Judges: CHARLES C. ADAMS
Agency: Department of Health
Latest Update: Jun. 28, 1990
Summary: Whether on or about March 6, 1978, the Respondent, Ronald M. Tauber, D.O., performed an abortion on Gloria Small at the Orlando Birthing Center, Orlando, Florida; during the course of which procedure, the patient's uterus was perforated and other complications ensued and despite an agreement from a hospital staff member at Orange Memorial Hospital, Orlando, Florida, between that staff member and Respondent to allow the transfer of the patient, Small, to Orange Memorial Hospital for emergency tre
Summary: Whether on or about March 6, 1978, the Respondent, Ronald M. Tauber, D.O., performed an abortion on Gloria Small at the Orlando Birthing Center, Orlando, Florida; during the course of which procedure, the patient's uterus was perforated and other complications ensued and despite an agreement from a hospital staff member at Orange Memorial Hospital, Orlando, Florida, between that staff member and Respondent to allow the transfer of the patient, Small, to Orange Memorial Hospital for emergency treatment the Respondent did not transfer the patient to the hospital until March 7, 1978, and further, that notwithstanding an emergency hysterectomy operation performed at that hospital, Gloria Small died. It is alleged that should the above-stated facts be proven, the Respondent, Ronald M. Tauber, D.O., would have failed to demonstrate satisfactory professional skill, judgment or knowledge expected of him and to have exhibited an inability to practice osteopathic medicine with reasonable skill and safety and that his professional conduct departed from minimal standards of acceptable and prevailing osteopathic medical practice, in violation of Subsections 459.14 (2)(c) and (m), Florida Statutes. (The Administrative Complaint in this cause contained paragraphs 1 and 2 which were dismissed by the undersigned with leave for the Petitioner to amend. The Petitioner did not undertake such an amendment and the paragraphs 1 and 2 of the Administrative Complaint were not considered in the course of the hearing. Paragraph 5 of the Administrative Complaint was stricken and has not been considered. The phrase found in paragraph 3 of the Administrative Complaint which is constituted of the language "as well as other abortion procedures" was stricken and was not the subject of consideration in the course of the administrative hearing. Finally, the Petitioner moved to withdraw any reference to the substantive allegations found in paragraph 4 of the Administrative complaint pertaining to Subsections 459.14(2)(h), (k), and (n), Florida Statutes, and that motion was granted without opposition from the Respondent.)License should be suspended for two years for unprofessional conduct departing from the acceptable level and for inability to practice safely.
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STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL AND OCCUPATIONAL ) REGULATION, BOARD OF OSTEOPATHIC ) MEDICAL EXAMINERS, )
vs. ) CASE NO. 78-846
RONALD M. TAUBER, D.O., )
Respondent. )
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on February 5 and 6, 1979, and continuing on March 19 and 20, 1979, in Orlando, Florida.
For Petitioner: Ronald C. LaFace, Esquire
Washington, D.C. 20007
Whether on or about March 6, 1978, the Respondent, Ronald M. Tauber, D.O., performed an abortion on Gloria Small at the Orlando Birthing Center, Orlando, Florida; during the course of which procedure, the patient's uterus was perforated and other complications ensued and despite an agreement from a hospital staff member at Orange Memorial Hospital, Orlando, Florida, between that staff member and Respondent to allow the transfer of the patient, Small, to Orange Memorial Hospital for emergency treatment the Respondent did not transfer the patient to the hospital until March 7, 1978, and further, that notwithstanding an emergency hysterectomy operation performed at that hospital,
Gloria Small died. It is alleged that should the above-stated facts be proven, the Respondent, Ronald M. Tauber, D.O., would have failed to demonstrate satisfactory professional skill, judgment or knowledge expected of him and to have exhibited an inability to practice osteopathic medicine with reasonable skill and safety and that his professional conduct departed from minimal standards of acceptable and prevailing osteopathic medical practice, in violation of Subsections 459.14 (2)(c) and (m), Florida Statutes.
(The Administrative Complaint in this cause contained paragraphs 1 and 2 which were dismissed by the undersigned with leave for the Petitioner to amend. The Petitioner did not undertake such an amendment and the paragraphs 1 and 2 of the Administrative Complaint were not considered in the course of the hearing.
Paragraph 5 of the Administrative Complaint was stricken and has not been considered. The phrase found in paragraph 3 of the Administrative Complaint which is constituted of the language "as well as other abortion procedures" was stricken and was not the subject of consideration in the course of the administrative hearing. Finally, the Petitioner moved to withdraw any reference to the substantive allegations found in paragraph 4 of the Administrative complaint pertaining to Subsections 459.14(2)(h), (k), and (n), Florida Statutes, and that motion was granted without opposition from the Respondent.)
