STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

) CASE NO. 90-5190

vs. ) CASE NO. 90-6328

)

PATRICK J. MCCARTHY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on February 4, 1992. After various agreed extensions, see Rule 60Q-2.032, Florida Administrative Code, the parties filed proposed recommended orders on June 17 and 18, 1992. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Richard A. Grumberg, Esquire

1940 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Gerald B. Sternstein, Esquire

Monroe-Park Tower, Suite 1010

101 North Monroe Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaints?

PRELIMINARY STATEMENT

By administrative complaint dated July 3, 1990, petitioner alleged that respondent, a physician licensed in Florida, "[o]n or about November 1, 1984 . .

. [a]t about 6:36 a.m. . . . ordered intravenous pain medication, Demerol 25 mg. and Phenergen 25 mg." for C.H., after denying her request for an epidural anesthetic while she was in labor; that at "about 6:50" C.H. was taken to the delivery room, fully dilated and pushing; that respondent, at "about 6:58 a.m. .

. . applied a vacuum extractor . . . [and at] about 7:20 a.m. . . . applied low forceps, over a midline episiotomy, . . . delivered the infant's head [, then, encountering severe shoulder dystocia,] . . . delivered the infant by using what he stated was the Wood's maneuver, to twist the baby's head to turn the shoulders, and applied fundal pressure"; but that the "correct method for the Wood's maneuver calls for pressure directly on the infant's shoulders, not the

head"; that C.H. received a pudendal block even though an "epidural block, rather than a pudendal block, would more effectively relieve the mid-pelvic pain associated with shoulder dystocia . . . facilitating maneuvers"; that "the infant developed brachial plexus palsy"; that respondent's records "failed to include a delivery note, even though it was a complicated delivery with a suspected injury to the infant . . . , do not reveal a rationale for the operative intervention to deliver the infant" and did not indicate whether C.H. "was catheterized to help avoid bladder injury and provide more room in the pelvis."

The administrative complaint alleges that 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 . . . by inappropriately twisting the infant's head

. . . [and so] violated Section 458.331(1)(t), Florida Statutes, 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." Finally, the July 3, 1990, administrative complaint alleged that respondent violated Section 458.331(1)(m), Florida Statutes by "failing to keep written medical records justifying the course of treatment . . . including . . . patient histories; examination results; test results; records of drugs prescribed; dispensed or administered; and reports of consultations and hospitalizations."

In a second administrative complaint, dated September 6, 1990, petitioner alleged violations of the same statutory provisions in connection with a delivery on or about October 8, 1984, specifically that M.B., who had been admitted noon-time that day, began labor spontaneously at the hospital about four o'clock "and at about 4:43 p.m., [r]espondent artificially ruptured [M.B.'s] membrane"; that respondent "[a]t or about 5:33 p.m. administered

an epidural of Marcaine with epinephrine"; that M.B., about quarter of ten "began vomiting, and at or about 10:30 p.m. . . . was fully dilated and taken to the delivery room with continued nausea"; that, when a fetal monitor "recorded a low heart rate of seventy (70) . . . [r]espondent's records fail to indicate whether [M.B.] had received recent epidural medication or experienced maternal hypotension"; that respondent "used a vacuum extractor to deliver the head, but the shoulders were delayed"; that "[a]pproximately two to three minutes subsequent to the delivery of the baby's head, respondent delivered the baby's shoulders with moderate downward pressure on the baby's head while a nurse pushed downward on the fundus of the uterus"; that the "baby was delivered with the cord around the right shoulder"; that "the baby had an Apgar score of five

1. at birth and eight (8) in five minutes, and . . . an obvious right brachial plexus palsy"; that respondent's "records . . . fail to note if . . . [B. M.'s] bladder was catheterized"; that fundal "pressure is an inappropriate maneuver to overcome shoulder dystocia"; that respondent stated in a deposition "that a nurse provided suprapubic pressure, in addition to fundal pressure," but "that respondent's medical records fail to record the use of suprapubic pressure."

   
   

   FINDINGS OF FACT

   
   

   1. Respondent Patrick J. McCarthy has practiced obstetrics and gynecology in Tallahassee, Florida, since 1976. He "qualified as a doctor in 1958" (T.215) at the University of Wales, did residencies in Canada, including three years in obstetrics and gynecology at McGill University, and practiced in New Hampshire, before coming to Florida, where he is duly licensed to practice.

