STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF MEDICAL EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 83-0803
)
WILLIAM J. LEE, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Following notice, a formal hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. This Recommended Order is being entered following the receipt and review of the transcript, which was filed with the Division of Administrative Hearings on January 11, 1984. In addition, the parties in the person of counsel have submitted proposed Recommended Orders, the last of which was filed with the Division of Administrative Hearings on March 7, 1984. Those proposals have been examined and to some extent utilized. To the extent they are rejected, their rejection is due to the fact that they are found to be contrary to facts in the Recommended Order, contrary to conclusions of law, contrary to the recommended disposition or based upon a determination that they are irrelevant or immaterial.
APPEARANCES
For Petitioner: Harry L. Shorstein, Esquire
605 Blackstone Building
Jacksonville, Florida 32202
For Respondent: Kurt A. Simpson, Esquire
2459 South Third Street Jacksonville Beach, Florida 32250
ISSUES
The matters presented for consideration in this action are related to an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Dr. Lee, accusing him of having violated various provisions of Chapter 458, Florida Statutes, pertaining to his practice of medicine. The complaint accuses the Respondent of violating Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or the failure to practice medicine with the level of care, skill and treatment which is recognized by reasonably prudent similar physician as being acceptable under similar conditions and circumstances, related to the treatment of several patients. Respondent is also accused of having failed to keep written medical
records justifying the course of treatment for those patients in violation of Section 458.331(1)(n) , Florida Statutes.
FINDINGS OF FACT
William J. Lee, M.D., is a physician licensed to practice medicine in the State of Florida through a license issued by the State of Florida, Department of Professional Regulation, Board of Medical Examiners, License No. MEO12345. He has held that license at all times relevant to this case and in that time sequence has practiced general medicine and general surgery in Jacksonville Beach, Florida, in his office and at Jacksonville Beach's Hospital in that same community.
Dr. Lee is 51 years old and is a graduate of Emory University in 1958, receiving his M.D. from Emory in 1964. He did an internship at the University of Florida in Gainesville, Florida, followed by a residency in general surgery at the University of Florida from 1965 through 1968 and completed his residency at Duval Medical Center in Jacksonville, Florida, in 1969.
The Administrative Complaint, which is the subject of this hearing was filed on February 22, 1983. Proper service of the Administrative Complaint was effected upon the Respondent and Dr. Lee made a timely request for formal hearing pursuant to Section 120.57(1), Florida Statutes.
THELMA A. PARKER
From August 9 through 13, 1974, Thelma Parker was treated medically at Memorial Hospital of Jacksonville, Jacksonville, Florida, for acute diverticulitis. This treatment was provided by Dr. C. Cooksey. In particular, Dr. Cooksey's medical regime was NOP, IV fluids, and large doses of Fibramycin. A barium enema was done on the patient on August 10, 1974, and revealed diverticulosis of the sigmoid colon and one large acutely inflamed diverticulum of the mid-sigmoid level. This diverticulum was unusually long and Dr. Cooksey was of the impression that the diverticulum produced some edema of the bowel wall with low grade obstruction. Finally, Dr. Cooksey felt that at some point the diverticulum should be resected because of its size.
In late August 1978, Ms. Parker, who had become a patient of the Respondent's, began to experience cramping, and diarrhea pain for which she took lomotil to slow down the bowel activity. This relieved her symptoms temporarily. Nevertheless, the symptoms persisted and on September 2, 1978, Ms. Parker went to the emergency room at Jacksonville Beach's Hospital, displaying the same type of pain and showing a mild distention. This pain was a generalized to and fro type of pain of cramping nature across the area of the abdomen. It was not localized. Dr. Lee admitted the patient to that hospital on that date. At that time, Dr. Lee was aware of the prior 1974 bout which the patient had with diverticulitis. Lee obtained an x-ray obstruction series and based upon this information felt that possible explanation was adynamic ileus versus early obstruction. He did not feel that the patient was suffering from diverticulitis in that there was no indication of lower left quadrant abdominal pain, bowel dysfunction such as constipation or obstipation and no indication of temperature elevation, indicators of diverticulitis. The symptoms she did display were not inconsistent with diverticulitis. At admission, the Respondent did note the past history of diverticulitis and the emergency room admission and hospital records indicated chronic lower quadrant abdominal pain and change in bowel habits and diarrhea, which are consistent with diverticulitis.
Based upon examination of the patient, x-rays and associated materials, Respondent performed an exploratory laparotomy on September 4, 1978, for the purpose of relieving a small bowel obstruction. In the surgery, he found grossly dilated loops of the small bowel with obvious obstruction of the terminal ileum approximately 15 cm's proximal to the ibocacal valve. He found that area to be "firmly adherent to a mass of scar tissue in the sigmoid colon area of the pelvis with chronic low grade inflammatory reaction present in the region." The portion of the ileum that was involved in this was wound severely upon itself with the massive scar tissue in the area. Given the condition, he determined to resect that portion of the small bowel and effected a repair by anastomosis. No evidence was revealed in the course of the operation of any blockage of the large bowel, based upon his observations and manipulations. Gross examination was also made of the sigmoid colon and this revealed no dilation. No contrast studies were done to examine the lumen of the sigmoid colon, such as barium enema or colonscopy. Those studies would have ruled out diverticulitis in the area of the sigmoid colon. The post operative diagnosis by Dr. Lee was small bowel obstruction, secondary to diverticular disease and upon the discharge date of September 14, 1978, the diagnosis was 1) small bowel obstruction and 2) diverticular disease.
