STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 88-3352
)
MICHAEL D. DAM, 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 April 26, 1989, at Haines City, Florida.
APPEARANCES
For Petitioner: Peter S. Fleitman, Esquire
401 Northwest Second Avenue, Suite N621 Miami, Florida 33128
For Respondent: Harrison T. Slaughter, Jr., Esquire
56 East Pine Street, Suite A Orlando, Florida 32801
STATEMENT OF THE ISSUES
Whether the Respondent is guilty of malpractice and failure to keep adequate medical records in treating patients O.T. in December 1986 and G.R. twice during the period January through April, 1987.
PRELIMINARY STATEMENT
By Administrative Complaint filed February 4, 1988, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Michael E. Dam as a medical doctor. As grounds therefor, it is alleged that in the diagnosis and treatment of patients O.T. and G.R., Respondent failed to keep adequate medical records to justify the treatment and that he failed to practice medicine on that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
At the commencement of the hearing, Respondent stipulated that at all times relevant hereto, he was licensed as a medical doctor in Florida; that he treated patients O.T. and G.R. during the times alleged; that he did not consult a gastroenterologist in treating O.T.; that he did not perform an E.E.G. on patient G.R. but did order an electrolyte study; and during this treatment, G.R. was suffering from, among other things, hyponatremia. Thereafter, Petitioner
called two witnesses (one of which was by deposition), Respondent called two witnesses, including himself, and five exhibits were admitted into evidence.
Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.
FINDINGS OF FACT
At all times relevant hereto Petitioner was licensed in Florida as a medical doctor, having been issued license number ME008336 with original license issued in 1957.
Treatment of O.T.
O.T. a seventy three-year-old female, had been a patient of Respondent for a number of years and who had trouble managing her diabetes because she could not afford the diet regimen. Respondent had suggested twice to O.T. and her husband that she needed to be hospitalized for a complete workup due to a gradual weight loss but they were deterred by the economics of payment involved.
On December 18, 1987, O.T. and her husband came to Respondent's office. She complained of abdominal pains and her husband asked if Respondent could get her in the local hospital without paying the $400-$500 up-front fee demanded by the hospital. Respondent did a nonfasting blood sugar and found it close to
300. In consideration of her diabetes, advanced arteriosclerosis and gradual deterioration, Respondent told them to go to the emergency room at the hospital and ask for him. O.T. walked out of Respondent's office and presumably walked into the emergency room at Heart of Florida Hospital, Haines City, Florida and asked for Respondent.
O.T. was admitted to the hospital at 12:20 p.m. While in the emergency room, Respondent ordered a fasting blood sugar, urinalysis, and electrolytes. Although the urinalysis showed the white blood count (WBC) to be high, which is indicative of infection, Respondent was not overly concerned because O.T. had not bathed for several days and the normal body secretions could render the WBC suspect. The electrolytes were close to normal range but the fasting blood sugar was again very high.
Respondent ordered a complete chemical profile, (SMAC-23), a CBC, a fasting blood sugar daily, an upper G.I. series, barium enema and chest x-ray, put O.T. on clear liquids, IV with insulin, bed rest with vital signs four times a day, and medication for heart and blood pressure.
Respondent testified that the normal practice at this hospital was for the lab report on SMAC tests to be available the same afternoon if sent to the lab before noon. Accordingly, he did not request expedited reports on the SMAC- 23, however, the CBC was done at the hospital lab.
Respondent visited O.T. at the hospital around 5:00 p.m. December 18. Respondent testified that, at that time, O.T. looked alright and he told O.T.'s husband that he could go home and get some rest. Respondent further testified that the results of the CBC were not in the chart at that time and he was unaware of the 7.1 hemoglobin count and WBC of 60,000. In the physical exam (Exhibit 1) "Impression" included uncontrolled diabetes and anemia. In "History," (Exhibit 1) Respondent wrote "patient was also found to have a hemoglobin of 7 and a gastrointestinal workup was scheduled."
