STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, }

}

)

Petitioner, )

)

vs. ) Case No. 98-2158

)

JOHN JULIUS DALLMAN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video conference on September 24, 1998, at Tampa, Florida, before Richard A. Hixson, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Britt Thomas, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: H. Roger Lutz, Esquire

One Sarasota Tower

Two North Tamiami Trail, Suite 500 Sarasota, Florida 34236

STATEMENT OF THE ISSUES

The issues for determination in this case are whether Respondent failed to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and

circumstances, and whether Respondent failed to keep appropriate medical records justifying the course of treatment, as alleged in the Administrative Complaint, and if so, whether Respondent’s license to practice medicine should be disciplined.

PRELIMINARY STATEMENT

On August 28, 1996, the Agency for Health Care Administration, the predecessor agency to Petitioner, Department of Health, Board of Medicine, filed an Administrative Complaint charging Respondent, John Julius Dallman, M.D., in two counts of violating the provisions of Sections 458.331(1)(m) and (t), Florida Statutes. Respondent filed a timely denial of the charges of the Administrative Complaint and requested a formal hearing. The case was transmitted to the Division of Administrative Hearings on May 7, 1998, to conduct the formal hearing, which was held on September 24, 1998.

At hearing, Petitioner presented the testimony of one witness, Lee A. Fischer, M.D., qualified over objection as an expert witness in emergency medicine. Petitioner also offered five exhibits which were received in evidence.

Respondent testified in his own behalf and presented the testimony of Henry E. Smoak, M.D., qualified as an expert witness in emergency medicine. Respondent also presented one exhibit which was received in evidence.

A transcript of the hearing was filed on October 7, 1998.

Respondent filed a proposed recommended order on October 19, 1998, and Petitioner filed a proposed recommended order on October 20, 1998.

FINDINGS OF FACT

1. Petitioner, Department of Health, Board of Medicine, is the state agency authorized to regulate the practice of medicine pursuant to Chapters 455 and 458, Florida Statutes.

2. Respondent John Julius Dallman, M.D., is, and at all times material hereto has been, a licensed physician in the State of Florida having been issued license no. ME 0032677. Respondent was first licensed in Florida in 1978.

3. Respondent is board certified in family practice, and a former member of the American Society of Emergency Room Physicians. Respondent is currently employed as vice-president for Caring Network for Blue Cross/Blue Shield.

4. Beginning in 1991 and continuing through the time of the incident which is the subject of the Administrative Complaint, Respondent was engaged exclusively and full-time in the practice of emergency medicine at Oak Hill Hospital in Spring Hill, Florida.

5. On January 2, 1993, Patient C.M., a 59 year-old female presented to the emergency department of the Oak Hill Hospital at 9:31 p.m., complaining of lower abdominal cramps and multiple episodes (fifteen) of vomiting. C.M. related that her symptoms had begun earlier that evening subsequent to eating a fish dinner at a local restaurant. C.M. stated that she had a normal bowel movement that day. C.M. also related that she had previously had

   abdominal surgery, specifically a hysterectomy.

   
   

6. At the time C.M. presented to the Oak Hill emergency department, the department was not particularly busy.

7. Respondent confirmed C.M.’s history as related to the emergency department nurse, and then conducted an initial examination of C.M., which included an examination of her vital signs, as well as an examination of her abdomen. Respondent performed a quadrant examination her abdomen, palpating the abdomen and checking for rigidity, guarding, and rebound tenderness. Respondent also listened for bowel sounds. Respondent also ordered diagnostic tests, including Chem 7 and CBC laboratory tests and chest and abdominal x-rays.

8. At 9:50 p.m., approximately twenty minutes after C.M.’s arrival at Oak Hill, Respondent ordered the administration of Compazine to alleviate C.M.’s nausea and vomiting.

9. Respondent’s physical examination of C.M. indicated a normal pulse, temperature, blood pressure, and clear lungs which Respondent recorded on the medical record.

10. Respondent’s examination of C.M.’s abdomen indicated no rigidity or guarding, but a diffuse tenderness of the abdomen which Respondent recorded on the medical record. Although Respondent checked for bowel sounds and found them to be normal, Respondent made no notation of this finding on the medical

    record.

    
    

11. The diagnostic tests indicated that C.M. had a potassium level of 2.9 which was below the normal range of 3.5 to

    
    

    5.0, and a white blood count of 14,900, which was above the normal range of 5,000 to 10,500.

12. Respondent reviewed C.M.’s X-rays and noted on the medical record that the X-rays were nonspecific. Respondent specifically did not observe any “free air” under the diaphragm from his evaluation of C.M.’s X-rays. The observation of “free air” from an X-ray is an indication of an extremely serious abdominal condition which may result from perforations within the abdomen which requires immediate surgical attention.

13. Respondent reexamined C.M. at approximately 12:45 a.m., on January 3, 1993. At this time C.M. was still experiencing abdominal cramps; however, her nausea and vomiting had ceased. Respondent administered Toradol, an anti-inflammatory medication to ease her cramps.

14. Respondent attributed C.M.’s low potassium and elevated white blood cell count to the multiple episodes of vomiting she had experienced during the evening. Respondent diagnosed C.M. as suffering from food poisoning, which Respondent recorded in the medical record.

15. At 1:30 a.m., on January 3, 1993, C.M. was discharged

    from the Oak Hill emergency department. Upon discharge, Respondent prescribed rest, plenty of fluids, and Phenergen suppositories for nausea. Respondent also advised C.M. to return to the hospital if her symptoms persisted.

