STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, Vv. CASE NO. 2010-03217 KENNETH RIVERA-KOLB, M.D., RESPONDENT. / ADMINISTRATIVE COMPLAINT Petitioner, Department of Health, by and through undersigned counsel, files this Administrative Complaint before the Board of Medicine against Respondent, Kenneth Rivera-Kolb, 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 medical doctor within the state of Florida, having been issued license number ME 40201. 3. Respondent's address of record is 1725 Shoreside Circle, Wellington, Florida 33414. 4. Respondent is not Board certified. 5. On or about June 25, 2008, Patient J.D. (JD), a 43 year- old female, was scheduled for multiple procedures at Florida Atlantic Orthopedics (the facility). The procedures included a two-level discogram by Dr. T.R., followed by a two-level lumbar discectomy by Dr. R.M., followed by a bilateral L3 to S1 facet radiofrequency lesioning by Dr. T.R. 6. | Respondent was to be the anesthesia provider while Dr. T.R. performed the discogram and the radiofrequency lesioning. The actual anesthesia reports are incomplete and fail to accurately reflect who provided anesthesia and anesthesia monitoring, and when. 7. Respondent has had no residency or adequate training in anesthesia and is not Board certified in anesthesia. 8. At the beginning of the procedures, Dr. T.R. inserted a left internal jugular line into JD and then performed the two-level lumbar discogram. Respondent was the anesthesiologist of record responsible for monitoring the patient and maintaining the anesthesia record. The procedures then went forward as planned. When Dr. B.M. completed the two-level discectomy, he left the operating room and Respondent again took over as the anesthesia provider for Dr. T.R’s radiofrequency lesioning procedure. Respondent should have maintained the anesthesia records for that procedure. He did not maintain adequate anesthesia records during the radiofrequency lesioning. 9. After Dr. T.R. completed the radiofrequency lesioning, he left the operating room and left the patient under the care of Respondent. When JD was ready to be moved to PACU, she became unresponsive, with an oxygen saturation of 60% and a heart rate of 30. The anesthesia records do not accurately report this event. 10. Respondent incorrectly diagnosed JD as suffering from a vasovagal syndrome secondary to local anesthetic injected into the cervical area during the procedure. In fact, the local anesthetic was injected into the lumbar region and could not have caused a vasovagal syndrome. Respondent failed to examine JD and correctly identify the existence of a pneumothorax at this time. 11. Dr. T.R. was emergently called back to the operating room and, finding JD in full cardiac arrest, assumed control of the situation. The patient was resuscitated, but the IV appeared to be infiltrated. Therefore, Dr. T.R. disconnected that IV and inserted another intravenous line into the right external jugular vein. Respondent was present throughout and his role in the resuscitation is not documented. 12. Dr. TR. ordered JD moved to PACU, where her head was elevated by Dr. J.E., a chiropractor who owned the facility. The patient’s face immediately began to swell on the entire left side. Respondent was the first doctor to observe this swelling and Dr. T.R. was called. By the time Dr. T.R. arrived in PACU, JD’s entire face was swollen and she had only a faint pulse. 13. Dr. T.R. assessed JD to have the possibility of anaphylactic shock or angioedema or pneumomediastinum. Respondent had still failed to examine JD when he observed her facial swelling and therefore failed to correctly diagnose a pneumothorax based on the lack of breath sounds. 14. The patient was promptly moved back to the operating room and placed on a ventilator. At that time, JD had no pulse. CPR was started based on ACLS protocol and 911 was called. The possibility of pneumothorax had still not been discussed and Respondent had still not examined the patient for breath sounds. 15. Dr R.M. came back into the operating room and diagnosed a pneumothorax. Because he saw the right external jugular vein IV line, he proceeded to put a right chest tube using a sterile endotracheal tube, despite Dr. T.R.’s objection that there had been a left side internal jugular IV line placed two hours earlier. 16. Once the right pleural cavity was entered and bright red blood appeared, it was clear that the pneumothorax was on the left. Dr. R.M. then inserted another sterile endotracheal tube into the left pleural space, which produced a milky fluid and air bubbles. The patient was then resuscitated again and transported to the hospital. 17. Patient JD suffered anoxic encephalopathy as a result of the iatrogenic pneumothorax and subsequent development of acute respiratory failure and anoxic brain injury. She expired on July 9, 2008. 18. Respondent failed to timely identify the pneumothorax, resulting in delay of treatment. He entirely misdiagnosed the patient's condition, even though the nurse identified the facial swelling in the patient which is a clear indication of a possible pneumothorax. The significant delay in recognizing an evolving medical emergency and the delay in beginning treatment were both below the standard of care. 19. Following the first cardiac arrest, Respondent failed to fully evaluate the cause of the bradycardia and the desaturation and performed no complete physical examination or failed to note performing one while JD was in the operating room. Respondent failed to listen to her lungs to determine whether there was a reduction or absence of breath sounds. All of this is below the standard of care and resulted in a continued delay in treatment. 