This cause comes on for consideration based upon the Administrative Complaint filed by the Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida State Board of Osteopathic Medical Examiners, against Ronald M. Tauber, D.O., Respondent. The date of that Administrative Complaint is April 24, 1978. The dispute to be resolved in the hearing process is as set forth in the issue statement of this Recommended Order. To that end, a formal hearing was held in accordance with the provisions of Subsection 120.57(1), Florida Statutes, during the course of which, testimony and other evidence were presented by the parties.
The Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida State Board of Osteopathic Medical Examiners, is an agency of the State of Florida whose purpose is that of licensure and regulation of those individuals who practice osteopathic medicine in the State of Florida.
The Respondent, Ronald M. Tauber, D.O., is licensed by the Petitioner in the State of Florida to practice osteopathic medicine and his license number is 3430. At all times pertinent to the Administrative Complaint, Dr. Tauber was so licensed.
The facts in the case reveal that the Respondent in the month of March, 1978, was practicing osteopathic medicine in a facility located at 419 North Magnolia, Orlando, Florida. This particular structure was a building with approximately 9,000 square feet of office space which Dr. Tauber used in the practice of his specialty, obstetrics and gynecology. His type facility has been referred to as a "free standing clinic" that offers among other services elective abortions, to include those performed in the late first trimester or early second trimester of the patient's pregnancy.
Some of the equipment in the installation included a maternal fetal monitor, a cardiac monitor and defibulator which were part of a crash cart. The crash cart also contained items for resuscitation of adults and infants, including drugs, tubes, scopes, Laryngoscopes and Ambu bags. There was an
operating room with an operating-obstetrical table. There were sources of sterilization by gas and steam. The office also contained instruments for minor gynecologic surgery, to include abortions and laparoscopy.
There was an office area used by the Patient Education Coordinator- Counselor who was a member of the Respondent's staff. This Counselor conferred with prospective abortion patients concerning the pros and cons of such a procedure, to include alternatives to pregnancy termination.
The office contained a laboratory which had equipment for the performance of blood counts, cultures, urine tests, other chemistry tests, blood typing and blood cross-matching. In connection with the blood work-ups, there was a blood bank refrigerator; however, no arrangements had been consummated for the storage of blood in that refrigerator prior to the abortion which was performed on the patient, Gloria Small, the subject of this complaint. In a related area, the Respondent intended to employ an anesthetist who would give Dr. Tauber the capability of utilizing general anesthesia in his operative procedures. This arrangement had not been made on or before March 6, 1978, and the abortion performed on Gloria Small was without the benefit of any form of general anesthesia.
The personnel who worked in the facility in March, 1978, included a full-time registered nurse, a number of part-time registered nurses; a full-time licensed practical nurse, a number of part-time licensed practical nurses; a full-time certified operating room technician; a part-time licensed practical nurse who functioned as a LaMaze instructor and other functions associated with the maternity aspect of the facility; a medical records librarian; a receptionist; a full-time housekeeper; a part-time maintenance man and a business advisor/bookkeeper.
Dr. Tauber had arranged for backup personnel in the persons of a pediatrician in the child delivery cases and a medical doctor who specialized in obstetrics and gynecology. These individuals were to assist in the procedures at the clinic and to cover for Dr. Tauber when Dr. Tauber was unavailable. However, the medical doctor in the field of obstetrics and gynecology did not have hospital privileges and neither did Dr. Tauber. There were two other physicians who had agreed to give hospital coverage for Dr. Tauber in complicated cases, but this arrangement excluded abortion procedures.
On March 2, 1978, the patient, Gloria Small, was seen by Dr. Tauber and he accepted her case. Ms. Small requested a pregnancy termination and sterilization. During his initial interview and examination, the Respondent took the patient's personal history and conducted a physical examination and determined that the patient was pregnant approximately fourteen to fifteen weeks according to the gestational size. In addition to the physical examination, Dr. Tauber counseled the patient about the abortion and sterilization procedures and indicated alternatives to those procedures and the risks involved in each course that might be pursued. The patient indicated a desire to go forward with the abortion and sterilization procedures and in preparation for the procedures the Respondent ordered certain laboratory work, including hematology; type and Rh and urinalysis. This lab work was performed.
Subsequent to this time, the patient was seen by the office counselor and continued to indicate her desire to have the procedures performed and the patient was scheduled for the procedures to be conducted on March 6, 1978.
