STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE No. 86-0234

)

CELESTINO DE IA HERIA LEDESMA, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Leslie Brookmeyer, Esquire

Department of Professional Regulation Tallahassee, Florida

For Respondent: Blas E. Padrino, Esquire

Coral Gables, Florida

This matter was heard by William R. Dorsey, Jr., the hearing officer designated by the Division of Administrative Hearings on April 10, 1986 in Miami, Florida. Three joint exhibits were received, as were four exhibits offered by the Department. It was agreed at the hearing that the deposition of Dr. Rapperport would be admitted as a late filed exhibit. A transcript of the hearing has been filed, along with Proposed Recommended Orders from the parties. 1/ Proposed Findings of Fact not adopted in this Recommended Order are the subjects of rulings in the appendix to this Recommended Order.

ISSUES

The issues framed by the administrative complaint are whether disciplinary action should be taken against Dr. De La Heria for

1. failure to renew his medical license while continuing to practice medicine during the period January 1, 1982 through December 8, 1984 (Count I);

   
   

2. failure to practice medicine with the level of care, skill and treatment recognized by reasonably prudent similar physicians as acceptable under similar conditions and circumstances with respect to corrective surgery he performed upon the ears of a minor patient (Count II); and

   
   

3. acceptance and performance of professional responsibilities which he knew or had reason to know he was not competent to perform in connection with that surgery (Count III).

FINDINGS OF FACT

1. Dr. De La Heria has been licensed as a physician in the State of Florida, license #ME 0028415. He has admitted that he failed to renew his

   medical license for the period January 1, 1982 through December 31, 1983 and for the period January 1, 1984 through December 31, 1984 and that although his medical license became inactive January 1, 1982, he still continued to practice medicine through December 8, 1984. (Pretrial Stipulation, paragraph 2)

   
   

2. On about September 16, 1983, 2/ Dr. De La Heria performed bilateral ear surgery (otoplasty) on a seven year old girl who had the congenital abnormality of cupped ears, as the result of the absence of a fold in the ear known as the antihelical fold (Tr. 21). The purpose of such surgery is to create the fold so that the ear is pulled back relative to the plane of the head, rather protruding from the side of the head (Tr. 22)

   
   

3. The appropriate procedure to correct this condition is to make an incision on the back of each ear. Through the incision the spring of the ear cartilage is weakened or destroyed. The cartilage is held in the proper position by internal stitches to create a fold. An area of skin in approximately the shape of an ellipse is removed (Tr. 22, 41-42, Rapperport depo. 12-13). The surgeon must make sure that the closure is adequately positioned over the cartilage that has been repaired, for leaving exposed cartilage will cause infection (Rapperport depo. 13).

   
   

4. This procedure results in one scar per ear on the back of the patient's ears (Tr. 42, 76, Rapperport deposition 15-22)

   
   

5. After this procedure is performed correctly, there is evidence of impairment of the cartilage (Tr. 32, Rapperport depo. at 15). Dr. De La Heria did not correct the cartilage in the patient's ears. This is evident from examination of the patient (Tr. 22, 32, 35, 46, 61, Rapperport depo. 14-15, 44, lines 24-25), and is corroborated by the absence of any entry in the records of Dr. De La Heria that he performed surgery to the cartilage (Tr. 22; JX-3, entry #2) and the return of the ears to their abnormal position (Rapperport depo. 13, lines 4-8).

   
   

6. Dr. De La Heria removed skin from the ears (Tr. 29, 35), and stitched the ears of the patient to the side of her head in an attempt to correct the deformity (Tr. 22). This is evidenced by the presence of scars along the outer margin or helical rim of the left and right ears, scars which are unnecessary in the performance of the procedure to correct cupped ears, coupled with the scars at the hairline in the area behind the ears. The hairline scars exactly matched the scars on the margins of the patient's ears. These matching scars were seen by the Hearing Officer during the hearing (Tr. 32-33). As Dr. Freshwater testified, stitching the ears of the patient to the side of her head was "a naive and barbaric method to attempt to correct this deformity and this method is doomed to failure." (Tr. 22, lines 23-25) The failure to weaken the spring of the ear cartilage caused the cartilage to press against the incisions causing the formation of wide, thick scars (hypertrophic scars) as the incisions healed (Tr. 34-35, 43).