Physician's Order Sheets (Exhibit 1) shows 5:30 p.m. order for a stool sample to be taken that evening and the next morning to test for occult blood in the stool. Also shown is an 8:45 p.m. order to change the IV given to patient and to "type and match for three units PC to be infused tonight." This latter order-was issued when Respondent received the 8:45 p.m. call from nurse Turner advising of the hemoglobin count. Physician's Order Sheet contains a final entry pronounced "pronounced dead at 9:30 p.m."
The lab report on the CBC shows the test was completed at 2:42 p.m. December 18 (Exhibit 1). Under normal procedure, this lab report would have been picked up by the shift coming on duty after 2:42 p.m. and the lab would notify the doctor of readings well beyond the normal limits.
Nurses notes (Exhibit 1) for the 4:00-5:00 p.m. entry on December 18 for O.T. states "Dr. Dam aware of CBC results done 1:57 p.m. today -- no new orders given.
Nurses notes (Exhibit 1) at times 6:00 - 6:00 p.m. shows O.T.'s husband at bedside.
The 8:00 - 8:45 entry in nurses notes states, "patient with shortness of breath, cold and clammy -- unable to get B/P and pulse. Dr. Dam notified."
Respondent's testimony otherwise unrebutted, was that he was called by nurse Turner at home around 8:45 p.m. to tell him the hemoglobin count was 7.1 and he was unaware of the CBC lab report until after O.T. died that evening.
Respondent further testified that when he was called by nurse Turner at 8:45, he asked for O.T.'s vital signs and held the phone line open until Turner took these vital signs and reported the absence of blood pressure and pulse. Turner was then told to code the patient and that Respondent would proceed immediately to the hospital.
Nurse's notes at 9:05 show Respondent arrived -- "Patient is continually becoming unresponsive -- no palpable pulse B/P -- code blue called." 9:19 patient pronounced dead by Mr. Dan."
The failure of a physician to order a transfusion on a patient with the low hemoglobin count experienced by O.T., or to order antibiotics and studies to determine the cause of the extremely high white blood count reported on the urinalysis for O.T. would constitute gross negligence and a failure to treat a patient with that level of care and skill which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Petitioner's expert witnesses fault Respondent for not ordering a blood transfusion on O.T. when the diagnosis of anemia was made and especially when the results of the CBC were completed. Giving O.T. fluid intravenously would tend to dilute the blood and aggravate the anemia. These witnesses obviously give greater credence to the nurses notes than to Respondent's contention that he did not know of the hemoglobin reading of 7 until called at home the evening O.T. died.
These witnesses also fault Respondent for not having a urine culture taken to determine the degree of urinary tract infection and to start patient on antibiotics; and for failure to do a rectal exam as part of the physical exam,
particularly when the patient was anemic and the possibility of internal bleeding was real.
Treatment of G.R.
G.R. was admitted to Heart of Florida Hospital on January 28, 1987 and discharged February 2, 1987; and again was an in-patient from March 30, 1987 until April 3, 1987. On both admissions, she was under the care of Respondent.
G.R. is an 85-year-old female who was admitted to the hospital in January complaining of "nervous spells" and with a blood pressure of 220/136 (Exhibit 2). This high, (136) diastolic pressure is very serious and normally an electroencephalogram (EEG) is indicated to determine if the patient has a convulsive disorder. The CT scan ordered by Respondent would not disclose convulsive disorders.
Petitioner's expert witnesses' opinions that the treatment received by
G.R. on this first admission by Respondent fell below the minimum standards of acceptable care was based largely on the failure of Respondent to order an EEG. However, these witnesses acknowledged that, if this patient had to be transferred some 15 miles by ambulance to another hospital having EEG equipment and a neurologist to read the EEG, that risk was equal to or greater than the risk of not doing an EEG.
At the time of G.R.'s first admission, Heart of Florida Hospital did not have the equipment or staff to take and read an EEG.
G.R. was admitted to the hospital on March 30, 1987, complaining of extreme nervousness and lower abdominal pain. She had become a compulsive drinker of water and had developed polyuria. A physical examination by Respondent (Exhibit 2) diagnosed: 1). Severe anxiety state. Rule out diabetes insipidus; and 2). Senility. Rule out alzheimers. However, the history of this patient dated March 30, 1987, contained the diagnosis that the patient had developed polyuria which was referred to in subsequent testimony at the hearing as water intoxication or hyponatremia. It was the treatment of G.R.'s hyponatremia that Petitioner contends is below the prescribed standard of care.
