STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOARD OF MEDICAL EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1144
)
ANILA POONAI, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Port St. Joe, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on October 2, 1979. Transcripts of portions of the proceedings were received by the Division of Administrative Hearings on October 16, 1979. The parties were represented at the hearing by counsel:
For Petitioner: Clifford L. Davis, Esquire
107 South Bronough Street Tallahassee, Florida 32301
For Respondent: J. Ben Watkins, Esquire
Post Office Drawer 1814 Tallahassee, Florida 32302
By administrative complaint dated April 25, 1979, petitioner alleged that respondent "[o]n or about March 27, 1977, . . . [w]hile Chief of Obstetrics and Gynecology at Municipal Hospital of Port St. Joe . . . knowingly failed to perform an emergency medical procedure on [a] patient . . . when requested with full knowledge that failing to do so would require a transfer of a patient under circumstances medically known to greatly endanger the life of said patient and her unborn child and contrary to Florida Statutes, Section 458.1201(1)(m)"; "on or about March 13, 1978, . . . performed an unnecessary medical procedure on patient [Beverly Bass] . . . falsified the final diagnosis on the patient's summary sheet, permanently sterilized a 26 year old female, destroyed a viable four-six week old embryo contrary to Florida Statutes, 458.1201(1)(b), (h) and (m)"; "on or about November 30, 1977, . . . performed a medical procedure against the wishes of a patient [Beverly Diane Stover] by sterilizing . . . a 24-year-old female, because [respondent] negligently failed to diagnose obvious physical abnormalities of an infant [she] delivered contrary to Florida Statutes, Section 458.1201(1)(m)"; "on or about February 22, 1978 . . . performed an elective medical procedure against strong indications to the contrary in the patient's medical history by performing an anterior colporrhapy on a 70-year-old patient with a history of diabetes, congestive heart failure, pacemaker [sic] insertions, thereby gravely and unnecessarily endangering the life of a patient . . . contrary to Florida Statutes, Section 458.1201(1)(h) and (m)"; "on or about January 26, 1977, . . . misdiagnosed a medical condition and performed an unnecessary medical procedure and falsified the final diagnosis on
the patient's summary sheet, which resulted in the permanent sterilization of a
29 year old patient . . . contrary to Florida Statutes, Section 458.1201(1)(b) and (m)"; and "on or about and between August 1, 1976, and September 30, 1976, .
. . negligently prescribed a substance that was contraindicated by the patient's [Linda Whitfield's] history and in amounts greatly exceeding medically recognized dosage level and . . . further performed an unnecessary medical procedure that was contraindicated by the patient's medical history contrary to Florida Statutes, Section 458.1201(1)(h) and (m)." In addition, in Count VII, the administrative complaint alleged that respondent's "privileges to practice medicine on the staff of Municipal Hospital of Port St. Joe were revoked," but, on respondent's application, administrative proceedings on this count were enjoined by court order. Anila Poonai, M.D., State Board of Medical Examiners, No. 79-2409 (2d Cir., Oct. 1, 1979). Although the testimony included occasional, incidental references to the revocation of respondent's hospital privileges, Count VII was not litigated by the parties nor acted on by the Hearing Officer.
FINDINGS OF FACT
Respondent Anila Poonai began her medical education in her native land, India, and, in 1960, she received a medical degree from Bombay University.
After an internship in Bombay, she spent three months in training in the United Kingdom, before travelling to Georgetown, Guyana, to become a resident medical officer at the public hospital there. After two years in Guyana, she returned to England where, in 1964, she passed a post-graduate examination. As a result of a residency in obstetrics and gynecology and a satisfactory showing on the requisite examinations, she became a member, in 1969, of the Royal College of Obstetrics and Gynecology. All told, respondent has spent six years as a resident in obstetrics and gynecology. From England, she travelled to the University of the West Indies in Kingston, Jamaica. At the University of the West Indies, she was senior registrar in obstetrics and gynecology and, for six months, acting lecturer in obstetrics and gynecology.
In 1973, she and her husband, who is a general surgeon, moved to Cleveland, Ohio. Respondent has not sought certification by the American College of Obstetrics and Gynecology. She testified that the American College of Obstetrics and Gynecology recognized her membership in the Royal College of Obstetrics and Gynecology as an equivalent certification. Until moving to Port St. Joe, she worked as a house physician in St. Alexis and Hillcrest hospitals in Cleveland.
Respondent and her husband moved to Florida at the invitation of the Board of Trustees of the Municipal Hospital of Port St. Joe. The Board wanted to upgrade the Hospital. Almost from the time of their arrival, respondent and her husband found themselves at the center of controversy. Respondent's husband testified that, when he and respondent began work at the Municipal Hospital of Port St. Joe, in August of 1976, norms of practice at the Hospital were "miles below standard" and that the medicine practiced by other physicians in the community was "about 25 years" out of date. Whether true or false, this view, and its blunt articulation, may account for the friction respondent and her husband experienced in their relationships with some of the nurses and physicians with whom they came into contact.
Being the only such specialist on the staff, respondent was named chief of obstetrics and gynecology at the Municipal Hospital of Port St. Joe. In this capacity, she ordered drugs and other obstetric and gynecologic supplies for the Hospital. Chief of staff at the Hospital, from 1961, until the spring of 1977,
was John Wayne Hendrix, who has practiced medicine in Port St. Joe for some three decades. During Dr. Hendrix' tenure as chief of staff, Dr. Orr of Wewahitchka, a general practitioner, was granted "courtesy privileges" at the Municipal Hospital of Port St. Joe. At all pertinent times, Hospital bylaws forbade a physician to whom only courtesy privileges had been granted, to attend a delivery, except under the supervision of the chief of obstetrics and gynecology.
