vs. ) Case No. 00-1535
MARTHA N. M. PILAPIL, M.D., )
Respondent. )
A hearing was held in this case in Tampa, Florida, on January 9, 2001, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Bruce A. Campbell, Esquire
For Respondent: William B. Taylor, IV, Esquire
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.
Kathryn L. Kasprzak, Chief Medical Attorney for the Department of Health, charged Respondent, Martha M. N. Pilapil, M.D., with failure to practice medicine with a level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances (Count One); and with failing to document an adequate and thorough medical assessment of the patient A.H. on September 12, 1994 (Count Two), both in violation of Section 458.331(1), Florida Statutes. On March 28, 2000, Respondent signed an Election of Rights form disputing the allegations of fact and demanding a formal hearing. This hearing ensued.
At the hearing, Petitioner presented the testimony of Dr. Jack N. Rothman, a gynecologist in private practice in Dunedin, Florida, and an expert in the private practice of gynecology. Petitioner also introduced Petitioner's Exhibits
1 through 12. Respondent testified in her own behalf and presented the testimony of Dr. William S. Roberts, an obstetrician/gynecologist certified by the American Board of Obstetrics and Gynecology, a former professor at the
University of South Florida School of Medicine and at the Moffett Cancer Center in Tampa, and currently in practice at the Watson Clinic in Lakeland. Respondent also introduced Respondent's Exhibits A through C. The undersigned officially recognized Section 458.331(1), Florida Statutes (1993 Ed.), and Rules 64B-9.009 and 59R-8.001, Florida Administrative Code.
A Transcript of the proceedings was furnished on January 26, 2001. Subsequent to the receipt thereof, counsel for both parties submitted matters in writing which have been carefully considered in the preparation of this Recommended Order.
At all times pertinent to the issues herein, the Board of Medicine (Board) was the state agency in Florida responsible for the licensing of physicians and the regulation of the medical profession in this state. Respondent was licensed as a physician in Florida, holding license number ME 0037873.
On August 8, 1994, Respondent was practicing medicine at her office located at 175 U.S. Highway 17 North in Bartow, Florida. On that date, A.H., a 33-year-old female, came to Respondent's office complaining of irregular vaginal bleeding. Respondent took a complete medical history from A.H.,
determining that she was sexually active and had not had a Papanicolaou (PAP) smear in ten years.
Respondent also did a complete physical examination of A.H., including a pelvic examination, and took a PAP smear for forwarding to the laboratory. As a result of this examination, Respondent determined that A.H. had harsh breath, and observed that she had a friable cervix with a heavy, yellowish discharge which indicated to Respondent the possibility of infection. Cervitis is an inflammation of the cervix which is very common in sexually active women. To treat the infection, Respondent gave A.H. a prescription for Ampicillin, an anti-biotic, and an anti-biotic vaginal cream.
The PAP smear taken by Respondent on that visit was sent to the laboratory, Allied Clinical Laboratories in St. Petersburg, for analysis. The lab report, dated August 17, 1994, revealed that though the specimen taken was satisfactory, it was limited by the amount of blood it contained which obscured the cells and because of the absence of an endocervical component. Nonetheless, the lab concluded that the sample showed an epithelial cell abnormality and atypical squamous cells of undetermined significance. Noteworthy, however, is the comment that the cellular changes might be associated with human papilloma virus, a virus which is known to be related to cervical cancer. Respondent did not
tell A.H. she had the papilloma virus, but only that she might have it. Infections by the human papilloma virus are, according to Respondent, fairly common, but it is not known to be treatable. In the opinion of Dr. Roberts, Respondent's expert, who did not see the patient but who reviewed the medical records, it is most likely that A.H. had cancer at the time of the PAP smear.
When Respondent read the lab report she had her receptionist prepare a letter to A.H., which Respondent signed, requesting that the patient make an appointment to come into the office to discuss the abnormal results of the test. This letter was dated September 5, 1994.
A.H. came to Respondent's office on September 12, 1994, at which time Respondent explained what the results of the PAP smear reading were and gave her a pamphlet on the subject which is used in programs conducted by the American Medical Association. Respondent also explained to A.H. what the human papilloma virus is and what it can do. She gave
A.H. samples of a vaginal cream, Zovrax, used to treat genital herpes. Though Zovrax is not marketed as a treatment for the papilloma virus, after consultation with colleagues, Respondent concluded that since both were infectious viruses of the genital tract, the Zovrax would not hurt A.H. and, conceivably, could help her.
