STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4699

)

SAYYED ARSHAD HUSSAIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on January 31, 1991, at Tampa, Florida.

APPEARANCES

For Petitioner: Mary B. Radkins, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 3299-0792

For Respondent: Rodney W. Morgan, Esquire

Galloway Executive Center, Ste. 110 3333 Henderson Boulevard

Tampa, Florida 33609 STATEMENT OF THE ISSUES

Whether Respondent failed to practice medicine with the requisite level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; and whether he kept written medical records justifying the course of treatment of a patient.

PRELIMINARY STATEMENT

By Administrative Complaint filed April 19, 1990, the Department of Professional Regulation, seeks to revoke, suspend, or otherwise discipline the license of Sayyed Arshad Hussain, as a medical doctor. As grounds therefore, it is alleged that on or about October 2, 1986, a young man apprehended in preparing to take his own life, was bought by a Hillsborough County deputy sheriff to the Hillsborough County Mental Health Center Crisis Stabilization Unit (CSU) for an involuntary examination. At the center, the patient was screened by an unlicensed crisis center counsellor who concluded the patient was not suicidal and telephoned Respondent, the on-call psychiatrist for the crisis center. As a result of the crisis center counsellor's report the patient was

released without being examined by Respondent. The medical records comprised the results of the counsellor's interview with the patient with no indication of any independent effort by Respondent to justify overriding the Law Enforcement officer's delivery of the patient for involuntary examination and, if necessary, commitment. Shortly after the patient's release he completed the suicide, the commission of which he had earlier been thwarted.

At the hearing Petitioner called four witnesses, Respondent called five witnesses, including himself, and 15 exhibits were offered into evidence. All were admitted except exhibit 8, on which ruling was reserved on the objection thereto. Exhibit 8 is now admitted but no finding will be made on uncorroborated hearsay contained therein. Exhibit 15 is the deposition of Dr. Menges filed as a late-filed exhibit.

Proposed findings have been submitted by the parties. The only dispute in this case involves what was said during the telephone conversation between the crisis counsellor and Respondent prior to Respondent authorizing the release of this involuntarily presented patient. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto Respondent was licensed as a medical doctor in Florida and was under contract with the Hillsborough Community Mental Health Center, Inc. to provide psychiatric services to the mental health center

   20 hours per week. (Exhibits 1 and 14.)

   
   

2. On October 2, 1986, Michael Burton, a Hillsborough County Deputy Sheriff received a call regarding an emergency in an isolated area on the I-75 north of Tampa. Upon his arrival he found M.H., a 21-year old white male handcuffed in the back seat of a game warden's car.

   
   

3. A pick-up truck belonging to M.H. had a flexible hose connected to the exhaust to lead into the cab, several suicide notes and a girl's photograph were in the cab of the pick-up. Burton was told by the game warden that while conducting a routine check of the area, he had come upon M.H. attaching the flexible hose to the exhaust of the pick-up, and he arrested M.H. and called for law enforcement personnel.

   
   

4. M.H. was transferred to Burton's car and, realizing M.H. was suicidal and consequently a danger to himself, Burton concluded M.H. should be committed and he called for a wrecker to tow away M.H.'s vehicle. M.H. did not agree to voluntary commitment and he was held for involuntary commitment.

   
   

5. Due to the isolated location the wrecker took more than an hour to arrive on the scene. During this period Burton talked to M.H. who told Burton he was from South Dakota, he had come to Florida looking to work without success, that he hadn't bathed or eaten for a week, that he had been placed on parole in South Dakota for burglary and that in leaving the state he had violated his parole, and that life was no longer worth living. He also told Burton that although he had been stopped this time (from suicide) he wouldn't be stopped the next time.

   
   

6. While awaiting the arrival of the wrecker Burton prepared some of HRS- MH Form 3052A (BA-52) (Exhibit 2) which is the report of law enforcement officer to justify the involuntary presentment of a client for examination to insure the client is not a danger to himself or to others. This is the procedure generally

   followed for patients presented by law enforcement officers pursuant to the Baker Act. Burton completed this form when he delivered M.H. to the CSU.

