STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATIONS, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5014

)

ARNOLD J. MOSS, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on January 8, 1992 in Ocala, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Susan E. Lindgard, Esquire

Department of Professional Regulation

1940 N. Monroe Street Tallahassee, Florida 32399-0750

FOR RESPONDENT: Louis Kwall, Esquire

Gross and Kwall, P.A.

133 North Ft. Harrison Avenue Clearwater, Florida 34615

STATEMENT OF THE ISSUE

The administrative complaint charged Respondent in Count I with violating Section 458.331(1)(t), F.S., 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, and in Count II with violating Section 458.331(1)(m), F.S., failure 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.

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Arthur Osberg, M.D., Alicia Ables, R.N., and Jack Kareff, M.D., who was accepted as an expert in emergency room medicine. Petitioner had six exhibits marked. P-2 was not offered in evidence. P-6 was not admitted in evidence. The remainder of Petitioner's exhibits were admitted in evidence.

Respondent testified on his own behalf and offered three exhibits.

Respondent's exhibits, except for R-3, were admitted in evidence.

A transcript was filed in due course. Filing of proposed recommended orders was delayed due to Respondent's intervening "Renewed Motion to Strike and Motion for Extension of Time to File Recommended Findings of Fact", the motion to strike of which was denied. All timely-filed proposed findings of facts have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. At all times material, Respondent was a licensed medical physician in the State of Florida, having been issued license number ME004552.

   
   

2. On October 24, 1988, Patient #1, a 67 year old female, presented by wheelchair at the Physicians Referral Center (PRC) emergency room of the Marion Community Hospital in Ocala, Florida. Respondent was on duty there at that time.

   
   

3. Patient #1, arrived at the emergency room at approximately 1:50 a.m. complaining of gas, no bowel movements for three days, feeling weak, and a highly elevated blood sugar of 412 as of 5:00 p.m. the evening before. Patient #1 was accompanied by her husband, who provided some of the foregoing information.

   
   

4. Alicia Ables, R.N., attended Patient #1 when she arrived, took her vital signs which appeared to be within normal limits, and noted in the patient medical records, at the bottom of the nurse's notes, that the patient had heart problems, diabetes, kidney problems, and was taking medications. The nurse attached to the patient's medical records a list of the patient's current medications which had been provided by the husband. These medications included Isordil, Trental, Ascriptin, Lasix, Lanoxin, Depyridamole, Capoten, Riopan Plus, Mylicon 800, Pilocarpine eye drops, Tylenol and Humulin N-100, 30 units in the morning and 6 units in the evening. Humulin N-100 is a low level prescription for insulin diabetic maintenance. Mylicon is an anti-gas preparation.

   
   

5. The foregoing history was on the patient chart when Respondent saw the patient a few minutes later.

   
   

6. Respondent saw the patient at approximately 2:10 a.m. At that time, only the patient, her husband, and Respondent were present in the examining room. No nurse was present in the examining room with them, but Ms. Ables testified that the absence of a nurse during a rectal examination of a female patient occurred occasionally if not regularly at PRC. Nurse Ables was not present in the examination room at the time of the examination and is without knowledge of the extent of Respondent's examination of Patient #1.

   
   

7. The patient, who is now deceased, did not testify. The patient's husband did not testify. The only person who was present in the examining room on October 24, 1988 who did testify was Respondent, and his testimony is unrefuted that he performed a routine examination of the patient's chest, abdomen, and skin, that he also performed a rectal examination during which he found the patient's rectal vault "empty," and that he concluded that there was no fecal impaction but some retention of gas. He concluded that a soap suds enema was not warranted, given the patient's condition. He stated that despite believing that the patient had some retention of gas, he considered her to be "fixated" in her mind on the gas problem.

8. When the Respondent examined the patient on October 24, 1988, he contemporaneously noted on her chart that her chief complaint was accumulation of gas, that she wanted a soap suds enema, and that she had spoken earlier with Dr. Sunkavalli, who had referred her to the emergency room. Dr. Sunkavalli was the patient's primary treating physician.

   
   

9. Respondent also noted on the chart at 2:25 a.m. on October 24, 1988 that Dr. Sunkavalli would follow the patient as an outpatient. He also wrote down that he diagnosed her as having "gas retention fixation." He ordered Mylicon 80 to be administered to her. She was not given a soap suds enema, was not admitted to the hospital, and was not transferred to another hospital. Respondent did not order any laboratory tests or x-rays.

