STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3397

)

LAWRENCE ROTHENBERG, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on February 29, 1988, at West Palm Beach, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Susan Branson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Charles A. Nugent, Jr., Esquire

Cone, Wagner, Nugent, Johnson, Roth & Romano

Servico Centre, Suite 300/400 1601 Belvedere Road

West Palm Beach, Florida 33406 BACKGROUND AND PROCEDURAL MATTERS

This case began on July 13, 1987, when the Department of Professional Regulation (Department) filed an Administrative Complaint against the Respondent, Lawrence Rothenberg, M.D. The Respondent filed an Election of Rights on August 6, 1987, which disputed the allegations of fact and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. By Order entered February 9, 1988, the Department's Motion for Leave to Amend was granted. The Amended Administrative Complaint alleged the Respondent had failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; had failed to perform a statutory or legal obligation placed upon a licensed physician; had performed professional services which had not been duly authorized by the patient or client; and had failed to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.

At the hearing, the Department presented the testimony of Philip W. Heveran, an investigator employed by the Department; Goldie Marshak, Respondent's former patient; Marina Harmon, Respondent's employee; and Kalman Marshak, husband of Goldie Marshak. The Department's exhibits numbered 1 through 8 were admitted into evidence. Respondent presented the testimony of Waldo Avello, M.D., a licensed gastroenterologist, and testified on his own behalf. Respondent's exhibits numbered 1 and 2 were admitted into evidence. The transcript of the proceedings was filed on March 14, 1988.

After the hearing, the parties filed proposed findings of fact and conclusions of law. Specific rulings on the proposed findings of fact are included in the attached Appendix.

ISSUE

The central issue in this case is whether the Respondent is guilty of the violations alleged in the Amended Administrative Complaint; and, if so, what penalty should be imposed.

FINDINGS OF FACT

Based upon the testimony of the witnesses and documentary evidence received at the hearing, I make the following findings of fact:

1. The Department is the state agency charged with the regulation of the practice of medicine in Florida.

   
   

2. At all times material to the allegations in the Amended Administrative Complaint, Respondent has been a licensed physician, in the State of Florida, license number ME 0027088.

   
   

3. Respondent is board certified in three areas of specialty: gastroenterology, radiology, and internal medicine. Respondent is on the staff of several hospitals in the Palm Beach County region.

   
   

4. From March 28, 1986, until April 4, 1986, Respondent treated Goldie Marshak. At the time of such treatment, Mrs. Marshak was a seventy-one year old in good health. Mrs. Marshak had been referred to Respondent by Dr. Neil Katz. Dr. Katz was Mrs. Marshak's regular physician who had unsuccessfully treated her for persistent gas and burping. In accordance with Mrs. Marshak's health plan guidelines, Dr. Katz had referred her to Respondent, a specialist in similar disorders, for additional diagnosis.

   
   

5. The referral form indicated Mrs. Marshak suffered from persistent stomach pain and gas. Attached to the referral were the results from a prior upper GI series which established there were no abnormalities of the upper gastrointestinal tract. Respondent first met with Mrs. Marshak on March 28, 1986. At the initial visit Mrs. Marshak completed a form which identified her current problem as "burping and rectal gas as soon as I eat. Some pain upper chest that has diminished." In addition, Mrs. Marshak supplied a social history, a past medical history, drug allergy, operations, injury, hospitalizations, family history, immunizations, and a general review of systems. No other records prepared on that date were retained.

   
   

6. There are no records from which it can be determined what physical examination, if any, Respondent gave to Mrs. Marshak on March 28, 1986. Apparently, after reviewing the referral form and discussing her symptoms with

   Mrs. Marshak, Respondent elected to schedule her for a procedure called a flexible sigmoidoscopy. After conferring With Dr. Katz, whose consent was required for health plan purposes, the procedure was set to be performed April 3, 1986. Mrs. Marshak was given instructions regarding preparations required in order for the examination to be performed.

