STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 99-5034

)

GARY LYNN LOWERY, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a formal hearing was held in this case on September 13, 2000, in Gainesville, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Ella Jane P. Davis.

APPEARANCES

For Petitioner: Robert C. Byerts, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32399-4229

For Respondent: William E. Ruffier, Esquire

108 East Central Boulevard Post Office Box 753

Orlando, Florida 32802-0753 STATEMENT OF THE ISSUE

Whether Respondent medical physician violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill and treatment recognized by a

reasonably prudent similar physician as being acceptable under similar conditions and circumstances; Subsection 458.331(1)(m), Florida Statutes, by failing to keep medical records to justify the course of treatment of a patient; and/or Subsection 458.33(1)(p), Florida Statutes, by performing surgery at the spinal level of C6-7 without patient consent and without statutory exception.

PRELIMINARY STATEMENT

This case was tried upon an Amended Administrative Complaint referred to the Division of Administrative Hearings on December 3, 1999. By agreement of the parties, the case was initially set for hearing on April 12 and 13, 2000. Also, by request and agreement of the parties, it was continued to July 6 and 7, 2000, and finally to September 13 and 14, 2000. The disputed-fact hearing ultimately required only a one-day hearing on September 13, 2000.

At hearing, Petitioner moved for official recognition of Chapter 458 (particularly Section 458.331), Florida Statutes, and Chapter 64B8-8, Florida Administrative Code. An oral order was entered providing for Petitioner to file, after the hearing, copies of these items as they were worded at all times material and for Respondent to timely object thereafter if the hard copies did not reflect the applicable statutes and rules on the material date(s). On September 14, 2000, Petitioner filed

statutory copies, and on September 28, 2000, Petitioner filed rule copies. There having been no timely objection by Respondent, the rule language contained in these copies have been utilized and applied herein, even though the rule numbers are different than originally requested.

Respondent moved for dismissal of Count III of the Amended Administrative Complaint, relating to lack of patient authorization, which was denied orally, subject to re-visitation in this Recommended Order.

The parties' Joint Pre-hearing Stipulation and oral stipulations during hearing have also been utilized herein, although not verbatim. The recognized Request for Admissions has also been utilized.

At hearing, Petitioner presented the oral testimony of patient R.L. and of Manuel Gonzalez-Perez, M.D. and had 12 exhibits admitted in evidence. Dr. Gonzalez-Perez was accepted as an expert in general orthopedics and spinal surgery.

Respondent presented the oral testimony of Richard Smith, M.D., and testified on his own behalf. Respondent had three exhibits admitted in evidence. Dr. Smith was accepted as an expert in spinal surgery.

Because the parties had failed to redact R.L.'s name from the exhibits, the undersigned instructed the court reporter to

substitute the patient's initials in the transcript and has arranged to return all exhibits to the Board under seal.

A Transcript was filed with the Division on October 26, 2000. Each party's timely-filed Proposed Recommended Order has been considered.

FINDINGS OF FACT

1. Petitioner, through the Board of Medicine, is the state agency which licenses and has regulatory jurisdiction of medical physicians.

2. At all times material, Respondent has been a licensed medical physician in the state of Florida, having been issued license No. ME 0017399. He is board-certified in orthopedic surgery, is a member of many spine-specialized medical societies, and is highly published in the field of spinal surgery. He has devoted 100 percent of his practice to spinal surgery since 1989.

3. On or about August 16, 1991, Patient R.L., then a thirty-two-year-old woman, was referred to Respondent with complaints of neck and shoulder pain due to a work-related accident.

4. On August 16, 1991, Respondent diagnosed R.L. as having cervical spondylosis with radiculopathy, and thoracolumbar scoliosis. He recommended she undergo magnetic resonance

   imaging (MRI) of her cervical spine at North Florida Regional Medical Center (NFRMC).

5. R.L. underwent MRI of her cervical spine at NFRMC on September 20, 1991. The radiologist's report of R.L.'s September 20, 1991, MRI indicated no disc herniation, central stenosis, or foraminal impingement at the C3-4 and C4-5 disc levels or at the C6-7 and C7-T1 levels.

