vs. ) CASE NO. 90-5192
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on January 30, 1991, in Orlando, Florida.
For Petitioner: William B. Nickell, Esquire
1940 North Monroe St., Ste. 60
For Respondent: William B. Wiley, Esquire
& Cassedy, P.A.
In an administrative complaint dated July 3, 1990, the Department of Professional Regulation (DPR) alleges that Respondent violated Section 458.331(l)(m) and (t), F.S., by failing to keep written medical records justifying a course of treatment, and by gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
More specifically, the complaint alleges that in his treatment of "Patient #1", Nabil Hilwa, M.D. failed to document in his patient's records the patient's difficulty urinating and the need for a transurethral resection of the prostate (TURP), and that he mislabeled patient #1's adenocarcinoma. The complaint also specifically alleges that Dr. Hilwa inappropriately diagnosed patient #1's condition because the emphasis in March 1985 should have been on the patient's
nodule and a diagnosis of prostate cancer, either by transrectal or transperineal biopsy, and not on the TURP, and that Respondent should have performed an acid phosphatase and a prostatic specific antigen on patient #1.
The issues for disposition are whether those violations occurred and, if so, what discipline is appropriate.
Dr. Hilwa responded to the complaint and requested a formal administrative hearing.
On January 28, 1991, the parties filed a Prehearing Stipulation wherein Dr.
Hilwa substantially limited the factual issues by admitting the allegations of paragraphs 1-3, 5-10, and 12-13 of the Administrative Complaint.
At the final hearing, DPR filed an Amended Administrative Complaint. The only difference between it and the original Administrative Complaint is the addition of the clarifying word "subsequently" in paragraph 4, and the modification of proposed sanctions sought. DPR no longer seeks revocation or suspension of Dr. Hilwa's license. Dr. Hilwa had no objection to the filing of the Amended Administrative Complaint and admitted to paragraph 4 and 11, in addition to the above admissions.
8, 9, 10, 11, 12 and 13. All were admitted into evidence except Exhibit 13 (Deposition of Richard H. Lewis, M.D.), to which Dr. Hilwa was given leave to file written objections. That exhibit is now received and the objections have been considered. The testimony of Dr. Lewis relating to matters not alleged in the Amended Administrative Complaint is disregarded. DPR presented the testimony of three witnesses: Don Buswell-Charkow, M.D. (Dr. "B-C"), Mr. A.C. (Patient #1), and his wife, Mrs. D.C.
Dr. Hilwa testified in his own defense and was qualified as an expert. His case in chief was left open to permit the late-filing of the expert deposition testimony of Zev Wajsman, M.D., subject to filing of written objections by DPR.
The deposition of Dr. Wajsman was filed on March 25, 1991, with no written objections by DPR.
The hearing transcript was also filed, and on April 1 and 3, 1991, the parties filed their proposed recommended orders. Respondent's proposed recommended order is substantially adopted herein; specific rulings on the findings of fact found in Petitioner's proposed order are included in the attached appendix.
Except for two conclusory paragraphs, Respondent has admitted all factual allegations of the amended administrative complaint. These facts are thus established:
Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes.
Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0032104. Respondent's last known address is 6388 Silver Star Road, Orlando, Florida 32818-3235.
From on or about March 5, 1985, to on or about April 22, 1985, and from on or about February 8, 1988, to on or about April 10, 1989, Respondent provided medical care and treatment to patient #1.
On or about March 6, 1985, patient #1 was admitted to the hospital, with a complaint of difficulty urinating, for evaluation of prostatism, and Respondent subsequently performed a cystoscopy and found a one hundred percent obstruction of the prostatic urethra.
On or about March 7, 1985, Respondent performed a Transurethral Resection of the Prostate (TURP). The pathology report revealed nodular hypoplasia without any evidence of malignancy. Respondent did not perform a prostate biopsy, an acid phosphatase, or a prostatic specific antigen.
