Did the Petitioner, Department of Health (Department), fail to properly notify Dr. Sotrop of its investigation and provide an opportunity to respond to the allegations before determining probable cause? If so, do sections 456.073(1) and 458.331(9), Florida Statutes, require dismissal of the complaint?2/
The Department filed its Administrative Complaint with the Board of Medicine against Dr. Sotrop on May 13, 2009. The complaint alleged that Dr. Sotrop violated
section 458.331(1)(t), Florida Statutes, by committing medical malpractice by failing to "practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure. On June 12, 2012, Dr.
Sotrop filed a Motion to Dismiss or, in the Alternative, Request for Hearing Involving Disputed Issues of Material Fact. The Department referred the matter to the Division of Administrative Hearings for a ruling upon the motion and conduct of a hearing. The hearing was noticed for April 10, 2012, and held as noticed. The hearing on the motion and the complaint were consolidated.
The hearing transcript was filed on April 26, 2012. Upon the parties' motions, the time period for filing proposed recommended orders was extended until May 31, 2012. The parties timely filed Proposed Recommended Orders which have been considered in preparation of this Recommended Order.
In the hearing, the Department presented the testimony of Charles K. Powers, Jr., M.D. Department Exhibits 1 through 3, and 5, were admitted into evidence.
Dr. Sotrop testified on his own behalf and offered no other witnesses. Exhibits 2 through 4, of Dr. Sotrop were admitted into evidence.
Dr. Powers was admitted, not as evidence, but to include in the record the basis of a ruling upon an objection.
The Department is the state agency charged with the licensing and regulation of medical doctors pursuant to section 20.43, and chapters 456 and 458, Florida Statutes.
At all times material to the allegations in the Administrative Complaint, Dr. Sotrop was a licensed medical doctor within the State of Florida, having been issued license number ME 41092.
Dr. Sotrop's address of record with the Department of Health is Post Office Box 1628, Lutz, Florida, 33548. He has used this address for mailing purposes for 10 to 15 years.
The Department mailed a copy of the complaint against Dr. Sotrop and its investigation in this matter to Post Office Box 1628, Lutz, Florida, 33548.
Dr. Sotrop says the he "believes" that he did not receive it. This testimony is not sufficiently persuasive to establish that he did not receive the notice.
Dr. Sotrop completed medical school at the Medical School of Wisconsin and started working with his father’s family medical practice in Lutz, Florida. Florida licensed Dr. Sotrop to practice medicine in Florida in 1982.
Although Dr. Sotrop intended to attend a residency program after practicing medicine with his father for a short time, he never left his father’s practice and thus never attended a residency program. Dr. Sotrop is not board eligible in family medicine because he never attended a residency program.
Dr. Sotrop assumed his father’s practice and operated as a solo practitioner until he sold the practice to a large group. After working for the group practice for several years,
Dr. Sotrop left the group in 2006 and started to rebuild his solo practice.
While he was rebuilding his practice, Dr. Sotrop worked part-time for a colleague at the New Tampa Urgent Care walk-in clinic. He started working at the walk-in clinic in early January of 2007.
Dr. Sotrop eventually rebuilt his medical practice and stopped working at the walk-in clinic. He currently maintains a solo medical practice.
New Tampa Urgent Care utilized an electronic medical record keeping system known as Amazing Charts. This was
Dr. Sotrop’s first exposure to an electronic medical record
keeping system. Dr. Sotrop is a “hunt and peck” or “two-finger” typist. He had previously maintained only hand-written medical records. The Amazing Charts system requires physicians to enter some of the information regarding patient visits into the system by manually typing. Because of his lack of familiarity with the Amazing Charts system and his poor typing skills, Dr. Sotrop limited the information he included in patient records using the Amazing Charts.
January 13th Patient Visit
Patient P.A. first presented to the walk-in clinic on January 13, 2007, with a chief complaint of right-sided facial pain and weakness of the face. Dr. Sotrop saw her.
P.A. reported a history of right-sided facial pain for two to three days, and right-sided facial droop that started that morning. Her right eyelid was swollen.
P.A.’s vital signs were: temperature of 101 degrees; blood pressure of 114 over 70 (which was normal); pulse rate of 138; and respiratory rate of 18.
Dr. Sotrop examined P.A., following his routine physical-examination process. The process, as Dr. Sotrop generally described during his testimony, consists of observing the patient’s gait as they walk to look for any abnormalities. He then examines both ears and both nostrils. He examines the patient’s mouth in the traditional method, checks the neck for
movement, and palpates the neck and upper body for swollen lymph glands. He listens to the patient’s heart and lungs and, if appropriate for the presentation, asks the patient to lie down so he can perform an abdominal examination. While performing the physical examination, he talks to the patient and asks questions so he can verify whether the patient’s mental status is normal.
Dr. Sotrop observed P.A.'s gait, examined her eyes (including a fluorescein and fundus examination of the eyes), and examined her face and mouth which included her ability to swallow and move her jaw normally.