Petitioner's expert could not determine from patient's records whether the hyponatremia was chronic or acute. Respondent testified that he determined it to be chronic.
Upon admission of G.R. three sets of electrolyte tests showed patient's sodium to be markedly depressed at 114 and the chlorine was low at 80. Respondent treated G.R. with a restriction in fluids and a high salt diet. Petitioner's expert considered the low sodium of 114 to be a serious condition which should have been treated more aggressively than was done by Respondent. specifically, these witnesses contend that the failure of Respondent to start an IV on G.R. with a saline solution to rapidly bring the sodium level up fell below acceptable medical standards.
On the other hand, Respondent's expert witnesses, contend the treatment given G.R. was appropriate and that an elderly patient with heart problems should not be given concentrated doses of salt as that could aggravate the heart condition.
Petitioner's experts deemed the failure to continue to monitor the electrolytes until the sodium level reached acceptable levels constituted
practice below the acceptable standard. According to these witnesses, it was below minimum acceptable standards to discharge G.R. before the sodium level reached normal limits.
Respondent, on the other hand, observed improvement in G.R. before additional electrolytes were measured and the family of G.R. as anxious to get her out of the hospital. Since fluid intake and the medication taken by G.R. could be monitored at home as well as in the hospital, the discharge of G.R. before the sodium reached a normal level did not constitute the practice of medicine below minimum acceptable standards.
Patient Records
With respect to the allegations that the medical records maintained by Respondent on patient's O.T. and G.R. were not adequate to justify the course of treatment for these patients, Petitioner's experts testified these records were not adequate and Respondent's experts testified they were adequate. None presented the factual bases of his opinion.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Respondent is here charged with violating Section 458.331(1)(m) and (t), Florida Statutes, which provides grounds for disciplinary action against a physician's license to include:
(m) Failing to keep medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results and test results.
(t) Gross or repeated malpractice or the 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.
In a license disciplinary case, the standard of proof which the department must meet is clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Applying this standard of proof to the evidence relating to the charge of failing to keep medical records sufficient to justify the course or treatment of the patients, the Department has failed to sustain this burden. Although the records respecting the second hospitalization of G.R. did not clearly state the principal diagnosis to be hyponatremia, this diagnosis could be determined by reading the entire medical record and that G.R. was being treated principally for this diagnosis.
With respect to the treatment received by G.R. on the first hospitalization admission, since Heart of Florida Hospital did not have EEG equipment or a neurologist on staff to interpret the graph generated by EEG equipment, failure to order the EEG did not constitute practice falling below acceptable standards. The additional pressures and anxieties that would have
been visited on G.R. by an ambulance ride to the hospital with EEG equipment, under the circumstances of her already high pressure, would not have been justified.
With respect to the second hospital admission of G.R., the evidence is not clear and convincing that the treatment for G.R.'s hyponatremia fell below acceptable standards.
Whether the Respondent's treatment of O.T. fell below acceptable standards is dependent on whether Respondent was aware, or should have been aware, of the CBC report on O.T. with the hemoglobin count of 7.1 before being called by nurse Turner around 8:45 p.m. on December 18, 1986. Respondent testified that he first became aware of this report when he was called by Turner at 8:45 p.m. Respondent also testified that at 5:00 p.m. he told O.T.'s husband that he should go home and get some rest as O.T. seemed to be getting along alright. The nurses notes for the interval from 4:00 - 5:00 p.m. state Respondent was aware of the CBC results. The nurses notes for the interval of 6:00 - 7:00 p.m. state O.T.'s husband as at her bedside.
While this latter fact does not contradict Respondent's testimony that he told O.T.'s husband at 5:00 p.m. that he could go home and get some rest, it clearly indicates that the husband did not take that advice if it was given.