The patient was seen in Dr. Lee's office on September 18, 1978 and had a fever and abdominal symptoms. She was told to see the doctor again on the next day and lacking improvement on that date was admitted to the hospital on September 19, 1978. At the time of admission on September 19, 1978, initial impression by Dr. Lee was that the patient was suffering intra-abdominal abcesses, secondary to anastomostic break or leakage in the area of the resection of the small bowel. The patient demonstrated a tenderness in the lower abdomen and had some nausea and vomiting. On rectal examination, the patient demonstrated a fluctuant area in the rectum, at the pelvic basin formed by the peritoneum. This area was determined to be an abscess and on September 26, 1978, Dr. Lee performed a procedure by going through the anus into this area of abscess and making an incision in the wall of the rectum to allow drainage of the abscess through the rectum. There was some improvement but the patient continued to have temperature elevation and abdominal pain and on October 2, 1978, further laparotocy was done and an anastonimotic break was discovered. Reanastomosis was achieved following a second resection in the area of the initial small bowel obstruction. Gross examination during the course of this surgery did not reveal any evident blockage of the large intestine or active diverticulitis. Again, no specific diagnostic work was done to determine the condition of the sigmoid colon related to diverticulitis. During the surgery, in addition to the revision of the ileostomy, abdominal abscesses were also evacuated. The patient was discharged on October 21, 1978.
After her release in October 1978, the patient was seen on a number of occasions by the Respondent and indicated occasional episodes of cramping, diarrheal type stool but no localized pain in the left, lower quadrant, constipation or obstipation. The patient developed a ventral hernia in the area of the incision related to the abdominal surgery performed by the Respondent and on June 21, 1979, was admitted to the hospital to attend that condition. Exploratory laparotomy was dome on June 22, 1979 and the Respondent did further resectioning and reanastomosis in the area of the small bowel repair together with repair to the ventral incisional hernia. The large intestine in the area of the previous diverticular disease was examined and no indication, on gross examination, was given as to obstruction of the large bowel or any showing of acute inflammation in the area of the sigmoid colon suggesting diverticulitis. As was the case before, no specific examination of the sigmoid colon by a
process of barium enema or otherwise was made at the time of this hospitalization.
The patient was seen in the Respondent's office on July 3, 1979, and it was noted that her wound from the most recent operation was healing and that her appetite was good and bowel movements normal. A further visit of July 6, 1979, revealed a pink, serous drainage from the portion of the most recent incision and the abdomen was tender. Eventually, the patient had to be readmitted on July 23, 1979. Upon admission, it was believed that the patient was suffering intra-abdominal abscesses. She demonstrated temperature elevation and abdominal pain. The serous drainage from the incision had subsided. On this admission, particularly July 27, 1979, Dr. Lee did obtain a barium enema for purposes of examining the sigmoid colon and it showed a narrowed portion within the sigmoid colon with a communication to an abscess in the pelvis and from there a fistula to the small bowel at the site of the anastomosis. The abscess described was an abscess that had been addressed by Dr. Lee on September 26, 1978. This narrowing in the sigmoid colon was a partial obstruction, leaving an approximate functional capability of 10 percent. No dilation was observed in the bowel proximal to the area of partial obstruction and there was no distention. The narrowing was caused by the diverticular disease process. No evidence was found of an active condition of diverticulitis in the sigmoid colon. On July 30, 1979, a further surgical course was pursued by Dr. Lee and a segment of the small bowel in the area of the previous attempts at anastomosis was removed and a reanastomosis was done with a cleaning up of the previously described fistula tract and associated repairs. No attention was given to the narrowing of the sigmoid colon.
On August 6, 1979, Dr. Lee opened and drained large abscesses in the abdominal wall and this was followed on August 9, 1979, with his notation of a small bowel fistula.
On August 10, 1979, the patient requested consultation with another surgeon, Dr. James Corwin and was transferred to his care on August 12, 1979. Corwin advised the patient to have a loop colostomy to try and address continuing problems as described by prohibiting the sigmoid colon from contributing to those difficulties. This procedure was carried out by Dr. Corwin on August 17, 1979. Resection of the sigmoid colon was done by Dr. Corwin on September 17, 1979. (Pathology related to the sigmoid colon showed diverticulosis, indication of diverticular disease. It did not show active diverticulitis.) The patient accepted Dr. Corwin's suggestion that the colostomy and resection of the sigmoid colon were necessary, without hesitation. Respondent's suggestion by testimony or record that he had discussed with Ms. Parker the need to address her diverticular condition and possible resection of the sigmoid colon and her rejection of such diagnosis and treatment is not accepted. These discussions allegedly occurred between her release from the hospital in October 1978, and her hospitalization in June 1979. When examined in light of the facts found, specifically her willingness to submit to all other operations and procedures by Dr. Lee and to accept Corwin's treatment of the colon when suggested, Respondent is not to be believed on this subject. Ms. Parker failed to recover from the series of problems as discussed and died on October 28, 1979. The diverticular disease in the colon contributed to her demise and Dr. Lee failed to diagnose and treat that condition. Notwithstanding the fact that Ms. Parker did not take care of herself in terms of her physical condition, related to her drinking habits, Respondent was not relieved from the necessity to diagnosis and address the problem with the sigmoid colon.
