STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA STATE BOARD OF PODIATRY ) EXAMINERS, )
)
Petitioner, )
)
vs. )
) CASE NO. 75-1463
GERSON M. PERRY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice an administrative hearing was held in Room 341, Palm Beach County Court House, 300 North Dixie Highway, West Palm Beach, Florida at 10:00 a.m., December 15, 1975, before Charles C. Adams, Hearing Officer for the Division of Administrative Hearings, for the purpose of consideration of the issues set forth in the notice of hearing in this cause.
APPEARANCES
For Petitioner: John S. Miller, Jr., Esquire
LaCapra, Miller & Wiser Post Office Box 10137 Tallahassee, Florida 32301
For Respondent: Lawrence M. Kukey, Esquire
Cone, Wagner, Nugent, Johnson & McKeown, P.A.
507 North Olive Avenue
West Palm Beach, Florida 33424 ISSUES
Whether or not Gerson M. Perry, licensee, has violated Chapter 461.08(1)(g), F.S., in that: on or about the month of July, 1974, Gerson M. Perry performed certain treatment upon an Irma R. Chanter in such a manner to cause the Petitioner, Florida State Board of Podiatry Examiners to charge said Gerson M. Perry of being willfully negligent or incompetent in the practice of podiatry, in view of facts more particularly set forth in the affidavit attached as Exhibit "A" to the administrative complaint.
Whether or not the licensee, Gerson M. Perry, has violated Chapter 461.17, F.S., in that: Gerson M. Perry engaged in an act of unprofessional conduct in performing treatment upon Irma R. Chanter, in the manner in which it was performed, as more particularly set forth in the affidavit which is attached to the administrative complaint as Exhibit "A".
FINDINGS OF FACT
The Petitioner premised the prosecution of its case upon certain oral testimony presented in the course of the hearing and certain tangible items of evidence presented in the course of the hearing.
The Respondent presented a case in the form of oral testimony, to include testimony by the Respondent, and certain tangible evidence offered in the course of the hearing. The Respondent's presentation was conditioned on the possible rejection by the hearing officer and/or the Florida State Board of Podiatry Examiners, of the Respondent's motion to dismiss or in the alternative motion for more definite statement directed to count (2) of the administrative complaint, and the Respondent's motion which was in the form of a request for directed verdict addressing both counts in the administrative complaint, such motion being made at the close of the Petitioner's presentation.
The first witness for the Petitioner was Irma Chanter, who is a dietary supervisor in a local hospital in Palm Beach County. The witness testified that she had been a patient of the Respondent for 3 or 4 years and during that time had received palliative care for her feet. One of the particular areas which was treated by Dr. Perry was the toenails of the patient, Irma Chanter. In connection with that foot problem the witness stated that Dr. Perry indicated that an operation was needed to remove the ingrown toenails and that Dr. Perry suggested that if this operation was not performed the patient would be crippled.
The witness was not certain when in time the subject of the operation was discussed with the Respondent; however, it was developed in the course of her testimony that she had bean seeing Dr. Perry since June, 1969. This date was suggested to the witness as being the date of the initial visit to the Respondent and the witness did not take issue with the date. She also indicated that she had checked her income tax records and they showed that she had been Dr. Perry's patient for 4 or 5 years. By way of response to Dr. Perry's suggestion that surgery was necessary, the witness indicated that she wanted time to think about it, and it was also solicited from her that she could not afford such an operation at the beginning of her treatment by the Respondent. The witness did not know if the condition got progressively worse or better during the palliative care stages, but a decision was made by the witness to have an operation performed to remove the toenails and portions of the toenails that were providing problems for her. This operation was eventually performed on July 22 and July 23, 1974, in the office of the Respondent.
Mrs. Chanter wasn't particularly satisfied with the Respondent's care, but she said he was never rude, or otherwise objectional before the operation in July of 1974. After that date complaints against the doctor were made, complaints about matters arising in the course of the operation and the post operative treatment, as alleged by the witness in her affidavit attached to the administrative complaint which is Exhibit "A" in that complaint. The witness also seemed to indicate that there were other areas of dissatisfaction. One of the areas was an assertion by the witness that the respondent had over charged for certain X-ray procedures, in that the charge was $250.00 and the witness thought that this was excessive. Additionally the witness complained that the Respondent had charged $75.00 for certain appliances (arch supports) which were allegedly tailored for her purposes and in fact could have been purchased at any retail drug store.
The witness brought the above items with her to the hearing and showed them to the hearing examiner. The items were two metal apparatus which appear to be arch supports with the trade name, Dr. Scholls, affixed.
