vs. ) Case No. 96-5574
MICHAEL T. REILLY, M.D., )
A hearing was held in this case in St. Petersburg, Florida, on June 18, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
For Respondent: Donald V. Bulleit, Esquire
Fowler, White, Gillen, Boggs, Villareal and Banker, P.A.
St. Petersburg, Florida 33731
The issue for consideration in this case is whether Respondent’s license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
By Administrative complaint dated October 29, 1996, the former Petitioner, Agency for Health Care Administration, on behalf of the Board of Medicine, charged Respondent herein, Dr. Michael T. Reilly, with violating Section 458.331(1)(t),
Florida Statutes, by failing 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; and with violating Section 458.331(1)(m), Florida Statute, by failing to keep adequate written medical records relating to his treatment of a patient,
S.S. Respondent disputed the allegations and requested a formal hearing, and this hearing ensued. Prior to the hearing, the Board of Medicine transferred from the Agency for Health Care Administration to the Department of Health, but counsel for the Agency continued to represent the Petitioner.
At the hearing, Petitioner presented the testimony of the patient in issue, S.S.; Joyce M. Heavener, manager of medical records for the Diagnostic Clinic; and Dr. Carlton R. Vollberg, a physician and expert in the practice of family medicine.
Petitioner also introduced Petitioner’s Exhibits 1 through 6. Respondent testified in his own behalf and presented the testimony of Dr. Arthur H. Herold, Associate Professor of Family Medicine at the University of South Florida College of Medicine; and Dr. John M. Harvey, Assistant Professor of Medicine in the Department of Internal Medicine at the University of South
Florida College of Medicine. Respondent also introduced Respondent’s Exhibits A through E.
A transcript of the proceedings was furnished. Subsequent to the receipt thereof, counsel for both parties submitted matters in writing which were carefully considered in the preparation of this Recommended Order.
At all times pertinent to the issues herein, the former Petitioner, Agency for Health Care Administration, Board of Medicine, was the state agency responsible for the licensing of physicians and the regulation of the practice of medicine in this state. Respondent was licensed as a physician having been issued license number ME0032973.
On or about July 29, 1992, Patient S.S. came to Dr. Reilly’s office at 1201 5th Avenue North, Suite 401, in St. Petersburg, complaining of “coughing up blood.” Patient S.S., an electronics technician, claimed he had been coughing up small amounts of blood for several months on a sporadic basis. The blood did not appear every day, but when it did, it was repeated for several days in a recognizable amount. At that time, S.S. did not smoke, but had smoked at least a pack a day from 1970 to 1978, when he quit smoking.
Over the years, S.S. had been exposed to chemicals on the job, a fact which concerned him, and as a result, the appearance of blood in his sputum worried him. At this point it should be noted that sputum and saliva are not the same thing.
Sputum is matter brought up from the lungs or throat. Saliva, though it may be mixed with sputum in the mouth, is generated by saliva glands in the mouth.
A patient history was taken on the event of the first visit which was not particularly significant. During the interview with the patient, Dr. Reilly asked him if he smoked or drank, and it would appear that at that time S.S. answered in the negative as to both. Dr. Reilly identifies the “N” notation opposite both on the form as his. Aside from the cough, nothing remarkable was discovered as a result of the interview or examination, save wax in the patient’s ears.
Dr. Reilly then told S.S. that his cough was probably due to an upper respiratory infection, which would probably resolve without problem but, if the condition were something more significant, it would probably get worse. Respondent then prescribed erythromycin, an antibiotic, to be taken four times a day for ten days. He also warned S.S. that the drug had a possibility of creating gastritis. Though S.S. claims he asked Dr. Reilly to order a chest x-ray, Reilly does not recall this and indicates that, under the circumstances of this case, he would not have done so anyway. In this regard, it must be noted that Dr. Reilly cannot recall having seen the patient and does not have any direct recollection of any of the facts and circumstances surrounding this visit and the one which followed. His testimony is based on his review of his medical records regarding this patient and his conclusions of what he ordinarily
would do in such a situation. He does not deny that S.S. may have asked for a chest x-ray. In his nineteen years of practice, he has treated many patients with chest coughs, and it is not unusual for them to ask for a chest x-ray.
