STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3751

)

IRVING L. COLVIN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on December 20, 1990, in Orlando, Florida.

APPEARANCES

For Petitioner: Francesca Small, Esquire

and

Larry G. McPherson, Jr., Esquire Dept. of Professional Regulation 1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Gary Siegel, Esquire

6500 S. Highway 17-92 Fern Park, FL 32730

STATEMENT OF THE ISSUES

An Administrative Complaint dated May 22, 1990, alleges that Respondent violated Section 458.331(1)(t), F.S. by 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. More specifically, Petitioner alleges that Respondent undertook certain surgical procedures on patient, R.M., without conducting necessary pre-surgery work up and testing.

At the hearing Petitioner voluntarily dismissed remaining allegations in the Complaint, related to a subsequent hospitalization of the same patient. (transcript, pp 13 & 14)

The issue for determination is whether Respondent committed the alleged violation, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

In response to the Administrative Complaint, Respondent requested an evidentiary hearing pursuant to Section 120.57(1), F.S., and the case was referred to the Division.

At the hearing, Petitioner presented the testimony of its experts, James H. Corwin, II, M.D., and Joseph R. Goggin, M.D., by deposition. (Petitioner's exhibits #3 and 4) Respondent had no objection to the presentation of their testimony in that manner, but objected to their opinions as being based on an improper standard of care and not related to the standard in the specific location in which the Respondent is practicing. That objection is addressed in the recommended conclusions of law, below.

Petitioner's exhibits #1, 2 and 5 were admitted without objection. Respondent testified in his own behalf, and presented the testimony of Owen

Frazier, M.D., Talal Hilal, M.D.; Harry Raymond, M.D.; and Robert Bloome, D.O.. Respondent's one exhibit, an article from the 1986 Yearbook of Surgery, is received over objection. While hearsay, it supplements the testimony of Respondent and others. See Section 120.58(1)(a), F.S.

The parties submitted proposed recommended orders on February 6 and 7, 1991, after the hearing transcript was filed. The findings of fact proposed by each are addressed in the attached appendix.

FINDINGS OF FACT

1. Respondent, Irving L. Colvin, M.D., is and has been at all times material hereto, a licensed physician, having been issued license number ME0008095 by the State of Florida. He has practiced in the Central Florida area since 1958, and is a Board-certified surgeon.

   
   

2. R.M., a 35 year old male, became a patient of Dr. Colvin in 1985, when he complained of right upper quadrant pain. Gallbladder x-rays were obtained at that time, and several months later when the complaints persisted. In August 1985, Dr. Colvin obtained a sonogram (echo test) of the gallbladder and an upper gastrointestinal series. Blood tests were also taken.

   
   

   The results of these tests did not, in Dr. Colvin's opinion, indicate a need for surgery, and the patient was treated symptomatically.

   
   

3. R.M. continued to complain of pain in 1986 and was treated symptomatically. He was seen by another internist and a gastroenterologist and was placed on several medications. None of the medications appeared to relieve his pain, and he visited Dr. Colvin again in June 1988, with the same complaints: recurring episodes of right upper quadrant pain radiating to the back.

   
   

4. Laboratory tests were done and some jaundice was found. His serum bilirubin was elevated and was treated symptomatically for a couple of weeks, until the patient was admitted to AMI Medical Center in Orlando for exploratory surgery in July 1988.

5. None of the tests conducted prior to the surgery revealed the existence of gallstones. Three gallbladder x-rays were performed between 1985 and 1988. At least one sonogram was conducted, as well as blood tests and upper gastrointestinal series.

   
   

   Dr. Colvin considered that the tests ruled out other bases for the recurring complaints and clinically concluded that the patient had chronic cholecystitis (gallbladder disease) with bile duct obstruction and possibly intermittent stones. By the time of the surgery, the patient indicated he was tired of putting up with the pain and wanted something done other than the medications.

   
   

6. At Dr. Colvin's request, the morning of surgery, Dr. Talal Hilal, a gastroenterologist, conducted an endoscopy to rule out other causes of the intermittent jaundice. This consisted in the insertion of a tube through the mouth and esophagus, down to the stomach and to the small intestine where the gallbladder is found in the duodenum.

