STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5355

) HAROLD J. TICKTIN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 10 1988, at St. Petersburg, Florida.

APPEARANCES

For Petitioner: Peter S. Fleitman, Esquire

Lee Sims, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Glenn M. Woodworth, Esquire

Wittner Centre West

5999 Central Avenue, Suite 103 St. Petersburg, Florida 33710

By Administrative Complaint filed November 12, 1987, the Department of Professional Regulation (DPR), Petitioner, seeks to revoke, suspend or otherwise discipline the license of Harold J. Ticktin, as a medical doctor. As grounds therefor, it is alleged Respondent committed gross malpractice by underestimating by some four months the stage of pregnancy of an abortion patient, and by failure to adequately provide for emergencies; and that he violated Section 390.001(2), Florida Statutes, by performing an elective abortion in the last trimester without first finding that termination of the pregnancy is necessary to save or preserve the life of the pregnant woman.

At the hearing, Petitioner called seven witnesses, including Respondent. Respondent called three witnesses, and 15 exhibits were offered into evidence. Exhibits 1, 1a and 1b relate to the deposition of Dr. Zelnick. Ruling on the admissibility of Exhibit 13, the deposition of an expert witness who also was called as a live witness, was reserved at the hearing. That exhibit is now admitted. Rule 1.330(a)(3), FRCP. All other exhibits were admitted at the hearing.

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

FINDINGS OF FACT

1. At all times relevant hereto, Respondent was licensed as a medical doctor by the Florida Board of Medicine. He holds License No. ME 0019700.

   
   

2. Respondent received his medical degree overseas and did his residence in obstetrics and gynecology at Bayfront Medical Center in St. Petersburg, Florida. He is neither board certified nor board eligible.

   
   

3. For the past eight plus years Respondent's practice has been limited to terminating pregnancies at All Women's Health Clinic at Tampa, Florida. He has performed in excess of 15,000 abortions.

   
   

4. One reason given by Respondent for so limiting his practice is the cost of medical malpractice insurance. Since he has no private practice, Respondent gave up admitting privileges at hospitals in the area. Without malpractice insurance, he would not be given staff privileges.

   
   

5. On August 23, 1986, A. L., a pregnant 16 year old, entered All Women's Health Center, Tampa, to have her pregnancy terminated. A. L. had noted on her history statement that her last menstrual period started some eight weeks ago.

   
   

6. Respondent first saw A. L. when he entered the procedures room at All Women's Health Center and commenced his examination prior to instituting abortion procedures.

   
   

7. With respect to the examination the testimony varied widely. Diane Roberts, LPN, who was performing the duties of physician's assistant during the procedure, initially told the investigators that the examination lasted only a couple of seconds and consisted of a vaginal examination with two fingers of the right hand in the vagina while the abdomen was palpated with the left hand. At the hearing, Roberts testified that she wasn't paying much attention to the patient during the examination, didn't recall telling investigator the examination only took a couple of seconds, and recalled Respondent telling A. L. several times to relax.

   
   

8. Respondent testified he performed a normal vaginal examination. The examination was longer than usual because A. L. wasn't relaxed and tensed her stomach muscles which made the uterus more difficult to palpate; and that following his examination he determined the gestational age of the fetus to be

   12 weeks. Respondent testified he also checked the patient's heart and lungs before commencing the pelvic examination.

   
   

9. A. L. testified that Respondent palpated her abdomen with two hands, but did not check heart and lungs or do a pelvic examination. A. L. had an earlier pregnancy terminated the previous year when the doctor did a pelvic examination with two fingers in the vagina while the abdomen was palpated with his other hand.

   
   

10. The patient was ultimately determined to be 28 to 30 weeks pregnant. Largely because of the large error in gestational age, it is concluded that Respondent performed only a perfunctory examination on A. L. Had he conducted

    the proper examination, it is inconceivable that he, an experienced gynecologist, could underestimate the gestational age of the fetus by some four months.

    
    

11. The magnitude of this error is illustrated by Respondent's testimony that a 12 week fetus is approximately 3 inches long and weighs 30 grams, while a

    28 week fetus is approximately 14 inches long and weighs 1100 grams.

    
    

12. Respondent started the procedure thinking he was aborting a 12 week fetus with the patient on the table and feet in the stirrups. After the instruments were inserted and the procedure started, Respondent concluded the fetus was 16 weeks, obtained a larger curette, then determined the fetus was more likely 20 weeks, again changed curette, and after removing fluid and part of an arm Respondent concluded that the gestational age of the fetus was some 28 weeks and required hospitalization to complete the procedure.

