STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 82-2026
)
BAYARD BRITTON, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on July 19, 1983, in Jacksonville, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: Charlie L. Adams, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Stephen P. Smith, Esquire
Smith and Smith, P.A.
2601 University Boulevard, West Jacksonville, Florida 32217
This proceeding was initiated by an Administrative Complaint filed by the Department of Professional Regulation, Board of Medical Examiners, against J. Bayard Britton, M.D., of Fernandina, Florida.
The Respondent is charged with violating Section 458.331(1)(g), Florida Statutes, which prohibits aiding, assisting or abetting an unlicensed person to practice medicine; Section 458.331(1)(g), by allegedly prescribing a legend drug other than in the course of his professional practice; Section 458.331(1)(x), by violating a lawful order of the Board of Medical Examiners previously entered in a disciplinary proceeding; Section 458.331(1)(f), by allegedly failing to report to the Petitioner a person known to the Respondent to be in violation of Chapter 458, Florida Statutes, or the rules of the Department or Board of Medical Examiners; and, by delegating professional responsibilities to a person allegedly known to the Respondent to be unqualified by reason of training, experience or licensed to perform said responsibilities.
The charges herein basically involve two patients who were treated by a lay midwife, Crystal Mull and Susan Thompson. The Respondent, in essence, is alleged to have associated himself with Carolle Baya, the midwife, in such a way
as to allow Baya, under the Respondent's supervision, to treat those patients illegally, and further that the Respondent specifically authorized Baya to administer the controlled substance Demerol to patient Mull and the legend drug Pitocin to patient Thompson when Respondent was not present.
The issues presented concern whether there is sufficient evidence to establish that the Respondent committed any of the above-charged violations, which necessarily involves the question of whether any elements of a working relationship the Respondent may have had with a lay midwife were legally and medically inappropriate.
The Petitioner presented its case through Petitioner's Exhibits A, B, and C and the depositions of Luellen McNairy, Dr. Anthony Joseph Mussallem, M.D., and Dr. Larroude. The Respondent presented seven witnesses and seven exhibits, all of which were admitted into evidence. At the conclusion of the hearing the parties requested a transcript of the proceeding and elected to avail themselves of the right to file proposed findings of fact and conclusions of law and memoranda, concomitantly waiving the thirty day requirement of Rule 28-5.402.
Proposed findings of fact and conclusions of law and memoranda were timely submitted on September 2, 1983.
All proposed findings of fact, conclusions and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the Findings, Conclusions and views stated herein, they have been accepted. To the extent that such proposed findings and conclusions of the parties and such arguments made by the parties are inconsistent herewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the Findings herein, it is not credited.
FINDINGS OF FACT
Pursuant to its Administrative Complaint filed July 12, 1982, the Department of Professional Regulation, Board of Medical Examiners, seeks to revoke, suspend or take other disciplinary action against the Respondent as a licensed physician in the State of Florida. It was stipulated by the parties that the Respondent is a physician licensed by the State of Florida. The petitioner is an agency charged with the licensure and regulation of licensure status, professional practice and discipline of physicians licensed in Florida.
The Respondent is licensed to practice medicine also in the states of Virginia and North Carolina. He graduated from medical school at the University of Virginia in 1949 and has been in active practice in Florida since 1959, when he began practice at Fernandina, Nassau County, Florida. The Respondent maintains an office at Fernandina, as well as one in Jacksonville. He is 63 years of age and practices in the area of family practice. He has been a member of the American Academy of Family practice since 1973. He is also a member of the Duval County Academy of Family Practice and has served as an officer of that organization and an active participant.
