STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 07-1962PL

)

JAMES C. DOZIER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on July 30, 2007, in Vero Beach, Florida.

APPEARANCES

For Petitioner: Don Freeman

Assistant General Counsel Prosecution Services Unit Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Barry A. Postman, Esquire

Lee Cohen, Esquire

Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Boulevard Second Floor

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

The issues in this case for determination are whether Respondent James C. Dozier, M.D., committed the violations of Chapter 458, Florida Statutes (2003), as alleged in an Administrative Complaint filed by the Department of Health on October 3, 2006; and, if so, what disciplinary action should be taken against his license to practice medicine in Florida.

PRELIMINARY STATEMENT

On or about October 3, 2006, the Department of Health filed before the Board of Medicine a two-count Administrative Complaint, DOH Case Number 2005-61833, against Respondent James

1. Dozier, M.D., an individual licensed to practice medicine in Florida. In particular, it is alleged in the Administrative Complaint that Dr. Dozier committed violations of Section 458.331(1)(m) and (t), Florida Statutes (2003)(All references to Florida Statutes and the Florida Administrative Code are to the 2005 versions, unless otherwise indicated). Dr. Dozier, through counsel, disputed the allegations of fact contained in the Administrative Complaint and requested a formal administrative hearing pursuant to Sections 120.569(2)(a) and 120.57(1), Florida Statutes (2006).

   On May 18, 2007, the matter was filed with the Division of Administrative Hearings with a request that an administrative law judge be assigned to conduct proceedings pursuant to Section

   120.57(1), Florida Statutes (2006). The matter was designated DOAH Case Number 07-1962PL and was assigned to the undersigned.

   The final hearing was scheduled to be held in Vero Beach, Florida, on June 26 and 27, 2007, by Notice of Hearing entered May 18, 2007. On June 27, 2007, an Order Granting Continuance and Re-Scheduling Hearing was entered granting Petitioner’s Unopposed Motion for Continuance. The final hearing was scheduled for July 30 and 31, 2007.

   On June 19, 2007, the parties filed a Joint Prehearing Statement. That pleading contains stipulated facts, which have been included in this Recommended Order.

   During the final hearing, Petitioner presented the testimony of John Vincent Murray, M.D., and, by deposition (DVD and transcript), S.C. Petitioner's Exhibits 1 through 4 and 6 were admitted.

   Dr. Dozier testified on his own behalf and presented the testimony of Rudeiger Lindner, M.D., Dr. Murray, and, by deposition, Steven G. Ritter, M.D. Respondent's Exhibits 1 through 4 were also admitted.

   One Joint Exhibit was offered and admitted.

   
   

   The two-volume Transcript of the final hearing was filed on August 14, 2007. By Notice of Filing Transcript entered the same day, the parties were informed that the Transcript had been filed and that their proposed recommended orders were to be

   filed on or by September 4, 2007. Petitioner’s Proposed Recommended Order was filed September 4, 2007. Respondent’s Recommended Order was technically filed September 5, 2007, although it was received by facsimile at 6:23 p.m. on

   September 14, 2007. The post-hearing proposals of both parties have been fully considered in rendering this Recommended Order.

   FINDINGS OF FACT

   
   

   1. The Parties.

      
      

      1. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat.

      2. Respondent, James C. Dozier, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 47971.

      3. Dr. Dozier’s mailing address of record at all times relevant to this matter is Indian River Memorial Hospital Department of Emergency Medicine, 1000 36th Street, Vero Beach, Florida 32960.

      4. Dr. Dozier is board-certified in Emergency Medicine.

      5. Dr. Dozier has previously been subject to license discipline in Agency for Health Care Administration Case Number 93-20295.

   2. Patient D.C.

      
      

      1. On September 3, 2003, Patient D.C. was 49 years of age and obese. He was living a largely sedentary lifestyle, having suffered a work-related spinal injury several years before 2003.

