STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

) Case No. 83-2677

vs. )

) NRISINGHA DAS MUKHERJEE, M.D., )

)

Respondent. )

)

RECOMMENDATION

A hearing was held in the above captioned matter, after due notice, at New Port Richey, Florida, on March 13-14, 1984, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: William M. Furlow, Esquire

Department of Professional Regulation Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Paul B. Johnson and

J. Michael Hayes, Esquires Post Office Box 3416 Tampa, Florida 33601

and

Glen M. Woodworth, Esquire 6950 Central Avenue, Suite 120 St. Petersburg, Florida 33707

ISSUE PRESENTED

Whether Respondent's license to practice medicine should be suspended, revoked or the licensee otherwise disciplined for alleged violations of Chapter 450, Florida Statutes, as set forth in the Amended Administrative Complaint dated March 1, 1984.

The Amended Administrative Complaint in this proceeding alleges that Respondent, either individually or in concert with other attending physicians, ordered or prescribed certain nephrotoxic drugs to a patient who suffered from renal impairment, "that Respondent failed to appropriately monitor such medication or its effects," and that the patient suffered renal failure and vestibular and cochlear impairment. It is alleged in the complaint that Respondent therefore violated Section 458.331(1)(t) Florida Statutes, by committing gross or repeated malpractice or failure to practice medicine at an

acceptable level of care, skill, and treatment. The complaint also alleges that Respondent altered patient records by inserting false laboratory reports, additional progress notes, and other additions, and failed to appropriately document the justification for the patient's course of treatment, in violation of Section 458.331(1)(i),(1), and Florida Statutes.

At the hearing, Petitioner presented the testimony of 9 witnesses and submitted 7 exhibits in evidence. Respondent called 5 witnesses, and the parties stipulated to the expected testimony of Dr. Maynard Taylor.

During the course of the hearing, Petitioner introduced into evidence a deposition of Respondent which was taken in a civil proceeding in the Pasco County Circuit Court to which Respondent was not a party, but which involved the same medical treatment provided to patient Michael Marotta that resulted in the Administrative Complaint herein. (Petitioner's Exhibit 3)

The Hearing Officer determined that any admissions made by the Respondent that are reflected in the deposition were admissible in this proceeding pursuant to Section 90.803(18), Florida Statutes. Petitioner submitted a posthearing list of purported admissions contained in the deposition, and Respondent filed a response thereto conceding that some of the statements by Respondent constituted admissions and that others did not. Those statements of Respondent which are deemed to constitute admissions are included in the following findings of fact.

Petitioner also sought to have its Request for Admissions deemed admitted pursuant to Rule 1.370, Florida Rules of Civil Procedure, due to Respondent's untimely response thereto. Respondent opposed Petitioner's request on the ground that his response was timely under the rules of discovery and, even if such rules were inapplicable in an administrative proceeding, he should be granted relief due to excusable neglect or inadvertence. Although Respondent's claims are not deemed meritorious, certain of the requests for admissions which were denied by Respondent were not in conformance with the evidence presented at the hearing. Those admissions which are properly considered to be within the scope of discovery requests are reflected in the following findings of fact.

The proposed recommended orders filed by the parties have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary or irrelevant, or unsupported in law or fact.

FINDINGS OF FACT

1. Respondent Nrisingha Das Mukherjee is licensed to practice medicine in the State of Florida, and was so licensed at all times material to the allegations in the Amended Administrative Complaint.

   
   

2. On October 1, 1979, Michael Marotta, then sixty years old, was admitted to the West Pasco Hospital, New Port Richey, Florida, by Dr. Jack Lund. His complaints were a severe cough and chest pains. He had experienced shortness of breath with increasing severity for several days prior to admission, with a productive cough and generalized malaise. He had a long-standing pulmonary history, including tuberculosis at age twenty, with right lower partial lobectomy in 1949. He had been treated for hypertension since 1954 or 1955. The physician's admission diagnosis was bronchial pneumonia. (Testimony of Michael Marotta, Reines, Petitioner's Exhibit 1)

   
   

3. During Marotta's hospitalization, it was determined by Dr. Lund that he had cancer of the colon. Dr. Lund then contacted the Respondent on October 9,

   1979, for assistance with the surgical management of the patient. Respondent determined that surgery was required, but called in Dr. Jeffrey Reines, a cardiologist and internist, for a consultation on October 10, 1979. (Testimony of Lund, Reines, Petitioner's Exhibit 1)