On or about April 22, 1985, patient #1 made his last postoperative visit after the TURP.
On or about February 8, 1988, patient #1 presented to Respondent for evaluation of a prostatic nodule on the left prostatic lobe. Respondent advised patient #1 to have a prostatic sonogram with biopsy.
On or about March 7, 1988, Respondent performed a transrectal sonography, which revealed a hypoechoic area, and a transrectal biopsy, which revealed a small focus of moderately differentiated adenocarcinoma of the prostate, on patient #1. Respondent did not perform an acid phosphatase or a prostatic specific antigen.
On or about July 25, 1988, patient #1 was admitted to the hospital and Respondent performed a repeat prostatic biopsy, which revealed that adenocarcinoma of the prostate was present on all needle biopsy segments taken, in contrast to the biopsy performed on or about March 7, 1988. A sonogram was not repeated.
On or about August 3, 1988, patient #1 was admitted to the hospital and Respondent performed a bilateral pelvic lymphadenectomy and a retropubic radical prostatectomy, which revealed the prostate had cancer up to the margin of resection.
Respondent referred patient #1 to a radiation oncologist for a consultation.
On or about August 3, 1988, Respondent's records indicate Respondent discussed the postoperative complications of impotence and urinary incontinence with patient #1.
On or about March 23, 1989, patient #1 presented to Respondent with a complaint of gross hematuria. Respondent performed a cystoscopy which revealed hemorrhagic cystitis secondary to radiation.
On or about April 10, 1989, patient #1 was doing well with no gross hematuria, and a repeat urinalysis was negative.
1985 -- First Referral of Patient to Dr. Hilwa for Evaluation and Treatment
Don Buswell-Charkow (Dr. "B-C") is a physician who has practiced in the Orlando, Florida area since 1981. His field of practice is internal medicine. He is not and does not consider himself an expert in urology.
A.C. (described as "patient #1" in DPR's Administrative Complaint and Amended Administrative Complaint) was a patient of Dr. B-C from March 10, 1983 to August 25, 1989.
During the time period of 1983 to 1985, A.C. complained to Dr. B-C of urinary difficulty.
On February 14, 1985, Mr. C. saw Dr. B-C for a sore throat and coughing. In the course of discussions, he mentioned that he was having difficulty with his bowels. Dr. B-C performed a rectal exam and felt an area which he described in his records as follows: "the left lobe of the prostate has a nodule." (Pet. Ex. 2)
On March 1, 1985, Dr. B-C, by letter, referred Mr. C. to Dr. Hilwa for evaluation of his prostate. The letter stated:
Would you please evaluate Mr. [C.'s] prostate. I felt the left lobe of his prostate had a nodule. A sigmoidoscopy was negative, a barium enema was negative, and an IVP showed enlargement of the prostate, though was otherwise normal. (Pet. Ex. #2)
Including his training, Dr. Hilwa has specialized in the fields of urology and urological surgery for over 19 years. His specialty training includes post-graduate work in urology and urological surgery at Washington Hospital Center in Washington, D.C., a teaching facility affiliated with George Washington University; the University of Cincinnati Medical Center, a teaching facility; and Wayne State University, a teaching institution.
Dr. Hilwa began his private practice in Orlando, Florida in 1978. The majority of his patients come from referring physicians. Approximately 25-30 physicians refer patients to Dr. Hilwa for speciality evaluation and treatment.
Dr. Hilwa serves on the active medical staffs of AMI Hospital and West Orange Hospital. At AMI he is Chief of the Urology Department which consists of nine urologists. At West Orange Hospital, he is the Chief of Surgery (made up of approximately 15-20 physicians) and Chairman of the Surgical Practice Committee which addresses cases related to quality assurance matters.
Dr. Hilwa has worked with the American Cancer Society as a Clinical Fellow at the University of Cincinnati where he performed research on cancer of the prostate and the significance of their serum acid phosphatase. He has also lectured for the American Cancer Society concerning cancer of the prostate. In addition, he has appeared on T.V. to discuss cancer of the prostate.