   
   

10. Administration of the Mylicon 80 was noted on the patient's chart by a nurse other than Ms. Ables at 2:40 a.m. That nurse also noted on the patient records that Patient #1 was discharged home at 3:00 a.m., in stable condition.

    
    

11. None of the typically observable symptoms of ketoacidosis in the patient were observed or noted by Respondent or by Ms. Ables while the patient was at PRC.

    
    

12. Patient #1 was admitted to Citrus Memorial Hospital six and one-half hours after being discharged from Respondent's care. Three hours after her admission to Citrus Memorial, the patient died. After autopsy, the principal pathologic diagnosis and cause of death was listed as "marked three vessel artherosclerosis with large, old myocardial infarction." The gross summary reads, "Death of this 67-year old, white female was due to marked three vessel arteriosclerosis secondary to arteriosclerotic heart disease. A contributing factor was diabetic acidosis." There was also evidence of a gastro-intestinal bleed.

    
    

13. When Patient #1's death became an issue the next day, Respondent was unable to recall the patient or his examination and treatment of her. The Respondent reviewed the emergency room records and spoke with Ms. Ables in order to recall the care he had rendered to the patient.

    
    

14. Respondent prepared an addendum to the patient's medical records three days after he actually examined Patient #1. Only at that late date, October 27, 1988, did Respondent document a history, document that he had made a physical examination, and document that he had had a telephone consultation with Dr. Sunkavalli on October 24, 1988 while the patient was in the emergency room, and further document that he and Dr. Sunkavalli had concurred at that time in treating the patient with Mylicon.

    
    

15. Adding the addendum was deemed appropriate under the circumstances by Marion Community Hospital personnel, and Petitioner's expert did not specifically find that adding it was inappropriate or improper.

    
    

16. Respondent had not documented the telephone consultation with Dr. Sunkavalli or a history or physical examination of Patient #1 at the time he examined her on October 24, 1988. Neither on the date of examination/treatment nor in his later addendum did Respondent ever document that he had performed a rectal examination on Patient #1.

    
    

17. In his testimony at formal hearing, Respondent explained and supplemented his October 27, 1988 addendum notation of a telephone conversation with Dr. Sunkavalli on October 24, 1988 to add that Dr. Sunkavalli was aware at

    that time of Patient #1's elevated blood sugar reading the previous evening but, hearing Respondent's examination results, Dr. Sunkavalli had recommended no further tests and had said nothing to disagree with Respondent's assessment and treatment of the patient and that while Respondent had not deferred to Dr.

    Sunkavalli, he had relied on the consultation. Dr. Sunkavalli was not called to corroborate or refute Respondent's testimony on this score.

    
    

18. Jack Kareff, M.D., was accepted as an expert in emergency room medicine. He opined that, under similar circumstances, and particularly with an elderly diabetic patient, the minimal acceptable level of care, skill, and treatment of a reasonably prudent similar physician would have been to examine Patient #1's abdomen, perform a rectal examination, and perform a dipstick of urine for both glucose (sugar) and acetone. Dr. Kareff also expressed the opinion that the rectal examination should have been made to eliminate the chance of fecal impaction and that such rectal examination should have included treating a sample of fecal matter found in the rectal vault with a paper reagent to determine if there were occult blood in the patient's stool so as to rule out gastro-intestinal bleeding. Dr. Kareff testified that there is sufficient fecal matter for such a test in the rectal vault 99% of the time. He conceded that an enema might not be warranted and could be potentially traumatic, given such a patient's condition. Dr. Kareff indicated that the urine dipstick test should be done to ensure that the patient was not headed for diabetic

    ketoacidosis. The urine dipstick test proposed as a minimal requirement by Dr. Kareff was also described by him as actually "problematic" in that he admitted that such a dipstick test can "fool you" occasionally because not enough aceto acetate is formed to tell the patient's true condition. According to Dr.

    Kareff, ketoacidosis may take anywhere from 2 hours to several weeks to develop in a diabetic. On the foregoing information, the efficacy of a dipstick test was not established.

    
    

19. Because he believed that Respondent had not done the abdominal examination, rectal examination with stool testing, and urine dipstick test, Dr. Kareff further opined that Respondent had fallen below the acceptable level of care, skill and treatment as recognized by a reasonably prudent similar physician under similar conditions and circumstances.

    
    

20. In forming his foregoing opinions, Dr. Kareff had not had the benefit of hearing Respondent's unrefuted testimony that Respondent had, in fact, performed a rectal examination, determined that there was no fecal impaction, and found the patient's rectal vault empty. Accordingly, the record is devoid of Dr. Kareff's opinion, if any, as to what should have or could have been done as regards a fecal test when the patient's rectal vault is "empty."

