STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 85-1418
)
ORLANDO J. ZALDIVAR, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, duly designated Hearing Officer of the Division of Administrative Hearings, on October 2, 1985, in Miami, Florida.
APPEARANCES
For Petitioner: Stephanie A. Daniel, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Harold M. Braxton, Esquire
45 Southwest 36th Court Miami, Florida 33135
On February 4, 1985, the Petitioner filed an Amended Administrative Complaint against Orlando J. Zaldivar, M.D. In Count I of the Complaint the Petitioner alleged that the Respondent had violated Section 458.331(1)(t), Florida Statutes (1981). In Count 2 of the Complaint the Petitioner alleged that the Respondent had violated Section 458.331(1)(1), Florida Statutes (1981).
On February 20, 1985, the Respondent executed an Election of Rights in which he requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.
The Amended Administrative Complaint and the Election of Rights were filed with the Division of Administrative Hearings on May 2, 1985.
At the final hearing, the Petitioner presented the testimony of Ms. Jane Carroll, Alan Gordon Walker McLeod, M. D., Jorge Vallejo, M.D., Mr. Frank Norwich, Ms. Gloria C. Betancourt, Mr. Alan Blake and Mr. Hugh Fitzpatrick. Dr. McLeod and Dr. Vallejo were accepted as experts in obstetrics and gynecology. Mr. Norwich was accepted as an expert in the area of document examination and handwriting analysis.
The Petitioner offered Petitioner's Exhibits 1-9 at the final hearing. All were accepted into evidence except Petitioner's Exhibits 5 and 9. A ruling on Petitioner's Exhibits 5 and 9 was reserved. Exhibit 5 is hereby accepted into evidence. Exhibit 9 is rejected. Exhibit 9 is the deposition testimony of Walter E. Furr, M.D. Dr. Furr's deposition was offered as the deposition of an expert or skilled witness pursuant to Rule 1.330(a)(3)(F), Florida Rules of Civil Procedure. Dr. Furr's deposition testimony was not taken as the testimony of an expert or skilled witness. His testimony was taken as the testimony of an attending physician. Therefore, Petitioner's Exhibit 9 is not admissible pursuant to Rule 1.330(a)(3)(F), Florida Rules of Civil Procedure.
The Petitioner also offered prior testimony of Elaine Prater. Ms. Prater's testimony has been identified as Petitioner's Exhibit 10 and is accepted into evidence pursuant to Section 90.804(2)(a), Florida Statutes (1984 Supp.).-
The Respondent offered no testimony or evidence at the final hearing.
Following the conclusion of the final hearing, the Respondent's counsel filed a Motion to Withdraw. By Order dated December 4, 1985, the Motion to Withdraw was granted. On November 3, 1985, a Motion to Substitute as Attorney of Record was filed on behalf of the Respondent. This Motion was not received until December 9, 1985. The Motion is hereby granted.
The parties submitted proposed findings of fact pursuant to Section 120.57(1 (b)4, Florida Statutes (1984 Supp.). A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order. Additionally, attached to this Recommended Order is an Appendix which indicates where proposed findings of fact which have been accepted have been
made in this Recommended Order and why proposed findings of fact which have not been accepted have been rejected. The Appendix is hereby incorporated as a part of the Findings of Fact portion of this Recommended Order.
ISSUES
Did the Respondent violate Section 458.331(1)(t), Florida Statutes (1981),.by failing to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances?
Did the Respondent violate Section 458.331(1)(1), Florida Statutes (1981), by employing a trick or scheme in the practice of medicine when such trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community?
FINDINGS OF FACT
At all times material hereto, the Respondent was a licensed physician in the State of Florida. The Respondent held Florida license number ME 0034228.
Between December 19, 1981, and December 22, 1981, Ms. Jane Carroll went to the Women's Care Center in Miami, Florida. Ms. Carroll went to the Women's Care Center because she believed she was pregnant and wished to obtain an abortion. Ms. Carroll was 21 years of age.
After arriving at the Women's Care Center, Ms. Carroll was given a bimanual pelvic examination. This examination consisted of the placing of two fingers in Ms. Carroll's vagina and pressing on her lower abdomen to determine the size of her uterus. Ms. Carroll was given a pregnancy test and she completed a Medical History Form in which she provided information concerning her medical history.
During Ms. Carroll's first visit to the Women's Care Center, Ms. Carroll was told that the abortion would cost
$625.00.
