STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2810

)

SHEILA FISCHER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings and its duly designated Hearing Officer, Stephen F. Dean, on October 8, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mary B. Radkins

Senior Attorney

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: John D. Buchanan, Jr., Esquire

Henry, Buchanan, Mich & English, P.A. Post Office Drawer 1049

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

Whether disciplinary action should be taken against Respondent's license to practice medicine, number ME 0050325 based on the violations of Section 458.331(1), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this proceeding.

BACKGROUND

On April 9, 1990, Petitioner filed an Amended Administrative Complaint against Respondent alleging that Respondent violated Sections 458.331(1)(t) and (m), Florida Statutes, by failing to consult with other physicians or document any efforts to do so and by failing to assure that her patient was turned over to the care of other physicians or document any arrangements she may have made for the care of her patient who was suffering postoperative complications.

Respondent, by an executed election of rights form, requested a formal hearing which is the subject of this order.

At the formal hearing Petitioner presented the testimony of Jim Reese, Investigator for the Department of Professional Regulation. Respondent presented the testimony of Dr. Sheila Fischer. Petitioner offered Petitioner's Exhibits l through 5 in evidence. Petitioner has offered the depositions of Dr. David A. Cross, Dr. Irena A. Skora, Dr. Ernesto Donaire, Dr. Albert Boholst and Gerry Auermann, R.N., as late-filed exhibits. Respondent has offered the deposition of Dr. Alan K. Kronhaus as a late-filed exhibit. Both Petitioner and Respondent filed proposed findings of fact which were read and considered.

Appendix 1 states which were adopted and which were rejected and why.

FINDINGS OF FACT

1. Seven Rivers Community Hospital is located in Crystal River, Florida. Seven Rivers contracted with Kron Medical Enterprises in Chapel Hill, North Carolina, to supply a locum tenens (temporary physician assistance) to Seven Rivers. Seven Rivers needed the services of a temporary anesthesiologist on staff while one of its two regular staff anesthesiologists took an examination for board certification in this speciality.

   
   

2. Kron made arrangements for Dr. Sheila Fischer, who held Florida license No. ME 50235, to provide temporary staff anesthesiology services at Seven Rivers. Kron made Dr. Fischer's travel and living arrangements while at Seven Rivers.

   
   

3. While at Seven Rivers, Dr. Fischer lived in a small apartment located on the hospital's grounds, approximately 25 yards from the hospital. This apartment was equipped with a telephone and was used by temporary physicians employed by the hospital. The end of Dr. Fischer's two weeks temporary service at Seven Rivers ended on Friday, October 30, 1987, at 3:00 p.m. The travel arrangements by Kron for Dr. Fischer were for a flight on Saturday morning, October 31, 1987, from Tampa Airport to New York City.

   
   

4. Patient R.B. was admitted to Seven Rivers Hospital on October 28, 1987. R.B.'s admitting physician was Dr. Callueng. R.B.'s medical history indicates that he was five feet, two inches tall, weighed a 163 pounds, was a former smoker, and was diabetic and hypertensive. R.B. was taking Diabinese, Minipress, and Procordia for these medical problems. R.B. had a history of transient ischemia attacks (mini strokes).

   
   

5. R.B. was scheduled for a right carotid endarterectomy on October 30, 1987.

   
   

6. A carotid endarterectomy is the surgical removal of plaque from the interior of the carotid artery. These plaques or deposits restrict the flow of blood through the carotid artery. One carotid artery runs up each side of one's neck and has two branches, the vertebral branch which serves the temporal region of the head and the internal branch which serves the brain. Both carotid arteries are interconnected at the base of the brain so that blood flow to the brain can be maintained under normal circumstances by either carotid artery.

   The carotid endarterectomy on R.B. was dictated by his history of transient ischemia which results from the reduction in arterial blood flow. The work-up on R.B. revealed blockages in both R.B.'s carotid arteries in excess of 90 percent.

7. R.B. was visited on the evening of October 29, 1987, by Dr. Ernesto Donaire, staff anesthesiologist at Seven Rivers Hospital. Dr. Donaire conducted a pre-operative assessment of R.B. and reviewed R.B.'s medical history; see paragraph 4 above. Dr. Donaire also observed that R.B. was moderately obese, had a short neck, and wore dentures. In addition, Dr. Donaire explained to R.B. the operation, the risk of surgery and anesthesiology, and obtained R.B.'s release for the anesthesiology and surgery to be performed the next day.

