STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1152
)
MICHAEL F. SONG, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
A formal hearing in this cause was held pursuant to notice on December 15, 1988, in Tallahassee, Florida by Stephen F. Dean, assigned hearing officer of the Division of Administrative Hearings. This dispute arose on an administrative complaint filed by the Board alleging that the Respondent had violated Sections 458.331(1)(1), (n), (q) and (t), Florida Statutes. The parties were represented as follows.
APPEARANCES
For Petitioner: Robert D. Newell, Esquire Department of Newell & Stahl, P. A. Professional 817 North Gadsden Street Regulation: Tallahassee, Florida 32303
For Respondent: John D. Buchanan, Jr. Esquire
Henry, Buchanan, Mick & English, P.A.
Post Office Drawer 1049 Tallahassee, Florida 32302
STATEMENT OF THE ISSUES
The issue is whether the Respondent violated Subsections 458.331(1)(1), (n), (q), and (t), Florida Statutes, as alleged in the administrative complaint.
FINDINGS OF FACT
A. BACKGROUND
Dr. Song is a licensed physician in the State of Florida, having been issued license number ME 0033410, and was so licensed at all times material to this proceeding.
Dr. Song is a Board certified member of obstetrics and gynecology.
Dr. Song is of Korean origin and was naturalized as an American citizen in 1978. He was graduated from Seoul Catholic Medical College in Seoul, South
Korea, on February 16, 1963. From 1963 to 1967, he served in the South Korean Army as a medical officer. He interned at Howard University Medical School, Washington, D.C. for one year. He was a surgical resident at St. Peters General Hospital, New Brunswick, New Jersey. He changed his specialty from general surgery, to a residency in obstetrics and gynecology at Allentown Hospital from 1969 to 1972. He worked as an emergency room physician at Holy Redeemer Hospital, Jenkintown, Pennsylvania from October 1972 until August, 1974. He joined the U.S. Navy on September 1, 1974. He was transferred to Naval Regional Medical Center, Orlando, Florida, where he served from August 1976 until September, 1981, and received an honorable discharge from the United States Navy in 1981. He then began a solo private practice in Orlando, Florida. He was on the staff of Florida Hospital in Orlando from at least 1982 until 1985 and was on staff there for all times material to this proceeding.
Dr. Song was the primary physician who treated the seven patients in question during their pregnancy, labor and delivery.
Respondent at all times material to this proceeding has been licensed in the State of Florida. (Pet. No. 21)
Patient 178793
Patient 178793, a 27 year old white female, was admitted at approximately 12 o'clock midnight to Florida Hospital in active labor for her first delivery on February 7, 1983 (Pet. No. 20, p.6; T.37-38). Respondent was the admitting physician (Pet. No. 4).
The patient was fully effaced in a vertex presentation and dilated to 9 cm. at 8:30 a.m. and was fully dilated by 9:45 p.m. The patient was transferred to the delivery room at 10:10 p.m. where the attending nurses and Dr. Song encouraged her to push; however, the baby only progressed .5 to 1 cm. from 8:30 to 10:30 a.m. (Pet. No. 22, p.11). Respondent delivered the patient by mid- forceps at 10:53 p.m. (Pet. No. 20, p.7,9). At the time she was delivered she had been in labor from 1.5 to 2.5 hours.
According to the nursing notes, Petitioner's Exhibit 4, at 7:40 a.m. the internal fetal heart monitor failed to work. No explanation is given in the nurse's notes about what was done to correct the problem. At 9:00 a.m. the IV which had been hung at 8:15 a.m. began to infiltrate (move into the tissue surrounding the site at which the needle is inserted) and as a result, the IV was discontinued. The patient was given oxygen between 9:00 and 9:30 a.m., at which the fetal heartbeat had decelerated to between 90 and 100. The normal range for a fetal heartbeat is between 110 and 180 (T. 51). Concurrently, the internal heart monitor was reported to have failed again and could not be made to work although the electrode was changed three times. The external monitor was reapplied. At 9:45 a.m. the fetal heart rate is indicated to have decreased during a contraction. Also at 9:45 a.m. the IV was restarted in the left arm.
The spontaneous delivery of the patient halted between 9:30 and 10:00
a.m. This resulted in fetal stress as indicated in the decrease in heart rate. The problem was most probably caused by the baby's shoulder becoming hung on the mother's pelvis. A primary indicator of fetal stress, the fetal heart monitor, was not working and there were problems with maintaining the mother's IV, an important matter if an emergency cesarian section were necessary. See Fetterman Deposition, Page 55, et seq. Under these circumstances, the ,Respondent decided to intervene by delivering the baby using mid-forceps.