6. The radiologist's report did indicate that at the C5-6 level there was a small abnormal posterior protrusion of disc material, centrally and slightly eccentric towards the right side and that axial images demonstrated a small, right-sided central/right paracentral herniation. The report added that a very mild and early uncontrovertral spurring was noted at this level but was not resulting in impingement for exiting nerve roots.

7. R.L. next saw Respondent on September 24, 1991. On that date, Respondent reviewed R.L.'s cervical spine MRI with her and diagnosed a probable small central and right paracentral herniation at the C5-6 level. Respondent was then of the opinion that the cervical spine MRI did not clearly delineate a disc herniation at R.L.'s C5-6 level. Respondent accordingly recommended that R.L. undergo a myelogram-CT scan. Respondent did not indicate to R.L. that he detected any pathology at C6-7.

8. On October 29, 1991, R.L. underwent a cervical myelogram and CT scan at NFRMC. The radiologist's report indicated an extradural defect at C5-6, which was moderate in size and touched the cord but which did not cause any cord compression. The report also stated that the nerve sleeved well and that there was a very slight posterior subluxaton of C5 on C6 associated with this. The report did not indicate any pathology at C6-7.

9. R.L. next saw Respondent on November 14, 1991. On that date, Respondent reviewed R.L.'s cervical myelogram and CT scan with her, diagnosed a herniated nucleus pulposus at C5-6, and recommended C5-6 anterior cervical fusion with plates. Respondent did not, on that date, indicate to R.L. that he had identified any pathology at C6-7.

10. R.L. testified that before surgery, Respondent did not tell her that he would be removing any disc other than the one at C5-6; that he did not indicate he thought R.L. would need more surgery than the surgery planned at C5-6; or that he might discover something during the planned surgery which would require the removal of any disc different than C5-6.

11. Respondent testified that he did not recall whether he did or did not tell R.L. that C6-7 might some day require an operation or that C6-7 might need work while he was operating on C5-6. His office notes for January 21, 1992, only state

    She returns today for her preoperative visit. The nature and extent of her surgery has been explained to her and she voices understanding.

    
    

12. R.L.'s and Respondent's testimony agree that before surgery, Respondent intended to remove and fuse only at C5-6; that R.L. understood and agreed that Respondent would remove only the disc at level C5-6 and fuse it; and that before surgery, neither of them expected Respondent to operate at a level of R.L.'s cervical spine different than C5-6.

13. Experts for Petitioner and Respondent, (Drs. Gonzalez- Perez and Smith respectively), concurred that if Respondent discussed the proposed procedure, most common and potential risks and complications, and the potential course of rehabilitation with R.L., and if Respondent and R.L. then reached a mutual decision to operate, full disclosure and informed consent had occurred, regardless of whether a written consent form had been filled out and signed.

14. On January 29, 1992, R.L. signed an NFRMC "Authorization for Surgical Treatment and/or Special Procedure" which provided:

    I, the undersigned, a patient in the below named hospital, hereby authorize Dr. Lowery (and whomever he may designate as his assistants) to administer such treatment as is necessary, and to perform the following operation: anterior cervical fusion and instruments with autolugus and/or bone bank bone and such additional operations or

    procedures as are considered therapeutic on the basis of findings during the course of said operation. I also consent to the administration of such anesthetics as are necessary with the exception of none. Any tissues or parts surgically removed may be disposed of by the hospital in accordance with accustomed practice. I hereby certify that I have read and fully understand the above AUTHORIZATION FOR SURGICAL TREATMENT,

    the reasons why the above-named surgery is considered necessary, its advantage and the possible complications, if any, as well as possible alternative modes of treatment, which were explained to me by Dr. Lowery. I also certify that no guarantee or assurance has been made as to the results that may be obtained (Underlined portions were written in; the remainder was pre-printed).

    
    

15. The foregoing hospital authorization did not identify the level of the cervical spine where the procedure would be performed. It merely indicated that an anterior cervical fusion would be performed, without stating which of the seven vertebrae were intended to be fused. Dr. Gonzalez-Perez, Petitioner's expert witness, testified that this is not the type of release a reasonable and prudent physician would use for informed consent.

