STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NOS. 86-1140

) 86-1327

AHMED ELKADI, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer, in Pensacola, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Roosevelt Randolph, Esquire

KNOWLES & RANDOLPH

528 East Park Avenue Tallahassee, Florida 32301

For Respondent: Spiro T. Kypreos, Esquire

LEVIN, MIDDLEBROOKS MABIE, THOMAS, MAYES & MITCHELL, P.A.

226 South Palafox Place Post Office Box 12308 Pensacola, Florida 32581

and

Harry Rein, Esquire 3803 Lake Sarah Drive Orlando, Florida 32804

BACKGROUND

This cause involves two Administrative Complaints filed by the Petitioner in which various violations of Chapter 458, Florida Statutes, the "Medical Practice Act," are alleged. The Respondent elected to proceed formally as to both complaints, and the matters were thus forwarded to the Division of Administrative Hearings and ultimately to the undersigned Hearing Officer. The cases were later consolidated by motion and agreement of the parties.

Thereafter, the discovery process began, and the Respondent filed a Motion to Dismiss both complaints alleging that the investigations had been unduly delayed in violation of Chapter 455, Florida Statutes, and that the Probable Cause Panel had not acted within legally prescribed time periods in bringing the complaints. This Motion to Dismiss was denied by Order of the Hearing Officer, and the Respondent appealed the Order to the First District Court of Appeal. The First

District Court of Appeal ultimately affirmed the Hearing Officer's denial of the motion. Discovery continued, and the cause was set for hearing on several occasions and continued by agreement of the parties. It finally proceeded to hearing as noticed.

The Petitioner proceeded to hearing on Case No. 86-1140, a two-count complaint. Count One alleged violation of Section 458.331(1)(h), Florida Statutes, by the Respondent's allegedly failing to perform a statutory obligation placed upon a licensed physician; namely, that he violated Sections 395.003(1) and 395.081, Florida Statutes, by operating a clinic or medical facility without being duly licensed by the Department of Health and Rehabilitative Services. The second allegation of that complaint concerned an alleged violation of Section 48.331(1)(t), Florida Statutes, by alleged gross or repeated malpractice involving the patient, Eunice Stallings.

The Petitioner also proceeded to hearing on Case 86-1327, involving an eleven-count complaint in which various violations of Sections 458.331(1)(t), charging gross or repeated malpractice, and 458.331(1)(l), Florida Statutes, concerning making deceptive, untrue or fraudulent representations in the practice of medicine, etc. are alleged, with regard to the remaining patients named and discussed in the foregoing Findings of Fact and Conclusions of Law. The Respondent is also charged with violations of Section 458.331(1)(n) as to these patient treatment situations discussed herein, by allegedly failing to keep written records justifying the course of treatment of the patients, involving patient histories, examination and test results.

Shortly before hearing, the Respondent filed a Pre-Trial Motion to Dismiss Count One of Case No. 86-1140 involving the allegation that the Respondent had failed to comply with Chapter 395, Florida Statutes, by operating his clinic without proper license from the Department of Health and Rehabilitative Services, which allegedly constituted a violation of Section 458.331(1)(h), Florida Statutes. Respondent also filed a Motion to Strike Paragraph 8 of the complaint in that case. At the outset of the hearing, all pending motions were heard by the Hearing Officer. After considering those motions, the facts alleged therein and the argument in support of them, the Motion to Dismiss Count One was granted, and the Motion to Strike Paragraph 8 in that same complaint in Case No. 86-1140 was denied. The Petitioner was allowed the right to proffer evidence and to brief the Hearing Officer regarding the dismissed count, the reasons for which are treated in the Conclusions of Law herein.

The cause proceeded to hearing, and the Petitioner presented as witnesses Ms. Eunice Stallings; Ms. Fannie Cowens; Charles Wheelahan, the DPR investigator and expert witnesses, Dr. John L. Williams, M.D. and Dr. Millard Roberts, M.D. The Respondent presented the testimony of Dr. Paul T. Dahti as an expert witness at hearing and presented the expert testimony of Drs. Woodward and Skinner,

1. by deposition. The Petitioner offered Exhibits 1-7, and all of Petitioner's exhibits, saving Exhibit 4, which was voluntarily withdrawn, were received into evidence. The Respondent offered Respondent's Exhibits 3-7 into evidence, and all were received. The Petitioner voluntarily abandoned Count Ten of Case No. 86-1327 involving the charges of making deceptive, untrue or fraudulent representations in the practice of medicine. That count should be dismissed.

   
   

   At the conclusion of the proceeding, the parties ordered a transcript thereof and requested an extended briefing schedule, which was granted.

   Ultimately, the parties filed Proposed Findings of Fact and Conclusions of Law

   on a timely basis, and those Proposed Findings of Fact are treated in this Recommended Order and ruled upon separately in the Appendix attached hereto and incorporated by reference herein.

   
   

   The issue to be resolved in this proceeding concerns, in a general sense, whether the Respondent violated the Medical Practice Act in the particulars alleged in the two complaints. The specific questions to be addressed involve chiefly whether the various procedures performed on the patients involved in this dispute were necessary and were formed in a manner consistent with prevailing standards of treatment and medical practice in the medical community.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material hereto, the Respondent was licensed as a general physician in the State of Florida, having been issued license number ME0031490. At times pertinent hereto, Dr. Elkadi operated the "Akbar Clinic" in Bay County, Florida. His operation of the clinic consisted generally of performing medical practice of a general nature as well as practice as a general surgeon, including outpatient surgery. He also practiced at Bay Medical Center, where he treated patients admitted under the auspices of other physicians. Dr. Elkadi had no admitting privileges at Bay Medical Center.

The Petitioner is an agency of the State of Florida charged with regulating and enforcing the medical practice standards and licensure standards embodied in Chapter 458, Florida Statutes, including the standards of practice involved in the dispute in this case.

1. Ms. Eunice Stallings was a patient of the Respondent on March 19, 1985, on which date she came to his clinic. She was 70 years of age. After performing some tests and observing the results, Dr. Elkadi informed her that she suffered from gall stones. She filled out a form in his office indicating that she had previously had a tonsillectomy, an appendectomy, a lobectomy and a hysterectomy. The doctor mentioned that she could be admitted to the hospital for surgery or could use his clinic. She elected to stay at the clinic and have the surgery there on account of the greater expense she believed involved with a hospital admission. She did not have any discussions with Dr. Elkadi concerning possible complications or risks associated with the gall bladder surgery prior to the surgery.

   
   

2. Her daughter, Ms. Ted Cowens, went to the clinic with her on the day of the surgery. She arrived shortly after 7:00 a.m. on that day. A clinical employee escorted Ms. Stallings to the room to have her change into a surgical gown. Dr. Elkadi had discussed earlier with Ms. Stallings the possibility of staying in a nursing home or something of that nature after the surgery, for recovery. She assumed that the clinic would make the arrangements for that recovery procedure. She was not informed that she might have to stay beyond 24 hours in the clinic's facility. She was not informed prior to the surgery that Dr. Elkadi had no admitting privileges to the hospital, if complications should arise necessitating hospital admission.

   
   

3. Ms. Cowens remained at the waiting room from 7:00 a.m. until 2:00 p.m. of March 19, 1985, while her mother-in-law was undergoing the cholecystectomy (gall bladder removal). She saw her mother-in-law at 2:00 p.m. that afternoon and observed that she was attached to a heart monitor and was breathing oxygen with difficulty. Ms. Cowens inquired about the circumstances and was informed by a person who identified herself as a nurse that Ms. Stallings had run into a problem with her lung. She was having difficulty breathing at the time. Ms.

   Cowens observed a person who identified herself as "Joyce" acting as a nurse right after the surgery. When she returned at 5:00 a.m. the next morning on March 20 to the clinic to see her mother-in-law, Joyce indicated that she had been the sole person on duty with Ms. Stallings during the entire night. She also indicated she had tried to get another person to be on duty, but was unable to do so. Ms. Stallings at this time was still coughing and spitting blood and continued to do so until her transfer from the Akbar Clinic to Bay Memorial Hospital by the Respondent and Dr. Albibi, based upon the other doctor's admitting privileges, at approximately 5:00, on March 20, 1985.

   
   

4. Charles Wheelahan is an investigator for the Department of Professional Regulation and interviewed the Respondent in his Panama City office. The Respondent gave him copies of medical records regarding the Stallings case and informed him that a small respiratory problem, involving slight lung congestion, had occurred shortly after Ms. Stallings' operation, while she was still a patient in the clinic. Dr. Elkadi informed the investigator that he had made application to be licensed as a "hospital," but that license application had been denied by the Department of Health and Rehabilitative Services (HRS) and that he was in the process of applying to be licensed as a "surgical center."

   He also informed the investigator that the nurse on duty with Ms. Stallings on the night of March 19-20, 1985, was Joyce L. Snow. She was a Licensed Registered Nurse in Great Britain, but was unlicensed in the State of Florida. The doctor, in response to a question from Investigator Wheelahan, informed him that he did not maintain any blood supply on the clinic premises, but could obtain blood from the county hospital if needed. In any event, he informed the investigator that only a minor blood loss was expected and actually experienced during the cholecysteotomy surgery and that it would have been anywhere from 20 to 100 cc's blood loss. The investigator also established that a person known as Olga Sutter, apparently an employee of the clinic, was also present and cared for Ms. Stallings during some of the time she was a patient at the Akbar Clinic.

