STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4808

)

ERIC GROSCH, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on November 6, 1990, in Clearwater, Florida, before Joyous D. Parrish, a designated Hearing 0fficer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Bruce D. Lamb

Chief Trial Attorney

Department of Professional Regulation 730 South Sterling Street, Suite 201

Tampa, Florida 33609

For Respondent: William D. Hahn

SHEAR, NEWMAN, HAHN & ROSENKRANZ

201 D. Kennedy Boulevard, Suite 1000 Post Office Box 2378

Tampa, Florida 33601 STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violations alleged in the amended administrative complaint dated October 19, 1990; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on June 4, 1990 when the Department of Professional Regulation (Department) filed an administrative complaint against the Respondent, Eric Grosch, M.D., and alleged that Respondent had violated provisions of Chapters 458, Florida Statutes. On June 7, 1990, the Respondent executed an election of rights which disputed the allegations of fact contained in the administrative complaint and requested a hearing pursuant to Section

1. (1), Florida Statutes.

   The case was forwarded to the Division of administrative Hearings for formal proceedings on August 3, 1990. On October 19, 1990, the Department filed a motion to amend which was accepted by the Respondent on November 5, 1990. The amended administrative complaint alleged that the Respondent had violated Section 458.331(1)(t), Florida Statutes, by practicing medicine below the acceptable level of care, skill, and treatment which is recognized by a reasonably prudent similar physician under similar conditions and circumstances; that he had violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient; that he had violated Section 458.331(1)(h), Florida Statutes, by making or filing a report which he knew was false; and that he had violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or false representations in or related to the practice of medicine. All of the foregoing alleged violations stemmed from Respondent's treatment of one patient, hereinafter referred to as "Patient 1." All records related to the care and treatment of Patient 1 are confidential and have been marked in this record accordingly.

   
   

   At the hearing, the Department presented the testimony of the following witnesses: Eric Grosch; and Alan Braunstein, M.D., board certified in internal medicine. The Department's exhibits numbered 1 and 2 were admitted into evidence. The Respondent testified in his own behalf and presented the following witnesses: Henry Marriot, M.D., a clinical professor of medicine (cardiology); Edward Willey, M.D., a pathologist; and Donald Pell, M.D., board certified in internal medicine. Respondent's exhibits numbered 1 through 5 were admitted into evidence.

   
   

   The transcript of the proceedings was filed with the Division of Administrative Hearings on November 15, 1990. The parties submitted recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

   
   

   FINDINGS OF FACT

   
   

   Based upon the testimony of the witnesses and the evidence received at the hearing, the following findings of fact are made:

   
   

   1. The Department is the state agency authorized to regulate the practice of medicine within the State of Florida.

      
      

   2. At all times material to the allegations of the amended administrative complaint, the Respondent is and has been a licensed physician in the State of Florida having been is sued license number ME 0050726.

      
      

   3. Between December 20, 1988 and December 22, 1988, Respondent was the treating physician for Patient 1.

      
      

   4. Patient 1 was a seventy-four year old female who was first examined by Respondent on December 20, 1988, at the clinic where he was then employed. At that time, Respondent determined that Patient 1 was suffering from exogenous thyroid toxicosis and atrial fibrillation which necessitated her hospitalization. This thyroid condition was caused by an overdose of thyroid medication for which Respondent was not responsible.

      
      

   5. Respondent made arrangements for Patient 1 to be admitted at Humana Hospital-Northside where another physician, Dr. Gonis, was to admit her.

   6. For reasons unknown, Patient 1 went to Humana Hospital-St. Petersburg where, after some confusion, she was admitted around 5:00 p.m., December 20, 1988. Patient 1 was placed in the critical care unit. Standing orders for that facility required that Patient 1 have a chest x-ray. For reasons unknown, this was not done at the time of her admission.

      
      

   7. At approximately 11:54 p.m. that night Patient 1 suffered respiratory arrest (the first arrest). Following efforts by the emergency room physician on call, Patient 1 was resuscitated from this code. At that time she was intubated and placed on a ventilator.

      
      

   8. Subsequent to the first arrest, Patient 1 was examined by a cardiologist, Dr. Fishman, who concluded that this patient was suffering from acute pulmonary edema (which might have been detectible from an x-ray), congestive heart failure, and was mildly hypotensive.

      
      

   9. Dr. Fishman prescribed a Swan Ganz catheter and directed that Patient 1 be closely monitored. Further, Dr. Fishman ordered Inderal, a beta blocker, to be administered to this patient. Additionally, Patient 1 was to receive a diuretic. Theoretically, the diuretic would have assisted Patient 1's body to eliminate fluids.