Dr. E. R. Woodward testified on behalf of the Petitioner, after being accepted as an expert in medicine with particular emphasis on general surgery. Dr. Woodward is a professor of surgery and former chairman of the Department of Surgery at the University of Florida, College of Medicine, and is a member of various boards, colleges and associations related to the practice of surgery and has written approximately 250 publications and authored two books in the field of general surgery. His testimony was based upon the review of hospital records related to Parker's various hospitalizations under the care of Dr. Lee that have been addressed. Dr. Woodward is of the opinion that the patient suffered diverticulitis in the sigmoid colon at times relevant to the inquiry and finds fault with Dr. Lee's failure to diagnose and treat this condition which Dr. Woodward felt was the underlying cause of the patient's problems pertaining to obstruction in the small bowel and associated anastomotic failures. Even without such diagnoistic procedures as barium enema or otherwise, Dr. Woodward feels that Dr. Lee recognized the diverticulitis of the colon in describing the chronic inflammatory reaction in the area of the sigmoid colon in his September 4, 1978, post operative report. Dr. Woodward revealed that in the September 19, 1978, admission that one of the x-rays showed air fluid levels in the right colon which is indirect evidence of a possible problem of an obstruction in the sigmoid colon. Moreover, given the fact that the intestines heal extremely well, according to Dr. Woodward, the problem with the anastomosis was possibly due to the fact that the lining of the intestine beyond the anastomosis was not open sufficiently and that there was some degree of obstruction as was revealed in the area of the sigmoid colon, which had been caused by chronic diverticulitis. By the time of the June 21, 1979, hospitalization, Dr. Woodward felt that the patient's condition was such that her recovery was not promising. Even in the face of information found after the July 27, 1979, barium enema, Dr. Lee did not address the difficulty with the narrowing in the colon by some process of diverting colostomy or other surgery of the colon. In Dr. Woodward's mind, this was necessary at the time of the September 4, 1978, surgery and continued to be a need at the time of the July 30, 1979, surgery. Risk of mortality increased from 2 percent to as high as 10 percent at the July 30, 1979, operation. Subsequent to that operation, the patient was so ill and the infection so severe that the mortality risk related to surgery was prohibitive, per Woodward. In summary, Woodward felt that the Respondent's failure to diagnose and treat the diverticular condition in the sigmoid colon led to her eventual demise and was such quality of treatment as to constitute gross or repeated malpractice and the failure to practice medicine with a level of care, skill and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions or circumstances.
Dr. Corwin, gave his expert opinion, as a general surgeon, after being accepted in that field. This is the same Dr. Corwin who treated Thelma Parker. Dr. Corwin feels that given a past history of diverticulitis, which the Respondent knew about and the condition which he found upon the original surgery performed in the abdomen, Respondent should have searched for the cause of that condition which most likely was the patient's diverticulitis. This opinion refers to the need for an examination by barium enema or some other form of contrast study to determine the condition of the sigmoid colon. The narrowing or obstruction in the area of the distal colon, as described, was felt by Dr. Corwin to be almost total in that the colon was reduced to an approximate 10 percent function. Corwin felt that the Respondent had made a major mistake in his treatment of the patient in not attempting to ascertain the cause of the abscesses and obstruction and to deal with the problem in the colon which he considered to be the underlying cause of her difficulties. According to Corwin, the quality of that mistake was so severe as to constitute gross mistreatment of the patient. He feels there was malpractice in that the problem in the colon
was at least partially responsible for the anastomotic breaks. At minimum, Dr. Corwin felt that a diverting colostomy was necessary to address the problem with the colon and probably a resection of the sigmoid colon, which procedures were done by Corwin subsequent to assuming the case.
Dr. Wiley Douglas Fowler, Jr., who is a board certified, general surgeon, practicing in the community where Respondent practices, gave testimony. He too felt that the Respondent had failed to deal with the condition in the sigmoid colon which he considered to be diverticulitis. There was a need to do a diverting colostomy and to do further definitive treatment as necessary to address the diverticular condition, per Fowler. He felt that there was a breakdown in surgical judgment to the point that the doctor was unable to perform the responsibilities of care in the case.