         D.C. did not work. He was taking methadone, a powerful narcotic painkiller used for long-term, chronic pain relief, daily. As a result of his spinal injury, D.C. spent most of his time at home and did not engage in significant physical activity.

      2. On September 3, 2003, D.C. experienced an episode of hard coughing, during which he produced brown sputum.

      3. At approximately 9:15 a.m., September 4, 2003, D.C. awoke with sharp, left-sided chest and shoulder pain, and shortness of breath. The pain in his chest was excruciating and he had difficulty breathing. Consequently, his wife, S.C., telephoned 911 and requested emergency assistance at approximately 9:19 a.m.

   3. Transport of Patient D.C. to the Hospital.

      
      

      1. Emergency medical services personnel (hereinafter referred to as “EMS Personnel”), arrived at D.C.’s house at approximately 9:25 a.m., September 4, 2003.

      2. What transpired beginning with the arrival of EMS Personnel and their delivery of D.C. to Indian River Memorial Hospital (hereinafter referred to as “Memorial Hospital”), was documented in an Indian River County EMS report, Incident

         # 014509 (hereinafter referred to as the EMS Report). A copy of the EMS Report was admitted as Petitioner’s Exhibit 3. As alleged in the Administrative Complaint, the EMS Report indicates the following:

         1. D.C.’s lung sounds were decreased on the left side with wheezes in several fields bilaterally and during transport to the hospital there was no change in his pain, although there was a decrease in the wheezing;

         2. At 9:27 a.m. D.C.’s pulse rate was 110, respiratory rate was 24 and oxygen saturation level was 92 percent by pulse oximetry;

         3. At 9:39 a.m. D.C.’s pulse rate was 116, respiratory rate was 24, and oxygen saturation level was 97 percent after the administration of oxygen by nasal cannula.

      3. A copy of the EMS Report was not provided to Memorial Hospital until after the events relevant to this case. While the EMS Report notes that EMS Personnel “[t]ransferred care to ER nurse with report,” the nature of the “report” was not proved during the hearing of this matter. Dr. Dozier was not made aware of the contents of the EMS Report or the “report”

         purportedly made by EMS Personnel to the emergency room nurse. Nor did he make any effort to inquire about D.C.’s condition during the time he was in the care of EMS Personnel.

      4. While the evidence presented at hearing proved that Dr. Dozier should have made an effort to inquire about D.C.’s condition during the time he was in the care of EMS Personnel, the charges in this case are limited to Dr. Dozier’s actions after D.C.’s arrival at Memorial Hospital; there is no allegation in the Administrative Complaint relating to any failure on the part of Dr. Dozier to determine what data EMS Personnel were aware of or ultimately reported. Most importantly, while there are allegations of fact concerning what EMS Personnel determined about D.C.’s condition, the Administrative Complaint does not inform Dr. Dozier of how those facts related to his care of D.C. What was in the EMS Report is, therefore, ultimately not relevant in deciding whether the allegations of the Administrative Complaint have been proved.

      5. Counsel for the Department has accurately reported parts of the EMS Report in paragraphs 23 through 32 of Petitioner’s Proposed Recommended Order and counsel for

         Dr. Dozier have accurately summarized some of the information contained in the EMS Report in their proposed finding of fact 8. Those proposed findings of fact, although accurate, have not been included in this Recommended Order because they relate to

         information which Dr. Dozier never had at the times relevant to this case.

   4. Dr. Dozier’s Treatment of Patient D.C.

      
      

      1. EMS personnel delivered D.C. at Memorial Hospital at approximately 9:54 a.m., September 4, 2003.

      2. It was documented in the Emergency Room (hereinafter referred to as the “ER”), nurse’s notes, that D.C., upon arrival, reported that he had suffered a severe coughing spell the night before, experienced increased shortness of breath, coughed up dark brown sputum, and had felt sharp left-side chest pain.

