STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, )
BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) Case No. 01-4655PL
)
DAVID BRZOSTOWICKI, )
)
Respondent. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on February 20, 2002.
APPEARANCES
For Petitioner: Bruce A. Campbell
Senior Attorney
Agency for Health Care Administration Post Office Box 14229, Mail Stop Code 39A Tallahassee, Florida 32317-4229
For Respondent: Gustavo Gutierrez
Gustavo Gutierrez, P.A. Grove Place, Suite 300 2964 Aviation Avenue
Coconut Grove, Florida 33133 STATEMENT OF THE ISSUES
The issues are whether Respondent is guilty of failing to practice medicine with the level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as
being acceptable under similar conditions and circumstances, in violation of Section 458.331(1)(t), Florida Statutes, and failing to keep written records justifying the course of treatment, in violation of Section 458.331(1)(m), Florida Statutes. If so, an additional issue is the penalty to be imposed.
PRELIMINARY STATEMENT
By Administrative Complaint dated May 1, 2000, Petitioner alleged that, on July 22, 1996, Respondent performed a hysterscopy on M. S. During the hysterscopy, Respondent allegedly discovered a large intracavitary fibroid, which he began to remove. However, he allegedly discontinued the procedure when he learned that a nurse could not account for 1500-2000 cc of glycine, which he had used to distend the uterus in preparation for the procedure.
The Administrative Complaint alleges that M. S. was transferred to the recovery room at 1:40 p.m. and to an in- patient room at 5:00 p.m. The Administrative Complaint alleges that at 6:00 p.m. Respondent ordered blood work and an electrolyte study, which revealed a sodium level of 107 meq/L and a potassium level of 3.4 meq/L. The Administrative Complaint alleges that Respondent was notified of M. S.'s abnormal sodium level at 7:30 p.m., but he did not order any therapy to correct this abnormality. At 10:00 p.m., blood work
allegedly revealed a sodium level of 117 meq/L and a potassium level of 2.9 meq/L. The Administrative Complaint alleges that Respondent ordered intravenous fluids of one-half normal saline and 40 meq of potassium, but did not obtain a consultation from a specialist in internal medicine or additional testing.
The Administrative Complaint alleges that Respondent did not adequately address M. S.'s condition because the saline treatment and potassium replacement therapy were inadequate, untimely, and inappropriate to correct low sodium. The Administrative Complaint alleges that, at 11:15 p.m., M. S. had a seizure and was unresponsive. After being resuscitated, M. S. allegedly remained comatose and died on August 14, 1996.
The Administrative Complaint alleges that a reasonably prudent physician under similar conditions and circumstances would have known that glycine loss is a common complication of hysteroscopic procedures, and that the standard of care requires the physician to obtain specific measurements of the amount of glycine into and out of the patient. The Administrative Complaint alleges that a reasonably prudent similar physician under similar conditions and circumstances would have timely addressed low sodium and potassium levels following surgery.
Count One of the Administrative Complaint alleges that Respondent failed to practice medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent
similar physician as being acceptable under similar conditions and circumstances by failing to adequately assess and diagnose
S.'s condition because Respondent should have been aware of the potential for low sodium and order the proper tests to monitor these levels immediately following surgery, failing to properly measure the amount of glycine used to inflate M. S.'s uterus and account for the amount that exited the uterus, delayed in ordering the appropriate tests and therapies after being notified of abnormal sodium and potassium levels, and inadequately and inappropriately treated M. S. to correct her condition.
Count One alleges that Respondent thus violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Count Two of the Administrative Complaint alleges that Respondent failed to keep written records justifying the course of treatment, failed to keep adequate patient records justifying hysteroscopy, operative laparoscopy, and laparotomy, and failed to justify the delay in ordering an electrolyte study and not conducting further tests.
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, but not limited to, patient histories, examination results, test results, drugs that were prescribed or administered, and reports of consultations and hospitalizations.
At the hearing, Petitioner called three witnesses and offered into evidence exhibits: Petitioner Exhibits 1-2. With leave of the Administrative Law Judge, Petitioner filed, as a late-filed exhibit, the transcript of the deposition of
Dr. Oliver Bayouth. The Administrative Law Judge has designated this transcript as Petitioner Exhibit 3. Respondent called one witness and offered into evidence no exhibits. All exhibits were admitted.