Dr. Samuel Stephenson, who is a board certified general surgeon practicing in Jacksonville, Florida, testified. He did not find the quality of Dr. Lee's care to be-substandard related to the patient Parker. He placed emphasis on the fact that in his opinion gross signs such as dilation in the colon or large bowel were not observable and no active condition of diverticulitis was ever discovered during Parker's treatment course from the time of the Respondent's involvement to her demise. He did indicate that the barium enema results of July 27, 1983, might make one wonder if the narrowing in the sigmoid colon had caused some of the other recurring problems associated with anastomotic breaks in the small intestine. He indicated that by July 30, 1979, there might be a need for a colon resection. Stephenson was impressed with the fact that the patient died even after attempts to address the problems with the colon, i.e., the temporary colostomy and resection of the colon done by Dr. Corwin, leading him to wonder if the cause of continuing failure in the area of repair at the small bowel was due to some circumstance other than problems in the sigmoid colon. He believed that in the initial admission of September 1978, that there was a possibility of a problem with diverticulitis as well as the small bowel obstruction but no gross signs indicated an active condition of diverticulitis in the area of the colon, such as dilation. The mass that was discovered at the point of the initial laparotomy in September 1978, might have been from the colon or might not have been in the mind of Dr. Stephenson. The thrust of Dr. Stephenson's testimony seems to be that absent a clear indication that diverticulitis in the colon or the narrowing in the colon was the proximate cause of the anastomotic breaks and attendant processes of infection, there was no duty on Dr. Lee's part to rule out the possible involvement of the sigmoid colon as an explanation for the problems with the healing process in this patient.
Upon reflection, the impressions gained by Drs. Woodward, Corwin and Fowler, witnesses for the Petitioner, are more compelling than those of Dr. Stephenson, on the subject of culpability by the Respondent related to the patient's care. Evidence reported establishes that the Respondent should have examined the colon by barium enema or some similar process at the point of the initial surgery and certainly before her final admission in July 1979, and when finally so examined the colon was not treated. This failure is excerbated by the fact that the Respondent knew that the patient had a history of diverticulitis. The diverticular condition in the colon, to include the partial obstruction by narrowing, based upon the opinions of the third party experts, is found to have been a contributor to the continuing problems of anastomotic leakages, abscesses and other conditions which would not allow a successful treatment course for the patient. Even if diverticulitis in the colon or the diverticular condition in that organ did not cause failure in her treatment results, per the physicians, whose opinion is accepted, the circumstance in the
colon should have been examined and ruled out at a minimum. The idea expressed by Dr. Stephenson, that in the absence of being able to clearly establish that the colon's condition caused the patient's demise, the Respondent may not be held accountable, is unacceptable. Having determined that the diagnosis should have been made, Respondent should have performed the diverting colostomy to be followed by a resection of the colon if necessary, again in keeping with the opinions of Petitioner's experts. Finally, the opinion related to Respondent's malpractice and failure to perform at an acceptable standard for same or similar physicians, as attributed to Dr. Woodward and supported in concept by Dr.
Corwin, is accepted.
Respondent is accused of having failed to keep adequate medical records pertaining to the patient Parker. Although there was some demonstrated ambiguity in his record keeping, that ambiguity does not rise to the level of finding facts showing a violation related to record keeping on this patient.
JOHN WILLIAM PHILLIPS
On July 2, 1979, John William Phillips had an accident in which he fell off of a ladder and came to the emergency room at Beach's Hospital for treatment. An admission was made on July 3, 1979, and Dr. Lee undertook the care of the patient. The patient suffered multiple fractures of the ribs, had a contusion of the left shoulder, was demonstrating slight tenderness in the left flank and evidenced a large swollen and contused area in the left chest wall posterior with tenderness. He showed a normal abdomen with bowel signs present but hypo-active. The patient suffered nausea, abdominal distention and tachycardia. From admission through July 12, 1979, the patient waxed and waned. He received fluids and pain medication and a series of x-rays were taken to better understand his condition. On July 12, 1979, a liver scan was made which demonstrated a cold area in the left lobe of the liver, leaving Dr. Lee in the position of ruling out hemotoma versus tumor versus cyst, though he believed the condition to be benign and unrelated to the accident. The cold spot on the x- ray appeared as a smooth contoured defect. The patient continued to show distention following the liver scan and continued to evidence tachycardia and vomiting for the next several days. Respondent did not choose to verify his preliminary clinical impression of the condition of the liver related to the defect, by use of sonogram or angiogram, electing instead to wait for the patient's condition to change for better or worse. On July 15, the patient showed marked increase in temperature. On that date, a chest x-ray demonstrated plate-like atelectasis in the right lung and an elevated diaphragm. With the advent of the temperature elevation on July 15, the patient was transferred to the CCU unit of the hospital and among other matters prescribed, a broad spectrum antibiotic was ordered. The patient was showing an elevated blood count at that time. Following the liver scan, the patient had also developed rapid pulse and shown mental confusion. By the morning of July 15, the patient's condition was one approaching septic shock if not in that condition. Clinically, there was indication of sepsis or septicemia. The family of the patient requested a second opinion and the patient was subsequently transferred to Dr. Corwin.