Further, Respondent's testimony that he did not order expedited lab reports in the initial blood work taken in the emergency room for O.T., because, if the blood was sent to the lab before noon it would be returned that afternoon, is irrelevant because O.T. was admitted to the hospital after noon. It would appear that Respondent expected and received the CBC lab report which was completed at 2:42 p.m. at, or before, his 5:00 p.m. visit to O.T. Accordingly, Respondent's testimony that he first learned of the extremely low hemoglobin reading of O.T. at 8:45 p.m., at which time he ordered a transfusion, is not as credible as the nurses notes which specifically state Respondent was made aware of the CBC report at or before 5:00 p.m.
Failure to order a transfusion as soon as possible for a patient with a hemoglobin account of 7.1 constitutes a failure to practice medicine without level of care, skill and treatment which is recognized as being acceptable under similar conditions and circumstances.
From the foregoing, it is concluded that, with respect to the treatment of O.T., Respondent failed 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 that he is not guilty of all other charges.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding Michael
D. Dam guilty of violation of Section 458.331(1)(t), Florida Statutes; that his license be suspended for a period of three months; that he be required to take a remedial course in family medicine; and that he be placed on probation for a period of two years under such conditions the Board deems appropriate.
DONE AND ENTERED this 15th day of June, 1989, in Tallahassee, Leon County, Florida.
K.N. AYERS 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 15th day of June, 1989.
COPIES FURNISHED:
Peter S. Fleitman, Esquire
401 Northwest Second Avenue Suite N
Miami, FL 33128
Harrison T. Slaughter, Jr., Esquire
56 East Pine Street, Suite Orlando, FL - 32801
Dorothy Faircloth, Executive Director Board of Medicine
Department of Professional Regulation 1940 North Monroe Street, Ste. 60
Tallahassee, FL 32399-0729
Bruce D. Lamb General Counsel
Department of Professional Regulation 1940 North Monroe- Street, Ste. 60
Tallahassee, FL 32399-0729
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 88-3352
)
MICHAEL D. DAM, M.D., )
)
Respondent. )
)
AMENDED RECOMMENDED ORDER
By ORDER dated August 17, 1989, the Board of Medicine returned the initial Recommended Order submitted by the undersigned "because significant portions of the Recommended Order within the part of the Order labeled `Findings of Fact' contained recitations of testimony rather than findings of fact."
That charge is essentially correct; however, the ultimate finding, as contained in the Conclusions of Law portion of the Recommended Order, was that the evidence was insufficient to support any charge except a violation of Section 458.331(1), Florida Statutes, with respect to the treatment of patient O.T.
The Petitioner has the burden of proving the charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). A recitation of the evidence presented was submitted to point out the dilemma faced by Hearing Officers in resolving conflicting medical opinions from reputable physicians. This is particularly true where the surrounding circumstances provide little help in determining which opinion is more credible.
In compliance with the Board's Order of August 17, 1989, findings 16, 17,
26 and 29 are amended as follows:
The failure of a physician to order a transfusion on a patient with the low hemoglobin count experienced by O.T. or to order antibiotics or studies to determine the cause of the extremely high white blood count reported on the urinalysis for O.T. would constitute gross negligence and a failure to treat a patient with that level of care and skill which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Despite Respondent's testimony to the contrary, the evidence is clear and convincing that Respondent was aware of the results of the CBC and urinalysis not later than when he visited the hospital around 5:00 p.m. on December 18, 1987 and thereafter failed to take appropriate action.
Petitioner's expert witnesses fault Respondent for not ordering a blood transfusion on O.T. when the diagnosis of anemia was made and especially when the results of the CBC were completed. Giving O.T. fluid intravenously would tend to dilute the blood and aggravate the anemia. Respondent's testimony that he did not know of the hemoglobin reading of 7 until called at home the
evening O.T. died is accepted as fact. Accordingly, failure to order a blood transfusion for O.T. was not below the prescribed standard of medical practice.
