STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2367

)

THOMAS B. B. BENTON, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on September 10 and 11, 1991, in Gainesville, Florida.

APPEARANCES

For Petitioner: Mary B. Radkins, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Charles H. Livingston, Esquire

46 North Washington Boulevard, Suite 1 Sarasota, Florida 34236

STATEMENT OF THE ISSUES

The issue is whether respondent's medical license should be disciplined for the reasons set forth in the amended administrative complaint.

PRELIMINARY STATEMENT

This matter began on February 6, 1991, when petitioner, Department of Professional Regulation, Board of Medicine, filed an administrative complaint charging respondent, Thomas B. B. Benton, a licensed medical doctor, with having violated Section 458.331, Florida Statutes (1989) in two respects. More specifically, it was alleged that while treating a newborn infant patient in September 1989, respondent failed to keep written medical records justifying the course of treatment of the patient in violation of subsection 458.331(1)(m) and failed to practice medicine with the appropriate level of skill, care and treatment required by law in violation of subsection 458.331(1)(t). Respondent disputed these allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989). The matter was referred by petitioner to the Division of Administrative Hearings on April 19, 1991, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated May 10, 1991, a final hearing was scheduled on August 27-29, 1991, in Gainesville, Florida. At the request of petitioner the matter was rescheduled to September 10 and 11, 1991, at the same location. On August 1, 1991, this

case was transferred from Hearing Officer William F. Quattlebaum to the undersigned hearing officer.

By order dated July 17, 1991, petitioner was granted leave to file an amended complaint. The amended complaint was filed for the purpose of clarifying the charges regarding the alleged medical records violation.

Thereafter, respondent's motion to dismiss and motion for partial summary order of dismissal were denied by order dated September 4, 1991.

At final hearing, petitioner presented the testimony of Dr. Andrew M. Muskus, II, a board certified obstetrician and gynecologist who practices in Gainesville, Mary O'Pray and Karen Bryant, both registered nurses, Dianne Rabideau-Wise, a DPR investigator, Dr. Nancy H. Dawber, a Clearwater pediatrician and accepted as an expert in pediatrics, and Dr. Samuel Henry Moorer, Jr., a Tallahassee pediatrician and accepted as an expert in pediatrics. Also, it offered petitioner's exhibits 1-10. All exhibits were received except exhibits 6-8. Exhibit 4 is the deposition of Dr. Sally Jones Martin, an Atlanta, Georgia pediatrician. Respondent testified on his own behalf and presented the testimony of Dr. Mark Pashayan, a board certified pediatrician in Gainesville and accepted as an expert in pediatrics, and Beverly Woods, a registered nurse. Also, he offered respondent's exhibits 1 and 2. Both exhibits were received in evidence. Exhibit 1 is the deposition of Dr. Jack H. Hutto, Jr., a board certified pediatrician in St. Petersburg and accepted as an expert in pediatrics.

The transcript of hearing was filed on October 15, 1991. Proposed findings of fact and conclusions of law were filed by the parties on October 30, 1991. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. At all times relevant hereto, respondent, Thomas B. B. Benton, was a licensed medical doctor having been issued license number ME 0053353 by petitioner, Department of Professional Regulation, Board of Medicine (Board). Benton is a 1985 graduate of the University of Florida College of Medicine and has been licensed in this state since 1988. He is also licensed in the State of Texas. He has been a board certified pediatrician since 1989. When the events herein occurred, respondent was practicing as a pediatrician in Gainesville, Florida with privileges at Alachua General Hospital, Inc. (AGH) and North Florida Regional Hospital and an affiliation with Shands Teaching Hospital (Shands) as clinical faculty. Finally, respondent has never been subjected to disciplinary action by the Board or any other medical authority.

      
      

   2. On September 15, 1989, M. P., then an eighteen year old female, delivered a newborn infant by Caesarian Section (c-section) at AGH. Immediately after delivery, the infant was transferred to respondent's care and placed in the AGH nursery with approximately seventeen other infants. Around 1:15 a.m. on September 16, the infant was found face down in the crib not breathing. After efforts to resuscitate the infant were unsuccessful, it was pronounced dead. An autopsy was performed but the cause of death was not determined. An AGH peer review of the incident concluded that respondent did not act inappropriately.