      3. It was also documented that D.C.’s oxygen saturation was 94 percent on supplemental oxygen; he was experiencing the highest level of left-sided chest pain, pain that increased with deep breaths; he was awake, alert, and oriented; his complexion was normal in color; his pulse rate was 99 beats per minute; and his respiratory rate was 22 breaths per minute.

      4. An ER nurse noted that D.C. had a history of spinal surgery and was taking methadone.

      5. Another ER nurse saw D.C. at approximately 10:00 a.m.

         
         

         The nurse noted in the record that D.C. was suffering sharp pain on inspiration, his oxygen saturation had increased to

         97 percent on two liters of supplemental oxygen, and that he had decreased breath sounds on the left side of his chest.

      6. One of the nurses who saw D.C. ordered blood tests, including a complete blood count, cardiac markers, a differential, and a complete metabolic panel. The blood tests were subsequently cancelled. The only documentation in D.C.’s medical records at Memorial Hospital indicates that the tests were cancelled at 10:15 a.m. with a notation “Cancelled Requested by Nurse/MD PER DR DOZIER,” although Dr. Dozier did not first see D.C. until approximately 10:15 a.m. Dr. Dozier testified at final hearing that the tests had been cancelled at D.C.’s request. There are no medical notes to substantiate this testimony.

      7. Dr. Dozier documented his care of D.C. in an “Any Complaint Template” form with a time stamp of 10:17:33 a.m. Dr. Dozier noted in the Any Complaint Template that D.C. was suffering from sharp, left-sided chest pain of several hours duration with splinting (stiffening of the body to avoid pain caused by movement) and decreased breath sounds on the left side.

      8. Dr. Dozier also documented that D.C.’s past medical history included chronic pain that was being treated by methadone.

      9. Dr. Dozier ordered a chest X-ray and an EKG. He also started D.C. on Toradol, a non-steroidal, anti-inflammatory drug

         used for pain relief, and Levaquin, an antibiotic. The chest X- ray and EKG were documented in the Any Complaint Template.

      10. The EKG performed on D.C. was normal. His chest X-ray was interpreted by the radiologist as normal, except that he was exhibiting poor inspiratory effort.

      11. Dr. Dozier, under “differential diagnosis,” listed pleurisy (an inflammation of the lining of the chest wall and lungs marked by chest pain that increases on inspiration) first and pneumonia (an infection of the lungs marked by a severe cough, chest pain, and fever) second.

      12. A “differential diagnosis” was explained by Dr. Murray:

          Differential diagnosis is when you have a patient that comes into the emergency room and he has this constellation of signs and symptoms and risk factors. You try to put it together, you make a list, here’s all the possible things that could be wrong with this guy. So that’s your differential diagnosis. What are the possibilities here with what I have to look at. So you list our differential diagnosis.

          
          

          Transcript, page 39, lines 22-25, and page 40, Lines

          
          

          1-4.

          
          

      13. Based upon the information which Dr. Dozier had

          
          

          concerning D.C., while pleurisy and pneumonia were reasonably included in his differential diagnosis, he should have also considered myocardial infarction, bronchitis, and, most

          significantly, pulmonary embolus. Of significance in this case, is Dr. Dozier’s failure to include pulmonary embolus in his differential diagnosis.

      14. Pulmonary embolus is a condition whereby the arteries in the lungs are blocked by one or more blood clots. A pulmonary embolism usually occurs when blood clots that have formed in the veins of a person’s extremities dislodge and are transported by the blood stream to the lungs where they become trapped by smaller arteries.

      15. The formation of blood clots in the extremities is called deep vein thrombosis (hereinafter referred to as the “DVT”).

      16. When blood clots become lodged in the lungs, the lungs can be damaged or, if blood flow becomes too constricted, the person can die.

      17. Pulmonary embolisms are encountered in emergency rooms with some frequency.

      18. In determining whether a person is suffering from pulmonary embolus, the common risk factors must be considered. Those risk factors include a history of previous pulmonary embolus or DVT; immobilization (the person is confined to bed, sedentary, or has recently taken a long trip); smoking; obesity; hypercoagulablity (increased tendency of the blood to clot); and cancer.

