STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE )
)
Petitioner, )
)
vs. )
)
ARYAMA DEVI SHARMA, M.D., )
)
Respondent. )
Case No. 10-2416PL
)
RECOMMENDED ORDER
This case came before Administrative Law Judge John G. Van Laningham for final hearing on October 25, 2010, in
Tallahassee, Florida.
APPEARANCES
For Petitioner: Greg S. Marr, Esquire
Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: Brian A. Newman, Esquire
Pennington, Moore, Wilkinson, Bell & Dunbar, P.A.
215 South Monroe Street, Second Floor Post Office Box 10095
Tallahassee, Florida 32302-2095 STATEMENT OF THE ISSUE
The issues in this case are whether Respondent, a physician specializing in gastroenterology, (a) mistakenly gave a patient an upper endoscopy, thereby committing the disciplinable act of
performing a "wrong procedure"; and/or (b) failed to confirm the intended procedure, allegedly a colonoscopy, before performing the alleged "wrong procedure," in violation of the "pause rule." If Respondent committed these offenses, or either of them, it will be necessary to determine an appropriate penalty.
PRELIMINARY STATEMENT
On October 26, 2009, Petitioner Department of Health issued a two-count Administrative Complaint against Respondent Aryama Devi Sharma, M.D. The Department alleged that Dr. Sharma had performed the wrong procedure on a patient, committing one disciplinable offense, and that she had failed to confirm the correct procedure before doing so, committing yet another offense. Dr. Sharma denied the charges and timely requested a formal hearing. On May 3, 2010, the Department referred the matter to the Division of Administrative Hearings, where an Administrative Law Judge was assigned to preside in the matter.
The final hearing, which had been continued twice on the Department's unopposed motions, took place on October 25, 2010. Both parties were represented by counsel. The Department called no witnesses at the final hearing, electing to rely on the depositions of Valerie Solomon, M.D.; patient G.R.; Christine Bomeisl, R.N.; Veronica Jacob, R.N.; and Jackie Johnson, R.N. Dr. Sharma testified on her own behalf and called Tasha Nunziato, R.N., as a witness.
The parties offered Joint Exhibits 1 through 4 (medical records and the depositions of G.R. and Dr. Solomon), which were received into evidence. Petitioner's Exhibit 3 was not admitted, but the Department thereafter proffered the exhibit, which has been placed in the file. Dr. Sharma offered Respondent's Exhibit 2 (Ms. Jacob's deposition), and it was received into evidence without objection.
The Department's motion to hold the record open to permit the admission into evidence of Ms. Johnson's and Ms. Bomeisl's depositions was granted. These transcripts were filed on November 17, 2010, as Petitioner's Exhibits A and B, and promptly received into evidence.
The final hearing transcript was filed on November 12, 2010. The parties filed a joint motion requesting that the deadline for filing proposed recommended orders be enlarged to December 3, 2010, and this motion was granted. Each party timely filed a Proposed Recommended Order, and these have been carefully considered.
Unless otherwise indicated, citations to the Florida Statutes refer to the 2007 Florida Statutes.
FINDINGS OF FACT
At all times relevant to this case, Respondent Aryama Devi Sharma, M.D., was licensed to practice medicine in the state of Florida. Dr. Sharma has practiced in Broward County
for nearly 20 years and has privileges at Broward General Medical Center (the "Hospital") in Fort Lauderdale, Florida. She is board-certified in gastroenterology and internal medicine.
Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as
Dr. Sharma. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense.
Here, the Department alleges that Dr. Sharma committed two such offenses when she performed an upper endoscopy on a patient named G.R., instead of a colonoscopy as originally planned. The crux of this case is whether, as the Department contends, Dr. Sharma made a mistake and performed the "wrong procedure" on G.R., or whether, alternatively, Dr. Sharma deliberately changed the plan for G.R. and intentionally performed the upper endoscopy, as she maintains. As will be seen, the resolution of this essential dispute of material fact drives the ultimate determinations regarding whether Dr. Sharma
performed a wrong procedure; (b) failed to obey the "pause rule," which requires a physician to stop and confirm the
intended procedure and the patient's identify before proceeding; or (c) committed both of these disciplinable offenses.