16. Petitioner contends that Respondent's use of the authorization form deviated from the level of care, skill, and treatment recognized by a reasonable and prudent physician as being acceptable under similar facts and circumstances, but even Petitioner's expert, Dr. Gonzalez-Perez, testified that such a form is usually filled-out by a nurse employed by the hospital, and that if Respondent and R.L. went through an informed consent

    conversation prior to surgery, that would be sufficient, without a written acknowledgement or authorization, for Respondent to have met the standard of care for informed consent and patient pre-authorization for surgery at the mutually understood level of C5-6.

17. On February 3, 1992, Respondent performed an anterior cervical fusion with plates on R.L. at NFRMC, with the intention of operating at the C5-6 level of R.L.'s cervical spine. In doing so, he utilized a portable fluoroscopy unit, intraoperatively, to ascertain the correct level of R.L.'s cervical spine for the anterior cervical fusion with plates.

18. The success of such a procedure depends upon properly identifying the pathological discs. It is critical to correctly ascertain the site where the surgery is to be performed.

    Failure to correctly identify the location for surgery can result in a failure to perform the intended surgery, a failure to resolve the problem which required the surgery, and/or performing surgery in a location not requiring surgery.

19. The method Respondent used was to palpate the boney structures, make an incision to the vertebral bodies, insert a single needle, take an X-ray, and see if the needle had correctly located where surgery should take place.

20. Respondent's expert, Dr. Smith, and Respondent testified that they prefer the one-needle method utilized by Respondent.

21. Dr. Gonzalez-Perez admitted that use of X-rays, including fluoroscopy in the operating room in order to locate the level of the operation is the "gold standard" of care in this type of orthopedic surgery. He would have used a two- needle technique for locating and checking the location of the surgical site, but even he considered the one-needle method to constitute acceptable medical practice.

22. In R.L.'s case, Respondent placed the single needle at the C7-T1 level, and the fluoroscopic lateral spot films of R.L.'s cervical spine obtained in the operating room showed the needle at the C7-T1 level.

23. Respondent, however, concluded incorrectly that the fluoroscopic lateral spot films showed a needle at the C6-7 level. Respondent miscounted from the vertebra landmark of what he thought was C-2, and removed and fused the wrong disc.

24. On February 3, 1992, after drawing the conclusion that the intraoperative fluoroscopic lateral spot films showed a needle at the C6-7 level of R.L.'s cervical spine, Respondent proceeded with an anterior cervical fusion with plates at what he assumed was the C5-6 level of R.L.'s cervical spine, which, in fact, was the C6-7 level. Respondent, in fact, performed an

    anterior cervical fusion with plates at the C6-7 level of R.L.'s cervical spine.

25. Respondent surmised in his testimony that he had been confused because on R.L., the C-2 and C-3 structures were very similar.

26. Dr. Gonzalez-Perez maintained that Respondent should have been able to locate the correct level based on the jaw bone and part of the skull being visible in the first and pre-removal X-ray (lower image of P-7). Respondent disagreed that skull and jaw are the best landmarks.

27. Dr. Smith testified that C-2 and C-3 look similar due to their scalloped edges, but either would be an appropriate point from which to begin counting. He, personally, would normally begin counting with C-2, which is a very distinctive- looking vertebra. He opined that even reasonable and prudent physicians can make mistakes in counting and removing the wrong disc.

28. Dr. Gonzalez-Perez felt that Respondent could have and should have involved others in the operating room in counting vertebrae and selecting the surgical location. Respondent disagreed, maintaining that only the surgeon should make such a decision. Dr. Smith testified that he, personally, asks someone else in the operating room to check him after he has counted.

29. Petitioner contends that by failing to correctly identify the level of the spine and to make certain of the operative level before proceeding, Respondent failed to practice with the level of care, skill and treatment which is recognized by a reasonable and prudent medical physician under similar facts and circumstances as being acceptable and that Respondent had the information and should have been able to properly and correctly count the levels of the cervical spine and find the appropriate disc. However, even Petitioner's expert, Dr. Gonzalez-Perez, testified that Respondent met the standard of care up to the point at which Respondent performed the actual operation, and that operating at an unintended level is a known complication of such surgery, as stated in the textbooks.

30. Respondent testified that during the surgery, he found a disc fragment and a tear in the posterior longitudinal ligament (PLL) at the wrong level (C6-7) where he removed the wrong disc, and that during the surgery, he relied upon this discovery as indicative that he was operating at the correct location/level (C5-6).