On December 29, 1981, Ms. Carroll returned to the Women's Care Center for the purpose of obtaining the abortion. Ms. Carroll was driven to the Women's Care Center by Gloria and Alan Blake, who were friends of Ms. Carroll. Ms. Carroll
arrived at the Women's Care Center at approximately 9:00 a.m. Ms. Carroll only had $400.00 when she arrived at the Women's Care Center. The Blakes left to obtain the additional $225.00 needed by Ms. Carroll. At approximately 10:00 a.m. Mr. Blake returned to the Women's Care Center with the additional $225.00. Mr. Blake gave the money to Ms. Carroll and then left the Women's Care Center. Ms. Carroll was to call Mr. Blake after the abortion was completed and Mr. Blake was to return to the Women's Care Center to give Ms. Carroll a ride home.
Between 9:00 a.m. and 10:00 a.m. Ms. Carroll waited in the area of the Women's Care Center where the receptionist was located. She signed a Women's Care Center form acknowledging receipt of certain information and consenting to the procedure to be performed. The form described the procedure to be followed the anesthesia to be used, general complications associated with abortions and the responsibilities of Ms. Carroll and the Women's Care Center in the event of negligence. Ms. Carroll indicated on the form that her last menstrual period had begun on October 20, 1981.
At approximately 10:30 a.m. Ms. Carroll was given a gown which she put on. At approximately 11:00 a.m. Ms. Carroll was taken to a room in the Women's Care Center where the abortion was to be performed.
There were three individuals in the room where Ms. Carroll was taken: a woman dressed in white like a nurse, a man by the name of Mr. Barreiro and the Respondent.
Ms. Carroll was placed onto a table in the room. Mr. Barreiro stood at her right and the Respondent was standing at the foot of the table. The woman dressed in white went in and out of the room. The Respondent performed a gynecological examination on Ms. Carroll.
Mr. Barreiro assured Ms. Carroll that everything would be fine while the Respondent worked with a suction machine. Mr. Barreiro then gave Ms. Carroll an injection and Ms. Carroll quickly fell asleep. This occurred at approximately 11:30 a.m.
After Ms. Carroll was anesthetized, the Respondent began to terminate Ms. Carroll's pregnancy by dilation and evacuation followed by curretage. After beginning the procedure, the Respondent determined that the fetus was larger than the Respondent had expected. The Respondent also believed that Ms. Carroll's uterus had been perforated. Therefore, the
Respondent terminated the procedure without removing all of the fetus.
Ms. Carroll awoke sometime after receiving the injection administered by Mr. Barreiro. As she awoke she heard the sound of a suction machine going off. She felt a pain in her abdomen like a knife. Mr. Barreiro and the Respondent were still present and she was in the same room. Mr. Barreiro and the Respondent helped Ms. Carroll into a wheelchair at which time she told them that she was in pain. She was assured that everything was fine and was taken to a small alcove in the back of the building.
Upon arriving at the small alcove, which was used as a recovery room, Ms. Carroll was placed on a bed. Ms. Carroll again told Mr. Barreiro and the Respondent that she was in a great deal of pain.
While in the recovery room, Ms. Carroll experienced continuous pain which she described as a punching and stabbing sensation in her abdomen. She continued to tell Mr. Barreiro, the Respondent and the woman dressed in white that she was in pain. Ms. Carroll was given pills and told that she was fine. Ms. Carroll was also told that she could go home.
In addition to the pain, Ms. Carroll was cold and had difficulty breathing. Her feet, legs and hands became numb. She also floated in and out of consciousness.
At some point the Respondent examined Ms. Carroll and Ms. Carroll observed the Respondent removing gauze from her vagina. The gauze was soaked in blood and when it was removed by the Respondent blood "gushed" out of her vagina. Clean gauze was then placed by the Respondent in her vagina. Ms. Carroll was given Ergotrate and Oxytocin which are used to stop bleeding.
Ms. Carroll communicated the pain and the numbness she was experiencing to the Respondent, Mr. Barreiro and the woman dressed in white.
At some point another woman was brought to the recovery room. The woman remained in the room for 30 to 40 minutes and then left. When the woman left, Mr. Barreiro told Ms. Carroll that she should also leave stating, "See. See, she left. She's fine. Now why can't you go? We're closing soon. You've got to go."
Ms. Carroll could not walk. In order to vomit, Ms. Carroll had to crawl to where she vomited. She told the Respondent, Mr. Barreiro and the woman in white that she could not leave. Despite these facts, Ms. Carroll was repeatedly told to leave.
At sometime while in the recovery room, Ms. Carroll heard someone at the Women's Care Center talking on the telephone and telling someone that Ms. Carroll had already left.
