STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0660
)
ALBERT A. SNEIJ, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on August 22 and 23, 1988, in Miami, Florida.
APPEARANCES
For Petitioner: William O'Neil, Esquire
151 Crandon Boulevard, No. 125 Key Biscayne, Florida 33149
For Respondent: Harold M. Braxton, Esquire
9100 South Dadeland Boulevard, Suite 406
Miami, Florida 33156
BACKGROUND
In a five count administrative complaint filed on February 1, 1988, petitioner, Department of Professional Regulation, Board of Medicine, charged that respondent, Albert A. Sneij, a licensed medical doctor, had violated five provisions within Section 458.331, Florida Statutes (1987). It is alleged generally that, while acting as a physician for a patient who was giving childbirth on November 1, 1987, respondent was guilty of gross malpractice or 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 as proscribed by Subsection 458.331(1)(t), Florida Statutes (1987)(Count I), undertook professional responsibilities which he knew he was not competent to accept or perform in violation of Subsection 458.331(1)(v) Florida Statutes (1987)(Count II), administered a legend drug other than in the course of his professional practice in violation of Subsection 458.331(1)(q), Florida Statutes (1987)(Count III), failed to obtain a full and informed written consent from the patient to a procedure that constituted experimentation on a human subject in contravention of Subsection 458.331(1)(u), Florida Statutes (1987)(Count IV), and failed to keep written medical records justifying the course of treatment of the patient as required by Subsection 458.331(1)(m), Florida Statutes (1987). At the same time the agency suspended on an emergency basis certain privileges under respondent's license pending the outcome of this proceeding.
Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1987). The matter was referred by petitioner to the Division of Administrative Hearings on February 10, 1988 with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated February 11, 1988, the final hearing was scneduled on February 18 and 19, 1988 in Miami, Florida. At the request of the parties, the matter was rescheduled to March 24 and 25, 1988 at the same location. At respondent's request, the matter was again rescheduled to June 16 and 17, 1988, and then again to August 22 and 23, 1988 in Miami, Florida.
At final hearing, petitioner presented the testimony of Marlene Alonso (the patient), Albert Alonso, Molly Mack, Sylvia Alonso and Clem Mack, all members of the patient's family, Dr. Nathan Bruce Hirsch, a Coral Gables gynecologist/obstetrician, Dr. Alan Gordon Walker McCleod, an obstetrician/gynecologist and a faculty member at the University of Miami Medical School, and Dr. Roger Mittleman, a physician and Dade County associate medical examiner. It also offered petitioner's exhibits 1 and 2. Both exhibits were received in evidence. Exhibit 1 is a video tape of the delivery in question. Respondent testified on his own behalf and offered respondent's exhibit 1. The exhibit was received in evidence.
The transcript of hearing (two volumes) was filed on October 6, 1988.
Proposed findings of fact and conclusions of law were originally due on October 21, 1988. At the request of respondent this time was extended to October 28, 1988. Proposed findings of fact and conclusions of law were filed by respondent on October 24, 1988. None were filed by petitioner. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.
The issue is whether respondent's license as a medical doctor should be disciplined for the reasons set forth in the administrative complaint.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
Introduction
At all times relevant hereto, respondent, Albert Sneij, was a licensed physician having been issued license number ME0034499 by petitioner, Department of professional Regulation, Board of Medicine (Department or Board). Most recently, respondent maintained a practice of family medicine at 460 Washington Avenue, Miami Beach, Florida.
Respondent, who is 42 years old, is a native of Syria where he received his medical degree from a Syrian university in 1971. His medical training consisted of a seven year curriculum taken immediately after high school. After graduation from medical school, Dr. Sneij worked a short time in Syria and Lebanon and then immigrated to the United States in June 1972. He worked first as an intern at a hospital in St. Louis, Missouri. After performing a residency in surgery at an Albany, New York hospital and working for a time in an emergency room, Dr. Sneij secured his Florida license in 1979. In 1980, he permanently relocated to the Miami area where he began a family practice. Besides having a Florida license, respondent also holds licenses to practice in New York and California. He has hospital privileges at South Shore Hospital in Miami Beach, but that institution has no obstetrical wing.