By the same token, S.S.’ recollection of the details of his visits to Respondent are also vague. He cannot recall with particularity much of what happened. However, Respondent could not have discovered some of the things which appear in the records other than from the patient. The patient’s credibility is not high. This conclusion is not based on any evidence of intentional misrepresentation, but on the patient’s inability to recall details of the visits.
After the first visit, S.S. continued to cough up blood, and about a week later he again called the Respondent’s office and reported this. It was not clear whether S.S. spoke with the Respondent at that time, but he was told that it was nothing to worry about even though he was not seen by the doctor. This was repeated somewhat later when, still experiencing his complaint, he again called the doctor’s office to express his concern over a continuation of blood in his sputum. Again, Respondent told him it was nothing to worry about.
S.S. went to Respondent’s office for a second visit, on August 21, 1992. There is a question of to whom he reported having blood in his sputum, and as to where the blood actually appeared. The medical records reflect S.S. reported blood in his saliva to the receptionist. He says he told the Respondent,
which Respondent denies. Assuming, arguendo, that S.S. is correct and he did inform the doctor, the records also make it clear he was also experiencing bright red rectal bleeding with his bowel movements, and this condition, in the opinion of Respondent and both Dr. Herold and Dr. Harvey, is a condition of far more importance and urgency than minimal blood in the sputum.
Dr. Herold and Dr. Harvey, each an experienced specialist in either internal medicine and pulmonary diseases or in family medicine, conclude that it is far more appropriate for a physician confronted with Respondent's symptoms, to treat the rectal problem before the blood in the cough. At worst, the coughing of blood can signify lung cancer while blood in the stool can signify rectal cancer. Both physicians opined that if a patient has lung cancer which causes him to cough up blood, the potential for a cure is slim, even if the condition is caught early. On the other hand, if the patient has rectal cancer, the chances for a cure if caught early are much greater.
In any event, the medical chart for the August 21, 1992, visit reflects that the upper respiratory infection had resolved. Nonetheless, Respondent noted that if the bleeding continued, the patient should have an x-ray. With regard to the rectal bleeding, Respondent did a hemocult, which was negative, but he also made an appointment for the patient to have a barium enema and a proctologic examination at St. Anthony’s hospital at 10:30 a.m, on September 4, 1992. The patient did not keep that appointment nor did he ever return to the Respondent’s office for
treatment. He claims he did not feel the Respondent was helping him.
Other medical records indicate, however, that sometime after he saw Respondent for the second time, S.S. went to see a proctologist, Dr. Nanda, in October 1992 for treatment of the rectal fissure. At no time did he discuss the coughing up of blood with Dr. Nanda who performed surgery on the patient, nor with the anesthesiologist who assisted. S.S. recalls that a chest x-ray was taken at that time, which, he claims, showed a spot on his lung, but apparently this did not disturb Dr. Nanda, as nothing was suggested or done about it.
Finally, in June 1993, when the coughing seemed to get worse, S.S. went to see Dr. Ronald Bowers, a pulmonary disease specialist, who obtained copies of S.S.’ patient records from the Respondent, and who, because he suspected tuberculosis, quarantined S.S. at home for two weeks pending a bronchoscopy. When that procedure was done, it revealed a foreign object in the patient’s bronchial tube. Bowers ruled out tuberculosis, but suggested the patient have the top section of his lung removed and referred him to a thoracic surgeon, Dr. Campbell, who agreed.
S.S. was understandably not happy with that diagnosis and recommendation and saw another thoracic surgeon, Dr. Chapa.
Dr. Chapa agreed that he should have the top section of his lung removed.
Still not satisfied, S.S. saw Dr. Leonard Dunn, another pulmonary disease specialist, who found, dislodged, and removed a
small calcified object from an intrabrachial tube in the patient’s right lung. Dr. Dunn also gave the patient a strong antibiotic and advised him to come back in a month for a follow- up x-ray to ensure the spot was gone. Though the follow-up x-ray still showed a spot on the patient’s lung, another bronchoscopy did not show anything out of the ordinary, and the patient has suffered no coughing of blood nor discomfort since that time.
