STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 00-2586

)

JERRY C. LINGLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on October 17, 2000.

APPEARANCES

For Petitioner: Kim M. Kluck

Carol Gregg Senior Attorneys

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Jerry C. Lingle, pro se

1419 Northeast 16th Terrace Fort Lauderdale, Florida 33304

STATEMENT OF THE ISSUES

The issue is whether Respondent is guilty of deviating from the applicable standard of care, in violation of Section 458.331(1)(t), Florida Statutes, and failing to keep adequate medical records, in violation of Section 458.331(1)(m), Florida

Statutes. If so, an additional issue is what penalty the Board of Medicine should impose.

PRELIMINARY STATEMENT

By Administrative Complaint filed May 1, 2000, Petitioner alleged that Respondent performed a brow lift, face and neck lift, and rhinoplasty on A. S. on June 26, 1995. Respondent allegedly failed to document in the operative report details of the surgery, including flap color, vascularity, or bleeding from the flap edges. Respondent allegedly failed to describe the closure of the facelift flap and any modifications necessitated by A. S.’s history of smoking.

The Administrative Complaint alleges that A. S. suffered, as a result of the surgery, significant scar and ear lobe deformities, eyebrow asymmetry, contour deformities in the chin and neck, and nasal asymmetry.

The Administrative Complaint alleges that Respondent saw

A. S. again on August 31, 1995, at which time he noted in his progress notes “healed--good result.” On December 7, 1995, Respondent allegedly added to his progress notes that A. S. would be scheduled for a “Scar Rev. from F/L.” The next day, A. S. allegedly signed an agreement for the surgery, and the agreement stated that Respondent would not charge for the additional services.

The Administrative Complaint alleges that, on December 14, 1995, A. S. signed two consent forms. One form authorized

Respondent to perform “lower bleph repair--dermabrasion neck scar repair indentation nose” and the other authorizing “revision scar Rt. Neck--TCA peel under eyes & dermabrasion.” The Administrative Complaint alleges that Respondent did not discuss with A. S. any plan of treatment, the type of surgical procedures to be performed, alternatives to surgery, or the possible risks or complications associated with the surgery.

The Administrative Complaint alleges that A. S. was scheduled for surgery three times, but, on each occasion, Respondent or the Center for Cosmetic Surgery, at which Respondent worked, canceled the surgery. On the last of these three cancellations, the Administrative Complaint alleges that

A. S. was sedated before being informed that Respondent was ill and would not coming in for surgery, but that A. S. later called the office and learned that Respondent was in the office. The Administrative Complaint alleges that Respondent did not treat

1. S.’s complications in a timely and appropriate manner or refer her to another physician who could provide her timely and appropriate treatment.

   Count One of the Administrative Complaint alleges that Respondent deviated from the applicable standard of care because he failed to conduct and document a physical examination of A. S. prior to surgery; performed surgery that resulted in ear lobe deformities and scarring, eyebrow asymmetry, contour deformities of the neck and chin, and nasal asymmetry and deviation; and

   failed to correct or treat these poor results and complications after informing A. S. that he would provide such treatment.

   Count One alleges that Respondent has thus violated Section 458.331(1)(t), Florida Statutes, by deviating from the applicable standard of care in the practice of medicine.

   Count Two of the Administrative Complaint alleges that Respondent failed to keep written medical records justifying the course of treatment of A. S., including patient histories; examination results; test results; records of drugs prescribed, dispensed, and administered; and reports of consultations and hospitalizations. Count Two alleges that Respondent failed to document A. S.’s major complaints; the results of a physical examination; impressions and diagnoses; the plan of treatment; intraoperative details such as flap color, vascularity, bleeding from the flap edges, or surgical difficulties; and postoperative details such as patient dissatisfaction and complaints, the decision to schedule A. S. for corrective surgery, and the plan of treatment. Count Two alleges that Respondent thus violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations or hospitalizations.

   At the hearing, Petitioner called two witnesses and offered into evidence six exhibits. Respondent called one witness and offered into evidence one exhibits. All exhibits were admitted.

   The court reporter filed the Transcript on November 6, 2000.