      
      

   10. Inderal, while not strictly contraindicated for patients in similar circumstances to Patient 1, must be closely monitored under such circumstances since a patient's symptoms may appear to be improving when the patient's condition is actually deteriorating.

       
       

   11. Respondent learned of Patient 1's first arrest during the morning of December 21, 1988. He was contacted and advised that Patient 1 was at the hospital (where he had privileges) and he made arrangements to visit her later that evening. In fact, the hospital listed Respondent as Patient 1's treating physician.

       
       

   12. During the afternoon of December 21, 1988, Dr. Fishman examined Patient 1 again and determined that the tube and catheter could be removed. Dr. Fishman left handwritten notes documenting the treatment and diagnosis he had provided regarding Patient 1.

       
       

   13. Later that evening, Respondent reviewed the notes left by Dr. Fishman, accepted the course of treatment which had been ordered, and made a physical examination of Patient 1. From appearances, Patient 1 seemed to be recovering from the first arrest.

       
       

   14. Following his examination of Patient 1, Respondent drafted a progress note that commented that Patient 1's breath sounds were normal and provided: "no adventitious sounds." Respondent did not address other aspects of the examination he performed. If he checked Patient 1's ankles for swelling or her abdomen for evidences of edema, those items were not addressed in his progress

       note. Since he was aware of Dr. Fishman's diagnosis, a review of those symptoms would have been appropriate.

       
       

   15. During the early morning hours of December 22, 1988, Respondent was telephoned and advised that Patient 1 was experiencing great difficulty breathing. When advised of her condition, Respondent directed that Patient 1 receive Lasix (a diuretic) which was administered at approximately 4:00 a.m.

   16. Next, Respondent went to the hospital and determined that Patient 1 would have to be intubated again. At that time, Respondent ordered blood gas studies and an x-ray which confirmed that Patient 1 was suffering pulmonary edema.

       
       

   17. When Respondent attempted to perform a laryngoscopic examination, Patient 1 became combative and resisted the procedure. Apparently, Patient 1 had experienced some discomfort during the first intubation so that she did not want to repeat the procedure. When a nurse recommended Valium, Respondent directed that it be administered so that Patient 1 would relax and allow the intubation.

       
       

   18. Unfortunately, Patient 1 went into a second arrest before Respondent could complete the intubation. Consequently, the procedure became critical since Patient 1's condition deteriorated very rapidly.

       
       

   19. Despite continued efforts, Respondent was unable to resuscitate Patient 1. She was pronounced dead at approximately 5:36 a.m.

       
       

   20. Subsequently, Respondent submitted a discharge summary which provided: "I waited a few moments for Valium to take effect, and before I could intubate the patient, cardiopulmonary arrest developed, and it became an emergent procedure."

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   22. The Department bears the burden of proving the allegations of the administrative complaint by clear and convincing evidence. Ferris v. Turlinton, 510 So.2d 292 (Fla. 1987).

       
       

   23. Section 458.331(1), Florida Statues, provides that a physician may be disciplined for the commission of any of the violations described in that subsection. Pertinent to this case are the following subsections:

       
       

       (h) Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state of federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensed physician.

       * * *

       (k) Making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine.

       * * *

       (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 at level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar

       conditions and circumstances. . . As used in this paragraph, "gross 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," shall not be construed so as to require more than one instance, event, or act. .

       
       

   24. In this case the Department has not established the allegations of the amended administrative complaint by clear and convincing evidence. The Respondent acted as a reasonably prudent similar physician under the circumstances of this case. According to Drs. Marriot and Pell, both of whom are familiar with the standard of care for this type of patient, the use of Inderal is not strictly contraindicated. While its use muse be closely monitored, presumably that was the case in this instance since the patient was in the critical care unit. Moreover, throughout her hospitalization she was monitored by the standard CCU devices.

       
       

   25. To have altered Patient 1's treatment Respondent would have had to counter the orders of Dr. Fishman, the patient's cardiologist. Since the patient's progress seemed to be improving, that course would hardly seem appropriate. In realit, the patient was not improving but was in some "compensated" state. After the fact, it is clear that her condition was actually deteriorating and that the second arrest may have been inevitable given the degree of blockages in her heart revealed by the subsequent autopsy. Respondent can hardly be accountable for information which was not available to him and which, arguably, only hindsight could offer.

       
       

   26. With regard to the alleged inadequacy of the progress notes or written records prepared by Respondent, the Department has failed to establish by clear and convincing evidence that those works were either intentionally false, misrepresentations or inadequate by any standard. The record in this case establishes that Respondent prepared his written notes and summary in accordance with the recognized standard of the medical community in which he practiced. Moreover, the records drafted accurately detailed the patient's condition. Had Respondent noted more it might have been better, but, the issue remains: did he detail enough? The answer must be in the affirmative. Taken as a whole, Respondent's notes and those of Dr. Fishman, would have put any physician on notice of this patient's prior history, treatment, code experience, and follow up. Tragically, it is unlikely any physician could have done more than Respondent under the circumstances.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That the Board of Medicine enter a final order dismissing the allegations against this Respondent.