The pain, numbness and inability to breathe which Ms. Carroll experienced continued from the time she was taken to the recovery room until she was eventually taken to the hospital. She continued to communicate the fact that she was in pain to the individuals who were in the room. The conversations she had were primarily with the woman in white and Mr. Barreiro. Although she did not have any direct conversation with the Respondent, the Respondent was present when she reported her condition. Throughout the time that she was in the recovery room, Ms. Carroll was given pills and told that she could go home, despite her complaints and the bleeding.
The Blakes waited at home for Ms. Carroll to call them so that they could go pick her up and give her a ride home from the Women's Care Center to her apartment where her car was. At approximately 4:30 p.m. Gloria Blake called the Women's Care Center. Ms. Blake told Mr. Blake that she had been told by someone at the Women's Care Center that Ms. Carroll had already left. Mr. Blake believed that Ms. Carroll did not have any way of leaving the Women's Care Center. Therefore, Mr. Blake went to the Women's Care Center.
Mr. Blake arrived at the Women's Care Center at approximately 4:45 p.m. or 5:00 p.m. The entrance to the Women's Care Center was being closed and locked when he arrived. Mr. Blake pushed his way into the building and asked where Ms. Carroll was. He was told that she was resting. Mr. Blake asked Mr. Barreiro how Ms. Carroll was and was told that "she's had a little problem, but everything is going to be okay. She's resting." Mr. Blake was told that he could not see Ms. Carroll yet.
Mr. Blake next talked to the Respondent. When the Respondent was asked where Ms. Carroll was, the Respondent told him that she was in the back and that she was resting. The Respondent also told Mr. Blake that "things did not go well."
Mr. Blake asked the Respondent what he meant by that statement and the Respondent told Mr. Blake "the baby was too big and I couldn't get everything out and it was coming out in pieces."
At approximately 5:00 p.m. or 5:15 p.m., following Mr. Blake's conversation with the Respondent, Mr. Blake went back to the recovery room where Ms. Carroll was located. Ms. Carroll was doubled up on the bed, she was pale and sweaty and her eyes were dilated. Ms. Carroll was writhing and moaning and groaning. Gauze soaked with blood was located in Ms. Carroll's groin area. Mr. Blake witnessed the woman in white replace bloody gauze. Mr. Blake remained with Ms. Carroll in the recovery room for approximately ten minutes.
Mr. Barreiro indicated to Mr. Blake that Ms. Carroll was to be taken to a hospital. Mr. Blake was ultimately told that Ms. Carroll would be taken to Hialeah Hospital and Mr. Blake left.
Ms. Carroll did not recall whether anyone took her pulse, respiration or blood pressure prior to the abortion. She also did not recall whether anyone took her pulse or blood pressure while she was in the recovery room because she was in and out of consciousness. Mr. Blake did not see any medical equipment such as a stethoscope or blood pressure cuffs in the recovery room. Mr. Blake was only in the recovery room for about ten minutes, however, Ms. Carroll's pulse and blood pressure readings were abnormal when she arrived at Hialeah Hospital. This fact is insufficient to support an inference that the Respondent failed to monitor her vital signs, however. Based upon the foregoing, it is concluded that the evidence does not establish if the Respondent failed to monitor Ms. Carroll's vital signs or did in fact monitor Ms. Carroll's vital signs.
After Mr. Blake left the Women's Care Center, the Respondent and Mr. Barreiro took Ms. Carroll to Hialeah Hospital. They arrived at the hospital at approximately 6:51
p.m. on December 29, 1981.
Upon arrival at the hospital emergency room, Ms. Carroll's pulse rate was 108 beats per minute, her respiration rate was 24 per minute and her blood pressure was "50/?". Nurse's notes described Ms. Carroll as "diaphoretic [sweaty] with vaginal bleeding." Physician's notes indicated that Ms. Carroll's abdomen was distended with generalized rigidity and rebound tenderness.
Between approximately 7:00 p.m. and 8:00 p.m., Dr. Jorge Vallejo, M.D., was called and asked by Dr. Esquivel, an emergency room physician, to come to the hospital to examine Ms. Carroll. Dr. Vallejo complied with this request. Based upon Dr. Vallejo's examination, Ms. Carroll was in shock and had a distended and tender abdomen, with muscle rigidity. Dr. Vallejo determined that Ms. Carroll was in shock because she had very low blood pressure, a rapid pulse and she was faint, diaphoretic and obtundant. Because of the condition of her abdomen, Dr. Vallejo suspected that there was peritoneal irritation caused by blood in her abdominal cavity. Peritoneal irritation is irritation of the peritoneum, a membrane that separates the abdominal wall from the bowels. If pus or blood gets into this area, the mucosa becomes irritated, which causes pain. Peritonitis would have occurred shortly after the Respondent stopped the abortion because one of the two main arteries in Ms. Carroll's uterus had been severed. The severed artery released blood into Ms. Carroll's abdominal cavity.