In alluding to the complaints which the witness had about the operation, the initial area of consideration is the cost of the operation. The witness seemed to state that she was told the price of certain procedures to be performed was in the amount of $1,275.00 which is the amount stated in her deposition before the hearing. The witness, however, seemed concerned that the Respondent had not indicated the specific cost of the process of the operation which was performed on July 22 and July 23, 1974, as opposed to giving a quotation which would include certain procedures involving bunions and callouses on her feet, as well as the toenail treatment. It was noted later in the course of the hearing, that charges for the procedures effected on July 22 and July 23, 1974, were in the amount of around $580.00, which was in compliance with the insurance rates of Blue Cross Blue Shield's analysis of proper payment by an insurance carrier for such procedures. Of that quoted amount of $580.00, the witness testified that $243.00 was paid by the Blue Cross - Blue Shield and that
$219.00 which was tendered under a separate section of the policy was spent by the witness for matters other than payment of the Respondent. In further testimony about the cost of the operation, the witness indicated that she had been unduly put upon about the payment of her bill to the extent of threats directed from the Respondent about her bill. She said she had not paid the bill because she had contracted staph infection following the operation and consequently did not pay anything out of her pocket for the cost of the operation.
The operation itself was a radical matricetomy, in which the toenails on the three lesser toes of both feet were completely removed and portions of the toenails of the great toe and the toe adjacent to the great toe were removed from both feet. The process utilized by the Respondent in the operation was a phenol alcohol technique, by the application of carbolic acid.
The witness indicated that something was injected into her toes as an anesthetic and that anesthetic was later identified as being xylocaine with epinephrine, 1-200,000. The witness testified that when the toenails were being removed, she said, "it hurt like sam hill when he started digging in." Nevertheless, she never told him to stop the process during the first day's operation *
* NOTE: Page 5 is missing from the Original Recommended Order on file with DOAH and is therefore not available in this ACCESS document.
any odor at that time. She doesn't know how many days after the operation it was, that she saw the doctor in the office but she does remember going to work the same day she saw Dr. Perry for the visit. She said she made no further follow ups with the Respondent because she contracted staph infection, as diagnosed by Dr. Donald R. Alkema, a local podiatrist.
On the Thursday before her initial examination by Dr. Alkema, the witness said that there was a certain excretion which she characterized as being puss, emanating from the area of the feet where the operation had been performed. On Sunday morning the witness notified Dr. Alkema of her problem and the doctor saw her in the office. At the time she went to see Dr. Alkema on
Sunday morning there was an excretion from the area where the operation had been performed and her feet were extremely odoriferous, and the odor was nauseating. The witness testified that Dr. Alkema cleaned her feet and prescribed medicine for her.
Since that time Dr. Alkema has been her attending physician as it relates to her foot problem. The witness says that she still has pain in her toes and that she can't perform her work as well as before the operation, and that she takes two aspirin for discomfort associated with her present problem. She said that her right large toe in the nail area aches and throbs. Furthermore, she said that on the toe which is immediately adjacent to the left small toe, the toenail has come back and that the right small toenail has come back, when it was her understanding that none of the last three toenails on the toes of her feet would come back.
The Petitioner called Dr. Joseph Castronuovo, a specialist in internal medicine. Dr. Castronuovo has been Mrs. Chanter's treating physician and has treated her for high blood pressure and cardiac problems. The cardiac problems mentioned by the doctor were not identified as major problems.
The doctor indicated that his contact with Mrs. Chanter around the time of the operations, as performed by the Respondent in July, 1974, was to the extent of seeing the patient on July 29, 1974 after such operation had been performed. This office visit was after being called by Dr. Alkema. At the time of the office visits the blood pressure was 180/102, when the norm in that time sequence had been 140/80. The feet of the patient, Chanter, appeared inflamed but not particularly infected and the witness testified that he did not treat her feet, although Mrs. Chanter had indicated that he did treat the alleged infection. The doctor further stated that he was not aware of the procedure involved in a radical matricetomy, nor was he aware of the normal post operative appearance of a patient's feet.
The Petitioner attempted to solicit testimony from the witness to the effect that the failure of the Respondent to notify the witness at a time when the operation was contemplated was unprofessional conduct on the part of the Respondent, because of the patient's high blood pressure and minor cardiac problem. This testimony was objected to and not allowed as acceptable evidence for deliberation by the hearing officer because the hearing officer was of the opinion that the Respondent was not duly noticed of such a claim by the Petitioner to allow the Respondent to adequately defend against it. It should also be noted that the witness indicated that these standards of notification apply to the medical profession of which the witness is a practitioner and not specifically to the canons prescribed for practicing podiatrists. One comment was made by the witness that he felt that application of anesthetic which had as a part the substance known as ephinephrine was not advisable in the case of Mrs. Chanter. However, later testimony by the Respondent indicated that the percentage of ephinephrine in the xylocaine applied to the patient was one half the normal strength. Further, development of the testimony offered by the doctor concerning the question of the alleged unprofessional conduct for failing to notify the witness of the proposed operation will be developed in the section of this Recommended Order entitled CONCLUSIONS OF LAW.
