STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, )
BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) Case No. 01-1799PL
)
STEVEN A. MAGILEN, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on August 7 and 8, 2001, in Miami, Florida, before Larry J. Sartin, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Robert C. Byerts, Esquire
Agency for Health Care Administration Post Office Box 14229
Tallahassee, Florida 32317-4229
For Respondent: Jon M. Pellett, Esquire
Barr, Murman, Tonelli, Slother & Sleet
201 East Kennedy Boulevard, Suite 1750 Tampa, Florida 33602
STATEMENT OF THE ISSUES
Whether Respondent, Steven A. Magilen, M.D., violated Sections 458.331(1)(m) and (t), Florida Statutes, as alleged in an Administrative Complaint signed April 2, 2001, and filed with
the Department of Health on April 3, 2001, and, if so, the penalty that should be imposed.
PRELIMINARY STATEMENT
In an Administrative Complaint signed April 2, 2001, the Department of Health charged Steven A. Magilen, M.D., with two counts of violating Section 458.331(1), Florida Statutes (1997). In Count One it was alleged that Dr. Magilen failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances, in violation of Section 458.331(1)(t), Florida Statutes (1997). In Count Two, it was alleged that Dr. Magilen failed to keep appropriate medical records in violation of Section 458.331(1)(m), Florida Statutes (1997). The charge arose out of Dr. Magilen's treatment of patient D. M.
Dr. Magilen disputed the facts alleged in the Administrative Complaint and requested a formal administrative hearing. The Department of Health filed the Administrative Complaint with the Division of Administrative Hearings for assignment on May 8, 2001, and requested assignment of the matter to an administrative law judge.
At the hearing, the parties filed a Joint Pre-Hearing Stipulation. The Stipulation contains, among other things,
facts which the parties have stipulated to. Those facts, to the extent relevant, have been accepted in this Recommended Order.
The Department of Health presented the testimony of John Wesley Kilkenny, III, M.D., in the form of the transcript and videotape (consisting of three tapes) of Dr. Kilkenny's deposition taken on July 26, 2001. The transcript and videotape was offered into evidence and received as Petitioner's Composite Exhibit 1. Dr. Kilkenny was offered as an expert in general surgery and, in particular, colorectal surgery and the treatment of colorectal disorders. Dr. Magilen objected to the proffer of Dr. Kilkenny as an expert in colorectal surgery and the treatment of colorectal disorders. Dr. Kilkenny is hereby accepted as proffered by the Department of Health.
The Department of Health also presented the testimony of Karl E. Drehobl, M.D., in the form of the transcript of
Dr. Drehobl's deposition taken on August 2, 2001. The transcript of Dr. Drehobl's deposition was received in evidence as Petitioner's Exhibit 2.
Dr. Magilen testified in his own behalf and presented the testimony of Eugene Eisman, M.D.; Richard Landon Taylor, Jr., M.D.; Martin Grossman, M.D.; and Judge James Jorgenson.
Dr. Magilen also presented the testimony of Dr. Kilkenny in the form of two transcripts of Dr. Kilkenny's deposition taken on July 17 and 26, 2001. The transcript of July 17, 2001, was
offered into evidence and received as Respondent's Exhibit 9. The transcript of July 26, 2001, was offered into evidence and received as Respondent's Exhibit 10. By agreement of the parties, Dr. Magilen presented the testimony of German Fraynd, M.D., in the form of a transcript of Dr. Fraynd's deposition taken on August 2, 2001, and filed after the adjournment of the final hearing of this matter. Dr. Fraynd's deposition has been marked as Respondent's Exhibit 11 and has been received into evidence. In addition to Respondent's Exhibits 9, 10, and 11,
other Respondent's exhibits were marked for identification.
Those exhibits were marked as Respondent's Exhibits 1 through 8 and 12 through 16. Respondent's Exhibits 1 through 7 were received in evidence, Respondent's Exhibit 8 was rejected, and Respondent's Exhibits 12 through 16 were offered only for demonstrative purposes.
The parties also offered into evidence three Joint Exhibits, which were received into evidence.
Official recognition was taken of Sections 455.621, 455.627, and 458.331, Florida Statutes, and Rule 59R-8.001, Florida Administrative Code, in effect in 1997.
The four-volume Transcript of the formal hearing was filed with the Division of Administrative Hearings on September 4, 2001, and the parties timely filed proposed findings of fact and conclusions of law. Respondent also filed Respondent's Motion
to Exceed Page Limit for Proposed Recommended Order. Respondent requested leave to file a proposed recommended order that exceeded the page limit of Rule 28-106.215, Florida Administrative Code. It has been represented in the Motion that Petitioner does not object to the Motion so long as Respondent does not exceed the page limit by more than five pages.
