STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7859

)

SANFORD L. YANKOW, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 3, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Richard A. Grumberg

Senior Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399

For Respondent: Mark A. Dresnick, Esquire

2400 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

ISSUE PRESENTED

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent alleging that Respondent had violated the statutes regulating the practice of medicine in the State of Florida, and Respondent timely requested a formal hearing regarding the allegations contained within that Administrative Complaint. This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

At the commencement of the final hearing, Petitioner announced on the record that it was dismissing Count Two of the Administrative Complaint filed in this cause.

Petitioner presented the testimony of Robert Brauner, M.D. Additionally, Joint Exhibit numbered 1, Petitioner's Exhibit numbered 1, and Respondent's Exhibits numbered 1-4 were admitted in evidence. Respondent's Exhibit numbered

3 was the deposition of Manuel A. Penalver, M.D.

Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each specific proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Sanford L. Yankow, M.D., has been a physician licensed to practice medicine in the State of Florida. Respondent's license number is ME 0017585.

   
   

2. Respondent is a Fellow of the American College of Obstetrics and Gynecology and is Board-certified in Obstetrics and Gynecology. He received his

   M.D. degree from the University of Miami School of Medicine in 1969 and then completed his internship and residency in obstetrics and gynecology at Jackson Memorial Hospital located in Miami. Dr. Yankow was the Chief Resident in Obstetrics and Gynecology from 1972 to 1973 and subsequently was an Instructor in the University of Miami Department of Obstetrics and Gynecology from July, 1973, through July, 1975. From 1975 through 1983, he was a Clinical Assistant Professor in the Department of Obstetrics and Gynecology at the University of Miami School of Medicine.

   
   

3. Respondent is presently on the active staff of Baptist Hospital of Miami and is a member of the following hospital committees: Laser Committee, Tissue Committee, Cesarean Section Committee, PSCU Committee, Transfusion Committee, and Education Committee. He is a member of the American Fertility Society, the Miami OB/GYN Society, and the Florida Obstetrics and Gynecology Society. He is also a member of the Florida Medical Association, the Dade County Medical Association, and the American Medical Association.

   
   

4. Respondent served as a medical consultant and expert witness to Petitioner, Department of Professional Regulation, from 1983 to 1985.

   
   

5. The patient whose care is at issue in this case, S. E., was, at the time she was seen by Respondent, a 34-year-old married woman who was trying to get pregnant. S.E. was examined by Respondent on two occasions: June 20, 1983 and June 23, 1983.

   
   

6. At the first examination of June 20, 1983, the patient filled out a new patient history questionnaire. This questionnaire was received by Respondent during the course of his examination, and his handwritten notations concerning the patient's history and examination appear on the back of this questionnaire. It is evident that Respondent reviewed the patient's questionnaire and discussed her history and presenting problems with the patient.

   
   

7. Respondent also prepared typed progress notes pertaining to the patient's visits of June 20 and June 23, 1983. The progress notes also include an entry for June 22, 1983, when Respondent received and interpreted an HCG pregnancy test result.

8. The patient came to see Respondent because she thought that she had just had a miscarriage. The medical records establish that the patient's last menstrual period was June 13, 1983, seven days prior to her office visit, and the patient continued to bleed. The patient also stated as part of her history that she had been trying to become pregnant, was two weeks late with her last period, and was using no contraception.

   
   

9. The progress notes establish that the patient denied dysmenorrhea (painful periods), dyspareunia (painful intercourse), as well as post-coital or intramenstrual spotting. The patient's history also indicated that her mother has breast cancer, and that S. E. had irritable bowel syndrome. S. E. was not allergic to any medication, was not taking any, did not smoke or drink (except occasional wine), and did not use drugs.

   
   

10. The patient did not indicate that she was experiencing pain, tenderness, or dizziness during either visit to Respondent's office.

    
    

11. Respondent's notes regarding his physical examination of the patient on June 20 affirmatively state that the patient was "in no distress." Her weight was 110, and her blood pressure was 100/60. Respondent did a complete review of systems, including an HEENT (head, ears, eyes, nose, and throat), all of which were normal. He examined her neck, found her lungs clear, listened to her heart, examined her breasts, and found no masses or tenderness. Her nipples were erect and having no discharge.

    
    

12. The abdominal exam revealed the abdomen to be soft and flat, with no masses and no tenderness. There was no tenderness of the back and no lymphadenopathy of the groin, and the extremities were normal.