Dr. Vallejo concluded that Ms. Carroll was bleeding internally and she was rushed to surgery. In surgery Ms. Carroll was examined vaginally with uterine sound and determined to have a "huge perforation" of her uterus. Therefore Ms. Carroll's abdomen was opened. Ms. Carroll's uterus had been torn from the cervix to the cornu (from the top of her uterus to the bottom). She also had a blood formation in her pelvic wall and the artery on the right side of her uterus had been severed.
Ms. Carroll's abdomen contained between three and four liters of blood. There are only about four liters of blood in the body.
Dr. Vallejo performed a partial hysterectomy on Ms. Carroll, removing her uterus. Dr. Vallejo was assisted by Walter Furr, M.D.
Several fetal parts were found in Ms. Carroll's abdominal cavity and were removed: a mascerated scalp, nose, upper legs, palate and neck measuring 8.0 x 3.5 x 5.0 cm. and the lower abdomen, buttocks, perineum and upper thighs measuring
8.0 x 6.0 x 3.0 cm. Based upon the size of these female fetal parts, the fetus was between five and five and a half months old.
An initial physical examination of a pregnant woman, if a termination of pregnancy is anticipated, should consist of a determination of the medical history of the woman (past
illnesses, past medical problems and history of biology) and a physical examination of the woman. The physical examination of the woman should consist of confirming anything brought to light by her medical history, an examination of her abdomen, her uterus and other areas of the body and a pelvic examination to confirm the size of the uterus. The size of the uterus is determined by abdominal palpation and pelvic examination.
As the period of gestation increases, the fetus matures and becomes larger and the uterus increases in size. The age of the fetus and the size of the uterus must be determined in order to determine what method of abortion is to be used. At ten weeks of pregnancy, the uterus is normally within the pelvis and is palpable. At seventeen weeks the uterus is about half way to the umbilicus (the bell button) and the cervix is long and closed. At twenty weeks the uterus is usually around the umbilicus. The cervix softens later in
pregnancy and will dilate more readily. A physician should have a good idea based on a physical examination as to how long a patient has been pregnant based upon the location of the uterus.
The methods of terminating a pregnancy include dilation and curretage, dilation and evacuation with suction curretage, dilation and evacuation and injection of substances into the cavity of the uterus which initiates uterine contractions. Dilation and curretage involves dilation of the cervix and the removal of the products of conception by means of ring forceps and a curette. A curette is a thin instrument with a little loop at the end, one edge of which is sharp, used to scrape the wall of the uterus. This method is used during the first three months of pregnancy and is performed under a local anesthesia or general anesthesia. Dilation and evacuation using suction curretage is also used during the early stages of pregnancy. Dilation and evacuation involves dilation of the cervix and removal of the fetus piecemeal. This method is usually used up to the eighteen week of pregnancy. Methods involving injections include the injection of saline solution or prostaglandins. These methods are used for later pregnancies. The injected substance initiates uterine contractions causing the patient to abort.
If dilation and evacuation is used, the cervix must be properly dilated. If the pregnancy is further along (up to about eighteen weeks) the cervix must be prepared ahead of time because the cervix is often firm and will not dilate quickly. Laminaria is inserted the night before the abortion to prepare the cervix.
The problems associated with abortion methods involving suction and curretage include the possibility that the uterus may be damaged when the cervix is dilated or by use of the curette. The major complication is that the uterus may be perforated. Another possible complication is that the tissue of the pregnancy may not be completely removed resulting in infection or bleeding. The latter complication is a possibility of all of the methods. The same complications may be experienced when dilation and evacuation is employed. Also, the uterus may be perforated by pieces of the fetus, which is more mature and must be broken into pieces, or the cervix could be torn. The risks of using injections of saline or prostagladin include an adverse reaction to the saline or prostagladin, failure to abort and failure to abort all of the tissue of pregnancy.
Once a procedure is selected and the abortion is started, if the physician believes that the patient's uterus has been perforated and that fetal parts remain in the patient's body, the physician should take steps to determine if the uterus has in fact been perforated and to remove all of the tissue of the pregnancy. If the abortion is being performed in a clinic and not a hospital, the patient should be transferred to a hospital (where exploratory surgery can be performed) as soon as the physician suspects that the uterus has been perforated.