Respondent has not exceeded this limit. The Motion is, therefore, granted. The proposed recommended orders of both parties have been fully considered in preparing this Recommended Order.
FINDINGS OF FACT
The Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine in Florida. Section 20.43; Chapters 456 and 458, Florida Statutes.
Steven A. Magilen, M.D., is, and was at the times material to this proceeding, a physician licensed to practice medicine in Florida, having been issued license number ME 002082.
Dr. Magilen received his medical degree from the University of Brussels in Belgium in June 1972. He received his license to practice medicine in Florida in 1973 and completed a residency in general surgery at Mount Sinai Medical Center, Miami, Florida, in June 1976. He has maintained a private practice in Florida since 1976.
Dr. Magilen is board certified in general surgery. His general surgical practice focuses on colorectal surgery and proctology. He is experienced in the use of colonoscopy, having performed an average of between 250 and 300 colonoscopies per year since approximately 1979.
Dr. Magilen's address is 21150 Biscayne Boulevard, Suite 400, Aventura, Florida 33180.
Dr. Magilen has not previously been the subject of a disciplinary proceeding.1
D. M., a female, was initially seen by Eugene Eisman, M.D.,2 an internist, who has continued to see D. M. for at least the past ten years.
As early as 1991, D. M. related a five-year history of intermittent abdominal pain.
D. M. was referred by Dr. Eisman to Dr. Magilen in June 1995,3 complaining of years of constipation, which she indicated was becoming worse. She also complained of rectal bleeding.
D. M. was in her mid-60's in 1995.
Rectal bleeding is one of the most common problems seen by Dr. Magilen, who sees primarily older patients. Rectal bleeding can be caused by colonic (relating to the colon) disorders or anal disorders. The typical anal disorder found in adults which results in bleeding is hemorrhoids. Colonic disorders which cause rectal bleeding include polyps, colon
carcinoma (cancer), inflammatory bowel disease, ulcerative colitis, Crohn's Disease, diverticulosis, diverticulitis, and appendicitis. While rectal bleeding may occur with diverticulitis, it is less likely than with only diverticulosis.4
The disorder which is most threatening to a patient of the disorders that can cause rectal bleeding is colon cancer. If not timely identified, colon cancer can spread to an extent that surgical intervention will be ineffective and the patient will ultimately die. The typical signs of colon cancer include a change in bowel pattern, such as diarrhea or constipation, rectal bleeding, abdominal pain, and, in later stages, weight loss.
Because D. M. had reported rectal bleeding,
Dr. Magilen first looked for signs of hemorrhoids. After finding no such signs, Dr. Magilen recommended to D. M. that she undergo a colonoscopy to explore whether she was suffering from a colonic disorder.
A colonoscopy is one of the diagnostic tools available to determine whether polyps or colon cancer are present in a patient experiencing rectal bleeding. A colonoscopy allows the physician to visually evaluate subtleties of mucosal changes of the colon by visually inspecting the lumen, or inside lining of the colon. Any problematic or suspicious tissue can be collected during the colonoscopy for later biopsy. The
colonoscopy is performed by inserting a flexible tube with fiber optic capabilities into the rectum and up through the colon.
The colon is the lower six to eight feet of the gastrointestinal tract, which runs from the mouth to the anus. The colon consists of a muscular wall with an inner lining of mucosa and an outer layer of serosa tissue. Typically, approximately 50% of the colon is attached to the inside of the belly cavity (the abdomen) by a suspensory fibrous tissue. Colon cancer typically is found in the mucosal surface of the colon and is most prevalent in the left colon (the rectum, sigmoid colon, the descending colon, and the distal transverse colon).
Because a colonoscopy is an invasive procedure, it is not without risks. Among the risks of performing a colonoscopy is the possibility that the patient's colon will be perforated.
Despite Dr. Magilen's concern over D. M.'s rectal bleeding, D. M. ignored Dr. Magilen's recommendation and declined to undergo a colonoscopy in 1995.
D. M. was next seen by Dr. Magilen in April 1996.
D. M. complained of constipation and bright red bleeding on the toilet paper in the bowl.
At Dr. Magilen's urging, D. M. agreed to and did undergo a colonoscopy on April 23, 1996. As a result of the procedure, Dr. Magilen found and removed a 3 millimeter benign
sessile polyp5 and noted the presence of a small amount of diverticuli in her sigmoid colon.6
The sigmoid colon, which makes up the last portion of the colon and attaches to the rectum, is so-named because of its "S" shape. The sigmoid colon is more mobile and, therefore, has more variability in its position. It is, however, usually located on the lower left side of the abdomen.