Dr. Carlton Vollberg, a family practice physician in practice in Punta Gorda, Florida, evaluated this case for the Board of Medicine. In his practice, he has had patients with symptoms similar to those presented by S.S. to the Respondent. His review of the file indicated that the symptoms described to Respondent by the patient could have been caused by a number of conditions for many of which erythromycin is an appropriate antibiotic. At that time, the Respondent’s diagnosis of infection was presumptive, not differential and the prescription of an antibiotic to treat the several possible conditions without an x-ray was appropriate.
However, when the patient came back a second time, still complaining of coughing blood, the failure to treat the chest condition, and the election to treat the rectal fissures, was not appropriate. When the patient returned, still complaining of bloody sputum, Dr. Vollberg contends a reasonably prudent physician, in those circumstances, would have ordered a chest x-ray. Lab tests would not have been appropriate because of the regimen of antibiotics the patient had been following.
Dr. Vollberg concluded that as of August 21, 1992, the Respondent had made no diagnosis as to the cause of the blood in the patient’s sputum, and there was no evidence to indicate that Respondent followed up on that issue in the treatment plan he outlined. Vollberg concluded that if the account given by S.S. was a true and accurate account of the scenario, Respondent’s treatment fell below standard. He also concluded that the Respondent’s medical record does not justify the course of treatment followed because, if the patient was coughing up blood and had a history of smoking and environmental exposure, the Respondent should have shown that in the records.
Dr. Herold has lectured and written extensively on the subject of the evaluation of chronic cough in his academic and clinical role at the medical school. Much of this relates to when an x-ray should be taken and when it should not be taken. A part of this decision rests on the economics of the procedures - what to look for and when to order and not to order diagnostic measures.
A cough, with or without blood, is a common complaint. Most patients have benign, self-limiting problems, and without severe distress or a history indicating another problem, refusal to order an x-ray on the first visit is not inappropriate. In addition, blood-stained sputum is not uncommon and is often related to an upper respiratory infection.
The downside of x-rays is multi-faceted. First, is the potential for exposure to excessive radiation. Second, is the
expense of the x-ray. Third, is the possibility of false positives resulting from the taking of the film, and fourth, is the effect on the credibility of the physician. Fifth, is the possibility of antagonizing the patient. The 1990’s standard of care requires a knowledge of when not to x-ray as well as when to x-ray, and an emphasis is placed in the medical schools on this issue.
Dr. Herold, who does not know the Respondent, has reviewed the records in this case, and having done so, concluded that Respondent’s record-keeping of the first visit of S.S. was satisfactory. The reference to the antibiotic and the instruction as to when to take it indicates a prescription was given and, in his opinion, the examination Respondent gave the patient was appropriate for the first visit. Herold contends that the reference to the upper respiratory infection in the synopsis section of the record constitutes a diagnosis, and the examination and treatment given on the first visit was within the standard of care as taught at the University of South Florida Medical College.
As to the second visit, as recorded in the chart, Herold opines that again the record is adequate as is the treatment rendered. The record indicates that the upper respiratory infection and the bleeding had resolved, but also notes that if the bleeding should persist, an x-ray should be done. Since the Respondent ordered some studies for the patient, even though for a different reason, a follow-up visit is implied.
Medical schools teach that if a treatment plan is recorded in the doctor’s notes, it is understood that the information was also conveyed to the patient. Therefore, the examination on August 21, 1992, and the records relating to it, are, in his opinion, within the standard of care in Florida. This conclusion was concurred in by Dr. Harvey.
