STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5109

)

MAUEL A. ESCOBAR, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 28, 1989, in Miami, Florida before the Division of Administrative Hearings, by its duly designated Hearing Officer, J. Stephen Menton.

APPEARANCES

For Petitioner: Joseph Harrison, Esquire

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Harold Braxton, Esquire

Suite 406, One Datron Center 9100 South Dadeland Boulevard Miami, Florida 33156

STATEMENT OF THE ISSUES

The issue in this case is whether the medical license issued to the Respondent, Manuel Escobar, should be revoked or otherwise penalized based upon the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

On October 5, 1987, Petitioner filed a four count Administrative Complaint alleging that Respondent violated:

1. Section 458.331(1)(n), Florida Statutes (1985) (subsequently renumbered as Section 458.331(1)(m) by Chapter 86-245, Laws of Florida) in that Respondent allegedly failed to keep adequate medical records justifying the course of treatment of a patient including, but not limited to, a record of the patient history, examination results and test results;

2. Section 458.331(1)(e), Florida Statutes (1985) (subsequently renumbered as Section 458.331(1)(1)) by making deceptive or untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine;

   
   

3. Section 458.331(1)(w), Florida Statutes (1985) by delegating professional responsibilities to a person whom the Respondent knew or had reason to know was not qualified by training, experience, or licensure to perform such responsibilities; and

   
   

4. Section 458.331(1)(t), Florida Statutes (1985) by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances and by committing gross or repeated malpractice. All of the allegations relate to Respondent's treatment of one patient, L.T., whose initials will be used throughout this Recommended Order to comply with the requirements of patient confidentiality.

At the hearing, Petitioner presented the testimony of Dr. Felix Freshwater, a Board certified plastic surgeon, and the patient, L.T. Petitioner offered seven exhibits which were accepted into evidence. Respondent presented the testimony of Sarah Paredes and Dr. Ernest Digeronimo, Jr. Respondent did not offer any exhibits into evidence.

The transcript of the proceedings was filed on April 10, 1989. By agreement of the parties, proposed recommended orders were originally scheduled to be filed within fifteen days after the filing of the transcript. At the request of the Respondent, the time for filing proposed findings of fact and conclusions of law was extended. Petitioner's proposed recommended order was filed on April 18, 1989. Respondent's proposed recommended order was filed on May 19, 1989. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact:

1. Respondent is and has been at all times material hereto, a licensed physician having been issued license number ME002062A, by the State of Florida.

   
   

2. Sometime in the fall of 1984, the patient, L.T., went to a clinic where the Respondent had an office to discuss having a lipectomy. The clinic is owned by Julio Ceaser. While there is hearsay testimony that Julio Ceaser is not a licensed physician, there is no competent substantial evidence indicating whether or not Julio Ceaser is a licensed medical professional.

   
   

3. The Respondent had an office at the clinic and frequently performed facelifts there. However, lipectomies were not performed at this clinic.

   
   

4. During the patient's first visit to the clinic, Julio Ceaser explained to her that a lipectomy would have to be done outside the clinic by another doctor and discussed the possibility of the patient having a full face lift at

   the clinic. During this first visit to the clinic, the patient decided to have the facial surgery. The patient did not meet with the Respondent during this visit.

   
   

5. Prior to having facial surgery, the patient paid $3,000.00 to Julio Ceaser. The Respondent was not involved in the financial negotiations with the patient and there is no evidence establishing how much money the Respondent was paid for his services.

   
   

6. While the patient claims that she understood the $3,000.00 she paid to Julio Ceaser would cover both the facial surgery and a lipectomy, there is no evidence that the Respondent ever agreed to perform a lipectomy for this patient nor that he was aware of the financial arrangements that had been made between the patient and Julio Ceaser. Moreover, it is not clear that the patient's belief regarding the services she was to receive for the $3,000.00 was justified or that she was in any way misled in this regard.

   
   

7. Prior to having facial surgery, pre-operative photos were taken of the patient. However, these photos cannot be located and are not included in the patient's medical records.

   
   

8. On the day of the surgery, the patient signed an informed consent form. However, while the patient had some discuss ions with Julio Ceaser prior to the surgery, the exact nature of those discussions was not established. It is not clear whether Julio Ceaser ever discussed with the patient the potential complications and risks of the surgery. In any event, the Respondent did not explain to the patient the surgical procedures that he was going to employ nor did he discuss with her the potential complications and risks of the surgery. Respondent's failure to speak directly with the patient regarding the potential complications and risks of the surgery falls below the standard of care expected of plastic surgeons in this community.

   
   

9. On November 2, 1984, the Respondent performed a face lift operation on the patient, L.T. Julio Ceaser assisted with the surgery and gave the patient an intravenous injection and an IV.