    
    

13. The pelvic examination revealed no masses or tenderness of the adnexa (the tubes and the ovaries). Her uterus was top normal size, anteverted, anteflexed, normal shape, and with consistency. The external genitalia and BUS glands were normal. Introitus marital was noted, with no lesions of the vagina. The pelvic examination also indicated bleeding from a slightly cyanotic cervix.

    
    

14. The Respondent's diagnostic impression was a possible spontaneous abortion, which is commonly referred to as a miscarriage.

    
    

15. Respondent's plan was to obtain a Beta HCG pregnancy test, get a pap smear, start the patient on basal body temperature charts, and obtain records from the patient's previous gynecologist.

    
    

16. The Beta HCG and pap smear specimens were obtained during the first office visit of June 20, 1983.

    
    

17. On June 22, 1983, Respondent received the HCG test result of 3440, which according to the laboratory performing the test indicates that the patient was in the fourth week of pregnancy. Respondent reiterated in his progress notes of June 22 that the uterus was top normal size, and Respondent concluded that with a serum HCG at 3440, the patient was in approximately the fourth week of pregnancy. He indicated that he would see her again in one to two weeks.

    
    

18. On June 23, 1983, the patient returned. There is no indication that the patient returned because of pain or any new type of complaint.

19. A second pelvic examination was performed on June 23, 1983, which also indicated that there were no adnexal masses. The uterus was anteverted, anteflexed, and was of normal size, shape, and consistency.

    
    

20. Respondent repeated the Beta HCG pregnancy hormone test on June 23, and the results were reported on June 24, 1983. The Beta HCG report shows that the Beta HCG dropped from 3440 to 2100.

    
    

21. Tracking the HCGs down until the level of pregnancy hormones reaches zero is appropriate to establish the regression of a pregnancy due to a spontaneous abortion or miscarriage.

    
    

22. On June 27, 1983, the patient became shock-y and was taken to Hialeah Hospital. It was then discovered that the patient had a ruptured tubal pregnancy involving the proximal tube and part of the cornua.

    
    

23. The patient was operated on and then did well.

    
    

24. An "ectopic pregnancy" is a pregnancy which occurs outside the uterus and is usually located in a fallopian tube. When the pregnancy is located in a tube, it is referred to as a "tubal pregnancy."

    
    

25. Subsequent to Respondent's care, it was discovered that this patient had an "interstitial" ectopic pregnancy. Only two percent of ectopic pregnancies are interstitial, and interstitial ectopics are the most difficult to diagnose.

    
    

26. Petitioner offered proof through its expert witness, Dr. Robert Brauner, that Respondent committed medical malpractice by failing to diagnose and treat an ectopic pregnancy. On the other hand, the Respondent's expert witness, Dr. Manuel A. Penalver, testified by deposition that Respondent did not commit medical malpractice or fall below the prevailing standard of care by failing to diagnose or treat an ectopic pregnancy. Both Dr. Brauner and Dr. Penalver were provided with the exact same information from which to formulate their expert opinions--a copy of Respondent's medical records. From this exact same information, the two experts have formulated diametrically opposed opinions.

    
    

27. Petitioner's expert, Dr. Robert Brauner, is an obstetrician and gynecologist in private practice in Tampa. He has been Board-certified in Obstetrics and Gynecology since 1983. Dr. Brauner has practiced medicine in a solo practice since April, 1983. In 1981, he was in a two-person practice for a year and a half, and he then went to another two-person practice for a little over one year. He is a Diplomat of the National Board of Medical Examiners and has been a consultant in gynecology to the Tampa Veterans' Hospital since 1983. Dr. Brauner is on the quality assurance committee at Humana Women's Hospital in Tampa.

    
    

28. Respondent's expert witness is the Chief of Gynecology at the University of Miami School of Medicine. Since 1984 Dr. Penalver has been a full-time member of the Department of Obstetrics and Gynecology at the University of Miami. He has been awarded tenure and is currently an Associate Professor of Medicine.

29. Dr. Penalver is Board-certified in Obstetrics and Gynecology and is also Board-certified in Gynecologic Oncology. He has authored numerous articles and publications, including textbooks and textbook chapters in the field of gynecology. He has been the recipient of many awards and honors for his clinical and teaching abilities.