In his practice, Dr. Hilwa sees approximately 1,000 patients a year for urological problems. Approximately 10% or 100 patients a year fall within the category of males with potential cancer of the prostate. He performs approximately 600 surgical procedures a year, of which approximately 60% fall within the category of major cases and 40% fall within the category of minor cases.
To Dr. Hilwa's knowledge, he has never been (a) investigated by DPR (other than this case); (b) investigated or complained against by Medicare; (c) disciplined by any licensing agencies dealing with the practice of medicine; or
(d) disciplined by any hospital with respect to hospital privileges.
Dr. Hilwa has never had a patient with a diagnosis or suspected diagnosis of prostate cancer, other than A.C., complain to him with respect to his care and treatment. Neither has he had a referring physician tell him that someone had complained against him with respect to his care and treatment.
On March 5, 1985, Dr. Hilwa first saw Mr. C. He personally took a history from him and documented in his records: "FREQUENCY 3X", "NYCTURIA [sic] 1-2X", decreased potency, "DRIBBLING YES", decreased stream force and caliber, and "HESITANCY YES". Upon physical examination of Mr. C.'s prostate, he found, according to his notes, that the prostate is 1+ enlarged; asymmetrical; and left prostatic nodule semi-firm. (Pet. Ex. #6, p. 70)
Dr. Hilwa's use of the term "semi-firm" was not descriptive of "a cancerous feeling". "Semi-firm" is not a term he normally uses to refer to something that he would be suspicious of as cancer. His definition of a prostatic nodule that is cancerous is usually "firm or stoney-hard" -- not "semi-firm".
The term "nodule" is a very broad term which signifies an aggregation of cells that may be anatomical or may be pathological. This definition is consistent with medical dictionary definitions of "nodule", e.g., Taber's Medical Dictionary.
Dr. Hilwa's use of the term "nodule" in A.C.'s records referred to the left lobe of his prostate which was semi-firm and larger than the right. This is what he perceived as a "nodule". He did not feel an isolated, discrete, or raised surface on Mr. C.'s prostate gland. The term "induration" is a different feeling in the substance of the prostate than the surrounding tissue felt. Dr. Hilwa did not feel any induration on the surface of Mr. C.'s prostate in 1985.
In Dr. Hilwa's practice, if he does find an induration he customarily draws a picture of it so that he will have a reference for himself. No such picture was drawn in 1985 in the case of Mr. C.'s prostate.
The significance of finding an induration is that it provides a specific target towards which a biopsy needle may be directed.
According to Dr. Hilwa, there was no discrete, isolated induration on the surface of A.C.'s prostate in 1985 to which he could have guided a biopsy needle. If he had performed such a procedure, it would have been a "blind biopsy".
Following examination of A.C., Dr. Hilwa's initial clinical impression was "benign prostatic hypertrophy" which refers to a nonmalignant enlargement of cells of the prostate. His plan was to do a cystoscopy examination and a TURP if obstruction is present.
Cystoscopy means looking inside the bladder through the urethra to determine whether or not there is obstruction.
A TURP or transurethral resection of the prostate is a surgical procedure which involves cutting the interior tissue of the prostate gland.
Prostatic stones are a hard, stoney substance. They can mimic a cancer or prostatic nodule.
The finding of 100% obstruction upon cystoscopy examination of Mr. C. was consistent with documented symptoms in the medical records.
In performing the TURP on Mr. Carty on March 7, 1985, Dr. Hilwa removed tissue and stones weighing a total of 13 grams.
Following the cystoscopy and TURP, a pathology report was presented to Dr. Hilwa. It confirmed: (1) that he had dissected 13 grams by weight; (2) that the tissue removed was benign, and (3) that stones were present in Mr. C.'s prostate.