      19. The most common signs of pulmonary embolus are chest pain, usually of sudden onset and which becomes worse with deep breathing or coughing; shortness of breath, again of a sudden nature; sweating; nausea; rapid breathing or tachypnea; increased heart rate or tachycardia; low oxygen saturation; and hemotysis or coughing up blood.

      20. Making it difficult to diagnose, a patient with a pulmonary embolism may present with various combinations of symptoms, and the symptoms are often similar to those of other ailments, such as heart attack, bronchitis, pleurisy, pneumothorax, acid reflux, dissecting thoracic anerurysm, and pneumonia.

      21. Tests which can assist a physician in the either confirming or ruling out a pulmonary embolism, include ventilation/perfusion scanning (hereinafter referred to as “V/Q Scanning”), d-dimer testing, spiral computerized axial tomography, pulmonary angiography, and Doppler ultrasound. While not all of these tests were available to Dr. Dozier, V/Q Scanning was.

      22. Pulmonary embolus should have been included in Dr.

          
          

          Dozier’s differential diagnosis of D.C. because D.C. arrived at the ER with a chief complaint of chest pain and, as explained by Dr. Murray because of the following:

          Now, what would even make [pulmonary embolus] more likely, and perhaps having to pursue a little bit more, is the type of pain that he had, which is important to tell the difference between a lot of those conditions. He had pleuritic pain. That’s the classic type of chest pain that somebody with a pulmonary embolus has as classically described as pleuritic sharp chest pain.

          That’s what this patient had.

          
          

          Then what was the onset? Was this gradual onset or sudden? P[ulmonary] E[mbolism]s are sudden onset.

          
          

          As far as I can tell, when it says in timing, it says symptoms for, now I can’t read that, how many that is, but he had circled hours. So I can just assume that he told Dr. Dozier that he was having these symptoms just for however many hours that stands for.

          
          

          So I was worried about the chest pain, the nature of the chest pain, the short duration of it, that I think it says brownish – or I’m not even – I would cough brownish sputum. I think that’s what it says, but I couldn’t say for sure under history of present illness, which would make me worry about that.

          
          

          Transcript, page 85, lines 3-23.

          
          

      23. D.C.’s history of acute onset shortness of breath and severe left-side pleuritic chest pain, his possible hemoptysis the night before his arrival at Memorial Hospital, and his elevated pulse and respiratory rates, all facts that were documented in the medical records for D.C. at Memorial Hospital, should have caused Dr. Dozier to include pulmonary embolus in his differential diagnosis.

      24. As a result of the fact that he did not consider pulmonary embolus as a possible ailment, Dr. Dozier failed to order tests which could have helped him to rule out pulmonary embolus or led him to conclude that D.C. was suffering from the ailment. In particular, he failed to order a V/Q scan.

      25. Ultimately, Dr. Dozier released D.C., listing as his final diagnoses pleurisy and bronchitis (inflammation of the bronchial tubes marked by painful cough and fever). Dr. Dozier prescribed Vioxx, a non-steroidal anti-inflammatory drug, Levaquin, and Flexeril (a central nervous system depressant, commonly referred to as a “muscle relaxer”).

   5. Cancellation of the Blood Tests.

      
      

      1. As noted in Findings of Fact 19, blood tests ordered for D.C. were ultimately cancelled. According to Dr. Dozier, they were cancelled because D.C. refused the tests, a suggestion that was not documented by Dr. Dozier in D.C.’s medical records, despite the seriousness of a patient refusing tests which a physician prescribes. Given the significance of the consequences of such a refusal, Dr. Dozier’s testimony on this point is questionable and rejected as not convincing.