   
   

7. Upon arrival of the wrecker Burton departed with M.H. who had no opportunity to speak to the driver of the wrecker.

   
   

8. Enroute to the crisis center Burton stopped at a McDonald's restaurant where he bought a hamburger, fries and a coke for M.H.

   
   

9. Upon arrival at the crisis center Burton delivered M.H. to the receptionist, had copies made of the suicide notes which he left with the BA-52 containing Burton's opinions regarding M.H. being a danger to himself and the observations supporting that opinion.

   
   

10. Those observations recited:

    
    

    [M.H.] was found hooking a hose up to the exhaust system of his vehicle and had written suicide notes to his girl friend and mother. [M.] advised he came to Tampa from N. Dakota seeking work and has not been able to find anything. He stated he has not eaten or bathed in one week and has nothing to live for. Seemed very depressed and stated that death was the answer. [M.] has had mental health counselling in North Dakota at "Northwest Mental Health Center" involving his girlfriend committing suicide several years ago. He is also on criminal probation in

    N. Dakota for burglary and has violated his probation in leaving that state. Found in his possession was an article called "Near Death Experiences" that he had been reading, in which he copied an "epitaph" from.

    
    

11. The Intake Sheet at the mental health center classified M.H. as a Baker Act patient and the Sheriff's report with suicide notes were attached to the Intake Sheet and presented to the crisis center counsellor to interview the patient and prepare the evaluation.

    
    

12. The crisis center counsellor who interviewed M.H. and prepared the summary in exhibit 5, Kris Millrose, holds a master's degree in counselling and worked two nights per week at the crisis center. His normal procedure is to interview the client and make notes. He had available the information prepared by Deputy Sheriff Burton when he interviewed M.H. He made no effort to verify conflicts in what M.H. told him and what was contained in the Sheriff's report. He does not recall what he told Respondent during the telephone call, but he deemed it important to share with the doctor that patient had been brought in suicidal and the reasons given on the Baker Act form. He does not recall Respondent questioning him about the suicide notes but believed their existence would have been relayed to the doctor. Respondent concurred with Millrose's evaluation of M.H. and ordered him released.

13. Millrose's evaluation recites:

    
    

    Pt to CSU as a 21-year old white male, unemployed, single and at large. Pt is on BA-52 via HCSO who found pt parked on state property. Pt states he had been sitting for a long time in this spot drinking beer thinking about his girlfriend in South Dakota and feeling sad over not having job and no place to live. Pt states his main concern was having very little money and no job. Patient was not aware he could go to the Salvation Army.

    Pt was thinking about suicide this afternoon, but adamantly denies being suicidal at present. Pt states the man who towed his truck today at the request of HCSO offered pt a job and possibly a place to stay.

    
    

    Pt states there is no work in South Dakota and his girlfriend just started college.

    Pt had been to Tampa one year ago when he decided to come back here. Pt denies trying to hook up a hose to his exhaust pipe. Pt states HCSO found him sitting in the back of his pick-up truck drinking beer. Pt states loving life and knows there is hope

    regardless of the notes he wrote to his mother and girlfriend.

    
    

    Pt does not appear a danger to himself or others at this time. He is planning on getting a job here or going back to Atlanta where he spent a day on his way to Tampa.

    Pt states having a little money left as he spent some last night staying in a motel. Pt requested something to eat and was given something.

    
    

14. Following his release around 10:00 p.m., M.H. telephoned the wrecker company to see if he could pick up his vehicle and was told he would need a release from the Sheriff. M.H. then made his way across town to the lot where his truck was impounded, climbed the fence, entered his vehicle and drove it through the locked gate around 11:00 p.m. The Sheriff's office called the crisis center to obtain the name of the counsellor and doctor who authorized the release of M.H. Two days later M.H. partially decomposed body was discovered in north Pasco County in the cab of his vehicle with a hose connected to the exhaust leading to the cab.

    
    

15. Crisis counsellors report several patients to the doctor during one telephone call. Millrose doesn't recall any specific details of his conversation except that after M.H. had been ordered released and he received the call from the Sheriff's office he again called Respondent to report the incident regarding the truck and Respondent stated patient had an antisocial personality disorder and should be put in jail. Millrose advised the Sheriff's office that M.H. should be arrested.