At the start of the hearing, Petitioner requested leave to file the transcript of a deposition of Dr. Wright, a pathologist, because Dr. Wright had been unable to respond to a subpoena and attend the hearing. After learning that Petitioner had only attempted to serve Dr. Wright five days prior to the hearing, the Administrative Law Judge denied Petitioner's request to take his deposition after the hearing.
During the hearing, Respondent requested leave to file the transcript of an expert witness whose deposition had yet to be taken. The Administrative Law Judge granted Respondent leave to file this transcript as a late-filed exhibit. The
Administrative Law Judge did not impose a deadline for the filing of the deposition transcript.
The court reporter filed the transcript of the final hearing on March 7, 2002. On April 1, 2002, Respondent's counsel filed a Motion to Withdraw as Counsel for Respondent and for 60 Day Enlargement of Time to Comply with any Existing Deadlines. These deadlines were for filing the transcript of the deposition of Respondent's expert witness and filing any proposed recommended orders.
By Order issued April 10, 2002, the Administrative Law Judge granted the motion to withdraw, but only after the taking of the deposition of Respondent's expert witness; denied the request for additional time to comply with existing deadlines, but gave Respondent until May 17, 2002, to file the transcript of the deposition of his expert witness; and gave the parties until May 27, 2002, to file proposed recommended orders, subject to the right of Petitioner to request rebuttal of Respondent's expert witness, if the request is filed within five days of the deposition of Respondent's expert witness.
By Renewed Motion to Withdraw as Counsel for Respondent filed April 19, 2002, Respondent's counsel stated that he was unable ethically to continue to represent Respondent due to "an actual conflict of interest unrelated to the issues in this cause." By Order issued April 23, 2002, the Administrative Law
Judge granted the request to withdraw, but retained the deadlines stated in the prior Order. On May 16, 2002, Respondent filed a Motion for Additional Time to Retain Counsel and Comply with Order. By Order issued May 20, 2002, the Administrative Law Judge granted Respondent a two-week extension of the deadline for filing the deposition transcript and both parties a two-week extension of the deadline for filing any proposed recommended orders.
On June 10, 2002, Respondent filed an Agreed Motion for Extension of Time To Take Deposition of Expert Witness and File Proposed Recommended Orders. By Order issued June 11, 2002, the Administrative Law Judge extended both deadlines to July 19, 2002. When neither party filed anything by July 19, the Administrative Law Judge issued an Order on July 22, 2002, giving Respondent until July 29, 2002, to file the deposition transcript and both parties until noon, July 30, 2002, to file any proposed recommended orders. On July 24, 2002, Respondent filed the transcript of the deposition of Dr. Steven M. Silvers, which the Administrative Law Judge admits and designates as Respondent Exhibit 1. The parties filed proposed recommended orders on July 30, 2002.
FINDINGS OF FACT
At all material times, Respondent has been a licensed physician in Florida, holding license number ME 0046085. He specializes in gynecology.
On July 22, 1996, M. S. was admitted to Cedars Medical Center. She was complaining of pelvic pain and recurring vaginal bleeding. On that day, Respondent examined M. S. and discovered that her uterus was enlarged with a large tumor. He scheduled M. S. for a dilation and curettage of the uterus, hysteroscopy, operative laparoscopy, and possible laparotomy.
Respondent has performed 500-600 hysteroscopies. In the hysteroscopy, the physician inserts a small device into the uterus to visualize the internal uterine anatomy and, if necessary, resection fibroids, which are tumors and other abnormalities inside the uterus.
During the procedure, the physician distends the uterus with fluid to visualize the uterine cavity. Glycine solution is often used because the resection is accomplished by cauterization, and the glycine contains no electrolytes, which would conduct the electrical charge. Typically, a nurse recovers the glycine at the end of the surgical procedure, but the patient may absorb the glycine, which could lower her sodium levels. When sodium drops below 130 milliequivalents per liter (mEq/l), the patient is suffering from hyponatremia.
Anaesthesia care started at 10:40 a.m., and Respondent commenced surgery at 11:15 a.m. Finding a large mass partially obstructing his view of the uterine cavity, Respondent decided to remove the fibroid hydroscopically. He ordered the operating room nurse to monitor the intake and output of glycine and advise if the amount of unaccounted fluid reached "1500 to 2000 cc." Respondent intended to terminate the procedure if the amount of unaccounted glycine reached this range.