On March 27, 1977, in violation of the Hospital's bylaws, Dr. Orr attempted, for the first and only time, to deliver a baby in the Municipal Hospital of Port St. Joe. When Gloria Pippin, R.N., arrived to begin the 3 to
11 shift, Dr. Orr's patient was already in labor. At 9:30 that night, the patient's cervix was fully dilated; at 9:45 she was taken to the delivery room. At 11:00 Dr. Orr "did a saddle block," i.e., he administered a spinal anesthetic. Five minutes later he had finished an episiotomy. At quarter past eleven, he used Tucker-McClain forceps in an effort to extract the baby. That failing, he tried long Simpson forcens at 11:25 and Kielland forceps at ten minutes before midnight, March 27, 1977. The baby's head was too big for the mother's pelvis.
Five minutes later, Ms. Pippin telephoned respondent, at Dr. Orr's request. Respondent expressed dismay that Dr. Orr had been permitted to begin, and asked Ms. Pippin to notify Dr. Hendrix of the situation. She herself telephoned Gerald Sullivan, the chairman of the Hospital's Board of Trustees. Afterwards, she and her husband, Dr. Parmanand Vijay Poonai, went to the Hospital. They arrived at approximately 12:40. Dr. Hendrix, who had considerable experience in performing Ceasarean sections, preceded them to the Hospital. By the time the Drs. Poonai reached the hospital, arrangements had been made for Dr. Orr's patient to be transferred to Panama City's Bay Memorial Hospital.
At quarter past midnight, when Dr. Hendrix arrived at the hospital, the mother's blood pressure was 134/78. Ten minutes before she left in the ambulance, her blood pressure was 137/98 and her pulse was 112. At that time, the fetal pulse was 156. At 1:20 a.m., an ambulance left the Municipal Hospital of Port St. Joe for Panama City. When they reached Bay Memorial Hospital, the mother's vital signs and the infant's heart beat were within normal limits. Dr. Stephen Smith, the obstetrician who performed a Caesarean section upon the patient's arrival in Panama City, was the man of the hour. Mother and baby did well.
For many years, it has been common to send women in labor to Panama City from Port St. Joe, and hundreds have made the trip. It takes a half hour to an hour to drive from the Port St. Joe hospital to the Panama City hospital. The longer a woman in the condition Dr. Orr's patient was in continues in labor, the greater are the chances of injury or death to the fetus and even to the mother.
At no time did Dr. Hendrix telephone respondent on the night of the 27th or morning of the 28th. Neither Dr. Hendrix nor Dr. Orr ever asked respondent for assistance with Dr. Orr's patient. When respondent and her husband arrived at the Hospital early on the morning of March 28, 1977, neither Dr. Hendrix nor Dr. Orr spoke to either of them. Dr. Hendrix refused to speak to them, even though respondent addressed him and asked him specifically about Dr. Orr's patient. Both respondent and her husband remained at the Hospital until after the ambulance left for Panama City.
It is unethical for one physician to intervene in the care of a patient whose treatment is being actively managed by another physician, unless requested. It may also be dangerous.
On January 16, 1978, Dr. P. V. Poonai saw Beverly R. Bass in his office. Ms. Bass, who was born on December 15, 1951, told Dr. P. V. Poonai that a Dr. Vasquez of Port St. Joe (of whose wife Ms. Bass was a cousin) and other physicians had recommended a hysterectomy; that she had been passing blood clots for the preceding four months; that she had epigastric pain; that her most recent menstrual period was December 19, 1977; that she had two daughters and a son by three different men; that she wanted no more children; and that she wanted a hysterectomy both to prevent conception and to stop her bleeding.
After examining her and finding an ovarian cyst and a slightly bulky uterus, Dr.
P. V. Poonai prescribed hospitalization for a series of gastrointestinal X-rays to investigate the possibility of an ulcer, and for an obstetric and gynecologic consultation with respondent.
On January 18, 1978, Ms. Bass entered the Municipal Hospital of Port St. Joe. An electrocardiogram was done. Dr. J. B. Harbison prepared a report of the X-rays taken as prescribed by Dr. P. V. Poonai. Respondent met Ms. Bass for the first time, in the Hospital, on January 19, 1978. She took Ms. Bass' history and examined her under general anesthesia, finding a left ovarian cyst, a normal cervix and a bulky anteverted uterus. Respondent recommended a dilatation and curettage (d & c) for diagnostic and therapeutic purposes, and, on the same day, Ms. Bass signed a form consent to diagnostic and treatment procedures authorizing respondent to perform a d & c. The following day, January 20, 1978, respondent did perform a routine d & c. Afterwards, the curettings resulting from the procedure were transmitted to a pathologist. After examining this material, the pathologist prepared a tissue report, and stated, as the pathological diagnosis:
SECRETORY PHASE, DYSFUNCTIONAL BLEEDING. NO EVIDENCE OF POLYPS, PREGNANCY OR MALIGNANCY OBSERVED IN THE SPECIMEN SUBMITTED.
FRAGMENT OF ENDOCERVIX WITH SQUAMOUS METAPLASIA, ACUTE AND CHRONIC INFLAMATION.
Petitioner's exhibit No. 2.
On January 21, 1978, Ms. Bass left the hospital, with a final diagnosis of dysfunctional bleeding. Before discharging Ms. Bass, respondent instructed her to refrain from sexual intercourse and from douches for four to six weeks.
Eight to ten days after her discharge, Ms. Bass resumed sexual intercourse. On February 2, 1978, respondent saw Ms. Bass at her office and discussed the pathologist's tissue report with her. She related to Ms. Bass her clinical impression of uterine fibroids and prescribed Orthonovum, a birth control pill, as an additional means of forestalling dysfunctional bleeding. On February 2, Ms. Bass reported no bleeding subsequent to the d & c. Respondent did not ask and Ms. Bass did not volunteer that she had failed to follow instructions to abstain from sexual intercourse.
Although the birth control pills respondent prescribed were to be taken daily, Ms. Bass did not take one every day. Respondent next saw Ms. Bass on February 13, 1978, when her only complaint was of an upper respiratory tract infection. On March 4, 1978, Ms. Bass returned to respondent's office
complaining of heavy breakthrough bleeding, and reported that she was passing blood clots. Respondent examined her and suggested a hysterectomy. Ms. Bass asked if she could enter the hospital on March 12, 1978, saying she could make arrangements for her children by then.