This case centers around the actions of respondent while delivering the baby of Marlene Alonso in November 1987 and whether such actions conformed to the level of skill, care and treatment expected of a physician in the Miami area. The delivery, which took place after a lengthy period of labor, occurred in a tub of hot water. This procedure is known as underwater birthing. After the baby died, Alonso filed a complaint with the Department. This led to the issuance of an administrative complaint on February 1, 1988. The complaint charged Dr. Sneij with gross malpractice or with failing to treat the mother and baby 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 (Count I), accepting and performing a responsibility for which he was not competent (Count II), inappropriately administering a legend drug (pitocin) not in the course of his professional practice (Count III), failing to obtain Alonso's full, informed written consent to the underwater birthing procedure even though this procedure was experimental (Count IV), and failing to keep written medical records justifying the course of treatment (Count V). The complaint prompted respondent to request a hearing.
Underwater Birthing
At issue in this proceeding is the so-called underwater birthing procedure used by respondent. It is sometimes referred to as the "Leboyer approach to delivery." Under this procedure, the expectant mother is placed in a tub of hot water at the onset of labor. The baby is eventually delivered underwater in the hot tub. The intended beneficial effect of this procedure is to cause less tension or trauma for the baby since, according to proponents, the baby lives in a "water" environment in the mother's womb, and a delivery into the hot water will be a continuation of the uterine existence. Since the baby still breathes from the umbilical cord, there is supposedly no danger in the baby being underwater for the first few moments of birth. The method is intended to be more relaxful to a mother since the water has a calming effect on the patient and obviates the need for analgesics.
There is no recognized, published medical literature on the subject of underwater birthing. However, respondent introduced into evidence three textbooks on the subject for the purpose of showing that such literature existed. None were written by medical doctors from the United States.
Underwater birthing originated in Russia in the late 1970's and has been performed in France and perhaps a few other European countries. In this country, several successful underwater births have been performed recently in the State of California. One Board expert characterized the procedure as experimental sinxe there is no scientific evidence to support the claim that the procedure can be safely used. A second Board expert said it was not experimental since it had "been around" for awhile and is now being used "in some (birthing) centers" and in Europe. However, it is not a generally accepted procedure by the medical community in South Florida since, with the exception of respondent, no other area physician uses this form of delivery.
Required Procedures During Childbirth
In at least 85% of all deliveries, the baby is delivered head first. However, if the legs and buttocks come out first, the birthing is considered a breech delivery. Whether a delivery is normal or breech is a matter of extreme importance since a breech delivery poses more risks to the baby and mother and is more prone to complications. For this reason, the prudent physician always
determines the position of the baby prior to delivery. To do this, a physician typically conducts an abdominal and pelvic examination of the patient. If the physician still has any doubt as to the baby's position, an ultrasound may be used. This is a noninvasive sound wave sonar picture which can determine the baby's position with absolute accuracy. If the physician has no ultrasound in his office, the patient should be taken to a facility where such a machine is available. Once the physician determines that a baby is in a breech position, he should recognize immediately the possibility that the mother will have a problem with the descent of the baby and that certain steps should be taken to minimize any risk to the baby and mother. At the same time, the patient should be informed that the baby is in a breech position and certain risks are present and she should have explained the options that are available to her. Most importantly, the patient should be transferred to a hospital setting where surgery can be performed, if necessary, to remove the baby.
If a mother is experiencing her first delivery, the baby is at greater risk because the pelvis has not been tested and the pelvic tissues are more resistant to the passage of the baby through the pelvis. Therefore, if a breech delivery is recognized and the patient is in her first pregnancy, the prudent physician should recognize the greater degree of risk and place the mother in a facility where surgical capabilities are available.
In some deliveries, the drug pitocin is used to increase the mother's contractions and bring on delivery. Good medical practice dictates that it should never be administered intramuscularly before delivery since the doctor loses control over the effects of the drug once the drug is injected. Indeed, such a practice is considered "a dangerous approach" to the use of the drug since it can cause the uterus to remain contracted in tetanic form thereby cutting off circulation to the placenta. Instead, the drug should be given intravenously to allow the doctor to control the amount given to the patient and to monitor her reactions. Generally, the drug is given in very small increments and gradually increased to achieve the desired uterus contractions. At the same time, the baby's fetal heart rate should be monitored continually by the doctor to verify that the heart rate is not being affected by the strength of the contractions. This can be done by stethoscope or fetal heart machine, either of which is appropriate. It was agreed that the attending physician is the best person to determine when to use the drug.
In a normal, uncomplicated breech delivery, the head is usually delivered within five minutes after the actual delivery begins and "almost immediately" after the trunk delivers. If the head does not deliver promptly, steps should be taken by the physician to aid in the delivery of the head by using one's hands or forceps. If a greater than normal time elapses between the delivery of the head and trunk in a breech delivery, the baby runs the risk of being deprived of oxygen, thereby causing brain damage or even death. This is because the umbilical cord may become compressed against the pelvic inlet as the head is coming through the pelvis. Indeed, one expert opined that such compression would occur "in all cases". To determine if compression is occurring, a doctor should monitor the pulsation of the cord and the fetal heart rate. A pulsating cord means the baby is receiving oxygenated blood.
