STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4228

)

ARNOLD OPER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on September 26, 1989, in Miami, Florida.

APPEARANCES

FOR PETITIONER: Peter S. Fleitman, Esq.

Senior Attorney Department of Professional Regulation

401 N.W. 2nd Avenue Suite N621

Miami, Florida 33128

FOR RESPONDENT, Michael W. Ford, Esq.

David C. Smith, Esq. Mershon, Sawyer, Johnston, Dunwoody & Cole

200 South Biscayne Blvd.

S.E. Financial Center Miami, Florida 33128

STATEMENT OF THE ISSUES

The issue for determination at the formal hearing was whether disciplinary action should be taken against Respondent's medical license for the reasons stated in the Administrative Complaint, and what, if any, disciplinary action should be taken.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on August 21, 1987 (the "Complaint") The Complaint alleged that Respondent violated Section 458.331, Florida Statues, in his record keeping, medication, and treatment of nine patients that were hospitalized during January, 1984, in Opa- Locka, Florida. None of the nine patients either complained against Respondent or testified at the formal hearing. The patients have been identified by

reference to their initials throughout this proceeding, including this Recommended Order, in an effort to preserve their anonymity.

The three counts in the Complaint alleged that Respondent had:

...violated.. .Section 458.331(1)(m), Florida Statutes,...by failing 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 (hereinafter "fail to keep written medical records");

...violated Section 458.331(1)(q)...by prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance other than in the course of Respondent's professional practice (hereinafter "improperly dispense a legend drug");

and

...violated Section 458.331(1)(t)...by gross or repeated malpractice or the failure to practice medicine with that level of skill, care, and treatment

which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances (hereinafter "malpractice").

Respondent reguested a formal hearing on September 23, 1987, and the matter was referred to the Division of Administrative Hearings on September 25, 1987, for assignment of a hearing officer. The matter was assigned to Hearing Officer Ella Jane P. Davis on October 2, 1987, and transferred to the undersigned on March 31, 1989. 1/ The formal hearing was continued six times before March 31, 1989, and finally scheduled for September 26-29, 1989, pursuant to a Notice of Hearing issued on July 18, 1989.

At the formal hearing, Petitioner called two witnesses, Dr. Reynold Stein, and Dr. Jeffrey Ehrlich. Dr. Stein was accepted as an expert in family medicine without objection. Dr. Ehrlich was accepted as an expert in internal medicine and general practice without objection. Respondent objected to Dr. Ehrlich being accepted as an expert in surgical procedures. Respondent also objected to specific guestions regarding surgical procedures that were posed during the direct examination of Dr. Ehrlich. Ruling on Respondent's objections was reserved for disposition in this Recommended Order.

Respondent testified in his own behalf and called three witnesses Dr.

Edward Spievack, Dr. Geoffrey Mann, and Dr. Jack Kamerman. Dr. Spievack and Dr. Kamerman were accepted as medical experts without objection. Dr. Spievack was accepted as an expert in orthopedic surgery and emergency boom medicine. - Dr. Kamerman was accepted as an expert in family medicine and medical records review. Dr. Mann was accepted as an expert in pathology. Petitioner objected to Dr. Mann being accepted as an expert in surgical procedures, including anesthesiology and excision biopsies. Petitioner also objected to specific questions to Dr. Mann concerning anesthesiology and excision biopsies. Ruling

on Petitioner's objections was reserved for disposition in this Recommended Order. Additional testimony was received in the record from Dr. Stein on November 29, 1989, at the request of the undersigned.

Respondent objected to testimony by Petitioner's expert witnesses based upon facts not alleged in the Administrative Complaint. An ancillary issue was whether the Complaint could be amended to conform to the evidence adduced at the formal hearing. Ruling on both issues was reserved for disposition in this Recommended Order, As part of the resolution of these two issues, specific allegations in the Complaint concerning each of the nine patients are summarized in the Findings of Fact pertaining to the same patient.

The parties filed stipulations in accordance with prehearing orders entered in this proceeding and submitted nine joint exhibits which were admitted in evidence. The joint exhibits consisted of the medical records for the nine patients listed in the Complaint. In addition, Respondent submitted two exhibits that were admitted in evidence without objection. Respondent's Exhibit

1 consisted of Dr. Spievack's operative note concerning patient WW. Respondent's Exhibit 2 consisted of Dr. Mann's curriculum vitae.

A transcript of the hearing was ordered and filed with the undersigned on November 1, 1989. The time for filing proposed findings of facts and conclusions of law was extended from November 29, 1989, to February 7, 1990, pursuant to two separate reguests made by telephone conference. Proposed findings of fact and conclusions of law were timely filed by Petitioner on February 2, 1990, and by Respondent on February 7, 1990. The parties' proposed findings of facts are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 458, Florida Statues. 2/

   
   

2. Respondent has been a physician licensed to practice medicine in the State of Florida at all times material to this proceeding. Respondent's license number is ME 0009033.

   
   

3. Respondent was the admitting physician for each of nine charity patients admitted in January, 1984, to Opa Locka Carol City Community Hospital, dba City Hospital ("City Hospital").

   
   

4. The nine charity patients admitted by Respondent have been identified by reference to their initials throughout this proceeding, including this Recommended Order, in an effort to preserve their anonymity. The nine charity- patients were: LT; RR; JS; WW; CH; RW; AS; CC; and MM

   
   

5. Dr. Jeffrey Ehrlich is accepted as an expert in internal medicine. Dr. Ehrlich is not accepted as an expert in surgical procedures. Based upon Dr. Ehrlich's own testimony, one of the key differences between an internist and a family practitioner is that "an internist does not in the course of his practice

   ... perform surgical procedures." 3/

   
   

6. Dr. Jack Kamerman is accepted as an expert in family medicine and medical records review. Dr. Kamerman's expertise includes surgical procedures.

7. Dr. Geoffrey Mann is accepted as an expert in pathology. Dr. Mann is not accepted as an expert in surgical procedures, including anesthesiology and the performance of excision biopsies. Based upon Dr. Mann's own testimony, his experience is based entirely in the field of pathology. 4/

   
   

   Patient LT

   
   

8. Respondent performed an excision biopsy on LT on or about January 10, 1984, for a lump detected in LT's left breast. 5/ After removal, the lump in LT's left breast was examined by the hospital's pathologist, Dr. Geoffrey Mann. Dr. Mann found that the lump contained cancerous tissue which he classified as intraductal carcinoma.

   
   

9. The only factual allegations regarding patient LT were set forth in paragraphs 4-10 of the Complaint. Paragraphs 4-10 in relevant part provide that:

   
   

   1. Respondent failed to use mammography in diagnosing LT's condition prior to surgery;

   2. Respondent inappropriately resected a large overlying skin flap;

   3. Respondent failed to perform a frozen section biopsy;

   4. Respondent failed to submit a biopsy for estrogen receptor testing; and

   5. Respondent failed to adequately diagnose LT's condition, namely infiltrating ductal

      carcinoma.

      
      

10. Prior to the excision biopsy, no mammography was

    performed in diagnosing LT's condition. During the excision biopsy, Respondent resected an overlying skin flap, did not perform a frozen section biopsy, and did not submit a biopsy for estrogen receptor testing. Following the excision biopsy, Respondent referred LT to a general surgeon who performed a modified radical mastectomy on or about January 31, 1984. An estrogen receptor test was performed on the tissue at that time.

    
    

11. The uncontroverted evidence established that Respondent did not fail to keep written medical records for LT and did not improperly dispense a legend drug to LT within the meaning of Subsections 458.331(1)(m) and (q), Florida Statutes.