    
    

13. Mistakes in determining gestational age can be made by a prudent physician if: (1) the patient is obese; (2) if the uterus is very soft and the extremities difficult to locate; (3) if the baby has a low fluid volume; (4) if the patient is very tense; or, (5) if the head of the fetus is felt and not the uterus. Here A. L. was more thin than obese which should have greatly facilitated palpation of the abdomen to determine the size of the uterus. Accepting the testimony that she was tense during the examination, and the earlier pregnancy would cause the uterus to be soft, no experienced gynecologist should conduct an examination of a patient such as A. L. and err on the magnitude here involved. Further, if the examination was difficult, the procedure should not have commenced until Respondent was reasonably positive of the gestational age of the fetus. One indication Respondent received that the fetus was older than 12 weeks was the quantity of fluid drawn. Further, no experienced gynecologist should mistake the head of the fetus as the extremity of the uterus on a patient such as A. L.

    
    

14. Once Respondent determined the fetus was more than 16 weeks along, he called Dr. Barile, a gynecologist with admitting privileges at Humana Women's Hospital, Tampa, to request he remain available in case Respondent needed to send A. L. to a hospital.

    
    

15. When Respondent determined the gestational age of the fetus' was more than 26 weeks, he again called Barile who suggested it would be better to refer the patient to an obstetrician. Respondent then telephoned his backup obstetrician and found she was on vacation, and a doctor with whom Respondent was not acquainted was taking her calls. Since A. L. was stable and in no apparent distress, Respondent called Dr. Klein, a pediatrician with admitting privileges at Bayfront Memorial Hospital in St. Petersburg. Dr. Klein agreed to take care of the patient by having his associate, who had the duty that day, meet the patient at Bayfront.

    
    

16. A. L. had been brought to the clinic by her brother, and Respondent concluded A. L. could be safely transported to Bayfront by automobile and suggested her brother drive her. The brother demurred on the ground that his car overheated and might not make the 40-odd mile trip to Bayfront safely, but another brother had a more reliable car. The other brother was called and agreed to take his sister to Bayfront and stated that he would be at the clinic in about 10 minutes. Approximately 1 hour and 15 minutes later this brother arrived, and A. L. was started to the brother's car. At this time she appeared unsteady, and Respondent concluded she should go to Bayfront by ambulance.

17. When a Hillsborough ambulance service was called, they told Respondent of the policy whereby they could not transport a patient out of Hillsborough County and that he should contact a Pinellas County ambulance service to perform the desired transportation. Respondent then called a Pinellas County ambulance service who arrived about an hour later to take A. L. to Bayfront where she was met by Dr. Yeshnick, the associate of Dr. Klein, who admitted the patient. Between the time Respondent determined the abortion could not be performed at the clinic until A. L.'s arrival at Bayfront Hospital, some 6 hours had elapsed.

    
    

18. Of the approximately 15,000 abortions that Respondent has performed, less than 5 became emergencies that required removal from the clinic to a hospital. Respondent's backup procedures for emergencies were adequate.

    
    

19. On August 23, 1986, A. L. was in the third trimester of her pregnancy, and the abortion was not necessary to save the life or preserve the health of A. L.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. Respondent is here charged with violations of Section 458.331(g) and (t), Florida Statutes, which provides in pertinent part that disciplinary action may be taken against a licensee on the following grounds:

    
    

    (g) Failure to perform any statutory or legal obligation placed upon a licensed

    physician;

    (t) Gross or repeated malpractice or the failure to practice medicine 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.

    * * *

    As used in this paragraph, "gross mal- practice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician acceptable under similar conditions

    and circumstances," shall not be con- strued to require more than one instance, event, or act.

    
    

22. The charge relating to subsection (g) above quoted arises by virtue of commencing the abortion in the third (last) trimester of pregnancy. Section 390.001(2), Florida Statutes, provides:

    
    

    No termination of pregnancy shall be performed on any human being in the last trimester of pregnancy unless:

    
    

    1. Two physicians certify in writing to the fact that, to a reasonable degree of medical probability, the

       termination of pregnancy is neces- sary to save the life or preserve the health of the pregnant woman; or

    2. The physician certifies in writing to the medical necessity for legiti- mate emergency medical procedures for termination of pregnancy in the last trimester and another physi- cian is not available for consulta- tion.

       
       

23. No certification was made that the abortion commenced on August 23, 1986 was necessary to save the life or preserve the health of A. L. Commencing the abortion in the last trimester of A. L.'s pregnancy resulted solely from Respondent's failure to accurately determine the gestational age of the fetus prior to the commencement of the abortion procedure. At the time the procedure was stopped in the clinic, the fetus was no longer viable.