The Petitioner next tried to produce testimony through a witness Ayn Dupay. Ayn Dupay had been a patient of Dr. Perry in the Spring of 1974, and had had heavy callouses and ingrown toenails. Additionally, she was operated on by the Respondent in July, 1974. This witness' testimony was objected to since it was the contention of the Respondent, that the Respondent had not been duly
apprised of any allegations pertaining to this witness, notwithstanding the fact that the Petitioner had subpoened the records of this patient to be produced at the hearing. This objection by the Respondent was sustained because the requirement for notice was felt to be lacking as it relates to testimony by Ayn Dupay and because there appeared to be no other basis for allowing that testimony. A more complete examination of the objections and the reasons for sustaining the objections will be addressed in the section of this Recommended Order entitled CONCLUSIONS OF LAW.
Nathan Johnson, a representative of Blue Cross - Blue Shield was called to the stand. He had with him a report rendered by G. M. Perry about the patient, Irma Chanter. This report referred to the procedures which were performed on Mrs. Chanter as being a radical matricetomy. The witness further identified himself as a person who has had a long standing association with people in the field of podiatry, as it relates to the processing of certain insurance claims in this field. Moreover, the witness though not a medical practitioner, has studied the literature on the procedures in the field of podiatry. Based upon the witness' ability and expertise in the field of insurance, the Petitioner tried to establish the witness' opinion on whether or not the toenail should have come back on toes where a total matricetomy had been performed. This testimony was objected to by the Respondent and the objection was sustained on the question of the witness' expertise to determine the reasonable result of a total radical matricetomy. A more complete discussion of the objection and ruling will be considered in the section of this Recommended Order entitled CONCLUSIONS OF LAW.
Rosemary Colvin, Director of Medical Records, Palm Beach Gardens Hospital, Palm Beach Gardens, Florida, was called to the stand. She produced the records of the patient identified as Albert Frankel, deceased. This patient had been admitted in the Palm Beach Gardens Hospital in the past. Albert Frankel had been a patient of the Respondent, and the purpose of introducing the facts pertaining to Albert Frankel was identified by the Petitioner's counsel as a showing of impropriety on the part of the Respondent pertaining to matters about Albert Frankel. This testimony was objected to because of the lack of notice to defend against matters pertaining to Albert Frankel. Because of such problems with the notice and an insufficient showing of any other reason to justify the introduction of such evidence, the evidence was deemed improper for consideration by the hearing officer in the deliberation of the matters in this case. A more complete discussion of the reasons will be set forth in the section of this Recommended Order entitled CONCLUSIONS OF LAW.
Dr. Donald Alkema took the stand. Dr. Alkema is a practicing podiatrist who has been in the profession for five years and is licensed in the State of Florida to practice. A stipulation was entered into concerning the expertise of the witness to testify about matters relating to the treatment of Irma Chanter's foot problems. The witness testified that he first saw Irma Chanter on July 28, 1974, at which time he debrided certain necrotic tissue associated with the operation performed by Dr. Perry, and that he drained the puss and applied a cleansing agent. The witness provided certain slides of photographs taken of the condition, the first two slides showing the right and left foot on Sunday morning, July 28, 1974, was depicting, according to the witness, infection and an abscess on the left great toe. Slides three and four were taken on August 1, 1974, which the witness indicated showed an improvement because of an antibiotic which had been prescribed. Slides five and six were taken August 19, 1974, which showed further improvement of the condition.
The witness testified that in his opinion the procedure which had been utilized in the treatment of Irma Chanter was a phenol technique involving carbolic acid, which is an application of that substance to the matrix of the nail. The witness further stated that the procedure involved was a total matricetomy of the three smallest nails of the left and right foot, and a partial matricetomy of the remaining toenails on both feet. The diagnosis by Dr. Alkema of the infection was acute infection of the left foot, first and second toes; and right foot, first and third toes, with the remainder of the toes showing subacute infection. The appearance of Mrs. Chanter's feet at the time of examination revealed that the feet were clean in terms of the overall condition; however, there was a certain purulent discharge with associated odor, which the witness deemed to be some form of staphylococcus bacteria.
Based upon the visual observation of the patient and the fact that the witness' mind time was of the essence, the witness said that he did not request laboratory analysis of the excretion from Mrs. Chanter's feet, in the way of a culture workup, but prescribed a broad spectrum antibiotic known as tetracycline hydrochloride. The witness felt that the antibiotic, as prescribed helped to defeat the infection.
At present Mrs. Chanter is still under the treatment of Dr. Alkema and the patient still has problems with ingrown toenails. To the witness' recollection, Mrs. Chanter still has some pain associated with the great toe of the left foot and the fifth toe of the right foot, but not with the great toe of the right foot, as testified by Mrs. Chanter.