   
   

5. Dr. John L. Williams testified as an expert witness on behalf of the Petitioner. He is a Florida licensed physician and general surgeon and has been in private practice in Tallahassee since 1970. He is Board-certified in surgery and belongs to numerous medical societies. His primary practice emphasis has been in direct patient care. Dr. Williams reviewed the hospital and office notes concerning Ms. Stallings, which comprise Exhibits 5A and 5B in evidence. The medical records reveal that Ms. Stallings went into respiratory distress post-operatively, which ended up as acute congestive heart failure, for which she was treated. The doctor's and nurse's notes reflect that she had become short of breath and that her blood pressure fell and that she ultimately became cyanotic. Blood gas test results proved the fact of her congestive heart failure condition. Dr. Williams felt that, although the treatment was adequate in the end result, there should have been some contingency plans developed in advance for handling any disaster or crisis that arose involving the pulmonary edema or bleeding suffered by the patient. The medical records and notes and evidence of record do not reveal that the Respondent had any such contingency plans for handling crises developing from performing such surgery in an outpatient setting. The operation, as shown by Dr. Williams, would have been more appropriately performed in a hospital setting so that the patient would have the crisis-handling ability of the hospital systems and staff during her overnight stay. It was his opinion that, given the history of lung trouble, wheezing, scarring of the chest, as well as her age, that this type of surgery should not have been done in the outpatient setting. Dr. Williams' expert opinion is accepted.

6. Dr. Paul Lahti is an expert witness for Respondent and a retired general surgeon from Michigan. He reviewed the records of the Stallings case and found nothing inappropriate about Dr. Elkadi's care of Ms. Stallings. He stated that the doctor's actions avoided a catastrophe. He also stated that same-day surgery is recognized in 48 states. He has not practiced medicine in Florida. He also has spent a substantial amount of time writing, lecturing and advocating the cause of same-day outpatient surgery. I find his testimony significantly colored by his somewhat partisan view, advocating that a broad range of surgical procedures be performed as outpatient same-day surgery. His opinion appeared based on that and on the fact that nothing inappropriate was determined by him to have been done by the Respondent in his care of Ms. Stallings in terms of the end result. Dr. Edward Woodward, a professor of surgery, from the University of Florida, was also Respondent's expert witness. He likewise found the care of the patient itself appropriate and did not feel the problems she experienced were clinically important. Dr. Williams, the Petitioner's expert himself, however, did not find the actual techniques of the treatment afforded the patient, including that afforded her after the respiratory and congestive heart failure crisis arose, to be inappropriate. The problem was, that it was substandard medical practice, as related above, to handle such a serious surgical procedure for a patient of her age and with her previous health history as an outpatient surgical case. Appropriate medical practice would have dictated that a patient such as this be hospitalized before such surgical treatment. Dr. Woodward, one of Respondent's experts, also felt that it was the surgeon's duty in a case such as this to anticipate problems that may occur during or after surgery. Thus, in this context, and because of his more thorough review of pertinent records, Dr. Williams' expert opinion is the more valid one and is accepted over the others.

   
   

   Expert Witnesses

   
   

7. Four experts were called by the Petitioner and Respondent to testify and give expert opinion testimony concerning the nine patients related to Case No. 86-1327, which will now be addressed. Dr. John L. Williams, general surgeon and expert for Petitioner, testified that he reviewed all the cases, involving hospital charts and office notes and other records, in its entirety, spending more than 30 hours reviewing them. Dr. Millard Roberts, a gastroenterologist and expert for Petitioner, read all of the hospital and office notes, which are exhibits, and spent more than 50 hours reviewing them.

   
   

8. Dr. David Skinner is Chairman of the Department of Surgery at the University of Chicago and an expert for the Respondent. He stated in his deposition that he read abstracts of the medical records, contained in Respondent's Exhibit 7 in evidence, sent to him by the Respondent. He did not compare those prepared abstracts with the actual medical records which Dr. Williams and Dr. Roberts had reviewed. See Respondent's Exhibit 6, pages 17-21. Dr. Skinner spent approximately seven hours reviewing abstracts of the records furnished him by the Respondent himself,

   
   

9. Dr. Edward Woodward is professor at the University of Florida. He stated that he reviewed the hospital charts, but no office records concerning the patients involved. He also looked at the Respondent's attorney's summary of notes to supplement his factual basis for rendering an opinion. The evidence did not reflect what length of time Dr. Woodward spent reviewing this material..

   
   

   The Surgical Procedure at Issue

10. Fundoplication is the surgical procedure under question in the nine cases comprising Case No. 86-1327. This procedure is designed to prevent "reflux" or regurgitation of stomach contents from the stomach up into the esophagus. "Reflux esophagitis" is the chronic inflammation of the esophagus due to the reflux of gastric juices into the esophagus for various reasons. Reflux esophagitis, if severe enough, may cause scarring or narrowing in the esophagus. Reflux esophagitis is an indication to perform the surgical procedure called fundoplication in those cases in which reflux is due to an inherent weakness in the junction of the stomach and the esophagus. The most common symptom of reflux esophagitis is a substernal burning or discomfort after eating, which is commonly referred to as heartburn. A further symptom is regurgitation of food when the patient bends over or lies flat after large meals. Other less specific symptoms of the condition involve upper abdominal pain.

    
    

11. Ruth Cooey is a 73-year-old female who complained of epigastric pain upon admission by the Respondent. The patient had a history of taking Tagamet and antacids for one year. One year prior to admission, an upper GI examination was done which revealed an esophageal hiatal hernia and a duodenal ulcer. Her past history included arthritis with a left total hip replacement, hypertensive cardiovascular disease and a total abdominal hysterectomy. Following her admission to the hospital, Dr. Elkadi entered the case, treating the patient with Tagamet and Regulon. The patient's history contained notes of recurrent epiastic pain, nausea, choking spells and heartburn radiating behind the sternum for several years. Shortly before hospitalization, peptic ulcer had been demonstrated, as well as a hiatal hernia, which the Respondent confirmed.

    
    

12. A "Bernstein test" was then conducted. A Bernstein test is designed to reproduce "heartburn" in most cases. The results are not always accurate. The Bernstein test was done three days after admission, with negative results. The results were not noted by Dr. Elkadi in his summary, however. Dr. Elkadi performed an endoscopy with the distal esophagus being described as compatible with chronic esophagitis. There was a "small sliding hiatal hernia with intermedial reflux." The records also reveal a description of two shallow ulcers of three to four millimeters each, in the prepyloric area and a large pyloric channel ulcer, described as being eight to ten millimeters in diameter. Biopsies taken during endoscopy showed chronic esophagitis and revealed chronic inflammation in the prepyloric mucosa. Dr. Elkadi performed a vagotomy, a pyloroplasty, and a Nissen Fundoplication on or about June 8, 1983.

    
    

13. Dr. John Williams, the Petitioner's expert, opined that the reflux this patient had experienced was due to the primary disease of pyloric channel ulcer, which can cause reflux and thus produce symptoms of heartburn. If she had an intrinsic weakness of the esophagastric junction, a primary indication for a fundoplication procedure, then she would have had the symptoms before she was 73 years of age and not just had them occur after she had the ulcer. It was Dr. Williams' opinion that fundoplasty, the surgical procedure at issue, was really not indicated in this case. The symptoms exhibited for reflux esophagitis, which would justify the fundoplication were not present in this case. The symptoms existing were likely due to the ulcer as opposed to esophagitis. The symptoms the Respondent listed which he felt showed reflux esophagitis were pain after meals (thirty minutes to an hour and relieved by antacid), heartburn, and the epigastric pain described by Dr. Zawahry in June 1981. It might be noted that Dr. Zawahry, at that time, did not note any choking, dysphagia (difficulty in swallowing) or substernal pain, which are indications for fundoplication. The documentation of those symptoms came from the Respondent's notes.

14. Dr. Williams felt the written records from the charts at the hospital did not justify the need for the fundoplication which was done. Her primary problem was a peptic ulcer. The esophagasoopy did show some esophagitis, which is evidence that some material was getting into the esophagus from the stomach or digestive tract below, but that was caused by the ulcer disease. Dr. Williams indicated that the treatment noted on those written records was below appropriate performance standards for a reasonable physician under reasonable similar conditions and circumstances, as there was no indication that the symptoms exhibited indicated the need for the fundoplication surgery.

    
    

15. Dr. Millard Roberts, a gastroenterologist and licensed physician in the State of Florida, is a private practitioner in Tallahassee. He was qualified as an expert witness for the Petitioner in the field of gasroenterology. He received his undergraduate degree from the University of Florida and his medical degree from the University of Miami Medical School. He has admission privileges at Tallahassee Memorial Regional Medical Center and Tallahassee Community Hospital and presently serves on the Medical Records Review Committee of both those hospitals. He has practiced for sixteen years and attends numerous conferences and training sessions within his field of gastroenterology to keep his knowledge and skills current. He formerly practiced in that field, as well as in internal medicine, in Dothan, Alabama, His primary emphasis has been on the symptomology of the patients, which he obtains by taking a history, a physical examination, performing certain studies and arriving at impressions after completing examinations and observing the results of tests or studies. The standard practice in the medical community for determining whether or not symptoms are properly documented in records is based on rules promulgated by the Joint Commission on Accreditation of Hospitals, which method was employed by most hospitals in the country in 1985.

    
    

16. Dr. Roberts discussed the various symptoms of esophageal reflux disease, including heartburn, difficulty in swallowing or painful swallowing (dysphagia), regurgitation or reflux of material as high as the throat or mouth. The symptoms noted in the hospital chart of the Cooey case, in his opinion, were related to ulcer, rather than to esophageal reflux disease. There was an absence of symptoms such as heartburn, dysphagia, choking and substernal pain. These symptoms were not noted in Dr. Zawahry's reports. He only reported epigastric pain. Dr. Roberts stated that it would be expected to see the other symptoms of esophageal reflux disease he noted appear in the patient's previous medical records made by Dr. Zawahry. Dr. Elkadi's consultation report is the first time these symptoms are mentioned. Dr. Roberts also pointed out that the Bernstein test is commonly used to confirm reflux esophagitis, but in Ruth Cooey's case the test was negative. It was negative on June 5, three days prior to the June 8 surgery. Dr. Roberts found nothing in the record occurring between the date of the Bernstein best and the date of the surgery three days later to confirm the necessity for doing a fundoplication. He further established that there was nothing in the radiologist's report to indicate any tertiary contractions of the esophagus, which would indicate a motility disturbance, which would be a justifying symptom. Dr. Elkadi's note is the only record he saw which is in any way supportive of the surgery.