The events giving rise to this case began in the summer of 2007, when G.R.'s primary care physician, Dr. Valerie Solomon, referred G.R., then 60, to Dr. Sharma for a routine colonoscopy, which was overdue. As a result of this referral, Dr. Sharma saw G.R. for the first time on August 1, 2007. During this office visit, Dr. Sharma assessed G.R. and, while doing so, recorded pertinent medical information in her notes for inclusion in the patient's file. Dr. Sharma's contemporaneous notes report, for example, that G.R. complained of a change in bowel habits, occasional constipation, bloating, and heartburn. Dr. Sharma also wrote that G.R. was taking a prescription medicine called Actos for diabetes, as well as antacids as needed.
Dr. Sharma performed routine abdominal and rectal examinations on G.R., who did not refuse to undergo either. (Had G.R. refused these examinations, Dr. Sharma would have discharged her from her practice.) In conducting the abdominal
examination, Dr. Sharma discovered that G.R. had mild epigastric tenderness, which can be indicative of gastritis (an infection or inflammation of the stomach) or peptic ulcer disease. The rectal examination revealed occult blood——that is, blood invisible to the naked eye——in G.R.'s stool.
Based on these examinations, Dr. Sharma formulated three working diagnoses: (a) occult G.I. bleeding, for which she wanted to rule out (as possible causes) cancer, polyps, and diverticulitis; (b) dyspepsia, for which she wanted to rule out peptic ulcer disease, gastroesophageal reflux disease (GERD), and Helicobactor pylori (H. pylori) infection; and (c) diabetes mellitus. These working and differential diagnoses are documented in Dr. Sharma's office notes.
Dr. Sharma recommended that G.R. undergo both an upper endoscopy and a colonoscopy. Following her routine practice, Dr. Sharma explained both of these procedures to G.R., using anatomical posters in her examination room as visual aids.
Dr. Sharma wrote in her office notes as follow:
Plan on colonoscopy. Patient will need EGD [meaning esophagogastroduodenoscopy——in other words, an upper endoscopy], colonoscopy. Procedures explained to patient. All risks, benefits, complications and alternatives explained. [Patient] understands and agrees to proceed. Plan on EGD/colonoscopy. Schedule for colonoscopy.
Dr. Sharma testified credibly, and the undersigned finds, that G.R. consented to have both procedures done. For no particular reason, it was decided that the colonoscopy would be performed first, and Dr. Sharma's staff accordingly made an appointment for G.R. to have a colonoscopy at the Hospital on August 23, 2007. Dr. Sharma signed an order for the
colonoscopy, using a preprinted form for endoscopy procedures (including EGD), which was delivered to the Hospital the next day.1
On the morning of August 23, 2007, G.R. arrived at the Hospital to have the colonoscopy for which she had been scheduled. G.R. was seen upon admission by Christine Bomeisl, R.N., who obtained a medical history and checked G.R.'s vital signs. Ms. Bomeisl noted on a form called the Same Day Unit Flow Sheet that G.R. had arrived at 9:15 a.m., and that the patient reportedly had taken the laxative Fleet's Phospho-soda that day (as part of the colonoscopy prep) and vomited.2 At 9:40 a.m., G.R. signed a Consent for Operative and Invasive Procedures form, which authorized Dr. Sharma to perform a colonoscopy. Ms. Bomeisl witnessed G.R. sign the written consent form.
At a few minutes past 10:00 a.m., Dr. Sharma gave G.R. a preoperative physical, during which she took a brief medical history. Pre-op visits of this nature are part of Dr. Sharma's routine practice. G.R. complained to Dr. Sharma of nausea, vomiting, and abdominal pain, which Dr. Sharma documented contemporaneously, on a form called the Short Form History and Physical Medical Clearance (the "Pre-op Form"), as "60 yr old with dyspepsia." On the line where the Pre-op Form called for
entry of the patient's "chief complaint/present illness," Dr. Sharma wrote: "abdominal bloating."