16. On January 3, 1998, at approximately 2:30 p.m., C.M.’s X-rays were independently reviewed by the on-call radiologist, Eve M. Jehle, M.D., at Oak Hill Hospital. Dr. Jehle in her report made no observation of an elevated diaphragm which would indicate “free air” in the abdomen and found no evidence of mechanical obstruction.

17. On January 4, 1993, approximately thirty-six hours after her discharge from Oak Hill emergency department, C.M. died at home. Subsequent to her discharge on January 3, 1993, C.M. did not contact Respondent, nor return to Oak Hill Hospital. The autopsy report concluded that C.M. died due to a gangrenous small intestine secondary to adhesions. The autopsy report does not contain any finding of a perforation in the abdomen.

18. The records of Respondent’s treatment and diagnosis of

    
    

    C.M. were reviewed by Lee A. Fischer, an expert witness employed by the Petitioner, and by Henry E. Smoak, M.D., an expert witness employed by the Respondent.

19. Dr. Fischer is board certified in family practice, and is engaged full-time in that specialty. He currently practices in West Palm Beach, Florida. Dr. Fischer had a brief experience

    with emergency room practice during his internship, and also receives calls from emergency department regarding his patients on a regular basis. Dr. Fischer is generally familiar with emergency medicine.

20. Dr. Smoak is board certifed in emergency medicine, and has practiced and taught emergency medicine. Dr. Smoak is also board certified in quality assurance. Dr. Smoak is currently a

    
    

    senior partner of Emergency Physicians of Manatee, Inc., in Bradenton, Florida.

21. Dr. Fischer opined that Respondent failed to meet the standard of care in his treatment of C.M. and failed to keep adequate medical records. In this respect, Dr. Fischer reviewed C.M.’s X-rays and opined that Respondent failed to observe “free air” which would indicate an extremely serious abdominal condition. Dr. Fischer further disagreed with Respondent’s assessment of the diagnostic tests which revealed low potassium levels and an elevated white blood cell count. Dr. Fischer opined that even in an emergency department setting, Respondent’s medical record of the treatment and diagnosis of C.M. fell below acceptable standards due to Respondent’s failure to record specific findings relating to the abdominal examination, i.e. guarding, rigidity, rebound, and bowel sounds. Dr. Fischer also opined that Respondent failed to perform a rectal examination

    which was indicated by C.M.’s symptoms.

    
    

22. Dr. Smoak opined that Respondent’s treatment of C.M. and the medical record regarding the treatment of C.M. have all the components to meet the acceptable standard of care for an emergency room encounter. Dr. Smoak’s opinion is based on the following factors: Respondent reviewed and confirmed C.M.’s history as taken by the admitting nurse; C.M.’s history was properly recorded by Respondent; Respondent performed a physical examination and recorded the results; Respondent ordered the proper diagnostic tests and recorded the ancillary data regarding the laboratory tests; Respondent ordered the appropriate X-rays and properly evaluated the X-rays, which in this respect

    Dr. Smoak concurs with both Dr. Jehle and Respondent in the evaluation of C.M.’s X-rays; Respondent reexamined C.M. and recorded the reexamination results; Respondent’s diagnosis was reasonable under the circumstances and is recorded; and Respondent gave C.M. specific instructions which are properly noted on the medical record prior to discharge.

23. Respondent's treatment and diagnosis of C.M. was reasonable and met the accepted and prevailing standard of care for a reasonably prudent physician practicing emergency medicine under similar conditions and circumstances. It was reasonable for Respondent to attribute C.M.'s low potassium level and elevated white blood cell count to the multiple episodes of

    vomiting and pain she experienced during the two hours before her presentation to Oak Hill emergency department. Respondent's evaluation of her X-rays as nonspecific was reasonable and met the accepted standard of care for an emergency physician under similar conditions and circumstances. As indicated above, Respondent's evaluation of C.M.'s X-rays was independently confirmed by both Dr. Jehle and Dr. Smoak.

24. The medical records made and maintained by Respondent regarding the care and treatment of C.M. met the accepted standard of care for a reasonably prudent physician practicing emergency medicine under similar conditions in 1993. Although Respondent did not specifically document that he palpated the abdomen and tested for rigidity, guarding and rebound pain, his notation of diffuse tenderness of the abdomen indicated the inclusion of such tests in his examination of C.M.

    CONCLUSIONS OF LAW

    
    

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

26. Petitioner has the burden of proving the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Dept. of Banking & Finance v. Osborne Stern, Co., 670 So. 2d 932 (Fla. 1996).

27. "Clear and convincing evidence" requires that the evidence must be found credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and witnesses must be lacking confusion as to facts in issue; 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. Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

28. The evidence is not clear and convincing that Respondent committed the violations alleged in the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint.

DONE AND ENTERED this 25th day of November, 1998, in Tallahassee, Leon County, Florida.

RICHARD A. HIXSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1998.

COPIES FURNISHED:

Britt Thomas, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

H. Roger Lutz, Esquire One Sarasota Tower

Two North Tamiami Trail, Suite 500 Sarasota, Florida 34236

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast Bin A-02

Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel Department of Health

2020 Capital Circle, Southeast Bin A-02

Tallahassee, Florida 32399-1703

Tanya Williams, Executive Director Board of Medicine

Department of Health Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

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: 98-002158

Orders for Case No: 98-002158