STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6874

)

ANACLETO CAPUA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on May 16, 1990, in St. Petersburg, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Andrea Bateman, Esquire

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

For Respondent: Kevin F. Dugan, Esquire

Wittner Centre West, Suite 103 5999 Central Avenue

St. Petersburg, FL 33710 STATEMENT OF THE ISSUE

The issue in this case is whether disciplinary action should be taken against the license to practice medicine of Anacleto Capua (Respondent) based upon violations of Section 458.331(1)(m) and (t), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this case.

PRELIMINARY STATEMENT

At the hearing, the Department called Beth Christie, medical quality assurance investigator, and also introduced exhibits numbered 2 through 6, 8 and

1. The Department's exhibits numbered 1 and 7 were rejected, but were proffered by the Department. The Respondent introduced one exhibit.

   
   

   The transcript of the final hearing was filed on May 31, 1990, and the Respondent requested twenty days therafter within which to file his proposed recommended order. A ruling on each timely filed proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

   FINDINGS OF FACT

   
   

   1. At all times material hereto, Respondent has been licensed to practice medicine in the State of Florida, having been issued license number ME-0027913, and was employed by the Norton Seminole Medical Group in Pinellas County, Florida. Respondent has been licensed in Florida since 1976.

      
      

   2. At approximately 3:50 p.m. on November 1, 1983, a 31 year old white male, with the initials R. L., arrived at the emergency room of Lake Seminole Hospital, Seminole, Florida, and was examined by the emergency room physician on duty. R. L. complained of substernal mid-chest pain radiating to his back, which had begun the night before. He was agitated and exhibited a great deal of emotional stress. The emergency room physician on duty treated R. L. for suspected cardiac pathology, placed him on a cardiac monitor, inserted a heparin lock into a vein, and ordered lab work which included a chest x-ray, electrocardiogram, electrolytes, cardiac enzymes, CBC (complete blood count), blood sugar, creatinine and BUN (blood urea nitrogen). These were appropriate tests under the circumstances.

      
      

   3. When the Respondent came on duty in the emergency room at 7:00 p.m., all lab work had been completed, except for the cardiac enzymes. The emergency room physician who had been on duty when R. L. appeared at the emergency room briefed Respondent about R. L.'s medical history, condition while in the emergency room, and the test results which had been received. After the cardiac enzyme values were received, Respondent reviewed R. L.'s medical history and lab test results, which he determined to be normal, and discharged R. L. at approximately 7:35 p.m. on November 1, 1983, with instructions that he see his family physician the next morning. Respondent's discharge diagnosis for R. L. was atypical chest pain secondary to anxiety.

      
      

   4. At approximately 11:21 p.m. on November 1, 1983, R. L. expired from cardiopulmonary arrest at the emergency room of Metropolitan Hospital, Pinellas Park, Florida. The autopsy report notes extensive coronary artery disease, but makes no mention of acute myocardial infarction. It was not established by clear and convincing evidence that R. L. suffered an acute myocardial infarction.

      
      

   5. There is conflicting expert testimony from Steven R Newman, M.D., and Stephen J. Dresnick, M.D., concerning whether Respondent should have admitted R.

      L. to Lake Seminole Hospital instead of discharging him from the emergency room, and also whether his E.K.G. taken at the emergency room was normal. Drs. Newman and Dresnick are experts in the care and treatment of patients in an emergency room, but their testimony was received by deposition instead of through live testimony at hearing. Thus, based upon this conflict in testimony, and the fact that the demeanor of these witnesses cannot be assessed, it is found that it was not established by clear and convincing evidence that Respondent failed to practice medicine with that level of care and skill which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances when he discharged R. L., and evaluated the tests which were administered to the patient while in the emergency room as within normal limits.

      
      

   6. A patient who appears at a hospital emergency room with unstable angina, such as R. L., does not necessarily require admission to the hospital. While serial electrocardiograms and serial cardiac enzymes are called for with patients whose symptoms of cardiac discomfort warrant hospitalization, these procedures are not usually and customarily performed in an emergency room.

      Therefore, since it was not established that Respondent should have admitted R.

      L. to the hospital as an in-patient, it was also not established that he failed to exercise the required level of skill and care by failing to order such serial tests while R. L. was in the emergency room.