      2. Other facts also raise concerns about the credibility of Dr. Dozier’s testimony concerning the cancellation of the blood tests. For example, S.C. saw D.C. approximately an hour after his arrival at the hospital and found him quiet, pale, and

         looking very ill. At no time did D.C. or Dr. Dozier, whom she had spoken with, inform S.C. that D.C. had refused blood tests. It is also noted that D.C. did not refuse other tests, including the chest X-ray and EKG ordered by Dr. Dozier.

      3. Ultimately, Dr. Dozier’s explanation concerning the cancellation of the blood tests was not convincing, based upon findings made in this Recommended Order and because of the troublesome aspects of his testimony as explained in paragraph

         51 of Petitioner’s Proposed Recommended Order, which is incorporated by reference. Despite this conclusion, ultimately, it was the Department’s burden to prove why the blood tests were cancelled. This the Department simply did not do. Ultimately the evidence simply proved that the tests were ultimately cancelled.

      4. Regardless of why the blood tests were cancelled, Dr. Dozier violated the standard of care, as found, infra.

   6. Instructions on Discharge.

      
      

      1. On discharge, D.C. was given the following written instructions on a pre-printed form:

         1. The doctor thinks your symptoms may be due to: PLEURISY. Keep this in mind: DIAGNOSIS WITH 100% CERTAINTY IS NOT POSSIBLE in the Emergency Department. Therefore, if you find you are not getting better, another diagnosis is possible, and you must see your doctor or return here.

         2. After you leave, you must properly care for your problem and observe its progress. If you do not improve as expected, or are worse, do one of the following. Immediately: contact your doctor or follow up doctor or call here [the ER].

            
            

         3. Contact your doctor, call, or return here if you experience any of the following:

            A) high fever or chills B) difficulty breathing C) difficulty; swallowing or drooling D) pain or tightness in chest or neck E) thick green or bloody sputum F) fast pulse (more than 100 a minute at rest) G) vomiting.

            
            

         4. Your symptoms should improve within 4-6 days and should not worsen. You should be able to breathe comfortably when sitting or lying down, and should not be struggling to breathe. You should be able to eat, drink, and swallow without pain or drooling.

            
            

         5. Rest, drink plenty of fluids, and eat regular well-balanced meals. Use Acteminophen (Tylenol, etc.) for pain or fever, and take any prescribed medications. A cool-mist vaporizer may help decrease cough and discomfort. DO NOT use a hot mist vaporizer of hot steam. DO NOT smoke during your illness; smoking will delay your recovery.

            
            

      2. The forgoing instructions were consistent with Dr.

         
         

         Dozier’s diagnosis of pleurisy or bronchitis. Having failed to consider pulmonary embolus, the instructions were inadequate in failing to address this possible condition.

   7. The Standard of Care.

      
      

      1. The Department's expert, John V. Murray, M.D., credibly opined that Dr. Dozier failed to practice medicine in

         accordance with the level of care, skill, and treatment recognized in general law related to health care licensure in violation of Section 458.331(1)(t), Florida Statutes (hereinafter referred to as the "Standard of Care"), in his treatment of D.C.

      2. In particular, it was Dr. Murray’s opinion that

         
         

         Dr. Dozier violated the Standard of Care by failing to recognize the possibility that D.C. was experiencing a pulmonary embolism and, as a consequence, by failing to include pulmonary embolus in his differential diagnosis; and by failing to order diagnostic tests, in particular V/Q Scanning, which may have either ruled out or confirmed the existence of a pulmonary embolism. Dr. Murray’s opinions are credited and accepted.

      3. The opinions to the contrary offered by Dr. Dozier and his expert witness are rejected as not convincing and as not addressing the issues precisely enough. Too much was made of facts which were not available to Dr. Dozier at the time he made his differential diagnosis and the consequences thereof, unlike Dr. Murray, who specifically testified, when asked whether he attempted “to put yourself in Dr. Dozier’s shoes on the day these events occurred,” as follows:

         A. Yes, sir. I think that’s necessary. If you’re going to make a finding that was the standard of care, I think the standard of care relates to what would the prudent physician in the same circumstances on the

         same day do. In order to do that, you put yourself in those shoes.

