STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-3690

)

MIGUEL G. GAZEK, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on March 24, 1987, in West Palm Beach, Florida.

APPEARANCES

FOR PETITIONER: T. Michael Kennedy, Esquire

Park Place II

1501 Venera Avenue, Suite 240 Coral Gables, Florida 33146

FOR RESPONDENT: No appearance.

BACKGROUND

By administrative complaint filed on August 19, 1986 petitioner, Department of Professional Regulation, Board of Medicine, has charged that respondent, Miguel G. Gazek, a licensed physician, had violated various provisions within Chapter 450, Florida Statutes (1985). The complaint generally alleges that while treating four patients in 1983 and 1984 at Delray Community Hospital, respondent was guilty of gross and repeated malpractice or failing 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 within the meaning of Subsection 458.331(1)(t), Florida Statutes (1985), and that respondent failed to keep written medical records justifying the course of treatment of the patients, including but not limited to, patient histories, examination results and test results in violation of Subsection 458.331(1)(n), Florida Statutes (1985).

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986). The matter was referred by petitioner to the Division of Administrative Hearings on September 19, 1986, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated October 24, 1986, the final hearing was scheduled on February 10 and 11, 1987, in Delray Beach, Florida. This date was subsequently changed to February 25 and 26, 1987 in Fort Lauderdale, Florida.

At the request of respondent, the final hearing was rescheduled to March 24, 1987 in West Palm Beach, Florida.

At final hearing petitioner presented the deposition testimony of Drs.

Bruce Levin, Dick L. Van Eldick, Steven E. Reznik and Bryan J. Wasserman, and John D. Bartlett, executive director of Delray Community Hospital. It also offered petitioner's exhibits 1-7. All were received into evidence. In addition, hearing officer exhibit 1 was received in evidence. There was no appearance by respondent. 1/

The transcript of hearing was filed on April 9, 1987. Proposed findings of fact and conclusions of law were filed by petitioner on April 24, 1987. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

At issue is whether respondent's license as a medical doctor should be disciplined for the alleged violations set forth in the administrative complaint.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Introduction

   
   

   1. At all times relevant hereto, respondent, Miguel G. Gazek, held physician license number ME 0031784 issued by petitioner, Department of Professional Regulation, Board of Medical Examiners (DPR). His last known address is 3434 Lake Ida Road, Suite 1E, Delray Beach, Florida.

      
      

   2. When the events herein occurred in 1983 and 1984, respondent was a member of the hospital staff at Delray Community Hospital (DCH) in Delray Beach, Florida. When he first joined the staff, Gazek was given provisional status. This means he was to be evaluated for a period of time, and if he met the hospital standards, he would be promoted to active status. While on provisional status, Gazek's care of certain patients was reviewed by other physicians, and this culminated in his hospital privileges being revoked, and referral of the matter to petitioner for possible disciplinary action. The administrative complaint was later issued on August 25, 1986. There are four patients whose treatment is being questioned in this proceeding, and who, for purposes of identity, will be referred to by their initials. Each case will be discussed below.

      
      

   3. In support of its case, petitioner presented the testimony of four physicians who have been accepted as experts in this proceeding. They are Drs. Bryan Wasserman, Bruce Levin, Dick Van Eldick and Steven Resnik. All are licensed physicians in the Delray Beach area and two (Wasserman and Resnik) are board certified in internal medicine. A third (Van Eldick) is board certified in family practice while the fourth (Levin) is eligible for certification in internal medicine. Three of the physicians were colleagues of Gazek when he was on the staff at DCH. The fourth (Van Eldick) was retained by petitioner to review the patient files in question.

      
      

2. Patient F.S.

   1. On September 4, 1984 F.S., a 69 year old female, was admitted to DCH with a history of slight exertional dyspea and chest pain. Her primary care physician was Dr. Jack Goldberg, a provisional staff member at DCH. Of some significance was the fact that F.S. had just been recently discharged from DCH on August 28, 1984 after having sustained an acute myocardial infarction (MI) and an episode of pulmonary edema and congestive heart failure. Dr. Goldberg's initial orders clearly indicated that F.S. was in decompensated congestive heart failure with a possible evolving MI.

      
      

   2. Although Gazek was an internist, Dr. Goldberg requested Gazek examine the patient because she was having more difficulty in breathing. Gazek examined the patient on September 6, 1984. By this time, there was gross clinical decompemsation in the patient's status. Indeed, F.S. was in acute distress, and was possibly suffering an acute evolving MI and an impending acute pulmonary edema. Despite this condition, Gazek did not see fit to transfer the patient to an intensive care unit (ICU) and felt the congestive heart failure was under control.

      
      

   3. Because the head nurse was distressed at Gazek's assessment, Goldberg's peer reviewer (Dr. Wasserman) was called into the case. Wasserman became concerned because Gazek was not a cardiologist, yet was rendering advice on the patient's condition. Wasserman then requested that a board certified cardiologist (Dr. Roger Zitrin) see the patient. Zitrin transferred F.S. to an intensive care unit, ordered diuretics for the patient and placed her on a nitroglycerin drip. He also ordered lasix, a medication for F.S.' acute heart condition. Gazek later had an occasion to see the patient and again felt her condition was not critical. He countermanded Zitrin's orders by discontinuing the diuretics and ordering a nitroglycerin pad instead of the drip already ordered by Zitrin. The patient later expired while in the ITU.

      
      

   4. Through expert testimony it was established that on September 6, F.S. should have been transferred to an ICU setting, placed at bedrest, given nitrates, intravenous nitrate, morphine and Foley catheter, and have her fluids restricted. By failing to recognize the severity of F.S.' condition, countermanding a cardiologist's orders, and not having the patient promptly transferred to an ICU setting with appropriate treatment, Gazek failed to practice medicine with that level of care, skill and treatment expected of a Delray Beach area physician.