    
    

17. Dr. Roberts stated that the lack of symptomology to justify the fundoplication led him to conclude that the level of care and treatment fell below that of similar physicians practicing in similar conditions and circumstances. The other surgical procedure (for ulcers) should have taken care of the symptoms that were exhibited in the record without the necessity of the Respondent doing the fundoplication.

18. The Respondent's expert, Dr. Woodward, agreed that the hospital charts and records did not give a clear history of reflux esophagitis in this patient. He also felt it was inexcusable not to have the information from the office notes on the hospital charts. He himself had reservations about the performance of the Nissen Fundoplication in this case, but would not call it malpractice. Dr, Skinner, the Respondent's other expert witness, testified in his deposition that the operation was appropriate. Based upon their greater familiarity with the circumstances of this case, including their more extensive survey and consideration of the records involved and their more direct experience in gastroenterological practice and surgery, I accept the opinions of Drs. Williams and Roberts over that of Drs. Woodward and Skinner.

    
    

19. Debra Crosby is a 28-year-old female with a history of morbid obesity. She was admitted to Bay Memorial under the Respondent's care with a history, over the past few weeks, of nausea and dyspepsia, which is epigastric distress after eating greasy, fried foods. She had a past history of acid indigestion. The Respondent immediately ruled out gall bladder disease, the patient having been admitted for abdominal pain as well. The secondary reason for admission was for "morbid obesity," to conduct a surgery to allow the patient to reduce her obese condition. Such surgery limits the intake of food and the ability of the intestines to absorb food to some extent. The patient had surgery to correct morbid obesity. That surgery is called a "Roux-en-y" gastric bypass. That surgery involves making a small pouch near the upper part of the stomach, bringing the small intestine up and attaching it to that pouch so that the patient is only able to eat a limited amount at a time. Dr. Williams opined that that was an appropriate procedure to use for "bariatric surgery," that is, to relieve obesity, although he himself prefers the "vertical bend gastric partition procedure."

    
    

20. No gastroesophageal reflux symptoms were documented in this case. In any event, on the 22nd of July, shortly before surgery, the patient was vomiting and suffering epigastric distress. They performed a "GI series" or barium- assisted X-ray of the upper digestive tract. While the patient was actually in the process of vomiting, a small hiatal hernia was demonstrated. Because of the vomiting, they had to abandon the upper GI series test. It was postponed until the next day, at which time another upper GI series test showed normal with no sign of hiatal hernia. So no esophageal reflux condition was demonstrated, nor was there any significant indication of hiatal hernia, which can cause a reflux condition in the esophagus. An ultrasound test of the gall bladder established that there were no gall stones, and her gall bladder appeared normal. She then had surgery for the gastric bypass procedure and also had a fundoplasty. The fundoplasty or fundoplication involved suturing the anterior wall of the stomach pouch to the anterior wall of the esophagus on one side. Only one side of the stomach was sutured up, and Dr. Williams established that fundoplasties all should be characterized by a "wrap" of some sort of the stomach around the base of the esophagus. The manner in which the surgery was described in the Respondent's operation note does not reveal that he could possibly do the appropriate fundoplication wrap procedure in that manner, with only a partial wrap.

    
    

21. Esophageal reflux disease usually disappears with weight loss. With surgery to correct morbid obesity, accepted medical practice dictates that reflux-correcting procedures (fundoplasty) not be done. The reduction of the obesity greatly relieves the problem of reflux, and the gastric bypass surgical procedure is effective in preventing reflux of bile and juices itself.

22. In Dr. Williams' opinion, which is accepted, there were no specific symptoms showing a reflux condition. There were some nonspecific symptoms that could possibly have been attributed to reflux involving epigastric pain or acid indigestion. The nausea and vomiting could have been due to many causes, but Dr. Williams thinks most likely that she suffered from gall bladder disease in spite of the fact that she did not have any stones. So, her symptoms could have been due to gall bladder disease, just acid indigestion, obesity or reflux. There were no clear-cut symptoms to justify the anti-reflux operation, however, because the patient had no symptoms of reflux before she had an acute illness, which caused her hospitalization. She was simply morbidly obese and correction of that problem would solve also any reflux symptoms she may have been-having.

    
    

23. In summary, the medical records of this patient, maintained by the Respondent, did not justify an anti-reflux procedure such as fundoplasty. In any event, Dr. Williams opined that the procedure that was done would not prevent reflux anyway, even though it was unnecessary. This is so because an appropriate wrap of the stomach around the esophagus was not done. So, as established by Dr. Williams, the partial wrap, fundoplication procedure was supefuous and should not have been performed.

    
    

24. Dr. Roberts also reviewed the Crosby case and opined that the gastroesophageal reflux condition would disappear with weight loss, brought on by the Roux-en-y procedure. When the pressure within the stomach exceeds the pressure of the lower esophagus sphincter muscle designed to prevent the reflux or regurgitation, then reflux can occur. The obesity causes a thickness and weight on the abdominal wall which pressures the stomach. The increase in the intraluminal pressure of the stomach enhances the possibility that reflux will occur. Therefore, prevention of increase of intraluminal pressure of the stomach would decrease the likelihood of reflux occurring. The documented symptoms of esophageal reflux disease, such as heartburn, dysphagia, chest pain, chronic cough and epigastric pain were not present in this patient, with the exception of some heartburn pre-operatively. Dr. Roberts established that the written records for this particular patient do not justify, by symptomology recorded, the necessity of doing a fundoplication procedure. Dr. Roberts thus corroborated the finding by Dr. Williams that the treatment and care of this particular patient fell below accepted standards for reasonable physicians under reasonable similar circumstances and conditions, since the indications for the fundoplication procedure were not present in the patient's records. Dr. Skinner opined once again that he felt the operation was appropriate. Dr. Woodward, however, questioned the necessity of the repair of the hiatus hernia and the anti-reflux operation or fundoplication. He felt that with weight loss the reflux condition would disappear with the lessening of pressure on the stomach and that therefore it was probably unnecessary, although he did not go so far as to call it a situation of malpractice. The opinion of Doctor Williams and the opinions of Drs. Roberts and Woodward, to the extent they are corroborative, are accepted.

    
    

25. Patient Dorothy Kay was a 68-year-old female with a history of diabetes, cardiovascular disease and legal blindness. She also had some urinary and renal system dysfunction, with hyperemia. She was admitted by Dr. Kahn in June 1981 for abdominal pain, nausea and vomiting of one day duration. She had had three black bowel movements immediately before admission, but these were not tested for blood. Since her hemoglobin level was normal on admission and remained normal, Dr. Williams, in his testimony, discounted the possibility that she had gastrointestinal bleeding. She was thoroughly evaluated after admission, and her gall bladder proved normal. An upper GI examination showed a small hiatal hernia, but with no reflux, on June 15. Examinations of the kidney

    and a CAT scan of the abdomen were not remarkable, and a barium enema on the 22nd of June revealed some diverticulosis. She had a problem with constipation at this same time, which could have explained some of her complaints of abdominal pain, especially because the abdominal pain ceased after the barium enema, according to the nurse's notes. An endoscopy was performed on June 18 to examine the esophagus and stomach area. The esophagus showed some chronic inflammation. This can either occur as a normal occurrence or as a result of some disease process. This particular patient's history revealed that she had arthritis and had been taking a substantial dosage of Motrin, at 600 milligrams per day. Motrin is one of the drugs that can cause gastrointestinal and peptic symptoms. It can produce ulcers and bleeding. The patient had been maintained on this dosage of Motrin until two days before surgery, which is quite a significant dose. Dr. Williams also found that the abdominal pain was relieved upon administration of saline injections. H3, therefore, thinks the abdominal pain was most likely due to functional disease associated with diabetes and may well have been caused by the Motrin medication. In any event, there was no evidence in her history which would indicate that reflux esophagitis (the indication for a fundoplication procedure) was the cause of her pain. Even Dr. Elkadi's admission notes noted that her tenderness was more prominent in the lower abdomen than in the upper abdomen.

    
    

26. The patient was operated on and had a needled biopsy of the liver and the fundoplication procedure, as well as a "lysis" of adhesions. The operation notes were not written until two months after the surgical procedures were done. Operative notes are customarily done at the time of surgery and on the same day if possible, so that the physician will not be as likely to forget details of the procedure as he would if they were dictated two months later. The operative notes on the fundoplasty procedure were done on August 19. The surgery was performed on June 25.

    
    

27. Dr. Williams established that the records on this patient simply did not show symptoms of reflux esophagitis, an indication for the fundoplasty. The esophagoscopy was not valid evidence, standing alone, of reflux esophagitis, and that was the only possible suggestion that a chronic reflux condition existed. Dr. Williams established that the small degree of change observed in that procedure, due to reflux, was due to vomiting of the rather short historical duration occurring immediately prior to her admission. The Motrin medication she was taking could, itself, have caused her symptoms. The minimal chronic inflammation of the esophagus was not shown to be due to any defect in the gastroesophageal joint, but could have been due to any number of conditions in a diabetic, aged and infirmed patient like this and most likely was due to the recent vomiting, which is of undiagnosed etiology.

    
    

28. Dr. Roberts referred to Dr. Elkadi's consultation of June 12, 1981, wherein he noted that the woman had been having abdominal pain for seven years, progressively worsening. Dr. Roberts did not feel that indicated reflux esophagitis. The reason he did not think so was because there was no mention made of any heartburn pain or difficulty in swallowing as to the upper abdominal area or chest area. There was also no mention in any of the notes or records that the patient was developing any strangling sensations or symptoms suggestions aspiration of gastric contents, bleeding or hemorrhaging, which would be suggestive of sever ulceration of the esophagus. Dr. Roberts agreed with Dr. Williams that this patient's records do not in any way indicate symptomology, clinical or otherwise, which would confirm a diagnosis of reflux esophagitis, indicative of a fundoplication procedure.