"Low and mid" modifying forceps reference the position of the top of the baby's head as it is coming through the birth canal. The definition involves a measurement of the distance in centimeters from a location in the birth canal. The definition involves a measurement of the distance in centimeters from a location in the birth canal referred to as the Ischial Spine. High-forceps situations are outside the accepted standard of care in modern obstetrics.
The generally accepted standard of care allows forceps deliveries with the use of low-forceps and mid-forceps. Mid-forceps are permissible from positions 0 to plus 2. Mid-forceps are only indicated where there is maternal or fetal distress or where the patient has a protracted second stage of labor in excess of two hours. (Pet. No. 22, p.14-15).
The baby had forcep marks on the cheek near the orbit of the right eye. The left earlobe and left neck were injured. The neck injury was described as a shearing injury by Dr. Stone in his report. (Pet. No. 4; 5; 6; 20, p.11). In addition, the baby's left arm was weak and it had a large caput succedaneum of the head due to molding of the head from a long, forceful labor. Fetterman Deposition, Page 97, line 18 et seq.
The forcep marks on the face indicated a less than optimal application of the forceps; however, forcep marks are to be expected in a delivery and or by no means unusual or reflect poor practice. The injury to the left neck could not have been made by the forceps. Fetterman Deposition, Page 44, line 14.
The mark on the neck and the weakness resulted from the traction needed to deliver the shoulder. Fetterman Deposition, Page 98 and 99. This together with the caput succedaneum indicates that the spontaneous delivery had arrested and justifies the Respondent's decision, particularly in the absence of a heart monitor strip due to equipment failure, to use mid-forceps to deliver the patient who had had a difficult labor of approximately two hours duration.
Apgar scores are a means by which newborn babies are rated as to their overall health. Apgar scores are given at one minute after birth and five minutes after birth. The range is from 1 to 10, with 10 being the best.
Patient 178793's baby had Apgar scores of 8 at one minute and 10 at 5 minutes. Patient 145489
Patient 145489 was admitted by Dr. Henry Bruce, a psychiatrist, to Florida Hospital between February 1, 1983 and March 10, 1983 for a diagnosed personality disorder and substance abuse (Pet. No. 19, p.8). Respondent had been patient 145489's physician since 1982 (T. 129). Patient 145489 was in her second pregnancy during the time she was treated by Dr. Song. Patient 145489 was in Florida Hospital from April 17, 1984 until April 18, 1984 under Dr. Song's care for possible overdose of drugs.
The April 17, 1984 admission was by her husband, with whom she was having marital difficulties, who reported that she had taken a drug overdose. The clinical findings and observations reported in the records do not support the claim of an overdose. The husband brought to the hospital many medications, only part of which had been prescribed by Dr. Song.
The patient was admitted on April 24, 1984 for labor and delivery of her second child. (T. 140). She was discharged on April 27, 1984.
The Respondent is charged with over prescribing controlled substances without sufficient medical justification to the patient during this pregnancy.
The Respondent's records reflect regular prenatal examinations, and various treatment for the patient's sundry complaints over her pregnancy.
Patient 145489 was prescribed 80 tablets of Parafon Forte, a muscle relaxant for back pain, on January 4, 1984 by Dr. Song.
Patient 145489 was prescribed 100 mg. Seconal #15 on January 17, 1984, for aid in sleeping, by Dr. Song. Additional prescriptions' of 100 mg. Seconal #15 were made by Dr. Song on February 1, 1984 and 100 mg. Seconal #12 on March 26, 1984 for aid in sleeping.
Patient 145489 was prescribed .05 mg. Valium #15 on January 17, 1984, by Dr. Song. Valium is recognized both as a muscle relaxant and tranquilizer. Both uses were appropriate if the patient was a pregnant addict.
Drs. Yelverton and Adler criticized Dr. Song's failure to refer this patient to an orthopedic specialist for consultation on the cause of her low back pain.
Dr. Song was concerned about the propensity for his patient to abuse drugs and in 1984 referred patient 145489 to another psychiatrist, Dr. Michael Gutman, a Board certified psychiatrist and head of the psychiatry unit at Florida Hospital at that time. Patient 145489 was generally an uncooperative and difficult-to-manage patient.
Dr. Song did not send patient 145489 to an orthopedic specialist because an orthopedic specialist would not have been able to ascertain any better diagnosis of the patient than Dr. Song without the use of x-rays which were contraindicated at her stage of pregnancy.
The utility of seeking a consult with an orthopedic specialist was disputed by Dr. Fetterman, who stated that low back pain is a common complaint with pregnant woman. Dr. Fetterman's expert testimony was that there was no deviation in the standard of care with regard to Dr. Song's treatment of patient 145489. The amounts of medication prescribed and the intervals between their prescription indicates that Dr. Song was aware of the woman's drug abuse problem, was providing her appropriate medications in appropriate amounts based upon her complaints which were medically reasonable.