31. Respondent testified that he removed the piece of disc at C6-7 in one piece, found a rent in the PLL behind it, and believed the pathology he had found corresponded to what he had expected to find at the C5-6 level, based on his preoperative evaluation.

32. Dr. Gonzalez-Perez testified that a rent in the PLL cannot be seen until the disc is removed, so viewing it does not verify the location at which a discectomy should occur. He also stated that although a surgeon tries not to push down, occasionally s/he must dig in and push tissue to the back so as to remove the desired tissue and that portions of the disc may remain in the disc space until they are scooped out. Therefore, the procedure itself can result in a tear of the PLL.

33. In light of the pre-operative tests not showing disc material or a PLL tear, Petitioner urges that the conclusion be drawn that Respondent's surgery itself caused the tear and protrusion at R.L.'s C6-7 level, but Dr. Gonzalez-Perez did not clearly state such a conclusion.

34. Dr. Smith testified that finding such pathology after beginning the disc removal would have been a comforting (re- enforcing) sign to any surgeon that s/he had operated at the correct level, but Dr. Smith acknowledged that such a sign would not identify the correct disc for removal before removal actually began.

35. Due to the superiority of Respondent's and Dr. Smith's cervical spine surgical experience over that of Dr. Gonzalez- Perez, who does only an average of two cervical spine operations per year, and due to Respondent's explanation of how the PLL/annulus structures differ in the cervical spine from the

    lumbar spine, it is found that even if the Respondent did not see the disc fragment and PLL rent until after he began removal of the C6-7 disc, the pathology at C6-7 reasonably reinforced Respondent's belief that he was operating in the correct location of C5-6 for the duration of the operation.

36. No one clearly testified that the C6-7 removal and fusion was necessary on February 3, 1992, or that it would become necessary at some later date.

37. Likewise, no one clearly testified that the removal and fusion at C6-7 was not necessary on February 3, 1992, or would not have become necessary later.

38. Dr. Smith testified that in his pre-operative discussions with his own patients, they usually tell him to fix any additional unexpected pathology he finds once he begins an operation.

39. The evidence falls short of being clear and convincing that the wrong disc removal and fusion on February 3, 1992, resulted in any subsequent damage to R.L.'s spine.

40. While still in the operating room, Respondent checked his work with a second fluoroscopic image (upper image of P-7). Respondent and both experts agreed that this second image would cause a surgeon who thought he had counted correctly to assume he had removed the correct disc and created a good fusion at the correct level. However, the two experts concurred that there

    were no clear landmarks whatsoever on this view to show that the operation had occurred at either the correct or the incorrect level.

41. Respondent's operative report for the February 3, 1992, procedure incorrectly described removal of the C5-6 disc space.

42. On February 4, 1992, postoperative X-rays taken at NFRMC showed that the anterior cervical fusion with plates had, in fact, been performed at the wrong level, C6-7, of R.L.'s cervical spine. Copies of the report concerning the X-rays were supplied to Respondent at about that time. About a week later, the radiologist's narrative to the same effect was provided to Respondent. Nonetheless, Respondent did not discover his error for nearly six months.

43. After the surgery, R.L. continued to experience pain, presumably because she still had the same uncorrected, pre- operative problem at C5-6.

44. R.L. returned to Respondent on an outpatient basis on February 11, 1992. On that date, Respondent performed a radiographic examination of R.L.'s cervical spine but made no mention to her that the anterior cervical fusion with plates had been performed at the wrong level. He made no such notation in her chart. Respondent told R.L. that he had looked at the X- rays and everything had gone well and everything looked good.

45. R.L. next saw Respondent on March 12, 1992, when he again performed a radiographic examination of R.L.'s cervical spine. At that time, Respondent made no mention of the C6-7 level of the anterior cervical fusion with plates in her chart and again did not tell R.L. that he had removed the wrong disc and fused the wrong location.

46. R.L. next saw Respondent on April 23, 1992, and again Respondent did not reveal his error to R.L., but he did make a narrative note to her chart which stated that R.L. "is now approximately eleven weeks from having an ACF, C6-7."

47. Even so, Respondent did not discover he had operated on the incorrect level until R.L.'s July 23, 1992 visit, at which time, he informed R.L. what had occurred.