Respondent administered no pregnancy test to Ms. Bass on March 4, 1978, or at any time thereafter. She thought none was necessary because she believed that Ms. Bass had followed her instructions. Respondent does not knowingly perform abortions, even for therapeutic purposes, on account of religious scruples. A d & c elicits inflamatory responses hostile to fertilization. Even when a pregnancy has begun, no pregnancy test will be positive before 41 days have elapsed since the last menstrual period. Some hospitals, like Jackson Memorial in Miami, require pregnancy tests before surgery as a matter of routine, but the Municipal Hospital of Port St. Joe had no such policy.
On March 12, 1978, Ms. Bass was admitted to the Municipal Hospital of Port St. Joe. The following day respondent performed a hysterectomy and an incidental appendectomy. An appendectomy ordinarily accompanies this procedure. Respondent's pre-operative diagnosis was "menorrhagia and fibroid uterus," and her postoperative diagnosis, on March 13, 1978, was unchanged. This was the same condition specified on the form consent to diagnostic and treatment procedures which Ms. Bass signed on March 12, 1978, authorizing respondent to perform a hysterectomy. Ordinarily, a surgeon performing a hysterectomy removes the uterus intact, as respondent did in the case of Beverly Bass. After its removal but while still intact, Ms. Bass' uterus yielded no additional information pertinent to the diagnosis of her condition.
The uterus was sent to a pathologist. After examining the uterus, the pathologist prepared a tissue report and stated, as the pathological diagnosis:
APPENDIX WITH FIBROUS OBLITERATION (DISTAL) AND FOCAL FIBROUS ADHESIONS.
LUTEAL CYST OF LEFT OVARY, BENIGN.
PARATUBAL CYST, BENIGN, RIGHT.
ENLARGED UTERUS (205 GMS) WITH:
ENDOMETRIUM: CHANGES RELATED TO PREGNANCY (HYPERSECRETORY GLANDS AND DECIDUAL REACTION).
ACUTE ENDOMETRITIS.
ANGULAR IMPLANT OF PLACENTA ASSOCIATED WITH UNDERLYING NECROSIS AND ACUTE INFLAMMATION OF DECIDUA, ACCOMPANIED BY HEMATOMAS.
CHORION-AMNIONITIS, ACUTE, NECROTISING ASSOCIATED WITH NECROSIS OF GROUPS OF CHORION VILLI.
EMBRYO, APPROXIMATELY 4-6 WEEKS OLD. FLUID BLOOD PRESENT IN UTERINE CAVITY.
MYOMETRIUM: HYPERTROPHY (FUNCTIONAL).
CERVIX: ACUTE AND CHRONIC CERVICITIS ASSOCIATED WITH SQUAMOUS METAPLASIA OF THE ENDOCERVICAL LINING, FOCAL.
SQUAMOUS CELL HYPERPLASIA OF ECTOCERVIX, BENIGN.
MUCUS CYSTS.
When the pathologist opened the uterus, he found an enlarged cavity partly occupied by a ruptured ovisac. Extruded through the perforation, hanging outside of the ovisac from the umbilical cord, was an embryo 1.8 centimeters long. The placenta, which was acutely inflamed, adhered to the fundus at a right angle. Uterine rupture is inevitable if an angular pregnancy continues, but it is possible for an angular pregnancy to go to term, just as it is possible for a fetus to live after the ovisac has burst. In Ms. Bass' case, however, the embryo was probably non-viable at the time of the hysterectomy.
The pathologist's report arrived while Ms. Bass was still in the hospital. Because respondent was upset on reading it, she asked Dr. P. V. Poonai to tell Ms. Bass what the pathologist had learned. Dr. P. V. Poonai did tell Ms. Bass, at which time she confirmed that she had engaged in sexual intercourse shortly after the d & c.
Confusing an incipient pregnancy with a fibroid uterus is an occasional mistake any physician could make. An isolated mistake of this kind does not constitute a deviation from acceptable medical practice. The most conservative approach is to wait for two months after the patient has stopped taking birth control pills, before performing a "semi-elective" procedure, and to administer a pregnancy test beforehand. Several physicians testified, however, that they would not have ordered a pregnancy test before performing a hysterectomy in the circumstances of Ms. Bass' case.
Respondent did not prepare the summary sheet at the end of Ms. Bass' stay after her March 12, 1978, admission, Chart No. 23622. Petitioner's exhibit No. 2A. The summary sheet that was prepared is not signed by anybody. When respondent asked for the chart in order to prepare a summary sheet, the Hospital's records custodian advised her that it was not with the other charts.
When Beverly D. Stover was about three and a half months pregnant, she began seeing respondent. She saw her every month until November, when she began seeing her every two weeks. On her first visit, she told respondent she wanted to be sterilized after the birth of the child she was carrying, her second. At respondent's request, Mrs. Stover brought her husband to respondent's office, about six weeks before the baby was born. The three of them discussed Mrs. Stover's planned sterilization. On November 22, 1977, both Mr. and Mrs. Stover signed a form request for sterilization witnessed by two persons who were not called to testify at the hearing. On November 30, 1977, Mrs. Stover was admitted to the Municipal Hospital of Port St. Joe. On the day of her admission, she signed a form consent to diagnostic and treatment procedures authorizing respondent to perform a bilateral tubal transection and ligation, and both she and her husband signed another form request for sterilization.
At the time of the signing of the last two documents, Mrs. Stover told Sarah Maddux, the nurse who gave her the forms to sign, that she did not want to be sterilized unless her baby was normal. Ms. Maddux never relayed this oral reservation to respondent. It is impossible to tell, at the time of birth, whether an infant has a sense of smell, whether it is intellectually impaired, or whether it can see or hear.
