vs. ) CASE NO. 82-2836
Respondent. )
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 4 and 5, 1983, in Coral Gables, Florida.
Petitioner Department of Professional Regulation, Board of Medical Examiners, was represented by Charlie L. Adams, Esquire, Tallahassee, Florida; and Respondent Bernard Joseph Zumpano was represented by Alvin N. Weinstein, Esquire, Miami, Florida.
Petitioner filed an Administrative Complaint seeking to suspend, revoke, or take other disciplinary action against Respondent as licensee and against his license to practice medicine under the laws of the State of Florida. Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.
Petitioner presented the testimony of Phillip Paul Gassman, M.D.; Charles Ahrens; and Christian Reedy, M.D. Additionally, Petitioner's Exhibits numbered 1, 3, 4 and 5 were admitted in evidence, Petitioner's Exhibit numbered 2 for identification having been withdrawn.
Respondent testified on his own behalf and presented the testimony of Bernard M. Tully, M.D.; Michael Stary, M.D.; Richard Louis Saunders, M.D.; Noble
J. David, M.D.; Milton L. Burglass, M.D.; Jorge Picaza, M.D.; John Shillito, M.D.; and Peritz Scheinberg, M.D. Additionally, Respondent's Exhibits numbered
1 through 3 were admitted in evidence.
Both parties submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
Respondent is a physician licensed under the laws of the State of Florida, having been issued license No. 0030035. He became Board-certified in neurological surgery in January 1980.
The CAT scan is a radiological diagnostic device which was developed and made available in approximately the mid-1970s. In the beginning, only the cranium could be scanned, and the scans were always presented as though the observer were looking down from the top of the head, which is how a neurosurgeon views the patient. In approximately 1977, scanners were improved so that it became possible to scan the whole body.
The GE-8800, a body scanner, presents pictures of the head as though one were looking up from the patient's feet and not down from the top of the patient's head, which is exactly the reverse of how a neurosurgeon is used to seeing head x-rays and is exactly the reverse of how the neurosurgeon will be looking at the patient when he operates. In other words, until the development of body scanners, skull x-rays and early scans presented an image where the right side of the patient's head appeared on the right side of the film and the left side of the patient's head appeared on the left side of the film. The GE- 8800 scanner presents an image whereby the right side of the patient's head appears on the left side of the film and the left side of the patient's head appears on the right side of the film.
During 1980, the only labeling provided by the GE-8800 scanner was the word "right," which was printed vertically in the left-hand margin of the film where all other identifying information, such as the patient's name and admission number, was provided.
On April 27, 1980, Donna Ahrens was in an automobile accident in which she sustained severe head injuries. She was taken to Coral Reef General Hospital. When she arrived at the emergency room, she was comatose and decerebrate, meaning abnormal motor movements indicating no brain function. She responded only to deep pain. She exhibited the signs and symptoms of brain herniation. Her arms were thrusting outward. She had incomplete eye movements, particularly on the left side, indicating her brain stem was markedly compromised. She had a dilated left pupil. In short, she was critically injured. Upon examining her, Respondent's diagnosis was left temporal epidural hematoma and left temporal skull fracture. Respondent operated on her and evacuated a large left temporal epidural hematoma which was at the fracture site.
After Respondent performed the initial surgery, Ahrens improved markedly. Her decerebration was reversed, and she was awake and able to obey commands. She became increasingly responsive over the next few days.
The GE-8800 Mobile Scanner became available for use at Coral Reef General Hospital in the parking lot for the first time on May 1, 1980. Since a CAT scan is usually routine to assess the operative site postoperatively, Respondent ordered a CAT scan done on Ahrens. The scan was performed by Dr. Phillip Gassman. Not only was this the first time that the GE-8800 was used at Coral Reef General Hospital, but it was also the first and only scanner ever used by Dr. Gassman. The scan revealed a frontal lobe intra-cerebral hematoma.