   
   

10. In performing the facial surgery, the Respondent used straight-line pre-auricular incisions which were approximately three quarters of an inch in front of the patient's ears. While the location of these incisions would be acceptable for a male patient because they can be hidden along the facial hair of the patient, such incisions on a female patient fall below the standard of care to be expected of a plastic surgeon in this community.

    
    

11. As a result of the Respondent's placement of the incisions, the patient's pre-auricular scars are more visible than they would have been if the incisions had been properly placed.

    
    

12. Respondent's expert witness testified that there are some surgeons in this community who utilize a straight pre-auricular line of incision for a full facelift. However, Petitioner's expert, whose opinion is credited, testified that such an incision has been obsolete since at least the mid-1970's and does not comport with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

13. After the first surgery was completed on November 2, 1984, the patient was left with very noticeable scars below her ears and on her neck. The

    evidence did not clearly establish the cause of these scars which were an unacceptable complication of the surgery. While all facelifts result in some scarring, the location, size and visibility of the scars below the ear were a bad result and needed to be corrected.

    
    

14. Respondent performed a second operation on the patient on May 10, 1985 in an effort to excise these scars. In this second procedure, Respondent did not properly address the problem of excess scarring and caused substitute scarring instead. As a result of the second operation, the patient has folds of skin underneath her ear which are very noticeable and unsightly.

    
    

15. By virtue of Respondent's actions, the patient has suffered permanent scarring. To what extent this condition can be hidden or corrected by further surgery or other efforts has not been established of record. Prior to the second surgery the patient attended some therapy sessions that were intended to reduce the scarring. However, she was not satisfied with the results and refused to attend any more sessions. There is no evidence establishing the impact of the failure to attend any further sessions.

    
    

16. The patient has suffered permanent nerve damage in her face which is most likely the result of the accidental cutting of a nerve during one of the facial surgeries performed by the Respondent. The cutting of a facial nerve reflects an incision that was much too deep for this type of surgery and falls below the standard of care expected of a plastic surgeon in this community.

    
    

17. After the first surgery, the Respondent did not see the patient during the 10 day period immediately following the surgery. However, Julio Ceaser did visit the patient and change her bandages in the days following the surgery. As set forth above, Julio Ceaser's medical training or lack thereof was not established by competent substantial evidence.

    
    

18. The patient has scars behind her ears which could have been the result of the sutures not being timely removed. However, the sutures were removed approximately one and one half weeks after the surgery. The removal of the sutures within this time frame was not below the standard of care. Therefore, the evidence fails to demonstrate that the scars behind the ears were the result of substandard care by Respondent.

    
    

19. There was very poor recording of the patient's vital signs during the surgical procedure. The patient's blood pressure and heart rate were noted in

    15 minute intervals. While such intervals may be acceptable under normal circumstances, there is evidence that the patient's blood pressure dropped very significantly during the surgery. In view of this occurrence, more frequent notations of the patient's vital signs should have been included in the medical records.

    
    

20. Pre-operative photographs of the patient were taken prior to the first surgery. Pre-operative photos are an essential part of the documentation that is expected to be included in the medical records of a patient seeking plastic surgery. However, the pre-operative photographs of patient L.T. are not included in her medical records, and no competent proof was offered to explain why these photographs were not included.

    
    

21. Although the patient signed a form referred to as an "informed consent", that form cannot be located and is not contained in the patient's medical records.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to these proceedings pursuant to Subsection 120.57(1), Florida Statutes (1987).

    
    

23. Section 458.331 Florida Statutes, (1985) empowers the Board of Medicine (Board) to revoke, suspend or otherwise discipline the license to practice medicine of any physician in the State of Florida found guilty of any of the acts enumerated in Section 458.331(1)(a-ee) Fla. Stat. (1987).

    
    

24. In a disciplinary action such as this proceeding, the burden is upon the Board to establish the facts upon which its allegations of misconduct are based. The Petitioner must prove its allegations by clear and convincing evidence. Ferris vs Turlington, 510 So.2d 292 (Fla. 1987).

    
    

25. Disciplinary action with respect to a professional license is limited to offenses or facts alleged in the administrative compliant. Sternberg vs Department of Professional Regulation Board, of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985).

    
    

26. The amended complaint charges that Respondent is guilty of four statutory violations. First, Respondent is charged with violating Section 458.331(1)(n) Florida Statutes. (1985)(now Section 458.331(1)(m)) for failing to keep adequate medical records justifying the course of treatment of the patient. According to the statute, the records must include, at a minimum, information concerning the patient's history, examination and test results. See, Rizzo vs Department of Professional Regulation, Board of Medical Examiners, 519 So.2d 1019 (Fla. 4th DCA, 1987)

    
    

27. The medical records concerning the patient L.T. are inadequate because they do not include pre-operative photographs, evidence of informed consent or adequate documentation of monitoring of the patient's vital signs during the surgical procedure. While the evidence does establish that pre-operative photographs were taken, the photos are not included in the medical records. Similarly, while the evidence established that the patient signed an "informed consent" form, the form is not included in the records and its content has not been established. Moreover, there is no competent substantial evidence establishing that the Respondent personally reviewed the procedures and risks of the surgery with the patient. Accordingly, the evidence reflects that Respondent failed to keep those records necessary to comply with Subsection 458.331(1)(n), Florida Statutes. (1985).

