STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 99-1417

)

ERNESTO SINDA COLINA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the final hearing was held in this case on March 8, 2000, by video teleconference at sites in Tampa and Tallahassee, Florida, before Carolyn S. Holifield, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristy M. Johnson, Esquire

Department of Health Post Office Box 14229

Tallahassee, Florida 32317-4229 For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether Respondent, Ernesto Sinda Colina, M.D., violated Section 458.33(1)(t) and (v), Florida Statutes, as alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against Respondent's license to practice medicine.

PRELIMINARY STATEMENT

On February 10, 1999, Petitioner, the Department of Health (Department), filed an Administrative Complaint against Respondent, Ernesto Sinda Colina, M.D. (Respondent), alleging in two counts that Respondent violated Section 458.33(1)(t) and (v), Florida Statutes.

Count One of the Administrative Complaint (Complaint) alleged that Respondent violated Section 458.33(1)(t), Florida Statutes, by failing to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Count Two of the Complaint alleged that Respondent violated Section 458.333(1)(v), Florida Statutes, by practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knew or had reason to know that he was not competent to perform.

Respondent challenged the charges and timely requested a formal hearing. On or about March 31, 1999, the Department forwarded the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the formal hearing. A Notice of Hearing issued April 22, 1999, set the formal hearing for August 25 and 26, 1999. Subsequently, the Department filed a unopposed Motion to Continue, which was granted. The final hearing was then rescheduled for September 29

and 30, 1999, but was cancelled after the parties jointly moved to hold the matter in abeyance. On November 19, 1999, Petitioner moved to set the case for hearing, and pursuant to Notice of Hearing issued December 28, 1999, the final hearing was scheduled and conducted as described above.

Prior to the final hearing, Petitioner filed a Notice of Intent to Deem Admissions as admitted. Upon review of the record, the undersigned determined that the admissions were served on Respondent August 25, 1999, and that Respondent failed to answer or object to said admissions. Therefore, in accordance with Rule 1.370, Florida Rules of Civil Procedure, the matters contained in the Admissions served upon Respondent are deemed admitted and required no proof.

At hearing, Petitioner offered and had 14 exhibits received into evidence. These exhibits included: the video deposition of Charles Jackson, M.D. (Exhibit No. 4); the deposition transcript of Charles Jackson, M.D. (Exhibit No. 6); the video deposition of Elias Jacobo, M.D. (Exhibit No. 7); and the deposition transcript of Elias Jacobo, M.D. (Exhibit No. 10).

In January 2000, after withdrawing from the case, Respondent's former attorney, provided Respondent with a copy of the Notice of Hearing. However, Respondent failed to appear at hearing and no documentary evidence or testimony was presented on his behalf.

A copy of the Transcript was filed on March 17, 2000.

Petitioner filed a Proposed Recommended Order on March 27, 2000. No post-hearing submittal was filed by Respondent.

FINDINGS OF FACT

1. Respondent, Ernesto Sinda Colina, M.D. (Respondent), is and has been at all times material hereto, a licensed physician in the State of Florida, having been issued License

   No. ME-0031020.

   
   

2. Respondent's last known address is 4002 West Thonotosassa Road, Plant City, Florida 33565-8593.

3. On or about December 1, 1993, Patient E.C., a 61-year- old male, presented to the Orlando Vascular Clinic (Clinic) for evaluation of impotence. Respondent was the physician at the Clinic who treated Patient E.C.

4. The evaluation included three visits, beginning with laboratory studies, physical examination, and concluding on December 7, 1993, with the injection of Prostaglandin E-1 into the corpora of Patient E.C.'s penis by order of Respondent. The injection of Prostaglandin E-1 produced an immediate erection which did not subside and became painful.

5. On December 9, 1993, Patient E.C. contacted the Clinic complaining of an erection and discomfort and was advised to take Ibuprofen and pack the penis in ice. However, the rigidity persisted.

6. Later on December 9, 1993, Patient E.C. presented to the South Seminole Hospital Emergency Room for further evaluation of a priapism (persistent erection of the penis, accompanied by pain and tenderness, resulting from a pathologic condition rather than sexual desire) of approximately 56 hours' duration.

7. On December 9, 1993, Patient E.C. was seen by Elias Jacobo, M.D., who irrigated Patient E.C.'s corpora with normal saline and Heparin, evacuating old clots under sterile conditions and with antibiotic coverage.

8. On December 10, 1993, Patient E.C. was re-evaluated because the priapism was continuing.

9. On January 17, 1994, Patient E.C. returned to Dr. Jacobo due to recurrence of the priapism with tenderness and evidence of infection. That same day Patient E.C. was admitted to South Seminole Hospital (hospital) in Longwood, Florida.

10. After Patient E.C.'s admission to the hospital, he was taken to the operating room where his corpora was drained, explored, and irrigated with alpha agonist ephedrine. The surgical procedure was performed by Dr. Jacobo.

11. Patient E.C. was seen in consultation by an infectious disease specialist and maintained on antibiotics. The diagnosis was corporitis, which gradually resolved with proper drainage and antibiotic therapy.