Gassman telephoned Respondent regarding the scan either very late during the evening of May 1 or very early during the morning of May 2, 1980,
since the scan was performed late in the evening of May 1. It is difficult to recall the exact time of Gassman's call to Respondent, since Respondent receives a large number of telephone calls at home at night.
On May 2, 1980, Respondent went to the x-ray department of Coral Reef General Hospital to look at the scan. Although eventually the report from the scan would become a part of the patient's chart and notations of the results of the scan would appear on Aherns' chart jacket, such would not be the case for another day or two for the reason that x-ray results in non-emergency situations would take between 24 and 48 hours to become a part of the patient's record.
The report would first be dictated by the physician as soon as he had an opportunity to do so, and that dictation would then be sent to the transcription department. After transcription, the report would go to circulation and then from circulation would travel to the appropriate ward and would be filed in the patient's records.
Respondent obtained the scan and placed it on the viewbox in the x-ray department. Out of training and habit, his eye went directly to the hematoma, which was very obvious and which appeared on the left side of the film.
Respondent concluded that the hematoma was located in Ahrens' left frontal lobe not only because it was on the left side of the picture but also because all of the patient's symptoms had been on the left, her skull fracture was on the left, and Respondent had already evacuated one large hematoma on the left. Additionally, the scanners used at the other hospitals at which Respondent had privileges were conventional scanners on which the images were printed so that left is left and right is right. Finally, no one advised Respondent that the new GE-8800 scanner being used in the hospital's parking lot for the first time that day was the kind of scanner which prints images in reverse. Therefore, while his trained eye went immediately to the hematoma in the picture, the small series of letters vertically spelling the word "right" and located over in the left margin with other identifying print went unnoticed. At the time, no other directional labeling was used by the GE-8800 scanner.
Upon misreading Ahrens' scan, Respondent notated her hospital records that she had a left frontal intracerebral hematoma. He gave Ahrens' husband the same information. On the following day, May 3, 1980, however, Ahrens became drowsier and less responsive. Respondent concluded that it was necessary to immediately evacuate the hematoma. Respondent operated on Ahrens' left side. Rather than discovering another hematoma, Respondent discovered instead contused tissue which was infarcted. In other words, the tissue was dead. He biopsied the tissue, and Respondent's operating room diagnosis was confirmed in a subsequent pathology report.
After her second operation, Ahrens again improved. Pursuant to Respondent's orders, Ahrens underwent a second CAT scan on May 5, 1980, to routinely assess the operative site postoperatively. Once again, Respondent personally viewed the CAT scans. He saw the gelfoam used in the May 3 operation and the biopsy bed on the left. However, he saw that the hematoma was unchanged. He therefore realized for the first time that he had operated on the wrong side on May 3, 1980. He immediately told Ahrens' husband and offered to dismiss himself from the case. Respondent also notated the hospital records that he had erroneously operated on the wrong side.
Since Ahrens' husband reaffirmed his confidence in Respondent and requested that Respondent continue as the neurosurgeon on the case, and since Ahrens once again became increasingly drowsy, on May 6, 1980, Respondent
returned Ahrens to the operating room for the third time and performed a right frontal craniotomy with evacuation of a right frontal intracerebral hematoma. Thereafter, Ahrens improved with a slow but uneventful hospital course.