29. Dr. Woodward, the Respondent's expert, also felt that the fundoplication was unnecessary. He found no history suggestive of reflux esophagitis and felt that such elective surgery in a person who was this sick, with diabetes and related problems, was a poor idea. He also found it unforgivable that the history was not more descriptive of the patient's problems and that the history concerning the patient's medication regime was not documented in the hospital chart. The doctor was opposed to the patient having this operation but, because of "mitigating circumstances" which he never fully explained in his testimony, would not call this a situation of malpractice either. In any event, based upon the testimony of Drs. Williams and Roberts and corroborated to some extent by that of Dr. Woodward it is found that Dr. Elkadi's treatment of this patient was inconsistent with quality medical care and fell below appropriate standards of practice for similar physicians practicing under similar conditions and circumstances.

    
    

30. Agnes McNeil is a 42-year-old female with a history of depression, nausea, vomiting and abdominal pain. She was admitted to the hospital in October 1981 with approximately a six month history of abdominal distress and vomiting. A GI series was performed showing normal results and an upper gastrointestinal and endoscopy showed some esophagtis. There was also a finding made that she had a duodenal ulcer with some reflux. That finding was made October 31, 1981. She was admitted again on the 8th of March, 1982. On March 11, she had an "upper end endoscopy" and was said to have a hiatal hernia with reflux and duodenal ulcer, on the pylorus. The esophagus, however, was normal, and the GI series was negative once again. It showed no hiatal hernia and no reflux. She had surgery for the duodenal ulcer in the pyloric channel. The procedure done was a "highly selective vagotomy" which is done to inhibit the secretion of acid by the stomach. This is a rather new procedure and is not statistically as effective as some other procedures for the same condition. Additionally, the Respondent did a fundoplasty. The fundoplasty was not properly indicated, as established by Dr. Williams, because the significant changes in the esophagus which would indicate such a procedure were not present. The past reflux condition occurring in October 1981 was due to the acute ulcer condition. There had been no significant history of reflux prior to the onset of the peptic ulcer disease. If reflux was present, then the patient should have experienced some regurgitation upon bending over or waking up at night, as well as burning in the chest upon lying down at night, and none of this appeared in the record. A biopsy was done in this case which indicated acute esophagitis, and the patient had suffered severe weight loss, but this, in Dr. Williams' opinion, is related to the peptic ulcer condition and is justification for a vagotomy procedure, either the normal type or the new and somewhat controversial, highly selective vagotomy which Dr. Williams guardedly agreed with. In any event, however, he established that the fundoplasty was not ordered because the evidence of reflux esophagitis in the patient was directly related to the peptic ulcer disease and the procedure to effect a of that problem could be expected to alleviate the eophagitis.

    
    

31. In any event, post-operatively, the patient still continued to have upper abdominal pain, nausea and vomiting. The obstruction in the pyloric area caused the reflux and caused the vomiting. The constant vomiting resulted in the inflammation or esophagitis condition. Pyloric channel ulcers cause obstruction which causes vomiting, and vomiting by definition is "reflux." The removal of the cause of the vomiting will also, over time, heal the esophagitis, without the necessity of a partial fundoplasty, as was done in this case.

    
    

32. Dr. Roberts, in reviewing the McNeil patient records and notes, found that the upper GI series and the pathology in this particular case did not show

    significant evidence of reflux esophagitis. Three different "upper GI series" before and after she surgery, were interpreted as normal. His testimony, in effect directly corroborates that of Dr. Williams in establishing that the performance of the fundoplication as treatment in this case was below accepted standards of practice or a reasonable physician practicing under similar conditions and circumstances. Although he did not testify in his deposition that the Respondent fell below the standard and committed malpractice, Dr.

    Woodward, the Respondent's expert, also questioned and doubted whether the patient needed the Nissen. Fundoplication in view of the medical records he was given to review.

    
    

33. Ms. Nguyen was a 77-year-old Vietnamese female at the time of her admission to the hospital by Dr. Kahn in December 1981. Her complaints were abdominal pain, nausea, vomiting, constipation, dehydration and fainting. She had been unable to urinate for approximately 24 hours prior to admission. These conditions are revealed by the notes, but the failure to urinate for approximately 24 hours is inconsistent with the dehydration symptom noted. In any event, she is a Vietnamese national and did not speak English.

    Communication with the Respondent, whose service she was admitted on, was difficult. It was thus difficult to get an adequate history from her, which made the history somewhat sparse. During her hospitalization, on December 19, Dr. Elkadi noted some "right upper quadrant tenderness." Dr. Elkadi had been consulted on the 18th of December and had noted at that time nausea, vomiting, right upper quadrant tenderness and constipation. Gall bladder X-rays showed probable gall stones or "sludge" in the gall bladder, and a GI series indicated a small hiatal hernia, without mention of reflux. An abdominal ulcer sound test was performed which showed sludge or small stones in the gall bladder. Gall bladder disease fit the physical findings of right upper quadrant tenderness, acute onset of nausea and vomiting and also the history of the patient not having a good appetite, being nauseated over the course of the year and losing a significant amount of weight. She only weighed 87 pounds upon admission.

    
    

34. An endoscopy was performed, as a result of which Dr. Elkadi described the patient as having distal esophagitis, moderate erythema and edema, as well as a small hiatus hernia. A cholecystectomy was performed for removal of the gall bladder. There were no symptoms other than nausea and vomiting which would justify a finding that reflux esophagitis was present and that therefore anti- reflux surgery might be indicated. A small hiatal hernia was not significant, and there was minimal esophagitis shown by the endoscopy done immediately prior to surgery. What esophagitis evidence was present was due to the nausea and vomiting related to the gall bladder disease. Dr. Elkadi performed a fundoplication procedure anyway. Performance of a fundoplication is additionally risky for a person who is frequently vomiting, and the fundoplication was shown by Dr. Williams to be unnecessary in this case. The nausea and vomiting were not symptoms of reflux disease, but rather were symptoms of the gall bladder disease.

    
    

35. The small hiatal hernia did not justify anti-reflux surgery in this case because that is frequently seen in older people and is not significant in itself. Additionally, although Dr. Elkadi's records showed that he removed a large gastric tumor, in reality that tumor was only one centimeter in diameter sitting on the surface of the stomach and was of no consequence in the patient's condition or related to any of her symptoms. The symptoms of right upper quadrant pain, nausea and vomiting, and the test results, justified the cholecystectomy (gall bladder) procedure, which is what Dr. Elkadi should have done and then stopped. He should have determined whether that alleviated the patient's symptoms, rather than doing the unnecessary fundoplication when the

    record did not reveal any significant reflux esophagitis indications, and since that procedure represents an additional risk to the patient.

    
    

36. In summary, it was established by Dr. Williams that the records were not adequate to justify the fundoplication performed in this case. The performing of it unnecessarily constituted a failure to practice medicine with that degree of care and treatment required of physicians under similar circumstances. It is especially true in the case of a patient such as this, who is old and feeble at best. Performing an unnecessary operation on such a sick, 77-year-old patient increases the mortality risk somewhat and increases the

    post-operative morbidity risk significantly because the patient will not be able to "burp" any longer and can become subject to "gas bloat," as well as the risk of having difficulty swallowing because the "fundoplication wrap" might be too tight.

    
    

37. The fact that it constituted malpractice to proceed forward with the unnecessary fundoplication is especially pointed up by the fact that Dr. Elkadi's own notes reveal that he was unable to understand the patient, who could not speak English, and thus was unable to get an adequate history. If the history is unclear because of a language problem and the doctor cannot understand the patient to make sure of the extent and nature of the symptoms, it is not reasonable to proceed with the operation, as opposed to trying to find an interpreter who can help the physician ascertain clearly what the symptoms are and what the indications for treatment are.

    
    

38. Dr. Roberts, likewise, was unable to find any proof in the hospital records of the presence of any reflux esophagitis and felt that the fundoplication was unjustified. In fact, as he pointed out, Dr. Elkadi himself in his operative notes indicated that the limited history he was able to obtain from the patient was not specific enough to distinguish between gall bladder symptoms and gastroesophageal reflux symptoms. Dr. Roberts thus felt that the treatment of this patient fell below acceptable standards of a similar physician under similar circumstances. Dr. Woodward, the Respondent's expert, was unable to determine what was wrong with the patient and found that the hospital chart did not clarify it for him. The purpose of a patient history, according to Dr. Woodward, is to give a word picture of a patient's problem, and he found that the history, in addition to being inadequate, did not indicate any reflux esophagitis. He agreed with Drs. Williams and Roberts that the cholecystectomy was needed, but it was unlikely that the patient really needed anti- refluxsurgery (fundoplication). The additional operation, in addition to being unnecessary, added to the patient's mortality risk and post-operative morbidity. It has therefore been established that, as to this patient, the practice of the Respondent and his treatment of the patient fell below the acceptable standards for similar physicians practicing under similar conditions and circumstances.

    
    

39. Rosey Peel was a 66-year-old lady admitted in May 1982 to Dr. Elkadi's service with a history of gastrojejunostomy, appendectomy, total abdominal hysterectomy, with associated adhesions. In October 1980, she had had a history of duodenal ulcer which was medically treated, as well as a history of stomach erosions and bowel gastritis treated medically in May 1981. In April 1982, she underwent an endoscopy, and the pathology report indicates the presence of chronic esophagitis and inflammation of the gastrojejunostomy. She had a history at this time of epigastric pain, nausea and vomiting. The endoscopy showed ulcers in the jejunum at the site of the gastrojejunostomy or the "rough equivalent to the pyloric channel." Thus, the patient had active peptic ulcer disease with related endoscopic evidence of bile in the stomach and in the esophagus. She underwent a vagotomy as a correction for the ulcer disease and a

    resection of the distal stomach, which disconnected the stomach from the duodenum in order to get rid of the problem of bile entering the stomach and causing the reflux esophagitis. The reconnection process was done in the form of a Roux-en-y procedure or gastric bypass, which has the effect of preventing the bile from entering the stomach. As opined by Dr. Williams, these procedures would alleviate her problem involving the ulcer disease, the reflux biliary gastritis and esophagitis. Consequently, she did not need the fundoplasty procedure, and it was unnecessary. The anti-reflux procedure did not have to be done, and the primary disease process, peptic ulcer disease, would have been alleviated by the Roux-en-y gastrojejunostomy and the vagotomy. Dr. Williams opined that when an operation like this that is unnecessary is done, then strictly speaking malpractice has been committed. He acknowledged, however, that it was possible to interpret her symptoms and records as indicating reflux biliary gastritis, which could have easily led the Respondent to believe that a fundoplication procedure could cure her problem. In fact, it was not necessary to cure the reflux problem she was having, as delineated above. In this particular case, standing alone, it might be said that, given the presence of reflux biliary gastritis and esophagitis, that a practitioner could make a good faith mistake in performing a fundoplication, rather than limiting the surgery to the Roux-en-y repair and the complete vagotomy.