12. An injection of Prostaglandin E-1 may be used for the treatment of impotence. However, once the injection is given,

    the physician should monitor the patient's progress to determine what degree of rigidity is achieved over a given period of time and then make dosage adjustments. Moreover, the patient should be advised of the potential complications of procedures, such as priapism and infection. Finally, the patient should be instructed to return for an evaluation if the rigidity persists longer than four to six hours.

13. Respondent failed to inform Patient E.C. of the risks of iatrogenic priapism, and failed to instruct Patient E.C. to return for immediate evaluation within four to six hours of persistent rigidity.

14. Ibuprofen has no effect on reversing the effects of the Prostaglandin E-1. Recommending Ibuprofen and ice packs is inadequate treatment and is below 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 the treatment of Patient E.C.

15. The management of impotence with pharmacologic erection programs with injectible agents should be performed by or under the supervision of a specialist trained in the treatment of impotence, such as urology. Respondent had no such specialized training and the treatment of Patient E.C. without training was below the standard of care.

16. Patient E.C. suffered permanent damage as a result of Respondent's treatment, which fell below the standard of care.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding, pursuant to Sections 120.569, 120.57(1), and 455.225, Florida Statutes.

18. Pursuant to Section 458.331(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend, or otherwise discipline the license of a physician for the offenses enumerated in Section 458.331(1), Florida Statutes. Section 458.331, Florida Statutes, provides in pertinent part:

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       
       

       * * *

       
       

       (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. . . .

       
       

       * * *

       
       

       (v) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform. . . .

       
       

       * * *

       
       

    2. When the board finds any person guilty of any of the grounds set forth in subsection (1), including conduct that would constitute a substantial violation of subsection (1) which occurred prior to licensure, it may

       enter an order imposing one or more of the following penalties:

       1. Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration.

       2. Revocation or suspension of a license.

       3. Restriction of practice.

       4. Imposition of an administrative fine not to exceed $10,000 for each count or separate offense.

       5. Issuance of a reprimand.

       6. Placement of the physician on probation for a period of time and subject to such conditions as the board 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.

       7. Issuance of a letter of concern.

       8. Corrective action.

       9. Refund of fees billed to and collected from the patient.

          
          

19. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining vs. Florida Real Estate Commission, 281

    So. 2d 487 (Fla. 1973). In this disciplinary licensing proceeding, Petitioner must prove the alleged violations of Section 458.331(1)(t) and (v), Florida Statutes, by clear and convincing evidence. Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987).

20. Count I of the Complaint alleges that Respondent violated Section 458.331(1)(t), Florida Statutes, by (1) treating impotence with Protaglandin E-1; (2) recommending Ibuprofen to counteract the priapism; (3) failing to inform Patient E.C. of the risks of itrogenci priapism; (4) failing to instruct Patient

    E.C. to return for immediate evaluation within four to six hours

    of persistent rigidity, and (5) attempting to manage impotence with pharmacologic erection programs with injectible vasoactive agents without or under the supervision of a specialist trained in the treatment of impotence, such as urology.

21. According to the Respondent's admissions and the deposition testimony of both Dr. Jackson and Dr. Jacobo, Respondent practiced medicine below that level of care, skill, and treatment which is recognized by a reasonably similar physician as being acceptable under similar conditions and circumstances in the treatment of Patient E.C. The Petitioner has proven by clear and convincing evidence that Respondent violated Section 458.331(1)(t), Florida Statutes, as alleged in Count One of the Administrative Complaint.

22. Count Two of the Complaint alleges that Respondent violated Section 458.331(1)(v), Florida Statutes, in that Respondent accepted and performed professional responsibilities which the licensee knew or had reason to know that he was not competent to perform. Respondent undertook the treatment of Patent E.C.'s impotence through a pharmacologic erection program with injectible vasoactive agents without having the necessary training or practicing under the supervision of a specialist trained in the treatment of impotence, such as urology.

23. According to Dr. Jackson, Dr. Jacobo, Respondent's admissions and Respondent's Curriculum Vitae, Respondent had no such specialized training in the treatment of impotence through a

    pharmacological erection program with injectible vasoactive agents. Furthermore, the treatment of Patient E.C. in the manner utilized by Respondent required such training or supervision by a properly trained physician. The Petitioner has established by clear and convincing evidence that Respondent violated Section 458.331(1)(v), Florida Statutes, as alleged in Count Two of the Complaint.

24. The disciplinary guidelines of the Department of Health, Board of Medicine, found at Rule 64B8-8.001, Florida Administrative Code, provide a range of penalties for violations of the provisions of Section 458.331, Florida Statutes. In arriving at an appropriate penalty in the instant case, consideration has been given to the guidelines set forth in that rule.

RECOMMENDATION

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

RECOMMENDED that Respondent's license to practice medicine in the State of Florida be revoked.

DONE AND ENTERED this 27th day of April, 2000, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2000.

COPIES FURNISHED:

Kristy M. Johnson, Esquire Department of Health

Post Office Box 14229 Tallahassee, Florida 32317-4229

Ernesto Sinda Colina, M.D. 4002 West Thonotosassa Road

Plant City, Florida 33565-8593

Tanya Williams, Executive Director Board of Medicine

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast BIN A02

Tallahassee, Florida 32399-1701

William Large, General Counsel Department of Health

2020 Capital Circle, Southeast BIN A02

Tallahassee, Florida 32399-1701

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: 99-001417

Orders for Case No: 99-001417