Diverticuli are "out-pockets" or bulges in the intestine. Their presence is referred to more specifically as "diverticulosis." In adults over the age of 65 years, approximately 75% have diverticuli somewhere in the colon. A finding of diverticulosis in older adults is, therefore, not an uncommon finding.
D. M. next presented to Dr. Magilen on July 14, 1997.
She was 68 years of age. She complained of upper and lower abdominal pain, a change in bowel habits, occasional bright red blood from her rectum, and nausea (without vomiting). The abdominal pain, which she reported had started approximately a week and a half prior to July 14th, was reported to be mainly in the upper abdomen.
D. M.'s change in bowel habits were reported to be constipation despite an increase from one bowel movement a day to four to five bowel movements per day. She was considered constipated, even with the increased number of bowel movements,
because she had also reported a sensation of incomplete evacuation, that her stool consisted of hard balls, and she had witnessed bright red blood on occasion.
Dr. Magilen obtained D. M.'s medical history and conducted a physical examination on July 14th. D. M.'s pertinent medical history included the following: (a) she was a heavy smoker for 26 years (3 1/2 packs a day until she quit in 1981); (b) she consumed alcohol regularly (at least 3 glasses of wine per day); (c) she had previous lumpectomies of her breasts for benign tumors; (d) she had a cavernous hemangioma on her right thigh that was treated with radiation therapy and for which she suffered a recurrence and malignancy; (e) she had cancer removed from her toe; (f) she had several D & C's of her uterus; (g) she had a sessile polyp removed from her colon in 1996; and (h) she has diverticulosis.
Dr. Magilen's physical examination of D. M. revealed that she had diffuse, non-localized abdominal tenderness with no masses or organomegaly. A vaginal and rectal examination of
D. M. revealed uterine tenderness with no masses. An anoscopic examination of her rectum revealed internal hemorrhoids.
Dr. Magilen found no indication of acute blood loss or bowel obstruction, and no signs, symptoms, or indications of acute decompensation from a colonic malignancy.
Dr. Magilen's impression of D. M. on July 14th was that she was suffering from acute abdominal pain and that uterine pathology needed to be ruled out as the source of her problem. Dr. Magilen, therefore, planned to obtain a pelvic ultrasound, admit D. M. to the hospital for 23 hours, and obtain a gynecological consult.
The pelvic ultrasound, which was performed outpatient on July 14th, revealed the presence of an ovarian cyst on
D. M.'s left ovary and no masses in her uterus.7 No other abnormalities, malignancies, or uterine pathology were revealed by the ultrasound.
At approximately 4:30 p.m. of July 14th, D. M. presented and was admitted to Aventura Hospital. A blood chemistry profile, a complete blood count, abdomen X-rays, abdomen and pelvis Computed Axial Tomography ("CAT" or "CT") Scans and a gynecological consult with Dr. Gross, a gynecologist, were ordered. A complete blood count was also ordered for July 15, 1997.
D. M. was placed on "NPO" (nothing by mouth), meaning that she was allowed no food or liquids by mouth. She was also given Vistaril, a common relaxant, to help with her complaints of pain.
D. M. was not suffering from fever at the time of her admission. Her blood chemistry and the complete blood count
failed to reveal any increase in her white blood cell count or an increase in immature white blood cells, commonly referred to as a "shift to the left."
D. M. was found to be evidencing signs of anemia, based upon a drop in her hemoglobin. D. M.'s hemoglobin as of April 1996 had been 12.7. As of her admission to Aventura in July 1997, D. M.'s hemoglobin had fallen to 11.4.
D. M.'s X-rays were unremarkable. No significant distention or the presence of free air, soft tissue masses, or abnormal calcifications were indicated.
The CT Scan was produced on July 14, 1997. The image of the CT Scan was transmitted to an on-call radiologist,
Dr. Maria Rodriguez, for a preliminary interpretation. Although Dr. Rodriguez issued a preliminary fax report of her findings, Dr. Magilen did not receive the report. Dr. Magilen was, therefore, unaware of the findings made by Dr. Rodriguez when he made the decision at issue in this case.
The CT Scan image was also reviewed by Karl Drehobl,
M.D. Dr. Drehobl's findings and impressions were provided to Dr. Magilen in a written report. That written report was received and considered by Dr. Magilen.
With regard to D. M.'s colon, Dr. Drehobl's report included the following findings and impression as a result of his review of the CT Scan image:
. . . . THERE IS SIGMOID DIVERTICULOSIS PRESENT. THERE IS EVIDENCE OF SIGMOID WALL THICKENING. THERE IS INCREASED DENSITY IN THE REGION OF THE SIGMOID MESENTERY. NO DISCRETE FLUID COLLECTION OR ABSCESS IS NOTED. FINDINGS ARE SUGGESTIVE OF SIGMOID DIVERTICULITIS. NO FREE AIR OR FREE FLUID IS IDENTIFIED. THE REMAINDER OF THE BOWEL AND MESENTERY ARE NORMAL.