Dr. Woodward gave his opinion about the treatment of Phillips, expressing the belief that the problems evidenced related to this patient were too long and severe and too related to an abdominal condition to be associated solely with the injury in the chest. Given the location of the injury, Dr. Woodward felt like the defect in the liver, seen on the scan, may have been related to the injury. Dr. Woodward felt that the Respondent should have established whether or not the lesion in the liver was caused by the accident,
either by exploratory laparotomy or selective arteriogram. To do otherwise would be less than expected of a prudent general surgeon, according to Dr. Woodward. In essence, Dr. Woodward felt that something should have been done to verify the character of the defect shown on the liver scan and whether that defect was associated with injury suffered by the patient.
Dr. Corwin testified about the treatment afforded Phillips. He felt that at the time that he took over the case on July 15, that the quality of the septicemia suffered by the patient was such that he was in septic shock and that an operation was necessary to address the defect in the liver. An operation was undertaken to remove that defect and when first visualized, Dr. Corwin was not sure whether the defect was a cystic hemangioma or not, although it gave an appearance of being that condition. (At the time of the liver scan, given the location of the liver defect, Corwin felt that most probable explanation was hematoma or tear in the left lobe of liver, cystic hemangioma being a rare occurrence in liver.) After removal of this cyst, the patient began to improve and Dr. Corwin believes that the removal of the cyst contributed to that improvement. He thinks that the area of the cyst became a seed bed for the septicemia in the sense of aiding in the circulation of bacteria in the patient's system.
Dr. Corwin had criticism of Dr. Lee in the treatment of Mr. Phillips in the sense that once the patient's condition began to decline, approaching the place and time at which Corwin was substituted as the physician, Dr. Lee should have done more to determine the true nature of the patient's problem. He does not feel that the Respondent's treatment can be described as malpractice. He is simply of the opinion that the case was not handled very well and showed poor judgment by the treating physician.
Dr. Fowler testified about the care of the patient Phillips after examining the records of hospitalization. He indicated that given the deteriorating condition of the patient, that there was an indecisive action pattern on the part of Dr. Lee but it was not of such proportions as to constitute a breakdown in the care of the patient. He had no specific opinion as to whether this conduct by Dr. Lee constituted gross or repeated malpractice.
Stephenson's opinion of the Respondent's treatment of Phillips was to the effect that it was not substandard. Given the appearance of the cold spot on the liver scan, he felt certain that this was a cyst or hemangioma and not a hematoma. He indicated that uncertainty in this regard could have been confirmed by a sonogram. He did not find the necessity to conduct surgery to discover the condition of the liver.
Having considered the facts of the treatment of Phillips and the opinions of the experts, while the Respondent's reactions to Mr. Phillips' condition were less than sterling, they did not reach the level of constituting gross or repeated malpractice or care unworthy of a same or similar physician.
Again, the records kept by the Respondent related to the care of Mr. Phillips were sufficient.
CLIFTON WORCESTER
On January 31, 1977, Respondent conducted surgery on Clifton Worcester to patch a perforated duodenal ulcer. Worcester had further hospital admissions on June 21, 1978 and August 1, 1978, for recurrent ulcer symptoms. On these
occasions he was treated medically. On December 27, 1978 through January 4, 1979, the patient was admitted for the treatment of pneumonia.
On September 6, 1979, Worcester was admitted to the hospital under the Respondent's care for conditions which preliminarily seemed to be related to respiratory and cardiac problems. At that time, the patient was 74 years old and was in a deteriorated condition suffering from a variety of maladies to include cardiac and respiratory conditions as well as the peptic ulcer disease. On September 9, 1979, Respondent after diagnosis determined that the patient was suffering from ulcer disease and an operation was done to repair the perforated pyloric ulcer. A Graham closure was used with omental patch and permanent silk sutures were employed. This ulcer was the same ulcer as had caused problems for the patient in 1977. On the morning of September 12, 1979, blood was visualized from the nasogastric tube which had been placed in the patient and when the patient was later irrigated, a large amount of blood appeared. The initial impression by Dr. Lee was that this blood was either due to the active peptic ulcer or possibly gastritis. To ascertain the source of bleeding, Dr. Corwin was called in to do a gastroscopy. That procedure was done around 7:00 pm. on September 12, 1979. Although the entire area of the stomach could not be visualized, Dr. Corwin was of the impression that the cause of the bleeding was not gastritis, leaving the most probable explanation to be that the patient had a problem of a bleeding ulcer. Dr. Corwin made it known to the Respondent that the bleeding was probably due to an ulcer as explanation for the lesion and Dr. Lee acknowledged that the probable source of bleeding was an ulcer condition.