In a breech delivery, the patient's head must be kept flexed in a certain direction to facilitate delivery. Further, a physician has more difficulty in performing the manipulations required if complications arise. These difficulties are exacerbated if the delivery occurs in water.
If a baby is "limp" after breech delivery and has a low Apgar score, it is standard procedure for the physician to immediately institute resuscitative measures. This is done by first clearing the airway, administering oxygen and then supporting the baby by artificial ventilation. This latter step is accomplished generally by clearing the airway and giving oxygen under pressure.
The standard practice in the Miami area is to deliver large babies by Cesarean section if a breech position is noted. However, not all breech babies are delivered surgically.
The Actual Incident
Marlene Alonso, then twenty-three years of age, became aware of respondent in early 1987 after reading respondent's advertisement concerning the water birthing procedure. The advertisement appeared in a magazine sold at a local health food store. She was then two months into her first pregnancy. After making an appointment, Alonso met with Dr. Sneij, viewed several tapes of water birthing deliveries and had a "consultation". At the first meeting, respondent told Alonso that the procedure was developed in Eastern Europe and was "common" over there, that this method of delivery was "less stressful" for both mother and baby, and that it was less risky than other forms of childbirth. He did not require Alonso to sign a consent form.
Alonso chose respondent as her physician because she had no insurance and insufficient funds to have a hospital birth. Also, she was satisfied the procedure was safe even though she knew respondent was the only doctor in Florida using this procedure. Her satisfaction was based upon respondent's representations and reinforced by her husband's cursory research on the subject which included reading a newspaper article at a local library concerning such deliveries being performed by midwives in California. The Alonsos did not consult any other physicians about the procedure. Alonso visited respondent once a month for the first few months, then biweekly and finally once a week in the final stages of her pregnancy. During her visits, Alonso sometimes asked if the baby was positioned head first and Dr. Sneij always responded that everything was "fine." Indeed, after several visits, Dr. Sneij noted in his medical records that the baby was "head down."
Respondent has a small office on South Beach in Miami Beach consisting of several rooms. The largest room measured around 12' x 16' and had a hot tub used for underwater birthing. Doctor Sneij used this room for his deliveries. Although the room had shelves on which medicine was stored, no medical equipment, such as oxygen or operable monitoring equipment, was maintained on the premises. When the events herein occurred, two secretaries worked at the office.
Alonso's onset of labor began on the evening of Sunday, November 1, 1987. She arrived at respondent's office around 11:00 p.m. that evening with her husband. After respondent gave her an enema, she was placed in a hot tub where she remained for most of the night. As was customary with respondent's office birthings, he taped a part of the birthing with a video camera placed near the tub. A copy of the video tape has been received in evidence as petitioner's exhibit 1. Present during all or part of the delivery were Alonso's husband, her parents, sister-in-law, Dr. Sneij, his wife (who he said acted as his assistant) and two young children, a secretary and a friend who taped part of the delivery.
During the first twenty-four hours, Alonso received one injection of demoral for pain and was given occasional sips of honey water. She and the fetus were periodically checked by respondent with a stethoscope during this time. At around the twenty-hour point, Dr. Sneij advised Alonso the baby "might be" in a breech position. However, he confirmed this in a conversation with Alonso's mother-in-law, and his medical notes recorded earlier that day reflected that the "fetus was in breach (sic) presentation." Respondent then advised Alonso that she should be transported to a hospital for a "C-Section". Although respondent had no hospital privileges, and Alonso no insurance, he nonetheless attempted to get Alonso placed in a local hospital. When he met with no success, respondent returned and told everyone he was waiting for a doctor at Jackson Memorial Hospital to return a call. After examining Alonso's abdomen with a stethoscope, Dr. Sneij remarked that the baby had a "strong heartbeat," that by a "miracle" its head was "down" and not in a breech position, and that hospitalization would not be required. He then "guaranteed" Alonso would have no problems. This occurred around the twenty-four hour mark.
At one point, Alonso requested that respondent hook up his fetal heart rate monitor to her but respondent said he was out of paper. Alonso desired the paper printout as a souvenir for her baby.