         
         

         Say if I was there what would I do and what would be the standard of care for that, the minimum.

         
         

         Transcript, page 33, lines 22-25, and page 34, lines 1-3.

         
         

         Dr. Murray went on to explain that, although he had learned from the documents presented to him, information that Dr. Dozier did not have available while caring for D.C., he was able to limit his opinions appropriately to the time of the actual events and the information which Dr. Dozier was presented with. The opinions offered on behalf of Dr. Dozier were not so precisely limited.

   8. Medical Records.

1. Dr. Dozier failed to document in his medical records for D.C. whether D.C. was a smoker or had recently taken any long trips, both facts which are relevant bits of information when considering pulmonary embolus. Dr. Dozier’s medical records were, therefore, inadequate in this regard.

2. Dr. Dozier also failed to give adequate follow-up instructions for pulmonary embolus upon discharge. Dr. Dozier’s actions, however, were the result, not of his failure to include pulmonary embolus in his differential diagnosis, but in the failure to accurately diagnosis D.C.’s condition, a failure for which Dr. Dozier has not been charged.

   I. D.C.’s Demise.

   
   

3. On September 6, 2003, D.C. died in his sleep. A postmortem autopsy of D.C. revealed that he died of “massive pulmonary thromboembole due to phlebothromboses of lower extremities.” It was found that D.C. had an abdominal malignancy, a significant contributing factor in the death of

D.C.

1. What role, if any, that Dr. Dozier’s failures in his

   
   

   treatment of D.C. contributed to D.C.’s ultimate demise was not proved.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

2. 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(5), Florida Statutes (2007).

   1. The Charges of the Administrative Complaint.

      
      

3. Section 458.331(1), Florida Statutes, authorizes the Board of Medicine (hereinafter referred to as the "Board"), to impose penalties ranging from the issuance of a letter of concern to revocation of a physician's license to practice medicine in Florida if a physician commits one or more acts specified therein.

4. In its Administrative Complaint the Department has alleged that Dr. Dozier has violated Section 458.331(1)(m) and (t), Florida Statutes.

   1. The Burden and Standard of Proof.

      
      

5. The Department seeks to impose penalties against Dr. Dozier’s license through the Administrative Complaint that include suspension or revocation of his license and/or the

   imposition of an administrative fine. Therefore, the Department has the burden of proving the specific allegations of fact that support its charge that Dr. Dozier violated Section 458.331(1)(m) and (t), Florida Statutes, by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pou v. Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998); and Section 120.57(1)(j), Florida Statutes (2007)("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").

6. What constitutes "clear and convincing" evidence was described by the court in Evans Packing Co. v. Department of

   Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), as follows:

   . . . [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

   
   

   See also In re Graziano, 696 So. 2d 744 (Fla. 1997); In re Davey, 645 So. 2d 398 (Fla. 1994); and Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

   1. Counts One and Two: Violation of Section 458.331(1)(t), Florida Statutes, The Standard of Care.

7. Section 458.331(1)(t), Florida Statutes, defines the following disciplinable offense:

   . . . .

   
   

   1. Committing medical malpractice as defined in s. 456.50. The board shall give great weight to the provisions of s. 766.102 when enforcing this paragraph. Medical malpractice shall not be construed to require more than one instance, event, or act.

   2. Committing gross medical malpractice.

   3. Committing repeated medical malpractice as defined in s. 456.50. A person found by the board to have committed repeated medical malpractice based on s.

      456.50 may not be licensed or continue to be licensed by this state to provide health

      care services as a medical doctor in this state.

      
      

      Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph. A recommended order by an administrative law judge or a final order of the board finding a violation under this paragraph shall specify whether the licensee was found to have committed "gross medical malpractice," "repeated medical malpractice," or "medical malpractice," or any combination thereof, and any publication by the board must so specify.