On the basis of these findings, Dr. Hilwa's final diagnosis was benign prostatic hypertrophy. His hospital discharge summary, included in his office records for A.C., includes this statement: "...In view of the obstruction present and the patient's symptoms, it was felt that a TURP of the prostate is indicated rather than doing a biopsy of the prostate...". (Pet. Ex. #6, p. 115)
Dr. Hilwa did not order a prostatic specific antigen test on Mr. C. because such was not available to him in 1985. The reason he did not do a serum acid phosphatase is that his diagnosis was benign prostatic hypertrophy. He had no reason to add this test, which often reveals false positives and false negatives.
The TURP eliminated the obstruction found, as well as the multiple prostatic stones. Potential complications, if the prostatic obstruction and stones had not been removed by the TURP procedure, include worsening of the obstruction, irritation, recurring infection and surgery.
A TURP is an accepted procedure in the field of urology for the elimination of prostatic stones and the elimination of an obstruction in the prostate.
Dr. Hilwa saw Mr. C. on two occasions post-operatively in 1985: March 27, 1985 and April 22, 1985. He advised Mr. C. to come see him whenever he had any problems or needs. Otherwise he referred him back to his family physician, Dr. B-C.
Dr. Hilwa had no further contact with Mr. C. from April 22, 1985 until February, 1988 -- approximately three years later.
1986 Re-evaluation of Patient By Dr. B-C
On June 26, 1986, Dr. B-C examined Mr. C. and made the following notation in his records:
"The rectal has a firm left lobe and normal right."
(Petitioner's Exhibit #2)
Dr. B-C was specifically looking for a prostatic nodule in Mr. C. in June of 1986. However, he did not palpate a nodule. He did not feel the same thing that he felt in 1985.
On February 2, 1988, in his annual physical check up of Mr. C., Dr. B-C found the patient's prostate enlarged on the left and quite firm without a definite nodule. The right side was normal.
1988 -- Second Referral of Patient to Dr. Hilwa For Evaluation & Treatment
Mr. C. was again referred by Dr. B-C to Dr. Hilwa for prostatic evaluation on February 8, 1988. Upon physical examination, Dr. Hilwa felt a one by one centimeter firm, left prostatic nodule. A picture was drawn on his medical records. It was not the same nodule that he felt in 1985 in Mr. C.'s prostate. It was a discrete, raised, distinct nodule surrounding prostatic tissue on the surface of the left lobe that he could measure with his finger.
Dr. Hilwa's plan was to proceed with prostatic sonogram and biopsy. Mr. C. was scheduled for a sonogram on February 22, 1988, but did not show up. Two weeks later, the procedure was conducted. It revealed a hypoechoic area, which is an area that is usually characteristic of cancer of the prostate.
The pathology report came back on March 9, 1988. It indicated that the vast majority of tissue was benign, except for a very small microscopic focus of moderately differentiated adenocarcinoma.
Dr. Hilwa had Mr. C. come to his office where he explained his findings. Because Mr. C. asked a lot of questions and had a history of emotional illness, Dr. Hilwa pulled one of his textbooks, sat with him, went through all phases of cancer of the prostate, and described what he felt his situation was.
Dr. Hilwa next commenced a metastatic workup involving x-rays of the abdomen and pelvis to determine whether the prostatic cancer was contained in the prostate or had spread outside. It was contained and had not spread.
Next, Dr. Hilwa explained to Mr. C. the plan to repeat sonogram of the prostate with biopsy in two to three months.
Another biopsy of Mr. C.'s prostate was performed on July 25, 1988. At that time, Dr. Hilwa felt clinically that Mr. C.'s cancer was stage B. The decision was made to proceed with a radical prostatectomy.
On August 3, 1988, a radical prostatectomy was performed. The cancer was removed from A.C.'s prostate. According to the pathology report there was no indication that the cancer had spread beyond the surgical capsule of the prostate.