   
   

7. When Mrs. Marshak returned to Respondent's office on April 3, 1986, she had successfully followed the instructions and was ready for the proposed procedure. Mrs. Marshak was given an authorization form which she signed in the presence of Marina Harmon. Mrs. Harmon was an unlicensed employee who assisted Respondent by escorting patients to the procedure room, having them sign the authorization form, and by explaining the procedure to be performed.

   
   

8. The authorization form signed by Mrs. Marshak authorized Respondent to perform a flexible sigmoidoscopy. The form did not disclose risks or inherent dangers regarding the procedure but did provide the following:

   
   

   1. The motive and purpose of the diagnostic procedure, possible alternative methods, the risks and possible consequences involved, and the possibility of complications have been fully explained to me. I acknowledge that no guarantee or assurance has been made as the results that may be obtained.

   2. I also specifically authorize the physician, or his designee, to perform such additional procedures or render such treatment as he may, in his professional judgement deem necessary in the event any unforeseen condition arise during the course of the consented-to- diagnostic procedure that would put the patient's (my) well-being in jeopardy.

      
      

9. A flexible sigmoidoscopy is a procedure whereby an instrument is inserted into the rectum and is then passed up the colon the desired distance. The length the instrument is extended specifies what the procedure is called. A flexible sigmoidoscopy involves looking into the rectum and the sigmoid colon only. A colonoscopy looks into the digestive tract beyond an anatomical portion of the colon called the splenic flexure. A left-sided colonoscopy involves looking into the lower digestive tract beyond the sigmoid colon but not beyond the splenic flexure. In terms of length, the flexible sigmoidoscopy would be the shortest procedure of the three described. On April 3, 1986, Respondent performed a colonoscopy on Mrs. Marshak which resulted in a perforation of her colon. This perforation would have occurred regardless of the procedure performed since the tear was located approximately twenty centimeters into the colon.

   
   

10. During and following the procedure, Mrs. Marshak complained of extreme pain. Respondent presumed the pain to be that typically experienced during the procedure. The pain which continued after the instrument was removed, Respondent attributed to trapped gas within the colon which would be passed

    naturally in the hours following the procedure. Respondent sent Mrs. Marshak home for rest and advised her that the procedure had not revealed any abnormal condition in the area examined.

    
    

11. Once home, Mrs. Marshak continued to have pain and discomfort. Her husband, Kalman Marshak, telephoned Respondent's office to advise of his wife's continued suffering. Respondent did not speak with either of the Marshaks' but did telephone a prescription for Tylenol with Codeine to their pharmacy. Mr. Marshak picked up the drug and administered it to his wife as directed. Codeine is an improper drug to prescribe for a patient who may be retaining gas since it inhibits parastoltic activity of the bowel. Respondent should have discussed the patient's symptoms with her to ascertain whether or not the pain suffered warranted further examination or emergency treatment.

    
    

12. Despite the drug, Mrs. Marshak's pain continued through the night. On the morning of April 4, 1986, Mr. Marshak again telephoned Respondent's office to advise them of his wife's discomfort. The Marshaks were given an appointment for three o'clock that afternoon. The delay in setting the appointment or referring the patient for emergency treatment was inappropriate.

    
    

13. At the time of her revisit, Mrs. Marshak had a distended abdomen with some tenderness. Respondent took x-rays of the area and reinserted the colonoscope a very short distance in an effort to expel what Respondent believed to be trapped gas in the colon. The procedure did not relieve Mrs. Marshak's pain and she was advised to go to the hospital for further treatment.

    Subsequent to Mrs. Marshak leaving the office, Respondent read the x-rays and discovered the perforation. Respondent immediately telephoned the emergency room to advise the physician on duty of Mrs. Marshak's condition and her need for attention.

    
    

14. The perforation required surgery which resulted in Mrs. Marshak having to wear a colostomy bag for several months. Afterwards, a second surgery restored her colon to allow normal elimination. At the time of the final hearing, Mrs. Marshak had completely recovered from the perforation.

