H. subsequent to her July 18, 1994, visit to Respondent's office.
At the conclusion of the evidentiary portion of the hearing, the undersigned announced on the record that proposed recommended orders had to be filed no later than 30 days from the date of the undersigned's receipt of the transcript of the final hearing.
The undersigned received the hearing transcript on December 31, 1997. The Department and Respondent filed their proposed recommended orders on January 30, 1998. These post-hearing submittals have been carefully considered by the undersigned.
Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:
Petitioner is a state government licensing and regulatory agency.
Respondent is now, and has been since August 8, 1975, licensed to practice medicine in the State of Florida.
He holds license number ME 0025748.
Respondent specializes in urology.
L. H. is a former patient of Respondent's.
She first presented to Respondent on June 20, 1994, complaining of recurring urinary tract infections.
At the time, she was 65 years of age.
L. H. had very few symptoms. She did tell Respondent, however, that she had had a fever associated with an infection about a month prior to the visit.
Respondent conducted a physical examination of L. H..
He found no abnormalities other than a tight or stenotic urethra.
A catherized urine specimen was taken from L. H. Laboratory testing revealed a white blood cell count of 20 to 25, with 3 plus bacteria, and the presence E-coli.
These results were indicative of an infection in the area of the bladder.
The ordinary medical response to such an infection is treatment with an antibiotic.
L. H. was already being treated with an antibiotic (Cipro) that had been prescribed by the physician who had referred her to Respondent.
Respondent prescribed additional antibiotic treatment for L. H.
In addition, an intravenous pyelogram (IVP) was scheduled and performed. The results of the IVP were normal.
Respondent next saw L. H. on July 18, 1994, for a scheduled cystoscopy. (She had a previous appointment for a cystoscopy which she had cancelled.)
Another urinalysis was performed during L. H.'s
July 18, 1994, visit. It revealed that she had "persistent white blood cells," with a trace of bacteria.
Accordingly, during the visit, L. H. was given a strong antibiotic Gentamicin, which was administered intramuscularly prior to the cystoscopy.
L. H. was also administered a local anesthetic, Xylocaine, prior to the cystoscopy.
A cystoscopy is a visual examination of the bladder (performed by the examining physician) using an endoscopic device known as a cystoscope, which is placed in the bladder through the urethra.
Cystoscopes are either rigid or flexible.
A rigid cystoscope's magnification is twice that of a flexible cystoscope. Moreover, a rigid cystoscope provides more illumination than a flexible cystoscope. A flexible cystoscope, however, causes less patient discomfort, particularly in male patients, than does a rigid cystoscope.
Respondent (who has performed thousands of cystoscopies and has seen many different types of lesions in the bladder in
the years he has practiced medicine) used a rigid cystoscope (with glass fibers) to examine L. H.
Upon looking in L. H.'s bladder with the cystoscope, he observed multiple lesions (ten to twelve in number).
The largest of the lesions present in L. H.'s bladder was considerably larger and different in appearance than the others. It was approximately three centimeters in diameter, cauliflower-shaped, and blister-like.
Respondent told L. H. during the cystoscopy that he was not sure what the lesions were and that he needed to biopsy them to learn more about them.
He sought L. H.'s consent to perform such a biopsy procedure during her office visit that day.
Such a biopsy procedure would have cost an additional
$100.00 and could have been quickly performed by Respondent, who routinely performs such procedures in his office on a daily basis.
Upon being told by Respondent that she had lesions in her bladder, L. H. became very emotional.
She advised Respondent that she did not want him to perform the biopsy procedure that day.
After the completion of the cystoscopy, L. H. got up from the examining table and got dressed.
Her husband then entered the examining room.
Respondent told L. H.'s husband (in L. H.'s presence) that the cystoscopy had revealed multiple lesions or tumors in
L. H.'s bladder, but that the lesions were most likely benign, inflammatory growths (perhaps indicative of an abnormal connection between the bladder and large intestine) and not cancerous. He cautioned, however, that he needed to biopsy the lesions to make sure that they were not cancerous.2
After conferring with L. H. and her husband, Respondent scheduled L. H. for a follow-up biopsy (to be performed with a resectoscope) for July 28, 1994.
He also prescribed a continuing course of treatment with antibiotics for L. H.
L. H. and her husband then left Respondent's office.
She never returned as a patient.
Respondent maintained written records regarding his care and treatment of L. H. These records contain sufficient information to enable a neutral third party to ascertain the nature of, and justification for, the treatment he rendered.
Following her July 18, 1994, visit to Respondent's office, L. H. spoke about the visit with her son-in-law, who is a urologist.
L. H.'s son-in-law recommended that L. H. see another urologist, Peter J. Egerton, M.D., to obtain a second opinion.
L. H. presented to Dr. Egerton on July 20, 1994. Dr. Egerton performed a cystoscopy using a flexible cystoscope to
examine L. H. He found no evidence of lesions in L. H.'s bladder and so advised L. H. Dr. Egerton's written report of his examination of L. H. reads as follows:
PROCEDURAL NOTE
[L. H.] July 20, 1994
PREOPERATIVE DIAGNOSIS: Rule out bladder tumor.