Upon learning that G.R. had vomited earlier and continued to be nauseas, Dr. Sharma became concerned about performing a colonoscopy. This was because, if G.R. vomited while under sedation, she might aspirate the contents of her stomach. Additionally, it was more urgent under the circumstances, in Dr. Sharma's medical judgment, to investigate G.R.'s abdominal symptoms immediately and to defer the colonoscopy, which could wait. Accordingly, Dr. Sharma decided to change the original plan and perform an upper endoscopy on
G.R. that morning instead of a colonoscopy.3
Dr. Sharma explained the upper endoscopy procedure to G.R., informing G.R. that she would be putting a scope down G.R.'s esophagus to look into G.R.'s stomach in an attempt to find the cause of her acute distress. Dr. Sharma told G.R. that she would take tissue for a biopsy, if necessary. G.R. agreed with this change in the plan and verbally consented to the upper endoscopy.4 Dr. Sharma wrote on the Pre-op Form that the "procedure" to be performed was "EGD + Bp" [i.e. upper endoscopy with biopsy] and that the "plan" was "EGD + Bp." In addition, Dr. Sharma checked the "yes" box next to statement: "Risks, benefits, alternatives, & complications explained."5
Dr. Sharma told Hensylene Previlor, the nurse who was preparing patients for endoscopic procedures that morning, that
G.R. would be having an upper endoscopy. From that point forward, all of the members of the team involved in implementing Dr. Sharma's order proceeded with the correct understanding that Dr. Sharma intended to perform an upper endoscopy on G.R.6
G.R. was brought into the procedure room shortly before 11:00 a.m. Consistent with the Hospital's procedure for positioning a patient for an upper endoscopy, G.R. was lying on her side, facing the endoscope, her feet pointed towards the door. Thus, when Dr. Sharma entered the room, G.R. was prepared for an upper endoscopy.
Two nurses assisted Dr. Sharma with the upper endoscopy, Veronica Jacob, R.N.; and Tasha Nunziato, R.N.
Ms. Jacob was the "paper-side" nurse responsible for documenting the procedure. Ms. Nunziato was the "scope-side" nurse, meaning that her job was to assist Dr. Sharma with the endoscope and to help place any biopsy tissues into the correct containers.
At the outset, before the "time-out" was taken (when the team pauses to confirm the intended procedure and the patient's identity), and prior to the patient's receipt of anesthesia, Dr. Sharma once again explained to G.R. that she would be performing an upper endoscopy to investigate G.R.'s abdominal complaints. Ms. Nunziato gave another explanation of
the procedure, similar to Dr. Sharma's, before inserting a bite block into G.R.'s mouth. G.R. never objected to having an upper endoscopy or denied having experienced the abdominal discomfort being cited as the reason for the procedure.
Dr. Sharma initiated the time-out at about 11:00 a.m. by announcing that it had begun. Everyone stopped talking and focused on the process. Ms. Nunziato examined G.R.'s identification band and read aloud the patient's name, medical record number, and birth date and verified this information with
G.R. Ms. Nunziato asked G.R. if Dr. Sharma were her doctor.
G.R. said "yes." Ms. Nunziato asked G.R. if she agreed that an upper endoscopy would be performed on her, and G.R. answered "yes." Ms. Jacob, too, asked G.R. whether she were there for an upper endoscopy. G.R. replied that she was.7
Ms. Jacob consulted the endoscopy nursing record during the time-out to verify the intended procedure. This record indicated correctly that G.R. was to have an upper endoscopy in accordance with Dr. Sharma's most recent treatment order, which had countermanded the original order for a colonoscopy. (Unbeknown to Dr. Sharma, however, Ms. Jacob did not review the Consent for Operative and Invasive Procedures form that G.R. had signed that morning, pursuant to which G.R. authorized Dr. Sharma to perform a colonoscopy. Dr. Sharma was unaware that G.R. had not signed a written consent concerning
the upper endoscopy.) Ms. Jacob documented that a time-out had been conducted for an EGD at 11:00 a.m.
Anesthesia for the upper endoscopy was started at 11:05 a.m. The procedure commended at 11:06 a.m. and was finished at 11:08 a.m. During the upper endoscopy, Dr. Sharma found a hiatal hernia, gastritis, and antral erosions.
Dr. Sharma also removed some tissue from G.R.'s stomach wall for biopsy. In her postoperative procedure note, Dr. Sharma wrote that it was her plan to have G.R. "be followed up in my office, at which time the biopsies will be discussed and if the patient is Helicobactor pylori positive, then the patient will be treated for that."
After the upper endoscopy was performed, Ms. Jacob took G.R. to the recovery room, where Jackie Johnson, R.N., took over the care of G.R. Ms. Johnson reviewed G.R.'s chart, including the endoscopy report. When she noticed that G.R.'s discharge paperwork was for a colonoscopy patient, Ms. Johnson asked G.R. to identify the procedure that had been performed on her. G.R. told Ms. Johnson that she had undergone a colonoscopy.