   
   

7. As a result of the surgery, the patient has five permanent scars on the front and back of the ears that are unnecessary (Tr. 32-33; Rapperport depo. 21), but there is no appreciable difference in the degree of protrusion of the ears (Tr. 38, 94; Rapperport depo. 10, 17; Petitioner's Exhibits 1-4).

8. Dr. De La Heria discharged the patient eleven days following the ear surgery (JX-3). This is inadequate care. A patient who has had this surgery should be seen frequently for six weeks, then every two or three months until the scars completely heal which may take up to two years (Tr. 51-52; Rapperport depo. 23).

   
   

9. Dr. De La Heria has no specialized training in plastic surgery, other than attendance at two seminars (Tr. 126, 127) or in otolaryngology (care of the ear, nose and throat) (Tr. 125, 126, 144, 145).

   
   

10. The proper procedure to correct the ear problem presented by the patient requires training in surgery of the external ear which is found in residency training in otolaryngology or plastic surgery. The surgery is not of the type performed by general practitioners, but by ear, nose and throat specialists, or by plastic surgeons (Tr. 44, 45; Rapperport depo. 24, 25).

    
    

11. In spite of his lack of specialized training in otolaryngology or plastic surgery, Dr. De La Heria holds himself out to the public as a general practitioner who performs plastic surgery in Spanish language advertisements in the telephone directory and in advertisements which appear on Spanish language television (Tr. 145-146). He also has a billboard near his office which advertises plastic surgery (Tr. 145). The fact that these advertisements do not specifically hold Dr. De La Heria out as a plastic surgeon, but instead advertise plastic surgery (Tr. 145, line 25) is a distinction without a difference. The import of these advertisements is that Dr. De La Heria, a general practitioner, holds himself out as a plastic surgeon.

    
    

12. Dr. De La Heria's testimony (Tr. 133, lines 9-16) that he employed the same technique described by the two expert witnesses whose testimony is in the record (Dr. Freshwater who testified at the hearing, and Dr. Rapperport whose pre-hearing testimony was submitted by deposition), is rejected. There is no evidence of weakening of the cartilage (see Finding of Fact 5 above). The presence of the matching scars at the hairline and the outer margins of the ear indicate that the ears were stitched to the scalp, which is not the technique described. According to the testimony (Tr. 22) and to common sense, Dr. De La Heria employed an improper method in an effort to correct the problem which the patient presented.

    
    

13. The patient's mother testified that she attempted to take the child to Dr. De La Heria's office Friday two weeks after surgery (which would have been October 7, 1983), but he was not available at that time because he had taken a long weekend in the Florida Keys (Tr. 91, lines 1-2). The mother then took the child to Jackson Memorial Hospital in Miami that same day (Tr. 91, lines 14-16, 109, lines 14-15). When seen at Jackson Memorial Hospital, she was told that the child would have to be seen by the doctor who had performed the procedure (Tr. 95, lines 21-25). The following Monday she took the child to see Dr. Cardenas who gave her antibiotics (Tr. 109, lines 16-18). There is no testimony from the mother that when seen at Jackson Memorial Hospital there was an infection which caused the physicians at Jackson Memorial to prescribe any antibiotics. According to the testimony, treatment for the infection began only on the Monday Dr. Cardenas found infection and did prescribe antibiotics. This was after the time Dr. De La Heria had discharged the patient according to his notes (JX-3). The patient was never again brought to Dr. De La Heria. The Hearing Officer is unwilling to assume that the doctors at Jackson Memorial Hospital failed to treat an evident infection on the Friday two weeks after the surgery, on October 7, 1983. The last time the child was seen by Dr. De La Heria was before the child was examined at Jackson Memorial Hospital.