    
    

40. Dr. Roberts, after reviewing this patient's file, was unable to find symptomology in the record which would justify the fundoplication. The abdominal pain, nausea and vomiting, which had worsened over several months, were related, in his opinion as well as Dr. Williams', to bile reflux gastritis. Reflux in and of itself is not justification for surgery, especially when the patient is not complaining of chronic reflux esophagitis symptoms. The reflux can be due to other causes, as mentioned above, including the pyloric ulcer situation this patient suffered. He opined that the esophageal reflux situation and the delayed gastric emptying would have been relieved with just the procedures performed short of the fundoplication, as did Dr. Williams.

    
    

41. Inasmuch as Dr. Williams felt that this single instance of performing the fundoplication, albeit necessary, could not by itself be called malpractice, since enough symptomology was present to lead a competent practitioner into performing it as a result of a good faith mistake, and since both Respondent's experts felt that the procedure was documented in this case, it cannot be found that this instance, standing alone, was gross or repeated malpractice. It has, however, been proven that the procedure was medically unnecessary. Considered together with the other unnecessary surgeries discussed in these Findings of Fact, however, the overall pattern is one of medical treatment which does not measure up to the standards of reasonable physicians performing such practice and treatment under similar conditions and circumstances.

    
    

42. Ms. Rosey Smith is a 63-year-old female with a

    history of total abdominal hysterectomy, right nephrectomy and adhesion laparotomy, both of which procedures were performed in 1950; cholecystectomy performed in 1962; and hiatal hernia repair performed in 1980. She was admitted to the Respondent's service in 1981 complaining of epigastric pain. An endoscopy performed revealed moderate, chronic esophagitis, but the pathology report failed to confirm esophagitis and was interpreted as being without evidence of inflammation of either the esophagus or gastric mucosa. She was admitted by Dr. Kahn and subsequently consulted by Dr. Elkadi. She had had a Nissei Fundoplication for reflux esophagitis in November 1980. She was admitted again on this occasion in September 1981 with nausea and epigastric pain. Since her surgery in 1980, she has been unable to eat well because of fullness and pain after eating. She had upper gastrointestinal pain upon admission, and the

    endoscopy performed showed that she had a slight amount of esophagitis. However, biopsy of the stomach and the esophagus were normal. The upper GI series performed failed to show any reflux. It showed tertiary contractions of the esophagitis (spasms) and some delayed emptying of the stomach, as well as some deformity of the antrum of the stomach. That deformity did not have any significance, especially in view of the fact that the endoscopy failed to show

    any ulcers in that area. Dr. Williams did not feel that the delayed emptying of the stomach was significant either, and he found no evidence of reflux.

    
    

43. The Respondent then performed a vagotomy after taking down the previous fundoplasty in order to get to the vagus nerve to do the vagotomy, which is indicated for peptic ulcer disease. Thereafter, he had to redo the fundoplasty, which had previously been done in 1980. Dr. Williams felt that the lady's problem was probably dysfunctional and probably related to her first surgery. After the first fundoplication, she exhibited the same complaints she had before. She had been treated previously with Tagamet and, if she did have peptic ulcer disease, the endoscopy did not reveal it to be significant. Thus she did not need this further surgery which also left her with the same complaint she had before. A month after this surgery some dysphagia or difficulty in swallowing as well as esophageal dilation was experienced. These are symptoms of the so-called "gas bloat syndrome." This is involved with fullness and pain after eating and is a complication of a fundoplication.

    
    

44. Dr. Williams found that she did not have significant esophagitis, and the problem was more likely "gas bloat" or some undiagnosed, dysfunctional gastrointestinal disease. She did not have an active ulcer and had no significant reflux. Additionally, the "3 plus" positive standard reflux test is not in and of itself sufficient evidence to justify a fundoplication. This test can be positive and still not represent any symptomatic condition. Dr. Williams thus opined that the performance of the fundoplication being taken down, a vagotomy performed and the fundoplication being redone (which was necessary once it was "taken down") was below the acceptable standards of a reasonable physician under similar circumstances and conditions in light of the symptoms exhibited.

    
    

45. In a like vein, Dr. Roberts found that the patient did not appear to have esophageal strictures before she had the surgery. The hospital nursing notes suggest that constipation may have been a problem because of the laxatives given during the days preceding surgery. No ulcer was found demonstrated by Dr. Roberts, only inflammation of the pyloris as a result of the endoscopy. Dr. Roberts likewise felt no fundoplicatio was justified by the patient records in this case. Dr. Woodward, Respondent's expert, likewise indicated that the history reflected in the hospital chart was characteristic of the "gas bloat syndrome." He strongly suspected that the first anti-refluxoperation (fundoplasty) was satisfactory and that she did not need any further surgery. Like Drs. Williams and Roberts, he did not think that Mrs. Smith had an ulcer either. He felt the ulcer surgery and the concomitant taking down and replacing of the previously done fundoplasty was not necessary, but did not feel he had sufficient information to opine concerning whether malpractice existed. Dr. Skinner believed the operation to be appropriate under the circumstances. The opinion of Doctor Williams and the opinions of Drs. Roberts and Woodward, to the extent they are corroborative, are accepted.

    
    

46. Linda Turner is a 32-year-old female with a long history of medical complaints. Seven years prior to the subject admission, she had had an ovarian carcinoma which led to a hysterectomy, bilateral salplngo-oophorectomy and appendectomy. She had multiple abdominal complaints after that and was said to

    have ulcerative cholitis, which causes cramping and mucous in the stool. In November 1981, she was admitted with abdominal pain and was labeled as having a recurrent ulcer and right hip pain. She was admitted by Dr. Kahn from the emergency room. Her two primary complaints were sharp pain in the right hip and numbness in the leg and increased pain on hip movement, which had nothing to do with abdominal pain. She had three weeks of cramping and abdominal pain, which gradually increased with nausea and anorexia, epigastric burning with indigestion, associated with ingestion of food and liquids. She exhibited dark brown vomit on occasion, with lower abdominal tenderness. Her hemoglobin, chest X-ray, upper GI series and small bowel X-ray series was normal, as were pictures of the stomach. The barium enema she received was normal, as were her gall bladder tests, and CAT scan and PH reflux test.

    
    

47. Dr. Elkadi was consulted, and he said that she had upper abdominal pain, nausea and vomiting for two years, which had worsened in the last three weeks. He stated that she had occasional regurgitation and dysphagia at the base of the neck. She was said to have had one tarry black stool before her admission, but Dr. Williams doubted there was any bleeding because her hemoglobin test was normal, and no positive stool was documented for blood.

    
    

48. The doctor's notes indicated left lower quadrant pain and some stomach cramps. The pain increased with ingestion of food. She had an endoscopy on the 9th, which resulted in a normal biopsy. On one of the biopsy specimens, there was a small amount of blood under the mucosa, but this might be explained, according to Dr. Williams, by vomiting or trauma caused by the instrumentation itself during the endoscopy procedure. He saw no other evidence to indicate she had any bleeding from the esophagus.

    
    

49. The patient had surgery on the 19th, and the operative record indicates that extensive adhesions were found in the lower abdomen. She also had a Nissen fundoplasty and a highly selective vagotomy. The vagotomy and the fundoplasty were unnecessary. The patient's primary problem was likely the abdominal adhesions which could explain the pain and cramps in the area of the lower intestine.

    
    

50. The patient did have some symptoms that were suggestive of esophagitis in that, when she vomited, she had epigastric distress, but Dr. Williams could see no evidence of ulcer disease in her records and chart. Dr. Williams also was of the opinion that, although the lady had a record of having three tarry black stools, the fact that her hemoglobin had not changed and that no bleeding had been demonstrated after she was in the hospital, nor was any ulcer found, that the dark stools were evidently due to some other reason than bleeding. Although the endoscopy and related biopsy showed intramucosal bleeding, that was of a very slight nature and was likely due to the trauma of the instrumentation or the trauma of vomiting. There was no ulceration and no acute inflammation of the esophageal area. There was no evidence of significant hemorrhage originating in that area. Dr. Williams then opined that the patient's written records only justified an abdominal exploration. He felt that Dr. Elkadi should have stopped with the lysis of abdominal adhesions as a means of alleviating the patient's abdominal pain and cramps related to the small intestine, rather than proceeding with the fundoplasty and vagotomy in the gastroesophageal area, where there was no concrete evidence of esophagitis, ulceration or other disease. In short, the treatment given the patient was unnecessary and fell below the acceptable standards of similar physicians under similar circumstances. He exposed the patient to additional morbidity and a slight additional risk of mortality.

51. Dr. Roberts essentially agreed with Dr. Williams' findings and stated that, other than Dr. Elkadi's own description about the endoscopy on these written records, no evidence or history suggestive of esophagitis was shown in this patient. He stated that, although the patient complained of chronic abdominal pain for three weeks, with nausea and loss of appetite, as well as epigastric "burning," he felt these were not sufficient enough to suggest chronic esophageal reflux disease indicative of a fundoplication. He opined that, on the basis of the tests done in this case, that a diagnosis of specifically what was causing the cramps, abdominal pain, nausea and loss of appetite and upper gastric burning could not be done and certainly not sufficient to support a decision to perform the surgery that was performed. The record was simply bare of any concrete evidence to suggest esophagitis being present, and he, too, felt that the treatment of this patient by the unnecessary surgery performed, fell below standards generally required of physicians under similar circumstances.