48. Respondent's July 23, 1992, narrative note for R.L.'s chart makes the statement that

    I have explained that there is a discrepancy in her clinical exam and also the intraoperative findings and postoperative x- rays, both to the patient and her rehabilitation counselor, Ms. Terry L. Smith, R.N.

    
    

49. Respondent clearly remembered the presence of the nurse on July 23, 1992.1

50. Dr. Gonzalez-Perez opined that Respondent's performance was acceptable up to the operation itself, but was not up to the acceptable level of care thereafter, because from

    the first (lower image P-7) fluoroscopy image, Respondent should have been able to tell the needle was on the wrong level by counting vertebrae; because Respondent should have involved others in the operating room in analyzing the X-ray; because Respondent should not have removed the C6-7 disc, based on his own preoperative work-up; and because Respondent should not have relied on the rent and fragmentation at C6-7 to confirm his conclusion that he was operating at the correct level/location.

51. Dr. Gonzalez-Perez faulted Respondent's record-keeping for failing to write in a recommendation; because his records did not justify the removal and fusion at C6-7; and because Respondent did not follow his own initial surgical plan.

52. Ultimately, however, Dr. Gonzalez-Perez testified that it is not "malpractice" to operate at the wrong level, provided the error is discovered at the end of the operation, because one may decide to re-operate correctly.

53. Dr. Smith's opinion was that an acceptable level of care had been met if Respondent informed the patient of his error once he discovered it.

54. There is no dispute that at the July 1992 office visit, Respondent offered to do the C5-6 surgery for R.L. immediately.

55. Respondent has had no prior or subsequent disciplinary actions against him. This event occurred three years after he

    began to devote himself exclusively to spinal surgery. Eight years have passed since this event. There is no evidence of any other level of practice problem of any kind.

    CONCLUSIONS OF LAW

    
    

56. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this cause pursuant to Section 120.57(1), Florida Statutes.

57. The duty to go forward and burden of proof by clear and convincing evidence is upon Petitioner. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

58. Respondent is charged under the following 1991 statutes:

    458.331(1) Grounds for disciplinary action; action by the board department. --

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

       
       

       * * *

       
       

       (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, dispenses, or administered; and reports of consultations and hospitalizations.

       
       

       * * *

       
       

       (p) Performing professional services which have not been duly authorized by the patient or client, or his legal representative, except as provided in s. 743.064 s. 766.103, or 768.13.

       * * *

       
       

       (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. . . . 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.

       
       

59. As to Count I of the Amended Administrative Complaint, it is concluded that Respondent 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. Respondent took and looked at the first intraoperative X-ray, miscalculated, did not call on other staff to assist in identifying the location level of operation, removed the wrong disc, took his own second X-ray without adequate landmarks, and failed to document accurately what he had actually done. He also failed to recognize his error in a timely manner. For six months, he did not connect the February 4, 1992, radiologist's report of a fusion at C6-7 with his pre-operative plan to fuse at C5-6. For six months, he

    took and looked at X-rays showing the C6-7 fusion and did not see the continuing problem at C5-6 despite R.L.'s complaints of pain. Nor, by comparing his pre-surgical plan to successive post-operative X-rays, did he see that he had operated at the wrong level of C6-7. Consequently, he also repeatedly failed to document in the patient's chart and/or his office notes that he had operated at the wrong level. See Section 458.331(1)(t), Florida Statutes, and Agency for Health Care Administration v.

    Sanchez, DOAH Case No. 95-3925 (Recommended Order entered October 19, 1995; Final Order entered January 26, 1996).

60. There is, however, no showing of malice, fraud, gross or repeated malpractice, or incompetency. There is no showing beyond simple mistake or negligence. There are, however, many mitigating factors. See Conclusion of Law 66.

61. For the same reasons, it is concluded as to Count II of the Amended Administrative Complaint that Respondent failed to keep medical records that justified the course of treatment of the patient because Respondent persisted in documenting an operation according to plan in the face of reports and X-rays pointing to a C6-7 operation at the wrong level having been performed. No evidence herein shows the C6-7 operation to have been necessary. See Section 458.331(1)(m), Florida Statutes, and Agency for Health Care Administration v. Sanchez, supra.