   
   

   Dr. Hilal's findings were essentially normal, and he recommended that Dr.

   Colvin proceed to surgically explore the common bile duct.

   
   

7. The surgery conducted by Dr. Colvin included exploration of the duct with a choledoscope and removal of the gallbladder.

   
   

   The surgery was appropriate as the gallbladder was diseased. Post operative diagnoses were: chronic acalculus cholecystitis, chronic pancreatitus and stenosis (constriction) of the distal common bile duct and sphincter of odi.

   
   

8. None of the experts claims that the surgery should not have been performed. Rather, the agency's two experts, who reviewed the medical files only, claim that insufficient work-up was completed prior to the surgery.

   
   

9. The original function of the gallbladder was to store bile in lower animals, which has carried over into a gallbladder in human beings and which may or may not have very much function.

   
   

   Still, invasive procedures should be avoided unless they are necessary, as they can be life-threatening.

   
   

10. The agency's experts claim that less invasive procedures should have been tried prior to surgery. More specifically, they suggest that an operative cholangiogram should have been done. That is a procedure wherein a small tube is inserted through a small nick in the part of the gallbladder that joins the common bile duct. Dye is injected, and x-rays of the duct are taken.

    
    

    They also suggest other procedures, including sonography or ultrasound, hiatiscan, CAT scan, a study of the bilirubin, and ERCP (endoscopic retrograde cholangiopancreatogram).

    
    

11. At least two of these procedures, sonography and bilirubin tests, were obtained by Dr. Colvin prior to surgery.

    
    

12. By the time that he performed surgery on R.M., Dr. Colvin surmised through his clinical observations that the patient's gallbladder disease was not likely caused by stones. Chronic acalculus cholecystitis is a specific disease

    characterized by the absence of stones but still caused by an inflammatory reaction. From five to ten percent of gallbladder cholecystitis exists without the presence of stones.

    
    

    Diagnosis of the disease is made clinically, through the elimination of possibilities of other diseases, by skillfully feeling the patient and by listening to his complaints. Typically, the symptoms of chronic acalculus cholecystitis are upper abdominal pain, sometimes radiating to the back, digestive disturbances and low grade fever. The disease recurs chronically, with subsidence of the symptoms from time to time.

    
    

13. There is substantial difference of opinion on the utility of the multiple tests suggested by the agency's experts. A cholangiogram is helpful when stones are strongly suspected, as it indicates how many stones exist, so that surgery will remove them all. While not as life-threatening as the exploratory surgery, this procedure also has risks, including inflamation of the pancreas, and it still involves opening the abdomen.

    
    

    Dr. Colvin already had the advantage of several sonagrams and X-rays indicating that stones did not exist. He had the laboratory tests revealing fluctuating bilirubin levels and strongly indicating the need for bile duct exploration. The hiatiscan, involving a nuclear radiation determination of obstructions, is most commonly used in cases of acute, rather than chronic cholecystitis. If the ERCP needed to have been done, Dr. Hilal would have performed it at the time that he did the pre-surgery endoscopy. He did not feel it was necessary and recommended that Dr. Colvin follow his plan for the surgery. A CAT scan would have been very costly and is an inaccurate means of detecting gallstones, detecting less than ten or fifteen percent of existing stones.

    
    

14. From his review of the records, Dr. Corwin, an expert witness for the agency, conceded that R.M. probably had chronic cholecystitis. He has never treated a patient with chronic acalculus cholecystytis and stated that he does not consider it an acceptable diagnosis. Dr. Corwin admitted that some people might consider the laboratory tests and endoscopy ordered by Dr. Colvin to be an adequate work-up, and he stated that he would "hedge a little bit" on his own opinion.

    
    

15. All of the remaining witnesses, including Dr. Goggin, the agency's other expert, have heard of the disease and consider it a valid diagnosis.

    
    

16. This is a case of reasonably prudent physicians disagreeing as to appropriate pre-surgery work-up of a patient. Other than Dr. Colvin, only one witness was personally familiar with the patient. That witness, Dr. Hilal, the gastroenterologist, unequivocally supported Dr. Colvin's handling of the case.