Dr. Song did not prescribe excessive amounts of controlled substances to the patient or prescribe any controlled substances to her without sound medical indications. Dr. Song properly examined, diagnosed and treated patient 145489. Dr. Song did keep records with regard to prescription of drugs in her case and gave medical indications for the prescription of these drugs.
Patient 276960
Patient 276960 was a 23 year old white female in her third pregnancy without having given birth, the prior two pregnancies having been terminated by abortion. She saw Dr. Song initially on November 3, 1983, and was seen regularly by him until March 9, 1984. Her records do not reflect she was seen by him again prior to her admission by Dr. Song to the hospital on May 10, 1984 for a Non Stress Test. The records of this admission and Dr. Song's office records are at the back of Petitioner's Exhibit 3.
In Petitioner's Exhibit 3, "The History and Physical," Dr. Song notes in the patient's history dictated on June 9, 1984 after her delivery by caesarian section on June 5, 1984, that "A twin pregnancy was accidentally found out last month, which is out(sic) the middle of May because of a large abdomen and supposedly she is overdue and came in for partial induction. The twin pregnancy was found out at the time, and sonography done, biparietal diameter, with one at 35 weeks, and the other one at 37 weeks. It was decided not to do any more induction, and weight(sic), and she came in for active labor. She was followed up and taken care of in early pregnancy, and no remarkable obvious problems were noticed during pregnancy." (Emphasis supplied.)
Dr. Song testified that he had trouble being understood by medical transcribers. Problems with transcription of his dictation, as well as Dr. Song's use of English, are evident in the quoted section. Dr. Song indicated that his pronunciation of "possible" was frequently transcribed as "partial."
The Department's experts concluded after examination of the hospital records that Dr. Song had attempted to induce labor in this patient without ascertaining at what point she was in her pregnancy are based upon this document. They also concluded that Dr. Song should have determined that the patient was pregnant with twins, and that failing in this and attempting to induce labor was not professionally acceptable practice.
The nurse's notes reflect that the patient was admitted at 1:00 p.m. on May 24, 1984 for a "NON STRESS TEST." The hospital record includes a release executed on May 24, 1984 from the patient to conduct a "NON STRESS TEST." The nurse's notes reflect that the non stress test (NST) was conducted in connection with ultrasound examination. See Petitioner's Exhibit 3.
The Nurse's notes regarding these procedures state in part, "Fetus active-hard to get Ext. tracing but by constant observation & holding fetal ultrasounded-fetus reactive-3 movement in 15 m lasting 15 sec. acceleration 5 bpm-Dr. Song notified and pt sent home[.]" See Petitioner's Exhibit 3.
There is no reference in the nurse's notes to administration of any drugs during the May admission. See Petitioner's Exhibit 3.
The discharge record for the May admission reflects Dr. Song had discovered a twin pregnancy and discharged the patient at approximately 1:15
p.m. See Petitioner's Exhibit 3.
There is nothing contained in the May notes and records which would indicate that the purpose of the May admission was to induce labor. See Petitioner's Exhibit 3.
Dr. Song's patient history written in June led to speculation that Dr. Song had admitted the patient in May to induce labor and had stopped when he accidentally discovered the twins. The facts do not support this speculation.
Petitioner's proposed findings, paragraph 27, reference administration of 10 units of Pitocin. All records for the May admission contained in Petitioner's Exhibit 3 were searched and none of these records reflected the administration of Pitocin. The purpose of Pitocin is to induce contractions.
Nurse's notes for the May admission make no reference to contractions. No drugs were administered to the patient during the May admission. The patient was not in labor in May for several hours before induced labor was stopped. She was examined and discharged in approximately 15 minutes.
It was not unprofessional for Dr. Song to have missed finding the twin pregnancy by March 9, 1984, the patient's last visit to Dr. Song prior to the non stress test. Many twin pregnancies are not discovered until sonograms are performed, as in this case. See Fetterman Deposition, Respondent's Exhibit 3.
The patient was admitted on June 5, 1984 in active labor and was delivered by caesarian section of twins, one boy and one girl, without incident.
Patient 199111
Patient 199111 was admitted on November 13, 1982. Respondent was the admitting physician (Pet. No. 12). She arrived in labor and was 7 to 8 centimeters vertex presentation at 0 station. At 4:45 a.m. she was in active labor (Pet. No. 20, p.46). Patient was fully dilated at 5:00 a.m. and Respondent delivered by use of low forceps at 5:25 a.m. (Pet. No. 20, p.47, 50; Res. No. 3, p.60).