    
    

12. One of Petitioner's expert witnesses, Dr. Stein, concluded that no malpractice was committed by Respondent with respect to LT. Petitioner's other expert witness, Dr. Ehrlich, found no other area in which Respondent allegedly committed malpractice with respect to LT except by failing to use mammography in diagnosing LT's condition. 6/

    
    

13. Respondent did not commit malpractice by failing to use mammography in diagnosing LT's condition.

    
    

    1. City Hospital had no equipment with which to perform mammography.

       
       

    2. LT was a charity patient. A mammography could only have been obtained at Dade County's public hospital, Jackson Memorial Hospital. The backlog of charity patients waiting for mammography diagnosis at Jackson Memorial Hospital

       would have caused a substantial delay in LT's treatment. Respondent properly concluded that it was unsafe to delay LT's treatment.

       
       

    3. Mammography was not indicated once a decision was made to perform an excision biopsy for a supposedly benign mass. The lump in LT's left breast was approximately 2 1/4 inches, by 1 inch, by 3/4 of an inch, and was "supposedly benign." 7/ Petitioner's expert, Dr. Ehrlich, concluded that lesions of the size found in LT are not preoperatively of high suspicion of malignancy. 8/ Prior to consulting Respondent, LT had been examined by another physician who had scheduled LT for an excision biopsy at Jackson Memorial Hospital without also scheduling the patient for a mastectomy. 9/ Mammography was not indicated for LT under the circumstances.

    
    

14. An excision biopsy was an appropriate procedure for removal and examination by a pathologist of a presumptively benign mass in LT's left breast. An excision biopsy is a so-called "two-step" procedure. In the first step, the mass of tissue is surgically removed and examined by a pathologist. The patient is allowed to recover and no further surgery is performed at that point. In the event the mass is determined to be cancerous, more definitive surgery is subsequently performed in the form of a radical or modified mastectomy. The

    two-step procedure is preferred by pathologists because it permits a more definitive diagnosis of whether the excised mass is cancerous. The two-step procedure is used by surgeons more frequently today than when Respondent performed the two-step procedure on LT.

    
    

15. When the mass in LT's left breast was determined by the pathologist to be cancerous, Respondent referred LT to a surgeon who performed a modified mastectomy. The pathologist found the tissue removed in the mastectomy to be clear of cancer as were all the lymph nodes submitted. LT was alive and doing well as of the date of the formal hearing.

    
    

16. Respondent did not commit malpractice by failing to perform a frozen section biopsy on the mass in LT's left breast. The alternative to an excision biopsy involves a so-called one-step procedure in which a patient is scheduled for a frozen biopsy and mastectomy in one uninterrupted surgical procedure. The patient remains on the operating table while the frozen section is examined by the pathologist. If the frozen section is determined by the pathologist to be cancerous, a mastectomy is performed. A frozen section is not performed in an excision biopsy because the entire mass is removed, stained, and examined under a microscope by the pathologist.

    
    

17. Respondent did not commit malpractice by failing to submit a biopsy of the mass in LT's left breast for estrogen receptor testing. Tissue samples are sent for estrogen testing in connection with a modified or radical mastectomy. Estrogen testing is done for the purpose of determining the nature and extent of follow up treatment that may be required after surgery. In LT's case, the surgeon who performed the modified mastectomy submitted tissue samples for estrogen testing.

    
    

18. Respondent did not fail to adequately diagnose LT's condition. A diagnosis of LT's condition could be made by Respondent only after an excision biopsy and examination by a pathologist.

    
    

19. Respondent did not commit malpractice resecting a skin flap on LT. Evidence that Respondent properly resected a skin flap on LT was uncontroverted by Petitioner.

20. Respondent did not fail to keep written medical records for LT, did not improperly dispense a legend drug to LT, and did not commit malpractice in his care and treatment of LT within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes.

    
    

    Patient RR

    
    

21. Respondent admitted RR to City Hospital for four days on or about January 24, 1984. RR was diagnosed as suffering from pneumonitis on the right lung with secondary asthmatic component, polycythemia secondary to dehydration, and chronic hydrocephaly. Respondent ordered two chest x-rays for RR, an ASO screen, a C-reactive protein test, a febrile agglutinin test, stools for culture ova and parasites, occult blood, and nose and throat cultures. RR was treated initially with Mefoxin and subsequently with Mandol intravenously. RR was also rehydrated with intravenous fluids. Upon discharge, Respondent prescribed liquid tetracycline, Alupent, and Valium. RR was discharged with a temperature of approximately 101.8 degrees.

    
    

22. The only factual allegations regarding patient RR were set forth in paragraphs 11-18 of the Complaint. Paragraphs 11-18 in releyant part provide that:

    
    

    1. Respondent ordered inappropriate diagnostic tests during RR's hospitalization;

    2. Respondent's final diagnosis of right lower lobe aspiration pneumonia was not substantiated by

       chest x-ray and was not consistent with findings noted on physical examination;

    3. Respondent inappropriately discharged RR with a temperature of 101.8;

    4. Respondent inappropriately prescribed elixir of tetracycline and Valium for RR; and

    5. Respondent failed to keep written records justifying his treatment of RR.

       
       

23. RR had been Respondent's patient since 1962. RR was a hydrocephalic with severe body deformities. He had no measurable intelligence quotient and could not talk or communicate in any manner. RR's spine was poorly developed. His heart was located in the right chest cavity rather than in the midline area of his chest. His lung placement prevented either visualizing RR's right lung through a chest x-ray or obtaining a sputum culture through tracheal entry into RR's right lung. RR's left lung appeared normal upon x-ray. RR also had a severe immune deficiency condition and had received numerous blood transfusions in connection with prior neurosurgery at Jackson Memorial Hospital. Today, RR would have been evaluated for acquired immune deficiency syndrome.

    
    

24. The diagnostic tests ordered for RR were not excessive and were appropriate under the circumstances. In the absence of information that could have been obtained from a typical patient through patient communications, a chest x-ray, or a sputum culture, Respondent had to make a clinical diagnosis of RR's condition. Respondent's clinical diagnosis properly included diagnostic tests that were given to exclude other causes for RR's condition. Other causes for RR's condition were likely due to RR's extreme immune deficiency.

    
    

    1. An ASO screening was ordered to rule out streptococcal infection. A C- reactive protein test was ordered to rule out a viral component as the cause of RR's condition.

    2. A febrile agglutinin test, stools for culture ova and parasites, and occult blood were ordered to rule out intestinal infection as a possible cause for RR's condition. These tests are normally used to diagnose illness in a patient whose stool has turned to diarrhea. RR's stool was normally that exhibited by an infant because RR was on a liquid and baby food diet. Intestinal organisms that turn the stool of a normal patient to diarrhea could have been present in RR without producing any change in RR's stool.

       
       

    3. Nose and throat cultures were ordered to determine the presence of unusual bacteria which RR may have aspirated into his lung. Respondent believed that RR was suffering from aspiration pneumonia. Aspiration pneumonia is caused by swallowing or breathing an infectious substance into the lungs. The cultures revealed the presence of E-Coli and enteral bacteria not normally found in the nose and throat.

    
    

25. The fact that Respondent's final diagnosis of right lower lobe aspiration pneumonia was not substantiated by chest x-ray does not constitute malpractice. RR's lung placement prevented a visualization of RR's right lung through a chest x-ray. The x-ray of RR's left lung was normal. The nose and throat cultures substantiated the presence of E-Coli and enteral bacteria in the nose and throat which is consistent with aspiration. Respondent ruled out streptococcal infection, viral components, and intestinal illness through other tests performed on RR. Respondent's final diagnosis of right lower lobe aspiration pneumonia was consistent with findings noted on physical examination.

    
    

26. RR's discharge from City Hospital with a temperature of 101.8 was appropriate under the circumstances. Respondent was RR's primary care physician since 1962. RR had been treated by Respondent on several occasions at RR's home. RR was constantly fighting a low grade infection. RR's ana-cephalic condition prevented normal brain function. The chronic low grade infection and absence of normal brain function caused RR's base line temperature to run between 99.5 and 102 degrees. Respondent visited RR at RR's home on the evening of discharge. Respondent also ordered his physician assistant to visit RR the following morning and an associated physician to see RR the evening after RR's discharge.