      However, because a death had occurred, a "serious incident report" was filed with the Department of Health and Rehabilitative Services which then contacted the Board. This resulted in the Board conducting an investigation and, after determining by a 2-1 vote that probable cause existed, filing an administrative complaint against respondent on February 6, 1991, charging him with having failed to maintain adequate medical records and with failing to adhere to the appropriate standards of care and skill while treating the infant. That prompted respondent to request a hearing to contest the charges in the complaint.

      
      

2. The Mother and Her Medical Background

1. The unmarried mother of the deceased infant became pregnant in late 1988 or early 1989. On April 5, 1989, she visited the offices of Dr. Andrew M. Muskus, II, a Gainesville obstetrician and gynecologist. During that visit, M.

   P. was examined by a nurse and a history was taken. On April 26, Dr. Muskus saw the patient for the first time. She was then approximately seventeen weeks pregnant. Doctor Muskus found her past medical history to be "significant" because M. P. was single, smoked cigarettes, had previous surgery on her femur, had a history of bronchitis and pneumonia, had chronic mild anemia, and had once used alcohol and "street" drugs. However, there is no indication that the mother used drugs or alcohol during her pregnancy. A standard prenatal profile revealed nothing significant except that M. P. had lordosis, or a curvature of the spine. Through the use of an ultrasound imaging taken on May 16, Dr. Muskus determined a due date of October 5, 1989. The ultrasound also indicated the possibility of an early hydrocephalus, that is, enlarged ventricles in the infant's brain, and a low spinous defect. Because of this, Dr. Muskus made an appointment for the patient to have a second tertiary level ultrasound performed at Shands. After those results became available, Dr. Muskus intended to offer the patient the opportunity to terminate the pregnancy if such testing resulted in a poor prognosis for the baby.

   
   

2. On May 17, 1989, the ultrasound was performed at Shands and the following findings were made:

   
   

   There is clearly dilatation of the posterior horns with CSF medial to the depending choroid plexus. The cerebellum and other intracranial structures appear normal. The

   third ventricle does not appear enlarged. The spine appears normal. Amniocentesis was performed under ultrasound guidance and the impression was ventricularmegaly of the posterior horns of the lateral ventricles.

   The patient was referred to genetic counseling.

   
   

   Although a total of seven ultrasounds were eventually performed, four by Shands and three by Dr. Muskus, no definitive diagnosis was ever made. However, Shands concluded there was a nonexpanding hydrocephalus and "felt" there was a "possibility" of a form of holoprosencephaly and agenesis (absence) of the corpus callosum, a central structure in the midbrain. The absence of this structure meant the baby would have a congenital brain malformation, although such a neurological deficit is not necessarily critical or disabling and may be compatible with continued life. Even so, neither Dr. Muskus nor Shands had an opinion on the infant's prognosis and Dr. Muskus acknowleged that there was some "hedging" by both he and Shands on this issue.

3. After the initial evaluations were concluded, Dr. Muskus spoke to M. P. and indicated there was a problem with the baby. He asked her to make a decision on whether she wanted to continue to term or abort the pregnancy. However, by the time all of the evaluations were concluded, it was too late to terminate the pregnancy and the patient had no choice in the matter. Doctor Muskus accordingly formulated a treatment plan with the assistance of the Shands doctors.

   
   

4. The Shands physicians and Dr. Muskus agreed the baby was growing properly, and except for a possible problem with the brain, they forsaw no other difficulties. In addition, they agreed the baby could be delivered vaginally. Although Shands offered to deliver and care for the baby, M. P. had become "disenchanted" with the Shands staff and strongly desired to have the delivery at AGH at the earliest opportunity. Acceding to her wishes, Dr. Muskus agreed to perform a c-section at 39 weeks, or on September 28, 1989, and to have the baby transported to Shands in the event it became necessary. He also made arrangements to turn the care of the baby over to respondent at the time of the delivery. This was because respondent was a pediatrician designated by M. P.'s health insurance carrier (Av-Med).