These witnesses also fault Respondent for not having a urine culture taken to determine the degree of urinary tract infection and to start the patient on antibiotics; particularly when the patient was anemic and the possibility of internal bleeding was real. These opinions, under the circumstances here involved, are not clear and convincing that in his treatment of O.T. Respondent failed to adhere to the minimal acceptable medical standards of practice.
26. On the other hand, Respondent's expert witnesses contend the treatment given G.R. was appropriate and that an elderly patient with heart problems should not be given concentrated doses of salt as that could aggravate the heart condition. This testimony is found to be credible and precludes a finding of malpractice for failure to transfuse a saline solution.
29. With respect to the allegations that the medical records maintained by Respondent on O.T. and G.R. were not adequate to justify the course of treatment of these patients, Petitioner's experts testified these records were not adequate, and Respondent's experts testified they were adequate. Since none presented the factual basis for his opinion and all of these witnesses are credible, the evidence is in equipoise. Accordingly, Petitioner has failed to sustain its burden to prove these medical records are inadequate to justify the treatment rendered these patients by Respondent.
Submitted this 8th day of September, 1989, in Tallahassee, Florida.
K.N. AYERS 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 8th day of September, 1989.
COPIES FURNISHED:
Peter S. Fleitman, Esquire
401 Northwest Second Avenue Suite N
Miami, FL 33128
Harrison T. Slaughter, Jr., Esquire
56 East Pine Street Orlando, FL 32801
Dorothy Faircloth Executive Director Board of Medicine
Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0792
Stephanie A. Daniel, Esquire Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0792
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 88-3352
)
MICHAEL D. DAM, M.D., )
)
Respondent. )
)
SECOND AMENDED RECOMMENDED ORDER
By Order dated October 17, 1989, the Board of Medicine remanded the Amended Recommended Order to the Hearing Officer to resolve the conflicts contained in Findings 16 and 17 of the Amended Recommended Order. In compliance therewith, Finding 17 of the Amended Recommended Order is hereby withdrawn and substituted therefor is the following:
17. Although Respondent testified that he first became aware of the hemoglobin reading of 7.1 when he was called at home around 8 p.m. that evening and that the results of the CBC were not in the patient's chart at 5 p.m., the nurses notes state that Respondent was aware of the CBC results by 5 p.m. Respondent's testimony that he was unaware of the low hemoglobin reading (which was in the CBC) is supported by his testimony that he told O.T.'s husband at 5
p.m. that he could go home. The husband's failure to follow this advice discredits this part of Respondent's testimony. The nurses notes show O.T.'s husband at her bedside 6 - 7 p.m. If, in fact, Respondent failed to look at the CBC in O.T.'s chart when he checked on her at 5 p.m., this failure to do so would constitute gross negligence and a failure to exercise that level of care
and skill which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Respectfully submitted this 25th day of October, 1989, in Tallahassee, Florida.
K.N. AYERS 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 25th day of October, 1989.
COPIES FURNISHED:
Peter S. Fleitman, Esquire
401 Northwest Second Avenue Suite N
Miami, FL 33128
Harrison T. Slaughter, Jr., Esquire
56 East Pine Street Orlando, FL 32801
Dorothy Faircloth Executive Director Board of Medicine
Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0792
Stephanie A. Daniel, Esquire Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0792
=================================================================
AGENCY FINAL ORDERS
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
DPR CASE NUMBER: 0083936
-vs- DOAH CASE NUMBER: 88-3352
LICENSE NUMBER: ME 008336
MICHAEL E. DAM, M.D.,
Respondent.
/
THIS CAUSE came before the Board of Medicine pursuant to Section 120.5(1)(b)9, Florida Statutes, on August 4, 1989, in Orlando, 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, Chief Medical Attorney. Respondent was present and represented by Robert Leventhal, 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 determined that it was unable to rule on the findings of fact and conclusions of law because significant portions of the Recommended Order within the part of the Order labeled Findings of Fact contained recitations of testimony rather than findings of fact.
WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
This cause is REMANDED to the Hearing Officer for entry of an Order containing findings of fact rather than recitations of testimony. A copy of the transcript of the meeting of the Board on August 4, 1989, during which the Recommended Order was considered shall be provided for reference of the parties and the Hearing Officer in this cause.
