STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OSTEOPATHIC ) MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-514

)

EUGENE WILLIAMS, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on January 5, 1983, in West Palm Beach, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter.

APPEARANCES

The parties were represented by:

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: JulieAnn Ricco, Esquire

1655 Palm Beach Lakes Boulevard Suite 106, Forum III

West Palm Beach, Florida 33401

This matter arose on Petitioner's Second Amended Administrative Complaint which alleges that Respondent failed to x-ray the broken wrist of a patient before and after setting it, and that such failure was a departure from acceptable osteopathic procedures. Petitioner submitted proposed findings of fact which have been adopted or otherwise incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. Respondent, Eugene W. Williams, II, is an osteopathic physician licensed in Florida, and was so licensed at all times relevant to this proceeding. His address is 4394 Palm Beach Boulevard, Fort Myers, Florida 33905.

   
   

2. On June 21, 1979, Sue Riley presented herself to Respondent for treatment of a fractured left distal radius. Respondent ordered arm elevation and ice bag treatment to reduce the swelling. The next day, he set the arm in a cast and performed a closed reduction.

3. The injured arm was initially x-rayed at the hospital emergency room on June 21, 1979, and was not x-rayed again until July 5, 1979, when Respondent noted that the fracture was not closed. He then referred the patient to an orthopedic specialist.

   
   

4. The testimony of Petitioner's expert witness indicated that a second X ray should have been taken after casting rather than two weeks later to insure that the fracture was, in fact, closed. Without such an X ray, Respondent could not be certain that the fracture was closed initially or that it had not reopened.

   
   

5. Respondent's testimony and that of two other experienced physicians established that it is not uncommon to omit the X ray immediately after casting. In their view, no X ray is needed for ten days to two weeks provided the fracture appears to have been closed and properly aligned. Respondent's testimony established that all indications were favorable following casting and that he did not believe an X ray was needed for ten days to two weeks.

   
   

   CONCLUSIONS OF LAW

   
   

6. Subsection 459.015(1)(t) , Florida Statutes (1979), empowers the Board of Osteopathic Medical Examiners to take disciplinary action for:

   
   

   failure to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic

   physician as being acceptable under similar conditions and circumstances . . .

   
   

7. Section 459.015, Florida Statutes, on which these charges are based, is penal in nature. Therefore, Petitioner must demonstrate that Respondent is clearly in violation of such provisions before it may take disciplinary action. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). In consideration of Petitioner's burden of proof and the conflicting evidence presented, it cannot be found that Respondent failed to meet the standard of care required by Section 459.015, Florida Statutes.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that the Second Amended Administrative Complaint be dismissed. DONE and ENTERED THIS 14th day of February, 1983, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983.

COPIES FURNISHED:

James B. Gillis, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

JulieAnn Ricco, Esquire 1655 Palm Beach Lakes

Boulevard

Suite 106, Forum III

West Palm Beach, Florida 33401

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy J. Faircloth, Executive Director

Board of Osteopathic Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000514

Orders for Case No: 82-000514