With respect to the "labeling" of Mr. C.'s adenocarcinoma, the description "stage B" appears throughout Dr. Hilwa's notes and transcriptions in the hospital records. (See, for example Pet. Ex. #8, pages 195, 204, 210 & 260).
DPR's Expert Testimony
Dr. Richard H. Lewis is a physician practicing in Jacksonville who specializes in urology. He is Board certified. At DPR's request, Dr. Lewis examined medical records concerning Dr. Hilwa's case and predicated his opinions on portions of Dr. Hilwa's records.
Dr. Lewis opined that a transurethral resection of the prostate ("TURP") is not an adequate method of evaluating a patient for prostate cancer; that a biopsy of the prostate, either through a transrectal or transperineal approach is the appropriate standard of care for evaluating or ruling out this particular diagnosis. Such biopsies are performed " . . . by guiding the needle to the area that you are concerned about so that you can actually feel the nodule and the needle and so you can be sure the needle is entering the area that you are concerned about." (Pet. Ex. #13, pages 10-11).
Dr. Lewis stated that the key issue is that Dr. Hilwa did not "aggressively seek" to prove whether the patient did or did not have prostate cancer. (Pet.
Ex. #13, page 16).
Dr. Lewis further testified that about 50% of the time when you are biopsying a nodule you are going to miss it. He further conceded that a stone in the prostate is relatively common and if the physician is comfortable that he felt a stone he would be justified in not doing a biopsy.
Dr. Lewis agreed that it was reasonable for Dr. Hilwa to not order the acid phosphatase and prostatic specific antigen tests in 1985. It would not be appropriate to draw those tests until a diagnosis of prostate cancer had been made.
Dr. Lewis agreed that in this case the available evidence suggests that the patient had no spread of the prostate cancer outside the prostate and that a radical prostatectomy was an appropriate treatment option.
Dr. Lewis believes Dr. Hilwa's records are logical and appropriate in terms of his thought patterns once the diagnosis of cancer was made. He conceded that records is an area where he may be "a little confused." "The medical record is there to document what was done so that you can look back at it in retrospect."
His criticism of Dr. Hilwa's records was:
So to me where he fell below the standard of care is that he didn't do what needed to be done. His records did not explain why he did that. (Pet. Ex. #13, pages 40-41)
This conflicts with his opinion in his earlier written report of May 9, 1990, which stated:
The physician does state the reasons for his treatment and course of actions in the records. (Attached Exhibit 2 to Pet. Ex. #13, page 4).
Dr. Lewis believed that there was a "discrete nodule" in 1985. It was his further assumption that the "nodule" palpated in 1988 was the same "nodule" palpated in 1985. Such assumptions are inconsistent with the facts proven in this case.
Dr. Lewis did not hear the final testimony of Dr. B-C wherein he stated that he did not palpate a nodule in or on Mr. C.'s prostate in 1986. He also did not hear the final hearing testimony of Dr. Hilwa describing what he, the clinician actually performing the evaluation, perceived.
Dr. Lewis conceded that the practice of medicine is not a precise science; that there is room for clinical judgment based upon a physician's experience in his field; and that how a physician documents matters in a medical record may vary from physician to physician.
Dr. Wajsman's Expert Testimony
Dr. Zev Wajsman is a Professor of Surgery in the Division of Urology, and Chief of Urologic Oncology, at the University of Florida, College of Medicine, University of Florida, Gainesville, Florida.
Dr. Wajsman is Board certified in urology and licensed in Florida and New York. He has published more than 112 articles in his field and gives presentations and lectures on an ongoing basis.
In preparation for giving testimony for Dr. Hilwa in this case, Dr. Wajsman reviewed all medical records of Mr. C. pertaining to Dr. Hilwa's treatment of him in 1985 and 1988. In addition, he reviewed the depositions taken in this case, the transcript of the final hearing, and Dr. B-C's office records.