    
    

21. Dr. Kareff's opinions assumed and relied on some material contrary to the facts established in this proceeding. Dr. Kareff's opinion also relied upon much uncorroborated hearsay evidence, such as the agency's investigative report. These reliances and assumptions on Dr. Kareff's part detract from the weight and credibility of his opinion on minimal professional treatment, and therefore that opinion is not persuasive.

    
    

22. The parties have stipulated that Respondent's medical records were inadequate. This stipulation and Dr. Kareff's opinion that Respondent failed to keep written medical records justifying the course of treatment are accepted.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

24. Sections 458.331(1)(t) and (m) provide, in pertinent part, as follows: Grounds for disciplinary action; action by the board or department.--

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection

    2. 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) . . . 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. . . .

       
       

25. There is clear and convincing evidence to support a conclusion of law that Respondent's medical records were woefully inadequate. He has admitted/stipulated as much, and expert testimony confirms this admission/stipulation. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

26. However, this record is insufficient to establish a violation of the standard of care upon the same "clear and convincing evidence" test. Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit, and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. See, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988); Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983). While it may be suspicious that Respondent never, even on his second try with the October 27, 1988 addendum, recorded that he had performed a rectal examination of the patient and that there was no fecal impaction, there remains his unrefuted sworn testimony that he did the examination and the vault was "empty." Petitioner's expert did not address whether Respondent could have or should have proceeded to obtain fecal matter for reagent testing despite determining the patient's rectal vault was "empty" of fecal matter, and he did not fully explicate the benefit, if any, of doing a urine dipstick test. The Petitioner's expert's ultimate opinion with regard to Respondent's treatment was also flawed by considering facts not in evidence and material contrary to the facts in evidence.

    
    

27. Therefore, in assessing a penalty, only Respondent's records violation may be considered. Medical records errors and omissions are more than "sloppy bookkeeping" or "typographical errors". They are essential to adequate treatment and care of patients. This Respondent went so far as to add an addendum, but his amplification of the original records by addendum was still

inadequate. Therefore, having considered the respective proposals of the parties and the applicable rules, it appears that a reprimand, fine, and some continuing medical records education is appropriate.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order:

1. Finding that Respondent is not guilty of violating Section 458.33(1)(t), F.S. and dismissing Count I of the Administrative Complaint;

   
   

2. Finding that Respondent is guilty under Count II of the Administrative Complaint of violating Section 458.331(1)(m), F.S., failure 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; and

   
   

3. Reprimanding Respondent for the single violation, fining him $1000.00, and requiring him to complete one basic level continuing medical education course in record keeping responsibilities and techniques within one year of the entry of the final order.

DONE and ENTERED this 24th day of April, 1992, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 24th day of April, 1992.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5014

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

1-12 Except as to subordinate, unnecessary or cumulative material, accepted.

13-14 Rejected because it is largely subordinate to the facts as found in FOF 18-21.

15 Rejected as a conclusion of law but also for the reasons set forth in FOF 18-19.

Respondent's PFOF:

1 Covered in the preliminary statement, the FOF, or the Conclusions of

Law.

1. Accepted as covered in the rulings on Petitioner's PFOF.

2. Rejected as legal argument.

4-6, 20-21, 37-38, 44, 46-48 Accepted but subordinate to the facts as

found.

7-8 Covered in FOF 3-4.

9 Accepted with time adjustment per greater weight of the evidence.

10-11, 13-18, 22-24, 39-40, 45, 49-63, 66 Except as to subordinate, unnecessary, or cumulative material, accepted.

12 Accepted, except as to characterization "necessary".

19 Covered in FOF 17.

25 Covered in FOF 8.

26-28 Covered in FOF 18-21.

41-42 Covered in FOF 18-21.

29, 31 Rejected as irrelevant.

30 Covered in FOF 15.

32-36, 67 These proposals are irrelevant, out of context, or misleading as stated, since Dr. Kareff did not specifically advocate a soap suds enema and Respondent did not feel it was warranted. To the extent necessary, the subject matter is covered in FOF 7-9, 14-17, and 18-22.

43 Covered in FOF 7.

64-65, 68 Rejected as unnecessary and/or unproven.

COPIES FURNIISHED:

Louis Kwall, Esquire Gross and Kwall, P.A.

133 North Ft. Harrison Avenue Clearwater, Florida 34615

Susan E. Lindgard, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Dorothy Faircloth Executive Director Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Suite 60

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 consult with 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: 90-005014

Orders for Case No: 90-005014