   
   

   FINDINGS OF FACT

   
   

   1. At all material times, Respondent has been a licensed physician, holding license number ME 0066606. Respondent has been board certified in plastic surgery since 1983 and is also board certified in hand surgery.

   2. Respondent has previously practiced in Kentucky. He relocated to Florida in 1994 to join a former physician colleague, Dr. Bolt, who had developed cancer and later died in early 1995. Respondent joined the Center for Cosmetic Surgery (Center), which Dr. Bolt had sold to two persons, including Jeff Davis. The record does not disclose whether Mr. Davis is a physician, but Respondent described him and the other principal/owner as felons.

   3. The Center held out Respondent as the medical director. This representation was obviously with Respondent’s knowledge and at least tacit consent. After Dr. Bolt’s death, Respondent recruited three more physicians for the Center, but none of them was board certified in plastic surgery.

   4. Mr. Davis served as the patient coordinator at the Center. The position of patient coordinator had significant marketing responsibilities.

   5. Typically, a prospective patient would contact the Center and schedule a free consultation. At the appointed time, the prospective patient would visit the Center and speak with a physician, such as Respondent. No physical examination would take place. During the discussion, the physician would make notes on a Physician’s Report, which the prospective patient would take to Mr. Davis, whose job was to sell the surgery.

   6. Using incentives such as free nose jobs, Mr. Davis was responsible for pricing surgical procedures and scheduling surgery, once the prospective patient agreed to have a Center physician perform the agreed-upon surgery. Mr. Davis was also responsible for collecting money from patients in payment for their surgery.

   7. Typically, one of Respondent’s patients would schedule surgery two to three months from the date of making the appointment. Before surgery, Respondent would see the patient before surgery for a physical examination and preoperative testing. Respondent determined what preoperative testing was necessary on a patient-by-patient basis. Following this visit, Respondent would dictate the findings from the physical examination and the treatment plan. A transcribing service was responsible for transcribing the dictation and filing it in the patient’s chart.

   8. In May or June of 1996, Respondent provided notice to the principals of the Center that he would be terminating his employment. He terminated his employment on November 1, 1996.

   9. After his departure, Respondent learned that Center employees had misinformed his patients as to Respondent’s nonavailability due to illness or surgery. It is unclear whether this situation existed before Respondent’s announced departure.

   10. Tensions developed between Respondent and the principals of the Center. Respondent determined that he could lawfully contact those patients still needing care, so he sent those patients an announcement that he was associating himself with the American Institute of Plastic Surgery. Litigation between Respondent and the Center principals followed, including a legal action by Respondent to obtain patient records. The litigation over the records concluded with the agreement by the Center to provide records as needed, but they have provided Respondent with incomplete records.

   11. A. S. first contacted the Center in June 1995 after seeing an advertisement on television. She chose the Center and two other facilities for plastic surgery that she was considering.

   12. At the time, A. S. was 48 years old. Wanting to improve her appearance, A. S. wanted a face lift and work on her lower eyelids. She had had her lower eyelids done in 1978 or 1979 and had had a “mini-lift” in 1984.

   13. A. S. met Respondent during her first visit to the Center. A. S. and Respondent spoke for 15-20 minutes. Respondent asked her what procedures she wanted done, and she said that she wanted a face lift and work on her lower eyelids. He showed her a copy of his resume and marked a picture of a face, as they discussed procedures. A. S. did not fill out any forms or questionnaires.

   14. Respondent did not explain much concerning the procedures that A. S. was contemplating. He mentioned that she would have a thin line, which would not be noticeable, under her eyes and told how long the stitches would remain in place. He did not discuss the possibility of scarring or other risks associated with the surgery.

   15. Following her visit with Respondent, A. S. saw

       
       

       Mr. Davis. They discussed costs and financing. Mr. Davis gave her an estimate of the cost of the surgery that she was considering.

   16. A. S. had already checked another plastic surgery center and, later on the same day that she visited the Center, she visited the third, and last, plastic surgery facility that she was considering. The next day, Mr. Davis called A. S. and asked if she had made a decision. Mr. Davis said that Respondent had told him that Respondent wanted to do A. S.’s nose, evidently for aesthetic reasons. Mr. Davis offered the nose work at no additional charge. Although Respondent had not offered to do

       A. S.’s nose for free or for a charge, he was aware that Mr. Davis would offer free additional work of this kind as an incentive to the patient to select the Center for the work that she was already considering.