    
    

15. On April 8, 1986, Respondent prepared a letter to Dr. Katz which outlined the treatment given to Mrs. Marshak. Any notes or other records used to prepare the letter were destroyed. The x-rays taken at Respondent's office on April 4, 1986, were lost and were, therefore, unavailable. According to Respondent, the missing x-rays were very similar to the ones taken at the hospital when Mrs. Marshak arrived on April 4, 1986.

    
    

16. The Respondent did not obtain a consent form or written authorization for the procedure performed on April 4, 1986. The reinsertion of the instrument into the rectum was inappropriate since the x-rays clearly showed the perforation.

    
    

17. Other than the letter written to Dr. Katz, Respondent did not maintain any medical records for the treatment he gave to Mrs. Marshak on March 28, April 3, and April 4, 1986.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

19. Section 458.331(1)(t), Florida Statutes, provides:

    
    

    (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

    * * *

    (t) 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. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5- year period resulting in indemnities being paid in excess of

    $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross 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," shall not be construed so as to require more than one instance, event, or act.

    
    

20. In the case at issue, the Department has proved by clear and convincing evidence that the care given to Mrs. Marshak by Respondent failed to meet that level of skill, care and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. While there may have been sufficient preliminary indications to perform a colonoscoptic examination, the Respondent failed to practice medicine within the appropriate standard in the after care of Mrs. Marshak. Respondent erred by prescribing Tylenol with Codeine, by failing to communicate with the patient personally on the evening of April 3, 1986 to ascertain the extent of her discomfort and pain, by delaying the revisit on April 4, 1986, until late in the day, and by failing to discover the perforation by correctly reviewing the

    x-rays promptly. To his credit, Respondent notified the hospital of the severity of the problem once his error was detected. However, while the

    perforation was unavoidable, the delays in diagnosis and the inappropriate treatment were attributable to Respondent's improper care.

    
    

21. Section 458.331(1)(g), Florida Statutes, provides:

    
    

    The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

    * * * Failing to perform any statutory or legal obligation

    placed upon a licensed physician.

    
    

22. Section 768.46(3)(a)1., Florida Statutes, provides:

    
    

    (3) No recovery shall be allowed in any court in this state against any physician licensed under chapter 458, osteopath licensed under chapter 459, chiropractor licensed under chapter 460, podiatrist licensed under chapter 461, or dentist licensed under chapter 466 in an action brought for treating, examining, or operating on a patient without his informed consent when:

    (a)1. The action of the physician, osteopath, chiropractor, podiatrist, or dentist in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community; and.

    
    

23. From the record in this case, the Department has not proved the Respondent failed to perform a legal or statutory obligation. The authorization form executed by Mrs. Marshak disclosed the procedure which was to be performed. The Respondent had explained the procedure when the preprocedure instructions were given on March 28, 1986. That Mrs. Marshak followed Respondent's instructions so precisely probably helped her suffer fewer complications from the perforation. While Respondent's practice of allowing the unlicensed assistant to explain procedures would be unacceptable alone, such explanations are only to supplement the disclosure he has given the patient.

    
    

24. Section 458.331(1)(p), Florida Statutes, provides:

    
    

    (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

    * * *

    (p) Performing professional services which have not been duly authorized by the patient or client, or his legal representative, except as provided in s. 743.064, s. 768.13, or 768.46.

    
    

25. For the reasons previously stated, the Department has not proved the Respondent performed services which were not duly authorized. The procedure authorized on April 3, 1986, was substantially similar to that performed. The fact that Respondent extended the instrument farther into the digestive tract than originally intended, did not, of itself, obviate the consent given. The distances involved were a matter of centimeters. Further, the perforation would have occurred regardless of the procedure. Mrs. Marshak did not give a second consent for the treatment offered on April 4, 1986, but Respondent did not perform a procedure requiring consent on that date. Due to the perforation, reinsertion of the tube was improper, but was done only a very short distance in an effort to assist Mrs. Marshak expel trapped gas. It was not intended to be nor was it done as a diagnostic probe similar to the one performed the day before.

    
    

26. Section 458.331(1)(m), Florida Statutes, provides:

    
    

    (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

    * * *

    (m) Failing to keep written medical records justifying the course of treatment of the patient,

    including, but not limited to, patient histories, examination results, and test results.