   2. Board certified here and abroad, Dr. McCarthy now delivers 200 to 250 babies a year. Over his career, he estimates, he has delivered 7,000 to 8,000 infants. T.225. In 1981, he "recertified in obstetrics and gynecology in the American boards." T.236.

      
      

      C.H.

      
      

   3. On November 1, 1984, Dr. McCarthy admitted C.H., a 23-year old mother of one whom he had been seeing in his office during her second pregnancy. Labor had begun shortly after midnight, about five hours before C.H. arrived at the hospital.

      
      

   4. At quarter past six that morning, when C.H.'s cervix had dilated to a diameter of seven or eight centimeters, respondent did not accede to C.H.'s request for epidural anesthesia.

      
      

   5. At 6:36 a.m., however, C.H. received Demerol and Phenergen, medicines Dr. McCarthy ordered, and later got local anesthesia, a "pudendal block" designed to numb the area in which an episiotomy was eventually performed. Four minutes later C.H. was taken to the delivery room.

      
      

   6. C.H.'s cervix was fully dilated by ten of seven. At 6:58 a.m., Dr. McCarthy applied a vacuum extractor, but he did not succeed in delivering the baby's head until 7:20, after he had resorted to low forceps. His head out, the baby's shoulder lodged behind his mother's pubic symphysis.

      
      

   7. All ten pounds and seven ounces were stuck. Once the head is delivered, the rest of the baby should be delivered within five or six minutes to avoid the risk of damaging or losing the child. The umbilical cord's function can be compromised if it is pinched between the baby and strictures in the birth canal.

      
      

   8. At this point, Dr. McCarthy performed what he called a Wood's maneuver. Wood's maneuver, also known as the corkscrew maneuver, was unquestionably acceptable practice at the time, if properly performed "by applying pressure on the back of the [baby's] shoulders." T.134.

      
      

   9. Currently the preferred initial response to shoulder dystocia is to bend and raise (if she is supine) the mother's legs to reposition the pubes. Named after a Dr. McRoberts, this approach was used in Tampa in 1984, but was apparently unknown to Dr. McCarthy at that time.

      
      

   10. In describing C.H.'s baby's birth, which took place at 7:23 on the morning of November 1, Dr. McCarthy wrote in the chart: "Marked shoulder dystocia -- shoulders rotated through 180o." Joint Exhibit No. 1. Later, asked about these events while under oath, he answered:

       
       

       1. I rotated the head and shoulders.

          Q. How did you do that?

          A. Thats called -- it's a thing called Wood's maneuver, where you are using -- you rotate the head so that the shoulders will follow it. The posterior shoulder then comes under the symphysis of the pubic. It's lower than the anterior. When you have that, then you have the baby up.

          Q. And in that process do you place a downward pull on the baby's head?

          A. No, you rotate.

          . . .

          Q. From the process of this delivery was there any injury to this baby?

          A. Yes, the baby had a brachial plexus palsy.

          Q. How did the brachial plexus palsy occur?

          A. Presumably when I turned the head, it stretched the nerves in the brachial plexus at the base of the neck.

          Q. That would have been when you turned the head in the last maneuver that you attempted or would that have been in the first maneuver when you are pulling down on the head?

          A. Usually when you turn the head.

          Q. In this case do you know when the injury occurred?

          A. Usually it happens when you turn the head. It's a twisting motion, because this is the greatest stretch motion.

          
          

          Petitioner's Exhibit No. 2, pp. 51-3. Dr. McCarthy's testimony at hearing that he did not turn the baby's head (except by turning the baby's shoulders) in performing what he called a Wood's maneuver has not been credited.

          
          

   11. Whether or not (as Dr. McCarthy assumed) the twisting caused the brachial plexus palsy with which the child is afflicted, rotating the baby's head "so that the shoulders w[ould] follow it" was a departure from minimally acceptable practice. On this point, every expert who testified was in agreement.

       
       

   12. The records do not indicate whether C.H. was catheterized before her delivery. Presumably she was not, but petitioner did not allege and the evidence did not show that she needed a urinary catheter.

       
       

   13. Petitioner did not establish any dereliction on respondent's part in his keeping of records on C.H. or her delivery, aside from the elliptic description he gave of his rotary manipulation.

       
       

       M.B.

       
       

   14. Before the day she was delivered, M.B. had been under the care of M.

       J. Moreton, M.D., who was apparently unavailable at twenty past eleven o'clock on the morning of October 9, 1984, when M.B., then the 28-year-old mother of one child, arrived at Tallahassee Memorial Regional Medical Center.