   17. A. S. talked the matter over with her daughter. A. S. decided to have the surgery at the Center. She then informed Mr. Davis of her decision. Three to five days later, A. S. visited the Center to discuss payments with Mr. Davis because she did not have all of the money necessary for the surgery.

   18. During this visit, Mr. Davis suggested a brow lift. He said that Respondent was good at this procedure and would be working in this area anyway. At the end of this visit, a nurse gave A. S. some paperwork prohibiting her from smoking for two weeks before the surgery due to the anticipated bleeding. A. S. had smoked one pack of cigarettes a day since she had been a teenager. A. S. discussed the effect of smoking on the surgery with the nurse, but not with Respondent. As directed, she stopped smoking and never resumed smoking again.

   19. A. S. next visited the Center on June 26, 1995, for the surgery. No one performed a physical examination of A. S. On this date, Respondent performed a browlift, rhinoplasty, and facelift.

   20. After A. S. awoke from the general anesthesia, she did not receive any instructions from Respondent or staff regarding the care of her bandages, which extended across a large part of

       her face and top of her head. She was scheduled to return to the Center two days later.

   21. A. S.’s daughter drove her home. Once they got there, she noticed that her mother’s face seemed grey. A. S. told her to call Respondent. The daughter informed his answering service of her mother’s condition. She then waited one-half hour for Respondent or his staff to contact her. After hearing nothing, the daughter called the answering service again and waited another half-hour. After a third call and another half-hour wait, Respondent called A. S. and told her to cut the bandage under her neck.

   22. By cutting the bandages, A. S. revealed an open cut on her neck. When she returned for her followup visit two days later, A. S. asked Respondent about the cut, which extended along the right side of the neck below the ear. Respondent assured her that it would close up, which it did. When Respondent expressed concerns about her eyes and a dent in her nose, Respondent assured her that they would discuss these matters after the swelling went down.

   23. About one week later, Respondent returned to the Center for a second followup visit. During the second followup visit, Respondent removed the stitches. Now that some of the swelling had gone down, A. S. discovered that Respondent had not performed the surgery on her lower eyes. A. S. could not recall Respondent’s explanation for not performing this surgery.

   24. A. S. complained to Respondent that, since the surgery, her right eye had become smaller than her left eye, the right eyebrow had become lower than the left eyebrow, and the right side of her face from the eye down had become looser. Also, she complained about the extensive marks, scarring, loose skin, redness, and a dent under her chin; the dent in her nose and a misshapen right nostril; a swollen bump on her left cheek; a big chunk of skin gone from her hairline; and a gully on the left side of her face.

   25. Respondent assured her that he would fix these problems with revisions to the eyes and nose and the area under the neck. He did not offer any revisions to hair line, whose appearance worsened as the swelling reduced.

   26. Respondent later performed some relatively minor revisions to the right side of A. S.’s face at no cost to A. S. He reset the remaining revisions for a date in mid-December, 1995.

   27. Despite A. S.’s persistence at trying to obtain the additional revisions, Respondent failed to perform them. Repeatedly, Center employees canceled scheduled surgery dates, claiming that Respondent was ill or busy with unscheduled surgery. They rescheduled the December surgery to a date in mid- February, 1996. When she reported on this date, a Center employee took her to Mr. Davis, who informed her that the Center had lost money on her surgery and would not perform revision

       surgery until she paid additional money. They rescheduled her surgery for a date in late March.

   28. When A. S. reported on the date for her surgery in March, Mr. Davis told her that they would not do the revision surgery until she paid another $300. A. S. charged this sum on her credit card, so they would do the surgery. Mr. Davis told her that Respondent was too busy, and he rescheduled the surgery for April 8.

   29. On April 8, when A. S. reported for surgery, a Center employee sedated A. S., but, after A. S. waited a couple of hours, another Center employee informing her that the surgery could not take place either because Respondent was not coming into work that day or he was in emergency surgery. When A. S. called from home later that day to reschedule the surgery, a Center employee told her that Respondent was in surgery. The employee advised A. S. to call the Center each morning to see if Respondent had any cancellations. A. S. did as advised, but the Center was never able to accommodate her.