   
   

4. Dr. Reines examined the patient and his consultation report reflected impressions of atherosclerosis, possible coronary artery obstructive disease, chronic restrictive pulmonary disease, chronic obstructive pulmonary disease, resolving bronchitis or pneumonia, tachycardia, probable cecal carcinoma and an abnormal cardiogram. He found that the patient was a high-risk candidate for the contemplated surgical procedure because of his cardiac status and poor pulmonary status, and therefore felt it might be necessary to postpone the surgery for a short period of time for transfusional therapy, pulmonary function testing, and pulmonary psysiotherapy. (Testimony of Reines, Petitioner's Exhibit 1)

   
   

5. As a result of Dr. Reines' recommendations, surgery was postponed until October 15, 1979, at which time Respondent performed an exploratory laparotomy, a hemicolectomy, and a cholecystectomy on patient Marotta. During surgery, the patient experienced an episode of bradycardia for a short period of time whereby there was a decrease in the patient's heart rate and blood pressure. (Testimony of Reines, Petitioner's Exhibit 1)

   
   

6. After surgery, the patient suffered acute renal failure and he was transferred on October 16, 1979, to Community Hospital in New Port Richey for dialysis treatment. Since that time, he has had to remain on dialysis, and additionally has suffered impairment in balance and hearing functions. Marotta had never previously experienced kidney, balance or hearing problems. (Testimony of Reines, Michael Marotta, Marie Marotta, Petitioner's Exhibit 1)

   
   

7. Prior to the time that Respondent entered the case on October 9, 1979, Dr. Lund had prescribed drug therapy, including garamycin, penicillin, lasix, and lanoxin. Additionally, the patient was given an IV pyelogram (IVP) and cholecystogram which are used to determine kidney and gallbladder functions. Respondent prescribed erythromycin, neomycin, keflin, and utilized a neomycin wash during surgery. Prior to surgery, Respondent had also ordered an aminoglycocide for the purpose of cleansing the bowel of gram negative organisms. Dr. Reines had also ordered garamycin for the patient prior to surgery. After surgery, Respondent prescribed teflin, gentamycin, and lasix. However, all drugs were discontinued on October 16, 1979. (Testimony of Reines, Petitioner's Exhibit 1)

   
   

8. The antibiotic and other drugs used in the treatment of Marotta are potentially nephrotoxic, particularly when used by patients with impaired renal function. In addition otoxicity can occur in patients with preexisting renal damage who are treated with garamycin. It is therefore necessary that close monitoring of renal function be maintained even in patients with normal renal function if they develop evidence of nitrogen retention, as shown by laboratory tests. Neomycin presents similar problems and concurrent use of the two drugs, together with diuretics such as lasix, should be monitored closely for patients with impaired renal function. (Testimony of Willey, Petitioner's Exhibit 1, 4)

   
   

9. Tests performed on Michael Marotta when he was admitted to West Pasco Hospital indicated that there might be some kidney function impairment. However, during the course of treatment, his kidneys were monitored by standard tests and his kidney function was deemed to be adequate until subsequent to the

   surgical procedure. Conflicting evidence was received at the hearing concerning

   the adequacy of such testing. In addition, false BUN and creatinine test results purporting to have been performed on October 3, 5, and 7, 1979, were prepared and made a part of Marotta's medical record by an unknown person at an unknown time subsequent to the period of hospitalization. However, it is found that insufficient evidence was presented to establish that Respondent failed to adequately monitor the patient's condition during the period in which he provided treatment. (Testimony of Willey, Reines, Stadnitski, Shaneyfelt, Downey, Barr, Abbey, Petitioner's Exhibits 1, 3-5, 7)

   
   

10. Although the medications ordered by Respondent, in conjunction with those ordered by the other physicians in the case had potential nephrotoxic effect, it is found that they were administered as necessary to prevent serious infection in a patient who had advanced cancer. In such a situation, every effort must be made to prevent such infection by the use of antibiotics. In the opinion of an expert in the field of surgery, Dr. Joseph Abbey, the use of such medications in such an instance constitutes a calculated risk which is acceptable if the patient is well hydrated and monitored closely. His opinion conforms with that of Dr. Reines, the internist, who testified that the patient was in a life-threatening situation due to his overall poor physical condition which justified use of the medications in question because all of the patient's organs were threatened and he otherwise would have been subjected to peritonitis. He also felt that if the patient had been taken off diuretics, he probably would have gone into congestive heart failure. Since the patient had acute tracheal bronchitis, he felt that no less toxic antibiotics could have been given to the patient than were used during the course of treatment. (Testimony of Abbey, Reines)