14. The ears of the patient became infected following the surgery, although infection of this type is extremely rare (Tr. 43, 47). The infection contributed to the hypertrophic scarring of the ears (Tr. 43). The patient's present condition renders further attempts to correct the problem extremely difficult and success doubtful (Tr. 47; Rapperport depo. 28).

    
    

15. Dr. De La Heria did not treat his minor patient with the level of care, skill and treatment which is recognized by reasonable prudent similar physicians as acceptable under similar conditions and circumstances because the surgery was performed in an incorrect manner (Rapperport depo. 8, 21). The results obtained are, unfortunately, likely to be uncorrectable (Tr. 47; Rapperport depo. 9, 28).

    
    

    CONCLUSIONS OF LAW

    
    

16. Dr. De La Heria has admitted that he has violated Section 458.331(1)(h) and Section 458.331(1)(x), Florida Statutes (1983), by failing to renew his license to practice medicine in the State of Florida and continuing to practice with an inactive medical license. See Section 458.319, Florida Statutes (1983).

    
    

17. The Department has submitted evidence which is clear and convincing that Dr. De La Heria has violated Section 458.331(1)(t), Florida Statutes (1983) by his surgery performed on the minor patient. In terms of that statute, he is subject to discipline because the procedure demonstrated a "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." Section 458.33l(1)(t), Florida Statutes (1983). Dr. De La Heria did not reduce the spring in the cartilage of the ear, which is necessary in this procedure and which resulted in unnecessary hypertrophic scarring; he left the patient with multiple incision scars when only one scar on the back of each ear is necessary to perform the procedure and he sutured the ears of the patient to the scalp which is not proper or appropriate as part of the procedure he undertook to perform.

    
    

18. The evidence is also clear and convincing that in performing the bilateral ear surgery on his minor patient, Dr. De La Heria performed professional responsibilities which he should have known he was not competent to perform. Dr. De La Heria does not have specialized training in plastic surgery, or as specialist in the ear, nose and throat. While this, in itself, does not necessarily show as a matter of law that Dr. De La Heria should not have attempted the procedure which he performed, the improper stitching of the ears to the scalp demonstrate that Dr. De La Heria was exceeding the scope of his training in performing the surgery at issue. He should have realized that he was not competent to perform the necessary procedure.

    
    

19. The Department has also argued in its proposed findings of fact that Dr. De La Heria was guilty of improper treatment because after the surgery the patient's ears became infected and he failed to properly treat the infection, when he examined her at least twice after the ears became infected (Proposed Findings of Fact 14-19). The administrative complaint does not make any allegations with respect to inadequate follow-up. The essential allegation of Count II is found in paragraph 6, and inadequate or improper follow-up is not mentioned. Those proposed findings are therefore irrelevant to the issues made in the administrative complaint.

20. Even if they were relevant, the Hearing Officer is unable to conclude that there is clear and convincing evidence that Dr. De La Heria is responsible for complications resulting from infection of the patient's ears. This is so despite the fact that discharging the patient after only eleven days fails to meet prevailing professional standards (Finding of Fact 8, above), and Dr. De La Heria's notes show that the patient was discharged on September 25, 1983 (JX-3). Based on the findings made in Finding of Fact 13 above, during the time Dr. De La Heria actually was providing care, the patient did not have an evident post- operative infection of the ears.