       
       

   15. Irregular contractions had begun earlier that morning, and persisted until that afternoon, when Dr. McCarthy, who had undertaken M.B.'s care, directed that she be given a drug "to get her into good labor." Joint Exhibit No. 2. The drug to induce regular contractions was administered at four o'clock. She received epidural anesthesia at intervals.

       
       

   16. Vomiting, begun at ten o'clock that night, a half hour before her cervix was fully dilated, interfered with M.B.'s ability to push. Sporadically, the fetal monitor indicated pulse rates as low as 70. Dr. McCarthy used a vacuum extractor to deliver the baby's head, and encountered shoulder dystocia.

   17. At hearing, Dr. McCarthy recounted his use of a procedure called Hibbald's maneuver, one of a number of accepted techniques for dealing with shoulder dystocia:

       
       

       . . . I told the nurse to apply fundal and suprapubic pressure and I grasp[ed] the head and pulled it down approximately a forty-five degree angle . . . I was applying moderate traction to the head and the baby delivered.

       
       

       T.258-9. Two or three minutes after the delivery of the head, M.B.'s baby was born at 10:47 p.m. on October 9, 1984.

       
       

   18. "The only unusual thing about the baby, apart from the brachial plexus palsy, was that there was a cord around the shoulder," (T.259) presumably the cause of the intermittently depressed fetal pulse rate. Dr. McCarthy acknowledged that he "could have used many maneuvers," (T.260) other than Hibbald's. He ascribed his exclusive use of Hibbald's maneuver to the shortness of the time it took to deliver the baby.

       
       

   19. At some point, reliance on a technique that is not succeeding, to the exclusion of others that might dislodge a baby without causing brachial plexus palsy, a known complication of shoulder dystocia, falls below minimally acceptable standards of practice.

       
       

   20. During the two- or three-minute interval between delivery of the baby's head and extrication of his shoulder, Dr. McCarthy "checked the baby to see if there was a cord around the neck," (T.261) and suctioned fluid from the baby's nostrils. The evidence did not clearly show how long he applied traction before the baby was delivered.

       
       

   21. An expert testifying for petitioner said that a patient with epidural anesthesia "in general is unable to void . . . and . . . the bladder can enlarge . . . and can interfere . . . [so that] it's good obstetrics, before performing a forceps or vacuum delivery to catheterize. . . ." T.55. But there was no testimony that failure to catheterize fell below minimally acceptable standards, nor any testimony to establish M.B.'s particular circumstances.

       
       

   22. The evidence established no deficiencies in respondent's recordkeeping with regard to M.B. or her delivery.

       
       

       CONCLUSIONS OF LAW

       
       

   23. Since DPR referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1992 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1992 Supp.).

       
       

   24. Section 458.331(2), Florida Statutes (1991), authorizes disciplinary action against licensed medical practitioners on grounds which include:

       
       

       (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. The board shall give great weight to the provisions of ***s.

       766.102 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. 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. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.

       
       

       Section 458.331(1), Florida Statutes (1991). (Underlining supplied.) The underlined portions of the foregoing provisions were not in effect in the fall of 1984, when what is now subsection (1)(m) was codified as subsection (1)(n).

       
       

   25. Statutes stating new grounds for revocation should not be given retroactive effect, Hector v. Department of Professional Regulation, 504 So.2d

       469 (Fla. 1st DCA 1987); Norman Curtis Lewis v. Criminal Justice Standards Commission, 462 So.2d 528 (Fla. 1st DCA 1985); Nechtman v. Saker, 271 So. 2d 26 (Fla. 3d DCA 1972), but the substantial restatement of an old ground in a new statute authorizes disciplinary action on the preexisting ground under the new statute. Drury v. Harding, 461 So.2d 104, 108 (Fla. 1984); Solloway v. Department of Professional Regulation, 421 So.2d 573 (3d DCA 1982) rev. den. 430 So.2d 452 (Fla. 1983).

       
       

   26. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

       391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save Central Florida, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 601 So.2d 245 (Fla. 1st DCA 1992). See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163

       (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,

       393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

       
       

   27. The proof failed to show clearly and convincingly that respondent violated the practice act in delivering M.B.'s baby. It was not established exactly how long he pulled before the baby's shoulder came free. The child's brachial plexus palsy might have been caused by events earlier in his descent.