16. Following four suicides by patients released from the crisis center in 1986 and 1987 it came to the attention of the public through newspaper articles and to the Department of Health and Rehabilitative Services that several individuals referred to crisis centers under Baker Act procedures had been released without adequate evaluation and had committed suicide.

    
    

17. As a result of these inquiries Respondent's attention was recalled to the incident involving M.H. more than one year after October 2, 1986. It was at this time he first reviewed the file and actions that had been taken. This time frame is significant in evaluating Respondent's testimony.

    
    

18. Contrary to Millrose's recollection of the specifics of his evaluation of M.H., Respondent testified that he recalls Millrose advising him that M.H. had been brought to the crisis center by a deputy sheriff when M.H. was found attempting to hook up a hose to his exhaust, but that M.H. denied that ever happened. He recalls being told by Millrose that M.H. stated he had been offered a job by the man driving the wrecker, that M.H. was neat in appearance, was not suicidal and exhibited no psychotic symptoms, that patient had some money and a supportive girlfriend. He recalls being told by Millrose that M.H. was picked up on State property drinking beer in his truck, that he had contemplated suicide earlier but was now no longer suicidal. He further testified Millrose didn't tell him about the suicide notes, didn't tell him M.H. had come from South Dakota and was out of work, but that he (Respondent) had discussed the status of the patient and whether M.H. was a danger to himself. Respondent's testimony that he learned of the suicide of M.H. over a year after the incident and first reviewed the records after that, coupled with Millrose's testimony that several cases would be discussed with the psychiatrist during each phone call, renders Respondent's detailed recollection of the telephone conversation with Millrose totally lacking in credibility.

    
    

19. Petitioner's expert witness opined that the evidence of lethality contained in the BA-52 and the suicide notes was overwhelming. These included the age and sex of M.H., the fact that he was a long way from home and the availability of supportive services, that he had been drinking alcohol, that he had no job and little money, that he was apprehended in the process of committing suicide, the suicide notes, and the article he had been reading "Near Death Experiences."

    
    

20. All expert witnesses who testified in these proceedings agreed that the evidence accompanying the BA-52 clearly indicated M.H. was a danger to himself and should not have been released. Petitioner's and Respondent's experts disagreed only in whether Respondent's actions were in accordance with acceptable medical standards if he was told only what was contained in the narrative prepared by Millrose in exhibit 5.

    
    

21. In any case Respondent prepared no records other than those prepared by Millrose to justify overturning the recommendation for further evaluation on the BA-52. Those records are inadequate to justify M.H.'s release especially without face-to-face consultation with a psychiatrist or other health professional qualified to make such a determination.

    
    

22. The policy of the Hillsborough Community Health Center at this time was that during hours no psychiatrist was on duty at the crisis center patients who were Baker Acted were interviewed by one of the crisis counsellors who made an assessment based upon the BA-52 and the interview, then called the psychiatrist on call to relay the information obtained from the BA-52 and the

    interview to the doctor who had the final authority to determine whether the patient should be released forthwith or held until face-to-face interview with a qualified health professional was completed.

    
    

23. Once a law enforcement officer has presented an involuntary patient to the crisis center for evaluation, it is incumbent on the psychiatrist on duty (on call) to inquire into the facts giving rise to the reasons for the law enforcement officer to conclude the patient is a danger to himself or to others, and to fully inquire into the facts upon which the crisis counsellor concludes to the contrary. Regardless of what Respondent was told by Millrose it is clear that he did not make such inquiries.

    
    

24. In failing to fully inquire into the facts upon which Millrose concluded M.H. was not a danger to himself, Respondent delegated the determination that was his alone to make to Millrose and thereby failed to practice medicine with the requisite standard of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

25. In failing to document any facts upon which he determined that M.H. was not a danger to himself despite the information contained in the BA-52 and in failing to document reasons for concluded that M.H. suffered from an antisocial personality disorder, Respondent failed to keep medical records justifying the actions taken.