    
    

27. The prescription of elixir of tetracycline for RR upon discharge was appropriate under the circumstances. Tetracycline is a broad spectrum antibiotic. A broad spectrum antibiotic was appropriate for a clinical diagnosis made without the benefit of either a chest x-ray of the right lung or a sputum culture. The tetracycline was prescribed in liquid or syrup form so that it could be easily given by RR's mother who cared for RR 24 hours a day in her home.

    
    

28. The prescription of Valium for RR upon discharge was appropriate under the circumstances. RR had been convulsive virtually his entire life. Valium was prescribed for RR's convulsive condition since RR was two months old.

    Valium is medically recognized as an anti-convulsant. If Respondent had not continued RR's Valium treatment, RR would have experienced convulsive episodes. 11/

    
    

29. The treatment of RR with Mefoxin and then Mandol was appropriate under the circumstances. Both Mefoxin and Mandol are appropriate broad spectrum antibiotics for treating aspiration pneumonia. However, the two medications are

    not chemically related. RR experienced a reaction to either a chemical substance or the chemical complex in Mefoxin. Mandol was an appropriate substitute.

    
    

30. Respondent did not fail to keep written records justifying his treatment of RR. Dr. Kamerman concluded that the medical charts and records, including written patient history, progress notes, evaluations, treatment, and justification for treatment were adequate and within acceptable norms as practiced in 1984 and today.

    
    

31. Respondent did not fail to keep written medical records for RR, did not improperly dispense a legend drug to RR, and did not commit malpractice in his care and treatment of RR within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes.

    
    

    Patient JS

    
    

32. Patient JS was admitted to City Hospital on or about January 16, 1984, for drug overdose and ethanol intoxication. JS had consumed 10 sleeping pills and 8 beers prior to being admitted to City Hospital. At the time of her admission, JS was under the care of a psychiatrist at the Community Medical Center. No psychiatrists were on the house staff of City Hospital. Respondent did not notify JS's psychiatrist before discharging JS. 12/ However, Respondent did refer JS back to her psychiatrist upon discharge.

    
    

33. The only factual allegation of culpability regarding patient JS was set forth in paragraph 19 of the Complaint. Paragraph 19 alleges that Respondent failed to notify JS's psychiatrist of JS's hospitalization.

    
    

34. Respondent's failure to notify JS's psychiatrist of her hospitalization was not malpractice. Petitioner's experts disagreed on whether Respondent's failure to notify JS's psychiatrist was malpractice. Dr. Ehrlich concluded that Respondent's treatment of JS fell "far below community standards", in part, because of Respondent's failure to notify JS's expert. Dr. Stein, however, had no problem with Respondent's failure to notify JS's psychiatrist. Respondent's expert concluded that there was no malpractice committed by Respondent in his treatment of JS. 13/

    
    

35. JS had consulted her psychiatrist earlier on the same day that JS was admitted to City Hospital. JS obtained 10 Noctec capsules from her psychiatrist which JS subsequently took with 8 beers before she was admitted to City Hospital.

    
    

36. JS met all of the criteria for discharge from City Hospital. She was alert, lucid, and anxious to return to work. She was instructed to see her psychiatrist when she was discharged.

    
    

37. Respondent's failure to perform a second chest x-ray on JS and to prescribe antibiotics was not malpractice. Respondent's initial stethoscope examination of JS detected rales and bronchi (crackling sounds) in her lungs. A chest x-ray was ordered for JS, but the x-ray report was not returned until after JS was discharged. Other laboratory tests and clinical findings also gave no indication of lung infection. JS was not coughing and did not complain of shortness of breath. Her temperature, pulse, blood pressure, and respiration were within normal ranges except for the rales and bronchi.

38. JS was discharged from City Hospital with instructions to return for a follow-up examination. The x-ray report was not returned until after JS was discharged from City Hospital. The x-ray report made no definitive finding, but indicated the presence of an infiltrate in the lower right lung most likely due to aspiration pneumonia. The x-ray report suggested clinical correlation for symptoms of pneumonia. Respondent reviewed the x-ray report, and telephoned JS to make sure she kept her appointment for her follow-up examination. At the follow-up examination, Respondent examined JS and found no clinical correlation for pneumonia. An additional x-ray and antibiotics for JS would have constituted over-utilization.

    
    

39. Respondent did not fail to keep written medical records for JS, did not improperly dispense a legend drug to JS, and did not commit malpractice in his care and treatment of JS within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes.

    
    

    Patient WW

    
    

40. WW was admitted to City Hospital on or about January 3, 1984, with hot and swollen knees. WW's right ankle was also swollen. He was unable to stand and fell backwards when he attempted to stand. WW had a history of gout, but gout typically does not show up as an acute inflammation in multiple joints that prevents a patient from standing. 14/

    
    

41. Respondent called in Dr. Edward Spievack for a consultation. Dr. Spievack found an effusion of WW's left knee, limited range of motion, and patellar-femoral compression syndrome. WW's right knee had no effusion, good range of motion, and mild patellar-femoral grating or arthritis. WW's left ankle had full range of motion and no fluctuation or tenderness in the deltoid ligament.

    
    

42. Dr. Spievack initially recommended a splint for WW's left knee and bed rest. When WW's condition did not improve, Dr. Spievack recommended diagnostic arthroscopy of WW's left knee which was performed under local anesthetic on January 6, 1984. Based upon the diagnostic arthroscopy, Dr. Spievack found degenerative arthritis and a large erosion of the upper portion of WW's knee. WW's painful knee was not caused solely by gout.

    
    

43. The only factual allegations of culpability regarding patient WW were set forth in paragraphs 21 and 22 of the Complaint. Paragraph 21 alleged that Respondent failed to institute appropriate management of WW's condition. Paragraph 22 alleged that Respondent cleared WW for arthroscopy despite an increase in WW's serum blood urea nitrogen ("BUN") from 28 to 59 and a poor state of hydration.

    
    

44. WW was not in a poor state of hydration. WW's BUN level had risen from a normal of 28 to 59 prior to the diagnostic arthroscopy. However, BUN level is not the test used to determine whether a patient is in a poor state of hydration. BUN level measures a patient's kidney function. A patient's state of hydration is measured by electrolytes such as serum potassium and serum sodium. Dehydration may also be indicated by a complete blood count in which the water component is decreased and blood cells are hemoconcentrated. Urine analysis, hematocrit, total protein, and physical findings also measure a patient's state of hydration. The results of the tests performed on WW and the physical findings upon examination of WW did not indicate that WW was dehydrated prior to surgery. For the same reasons, it was not malpractice for Respondent to clear WW for diagnostic arthroscopy with a BUN level of 59.

45. Respondent instituted appropriate management of WW's condition. Respondent treated WW for gout with appropriate medications and called in Dr. Spievack, an orthopedic surgeon, for a consultation. Dr. Spievack recommended diagnostic arthroscopy under local anesthetic. The condition of WW's knee was potentially more detrimental to WW's health than WW's elevated BUN, and the decision was made to proceed with the diagnostic arthroscopy. Petitioner's expert, Dr. Stein, concluded that diagnostic arthroscopy was appropriate for WW under the circumstances.

    
    

46. Respondent did not improperly dispense a legend drug to WW. Respondent treated WW for gout with appropriate medications, including Dolobid, prednisone, and Zyloprim. 15/ Petitioner's expert, Dr. Ehrlich, concluded that WW received full treatment for his gout.

    
    

47. Respondent did not fail to keep written medical records for WW, did not improperly dispense a legend drug to WW, and did not commit malpractice in his care and treatment of WW within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes.

    
    

    Patient CH

    
    

48. Respondent admitted CH to City Hospital at 7:00 p.m. on or about January 24, 1984. Upon physical examination, Respondent found that CH was suffering from an ischiorectal abscess. An ischiorectal abscess is an inflammation in a compartment alongside the rectum which spreads deeper into the tissue rather than laterally. Since there is relatively little space for expansion of the inflamed tissue, pain secondary to an ischiorectal abscess can be severe.

