STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4428

)

LAWRENCE A. DECKER, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled cause on December 7, 1988, at Tampa, Florida.

APPEARANCES

For Petitioner: Peter S. Fleitman, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Roland J. Lamb, Esquire

Post Office Box 12349

St. Petersburg, Florida 33733

By Administrative Complaint filed September 23, 1987, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Lawrence A. Decker, Respondent, as an osteopathic physician. As grounds therefor, it is alleged that in performing a hysterectomy on patient D. K., Respondent exercised influence on the patient so as to exploit the patient for financial gain; failed to document in the patient records justification for the surgery performed; failed to obtain proper authorization from the patient for the surgery performed; and failed to practice osteopathic medicine with a level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances.

At the hearing, Petitioner submitted the hospital records of patient D. K. as Exhibit 1, and two depositions of Dr. Rose as exhibits 2 and 3. Respondent called two witnesses, including himself, and submitted the deposition of Dr.

Coleman as Exhibit 4.

Proposed Recommended Orders have been submitted by the parties. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto, Lawrence A. Decker was licensed as an osteopathic physician in Florida.

   
   

2. On November 18, 1980, D. K. was admitted to Sun Coast Osteopathic Hospital, with an admitting diagnosis of acute generalized anxiety disorder, under the care of Dr. Kaye, a psychiatrist. On her initial examination, she complained of severe menstrual cramping. She was referred to an internist and a gynecologist (Respondent). Exhibit 1).

   
   

3. At her gynecology examination, D. K. gave a history of pain in the right lower quadrant of her abdomen shortly following a tubal ligation some six years earlier. She had visited three gynecologists in the intervening years and had been treated with medication (Estrace, Valium and Progesterone) by one of these gynecologists without significant improvement in her symptoms; one suggested she had a prolapse, a hysterectomy was indicated and Tranxene was prescribed; and a third physician stated she had a sore muscle on her right ovary, but no therapy was suggested.

   
   

4. Respondent suggested a hysterectomy might relieve the menstrual cramps, but was unlikely to improve her anxiety disorder unless that was brought on by the dysmenorrhea. D. K. talked to her husband and then told Respondent she would like to have the hysterectomy during her current admission rather than be discharged and return at a later date. After concluding D. K. was capable of consenting to the surgery, the hysterectomy was scheduled for November 24, 1980.

   
   

5. In Dr. Joyes' hospital notes (Exhibit 1), an entry dated November 21, 1980 states in part: "Anxiety re surgery. Feels her problems are due to physical causes." November 22, 1980 entry: "States relief decision made to have surgery (hysterectomy) scheduled for Monday." November 23, 1980 entry: "Patient expresses anxiety re A.m. surgery. Able to understand others and is supportive to their needs. Lacks emotional insight into her own."

   
   

6. Nurses notes in Exhibit 1 (page 61) for November 22, 1980 reads: "Attended group session . . . Participated very well. Appears more relaxed and comfortable this evening." Nurses notes for November 23, 1980 read: "Good participation during group. Insight into other's problems good. Nothing specific to solving own anxieties offered except surgery."

   
   

7. At no time did Dr. Joye conclude that D. K. was unable to fully and knowingly consent to the surgery that was performed by Respondent on November 24, 1980.

   
   

8. Petitioner's witness, Dr. Eli Rose, opined that D. K. was unable to give informed consent to the surgery based upon her admitting diagnosis of acute anxiety reaction and Dr. Joye's comment in Exhibit 1 (finding 5 above) "that [she] lacks emotional insight into her own." He also opined that from the symptoms of D. K. as contained in the patient records there was insufficient medical justification for the hysterectomy performed. Dr. Rose was also perturbed that the operation was scheduled so quickly, disregarding (or not knowing) that D. K. had requested the surgery be performed during that hospitalization.

9. Before becoming aware that a second surgeon assisted Respondent in performing this hysterectomy, Dr. Rose opined that the length of the operation, forty-five minutes, was too short a time for this procedure to be safely and adequately performed. After learning that another surgeon assisted Respondent, Dr. Rose backed away from this position.

   
   

10. After this case was referred to Dr. Rose for consultation, he became aware that he was D. K.'s physician two years earlier who had treated D. K.'s symptoms with medication.

    
    

11. In addition to his own testimony, Respondent presented two gynecologists, one board certified and the other board eligible. Dr. Broadnax reviewed the patient records of D. K. and the depositions of other witnesses. He opined that in the treatment of D. K., Respondent exercised the level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as acceptable under similar conditions and circumstances.

1. The parties stipulated if Dr. Rothman, a board certified gynecologist, was called he would testify that in the treatment of D. K., Respondent exercised the care, skill and treatment which is recognized by a reasonably prudent osteopathic physician as acceptable under similar conditions and circumstances.

   
   

2. With respect to the charge involving inadequate record keeping, no creditable evidence was presented to support this charge. Petitioner's only witness acknowledged that he was unaware there is a standard of care for the keeping of medical office records.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. No specific evidence was produced regarding Count I which alleges that Respondent exploited D. K. for financial gain. Evidence that Respondent induced

   D. K. to have a hysterectomy which was medically contraindicated or unnecessary would support this charge. Similarly, evidence that D. K. was unable to give informed consent to the surgery would support this charge.

   
   

5. In license revocation proceedings, Petitioner has the burden to prove the allegations by clear and convincing evidence. Ferris v. Turlington, 512 So.2d 290 (Fla. 1987).

   
   

6. With respect to the exploitation of patient charge, the preponderance of the evidence is that D. K. was capable of giving informed consent to the surgery performed on her by Respondent and looked forward to this surgery relieving her dysmenorrhea. Petitioner failed to prove that the surgery performed on D. K. by Respondent was unnecessary or medically contraindicated. As pointed out by Respondent's witness, most hysterectomies are elective operations and do not involve life threatening conditions. Accordingly, Petitioner has failed to prove Count I.