The Respondent has been on probation pursuant to a stipulation entered into with the Board of Medical Examiners in December, 1981. The Respondent was placed on probation for a period of two years, effective January 4, 1982, after having admitted, by stipulation, that he issued a pre-signed prescription for Sultrin Creme for use by a nurse midwife in 1980; and that he prescribed
Percocet and Percodan inappropriately to a patient in 1980. The Respondent's practice is primarily an office practice with practice at clinics around the state to which he devotes a certain number of days per month. The St. Augustine Maternity Clinic, Inc., apparently owned and operated by Carolle Baya (the evidence does not establish her precise relationship to the clinic) is one type of such clinic. Carolle Baya is a lay midwife, who at times pertinent hereto was not licensed to practice lay midwifery in the State of Florida. Because of her continuation in the practice of lay midwifery in St. Johns County, she was prosecuted in 1979 by the State Attorney for St. Johns County, which criminal charges were later dropped. She was then sued by the Department of Health and Rehabilitative Services in an attempt by that Department to enjoin her from practicing lay midwifery without a license. Carolle Baya obtained a favorable judgment in that civil action when the lay midwifery statute, then in effect, was declared unconstitutional by the Circuit Court in and for St. Johns County, Florida. Thus, Carolle Baya, at times pertinent hereto, was practicing lay midwifery, although without a license, under the legal aegis of the Circuit Court of the 7th Judicial Circuit, pursuant to that final judgment entered on October 10, 1979, in Case No. 79-313 (Respondent's Exhibit 4).
Under the law as it existed at times pertinent to this case, the Department of Health and Rehabilitative Services required lay midwives to associate themselves with physicians, at least for purposes of providing examination of their patients prior to home births. (Rule 10D-36.25(a), Florida Administrative Code, "Supervision") Nevertheless, no physician in St. Johns County undertook to provide an association or "backup" to Carolle Baya for examination or backup care for her patients. Indeed, as established by Dr. Mussallem (for the Petitioner), the obstetricians in St. Johns County were responsible in general and Dr. Mussallem in particular, for the complaint lodged against Carolle Baya regarding her practice as a lay midwife. Thus, it was that Carolle Baya formed some sort of "backup" examination arrangement for her patients with the Respondent.
On or about January 25, 1982, a newspaper advertisement was placed in the St. Augustine Record, stating that the Respondent was associated with the St. Augustine Maternity Center, Inc. The Respondent's name at the time of the filing of the Administrative Complaint on July 12, 1982, apparently appeared on the front of the St. Augustine Maternity Center, Inc., on a sign, although no evidence established that it was present on that facility at any earlier pertinent date. It was not established how the newspaper advertisement came to be published in the newspaper, and it was not shown for what purpose the Respondent's name appeared on the sign on the front of the St. Augustine Maternity Center, Inc. (either owned or operated by Carolle Baya)
At the time the Administrative Complaint was filed, the Respondent was visiting that maternity clinic once a month for purposes of performing examinations of Carolle Baya's patients and general gynecological consultation and/or treatment. Dr. Mussallem, the only witness with any knowledge of the contents of the newspaper advertisement and the supposed sign, could not show whether or when the unintroduced newspaper advertisement was actually placed in a newspaper, nor the person responsible for its publishing, nor did he have any direct knowledge regarding whether the sign was actually displayed on the front of the clinic, nor who might have been responsible for doing so. His testimony in this regard is thus entirely hearsay and not creditable herein.
Crystal Mull was a patient of Carolle Baya's throughout the entire term of her pregnancy, with a view toward having a midwife perform home delivery of her baby. Her entire prenatal care was under the direction of Carolle Baya.
The Respondent, however, did examine Crystal Mull in approximately the eighth month of her pregnancy, October, 1981, with her mother present. Crystal Mull's mother, Mrs. Luellen McNairy, was of the belief that Dr. Britton was "like a sponsor or something like that." She admittedly was not sure what his relationship was with Carolle Baya, but that she "felt" that Carolle Baya referred to him for any medical questions she was unable to answer concerning a patient. The testimony of Mrs. McNairy and the testimony of Dr. Mussallem concerning what they "understood" the relationship between Britton and Baya to be (they admittedly had no direct knowledge), is the only testimony or evidence adduced by the Petitioner to show any sort of association of the Respondent with Carolle Baya's midwifery practice. The Respondent only went to Carolle Baya's clinic one day a month to perform gynecological examinations of her patients and was not present at the clinic supervising or advising Carolle Baya as to the care of her patients on a day-to-day or even a weekly basis, particularly the patients who are the subject of the Administrative Complaint.