    
    

26. Despite the practice at the crisis center to the contrary, Rule 10E- 5.47, Florida Administrative Code, which was in effect on October 2, 1986 and Section 493.463, Florida Statutes (1985), provides that a person for whom an involuntary examination has been initiated by filing a BA-52 shall not be released by the receiving facility or its contractor without the documented approval of a person who is qualified under the provisions of this chapter to initiate an involuntary examination, i.e., a physician, psychologist licensed pursuant to Chapter 490, psychiatric nurse or clinical worker. The practice of releasing involuntary Baker Acted clients after a telephone report to the psychiatrist conflicts with the intent of this section of the statutes.

    However, it was the practice at the Hillsborough County Mental Health Center for intake counsellors to evaluate patients brought in during evening hours when no psychiatrist was on duty, telephone the on-call psychiatrist and apprise him of the information contained in the BA-52 and of the counsellor's evaluation of the patient, at which time the psychiatrist would order the patient held for further evaluation or released.

    
    

27. Respondent's expert witnesses, who opined that Respondent did not fail to practice medicine with the requisite standards of care, all based their opinions on hypothetical questions which assumed that Respondent was not made aware of the suicide notes; was not aware of the epitaph found with the suicide notes; was not aware that M.H. had previously received mental health counselling when his girlfriend committed suicide a few years ago; was not aware that M.H. had not eaten or bathed for a week; was not aware patient had stated death was the answer; and was not aware M.H. was in possession of a article entitled "Near Death Experiences", when apprehended; but was told that M.H.'s main concern was having little money, however he had been offered a job and possibly a place to stay by the driver of the wrecker who had picked up his truck; that M.H. appeared relieved when told he could find a room for the night at the Salvation Army; that M.H. did not appear to be a danger to himself, was in good spirits,

    his mental status was within normal limits, he was cooperative, and his memory and judgment was intact; and that M.H. denied any present intent to commit suicide.

    
    

28. In answer to the question regarding his general recollection of the contents of the telephone call between Millrose and Respondent on October 2, 1986, Respondent testified that he was told that the BA-52 stated M.H. had been trying to hook up a hose to his exhaust, that patient had expressed feeling suicidal; that after being picked up by the police he (M.H.) was with the driver of the wrecker who offered him a job and possibly a place to stay; that the patient appeared properly attired and neat in appearance; that he did not present any psychiatric symptoms; that patient had money for a overnight stay in a motel and was now looking forward to obtaining a job; and also that patient had a supportive girlfriend in the environment. According to Respondent, Millrose concluded M.H. should be given a chance to go ahead, and made this recommendation to Respondent following a diagnosis of adjustment disorder with depressed moods. In this regard it is noted that M.H.'s girlfriend was in South Dakota and could hardly provide support. No explanation was offered for the failure of Millrose or Respondent to resolve the conflict in the statement M.H. gave to Millrose that he spent last night in a motel and M.H.'s statement to the deputy sheriff that he hadn't eaten or bathed in one week.

    
    

29. All expert witnesses concurred that the narrative contained in the BA-

    52 supporting the officer's conclusions that M.H. was a danger to himself, fully supported this conclusion and described an individual with a very high suicide potential, i.e., a highly lethal patient.

    
    

30. Millrose acknowledged that he would have considered the suicide notes significant information to pass on to the psychiatrist before the patient was ordered released, but Respondent denies ever being made aware of the suicide notes or of any of the information contained in the BA-52 narrative indicating the lethality of M.H.'s actions prior to and after he was picked up by the deputy sheriff and brought to the crisis center. As noted above, Respondent's testimony in this regard is not credible.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

32. Respondent is here charged with violation of Sections 458.331(1)(n) and (t), Florida Statutes (1985) which provide the following acts constitute grounds for which a physician's license may be disciplined. These sections state in pertinent part:

    
    

    (n) Failing to keep written 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.

    
    

33. In these proceedings in which Petitioner seeks to revoke, suspend, or otherwise discipline the license of Respondent as a medical doctor, the Petitioner has the burden to prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

34. The only medical records maintained to justify the order to release

    M.H. who had been brought involuntarily to the crisis center was the comments written by Millrose and, apparently, adopted by Respondent. These records fail to adequately cover the history of the patient as contained in the BA-52. The information contained in the BA-52 was more than adequate to justify holding

    M.H. at least until the physician had a face-to-face meeting with the patient to evaluate the patients suicidal potential. These records are inadequate to justify M.H.'s release from the involuntary presentment for evaluation.