    
    

28. Count Two of the Administrative Complaints alleges that Respondent violated Section 458.331(1)(k), Florida Statutes (1985)(subsequently renumbered as Section 458.331 (1)(1)) by making deceptive or untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine. There is no evidence that the Respondent intentionally tried to deceive the patient or made fraudulent representations or employed any trick or scheme in the practice of medicine. Therefore, Count Two has not been established by clear and convincing evidence and should be dismissed.

    
    

29. Count Three of the Administrative Complaint alleges that Respondent violated Subsection 458.331(1)(w) Florida Statutes (1985) by delegating professional responsibilities to a person whom he knew or had reason to know was not qualified by training, experience or licensure to perform them. The

    evidence established that most of the post operative care of patient L.T. was performed by Julio Ceaser and the Respondent did not examine the patient for at least the first 10 days following the initial surgery on November 2, 1984.

    However, there is no competent substantial evidence establishing that Julio Ceaser was not a licensed medical professional. Therefore, while the Respondent's failure to examine the patient following the surgery may constitute a deviation from the standard of care expected of a physician, the Petitioner has not sustained it's burden of proof regarding Count Three (the delegation of professional responsibilities to an unlicensed person) and Count Three should be dismissed.

    
    

30. Count Four alleges that Respondent violated Section 458.331(1)(t), Florida Statutes (1985) by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Administrative Complaint also alleges that the Respondent was guilty of committing gross or repeated negligence. The Petitioner has proven by clear and convincing evidence that the care given to patient L.T. by Respondent failed to meet that level of skill, care and treatment which is recognized by reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent failed to properly inform the patient as to the procedures and possible complications associated with the facelift surgery. In addition, the more credible evidence established that the Respondent's use of straight-line preauricular incisions falls below the standard of care expected of a reasonably prudent plastic surgeon in this community. Moreover, Respondent's own expert witness admitted that Respondent's procedures in treating patient L.T. fell below "his own standards." While Respondent's expert claimed there are some physicians who continue to use the procedures utilized by the Respondent in this case, the more credible testimony established that such procedures fall below the standard of care expected of a reasonably prudent plastic surgeon in this community. 1/

    
    

    The testimony also established that Respondent's efforts to treat the complications experienced by the patient as a result of the first surgery (i.e., the scars located below the ear lobes) fell below the standard of care expected of a reasonably prudent physician in this community. While the origin of the complication has not been clearly established, the Respondent's efforts to correct the problems were inadequate and have left the patient with unsightly scars.

    
    

    Finally, the Respondent fell below the standard of care expected of a reasonably prudent physician in this community by failing to see the patient in the first 10 days after surgery.

    
    

31. Petitioner has clearly shown that the level of care and treatment provided to patient L.T. by Respondent fell below that which would be recognized as being acceptable under similar conditions and circumstances by a prudent and similar physician and that the Respondent is guilty of gross malpractice. However, the petitioner has failed to show that Respondent is guilty of repeated malpractice.

    
    

32. There is no evidence that Respondent has ever been previously disciplined by the Board prior to this proceeding. There is also no evidence that Respondent was under restraint or legal constraint at the time the patient

    L.T. was treated.

33. In its proposed order, Petitioner suggests that Respondent's medical license be revoked "in view of the grave disregard for practicing medicine with an acceptable level of care and the permanent harm resulting therefrom and the lack of any evidence that Respondent is capable of practicing medicine or surgery with skill and safety."

    
    

34. Rule 21M-20.001, Florida Administrative Code, sets forth suggested disciplinary guidelines enacted by the Board. Paragraph 1 of the rule states in part that the purpose of the rule "is to notify ... licensees of the range of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given in this rule."

    
    

35. For a single violation of failing to keep written medical records, Subsection 2(m) suggests a penalty ranging "from a reprimand to denial or two

    (2) years suspension followed by probation, and an administrative fine from

    $250.00 to $5,000.00." For a single violation of failing to meet community standards of skill, care and treatment of a patient, Subsection (2)(t) suggest a penalty ranging from "two (2) years probation to revocation or denial, and an administrative fine from $250.00 to $5,000.00."