       
       

   28. But petitioner clearly and convincingly established that the version of Wood's maneuver respondent employed in delivering C.H.'s baby amounted to a failure to practice medicine with that level of care, skill, and treatment recognized at the time by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

RECOMMENDATION

Although later adopted and, therefore, not determinative, see Willner v. Department of Professional Regulation, 563 So.2d 805 (Fla. 1st DCA 1990), Rule 21M-20.001(2)(t), Florida Administrative Code, specifies penalties for violating Section 458.331(1)(t), Florida Statutes (1991), ranging from two years' probation to license revocation, together with a fine of $250 to $5000, depending on aggravating and mitigating circumstances set out in Rule 21M- 20.001(3), Florida Administrative Code.

Upon consideration of the foregoing findings and conclusions, and the length of time that has elapsed since the birth of C.H.'s baby, it is

RECOMMENDED:

That the Board of Medicine place respondent on probation for a period of five (5) years, on condition that he attend a minimum of thirty (30) hours per year of category I continuing medical education courses, including, within the first ninety (90) days of probation, ten (10) hours of courses on how to manage shoulder dystocia; and on further condition that he perform 250 hours of community service under the auspices of the county health department, if needed, during each year he is on probation; provided, however, that the question of penalty be reopened, in the event respondent fails to abide by the conditions of probation or to make reports to the Board on or before the tenth day of each month, reflecting compliance with the conditions of probation.

DONE and ENTERED this 4th day of February, 1993, at Tallahassee, Florida.

ROBERT T. BENTON, II, 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 4th day of February, 1993.

APPENDIX

Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,

11, 12, 13, 14, 15, both 17s, the first 18 and 19 regarding C.H. and Nos. 1, 2,

3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, and 16 regarding M.B. have been adopted, in substance, insofar as material.

With respect to petitioner's proposed findings of fact Nos. 16 and the second 18 regarding C.H., respondent unquestionably exposed the baby to the risk of serious injury, and more than likely caused the brachial plexus palsy.

With respect to petitioner's proposed findings of fact Nos. 12, 18, 19, 20,

25 and 27 regarding M.B., Dr. Brauner's testimony that persisting with Hibbald's maneuver for longer than 60 seconds would fall below minimally acceptable standards has been credited, but the evidence was not clear and convincing as to the exact length of time Dr. McCarthy applied traction.

Petitioner's proposed findings of fact Nos. 17, 22, 26, and 28 and 29 regarding M.B. pertain to subordinate matters.

With respect to petitioner's proposed findings of fact Nos. 21 and 23 regarding M.B., the evidence did not clearly and convincingly establish that respondent's use of the Hibbald maneuver caused the brachial plexus palsy, although it is entirely possible that it did.

With respect to petitioner's proposed finding of fact No. 24 regarding M.B., the evidence showed that Dr. McCarthy intervened to accelerate delivery of the head, but his deployment of the vacuum extractor was not alleged to have been below standards, and may well have been justified by the intermittently depressed pulse the baby exhibited and the mother's difficulty pushing.

Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 10, 12, 14, 15, 20,

27, 28, 29, 30, 31, 32, 37 and 40 have been adopted, in substance, insofar as material.

With respect to respondent's proposed finding of fact No. 5, C.H. arrived at the hospital before 5:45.

Respondent's proposed findings of fact Nos. 6, 7, 8, 9, 11, 17, 18, 22, 33 and 34 pertain to matters that are subordinate or immaterial altogether.

With respect to respondent's proposed finding of fact No. 13, Wood's maneuver requires pressure on the shoulders, not the head.

With respect to respondent's proposed finding of fact No. 16, use of the vacuum extractor preceded knowledge of the shoulder dystocia.

With respect to respondent's proposed findings of fact Nos. 19 and 21, he did not perform the maneuver properly.

With respect to respondent's proposed finding of fact No. 23, the "clarification" has not been credited.

With respect to respondent's proposed findings of fact Nos. 24 and 25, the obstetrician does not have discretion to fail to meet minimum standards.

With respect to respondent's proposed finding of fact No. 26, the precise etiology of the brachial plexus palsy was not established.

With respect to respondent's proposed findings of fact Nos. 35, 36, 38, 39, and 41, petitioner failed to prove clearly and convincingly that respondent's management of the shoulder dystocia in M.B.'s case fell below standards, but neither did the evidence establish that it met standards.