At 1:50 on the afternoon of November 30, 1977, Mrs. Stover was delivered of a daughter, Katrina. Respondent examined the eight pound two ounce infant for two minutes. She put her fingers in the infant's mouth, cleared a passage for air, and checked for a cleft palate. The child started crying. Respondent observed good muscle tone. Respondent clamped, then cut the umbilical cord. She inspected the baby all over, noticed puffiness on the
child's back, which she attributed to the trauma of birth, and noticed that the baby's anal opening was smaller than normal, but was not alarmed. She thought she had seen even smaller such openings which had not affected function.
Respondent placed Katrina on her mother's stomach, and asked Mrs. Stover whether she was ready for surgery. When Mrs. Stover answered affirmatively, at 1:55, anesthesia was administered, at respondent's direction. A nurse took the baby from respondent for cleaning. In contemporaneous notes, the nurse described the baby as apparently normal.
In fact, Katrina had an imperforate anus or anoperitoneal fistula, and a lipoma on the sacral area of her back. These conditions were discovered a few hours later by a nurse in the Hospital nursery. The nurse brought both problems to the attention of Dr. Shirley R. Simpson, a physician who had been on the staff of the Municipal Hospital of Port St. Joe for approximately ten years and who happened to be in the Hospital at the time. Respondent had left Port St. Joe to meet her husband at the airport in Panama City. Examining Katrina at the nurse's request, Dr. Simpson mistook the lipoma for a meningomyocele. Dr. Simpson took no further action in the case, other than leaving word with the nurse for respondent to call her, until she furnished the Board of Medical Examiners Katrina's hospital chart. By that time, somebody had forged an entry in the nurse's notes for 1:50 P.M. on November 30, 1977, viz., "Appears to have NO rectal orifice-Dr. A. Poonai notified." Petitioner's exhibit No. 4.
After her return from Panama City, on December 1, 1977, respondent correctly diagnosed the lipoma. At respondent's request, Dr. P. V. Poonai examined Katrina. After obtaining consent, Dr. P. V. Poonai, used surgical implements, when the baby was 16 hours old, to remove the obstruction which had prevented the expulsion of all but the merest drop of meconium during the first
16 hours of the baby's life. Although this emergency procedure solved the immediate problem and allowed the baby to defecate, further surgery has been necessary to move the anal opening to its norman site posterior of the dimple where Dr. P. V. Poonai made his incision.
An imperforate anus occurs once in 5,000 births. The imperforation may or may not be visible, depending on its location. In the past five years, three infants with this problem have been born in Panama City. In each instance, the examining pediatrician did not discover the imperforation, which came to light some hours after birth, on account of the baby's failure to expel its first stool. In Katrina's case, however, the abnormality could be seen and its existence could be confirmed by an attempt to probe.
The lipoma on Katrina's back measured less than four by five centimeters in area. It was a soft, skin-colored mass of benign, fatty tissue, which a pediatric surgeon has since removed. The trauma of birth sometimes causes edemas that resemble lipomas.
No harm befell Katrina as a result of respondent's failure to diagnose either her lipoma or her anal abnormality at birth. Beverly Stover continued as a patient of respondent for some time after Katrina's birth.
Respondent first saw a certain patient on September 19, 1977. This patient, who was born on June 1, 1907, suffered from diabetes mellitus and congestive heart failure, among other things. Two months earlier she had had a second pacemaker inserted. On her first visit to respondent, the patient complained of pain in her chest and of dysuria. She said she had difficulty retaining urine, but that she was unable to empty her bladder completely. In examining her, respondent discovered a moderate cystocele, which is a herniation
of the bladder into the vagina. Respondent admitted her into the Municipal Hospital of Port St. Joe for treatment of her congestive heart failure, the cause of the chest pain.
Congestive heart failure is not a disease of which people are cured, but it is a condition that may grow better or worse. When this patient's condition improved, respondent sent her home. Respondent saw her again in her office on October 3, 1977, when she complained of paroxysmal dyspnea and swollen feet. Respondent diagnosed superimposed congestive cardiac failure and prescribed a diuretic. On November 18, 1977, respondent admitted her to the hospital because symptoms like those she had complained of during the office visit persisted. On November 22, 1977, she was discharged. A similar episode resulted in rehospitalization from January 10, 1978, through January 19, 1978.
The patient entered the hospital again, on February 12, 1978, with congestive cardiac failure. She complained about nocturnal incontinence and asked respondent to correct her bladder problem. At this time, respondent described the cystocele as large. After medical care which petitioner's own witness described as excellent, the patient's condition stabilized. Respondent testified that, in her judgment, the patient's general condition just before surgery was as good as it was likely ever to be. Nine days after she admitted the patient, respondent effected a repair of the cystocele by performing an anterior colporrhapy under local anesthetic. This procedure requires unusual surgical skill, and most surgeons do not attempt it.
The repair of a cystocele is a therapeutic measure. In the absence of treatment, urine is likely to stagnate in the herniated portion of the bladder, and become a source of possibly serious infections. All surgical techniques for repairing cystoceles, other than the one employed by respondent, require general anesthesia. The risk from anesthesia to which respondent's patient was subjected was very moderate compared to the risk from general anesthesia. It was the same risk a person faces whose mouth is numbed by local anesthesia before a tooth is filled. Respondent had performed this operation 20 or 30 times before, and had performed it on her own mother, who was 75 years old and suffered from myocardial ischemia at the time. Sometimes, although decreasingly in recent years, a physician may employ a pessary as treatment for a cystocele. A pessary is a rubber or plastic solid that can be inserted in the vagina as a support for the intruding bladder. This is only a temporary measure, however, and involves a high risk of infection, which is the principal danger the cystocele itself poses. Respondent testified that her prescription for temporary relief was bed rest, since lying flat relieves the pressure that forces part of the bladder into the vagina.
Respondent first saw another patient, the 29 year old mother of three children, on December 23, 1976. This patient was in the Municipal Hospital of Port St. Joe at the time, for a hemorrhoidectomy, and respondent was called in because the patient had complained of profuse, irregular and painful vaginal bleeding over a period of several years, and particularly during the preceding nine months to a year. The patient was anemic, according to tests run two days earlier. In July of 1976, the patient had been hospitalized on account of pelvic sepsis and bleeding. At that time, Dr. Simpson told her she would need a hysterectomy in the near future. She had been hospitalized for the same reasons in 1975. Respondent ordered a pap smear and an X-ray to locate a coil that had been inserted into the patient's uterus, as a contraceptive measure. When she recovered from the hemorrhoidectomy, the patient was discharged.