When the patient arrived on the morning of March 6, 1978, she was prepared for the abortion and sterilization procedures to the extent of being sterilly cleaned and having a medication administered to relax the patient.
(At the time the Respondent performed the abortion and sterilization procedures on the patient, he had performed a significant number of these procedures before.)
When the patient was presented in the operating room, she had been administered Nisentil in the amount of 40 milligrams. This is an analgesic drug designed to decrease the pain during the procedure. The patient was also given Atropine, a parasympathetic, to slow down the digestive track and to decrease the chance of nausea and to retard salivation. Intravenous lines were opened and the patient was given compositions of fluids which had a mineral and sugar content.
The doctor was assisted by a scrub technician and there was a circulating registered nurse available. The procedures began at approximately 12:00 noon and were concluded at 1:25 p.m.
The patient was dialated and the suction cannula was placed in the uterus and the suction machine turned on, at which point the materials in the uterus began to flow into the suction machine. In view of the advanced stage of the pregnancy, it was then necessary to place various instruments, ring forceps, to withdraw the pregnancy tissue. In the course of the manipulations, placental tissue was observed being brought down. At that point, the patient began to bleed heavily. Dr. Tauber placed the ring forceps into the uterus and the ring forceps went beyond normal depths expected in such an examination of the uterus. This preliminary procedure led to the eventual verification that a perforation had occurred. At this juncture, the doctor was working in the cervical canal.
The doctor's response to the apparent perforation was to place the laparoscope and attendant instrument into the abdomen, setting up the procedure with a local anesthesia. When this action was taken, the Respondent, using a fallopian applicator (which was to be used in the sterilization procedure) lifted the uterus and saw a perforation two to four centimeters in length in the right posterior aspect of the lower uterine segment. At this point of observation, the perforation was not bleeding. There was a certain amount of blood in the lower dependent portion of the abdomen which did not measure more than 25 cc and this was consistent with a perforation that was not bleeding.
The operating room technician was allowed to visualize the perforation through the laparoscope and the medical doctor who specialized in obstetrics and gynecology was called to assist.
While the Respondent was waiting for the arrival of the backup physician, he allowed the operating room technician to assist him by viewing through the laparoscope while the Respondent turned to the vaginal aspect of the procedure and entered the uterus. During the process of the evacuation of the remaining placental tissue, the Respondent placed an instrument through the performation a second time; however, no additional bleeding was observed at that point.
The bleeding which had been observed initially had slowed to a continuous ooze and this amount of bleeding caused the Respondent to observe the area of the perforation for an additional period of thirty minutes or more to confirm that the bleeding was not increasing in volume. The backup physician
also observed the area of the perforation and consulted with the Respondent about the complication.
The dialation and evacuation procedure was completed and the fallope rings applied and when the Respondent was convinced that he didn't have bleeding intra-abdominally, the patient was packed by placing gauze-type material in the vagina, thereby promoting pressure against the bleeding area. (The sequence of observations through the laparoscope that have been mentioned before occurred after the packing had been placed.) During the pendency of the observation, no blood was observed to be coming through the packing. Contemporaneous to the observations, fluids were used to replace the high blood loss. That amount of blood loss was believed to be in the amount of 1500 cc.
When the complications occurred in the course of the operation, there was a drop in blood pressure and an increase in the pulse rate. In addition, the pre-operative hemoglobin was 13.5 g.m. as compared to 9.5 g.m. post- operative, and the hemoglobin ranged from around 8.2 g.m. through the higher 8.0
g.m. and lower 9.0 g.m., from the period immediately following the operation until around 5:00 p.m.., March 7, 1978. A more complete detail of the change in blood pressure, pulse rate and hemoglobin count may be found in Petitioner's Composite Exhibit No. 1, which is a copy of the Respondent's case records on the patient, Gloria Small. From an examination of all the vital signs, the patient was hypovolemic to the extent of being in hypovolemic shock following the aforementioned procedures.
At the conclusion of the operation, Dr. Tauber instructed his staff to monitor the patient closely, and she remained on the cardiac monitor which had been employed during the operative procedures and the patient's vital signs, to- wit, blood pressure and pulse, were checked frequently. In addition, the staff was instructed to catherize the patient after six hours if the patient did not void and to record the amount of fluid intake and output and to observe the patient for vaginal bleeding. The patient was also given fluids to include dextrose and water and Normasol M, together with certain medication. These instructions were carried out by the staff.