In any event, Carolle Baya wanted the doctor to meet her patient, Crystal Mull, to examine her so he could be familiar with her medical history. When he examined her he noted that the baby was quite large and he made a statement, according to Mrs. McNairy, to the effect that she might not be able to have the baby regularly and might have to be transported to the hospital. In the words of Mrs. McNairy, the Petitioner's witness herself, "It seemed to me that he was alerting us to the possibility that she might have to go to the hospital; there might be a difficult labor." Ultimately, Crystal Mull did have to be transported to the hospital for her delivery, although she had a normal, uneventful delivery and healthy baby. On the morning of her delivery, however, after progressing with her labor to a point, she failed to progress further and ceased to dilate. At approximately 1:30 or 2:00 on the morning of November 22, 1981, Ms. Baya came to the residence of Crystal Mull and her mother Luellen McNairy. Ms. Baya did a vaginal examination and periodically checked the fetal heart rate. The fetal heart rate was closely monitored to determine if any fetal distress was indicated by the baby's heartbeat. At approximately 10:00 the following morning, Carolle Baya called an unidentified person supposedly to consult with regarding doing something to relieve her patient's discomfort and pain, after she had been in labor for approximately 10 hours. Witness McNairy "believed" that Carolle Baya called Dr. Britton, however, the witness had no direct knowledge of who was on the other end of the telephone conversation with Carolle Baya and she is unaware of the substance of that conversation. A short time after the end of the telephone conversation, Mrs. McNairy observed Carolle Baya give Crystal Mull an injection in the hip and she seemed to relax some after that. Mrs. McNairy has no knowledge of the nature of the substance which was injected (although she surmised it might be Demerol). At about 12:30 pm on November 22, the membranes were ruptured, but the patient had not yet dilated as far as 8 centimeters. Thus, it was that Carolle Baya suggested that her patient and the patient's mother decide what they wished to do, that she did not want to make the final decision herself. Accordingly, the patient was admitted to the hospital at about 1:00 that afternoon. Ultimately, Crystal Mull experienced a normal delivery and she and her baby are currently in good health.
On January 2, 1982, Dr. Anthony Mussallem saw Susan Thompson at around 6:30 or 7:00 in the evening. Her sister-in-law brought her in to see him at that time, at which she had reached in essence the full term of her pregnancy with her child being due on approximately January 7 or 8, 1982. The patient reported to Dr. Mussallem that Carolle Baya had been taking care of her prenatal course of care up until that point. While Carolle Baya was examining her that day in the St. Augustine Maternity Center, Inc., the patient's amniotic fluid began leaking and, inasmuch as labor usually begins within 24 hours of such an
event, but in her case did not commence within 24 hours, the patient became worried and ultimately came in to see Dr. Mussallem. Dr. Mussallem did not speak with Carolle Baya concerning the condition of Susan Thompson nor did he see any medical records which had been maintained by Carolle Baya's maternity center concerning that patient. The doctor never talked to Dr. Britton concerning this patient. The patient informed him that she was given some tablets, supposedly to stimulate her labor and did not go into labor, but the doctor could not say what type of tablets were administered to the patient and, indeed, had no direct knowledge whether they were administered and, if so, who had administered them.
Neither Dr. Mussallem nor Dr. Larroude have ever met the Respondent and neither could establish in any way the Respondent's connection, if any, with the maternity center owned or operated by Carolle Baya, nor with her practice as a lay midwife as any such relationship might have related to either patients Mull or Thompson. The most Dr. Mussallem, and indeed Dr. Larroude, could establish (in a "hearsay on hearsay" fashion), was that they "understood" that Dr. Britton provided "backup" to Carolle Baya in her midwifery practice. Dr. Mussallem could not say whether Pitocin or any other drug had actually been given Susan Thompson before he saw her as a patient on January 2.