This Order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 17th day of August, 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 Michael E. Dam, M.D., Post Office Box 97, Haines City, Florida 33844-009; by U.S. Mail to Harrison T. Slaughter, Jr., Attorney at Law, 56 E. Pine Street, Suite A, Orlando, Florida 328014 by U.S. Mail to K. N. Ayers, 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, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792 at or before 5:00 P.M., this 21st day of August, 1989.
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
DPR CASE NUMBER: 0083936
vs DOAH CASE NUMBER: 88-3352
LICENSE NUMBER: ME 0008336
MICHAEL E. DAM, M.D.,
Respondent.
/
FINAL ORDER
This cause came before the Board of Medicine (Board) pursuant to Section 120.5(1)(b)10, Florida Statutes, on December 2, 1989, in Miami, Florida, for the purpose of considering the Hearing Officer's Recommended Order, the Hearing Officer's Amended Recommended Order, Petitioner's Exceptions to the Amended Recommended Order, Respondent's Exceptions to the Amended Recommended Order, the Hearing Officer's Second Amended Recommended Order and Respondent's Exceptions to the Second Amended Recommended Order (copies of which are attached hereto as Exhibits A, B, C, D, E, and F, respectively) 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 Harrison
Slaughter, Jr., Attorney at Law.
Upon review of the Recommended Order, the amendments to the Recommended Order, the exceptions and responses, 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 paragraphs 1-15, 18-25, 27, and 28 of the Recommended Order are approved and adopted and incorporated herein.
The Findings of Fact in the Amended Recommended Order in paragraphs 16, 26, and 29 are approved and adopted and incorporated herein.
The Finding of Fact in the Second Amended Recommended Order with regard to paragraph 17 is approved and adopted and incorporated herein with the exception that the last sentence of the Finding of Fact in paragraph 17 as set forth in the Second Amended Recommended Order is rejected.
The is competent substantial evidence to support the Findings of Fact by the Board.
CONCLUSIONS OF LAW
The Board accepts the Conclusions of Law set forth in paragraphs 1-6 and paragraph 11 of the Recommended Order, as well as the first sentence in paragraph 9 of the Conclusions of Law set forth in the Recommended Order.
In light of the changes in the Findings of Fact set forth in the Second Amended Recommended Order, the Board rejects she Conclusions of Law set forth in paragraphs 7, 8, and 10, as well as the last two sentences of the Conclusions of Law in paragraph 9. The last two sentences of the Conclusions of Law in paragraph 9 are unnecessary in light of the rulings on the Exceptions.
There is competent substantial evidence to support the conclusions of law of the Board.
RULINGS ON EXCEPTIONS
RESPONDENT'S EXCEPTIONS TO SECOND AMENDED RECOMMENDED ORDER
Respondent's exception number 1 is REJECTED on two bases. To the extent the exception challenges the finding of fact of paragraph 17 in the Amended Recommended Order, the Board would point out that that finding of fact is no longer at issue; rather it has been supplanted by the finding of fact in the Second Amended Recommended Order. Secondly, as to the other basis for this exception, there is competent substantial evidence in the record to support the findings of the Hearing Officer. There is no requirement that a findings of fact be bases solely on sworn live testimony.
REJECTED for the reasons stated by the Department on the record. Specifically, there is competent substantial evidence to support the Hearing Officer's finding of fact. The weight of evidence and credibility are matters to be determined by the Hearing Officer. There is no requirement that the Hearing Officer consider only sworn testimony or only testimony of live witnesses.
REJECTED for the reasons stated by the Department on the record. Specifically, there is competent substantial evidence to support the Hearing Officers finding of fact. The weight of evidence and credibility are matters to be determined by the Hearing Officer. There is no requirement that the Hearing Officer consider only sworn testimony or only testimony of live witnesses.
REJECTED for the reasons stated by the Department on the record. Specifically, there is competent substantial evidence to support the Hearing Officer's finding of fact. The weight of evidence and credibility are matters to be determined by the Hearing Officer. There is no requirement that the Hearing Officer consider only sworn testimony or only testimony of live witnesses.