Ms. Johnson then left G.R. to report the discrepancy in the paperwork to the charge nurse.8 Eventually, the unit secretary was sent to retrieve Dr. Sharma to sort the matter out. Upon being alerted to a potential problem, Dr. Sharma went
to the recovery room and found G.R. there. G.R. asked
Dr. Sharma about the results of the colonoscopy. Dr. Sharma replied that she had performed an upper endoscopy as they had discussed earlier that morning.9 G.R. said she thought she was to have had both procedures. Because G.R. did not want to prepare again for a colonoscopy or take another day off from work, Dr. Sharma agreed, after consulting with the anesthesiologist, to perform a colonoscopy on G.R. later that day, which was done.
The pathologist who performed the biopsy on G.R.'s tissue samples found that G.R.'s stomach contained "abundant organisms consistent with H. pylori." This caused the pathologist to diagnose chronic active Helicobactor pylori gastritis. An H. pylori infection can cause dyspepsia, the symptoms of which include abdominal pain, bloating, heartburn, and vomiting.
On August 24, 2007, G.R. saw Dr. Solomon, apparently for a previously scheduled appointment. G.R. told her primary care physician that the results from the previous day's procedures should be sent to Dr. Solomon, so that she (G.R.) would not need to see Dr. Sharma again. G.R. reported being upset about what had happened at the Hospital the day before; she told Dr. Solomon that she had expected to have only a colonoscopy.
G.R. was scheduled to return to Dr. Sharma's office for a follow-up appointment on September 5, 2007, to discuss the results of the endoscopic procedures. G.R. did not keep this appointment. Shortly thereafter, Dr. Sharma made several attempts to contact G.R. by telephone but failed to reach her.
On September 19, 2007, Dr. Sharma informed Dr. Solomon of G.R.'s biopsy results and the H. pylori infection discovered during the upper endoscopy procedure. Dr. Solomon called G.R. after receiving a copy of the pathology report and prescribed
G.R. the antibiotic Prevpac to treat the H. pylori infection.
Dr. Solomon documented in the patient's chart that she had prescribed Prevpac for G.R.
Dr. Sharma spoke with G.R. by telephone on September 26, 2007. During this conversation, which is documented in the patient chart that Dr. Sharma maintained on G.R., Dr. Sharma confirmed with G.R. that Dr. Solomon had
prescribed an antibiotic to treat G.R.'s H. pylori infection.10 Ultimate Factual Determinations
G.R. checked into the Hospital on the morning of August 23, 2007, expecting to have a colonoscopy pursuant to Dr. Sharma's order. Dr. Sharma countermanded the preexisting order for a colonoscopy, however, with a superseding order announced verbally at around 10:00 a.m., which called for G.R. to have an upper endoscopy. Because Dr. Sharma had previously told G.R.
that G.R. would need to have an upper endoscopy so that Dr. Sharma could determine the cause of the abdominal discomfort
G.R. had been experiencing, the order for an upper endoscopy did not come out of the blue.
Dr. Sharma did not make a mistake when she performed an upper endoscopy on G.R. at around 11:00 a.m. on August 23, 2007. Rather, the upper endoscopy that Dr. Sharma performed was the procedure she intended to perform, pursuant to the order she herself had given respecting G.R.'s treatment plan. The upper endoscopy, in short, was the right procedure. Dr. Sharma neither performed nor attempted to perform a wrong procedure, and therefore she is not guilty of committing an offense punishable under section 456.072(1)(bb), Florida Statutes.
Before Dr. Sharma performed the upper endoscopy, she and the team paused, in compliance with Florida Administrative Code Rule 64B8-9.007(2)(b), to confirm the patient's identity, the intended procedure, and the procedure site. Accordingly, Dr. Sharma is not guilty of committing an offense punishable under section 458.331(1)(nn), Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569, and 120.57(1), Florida Statutes (2010).
A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel. Vining v. Florida Real Estate Comm'n, 281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the Department must prove the charges against Sharma by clear and convincing evidence. Dep't of Banking & Fin., Div. of Sec. &
Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Regulation, Bd. of
Medicine, 654 So. 2d 205, 207 (Fla. 1st DCA 1995).
Regarding the standard of proof, in Slomowitz v.
Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court developed a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that:
clear 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 testimony must be precise and explicit and the witnesses must be lacking 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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Id. The Florida Supreme Court later adopted the Slomowitz court's description of clear and convincing evidence. See In re
Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).
In Count I of the Administrative Complaint, the Department charged Dr. Sharma under section 456.072, which provides in pertinent part as follows:
The following acts shall constitute grounds for which . . . disciplinary actions
. . . may be taken:
* * *
(bb) Performing or attempting to perform health care services on the wrong patient, a wrong-site procedure, a wrong procedure or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient’s diagnosis or medical condition.
In Count II of the Administrative Complaint, the Department charged Dr. Sharma under section 458.331, which provides in relevant part as follows:
The following acts constitute grounds for . . . disciplinary action[:]
* * *
(nn) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
The particular rule that the Department accused Dr.
Sharma of having violated (thereby allegedly committing a disciplinable act pursuant to section 458.331(1)(nn)) is Florida Administrative Code Rule 64B8-9.007(2), which provides in relevant part as follows:
Except in life-threatening emergencies requiring immediate resuscitative measures, once the patient has been prepared for the elective surgery/procedure and the team has been gathered and immediately prior to the initiation of any procedure, the team will pause and the physician(s) performing the procedure will verbally confirm the patient's identification, the intended procedure and the correct surgical/procedure site. The operating physician shall not make any incision or perform any surgery or procedure prior to performing this required confirmation. The notes of the procedure shall specifically reflect when this confirmation procedure was completed and which personnel on the team confirmed each item. This requirement for confirmation applies to physicians performing procedures either in office settings or facilities licensed pursuant to Chapter 395, F.S., and shall be in addition to any other requirements that may be required by the office or facility.
Being penal in nature, the foregoing statutory and rule provisions "must be construed strictly, in favor of the one against whom the penalty would be imposed." Munch v. Dep't of
Prof'l Regulation, Div. of Real Estate, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992).
Underlying both of the charges at issue is the Department's allegation that Dr. Sharma performed an upper endoscopy on G.R. by mistake. The Department, however, failed to prove this essential fact. To the contrary, as set forth above, the upper endoscopy that Dr. Sharma performed on G.R. was the right procedure. Thus, the charge brought against Dr. Sharma pursuant to section 456.072(1)(bb) fails, as a matter of fact. Due to this dispositive failure of proof, it is not necessary to render additional conclusions of law as to Count I of the Administrative Complaint.
As for Count II, the charge that Dr. Sharma failed to obey rule 64B8-9.007(2)(b) is doomed by the finding that the upper endoscopy was the right procedure. This is because the evidence is clear that, as set forth above, Dr. Sharma and the medical team paused and confirmed, before proceeding, that the intended procedure was an upper endoscopy, which in fact it was. Contrary to the Department's allegation, Dr. Sharma complied with rule 64B8-9.007(2)(b) as a matter of fact. No further conclusions of law regarding Count II of the Administrative Complaint are necessary.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Sharma not guilty of the charges set forth in the Administrative Complaint.
DONE AND ENTERED this 16th day of February, 2011, in Tallahassee, Leon County, Florida.
S
JOHN G. VAN LANINGHAM
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 16th day of February, 2011.
ENDNOTES
1/ To the extent the findings in paragraphs 4 through 8 above, or elsewhere in this Recommended Order, are inconsistent with the testimony of one witness or another, or with some documentary evidence, the findings reflect a rejection of all such inconsistent testimony and evidence (none of which was overlooked, disregarded, or ignored) in favor of proof that the undersigned deemed, in the exercise of his prerogatives as the fact-finder, to be more believable and hence entitled to greater weight. Further, it should be noted that Dr. Sharma did not
have the burden to prove any exculpatory facts——although she did so. Finally, an exculpatory fact need not be likely true, i.e. proved by a preponderance of the evidence, in order to be sufficiently plausible to render contrary evidence of guilt less than clear and convincing. In this particular case, however, all of the affirmative findings stated in the text are based on at least the greater weight of the evidence.