Though the use of low-forceps is considered a safe modality when medically indicated and properly used, low-forceps should still be used only when there is a medical need (Pet. No. 22, p.51). The principal criticism of the care rendered to patient 199111 by Dr. Song is that he performed a forceps delivery, allegedly without any medical necessity.
The patient record does reflect the existence of a thick green meconium amniotic fluid which is indicative that there was fetal distress either at the time noted or in the past (Pet. No. 20, p.48). Other than this, the record reflects that the patient was progressing normally and the monitor was normal (Pet. No. 20, p.48-49).
The pea soup meconium was an indication that the fetus had had or was having a difficulty and that under this circumstance this patient had to be delivered with the utmost speed. The option to have a cesarean would take to long, even if all preparations had been made. Deposition of Dr. Fetterman, Respondent's Exhibit 3.
DPR's own witness, Dr. Stone, noticed the same pea soup meconium and stated: " I can understand the obstetrician getting rather nervous and possibly doing a low forceps."
Dr. Song testified to having been aware of this pea soup meconium and that it was an indication that the baby was in acute distress and that a low forceps delivery was in fact indicated.
The condition requiring a medical necessity was present in this case and justified the Respondent's actions which were within accepted medical practice.
Patient 274312
Patient 274312, a 19 year old female as admitted to the hospital on April 8, 1984 for labor and delivery (T. 222). Respondent was the admitting physician (Pet. No. 15).
The principal complaint against the Respondent in the case of patient 274312 was that Dr. Song allegedly attempted to deliver a footling breech vaginally, was not prepared to deliver the baby by C-section and that this is a violation of the standard care.
Respondent states in his Clinical Resume dated April 12, 1984 that "an x-ray was taken to rule out small pelvis or abnormal position of breech presentation. It turned out one leg extended frank breech and the other leg was a complete position." (Pet. 15, p.104: Clinical Resume dated 4-12-84). Dr. Song's notes for April 11, 1984 make the same comment about the position of the legs of the fetus.
A complete breech presentation is where the bottom of the fetus is down and the feet are around the buttocks (T. 226). A footling breech is where the baby presents feet first (Pet. No. 22, p.59).
Patient was admitted at 12:05 a.m., an x-ray taken at 12:25 a.m., and a mini-prep was done prior to 1:00 a.m. An IV was started just after 1:00 a.m. and an abdominal preparation done at 1:15 a.m. Dr. Song directed preparations for a C-section and the patient was fully prepared for a possible C-section at 1:15 a.m.
According to the nurses notes, the patient did not reach full dilation prior to Dr. Song's decision to deliver her by C-section at approximately 4:20
a.m. when the patient had dilated to nine centimeters. See Pet 15, nurses notes, pages 115,116. (Pet. No. 22, p.62).
Respondent was trying to permit the patient to deliver vaginally, however because of fetal distress he delivered the patient by cesarean section. Mother and baby progress normally and were discharged on April 12, 1984. (Pet. No. 19, p.57; Pet. No. 22, p.59).
All the testimony indicates that footling breech presentations are too dangerous to attempt vaginal delivery unless there is rapid, spontaneous descent of the fetus.
It is within acceptable standards of care in obstetrics to attempt vaginal delivery of frank breech or partial footling breech provided there is no fetal distress. (Fetterman Deposition: Page 90, line 6-23.)
Dr. Marley's opinion was similar to that of Dr. Fetterman. She opined that a complete breech can be delivered vaginally provided you have adequate cervical dilation.
Dr. Yelverton, who indicated his preference for a cesarean-section when confronted with a complete breech, indicated that in the case of complete and incomplete breech presentations there was controversy within the obstetrical community about proper method of delivery.
There is no evidence in this case that the fetus was in other than a partial footling, partial complete breech. Dr. Song was the only witness who actually was present at the delivery in question and saw patient and the x-rays showing the presentation of the fetus. His descriptions of his findings dictated prior to the complained of conduct reflect a partial footling, partial complete breech.
The x-ray report, referred to by Dr. Song, in his summary was not made available by the Department of the Navy, which was the custodian of the medical records of this patient who was a Navy dependent.
Asked to articulate an opinion as to whether or not Dr. Song departed from the standard of care in doing this particular cesarean section, Dr. Stone replied that his personal choice would have been to perform a cesarean section sooner; however, he indicated that there were minorities of opinion which might differ with his. Dr. Stone believed that adequate preparation for an emergency had been made by Dr. Song.
The evidence in this case indicates that the presentation of the fetus in question was a combination of footling and complete. Attempted vaginal delivery of a partial footling, partial complete or frank breech presentation is appropriate unless there is fetal distress. Caesarian section is indicated if there is fetal distress.