In any event, there was also no demonstration that the Respondent was aware at all that any medication had been prescribed either of the above-named patients or administered to them by Carolle Baya or anyone else. If indeed the patients were administered the drugs alleged in the Administrative Complaint, the Respondent did not support this activity nor have any knowledge of it.
Susan Thompson was ultimately delivered of her baby on January 2, at 11:54 p.m., and both mother and child had a normal, uneventful birth. Susan Thompson could have been delivered of her baby by a trained midwife, inasmuch as she had a normal delivery, with no problems arising.
In summary, the testimony of Drs. Mussallem and Larroude was predicated in all portions related to the charges in the Administrative Complaint on hearsay and those witnesses had no direct knowledge of the care given the patients in question at Carolle Baya's clinic by Carolle Baya and no knowledge of what type medication, if any, Carolle Baya or others unknown may have administered to those patients. Further, these witnesses do not know the Respondent, have no knowledge of the character and nature of his practice and have no direct knowledge regarding his professional relationships with Carolle Baya or her clinic, if any. These frailties render it impossible to accord significant weight to the testimony of these two witnesses.
Ruth Hunter, Patricia Elaine Martin and Mary Ruth Ann Arick are all owners or supervisors of various women's health clinics. Dr. Britton is employed as a contract physician at each of these clinics and works at each clinic one or more times a month. The clinics are in Gainesville, Orlando and Holly Hill. The doctor is employed to perform first trimester abortions, vasectomies, insertion of IUDs, fitting of diaphragms and to provide miscellaneous gynecological care. All three of these witnesses established that the doctor is the best of any of the physicians employed by them, competently and professionally performing such procedures with a high degree of care and interest in the patient's condition. His practice at these clinics is characterized by his spending a great deal of time conversing with his patients and generally taking an interest in their condition and problems. They have all experienced that Dr. Britton has the lowest "complication rate," that is,
problems arising after he performs various procedures, of any doctor who practices at their clinics.
The testimony of these three witnesses was corroborated by that of Dr. John Freeman, a full-time physician with the Gainesville Women's Health Center, who established that the Respondent easily meets the appropriate standard of practice in all the work that he has performed for the Gainesville health center and excels above that standard of practice in most cases. Dr. Freeman was aware of the charges against Respondent in a general sense and established that injudicious use of drugs is totally out of character for the Respondent and that the Respondent is very conservative in prescribing any drugs, especially pain medications. Dr. Freeman is the staff physician at the clinic who reviews all procedures performed by other physicians.
Ruth Hunter is a registered nurse, employed with the Gainesville Women's Health Center, who has worked with the Respondent in the vasectomy clinic at that facility. She has been an operating room nurse for approximately
15 years, and, based upon her experience with such duties and with physicians, she demonstrated that the Respondent is very capable in performing the procedures he was retained to perform for the clinic, with a very low complication rate and a very low incidence of prescribing any drugs at all during his practice at the clinic.
Dr. Willard R. Gatling testified by deposition as an expert witness on behalf of the Respondent. He has known the Respondent professionally for approximately 15 years and the two of them have regularly attended educational and other meetings of the Duval County Academy of Family Practice on numerous occasions. Dr. Gatling has practiced medicine in the Jacksonville area for over
35 years as a family practitioner and obstetrician. He has seen the Respondent's patients on a number of occasions and the Respondent has seen Dr. Gatling's patients on a number of occasions since 1967. He is aware of the Respondent's current level of care for and treatment of his patients and based upon his experience with seeing patients who have previously seen Dr. Britton, his treatment of patients appears to be appropriate and proper and complies with the standard of care of a competent medical doctor as is accepted and practiced in northeast Florida. Dr. Gatling is aware of the Respondent's current probation and his past disputes with other physicians in Fernandina which resulted in those physicians voting him off the staff of the hospital there. Neither these problems nor the current charges have changed his opinion of the Respondent's competency.