IMPRESSION:
FINDINGS SUSPICIOUS FOR SIGMOID DIVERTICULITIS. NO FREE AIR OR DISCRETE ABSCESS COLLECTION.
. . . .
Dr. Drehobl's findings8 were consistent with those reported by Dr. Rodriguez.
Dr. Drehobl's finding of "increased density in the region of the sigmoid mesentery" meant that the fat adjacent to the colon was swollen or inflamed. Dr. Drehobl's finding of sigmoid wall thickening meant that there was an abnormal thickening of the wall of the colon and small bowel.
Dr. Drehobl's impression of D. M., taking into account his findings from reading the CT Scan, the fact that there were diverticuli present in the same area, D. M.'s age, and her history of abdominal pain, was that there was a "strong possibility" that D. M. was suffering from "diverticulitis or inflammation of the diverticuli in that region." See page 20, lines 12-14, Petitioner's Exhibit 2.
"Diverticulitis" is the inflammation of one or more diverticuli. The diverticuli become inflamed when an out-pocket
becomes blocked. Fluid from the mucosal lining of the intestine becomes captured in the blocked out-pocket. Infection and/or inflammation then occurs. If untreated, in the later stages of diverticulitis, a blocked diverticuli can rupture into the pericolonic fat and/or form an abscess.9
CT Scans can be 85 to 90% accurate in diagnosing diverticulitis. Even so, the results of a CT Scan are only a guide, one of a number of tests available to the physician, which must be correlated by the treating physician with all the clinical findings concerning the patient, including the results of the physical examination, the patient's clinical symptoms and history, the results of other diagnostic tests, and the results of laboratory studies. Dr. Drehobl's findings and impression were, therefore, not dispositive. Dr. Magilen was required to take Dr. Drehobl's findings into consideration along with his clinical findings. Dr. Magilen, after speaking with Dr. Drehobl personally about his report, did just that.
Dr. Magilen was not convinced that D. M. was suffering from diverticulitis. This conclusion was based upon a number of factors:
Dr. Drehobl did not find any of the more specific signs of diverticulitis which CT Scans can show such as marked edema around the colon, abscesses within the mesentery, or segmental thickening. Dr. Drehobl's findings of increased density in the
region of the sigmoid mesentery and sigmoid wall thickening were equivocal findings. Persons with diverticulosis, which D. M. was known to have, almost consistently evidence some thickening of the wall of the sigmoid colon;
Because the results of the CT Scan were equivocal, the findings, in addition to supporting an impression of diverticulitis, also supported an impression of a number of other disorders, in and outside the colon, which Dr. Magilen had not yet been able to rule out: inflammation in another organ, such as the appendix or an adjacent loop or intestine; inflammation in a fallopian tube or an ovary; colon neoplasm, colitis, or other tumor of the colon; ischemic colitis, Crohn's disease, and inflammatory bowel disease;
D. M. was not evidencing the classic symptoms of diverticulitis:
Left-lower quadrant pain;
Fever; and
Increased white blood cells and a "shift to the left." The presence or absence of any one or more of these symptoms alone does not reasonably support a finding of diverticulitis or the absence thereof. But the absence of all three significantly reduced the possibility that D. M. was suffering from diverticulitis; and
D. M.'s symptoms, including rectal pain, bright-red rectal bleeding (which is less likely to occur with diverticulitis) associated with bowel passage, vague abdominal discomfort that was not localized to any particular quadrant of the abdomen, and her sensation of incomplete evacuation could not all be explained by diverticulitis and were suggestive of other diagnosis which Dr. Magilen had not been able to rule out.
D. M.'s hemoglobin, which had dropped from 12.7 in April 1996 to
11.4 upon her admission to the hospital, indicated some loss of blood which her body was not able to replace, could also have been symptomatic of the other problems suggested by the results of the CT Scan.
Based upon the foregoing, and following a consult with Dr. Gross, Dr. Magilen's impression was that D. M.'s pathology was coming from her uterus and ovarian tubes.
Between the evening of July 14, 1997, and the morning of July 15, 1997, D. M.'s condition improved. She exhibited minimal abdominal tenderness, she had a normal white blood cell count, she had no fever, and she was able to eat. Dr. Magilen decided to increase her diet and to discharge her home with directions to follow-up with Dr. Magilen and her gynecologist. Dr. Magilen prescribed Cipro, a broad spectrum antibiotic, to address what he believed was her pelvic inflammatory process.