When Respondent had almost finished removing the fibroid, Respondent noticed fluid on the floor and asked the nurse how much fluid was unaccounted for. When the nurse replied, "1500 to 2000 cc," Respondent promptly terminated the procedure.
Besides Respondent, no one else present during the surgery testified. Petitioner's expert witness testified that the note of a nurse or anaesthesiologist documents the loss of 2300 cc of glycine. However, the note states: "Approximately 2,300 cc in uterus." The record does not preclude the possibility that this is the amount of glycine transferred into
M. S., rather than the amount remaining in M. S. following the operation, as Petitioner contends.
Toward the end of the surgery, at 1:30 p.m., Respondent administered 10 mg of Lasix. Lasix is a diuretic whose use would be indicated for the treatment of the absorption of a
large quantity of glycine. Petitioner's expert witness mistakenly testified that Respondent failed to administer a diuretic while in the operating room.
The surgery ended at 1:40 p.m., and a nurse took M. S. to the recovery room, where Respondent visited her. Her vitals were normal, except for her temperature. At 1:40 p.m., M. S.'s temperature was 89 degrees. At 2:10 p.m., M. S.'s temperature was 90.3 degrees. From 3:00 to 4:00 p.m., M. S.'s temperature was 94-95 degrees. At 5:00 p.m., her temperature had increased to 96.5 degrees. While M. S. was in the recovery room, a nurse applied a heating blanket.
The loss of body temperature is consistent with water intoxication, which may lead to hyponatremia. Also suggestive of water intoxication was that M. S.'s ratio of liquids-in-to- urine-out, while in the recovery room, was 1:5--850 cc in and 4250 cc out.
Otherwise, M. S. was stable in the recovery room. At 5:00 p.m., the anaesthesiologist released M. S. from the recovery room so she could be taken to her room.
At some point, Respondent ordered that a nurse draw blood from M. S. at 6:00 p.m. for laboratory work. Respondent claims that he did not order an electrolyte study earlier because he did not believe that M. S. would have been sufficiently stable to produce accurate results. Nothing in the
record justifies this decision by Respondent. Although an electrolyte study may have revealed dangerously low sodium levels, nothing in the record suggests that this condition was a routine or natural condition associated with this type of surgery.
Pursuant to Respondent's order, a nurse took blood for an electrolyte study at 5:42 p.m. The electrolyte study reported a dangerously low level of sodium--107 mEq/L of sodium. Potassium, chloride, and carbon dioxide were also low, but not "critically low," in the nomenclature of the written laboratory report, which notes that, at 6:12 p.m., Denacy Weaver, a registered nurse, was notified of this critically low value for sodium.
Without the testimony of Nurse Weaver, it is difficult to determine definitively whether she told Respondent of M. S.'s dangerously low sodium value. Five facts preclude a finding that Nurse Weaver conveyed this crucial information to Respondent; to the contrary, it is more likely than not that she misunderstood the reported sodium value to be 137 mEq/l, rather than 107 mEq/l.
First, the nursing notes do not record the dangerously low sodium value--an odd omission, given a life-threatening electrolyte imbalance. Second, and consistent with this omission, Nurse Weaver did not report this dangerously low
sodium value to Pauline Morris, another registered nurse. Nurse Morris, who testified, reported to work at 7:00 p.m. and spoke with Nurse Weaver sometime after 7:30 p.m.--after Nurse Weaver had received the 6:12 p.m. laboratory report and after Nurse Weaver had spoken with Respondent at about 7:30 p.m.
Third, Nurse Weaver waited about one hour and twenty minutes to call Respondent and report the laboratory results--an inexplicable and highly unlikely delay, if Nurse Weaver had understood the reports to include a dangerously low level of sodium. Fourth, after Nurse Weaver communicated the contents of the laboratory report at 7:30 p.m., Respondent did not respond aggressively to this electrolyte emergency, as he did several hours later when he learned (probably for the first time) that
M. S.'s sodium value was dangerously low (although 10 mEq/l higher than it was in the 6:12 p.m. laboratory report). Fifth, Nurse Weaver records in the nursing notes that she gave Respondent the "lab results," but fails to mention anything about the dangerously low sodium level.