In discussing the technique utilized by Dr. Perry in performing the operation on Mrs. Chanter, the witness testified that he does not utilize the process, but uses another process called SNT-1 which is a method of extraction by surgical instrument. His direct knowledge of the phenol process is to the extent of involvement four times as a student and two dozen observations. Nevertheless, the witness testified that in his estimation the phenol technique was relatively simple, although he agreed that that technique would be more effective if the practitioner had done it more. The witness said that he was unable to comment on the effectiveness of the operation since he was not in attendance at that operation. In response to questions about the outcome of the operation, the witness stated that Mrs. Chanter came to him and was complaining of pain in her toes radiating into her foot, and as related before, that in his estimation there was infection present in all ten toes. Based upon this observation, it was felt by the witness that the prescription of aspirin for treatment of the pain was insufficient. In support of this position the witness indicated that xylocaine is a prescribed anesthetic for the phenol technique and that when the effects of the xylocaine wear off that 10 percent of the patients experience pain and 1 to 2 percent experience excruciating pain, and that percentage may rise according to the number of toes involved in the operation. These statistics were based upon a certain medical text referred to by the witness, which was not authored by the witness.
In the witness' opinion there is a certain risk of infection in any surgery and he agreed that the staphylococcus infection is common in many places to include the soil.
In discussing the history of the situation with Mr. Chanter on July 29, 1974, the witness indicated the history only involved the history of the surgery and not the history of the patient's activities following the surgery.
Although the witness felt that discussion of the technique involved in the performance of the phenol process was better stated by a person who had administered this technique on more numerous occasions, the witness felt that he was qualified, certainly as qualified as the practitioner utilizing the phenol technique in discussing the post operative procedures. In the witness' mind the post operative techniques employed by the Respondent were not acceptable in that, to his knowledge, the Respondent had prescribed the use of garamycin antibiotic ointment and this ointment was felt to be improper because it tended to cap the infection.
The witness indicated that he has an office that is located essentially 100 yards away from the office of the Respondent, but that the Respondent and he are in no respect in competition for business, and the witness expressed his resentment to the characterization of his profession in those terms. In a related area an effort was made by the Petitioner's counsel to introduce through the witness, certain matters pertaining to surgery performed on Albert Frankel and Ayn Dupay, who have been previously mentioned in the course of the Findings of Facts, and this testimony was objected to based upon the lack of notice of such claims against the Respondent. The objection was sustained and will be more fully addressed in the section of this Recommended Order entitled CONCLUSIONS OF LAW.
Finally, the witness indicated that the podiatrist's ethics call for consulting a treating physician who is a medical doctor when appropriate since the podiatrist may only treat a situation for which he has expertise, and the witness seemed to indicate that this should have been done by the Respondent in treating Mrs. Chanter. Furthermore, the witness did notify Dr. Castronuovo of the condition which he observed upon examining Mrs. Chanter on July 28, 1974.
Dr. James Vance, who is a specialist in internal medicine, was called to the stand. Dr. Vance indicated the treatment of Albert Frankel, deceased, while in the Palm Beach Gardens Hospital. The witness indicated that there were some entries on the chart of Albert Frankel which he did not make, nor the urological service that was treating the patient and that were later discovered to have been made by the Respondent, who was not authorized to practice in the Palm Beach Gardens Hospital. An objection was made to the offering of such testimony on the basis of lack of notice on the part of the Respondent to contentions of this sort, concerning the treatment of Albert Frankel and that objection was sustained. A more complete examination of the objection will be considered in the section of this Recommended Order entitled CONCLUSIONS OF LAW.
Dr. Vance was the last witness on behalf of the Petitioner and at the close of the Petitioner's case a motion for directed verdict was made by the Respondent, in that the Respondent contended that insufficient proof had been established to show violations of either Count 1 or 2 of the Administrative Complaint, whether the standard be one of preponderance of evidence or a standard of clear and convincing evidence. Ruling on that motion was reserved until such time as the facts in this matter were considered by way of deliberation and the Respondent elected to present a case based upon the hearing officer's desire to reserve ruling and upon the possibility that the Petitioner would overturn a decision adverse to its position when it examined the Recommended Order entered by Hearing Officer. After hearing the testimony offered by the Petitioner, the Motion for Directed Verdict against Count 2 of the Administrative Complaint would seem well taken, for reasons more completely discussed in the section of this Recommended Order entitled CONCLUSIONS OF LAW.