The day after she was released from the hospital, July 16, 1997, D. M. presented to Dr. Eisman. She complained that the abdominal pain had returned during the night of
July 15th. Dr. Eisman conducted a physical examination of D. M. Dr. Eisman found an increase in pain on palpation of the cervix and generalized mild tenderness of the abdomen. Because the pain in D. M.'s abdomen was not located in the lower left- quadrant and in light of the pain on palpation of her cervix, Dr. Eisman was of the opinion that the likely cause of her pain was pelvic inflammatory disease. The etiology of her pain was, however, still unknown.
Dr. Eisman had D. M. readmitted to Aventura and notified Dr. Magilen of the change in her condition.
D. M. was readmitted with orders for blood chemistry and complete blood count, ultrasound of the pelvis, X-rays of the abdomen, CT Scan of the abdomen and pelvis, and NPO (except ice chips). She was given Phenergan and Demerol for pain and nausea.
Dr. Magilen examined D. M. upon her admission to the hospital. He found that her abdomen was soft with minimal tenderness. A vaginal and rectal examination revealed uterine tenderness with no masses. These findings were consistent with those of Dr. Eisman and Dr. Gross.
D. M. was still not experiencing fever.
Flat and upright X-rays of D. M.'s abdomen revealed no significant abnormalities.
D. M.'s blood chemistry studies and complete blood count indicated the presence of anemia, a significantly elevated sedimentation rate with no increase in white blood cell count and no "shift to the left."
The CT Scan revealed some evidence of diverticulosis and slight edematous changes within the fat adjacent to the sigmoid colon consistent with diverticulitis.
Dr. Magilen again discussed the CT Scan findings with the radiologist. Dr. Magilen was still concerned about those findings for most of the reasons indicated in Finding of
Fact 41, supra. The radiologist's findings were still equivocal; the findings were still consistent with other disorders, which the radiologist acknowledged to Dr. Magilen, including a carcinoma or other inflammatory process inside or outside the colon; D. M. was not evidencing the three classic signs of diverticulitis; and her symptoms continued to support other findings.
The ultrasound of D. M.'s pelvis was performed on
July 17, 1997. The following findings and impressions were made as a result of the ultrasound:
. . . . THERE IS A FIBROID LESION WITHIN THE LOWER UTERINE SEGMENT ADJACENT TO THE CERVIX MEASURING 2.7 X 2.3 X 2.6 CM. NORMAL
ENDOMETRIAL STRIPE IS NOTED. NO ADDITIONAL UTERINE MASSES ARE NOTED. BOTH OVARIES ARE UNREMARKABLE IN APPEARANCE. THE RIGHT OVARY MEASURES 1.6 X .9 X 1.1 CM AND THE LEFT OVARY MEASURES 1.8 X 1 X 1 CM. NO ADNEXAL MASSES ARE NOTED. SMALL AMOUNT OF FREE FLUID IS NOTED WITHIN THE CUL-DE-SAC.
IMPRESSION: LOWER UTERINE FIBROID LESION MEASURING 2.7 X 2.3 X 2.6 CM. NO ADNEXAL MASSES. SMALL AMOUNT OF FREE FLUID.
The July 17, 1997, ultrasound found that the cyst which had been disclosed by the July 14, 1997, ultrasound was now gone. This fact, coupled with the fluid found in D. M.'s cul-de-sac (located in the rectal-uterine space, between the rectum and the posterior wall of the uterus and the vagina), could mean that the cyst had ruptured. The ultrasound also indicated that the uterus was 20 percent larger and that there was a two to three centimeter myoma or tumor in the lower uterine segment. These changes, which apparently took place over a two to three day period, and the results of D. M.'s physical examination (uterine tenderness and tenderness in the cul-de-sac), are consistent with pelvic inflammatory disease.
The findings of the July 17, 1997, ultrasound could also explain the findings of edema and the change in sigmoid mesentery found by the CT Scan.
Both Dr. Gross10 and Dr. Magilen concluded that it was likely that D. M. was, at least in part, exhibiting signs of pelvic inflammatory disease. Dr. Gross also concluded that, if
her condition did not soon improve, a laproscopy11 would probably be required to determine the specific cause of D. M.'s complaints.
Dr. Magilen was still concerned about the possibility of colon cancer or some other colonic disorder which the CT Scan and the ultrasound did not explain. Dr. Magilen's concern was based upon the following factors, which his conclusion about pelvic inflammatory disease and the CT Scans of July 14th and July 16th had not ruled out:
The findings of the CT Scans and the impressions of the radiologists concerning diverticulitis had not ruled out the possibility that D. M. was suffering from some other colonic disorder, as explained in findings of fact 41 and 52;
D. M. had undergone at least some treatment with antibiotics upon her release from the hospital on July 15th and undergone some bowel rest while in the hospital between
July 14th and July 15th, and yet her complaints had persisted; and
D. M.'s history (she is at some risk of cancer) and her complaints: she had unexplained or undefined abdominal and pelvic pain that had lasted for a week or two; she had been bleeding from the rectum and had rectal pain; she had had a change in her bowel pattern; and she had shown signs of anemia.