RECOMMENDATION

Based upon the foregoing, which substantiates the three counts of the complaint filed against Dr. De La Heria it is recommended that pursuant to Section 458.331(2)(b), Florida Statutes (1983) the license of Dr. De La Heria to practice medicine in the State of Florida be suspended for a period of six months; that upon reinstatement of his license he serve a period of probation of three years during which his practice shall be subject to regular supervision by the Board under Section 3458.331(2)(f), Florida Statutes (1983) in order to monitor whether he is attempting to practice beyond the scope of his training or competence; and that pursuant to Section 458.331(2)(f), Florida Statutes (1983) the scope of his practice be limited by barring Dr. De La Heria from performing plastic surgery until he demonstrates that he has obtained adequate training and increased his professional skills so that he is capable of safely engaging in that area of the practice of medicine.

DONE AND ORDERED this 17th day of June 1986 in Tallahassee, Leon County, Florida.

WILLIAM R. DORSEY, JR.

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 17th day of June 1986.

ENDNOTES

1/ Reference to the transcript will be shown as (Tr. ); reference to the Rapperport deposition as "Rapperport depo. ," and to Joint Exhibits as (JX- )

2/ The prehearing stipulation (paragraph 4) lists the date of the surgery as "on or about September 14, 1983." Based on the testimony of the patient's mother that the surgery was done on a Friday to minimize the time the patient would miss school, I find that the surgery was performed on September 16, 1983, despite the entry in JX-3 listing the date as September 14, 1983.

APPENDIX TO RECOMMENDED ORDER CASE No. 86-0234

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Accepted in Finding of Fact 1.

2. Accepted in Finding of Fact 1.

3. Clarified in Finding of Fact 2.

4. Accepted in Finding of Fact 2.

5. Accepted in Finding of Fact 2.

6. Accepted in Finding of Fact 6, and Conclusion of Law 3.

7. Accepted in Finding of Fact 3.

8. Accepted in Finding of Fact 5

9. Accepted in Finding of Fact 5.

10. Accepted in Finding of Fact 5.

11. Accepted in Finding of Fact 7.

12. Accepted in Findings of Fact 3 and 7.

13. Accepted in Finding of Fact 7.

14. Rejected as irrelevant; see Conclusions of Law 4 and 5.

15. Rejected as irrelevant; see Conclusions of Law 4 and 5.

16. Rejected as irrelevant; see Conclusions of Law 4 and 5.

17. Rejected as irrelevant; see Conclusions of Law 4 and 5.

18. Rejected as irrelevant; see Conclusions of Law 4 and 5.

19. Rejected as irrelevant; see Conclusions of Law 4 and 5.

20. Accepted in Finding of Fact 10.

21. Accepted in Finding of Fact 9.

22. Accepted in Finding of Fact 11.

23. Accepted in Finding of Fact 10.

24. Rejected as an overstatement of the evidence. Dr. De La Heria testified that what he did was consistent with the authority cited, not that he performed the surgery as a result of reading the description of the procedure found in that authority.

25. Rejected as irrelevant.

26. Rejected as cumulative.

27. Accepted in Findings of Fact 14 and 15.

28. Accepted in Finding of Fact 8.

29. Accepted in Finding of Fact 8.

30. Accepted in Finding of Fact 15.

1. Sentences 1 and 2 are rejected as inconsistent with the evidence found credible; sentence 3 is rejected as irrelevant.

2. Sentence 1 is rejected as inconsistent with the contemporaneous notation of discharge made by Respondent in the first sentence of Joint Exhibit 3, entry for 9-25-83. The remainder of that entry is not found credible in large part due to self-serving nature. Sentence 2 is rejected as irrelevant.

3. Rejected as irrelevant.

4. Rejected as inconsistent with the finding on the causes of the patient's hypertrophic scarring made in Finding of Fact 6.

5. Rejected as irrelevant.

6. Rejected because the bad result experienced by the patient is not found to be the result of infection but of improper surgery.

COPIES FURNISHED:

Leslie Brookmeyer, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Bias E Padrino, Esquire 2355 Salzedo, Suite 309 Coral Gables, Florida 33134

Ms. Dorothy Faircloth Department of Professional

Regulation

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Roche, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-000234

Orders for Case No: 86-000234