REJECTED for the reasons stated by the Department on the record. Specifically, there is competent substantial evidence to support the Hearing Officer's finding of fact. The weight of evidence and credibility are matters to be determined by the Hearing officer. There is no requirement that the Hearing Officer consider only sworn testimony or only testimony of live witnesses.
REJECTED for the reasons stated by the Department on the record. Specifically, there is competent substantial evidence to support the Hearing Officer's finding of fact. The weight of evidence and credibility are matters to be determined by the Hearing officer. There is no requirement that the Hearing Officer consider only sworn testimony or only testimony of live witnesses. (See Transcript pages 304 - 305)
(a) The department stipulated on the record at the final hearing in this cause that the failure to transfuse in the presence of a low hemoglobin count in this case did not constitute gross negligence or failure to practice below the standard of care. The Board and the Respondent accepted this stipulation on the record.
With respect to the contentions in the exception relating to the white blood count in the urine, the exception is REJECTED on the basis that there is competent substantial evidence in the record to support the finding of fact of the Hearing Officer.
The exception is GRANTED to the extent the Recommended Order refers to "extremely high white blood count." (Paragraph 16 of the Amended Recommended Order) That reference should state "extremely high white blood cells."
With reference specifically to the matter set forth in Exception 7 b., the Board REJECTS this portion of the exception on the basis that it asserts matters that are not in she record.
REJECTED based on the reasons set forth by the Department orally.
There is competent substantial evidence in she record to support the findings of the Hearing officer.
No ruling is necessary.
No ruling is necessary.
No ruling is necessary.
11. No ruling is necessary. This exception is cumulative (see Rule 21M- 18.004) and there is competent substantial evidence in the record to support the findings of the Hearing Officer in this regard.
PETITIONER'S EXCEPTIONS TO THE AMENDED RECOMMENDED ORDER
Petitioner's exceptions to the Amended Recommended Order were GRANTED by Order filed October 17, 1989.
RESPONDENT'S EXCEPTIONS TO AMENDED RECOMMENDED ORDER
To the extent this exception relates to paragraph 16 of the original Recommended Order, the Board GRANTED this exception by remanding this cause to the Hearing Officer by Order filed October 17, 1989. The exceptions contained within paragraphs (m) and (n) on page 4 were withdrawn by Respondent at the hearing. The exception set forth in paragraph (o) on page 5 refers to a matter which was not in the Findings of Fact of paragraph 16, the paragraph with which this paragraph purports to take exception.
To the extent exception 2 relates to paragraph 17 of the original Recommended Order, it is no longer pertienent because that paragraph has been superseded by a new paragraph 17 set forth in the Second Amended Recommended Order.
PENALTY
The recommended penalty of the Hearing Officer is REJECTED based on the rulings on the exceptions and the alterations in the Findings of Fact and Conclusions of Law which have been made by the Hearing Officer and the Board subsequent to entry of the Recommended Order within which the penalty was recommended by the Hearing Officer. Of particular import is the change in the findings and conclusions with respect to the importance of the transfusion.
Specifically, the Board has rejected the Hearing Officer's conclusion of law set forth in paragraph 10 of the initial Recommended Order that the failure to order a transfusion in this case as soon as possible in light of the fact that the patient had a hemoglobin count of 7.1 constitutes a failure to practice medicine within that level of care, skill, and treatment
which is recognized as being acceptable under similar conditions and circumstances. WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
Respondent's license to practice medicine is REPRIMANDED.
Respondent shall pay an administrative fine in the amount of $2,500 to the Executive Director within 30 days of the date this Final Order is filed.
Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of 2 years, subject to the following terms and conditions:
Respondent shall comply with all state and federal statutes, rules and regulations pertaining to the practice of medicine, including Chapters 455, 458, and 893 Florida Statutes, and Rules 21M, Florida Administrative Code.
Respondent shall appear before the Probation Committee at the first meeting after said probation commences and at the last meeting of the Probation Committee preceding termination of probation.