That said, the Department's case is largely founded on the testimony of G.R., whose version of the relevant events conflicts with that of Dr. Sharma. Unfortunately for the Department, G.R. turned out to be an unreliable witness. G.R.'s credibility is negatively affected by her failure distinctly to recall certain matters, her denial of facts corroborated by contemporaneous medical records, and the facial implausibility of some of her testimony. For example, G.R. denied having received either an abdominal or a rectal examination during the office visit on August 1, 2007. Both exams, however——and the results——are documented in the chart that Dr. Sharma prepared and maintained in the patient's file. G.R. denied, as well, that Dr. Sharma, during the initial office visit, had described EGD and explained the grounds for her recommendation that G.R. have an upper endoscopy. Again, Dr. Sharma's contemporaneous notes demonstrate that G.R. is mistaken.
The Department offered no persuasive evidence casting doubt on the authenticity of Dr. Sharma's office notes (and presumably would have brought charges against her if it believed she had falsified a patient's medical records). The undersigned finds Dr. Sharma's office notes to be credible. Dr. Sharma's testimony about the office visit of August 1, 2007, unlike G.R.'s, was distinct, reasonable on its face, and consistent with the contemporaneous written notes. Generally speaking, therefore, where G.R.'s testimony about the office visit conflicted with that of Dr. Sharma, the undersigned credited Dr. Sharma's testimony.
2/ G.R.'s testimony that she never told anyone she had vomited that morning is rejected in favor of Ms. Bomeisl's testimony to the contrary, which is corroborated by a contemporaneous medical record, namely the Same Day Unit Flow Sheet.
3/ It should be mentioned that Dr. Sharma has not been charged with violating the standard of care in regard to her treatment of G.R., nor did the Department offer any evidence to suggest that Dr. Sharma's decision to change the plan for G.R. lacked
reasonable medical justification. The Department nevertheless argues that Dr. Sharma has "concocted" an explanation to "mask [her] mistake" by claiming that G.R.'s "purported symptoms" warranted the upper endoscopy——which implies that Dr. Sharma lied under oath, falsified medical records, and, consequently, is attempting to defraud the undersigned. To draw these inferences (for there is no direct evidence that Dr. Sharma fabricated her testimony and records), one must assume the worst about Dr. Sharma and other witnesses, such as the nurses, whose recollections are consistent with Dr. Sharma's testimony.
The simpler explanation, which is usually the best, is that Dr. Sharma is telling the truth. The Department rejects this possibility, though, urging that G.R. be given the benefit of every doubt. Thus, the Department argues, for instance, that because a rectal examination is a memorable experience, G.R. could "not plausibl[y]" have denied having had one in Dr.
Sharma's office unless such an examination had not, in fact, been performed; therefore, Dr. Sharma's "claim[]" that she had performed a rectal examination on G.R. (testimony which is supported by the medical records) must be an "attempt to undermine" G.R.'s credibility.
Even on its face, this argument has limited appeal. (One could contend with equal force, based on the implausibility that an experienced professional such as Dr. Sharma would commit perjury and falsify a medical record to document a nonexistent rectal examination, that G.R.'s testimony that she never had a rectal exam in Dr. Sharma's office must be a concoction designed to undermine Dr. Sharma's credibility and impugn her integrity.) There are additional facts, however, which refute the Department's assertion that Dr. Sharma has been dishonest. One is that the document prepared upon G.R.'s admission to the Hospital at 8:53 a.m. on August 23, 2007, shows that G.R. was being seen for a colonoscopy and that the "reason for service/diagnosis"——presumably given by Dr. Sharma——was an "occult GI bleed." Dr. Sharma testified that she discovered occult blood in G.R.'s stool on August 1, 2007, by performing a rectal examination on her, as stated in the contemporaneous medical record. Because Dr. Sharma had no reason to give a false diagnosis ("occult GI bleed") as grounds for performing a colonoscopy on G.R. (who needed to have the procedure regardless), Dr. Sharma's testimony that she found occult blood
in G.R.'s stool upon conducting a rectal examination on her during the initial office visit is almost certainly truthful.
Similarly, as found above, Ms. Bomeisl noted on the Same Day Unit Flow Sheet that G.R. had vomited on the morning of August 23, 2007. The undersigned cannot believe that
Ms. Bomeisl "concocted" this "purported" symptom. At the time Ms. Bomeisl made the note, between 9:15 a.m. and 9:40 a.m., she understood (and everyone agrees) that G.R. was in the Hospital for a colonoscopy; there was, as yet, no dispute over what the "right" procedure would be. Unless one infers that Ms. Bomeisl falsified the medical records after the endoscopy was performed——which is far-fetched, to say the least——the reasonable determination is that Ms. Bomeisl accurately recorded what G.R. had told her, namely that G.R. had vomited. That being the case, Dr. Sharma's testimony about G.R.'s symptoms prompting a change in the plan is consistent with, and corroborated by, an independent, reliable record, i.e. the Same Day Unit Flow Sheet. The undersigned believes the doctor and rejects the contention that she has lied to cover up an alleged "mistake."