POST OPERATIVE DIAGNOSIS: No bladder tumor. PROCEDURE: Flexible cystoscopy
Surgeon: Peter J. Egerton, M.D. Assistant: Gloria Gose, R.N. ANESTHESIA: Local Xylocaine CONDITION: Stable
PROCEDURE: The patient was brought to the cysto suite and placed in the foreleg position. She was prepped and draped in the usual manner. A #16 french flexible scope was passed into the bladder. There were no obvious tumors, stones or masses seen and there was clear efflux. The bladder was then reexamined, and no 3cm lesion could be found as described. The scope was removed and the patient tolerated the procedure well and left the cysto suite in satisfactory condition.
After her visit to Dr. Egerton's office, L. H. again spoke with her son-in-law, who suggested that L. H. go see yet another urologist, Thomas Suits, M.D., for a third opinion.
L. H. presented to Dr. Suits on July 21, 1994. Dr. Suits performed a cystoscopy during L. H.'s visit. (It is unclear from the record whether he used a rigid cystoscope or a flexible cystoscope to examine L. H.)
Dr. Suits' written report of the L. H.'s July 21, 1994, visit to his office reads as follows:3
Procedure- July 21, 1994 CYSTOSCOPY:
Scope placed with difficulty. Urethra extremely injected. Bladder trabeculated, grade 1 to 2/4. Ureteral orifices slit type, clear Efflux. Bladder mucosa slightly erythematous consistent with recent cystitis. There are no bladder diverticulum. There are no bladder cancers, polyps or other evidence of malignancy. PVR 20ccs.
POST PROCEDURE UROFLOW UROFLOW:
PEAK: 9
AVERAGE 5
VOIDED: 131 IMPRESSION:
Urethral stenosis.
Recurrent urinary tract infection
No evidence of bladder tumor. PLAN:
Macrobid HS
Premarin Cream to urethra nightly.
Prosed DS prn.
Follow-up 1 month.
Uroflow, PVR.
Possible dilatation.
A urine specimen taken from L. H. during her July 21, 1994, visit to Dr. Suits' office was provided to Palm Beach Pathology for analysis. The cytology report prepared by Palm Beach Pathology reads as follows:
NON-GYN CYTOLOGY SPECIMEN:
Urinary Tract-Bladder (catherization)
CYTOLOGIC EVALUATION:
Cancer Reading: Abnormal changes
COMMENTS:
Clusters of degenerated slightly atypical urothelial cells and candida (?contaminant).
L. H. remained under Dr. Suits' care.
Subsequent examinations and testing revealed no abnormalities suggesting that L. H. was suffering from cancer of the bladder.
L. H. has never had any tumors surgically removed from her bladder.
Although it is very improbable, it is nonetheless possible that a blister-like lesion or tumor three centimeters in diameter, such as the one Respondent observed in L. H.'s bladder on July 18, 1994, may disappear in two or three days time. This is particularly true if the lesion is the product of an infection and the patient is being treated with an antibiotic, as was L. H.
When Respondent reported that he had observed such a lesion (along with other lesions) in L. H.'s bladder during his cystoscopic examination of L. H. on July 18, 1994, he was not being untruthful. He actually saw during the examination what reasonably appeared to be a three centimeter lesion, as well as smaller lesions, in L. H.'s bladder. While these lesions may not have been present or observed by Dr. Egerton and Dr. Suits when they conducted their cystoscopic examinations of L. H. on
July 20, 1994, and July 21, 1994, respectively, the lesions had been there, as Respondent had accurately reported, at the time of Respondent's July 18, 1994, examination of the patient.
The evidence fails to establish that, in connection with his care and treatment of L. H., Respondent in any way acted in a manner that was inconsistent with what a reasonably prudent urologist would have recognized as being acceptable and appropriate under the circumstances.
CONCLUSIONS OF LAW
The Board of Medicine (Board) is now, and has been at all times material to the instant case, statutorily empowered to take one or more of the following punitive actions against a physician licensed to practice medicine in the State of Florida based upon any of the grounds enumerated in Section 458.331(1), Florida Statutes: revoke or suspend the physician's license; restrict the authorized scope of the physician's practice; impose an administrative fine not to exceed $5,000.00 for each count or separate offense; issue a reprimand; place the physician on probation "for a period of time and subject to such conditions as the [B]oard may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician"; issue a letter of concern; take corrective action; or refund fees billed to and collected from the aggrieved patient. "In determining what action is
appropriate the [B]oard must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the [Board] consider and include in the order requirements designed to rehabilitate the physician." Section 458.331(2), Florida Statutes.
Where the revocation or suspension of the physician's license is sought, proof greater than a mere preponderance of the evidence must be submitted before the Board may take punitive action against a licensed physician. Clear and convincing evidence of the physician's guilt is required. Section 458.331(3), Florida Statutes; see also Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So. 2d 922 (Fla. 3d DCA 1988); Section 458.331(3), Florida Statutes; Section 120.57(1)(h), Florida Statutes
("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").