To hasten the delivery, and in response to Alonso's pleas to do something, respondent injected pitocin intramuscularly into Alonso on three occasions, the first time around 10:00 p.m. on November 2. According to respondent's medical notes, the first dosage contained "3 units". At midnight, respondent gave a second injection containing "3.5 mg." of pitocin. Two hours later, Alonso received a third injection containing 3.5 units of the drug. Alonso's delivery began around ninety minutes later.
When the actual delivery began around 3:30 a.m. on November 3, or after thirty-three hours of labor, Alonso was half standing and leaning over in the tub of water. Dr. Sneij remarked that "the head is out." However, the legs and buttocks of the baby delivered first. From a kneeling position in the tub beneath Alonso, Dr. Sneij continued to manipulate the baby with his fingers in an effort to complete the delivery but the head did not pass out of the vaginal canal until some twenty-two minutes later. The baby, which weighed eight pounds twelve ounces and was considered "large", was held under water for a few moments and then placed on the mother's abdomen for a few seconds. All the time Dr. Sneij kept feeling the cord. After observing that the baby was purple and not moving, he took her back, wiped "stuff" out of the baby's mouth and began adminis-tering mouth-to-mouth resuscitation. At that point, Alonso called out for someone to telephone 911 for an emergency vehicle but respondent said "no." Even so, Alonso's father telephoned for an ambulance.
When the 911 team arrived, one of the technicians immediately cut the umbilical cord. After respondent inserted an endotracheal tube in the baby's throat, and while he continued mouth-to-mouth resuscitation, the baby and mother were transported to Mount Sinai Hospital. The baby remained on a life support system for seventeen days until the system was turned off. It was brain dead during this entire period of time. The actual cause of death, as determined by autopsy, was dystocia, which, according to the medical examiner, meant a difficult childbirth caused by the head not getting out of the vaginal canal in a prompt, normal fashion. In his medical records, Dr. Sneij characterized the complication as "respiratory dysfunction, in otherwise normal baby" and that this complication "could be caused by an adverse drug action, or reaction most probably due to pitocin." However, he did not rule out "other factors that were not known to (him)."
Adequacy of Medical Records
Respondent's medical records relating to the incident have been received in evidence as petitioner's exhibit 2. Since there was no expert testimony concerning their adequacy in terms of justifying Dr. Sneij's course of treatment of the patient, the contents of the exhibit need not be repeated herein.
E. Competency or Disaster?
Testifying on behalf of the Board were three physicians. They included Dr. Nathan B. Hirsch, a Coral Gables obstetrician and gynecologist since 1971 and one-time professor at the University of Miami Medical school, Dr. Allan G. W. McCleod, an obstetrician and gynecologist who has taught that subject at the same medical school since 1960, and Dr. Roger Mittleman, an associate medical examiner for Dade County and board certified in forensic pathology and anatomical and clinical pathology. Respondent, who is a licensel medical doctor, testified on his own behalf. As might be expected, petitioner's witnesses and respondent reached sharply conflicting conclusions regarding respondent's skill and competency while treating Alonso. However, no expert ventured an opinion as to respondent's competency outside the area of obstetrics or whether respondent was incompetent to initially accept Alonso as a patient to provide prenatal care and assist in the delivery. Appropriate findings regarding this testimony will be made below.
As a starting point, Dr. Hirsch viewed petitioner's exhibit 1 in its entirety. That exhibit is a video tape of part of Alonso's delivery. Characterizing the tape as an "outrageous, horror movie," Dr. Hirsch concluded that Dr. Sneij's conduct constituted a "dramatic deviation from the standard of care in (not only the Miami) community," but "any community in the world." Doctor Hirsch noted first that Alonso's labor lasted around thirty-three hours which was "excessive" by any standards. The expert pointed out that Dr. Sneij deviated from generally accepted practice by injecting pitocin intramuscularly into Alonso on three occasions in amounts of one hundred and one hundred and fifty milligrams. This was contrary to the accepted practice of administering the drug intravenously in small increments so that the doctor can control the amount being given to the Also, Dr. Hirsch did not observe respondent monitor the baby's heart rate after the injections.
Doctor Hirsch noted also that even though respondent recognized the baby in a breech position some six to eight hours after the onset of labor, and knew this was Alonso's first pregnancy, he continued the delivery process in an office setting. According to the expert, a prudent physician would have recognized the risks of this setting and transferred the patient to a high-risk obstetrical center with the capability of performing surgery if needed. By respondent failing to do so, Dr. Hirsch concluded Dr. Sneij's actions constituted a deviation from the standard of care.