If a physician suspects that a patient's uterus has been perforated it may not be possible to remove all of the fetal parts. In such a case, the patient should be transferred to a hospital, if the abortion is being performed in a clinic, at once. If a physician suspects that the uterus has been torn and therefore cannot remove all of the fetus, it is inappropriate to delay transferring the patient to a hospital.
An abortion can be completed in a matter of minutes, under certain circumstances. If, however, difficulties are encountered during the abortion, one hour should be enough. If the procedure cannot be completed within an hour, the abortion should be halted.
Ms. Carroll's abortion began at approximately 11:30
a.m. Because the Respondent encountered difficulties during the abortion (including a possible tear in Ms. Carroll's uterus and the Respondent's inability to remove all of the tissue of pregnancy), the procedure should have been terminated by approximately 12:30 p.m.
Once an abortion is completed, the patient should be observed to insure that there is no evidence of bleeding either from below or intra-abdominally. Unless the physician suspects that the patient's uterus has been perforated or that fetal parts remain, the patient should be observed until the physician is sure the patient is completely stable. During this time the patient should be observed to determine the amount of bleeding. There is a normal amount of bleeding after any abortion. The flow of blood is normally small, however, and should diminish over the next few hours. The patient should also be observed for any abdominal discomfort or distention and the patient's vital signs, including pulse and blood pressure, should be checked. If the patient is further along in the pregnancy and the uterus is large enough for the physician to feel the uterus through the abdominal wall, then the uterus should be palpated to determined if it is firmly contracted which is important in stopping bleeding.
Symptoms of hypovolemia (lack of circulating blood volume) following an abortion include numbness of the hands, feet and legs, difficulty in breathing, difficulty in getting around and acute, persistent pain. This is especially true if the patient is also bleeding. If a patient is experiencing these symptoms, the physician should look for evidence of internal or external bleeding. The patient's blood pressure and pulse should be monitored.
The Respondent knew or should have known within a short time after stopping Ms. Carroll's abortion that her uterus had been perforated, that she was suffering from hypovolemia and that she was probably experiencing internal bleeding. The Respondent also knew or should have known that not all of the fetal parts had been removed from Ms. Carroll. An examination of the fetal parts which the Respondent did remove would have revealed that not all of the tissue of pregnancy had been removed. Additionally, the Respondent indicated to Mr. Blake that he believed that he had not removed all of the fetal parts.
Perforation of the uterus was not, in and of itself, malpractice. Rapid dilation of the cervix is also not malpractice. A decision to use dilation and evacuation or suction and curretage for a woman who is between seventeen weeks and five and a half months pregnant is not malpractice.
The Respondent failed to practice medicine within minimally acceptable standards of care, skill and treatment as
recognized by reasonably similar prudent physicians under similar conditions and circumstances, and failed to practice medicine within prevailing community standards of care, skill and treatment, in that he failed to appropriately manage Ms. Carroll's bleeding and failed to immediately transport Ms.
Carroll to a facility where the internal bleeding Ms. Carroll was experiencing could be properly treated and where the fetal parts still in her body could be removed. The Respondent waited approximately five and a half hours to six and a half hours after terminating the abortion to transport Ms. Carroll to a hospital. Based upon Ms. Carroll's symptoms after the abortion, Ms. Carroll should have been transported to a hospital immediately after the abortion was terminated and the Respondent suspected that her uterus had been perforated.
No evidence was presented at the hearing to establish that the Respondent has been found guilty of any prior violations of Section 458.331, Florida Statutes.
It does not appear that the Respondent employed a trick or scheme in his treatment of Ms. Carroll.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1984 Supp.).
Section 458.331(2), Florida Statutes (1981), authorizes the Board of Medical Examiners to enter orders imposing one or more of the penalties specified in Section 458.331(2) if the Board finds a licensee guilty of any of the acts set forth in Section 458.331(1), Florida Statutes (1981). The Respondent has been charged with having committed two of those prohibited acts.
The penalties which-may be imposed under Section 458.331(2) include one or more of the following:
Refusal to certify to the department an application for licensure.
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.
Section 458.331(2), Florida Statutes (1981).
In the Amended Administrative Complaint filed against the Respondent, the Respondent has been charged with having violated the following prohibited acts under Section 458.331(1), Florida Statutes (1981):
(1) . . . 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.
....