   
   

8. Subsequent to talking with R.B., Dr. Donaire spoke with another surgeon who added a new case to the following day's surgical schedule. As a result of the change in schedule, Dr. Donaire switched R.B. to another operating room where the Respondent, Dr. Fischer, was scheduled to provide anesthesia the following day. Dr. Donaire returned to R.B.'s room and explained to R.B. that Dr. Fischer would be handling his anesthesia the following day. This was acceptable to R.B. and Dr. Donaire charted this second meeting with R.B. in a separate progress note.

   
   

9. Dr. Fischer's last day as a locum tenes anesthesiologist at Seven Rivers Hospital was on October 30, 1987. After handling surgeries in the morning, Dr. Fischer began to chart the anesthesia for R.B. at 1135 hours when he was brought into the operating room for a right carotid endarterectomy. A 16 gauge needle was placed in R.B.'s left hand; a blood pressure cuff was placed on him, together with electrocardiogram leads; an oximeter was applied; his eyes were taped and lubricated; and he was interbated with a #7 E.T. tube. This was easily done and subsequently his chest sounds were equal. A 20 gauge catheter was placed in the left radial artery and the patient prepped and draped. At this point, the nurse noticed a slit in the drape covering the instruments. The patient was redraped and prepped while the instruments were flash sterilized and the first incision made at 1242 hours.

   
   

10. At 1318 hours, the surgeon, Dr. Boholst, clamped the right carotid artery. The clamp was removed at 1435 hours. During the period the clamp was in place, the right side of R.B.'s brain was dependent upon blood supply from cross circulation from the left carotid artery which was 90 percent blocked. The annotations at the bottom of the Respondent's surgical notes reflects that the blood supply to the brain through the right carotid artery was interrupted for 77 minutes.

    
    

11. At 1520 hours, R.B. was received in the post- anesthesia care unit (PACU) by bed from the operating suite accompanied by Dr. Fischer and Nurse Camara, the operating room nurse. This was twenty minutes after the end of the normal shift. Dr. Fischer and Nurse Camara gave verbal reports of the operation to Gerry Auermann, the PACU nurse assigned to care for R.B. This was very normal and in accordance with regular procedures.

    
    

12. Shortly after R.B. was received in the PACU, Dr. Boholst arrived and looked in on the patient.

    
    

13. Drs. Boholst and Fischer were concerned about the possible neurological insult to R.B. caused by the extended clamping of the carotid artery. However, they could not assess the extent of insult while R.B. was under the effects of the anesthesia. R.B. was deeply sedated and did not recover quickly. His temperature was 30.60 (870F). Assessment was further complicated by the pre-surgical conditions of R.B.'s left leg caused by a childhood illness.

14. An assessment of the patient's neurological state is important to the surgeon in determining whether it is necessary to return a patient to surgery to correct problems resulting from circulatory blockages caused by a separation of plaque and internal flaps. (Cross deposition, page 60) Neurological insult caused by the clamping can not be corrected surgically. Dr. Fischer indicated that the damage from clamping would be apparent immediately, but would worsen over several hours.

    
    

15. Gerry Auermann, the PACU nurse, did not record the presence of Drs. Fischer or Boholst in PACU. She indicates in her deposition that she had not independent recollection of events, but did not feel they were present because her notes would have reflected that they were present if they had been.

    However, her notes also reflect that she administered Narcan to R.B. There were no doctor's orders covering the administration of this medication to the patient. It is inconceivable that a nurse with Auermann's background and experience would have administered these medications without a doctor's order.

    
    

16. Dr. Fischer indicated that it was not unusual for nurses in an intensive care situation to make partial notes on adhesive tape, clothes, or even the backs of their hands for transfer subsequently into the official record. Auermann's notes were not complete regarding the presence of Dr. Fischer and Dr. Boholst and their orders regarding R.B.

    
    

17. Both Dr. Fischer and Dr. Boholst saw one another and spoke to one another as they monitored the progress of their patient R.B. While in the PACU, both physicians shared responsibility for R.B. in the PACU. Dr. Fischer was responsible for his satisfactory recovery from anesthesia and Dr. Boholst was responsible for assessing R.B. surgically and making a determination, if necessary, to return him to surgery. The on- call anesthesiologist would have been responsible for anesthesiological assistance if surgery was required after Dr. Fischer's normal end of shift and release of the patient to Dr. Boholst.

    
    

18. At approximately 1605 hours, Auermann administered one quarter cc (5 mg) of Narcan to R.B. Narcan is a medication which cancels the effects of narcotics and anesthesia. At 1608 hours, another one quarter cc of Narcan was administered to R.B. At 1610 hours, Auermann initially noted that the patient was moving, however, she voided this entry. At 1625 hours, Auermann recorded that the patient moved his right limbs and left shoulder. When she stimulated his left toes she received an involuntary reflexed action. The nursing notes reflects Narcan at 1605 hours and 1608 hours, and again at 1650 hours and 1655 hours. Nomaclene (phonetic) was not administered.