    
    

36. Paragraph (3) enumerates the aggravating and mitigating circumstances that may be considered in applying the guidelines:

    
    

    1. Exposure of a patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

    2. Legal status at the time of the offense: No restraints, or legal constraints;

    3. Number of counts or separate offenses established;

    4. The number of times the same offense or offenses have previously been committed by the licensee or applicant;

The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

1. Pecuniary benefits or self-gain issuring to the applicant or licensee;

2. Any other relevant mitigating factors.

There is no evidence that Respondent has ever previously been disciplined during his career as a physician nor is there any evidence to indicate that he was under restraints or legal constraints at the time of treatment of patient

L.T. There is also no evidence as to the pecuniary benefit received by Respondent for his treatment of patient L.T. On the other hand, due to Respondent's failure to adhere to minimal community medical standards, the evidence does establish that the patient has permanent facial scarring.

RECOMMENDATION

Based on the forgoing 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 One and Four of the Administrative Complaint, dismisses Counts Two and Three, imposes an administrative fine in the amount of $2,500, and suspends Respondent's license for a period of one year followed by a three (3) year term of probation.

DONE AND ORDERED this 3rd day of August, 1989 in Tallahassee, Leon County, Florida.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1989.

ENDNOTES

1/ Respondent cites Rogers vs State Board of Medical Examiners, 371 So.2d 1037 (Fla. 1st DCA, 1979) and Department of Professional Regulation, Board of Medicine vs Schoen, 11 FALR 815 for the proposition that if a minority of the medical profession uses a procedure that may be out of the mainstream of medicine, there is no negligence or unprofessional conduct absent fraud or deception. However, in each of those cases, the patients were fully informed and voluntarily chose to undergo a medical treatment outside of the mainstream of medicine. No such informed decision was made by the patient in the instant case.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2) Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

PETITIONER'S PROPOSED FINDINGS OF FACT

Paragraph in

Proposed Recommended Order of

finding Acceptance or Reason

of fact # for Rejection

#1 Accepted in Finding of Fact 1

#2 Accepted in part in findings of facts 10-16. However, the portions of this proposal which are not set forth in Findings of Fact 10-16 are rejected

as unsupported by competent substantial evidence

#3 Rejected as overboard and

unsupported by competent substantial evidence.

#4 Adopted in substantial part in

Findings of Fact 8 and 21.

#5 Rejected as unsupported by

competent substantial evidence. See Findings of Fact 2.

#6 Adopted in part in Findings of Fact 19-21. However, the portions of this proposal which are not set forth in Findings of Fact 19-21 are rejected as unsupported by competent substantial evidence.

#7 Accepted in Findings of Fact 12.

RESPONDENT'S PROPOSED FINDINGS OF FACT

#1 Accepted in Findings of Fact 1.

#2 Accepted in Findings of Fact

2 except the patient's initial visit was apparently

sometime prior to November 1984.

#3 Accepted in Findings of Fact

4 except that this

discussion apparently took place prior to November 1984.

#4 Accepted in Findings of Fact 4.

#5 Accepted in Findings of Fact 7 except that the pre-operative photos were apparently taken after patient's first visit.

#6 Accepted in Findings of Fact

6 except the date on which the payment was made is not clear.

#7 Rejected as unsupported by com- petent substantial evidence.

#8 Accepted in part in Findings of Fact 8.

#9 Rejected as not having been established by competent substantial evidence.

#10 Accepted in Findings of Fact 9.

#11 Rejected as unsupported by competent substantial evidence. See Findings of Fact 10-12.

#12 Accepted Findings of Fact 19.

#13 Rejected as subordinate to the facts actually found in this Recommended Order.

#14 Rejected as subordinate to the Findings of Fact in this Recom- mended Order.

#15 The first sentence of this pro- posal is accepted in Findings of Fact 9. The second sentence is accepted in Findings of Fact 2.

#16 Accepted in Findings of Fact 18.

#18 Accepted in Findings of Fact 18.

#19 The first sentence is accepted

in Findings of Fact 13. The second sentence is rejected as being overboard and vague. The scarring experienced by the patient in this case was un- common.

#20 Accepted in part in Findings of Fact 15.

#21 Rejected as subordinate to the Findings of Fact in this Recom- mended Order.

#22 Rejected as subordinate to the Findings of Fact in this Recom- mended Order.

#23 Accepted in Findings of Fact 14.

#24 Rejected as unsupported by competent substantial evidence.

#25 Rejected as subordinate to the Findings of Fact in this Recom- mended Order.

#26 Rejected as subordinate to the Findings of Fact in this Recom- mended Order.

#27 Accepted in part in Findings of Fact 6. However, there is

no competent substantial evidence to establish compatible fees in the community for this type surgery.

COPIES FURNISHED:

Joseph Harrison Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Harold Braxton, Esquire Suite 406, One Datron Center 9100 South Dadeland Boulevard Miami, FL 33156

Docket for Case No: 87-005109

Orders for Case No: 87-005109