When A.H. came to Respondent's office on September 12, 1994, she told Respondent that she no longer had a vaginal discharge. Based on that representation, Respondent concluded that the infection was cured though she did not do a pelvic examination of the patient to verify her conclusion. The patient also reported that she had no vaginal bleeding, either, or other complaints. Therefore, since the purpose of that visit was to brief the patient on the results of the PAP smear, without any complaint by the patient Respondent saw no reason to do an examination. At that time, Respondent was aware that A.H. had seen Dr. Monreal for a pelvic ultra-sound examination. Respondent could not recall at hearing if she had the results of that procedure at the time of the patient's September 12, 1994, visit. However, the records reflect that on September 26, 1994, the ultra-sound results were phoned to the patient, and a yearly check-up recommended. Dr. Roberts is of the opinion that this action was appropriate.
On November 7, 1994, just about three months after
the first PAP smear was taken, A.H. again came to Respondent's office for a repeat of the test. At this time, Respondent did a pelvic examination of A.H. and took a PAP smear, but again, because the patient was bleeding, she felt it would be useless to send it to the lab. It was her opinion at the time that the bleeding would prevent a meaningful and accurate reading.
Medical expert opinion agrees. Because of this, therefore, Respondent told the patient she would not send the specimen to the lab for analysis. She advised the patient to wait until the bleeding stopped, expected to be only a few days, and then come in for a new smear. However, Respondent did not schedule another appointment for this at that time because she did not know when the patient would stop bleeding.
Nonetheless, Respondent, on several occasions thereafter, requested her nurse to call A.H. and ask her to come in. Respondent claims this was done, but does not know when or how often. The fact remains that the patient, A.H., did not come back, and Respondent did not hear from the patient again until her claim alleging medical malpractice was filed.
According to Dr. Rothman, the Board's expert, the lab report of the PAP smear done on August 4, 1994, was an incomplete evaluation. Nonetheless, he found Respondent's actions up to the time she did the examination and prescribed the anti-biotics to be within standards. The use of anti- biotics is an appropriate response to inflammation. Also prudent was Respondent's September 5, 1994, letter to A.H. asking her to come into the office to discuss the abnormal results of the PAP smear.
Regarding the September 12, 1994, visit, Dr. Rothman notes that no PAP smear was done on that visit. Based on the patient's condition and her prior medical record, Dr. Rothman is of the opinion it would have been appropriate for Respondent to do another one. However, he does not consider the failure to do so to be a violation of the standard of care in the community because Respondent did have the patient come in for a follow-up PAP smear in early November, 1994, just about three months after the first. This is an appropriate period.
However, Dr. Rothman, who opined that Respondent's actions through September 26, 1994, met standards, felt otherwise regarding her actions on November 7, 1994. He contends that Respondent had an obligation to follow-up on the patient's abnormal PAP smear and the continued bleeding by doing another PAP smear, by doing a biopsy, and/or by arranging for culdoscopy, and by placing adequate documentation in the records as to what her intentions were. The medical records are devoid of any showing of affirmative action by Respondent to complete a diagnosis and implement treatment.
Nevertheless, Respondent's decision to defer further action pending the ability to obtain a proper PAP smear was found by Dr. Rothman to be well within standards even though
he was unable, from the records, to determine what efforts Respondent made to get the patient back into the office.
However, he admits that lack of record is not that important. A physician cannot force a patient to return for treatment or diagnosis.
Dr. Roberts, the Board-certified physician testifying on behalf of Respondent, reviewed Respondent's records pertaining to A.H. and concluded that Respondent's treatment of this patient met standards. In his opinion, the patient was properly examined and proper initial tests were done, proper disposition of the abnormal PAP smear was made, and the patient's bleeding was properly treated.
Dr. Roberts agrees with Respondent's decision not to send the bloody PAP smear taken on November 7, 1994, for analysis. He agrees with Respondent's telling the patient to come back and with her reliance on her staff to do the follow- up. In his opinion, it is perfectly proper for a physician to rely on a support team if the physician has reason to believe the team is responsible. He can see nothing in Respondent's conduct on November 7, 1994, which did not meet standards.
There is, however, nothing in Respondent's medical records for this patient which memorializes Respondent's direction to her staff or that the follow-up calls were made. These entries should have been made. Further, the records do
not provide entry support for several assumptions Dr. Roberts made in his determination that Respondent's actions were within standards. These were that Respondent told A.H. that her attempted PAP smear on November 7, 1994, was unsuccessful; that it was the intent of Respondent to repeat a PAP smear in the near future; that Respondent told A.H. to return when she was no longer bleeding. The failure of the records to contain this information relating to these assumptions renders them insufficient.