    
    

19. Dr. Boholst and Dr. Fischer were present when R.B. was assessed, and Dr. Boholst was advised of the potential neurological deficient suffered by R.B. during the operation.

    
    

20. Between 1625 hours and 1655 hours, Dr. Boholst faced the decision to return the patient to surgery or to wait and further assess the impact of the neurological insult resulting from the prolonged clamping of the carotid artery. At this time, Dr. Fischer's principal concern was getting the patient in a condition to be moved to ICU. At 1650 hours, a one- half cc of Narcan was administered to R.B. and at 1655 hours another one-half cc was administered. At 1700 hours the patient was responsive but unable to open his eyes.

21. Dr. Boholst decided not to return to surgery. He consulted with Dr. Callueng, R.B.'s principal physician, who ordered an immediate CAT Scan. A CAT Scan would have identified the principal physical restrictions to the blood flow without further surgery. See. Dr. Cross' deposition.

    
    

22. There was a delay in receiving R.B. in ICU because of a lack of beds. At sometime between 1600 hours and 1655 hours, Dr. Fischer gave the following verbal orders to Auermann concerning R.B.: 10/30/87 number 1, blood glucose now done PACU at 1600 (emphasis supplied); number 2, nitroglycerin drip to control

    B.P. systolic below 160, diastolic below 100; number 3, discharge from PACU at

    . Verbal order of Doctor Fischer taken by G. Auermann, RN. (A blank was left to permit Nurse Auermann to fill in the time when the actual transfer was made. The transfer was made at 1745.)(See page 28, Auermann deposition.)

    
    

23. At 1720 hours, Auermann administered to R.B. 12 and a half mg of Demoral, on order of Dr. Boholst, and telephoned Dr. Boholst to report on the patient's condition. At that time, R.B. had a PARR of 8, slight movement in his left hand and no voluntary movement in his left leg. Dr. Boholst had left orders for administration of Demerol to R.B. for relief of pain in ICU. By protocol, surgeons don't administer drugs normally to patients in recovering room. However, at 1720 hours, a medication ordered only by Dr. Boholst was administered in the recovery room.

    
    

24. As stated above, there was no room in ICU. Therefore, sometime between 1625 hours and 1720 hours, Dr. Fischer transferred primary patient care to Dr. Boholst. This was most probably not a formal matter because both doctors and Auermann had been participating in R.B.'s care, and all knew what was being done, why, and what the results were. Dr. Boholst had assumed responsibility for R.B. although R.B. remained in recovery because there was no room in ICU.

    
    

25. Dr. Fischer's comments to the investigator many months after the event without reference to the record are not considered as admissions by Dr. Fischer.

    
    

    CONCLUSIONS OF LAW

    
    

26. This order is entered pursuant to Section 120.57, Florida Statutes. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this hearing.

    
    

27. The Department of Professional Regulation, Board of Medicine, alleges that the Respondent Sheila Fischer, M.D., violated Sections 458.331(1)(m) and

    (t) as follows:

    
    

    (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. .

28. Dr. Cross, the Board's expert, stated in his deposition that he found no fault with the records kept by Dr. Fischer. Dr. Skora's observation concerning Dr. Fischer's record keeping was that Dr. Fischer had failed to indicate in her notes having transferred responsibility of the patient to the surgeon or to the staff anesthesiologist. However, both Drs. Skora and Cross indicated that anesthesiologists frequently advise the recovery room nurse of the release of a patient. As found above, the nursing notes by Auermann were not complete. The facts support a finding that Drs. Boholst and Fischer were present and directly involved with the care and treatment of the patient R.B. in the recovery room following his surgery.

    
    

29. The record which exists and the testimony of Drs. Fischer and Boholst show that Dr. Fischer remained and cared for the patient until she and Dr. Boholst were able to perform a neurological assessment which revealed a neurological deficit. It is clear that Dr. Boholst elected not to take the patient back to surgery, but elected a more conservative approach and recommended a CAT Scan to assess the extent and nature of the damages.

    
    

30. Dr. Fischer's medical notes and records were sufficient to support her treatment of the patient, and she in fact consulted with Dr. Boholst. Because Dr. Boholst assumed responsibility for the patient, there was no need to confer with Dr. Donaire, the staff anesthesiologist, about his care of the patient.

    
    

31. The key to understanding the care of the patient and the transfer of the patient between the physicians is the absence of beds in ICU to which the patient could be transferred upon recovering from the effects of the anesthetic. Although R.B. remained in the recovery room, his care was transferred to Dr. Boholst, and an appropriate entry was made reflecting R.B.'s physical transfer to ICU at 1745 hours subsequent to Dr. Boholst assuming responsibility for R.B.