      
      

3. Patient V.S.

   
   

   1. Patient V.S. was a 22 year old female admitted to DCH on October 4, 1983. She bad previously been seen by Gazek at his office where she complained of palpitations and a nine-pound weight gain in the prior few months. An electrocardiogram (EKG) performed on V.S. at respondent's office on September 29, 1983 revealed a normal sinus rhythm.

      
      

   2. Gazek initially diagnosed V.S. as having premature ventricular contractions (PVC). The ailment is frequently found in persons with severe heart disease. Gazek also suspected V.S. bad impending congestive heart failure because of her recent weight gain. Because of this, she was admitted to the hospital.

      
      

   3. After admitting the patient, Gazek ordered V.S. placed on lanoxin, which should only be used in rare instances in the treatment of PVC, and cortexone, a calcium channel blocker used to treat cardiac disease. Diagnostic tests later administered to V.S. showed no sign of heart disease.

   4. Through expert testimony it was established that Gazek misdiagnosed the condition of the patient, and improperly admitted her to the hospital. Indeed, it turned out that V.S. needed only outpatient diagnostic studies and evaluation. He also administered inappropriate medications which could have harmed the patient. By doing so, he failed to meet the minimum standard of care expected of a physician.

      
      

4. Patient M.S.

   
   

   1. This patient (a 75 year old female) had been admitted to DCH by respondent on December 5, 1983 after suffering a massive heart attack. The admission diagnosis was myocardial infarction with hypotension and congestive heart failure. She was initially placed on dopamine, diuretics, nitroprusside and digitalis, and her fluids were restricted.

      
      

   2. The consulting physician on the case was Dr. Glass, a board certified cardiologist. Glass found M.S. to have a potential for digitoxin toxicity and ordered that she quit taking the digitalis medication intravenously.

      
      

   3. Despite the cardiologist's orders, Gazek examined the patient, and did not recognize the patient's signs of toxicity from digitalis. Consequently, he ordered M.S. to be kept on her medication. As a result, M.S. became very digitalis toxic, went into an arrhythmia and later expired. In ordering the medication, Gazek exhibited a lack of knowledge concerning the difference between dosages of the drug given orally and intravenously. Such knowledge would be expected of both an internist and a family physician.

      
      

   4. By failing to follow a consultant's advice, and inappropriately administering a medication to M.S., Gazek failed to practice medicine with that level of care, skill and treatment expected of a Delray Beach area physician.

      
      

5. Patient R.T.

1. R.T. was an elderly female patient dying of terminal carcinoma (cancer) who was treated by Gazek at DCH between October 18 and November 11, 1983.

   
   

2. On October 26, Gazek erroneously diagnosed the patient as having an inappropriate antidiuretic hormone syndrome because of her serum sodium level. Although she was a terminal patient, Gazek had her immediately transferred to an ICU for monitoring of a rapid irregular heart rate. He also told the nurse R.T. was suffering from congestive heart failure. He then ordered R.T. to be given large amounts of a saline solution at rapid rates (166cc per hour). This is inappropriate for a patient who has congestive heart failure. Only after the nurse argued with Gazek did he lower the rate of delivery of the solution.

   
   

3. By misdiagnosing the ailment of-the patient, and inappropriately administering the incorrect medication, Gazek did not conform with the standard of care expected of a Delray Beach area physician.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).

5. The administrative complaint charges Gazek with 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 (Count I), and with failing to maintain adequate records to justify his course of treatment of the patient (Count II). These provisions are codified in Subsections 458.331(1)(t) and (n), Florida Statutes (1985), respectively.

   
   

6. By a preponderance of evidence it has been shown that Gazek failed to practice medicine with that level of care, skill and treatment required under Subsection 458.331(1)(t) while treating patients F.S., V.S., M.S. and R.T. Therefore, the allegations in Count I have been proven. Conversely, there is no evidence to establish that Gazek's records were not "adequate" as required by Subsection 458.331(1)(n). Therefore, Count II must be dismissed.

   
   

7. Given the nature of the violations, and their number, revocation of Gazek's license is appropriate. 2/ This is particularly necessary since his actions threatened the safety and health of the patients, and constituted a clear pattern of substandard skill, care and treatment.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Miguel G. Gazek be found guilty of the charges in Count I

of the administrative complaint, and that his medical license be REVOKED. Count II should be DISMISSED.

DONE AND ORDERED this 27th day of April, 1987, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 27th day of April, 1987.

ENDNOTES

1/ By letter dated February 27, 1987, which has been received in evidence as hearing officer exhibit 1, respondent indicated he has "discontinued (his) medical practice in Delray Beach" and was "leaving the United States for an undetermined period of time." In addition, his former counsel represented in a letter to the under signed that Gazek did not intend to appear and contest the charges. There is no dispute that-respondent has received proper notice in this proceeding.

2/ Petitioner's recommendation that respondent's license be permanently revoked (without leave to reapply) is rejected since Section 458.331 does not contain such a penalty. Cf. Wood v. Department of Professional Regulation, 490 So.2d u79 (Fla. 1st DCA 1986).

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3690

Petitioner:

1. Covered in finding of fact 1.

2. Covered in finding of fact 1.

3. Covered in background.

4. Covered in finding of fact 2.

5. Covered in finding of fact 3.

6. Covered in findings of fact 4-7.

7. No finding submitted.

8. Covered in findings of fact 8-11.

9. Covered in findings of fact 12-15.

Docket for Case No: 86-003690

Orders for Case No: 86-003690