Dr. Magilen decided to perform a colonoscopy on D. M. to be sure that D. M. was not suffering from a colonic disorder in addition to what he suspected was a pelvic inflammatory disease. The procedure was performed on July 18, 1997. It was performed easily and without apparent complication at the time. Dr. Magilen found uncomplicated diverticulosis but no other pathology, including colonic neoplasm, lesions, or malignancy.
Subsequent to the completion of the colonoscopy on July 18th, D. M.'s condition rapidly deteriorated. D. M. experienced an acute abdomen, which is consistent with a possible perforation of the colon as a result of the colonoscopy. An abdominal X-ray, however, failed to reveal a perforation or the presence of free air in D. M.'s abdomen.
D. M.'s condition did not improve on July 19th.
Therefore, on July 20, 1997, Dr. Magilen performed exploratory surgery on D. M.'s abdomen. Dr. Magilen observed inflammation and abscesses on the outside of D. M.'s colon. Dr. Magilen also reported observing two perforations of her sigmoid colon.
Dr. Magilen also found inflammation of the right ovary and tube and the presence of pus in the cul-de-sac. The pus was sampled for culture.
Because of the two perforations Dr. Magilen believed he had observed, Dr. Magilen removed a large portion of the colon; he resected and placed a colostomy.
Pathology of the resected portion of D. M.'s colon determined that the colon evidenced focal fibrinous hemorrhagic exudate, numerous deep diverticuli, and no neoplasm. Culture of the pus did not produce bacteria that would be expected from ruptured diverticuli. The culture was, however, consistent with a gynecologic origin. Pathology also failed to confirm
Dr. Magilen's belief that there were two perforations in D. M.'s colon. These findings suggest that D. M. was suffering from a pelvic inflammatory disease, in particular, a tube and ovary on the right side; and that the inflammation may have adhered the tube and ovary to the sigmoid colon causing the symptoms evidenced by D. M. as opposed to diverticulitis.
Conducting a colonoscopy in a patient with diverticulitis is generally considered counterindicated and may under certain circumstances constitute a deviation from the standard of care. A colonoscopy is counterindicated because it poses a greater risk of perforation by mechanical trauma-- disruption of the inside of the bowel wall by the scope used to perform the colonoscopy--for a patient suffering from diverticulitis. The colonoscopy also requires the injection of air into the colon which results in the colon being firmer and, thus, more prone to damage, especially if the patient is suffering from diverticulitis. A perforation of the colon can result in serious complications and can lead to death.
Under normal circumstances, the preferred treatment of diverticulitis is to prescribe antibiotics, serial clinical examinations, and bowel rest.
Absent some reasonable basis for deviation, the most prudent treatment of a patient suffering from acute diverticulitis who may also be suffering from a colonic disorder would be to treat the patient for the diverticulitis first and then, if deemed medically necessary, perform a colonoscopy after the diverticulitis has been resolved. Usually, the four to
days it takes for antibiotics to be effective in treating diverticulitis, will not make any difference in a patient's oncologic situation. Even where it is suspected that there is another pathology in the colon, it may be prudent to calm the bowel and address the diverticulitis first before performing a colonoscopy.
Despite the foregoing, if it is questionable whether a patient is in fact suffering from diverticulitis as opposed to some other process, the need for additional information concerning the patient must be weighed against the risk of performing a colonoscopy. Under these circumstances, clinical judgment concerning whether the colonoscopy should be performed must be exercised.
The evidence in this case failed to prove that
Dr. Magilen did not have a reasonable basis for proceeding with
a colonoscopy of D. M. on July 18, 1997, despite the "suspicion" of diverticulitis reported as a result of the CT Scans of
July 14th and July 16th.
The normal course of treatment for diverticulitis was not followed in D. M.'s case by Dr. Magilen because Dr. Magilen was not convinced that D. M. was suffering from diverticulitis. As found, supra, Dr. Magilen concluded that D. M.'s clinical picture was unclear at best. In light of D. M.'s unclear clinical picture and Dr. Magilen's conclusions concerning the CT Scan findings, the evidence failed to prove that Dr. Magilen failed to realize that D. M.'s history, physical examination, and radiologic studies were consistent with a diagnosis of probable diverticulitis.