    
    

49. CH was in extreme pain. Respondent ordered a narcotic pain killer and sleeping pill to alleviate CH's pain, and scheduled CH for an incision and drainage ("I and D") the next day. CH's condition was not an emergency, and Respondent decided not to call the operating room staff back to the hospital that night. However, an untreated ischiorectal abscess can perforate back into the intestines causing a more serious problem. The following day, therefore, Respondent performed an I and D under general anesthesia. During the I and D, Respondent saucerized and marsupialized the abscess. 16/

    
    

50. The only factual allegations regarding CH were set forth in paragraphs 23-28 of the Complaint. Paragraphs 23-28 in relevant part provide that:

    
    

    1. Respondent failed to adequately perform an admission history and physical on CH;

    2. Respondent inappropriately performed an incision and drainage on CH using general anesthesia; and

    3. Respondent inappropriately or excessively prescribed a narcotic for CH upon discharge when Respondent knew or should have known that CH was addicted or dependent upon controlled substances.

       
       

51. Respondent did not fail to adequately perform an admission history and physical on CH. The circulating nurse in the operating room wrote in her report that she observed vein tracks on one of CH's arms. The circulating nurse never told Respondent of her observation. Other hospital personnel drew blood from CH and did not note in the hospital record any observation of vein tracks. The

    anesthesiologist had occasion to observe CH during her admission and did not mention in the hospital records any observation of vein tracks. Respondent examined CH's arms during the physical examination and did not observe vein tracks on either of CH's arms. During her physical examination, CH was also asked if she had any drug problems and CH disclaimed any drug problem.

    
    

52. Respondent did not inappropriately or excessively prescribe a narcotic for CH upon discharge when Respondent knew or should have known that CH was addicted or dependent upon controlled substances. Drs. Stein, Ehrlich, and Kamerman all concluded that Respondent properly prescribed Percodan-Demi at the time of CH's discharge from City Hospital.

    
    

    1. There was no reason for Respondent to refer back to the circulating nurse's report for a stable patient that was ready for discharge. Petitioner's expert, Dr. Stein, also concluded that failure to see the circulating nurse's note and the failure to observe vein tracks, if any, was not malpractice.

       
       

    2. The type and quantity of narcotic prescribed for CH upon discharge was appropriate. Respondent prescribed 40 tablets of Percodan-Demi for CH upon her discharge. A narcotic such as Percodan-Demi was indicated considering the severity of pain CH was experiencing postoperatively. Percodan-Demi is less addictive than any alternative narcotic that would have been indicated under the circumstances, including Dilaudid, morphine, or Demerol. Forty tablets of Percodan-Demi was not excessive. Petitioner's expert, Dr. Ehrlich, concluded that the number of tablets prescribed was only slightly more than was necessary and was a minor problem. Dr. Ehrlich also concluded that an addict may have required a stronger dose of Percodan-Demi than was prescribed in order to experience relief from postoperative pain.

    
    

53. Respondent did not inappropriately use general anesthesia when he performed the I and D on CH. Dr. Kamerman concluded that performing the I and D while CH was anesthetized with general anesthesia was appropriate under the circumstances.

    
    

54. Respondent did not fail to keep written medical records for CH, did not improperly dispense a legend drug to CH, and did not commit malpractice in his care and treatment of CH within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes.

    
    

    Patient RW

    
    

55. Respondent admitted RW to the intensive care unit of City Hospital on or about January 4, 1984. Upon physical examination, Respondent found that RW was suffering from a stroke and high blood pressure of 230/110. Respondent ordered various diagnostic tests for RW including a skull x-ray, cervical spine x-ray, a chest x-ray, a brain scan, a bilateral carotid ultrasound, and an intravenous pyelogram. However, Respondent did not order a computerized axial tomographic scan ("CAT scan") for RW.

    
    

56. While RW was hospitalized at City Hospital, Respondent treated RW with various drugs to control RW's hypertension. RW's blood pressure eventually dropped to 170/100, and RW was discharged on or about January 10, 1984.

    
    

57. The only factual allegations regarding RW were set-forth in paragraphs 30-36 of the Complaint. Paragraphs 30-36 in relevant part provide that:

    1. Respondent ordered inappropriate and/or unnecessary diagnostic tests including an intravenous pyelogram and tomograms of the sella turcica;

    2. Respondent failed to order a CAT scan for RW;

    3. Respondent failed to provide physical therapy evaluation or physical therapy for RW's hemiparesis while RW was hospitalized and

       after she was discharged; and

    4. Respondent failed to adequately treat RW's hypertension and inappropriately discharged RW with a blood pressure of 170/100.

       
       

58. Respondent did not order inappropriate or unnecessary diagnostic tests for RW. The uncontroverted evidence established that Respondent did not order tomograms of the sella turcica. The remaining diagnostic tests ordered for RW were appropriate under the circumstances and consistent with hospital policy for patients who have suffered a cerebrovascular accident ("CVA"). Petitioner's expert, Dr. Stein, concluded that all of the diagnostic tests ordered for RW, including the intravenous pyelogram, were appropriate under the circumstances.

    
    

59. The fact that Respondent did not order a CAT scan for RW was appropriate under the circumstances. Equipment necessary to perform a CAT scan was not available at City Hospital. The primary purpose for performing a CAT scan on RW would have been to determine if RW was suffering from intracerebral hemorrhaging. However, there were no clinical findings consistent with intracerebral hemorrhaging. Since there clinical picture of intracerebral hemorrhaging or that RW's CVA was extending, it would not have been appropriate to transfer RW to an institution with the equipment necessary to perform a CAT scan on RW. Petitioner's expert, Dr. Stein, concluded that the failure to order a CAT scan was appropriate under the circumstances.

    
    

60. The uncontroverted evidence established that Respondent ordered physical therapy for RW while she was hospitalized and upon discharge. Physical therapy was properly performed on RW by a physical therapist pursuant to Respondent's orders while RW was hospitalized. Upon discharge, Respondent ordered physical therapy through a home health care agency which was performed over the next six months.

    
    

61. Respondent adequately treated RW for hypertension during RW's hospitalization at City Hospital.

    
    

    1. Respondent inadvertently made a written notation in the hospital discharge summary that RW had been diagnosed as having a left cerebrovascular accident ("LCVA") instead of a right cerebrovascular accident ("RCVA"). The inadvertent written notation in the discharge summary had no significance either clinically or in RW's treatment. Upon physical examination, Respondent properly recognized that RW had weakness and affliction to the left side of her body indicative of an RCVA. Notations other than the final diagnosis in the discharge summary evidenced a correct diagnosis and treatment by Respondent. 17/ Treatment of RW was specifically directed toward deficits of the left side of RW's body. Petitioner's expert, Dr. Stein, concluded that Respondent's treatment of RW was satisfactory.

       
       

    2. Respondent treated RW's hypertension with various drugs. RW was admitted with a blood pressure of 230/110, and discharged with a blood pressure of 170/110. The medications prescribed by Respondent were acceptable and did

    not in any way place RW in a clinical situation of deterioration. Petitioner's expert, Dr. Stein, concluded that Respondent's treatment of RW was satisfactory.

    
    

62. The discharge of RW from City Hospital with a blood pressure of 170/100 was appropriate under the circumstances. RW was totally stabile upon discharge. Her clinical progress in getting her blood pressure down had been good. Appropriate medications were prescribed by Respondent for RW to take at home. Respondent followed up on RW's condition after discharge and arranged for follow up care from a home health care agency. RW's blood pressure met the discharge criteria f&r patients hospitalized under Medicaid/Medicare auspices. Petitioner's expert, Dr. Stein, concluded that RW's blood pressure was acceptable for discharge.

    
    

63. Respondent did not fail to keep written medical records for RW, did not improperly dispense a legend drug to RW, and did not commit malpractice in his care and treatment of RW within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes.