Raymond Michael Eichorn was director of the Nassau County Alcohol and Drug Abuse Council from November, 1975, to November, 1979. He became acquainted with the Respondent during that time because the Respondent was on the board of directors of that council until the council was disbanded two years ago. Dr. Britton was very active during those years in the council's work with the court and school systems in the area of drug education and combating drug abuse. He performed voluntary free physicals for alcoholics who were entering the antabuse treatment program. He performed this service despite the fact that he received no compensation and that the program provided him with no malpractice insurance coverage for this work. Since 1979, witness Eichorn has been employed in the personnel department of Container Corporation at its paper mill in Fernandina. He has continued to refer mill employees with alcohol problems to the Respondent for him to perform physicals for purposes of their entering the antabuse program. He has found the Respondent to be civic-minded and to continue to be interested in and working with the current drug abuse program in Nassau County.
J. Chandler McLauchlan is, by training, a psychologist. He operates a cabinet making business and also works as a sculptor. He and Charles W. Howard and their families are patients of the Respondent. The Respondent, at all times, has proven to be a compassionate, conservative physician with regard to his care and prescription of drugs for these witnesses and their families.
The Respondent frequently has charged substantially lower fees than other physicians for the same services and has generally shown himself to he a competent, caring physician, more concerned with patients' welfare than financial remuneration. He is strictly conservative regarding prescriptions of medicines and, in the words of Charles Howard, "he likes us to rough it."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
The Petitioner has charged the Respondent with violating Section 458.331(1)(f), (g), (q), (w) and (x) These sections provide pertinently as follows:
458.331 Grounds for disciplinary action; action by the Board.
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken;
Failing to report to the Department any person who the licensee knows is in vio- lation of this Chapter or the rules of the department or the board.
Aiding, assisting, procuring, or advis- ing any unlicensed persons to practice medicine contrary to this Chapter or to a rule of the department or board.
(q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice.
(w) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.
(X) Violating any provision of this Chapter. a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing. . .
Count III of the Administrative Complaint charges the Respondent with violating a lawful order of the Board, to wit: the final order of the Board effective January 4, 1982, placing the Respondent on probation and ordering him not to violate Chapters 455 and 458, Florida Statutes, or the pertinent rules. All facts alleged in the complaint in this case, however, occurred prior to the filing and entry of that order, with the exception of the placing of the newspaper advertisement described in paragraph four of the Administrative
Complaint. No evidence whatever was adduced to show that the Respondent had any knowledge of the placement of that newspaper advertisement and the content of the advertisement itself has not been offered or admitted into evidence in this proceeding. Accordingly, Count III of the complaint should be dismissed.
The basic factual allegations of the Administrative Complaint are contained in Counts I and VI, which involve the alleged newspaper advertisement placed in the St. Augustine Record on January 25, 1982, associating the Respondent's name with the St. Augustine Maternity Center, Inc.; the Respondent's name appearing on the sign on the front of the clinic; the charge that an unlicensed midwife gave to patient Crystal Mull a Demerol injection approved by the Respondent on November 22, 1981, and that the same unlicensed midwife, Carolle Baya, and an assistant, gave a labor inducing drug, Buccal Pitocin, to patient Susan Thompson.
The newspaper advertisement or a copy of it is not in evidence in this record. The Respondent withdrew its objection to its admission, but Petitioner ultimately did not introduce it. Testimony concerning the newspaper advertisement cannot be considered as competent evidence against the Respondent tending to show his aiding the practice of medicine by an unlicensed, unqualified person in any event, however, because there is no proof that the Respondent knew the advertisement had been placed and there is no showing that the advertisement achieved any effect, to wit: that it actually assisted Carolle Baya or any other person not qualified under Chapter 458 to practice medicine.