Dr. Song did not attempt to deliver a footling breech vaginally, was prepared to deliver the baby by caesarian section, delivered the baby by caesarian section when fetal distress was noted, and did not violate the standard of care in treating this patient.
Patient 196663
Patient 196663 was admitted to the hospital at 7:15 a.m. on November 10, 1982. in early labor with ruptured membranes. (Pet. No. 20, p.53; T. 238). The patient was transferred from the Navy Base Hospital on that date and had not been previously seen by the Respondent. (Pet. No. 13, T. 238; Pet. No. 20, p.53).
The first page of Petitioner's Exhibit 13 indicates that the patient had a uterine pregnancy, 37 weeks; premature rupture membrane and labor; and postpartum bleeding. The same exhibit reflects delivery by low forceps.
The records of the patient's treatment at the naval hospital reflect that the patient was VDRL reactive which means the patient had syphilis antibodies. On 4-8-82 the husband reported that she had been treated. On 7-20-
82 the patient was given penicillin for VD and a retest of VDRL was planned. On 7-23-82 a second RPR (VDRL) was conducted and FTA was ordered. On 8-3-82 penicillin (2,400,000 units x 3 was ordered. These records were attached to the patient's records when she was transferred to Dr. Song's care. See Petitioner's Exhibit 13, page 8.
The Dr. Song's patient record indicates that on November 4, 1982 Respondent ordered a confirming test (RPR) upon the patient's next visit. Instead the patient entered the hospital in labor on November 10, 1982.
At 8:00 p.m. on November 10, 1982 the Respondent ordered an FTS-ABS for the following morning. (T. 244; Pet. No. 13). Upon the baby's birth, mother and baby were released from the hospital and Respondent's care. Based upon the fact that the patient was transferred from the navy hospital and the patient's medical records were obtained from the Navy, presumably, the patient received after care from the naval medical facility which had made the original determination that the patient had a positive VDRL. Respondent recalled, at hearing, that the test came back negative and, therefore, no penicillin was given to the baby (T. 242, 244).
Although the patient records are void of any notation that indicates that Respondent in formed the pediatrician of the FTA-ABS test results (T. 246), it would have been meaningless for Dr. Song to have advised the naval doctors of information which they knew prior to Dr. Song seeing the patient.
The principal criticism of the care rendered to patient 663 by Dr. Song is that he performed a low forceps delivery, as reflected in Exhibit 13, without obstetrical indications or documentation which justified such a delivery, and the alleged failure to keep records.
The records are clear that the patient had come into labor after premature rupture of the amniotic membrane, that the patient had a difficult labor, and that Pitocin was administered at 3:45 p.m. to eliminate an irregular labor pattern. Pitocin administration was continued until birth. At 5:10 the nurse and Dr. Song did a vaginal examination and noted swollen rim. Dr. Song instructed the patient not to push for awhile. Petitioner's Exhibit 13.
Dr. Song used low forcep, an accepted procedure If there is any fetal distress. The notes reflect that the mother had been In labor for 10 hours, that she had remained dilated at 8-9 cm. since 4:30 p.m. The baby's respiration at birth was delayed a half minute and oxygen was administered. Petitioner's Exhibit 13.
Regarding postpartum hemorrhage, Dr. Stone speculates that it may have indicated a hard forceps delivery; however, Dr. Stone admits it could also have been due to other things.
Dr. Fetterman testified that it was "obvious" that the postpartum bleeding occurred from the uterus because of pieces of placental material which were not sloughed off and was not the result of the use of forceps. Dr. Fetterman testified that the baby in this case had excellent Apgar scores of 9 and 9, and that Dr. Song did not deviate from the standard of care in delivering the child of patient 196663.
Drs. Fetterman and Song described how the premature ruptured membranes was an indication of potential infection or a problem for the fetus. Therefore, a low forceps delivery was indicated.
There is less than a preponderance of evidence in this case to suggest that Dr. Song departed from the standard of care with regard to the examination, diagnosis and treatment of patient 196663.
Patient 244254
Patient 244254 was a 26 year old Puerto Rican who was admitted to the hospital on September 26, 1984 in her forty-second week of her third pregnancy and who previously had delivered two children.
The forty-second week of pregnancy is critical, being considered a maximum term. Respondent was brought in to induce pregnancy in this patient.
The nursing notes for the period 8:30 p.m. until 12:40 a.m. are missing in the record. The last nursing note at 8:30 p.m. was that the patient was completely dilated and was being taken to the delivery room. It does not record any position for the baby. Other records show that the Respondent performed a caesarian section and delivery the baby at 11:19 p.m. and the mother
was resting after surgery at 12:40 a.m. The Respondent's testimony is the only eyewitness account of what occurred during the intervening period.
