STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, Petitioner, Vv. CASE NO. 2009-23402 DAVID M. SPELLBERG, M.D., Respondent. / a ee ee ADMINISTRATIVE COMPLAINT COMES NOW Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Medicine against Respondent, David M. Spellberg, M.D., and in support thereof alleges: 1. Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. 2. At all times material to this Complaint, Respondent was a licensed physician within the State of Florida, having been issued license number ME 59339, 3. Respondent's address of record is 1132 Goodlette Road, Naples, Florida 34102. J:\PSU\Medical\Bates Shirley\Spellberg 2009-23402\AC.doc Filed November 16, 2012 2:07 PM Division of Administrative Hearings 4. | Respondent is board certified by the American Board of Urology. 5. Onor about August 29, 2007, Patient R.M., a 72 year old male, presented to Respondent with complaint of blood in his urine. 6. On or about August 29, 2007, Respondent ordered a CT without contrast which revealed a “3.6 cm mass upper pole left kidney.” 7. On or about August 29, 2007, Respondent ordered an ultrasound. The ultrasound was completed on or about September 4, 2007. The ultrasound report indicated, “3.9 x 3.1 x 3.4 cm mass of the upper pole left kidney, worrisome for renal cell carcinoma. Correlation with contrast-enhanced CT or MRI would be useful for verification.” 8. On or about August 29, 2007, Respondent did not order a retrograde pyelogram with renal pelvic washings for cytology. 9. Respondent did not order a CT with contrast or an MRI as suggested by the September:4, 2007, ultrasound report. 10. On or about October 16, 2007, Respondent performed cryosurgery on Patient R.M. at Naples Community Hospital (NCH) prior to obtaining a full and complete evaluation.. JAPSU\Medical\Bates Shirley\Spellberg 2009-23402\AC.doc 2 11. At a follow-up appointment, on or about December 28, 2007, Respondent ordered a CT with contrast for Patient RM. The CT report indicated, “mass increased in size in left kidney area, with nodules in lung and heart areas...” Respondent recommended that Patient R.M. undergo surgery to remove his left kidney. 12. Patient R.M. declined further treatment from Respondent and sought out a second opinion. 13. On or about January 18, 2008, Patient R.M. saw a physician at Florida Cancer Specialists. At that time, the record indicates Patient R.M.’s diagnosis was, “stage IV renal carcinoma, metastatic to lymphatics and lung.” The assessment portion of the record indicates that a biopsy was not performed at the time of initial diagnosis in October of 2007. 14. The records from Florida Cancer Specialists detail subsequent care and treatment for end stage cancer through on or about October 26, 2008, at which time Patient R.M. died. 15. Section 458.331(1)(t), Florida Statutes (2007), subjects a doctor to discipline for committing medical malpractice as defined in Section 456.50. Section 456.50, Florida Statutes (2007), defines medical malpractice as the failure to practice medicine in accordance with the level J:\PSU\Medical\Bates Shirley\Spellberg 2009-23402\AC.doc 3 of care, skill, and treatment recognized in general law related to health care licensure. 16. Level of care, skill, and treatment recognized in general law related to health care licensure means the standard of care specified in Section 766.102. Section 766.102(1), Florida Statutes (2007), defines the standard of care to mean”... The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant Surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. .. .” 17. Respondent failed to meet the prevailing standard of care in regard to patient R.M. in one or more of the following ways: a. By failing to order a retrograde pyelogram with renal pelvic washings for cytology, on or about August 29, 2007; and/or b. By failing to order a CT with contrast or an MRI as suggested by the September 4, 2007, ultrasound report; and/or c. By performing cryosurgery on. Patient R.M. prior to obtaining a full and complete evaluation, on or about October 16, 2007. J:\PSU\Medical\Bates Shirley\Spellberg 2009-23402\AC,.doc 4 18. Based on the foregoing, Respondent has violated Section 458.331(1)(t), Florida Statutes (2007), by committing medical maipractice. WHEREFORE, the Petitioner respectfully requests that the Board of Medicine enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. SIGNED this 27" day of May, 2011. H. Frank Farmer, Jr., M.D., Ph.D. State Surgeon General Shirley L/Bates Assi General Counsel DOH Prosecution Services Unit FILED 4052 Bald Cypress Way, Bin C-65 Denne Tallahassee, FL 32399-3265 CLERK Angel Sanders Florida Bar # 946311 paTe JUN 0 1 2011 (850) 245-4640 (850) 245-4681 FAX SLB/cab PCP: May 27, 2011 PCP Members: El-Bahri, Winchester, Mullins JAPSU\Medical\Bates Shirley\Spellberg 2009-23402\AC.doc 5 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the Investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition any other discipline imposed. J\PSU\Medical\Bates Shirley\Spellberg 2009-23402\AC.doc 6

Docket for Case No: 12-003823PL