After three weeks of severe menorrhagia, including two final days of heavy clotting, the patient was readmitted, on January 24, 1977, to the Municipal Hospital of Port St. Joe. Respondent had earlier prescribed iron pills. Perhaps as a result, the patient was no longer anemic. Respondent observed the patient's uterus "enlarged to about 10 weeks size with [what she thought was] fibroids. Petitioner's exhibit No. 6. Respondent ordered no pregnancy test. When an intrauterine device is in place, excessive vaginal bleeding is inconsistent with a viable pregnancy. An intrauterine device not only irritates the wall of the uterus, making conception unlikely, but also operates to abort incipient pregnancies, in the event of conception. With the intrauterine device still in place, on January 26, 1977, respondent performed a total abdominal hysterectomy and an incidental appendectomy, with conservation of both ovaries.
Afterwards, the appendix, part of the cervix, and the uterus were sent to a pathologist. The pathologist examined these materials, and, on January 31, 1977, prepared a tissue report, in which he stated as the pathological diagnosis:
APPENDIX WITH SEROSAL FIBROSIS, FOCAL (INCIDENTAL).
ENDOMETRIUM: DECIDUA WITH EXTENSIVE NECROSIS ASSOCIATED WITH CHORIONIC VILLI (PREGNANCY) WHICH ARE LARGELY NON-VIABLE.
SECRETORY ENDOMETRIUM WITH ACUTE AND CHRONIC ENDOMETRITIS.
MYOMETRIUM: HYPERTROPHY, POSTERIOR. CERVIX: CHRONIC ENDOCERVICITIS AND MUCUS CYSTS.
SLIGHTLY HYPERTROPHIC UTERUS (95 GRAMS).
The pathologist found no evidence of fibroids. This demonstrates that respordent's clinical diagnosis of fibroids was inaccurate.
One of the pathologists who routinely examined tissue removed by surgeons in the Municipal Hospital of Port St. Joe, Dr. Garcia-Rios, also routinely examined tissue removed by surgeons in other hospitals. Whenever a tissue report indicated disagreement between a clinical diagnosis and the pathological diagnosis, Dr. Garcia-Rios designated the tissue report "Code 3." The frequency of Code 3 tissue reports did not differ as between specimens removed by respondent and specimens Dr. Garcia-Rios examined which had been removed by other surgeons, taken as a group.
From the presence of morphologically viable chorionic villi, the pathologist concluded that the patient had been pregnant. From pathological findings alone, he was unable to determine whether the pregnancy had terminated weeks or months earlier; or whether an ongoing microscopic pregnancy was interrupted by the hysterectomy. (Clinical evidence-excessive bleeding-ruled out the possibility of a viable pregnancy.) The pathologist's findings were consistent with, but did not conclusively establish the existence of, a placental polyp. Placental polyps may cause prolonged bleeding.
Before surgery, respondent discussed three options with this patient: removal of the intrauterine device, removal of the intrauterine device followed by a d & c, and hysterectomy. The patient said that the presence or absence of an intrauterine device had made no difference in her bleeding problem in the
past. She also told respondent that she wanted no more children, and that she wanted prompt, definitive treatment for her bleeding. After listening to explanations from respondent about the available options, the patient chose a hysterectomy. Respondent did not tell her that a hysterectomy was the only way to correct her problem. The patient testified that she has had no problems since her surgery; and that, knowing what the pathologist's tissue report subsequently revealed, she would make the same choice again, at least if it would not involve her as a witness in legal proceedings.
Respondent initialled a summary sheet in the patient's chart, which stated the patient's final diagnosis as, inter alia, "FIBROID UTERUS [and] MENORRHAGIA." This final diagnosis fails to take the pathologist's tissue report into account, even though the tissue report routinely becomes part of the chart and presumably was available to respondent at the time she initialled the summary sheet. Respondent testified that she initialled this summary sheet as one of a group of documents, and that she did not read it beforehand. Any discrepancy between the tissue report and the final diagnosis would have been apparent to a knowledgeable reader. Without the tissue report, respondent would not necessarily have known that the pathologist's findings had demonstrated the error of her diagnosis of fibroid uterus.
After controversy about this case arose, respondent caused an addendum to be prepared and incorporated into the chart, on August 16, 1978, and amended the discharge diagnosis to state, inter alia: "Menorrhagia, Chronic endometritis [and] Hypertrophy of the myometrium." This diagnosis is consistent both with respondent's clinical findings and with the pathologist's tissue report. In stating her amended discharge diagnosis, respondent took the tissue report, which had been incorporated into the chart, into account. This amended discharge diagnosis was not shown to be erroneous.
On August 11, 1976, respondent saw Linda Whitfield for the first time. She came as a patient to respondent's office and related that her last menstrual period had taken place on June 26, 1976. Respondent examined her, observed a uterus of six weeks' size, and diagnosed early pregnancy. Respondent next saw Mrs. Whitfield in the emergency room of the Municipal Hospital of Port St. Joe on August 27, 1976, when her uterus looked to be of eight weeks' size. There Mrs. Whitfield told respondent that, while driving a tractor earlier in the day, she had experienced abdominal cramps and fairly heavy bleeding. Mrs. Whitfield did not report and respondent did not observe the passage of a fetus. Respondent diagnosed a threatened abortion (miscarriage) admitted Mrs. Whitfield to the Hospital, ordered bed rest, ordered that Mrs. Whitfield's urine be tested for the presence of chorionic gonadotropin, and prescribed an intramuscular injection of two cubic centimeters (cc.) of Depo-Provera (Upjohn's registered trademark for sterile medroxyprogesterone acetate suspension, U.S.P.).