Doctor Hirsch did not observe any visible evidence of "sterile technique" in respondent's office. Further, Dr. Hirsch opined that respondent should have had, at a minimum, electronic monitoring equipment and the necessary equipment to perform emergency surgery if the need arose.
At the time of delivery, as depicted on the tape, the expert observed the delivery of the legs and buttocks to the baby's umbilicus. He saw then the bottom portion of the baby hanging from the vagina with respondent's hands on
the buttocks and legs for some twenty-two minutes until the upper half delivered. According to Dr. Hirsch, this time frame was of dramatic medical significance since, in a breech delivery where the baby is delivered to the umbilicus, the baby must be out of the canal within one minute or suffocate. The witness concluded the baby was dead within five to eight minutes after the lower half delivered. Doctor Hirsch opined also that during the lengthy delivery, respondent did not appear to understand or use proper delivery
techniques that would have hastened the delivery. However, he did not elaborate on what specific techniques should have been used.
After the baby was delivered, Dr. Hirsch concluded that respondent erred by holding the baby underwater for about two minutes. According to the expert, respondent should have taken the baby to a nearby delivery table and attempted to resuscitate the baby.
Also testifying for the Board was Dr. Allan Gordon Walker McCleod, an obstetrician/gynecologist and a member of the faculty at the University of Miami Medical School since 1960. As did Dr. Hirsch, the expert viewed petitioner's exhibit 1, which is the tape of the delivery. Doctor McCleod concluded that respondent did not meet the community standards of care when he failed to accurately determine the presentation of the baby at the outset of labor. He pointed out further that, during the delivery itself, he saw no evidence of Dr. Sneij monitoring the baby's fetal heart rate or the pulsation of the cord. According to Dr. McCleod, both steps should have been taken here, particularly in light of the lengthy time (22 minutes) between the delivery of the trunk and the head.
The expert also criticized respondent's efforts to perform a breech delivery in a hot tub. This was because the patient was in a sitting position on the slide of the tub making it difficult for the doctor to perform the required manipulations. Further, the tub made it difficult for respondent to adequately monitor the baby during the delivery.
Doctor McCleod criticized next the administering of pitocin to Alonso prior to delivery as being contrary to the standard of care. He noted that such a practice is not used in "present-day obstetrics", is "dangerous" to the patient and baby, and that such risks should be "common knowledge" to all physicians. He observed finally that after administering the pitocin, respondent did not record the length of contractions or fetal heart rate to determine the patient's response to the drug.
The expert concluded that Dr. Sneij acted improperly by keeping the baby underwater "for a long period of time" once it delivered even though it was "very limp", "hypoxic" and had very little muscle tone. Even after it was removed from the water and placed on the mother's abdomen, Dr. McCleod noted that respondent still made no effort to resuscitate the baby. When respondent finally instituted resuscitative measures, Dr. McCleod observed no effort by respondent to clear the airway or to use mechanical ventilation.
In summary, Dr. McCleod concluded respondent was negligent by giving a lack of prenatal care, by failing to timely recognize an abnormal presentation, by failing to properly handle labor, by inappropriately administering a legend drug, and by failing to make proper efforts to resuscitate the infant. He recommended that respondent not be allowed to practice obstetrics until Dr. Sneij received further training in that area.
The final Board expert was Dr. Roger Mittleman, an associate medical examiner for Dade County who has performed over 3,300 autopsies in his career. Doctor Mittleman performed an autopsy on the Alonso baby and concluded that the cause of death was dystocia brought about by the head not getting out of the vaginal canal in a timely manner. According to Dr. Mittleman, the baby was born brain dead due to a lack of oxygen to the brain during the twenty-two minute delivery. Although the heart was still beating when the baby delivered, Dr. Mittleman said the baby was dead for all practical purposes.
Respondent testified on his own behalf and generally denied all allegations. He had no opinion as to the cause of the baby's death and denied his actions contributed in any way. Respondent acknowledged he knew from the outset of labor that the baby was in an abnormal presentation but said this gave him no concern since the patient was young and healthy, and breech deliveries were not always complicated. Also, he had no concern over the length of labor (33 hours) since he had performed several other water births where labor consumed around ninty hours. As to the administering of pitocin intramuscularly, Dr. Sneij contended he recognized the risks of the drug but that he minimized any risk by injecting it in small doses. In addition, he denied that there was an inordinate length of time between the delivery of the trunk and the delivery of the head. In that vein, he opined that because Alonso had been in labor for a long time and had dilated well, the possibility of cord compression was "zero or near zero." Also, he pointed out that he repeatedly felt between the baby and the vagina and could not feel "severe pressure." According to respondent, the cord was of "good size" and was continually pulsating throughout the entire delivery. Respondent assumed the baby was merely "tired of birth" after it fully delivered, and for this reason, left her in the water "for about a minute." When he realized resuscitative measures were needed, which he says were due to "birth trauma," Dr. Sneij claims he did all he could for the baby and, by turning the baby upside down, he cleared the baby's airwave by force of gravity. Finally, if he were presented with the same case again, respondent said he would not do anything differently.