    
    

52. Dr. Woodward, the Respondent's expert, was of the opinion that the patient's hospital chart did not support the operation and that the patient's history was not suggestive of the presence of esophagitis. He also found that the endoscopy, while being said to show esophagitis, also resulted in a normal biopsy, thus hemorrhage present was likely induced by the biopsy forceps, since you do not typically see hemorrhage caused by esophagitis, rather you see inflammation. Dr. Woodward did not think the patient had ever had esophagitis and did not think she needed the reflux preventative operation. Thus, he felt the procedures performed were unnecessary, although he would not actually state he had sufficient information to call this type and level of treatment malpractice. Once again, Dr. Skinner believed the treatment and operation to be appropriate. The opinion of Dr. Williams and the opinions of Drs. Roberts and Woodward, to the extent they are corroborative, are accepted.

    
    

53. Felix Williams was a 62-year-old black male who was admitted in August 1981 to the service of Dr. Kahn. At that time he had a three-week history of epigastric pain with radiation to the back. Mr. Williams had a long medical history of multiple hospital admissions and surgeries. He had previously had a vagotomy and a pyloroplasty, supposedly for duodenal ulcers, which may have been unnecessary. He also had a "Bilroth II" subtotal gasrectomy, or partial removal of the stomach and reattachment of the lower intestine, designed to better drain bile from the stomach. The patient had been taking Tagamet for two to three years before the August 1981 admission. The past surgeries did not relieve the patient's symptoms. He also had had a long history of pancreatitis, with recurring abdominal pain. He had been operated on many times with no relief and continued to have the chronic pancreatitis, related to a long history of alcoholism.

    
    

54. After being admitted on August 1, 1981, with a history of abdominal pain, the patient's serum amylase tested as being elevated. Urine amylase was also elevated. The amylase readings were only a little above normal, however, and it is common in people who have had chronic pancreatitis for years to have only a minimal elevation of their amylase when having an acute flare-up of pancreatitis. This is because the pancreas, over the years, has pretty much destroyed itself, according to Dr. Williams.

    
    

55. The patient's upper GI series X-rays showed hiatal hernia with some reflux, but no stricture demonstrated. Ultrasound tests of the gall bladder and pancreas showed them as being essentially normal. CAT scans of the abdomen on August 27, compared to previous CAT scans, showed less enlargement of the pancreas, although it was still enlarged, which was consistent with

    pancreatitis. On August 31, an endoscopy was performed by Dr. Elkadi which showed a hiatal hernia and some esophagitis, as well as some alkaline gastritis and alkaline esophagitis. The biopsy done by the pathologist showed benign gastric mucosa, and the patient had no strictures of the esophagus. Bile studies showed no calcium bilirubinate crystals.

    
    

56. In September 1981, during this same admission, Dr. Elkadi performed a cholecystectomy, or removal of the gall bladder, because of chronic cholecystis. He also performed a Roux-en-y revision of the original surgery. That is, he converted the Bilroth II surgical procedure to a Roux-en-y and also did a fundoplasty.

    
    

57. Dr. Williams did not feel the patient needed surgery at all, but rather his symptoms were due to chronic pancreatitis. He felt that if the person was going to be operated on, however, that the removal of the gall bladder was certainly indicated, and that this is one of the causes of pancreatitis. In this case, the man had a long history of alcoholism, which serves to cause pancreatitis which, once it gets started, tends to be self- perpetuating. Dr. Williams felt that any surgery done at this point with the patient would result in the same problem, that is not alleviating the pancreatitis and associated abdominal pain.

    
    

58. Dr. Elkadi knew of the pancreatitis or should be presumed to have known because the CAT scan taken on August 27, 1981, as well as the amyfase test results, revealed pancreatitis. He did not strongly consider pancreatitis as the primary problem, however, and, according to his notes, thought that repairing the reflux condition he believed to exist would take care of the problem. The Roux-en-y surgical procedure, as well as the fundoplasty, however, would not address the primary problem of pancreatitis, so the abdominal pain would still continue, which in fact it proved to do after Mr. Williams recovered from surgery. The pancreatitis-induced vomiting will not occur as much after the fundoplasty because that procedure prevents vomiting, but the patient will still have the same morbidity; it will just be manifested in a different way.

    
    

59. The opinion of Dr. Williams establishes that the gastroesophageal reflux, which was seen on the endoscopy, in reality was due to the pancreatitis, and that the fundoplasty which was performed would do nothing to alleviate the pancreatitis. It might make it be manifested somewhat differently by reducing vomiting, but the abdominal pain and elevated amylase characteristic of the pancreatitis were still there. In summary, Dr. Williams felt that the removal of the gall bladder was justified and that the Roux-en-y procedure, which is designed to move bile juices from the stomach, would be justified, but for the fact that the primary problem was pancreatitis, which surgery of that type will not correct. Dr. Williams did not feel that the Respondent misdiagnosed pancreatitis, but just that he was "overly optimistic" and should have appreciated the fact that surgical treatment of this type would not have helped the man and that the only surgical treatment for chronic pancreatitis is removal of the pancreas, which causes a severe morbidity problem in and of itself and would probably not be indicated either. Thus, Dr. Williams opined that Dr. Elkadi's treatment of Felix Williams fell below accepted standards of physicians practicing under similar circumstances and conditions.

    
    

60. Dr. Roberts also felt that the patient's basic problem was pancreatitis, relying on the same records that Dr. Williams relied on in his testimony. The patient had epigastric pain radiating through to the back, which is a classic indication of pancreatitis, which, when coupled with elevated serum amylase, establishes the presence of acute pancreatitis. Dr. Roberts was unable

    to find any history of nausea or vomiting, which would suggest gastric esophageal reflux, the admitting diagnosis being simply abdominal pain and pancreatitis. Since the patient had pancreatitis, that condition is consistent with the slowness of the stomach to empty itself, which in itself could have permitted reflux with changes consistent in the esophagus with esophagitis. Dr. Roberts was of the opinion that the records did not show the necessary symptomology to justify the anti-reflux surgery which was done. He thus felt that the standards of care of a reasonable, prudent physician under similar conditions and circumstances had not been met by the Respondent.

    
    

61. The Respondent's expert, Dr. Woodward, after reviewing the records of Felix Williams, also felt that the symptoms did not suggest reflux esophagitis, the indication for the fundoplication surgery. Dr. Woodward did not, in his testimony, discuss the fundoplication procedure specifically. Dr. Woodward opined that the symptoms did not suggest reflux esophagitis, although this was diagnosed by the endoscopy, which was performed by the Respondent himself. He also did not feel the biopsy report was very convincing and felt that "the pathologist was trying to help out the surgeon." Nevertheless, Dr. Woodward felt that there was no doubt about his having reflux alkaline gastritis, which Dr. Williams noted as well, and felt that this was due to the unnecessary surgeries already performed by past surgeons. Dr. Woodward noted that this was also associated with marked gastric retention or failure of the stomach to empty rapidly enough. He thus felt that the patient should have another operation, if nothing else, to try to get the stomach to empty better and to divert some of the duodenal fluid away and hopefully give him some degree of pain relief. This surgery was done in the form of the Roux-en-y procedure performed by the Respondent. Neither Dr. Williams nor Dr. Woodward felt that this surgery was improperly performed. Dr. Williams merely felt that it was probably unnecessary, since the root problem was pancreatitis. However, Dr. Woodward established that, at least in an effort to aid stomach emptying and avoid gastric pain associated with bile retention in the stomach, that the Roux-en-y procedure probably was necessary. None of the three doctors opined that the fundoplication was necessary, however, since reflux esophagitis was not present.

    
    

62. In summary, it is found that the surgeries performed, consisting of the cholecystectomy and the Roux-en-y procedure were appropriately done under the circumstances, although this is a marginal case for such surgeries being indicated, based upon the totality of the expert testimony, because of the underlying problem of pancreatitis. In any event, however, the fundoplication which was done was shown to be unnecessary and not medically indicated. Thus, as to that procedure, the Respondent's practice with regard to this patient fell below the medical practice standards referenced above.

    
    

    CONCLUSIONS OF LAW

    
    

63. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

64. The Motion to Dismiss referenced above and ruled upon at the hearing should be granted. Even if the Respondent's clinic was unlicensed, for purposes of the regulatory authority of the Department of Health and Rehabilitative Services, at Sections 395.003(1) and 395.018(1), Florida Statutes, as a clinic, it has not been shown that any such legal requirement for licensure as a clinic or "facility" is incumbent upon the Respondent in his personal capacity as a licensed physician, related to his practice of medicine. Section 458.331(1)(h) Florida Statutes, provides, as a ground for discipline:

    "(h) Failing to perform any statutory or legal obligation placed upon a licensed physician." (emphasis supplied)

    
    

    The provisions of Chapter 395 do not apply solely and specifically to physicians and do not purport to place any statutory obligation upon licensed physicians pe se. On the contrary, the licensing and regulation requirements of that chapter concerning required licensure of hospitals or ambulatory surgical centers apply to all persons, not to physicians as a class.

    
    

65. The plain meaning of Section 458.331(1)(h) clearly is to punish a physician's violation of any statute that directly relates to the practice of medicine and specifically places a legal obligation upon licensed physicians as a discrete class, as opposed to a statutory obligation imposed on all citizens. If the legislature had intended to enact the statute in accordance with the Petitioner's interpretation, it would not have included the language "placed upon a licensed physician." That language was used, however, which indicates a narrower legislative intent.

    
    

66. Even if the above subsection contemplates violations of Chapter 395 by physicians, it has not been proven that the Respondent operated a hospital or ambulatory surgical center, as contemplated by Chapter 395, Florida Statutes, as opposed to merely performing surgery in his office which physicians' licenses permit. Thus, for these reasons and for those raised by Respondent in its Proposed Recommended Order, the motion should be granted.