Expert testimony stated that a caesarian section under optimum conditions takes 15 minutes to perform. Approximately an hour before performing the caesarian section, at around 10:00 p.m., the Respondent's requested Dr. Hoover to examine the patient. Dr. Hoover recommended letting the woman remain in labor another hour unless fetal distress occurred. It was while waiting this hour, that fetal distress occurred, and Dr. Song performed the caesarian section and delivered a baby girl whose Apgar scores were 7 and 9. These Apgar scores indicate the baby was initially in some distress which was relieved by administration of oxygen.
Just prior to asking Dr. Hoover to examine the patient, Dr. Song had attempted to rotate and deliver the baby because the baby stopped in the transverse position with its shoulders caught on the mother's pelvic ridges. In this position, the baby's head is at the zero or mid-forcep position.
Dr. Adler's principal criticism of this case arose as a result of his hearing that Dr. Song had attempted a high forceps delivery. There is no evidence to support this supposition. Alternatively, Dr. Alterman complains that Dr. Song had departed from the standard of care by failing to make adequate notations in the record to justify any use of forceps in this case. It is true that there is a gap in the record; however, it appears that this was not the result of the failure to make notes, but the loss of notes.
In Dr. Fetterman's opinion, Dr. Song had two options, one being an immediate cesarean section, the other being an attempt at rotating the head with forceps. Dr. Fetterman emphasized that it was his belief that the only use of forceps in this case involved a mid-forceps procedure to facilitate delivery of the fetus out of the transverse arrest position so that it might proceed down the birth canal. Dr. Fetterman testified that a mid-forceps rotation was an accepted obstetrical procedure.
Dr. Fetterman testified that his reading of the charts in this case indicated that fetal heart sounds had dropped and that this was "certainly a reason for concern." This was the fetal distress which resulted in the caesarian section.
DPR's witnesses regarded to utilization of forceps in this case improper based upon a belief that Dr. Song was attempting mid-forceps delivery of this patient while on "probation." Dr. Song was using mid-forceps to rotate the baby out the transverse position which was for the purpose of delivering the baby. This use of forceps for rotation out of transverse arrest is an acceptable obstetrical maneuver, although, as in this case, the forceps generally leave marks on the baby's face.
On February 22, 1983, the Respondent resigned from his position at the Apopka Clinic by letter. See Exhibit 10.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this case and the parties pursuant to Section 120.57(1), Florida Statutes.
The Petitioner charges the Respondent in a four count administrative complaint with violation of Section 458.331(1)(t), Florida Statutes, by gross or
repeated malpractice or by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician under similar conditions and circumstances; violation of Section 458.331(1)(n), Florida Statutes, by failing to keep written medical records justifying a patient's course of treatment; violation of Section 458.331(1)(1), Florida Statutes, by making deceptive, untrue, of fraudulent representations in the practice of medicine or employing a trick of scheme in the practice of medicine; and violation of Section 458.331(1)(q), Florida Statutes, by prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substances, other than in the course of the physician's professional practice in the treatment rendered to patients identified by their patient numbers as 178793, 145489, 276960, 199111, 274312,
196663, and 244254.
Petitioner has the burden of proving the allegations contained in the administrative complaint.
Regarding patient 178793, there is no evidence that the Respondent failed to properly examine and properly diagnose the patient, failed to maintain proper medical records on the patient, prescribed any legend or controlled drug improperly, or made any untrue or fraudulent statements to the patient. There was competent evidence that some of the injuries were the result of the prolonged labor. There was evidence that the Respondent's use of mid-forceps was justified and that the application of the forceps in delivering the baby was less than optimal; however, there was evidence presented that forcep marks are not uncommon and do not reflect poor technique and practice. It is determined that this was not gross or repeated malpractice and that the Respondent practiced with the requisite degree of skill. It is the duty and professional obligation of a physician to treat his/her patient in accordance with the needs of the patient. Arbitrary standards regarding how long a woman should remain in hard labor before resorting to forceps or caesarian section are not professional standards of care, but nonprofessional avoidance of decision making.
Regarding patient 145489, there is no evidence that the Respondent failed to properly examine and properly diagnose the patient, practiced without the requisite skill, or failed to maintain proper medical records on the patient. There was evidence that the Respondent prescribed a legend or controlled drug to this patient; however, these drugs were prescribed in the course of professional practice and other than in accordance with acceptable practice.