    
    

32. The allegation that Dr. Fischer was guilty of gross of repeated malpractice or failure to practice medicine with the level of care skill and treatment which is recognized by a reasonably prudent similar physician, is also based upon her failure to keep records and failure to consult with the staff anesthesiologist. There is no evidence that Dr. Fischer has ever been charged with any other offense, and clearly her conduct in this case is neither gross nor repeated malpractice.

    
    

33. From the reports of Drs. Skora and Cross, the allegations against Dr. Fischer center on Dr. Fischer's alleged failure to keep records in a fashion recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Her record keeping was adequate; however, both Drs. Skora and Cross point to the repeated failures by other physicians at Seven Rivers to keep adequate and complete notes.

    
    

34. While it would have been quite helpful in the analysis of this case and perhaps would have prevented this case from having been filed, one cannot review the record and conclude that Dr. Fischer was alone in her failure to keep records in this hospital at the time of R.B. surgery. To the extent that this constitutes some form of a community medical record keeping standard, Dr. Fischer conformed to the prevailing standard.

    
    

35. Based upon the findings of fact and conclusions of law, it is recommended that the charges against Dr. Fischer be dismissed.

DONE and ENTERED this 28th day of December, 1990, in Tallahassee, Florida.

STEPHEN F. DEAN

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 28th day of December, 1990.

APPENDIX TO RECOMMENDED ORDER

The following findings proposed by the Petitioner were adopted or rejected for the reason indicated.

1. Adopted.

2. Irrelevant.

3. Adopted in part, but "left carotid endarterectomy" s contrary to facts. 4-9. Adopted.

1. Adopted.

2. Adopted that normal shift ended at 3:00 p.m. (1500 hours).

3. Adopted.

4. Rejected regarding hypertension. The primary cause of concern was possible neurological insult.

5. Adopted. See RO paragraph 19.

6. Adopted. See RO paragraph 20.

7. Irrelevant and contrary to her notes and actions.

8. Adopted. See RO paragraph 21.

9. Adopted. See RO paragraph 24.

10. Irrelevant. This was after the incident concluded, and all the experts testified that Dr. Fischer's actions did not contribute to his condition.

11. Specifically rejected as contrary to the facts.

12. Adopted. See RO paragraph 23.

13. Rejected as contrary to more believable evidence.

14. Rejected as being unsupported by any cited note or record and non- specific as to time.

15. Rejected as contrary to fact.

16. Rejected as contrary to fact. There is no specific notation, but clearly the record reflects a change between 1625 hours and 1700 hours.

17. Rejected as contrary to fact.

18. Adopted.

19. Rejected as vague as to time. See RO paragraph 25.

29-31. Rejected as contrary to fact. See RO paragraph 26.

1. Rejected. See RO paragraph 18.

2. Rejected as contrary to fact.

3. Rejected as contrary to fact.

4. Rejected as opinion and contrary to observed conduct.

5. Rejected. Assumes Dr. Fischer was relieved by an anesthesiologist and not Dr. Boholst.

6. Contrary to fact.

7. Contrary to fact.

8. Contrary to fact.

The following findings proposed by the Respondent were adopted or rejected for the reason indicated.

1-5. Rejected as irrelevant. See RO paragraph 3. 6-14. Adopted.

15. Irrelevant. Experts testified that anesthesiologist could even leave PACU area if very close by.

16-18. Adopted in part. See RO paragraph 16,17,18.

1. Adopted with regard to time Dr. Fischer was present and patient's movement.

2. Adopted.

3. Adopted.

4. Adopted.

5. Rejected argument.

6. Rejected as contrary to fact.

7. True but irrelevant.

8. Irrelevant.

9. Irrelevant.

10. True. See RO paragraph 17.

11. Irrelevant. Dr. Donaire's problems do not relate to practice.

12. Dr. Fischer was not board certified at the time of the incident. Certification is irrelevant.

13. Irrelevant.

14. Irrelevant.

15. The investigative report is unsubstantiated hearsay, and contains information of a nature upon which prudent people do not base decisions.

35-36. True, but irrelevant. See RO paragraphs 17,20,22.

COPIES FURNISHED:

Mary B. Radkins, Esquire Kenneth Easley

Department of Professional General Counsel

Regulation Department of Professional North-wood Centre Regulation, Suite 60 1940 North Monroe Street Northwood Centre

Suite 60 1940 North Monroe Street

Tallahassee, FL 32399-0792 Tallahassee, FL 32399-0792

John D. Buchanan, Jr., Esquire Post Office Drawer 1049 Tallahassee, FL 32302

Dorothy Faircloth Executive Director Board of Medicine Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-002810

Orders for Case No: 90-002810