    
    

30. Dr. Penalver is ultimately responsible for all gynecological admissions to Jackson Memorial Hospital. He sees patients every day and frequently deals with the subject of ectopic pregnancies in his practice, both through his hands-on treatment of patients, as well as through discussions on the subject during hospital rounds.

    
    

31. It is concluded from a review of the credentials of Dr. Penalver and Dr. Brauner that Dr. Penalver excels in professional recognition among his peers and that his expert opinions should be given greater weight than those of Dr. Brauner.

    
    

32. Dr. Penalver testified that Respondent's diagnosis of a possible spontaneous abortion (commonly known as miscarriage) was the correct diagnosis based upon the information then known and was not a deviation from the prevailing standard of care for a Board-certified obstetrician and gynecologist. Dr. Penalver went even further by stating that this would have been his own diagnosis if he had examined the patient on June 20, 1983.

    
    

33. Respondent's plan to get a pap smear, get a Beta subunit, start the patient on basal body temperature charts, and get previous gynecological records was well-formulated and within the standard of care.

    
    

34. This case involved a very unusual presentation for a tubal pregnancy. The presenting symptoms and findings in this particular patient were such that a qualified gynecologist acting within the standard of care should not have been expected to have discovered the ectopic pregnancy.

    
    

35. Ectopic pregnancies usually present with pain and dizziness, accompanied by vaginal bleeding, and a positive pregnancy test. There were no complaints of pain or dizziness stated by the patient on either of her two visits to Respondent's office. To the contrary, the patient was affirmatively found to be "in no distress." Upon physical examination, the patient had no pelvic tenderness, no tenderness of her back, and no masses or tenderness of the adnexa (ovary and tubes). Adnexal masses and tenderness are common signs of an ectopic pregnancy. They were not noted in this patient.

    
    

36. The history provided by the patient and the physical examination performed by the doctor were inconsistent with an ectopic pregnancy. Instead, the history, physical examination, and Beta HCG tests were consistent with an early three to four week pregnancy that was in the process of miscarrying.

    
    

37. It was most likely that this was a three to four week pregnancy, but, even assuming that this was a seven, eight, or nine week pregnancy as contended by Petitioner, Respondent did not breach the standard of care pertaining to the diagnosis and treatment of an ectopic pregnancy.

38. Although the patient indicated that she had an irritable bowel syndrome, this was historical information. Respondent was made aware of her irritable bowel syndrome and included the condition in his progress notes along with other historical matters such as breast cancer in the patient's mother and the patient's allergies. If this was a current complaint, Respondent would have described the condition differently in his progress notes.

    
    

39. Respondent ordered the appropriate laboratory test, the Beta HCG subunit testing for the pregnancy hormone. This test revealed an HCG level of 3440 on June 20, which according to the laboratory's own criteria, correlated with a four week pregnancy. The HCG result was consistent with Respondent's finding during the pelvic examination of a top normal sized uterus and correlated with Respondent's diagnosis of a spontaneous abortion.

    
    

40. The drop of the HCG from 3440 to 2100 as occurred in this case was also consistent with a miscarriage and was inconsistent with an ectopic pregnancy. In an ectopic pregnancy, it would be expected that the HCG would be rising, but not at the rate of a normal pregnancy.

    
    

41. The standard of care utilized by obstetricians and gynecologists in 1983 did not require that Respondent order an ultrasound of this patient. An ultrasound is not diagnostic and would not discover an ectopic pregnancy when the HCG level is below 6000.

    
    

42. Respondent did not deviate from the standard of care by failing to provide ectopic precautions to the patient since an ectopic pregnancy should not have been suspected, based upon the patient's history and physical examination.

    
    

43. Respondent did not deviate below the prevailing standard of care for Board-certified obstetricians and gynecologists in 1983 by failing to diagnosis or treat an ectopic pregnancy in this patient, S. E.

    
    

    CONCLUSIONS OF LAW

    
    

44. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1) Florida Statutes.

    
    

45. The Administrative Complaint filed in this cause contains two Counts. Count Two was dismissed by the Petitioner at the commencement of the final hearing in this cause.

    
    

46. Count One alleges that Respondent misdiagnosed the patient's condition by failing to recognize the possibility of, and then rule out, a tubal pregnancy, and failed to timely order an ultrasound, thereby violating Section 458.331(1)(t), Florida Statutes, by committing gross or repeated malpractice or by failing 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. Petitioner offered no evidence that Respondent committed gross malpractice or repeated malpractice. Petitioner has also failed to carry its burden of proving, by clear and convincing evidence, that Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances.