Although respondent is not board certified in any specialty, he characterizes his experience as being "very wide." When he first came to the United States, his primary interest was in orthopedic surgery. He subsequently developed an interest in obstetrics, but stated he had no opportunity to engage in that type of practice until he delivered his own first child. In all, Dr. Sneij represented he has delivered some twenty-four babies during his career, including the last eight by underwater birthing. One of those eight was his own.
After considering all of the testimony herein, the testimony of experts Hirsch, McCleod and Mittleman is accepted as being more credible and persuasive than that of respondent. Accordingly, it is found that respondent failed to conform with the statutory standard of care by failing to timely recognize the baby's presentation, by failing to timely send Alonso to a hospital setting, by improperly managing the labor, by inappropriately administering pitocin to the patient, by having inadequate equipment at his office, and by failing to promptly take steps to resuscitate the baby after delivery.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).
Because the Board seeks revocation of respondent's license, it must prove the allegations in the complaint by clear and convincing evidence. Ferris
v. Turlington, 510 So.2d 292 (Fla. 1987).
Respondent is charged with violating Subsection 458.331(1), Florida Statutes (1987), in five respects. All charges relate to the Alonso delivery and will be discussed separately below.
Count I - In this count, it is alleged that Dr. Sneij is guilty of gross malpractice or failing to practice medicine with level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances within the meaning of Subsection 458.331(1)(t), Florida Statutes (1987). By clear and convincing evidence the Board has established that respondent deviated from the statutory standard of care by failing to determine the baby's position, by failing to have the patient removed to a hospital setting, by improperly managing the labor, by inappropriately administering pitocin prior to delivery, by having inadequate medical equipment in his office, and by failing to take prompt resuscitative measures once the baby was delivered.
Neither party has cited any authority or precedent on whether the proven conduct equates to gross malpractice, a term not defined by statute or rule. Under these circumstances, reference to the term's ordinary, common meaning is acceptable. Gardner v. Johnson, 451 So.2d 477 (Fla. 1977). The word "gross" is defined in Webster's New Twentieth Century Dictionary, Unabridged Second Edition (1979), as "very wrong; glaring; flagrant" while the term "malpractice" is defined as "injurious or unprofessional treatment or culpable neglect of a patient by a physician or surgeon." Since the established conduct was "very wrong and glaring" and involved "injurious treatment or culpable neglect of a patient by a physician," the charge of gross malpractice has been sustained.
Count II - According to paragraph 14 of the complaint, respondent "knew or had reason to know that he was not competent to accept and perform the professional responsibilities he undertook... in violation of Section 458.331(1)(v), Florida Statutes." While not altogether clear, this count is apparently grounded on the factual allegation in paragraph 12 of the complaint which alleges that "respondent had no special training or expertise in obstetrics or gynecology." The evidence reflects that respondent engaged in a family practice in Miami Beach for some seven years prior to the Alonso delivery but had no specialized training in obstetrics or gynecology. He had, however, successfully delivered approximately two dozen babies during that period of time. While there is no evidence to show respondent was incompetent to initially accept the patient, the evidence does show clearly and convincingly that he should have known that he could not competently perform a breech delivery in an office setting. Therefore, it is concluded that respondent violated Subsection 458.331(1)(v), Florida Statutes (1987).
Count III - This count alleges that respondent "inappropriately administered pitocin, a legend drug" and that "such administration of petocin (sic) was not in the best interest of respondent's patients (sic) and was, therefore, not in the course of respondent's professional practice, in violation of Section 458.331(1)(q), Florida Statutes." To violate the cited statute, a physician must administer a legend drug (pitocin) "inappropriately or in excessive or inappropriate quantities." The evidence shows clearly and convincingly that respondent administered pitocin inappropriately (by injecting
it intramuscularly) and in excessive or inappropriate quantities (100 and 150 milligrams). This being so, it is concluded that the charge in Count III has been sustained.