   
   

5. Prior to the delivery, Dr. Muskus spoke to Dr. Benton in the hospital hallway one day to make sure he felt comfortable assuming care of the baby. Respondent replied that he had no problem in doing so. Also, Dr. Muskus sent a letter to respondent on August 18, 1989, a copy of which has been received in evidence as respondent's exhibit 2. The letter read in relevant part as follows:

   
   

   Miss P. is an 18 year old white female who at approximately 20 weeks in the pregnancy was noted to have an abnormal ultrasound which suggested possible early mild hydrocephalus. Subsequently she was referred to Shands Teaching Hospital where a second opinion was requested. An amniocentesis was done at

   that time and a normal 46XY chromosome analysis was reported along with a normal alpha fetoprotein screen. Dilatation of the posterior horns of the lateral ventricles was noted at that time as well. Subsequently

   she was followed at intervals by Shands with ultrasounds. Except for the defect noted in the head, the fetus seemed normal otherwise. Most recently, the diagnosis of possible agenesis of corpus callosum was noted.

   Additionally, although the posterior horns were dilated, the head was not enlarged and the fetus seemed to be growing appropriately. No other ultrasound determined defects were noted.

   
   

   Presently the patient is at 34 weeks in her pregnancy and is due on October 5th. She is quite dissatisfied with her management at Shands, feeling that she has been given contradictory information. She strongly wishes to be delivered at Alachua General

   by c-section to be done probably in late September.

   
   

   Tom, I wanted to give you some advance information about the patient who really is quite pleasant and also quite nervous about this pregnancy. If any additional information is necessary which you feel I can provide you, please feel free to call upon me. We will make arrangements with your office to coordinate the timing of

   the c-section.

   
   

6. After receiving the letter, and in view of the reference therein to the absence of a corpus callosum, respondent reviewed a pediatrics textbook to familiarize himself with that particular neurological condition. In this way, he became aware of the condition and its ramifications prior to the c-section. It should also be noted here that both of petitioner's expert pediatricians reviewed pediatrics textbooks to familiarize themselves with the same neurological term prior to giving standard of care testimony at hearing.

   
   

7. Doctor Muskus considered M. P. to have a "high-risk" pregnancy because of the mother's social problems (she continued to smoke and had once used alcohol and street drugs) and the obvious anatomic problems with the baby.

   
   

   1. Events Immediately Prior to Delivery

      
      

8. Because of lower back ache, nausea, low-grade fever, uterus instability and cramping, which had persisted for several days, M. P. was admitted to AGH on September 14, 1989. However, the patient presented no indication that she was in labor. This was approximately two weeks before her scheduled c-section. On admission, M. P.'s temperature was 101.2 degrees. Standard blood studies and cultures were ordered for the patient but the blood studies revealed nothing (except a mildly elevated blood count) to assist Dr. Muskus in determining "what was going on with the patient". Because Dr. Muskus suspected (but could not confirm) that she may have had pyonephritis, a urininary tract infection, particularly since she had been exposed to a nephew with viral symptoms, he ordered that antibiotics (Rocephin IV) be administered intravenously. As a result, in six hours her temperature reading was brought down to 100.2 degrees. In addition, even though M. P. was not in labor, Dr. Muskus prescribed Terbutaline subcutaneously for uterus irritability. After conferring with two associates, Dr. Muskus decided to delay formulating a treatment plan until he saw the results of the cultures which were due back two days later. However, he later came to the conclusion that even though there was no fetal distress, the patient "looked in obvious distress", and he should move the c-section up from September 28 to the next day, or Friday, September 15. Doctor Muskus accordingly contacted Dr. Benton on the morning of September 15 to advise him that M. P. was in the hospital and of the rescheduled delivery. By this time, the mother's fever had subsided for some twenty-four hours.