In the early morning hours of September 13, 1979, Dr. Lee again operated on the patient, envisualized the prior pyloric ulcer and was satisfied that the sutures in that ulcer were holding fast. He also discovered a gastric ulcer. The gastric ulcer measured approximately 8 centimeters in diameter. The gastric ulcer was shallow in its depth. There was present in the patient 1200-1500 cc's of old blood and a clot in the duodenum. No active bleeding was seen at that time and no major vessels were present in the ulcer beds. Dr. Lee waited 15 to
20 minutes to see if any active bleeding would occur and failing such appearance, he placed a tube gastrostomy. After cleaning out the blood and placing the gastrostomy tube, the patient was closed. No direct attention was given to the ulcers either in the oversewing of the ulcers or by more definitive surgery addressing both ulcer beds. The reason given for not conducting some form of definitive surgery was to the effect, according to Dr. Lee, that he was worried that the patient would not survive the time it would take to conclude such surgery. The surgery that was done took two hours and twenty minutes to achieve. On reflection, Dr. Lee believes that he should have at least sutured the gastric ulcer by oversewing it like a baseball, being unable to identify a bleeding point. This is in opposition to what he did which was to hope that the patient would not rebleed after the operation of September 13, 1979.
That hope was not realized because on September 15, 1979, the patient again experienced massive bleeding between 2:00 and 4:00 p.m. Dr. Lee had tried to treat the ulcers with Tagamet and irrigation through the gastrostomy tube.
On September 16, 1979, Respondent operated and performed a vagotomy and antrectomy related to the pyloric and gastric ulcers. At that time, the patient was not better able to tolerate that operation than he would have been on September 13, 1979. In fact, between those two operations, he lost a considerable amount of blood, further weakening his resistance. In view of the relative condition of the patient, that is to say, generally poor health, the effects of the bleeding ulcers and associated insult caused by the surgeries, the patient died on September 27, 1979. Among the problems experienced by the patient, in the waning days of his life, were an anastomotic leak and peritonitis.
Dr. Woodward, after review of the patient's hospital records, was of the opinion that the bleeding experienced by the patient on September 13, 1979, was from one of the ulcers and not because of gastritis. This belief is held notwithstanding the failure of the ulcers to bleed in the course of the operation on September 13, 1979. Bleeding sometimes subsides during surgery. Given the patient's circumstance related to bleeding ulcers, the least acceptable approach by the treating physician would have been to oversew and/or excise the ulcer craters. The excision would relate to the gastric ulcer. In addition, if possible, Respondent should have done a vagotomy and antrectomy or vagotomy and pyloroplasty during the September 13, 1979, surgery. Alternatively, the ulcers could have been treated medically after oversewing or excision. Use of Tagamet and irrigation would not stop the ulcers from bleeding, in Woodward's opinion. Woodward felt that a patient such as Worcester, who was in distress during the course of the operation, and had lost a great volume of blood, was a patient in greater need of the aforementioned procedures than the average patient, based upon the patient's inability to
tolerate additional blood loss if the ulcer started to rebleed after he had been sewn up. At the time of the September 13, 1979, operation, there was evidence that the patient was in shock, which might cause the surgeon to stabilize the patient before conducting the minimum procedures identified, according to Dr.
Woodward, but this would not cause the closure of the patient without addressing the bleeding ulcer or ulcers. The shock in Woodward's opinion was due to blood loss. In summary, in Dr. Woodward's mind, to visualize the ulcers on September 13, 1979, having recognized that they were the source of bleeding and to do nothing to stem that bleeding, was unacceptable Performance by the surgeon. Per Woodward, the procedures of September 16, 1979, a vagotomy and antrectomy, were correct but too late. The risk of mortality on September 13, 1979, as opposed to September 16, 1979, was 10 to 20 percent versus a prohibitive chance for recovery. Dr. Woodward found the treatment of Clifton Worcester to be clearly substandard in the face of the requirement to practice medicine with the level of care, skill and treatment which is recognized by reasonably prudent similar physician as being unacceptable under similar conditions and circumstances. Dr. Woodward's opinions as stated herein are accepted with the exception that pyloroplasty was not an appropriate choice given the location of the pyloric ulcer. Antrectomy would have been the substitute choice.
Dr. Corwin, with the knowledge that Dr. Lee had been informed of the results of the gastroscope indicating that the source of bleeding on September 13, 1979, was probably an ulcer, felt that the Respondent, when he opened the patient on September 13, 1979, even though the ulcers were not bleeding, should have dealt with those ulcers to prohibit rebleeding, as opposed to cleaning out the ulcer beds and closing the patient. The minimum response would have been oversewing the ulcers with nonabsorbable sutures, and the aging condition of the patient should not have deterred Dr. Lee in that task. When asked if Dr. Woodward had performed the level of care, skill and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances, Corwin was of the opinion that the patient had received very poor treatment and that most any physician practicing as a surgeon would have done differently. Corwin did not think there was any value to the irrigation of blood within the stomach and the treatment of the ulcers by Tagamet through the gastrostomy tube. The treatment of the patient in failing to correct the bleeding constituted gross malpractice according to Dr. Corwin. The opinions of Corwin are accepted.