    
    

    Patient AS

    
    

64. Respondent admitted AS to City Hospital for two days on or about January 10, 1984. AS was suffering from chest pain, bronchitis, uncontrolled hypertension, and blood pressure of 245/130. Respondent's initial diagnosis of possible congestive heart failure was not confirmed by laboratory tests, an EKG, and chest x-ray. AS's chest pain decreased as her blood pressure decreased. Respondent attributed AS's chest pain to high blood pressure rather than cardiac problems, but made no final diagnosis of the cause of AS's chest pain.

    
    

65. While AS was hospitalized at City Hospital, Respondent treated AS with various drugs to control AS's hypertension, including oral Inderide and Trinalin. AS's blood pressure eventually dropped to 160/80, and AS was discharged on or about January 12, 1984.

    
    

66. The only factual allegations regarding AS were set forth in paragraphs 38-47 of the Complaint. Paragraphs 38-47 in relevant part provide that:

    
    

    1. Respondent inappropriately and/or excessively prescribed oral Inderide for AS which may significantly exacerbate congestive heart failure in patients predisposed to that condition;

    2. Respondent inappropriately and/or excessively prescribed Trinalin as an antihistamine/decongestant in the treatment of possible bronchitis when Trinalin is not indicated for treatment of bronchitis and may significantly exacerbate hypertension in patients with elevated blood pressure; and

    3. Respondent discharged AS without having made an adequate diagnosis to explain AS's chest pain.

       
       

67. Respondent did not inappropriately or excessively prescribe oral Inderide for AS. Inderide was an acceptable drug for treating hypertension in AS. It was administered in a hospital setting where possible side effects could be monitored on a 24 hour basis. Petitioner's expert, Dr. Stein, concluded that there was no inappropriate prescription of drugs for AS.

68. Respondent did not inappropriately or excessively prescribe Trinalin as a decongestant for AS. Trinalin was an acceptable drug for treating upper respiratory symptoms that may have complicated AS's bronchitis. Trinalin was prescribed by Respondent in addition to potassium iodide solution. The potassium iodide solution was the primary medication that Respondent properly prescribed to treat AS's bronchitis. Trinalin and its possible side effects did not in any way deter from, endanger, or worsen AS's condition. Petitioner's expert, Dr. Stein, concluded that there was no inappropriate prescription of drugs for AS. Dr. Stein further concluded that Respondent's control of AS's hypertension was phenomenal in view of the fact that AS's blood pressure dropped from 245/130 to 160/80 in two days

    
    

69. The absence of a final diagnosis of the cause of AS's chest pain was not malpractice under the circumstances. Petitioner's expert, Dr. Stein, concluded that Respondent's record keeping was satisfactory with respect to AS.

    
    

70. Respondent did not fail to keep written medical records for AS, did not improperly dispense a legend drug to AS, and did not commit malpractice in his care and treatment of AS within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes.

    
    

    Patient CC

    
    

71. Patient CC was found at his home by the fire rescue squad on or about January 9, 1984. CC was in clinical shock with a blood pressure of 80/40 and was admitted to City Hospital. The fire rescue squad was unable to start an intravenous line due to CC's low blood pressure. Upon admission to City Hospital, Respondent started intravenous fluids at the rate of 40 cc's per hour. CC's skin was cool and dry. His hemoglobin and hematocrit were normal. CC was not dehydrated. The initial diagnosis noted by Respondent on the admission sheet and the final diagnosis upon CC's discharge on January 11, 1984, was a severe hypotensive episode secondary to medications.

    
    

72. The only factual allegations regarding CC were set forth in paragraphs 49-52 of the Complaint. Paragraphs 49-52 in relevant part provide that:

    
    

    1. Respondent neglected to provide adequate fluid therapy to CC;

    2. Respondent failed to perform adequate diagnostic investigation to determine the etiology of CC's hypotensive episode; and

    3. Respondent failed to maintain hospital records containing an adequate explanation of the

       etiology for CC's admitting condition.

       
       

73. Respondent did not neglect to provide adequate fluid therapy for CC. The intravenous line was started by Respondent to keep a vein open in order to administer appropriate medication on an emergency basis if necessary. CC was not dehydrated and did not need aggressive fluid therapy or aggressive re- balancing of electrolyte imbalance. CC's skin was cool and dry. His hemoglobin and hematocrit were normal. Petitioner's expert, Dr. Stein, concluded that Respondent's care of CC was within acceptable standards.

    
    

74. Respondent did not fail to perform adequate diagnostic investigation to determine the etiology of CC's hypotensive episode. The etiology of CC's hypotensive episode secondary to an allergic medication response was extremely clear from the clinical presentation, vital signs, and a history of recent

    multiple medication from another physician. Petitioner's expert, Dr. Stein, concluded that Respondent's initial diagnosis was a fair and appropriate working diagnosis. Respondent did not fail to maintain hospital records containing an adequate explanation of the etiology for CC's admitting condition.

    
    

75. Respondent did not fail to keep written medical records for CC, did not improperly dispense a legend drug to CC, and did not commit malpractice in his care and treatment of CC within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes.

    
    

    Patient MM

    
    

76. Patient MM was admitted to City Hospital on or about January 10, 1984, suffering from a severe asthmatic condition known medically as status asthmaticus. MM was treated with aminophylline and theophylline, Tagamet, Tigan, Decadron, prednisone, and adrenocorticotropic hormone ("ACTH"). MM responded to Respondent's treatment, and upon discharge, Respondent prescribed Alupent for maintenance therapy for MM's asthmatic condition.

    
    

77. The only factual allegations regarding MM were set forth in paragraphs 52-62 of the Complaint. Paragraphs 52-62 in relevant part provide that:

    
    

    1. Respondent inappropriately and/or excessively prescribed bronchodilators, including the simultaneous use of oral theophylline and intravenous aminophylline, causing MM to suffer ill effects such as abdominal pain and vomiting;

    2. Respondent inappropriately and/or excessively prescribed a combination of intramuscular Decadron, intramuscular ACTH, and oral prednisone; and

    3. Respondent failed to provide adequate maintenance therapy to treat NM's asthmatic condition.

    
    

78. Respondent did not inappropriately and/or excessively prescribe bronchodilators, including the simultaneous use of oral theophylline and intravenous aminophylline, causing NM to suffer ill effects such as abdominal pain and vomiting.

    
    

    1. The separate dosage for the oral theophylline and intravenous aminophylline administered to MM was appropriate given the clinical severity of the case and MM's progress as indicated in the progress notes. Status asthmaticus is an acute pulmonary emergency which can last a period of hours or days depending on the aggressiveness with which treatment regimen is provided by the physician.

       
       

    2. The simultaneous use of aminophylline intravenously and theophylline orally in the treatment of MM was appropriate under the circumstances. Intravenous aminophylline was properly administered to treat the emergency nature of MM's condition. However, theophylline tablets were appropriate on an outpatient basis. MM's intravenous dosage of aminophylline was gradually tapered while the dosage of theophylline tablets was increased in a manner that maintains constant blood levels of medication. A constant blood level of medication is necessary to preclude another status asthmaticus emergency.

    3. Intravenous aminophylline can cause abdominal pains and vomiting when administered properly and in appropriate doses. The same is true of oral theophylline. Abdominal pain and vomiting are recognized side effects of either medication. Respondent properly prescribed Tagamet and Tigan in appropriate doses for MM's abdominal pain and vomiting.

    
    

79. Respondent did not inappropriately or excessively prescribe a combination of intramuscular Decadron, intramuscular ACTH, and oral prednisone while treating MM intravenously with aminophylline. The treatment of patients in severe pulmonary situations, including status asthmaticus, by simultaneously administering the foregoing medications has been used throughout the world for the last 40 years. While this treatment is complicated because it requires the simultaneous management of medications, clinical improvement from such treatment is often quite rapid. Respondent began administering the prednisone to MM while simultaneously withdrawing the Decadron in accordance with standard practice.