COPIES FURNISHED:

Gerald B. Sternstein, Esquire 600 First Florida Bank Building Post Office Box 2174 Tallahassee, FL 32316-2174

Richard A. Grumberg, Esquire Department of Professional

Regulation

1940 N. Monroe Street Tallahassee, FL 32399-0750

Jack McRay General Counsel

1940 North Monroe Street Tallahassee, FL 32399-0792

Dorothy Faircloth Executive Director

Department of Professional Regulation Medicine Board

1940 North Monroe Street 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 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner, DPR CASE NUMBERS: 0102599,

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on April 3, 1993, in Plantation, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order, and Petitioner's Response to Respondent's Exceptions (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent was not present, but was represented by Gerald B. Sternstein, Attorney at Law.

Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

RULINGS ON EXCEPTIONS

1. Respondent's Exception to Paragraph 9 of the Findings of Fact in the Recommended Order is REJECTED based on the reasoning stated in Petitioner's written response.

2. Respondent's Exception to Paragraph 10 of the Findings of Fact in the Recommended Order is ACCEPTED based on the reasoning stated in Respondent's written exception and the Board's review of the record.

   
   

3. Respondent's Exception to Paragraph 11 of the Findings of Fact in the Recommended Order is ACCEPTED based on the reasoning stated in Respondent's written exception and the Board's review of the record.

   
   

4. Respondent's Exception to Paragraph 28 of the Findings of Fact in the Recommended Order is ACCEPTED based on the reasoning stated in Respondent's written exception, the Board's review of the record, and the Board's ruling on the Exceptions to the Findings of Fact.

FINDINGS OF FACT

1. The Findings of Fact set forth in Paragraphs 10 and 11 of the Recommended Order are rejected and the proposed language set forth in Respondent's Exceptions to those paragraphs is adopted in lieu thereof.

   
   

2. All other findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

3. There is competent substantial evidence to support the findings of fact of the Board.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The conclusion of law set forth in Paragraph 28 of the Recommended Order is rejected and the proposed language set forth in Respondent's exception to that paragraph is adopted in lieu thereof.

   
   

3. All other conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

4. There is competent substantial evidence to support the conclusions of law of the Board.

PENALTY

Upon a complete review of the record in this case, the Board determines that the disposition recommended by the Hearing Officer be REJECTED based on the Board's rulings on the exceptions and Respondent's written comments.

WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

This cause is hereby DISMISSED.

This order takes effect upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 15th day of April, 1993.

BOARD OF MEDICINE

JAMES N. BURT, M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Patrick J. McCarthy, M.D., 2700 Capital Medical Boulevard, Suite 104, Tallahassee, Florida 32308 and Gerald B. Sternstein, Attorney at Law, 101 North Monroe Street, Suite 1010, Tallahassee, Florida 32301, by U.S. Mail to Robert T. Benton, II, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee Florida 32399-0792 at or before 5:00 P.M., this 27th day of April, 1993.

DOROTHY J. FAIRCLOTH

AprilOrders 93

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND NOT FINAL UNTIL TINE EXPIRES TO PROFESSIONAL REGULATION, MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

Appellant,

CASE NO. 93-1534

v. DOAH CASE NO. 90-5190

PATRICK J. McCARTHY,

Appellee.

/ Opinion filed June 1, 1994.

An appeal from an Order of the Board of Medicine. Lisa S. Nelson, Assistant General Counsel, Department of Business and Professional Regulation, for Appellant. Gerald B. Sternstein of Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A., Tallahassee, for Appellee.

KAHN, J.

The Department of Business and Professional Regulation (Department) appeals an order of the Board of Medicine (Board) which rejects several of the hearing officer's findings of fact and dismisses the charges filed against Dr. Patrick McCarthy. We find that the Board improperly weighed the evidence and reverse.

Dr. McCarthy was charged with violating section 458.331(11)(m) and (t), Florida Statutes, 1/ in his delivery of C.H.'s child. 2/ The record indicated that after the baby's head wad delivered by forceps, Dr. McCarthy encountered severe shoulder dystocia. Shoulder dystocia occurs when the head is delivered and the shoulder gets stuck under the symphysis bone. The shoulder can be freed when the physician performs a Wood's maneuver which involves rotating the shoulders. C.H.'s child was born with brachial plexus palsy, an injury to the nerves that extend from the neck into the arm. During delivery those nerves are stretched which result in decreased function or no function in the arm. In a deposition that was taken in a civil case arising from the delivery, Dr. McCarthy testified that the brachial plexus palsy occurred when he turned the baby's head to free the shoulders. At the hearing Dr. McCarthy testified that he turned the head and shoulders.