Although respondent did not specify the strength, she had ordered the Hospital's entire supply of Depo-Provera, and knew that the only strength on hand was 100 milligrams per milliliter. Depo-Provera is a synthetic progestational agent in an oily base. It has been commercially available for approximately 15 years. The 1971 Physicians' Desk Reference (PDR) reported that daily doses were indicated in the event of a threatened miscarriage. The 1972 PDR reported pregnancy as a contraindication for the use of Depo-Provera. (In 1972, respondent lived in Jamacia.) The 1976 PDR and the 1977 PDR, however, contain neither indications nor contraindications for Depo-Provera, in the event of pregnancy. The 1979 PDR reports pregnancy as a contraindication for the use of Depo-Provera.
The phrase "missed abortion" describes the situation where a non- viable fetus remains in its mother's uterus. "Missed abortion" was named as a contraindication for Depo-Provera in the literature that accompanied each vial of Depo-Provera, at the time respondent prescribed it for Mrs. Whitfield. The contraindication of Depo-Provera for missed abortion reflected the view, generally shared in the medical community for many years but now rejected, that Depo-Provera acts to prevent uterine contractions and so make fetal expulsion less likely. The only indication stated in the literature that accompanied each vial of Depo-Provera, at the time respondent prescribed it for Mrs. Whitfield, was "[a]djunctive therapy and palliative treatment of inoperable, recurrent, and metastatic endometrial carcinoma." Petitioner's exhibit No. 12B.
Also on petitioner's exhibit No. 12B, under the heading "ADVERSE REACTIONS," is the statement:
There is inferential evidence supporting the existence of an association between the administration of progestins early
in pregnancy and the occurence of congenital malformations (see also WARNINGS).
The referenced warning stated that "[u]sage in pregnancy is not recommended because of data indicating a possible association between administration of progestins early in pregnancy and congenital heart defects in the offspring." Petitioner's exhibit No. 12B.
Mrs. Whitfield bled, off and on, during her first stay in the Hospital under respondent's care, until two or three days before her discharge. Because Mrs. Whitfield was bleeding on August 28, 1976, respondent prescribed an intra- muscular injection of one cc. of Depo-Provera. Altogether, respondent prescribed 1100 milligrams of Depo-Provera for Mrs. Whitfield over a 16 day period. She ordered administrations of two cc. doses of Depo-Provera on September 2, 1976, on September 4, 1976, on September 7, 1976, and on September 11, 1976, the day Mrs. Whitfield was discharged. At that time, respondent was hopeful that the pregnancy had been saved.
At the time respondent prescribed Depo-Provera for Mrs. Whitfield, she believed she was aware of the inferential evidence referred to in the adverse reaction portion of petitioner's exhibit No. 12B. The evidence of which respondent was aware was the result of a retrospective study involving 10,000 mothers who took various hormonal substances during pregnancy and 10,000 mothers who did not. The number of deformed children born to mothers who had taken the hormonal substances exceeded by two percent the number of deformed children born to the mothers who had not. At the time she prescribed Depo-Provera for Mrs. Whitfield, respondent was one of a considerable number of physicians who believed that this drug could supply a hormonal deficiency that a woman faced with a threatened abortion (miscarriage) might lack, and which might be causing premature uterine contractions. Respondent weighed Depo-Provera's possibly teratogenic effect against its possibly ameliorative effect and made a conscientious professional judgment to prescribe Depo-Provera for Mrs. Whitfield.
The 1971 PDR specifies a dosage of 50 milligrams day for threatened abortion, as long as symptoms persist. No dosages for threatened abortion are specified in the 1976 PDR, the 1977 PDR or on petitioner's exhibit No. 12B, the literature that accompanied each vial of Depo-Provera. When used to treat "inoperable, recurrent and metastatic endometrial carcinoma," Depo-Provera is
prescribed in doses of 100 to 1000 milligrams at intervals of one week to one month. No evidence adduced at the hearing suggested that Depo-Provera has any known or suspected toxic effect on the mother, regardless of the dosage. Nor was it shown to have been scientifically established that Depo-Provera has had an adverse effect on any fetus, when administered to the mother, regardless of the dosage. It is no longer used in the case of threatened miscarriages because recent evidence suggests that it is inefficacious for this purpose. Outside of the United States, Depo-Provera is used as a contraceptive.
While Mrs. Whitfield was in the Hospital, on August 29, 1976, respondent ordered a blood serum test to determine the level of chorionic gonadotropin. The results of this test, which respondent saw for the first time on September 16, 1976, were 6,554 milliunits of chorionic gonadotropine per milligram of test fluid. On September 16, 1976, Mrs. Whitfield came to respondent's office and complained of additional bleeding. At that time, a two minute slide test for pregnancy was performed, with negative results.
Respondent examined Mrs. Whitfield and concluded that her pregnancy had miscarried despite the efforts to preserve it.
She was admitted to the Municipal Hospital of Port St. Joe on September 17, 1976, with the diagnosis of "incomplete abortion," which was changed to "missed abortion," as the pre-operative diagnosis. On the day of her admission, additional pregnancy tests were ordered. A two minute test was negative, but a two hour test was positive. Every pregnancy test is fallible to some extent. These test results did not alter respondent's clinical judgment that the pregnancy had miscarried. A pregnancy test of a urine specimen can yield positive results from four days to two weeks after a pregnancy ends, and sometimes even later. It was undisputed that a result on a blood serum test for chorionic gonadotropin of 6,554 milliunits per milliliter virtually rules out a viable pregnancy of two or three months' duration, although the level may fall that low after the fifth month of a normal pregnancy. At eight to ten weeks, normal levels range from 46,000 to 60,000 milliunits per milliliter. Respondent performed a routine d & c on September 18, 1976. Fifteen grams of the resultant curettings were transmitted to a pathologist who reported "products of conception," but no embryo.
Port St. Joe is not a prosperous town. At the time of the hearing, respondent and her husband were the only physicians in Port St. Joe who accepted patients on medicaid. Respondent has admitted patients approximately 500 times to the Municipal Hospital of Port St. Joe. During her time in Port St. Joe, respondent has treated numerous medicaid patients, and has delivered 249 babies. In one instance there was a neonatal fatality. This record compares favorably with a national average on the order of 12 neonatal fatalities per 1,000 births.