Dr. Tauber continued to give the patient fluids and to consider whether the patient should be transfused with whole blood. Around 3:00 p.m. on March 6, 1978, Dr. Tauber decided to infuse the patient with whole blood. He contacted the managing director of the Central Florida Blood Bank to attempt to gain the permission of that organization to provide whole blood for the benefit of the patient, Gloria Small. There had been some preliminary contact with the blood Bank about providing blood for patients of Dr. Tauber, but that arrangement had not been finalized prior to Gloria Small's operation. The managing director conferred with the medical director of the blood bank and a decision was made to honor Dr. Tauber's request for blood. Some delay ensued due to a mix-up on the part of Dr. Tauber's staff on the question of labeling the samples; nonetheless, this problem was rectified and at 6:10 p.m., and again at 7:25 p.m., blood was delivered for the benefit of the patient, Gloria Small, and that blood was infused into the patient. Contrary to the recollection of the Respondent, there is no record of further units of blood being requested by the Respondent, Dr. Tauber, for the benefit of the patient, Gloria Small, and, therefore, officially no such request was made of the blood Bank during the pendency of Dr. Tauber's treatment of the patient. As a consequence, the further treatment which Dr. Tauber gave the patient, Gloria Small, was without the benefit of the immediate availability of further units of blood.
As previously stated, Dr. Tauber did not have hospital privileges and had not made any prior arrangement for the patient to be turned over to a physician with hospital privileges, in the event a medical emergency arose which required the hospitalization of the patient, Gloria Small. His first effort at making such an arrangement occurred between 5:00 and 5:30 on March 6, 1978, when he contacted a Dr. Lassiter, a resident in obstetrics and gynecology at the Orange Memorial Hospital, Orlando, Florida. The purpose of such conversation was to arrange for the patient to transfer if her condition worsened. Dr. Lassiter was unable to make this arrangement and it was only after the physician in charge had been conferred with that it was arranged for the patient, Gloria Small, to be accepted at Orange Memorial Hospital. This agreement was reached by the Respondent and the physician in charge, one Dr. Herran. Dr. Herran then confirmed this agreement with Dr. Lassiter, the resident, and instructed Dr. Lassiter to accept the patient, Gloria Small, if she were transferred and to immediately notify Dr. Herran if such transfer did occur.
Dr. Tauber left his clinic around midnight of the morning of March 7, 1978, and left the patient in charge of a staff nurse. He returned to the hospital on the morning of March 7, 1978, and the patient's condition remained stabilized until approximately 5:00 p.m. on March 7, 1978. Up until that point, the bleeding that had been experienced following the initial hemorrhage was slight, and it was decided to remove the packing which had been placed at the conclusion of the operation.
Most of the packing had been removed and there was no sign of bleeding, when a substantial hemorrhage took place in the cervical canal.
At that point, Dr. Tauber repacked and made arrangements for an emergency ambulance, to transfer the patient to the hospital, and to notify Dr. Herran. The patient's vital signs began to deteriorate and during the transportation of the patient from Dr. Tauber's facility to Orange Memorial Hospital, the patient began to show marked signs of hypevolemic shock.
Upon arriving at the Orange Memorial Hospital, the patient became the charge of that hospital staff and Dr. Tauber was no longer responsible, although he stayed with the patient and offered assistance, which was declined. The events which transpired at the Orange Memorial Hospital evidenced an inordinate delay on the part of the staff in properly administering to the needs of the patient. Whether this significantly contributed to the patient's ultimate demise is unresolved, but having arrived at the hospital in a condition where her body was already at a low ebb and unable to tolerate further insult, the patient died following a hysterectary performed in the Orange Memorial Hospital. The principal factor in that death was hypovolenic shock.
Out of these events, the Petitioner has charged Dr. Tauber with a failure to demonstrate satisfactory professional skill, judgment or knowledge in the treatment of the patient, Gloria Small, and the accusation that Dr. Tauber has exhibited an inability to practice osteopathic medicine with reasonable skill and safety and that his professional conduct departed from minimal standards of acceptable and prevailing osteopathic medical practice. The particular substantive allegations which remain to be considered at this time are found in Subsections 459.14(2)(c) and (m), Florida Statutes, which state the following:
459.14 Refusal, revocation and suspension of license, etc.--
(c) Gross malpractice or the inability to
practice osteopathic medicine with reasonable skill and safety. In enforcing this paragraph the board shall, upon just cause shown, have authority to compel a physician to submit to
a mental or physical examination to be conducted by physicians designated by the board, such examination to be at the expense of the board.
Failure or refusal of a physician to submit to such an examination when so directed by the board shall constitute an admission of his inability to practice osteopathic medicine with reasonable skill and safety.