Count IV - This count is grounded on Subsection 458.331(1)(u), Florida Statutes (1987), which authorizes the Board to take disciplinary action if a licensee is guilty of:
Performing any procedure or prescribing any therapy which, by the
prevailing standards of medical practice in the community, would constitute experimentation on a human subject, without first obtaining full, informed, and written consent.
The evidence is conflicting as to whether the underwater birthing procedure is an "experimentation on a human subject." According to Board expert McCleod, who has taught the subject of obstetrics/gynecology at the University of Miami Medical School for almost thirty years, the procedure is not experimental since it has "been around" for awhile and is used by others. This testimony is accepted as being more credible and persuasive, and it is concluded that the procedure does not fall within the purview of subsection 458.331(1)(u).
Therefore, no written consent from Alonso was required.
Count V - The final count charges that respondent "failed to keep written medical records justifying the course of treatment, including, but not limited to, patient histories, examination results and test results, in violation of Section 458.331(1)(m), Florida Statutes." The pertinent medical records have been received in evidence as petitioner's exhibit. However, there is no evidence on the issue of whether the records are adequate in terms of the above statutory requirement. Although witness McCleod made a brief reference to respondent's failure to record the baby's fetal heart rate after pitocin was given to the patient, this testimony was given in the context of respondent's conformity with the community standard of care and not as to the adequacy of his medical records. Therefore, the final count must fail.
In his closing argument, Board counsel recommended that respondent's license should be revoked. On the other hand, in his proposed order, respondent concedes he violated subsection 458.331(1)(t) as to the statutory standard of care (but not gross malpractice) and suggests he be placed on probation while he receives further training in obstetrics. For a violation of subsections 458.331(1)(q), (t), and (v), Rule 21M-20.001(2)(q), (t), and (v), Florida Administrative Code (1987), authorizes the Board to impose a penalty ranging from probation to revocation and an administrative fine from $250 to $5,000. In choosing an appropriate penalty from within these ranges, section (3) of the same rule provides that certain aggravating and mitigating circumstances be taken into account. These include:
Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;
Legal status at the time of the offense: no restraints, or legal constraints;
The number of counts or separate offenses established;
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;
Pecuniary benefit or self-gain inuring to the application or licensee;
Any other relevant mitigating factors.
In this case, the patient (mother) was subjected to potential injury while the infant expired. Also, it is noted that respondent was under no legal constraints at the time of the offense, three counts were proven, there is no evidence of prior violations of the same offense or disciplinary action against Dr. Sneij, and Dr. Sneij did not receive any substantial, pecuniary benefit by virtue of his conduct. There are no other "relevant mitigating factors" of record.
Although Dr. Sneij has never acknowledged any misconduct on his part, this should play no role in determining a penalty. Bernal v. Department of Professional Regulation, 517 So.2d 113 (Fla. 3d DCA 1987). At the same time, it is recognized that the specialty of obstetrics is a "practice requiring the utmost care and sensitivity in the making of extremely grave decisions."
Ticktin v. Department of Professional Regulation, 13 FLW 2269, 2270 (Fla. 1st DCA, October 4, 1988). In view of respondent's inappropriate actions in the Alonso case and his failure to conform to the community standard of care in a number of respects, all of which equated to gross malpractice, his inappropriate administering of a drug and his performing a professional responsibility which he should have known he was not competent to perform, a suspension of his license for two years is appropriate. Thereafter, he should be placed on probation for three years. Also, respondent should be restricted against engaging in obstetrics until he receives such appropriate education and training in that field as the Board deems necessary.
Based on the foregoing finding of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts I, II, and
III and that all other charges be DISMISSED. It is further recommended that the penalty set forth in paragraph 49 of the conclusions of law be imposed.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of November, 1988.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1988.
APPENDIX
RESPONDENT:
1-3. Covered in finding of fact 14. 4-5. Covered in finding of fact 15.
Covered in finding of fact 4.
Covered in finding of fact 15.
Covered in finding of fact 17.
Covered in findings of fact 18 and 26.
10 Covered in finding of fact 36.
Partially covered in finding of fact 7. The remainder is rejected as being contrary to the more credible and persuasive evidence.
Partially covered in findings of fact 7 and 20. The last sentence is rejected since it is contrary to the more persuasive evidence that pitocin be given in small increments intravenously.
Rejected as being irrelevant since the statute does not require that an actual injury to the patient occur by virtue of a physician's inappropriate conduct.
Covered in finding of fact 9.
Covered in findings of fact 18 and 21.
Covered in finding of fact 9.
Covered in finding of fact 21.
Covered in finding of fact 10.