    
    

24. Two phases of the medical procedures involved in the treatment of A.

    L. are charged as violations of Section 358.331(t) above quoted. The first, and most significant, is the charge that Respondent is guilty of malpractice in conducting an examination that failed to disclose the patient A. L. was carrying a 28 week old fetus instead of a 12 week old fetus, as Respondent thought when he commenced the abortion procedure. This constitutes gross malpractice, even for a doctor who is not a gynecologist. A gynecologist should more accurately determine the gestational age than would a doctor without such special training.

    
    

25. The second phase charged is failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances which involved the 6 hour delay between the time Respondent stopped the abortion procedure at the clinic and the time A. L. arrived at Bayfront Hospital.

    
    

26. At no time between the stopping of the abortion at the clinic and the departure of A. L. in the ambulance was A. L. in a perilous condition. At the time the procedure was stopped at the clinic and arrangements had been made to admit A. L. to Bayfront, A. L.'s condition was such that she could safely be transferred by automobile to Bayfront. By the time the brother who had assured Respondent that he would arrive in 10 minutes arrived more than an hour after that time, A. L.'s condition was such that Respondent deemed it more prudent to transport A. L. to Bayfront via ambulance. The delay occasioned by having to obtain an ambulance from Pinellas County, as well as the delay caused by A. L.'s brother, cannot be attributed to the fault of Respondent.

    
    

27. In a licensed disciplinary proceeding, the Petitioner has the burden to prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

28. The evidence is clear and convincing that in conducting an examination of A. L. which resulted in the conclusion that the gestational age of the fetus to be aborted was 12 weeks when in fact the gestational of the fetus was 28 weeks, Respondent was guilty of gross malpractice and failed to exercise that degree of care, skill and treatment recognized by a prudent similar physician as acceptable under similar conditions and circumstances. The evidence is not clear and convincing that Respondent failed to provide adequate back up to take care of the situation which arose when Respondent concluded that the abortion on

    A. L. could not be completed at the All Women's Health Center, Tampa, and that

    A. L. should be transported to a hospital. The evidence is also clear and convincing that Respondent commenced an elective abortion procedure during the last trimester of the patient's pregnancy in violation of Section 390.001(2), Florida Statutes.

    
    

29. Although Respondent has violated Section 458.331(g) as alleged, this violation stemmed directly from Respondent's gross negligence in determining the gestational age of the fetus before the abortion procedure commenced. This one act, viz, negligently determining the gestational age of the fetus, led to both violations. A person should be punished only once for the same act, even though two or more statutory provisions may have been violated. Accordingly, for the purposes of a recommended punishment, these two violations will be treated as one act. This is a legal and medically accepted procedure when performed before the last trimester of the pregnancy. Here we have one instance where the doctor erred. Prior to this incident, he has performed some 15,000 presumed to be successful abortion procedures. No evidence was presented from which the precise medical culpability of the malpractice here involved can be readily determined. Disciplinary guidelines in Rule 21M-20.001, Florida Administrative Code, show for violation of 458.331(g) and/or 458.331(t), the recommended punishment to range from two (2) years probation to revocation or denial and an administrative fine from $250.00 to $5000.00.

    
    

30. From the foregoing, it is concluded that Respondent is guilty of gross malpractice by underestimating the patient A. L.'s stage of pregnancy by approximately 4 months which resulted directly in an abortion being performed in the last trimester when such procedure was not necessary to save the life or preserve the health of the patient; and that Respondent is not guilty of failure to provide adequate medical back up to take care of the emergency that arose during the abortion procedure. It is

Recommended that Respondent's license to practice medicine be suspended for a period of six months and to be placed on probation thereafter for a period of two (2) years subject to such terms and conditions as the Board of Medicine deems appropriate.

ENTERED this 17th day of June, 1988, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5355

Treatment Accorded Petitioner's Proposed Findings of Fact

1 and 2. Included in H.O. #7.

1. Included in H.O. #6.

2. Included in H.O. #7.

3. Rejected insofar as inconsistent with H.O. #7.

4. Accepted.

5. Included in H.O. #7.

6. Accepted insofar as consistent with H.O. #7.

7. Included in H.O. #7.

8. Rejected as immaterial.

9. Rejected as immaterial. 12-13. Included in H.O. #7.

14-20. Rejected as mere testimony of witness and mostly hearsay.

21-28. Rejected as irrelevant or recitation of the testimony of the witness which was mostly hearsay.