Somewhat the same considerations apply to the issue of the doctor's name on the sign on the front of the clinic. Although Dr. Mussallem established that some sort of sign with the Respondent's name on it was on or in the area of the front of Carolle Baya's clinic, neither the sign itself nor a picture of it was placed in evidence. Dr. Mussallem did not know what was represented on the face of the sign and the gravamen of his testimony is that he thinks that the Respondent's name was on the door and that he "gathered" that the Respondent was the clinic supervisor. This is not the caliber of evidence necessary to prove facts against the Respondent in a penal proceeding. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Although it could be speculated that the Respondent must have known his name to be on the door since the one competent portion of Mrs. McNairy's testimony was that the Respondent examined a patient, her daughter, there and (in a hearsay fashion) that she "understood" that he was the "sponsor" or "consulting physician" for the clinic, speculation is not competent evidence, especially when both Dr. Mussallem and Mrs. McNairy failed to provide a date or even an address for the sign reputed to have been seen on the front of the clinic.
With regard to both Counts I and VI upon which all the other counts in the complaint are factually predicated, there remain the allegations that the lay midwife Carolle Baya gave Demerol to Crystal Mull on the Respondent's approval and recommendation and that Baya or her agent gave Buccal Pitocin to Susan Thompson; and that physical examinations were given to both patients by the Respondent. In that connection, there is absolutely no evidence that patient Thompson was ever given any type of examination or even seen by the Respondent. As to patient Crystal Mull, Mrs. McNairy's testimony establishes that a pelvic examination was performed by the Respondent during the eighth month of Ms. Mull's pregnancy. McNairy was present during that examination and established that the Respondent performed the examination in a thoroughly competent, professional manner and, at the conclusion of it, gave a warning to
the patient, her mother and Carolle Baya concerning possible complications of a home birth, due to the abnormally large size of the baby.
If Carolle Baya attempted a home birth against the Respondent's warning and advice, this was not shown to be due to any fault or intent of the Respondent and the Respondent was not shown to be aware of such activity. It has only been demonstrated that the Respondent was present at the clinic one day per month to perform physical examinations and other routine gynecological treatment matters in accordance with Rule 10D-36.25(1), Florida Administrative Code, in effect at the time, and there has been no violation of the above statutory provisions by Respondent or Baya shown in connection with this examination.
As to Carolle Baya's attendance at Crystal Mull's labor, as well as her attempts to deliver the baby of patient Thompson, there has been no imputed violation by the Respondent of the above authority proven or even alleged, except concerning the administration of drugs. There is no allegation that the Respondent was even aware of the administration of any drugs to the patient, nor proof that he ever undertook any physician-patient relationship with Thompson nor derivative responsibility for Carolle Baya's care of that patient.
30 . The evidence does not establish that Carolle Baya departed from the field of lay midwifery and engaged in the unqualified practice of medicine with regard to these patients. Dr. Gatling, the Respondent's expert witness, established, corroborated to some extent by Dr. Larroude, that even a lay midwife's administration of Pitocin is not necessarily activity outside the scope of a lay midwife's proper practices and thus the unqualified practice of medicine for purposes of Chapter 458. The evidence does not even reveal definitely that Baya administered any Pitocin to patient Thompson, however, much less that the Respondent was aware of it, authorized it or condoned it. In any event, the only evidence that the Respondent knew anything about Carolle Baya's midwife practice is related to the occasion when he examined her patient prior to her delivery. Concerning this occasion, there is absolutely no evidence of any practice by Carolle Baya constituting the unlicensed or unqualified practice of medicine nor the allowance by the Respondent of such unlicensed practice to go unreported to the Board; to constitute the delegation of his professional duties to an unqualified practitioner nor any evidence of prescription of a legend or controlled drug other than in the course of his professional practice.