The Respondent, in the presentation of its case first called Dr. Arthur Binkowitz, D.P.N. Dr. Binkowitz has been a podiatrist for five years and it was stipulated to between the parties that the witness was qualified to give testimony in the area of podiatry. The witness testified that a matricetomy is an excision at the matrix cells which produce nail plates. The witness also testified that the method he utilizes to accomplish this is the phenol technique and that he utilizes that technique 99 percent of the time. These excisions are accomplished under local anesthesia. In addressing the terms total or partial matricetomy the witness said that these procedures are the same in that they are both radical procedures, one designed to excise the total nail and the other designed to excise part of the nail. The witness said he has done hundreds of these excisions under the phenol technique, and that this technique is not a learning situation.
The witness was shown the slides as produced by Dr. Alkema in his testimony, and stated that this is the first viewing of those slides by the witness. After establishing the underlying facts by way of a hypothetical depiction of the slides, the witness offered testimony. Looking at slides 1 and
2 he felt that the depiction was normal and that inflammation present was as in phenol operations but that there was no indication of infection. In looking at the slides, he said he did not see any unusual redness. He said the item in number 2 which had been described as an abscess by Dr. Alkema, in his mind was a condition caused by a drop phenol, perhaps. Slides 3 and 4 looked normal to him, with slight inflammation and the alleged abscess as shown on 4 looked like a phenol burn. Slides 5 and 6 looked normal to him.
Describing the pain associated with the process he felt that the process was relatively painless and that he usually prescribes aspirin for his patients. He said that he feels that garamycin, the antibiotic, or HCB cream among others are acceptable antibiotics to utilize in the post operative treatment where the phenol process had been utilized. He also indicated that utilization of the phenol technique is a technique in which infection is less likely.
When shown the appliances which were brought by Mrs. Chanter he said that these appliances might have been utilized but they don't do anything to assist, and that they are not normally prescribed. Furthermore, these appliances could be bought at any drug store. Finally he indicated to prescribe such appliances would be a disservice to the patient.
The witness indicated that he is a friend of Dr. Perry, but indicated that he could be objective.
Under questioning about the regrowth of a nail which had been totally excised by a radical matricetomy, he felt that this nail should not return but that because of certain permeability problems associated with certain patients that the procedure is not always 100 percent effective and that this effectiveness percentage cannot be predetermined. He further elaborated on the use of analgesic, stating that he prescribed a heavier analgesic as necessary. The post operative condition of the normal patient according to the witness was one that would allow the patient to stand on their feet as long as they continued to apply soaks. In addressing the high blood pressure problem associated with Mrs. Chanter he said that this was not of itself sufficient in his mind to consult a medical doctor before operating.
In the matter related to the pain associated with the process of the operation he indicated that the pain is relatively free after the phenol compound goes to work in the prescribed area.
When shown the patient's feet in the course of the hearing he felt that the process was most likely a phenol technique that the first two toes on both feet including the largest toe were partial matricetomies and that the third, fourth, and fifth toes of both feet were total matricetomies and that there appeared to be no problem with the outcome of the operation.
Under examination of the hearing officer the witness felt that the improvement shown in slides 3, 4, 5, and 6 was not due to the application of the antibiotic tetracycline hydrochloride. He also stated to the hearing officer's questions, that there is a certain odor associated with the post operative condition when the phenol process is used.
The Respondent next called Dr. Bruce Neal Kramer, D.P.N., licensed since 1967 and licensed in the State of Florida since 1971. A stipulation was entered into concerning this witness' ability to offer testimony in the field of podiatry. Dr. Kramer testified much in the same way as Dr. Binkowitz with several additional observations. One of the observations was to the effect that the appearance of Mrs. Chanter's feet upon his examination during the course of the hearing showed a growth on the lesser toe of the left foot which could have been a callous or possibly a regrowth of a toenail. He also indicated that if there was odor associated with the feet that the odor could mean some infection, but not staphlococcus infection. Finally the doctor indicated that if there was some purulent discharge associated with the post operative condition of the feet, that he would have ordered a culture (laboratory culture) made of the substance to determine the nature of the bacteria. The witness' overall description of the slides, prepared by Dr. Alkema, was to the effect that the condition was a normal post operative appearance.
The Respondent took the stand and testified that he had been licensed to practice podiatry in the State of Florida. He first saw the patient Irma Chanter on June 27, 1969 and treated her for callouses, bunions, corns and ingrown toenails. The initial treatment was palliative in nature, but from the beginning he recommended more than palliative care after viewing the x-rays which showed a problem, that in his mind could be alleviated by operations. The charge for those x rays was $20.00.
The Respondent indicated that Mrs. Chanter did not want the surgery performed because she could not afford it and he continued to treat her on a monthly basis and to remove the corners of the toenails that were presenting problems. In response to the appliances which were produced by Mrs. Chanter, the witness stated that these appliances were not in fact the appliances that he had prescribed for her. He had prescribed a leather device because metal was not the technique used on adult patients. Moreover, he indicated that the metal apparatus had been shown to him on the initial visit. The charge for the appliances prescribed by the witness was $75.00 for examination, molding and the device itself.
