of Section 458.331(1)(m), Florida Statutes, the recommended range is "[f]rom a reprimand to denial [of licensure] or two (2) years suspension [of licensure] followed by probation, and an administrative fine from $250.00 to

$5,000.00."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that dismisses count one of the Administrative Complaint, but finds Respondent guilty of violating Section 458.331(1)(m), Florida Statutes, as alleged in count two of the Administrative Complaint. It is further recommended that Respondent be reprimanded and assessed an administrative fine in the amount of

$250.00.

DONE AND ENTERED this 14th day of July, 1997, in Tallahassee, Leon County, Florida.

Hearings

Hearings

CLAUDE B. ARRINGTON

Administrative Law Judge Division of Administrative

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

this 14th day of July, 1997

ENDNOTES

1/ There is a dispute between Petitioner and Respondent as to the treatment Respondent provided R. A. on December 24, 1991. Petitioner correctly asserts that the medical records generated as a result of R. A.'s visit to the emergency room on

December 24, 1991, are inadequate to reflect the patient's condition or to justify the Respondent's course of treatment.

The findings that follow as to Respondent's treatment of R. A. are based on the medical records; on Respondent's testimony, which the undersigned finds to be credible; and on the testimony of Dr. Dellerson.

2/ In addition to the testimony of the Respondent, this finding is supported by Dr. Dellerson's testimony and on R. A.'s blood pressure reading when he was subsequently admitted to Jackson Memorial Hospital.

3/ The fact that the records do not reflect the blood pressure readings is more understandable since the events occurred on a Christmas Eve, a busy time for an emergency room since many physicians are out of their offices and not available to see their patients. Respondent undertook measures approximately six months before the events at issue in this proceeding to improve the documentation process at the Palm Springs emergency room, but those measures were insufficient to prevent the deficiencies found in R. A.'s records.

COPIES FURNISHED:

Hugh R. Brown, Esquire

Agency For Health Care Administration Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

Marc P. Ganz, Esquire McGrane & Nosich, P.A.

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

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 Monroe Street

Tallahassee, Florida 32399-0792

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32309

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.

1 There is a dispute between Petitioner and Respondent as to the treatment Respondent provided R. A. on December 24, 1991. Petitioner correctly asserts that the medical records generated as a result of R. A.'s visit to the emergency room on December 24, 1991, are inadequate to reflect the patient's condition or to justify the Respondent's course of treatment. The findings that follow as to Respondent's treatment or R. A. are based on the medical records, on Respondent's testimony, which the undersigned finds to be credible, and on the testimony of Dr. Dellerson.

2 In addition to the testimony of the Respondent, this finding

is supported by Dr. Dellerson's testimony and on R. A.'s blood pressure reading when he was subsequently admitted to Jackson Memorial Hospital.

3 The fact that the records do not reflect the blood pressure readings is more understandable since the events occurred on a Christmas Eve, a busy time for an emergency room since many physicians are out of their offices and not available to see their patients. Respondent undertook measures approximately six months before the events at issue in this proceeding to improve the documentation process at the Palm Springs emergency room, but those measures were insufficient to prevent the deficiencies found in R. A.'s records.

Docket for Case No: 96-002703

Orders for Case No: 96-002703