    
    

80. Respondent did not fail to provide adequate maintenance therapy to treat MM's asthmatic condition. Respondent properly prescribed Alupent for MM upon discharge. Alupent is probably the most prescribed medication for chronic status asthmaticus in a stable clinical home setting. The dosage prescribed for MM was appropriate for maintenance in a home setting. MM was instructed to see Respondent within 24 to 48 hours after discharge for a follow-up evaluation.

    
    

81. Respondent did not fail to keep written medical records for MM, did not improperly dispense a legend drug to MM, and did not commit malpractice in his care and treatment of MM within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes.

    
    

    All Nine Patients Considered As A whole

    
    

82. Petitioner's expert, Dr. Stein, concluded that Respondent's record keeping, medication, and treatment of the nine patients at issue was within acceptable standards for each patient individually. However, Dr. Stein further concluded that Respondent's record keeping, medication, and treatment of all nine patients considered as a whole fell below acceptable standards. In effect, Dr. Stein concluded that the whole of Respondent's record keeping, medication, and treatment of all

    nine patients was less than the sum of its individual parts. 18/ Dr. Stein's conclusion is inherently improbable and not credible.

    
    

83. Respondent did not fail to keep written medical records justifying his treatment of any one patient individually or for all nine patients considered as a whole. The medical charts and records, including written patient histories, progress notes, evaluations, treatment, and justifications for treatment were adequate and within acceptable norms as practiced in 1984 and today for all nine patients considered as a whole.

    
    

84. Respondent did not dispense a legend drug other than in the course of Respondent's professional practice for any one patient individually or for all nine patients considered as a whole.

    
    

85. Respondent did not commit malpractice in his care and treatment of any one patient individually or in his care and treatment of all nine patients considered as a whole. Respondent practiced medicine in his care and treatment of each patient and in his care and treatment of all nine patients considered as a whole with that level of skill, care, and treatment which is recognized by a

    reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

    CONCLUSIONS OF LAW

    
    

86. The Division of Administrative Hearings has jurisdiction over this proceeding. The parties were duly noticed for the formal hearing.

    
    

87. The burden of proof is on Petitioner to prove the allegations in the Administrative Complaint by clear and convincing evidence. Where an agency seeks to revoke a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); The Florida Bar

    v. Schonbrun, 257 So.2d 6 (Fla. 1971).

    
    

88. Petitioner failed to satisfy its burden of proof in this proceeding for several reasons. First, Respondent successfully refuted evidence presented by Petitioner. The opinions of Respondent's experts were credible, well reasoned, consistent, and persuasive. Each of the nine patients presented an unusual medical case. Respondent had firsthand knowledge of each patient. In the case of patients LT, RR, and WW, Dr. Mann, Dr. Kamerman, and Dr. Spievack, had firsthand knowledge of the respective patient and the circumstances surrounding the respective patient. Conversely, Petitioner's experts testified from their review of the hospital records. 19/

    
    

89. Second, Dr. Ehrlich was not accepted as an expert in surgical procedures. Respondent's objection to testimony from Dr. Ehrlich concerning surgical procedures is sustained, and such testimony has been disregarded in this Recommended Order.

    
    

90. Third, testimony from Petitioner's experts was sometimes inconsistent. Dr. Stein often corrected during cross examination testimony he had given during direct examination. The testimony of Dr. Stein and that of Dr. Ehrlich frequently conflicted on particular issues. As a general proposition, Dr. Stein found that Respondent's treatment of each of the nine patients individually was appropriate but that Respondent's treatment of all nine patients, considered as a whole, was inappropriate. In one case, Dr. Stein could not form an opinion concerning the standard of care provided by Respondent.

    
    

91. Fourth, there were some matters for which Petitioner either failed to present evidence supporting specific allegations in the Complaint or the testimony of one or both of Petitioner's expert witnesses was bare opinion without explanation or rationale. Finally, Petitioner's experts' testimony sometimes concerned factual allegations not included in the Complaint.

    
    

92. Petitioner cannot amend the Complaint to conform to evidence presented at the formal hearing concerning factual allegations not included in the Complaint. Petitioner argued during the formal hearing that it was entitled under the Florida Rules of Civil Procedure to amend the Complaint to conform to the evidence presented at the formal hearing. Florida Rules of Civil Procedure 1.190(b) allows issues not raised in the pleadings in a civil matter to be treated as if they were raised in the pleadings whenever such issues are tried by the express or implied consent of the parties.

    
    

93. Florida Rules of Civil Procedure 1.190(b) does not support Petitioner's argument in this proceeding for several reasons. Issues raised at the formal hearing concerning matters not alleged in the Complaint were not tried by the express or implied consent of the parties. Instead, Respondent

    timely objected to each attempt by Petitioner to present evidence at the formal hearing concerning issues not raised in the Complaint.

    
    

94. Section 120.58(1)(b), Florida Statutes, and Florida Administrative Code Rule 22I-6.019 adopt only those Florida Rules of Civil Procedure pertaining to discovery and appropriate sanctions for failure to comply with orders compelling discovery. Florida Rules of Civil Procedure 1.190(b) does not pertain to either discovery or appropriate sanctions and is not made applicable to this proceeding pursuant to Section 120.58(1)(b), Florida Statutes, and Florida Administrative Code Rule 22I-6.019.

    
    

95. This proceeding is not a civil matter. Instead, this proceeding involves potential disciplinary action to Respondent's professional license which is penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973)

    
    

96. Finally, Section 120.60(7), Florida Statutes, provides in relevant part that no penalty imposed against a respondent's license is lawful unless the administrative complaint served on a respondent affords reasonable notice of facts or conduct which warrant the penalty. Proof in a proceeding such as this one, which seeks disciplinary action against a professional license, is limited to factual allegations included in the administrative complaint. State ex rel. Jordon v. Pattishall, 126 So. 147 (Fla. 1930).

    
    

97. The factual allegations in a complaint filed in an administrative proceeding must be specific enough to inform the accused with reasonable certainty of the nature of the charges. Seminole County Board of County Commissions v. Long, 422 So.2d 938 (Fla. 5th DCA 1982), petition for review denied, 431 So.2d 989 (Fla. 1983). The factual allegations in a an administrative complaint seeking a license revocation must state with specificity the acts complained of so that the licensee has a fair chance to prepare a defense. Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984).

    
    

98. Respondent would be denied his fair chance to prepare a defense in this proceeding if Petitioner were allowed to amend the Complaint to conform to the evidence presented at the formal hearing. Petitioner cannot add new charges to the Complaint based on previously alleged facts. Nor can Petitioner introduce new facts not previously stated with the specificity required to afford Respondent a fair chance to prepare a defense to existing charges in the Complaint. 20/

    
    

99. Respondent's objection at page 27 of the Transcript is overruled, and the motion to strike is denied. Respondent objected to the relevancy of the following question and answer during direct examination of Dr. Stein:

    
    

    Q. Do you find any place in [Respondent's] notes where a [sputum] culture was taken of [RR's] lungs?

    A. I don't believe I could find a sputum culture, no.

    
    

    Paragraph 15 of the Complaint alleged that Respondent failed to keep written records justifying his treatment of RR. In order to determine whether Respondent's written records justified his treatment of RR, it was necessary to determine the contents of Respondent's written records. The quoted question to

    Dr. Stein at the formal hearing was relevant to the issue of what was included and what was not included in Respondent's written records.

    
    

100. Respondent's objection at page 41 of the Transcript was erroneously overruled. The only factual allegation in the Complaint concerning the treatment of JS alleged that Respondent failed to notify JS's psychiatrist of her hospitalization. Testimony concerning her chest x-rays and treatment for aspiration pneumonia were not relevant to the issue of whether her psychiatrist was notified of her hospitalization. Improperly admitted evidence is not competent and substantial evidence and cannot form the basis of findings of fact. Accordingly, the testimony of Dr. Stein concerning x-rays of JS and her treatment for aspiration pneumonia has been disregarded.

     
     

101. Respondent's objection at page 195 of the Transcript is sustained. Respondent objected to a question and answer during direct examination of Dr. Ehrlich concerning the use of general anesthetic in LT's surgery. Dr. Ehrlich was not accepted as an expert in surgical procedures. Testimony by Dr. Ehrlich concerning surgical procedures has been disregarded.