   
   

   1. The Delivery

   
   

9. Because respondent only learned of the patient's admission to the hospital and the new delivery date a few hours before the operation, he had only one brief opportunity to speak with M. P. as she lay on the c-section table just prior to being rolled into the operating suite. The nature of that conversation is not of record. 1/ The c-section was a typically planned one - a primary low,

   transverse-type section. The fetus was monitored until the section was actually started and the infant (a male) delivered in the usual fashion around 12:47 p.m. weighing five pounds, twelve ounces. This was approximately thirty hours after

   M. P. had been admitted to AGH. Because a very light meconium stain was noted at the time of delivery, the baby's nose, mouth and stomach were suctioned while the head was through the incision. This is a normal procedure when meconium is present. There was no meconium detected below the vocal cords. After the placenta was removed, Dr. Muskus observed a substantial amount of clotting behind the placenta which was caused by a placenta abruption. This means there was a premature separation of the placenta from the uterine wall. The doctor believed there to be a thirty to forty percent abruption and this was later confirmed by the pathology department. However, the mother's actual blood loss related to the c-section was quite low, being about 300 CCs, and there was no need to transfuse her. Further, there was no loss of blood by the fetus.

   
   

10. After the baby was delivered, Dr. Muskus clamped the cord and handed the baby to Dr. Benton. According to Dr. Muskus, the baby appeared "like a healthy baby" and he felt that M. P. was "fortunate to get such a healthy- looking child". Indeed, Dr. Muskus noted at hearing that he could not see any difference between M. P.'s baby and any other healthy newborn baby in the maternity wing. He added that there was never any indication of fetal distress in the baby.

    
    

    1. Events Immediately After Delivery

       
       

11. As noted above, when the baby was delivered, meconium staining was observed. Also, the infant required some resusitative techniques. Respondent, who was present in the delivery room, administered oxygen with a bag and mask and suctioned the airways "deeply" with an Ambu intratracheal incubation suction. This produced immediate responsiveness on the part of the baby. Once respondent considered the baby to be stable, he carried the newborn to the head of the operating table and showed it to the mother. The baby was then transferred from the operating suite to the newborn nursery.

    
    

12. Just after the delivery occurred, and while still in the operating suite, the baby was examined to determine its Apgar score. An Apgar score is a quantitative scoring system to summarize an infant's condition at birth for the purpose of showing whether intervention by the doctor is appropriate. Five criteria are used with each criterion given a score of zero, one or two. The scores are then totaled with zero meaning a lifeless baby and ten meaning perfectly normal. A score of three and below indicates the baby is in a life- threatening condition while a score of four to seven demonstrates the need for immediate intervention. Anything above seven indicates the baby is normal. In this case, at one minute after birth the infant had an initial score of four due to a "depressed" condition which meant that prompt intervention (resuscitation) was required. After resuscitation was given, the infant's Apgar score was raised to eight within five minutes, which is a normal score.

    
    

13. The baby was given a physical examination by respondent within thirty minutes after birth. The examination revealed that the baby was not significantly outside the normal ranges in any examined area. Indeed, all vital signs were stable. More specifically, respondent's examination found no problem with the infant's skin color and tone, head, neck, eyes, ears, nose, throat and heart. Although the baby's respiratory rate was slightly higher than normal, this was not unusual because the mother had previously been given Terbutaline, which tends to increase the heart rate of both mother and fetus.

    1. The Nursery

       
       

14. AGH had a nursery that was divided into two sections. The front section was for so-called "well-babies" and was designed to hold between fifteen and twenty babies during the transition period immediately after birth. Behind the front section was a smaller intermediate care section with special equipment (respiratory, apnea and cardiac monitors) to handle from six to eight babies who required more attention. Generally, but not always, a newborn is placed on a monitor only with specific orders from the attending pediatrician. It should also be noted that the evidence supports a finding that the use of monitors is not always a reliable method for detecting a problem with an infant. Indeed, one of petitioner's experts acknowledged that an experienced nurse can be better than a monitor.

    
    

15. The well-baby section was always staffed by three nurses at any time. Each nurse was responsible for no more than six babies. According to the Guideline for Perinatal Care, this ratio (6:1) is the accepted or normal nurse- to-baby ratio in hospitals. Conversely, the intermediate care section had one nurse for every two babies. As a general rule, a nurse would rotate from baby to baby during her duty shift to verify that the baby was not in trouble. Among other things, the nurse would check the baby's vital signs, color and responses to external stimuli. Although some nurseries have a practice of checking on the "normal" babies every four hours, the AGH nursery staff examined the babies more frequently.