Dr. Sotrop documented his physical examination findings for P.A. during the January 13th visit as follows:
Rt lower facial droop not involving forehead. HEENT neg. ex sl grn d/c nares and eryhema rtconj, fluoro neg. no rash (yet) neck supple
Dr. Sotrop interpreted this entry in the patient’s record during his testimony as follows:
The patient had a right-lower facial droop not involving her forehead. The head, eyes, ears, nose and throat examination were negative except for a slight green discharge from the right nares (or nasal passage) and there was redness of the right conjunctiva (the white part of the eye) . . . I did a fluorescein examination of the eye which involves putting a drop in the eye and using a special light and looked at the eye and it was normal, negative. There was no rash on the face, and I put in parentheses, “yet” because I expected one… And the neck was supple.
Dr. Sotrop explained that he documented “no rash (yet)” because he believed the patient most likely had shingles and would soon develop a rash consistent with this diagnosis.
Dr. Sotrop's records document that the patient’s neck was supple to document that her neck was not stiff or painful.
Dr. Sotrop found the patient’s mental status normal.
As he noted, she was well enough to drive herself to the office.
Dr. Sotrop determined that the patient was suffering from either Bell’s palsy or Shingles. In the medical record under A/P (or assessment and plan), he documented “Bell’s Palsy (351.0), Herpes Zoster of Eyelid (053.20).” Dr. Sotrop selected these possible alternative diagnoses from a drop-down menu from the Amazing Charts program. “Herpes Zoster” is another name for shingles. He selected Herpes Zoster of the Eyelid because that was the only Herpes Zoster diagnosis he could find in the Amazing Charts drop down menu at the time.
Dr. Sotrop discussed his impressions with the patient.
He told her that he was not sure whether she had Bell’s palsy or shingles.
Dr. Sotrop told the patient to call him back or go to the emergency room if her symptoms got worse. He documented this advice in the records using the drop-down menu of the Amazing Charts system: “re check 2-3 days sooner, if worse, discussed natural and expected course of this diagnosis, and need to alert
me if symptoms do not follow expected course, or if any worse. Re-check or go to ER if symptoms get worse.”
Dr. Sotrop prescribed Prednisone, a steroid for treatment of suspected Bell’s palsy, Vicodin for pain, and Acyclovir, an antiviral drug to treat the patient for suspected shingles. The Department did not question Dr. Sotrop’s prescription of these medications.
Dr. Sotrop’s records do not indicate that, on January 13, he considered the possibility that the patient had meningitis.
During the January 13 visit, P.A. did not present the typical complete constellation of symptoms for meningitis. A stiff or painful neck and confused mental status are two common signs of meningitis.
Dr. Sotrop's records do not indicate that he advised
P.A. on January 13 to go to an emergency room for additional testing, such as a CT scan or spinal tap, to rule out or confirm more serious conditions like a tumor, meningitis, or other infection. Dr. Sotrop's demeanor during his testimony and inconsistencies in testimony make his claim that he advised P.A. to go to an emergency room or obtain further testing not credible. The testimony is not logically consistent with the fact that Dr. Sotrop entered in the records the much less significant information that he advised the patient to return or
visit an emergency room if her symptoms did not improve. And it is not consistent with his stated beliefs about the uses and importance of records for patient care, insurance, and legal concerns.
January 14th Patient Visit
P.A. called the walk-in clinic the following day, Sunday, January 14th, and told the nurse that she was still having headaches and that the pain medication was not helping. Dr. Sotrop told the nurse that he wanted the patient to return to the office for further evaluation.
P.A. drove herself to the walk-in clinic for the return visit.
During this visit, she complained of nausea and vomiting and headache.
The patient’s vital signs had improved. Her temperature was now normal, 97.8, and her blood pressure was 124/84. P.A.'s pulse rate had come down to 126, and her respiratory rate was slightly higher, at 20.
Dr. Sotrop repeated the physical examination he conducted on January 13th. P.A.'s neck was still supple. And her mental status was normal.
The patient’s facial symptoms had significantly improved from the January 13th visit. Dr. Sotrop documented “facial symptoms much better” and “exam shows near full return of
facial movement and full closure of eye.” Dr. Sotrop also documented that P.A. still had no rash.
Dr. Sotrop tapered the prescription for Prednisone and asked P.A. to hold Acyclovir for 12 hours because headaches are a known side effect of these medications. He also gave her an injection of Phenergan during the visit for nausea.
Dr. Sotrop’s records do not indicate that on January 14th he considered the possibility that the patient had meningitis. They indicated, as on the 13th he told the patient to return or got to an emergency room if her condition worsen.
A stiff or painful neck and confused mental status are two common signs of meningitis. During the January 14th visit,
P.A. did not present the typical complete constellation of symptoms for meningitis.