Respondent has three articles in respectable technical journals to her credit, including two in "Obstetrics and Gynecology." On one she collaborated with her husband. They received 168 requests for reprints from interested persons in some 15 countries. The other article in "Obstetrics and Gynecology" she co-authored describes the first documented full-term pregnancy of a woman with diabetes mellitus, Addison's disease, and hyperthyroidism. The patient described in the article was under respondent's care for the duration of her pregnancy, which eventuated in a normal delivery.
CONCLUSIONS OF LAW
Petitioner has "authority . . . to discipline a physician licensed [in Florida] . . . who has been adjudged guilty of . . . (b) [m]aking misleading,
deceptive, untrue or fraudulent misrepresentations in the practice of medicine.
. . (h) [e]ngaging in any unethical, deceptive, or deleterious conduct or practice harmful to the public . . . [regardless] of actual injury . . . [or](m) [b]eing guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct." Section 458,1201(1), Florida Statutes (1978 Supp.).
For purposes of this statute, unprofessional conduct is defined as "any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise . . . [regardless of] actual injury to a patient . . . " Section 458.1201(1)(m), Florida Statutes (1978 Supp.).
Petitioner did not prove the allegations of count one of the administrative complaint by a preponderance of the evidence. Dr. Orr was not produced as a witness. Not all of the testimony that petitioner did adduce on this count was worthy of belief.
Count two of the administrative complaint alleges that respondent (1) "performed an unnecessary medical procedure, i.e., (2) "permanently sterilized a 26-year-old female"; that she (3) "destroyed a viable four-six week old embryo" in the process and (4) "falsified the final diagnosis on the patient's summary sheet" afterwards. The evidence established that respondent did permanently sterilize a 26-year-old female by performing a hysterectomy, which the patient had requested, before she ever met respondent. In retrospect, it is clear that the operation was not necessary and would not have been performed, if respondent had correctly diagnosed the patient's condition. Several doctors testified, however, that a misdiagnosis of this kind is not an uncommon mistake. Dr. Hofmeister, a past president of the American College of Obstetrics and Gynecology whose testimony on deposition was received in evidence, testified that he would have handled this case in the same fashion respondent did. Petitioner did not establish that the hysterectomy respondent performed on Beverly Bass constituted a violation of Section 458.1201(1)(h) or (m), Florida Statutes (1978 Supp.). Neither did petitioner prove that the fetus of four to six weeks' size which was in the uterus at the time it was removed was viable. On this point, the most persuasive witness was Dr. Garcia-Rios, who testified on behalf of petitioner. Since the evidence established that respondent did not prepare "the final diagnosis on the patient's summary sheet," petitioner did not prove the violation of Section 458.1201(1)(b), Florida Statutes (1978 Supp.) alleged in count two.
Count three of the administrative complaint alleges a violation of Section 458.1201(1)(m), Florida Statutes (1978 Supp.), in that respondent sterilized a 24-year-old woman "against [her] wishes . . . because [respondent] negligently failed to diagnose obvious physical abnormalities of an infant." The misunderstanding between respondent and Mrs. Stover about the circumstances under which Mrs. Stover wanted a tubal ligation is disconcerting, and the nurse's failure to relay the Stovers' reservation to respondent is inexplicable, although uncontroverted. Petitioner did not prove, however, that respondent had reason to know of the condition the patient intended to place on her consent. Respondent testified that she had, on several occasions, refused post partum sterilizations to patients who had expressed similar reservations to her, because many abnormalities are not apparent at birth. While there was uncontroverted testimony that the imperforate ano-peritoneal fistula was a "true abnormality," no such testimony was adduced with respect to the lipoma.
The greater weight of the evidence showed that respondent was careless in failing to diagnose the fistula. She admitted at the hearing that she would probe, if she had it to do over. Fortunately, respondent's oversight resulted
in no harm to the baby. A mistake of this kind is not ever likely to result in harm to a baby, because record keeping in the nursery will ordinarily bring the problem to light. Even so, respondent's failure to diagnose Katrina's abnormality makes her guilty of unprofessional conduct within the meaning of Section 458.1201(1)(m), Florida Statutes (1978 Supp.), because this provision does not require a showing either of "actual injury to a patient" or of "conduct or practice harmful to the public," so long as there is "any departure from . .
. the standards of acceptable and prevailing medical practice in [a physician's] area of expertise." Section 458.1201(1)(m), Florida Statutes (1978 Supp.). By a preponderance of the evidence, petitioner proved such a departure in this instance. Respondent's overall record suggests that this is an isolated incident.
In count four, the administrative complaint alleges that respondent violated Section 458.1201(1)(h) and (m) Florida Statutes (1978 Supp.), in performing an anterior colporrhapy on a 70-year-old diabetic with cardiac problems, using local anesthesia. The administrative complaint characterizes an anterior colporrhapy as an elective medical procedure." Uncontroverted evidence showed that this technique for repairing cystoceles is a therapeutic surgical procedure. The administrative complaint alleges that respondent "gravely and unnecessarily endangere[d] the [patient's] life," but evidence at the hearing failed to demonstrate any danger posed by respondent's treatment of this patient. The patient requested the surgery. Respondent performed the operation without general anesthesia, obtained the intended result, and cured the condition.
Count five alleges a mistaken diagnosis of "fibroid uterus," thirteen and a half months after another, similar mistake. The evidence established that respondent did make the same mistake twice, in a period of slightly more than a year, but it also established that her mistakes were no more frequent than those of the average surgeon whose work Dr. Garcia-Rios, the pathologist, reviewed.
In other words, respondent did as well as or better than half of this particular group of surgeons. The witnesses who testified on the point were unanimous in the view that a single instance of a misdiagnosis of this kind does not in itself constitute a departure from prevailing and acceptable standards of practice. The weight of the evidence was that two instances in slightly over a year did not amount to a departure from prevailing and accepted standards of medical practice, either.