In the event Respondent leaves the State of Florida for a period of thirty (30) days or more, or otherwise does not engage in the active practice of medicine in Florida, then certain provisions of Respondent's probation (and only those provisions of said probation) shall be tolled as enumerated below and shall remain in a tolled status until Respondent returns to active practice in the State of Florida. Respondent must keep current residence and business addresses on file with the Board. Respondent shall notify the Board within ten
(10) days of any changes of said addresses. Furthermore, Respondent shall notify the Board within ten (10) days in the event that Respondent leaves the active practice of medicine in Florida.
In the event that Respondent leaves the active practice of medicine in this state for a period of thirty days or more, the following provisions of his probation shall be tolled:
The time period of probation shall be tolled.
The provisions regarding supervision whether direct or indirect by another physician, included in paragraphs e and f below.
The provisions regarding preparation of investigative reports detailing compliance with this Stipulation shall be tolled.
Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probationer's Committee. Respondent shall have the monitoring physician with him at his first probation appearance before the Probationer's Committee. Prior to approval of the monitoring physician by the Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Complaint and Final Order filed in this case. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee meeting shall constitute a violation of the Board's Final Order. Prior to the approval of the monitoring physician by the Committee, Respondent shall submit to the Committee a current curriculum vitae and a description of the current practice from the proposed monitoring physician. Said materials shall be received by the Board office no later than fourteen days before Respondent's first scheduled Probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of the monitoring physician shall include:
Submit semiannual reports, in affidavit form, which shall include:
Brief statement of why physician is on probation.
Description of probationer's practice.
Brief statement of probationer's compliance with terms of probation.
Brief description of probationer's relationship' with monitoring physician.
d. Detail any problems which may have arisen with probationer.
Respondent shall be responsible for ensuring that the monitoring physician submits the required reports.
Be available for consultation with Respondent whenever necessary, at a frequency of at least once per week.
Review 25% of Respondent's patient records selected on a random basis at least once every month.
Report to the Board any violations by the probationer of Chapters 455 and 458, Florida Statutes, and he rules promulgated pursuant thereto.
The Board shall delegate to the Chairman of the Probationer's Committee the authority to temporarily approve a monitoring physician. However, such approval shall remain in effect only until the next meeting of the Probationer's Committee.
Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:
Brief statement of why physician is on probation.
Practice location
Describe current practice (type and composition)
Brief statement of compliance with probation terms.
Describe relationship with monitoring/supervising physician.
Advise Board of any problems.
Respondent shall attend 100 hours of Category I Continuing Medical Education courses during the two years of probation as follows:
Twenty hours in infectious disease, to include gram negative sepsis.
Twenty hours in critical care management.
Twenty hours in treatment of diabetes.
Twenty hours in treatment of renal failure.
Twenty hours in treatment of hypertension
Respondent shall submit a written plan to the Probationer's Committee for approval prior to completion of said courses. These hours shall be in addition to those hours required for renewal of licensure.
During this period of probation, semiannual investigative reports will be compiled by the Department of Professional Regulation concerning Respondent's compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine.
Respondent shall pay all costs necessary to comply with the terms of the Order issued based on this proceeding. Such costs include, but are not limited to, the cost of preparation of investigative reports detailing compliance with the terms of this proceeding, the cost of analysis of any blood or urine specimens submitted pursuant to the Order entered as a result of this proceeding, and administrative costs directly associated with Respondent's probation. See Section 458.331(2), Florida Statutes.
This order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 21st day of December, 1989.
BOARD OF MEDICINE
MARGARET SKINNER, M.D. VICE CHAIRMAN
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.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Michael E. Dam, M.D., P.O. Box 97, Haines City, Florida, 33844, and Harrison T. Slaughter, Jr., Attorney at Law, 56 E. Pine Street, Suite A, Orlando, Florida 32801; by U.S. Mail to K.N. Ayers, 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, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 28th day of December 1989.
| Issue Date | Proceedings |
|---|---|
| Mar. 29, 1993 | (Final) Order filed. |
| Jun. 15, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 21, 1989 | Agency Final Order | |
| Jun. 15, 1989 | Recommended Order | Failure to practice medicine with appropirate standard of care. |