     
     

102. Respondent's objection at page 205 of the Transcript is sustained. Respondent objected to a question and answer during direct examination of Dr. Ehrlich concerning diagnostic tests and medical treatment of JS during her hospitalization. The only factual allegation in the Complaint concerning the treatment of JS alleged that Respondent failed to notify JS's psychiatrist of her hospitalization. Testimony concerning diagnostic tests and medical treatment during her hospitalization are not relevant to the issue of whether her psychiatrist was notified of her hospitalization. Testimony by Dr. Ehrlich concerning matters other than the failure to notify JS's psychiatrist have been disregarded.

     
     

103. Respondent's objection at page 220 of the Transcript is overruled. Respondent objected to the following question and answer during direct examination of Dr. Ehrlich on the ground that Dr. Ehrlich was not qualified to testify concerning surgical procedures:

     
     

     Q. Do you find anything unusual within that [hospital] record with respect to this patient and the care given to her by [Respondent]?

     A. I don't know what you're referring to.

     
     

     The question was not directed to surgical procedures and Dr. Ehrlich's response and subsequent testimony did not address surgical procedures.

     
     

104. Respondent's objection at page 223 of the Transcript is sustained, and the motion to strike is granted. The question and answer during direct examination of Dr. Ehrlich concerning blood tests of patient CH showing an increased white cell count, the absence of a urine culture, and the possibility of a kidney infection was not relevant to the factual allegations in paragraphs 23-28 of the Complaint that concerned patient CH. Testimony by Dr. Ehrlich concerning such matters has been disregarded.

     
     

105. Respondent's objection at page 241 of the Transcript is sustained. The question and answer during direct examination of Dr. Ehrlich concerning inappropriate diagnostic tests performed on MM was not relevant to the factual

     allegations in paragraphs 53-61 of the Complaint pertaining to MiM. Testimony by Dr. Ehrlich concerning inappropriate diagnostic tests performed on MM has been disregarded.

     
     

106. Petitioner's objections at pages 269 and 305 of the Transcript are overruled. Petitioner objected to both questions on the ground that they required the witness to comment on the testimony of other expert witnesses which Petitioner argued is contrary to the rules of evidence. The question and answer during cross examination of Dr. Ehrlich at page 269 concerned Dr. Ehrlich's opinion about the prompt administration of drugs to RR. The question did- not ask Dr. Ehrlich to comment on the opinion previously expressed by Petitioner's other expert witness. The question and answer during cross examination of Dr. Ehrlich at page 305 asked Dr. Ehrlich if he disagreed with the opinion previously expressed by Petitioner's other expert witness. However, no authority has been found which prohibits such a question and Petitioner cited no such authority to the undersigned.

1. Petitioner's objections at pages 586 and 593 of the Transcript are sustained. Petitioner objected to Dr. Mann's testimony concerning matters outside the area of pathology including surgical procedures, family practice, and general practice. Testimony from Dr. Mann concerning areas of practice other than pathology have been disregarded.

   
   

2. Testimony by Petitioner's experts concerning the adequacy of medical records for patients other than RR, CH, RW, and CC was not relevant to factual allegations in the Complaint and has been disregarded. Testimony by Petitioner's experts concerning the prescription of drugs not described in the factual allegations in the Complaint is irrelevant and has been disregarded. Testimony by Petitioner's experts concerning malpractice allegedly committed by acts of Respondent not specifically stated in the factual allegations in the Complaint has been disregarded.

   
   

3. Testimony that has been disregarded would not have altered the recommendation in this Order even if such testimony had been considered either cumulatively or separately. Dr. Ehrlich, for example, testified that Respondent should have performed a frozen section on ThT so that a mastectomy could have been performed in the same surgical procedure under one general anesthetic. Conversely, Dr. Ehrlich testified that "the appropriate standard in this community is to use local anesthesia for lesions of this size. [T]he

   assumption [is] that they are supposedly benign." 21/ However, Dr. Ehrlich's testimony was disregarded to the extent it addressed surgical procedures.

   
   

4. Respondent did not violate Subsections 458.331(m), (q), or (t), Florida Statutes, in his care of any one or all of the nine patients identified in the Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation enter a Final

Order finding the Respondent not guilty of the factual allegations in the Complaint and concluding that Respondent did not violate Subsections 458.331(1)(m), (q), or (t), Florida Statutes.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11th day of May, 1990.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1990.

ENDNOTES

1/ The Notice of Transfer was signed by Hearing Officer Diane Tremor. The matter was apparently transferred to Hearing Officer Tremor sometime between January 19, 1989, and March 31, 1989.

2/ All references to Chapters, Sections, and Subsections, are to Florida Statutes (1989) unless otherwise stated.

3/ Transcript at 195.

4/ Transcript at 584-585.

5/ An excision biopsy is a two-step procedure in which tissue is surgically removed for study in a laboratory by a pathologist. No further surgical procedure is performed on the patient. The excised tissue is examined by a pathologist. If the pathologist determines that the tissue is cancerous, a second and more definitive surgical procedure is performed on the patient at a later time by a general surgeon.

6/ Transcript at 199. Dr. Ehrlich's testimony concerning the use of local or general anesthetic is disregarded as testimony pertaining to a surgical procedure.

7/ See testimony of: Dr. Ehrlich at 197 and 198; Dr. Mann at 588 and 592; and Dr. Kamerman at 631.

8/ Dr. Ehrlich further concluded that based on the size of the lesion in LTD the excision biopsy should have been performed under local anesthesia. Dr.

Ehrlich's testimony is considered solely as evidence of whether LT's condition was presumptively benign and not as evidence of the propriety of the anesthesia used.

9/ LT consulted Respondent and requested Respondent to perform the excision biopsy.

10/ RR also suffered from severe malformations of the chest, skull, and jaw. RR had long surpassed the normal life expectancy of 10 or 11 years for a person

in his condition. Credit for RR's relatively long life was attributed by Dr. Kamerman, in part, to the 24 hour home care provided to RR by his mother.

11/ Petitioner's expert, Dr. Stein, had no problem with treating RR with Valium. Dr. Ehrlich's testimony at page 203 of the Transcript indicates that Valium is inappropriate for a patient suffering from aspiration pneumonia but disregards RR's convulsive condition. Another factor considered in assessing the credibility and weight to be given the testimony of the respective experts was that Dr. Kamerman had treated RR approximately five times in earlier years and had firsthand knowledge of RR's medical history and chronic condition.

12/ Respondent may have telephoned JS's psychiatrist but did not recall. Respondent's records do not indicate that JS's psychiatrist was notified of JS's hospitalization. Respondent's records were determined to be adequate by Dr.

Kamerman.

13 Given the testimony of the other expert witnesses to the contrary, Dr. Ehrlich's testimony is considered pedantic rather than persuasive. Compare the Transcript at pages 212-214, 42, and 661, respectively.

14/ Gout typically shows up somewhere like a big toe or as generalized arthritis.

15/ WW also received Hydrodiuril, Inderide and Vibramycin. The quantity and variety of medication received by WW was extensive. However, the allegations in the Complaint and evidence presented by Petitioner at the formal hearing focused on elevated BUN levels rather than medication received by WW.

16/ Respondent surgically removed a round circular piece of issue off the top of the abscess, explored the abscess to determine its source, drained it, and packed the drained abscess with gauze.

17/ Notations in the records include references to symptoms appearing on the left side-of the body including left dysarthria, left deviation of the tongue, and left hemiparesia of the upper and lower extremity.

18/ See Deposition of Reynold Stein, M.D., November 29, 1989. Dr. Stein's explanation begins on page 13 of the Deposition.

19/ Dr. Stein used the word "esoteric1, to describe the process of applying a generalized standard based on a review of hospital records to unusual cases in which Respondent had firsthand knowledge. See Deposition of Reynold Stein, M.D., November 29, 1989, at page 6.