Dr. Fowler also believed that to simply open the patient on September 13, 1979, and close without treating the bleeding ulcer in the sense of
definitive suturing was unacceptable. While the antrectomy and vagotomy were recognized as appropriate responses, in terms of surgical technique, Dr. Fowler felt that in the sense of appropriate judgment, those procedures came too late, having followed another bleeding episode after. the September 13, 1979, surgery. According to Dr. Fowler, when asked the question about whether this conduct by Dr. Lee in his September 13, 1979, operation in his treatment of Worcester was at the level of care, skill and treatment which is recognized by reasonably prudent, similar health care providers as being acceptable under similar conditions and circumstances, he was of the opinion that the breakdown in surgical judgment was to the point that the doctor was unable to fully perform the full responsibilities of care in the case. Dr. Fowler's opinions are also accepted.
Dr. Stephenson felt that the choices made on September 13, 1979, to close the patient and treat with Tagament and to irrigate were appropriate. He felt that the source of the bleeding might have been gastritis but was most likely from the ulcers. To him, conservative treatment of the patient in not further addressing the ulcers was acceptable given the condition of the patient. Had the patient been in better health, Dr. Stephenson said he might have taken a chance in addressing the ulcers. He felt that when you cannot visualize the source of the bleeding oversewing isn't particularly helpful because you don't know whether anything is achieved. Given this patient's condition, he felt that the chances were one in three that the patient would not rebleed. Dr. Stephenson's opinion as to the acceptability of the Respondent's conduct at the time of the surgery of September 13, 1979, is not accepted. Even this physician recognized that the patient's source of bleeding was most likely the ulcer beds and that there was a great likelihood that he would rebleed and this considered together with the fact of the tremendous amount of blood that the patient had already lost prior to the September 13, 1979, surgery causes a rejection of the opinion of this physician about Respondent's performance.
The related charge of failure to keep written medical records justifying the course of treatment of patient Worcester has not been shown. There is ample information to gain an understanding of the patient's condition, as evidenced by the ability of the experts to give opinion testimony.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes
Respondent's counsel has requested the award of attorney's fees and cost. Respondent is not entitled to attorney's fees and cost.
A proffer was made of alleged conversations between the Respondent and the patient Parker on the topic of diagnosis and the need for possible resection of the sigmoid colon. While these conversations are admissible in theory, given the fact that the statements attributed to the deceased, Mrs. Parker, are not advanced for truth and veracity per se, the contents of these conversations do not form a basis of fact finding, in that they are so unbelievable that the Respondent's account is not credible and no facts have been found based upon these purported conversations.
Count I accuses the Respondent of failing to satisfactorily address the cause of the small bowel obstruction, i.e. diverticulitis and failing to treat the patient for diverticulitis. That complaint sufficiently noticed the
Respondent of the need to defend on the basis of the involvement of diverticular disease in the patient's continuing problems during the course of treatment by a series of operations starting with the initial operation related to the small bowel obstruction. The proof establishes that the Respondent was guilty of gross and repeated malpractice and the failure to practice medicine with that level of care, skill and treatment which is recognized by reasonably prudent, similar physicians as being acceptable under similar conditions and circumstances, by his failure to make timely and proper diagnosis and afford treatment related to the sigmoid colon and the diverticular condition with associated partial obstruction by narrowing, thereby promoting chances of success in treating the small bowel obstruction in removing the risk of the diseased colon as an. influence in anastomotic breakdowns, abscesses, and fistulas. These failures constituted a violation of Section 458.331(1)(t), Florida Statutes, and subject the Respondent to the penalties set forth in Section 458.331(2), Florida Statutes.
Petitioner has failed to prove the Respondent violated Section 458.331(1)(n), Florida Statutes by a failure to keep written medical records justifying the course of treatment of the patient Parker, including by not limited to the patient history, examination results and test results as alleged in Count II.
Count III accuses the Respondent of failing to recognize a defect in a liver scan related to the patient Phillips as being a rupture and failing to order surgery to resect the ruptured liver, a procedure which Respondent knew or should have known was the appropriate treatment. It goes on to state that a reasonably prudent physician at the time, and under the circumstances, would not have allowed the patient to needlessly suffer and risk loss of life. Based upon these allegations, Respondent is said to have violated Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by reasonably prudent similar physician as being acceptable under similar conditions and circumstances. In terms of notice, there is not sufficient nexus between the allegations set forth in the Administrative Complaint concerning the failure to diagnosis a rupture and failure to operate and the facts as shown which do not reveal a hematoma or rupture and which did not indicate the necessity to operate to correct a ruptured liver, to allow a finding of guilt on the part of the Respondent. Moreover, even if sufficient notice was given and the complaint found to be sufficient related to the accusation of nonaction on the part of the Respondent once he had the results of the liver scan, such nonaction following those results, has not been proven to be so substandard that it may be concluded that Respondent violated Section 458.331 (1)(t), Florida Statutes, pertaining to the treatment of the patient Phillips.
Additionally, Respondent has not been shown to have violated Section 458.331(1)(n), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient including, but not limited to, the patient history, examination results and test results, per Count IV.
Count V accuses the Respondent of violation of Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or failure to practice medicine with that level of care, skill and treatment which is recognized by reasonably prudent similar physician as being acceptable under similar conditions and circumstances, in failing to perform an antrectomy and vagotomy on September 13, 1979, on Mr. Worcester and failure to enter a diagnosis of the patient's condition within a reasonable period of time following the patient's admission on September 6, 1979. The failure to timely diagnosis was not proven.