(t) . . . 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 particular, the Respondent has been charged in the Amended Administrative Complaint with having violated Sections 458.331(1)(1) and (t), Florida Statutes (1981), for one or more of the following reasons:
Respondent used the dilation and evacuation and/or suction and curretage method to terminate Carroll's pregnancy when said procedure was inappropriate because of
either the stage of fetal development and/or inadequate preparation of Carroll's cervix;
Respondent failed to adequately monitor Carroll's vital signs by periodically checking Carroll's blood pressure, respiration and pulse rate following termination of the abortion;
Respondent failed to appropriately manage the hemorrhage which resulted after termination of Carroll's abortion;
Respondent failed to check that all fetal parts had been appropriately removed; and/or
Respondent failed to immediately transport Carroll to a facility where the bleeding could be stopped and appropriate treatment could be instituted to remove the fetal parts and uterus from Carroll's body.
This proceeding involves a statute providing grounds for the revocation of a license and is therefore considered penal in nature. Because the statute is penal in nature it must be strictly construed and strictly followed. S. Bach v. Florida State Board of Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1980).The Petitioner is required to prove its charges by clear and convincing evidence. Lewis v. Planned Financial Services, 340 So. 2d 941 (Fla. 4th DCA 1976).
The evidence presented in this proceeding clearly proves that the Respondent performed an abortion on Jane Carroll on December 29, 1981. During the course of the abortion the Respondent perforated Ms. Carroll's uterus. The perforation ran the entire vertical length of Ms. Carroll's uterus on the right side and severed one of the two main arteries in her uterus.
The Respondent suspected that he had torn Ms. Carroll's uterus and therefore he properly stopped the abortion. When the Respondent stopped the abortion he knew or should have known that a large part of the tissue of pregnancy had not been removed from Ms. Carroll.
Although the Respondent suspected that Ms. Carroll's uterus had been perforated and knew or should have known that not all of the tissue of pregnancy had been removed, the
Respondent did not immediately take Ms. Carroll to a hospital where proper steps could be taken to determine if her uterus had in fact been perforated and to remove the remaining parts of the fetus. Instead, Ms. Carroll was given medications designed to stop bleeding and Ms. Carroll's vagina was stuffed with gauze.
Despite the fact that these measures were not successful and Ms. Carroll continued to bleed and was experiencing the symptoms of hypovolemia, the Respondent waited for approximately five and a half to six and half hours after the abortion should have been terminated to transport Ms. Carroll to the hospital where she could receive appropriate care.
By the time Ms. Carroll arrived at the hospital, most of the blood in her body was in her abdominal cavity and she was in shock. She was also suffering from peritonitis.
The evidence fails to establish that the Respondent has violated Section 458.331(1)(1), Florida Statutes (1981), for any of the reasons set out in the Amended Administrative Complaint. In order for the Respondent to be guilty of violating the portion of this Section the Respondent has been charged with violating in the Amended Administrative Complaint, it must be proved that the Respondent employed a trick or scheme in the practice of medicine that did not conform to the generally prevailing standards of treatment in the medical community.
It is also a violation of Section 458.331(1)(1), Florida Statutes (1981), to make deceptive, untrue or fraudulent representations in the practice of medicine. The Petitioner, however, did not charge the Respondent in the Amended Administrative Complaint with having made deceptive, untrue or fraudulent representations in the practice of medicine.
There are five reasons set out in the Amended Administrative Complaint why the Respondent is allegedly guilty of violating Section 458.331(11(1), Florida Statutes (1981). Even it the evidence established that all five of those actions occurred and that they did not conform to the generally prevailing standards of treatment in the medical community, the evidence does not establish that the Respondent employed a trick or scheme which failed to conform to the generally prevailing standards of treatment in the medical community.
Additionally, the evidence fails to support a conclusion that the Respondent is guilty of two of the specific reasons why the Respondent is allegedly guilty of violating Section 458.331(1)(1) set out in the Amended Administrative
Complaint: (1) failure to adequately monitor Ms. Carroll's vital signs; and (2) failure to check that all fetal parts had been appropriately removed.
As to the alleged failure to monitor Ms. Carroll's vital signs, Ms. Carroll specifically indicated that she had no idea whether her vital signs had been monitored because she kept going in and out of consciousness. Mr. Blake testified that he had not seen any equipment which could have been used to monitor Ms. Carroll's vital signs in the recovery room. Mr. Blake, however, was only in the recovery room for ten minutes. The evidence is insufficient to conclude whether the Respondent failed to monitor Ms. Carroll's vital signs.
As to the alleged failure to check that all fetal parts had been removed, the evidence clearly establishes that the Respondent knew that he had failed to remove all of the fetal parts, based upon his statement to Mr. Blake. The evidence does not establish that the Respondent failed to "check" that all fetal parts had been removed.