      
      

   7. Although the emergency room physician on duty when R. L. arrived at the emergency room at approximately 3:50 p.m. on November 1, 1983, was initially responsible for obtaining a patient history and ordering the tests which were performed, when Respondent came on duty at 7:00 p.m. and took over this case, he was also responsible for insuring that his medical records concerning his evaluation and treatment of R. L., as well as his decision to discharge the patient, were full and complete. Respondent failed to document his review and findings based upon the lab tests and chest x-ray which had been completed, as well as the patient's medical history, and the specific reason or basis for his decision to discharge R. L. Respondent relied almost completely on the medical records compiled by the emergency room physician who was initially on duty when

      R. L. arrived at the emergency room, and made no significant additions to those records while the patient was under his care, or which would justify his course of treatment, including discharge, of this patient.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. Since this is a case in which the Department is seeking to discipline the Respondent's license, and could thereby adversely affect his ability to continue to practice medicine, the Department has the burden of establishing the basis for license disciplinary action by clear and convincing evidence. Ferris

      v. Turlington, 510 So.2d 292 (Fla. 1987). In order to meet this clear and convincing standard, "The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established." Evans Packing Co.

      v. Department of Agriculture and Consumer Services, 550 So.2d 112, 116 at n.5 (Fla. 1st DCA 1989), citing Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

      
      

   9. The Department has charged Respondent with violating Sections 458.331(1)(m) and (t), Florida Statutes, which provide in pertinent part, as follows:

      
      

      Section 458.331 Grounds for disciplinary action; action by the board and department.--

      1. The following acts shall constitute grounds for which . . . disciplinary actions . may be taken:

         * * *

         (m) Failing to keep written medical records justifying the course of treatment of the patient, including but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations

         and hospitalizations.

         * * *

         (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. . .

         
         

   10. Petitioner has failed to prove, by clear and convincing evidence, that Respondent's treatment of R. L. constituted gross or repeated malpractice, or the failure to practice medicine with acceptable skill and care under similar conditions and circumstances in violation of Section 458.331(1)(t), Florida Statutes. The expert testimony which was received by deposition in lieu of live testimony was conflicting, and appears equally competent, credible and persuasive. Therefore, this evidence cannot form the basis of a finding that Respondent violated this statutory provision by the requisite standard of clear and convincing evidence.

       
       

   11. The Petitioner has sustained its burden of proof with regard to the alleged violation of Section 458.331(1)(m) in that Respondent's medical records regarding his course of treatment of R. L., and his evaluation and analysis of the results of tests which were performed, are virtually nonexistent. There is nothing in the medical records which Respondent prepared for R. L. which would justify or explain his decision to discharge the patient instead of admitting him to the hospital, or any report of his consultation with the emergency room physician who was on duty when R. L. appeared at the emergency room, and who had treated R. L. from approximately 3:50 p.m. until 7:00 p.m. on November 1, 1983.

       
       

   12. In recommending the appropriate penalty for the violation of Section 458.331(1)(m), the nature of Respondent's violation must be considered, along with the disciplinary guidelines established by the Board of Medicine in Rule 21M- 20.001, Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Board of Medicine enter a Final Order reprimanding Respondent for his violation of Section 458.331(1)(m), Florida Statutes, and placing him on probation for a period of six months from the entry of the Final Order in this case, conditioned upon his complying with such reasonable terms and conditions as the Board may impose, including review and verification of the completeness of medical records prepared by the Respondent while on probation.

DONE AND ENTERED this 5th day of July, 1990 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1990.

APPENDIX

(DOAH CASE NO. 89-6874)

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Findings of Fact 2 and 3. 4-5. Adopted in Finding of Fact 2.

6. Adopted in Finding of Fact 3. 7-9. Adopted in Finding of Fact 4.

1. Rejected in Finding of Fact 5.

2. Rejected in Finding of Fact 7. 12-13. Adopted in Finding of Fact 6.

1. Adopted in part in Finding of Fact 2, but otherwise Rejected in Finding of Fact 5.

2. Adopted in Finding of Fact 5.

3. Rejected in Finding of Fact 7.

COPIES FURNISHED:

Andrea Bateman, Esquire Kevin F. Dugan, Esquire

1940 North Monroe Street Wittner Centre West

Suite 60 Suite 103

Tallahassee, FL 32399-0792 5999 Central Avenue

St. Petersburg, FL 33710

Kenneth E. Easley, Esquire General Counsel

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Dorothy Faircloth Executive Director Board of Medicine Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Docket for Case No: 89-006874

Orders for Case No: 89-006874