In addition to D. M.'s unclear clinical picture and Dr. Magilen's reasonable conclusions concerning the CT Scan findings, Dr. Magilen was faced with the knowledge that
Dr. Gross would in all probability perform a laproscopy on D. M. It was, therefore, reasonable for Dr. Magilen to proceed with the colonoscopy on July 18th without first treating D. M. with antibiotics and bowel rest. Dr. Magilen reasonably decided that it would be better to determine if there was any colonic disorder before the laproscopy was performed. Dr. Magilen wanted to avoid D. M. being placed under a general anesthesia and having some surprise problem with her colon discovered after
the laproscopy was begun. The evidence, therefore, failed to prove that Dr. Magilen failed 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 because Dr. Magilen failed to treat D. M. for diverticulitis with intravenous antibiotics and serial clinical examinations before performing the colonoscopy on July 18, 1997.
Finally, the evidence failed to prove that Dr. Magilen failed to document justification for proceeding to perform a colonoscopy on D. M. on July 18, 1997.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569, 120.57(1), and
456.073 Florida Statutes (2000).
Section 458.331(1)(t), Florida Statutes (1997), authorizes disciplinary actions against any medical doctor who does not "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."
Section 458.331(1)(m), Florida Statutes (1997), authorizes disciplinary actions against any medical doctor who
does not keep legible medical records that "identify the licensed physician or the physician extender and supervising physician by name and professional title who is or are responsible for rendering, ordering, supervising, or billing for each diagnostic or treatment procedure and that justify the course of treatment of the patient "
In its Administrative Complaint, the Department of Health (hereinafter referred to as the "Department"), seeks, among other penalties, the revocation or suspension of
Dr. Magilen's license to practice medicine. Therefore, the Department has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Section 458.331(3), Florida Statutes (1997). See also Department of Banking and Finance, Division of Securities and
Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Judge Sharp, in her dissenting opinion in Walker v.
Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting), reviewed recent pronouncements regarding clear and convincing evidence:
Clear and convincing evidence requires more proof than preponderance of evidence, but less than beyond a reasonable doubt. In re
Inquiry Concerning a Judge re Graziano, 696 So. 2d 744 (Fla. 1997). It is an intermediate level of proof that entails both qualitative and quantative [sic] elements. In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert.
denied, 516 U.S. 1051, 116 S. Ct. 719, 133
L. Ed. 2d 672 (1996). The sum total of the evidence must be sufficient to convince the trier of fact without any hesitancy. Id. It must produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Inquiry Concerning Davie, 645 So. 2d 398, 404 (Fla. 1994).
The Department alleges in Count One of the Administrative Complaint that Dr. Magilen violated Section 458.331(1)(t), Florida Statutes, in his treatment of D. M. for one or more of the following:
failing to realize that Patient D. M.'s history, physical examination, and radiologic studies were consistent with a diagnosis of probable diverticulitis;
failing to treat Patient D. M.'s probable diverticulitis with intravenous antibiotics and serial clinical examinations before considering colonoscopy[; and]
proceeding on July 18, 1997, with a colonoscopy of Patient D. M.
The Department has failed to prove the allegations of Count One of the Administrative Complaint by clear and convincing evidence. Dr. Magilen did in fact make a reasonable medical judgment based upon D. M.'s history, physical examination, and radiologic studies concerning whether she was
suffering from diverticulitis; and given his clinical judgment about D. M.'s condition, Dr. Magilen had reason to proceed with the colonoscopy on July 18, 1997, before treating D. M. with intravenous antibiotics and serial clinical examinations.
The allegations of Count Two of the Administrative Complaint are essentially based upon the allegations of Count One. Having failed to prove the allegations of Count One, the Department has also failed to prove the allegations of Count Two by clear and convincing evidence. The Department also failed to present clear and convincing evidence that Dr. Magilen violated Section 458.331(1)(m), Florida Statutes, to the extent that the Department intended to charge Dr. Magilen such a violation independently of the allegations of Count One.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint against Steven A. Magilen, M.D.
DONE AND ENTERED this 29th day of October, 2001, in Tallahassee, Leon County, Florida.
LARRY J. SARTIN
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 29th day of October, 2001.
ENDNOTES
1/ Dr. Magilen participates in managed care and has several large contracts to provide such case. Any disciplinary action against him could have a severe negative impact on his practice.
2/ Dr. Eisman has been a friend and business associate of
Dr. Magilen for the past 20 years. Dr. Eisman refers 95% of his patients who need general surgical services to Dr. Magilen.
3/ This was Dr. Eisman's second referral of D. M. to Dr. Magilen. The first referral occurred in May 1991.
4/ Bleeding occurs more often with diverticulosis because of the erosion of blood vessels which occurs due to stretching of the intestinal lining when the out-pockets are formed.