    
    

27. From the record in this case, it is clear Respondent failed to keep proper written medical records. The letter drafted to Dr. Katz is inadequate to explain the examination and test results. The letter and the forms completed by Mrs. Marshak do not fully document the treatment and acts of the Respondent.

For example, no reference was made to the technical evaluation/examination made of Mrs. Marshak on March 28, 1986. The letter was an after-the-fact draft to explain Respondent's treatment to the referring physician. As such, it does not meet the standard reasonably expected in the medical community for medical records. Consequently, the Department has proved by clear and convincing evidence the allegations of Count IV of the Amended Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Medicine, enter a Final Order which finds Respondent guilty of the violations alleged in Counts I and IV of the Amended Administrative Complaint, dismisses Counts II and III,

imposes an administrative fine in the amount of $1000, places Respondent on probation for a period of two years, and requires Respondent to attend such continuing education courses as may be deemed appropriate by the Board.

DONE and RECOMMENDED this 15th day of April, 1988, in Tallahassee, Florida.

JOYOUS D. PARRISH

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 15th day of April, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3397

Rulings on Petitioner's proposed findings of fact:

1. Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 are accepted.

2. To the extent paragraph 11 describes a colonoscopy as "more invasive" the paragraph is accepted. However, as to all of the examinations performed (colonoscopy, flexible sigmoidoscopy or left-sided colonoscopy) the basic description is similar. Consequently "more extensive explanation "is not required. Thus the balance of paragraph" is rejected as contrary to the evidence.

3. Paragraph 12 is rejected as contrary to the weight of the evidence.

4. Paragraph 13 is accepted.

5. Paragraph 14 is accepted however it must be noted that such explanations given by Harmon are in supplement to those given by Rothenberg.

6. Paragraph 15 is accepted but is unnecessary.

7. Paragraphs 16 and 17 are accepted, however, see note above re: paragraph 14.

8. Paragraphs 18 and 19 are accepted.

9. Paragraph 20 is rejected as argument, irrelevant and immaterial.

10. Paragraphs 21, 22, 23, 24 and 25 are accepted.

11. Paragraphs 26, 27 and 28 are accepted with the note that the communications addressed were with Respondent's office. There is no evidence that Respondent personally spoke with Mr. Marshak to determine the patient's condition.

12. Paragraph 29 is rejected as contrary to the evidence. It was inappropriate to delay the revisit until 3 o'clock, but there is no evidence Respondent made that decision. Based upon the testimony, The more appropriate course would have had Respondent discuss the situation directly with the patient (or her husband) and to schedule the revisit as soon as possible or have the patient go to the hospital.

13. Paragraph 30 is accepted.

14. Paragraphs 31, 32, and 33 are accepted.

15. Paragraph 34 is rejected as repetitive and unnecessary.

16. Paragraph 35 is rejected as contrary to the evidence.

17. Paragraph 36 is rejected as irrelevant immaterial and assuming facts not in evidence.

18. Paragraphs 37, 38, 39, 40, 41, 42, and 43 are accepted.

19. Paragraphs 44, 45, 46, and 47, are rejected as argumentative or contrary to the weight of the evidence.

20. Paragraphs 48 and 50 are rejected as argumentative.

21. Paragraph 49 is accepted.

Rulings on Respondent's proposed findings of fact:

1. Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 are accepted.

2. With regard to paragraph 12 the area of the perforation was between 15-

   25 centimeters according to the weight of the evidence.

3. Paragraphs 13 and 14 are accepted.

4. Paragraph 15 is rejected as contrary to the weight of the evidence as to "reread." That paragraph with the word "read" for "reread" would be accepted.

5. Paragraphs 16, 17, 18, and 19 are accepted.

COPIES FURNISHED:

Susan Branson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Charles A. Nugent, Jr., Esquire Cone, Wagner, Nugent, Johnson, Roth & Romano

Servico Centre-Suite 300/400 1601 Belvedere Road

West Palm Beach, Florida 33406

Dorothy Faircloth, Executive Director Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-003397

Orders for Case No: 87-003397