20. Respondent failed to perform a physical examination in the PACU when JD’s face became swollen. Had he done so, the lack of breath sounds should have been apparent. Failure to perform a physical examination at that juncture was below the standard of care and continued to cause a delay in desperately needed treatment. 21. Once the pneumothorax was identified, it should have been immediately treated by inserting a large-bore needle into each side of the chest to allow the air to escape while waiting to place the chest tubes. Respondent was one of three doctors present who could have treated the pneumothorax in this way, but he did not. Failure to use this simple technique is below the standard of care. 22. The anesthesia records contain discrepancies as to when the anesthesia for each procedure started and which anesthesiologist was responsible when. One anesthesia record had no remarks at all on it. One had only inadequate remarks that failed to reflect what really happened in the operating room. The anesthesia records are incomplete, inaccurate, and fail to justify the course of treatment. 23. Respondent was prominently involved throughout this case; however, there is not one single entry in any of the medical records that reflects his presence or involvement. Nothing states what he observed or did beginning with the first time JD became unresponsive after the radiofrequency lesioning. COUNT ONE 24. Petitioner realleges and incorporates paragraphs one (1) through twenty-three (23) as if fully set forth herein. 25. Section 458.331(1)(t)1., 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 of care, skill, and treatment recognized in general law related to health care licensure. 26. 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. . . .” 27. Respondent failed to meet the prevailing standard of care in one or more of the following ways: a. By failing to identify the pneumothorax, resulting in delay of treatment; b. By entirely misdiagnosing the patient's condition, even though the nurse identified the facial swelling in the patient, which is a clear indication of a possible pneumothorax; c. By causing a significant delay in recognizing the evolving medical emergency and in beginning treatment; d. By failing to fully evaluate the cause of the bradycardia and the desaturation once the first cardiac arrest occurred; e. By failing to perform a complete physical examination or note one while JD was in the operating room; f. By failing to listen to JD's lungs to determine whether there was a reduction or absence of breath sounds; g. _ By failing to immediately treat the pneumothorax, once it was identified, by inserting a large-bore needle into each side of the chest to allow the air to escape while waiting to place the chest tubes; h. By incorrectly diagnosing JD as suffering from a vasovagal syndrome secondary to local anesthetic injected into the cervical area during the procedure; i. By practicing as an Anesthesiologist when he had no residency or adequate training in anesthesia and was not Board certified in anesthesia. 28. Based on the foregoing, Respondent has violated Section 458.331(1)(t)1., Florida Statutes (2007), by committing medical maipractice. COUNT TWO 29. Petitioner realleges and incorporates paragraphs one (1) through twenty-three (23) as if fully set forth herein. 30. Section 458.331(1)(m), Florida Statutes (2007), subjects a doctor to discipline for 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 10 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. 31. Respondent failed to keep legible medical records 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, in one or more of the following ways: a. By failing to maintain complete and accurate anesthesia reports that reflect who provided anesthesia and when; b. By failing to document his evaluation of the cause of the bradycardia and the desaturation following the first cardiac arrest; c. By failing to document a complete physical examination following the first cardiac arrest while JD was in the operating room; 1i d. By failing to document a complete physical examination following the cardiac arrest while JD was in the PACU; e. By failing to document listening to JD’s lungs, at any time, to determine whether there was a reduction or absence of breath sounds. 32. Based on the foregoing, Respondent has violated Section 458.331(1)(m), Florida Statutes (2007), by to keep legible medical records 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. COUNT THREE 33. Petitioner realleges and incorporates paragraphs one (1) through twenty-three (23) as if fully set forth herein. 34. Section 458.331(1)(v), Florida Statutes (2007), subjects a doctor to discipline for practicing or offering to practice beyond the scope permitted by law or accepting and performing professional 12 responsibilities which the licensee knows or has reason to know that he or she is not competent to perform. 35. Respondent is not adequately trained and is not competent to perform as an anesthesiologist based on his lack of an accepted residency or comparable education Board certification or other training. 36. Based on the foregoing, Respondent has violated Section 458.331(1)(v), Florida Statutes (2007), by practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform. 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. 13 SIGNED this 27" __ day of Sune 2011. H. Frank Farmer, Jr, M.D., Ph.D. State Surgeon General Aare Diane K. Kiesling Assistant General Co DOH-Prosecution Services Unit 4052 Bald Cypress Way-Bin C-65 Tallahassee, Florida 32399-3265 FILED 4 DEPARTMENT OF HEALT! DEPUTY CLERK Florida Bar # 233285 CLERK Angel Sanders (850) 245-4640 pare QUN 27 20M (850) 245-4681 fax DKK/dkk PCP: June 24, 2011 PCP Members: El-Bahri, Espinola, Mullins Kenneth Rivera-Kolb, M.D. DOH Case No. 2010-03217 Kenneth Rivera-Kolb, M.D. DOH Case No. 2010-03217 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 to any other discipline imposed. 15

Docket for Case No: 13-002800PL