The witness recommended the phenol technique for the problem that Mrs. Chanter was having with her ingrown toenails and also some surgical procedure to be applied for the bunion problem. He quoted a fee for hospital work to include the bunions, toenails and other procedures. The fee quoted was $1,125.00 for all work. He explained all surgery, to include the surgery for removing the toenails which was performed on July 22 and July 23, 1974.
The reasons for splitting the days of the surgery was as an accommodation for Mrs. Chanter because of her nervousness about the operation. At the end of the first day's operation on July 22, 1974, he sent Mrs. Chanter back to work without a day off for the procedures.
In describing the technique employed in the removal of the toenails he indicated the preparation of scrubbing of the patient's feet and the application of the phenol until the tissue turned gray and then he flushed the surface with alcohol. There was no indication of pain by the patient except on the injection of the xylocaine, although his office assistant did hold Mrs. Chanter's hand because of her nervousness. He prescribed nothing for pain except to say to take an aspirin but he told the patient to call if she experienced any pain. There was no call or complaints the night of the 22nd, nor any complaints on the 23rd of July, at which time the procedure was completed. On the second day of the surgical procedure, again Mrs. Chanter was nervous and the office assistant held her hand, although there was no pain beyond the moment of the injection of the xylocaine.
The instructions given to the patient at the close of both days was to soak the feet in domboro solution; to apply garamycin cream; and to bandage the toes with a particular bandaid which was shown to the patient, Mrs. Chanter. Mrs. Chanter was also provided with a list of instructions which is similar to Respondent's Exhibit 1 (that Exhibit being a part of the record)
When the patient came back to the doctor's office on July 25th, she had the wrong bandaids and plastic wedge closed shoes, and her feet were not clean. The doctor made corrections in these matters and noted that although there was a dirty appearance of the feet, that there was not any infection. After leaving on the 25th the patient called the doctor's office and said that she would not be coming back and in response to the efforts of the Respondent to contact Mrs. Chanter by phone, the phone was hung up by Mrs. Chanter. The doctor feels that the reason for the disagreement concerned a fee dispute in which he had indicated that he would be willing to work with her on some basis to pay for the operation but his office personnel had asked for some token payment and Mrs. Chanter had become offended by this matter. The doctor said he saw Mrs. Chanter's feet at the time of her deposition in this matter which was October 9, 1975, and again at the hearing, and felt that the appearance of the feet was acceptable.
He knew of the high blood pressure condition but did not contact Dr. Castronuovo because he felt that the condition was within his ability to control. In that pursuit he used the xylocaine with 1/200,000 parts epinephrine, as opposed to the normal 1/100,000 parts epinephrine.
An effort was attempted on the part of the counsel for the Petitioner to consider the matters involving Albert Frankel and Ayn Dupay in certain law suits in the interest of those parties. These attempts were objected to and the objection was sustained on the basis that the Respondent was not duly noticed of these potential allegations prior to the hearing. A more complete description of the reason for disallowing that testimony will be set forth in the section entitled CONCLUSIONS OF LAW.
Based upon the facts as presented in the course of the testimony at the hearing, the hearing officer is convinced that the Respondent did not overcharge Mrs. Chanter for the performance of the operation. The infection, if any, was not caused by any procedures involved with the operation or post
operative treatment afforded by the Respondent. It is established that as of July 25, 1974, according to the Respondent and Mrs. Chanter, the infection was not present. It has also been established that the opportunity existed for infection to set in beyond the control of the Respondent and Mrs. Chanter removed herself from the Respondent's treatment after July 25, 1974, such that he would not have been aware if such infection had set in. Dr. Alkema testified that in his opinion, infection was present on July 28, 1974, but his analysis was not followed up by any laboratory confirmation and was contradicted by Dr.
Binkowitz and Dr. Kramer. The contradiction by the latter was on the basis of their statement that a visual observation of the purulent discharge would not, and in their estimation could not, label the infection as staphylococcus.
Moreover, the only reasonable way they felt to effect an identification was by laboratory analysis. Again such a staphylococcus infection according to Dr.
Kramer was not best treated by tetracycline hydrochloride. Dr. Binkowitz and Dr. Kramer also felt that from the examination of the slides as prepared by Dr. Alkema, that infection probably was not present and that the appearance of the slides indicated a normal recovery for the phenol process, a process that they were more familiar with than Dr. Alkema.
In considering the possible contention that the operation was not successful as it relates to the lesser toe of the left foot, there is some dispute as to whether or not the recurrence is one of a toenail or some callous, which appears in the area of the toenail. Nevertheless, assuming that the substance is a toenail, accepting the statement of Dr. Binkowitz as to the possibility that a toenail will reappear even with the best efforts of the physician, because of a problem with permeability of a patient's toe, it would not appear that the operation was unsuccessful because of any willful negligence or incompetence on the part of the Respondent, nor any unprofessional conduct in performing the treatment.