   30. Subsequently, A. S. sent Respondent two or three letters and left telephone messages for him to contact her on at least ten occasions. Realizing that Respondent and the Center would not perform the revision surgery, A. S. went to another plastic surgery facility in 1998 for work on her right nostril and under her neck. A surgeon repaired the nostril, but, due to financial constraints, could not do all of the work required to

       repair the damage under A. S.’s neck, which would require about

       
       

       $4000 in surgery.

       
       

   31. In the meantime, Respondent sent A. S. a card announcing the relocation of his practice to the American Institute for Cosmetic Surgery. A. S. wrote Respondent a letter at his new address, but Respondent never responded.

   32. A. S. never sued Respondent. All she wanted was that he perform the revisions that she could not afford to purchase elsewhere so as to reduce or, if possible, eliminate the deformities that Respondent caused surgically.

   33. Respondent violated the applicable standard of care in several ways. First, preoperatively, his evaluation of A. S. was scanty. He did not take an ample history, and he did not adequately evaluate her medical status. He did not prepare a surgical plan with a description of all risks and a discussion of these details with the patient. Perhaps most importantly, Respondent never performed a physical examination of A. S. before surgery.

   34. Respondent violated the applicable standard of care operatively. The results in this case are so substandard in number and degree as to preclude assigning the outcomes to bad luck, as opposed to a hurried, careless surgery.

   35. Respondent violated the applicable standard of care postoperatively. He did not adequately the many problems that he caused. Perhaps most obviously, he failed to adequately treat

       the open wound in the neck, and he failed to form a plan to address the many revisions necessitated by his careless surgery.

   36. The Board of Medicine has previously disciplined Respondent for, among other things, his deviation from the applicable standard of care in treating three plastic surgery patients whose surgery he performed in 1995-96 and 1998.

       CONCLUSIONS OF LAW

       
       

   37. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   38. Section 448.331(1) provides:

       
       

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

       
       

       (t) Failing 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.

       
       

   39. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   40. Petitioner has proved that Respondent failed to meet the applicable standard of care, with respect to A. S., preoperatively, intraoperatively, and postoperatively.

       Respondent’s claims that a lack of cooperation from Center employees somehow prevented him from discharging his minimum duties toward A. S. are entirely groundless as to his preoperative and intraoperative carelessness. As to Respondent’s failure to provide A. S. adequate care postoperatively, his claims are unpersuasive. It was Respondent’s nondelegable duty to continue to treat his patient to relieve her of the injuries that he had done to her surgically. If the business associates with whom Respondent elected to work interfered with his ability to do so, then Respondent bears the consequences.

   41. Petitioner failed to prove the material allegations concerning the medical records. There were obvious losses among these records, including missing, somewhat exculpatory documents on which A. S. and Respondent agreed, that established that the poor relations that marked Respondent’s departure from the Center may have led to failures in recordkeeping, for which Respondent should not be held liable.

   42. Rule 64B-8.001(2)(t) provides for a range of penalties from two years’ probation, an administrative fine from $1000 to

       $10,000, and revocation. Rule 64B-8.001(3)(a) and (e) identifies as aggravating factors the injury to A. S. and potential injury to the public and Respondent's prior discipline.

   43. In its proposed recommended order, Petitioner seeks revocation of Respondent’s license. This penalty is appropriate given Respondent’s extensive deviations from the applicable

standard of care and his unwillingness to correct the damage that he had caused A. S.

RECOMMENDATION

It is

RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating Section 458.331(1)(m), Florida Statutes, in his treatment of A. S. and revoking his license.

DONE AND ENTERED this 6th day of December, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 6th day of December, 2000.

COPIES FURNISHED:

Tanya Williams, Executive Director Board of Medicine

Department of Health Bin C03

4052 Bald Cypress Way Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk Department of Health

Bin A02

4052 Bald Cypress Way Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

Bin A02

4052 Bald Cypress Way Tallahassee, Florida 32399-1701

Kim M. Kluck Carol Gregg Senior Attorneys

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Jerry C. Lingle

1419 Northeast 16th Terrace Fort Lauderdale, Florida 33304

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-002586

Orders for Case No: 00-002586