29-54. Rejected as merely a recitation of the testimony

125-135. Same as 29-54.

136-138. Accepted.

139-148. Same as 29-54.

Treatment Accorded Respondent's Proposed Findings

1. Included in H.O. #1,2,3.

2. Included in H.O. #5,6. Last sentence rejected as unsupported by credible evidence.

3-4. Included in H.O. #12.

1. Included in H.O. #14.

2. Included in H.O. #15.

3. Included in H.O. #15. 8-10. Included in H.O. #16.

11. Included in H.O. #17.

12-14. Rejected as mere recitation of the testimony of witnesses. Opinions accepted are contained in

H.O. #13.

15. Accepted as a conclusion.

COPIES FURNISHED:

Peter S. Fleitman, Esquire Lee Sims, Esquire Department of Professional

Regulation Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Glenn M. Woodworth, Esquire Wittner Centre West

Suite 103

5999 Central Avenue

St. Petersburg, Florida 33710

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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

AGENCY FINAL ORDER

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

BEFORE THE BOARD OF MEDICINE DEPARTMENT OF PROFESSIONAL

REGULATION,

Petitioner,

vs. DOAH CASE NO. 87-5355

HAROLD J. TICKTIN, M.D.,

Respondent

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)9., Florida Statutes, on August 6, 1988, in Palm Beach, Florida, for the purpose of Considering the Hearing Officer's Recommended Order (a copy of which is attached hereto as Exhibit A) and the Petitioner's Motion to Increase Penalty, (a copy of which is attached hereto as Exhibit B) in the above-styled cause. No exceptions were filed. Petitioner, Department of Professional Regulation, was represented by Peter S. Fleitman, Attorney at Law. Respondent was present and represented by Glenn Woodworth, Attorney at Law. Upon review of the Recommended Order, the Motion to Increase Penalty, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

   
   

   CONCLUSIONS OF LAW

   
   

   1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statues.

      
      

   2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

      
      

   3. There is competent substantial evidence to support the conclusions of

law.

PENALTY

Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be REJECTED as too lenient under the circumstances. The penalty is increased because of the seriousness of the offenses of the grossly inadequate examination of the patient and the failure to diagnose the fetal age. WHEREFORE,

IT IS HERESY ORDERED AND ADJUDGED that

Respondent's license to practice medicine in the State of Florida is REVOKED.

This order takes effect upon filing with the Clerk of the Department of Professional Regulation

DONE AND ORDERED this 19th day of August, 1988.

BOARD OF MEDICINE

EMILIO D. ECHEVARRIA, M.D. CHAIRMAN

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

HAROLD J. TICKTIN. M. D., NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

CASE NO. 88-2358

DOAH CASE NO. 87-5355

DEPARTMENT OF PROFESSIONAL REGULATION,

APPELLEE.

/ Opinion filed October 11, 1989.

An Appeal from an order of the Department of Professional Regulation.

Scot E. Samis from the Law Office of Charles E. Ehrlich, St. Petersburg, for Appellant.

Lisa S. Nelson, Appellate Attorney for Department of Professional Regulation, Tallahassee, for Appellee.

PER CURIAM.

Appellant seeks review of an administrative order which revoked his license to practice medicine. The hearing officer recommended a six-month suspension followed by a two-year probation period after finding appellant guilty of gross malpractice in that he failed to provide the degree of care, skill and treatment that would be exercised by a prudent similar physician in such cases. We reverse and remand.

The Department of Professional Regulation filed execptions to the penalty and recommended revocation of appellant's license. The Florida Board of Medicine in its Final Order revoked appellant's license. Its recited reasons for rejecting the recommended penalty are as follows:

Upon a complete review of the record in this case, she Board determines that the penalty recommended by the hearing officer be rejected as too lenient under the circumstances. The penalty is increased because of the seriousness of the offenses of the grossly inadequate examination of the patient and the failure to diagnose the fetal age.

The final order fails to state legally sufficient reasons for the change in the penalty, nor does it give citations to the record to justify its action as is required by the recent supreme court case of Department of Professional Regulation v. Benal, 531 So.2d 967 (Fla. 1988).

We therefore reverse the order under review and remand the cause to the Florida Board of Medicine to enter a new final order which accepts the recommended penalty of the hearing officer and allows the appellant credit on his suspension for the time his license has been revoked pending this appeal.

REVERSED and REMANDED.

THOMPSON, ZEHMER and MINER, JJ., CONCUR.

Docket for Case No: 87-005355

Orders for Case No: 87-005355