The contention was made that the Respondent was unprofessional in failing to notify Dr. Castronuovo of the impending operation on Mrs. Chanter, knowing that Mrs. Chanter was a patient of Dr. Castronuovo. Accepting the fact that Mrs. Chanter was a patient of Dr. Castronuovo, and keeping in mind the ruling that the Respondent was not duly noticed of such a charge of unprofessional conduct, nevertheless, it would appear that under the circumstances of the testimony set forth In the course of the Findings of Fact, it was not unprofessional on the part of the Respondent to fail to notify Dr. Castronuovo.
It was suggested in the course of the hearing that there was a failure on the part of the Respondent to prescribe adequate analgesic for pain. From the testimony offered by doctors Perry, Binkowitz and Kramer, it would appear that the prescription of aspirin as a beginning analgesic was appropriate and the Respondent did not act in a willfully negligent or incompetent manner or unprofessional manner in failing to prescribe any stronger analgesic. Dr. Alkema's testimony on the question of the proper analgesic did not seem to contradict this position, in that he only suggested that he would prescribe a stronger analgesic if the condition warranted, and in this instance Mrs. Chanter did not sufficiently indicate to the Respondent that she desired a stronger analgesic.
It was also brought out in the course of the hearing that the Respondent utilized the wrong anesthetic, in prescribing xylocaine with epinephrine. However, he did utilize a solution in which the epinephrine had been reduced and the testimony did not show any ill effects from the use of any anesthetic which had as a part of the solution the substance epinephrine.
CONCLUSIONS OF LAW
At the beginning of the hearing the Respondent moved to quash a subpoena duces tecum served on the Respondent because it was deemed to be not timely. The subpoena duces tecum was for the production of certain records on patients of the Respondent, other than Irma Chanter. After considering the argument of both counsel the subpoena is deemed to have been served in a timely fashion. This conclusion does not attempt to address any other legal considerations associated with the subpoena duces tecum.
At the beginning of the hearing the Respondent moved to dismiss Count
2 of the Administrative Complaint, on the basis that the Respondent was not duly noticed of the matters which he was called upon to defend against. The Petitioner alluded to the attached Affidavit A, in response to the motion and claimed that the affidavit sufficiently developed the ultimate facts necessary to duly notice the Respondent. It was also suggested that the Respondent had had sufficient opportunity to examine the charging document before the hearing was commenced, through the offices of its counsel, and to file such motions as appropriate and counsel had not elected to do so prior to hearing. On the face of the pleading the Motion to Dismiss would not seem well founded; however, the Petitioner indicated the intention of the Count 2 in making an informal statement about Count 2 as an assistance to the Respondent and in so doing designated an area which was not covered by the complaint. That area concerned the alleged unprofessional conduct by the Respondent in not informing Dr. Castronuovo of the proposed operation on Mrs. Irma Chanter. There was insufficient notice of that fact in the Administrative Complaint, to duly apprise the Respondent of what the Respondent was called upon to defend against. This conclusion of law is based upon the testimony that was eventually offered by the Petitioner on the question of the alleged unprofessional conduct of the Respondent by not notifying Dr. Castronuovo of the proposed operation to Irma Chanter. There also existed the possibility of certain other allegations about unprofessional conduct as asserted in Count 2, based upon a reading of the entire information, and for that reason it would not be appropriate to rule that the Motion to Dismiss Count 2 would have been appropriate at the time of the commencement of the hearing. However, after entertaining all the facts in evidence it appears that the Motion for Directed Verdict made by the Respondent at the close of the Petitioner's case in chief was well taken in that the Petitioner failed to prove any act of conduct which would be considered unprofessional on the part of the Respondent, when such alleged act is measured in terms of the allegations set forth in the Administrative Complaint.
Certain collateral evidence about other patients to wit, Ayn Dupay and Albert Frankel, was proffered to the hearing officer in the course of the hearing. This evidence was deemed to be inadmissable because the Respondent was not duly noticed of any allegations concerning the treatment of these two patients, such that he could defend against those allegations. It was also concluded that there did not exist the requisite requirements for use of those matters pertaining to those patients in the way of collateral evidence in support of the allegations made about the treatment of Irma Chanter. Therefore to use the testimony regarding those patients not only would have been inappropriate because of notice requirements, but would also have been irrelevant.
At one stage in the hearing the witness, Nathan Johnson, was called to testify. Mr. Johnson was then called upon to testify as an expert on the question of whether a toenail which had been excised by a total radical
matricetomy could reasonably be expected to reappear after such an operation. It was concluded that the witness, though he has a working knowledge of the matters pertaining to the field of podiatry because of his association with those physicians as an insurance representative, he is nevertheless not qualified to give expert medical opinion on what the reasonable outcome of the operation should have been.