    
    

16. AGH is an experienced hospital in terms of delivering and caring for babies. In 1989 alone, there were some 2,000 babies delivered at the hospital. The nurses who were on duty in the nursery on the evening of September 15, 1989, included one with more than twenty years of experience and others who had several years experience in newborn nurseries. There is no evidence to suggest or support a finding that the nurses on duty that evening were not competent and qualifed personnel.

    
    

    1. Treatment While in the Nursery

       
       

17. When the baby was transferred to the nursery, respondent gave a routine standing order that the baby be monitored like all other newborns and that he be immediately notified by the nursery if any unusual event occurred with respect to the infant. He did not order that the infant be placed on a monitor or in the intermediate care portion of the nursery. Finally, he did not advise the nursery staff of the baby's neurological deficit although this information could be easily found in the baby's medical chart.

    
    

18. Around 4:00 p.m. that same afternoon, Dr. Muskus briefly visited the nursery to see the baby. He observed that the baby's breathing was unlabored, it had a good pink color, it was moving all extremities well, and it "looked quite comfortable in the crib". At that time, Dr. Muskus told the head nurse that she might want to ask Dr. Benton about the possibility of placing the baby on a monitor given his medical history.

    
    

19. Doctor Benton visited the nursery around 4:45 p.m. on September 15 to check on the infant's condition. After he examined the infant and found no problems, the head nurse mentioned to him the suggestion by Dr. Muskus regarding the use of a monitor. Respondent declined to order a monitor on the ground his research on the subject of an absent corpus callosum reflected no mention of associated respiratory or cardiac problems. Since he had no reason to suspect apnea or cardiac arrest, he concluded there was no reason to use a monitor.

20. During the transition period, that is, the first four hours after the baby was born, it was monitored once each hour by the nursing staff. During that time, it was necessary for a nurse to warm the baby with warm water gloves due to a low body temperature. However, this was not unusual for a newborn who has cooled off in the delivery room and has very little fat. During the next seven hours prior to its death, the infant was fed four times and his vital signs were checked on three occasions. Except for a rash, which is common to all newborn babies, and a minor elevation of pulse and respiration, there were no signs of any problems. The baby's vital signs were last checked just before midnight on September 15 and were found to be stable. The baby was found not breathing at 1:10 a.m. the following morning. The cause of its death has never been determined. /2

    
    

    1. Failure to Order Further Tests

       
       

21. The amended administrative complaint alleges that respondent deviated from the standard of care while treating the infant in a number of respects. One such alleged deviation is his failure to order laboratory studies or x-rays to ascertain if the newborn had sepsis (infection) or anemia. As framed in the

    complaint, this charge is predicated principally on the factual allegations that "the mother had a fever at delivery" and she suffered a "placental abruption" and thus further tests were warranted.

    
    

22. Initially, it is noted that the mother did not have a fever at delivery. While it is true that M. P. had a temperature of 101.2 degrees on admission to the hospital, antibiotics had dissipated the fever within six hours. Moreover, Dr. Muskus's initial suspected diagnosis of pyonephritis had proven to be incorrect, 3/ and the results of cultures, both preliminary and final, confirmed that the mother did not have an infection.

    
    

23. Both of petitioner's experts suggest that given the maternal fever and the uncertainty as to its cause, respondent should have ordered such supplementary tests as a complete blood count (CBC), cultures, urine screen (for strep antigen), and chest x-ray to ascertain whether the baby had an infection. However, the more credible and persuasive evidence supports a finding that respondent had no reason to suspect the baby had an infection and therefore such tests were not necessary given the circumstances present here. Respondent reached this conclusion because the mother no longer had a fever and initial tests suggested rather strongly that the mother did not have an infection. Indeed, respondent's judgment was borne out by the mother's culture results which reflected that the mother did not have an infection. In addition, at the time of delivery respondent had the benefit of information from Dr. Muskus that initial reports (after 30 hours) of M. P.'s urine cultures were negative. It should also be noted here that no evidence was submitted by petitioner, including the pathologist's post-mortem report, to establish that the infant had an infection. Finally, because the infant's vital signs were stable, and there was no sign of distress, it was appropriate to merely closely monitor the infant without the benefit of further work-up.