47. Petitioner alleges that Respondent failed to consider the possibility that S. E. had an ectopic pregnancy and failed to give her ectopic precautions. Neither Respondent nor S. E. testified in this proceeding. Respondent's records do not reflect that he considered the possibility of an ectopic pregnancy or that he gave S.E. ectopic precautions.

    
    

48. Petitioner's evidence consists of the expert testimony of Dr. Brauner who reviewed Respondent's medical records on S. E. Based solely upon his review of those records, Dr. Brauner, a highly qualified physician, testified that Respondent deviated from the standard of care in his treatment of S. E., failed to consider that S. E. had an ectopic pregnancy, failed to give her ectopic precautions, failed to diagnose and rule out an ectopic pregnancy, and failed to order an ultrasound. On the other hand, Respondent presented the testimony of Dr. Penalver, a highly qualified physician, who, based upon his review of Respondent's medical records for S. E., testified that Respondent did not deviate from the standard of care, that Respondent correctly diagnosed and treated S. E., that there was no reason for Respondent to consider that S. E. had an ectopic pregnancy, that there was no need to give S. E. ectopic precautions, and that there was no reason for Respondent to order an ultrasound. In essence, the two expert witnesses disagreed on every aspect of Respondent's treatment of S. E.

    
    

49. It has been found in this Recommended Order that Dr. Penalver's qualifications are more extensive than Dr. Brauner's and that his opinion is, therefore, entitled to more weight than that of Dr. Brauner. Even if Dr. Brauner's opinion were given the same weight as Dr. Penalver's opinion, Petitioner would still have failed to meet its burden of proving that Respondent deviated from the standard of care in his treatment of S. E. For example, Dr. Penalver testified that an ultrasound is not diagnostic until a patient's HCG level reaches 6000 and, therefore, Respondent did not deviate from the standard of care by failing to order an ultrasound. Dr. Brauner testified that an ultrasound is diagnostic below the level of 6000 and, therefore, Respondent deviated from the standard of care by failing to order an ultrasound.

    Similarly, the other opinions elicited from the two witnesses produce one doctor answering in the affirmative and one doctor answering in the negative.

    
    

50. The parties have stipulated that S. E. in fact had an ectopic pregnancy. The evidence is clear that an ectopic pregnancy was not Respondent's working diagnosis. The greater weight of the evidence is that Respondent's diagnosis and treatment of S. E. based upon the history given to him by her, based upon his June 20 physical examination of her, based upon the Beta HCG test results received by him on June 22, and based upon his physical examination of her on June 23, was within the standard of care, and that Respondent did 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 in his diagnosis and treatment of S. E.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of

the allegations contained within the Administrative Complaint and dismissing the Administrative Complaint filed against him in this cause.

DONE and ENTERED this 29th day of July, 1991, at Tallahassee, Florida.

LINDA M. RIGOT

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 29th day of July, 1991.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-7859

1. Petitioner's proposed findings of fact numbered 1-6, 8, 14, 20, and 35 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 7, 10-13, 15, 16, 19, 22-24, 26-29, 31, 33, 34, and 44 have been rejected as not being supported by the weight of the evidence in this cause.

3. Petitioner's proposed finding of fact numbered 9 has been rejected as being subordinate to the issues involved in this cause.

4. Petitioner's proposed findings of fact numbered 17, 18, and

   21 have been rejected as being unnecessary for determination of the issues herein.

5. Petitioner's proposed findings of fact numbered 25, 30, 32, and 36-43 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law.

6. Respondent's proposed findings of fact numbered 2-34 and 36-

   51 have been adopted either verbatim or in substance in this Recommended Order.

7. Respondent's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.

8. Respondent's proposed findings of fact numbered 35 and 52-60 have been rejected as being unnecessary for determination of the issues herein.

COPIES FURNISHED:

Mark A. Dresnick, Esquire 2400 One Biscayne Tower Two South Biscayne Blvd. Miami, Florida 33131

Richard A. Grumberg, Senior Attorney Department of Professional Regulation Northwood Centre

1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Dorothy Faircloth, Executive Director Department of Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation Northwood Centre

1940 N. 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 contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007859

Orders for Case No: 90-007859