    
    

67. Pursuant to the provisions of Chapter 458, Florida Statutes, the Board of Medical Examiners is empowered to revoke, suspend or otherwise discipline a licensed physician who has been found to have violated any of the following provisions of Section 458.331, Florida Statutes:

    
    

    (n) By failing to keep written medical records justifying treatment of the patient, including but not limited to patient histories, examination results and test results;

    (t) By gross or repeated malpractice or 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;

    
    

68. The Petitioner has the burden to prove by clear and convincing evidence the alleged violations of the above-cited statutory provisions. Robinson vs. Florida Board of Dentistry, 447 So.2d 930 (Fla. 3rd DCA 1984); Sneij vs. Department of Professional Regulation, 434 So.2d 795 (Fla. 3rd DCA 1984)

    
    

69. The Respondent was charged in consolidated Case No. 86-1140 with malpractice or a violation of Section 458331(1)(t), Florida Statutes, regarding patient Eunice Stallings. The above Findings of Fact and the clear and convincing evidence of record reveal that the Respondent practiced medicine with regard to patient Stallings which was below the standard of care, skill and treatment recognized by reasonably prudent similar physicians as being acceptable. In this respect, he elected to perform major gall bladder surgery (cholecystectomy) on a 70-year-old patient in a clinical, outpatient setting.

    Her medical history showed that she was at a high risk for pulmonary complications attendant to such major surgery which, in the exercise of proper judgement, should have caused the doctor to see that she was hospitalized before performing such surgery. Additionally, as shown by the above Findings of Fact, the doctor failed to consider that complications can increase with age and failed to make appropriate plans for continuous, competent bedside nursing. In addition to having inadequate nursing care available, he performed a major surgical procedure without having sufficient contingency plans developed regarding hospital admission and care in case an emergency arose that could not be handled in the outpatient clinic.

    
    

70. Indeed, such an emergency did arise, and the patient had to be hospitalized, with the fortunate result that the patient ultimately did not suffer permanent injury as a result of the surgery being performed on an outpatient basis. However, the Respondent's decision to perform such surgery on this particular elderly patient, with a medical history of pulmonary problems, coupled with the fact that he himself did not have authorization to admit her to the hospital in case of emergency, reveals a lack of judgment which, when considered with the peculiar facts surrounding this patient's condition and manner of treatment is sufficient to constitute a violation of Section 458.331(1)(t), Florida Statutes.

    
    

71. Concerning patient Ruth Cooey, the clear and convincing evidence of record underlying the above Findings of Fact showed that the Respondent failed to practice medicine with that level of care, skill and treatment recognized by reasonably prudent similar physicians as acceptable under similar conditions and circumstances. In this regard, it is noted, and found above that, although the surgery to correct the gastric outlet and to treat the peptic ulcer situation was clearly indicated and appropriate, that the performance of the Nissen Fundoplication was unnecessary. It was not indicated by the patient's history, test results and other records. Because of the patient's age and presenting condition, she was needlessly subjected to possible complications by this procedure. No showing of actual injury from a physician's failure to practice medicine with the requisite level of skill is required in order to support disciplinary action. Expert testimony establishing that the actions of a physician creates the potential for actual injury or harm is sufficient. Britt vs. Department of Professional Regulation, 492 So.2d 697 (Fla. 1st DCA 1986)

    
    

72. Both the Petitioner's experts, Drs. Williams and Roberts, as well as the Respondent's expert, Dr. Woodward, opined that an unnecessary operation can create the danger for potential injury or harm. Therefore, in view of the above Findings of Fact revealing the unnecessary nature of the fundoplication at issue, the Respondent is guilty of a violation of Section 458.331(1)(t), Florida Statutes, with regard to the Ruth Cooey case. The Respondent has also been charged, with regard to his treatment of patient Cooey, with failing to keep adequate written medical records which would justify the course of treatment of the patient, including, but not limited to, the patient's history and test results. In this regard, the clear and convincing evidence of record has established that the Respondent failed to document an adequate history on the patient's hospital chart, including necessary indications for the fundoplication procedure. He failed to note the significance of the negative Bernstein test, which should reveal whether the symptomology was present to justify the fundoplication procedure. Dr. Williams, as well as Dr. Woodward, the Respondent's expert, agreed that pertinent information regarding the patient's history was not placed in the hospital chart for the patient. Therefore, the Respondent has been established to have violated Section 458.331(1)(n), Florida Statutes, with regard to patient Cooey.

73. Concerning patient Debra Crosby, the clear and convincing evidence underlying the above Findings of Fact establish that indeed this patient, who was 28 years old, was an appropriate candidate for gastric bypass procedure. She was obese, and the gastric bypass procedure was agreed by the experts testifying to be indicated to relieve chronic, acute obesity. The fact that Dr.

    Elkadi proceeded, however, to perform a hiatal hernia repair, as well as the anti-reflux operation represents a failure to consider the well-accepted medical wisdom that relieving obesity alone will reduce pressure on the stomach which will thus cause the symptoms of gastric esophageal reflux to disappear with weight loss. The above Findings of Fact establish that the hiatal hernia repair and the anti-reflux operation was unnecessary and needlessly subjected the patient to complications attendant with any unnecessary surgery, especially that which is invasive of the body cavity. In short, the clear and convincing evidence of record establishes that the Respondent has violated Section 458.331(1)(t), Florida Statutes, with regard to patient Crosby by failing to practice medicine with that level of care, skill and treatment accepted by reasonable physicians practicing under similar conditions and circumstances.

    
    

74. Additionally, the Respondent did not document adequately the symptoms the patient was suffering, which would serve as an indication for the fundoplasty. Such symptoms as heartburn, regurgitation and dysphagia, which are associated with esophageal reflux disease, were not documented in the patient's records and the Respondent's notes. The symptoms which were recorded were not specific enough to provide a record basis justifying the partial fundoplication which was performed. The patient history and the hospital chart also was deficient in showing adequate justification for the surgical procedure which was performed. Thus, the Respondent is guilty of violating Section 458.331(1)(n), Florida Statutes.

    
    

75. Patient Dorothy Kay was a 68-year-old female who had been quite ill prior to surgery. Indeed the abdominal pain experienced may have been related to her diabetic condition, according to Dr. Williams. In any event, the evidence of record and the above Findings of Fact reveal, as delineated above, that there was no clinical indication that esophagitis was present. Drs. Williams and Roberts found no record suggestive of the presence of reflux esophagits in this patient, and even Dr. Woodward, Respondent's expert, agreed that there was no history suggestive of that condition. The clear and convincing evidence of record clearly shows that the fundoplication was unnecessary and that a reasonable physician practicing under similar conditions and circumstances would not have performed it. Therefore, the Respondent has violated Section 458.331(1)(t), Florida Statutes, with regard to patient Dorothy Kay.

    
    

76. It has also been established that the Respondent did not document her medication history in Ms. Ray's hospital chart nor a history suggestive of the presence of reflux esophagitis, which would indicate the appropriateness of the fundoplication which was performed. Nor did he document a sufficient patient history tracing the previous medical conditions she had suffered and which might serve to justify performing the fundoplication. Dr. Woodward, the Respondent's expert, agreed that the history concerning her medication was not sufficiently documented in the hospital chart and that the patient's history was not descriptive enough to be able to adequately discern the patient's problems. In short, it has been established that the Respondent has also violated Section 458.331(1)(n), Florida Statutes, by virtue of this inadequate record keeping and charting.

77. The Respondent performed a vagotomy as well as a fundoplication on patient Agnes McNeil. Expert testimony of Drs. Williams and Roberts established that this patient, who was experiencing abdominal pain, nausea and vomiting on a chronic basis was experiencing ulcer disease and not reflux esophagtis. The reflux she experienced was a symptom of the ulcer disease and relief of the ulcer situation was the appropriate course of action. Thus, it was established that the vagotomy performed in this case to relieve the ulcer condition was indeed a reasonable appropriate procedure. Clear and convincing evidence was also present, however, to establish that the Respondent failed to consider the patient's history involving chronic abdominal pain, nausea and vomiting as being probably related to the ulcer condition and not to chronic reflux esophagitis. There was no evidence that this patient had clinically significant reflux esophagitis and thus the anti-refluxsurgery was not indicated nor warranted. Thus, the Respondent performed an unnecessary operation based upon the extant history and symptomology. He acted in a manner inconsistent with the accepted standards of reasonable physicians practicing under similar conditions and circumstances and thus violated Section 458.331(1)(t), Florida Statutes.

    
    

78. Respondent has also been charged as to this patient with the violation of Section 458.331(1)(n), Florida Statutes, concerning alleged inadequate record keeping with regard to this patient. The clear and convincing evidence of record has established that the records were rather sparse and inadequate as to this patient in showing a symptomology which would justify the fundoplication procedure which was done. Indeed the symptoms which were noted actually had more of a causal relationship to the ulcer disease. Thus, the records kept on this patient were really supportive of ulcer disease and not the fundoplication procedure. They support, at most, the appropriate vagotcmy surgery which was performed. The records regarding the upper GI series and the pathology report did not reveal evidence of clinical reflux esophagitis. Thus, the Respondent's records were inadequate to justify the procedures done in terms of the record keeping requirements of Section 458.331(1)(n), Florida Statutes.

    
    

79. Concerning patient Nguyen, the Respondent committed a violation of Section 458 331(1)(t), Florida Statutes, by performing a fundoplication in addition to the cholecystectomy performed on this patient. As revealed in the above Findings of Fact, pre-operative tests on this patient showed no objective findings of the reflux esophagitis condition which would indicate some appropriateness in performing the fundoplication procedure. No biopsy of the esophagus was performed either. The Respondent even acknowledged that the patient history was inadequate and not specific enough preoperatively to distinguish between the gall bladder symptoms and gastroesophageal reflux symptoms. The Respondent was aware of the language problem of this patient and yet took no steps to obtain an interpreter or other means of obtaining an adequate history from the patient.

    
    

80. The patient needed a cholecystectomy based upon the diagnostic findings which were confirmed by pathology tests. However, clinically significant reflux esophagitis, which might justify a fundoplication, was not demonstrated in this patient. The only scintilla of evidence of any esophagitis was Dr. Elkadi's own description of his endoscopy that he performed at the beginning of the surgical procedure for the fundoplication itself, after he had already made the decision to perform that procedure. In any event, no attempt was made to confirm that description of esophagitis by an appropriate biopsy.