    
    

11. Dr. Reines was also of the belief that the patient's renal failure was exclusively caused bye the bradycardia episode that had occurred during surgery. This opinion was disputed by Petitioner's expert pathologist, Dr. Edward Willey, who testified that the kidney failure had been caused by the cumulative effects of toxic drugs and dyes administered to the patient. He was, of the opinion that the period of bradycardia had a relatively insignificant effect on the patient's renal condition. However, the nephrologist who examined Marotta on October 16, 1979, was of the view that renal failure was "probably secondary to possible hypotensive episode intra-operatively and nephrotoxic drugs." (Testimony of Reines, Willey, Petitioner's Exhibit 1)

    
    

12. At some undetermined time after Respondent had made original entries in Marotta's medical records, he made additional entries on various pages concerning various laboratory tests that had been made during the course of treatment. No evidence was presented that these late entries were inaccurate or misleading. Additional late entries were made on several pages of the record, including the signed patient consent to surgery form on October 14, 1979. Paragraph 6 of the printed form reflected that the nature and purpose of the operation, possible alternative methods of treatment, the risks involved, and the possibility of complications had been fully explained. At the bottom of the form in handwriting, Respondent had added a handwritten note stating that he had explained in detail the pros and cons of surgery to the patient, and that the mortality and morbidity of the surgery and medical treatment had been discussed. In several other instances, Respondent had added similar notes in handwriting on pages of the record stating that he had discussed with the patient and/or his family the "bad risks involved for surgery and medical management," "the risk of surgery in the face of poor lung function and kidney function," and "Bowel prep with neo and Erythromicin discussed with patient - risk explained." At least one of these late entries had been made sometime in 1981 after the records had been numbered by hospital personnel. One of the other entries reflected the

    correction of the erroneous date of "10/10/80" to 10/10/79. All of the entries purported to have been made on dates during October 1979. Although it is not unusual for physicians to make late entries to complete the hospital records after a patient is discharged, and to date the delayed entry as the date that treatment was given, normally this is accomplished in a relatively short period of time unless there are multiple physicians involved in the case. It would be rare that an entry was dated over a year after discharge of the patient. Both Michael Marotta and his wife denied that they were ever advised by Respondent that the medications in question were dangerous to or could affect the kidneys. (Testimony of Shaneyfelt, Robinson, Michael Marotta, Marie Marotta, Petitioner's Exhibits 1, 6)

    
    

13. Respondent has a reputation in the local medical community as a competent and respected surgeon since his arrival in New Port Richey some five or six years ago. (Testimony of Marlow, Lincer, Wright, Stipulated testimony of Abbey)

    
    

    CONCLUSIONS OF LAW

    
    

14. Petitioner seeks to take disciplinary action against Respondent pursuant to Section 458.331, Florida Statutes.

    
    

15. Count 1 of the Administrative Complaint seeks to discipline Respondent under the provisions of subsection 458.331(t), Florida Statutes, for gross or repeated malpractice or 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. Specifically, it is alleged that, during his treatment of Michael Marotta, the Respondent, either individually or in concert with other attending physicians, ordered or prescribed certain nephrotoxic drugs and tests containing dyes which are nephrotoxic that were administered to the patient during his hospitalization. It is further alleged that Marotta suffered from renal impairment which fact was known or should have been known by the Respondent and that Respondent failed to appropriately monitor the medication regime or the effects thereof, and that Marotta suffered renal failure, vestibular impairment, and cochlear impairment as a result of the combination of nephrotoxic substances and dehydration. It is also alleged that a reasonably prudent similar physician would have monitored Marotta's kidneys for toxicity, but that Respondent did not do so.

    
    

16. As heretofore found, the evidence fails to establish that Respondent was derelict in his treatment of Marotta, or otherwise engaged in malpractice or unacceptable medical practice as alleged, notwithstanding the severe and unfortunate consequences that followed the surgery performed on the patient.

    
    

17. Counts 2 through 4 of the Administrative Complaint allege violations of the following provisions of Section 458.331(1), Florida Statutes:

    
    

    458.331 Grounds for disciplinary action; action by the board.--

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       1. Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or

    record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which were signed in the capacity as a licensed physician.

    * * *

    (i) Making deceptive, untrue, or fraudulent representations in the practice of medicine

    or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.

    (l) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.