Dr. Wajsman opined that Dr. Hilwa did not fall below the accepted standard of care in his care and treatment of Mr. C. in 1985 and 1988. He further testified that no acts or failures to act by Dr. Hilwa in treating Mr.
C. caused any injury to him.
Dr. Wajsman testified that on the basis of all the information he reviewed, there is no evidence that the patient had clinical evidence of prostate cancer in 1985. He found no evidence in the charts to suggest that Dr. Hilwa should have done a biopsy at the time. Many patients are referred to urologists as experts because of abnormal prostatic findings. A biopsy will not be done just because someone else believed that he felt an abnormal prostate.
Quite often, in Dr. Wajsman's experience, his response to the referring physician will be that he didn't find or feel any abnormality. He consequently does not feel that he "has to do" a biopsy.
It is Dr. Wajsman's understanding that the reason Dr. Hilwa did not do a biopsy was because in his clinical judgment there was no suspicious finding to perform a biopsy upon. So based on this finding and the fact that on the subsequent transurethral resection the specimen did not contain any cancer, Dr. Wajsman believed that there was no evidence of cancer at that time and therefore there was no substandard care by Dr. Hilwa. Dr. Wajsman believes the testimony of Dr. B-C describing an examination that he performed one year later on Mr. C. (1986) was significant in that he did not palpate a nodule at that time.
In '85 this Dr. B-C referred this patient to Dr. Hilwa because of abnormal rectal findings. Then a year later, after TUR was done the same physician did not find any abnormality. So the question is what happened during this year, and the only explanation I can find out is that at the time of surgery, I mean transurethral resection, stones were removed from the prostate during the section, and it is possible that what the Dr. B-C felt the year prior to
is that he felt a stone or hardened tissue around the stone which disappeared after transurethral resection. That enforced the reason Dr. Hilwa didn't do a biopsy because what he felt probably at the time, the referring physician felt was an abnormality not cause by cancer but by a stone or inflammatory reaction or whatever.
(Resp. Ex. #1, page 12).
Dr. Wajsman further opined that the records do not reveal that Dr. Hilwa in any fashion acted in bad faith or without due regard for the prevailing standard of care in treating Mr. C.
Dr. Wajsman is unaware in the context of 1985 or even today of any requirement in the field of urology for a clinician in documenting a medical record to record a "degree of difficulty urinating," for example, 10 degrees or
50 percent or some fixed number, in order to conform to the standard of care. The notes described in paragraph 9, above, adequately document the difficulty.
With respect to DPR's allegations that Dr. Hilwa should have performed prostatic specific antigen and acid phosphatase tests in 1985, Dr. Wajsman confirmed that the prostatic specific antigen test was not available on the market in a majority of places in 1985. The acid phosphatase test was available, but is done for patients who actually have prostate cancer. It was not necessary in 1985 or 1988. 1/ By not performing the two tests, no damage was done to the patient and such did not affect the ultimate treatment for this patient.
With respect to the radical prostatectomy performed by Dr. Hilwa, it was done properly, and it successfully removed the cancer. The patient became incontinent, a very unfortunate, but accepted and known risk of complication with this type of surgery.
With respect to DPR's allegations concerning the adequacy of Dr. Hilwa's records, Dr. Wajsman testified that while the records could be better, he believes that anyone's records can be better. He does not believe that Dr. Hilwa's records fall below the standard of care. The records do properly document why a biopsy was not done in 1985, and they do properly refer to the cancer as level B, which according to Dr. Wajsman, is a nodule or abnormality, confined to one lobe, usually less than 1 1/2 centimeters.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Sections 120.57(1), and 455.225(5), Florida Statutes (1989).
Petitioner filed an Administrative Complaint, and subsequently at the Final Hearing an Amended Administrative Complaint, which alleged that Respondent violated subsections 458.331(l)(m) and (t), Florida Statutes. Petitioner seeks to sanction Respondent for his alleged violation of these statutes. As such, this is a penal proceeding and the statutory provisions in issue must be strictly construed in favor of the licensed physician. Breesman v. Department of Professional Regulation, Board of Medicine, 567 So.2d 469, 471 (Fla. 1st DCA 1990).