20/ The undersigned has no jurisdiction to determine the constitutional issues raised in Respondent's Memorandum of Law filed on February 7, 1990. However, the undersigned may be guided by constitutional principles in reaching conclusions of law. The conclusion not to amend the Complaint to conform to the evidence presented at the formal hearing is consistent with both Sec.

120.60(7), Fla. Stat., and constitutional principles of due process. 21/ See Transcript at 197.

APPENDIX

Case Number 87-4228

Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding ,. Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1-3 Included in Findings 1-3

1. Included in Preliminary Statement

2. Included in Finding 12 record.

7,8, and 10 Rejected as immaterial. See also Finding 82

9 Rejected for the reasons stated in Findings 13, 82

1. Rejected for the reasons stated in Finding 24, 82

2. Included in Finding 23

3. Rejected for the reasons stated in Finding 22 (See also Conclusions 4, 14, and 15)

4. Rejected for the reasons stated in Finding 29, 82

5. Rejected for the reasons stated in Findings 23, 26, 82

6. Accepted in Finding 32

7. Accepted in Finding 34

8. Rejected as irrelevant, and for the reasons stated in Finding 37

9. Accepted in Finding 40

20-21 Rejected for the reasons stated in Findings 44-45, 82

22 Rejected for the reasons stated in Findings 49, 82

23-24 Rejected for the reasons stated in Findings 51, 82 (See Transcript at

397 and Joint Exhibit: 5 at 12)

25-27 . Rejected for the reasons stated in Findings 61, 82

28 Accepted in Finding 64

29-30 Rejected as irrelevant (See Findings 66, 68, and 82)

31 Accepted in Finding 71

32-34 Rejected for the reasons stated in Findings 73-74, 82

35 Accepted in Finding 76

36-39 Rejected for the reasons stated in Findings 82-85

40 Rejected for the reasons stated in Finding 5

41-43 Rejected for the reasons stated in Finding 13 44-47 Rejected as irrelevant (See also Finding 5)

1. Accepted in Finding 21

2. Rejected for the reasons stated in Finding 24

3. Rejected for the reasons stated in Finding 29

4. Rejected for the reasons stated in Finding 28

5. Rejected for the reasons stated in Finding 26

6. Rejected for the reasons stated in Findings 21-31

54-55 Rejected as irreThevant (See also Findings 33, 36, and 39) 56-58 Rejected for the reasons stated in Findings 34-35

1. Accepted in Finding 47

2. Rejected in part as irrelevant Remainder rejected for the reasons stated in Findings 42

3. Accepted in Finding 52 62 Rejected for the reasons stated in Finding 49 63-64 Rejected for the reasons stated in Findings 51-52

65 Rejected as irrelevant (See also Finding 50)

66-67 Rejected for the reasons stated in Findings 58-59 68-69 Rejected for the reasons stated in Findings 61-62

1. Accepted in part in Finding 71 Rejected in part for the reasons stated in Findings 73-75

2. Accepted in Finding 76

3. Accepted in Finding 78 73 Rejected as irrelevant (See also Finding 77)

1. . Rejected in part as irrelevant. Rejected in part for the reasons stated in Findings 78-79

2. Rejected for the reasons stated in Findings 78-79

3. Rejected for the reasons stated in Finding 80

77-78 Rejected for the reasons stated in Findings 83-85 79-81 Rejected as irrelevant and immaterial

82-85 Rejected for the reasons stated in Finding 13

1. Accepted in Finding 16

2. Accepted in Finding 15

3. . Rejected for the reasons stated in Findings 13-14

89- Rejected for the reasons stated in Finding 17 90, 96 Rejected for the reasons stated in Finding 30

1. Rejected for the reasons stated in Finding 23

2. Rejected for the reasons stated in Finding 44

3. Accepted in Finding 24

4. Rejected for the reasons stated in Findings 23-25

5. Rejected for the reasons stated in Findings 26, 82

97 Accepted in Finding 32

98-101 Rejected as immaterial (See also Findings 34 and 82

102 Rejected as irrelevant (See also Finding 43)

103-104. Rejected for the reasons stated in Findings 44-45

105-106 Rejected as irrelevant and immaterial (See also Findings 43 and 46)

1. Accepted in Finding 51

2. Rejected as irrelevant (See also Finding 50)

3. Accepted in Findings 55,58 59

4. Rejected for the reasons stated in Finding 62 111-125 Rejected as irrelevant and immaterial

126-127 Rejected for the reasons stated in Finding 13,82

1. Rejected as irrelevant and immaterial (See Finding 9)

2. Rejected for the reasons stated in Findings 16-17 130-132 Rejected as irrelevant and immaterial

133, 136 Rejected for the reasons stated in Finding 26 134-135 Rejected for the reasons stated in Findings 23-25 137-138 Accepted in Finding 32

1. Rejected as irrelevant (See also Finding 33)

2. Rejected as unintelligible

3. Accepted in Finding 40,42

142-143 Rejected for the reasons stated in Finding 41

1. Rejected for the reasons stated in Findings 44-45

2. - Accepted in Finding 48

3. Rejected as irrelevant (See also Finding 50)

4. Rejected for the reasons stated in Findings 51-54

5. Accepted in the Preliminary Statement 149-150 Accepted in Findings 41-42

151-154, 156-157 Rejected for the reasons stated in Findings 45

155 Accepted in Finding 42

158 Rejected as irrelevant and immaterial

Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph

number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Respondent Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1-2 Accepted in Finding 1-2

3-6 Accepted as uncontroverted 7-11, 18 Accepted in Finding 13

12, 17 Accepted in Finding 14

13 Accepted in Finding 8

14-15 Accepted in Finding 18

16 Accepted in Findings 14,16

1. Included in Finding 16

2. Rejected for the reasons stated in Finding 17 21-22 Accepted in Finding 10

23-24 Accepted in Findings 12,82

25-27, 30-31 Accepted in Findings 21,23

28, 40 Accepted in Finding 28

29, 32-36 Accepted in Finding 24

1. Accepted in Finding 26

2. Accepted in Finding 29

3. Accepted in Finding 27 41 Rejected as irrelevant and immaterial (See Finding 22)

42, 45 Accepted in Finding 82

43-44 Accepted in Finding 31

1. Accepted in Finding 32

2. Rejected as irrelevant (See also Findings 33 and 39)

3. Accepted in Finding 35

49-51 Accepted in Finding 32

52-56 Accepted in Finding 37

57-59 Accepted in Finding 38

60-62 Accepted in Fining 40

63-67 Accepted in Findings 41-42

68-69 Accepted in Fining 44

70-71 Accepted in Finding,, 45

72-75 Accepted in Findings 48-49

76-82 Accepted in Finding 51

83-85 Accepted in Finding 52

86-89 Accepted in Findings 55,61

90-92, 94-95 Accepted in Findings 55,58

93 Accepted in Finding 59

96-97 Accepted in Finding 60 98-104 Accepted in Findings 61-63 82

105-109 Accepted in Findings 64-65

110-113 Accepted in Findings 67--70

114-117, 119-121 Accepted in Findings 71,73 74,82

118 Accepted in Finding 71

122-127 Accepted in Findings 76,78

128-129 Accepted in Finding 79

130-132 Accepted in Finding 80

133-135 Accepted in Finding 81

136-139 Accepted in the Preliminary Statement (uncontroverted)

COPIES FURNISHED:

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation

1940 N. Monroe St. Tallahassee, FL 32399-0792

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 N. Monroe St. Tallahassee, FL 32399-0792

Peter S. Fleitman, Esquire Senior Attorney

Department of Professional Regulation

401 N.W. 2nd Ave., Suite N621 Miami, FL 33128

Michael W. Ford, Esquire David C. Smith, Esquire Mershon, Sawyer, Johnston,

Dunwoody & Cole

200 S. Biscayne Blvd., Suite 4500 Miami, FL 33131-2387

Docket for Case No: 87-004228

Orders for Case No: 87-004228