Respondent does not like to order x-rays when not absolutely necessary because of the risk of exposure to radiation, the cost, and the low likelihood that the film will show anything or change the diagnosis or outcome. He does not recall this patient or the situation. However, based upon his review of the records, Respondent concluded that he diagnosed an upper respiratory infection for which he prescribed an antibiotic.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
The Board of Medicine seeks to discipline the Respondent's license as a physician in Florida, alleging that he practiced below the acceptable standard of care in that he failed to adequately assess patient S.S.'s complaint and symptoms by not immediately ordering a chest x-ray when he had notice of blood in the patient's sputum, by failing to pursue a more aggressive treatment plan, by failing to perform an adequate physical on the patient and by failing to arrive at a timely and accurate opinion
of the patient's complaint, in violation of Section 458.331(1)(t), Florida Statutes. In Count Two of the Administrative Complaint, the Board alleges that Respondent failed to keep adequate written medical records on the patient, in violation of Section 458.331(1)(m), Florida Statutes.
Since professional license disciplinary cases are penal in nature, the burden of proof in such cases rests upon the Petitioner to establish Respondent's misconduct by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Section 458.331(1)(t), Florida Statutes, authorizes the Board of Medicine to discipline a physician's license when it can prove that the physician has failed 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. In addition, Section 458.331(1)(m) of the statute authorizes discipline of a physician's license when the physician fails to keep written medical records justifying the course of treatment of the patient.
In the instant case, the Board alleges that because Respondent failed to order chest x-rays for patient S.S. when the patient complained of seeing blood in his sputum and by treating the patient's rectal bleeding before taking any aggressive course of action regarding the patient's persistent cough, Respondent practiced below acceptable standards. The Board also contends
that Respondent's written medical records were insufficient to justify the course of treatment he undertook. The Board was backed in its position by its expert, Dr. Vollberg, a physician engaged in the family practice of medicine in Punta Gorda, and who has been a peer review consultant with the Board for approximately five years.
Dr. Vollberg noted that the Respondent had diagnosed an upper respiratory infection and yet, as of the second visit by the patient, when the patient complained of continued blood in his sputum, still failed to order a chest x-ray. Dr. Vollberg, who did not examine the patient but who formulated his opinion of Respondent's performance solely from the medical records of the patient, which included the referrals to the two pulmonary specialists who recommended lung removal and their comments of record, concluded that a reasonable prudent physician would have ordered a chest x-ray when the bloody sputum continued. At first blush this seems reasonable, even though the recommended lung surgery was subsequently determined to be unjustified and unnecessary. Dr. Vollberg also opines that because the patient was coughing up blood and had a history of environmental exposure, the failure to include that information in the patient history was inappropriate.
On the other hand, the Respondent was supported by two physicians, Dr. Harry Herold, Board Certified in family medicine and an associate professor of family medicine at the University of South Florida Medical School; and Dr. John M. Harvey, Jr.,
Board certified in both pulmonary medicine and internal medicine. Both physicians concluded that under the standard of practice in existence for the past few years, including the time in issue, the use of x-rays in cases where a patient's cough periodically reveals small amounts of blood has been substantially curtailed. This is the practice currently being taught at the University's medical school.
The testimony of the Board's complainant, S.S., was not considered persuasive or, for that matter, significantly credible. The patient was unsure of what he had done and what was told to him. His testimony was frequently inconsistent with that of the Respondent, and, even more significant, with that of the medical records made at the time of the visit. Both physicians, Drs. Herold and Harvey, were satisfied that Respondent's treatment of this patient was well within standards and that his written records met standards as well.
To be sure, this case fails to fall clearly on either side of the dividing line. To this observer, Respondent's performance was not so far free of error as Drs. Herold and Harvey would urge. On the other hand, Respondent's performance was not so far off the mark of acceptability as the agency would urge. Dr. Reilly, however, need not prove his performance met standards. The burden rests upon the agency to prove his failure to meet standards, and it has not done this by the clear and convincing evidence the law requires.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a Final Order dismissing the Administrative complaint filed in this case against Dr. Michael T. Reilly, M. D.
DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida.
_ ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997.
Donald V. Bulleit, Esquire Fowler, White, Gillen, Boggs,
Villareal and Banker, P.A. Post Office Box 210
St. Petersburg, Florida 33731
Dr. Marm Harris, Executive Director Board of Medicine
Angela T. Hall, Agency Clerk Department of Health Building 6
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.