Finally, even if it could be concluded that the Respondent employed a trick or scheme in his treatment of Ms. Carroll and that all five of the reasons why the Respondent is allegedly guilty of violating Section 458.331(1)(1), Florida Statutes (1981), were proven, the evidence supports a conclusion that only two of the particular actions alleged in the Amended Administrative Complaint-to support a finding of a violation of Section 458.331(1)(1), Florida Statutes (1981), failed to conform to the generally prevailing standards of treatment in the medical community: (1) the failure to appropriately manage the bleeding; and (2) the failure to immediately transport Ms. Carroll to a facility where the bleeding could be stopped and all fetal parts could be removed.
Based upon the foregoing, it is concluded that the Respondent is not guilty of violating Section 458.331(1)(1), Florida Statutes (1981).
The evidence does clearly establish that the Respondent is guilty of violating Section 458.331(1)(t), Florida Statutes (1981), for two of the reasons set out in the Amended Administrative Complaint. This Section requires proof that the Respondent is guilty of gross or repeated malpractice or failure to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
The Amended Administrative Complaint, however, does not allege that the Respondent is guilty of gross or repeated malpractice.
The evidence clearly establishes that the Respondent failed 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 that the Respondent failed to appropriately manage Ms. Carroll's bleeding and failed to immediately transport Ms. Carroll to a hospital where the bleeding could be stopped and all fetal parts could be removed.
The evidence does not establish that the Respondent is guilty of violating Section 458.331(1)(t), Florida Statutes (1981), because of the method used for the abortion. Nor does the evidence, as already concluded, support a conclusion that the Respondent failed to monitor Ms. Carroll's vital signs or check that all fetal parts had been appropriately removed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That the Respondent be found not guilty of violating Section 458.331(1)(1), Florida Statutes (1981). It is further
RECOMMENDED:
That the Respondent be found guilty of violating Section 458.331(1)(t), Florida Statutes (1981). It is further
RECOMMENDED:
That the Respondent's license to practice medicine in the State of Florida be suspended for a period of three (3) years.
It is further RECOMMENDED:
That the Respondent's license to practice medicine in the State of Florida be placed on probation following the three year suspension for a period of two (2) years, subject to such conditions as the Board of Medicine may specify.
DONE and ENTERED this 26th day of December, 1985, in Tallahassee, Florida.
LARRY J. SARTIN
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 26th Day of December, 1985.
APPENDIX
The parties have submitted proposed findings fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reason for their rejection has also been noted. Paragraph numbers in the Recommended Order are referred to as "RO."
Petitioner's Proposed Findings of Fact:
Paragraph 1: RO 1.
Paragraph 2: RO 2.
Paragraph 3: RO 3 and 4.
Paragraph 4: RO 3.
Paragraph 5: RO 5.
Paragraph 6: RO 5.
Paragraph 7: RO 5.
Paragraph 8: RO 6.
Paragraph 9: RO 7.
Paragraph 10: RO 8.
Paragraph 11: RO 9.
Paragraph 12: RO 9 and 27.
Paragraph 13: RO 10.
Paragraph 14: RO 10.
Paragraph 15: RO 11.
Paragraph 16: RO 12.
Paragraph 17: RO 12 and 13. Ms. Carroll did not begin to experience a lot of pain when she was placed on a bed in the recovery room. She began experiencing pain before that time and the pain continued
Paragraph 18: RO 14.
Paragraph 19: RO 14.
Paragraph 20: RO 15, 16 and 17.
Paragraph 21: RO 21.
Paragraph 22: RO 15 and 18.
Paragraph 23: RO 19.
Paragraph 24: RO 21.
Paragraph 25: RO 20. Ms. Carroll did not hear people in the clinic telling the Blakes that she was not in the Women's Care Center. Ms. Carroll merely thought it was the Blake's someone in the Women's Care Center was talking to when they said that she was not there.
Paragraph 26: RO 22.
Paragraph 27: RO 23.
Paragraph 28: RO 24.
Paragraph 29: RO 25.
Paragraph 30: RO 25.
Paragraph 31: RO 25 and 26.
Paragraph 32: RO 27.
Paragraph 33: RO 25.
Paragraph 34: RO 28 and 29.
Paragraph 35: RO 30.
Paragraph 36: RO 30.
Paragraph 37: RO 30.
Paragraph 38: RO 31 and 33. The evidence does not establish that Ms. Carroll was given a transfusion of six pints of blood before being rushed to surgery. The evidence only showed that she was receiving blood transfusions and that Dr. Vallejo "asked for six pints of blood to have enough blood, you know, to replace."
Paragraph 39: RO 31 and 34.
Paragraph 40: RO 34.