Regarding patient 276960, there is no evidence that the Respondent failed to properly examine and properly diagnose the patient, failed to maintain proper medical records on the patient, prescribed any legend or controlled drug improperly, or made any untrue or fraudulent statements to the patient. There was no evidence that Dr. Song attempted to induce labor in this patient. The records reflect that the failure to determine the twin pregnancy was unremarkable given the period the patient did not see the doctor during her pregnancy. The evidence presented shows that the Respondent's treatment of this patient was not gross or repeated malpractice and that the Respondent practiced with the requisite degree of skill.
Regarding patient 199111, there is no evidence that the Respondent failed to properly examine and properly diagnose the patient, failed to maintain proper medical records on the patient, prescribed any legend or controlled drug improperly, or made any untrue or fraudulent statements to the patient. There was evidence that the Respondent delivered the patient by low-forceps which was
medically justified. The Respondent's treatment of this patient was not gross or repeated malpractice and the Respondent practiced with the requisite degree of skill.
Regarding patient 274312, there is no evidence that the Respondent failed to properly examine and properly diagnose the patient, failed to maintain proper medical records on the patient, prescribed any legend or controlled drug improperly, or made any untrue or fraudulent statements to the patient. There was evidence that the Respondent delivered the patient, who presented a partial footling, partial frank breech, by mid-forceps and that this procedure was medically acceptable under the circumstances and the delivery was medically justified. Respondent's treatment of this patient was not gross or repeated malpractice and the Respondent practiced with the requisite degree of skill.
Regarding patient 196663, there is no evidence that the Respondent failed to properly examine and properly diagnose the patient, failed to maintain proper medical records on the patient, prescribed any legend or controlled drug improperly, or made any untrue or fraudulent statements to the patient. There was evidence that the Respondent delivered the patient by low-forceps and that this delivery was medically justified; that he ordered the appropriate tests for a patient with indications of VD; and that the patient and child were discharged from Respondent's care and returned to the Navy's care, whose physicians were aware of the mother's positive VDRL test. Respondent's treatment of this patient was not gross or repeated malpractice and the Respondent practiced with the requisite degree of skill.
Regarding patient 244254, there is no evidence that the Respondent failed to properly examine and properly diagnose the patient, failed to maintain proper medical records on the patient, prescribed any legend or controlled drug improperly, or made any untrue or fraudulent statements to the patient. There was evidence that, when the patient's delivery was arrested, the Respondent attempted to use mid-forceps with the patient fully dilated to rotate the baby from the transverse position. There was testimony that the Respondent was "on probation" and could not use mid-forceps. Clearly, this is not gross or repeated malpractice in violation of Section 458.331(1)(t), Florida Statutes. The issue is whether it is "failure to practice with that level of care, skill
... which is recognized ... as ... acceptable..." contrary to said statutes. The basis for the probation is not clear. Presumably, Dr. Song was placed on probation for the events which formed the basis for this administrative complaint. There has been insufficient evidence presented to show that the Respondent's treatment of these patient was gross or repeated malpractice or
that the Respondent failed to practice with the requisite degree of skill. Even with patient 254, the use of forceps and caesarian section were medically justified. Therefore, it is concluded that there was insufficient basis for the Respondent to have been restricted in his practice; that Respondent's duty was to render the best possible treatment to his patient; and that the obligation to the patient takes precedence in a conflict between duty to the patient and the hospital. It is concluded that use of mid-forceps when on probation is not a failure to practice with requisite skill when the patient's condition warrants the procedure and there is no evidentiary basis for the probation; and the Respondent did not violate Section 458.331(1)(t) Florida Statutes.
The Petitioner has failed to show that Respondent violated any of the statutes as alleged.
Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Board of Medical Examiners dismiss its complaint against the Respondent.
DONE and RECOMMENDED this 25th day of May, 1989, in Tallahassee, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1989.
APPENDIX A
Rulings on Respondent's Objections presented in Petitioner's Appendix A:
Sustain the objection.
Sustain the objection.
Overrule the objection.
Sustain the objection.
Overrule the objection.
Sustain the objection.
Sustain the objection.
Rulings on Respondent's Objections to Petitioner's Exhibits:
Exhibit 2: Overruled. Note, however, the facts presented at the hearing reveal that half of the medication mentioned had not been prescribed by the Respondent. There was nothing unusual or inappropriate in the medications prescribed by Respondent. The Exhibit reflects an attitude of the hospital staff of suspicion concerning the Respondent which is not supported in the medical records. The Respondent's records for the patient reflect the basis for the prescriptions which, in the opinion of a medical expert, were appropriate in terms of the quantity of medications prescribed and the time frame in which they were prescribed. The suggestion by Dr. Adler that the pregnant patient be sent to an orthopedic specialist for low back pain in order to support the treatment was clearly a means of avoiding responsibility for the course of treatment. Dr. Song was willing to accept that responsibility and the records support the propriety of his decision.