   
   

7. With respect to Count II which alleges Respondent's medical records fail to justify his course of treatment of D. K., it appears that subsequent to the filing of the Administrative Complaint, copies of Respondent's records were retrieved from his insurance carrier, and the evidence is insufficient to show these records fail to justify the treatment of D. K. by Respondent.

8. Court III, alleging that Respondent did not have proper authority to perform surgery on D. K. is covered in paragraph 4 above.

   
   

9. Finally, Count IV, alleging that in his care and treatment of D. K., Respondent failed to adhere to the level of care, skill and treatment recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances, was not proven by even a preponderance of the evidence. In fact, the preponderance of the evidence pointed to Respondent's care and treatment of D. K. as meeting the prescribed standard of care.

   
   

10. From the foregoing, it is concluded that Petitioner has failed to prove by clear and convincing evidence, that Lawrence A. Decker violated provisions of the Medical Practices Act as alleged in the Administrative Complaint filed September 23, 1987.

It is

RECOMMENDED that a Final Order be entered dismissing all charges preferred against Lawrence A. Decker, D.O.

ENTERED this 24th day of January, 1989, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings

The Oakland Building 2009 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the clerk of the Division of Administrative Hearings this 24th day

of January, 1989.

APPENDIX

Treatment Accorded Petitioner'S Proposed Findings

1. Included in HO #1.

2-5. Included in HO #3.

6. Included in HO #10.

7-8. Rejected as mere testimony of the witness.

9. Rejected. See HO #3.

10-16. Rejected as recitation of the testimony of witness.

1. Rejected. Pathology report showed no significant abnormality.

2. Rejected as immaterial.

19-37. Rejected as recitation of the testimony of witness.

1. Included in HO #2.

2. Rejected as unsupported by credible testimony of record.

3. Rejected as improper conclusion from testimony given. 41-42. Included in HO #3.

43. Accepted but irrelevant.

44-53. Accepted as mere testimony of witness. 54-55. Rejected as irrelevant.

1. Accepted.

2. Rejected as not supported by the record. 58-60. Accepted as testimony of Respondent.

1. Rejected as not supported by the record.

2. Rejected as irrelevant.

63-67. Accepted as testimony of Respondent.

68. Rejected. See HO #5 and #6.

69-70. Rejected. Dr. Decker's testimony was that Dr. Joye was fully aware of the planned surgery and since D. K. was Joye's patient, he relied on Dr. Joye's opinion that D. K. was capable of giving informed consent to the surgery.

71. Accepted as testimony of Respondent.

72-74. Accepted as testimony, but irrelevant.

75. Included in HO #2.

76-79. Rejected as irrelevant.

80-82. Rejected as irrelevant to charges.

83. Accepted. Dr. Broadnax testified that a vast majority of hysterectomies are elective and routine and not an emergency.

84-85. Rejected as recitation of witness testimony.

86. Accepted as testimony of Respondent. 87-90. Rejected as irrelevant.

91-94. Rejected as facts irrelevant to the charges. Treatment Accorded Respondent's Proposed Findings

1. Included in HO #1.

2. Accepted as testimony presented.

3. Included in HO #10.

4. Accepted insofar as included in HO #4-6. Dr. Rose's opinion that D. K. was incapable of giving informed consent is specifically rejected.

5. Included in HO #12 and #14.

COPIES FURNISHED:

Peter S. Fleitman, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Roland J. Lamb, Esquire Post Office Box 12349 St. Petersburg, FL 33733

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Kenneth D. Easley General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

=================================================================

AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NO.: 069153

DOAH CASE NO.: 87-4428

LAWRENCE DECKER,

Respondent.

/

FINAL ORDER

Respondent, Lawrence Decker, is a licensed physician in the State of Florida, having been issued license no. 0S 3993. Petitioner filed an Administrative Complaint seeking suspension, revocation, or disciplinary action against the licensee.

Respondent requested a formal hearing and one was held before the Division of Administrative hearings. The recommended order has been forwarded to the Board pursuant to Section 120.571, F.S.; it is attached to and made a part of this Order.

The Board of Osteopathic Medical Examiners met on March 17, 1989, in Miami Beach, Florida, to take final agency action. The Petitioner was represented by Stephanie Daniel, Esquire; the Respondent was not present but was represented by Roland J. Lamb, Esquire. The Board has reviewed the entire record in the case. The exceptions to the recommended order filed by Petitioner were withdrawn by Petitioner at the final hearing.

The Board adopts the findings of fact and recommendation of the recommended order. The Board adopts the conclusions of law of the recommended order but modifies paragraph 5 on page 6 of the recommended order to add as the first sentence of the paragraph:

The standard for keeping medical records is statutory rather than dependant upon a community standard, Rizzo v. Department of Professional Regulation 519 So.2d 1019 (Fla.App.4 Dist. 1987).

Wherefore it is hereby ORDERED that the complaint against Respondent be DISMISSED. This order takes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S. and Florida Rule of Appellate Procedure 9.110(b), (c) within 30 days of the date of filing.

DONE AND ORDERED this 7th day of April 1989.

BOARD OF OSTEOPATHIC MEDICAL EXAMINER

RALPH H. GREENWASSER, D.O. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was furnished by hand to Stephanie Daniel, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, by Certified Mail to Lawrence Decker, D.O., 5516 Hanley Road, Tampa, Florida 33614, and by U.S. Mail to Peter S. Fleitman, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, Roland J. Lamb, 2553 First Avenue North, St. Petersburg, Florida 33733-2349, and K. N. Ayers, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, this 17 day of April 1989.

Docket for Case No: 87-004428

Orders for Case No: 87-004428