      
      

8. The terms "Medical malpractice" are defined in Section 456.50(1)(g), Florida Statutes, in pertinent part, as follows:

   (g) "Medical malpractice" means the failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure. . . .

   
   

   "Repeated medical malpractice" is defined as three or more incidents of medical malpractice committed by a physician.

   § 56.50(1)(h), Fla. Stat. While "gross medical malpractice" is not defined in Section 456.50, Florida Statutes, the Department has not suggested that Dr. Dozier committed gross medical malpractice.

9. In paragraph 35 of the Administrative Complaint, it is alleged that Dr. Dozier violated the Standard of Care in his treatment of D.C. by failing to do one or more of the following:

   1. . . . consider the diagnosis of pulmonary embolism and put it in his differential.

   2. . . . work up the diagnosis of pulmonary embolism.

   3. . . . order a D-dimer test, an[] ABG, a venous Doppler of the legs, a lung scan or a spinal CT scan.

   
   

10. The evidence has clearly and convincingly proved that Dr. Dozier violated the Standard of Care as alleged in paragraph 35a) and c) as described in the findings of fact. Clearly,

    Dr. Dozier should have taken steps to rule out or substantiate the possibility that D.C. was suffering from pulmonary embolus. He should have included pulmonary embolus in his differential diagnosis and he should have at least ordered a spinal CT to either confirm or disprove that diagnosis.

11. The Department has clearly and convincingly proved that Dr. Dozier violated the Standard of Care as alleged in Counts One of the Administrative Complaint.

    1. Count Two; Violation of Section 458.331(1)(m), Florida Statutes; Medical Records.

12. Section 458.331(1)(m), Florida Statutes, defines the following disciplinable offense:

    Failing to keep legible, as defined by department rule in consultation with the board, 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, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

    
    

13. Florida Administrative Code Rule 64B8-9.003(2) describes the type of medical records a physician must maintain in order to avoid discipline under Section 458.331(1)(m), Florida Statutes:

    . . . .

    
    

    1. A licensed physician shall maintain patient medical records in English, in a legible manner and with sufficient detail to clearly demonstrate why the course of treatment was undertaken.

    2. The medical record shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient.

    
    

    . . . .

    
    

14. In paragraph 38 of the Administrative Complaint, it is alleged that Dr. Dozier failed to keep legible medical records

    that justify the course of D.C.’s treatment in that he failed to document one or more of the following:

    1. . . . an adequate history, including smoking history, recent trips or family history of cardiac disease.

    2. . . . an appropriate plan or treatment for the patient’s condition.

    3. adequate follow-up care or follow-up time on the Instructions Sheet given to Patient D.[C]. upon discharge.

    
    

15. The evidence proved clearly and convincingly that Dr. Dozier’s failure to document an adequate history, in particular, smoking history, recent trips, or family cardiac disease history, in D.C.’s medical records, and the failure to provide follow-up instructions for pulmonary embolus were inconsistent with Florida Administrative Code Rule 64B8-9.003, and in violation of Section 458.331(1)(m), Florida Statutes.

    1. The Appropriate Penalty.

    
    

16. In determining the appropriate punitive action to recommend to the Board in this case, it is necessary to consult the Board's "disciplinary guidelines," which impose restrictions and limitations on the exercise of the Board's disciplinary authority under Section 458.331, Florida Statutes. See Parrot Heads, Inc. v. Department of Business and Professional Regulation, 741 So. 2d 1231 (Fla. 5th DCA 1999).

17. The Board's guidelines are set out in Florida Administrative Code Rule 64B8-8.001, which provides the

    following "purpose" and instruction on the application of the penalty ranges provided in the Rule:

    1. Purpose. Pursuant to Section 456.079, F.S., the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 458, F.S. The purpose of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The ranges of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations.

       
       

    2. Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Section 120.57(1) and 120.57(2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included.

18. Florida Administrative Code Rule 64B8-8.001(2)(m) provides, in pertinent part, for a penalty for a violation of Section 458.331(1)(m), Florida Statutes, of a reprimand to denial of licensure or two years' suspension, followed by probation, and an administrative fine of from $1,000.00 to

    $10,000.00.