The record does not reveal whether the laboratory technician reported the sodium level orally or in writing to Nurse Weaver. Nor does the record reveal whether, if reported in writing, the report was in handwriting or in type. Perhaps Nurse Weaver misread or even misheard the more normal, and thus more common, "137 for the actual "107." Ample reasons exist to
explain Nurse Weaver's misunderstanding of the 6:12 p.m. laboratory report for sodium values. Together with the five facts suggesting that Nurse Weaver failed to inform Respondent that the sodium value was dangerously low, it is impossible to find, as Petitioner contends, that Nurse Weaver informed Respondent at 7:30 p.m., or any other time, that the 6:12 p.m. laboratory report revealed a sodium level of 107 mEq/l.
At the conclusion of the 7:30 p.m. telephone conversation and after learning of the other laboratory results, Respondent ordered another electrolyte study to be taken at 10:00 p.m. and a change of M. S.'s intravenous solution from a lactated Ringer's solution to one-half normal saline solution. Although Nurse Morris opined that lactated Ringer's solution contained a "very small percent, . . . if any[,]" of sodium, the record does not provide the basis for a finding whether the one- half normal saline solution supplied M. S. more or less sodium than the lactated Ringer's solution supplied her. Either way, the importance of Respondent's choice in this case is undermined by the likelihood that he was responding to a sodium level that was at the bottom of the normal range, but not dangerously low.
At 9:40 p.m., a nurse collected more blood from M. S. for another electrolyte study. At 10:19 p.m., a laboratory technician informed a nurse named "Inga" that the sodium level was 117 mEq/L and the potassium was 2.9 mEq/L--both "critically"
low. The chloride and carbon dioxide were also low, although not critically.
Since the 6:12 p.m. laboratory report, M. S. had experienced nausea, vomiting, disorientation, and unresponsiveness to pain, which, although nonspecific, are associated with hyponatremia. In Nurse Morris's presence, M. S. sat up straight in bed and stated that she felt she was going to die.
Immediately after M. S. made her unnerving statement that she felt like she was going to die, Nurse Morris spoke with the charge nurse, Inger Pufker--evidently, the "Inga" to whom the laboratory technician spoke. (The same type of laboratory record misspelled Respondent's name as "Rustuweekie" as the recipient of a later report.) Nurses Morris and Pufker "pulled up" the results of the most recent laboratory work and found that the sodium and potassium were dangerously low. Nurse Morris immediately telephoned Respondent, probably between 10:19
p.m. and 10:30 p.m. After Nurse Morris informed Respondent of the results of the laboratory work, he ordered her to add 40 mEq of potassium chloride, directed Nurse Morris to summon another physician for a consult, and drove to the hospital.
By the time Respondent had arrived at the hospital,
M. S. had suffered a seizure, was unresponsive, and had gone into respiratory arrest. The course of her inadequately treated
hyponatremia was the accumulation of excessive fluid intravascularly so as to cause pulmonary edema. She was declared brain dead on July 23, 1996. On August 14, 1996, she was pronounced dead.
Petitioner has alleged four bases for a deviation from the applicable standard of care: failure to assess the potential post-operatively for low sodium and monitor sodium levels immediately following surgery; failure to properly measure the amount of glycine entering and leaving M. S.; delaying in ordering the necessary tests after being informed of abnormal sodium and potassium levels; and inadequately and inappropriately treating M. S.
As for the measurement of the glycine, Petitioner failed to prove that Respondent deviated from the applicable standard of care. Petitioner's expert witness did not even know what kind of equipment was used to monitor the glycine that was injected and recovered. Nor did Petitioner introduce any evidence as to the adequacy of Respondent's reliance upon an operating room nurse to monitor this function and advise him if they reached a certain range of unrecovered glycine. The record demonstrates that Respondent sufficiently monitored, or caused to be monitored, the glycine to know that M. S. may have absorbed a potentially dangerous amount.
As for the delay in ordering the necessary tests after learning of the abnormal sodium and potassium levels, Petitioner failed to prove that Respondent deviated from the applicable standard of care. Petitioner, which is alluding to the 6:12
p.m. laboratory work, failed to prove that the potassium level was significantly abnormal to warrant action. As for the sodium, Petitioner failed to prove that anyone informed Respondent that M. S.'s sodium was dangerously low.