In the Recommended Order, the hearing officer rejected Dr. McCarthy's hearing testimony and found that "rotating the baby's head `so that the shoulders w[ould] follow it' was a departure from minimally acceptable practice." As a result, the hearing officer determined that rotating the baby's

head violated section 458.331(1)(t). As to penalty, the officer recommended a five- year period of probation, a minimum of thirty hours of continuing education courses per year, and 250 hours of community service per year.

Dr. McCarthy filed exceptions to the Recommended Order challenging the hearing officer's acceptance of his deposition testimony over his hearing testimony. In these exceptions, Dr. McCarthy argued: 1) the hearing officer's findings were not supported by competent substantial evidence; 2) his testimony at hearing that he did not turn the baby's head is more credible than his deposition testimony that he rotated "the head so that the shoulders [would] follow it"; and 3) there was no credible dereliction in the performance of the Woods maneuver by Dr. McCarthy." At a hearing the Board considered the exceptions, adopted them in part, and dismissed the charges.

The Board improperly rejected the hearing officer's findings of fact. "The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion." Heifetz v. Department of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). The responsibility of weighing the evidence, resolving conflicts and judging credibility is the hearing officer's function.

Id. An agency can only reject a hearing officer's finding of fact if it is not supported by competent substantial evidence. Id. In the instant case, the Board invaded the province of the hearing officer by reweighing the evidence.

As discussed above, conflicting evidence was presented as to whether Dr.

McCarthy turned the baby's head during delivery. During the hearing Dr. McCarthy attempted to discredit his deposition testimony that he turned the baby's head by stating that he was confused and that "it was late in the afternoon and I'd been there for three hours." The record of the deposition suggests otherwise. The deposition commenced at 1:45 p.m. and concluded at 3:50

1. The admissions occurred at page 51 of 66 total pages. Before asking any questions, the lawyer instructed Dr. McCarthy to be sure he was not confused before responding. Dr. McCarthy agreed he would not attempt to answer if a question did not make sense or was confusing. Also, in describing the Wood's maneuver, Dr. McCarthy seemed to differentiate between the head and the shoulder: "you rotate the head around so the posterior shoulder will follow it." This statement made under oath contrast with the Board's assumption that Dr. McCarthy turned the head and shoulder as one.

   
   

   In the Final Order, the Board did not focus on whether the hearing officer's findings were supported by competent substantial evidence. See s. 120.57(1)(b)10, Fla. Stat. (1993). Instead, the Board determined that its findings were supported by competent substantial evidence. The Board also acknowledged at the hearing that it was weighing the evidence. As to Dr.

   McCarthy's conflicting testimony, member Dr. Echevarria stated:

   
   

   The deposition was not in agreement with what the Respondent said during the hearing. But, I think all of us, anybody should understand that if you twist that baby's neck to try to correct the dystocia, you're not going to just stretch the nerves in the neck, you're going to wring his neck and you're going to kill him.

   And I think that's probably what would have happened if he had really tried to rotate that body just by moving the head.

   So, I think that there's reason to believe that what he stated in rotating the shoulders so that the head would come around is believable. And, perhaps in this area, the Hearing Officer didn't really quite appreciate that.

   
   

   When member Dr. Cavallaro voiced his concern that the Board was starting to weigh the evidence, member Dr. Ashkar replied, "We're, in part, considering the Hearing Officer's thing. At the same time, we have to take note of that fact in the records." Subsequently Dr. Cavallaro recommended dismissal of the case "based on the fact that we had accepted those exceptions and changed the findings of fact, upon weighing the evidence here this morning." (e.s.) "The agency may not reject or modify the findings of fact . . . unless the agency first determined from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence . . . ." s. 120.57(1)(b)(10), Fla. Stat. (1993).

   
   

   We REVERSE the final order and REMAND for the Board to enter an order adopting the officer's recommended findings of fact. The Board may further consider the penalty, since the improper dismissal precluded such a consideration earlier. 3/

   
   

   ERVIN and JOANOS, JJ., CONCUR.

   
   

   ENDNOTES

   
   

   1/ Section 458.331(1)(m) and (t), Florida Statutes (1991), provided in part:

   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) 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.

2/ This case was consolidated with another complaint alleging violations in the delivery of another child which is not an issue in this appeal. The hearing officer determined that the Department did not prove by clear and convincing evidence that any violations occurred in the second case and the Board adopted this determination.

3/ "The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reason therefor in the order, by citing to the record in justifying the action." s. 120.57(1)(b)10, Fla. Stat. (1993).

Docket for Case No: 90-005190

Orders for Case No: 90-005190