Dr. Sotrop's records do not indicate that he advised
P.A. on January 14th to go to an emergency room for additional testing such as a CT scan or spinal tap to rule out or confirm more serious conditions like a tumor, meningitis, or other infection. Dr. Sotrop's demeanor during his testimony and inconsistencies with his other testimony make his claim that he advised P.A. to go to an emergency room or obtain further testing is not credible. The testimony is not logically consistent with the fact that Dr. Sotrop entered in the records the much less significant information that he advised the patient to return or
visit an emergency room if her symptoms did not improve. And it is not consistent with his stated beliefs about the uses and importance of records for patient care, insurance, and legal concerns.
January 15th Hospital Admission
On January 15th, P.A.'s daughter found her unresponsive. P.A. was taken to the University Community Hospital by ambulance and placed in the Intensive Care Unit.
Dr. Sotrop was not consulted on this hospital admission. But he did visit the patient after he learned of her admission.
P.A. was unresponsive when she was admitted to the hospital. Her condition did not improve. A lumbar puncture showed possible bacterial meningitis. P.A. died about 48 hours after her admission to University Community Hospital. The patient’s final diagnoses included acute bacterial meningitis and “possibly shingles.”
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes (2011).
Motion to Dismiss
Section 458.331(9), Florida Statutes (2007) requires the Department to promptly furnish a physician being investigated a copy of the complaint or document that resulted in the initiation of the investigation. Section 456.073(1), Florida Statutes (2007), imposes a similar requirement and gives the doctor a right to submit a written response. The probable cause panel must consider the written response. Dr. Sotrop argued in his Motion to Dismiss that the Department did not provide the required notice and that the Administrative Complaint therefore must be dismissed.
Dr. Sotrop did not present persuasive evidence that the Department did not provide the required notice. The evidence, however, proves that the Department mailed the notice to Dr. Sotrop's address of record. Service by regular mail to a licensee's last known address of record with the Department is adequate and sufficient notice for any official communication to the licensee by the Department. § 456.035(2), Fla. Stat. The Department fulfilled its obligation to provide Dr. Sotrop notice of the complaint initiating the investigation in this matter. See Griffis v. Dep’t. Bus. & Prof’l Reg., 37 Fla. L. Weekly D 488 (Fla. 1st DCA Feb. 23, 2012).
Burden of Proof
This is a proceeding to take disciplinary action against Respondent's license to practice as a physician.
Because of the penal nature of these proceedings, the Department has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Nair v. Dep’t. of
Bus. & Prof’l Reg., Bd. of Medicine, 654 So. 2d 205, (Fla. 1st DCA 1995). As stated by the Supreme Court of Florida,
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 lacking in confusion as to the facts in issue. The evidence must be of such a 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.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005); (quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
Moreover, in disciplinary proceedings, the statutes and rules for which a violation is alleged must be strictly construed in favor of Respondent. Elmariah v. Dep't. of Prof'l Reg., 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep't. of Prof'l Reg., 534 So. 2d 782, 784 (Fla. 1st DCA 1988).
Malpractice Charges
The one count Administrative Complaint alleges that Dr. Sotrop violated section 458.331(1)(t), Florida Statutes, by
committing malpractice. That applicable part of that section defines the charged violation as follows:
Notwithstanding s. 456.072(2) but as specified in s. 456.50(2):
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.
Section 456.50(1)(g) defines "medical malpractice" as:
The failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure. Only for the purpose of finding repeated medical malpractice pursuant to this section, any similar wrongful act, neglect, or default committed in another state or country which, if committed in this state, would have been considered medical malpractice as defined in this paragraph, shall be considered medical malpractice if the standard of care and burden of proof applied in the other state or country equaled or exceeded that used in this state.
The Administrative Complaint alleges the following actions or inactions amounted to the charged malpractice:
Respondent failed to adequately assess patient PA's complaints and symptoms;
Respondent failed to order diagnostic imaging studies and laboratory tests;
Respondent failed to document a complete patient history and physical examination;
Respondent failed to immediately refer patient PA to the emergency department on January 14, 2007;
Respondent failed to refer patient PA for specialized consultations;
Respondent's diagnosis of patient PA's condition was not appropriate.
The allegations in (c) of record keeping deficiencies are not allegations of malpractice under section 458.331(1)(t). If proven they would not establish a violation. Dep't. of Health v. Lee, Case No. 11-0922PL (Fla. DOAH Sept. 23, 2011; Fla. DOH Dec. 12, 2011).
The Department failed to meet its burden of proof for the remaining allegations.
The Department's case rests on the opinion testimony of its expert witness. The witness testified how he would have treated a similar patient. He made broad critical observations about matters that did not appear in Dr. Sotrop's records and identified things that he would have done differently.
But the Department failed to elicit persuasive testimony establishing the standard of care for a general practice physician like Dr. Sotrop practicing in a walk-in clinic. The Department also failed to elicit persuasive testimony that applicable standards of care had not been met.
The Department bears the burden of proving its charges by clear and convincing evidence. Nair v. Dep’t. of Bus. &