The only witness for Petitioner who could testify to any direct knowledge of any relationship of Dr. Britton with Carolle Baya, was witness McNairy. Although she testified that she believed Britton to be a "sponsor or something like that" and that she ". . . assumed that it was Dr. Britton because he was the consulting physician," she had no direct, non-hearsay knowledge of any participation by the Respondent as a "backup" supervisor or other type of physician consultant to Baya during the gestation, labor or delivery process involving either patients Mull or Thompson. Witness McNairy could only competently testify of her experience at observing the Respondent examine Crystal Mull in the eighth month of her pregnancy and she had no direct competent knowledge to relate regarding any supposed authorization or acquiescence by the Respondent regarding Baya's administration of any drug to either patient.
In short, the best knowledge that witness had as to whether Dr. Britton had been consulted by Baya during delivery and whether he may have told Baya to take patient Mull to the hospital or to administer Demerol or was even on the telephone in a conversation with Baya at all, is no more than Baya's
overlain, hearsay statement. McNairy was not even sure. that she had been told that Demerol was used. She merely said, "I believe it was Demerol that was mentioned." In any event, even if Demerol was used, which was not proved, there was no evidence to show that it was done on any instruction by the Respondent, who was 70 miles away in Fernandina at time.
In summary, the administration of Demerol as well as Pitocin to the two patients involved is only of record in this case in the form of conjecture and hearsay which is not the type of evidence which can be used in a penal proceeding to discipline the licensure status of a physician. Bowling, Supra. The statements regarding Baya's activities during labor, whether they were proper or not within the course of her lay midwifery practice, failed to show any knowledge of the same by the Respondent, even if it were proved that Baya was his agent (which it was not). See, Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980).
The only other testimony offered as to the administration of drugs by or at the authorization of the Respondent is also in the form of a deposition of Dr. Anthony Mussallem, related to the Possibility of the administration by Baya or her agent of Buccal Pitocin to Susan Thompson. Mussallem's testimony is obviously pure hearsay, since he acknowledged that it was only suggested to him (by patient Thompson) that the drug had been used and neither the patient nor any other person reporting to him knew whether it had been used, and, if so, at whose direction. In short, whatever tablets Susan Thompson may have been given were not established to be Pitocin and the very fact of her being administered any drug was only attempted to be shown by Mussallem's statement in his deposition which consists of hearsay upon hearsay. Such testimony not corroborative of a fact established by direct evidence is not the type of evidence upon which the Respondent's license could be disciplined. Bowling, Supra.
The other facts alleged in Count VI concerning the performance by the Respondent of a pelvic examination on Susan Thompson were not put into evidence. Count VI therefore must be dismissed. Since Counts VII, VIII, IX and X are all entirely predicated on factual allegations contained in Count VI, they should be dismissed along with Count VI as well.
The factual allegations underlying Count I of the Administrative Complaint concerning Carolle Baya's activities with regard to patient Crystal Mull and the attempt to show Respondent's responsibility therefor have not been proven. Consequently, the remaining Counts II through V related to the activity regarding that patient have likewise not been proven, inasmuch as their entire factual predicate is an adoption and reallegation of the factual pattern alleged in Count I. Thus, Counts I through X in their entirety should be dismissed.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses of the Respondent, who testified in person, as well as the pleadings and arguments of the parties, it is, therefore
RECOMMENDED:
That a final order be entered dismissing the Administrative Complaint in its entirety.
DONE and ENTERED this 18th day of November, 1983, in Tallahassee, Florida.
P. MICHAEL RUFF, 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 18th day of November, 1983.
COPIES FURNISHED:
Charlie L. Adams, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Stephen P. Smith, Esquire Smith and Smith, P.A.
2601 University Blvd., West Jacksonville, Florida 32217
Dorothy Faircloth, Executive Director Board of Medical Examiners
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred M. Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Mar. 03, 1984 | Final Order filed. |
| Nov. 18, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 27, 1984 | Agency Final Order | |
| Nov. 18, 1983 | Recommended Order | Facts did not prove allegations of allowing unlicensed midwife to practice medicine without supervision. Dismiss. |