    
    

    Once Dr. Colvin determined clinically that surgical exploration was necessary through his treatment of the patient and through the process of elimination of alternative diagnoses, the other available tests suggested by Drs. Goggin and Corwin were redundant. Petitioner failed to prove that the means by which Respondent reached his clinical diagnosis violates the applicable standard of care.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.57(1), F.S., and 455.225(5), F.S.

    
    

18. Pursuant to Section 458.331(2), F.S., the Board of Medicine is authorized to revoke, suspend, or otherwise discipline the license of a physician for a violation of Section 458.331(1), F.S., including the following:

    
    

    * * *

    (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. ...

    
    

19. Respondent has not provided relevant authority for his assertion that this is a local (here, Central Florida) community standard. Some authority, albeit dicta, exists for the contrary, as to a different violation under Section 458.331(1), F.S.:

    
    

    We likewise find lacking in substance appellant's contention that the Hearing Officer and the Board, in ruling on the recordkeeping charge erroneously applied a "local" (Miami standard) whereas the statute mandates compliance with a "national" standard.

    * * *

    It is clear from the evidence and from the Hearing Officer's findings that the Hearing Officer applied neither a local or national standard, but the Florida statutory standard in finding a violation on this charge.

    James G. Robertson, M.D. v. DPR, Board of Medicine, 15 FLWD1647 (Fla. 1st DCA, June 19, 1990)

    
    

    Respondent's motion to strike the testimony of Petitioner's experts because they practice in Jacksonville is DENIED.

    
    

20. Under Ferris v. Turlington, 510 So 2d. 292 (Fla. 1987), Petitioner is required to prove the allegations of its Administrative Complaint related to professional license discipline by evidence that is clear and convincing.

The legislature, however, has addressed that Supreme Court ruling with an amendment to Chapter 458.331, F.S.:

(3) In any administrative action against a physician which does not involve revocation or suspension of license, the division shall have the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action. The division shall establish grounds for revocation or suspension of license by clear and convincing evidence.

In its recommended order, Petitioner recommends a penalty of a fine, reprimand and the completion of certain continuing medical education courses, thus, the relaxed standard of proof is arguably applicable.

Even under this standard, however, Petitioner's proof falls short. The "greater weight of evidence" is that the pre-surgery work-up performed by Respondent was well within the "level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances."

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That the Board of Medicine enter its final order dismissing the Administrative Complaint against Irving L. Colvin, M.D.

DONE AND RECOMMENDED this 28th day of February, 1991, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Divisionof Administrative Hearings this 28th day of February, 1991.

APPENDIX

The following constitute specific rulings on the findings of fact proposed by the parties.

Petitioner's Proposed Findings

1. Adopted in paragraph 1.

2. Adopted in paragraph 7.

3. Adopted in substance in paragraph 5.

4. Adopted in relevant part in paragraph 4.

5. Rejected as irrelevant.

6. Rejected as contrary to the weight of evidence.

7. Rejected as contrary to the weight of evidence. What comprises a "complete history and physical" is not explained, nor is this failure alleged as a violation of Section 458.331, F.S., in the Administrative Complaint.

8. Rejected as immaterial.

9. Rejected as contrary to the weight of evidence.

10. Rejected as cumulative, immaterial (as to elevated alkaline phosphatase level) and contrary to the weight of evidence (as to no evidence of need for exploration).

11. Adopted in substance in paragraph 9.

12. Rejected as immaterial, and contrary to the weight of evidence.

13. Rejected as contrary to the weight of evidence.

14. and

15. Adopted in relevant part in paragraph 5.

16. Adopted in paragraphs 3 and 4. 17.and

18. Rejected, as to the persuasiveness of the two experts' opinion.

Respondent's Findings of Fact

The Respondent's proposed findings consist of 2 numbered paragraphs. The first is adopted in Recommended finding #1; the second is argument and commentary on the testimony, rather than proposed findings.

COPIES FURNISHED:

Francesca Small, Esquire Larry G. McPherson, Esquire DPR

1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Gary Siegel, Esquire 6500 S. Highway 17-92 Fern Park, FL 32730

Jack McRay, General Counsel DPR

1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Dorothy Faircloth Executive Director DPR-Board of Medicine

1940 N. Monroe St., Ste. 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: 90-003751

Orders for Case No: 90-003751