(m) A finding by the board that the indivi- dual is guilty of immoral or unprofessional conduct. Unprofessional conduct shall include any departure from, or failure to conform to, the minimal standards of acceptable and prevail- ing osteopathic medical practice, without regard to the injury of a patient, or the committing
of any act contrary to honesty, whether the same is committed in the course of practice or not.
In addressing the question of the application of these substantive standards set forth above to the facts reported in this case, the parties have offered the testimony of a number of persons within the profession of osteopathic medicine and other physicians who are medical doctors. An analysis of their testimony in view of the accusations in this cause establishes that the Respondent has evidenced an inability to practice ostepathic medicine with reasonable skill and safety within the meaning of Subsection 459.14(2)(c), Florida Statutes, and is likewise guilty of unprofessional conduct for departing from minimal standards of acceptable and prevailing osteopathic medical practice within the community where he practiced as required by Subsection 459.14(2)(m), Florida Statutes.
The facts that led to these conclusions are those which show that the Respondent went forth with the dialation and evacuation and sterilization procedures of Gloria Small at a time when he did not have hospital privileges and at a time when he was unassociated with those persons who would have the necessary hospital privileges to address complications which might occur during these procedures, which complications might need immediate and well-defined access to a hospital facility. In addition, the possibility existed that the patient would need whole blood and other products associated with fluid replenishment and the Respondent had failed to make adequate arrangements for such eventuality, which failure caused undue delay in the infusion of the whole blood in the patient, Gloria Small. The problem in this case concerning the lack of readily available blood or blood products constituted a violation of the aforementioned standards on the part of Dr. Tauber and the very fact that Dr. Tauber had not made the prior arrangements to have available such blood or blood products constituted a further violation of the aforementioned standards.
In a related area, that condition which would cause a necessity of the infusion of blood, to-wit, hypovolemic shock, had not adequately been anticipated, in violation of the necessary standards, even if you assume that Dr. Tauber made a sufficiently prompt response to the patient's hypovolemic condition which occurred following Dr. Tauber's operative procedures. Had the blood been needed more promptly, the Respondent was not prepared.
There was considerable debate on the question of the necessity to transport the patient, Gloria Small, to a hospital following the substantial hemorrhage which occurred in the dialation and evacuation and sterilization procedures. After close scrutiny, it does not appear that the Respondent was remiss for not transferring the patient to Orange Memorial Hospital as opposed to the occasion when he did transfer her, remiss within the meaning of a violation of a standard set forth in Chapter 459, Florida Statutes.
The procedures which Dr. Tauber used in discussing the case with his patient, Gloria Small, and providing other counseling do not violate provisions of Chapter 459, Florida Statutes, nor is the act of perforation itself and the contemporaneous management of that perforation in violation of Chapter 459, Florida Statutes. Likewise, the response which Dr. Tauber made in the second emergency on March 7, 1978, when the bleeding occurred did not violate the provisions of Chapter 459, Florida Statutes. Finally, it cannot be determined from this record whether Dr. Tauber could have avoided the confusion which took place after the patient was transferred to Orange Memorial Hospital, by earlier coordination with Dr. Herran; and in view of the fact that the patient was no longer his charge once she had been admitted to Orange Memorial Hospital, there can be no responsibility, within the meaning of Chapter 459, Florida Statutes, for those events which transpired when the patient was admitted to Orange Memorial Hospital.
The parties have availed themselves of the opportunity to submit findings of fact, conclusions of law and recommendations and these offerings have been reviewed prior to the rendition of this Recommended Order and to the extent that they are not inconsistent with the Recommended Order, they have been utilized in aid of the preparation of this Recommended Order. To the extent that these proposals are inconsistent with the Recommended Order, they are hereby specifically rejected.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this cause.
Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Respondent, Ronald M. Tauber, D.O., has demonstrated an inability to practice osteopathic medicine with reasonable skill and safety in his treatment of the patient, Gloria Small, in violation of Subsection 459.14(2)(c), Florida Statutes, and is subject to the penalties set forth therein.
Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Respondent, Ronald M. Tauber, D.O., is guilty of unprofessional conduct by departing from minimal standards of acceptable and prevailing osteopathic medical practice in his treatment of the patient, Gloria Small, in violation of Subsection 459.14(2)(m), Florida Statutes, and is subject to the penalties set forth therein.
In view of all the facts and circumstances, it is recommended that the Respondent, Ronald M. Tauber, D.O., have his license to practice osteopathic medicine in the State of Florida suspended for a period of two (2) years.
DONE AND ENTERED this 10th day of May, 1979, in Tallahassee, Florida.
CHARLES C. ADAMS
Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302
1055 Thomas Jefferson Street, N.W. Suite 604
Washington, D.C. 20007