DONE and ENTERED this 30th day of January, 1991, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 30th day of January, 1991.

APPENDIX TO CASE NO. 90-4808

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1, 2, 3, 4, 6, 7, 8, 11, 12, 13, 15, and 18 are accepted.

1. With regard to paragraph 5, it is accepted that the Respondent determined that the patient would have to be hospitalized as found in the findings of fact. Whether "hyperthroidism" equates to the toxic state from being over medicated for her thyroid condition, I am unable to conclude. In substance, the parties have agreed that this patient was "overdosed" for a preexisting thyroid condition for which this Respondent was not responsible.

2. With regard to paragraph 9, it is accepted that Dr. Fishman ordered the catheter and Inderal for this patient; the qualification for the Inderal is rejected as irrelevant.

3. With regard to paragraph 10, it is accepted that the Respondent first saw this patient at the hospital as stated. His first examination of the patient was as previously described at the clinic.

4. The first sentence of Paragraph 14 is rejected as contrary to the weight of the evidence or irrelevant to the allegations of his case. The Department has not suggested Respondent's efforts to resuscitate this patient were inadequate or below standards. The second sentence of Paragraph 14 is accepted.

5. Paragraph 16 is accepted in that it accurately describes the appropriate examination which should have been made. Respondent testified those items were checked in addition to the breath sounds and chest noises. Respondent noted "no adventious sounds" to reflect his impression. This note, while arguably could have been more descriptive, has been deemed sufficient based upon the entirety of this record and the testimony of Drs. Pell and Marriot.

6. Paragraph 17 is rejected as contrary to the weight of the evidence or incomplete. Taken as a whole, this patient's records accurately described her symptoms and condition.

7. With regard to paragraph 19, it is accepted that the Respondent did begin a laryngoscopic examination of the patient prior to the administration of Valium--to the extent that is how the Department means "intubation begun," the sequence is accurate. It has been determined that the intubation was not performed, due to the patient's combative posture, until after the Valium was given. Unfortunately, by then the patient had gone into her second code.

8. With regard to paragraph 20, see the comment to paragraph 19 above. It should further be noted that whether the Respondent would have intubated the patient without the administration of Valium is purely speculative.

9. Paragraphs 20 (the second one numbered 20), 21, and 22 are rejected as contrary to the weight of the credible evidence.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. With the deletion of the word "poisoned"--which is rejected as argumentative--Paragraph 1 is accepted.

2. Paragraph 2 is accepted to the word "care" in the second line. The balance of the paragraph is rejected as `irrelevant, argumentative, or comment.

3. Paragraph 3 is rejected as argumentative or irrelevant.

4. The first sentence of Paragraph 4 is accepted, the remainder of the paragraph is rejected as irrelevant, argument, or comment.

5. The first five sentences and the last sentence of paragraph

   5 are accepted; the remainder is rejected as irrelevant.

6. Paragraph 6 is accepted with the addition of the fact that this was the first time Respondent saw the patient at the hospital--he had previously examined her at the clinic.

7. Paragraph 7 is accepted.

8. The first two sentences of paragraph 8 are accepted, the remainder of the paragraph is rejected as irrelevant, argument, or unnecessary to the resolution of the issues of this case.

9. Paragraphs 9 and 10 are rejected as comment or argument not findings of fact.

10. Paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25,

26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, and 37 are rejected as repetitive, argumentative, recitation of testimony, or irrelevant. Respondent's effort to tailor the facts by reciting testimony related to each issue constitutes argument and comment inappropriate for findings of fact. It is accepted that Respondent's care of Patient 1 was within the standard a reasonably prudent similar physician under similar circumstances would provide. Moreover, Respondent's record keeping was acceptable given the totality of the records maintained for this patient. In reaching these conclusions the testimony of Drs. Pell and Marriot has been afforded weight over that rendered by Dr.

Braunstein where such testimonies might have conflicted.

COPIES FURNISHED:

Bruce D. Lamb

Chief Trial Attorney Department of Professional Regulation

730 South Sterling Street Suite 201

Tampa, Florida 33609

William D. Hahn

SHEAR, NEWMAN, HAHN & ROSENKRANZ, P.A.

201 D. Kennedy Boulevard, Suite 1000 Post Office Box 2378

Tampa, Florida 33601

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

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 or 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: 90-004808

Orders for Case No: 90-004808