Paragraph | 41: | RO | 31 | and | 33. |
Paragraph | 42: | RO | 33. | ||
Paragraph | 43: | RO | 37. | ||
Paragraph | 44: | RO | 39. | ||
Paragraph | 45: | RO | 37. | ||
Paragraph | 46: | RO | 39. | ||
Paragraph | 47: | RO | 38. | ||
Paragraph | 48: | RO | 39. | ||
Paragraph | 49: | RO | 35. | ||
Paragraph | 50: | RO | 35 | and | 36. |
Paragraph | 51: | RO | 36. |
Paragraph 52: RO 36.
Paragraph 53: RO 44.
Paragraph 54: RO 40.
Paragraph 5 5: RO 45.
Paragraph 56: RO 45.
Paragraph 57: RO 47.
Paragraph 58: RO 42 and 43.
Paragraph 59: RO 41.
Paragraph 60: RO 30.
Paragraph 61: RO 46.
Paragraph 62: RO 27 and 48. The evidence does not establish that the Respondent failed to monitor Ms. Carroll's vital signs. Paragraph 64: RO 27 and 48. The evidence does not establish that the Respondent failed to monitor Ms. Carroll's vital signs..
Respondent's Proposed Findings of Fact:
Paragraph 1: RO 1,2, 3 and 6.
Paraeraph 3: RO 5 and 11.
Paragraph 4: RO 11.
Paragraph 5: RO 16.
Paragraph 6: RO 15 and 21.
Paragraph 7: RO 2A. The evidence does not establish that the Respondent transported Ms. Carroll to Hialeah Hospital "[w]hen the medication failed to stem the bleeding "
Paragraph 8: RO 31 and 33.
Paragraph 9: RO 6 and 37.
Paragraph 10: RO 40 and 44. The evidence does not support a finding that the Respondent's medical notes concerning when Ms. Carroll was taken to the hospital were correct. Therefore, Dr. McLeod's testimony to the effect that it was not malpractice to take Ms. Carroll to the hospital "at once" is irrelevant.
Paragraph 11: RO 30 and 34.
Paragraph 12: RO 47.
COPIES FURNISHED:
Stephanie A. Daniel, Esquire Staff Attorney
Department of Professional Regulation 130--North Monroe Street
Tallahassee, Florida 32301
Vincent J. Flynn, Esquire Flynn and Taricoff
1414 Coral Way
Miami, Florida 33145
Dorothy Faircloth Executive Director Department of Professional
Regulation, Board of Medical Examiners
130 North Monroe Street Tallahassee, Florida 32301
================================================================
=
AGENCY FINAL ORDER
================================================================
=
BEFORE THE BOARD OF MEDICAL EXAMIINERS DEPARTMENT OF PROFESSIONAL
REGULATION,
Petitioner,
DPR CASE NOS: 5021554
vs. DOAH CASE NOS: 85-1418
LICENSE NO.ME 0034228
ORLANDO ZALDIVAR, M.D.,
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)(g), Florida Statutes, on February 8, 1986, in Orlando, 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 Stephanie A. Daniel, Esquire; Respondent was present and represented by Vincent J. Flynn, 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
The Hearing Officer's Findings of Fact are approved and adopted in toto and are incorporated by reference herein.
There is competent substantial evidence in the record to support the Board's Findings of Fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The Hearing Officer's Conclusions of Law are approved and adopted in toto and are incorporated by reference herein.
There is competent substantial evidence in the record to support the Board's Conclusions of Law.
DISPOSITION
Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer is increased due to Respondent's failure to recognize the seriousness of the laceration; failure to render expeditious and appropriate care; and failure to get his patient to the hospital immediately.
WHEREFORE:
IT IS HEREBY ORDERED AND ADJUDGED THAT:
Respondent's license to practice medicine is hereby REVOKED.
This Order takes effect upon filing.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District court of Appeal within 30 days of the
date this order is filed as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.
DONE AND ORDERED this 25th day of July, 1986.
BOARD OF MEDICAL EXAMINERS
WILLIAM BRUNNER, M.D.
Chairman
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to ORLANDO ZALDIVAR, M.D., 1140 S. W. 41st Terrace, Miami, Florida 33135; VINCENT J. FLYNN, ESQUIRE, 1414 Coral Way, Miami, FL,
33145; STEPHANIE A. DANIEL, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301 and LARRY J. SARTIN, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida32301, this 5th day of August, 1986.
DOROTHY J. FAIRCLOTH
| Issue Date | Proceedings |
|---|---|
| Dec. 26, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 25, 1986 | Agency Final Order | |
| Dec. 26, 1985 | Recommended Order | Physician's license suspended, because he failed to reasonably practice and used a trick or scheme and botched abortion. |