In this case, the patient decided on a hysterectomy after discussion with respondent, presumably on the assumption that respondent's diagnosis was the correct one. It was not. After the pathologist's report had revealed the mistake, it became clear that a hysterectomy had not been necessary. But the patient was never told that a hysterectomy was necessary. She was specifically told of other possible courses of treatment, after which she elected the hysterectomy. She has since learned of the misdiagnosis, but is glad to have had the hysterectomy, anyway. The law permits and requires respondent to give her patients' preferences some consideration. Petitioner did not establish, by a preponderance of the evidence, that respondent was "guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct," Section 458.1201(1)(m), Florida Statutes (1978 Supp.), as alleged in count five of the administrative complaint.
In initialling the final diagnosis of the patient's summary sheet, without reading it, respondent was guilty of carelessness, but the evidence did not show that she "falsified the final diagnosis" as alleged in count five.
The administrative complaint alleges, in count six, that respondent "negligently prescribed a substance that was contraindicated," but the evidence did not establish that the substance was contraindicated at the time it was prescribed. In this count, the administrative complaint also alleges that the prescription was for "amounts greatly exceeding medically recognized dosage level" and, finally, that the d & c respondent performed was "contraindicated by the patient's medical history." Eleven hundred milligrams over a period of sixteen days is less than the "medically recognized dosage level" of 1,000 milligrams per week which petitioner's own witness testified might be prescribed for endometrial cancer, although it exceeds by 37.5 percent the dosage recommended in the 1971 PDR for threatened abortion.
Taken alone, the positive pregnancy test result obtained the day before respondent performed a d & c on Mrs. Whitfield was a contraindication for that procedure. But petitioner failed to establish that all the symptoms of which respondent was aware, including blood serum and negative urine pregnancy tests, the patient's cramps and bleeding, and the results of serial examinations, when taken together, contraindicated the d & c. Petitioner did not establish the violations of Section 458.1201(1)(h) and (m) Florida Statutes (1978 Supp.), alleged in count six of the administrative complaint.
Upon consideration of the foregoing, it is RECOMMENDED:
That petitioner dismiss counts one, two, four, five and six of the administrative complaint.
That petitioner reprimand respondent for her failure to diagnose the imperforation at the time of birth, in violation of Section 458.1201(1)(m), Florida Statutes (1978 Supp.), as alleged in count three of the administrative complaint.
That, in all other respects, petitioner dismiss count three of the administrative complaint.
DONE and ENTERED this 15th day of November, 1979, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
904/488-9675
COPIES FURNISHED:
Clifford L. Davis, Esquire
197 South Bronough Street Tallahassee, Florida 32301
J. Ben Watkins, Esquire Post Office Drawer 1814 Tallahassee, Florida 32302
================================================================= AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICAL EXAMINERS
IN RE: The License to Practice Medicine
as a Physician of: CASE NO. 79-1144 ANILA POONAI, M.D.
License No. 27070
/
FINAL ORDER
Pursuant to notice, the Recommended Order issued in this matter by Robert
Benton, II, Hearing Officer, dated November 15, 1979, attached hereto and made a part hereof as Exhibit A, came before the Board of Medical Examiners (Board hereinafter) on April 18, 1980, pursuant to a public hearing conducted by conference telephone hookup, and in consideration thereof, the Board finds and concludes as follows:
Respondent's, Anila Poonai, M.D., Motion to Strike Objection to Recommended Order filed by the prosecutor for the Department of Professional Regulation is hereby granted. Said ruling is based on the prosecutor's failure to provide trial record which is needed to support his Objection to Recommended Order.
Respondent's, Anila Poonai, M.D., Objection to Further Proceedings by Petitioner, Board of Medical Examiners and Petition for Approval of Recommended Order, is hereby denied based on movant's failure to demonstrate that failure to follow the time strictures of Section 120.59, Florida Statutes, has unduly prejudiced or irreparably harmed the Respondents
The findings of fact contained in the Recommended Order are adopted by the Board and incorporated herein as the findings of fact of the Board
The conclusions of law contained in the Recommended Order are adopted by the Board and incorporated herein as the conclusions of law of the Board, except that the conclusion of law contained in the last paragraph of page 25 of the Recommended Order, which continues for the first five lines of page 26 of the Recommended Order, is hereby struck, and the following language is inserted as a conclusion of law at that same place:
Respondent's failure to diagnose Katrina's abnormality does not make her guilty of unprofessional conduct within the meaning of Section 458.1201(1)(m), Florida Statutes (1978 Supp.).
This amendment is based upon a finding by the Board that there was insufficient competent substantial evidence to believe that a violation of Section 458.1201(1)(m), Florida Statutes (1978 Supp.) had occurred as alleged in Court III of the Administrative Complaint.
Based upon these findings of fact and conclusions of law, it is therefore ORDERED AND ADJUDGED that Counts One, Two, Three, Four, Five, and Six of
the Administrative Gomnlaint be dismissed, and that the Board take no further
action in this matter as regards to the above-cited counts in the Administrative Complaint.
DONE AND ORDERED this 5th day of May, 1980, in Miami, Florida.
ROBERT B KATIMS, M. D.
Chairman, Board of Medical Examiners
cc: All Counsel of record Anila Poonai, M. D.
| Issue Date | Proceedings |
|---|---|
| Aug. 19, 1981 | Final Order filed. |
| Nov. 15, 1979 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 05, 1980 | Agency Final Order | |
| Nov. 15, 1979 | Recommended Order | Petitioner failed to prove Respondent is guilty of unprofessional/negligent practice. Recommended Order/Final Order: dismiss complaint. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ROBERT G. BOURQUE, M.D., 79-001144 (1979)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MICHAEL FOX, M.D., 79-001144 (1979)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MATTHEW J. KACHINAS, M.D., 79-001144 (1979)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MATTHEW J. KACHINAS, M.D., 79-001144 (1979)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs NANJUNDA SWAMY, M.D., 79-001144 (1979)