Rejected as contrary to the more persuasive evidence that this was an abnormal delivery.
Covered in finding of fact 21.
Covered in finding of fact 36.
Covered in findings of fact 21 and 36.
Covered in finding of fact 22 except that while the heart was still beating, the baby was brain dead at delivery.
Covered in finding of fact 38.
Covered in finding of fact 34.
Covered in finding of fact 24.
COPIES FURNISHED:
William O'Neil, Esquire
151 Crandon Boulevard, No. 125 Key Biscayne, Florida 33149
Harold M. Braxton, Esquire Suite 406
9100 South Dadeland Boulevard Miami, Florida 33156
Dorothy Faircloth, Executive Director Board of Medicine
130 North Monroe Street Tallahassee, Florida 32399-0750
Bruce D. Lamb, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
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AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
-vs- DPR CASE NUMBER 0091702
DOAH CASE NUMBER: 88-0660
ALBERT A. SNEIJ, M.D., LICENSE NUMBER: ME 0034499
Respondent.
/
FINAL ORDER
This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)9, Florida Statutes, on February 4, 1989, in Dania, Florida, for the purpose of considering the Hearing Officer's Recommended Order (a copy of which is attached hereto as Exhibit A) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Stephanie A. Daniel, Attorney at Law. Respondent was present and represented by Harold M. Braxton, Attorney at Law.
Upon review of the Recommended Order, 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
Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein. However, in adopting Paragraph 8 of the Conclusions of Law, the Board is not accepting the recitation of the statement by Dr. McLeod as accurately representing the legal standard for determining whether a procedure constitutes experimentation.
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. In support of its decision to increase the penalty recommended by the Hearing Officer, the Board states the following:
Based on a review of the entire record, the Board finds that Respondent made gross and irremediable errors of judgment in this case. His conduct in his practice of medicine was worse than egregious The record, which includes the video tape, establishes that the baby was in trouble as soon as it presented and Respondent did not even know it until the point he began mouth to mouth resuscitation. He did not immediately clear the baby's airway to start the respiratory system. When asked about it, Respondent characterized the baby's not breathing as just depression and declined to call 911. (R 118) The period extended over thirty-three hours and the video tape establishes that there was a total lack of sterility in the delivery environment.
The record shows that in spite of the circumstances of this delivery and this procedure, the Respondent had made no arrangement for hospital back-up. (See Paragraph 18 of the Findings of Fact in the Recommended Order) Respondent had no monitoring equipment; the fetal heart monitor was out of paper. (R 107)
Respondent testified that the umbilical cord was pulsating even after the baby was out of the mother and on the mother's abdomen. (R 255) However, the testimony of Dr. McLeod established that the baby took too long to deliver. He specifically stated that "the cord is compressed by the firm head presenting against the pelvic inlet as the head is coming through the pelvis and through the cavity of the pelvis, it's coming through". Dr. McLeod emphasized that if the baby does not deliver, and there is compression of the cord, then the baby is going to suffer from hypoxia (lack of oxygen to its vital centers). (R 272 of the Board's record)
In light of the evidence of the severe problems with the delivery, the Board particularly notes, as stated in Paragraph 36 of the Findings of Fact in the Recommended Order that Respondent insisted at the hearing that if he were presented with the same case again, he would not do anything differently. In fact, Respondent testified that he had no problems with the delivery, (R 310-
311) and that he would do the same thing (R 338, 339, 343). The Board notes that the most dangerous thing about this Doctor is that he did not know that he did not know. In further support of its increase in the Hearing Officer's penalty, the Board incorporates by reference and by attachment to this Order the
entirety of the portion of the transcript during which the Board discussed the issue of penalty. (Attached hereto as Exhibit B). WHEREFORE,
IT IS HEREBY 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 20th day of February, 1989.
BOARD OF MEDICINE
MARGARET C.S. SKINNER, M.D. VICE CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Albert A. Sneij, M.D., 9456 Abbott Avenue, Surfside, Florida and Harold M. Braxton, Attorney at Law, Suite 406, One Datran Center, 9100 South Dadeland Boulevard, Miami, Florida 33156-7815; by U.S. Mail to Donald R. Alexander, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Stephanie A. Daniel, Attorney at Law, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32399- 0750 at or before 5:00 P.M., this 23rd day of February 1989
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE: COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
| Issue Date | Proceedings |
|---|---|
| Nov. 04, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 20, 1989 | Agency Final Order | |
| Nov. 04, 1988 | Recommended Order | Physician found guilty of negligence while administering an underwater birth. |