62. Respondent has moved to dismiss Count III of the Amended Administrative Complaint on the theory that it is solely addressed to the hospital authorization form. Respondent contends that the evidence shows it was not Respondent's form, that he received an oral informed consent from R.L., and that both medical experts testified that as long as Respondent and patient went through an oral process of informed consent, then Respondent met the appropriate standard of care. Respondent further asserts, that Subsection 458.331(1)(p), Florida Statutes, implies proscription only of an intentional act to perform services not authorized by the patient.

63. The motion is denied. The evidence does show that the authorization form was that of the hospital, not Respondent's form, and that Respondent fulfilled the necessary functions associated with getting R.L.'s oral authorization of a discectomy and fusion at C5-6. However, Respondent did not get authorization from R.L. for an operation at C6-7. Respondent may not be prosecuted for the flaws of the hospital authorization form in its failure to name the proposed level of operation. Respondent likewise cannot rely on its language permitting him "to perform . . . such additional operations or procedures as are considered therapeutic on the basis of findings during the course of said operation," (see Finding of

    Fact 14), in the face of R.L.'s unrefuted testimony that

    Respondent never explained to her the risks of removing the wrong disc and that he never got her agreement that he could repair other structures he found damaged after he had commenced the operation (see Findings of Fact 10-11).

64. Under these circumstances, when he operated at C6-7 instead of C5-6, Respondent violated Subsection 458.331(1)(p), Florida Statutes, by performing professional services which had not been duly authorized by the patient. See Agency for Health

    Care Administration v. Sanchez, supra. Sections 743.064, 766.103, and 768.13, Florida Statutes, are irrelevant here.

65. By the terms of Rule 21M-20.001, Florida Administrative Code, the Board of Medicine may impose discipline ranging from two years of probation to revocation of license and an administrative fine from $250.00 to $5,000.00 for violating Subsection 458.331(1)(a), Florida Statutes, but that rule is predicated on a finding of "malpractice." For violating Subsection 458.331(1)(m), Florida Statutes, the rule provides for a reprimand or two years' suspension followed by probation and an administrative fine from $250.00 to $,5000.00. For a violation of Subsection 458.331(1)(p), Florida Statutes, the penalty range is from a reprimand to two-year suspension and an administrative fine from $250.00 to $5,000.00.

66. Having said that, it is noted that Respondent has had an exemplary record over the eight years and hundreds of

    cervical spine operations intervening since this single incident; that his 1992 operational error did not affirmatively harm the patient but merely delayed alleviation of her pain; and that it is unclear whether the operation he performed at the wrong level might eventually have had to be performed anyway.

67. It is also noted that the highly qualified Dr. Smith considered that Respondent met the level of care in most respects, and that even Petitioner's Proposed Recommended Order prays for relief only as follows: "It is concluded that an administrative fine of $5,000 is more than reasonable in addition to a reprimand." (Emphasis supplied)

68. Upon consideration, it is concluded that this case does not warrant a "more than reasonable" penalty. By applying Rule 21M-20.001(3)(a), (c), (d), (e), (f), and (g), including but not limited to the factors specifically outlined in Conclusions of Law 60 and 66-67, that an appropriate penalty is a reprimand and a $750.00 fine.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That the Board of Medicine enter a final order finding

Respondent guilty of violating Subsections 458.331(1)(m),(p),

and (t), Florida Statutes, with mitigating circumstances, reprimanding him for same, and imposing a $750.00 fine.

DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 28th day of December, 2000.

ENDNOTE

1/ Because of R.L.'s vagueness about dates and the evidence of the office notes, I have accepted Respondent's testimony that he only discovered or was sure of his error in July and immediately told R.L. and her nurse and have discounted R.L.'s testimony that on either the second or third visit, which would have been the March or April visit, while her nurse was with her, Respondent told her there was a "discrepancy" which reduced R.L. to tears and that Respondent waited until she was alone in July to tell her that he had removed and fused the wrong disc.

COPIES FURNISHED:

Robert C. Byerts, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32317-4221

William E. Ruffier, Esquire

108 East Central Boulevard Post Office Box 753

Orlando, Florida 32802-0753

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

Tanya Williams, Executive Director Department of Health

4052 Bald Cypress Way 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: 99-005034

Orders for Case No: 99-005034