As for inadequately and inappropriately treating
M. S., Petitioner failed to prove that Respondent deviated from the applicable standard of care. Petitioner, which is again alluding to the 6:12 p.m. laboratory work, failed to prove that Respondent's treatment was substandard, based on what he had been told by Nurse Weaver. Respondent knew that M. S.'s potassium was out of the normal range by as small a unit of measurement as applied to the test. Respondent also "knew" that
M. S.'s sodium was just above the low end of the normal range.
As for the failure to monitor M. S.'s sodium levels immediately following surgery, Petitioner proved that Respondent deviated from the applicable standard of care. M. S. absorbed enough glycine during the surgery to cause her sodium level to drop to 107 mEq/l four and one-half hours after surgery. The applicable standard of care demanded that Respondent begin
assessing M. S.'s electrolytes intra-operatively, as well as immediately post-operatively.
Respondent contends that the anaesthesiologist was responsible for M. S. for the several hours that she remained in the recovery room. However, Petitioner has proved that, under the applicable standard of care, the anaesthesiologist's recovery-room responsibilities did not relieve Respondent of the responsibility for monitoring M. S.'s electrolytes, during and at all times after the surgery, to assess for possibly hyponatremia--resulting from her absorption of dangerous amounts of glycine administered under the supervision and direction of Respondent, not the anaesthesiologist.
The significance of Respondent's failure to obtain earlier sodium levels is not theoretical. By 6:00 p.m., when Respondent ordered the laboratory work to be done, M. S.'s life was already in jeopardy due to her low sodium level. Nurse Weaver probably deprived Respondent of a chance to save M. S.'s life, but Respondent's failure to order timely monitoring of
M. S.'s sodium levels put M. S.'s life in peril in the first place.
Lastly, Petitioner failed to prove that Respondent kept inadequate medical records. Petitioner's expert opined in his report dated August 30, 2000, that the "medical records are
not deficient." The record does not contain a sufficient basis to overturn this finding by Petitioner's expert.
CONCLUSIONS OF LAW
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. All references to Rules are to the Florida Administrative Code.)
Section 458.331(1)(t) provides that the Board of Medicine may impose discipline for "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."
Section 485.331(1)(m) provides that the Board of Medicine may impose discipline for the failure to keep medical records "that justify the course of treatment of the patient
. . . ."
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).
Rule 64B8-8.001 sets forth the penalty guidelines.
For a violation of Section 458.331(1)(t) that is a first
offense, Rule 64B8-8.001(2)(t) provides a range from probation to revocation and an administrative fine from $1000 to $10,000.
The salient facts in this case are that Respondent failed to take a simple precaution--timely monitoring of electrolytes--that would have materially reduced the possibility of a life-threatening consequence. In setting the appropriate penalty for Respondent's deviation from the applicable standard of care, the probable intervention of Nurse Weaver to exacerbate the situation does not completely mitigate the tragic loss of the patient's life.
It is
RECOMMENDED that the Board of Health enter a final order finding Respondent guilty of violating Section 458.331(1)(t), Florida Statutes, imposing a one-year suspension of his license, and imposing an administrative fine of $10,000.
DONE AND ENTERED this 30th day of July, 2002, 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 30th day of July, 2002.
COPIES FURNISHED:
Bruce A. Campbell Senior Attorney
Agency for Health Care Administration Post Office Box 14229, Mail Stop Code 39A Tallahassee, Florida 32317-4229
Gustavo Gutierrez Gustavo Gutierrez, P.A. Grove Place, Suite 300 2964 Aviation Avenue
Coconut Grove, Florida 33133
Orestes Perez
Luks & Santiniello, L.L.C. Sun Trust Center, Suite 1100
515 Las Olas Boulevard
Fort Lauderdale, Florida 33301
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
R. S. Power, 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 must be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 27, 2002 | Agency Final Order | |
| Jul. 30, 2002 | Recommended Order | Recommended one-year suspension and $10,000 fine for physician who failed to order electrolyte study until several hours after surgery for a patient who had absorbed a large amount of glycine. |