4/ Dr. Sharma has not been charged with any offense (besides allegedly performing a "wrong procedure") based on an alleged failure to obtain the patient's informed consent.
5/ G.R. denies that Dr. Sharma met with her for a preoperative assessment and insists that she did not see Dr. Sharma until the doctor entered the procedure room to perform the procedure. The undersigned rejects G.R.'s testimony in this regard as unpersuasive. Dr. Sharma's testimony about making a routine pre-op visit to assess her patient before performing an invasive medical procedure is both (a) more reasonable on its face than G.R.'s conflicting account and (b) corroborated by Dr. Sharma's contemporaneous notations on the Pre-op Form.
6/ The Department finds it "telling[]" that Dr. Sharma did not prove the precise means by which her order for an endoscopy was communicated to, and implemented by, the Hospital's personnel. The undersigned views the evidence as being sufficient to make the findings above. It bears repeating, however, that Dr.
Sharma did not have the burden to prove her innocence in this case; rather, it was the Department's burden to prove by clear and convincing evidence that Dr. Sharma is guilty as charged.
7/ The Department argues, based on G.R.'s testimony, that G.R. "unwittingly" confirmed that she was having an upper endoscopy because the nurses asked her leading questions and used unfamiliar terminology. The undersigned rejects as implausible and against the greater weight of the evidence the suggestion that G.R. continued to believe she was about to undergo a colonoscopy. In any event, the "pause rule" that Dr. Sharma is alleged to have violated, Florida Administrative Code Rule 64B8- 9.007(2)(b), does not require that patients be examined using open-ended questions. Indeed, the pause rule does not require that the patient be queried at all.
8/ G.R. claimed that Ms. Johnson had told her the wrong procedure had been performed. Ms. Johnson denied having said such a thing. The undersigned accepts Ms. Johnson's testimony on this point as the more believable account. It would have been unreasonable, based on the information then known to her, for Ms. Johnson immediately to jump to the conclusion that the wrong procedure had been performed; it would have been unprofessional, moreover, for the nurse to blurt out such a hasty conclusion in the patient's presence. The reasonable response, upon realizing that that something might have gone wrong but being unaware of all the relevant facts, would have been to report the matter to a superior for further investigation——which is exactly what Ms. Johnson did.
9/ According to G.R., Dr. Sharma admitted having made a mistake and apologized for doing so. The undersigned rejects this testimony as implausible and against the greater weight of the evidence.
10/ G.R. denied that she was ever told that she had an H. pylori infection, and she denied that Dr. Solomon had prescribed an antibiotic to treat this condition. G.R.'s testimony about this is contrary to the testimony of Dr. Solomon and that of
Dr. Sharma, both of whom made and kept contemporaneous written records regarding these facts. Consequently, G.R.'s testimony is rejected.
COPIES FURNISHED:
Greg S. Marr, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Brian A. Newman, Esquire Pennington, Moore, Wilkinson,
Bell & Dunbar, P.A.
215 South Monroe Street, Second Floor Post Office Box 10095
Tallahassee, Florida 32302-2095
Larry McPherson, Executive Director Board of Medicine
Department of Health 4052 Bald Cypress Way
Tallahassee, Florida 32399-3265
E. Renee Alsobrook, Acting 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 should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 08, 2011 | Agency Final Order | |
| Feb. 16, 2011 | Recommended Order | Respondent did not perform a "wrong procedure" when she gave a patient an upper endoscopy for that was the intended procedure, and Respondent complied with the "pause rule" by confirming the intended procedure before proceeding. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ABBAS SHARIAT, M.D., 10-002416PL (2010)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs HAROLD GENE ROBERTS, JR., M.D., 10-002416PL (2010)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MANUEL MIGUEL PENA, M.D., 10-002416PL (2010)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs RAKESH CHAMPAK PATEL, M.D., 10-002416PL (2010)
BOARD OF MEDICAL EXAMINERS vs. JOSE A. MIJARES, 10-002416PL (2010)