"'[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 testimony 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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
"In any administrative action against a physician which does not involve revocation or suspension of license, [Petitioner has] the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action." Section 458.331(3), Florida Statutes.
Regardless of the punitive action sought to be taken against the physician, such action may be based only upon those offenses specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Chrysler v. Department of Professional Regulation, 627 So. 2d 31 (Fla. 1st DCA 1993); Klein v. Department of Business and Professional Regulation, 625 So. 2d
1237, 1238-39 (Fla. 2d DCA 1993); Arpayoglou v. Department of Professional Regulation, 603 So. 2d 8 (Fla. 1st DCA 1992); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1992); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So. 2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State,
501 So. 2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).
Furthermore, in determining whether Section 458.331(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977); see also Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996)("Because the statute ["Because the statute [Section 626.954(1)(x)4, Florida Statutes] is penal in nature, it must be strictly construed with any doubt resolved in favor of the licensee.).
The Administrative Complaint issued in the instant case alleges that punitive action should be taken against Respondent because, in connection with his care and treatment of L. H., he violated: (a) Section 458.331(1)(t), Florida Statutes, by "fail[ing] to appropriately treat Patient L. H. by inaccurately diagnosing Patient L. H. as having lesions on her posterior bladder wall" (Count One); and (b) Section 458.331(1)(1)(m), Florida Statutes, by "fail[ing] to maintain appropriate and accurate medical records for Patient L. H. in that he made inaccurate notations which stated that Patient L. H. had lesions on her posterior bladder wall" (Count Two).
At all times material to the instant case, Section 458.331(1)(t), Florida Statutes, has provided as follows:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
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. The [B]oard shall give great weight to the provisions of s. 766.102 when enforcing this paragraph.4 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 judgment or settlement and which incidents involved 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.
A licensed physician may not be found guilty of violating Section 458.331(1)(t), Florida Statutes, based upon the negligence or incompetence of others where there has been no misconduct personal to licensee. See Ganter v. Department of Insurance, 620 So. 2d 202, 205 (Fla. 1st DCA 1993); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245, 250 (Fla. 1st DCA 1992); McDonald v. Department of Professional Regulation Board of Pilot Commissioners, 582 So. 2d 660, 669 (Fla. 1st DCA 1991; Federgo Discount Center v. Department of Professional Regulation, Board of Pharmacy, 452 So. 2d 1063 (Fla. 3d DCA 1984).
At all times material to the instant case, Section 458.331(1)(m), Florida Statutes, has authorized the Board to take punitive action against a licensed physician for "[f]ailing 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."
This statutory provision does not purport to encompass the standards of any professional or accrediting organization or
"those of a 'reasonably prudent physician;'" nor can it "be interpreted as authorizing disciplinary action for a physician's failure to document in a patient's medical chart a basis for not undertaking a particular course of treatment." Breesmen v.
Department of Professional Regulation, Board of Medicine,
567 So. 2d 469, 471 (Fla. 1st DCA 1990). It does impose upon the physician, however, an obligation to provide sufficient documentation "so that 'neutral third parties can observe what transpired during the course of treatment of a patient.'" Robertson v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 153, 156-57 (Fla. 1st DCA 1990).
Petitioner has failed to establish by even a preponderance of the record evidence that Respondent committed the violations of Section 458.331(1)(t) and (m), Florida Statutes, alleged in Counts One and Two, respectively, of the Administrative Complaint.
Unlike the two subsequent treating urologists
(Dr. Egerton and Dr. Suits) upon whose written medical opinions Petitioner relied in attempting to meet its burden of proof at the final hearing in this case, Respondent took the stand at hearing and gave sworn testimony.5 He testified with apparent sincerity and candor that, when he conducted his cystoscopic examination of L. H. on July 18, 1994, he observed what appeared to him to be, based upon his medical training and experience, which included conducting thousands of cystoscopic examinations
on other patients, lesions of the type that he subsequently described in the medical records he maintained on L. H. Having carefully considered Respondent's testimony, along with the other evidence adduced at the final hearing, the undersigned is persuaded that Respondent testified truthfully and that he indeed did see what he had reason to believe were lesions of the type described in his medical records. While these lesions may not have been seen by Dr. Egerton and Dr. Suits during their cystoscopic examinations of L. H. on July 20, 1994, and July 21, 1994, respectively, the greater weight of the evidence establishes that they had been present on July 18, 1994, when Respondent examined L. H. and that they had either disappeared or for some other reason, perhaps relating to the equipment used by Dr. Egerton and Dr. Suits, were not observed by them at the time of their examinations of L. H.
Because the record evidence does not establish the "inaccura[cy]" of Respondent's determination , which he noted in the medical records he maintained on L. H., that L. H. had "lesions on her posterior bladder wall" at the time he examined her on July 18, 1994, Counts One and Two of the Administrative Complaint, which are premised upon the allegation that such determination was erroneous, should be dismissed.