As was previously found, Dr. Roberts is of the opinion that A.H. had cancer at the times she was seen by Respondent. However, none of the symptoms shown by the patient, considering her age and only an abnormal PAP smear, are red flags which should have indicated to Respondent that the patient had cancer. He believes her management of this patient, including her decision not to send in the November 7, 1994, PAP smear for analysis, was appropriate and within standards.
Respondent indicates she has retired from the active practice of medicine and is not practicing at the present time.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Subsection 120.57(1), Florida Statutes.
Petitioner seeks to discipline Respondent's license as a physician in Florida for her alleged failure to practice medicine in her treatment of A.H. with an appropriate level of care, and by failing to keep appropriate medical records in the treatment of that patient, in violation of Subsections 458.335(1)(t) and (m), Florida Statutes, respectively.
Subsection 458.331(1), Florida Statutes, authorizes the Board of Medicine to revoke, suspend, or otherwise discipline the license of a physician for misconduct defined in the subparagraphs thereto. Consistent therewith, Subsection 458.331(1)(t), Florida Statutes, authorizes discipline of a licensee for 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. Further, Subsection 458.331(1)(m), Florida Statutes, authorizes discipline of a licensee for a failure 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.
Rule 59R-9.003(2), Florida Administrative Code, requires that patient records kept by a physician contain sufficient detail to clearly demonstrate why a course of treatment was undertaken or why an alternative course of treatment was not undertaken.
Petitioner has the burden of proof to establish the allegations in this case by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).
Petitioner contends that Respondent's failure on November 7, 1994, to arrange for A.H. to undergo a culdoscopy or cervical biopsy, to advise A.H. to return for a repeat PAP smear, or to arrange for follow-up in the near future, after her initial PAP smear indicated epithelial cell abnormalities with atypical squamous cells, cellular changes associated with human papilloma virus, constitutes practice below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician under similar circumstances as being acceptable under similar conditions and circumstances. Petitioner also contends that Respondent failed to adequately document her patient's condition and her course of diagnosis and treatment thereof.
The evidence of record shows a decided difference of opinion between the experts as to whether Respondent's actions with regard to A.H. constituted adequate medical treatment. Under the circumstances, it cannot be said that the evidence of substandard practice is either clear or convincing.
On the other hand, however, the evidence is both clear and convincing that Respondent failed to document an adequate and thorough medical assessment of A.H. on September 12, 1994. Though at that time she had some indication through the PAP smear results that an abnormal condition existed with regard to the patient, Respondent did not document any diagnosis or plan of treatment to justify the use of the medication she prescribed. Neither did she adequately document her actions on November 7, 1994. This constitutes a violation of Subsection 458.331(1)(m), Florida Statutes.
Rule 59R-8.001, Florida Administrative Code, outlines the disciplinary guidelines for situations wherein actionable misconduct has been shown by a licensee. The rule provides, as to a proven violation of Subsection 458.331(1)(m), Florida Statutes, for imposition of sanctions ranging from a reprimand to revocation of the license and an administrative fine of from $250 to $5,000.
The rule also provides for consideration of prior misconduct is assessing an appropriate penalty. In 1992,
Respondent was disciplined for a violation of Subsection 458.331(1)(t), Florida Statutes. Action taken at that time included the imposition of an administrative fine of $5,000, probation for one year and a requirement to attend twenty hours of continuing medical education.
The Board does not seek revocation in the instant case. The Board recommends an administrative fine of $5,000, and a restriction from practice until such time as Respondent can appear before the Board and demonstrate her capability for skillful and safe practice. In light of the fact that Respondent retired from the active practice of medicine in 1998, assessment of a substantial administrative fine is not appropriate.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order finding Martha N. M. Pilapil not guilty of practice below standards but guilty of a failure to keep adequate medical records regarding her patient A.H.; imposing an administrative fine of $1,000; and placing her license on probation for a period of three years under such terms and conditions as deemed appropriate by the Board.
___________________________________ ARNOLD H. POLLOCK
Bruce A. Campbell, Esquire Agency for Health Care
William B. Taylor, IV, Esquire Macfarlane Ferguson
Theodore M. Henderson, Agency Clerk Department of Health
William W. Large, General Counsel Department of Health
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.