    
    

19. Florida Administrative Code Rule 64B8-8.001(2)(t)3. provides, in pertinent part, for a penalty for a violation of Section 458.331(1)(t), Florida Statutes of from two years’ probation to revocation, and an administrative fine of $1,000.00 to $10,000.00.

20. Florida Administrative Code Rule 64B8-8.001(3) provides that, in applying the penalty guidelines, the following aggravating and mitigating circumstances are to be taken into

    account:

    
    

    1. Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating factors the following:

       1. Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

       2. Legal status at the time of the offense: no restraints, or legal constraints;

       3. The number of counts or separate offenses established;

       4. The number of times the same offense or offenses have previously been committed by the licensee or applicant;

       5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

       6. Pecuniary benefit or self-gain inuring to the applicant or licensee;

       7. The involvement in any violation of Section 458.331, Florida Statutes, of the provision of controlled substances for trade, barter or sale, by a licensee. In such cases, the Board will deviate from the penalties recommended above and impose suspension or revocation of licensure;

       8. Any other relevant mitigating factors.

    
    

21. In Petitioner's Proposed Recommended Order, the Department has suggested that there are two aggravating circumstances: “First, given the missed diagnosis of Patient D.C.’s pulmonary embolism and his death two days later, D.C. and his surviving family members were clearly exposed to great physical, emotional and financial injury or potential injury as a result of Dr. Dozier’s actions in this case.” Secondly, the Department has pointed to Dr. Dozier’s previous discipline by the Board.

22. While it is true that Dr. Dozier has been previously disciplined, the alleged first aggravating circumstance is rejected. The evidence failed to prove the extent, if any, to which Dr. Dozier contributed to or caused D.C.’s death. While Dr. Dozier has been shown to have failed to make a proper

    differential diagnosis, the extent to which this error contributed to D.C.’s ultimate demise has not been proved.

23. The Department has requested that it be recommended that Dr. Dozier receive a reprimand; be required to pay a fine of $10,000; be required to serve 100 hours of community service; be required to complete the Florida Medical Association’s “quality Medical Record Keeping for health Care Professionals” course or a Board-approved equivalent; complete five hours of continuing medical education in diagnosis and treatment of pulmonary embolus.

24. Dr. Dozier has suggested, without legal explanation, that should he be found to have committed the alleged violations, that he receive a “letter of concern.” Given the Board’s guidelines, his request should not be granted.

25. Having carefully considered the facts of this matter in light of the provisions of Florida Administrative Code Rule 64B8-8.001, it is concluded that the Department's suggested penalty, other than the requirement that Dr. Dozier complete

100 hours of community services, is reasonable. The hours of community service are rejected because the Department has cited no authority for the Board to require community service.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the a final order be entered by the Board of Medicine finding that James C. Dozier, M.D., has violated Section 458.331(1)(m) and (t), Florida Statutes, as described in this Recommended Order; issuing a reprimand; imposing a fine of

$10,000.00; requiring that he complete the Florida Medical Association’s “quality Medical Record Keeping for health Care Professionals” course or a Board-approved equivalent; and requiring that he complete five hours of continuing medical education in diagnosis and treatment of pulmonary embolus.

DONE AND ENTERED this 20th day of September, 2007, in Tallahassee, Leon County, Florida.

S

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 20th day of September, 2007.

COPIES FURNISHED:

Don Freeman, Esquire Assistant General Counsel Prosecution Services Unit Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250

Barry A. Postman, Esquire Lee Cohen, Esquire

Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Boulevard Second Floor

West Palm Beach, Florida 33401

Larry McPherson, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel Department of Health

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

Dr. Ana M. Viamonte Ros, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 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 should be filed with the agency that will issue the final order in these cases.

Docket for Case No: 07-001962PL

Orders for Case No: 07-001962PL