Respondent caused no damage to Ahrens as a result of the May 3 operation, since the tissue which he removed was already dead. Further, none of the problems which Ahrens experienced prior or subsequent to her discharge from the hospital were related to any left frontal problem caused by Respondent incorrectly operating there. Additionally, Ahrens suffered no permanent injury as a result of Respondent's admitted error; rather, her problems are a result of the diffuse brain injury suffered by her immediately prior to Respondent saving her life. The GR-8800 scanner has since been modified so that when a print is viewed a large "R" is on the right side of the patient's head and a large "L" is on the left side of the patient's head. Less confusing labeling was required on the GE-8800 scanner for the reason that the same mistake Respondent made as a result of the inadequate labeling on that scan was being made by other neurosurgeons all over the country. As a result, speeches were made regarding the understandable confusion, articles were written on this new "left-right confusion," and negotiations began among radiologists, neurosurgeons, neurologists, and General Electric. In spite of the less confusing labeling, the same kind of mistake as Respondent made is still common and ongoing. The problem still exists because not all scanners adopted the new convention. It is, therefore, particularly confusing where a person works in one hospital with a scanner that presents an image as though looking up at the patient's head from the patient's feet and also works at another hospital with a scanner that presents an image of the patient's head as though one is standing at the patient's head looking down toward the patient's feet. Accordingly, at one hospital right is still right, but at another hospital right is left. In the June 1983 edition of Surgical Neurology, an editorial appeared entitled "Confusion Tomography." Subsequent to that article, General Electric made additional concessions, so that during 1984 General Electric will provide a software package which will permit modification of existing GE-8800 scanners so that one can select images to be portrayed in the cranial mode looking down from above or in the body mode looking up from below.
When Respondent operated on the wrong side of Ahrens' head, he made a regrettable but understandable error. That error did not result from any negligence on his part, but rather resulted from a rapid changeover in state of the art medical technology.
On May 18, 1980, 14-year-old Alesia Holt went down a water slide backward and hit her head against the side of a swimming pool, sustaining a skull fracture of the right temporal parietal area. She was taken to the emergency room at Coral Reef General Hospital at approximately 4:00 p.m. Site was conscious and responded to questions, if prodded. Her pupils were reactive to light. The emergency room record indicates: "Mother states child hit her head on the side of pool (right side of head). No loss of consciousness." The emergency room nurse's note states that the patient's mother specifically denied loss of consciousness.
Respondent was called and examined the patient. He noted that she was displaying a waxing-and-waning level of consciousness but that she remained easily arousable to verbal stimulus. Her respiratory pattern was normal, and she moved purposefully in all four extremities. Holt's motor examination was normal. She moved full strength in all extremities without lateralyzing weakness. The deep tendon reflexes were present and symmetrical. There was no arm or leg drift. Her sensory pattern was also normal. However, she had
ecchymosis--a black-and-blue mark--around her right eye and a dilated right pupil, due to global trauma or injury to the eyeball itself.
Respondent's diagnosis was that Holt had a right temporal skull fracture and a probable concussion. He also wanted to rule out that she had an epidural hematoma and a direct trauma to the right eye. He therefore placed her in the intensive care unit for neurological observation, issuing orders that she be placed on intravertous fluids and that her head be elevated in order to decrease intracranial pressure. He noted at that time that Holt's prognosis was probably good. He also ordered that she be given a CAT scan when the mobile unit came to Coral Reef General Hospital the following day. Respondent left the hospital after telling the nurses to call him if there were a change in Holt's condition.
On the morning of May 19, 1980, a series of confusing events took place. At 8:00 a.m., a nurse recorded in the nurse's notes that Holt's right pupil was dilated to 7 mm. while her left pupil measured 3 mm., and she further recorded on the neurological watch sheet that Holt's right pupil only measured 3 mm. while her left pupil was dilated to 7 mm. At 9:00 a.m., the nurse recorded in both the nurse's notes and on the neurological watch sheet that Holt's right pupil measured 3 mm. while her left pupil was dilated to 7 mm. Additionally, the nurse's note at 8:00 a.m. indicates that Holt was oriented, that she would follow commands, and also that she was very lethargic. Although the patient exhibited neurological deterioration and her condition worsened commencing at 8:00 a.m. on May 19, 1980, Respondent was not called until 10:00 a.m. He arrived at Coral Reef General Hospital at approximately 10:30 a.m. He immediately went to the intensive care unit and examined the patient. He also reviewed the records and saw that the records indicated the dilation was opposite the side of the fracture. He discovered the nursing notes were inconsistent with the neurological watch sheet. He already knew that Holt's was not a case involving a straightforward picture of a classic epidural hematoma.