Disciplinary action with respect to a professional license is limited to offenses or facts alleged in the Administrative Complaint. Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985).
Since Petitioner is not seeking revocation or suspension, Petitioner has the burden to prove by the greater weight of the evidence that Respondent violated the statutes in issue. Section 458.331(3), Florida Statutes (1989).
Subsection (1)(m) of section 458.331, F.S. provides as a basis for disciplinary action:
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.
Subsection (1)(t) of section 458.331, F.S. provides as a basis for disciplinary action:
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 evidence demonstrates that Dr. Hilwa kept written medical records justifying the course of his care and treatment of Mr. C. They included appropriate patient histories; examination results; test results; records of drugs prescribed, dispensed or administered; and reports of consultations and
hospitalizations. Although he was criticized for not documenting reasons for "not undertaking" particular courses of treatment, such is not a basis for disciplinary action under section 458.331(1)(m), Florida Statutes (1989).
Breesman, supra.
Moreover, Dr. Hilwa's hospital notes and dictations, which are included in his office file on A.C., amply evidence his judgement in not performing a biopsy in 1985. See finding of fact paragraph 18, above. Dr. Hilwa's notes are substantially more complete than those of the Respondent in Robertson v. Department of Professional Regulation, 15 FLW D.1647 (Fla. 1st DCA, June 19, 1990), cited by Petitioner. Dr. Robertson performed a surgical procedure (facelift) in his office and made no operative notes until some 15 months later when litigation ensued.
No evidence was presented to sustain a conclusion that Dr. Hilwa committed "gross or repeated malpractice". Petitioner's evidence was insufficient to prove that Dr. Hilwa deviated from the accepted standard of care in treating Mr. C. during the times in question. There was no proof that the "nodule" perceived in 1985 by Dr. B-C and examined by Dr. Hilwa was cancerous or an abnormality which required biopsy. To the contrary, all of the evidence demonstrates that Dr. Hilwa acted appropriately and in good faith in exercising his clinical judgement in the course of treating his patient. Petitioner's expert predicated his opinions on a limited view of the case. He was not cognizant of the significant occurrence in 1986 when Dr. B-C physically examined Mr. C.'s prostate and specifically did not find the abnormality he felt in 1985. The logical inference from all of the evidence is that the nodule was not there in 1986. The TUR procedure performed in 1985 by Dr. Hilwa removed it in the form of prostatic stones. The laboratory findings confirmed that the tissue removed was not cancerous. Petitioner's expert further did not have the benefit of hearing Dr. Hilwa's testimony describing how and why he exercised his clinical judgement. Dr. Hilwa's explanation and justification for his actions are credible and reasonable.
That the Department of Professional Regulation, Board of Medicine, enter its Final Order dismissing the Amended Administrative Complaint against the Respondent.
DONE AND RECOMMENDED this 2nd day of May, 1991, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1991.
1/ The Amended Administrative Complaint does not allege a violation for failure to do the tests in 1988. Counsel for Petitioner attempted to amend the complaint again with an oral motion at the close of Respondent's direct examination. This was denied as too late, and counsel was permitted to proffer evidence on the issue. The proffered evidence was insufficient.
The following constitute specific rulings on the findings of fact proposed by Petitioner:
1.-13. Adopted in paragraph 1, A-M (stipulation). 14.-15. Rejected as contrary to the evidence.
28.-29. Rejected as contrary to the evidence. 30.-37. Rejected as unnecessary.
William B. Nickell, Esquire DPR
1940 N. Monroe St., Ste. 60
William B. Wiley, Esquire Linda McMullen, Esquire McFarlain, Sternstein, Wiley
& Cassedy, P.A.
1940 N. Monroe St., Ste. 60
1940 N. Monroe St., Ste. 60
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.