    
    

35. With respect to the disputed issue of what Respondent was told by Millrose during the telephonic report on M.H., Millrose understandably did not remember the specifics of a conversation that occurred more than four years ago and testified as to what he would normally report to the psychiatrist in such a telephone call.

    
    

36. Respondent, on the other hand, testified in specific detail that he recalled being told all of the facts from which it would be reasonable to release M.H. and was told none of those facts strongly indicating M.H. to be a highly lethal suicidal candidate. This testimony is simply not credible. According to Respondent's testimony he didn't learn of M.H.'s suicide immediately following his release until more than one year later at which time he reviewed the file. Other evidence was that frequently several patients were discussed with the on-call psychiatrist at one telephone call and nobody testified this telephone call was in any wise unique or that it contained only the report involving M.H. or anything else to make this one call so unique that it would be remembered for a long time. There was evidence that October 2, 1986 was a busy night at the crisis center.

    
    

37. It is concluded that Respondent accepted the evaluation of Millrose without inquiring into the reasons Millrose determined the statements by M.H. during his interview were more credible than the facts recited in the BA-52 evaluation.

    
    

38. In many respects Respondent was the victim (as was M.H.) of a system of laxity which had become accepted at Hillsborough County Mental Health Center's Crisis Stabilization Unit, in which Baker Act patients were released without first having received a face-to-face evaluation by a physician or other person qualified to determine whether the patient was a danger to himself or others.

    
    

39. Nevertheless, this prevailing laxity is not a valid excuse for the psychiatrist to accept the evaluation by the crisis counsellor without a more than perfunctory inquiry into all of the contents of the BA-52 and the facts upon which a decision to overturn the BA-52 evaluation could appropriately be made. In this regard, 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.

RECOMMENDATION

It is recommended that Hussain be assessed an administrative fine of

$10,000.00 and placed on probation for two years under such terms and conditions as the Board of Medicine deems appropriate.

RECOMMENDED this 11th day of March, 1991, in Tallahassee, Leon County, Florida.

K. N. AYERS 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

Division of Administrative Hearings this 11th day of March, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4699

Proposed findings submitted by Petitioner are accepted except for:

10. The portion of the first sentence "including all of the above relevant observations which supported his opinion." The BA-52 narrative did not contain all of the facts referred to in proposed findings 8.

See HO #10. Although Deputy Burton briefed the "intake person" no evidence was presented that she passed any such additional information on to Millrose.

14. No evidence was presented that a Suicide Rating Scale was available to the crisis counsellors at the CSU. Certainly no such scale was used in this case.

37. M.H. was released from the CSU following a telephone call to Respondent who authorized the release of M.H.

Proposed findings submitted by Respondent are accepted except for:

6. Rejected in part. No credible evidence was presented regarding the scope of the annual survey of the CSU by HRS personnel.

29. Rejected in part. Millrose testified that while he does not recall specific details of his interview with M.H. some 5 years ago, he would normally read all of the information presented with the BA-52.

33. Rejected in part. Millrose did not recall the specific detail that the call regarding M.H. was combined with calls about other clients.

1. Rejected as fact. Accepted as testimony of Respondent.

   
   

2. Rejected insofar as inconsistent with HO #12. The summary prepared by Millrose was substantially relayed to Respondent during this telephone call.

3. Rejected.

   
   

4. Second sentence rejected.

41. Accepted only insofar as Millrose was convinced M.H. did not meet the criteria for involuntary commitment.

1. Rejected that this was common practice. Accepted that this practice was prevalent.

   
   

2. Rejected.

   
   

3. Rejected.

47. Second sentence rejected. The requirement for record keeping is that the records be adequate to justify the treatment given.

COPIES FURNISHED:

Mary B. Radkins, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Rodney W. Morgan, Esquire

Galloway Executive Center, Suite 110 3333 Henderson Boulevard

Tampa, Florida 33609

Dorothy Faircloth, Executive Director Florida Board of Medicine

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 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: 90-004699

Orders for Case No: 90-004699