It has been shown, following appropriate notice of charges made, that the Respondent failed to appropriately treat the bleeding ulcer condition which he was aware of on September 13, 1979, at the time of that operation, by oversewing the ulcer beds, and/or excising the gastric ulcer or definitive surgery, antrectomy and vagotomy. This constituted gross malpractice and the failure 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 in violation of Section 458.331(1)(t), Florida Statutes, and that violation subjects the Respondent to the penalties set forth in Section 458.331(2), Florida Statutes.
Petitioner has failed to prove, as alleged in Count VI, that the Respondent failed to keep sufficient written medical records in violation of Section 458.331(1)(n), Florida Statutes, pertaining to the treatment of the patient Worcester.
After considering the facts found and the conclusions of law reached and given the fundamental failures of this physician in the treatment of the patients Parker and Worcester and the grave consequences of those failures, it is,
That a final order be entered dismissing Counts II, III, IV and VI and revoking the medical license of Dr. Lee for violations found in Count I and V.
DONE AND ENTERED this 13th day of April 1984, in Tallahassee, Florida.
CHARLES C. ADAMS
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 13th day of April, 1984.
COPIES FURNISHED:
Dorothy Faircloth Executive Director
Board of Medical Examiners Department of Professional
Regulation
Old Courthouse Square Building
130 North Monroe Street Tallahassee, Florida 32301
Fred Roche, Secretary Department of Professional
Regulation
Old Courthouse Square Building
130 North Monroe Street Tallahassee, Florida 32301
Kurt Andrew Simpson, Esquire 2459 South Third Street
Jacksonville Beach, Florida 32250
Harry L. Shorstein, Esquire 605 Blackstone Building
Jacksonville, Florida 32202
=================================================================
AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICAL EXAMINERS
DEPARTMENT OF PROFESSIONAL REGULATION
Petitioner,
vs. DOAH CASE NO. 83-803
DPR CASE NO. 10108
WILLIAM J. LEE, M.D. LICENSE NO. ME 12345
Respondent.
/
ORDER OF
THE BOARD OF MEDICAL EXAMINERS
This cause came before the Board of Medical Examiners (Board) pursuant to Section 120.57(1)(b)(9), Florida Statutes on June 9, 1984, in Palm Beach, Florida for the purpose of considering the hearing officer's recommended order (a copy of which is attached hereto) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Harry L. Shorstein, Esquire; Respondent, William J. Lee, M.D. was represented by Kurt A. Simpson, Esquire. Upon review of the recommended order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions:
FINDINGS OF FACT
Respondent's exceptions to the findings of fact are rejected as unsupported by competent, substantial evidence.
The hearing officer's findings of fact are approved and adopted in toto and are incorporated by reference herein.
There is competent, substantial evidence to support the Board's findings of fact.
CONCLUSIONS OF LAW
The hearing officer's conclusions of law are approved and adopted in toto and are incorporated by reference herein.
There is competent substantial evidence to support the Board's conclusions of law.
PENALTY
Upon review of the complete record in this cause, the Board determines that the penalty recommended by the hearing officer be reduced from revocation.
Therefore, it is hereby
ORDERED AND ADJUDGED that Respondent's license to practice medicine be revoked; however, such revocation be stayed and Respondent's license be suspended for three years during which time Respondent shall obtain annually 100 hours of continuing medical education in surgery in Category 1 of courses approved by the American Medical Association, or their equivalent, and may obtain further medical training through an approved surgical fellowship or its equivalent. Upon compliance with the terms of this order and a demonstration by Respondent that he can practice with reasonable skill and safety pursuant to Section 458.331(3), F.S., Respondent's license to practice medicine shall be reinstated. Upon reinstatement, Respondent shall be placed on probation for a period of five years during which time Respondent shall obtain annually 50 hours of continuing medical education, in Category 1 of courses approved by the American Medical Association, or their equivalent, shall appear before the Board semi-annually and shall meet other conditions of probation as the Board deems appropriate, including waiver of confidentiality with regard to investigative reports prepared by the department during the probation. This Order takes effect upon filing.
DONE AND ORDERED this 29th day of June, 1984.
Board of Medical Examiners
Dorothy J. Faircloth Executive Director
cc: All Counsel of Record William J. Lee, M.D.
| Issue Date | Proceedings |
|---|---|
| Jul. 03, 1984 | Final Order filed. |
| Apr. 13, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 29, 1984 | Agency Final Order | |
| Apr. 13, 1984 | Recommended Order | Revoke Respondent's license for two counts of gross malpractice. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs WILLIAM PAUL HOPKINS, M.D., 83-000803 (1983)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs RONALD A. FORD, M.D., 83-000803 (1983)
BOARD OF MEDICAL EXAMINERS vs. STANLEY P. WEGRYN, 83-000803 (1983)
BOARD OF MEDICAL EXAMINERS vs. JOSE A. MIJARES, 83-000803 (1983)