    
    

81. The above Findings of Fact, based especially upon Dr. Williams' testimony and that of Dr. Roberts, show that the fundoplication was not medically justified and that Section 458.331(1)(t) was violated. The Respondent

    performed serious surgical procedures on this patient, without taking an adequate patient history prior to the surgery, knowing of the language problem, and yet failing to seek assistance in communicating with the patient in order to complete an adequate patient history, document appropriate symptomology and other facts which would justify his course of treatment. This, in itself, constitutes failure to practice medicine with the level of care, skill and treatment recognized by reasonably prudent similar physicians as being acceptable. The Respondent himself acknowledged that the language problem hindered his obtaining an adequate history and yet he did nothing to overcome it.

    
    

82. The Respondent's own expert, Dr. Woodward, agreed that there was nothing in the patient's history suggestive of reflux esophagitis and that the patient's hospital chart itself did not clarify that question. In short, the clear and convincing evidence of record supportive of the above Findings of Fact show that, in the above particulars, Section 458.331(1)(n) and (t) have both been violated.

    
    

83. The above Findings of Fact establish also that, as to patient Rosey Peel, the fundoplication performed on that patient was unnecessary. Clear and convincing evidence was presented to establish that the abdominal pain, nausea and vomiting exhibited by this patient were related to bile reflux gastritis which does not represent clear symptomology justifying the performance of a fundoplication procedure. The patient also had an antrecectomy, a Roux-en-y, a vagotomy and a gastrojejunostomy. Those procedures should have alleviated the bile reflux problem the patient was having and should have alleviated her symptoms. There was clearly no indication for the additional fundoplasty. Here again the Respondent failed to adequately document the patient's condition in the records and to show thereby that a justification for performing the fundoplication existed with this patient. He has thus violated the record keeping provision of section 458.331(1)(n)

    
    

84. Concerning the fundoplication performed (in addition to a vagotomy and pyloroplasty) on patient Rosey Smith, the Respondent failed to recognize, from the patient's history, the characteristics of the "gas bloat syndrome." The endoscopy performed on the patient and the patient's history revealed no esophageal strictures or other indication for the fundoplication procedure. The totality of the patient's records simply contains no indication justifying the fundoplication. The above Findings of Fact, predicated upon the expert testimony of Drs. Williams and Roberts, establish that the treatment fell below the accepted standard for similar physicians under similar conditions and circumstances.

    
    

85. It has also been demonstrated that the patient's hospital records did not document sufficient symptomology to justify the surgical procedure in question and thus did not give an indication for the surgery that was performed. The positive acid reflux test found and documented in this case did not alone indicate chronic reflux esophagitis, the indication for the fundoplication procedure. Sufficient clear and convincing evidence was presented to show that the written patient records did not justify the course of treatment engaged in. Thus, the Respondent has been established to have violated Sections 458.331(1)(t) and (n), Florida Statutes.

    
    

86. The above Findings of Fact demonstrate that the Respondent performed a highly selective vagotomy as well as a fundoplication on patient Linda Turner. The clear and convincing evidence underlying those findings show that there was nothing in the patient's history suggestive of esophagitis being present. The

    Respondent's endoscopy report showed esophagitis but the biopsy which would be designed to verify that situation showed the patient's situation to be normal. The record does not really suggest that the patient had esophagitis, much less chronic, reflux esophagitis, and thus the anti-reflux surgery at issued was not indicated and was unnecessary.

    
    

87. The Respondent's expert, Dr. Woodward, himself agreed that the hospital chart did not contain any information supporting the need for this operation. Here again, it has also been established that the written records and test results only justified, at most, an abdominal exploration. The biopsy, as well as the upper GI series, were shown to be negative. The hemorrhage shown was likely induced by the biopsy forceps themselves, as even Dr. Woodward acknowledged. The hospital chart simply did not document the indication for the anti-reflux surgery which was performed and thus the operation was not justified based upon the written patient records. The Respondent has thus been established to have violated Section 458.331(1)(n) and (t), Florida Statutes.

    
    

88. Concerning patient Felix Williams, the above Findings of Fact reveal that the patient's underlying problem was pancreatitis which resulted in the symptoms of pain and nausea that he chronically experienced. Although the Respondent's endoscopy described esophagitis, the related biopsy was not convincing, and the patient had no other symptoms of gastroesophageal reflux. The clear and convincing evidence of record thus reveals that the patient's problem was really related to pancreatitis, which none of the procedures performed by the Respondent were designed to address. It is true that the Roux- en-y revision of the gastrojejunostomy could help alleviate the problem the patient had developed, related by Dr. Woodward to the previous unnecessary surgeries, in helping the stomach to empty more readily. This would, in turn, give the patient some relief from the pain and vomiting, but clearly no indications appear in the patient's records justifying the fundoplication procedure. Here again, the Respondent did not properly document in the records the symptomology necessary to show, gastroesophageal reflux which in turn would be the indication for the fundoplication procedure which was done. In short, the totality of the clear and convincing evidence shows the Respondent violated Sections 458.331(1)(t) and (n), Florida Statutes.

    
    

89. The Respondent has not been shown to have been the subject of any prior disciplinary action. Because of the continuing pattern of the violations, however, a substantial penalty is warranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that a Final Order be entered by the Board of Medical Examiners suspending the Respondent's license for a period of one year, with reinstatement to active status contingent on Respondent making satisfactory showing, by completing continuing education courses, or in such manner as the Board may elect, that he has worked diligently to enhance his knowledge and skill in the area of gastroenterological surgery, including the "indications" for such. It is further recommended that the Respondent's license be placed in probationary status for two years thereafter, with such terms and conditions as the Board deems appropriate, within the guidelines of Rule 2lM-20.001(t), Florida Administrative Code. The failure to comply with any such terms and conditions should result in revocation.

DONE and ORDERED this 27th day of December, 1988, In Tallahassee, Florida.

MICHAEL RUFF

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 28th day of December 1988.

APPENDIX TO RECOMMENDED ORDER CASE NOS. 86-1140 & 86-1327

Petitioner's Proposed Findings of Fact:

1. Accepted.

2-3. Accepted generally, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

1. Accepted.

2. Accepted generally, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

6-17. Accepted.

18-20. Accepted generally, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

1. Accepted.

2. Accepted generally, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

23-25. Accepted.

26. Accepted generally, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

27-29. Accepted.

30. Accepted generally, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

31 #1. Accepted generally, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

31 #2. Accepted.

1. Accepted generally, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

2. Accepted.

3. Accepted generally, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

4. Accepted.

36 #1. Accepted.

36 #2. Accepted.

37-40. Accepted.

41. Accepted generally, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

42-44. Accepted.

45. Accepted generally, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

Respondent's Proposed Findings of Fact:

13-20. Accepted, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

21-22. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

23. Rejected as not being of probative material import. 24-25. Rejected as to its purported material import.

26-29. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

1. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter and as to its purported material import.

2. Rejected as to its purported material import.

3. Rejected as contrary to the greater weight of the evidence, as subordinate to the Hearing Officer's Findings of Fact on this subject matter and as to its purported material import.

33-34. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

1. Rejected as contrary to the greater weight of the evidence, as subordinate to the Hearing Officer's Findings of Fact on this subject matter and as to its purported material import.

2. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

37-39. Accepted.

1. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

2. Rejected as contrary to the greater weight of the evidence, as subordinate to the Hearing Officer's Findings of Fact on this subject matter and as to its purported material import.

42-43. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

1. Accepted.

2. Accepted, but not as to its purported material import.

46-47. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

48. Accepted.

49-53. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

54-56. Rejected as to its purported material import.

57. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

58-61. Accented.

1. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

2. Rejected as to its purported material import.

64-65. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

1. Rejected as to its purported material import.

2. Rejected as not being of probative material import.

68-69. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

1. Rejected as contrary to the greater weight of the evidence, as subordinate to the Hearing Officer's Findings of Fact on this subject matter and as to its purported material import.

2. Rejected as not being of probative material import.

3. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

4. Rejected as to its purported material import.

74-77. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

1. Accepted.

2. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

3. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

4. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

5. Accepted.

83-84. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

85-86. Accepted.

87-89. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

90-91. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

1. Accepted.

2. Accepted, but not in itself dispositive of any material Issue.

94-95. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

1. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

2. Rejected as to its purported material import.

98-99. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

100. Rejected as to its purported material import.

101-102. Rejected as subordinate to the - Hearing Officer's Findings of Fact on this subject matter.

103-104. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter and as to its purported material import.

105-107. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

1. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter and as not in accordance with clear and convincing evidence.

2. Rejected as not being of probative material Import.

3. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

4. Accepted.

5. Accepted, but not to the extent that the fundoplication was indicated.

6. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

7. Rejected as contrary to the greater weight of the evidence, as subordinate to the Hearing Officer's Findings of Fact on this subject matter, as not being of probative material import and as constituting argument of counsel.

8. Rejected as not being of probative material import.

9. Rejected as contrary to the greater weight of the evidence, was subordinate to the Hearing Officer's Findings of Fact on this subject matter and as not being of probative material import.

117-119. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

120. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter and not of material import in itself.

121-122. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter and not in itself dispositive of material issues.

123-127. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

128-130. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter and as to its purported material import.

131-132. Rejected as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

133-142. Really amount to legal argument and recitation of testimony and evidence regarding the Motion to Dismiss, which has been dealt with supra.

COPIES FURNISHED:

Roosevelt Randolph, Esquire KNOWLES & RANDOLPH

528 East Park Avenue Tallahassee, Florida 32301

Spiro T. Kypreos, Esquire LEVIN, MIDDLEBROOKS, MABIE,

THOMAS, MAYES & MITCHELL, P.A.

226 South Palafox Place Post OffIce Box 12308 Pensacola, Florida 32581

Harry Rein, Esquire 3803 Lake Sarah Drive Orlando, Florida 32804

Bruce D. Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Nonroe Street Tallahassee, Florida 32399-0750

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-001140

Orders for Case No: 86-001140