    
    

18. The evidence is deemed insufficient to justify a conclusion that Respondent violated Section 458.331(1)(i) by filing false reports, as alleged by Petitioner.

    
    

19. However, the evidence does establish that the Respondent made numerous late additions to the patient record of Michael Marotta, and that at least one of those additions was made over a year after the patient's discharge from the hospital. Under the totality of the circumstances, it is concluded that the late additions were misleading and deceptive, and that therefore Respondent is subject to disciplinary action under Section 458.331(1)(l), Florida Statutes. For the same reasons, it is also concluded that Respondent failed to keep medical records justifying the course of treatment of the patient, thus subjecting him to discipline under Section 458.331(1)(n), Florida Statutes.

    
    

20. In assessing an appropriate penalty in this case, recognition is taken of the fact that Respondent enjoys a good reputation in his community and that there is no evidence that he has previously been disciplined. It is further noted that over four years have elapsed since Respondent's treatment of the patient in question. Accordingly, it is considered that a written reprimand and an administrative fine of $2,000 is an adequate penalty under the circumstances.

RECOMMENDATION

That a written reprimand be issued to Respondent Nrisingha Das Mukherjee, and that an administrative fine of $2,000 be imposed for violation of Sections 458.331(1)(l) and (n), Florida Statutes, pursuant to Section 458.331(2), Florida Statutes.

DONE and ORDERED this 30th day of April, 1984, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 30th day of April, 1984.

COPIES FURNISHED:

William M. Furlow, Esquire

Department of Professional Regulation Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Paul B. Johnson and

J. Michael Hayes, Esquires Post Office Box 3416 Tampa, Florida 33601

Glen M. Woodworth, Esquire 6950 Central Avenue

Suite 120

St. Petersburg, Florida 33707

Dorothy Faircloth, Executive Director Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Honorable Fred Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION THE BOARD OF MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DOAH CASE NO. 83-2677

vs. DPR CASE NO. 0031752

NRISINGHA DAS MUKHERJEE, M.D. LICENSE NO. 30764,

Respondent.

/

FINAL 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 William M. Furlow, Esquire; Respondent, Nrisingha Das Mukcherjee, M.D. was represented by Paul B. Johnson, Esquire and J. Michael Hayes, 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

1. Paragraphs 1-8 and 11-13 of the hearing officer's findings of fact are approved and adopted and are incorporated by reference herein.

   
   

2. In paragraph 1 of his exceptions, Petitioner maintains that the hearing officer erred in finding in paragraph 9 of the recommended order that there was competent, substantial evidence that patient Michael Marotta was adequately monitored by Respondent. Based upon a review of the complete record, the Board accepts the exception posed by Petitioner and finds that there is no competent, substantial evidence to support the hearing officer's findings in paragraph 9 of the recommended order that patient Michael Marotta was adequately monitored by Respondent. The Board adopts paragraph 9 of the recommended order as amended by Petitioner's exception 1 above.

   
   

3. In paragraph 2 of his exceptions, Petitioner maintains that the hearing officer erred in finding in paragraph 10 of the recommended order that there was competent, substantial evidence that patient Michael Marotta had a serious infection. Based upon a review of the complete record, the Board rejects the exception posed by Petitioner and adopts the findings of the hearing officer in paragraph 10 of the recommended order.

4. In paragraph 3 of his exceptions, Petitioners requests that the Board adopt an additional finding of fact that Respondent failed to explain to or warn the dangers of the medical regimen to patient Michael Marotta. Based upon a review of the complete record, the Board finds that there is no competent, substantial evidence to support the additional finding.

   
   

5. There is competent, substantial evidence to support the Board's findings of fact.

CONCLUSIONS OF LAW

1. The hearing officer's conclusions of law are approved and adopted in toto and are incorporated by reference herein.

   
   

2. There is competent substantial evidence to support the Board's conclusions of law.

PENALTY

Based upon a review of the complete record, the Board determines that the penalty recommended by the hearing officer be modified to include community service as a condition of probation. Therefore, it is hereby

ORDERED AND ADJUDGED that Respondent be and hereby is reprimanded; that Respondent pay an administrative fine of $2,000.00 to the department within 30 days from rendition of this Order; that Respondent perform 100 hours of community medical service; and that Respondent be placed on probation for one year. Respondent is not required to appear before the Board as a condition of 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 Nrisingha Das Mukherjee, M.D.

Docket for Case No: 83-002677

Orders for Case No: 83-002677