5/ Polyps may be sessile or pedunculated. A sessile polyp is generally flat while a pedunculated polyp sits at the end of a stock.
6/ Dr. Eisman further documented D. M.'s diverticulosis in October 1996.
7/ Small ovarian cysts are normally asymptomatic and not considered clinically significant.
8/ Dr. Drehobl also reported the following concerning the possibility of pancreatitis:
. . . . THERE IS MILD INCREASED DENSITY IN THE PERIPANCREATIC FAT. FINDINGS MAY REPRESENT EARLY PANCREATITIS. CLINICAL CORRELATION IS RECOMMENDED. . . .
IMPRESSION:
. . . .
2. MILD INCREASED DENSITY IN THE PERIPANCREATIC FAT. ALTHOUGH THIS MAY BE A NORMAL FINDING, EARLY PANCREATITIS SHOULD BE CONSIDERED. CLINICAL CORRELATION IS RECOMMENDED.
Based upon Dr. Magilen's clinical correlation and the results of the CT Scan taken on July 16, 1997, pancreatitis was reasonably ruled out.
9/ Dr. Drehobl's findings concerning the lack of air or fluid or abscess indicated that, if diverticulitis was the problem, the diverticula had not ruptured and D. M.'s colon was still intact.
10/ Dr. Gross, like Dr. Magilen, was aware of the CT Scan findings of July 16th when he concluded that it was likely that
D. M. was suffering from a pelvic inflammatory disease.
11/ A laproscopy is a surgical procedure in which fiber optics are used to view the area inside the pelvis.
COPIES FURNISHED:
Robert C. Byerts, Esquire
Agency for Health Care Administration Post Office Box 14229
Tallahassee, Florida 32317-4229
Jon M. Pellett, Esquire
Barr, Murman, Tonelli, Slother & Sleet
201 East Kennedy Boulevard, Suite 1750 Tampa, Florida 33602
Tanya Williams, Executive Director Board of Medicine
Department of Health 4052 Bald Cypress Way
Tallahassee, Florida 32399-1701
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
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.
1 Dr. Magilen participates in managed care and has several large contracts to provide such case. Any disciplinary action against him could have a server negative impact on his practice.
2 Dr. Eisman has been a friend and business associate of Dr.
Magilen for the past 20 years. Dr. Eisman refers 95% of his patients who need general surgical services to Dr. Magilen.
3 This was Dr. Eisman's second referral of D. M. to Dr. Magilen.
The first referral occurred in May 1991.
4 Bleeding occurs more often with diverticulosis because of the
erosion of blood vessels which occurs due to stretching of the intestinal lining when the out-pockets are formed.
5 Polyps may be sessile or pedunculated. A sessile polyp is
generally flat while a pedunculated polyp sits at the end of a stock.
6 Dr. Eisman further documented D. M.'s diverticulosis in October
1996.
7 Small ovarian cysts are normally asymptomatic and not
considered clinically significant.
8 Dr. Drehobl also reported the following concerning the
possibility of pancreatitis:
. . . . THERE IS MILD INCREASED DENSITY IN THE PERIPANCREATIC FAT. FINDINGS MAY REPRESENT EARLY PANCREATITIS. CLINICAL CORRELATION IS RECOMMENDED. . . .
IMPRESSION:
. . . .
2. MILD INCREASED DENSITY IN THE PERIPANCREATIC FAT. ALTHOUGH THIS MAY BE A NORMAL FINDING, EARLY PANCREATITIS SHOULD BE CONSIDERED. CLINICAL CORRELATION IS RECOMMENDED.
Based upon Dr. Magilen's clinical correlation and the results of CT Scan taken on July 16, 1997, pancreatitis was reasonably ruled out.
9 Dr. Drehobl's findings concerning the lack of air or fluid or
abscess indicated that, if diverticulitis was the problem, the diverticula had not ruptured and D. M.'s colon was still intact.
10 Dr. Gross, like Dr. Magilen, was aware of the CT Scan findings
of July 16th when he concluded that it was likely that D. M. was suffering from a pelvic inflammatory disease.
11 A laproscopy is a surgical procedure in which fiber optics are
used to view the area inside the pelvis.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 18, 2001 | Agency Final Order | |
| Oct. 29, 2001 | Recommended Order | Petitioner failed to prove that Respondent failed to recognize patient had diverticulitis before performing colonoscopy. |
BOARD OF OSTEOPATHIC MEDICAL EXAMINERS vs JULES G. MINKES, 01-001799PL (2001)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs RONALD R. WILLEY, M.D., 01-001799PL (2001)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JOHN L. LENTZ, JR., M.D., 01-001799PL (2001)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JOHN L. LENTZ, JR., M.D., 01-001799PL (2001)