    
    

24. Petitioner's experts have also asserted that respondent erred by failing to perform additional tests to determine if the infant was anemic. Anemia is of course blood loss and this occurs most frequently in a newborn in conjunction with a complete separation of the placenta from the uterine wall. Under those circumstances, both parties agree that a CBC with a hemoglobin hemacrit is appropriate. However, a free flow of blood into the uterus or vagina does not occur unless the placenta is lifted completely off of the

    uterine. In this case, there was only a partial abruption or separation of the placenta from the uterine wall and therefore the possibility of anemia was slight at best. Although anemia cannot be determined solely by physical appearance, the color of a baby is nonetheless a good indicator. Here, a physical examination of the child immediately after delivery revealed that the infant had a good pink color and no abnormal signs, and there were no clinical features of anemia in the baby. Further, petitioner offered no evidence to establish that the infant was anemic. Accordingly, it is found that respondent did not deviate from the appropriate standard of care by failing to order additional tests on the infant to confirm or deny the existence of anemia.

    
    

    1. Failure to Use Monitor or Intermediate Care Section in Nursery

       
       

25. The amended complaint also alleges that respondent deviated from the standard of care by failing "to adequately monitor or (place) said Patient #1 either with cardiac/apnea monitor or placing said Patient in an intermediate care nursery". As noted earlier, respondent chose not to place the infant on a monitor or in the intermediate care nursery. Petitioner's experts have criticized this decision on the ground the baby's history and danger signals justified closer observation than that given in the well-baby portion of the nursery.

    
    

26. Respondent did not place the child on a monitor because this action was not indicated. Indeed, there was no suggestion of any increased respiratory risk for the infant, respondent knew that the infant would be checked more frequently than every four hours by an experienced and competent nursing staff, the infant's vital signs were stable, and there was no correlation between the infant's neurological deficit and the conditions for which monitors are used (apnea and cardiac arrest). Therefore, it is found that respondent did not deviate from the standard of care by failing to place the child on a monitor or in the intermediate care nursery.

    
    

    1. Instructions for the On-Call Physician

       
       

27. Paragraph 22 of the amended complaint alleges that respondent "left the hospital (on the evening of September 15) without informing the on-call physician of Patient #1's presence in the nursery, nor informing this physician of Patient #1's multiple medical problems" and that this omission constituted a deviation from the standard of care.

    
    

28. It is a common practice in the medical profession for a physician to share on-call coverage with other doctors. This means that when the primary physician is absent, another doctor will cover his patients. Under accepted practice in the medical community, if a newborn is in the well-baby nursery, and its vital signs are stable, there is no requirement that the primary physician give detailed information regarding the infant to the on-call doctor. Further, if an on-call doctor is not expected to have to deal with a problem, no special communication is necessary. In this regard, the judgment of the physician is especially important. Conversely, if special tests have been ordered for the infant, or other unusual circumstances are anticipated, a doctor would generally be expected to telephone or otherwise communicate in some way to the on-call doctor the nature of those circumstances.

    
    

29. When the events herein occurred, respondent shared "on-call coverage" with Dr. Sally J. Martin, then a Gainesville pediatrician, and two of her associates. As it turned out, respondent left Gainesville for the week-end after he last saw the infant late on the afternoon of September 15, and Dr.

    Martin was on-call for his patients. Respondent left no instructions or other information with Dr. Martin concerning this infant.

    
    

30. Doctor Martin received a telephone call from the nursery early on the morning of September 16. Upon arriving at the hospital, Dr. Martin found the baby being given resuscitation. However, these efforts were unsuccessful and the baby was pronounced dead at 1:30 a.m. According to Dr. Martin, she was unaware of any "brain problem" with the infant until she reviewed the medical charts that night at the hospital. She found no specific orders in the notes except that respondent planned to monitor the infant closely. Prior to being called, Dr. Martin had no indication from the nursery that the baby was in difficulty or experiencing any problem. However, this was to be expected since the infant's vital signs were stable when it was last checked just before midnight.