An effort was made by the Petitioner, in the form of proffered testimony to show that the Respondent had been practicing podiatry in the Palm Beach Gardens Hospital, Palm Beach Gardens, Florida, without the authorization of the authorities of the hospital. This effort in introducing the testimony was deemed inappropriate because the Respondent was not duly noticed of such charges in the Administrative Complaint, such that the Respondent could have been prepared to defend against those charges.
In association with the efforts at introducing the matters concerning the practice of podiatry in a hospital which did not authorize such practice, to wit, Palm Beach Gardens Hospital, Palm Beach Gardens, Florida, the Petitioner had marked for identification two exhibits, Petitioner's Exhibits 3 and 4. Considering the fact that the Respondent was not duly noticed of such a charge of unauthorized practice; the acceptance of Exhibits 3 and 4 by the Petitioner would be inappropriate for consideration in deliberating the facts set forth in the Administrative Complaint if considered as evidence of that charge. Petitioner's Exhibits 3 and 4 would like wise be irrelevant to the matters under consideration in determining the alleged impropriety of the treatment of Irma Chanter.
At the close of the Petitioner's case the Respondent made ,a Motion for Directed Verdict as it pertains to Counts 1 and 2 of the Administrative Complaint. Count 2 has already been addressed in another section of the Conclusions of Law. After considering the facts as offered by the Petitioner in its case in chief it is not deemed appropriate that a verdict should be directed as to Count 1 of the charge.
It is concluded that consideration of all the testimony in the hearing, that the Petitioner has failed to meet its burden of proof necessary to establish the charges set forth in Count 1 of the Administrative Complaint. The Respondent is not found to be willfully negligent or incompetent in the practice of podiatry in connection with the facts set forth in the Administrative Complaint.
It is concluded after consideration of all the testimony in the hearing that the Petitioner has failed to meet its burden of proof necessary to establish the charges set forth in Count 2 of the Administrative Complaint. The Respondent is not found to be acting in an unprofessional manner in performing treatment on Irma Chanter.
In determining what the burden of proof is in a license revocation, such as the Florida State Board of Podiatry Examiners in the case at bar, one should look to Vining v. Florida Real Estate Commission, 281 So.2d 487, a 1973 Supreme Court case wherein the court cites a U.S. Supreme Court case noting that a disbarment is essentially penal in nature and thus the Fifth Amendment rights apply through the Fourteenth Amendment, even though disbarment is a state action. Vining goes on to state that the rationale of the Federal case should apply not only to disbarment proceedings, but also to other types of administrative proceedings which may result in deprivation of livelihood. It specifically references it to the revocation of a real estate license. By
looking at Vining it is determined that disbarment proceedings, i. e., the revocation of a professional license to practice law is the same as a proceeding to revoke any other professional license. It then becomes important to look at The Florida Bar v. Ramon, 238 So.2d 594, a Supreme Court decision In 1970 wherein it says that in a disbarment proceeding the standard of proof is clear and convincing evidence. The Ramon case also has language in It that says that if the defendant takes the stand and under oath fully and completely denies the asserted acts, that clear and convincing evidence does not flow from the testimony of just one witness unless such witness is corroborated to some extent either by facts or circumstances. Therefore, the standard of proof Incumbent upon the Petitioner Is to prove Its case by clear and convincing evidence.
It is therefore recommended that the Respondent, Gerson M. Perry, be released from all charges brought under this Administrative Complaint.
DONE and ENTERED this 28th day of January, 1976, In Tallahassee, Florida.
CHARLES C. ADAMS
Hearing Officer
Division of Administrative Hearings The Carlton Building
2009 Apalachee Parkway
Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Lawrence M. Kukey, Esquire
507 North Olive Avenue
P. O. Box 3466
West Palm Beach, Florida, 33402
John S. Miller, Jr., Esquire
P. O. Box 10137 Tallahassee, Florida 32301 For the Board
| Issue Date | Proceedings |
|---|---|
| Apr. 17, 1976 | Final Order filed. |
| Jan. 28, 1976 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 17, 1976 | Agency Final Order | |
| Jan. 28, 1976 | Recommended Order | Respondent did not fall below community standards in care of podiatry patient. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs EUGENIO RODRIGUEZ, M.D., 75-001463 (1975)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ANTHONY BRIGNONI, M.D., 75-001463 (1975)
DEPARTMENT OF HEALTH, BOARD OF PODIATRIC MEDICINE vs JACK J. COHEN, D.P.M., 75-001463 (1975)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JAMES P. WEINER, M.D., 75-001463 (1975)
DEPARTMENT OF HEALTH, BOARD OF DENISTRY vs ROBERT DEPALMA, D.D.S., 75-001463 (1975)