Respondent, after reading the record and examining the patient, suspected a hematoma and ordered an immediate CAT scan. He was told that the mobile scanner would arrive between 11:30 a.m. and 12:00 noon. Since Holt was still stable at that time, Respondent elected to wait for the scan.
The scanner did arrive between 12:15 and 12:30 p.m., and Respondent was told it would be ready in approximately 15 minutes. When it was not ready at the appointed time, he went to the radiology department and demanded the scanner. He was told there was some trouble with the computer and the machine would be ready in no more than one-half hour. By 1:45 to 2:00 p.m., he told the radiologist he wanted the scan "now." He was told that the scanner was still not ready. Respondent medicated Holt with Mannitol and Decadron and waited for the scanner, which was ready at approximately 3:00 p.m.
When Holt was taken to the mobile scanner in the parking lot at 3:00 p.m., Respondent told the hospital personnel that he was going to American Hospital, an eight-minute drive, and requested that he be notified immediately of the results of the CAT scan.
Respondent called from American Hospital and was advised that Holt was still in the scanner. However, when the scan was completed at 4:00 p.m. no one telephoned the Respondent. Instead, the nurses returned Holt to the intensive care unit and set her back up on all of the monitors.
Respondent received a call finally at 5:35 p.m. and was told that Holt was back in the intensive care unit and that she had an epidural hematoma on the right side. Respondent told the nurse to ready the operating room. Although the operating room was still not ready when he returned to Coral Reef General Hospital approximately 25 minutes later (he was delayed due to rush hour traffic), the operation did commence at approximately 6:30 to 6:45 p.m. Respondent performed a temporal craniectomy and evacuated the hematoma. Respondent examined Holt in the operating room after surgery: her decerehration had reversed, her pupils had come down, and she was moving purposefully.
Respondent did not proceed with surgery on May 19 without benefit of a CAT scan because the conflicting symptoms and records made it impossible to know the location of the hematoma. He had few alternatives. He could have drilled up to eight burr holes on the sides of the patient's head. He decided against engaging in such "woodpecker surgery" for a number of reasons. First, such a procedure would not reveal the presence of an intracerebral hematoma. Second, in the event that he operated on the wrong side, the mass would push against the brain and cause a cross-herniation, probably fatal. Next, in the event that he could not make a proper diagnosis with the use of burr holes, he would still have to go back to the scanner and then back again to the operating room, thereby adding four hours to the procedure. If Respondent had operated without a CAT scan by using burr holes, he would have operated on the side with the dilated pupil, i.e., the left side. This would have resulted in an error, because the hematoma was on the right side.
Respondent had two nonsurgical diagnostic options: (1) angiography or
(2) CAT scan. Angiography is neither a simple nor a benign procedure. It requires a catheter being placed in the femoral artery, then being threaded into the carotid artery under fluoroscopic observation. An injection of dye is then made into the artery. In Holt's case, since the patient had significant head trauma where the blood-brain barrier had been breached, there were hazards inherent in the injection of the dye, a toxic substance. Further, although modern angiographic units allow multiple pictures to be taken both in the anterior and posterior projections and lateral projection with one injection of dye, the equipment at Coral Reef General Hospital at the time allowed only single direction pictures to be taken. Since Coral Reef did not have a biplane unit, the procedure would take approximately two and a half hours and would require four injections of dye which is at a near-toxic level.
Since Halt's neurological picture was so confusing, since she did not present the typical signs of a right epidural hematoma, since the signs initially indicated that she might have an epidural hematoma on the right side but the nurse's notes no longer confirmed pathology on the right side, since the signs and symptoms became difficult to explain and would have indicated a lesion on the left side or even a bilateral lesion, and since society no longer accepts the concept of operating on the basis of clinical signs alone when tools such as CAT scans can avoid unnecessary surgery, Respondent correctly elected to finalize his diagnosis by use of the CAT scanner. Respondent could not have foreseen that the delay of a few minutes in obtaining the scan would stretch itself into a few hours. Even had it not, Holt could not be transferred to another hospital in order to obtain a CAT scan, since her condition was not stable enough to do so.