Exhibit 5: Sustained. This purports to be a statement of a medical examination conducted contemporaneously with the giving of the statement; however, a check of the dates reveals that it could not have been made on January 11, 1983 because Patient 178793 did not give birth until February 7, 1983. Because of this inconsistency, Respondent's objection is sustained.
Exhibit 6, 7, 8, 10, 11: Petitioner seems to assert that Exhibits 6, 7, 8, and 10 relate to peer discipline and that as such they should be admissible.
However, the only evidence of possible peer discipline is Exhibit 11, and it merely references an interview concerning possible corrective action. Part of the basis of this interview are cases discussed by Dr. Stone and the Respondent on December 1, 1982 and February 3, 1983 (Exhibit 11, second paragraph);
however, Exhibits 6, 7, 8, and 10 relate to an event on February 7, 1983 which could not have been addressed in either of these conversations. It is conjectural whether any disciplinary action was taken and whether the event of February 7, 1983 was the basis for action, if any action was taken. The objection is sustained regarding Exhibits 6 and 7. Exhibits 8 and 10 will be considered to the extent that they state the findings of physical examinations about the baby whose treatment is the subject of a portion of the Board's administrative complaint.
Objection of Petitioner to Respondent's Exhibit 3, Deposition of Henry H. Fetterman, M.D.
Counsel for Petitioner presented a continuing objection to questions calling for an opinion on the standards of care in Florida on the basis that the witness was not licensed in Florida. The standard of practice for obstetrics is not so parochial that a recognized out-of-state expert cannot offer an opinion concerning the standards of care of obstetric practice. This objection is overruled and the testimony of Dr. Fetterman will be received.
APPENDIX B
Findings on Proposed Findings
The findings contained in the following paragraphs of Petitioner's Proposed Findings were adopted substantially:
1, 2, 3, 4, 5, 6 - that forcep marks occur, 8, 15, 16, 17 - patient complained, 18-1 and 2*, 20 - only prescriptions written are in chart, 22, 26 - dates of admissions, 33, 38, 46, 47, 54, 56, 58, 69, 33, 35, 37 - use of low
forceps safe, 38, 39, 46, 48 - indications for forcep delivery, 53, 54, 56, 58, 59, 60 - claim to rotate baby, 64 - head was at minus 1 on admission and 0 to plus 1 when rotation was attempted, 66 - standard to conduct vaginal exam and reflect chart, and 69.
The findings contained in the following paragraphs of Petitioner's Proposed Findings were rejected because they were contrary to facts which were found to be more credible:
6 - that forcep marks occur when the doctor is rushed, 7, 9, 10, 11, 12, 17
- no indication of examination, 21, 26 - premature labor, 27 - see special finding, 28,29, 30 31, 32, 34, 36, 39 - concerning type of breech, 40, 44, 45,
47, 50, 51, 52, 57, 60 - all after first sentence is hearsay, 61, 64 - what prudent ob-gyn would do, 66 - Respondent's violating standard, and 70.
The findings contained in the following paragraphs of Petitioner's Proposed Findings were rejected as irrelevant to the issues in light of other findings:
13, 14, 19, 20 - all after first sentence, 23, 24, 25, 41, 42, 43, 55, 62, 63, 65 - hearsay about restriction on forceps and inability of a hospital to restrict practice of physician in a manner contrary to patient's interest and contrary to full grant of practice by state licensing' agency, and 67.
The findings contained in the following paragraphs of the Respondent's Proposed Findings were adopted substantially:
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 29, 21,
22, 23, 25, 26, 27, 28, 29, 30, 31, and 32.
The findings contained in the paragraph 24 of the Respondent's Proposed Findings were rejected as irrelevant in light of other findings.
*Petitioner's Proposed Findings of Fact had two paragraphs 18.
COPIES FURNISHED:
Robert D. Newell, Esquire Newell & Stahl, P. A.
817 North Gadsden Street Tallahassee, Florida 32303
John D. Buchanan, Jr. Esquire Henry, Buchanan, Mick &
English, P.A.
Post Office Drawer 1049" Tallahassee, Florida 32302
Dorothy Faircloth, Executive Director Board of Medicine
Department of Professional Regulation 1940 North Monroe Street
Suite 60
Tallahassee, FL 32399-0729
Kenneth Easley, Esquire General Counsel
Department of Professional Regulation 1940 North Monroe Street
Suite 60
Tallahassee, FL 32399-0729
| Issue Date | Proceedings |
|---|---|
| May 25, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 15, 1989 | Agency Final Order | |
| May 25, 1989 | Recommended Order | Obstetrician, malpractice, failure to keep records, fraud, deception, multiple counts of forcep use, charges not proven |