As set forth above, when the scan confirmed the presence of a right epidural hematoma, Respondent operated and removed it. The patient was markedly improved after the surgery on the evening of May 19. Her thrusting movements were completely reversed, and she appeared to be doing quite well. On May 20,
1980, at approximately 6:00 a.m., the patient had a sudden change for the worse and deteriorated quickly. Respondent was not contacted by the hospital until noon, six hours later.
Initially, Respondent thought that Holt was suffering from a recurrent hematoma or from pulp temporal lobe (a contusion which shows up 48 hours after injury). When he returned Holt to surgery on May 20, he discovered that her brain had swelled to such an extent that it was necessary for Respondent to perform a decompression procedure. Postoperatively, Holt failed to improve and remained deeply comatose. She was pronounced dead on May 22, 1980.
Respondent was puzzled concerning the great increase in the amount of brain swelling Holt experienced after the surgery of May 19, 1980. It was quite sometime before the answer was discovered in the hospital records. When Respondent left the hospital the evening of May 19, Holt was intubated (had a breathing tube) and was on a ventilator. Because of her improvement during the night of May 19, the anesthesiologist became fearful that Holt might gag on the breathing tube and accordingly removed the tube without Respondent's knowledge or consent. The level of carbon dioxide in Holt's bloodstream accordingly increased, eventually causing the severe intracranial pressure and cerebral edema which preceded her death. By the time Respondent was summoned back to the hospital on May 20, another anesthesiologist had reintubated Holt, so that when Respondent returned he observed her intubated and on a ventilator, as she was when he had left.
Even if Respondent had operated on Holt when he was notified of her condition and arrived at the hospital at approximately 10:30 a.m. on May 19, 1980, without waiting for a CAT scan, he still could not have saved her life since Holt had already decerebrated for two and a half hours, with irreversible damage attendant thereto. By the time Respondent was notified that Alesia Holt had deteriorated and decerebrated, no one could save her life.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
The Administrative Complaint filed herein charges Respondent with violating Section 458.331(1)(t), Florida Statutes (1981), by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, with regard to Donna Ahrens (Count I) and with regard to Alesia Holt (Count II). Petitioner has failed to present any competent substantial evidence upon which such a determination could be made. The overwhelming, if not uncontroverted, evidence with regard to Donna Ahrens is that she was "pre-terminal" when Respondent first saw her, that he saved her life, that he caused her no harm, and that although he performed on her one erroneous surgical procedure, that procedure resulted in the removal of infarcted tissue as a result of his misreading a CAT scan which is commonly so misread by other members of the profession. Although his error was "regrettable but understandable," there is simply no showing that his treatment of Donna Ahrens in any way fell below the acceptable standard for the practice of medicine. Likewise, Alesia Holt's presenting symptoms would fail to lead a physician to treat her in any manner differently than that course followed by Respondent. She did not have any of the classic symptonatology of an epidural hematoma, although Respondent recognized the possibility that such could result
from the injury she sustained. He accordingly properly admitted her into the intensive care unit in order that she could be neurologically observed. By the time he was notified that her condition had changed, her condition could not be reversed. Every decision thereafter made by Respondent was not only appropriate but well within accepted medical standards.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaint and dismissing with prejudice the Administrative Complaint filed against him.
DONE and RECOMMENDED this 29th day of February 1984, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
FILED with the Clerk of the Division of Administrative Hearings this 29th day of February 1984.
Joseph W. Lawrence, II, Esquire Department of Professional Regulation
Alvin N. Weinstein, Esquire
Dorothy J. Faircloth, Secretary Board of Medical Examiners