    
    

31. Respondent did not apprise Dr. Martin of the baby's condition because, in his judgment, he did not believe there was an issue she would have to deal with while she was on-call. Further, the baby presented stable vital signs, appeared healthy, was not in distress, and was being monitored on a frequent basis by an experienced nursery staff. Therefore, respondent's failure to specifically apprise Dr. Martin of the baby's condition was not a deviation from the standard of care.

    
    

    1. Medical Records

    
    

32. The amended complaint also charges respondent with having inadequate medical records in that they indicated "(n)o definitive treatment plan for Patient #1. Specifically, Respondent's only references to the treatment of Patient #1 were to 'monitor closely' and obtain neurological follow-up after discharge". The complaint goes on to allege that respondent failed to keep adequate medical records "justifying the course of treatment" and his actions were inconsistent with the records.

    
    

33. Respondent's written records concerning the treatment of the baby include an entry made on September 15, 1989. The entry is found on page 96 of petitioner's exhibit 3. To the extent the undersigned was able to decipher respondent's handwriting, those notes are set forth below:

    
    

    9/15/89 1:15p Asked to attend c/sect for this

    37 1/2 wk old (illegible) Ultrasound dx of hydrocephalus (static) and absent corpus callosum. Mother presented with severe pain R/O (illegible) at 36 hrs (illegible) Meconium stain at delivery (illegible) but none below cords - 40% abruption; Initially no resp effort but responded to bag & mask vent and vigorous stimulation. Apgar 4, 8. Plan to monitor closely, will need neurological follow up after D/C. (Emphasis added)

    
    

    The underscored language constituted respondent's treatment plan. In this regard, petitioner's experts and the complaint allege that (a) Dr. Benton failed to keep adequate medical records justifying the course of treatment and (b) although respondent indicated he was going to monitor the baby closely, he took a different course of action and did nothing other than routine newborn care.

34. According to respondent, the treatment plan meant that after discharge the infant would need closer than normal monitoring and follow-up care, including a referral to a neurologist and perhaps other specialists. The referral to a specialist would be made several months later.

    
    

35. There is no evidence to support a finding that respondent made an inaccurate or false statement in his records. Further, there is insufficient evidence to support a finding that respondent failed to document his course of treatment. According to Drs. Hutto and Pashayan, whose testimony has been accepted on this issue, the appropriate course of treatment for this infant, as indicated in the notes, would be to closely monitor the infant in a regular nursery and to follow up as to the congenital defects between six and nine months after birth. Moreover, a regular nursery would be appropriate because the AGH nursery provided more frequent monitoring of the newborns than in other hospital nurseries. In addition, the accepted meaning within the medical community of the words "monitor closely" is that the physician is going to initially closely monitor the baby in the regular nursery to determine if any changes occur, and after discharge, to continue to monitor the child in an out- patient setting for growth, neurological development, and the like. If and when other conditions develop, at that point a different protocol would be required. Thus, it is found that respondent's medical records were adequate in terms of justifying his course of treatment, a neutral third party could glean from the records what transpired during the course of treatment, and respondent's actions did not deviate from the treatment plan.

    
    

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

    
    

37. Because respondent's professional license is at risk, petitioner is obligated to prove the allegations in the administrative complaint, as amended, by clear and convincing evidence. See, e. g., Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

38. The administrative complaint, as amended, alleges that respondent violated Subsection 458.331(1), Florida Statutes (1989) in two respects. First, it is alleged that respondent "failed to keep written medical records justifying the course of treatment of the patient by failing to document an acceptable treatment plan for (the patient)" in violation of subsection 458.331(1)(m). Secondly, it is alleged that respondent failed to practice medicine with that level of care, skill, and treatment which a reasonably prudent similar physician recognizes as acceptable under similar conditions and circumstances in violation of subsection 458.331(1)(t) by virtue of the following conduct:

    
    

    "Respondent failed to assess Patient #1 for sepsis, which was indicated due to the presence of maternal fever; Respondent failed to assess Patient #1 for anemia, which was indicated due to the presence of placental abruption (35%-40%); Respondent failed to adequately monitor Patient #1 (either with cardiac/apnea monitor or placing said Patient in an intermediate care nursery), who had multiple medical problems and abnormal vital signs during the four hours of life; and

    Respondent left the hospital without informing the on-call physician as to the presence of said Patient with multiple medical problems

    in the regular newborn nursery." (pages 6-7, amended administrative complaint)

    
    

39. In determining the legitimacy of the medical records charge in Count I, it is helpful to refer to the case of Breesmen v. Department of Professional Regulation, Board of Medicine, 567 So.2d 469 (Fla. 1st DCA 1990). In that case, the court held it was not a violation of subsection 458.311(1)(m) for a doctor to fail to document in a patient's medical chart a basis for not undertaking a particular course of treatment. Rather, the court held the statute in question comes into play whenever there is a showing that a physician "did not record all medical treatment administered to his patient, or that the entries he made were false or inaccurate". Id. at 471. The case of Robertson v. Department of Professional Regulation, Board of Medicine, 574 So.2d 153 (Fla. 1st DCA 1990) also suggests that a violation of subsection 458.331(1)(m) may occur when medical records are so inadequate that "neutral third parties can(not) observe what transpired during the course of treatment of a patient". Id. at 156. In paragraphs 25 and 26 of the original complaint, petitioner alleged that respondent violated subsection 458.331(1)(m) because he "failed to document his reasons for not ordering a cardiac/apnea monitor for Patient 31 (sic)" and "failed to document his reasons for not ordering studies to assess Patient #1 for the possibility of sepsis or anemia". Presumably because of the Breesmen decision, petitioner later amended its complaint to delete former paragraphs 25 and 26 and to add a new paragraph 25 in lieu thereof which alleged that "there is a contradiction between Respondent's words 'closely monitor' and his actions, specifically a lack of any work-up or extra attention". As presently framed, then, the complaint alleges that respondent violated the medical records statute in two respects. First, respondent failed to document an acceptable treatment plan for the infant, and second, he failed to follow his own written treatment plan which called for the close monitoring of the baby. As to the first portion of the charge, the greater weight of the evidence supports a conclusion that no violation has occurred. This is because the evidence indicates that respondent's medical notes convey an acceptable treatment plan for the infant, that is, the infant would be closely monitored during the period immediately after birth and, subsequent to discharge, would be closely monitored in an out- patient setting and also referred to a neurologist for further evaluation and consultation. Therefore, the statute has not been violated in this respect. To support a violation of the statute under the second theory, petitioner has cited in its proposed order the case of Department of Professional Regulation v. Jamilla, 12 F.A.L.R. 544 (Board of Medicine, December 28, 1989) and the rationale expressed therein. In Jamilla, the Board concluded a violation of subsection 458.331(1)(m) had occurred where the respondent-physician resumed "aminophylline therapy" on a patient without documenting the reasons why that course of treatment was used. Petitioner argues that in the instant case, respondent mirrored the acts of Dr. Jamilla by documenting a course of treatment suggesting close monitoring of the baby but then did nothing more than treat the patient as a normal child. However, the more credible and persuasive evidence supports a conclusion that respondent's actions were consistent with the treatment plan, a neutral third party could observe what transpired during the course of treatment, and thus the records were not inaccurate or misleading. Accordingly, the first count has not been sustained.

    
    

40. The second count involves allegations of malpractice on the part of respondent, that is, he allegedly failed to meet the standards of care and skill by failing to (a) perform certain follow-up tests on the infant, (b) place the

    infant on a monitor or in the intermediate care nursery immediately after birth, and (c) inform the on-call physician as to the infant's medical problems. Here, as before, the testimony is conflicting with the respective experts having reached different conclusions. Having accepted the testimony of Drs. Hutto and Pashayan as being persuasive on this issue, it is concluded that there is less than clear and convincing evidence to sustain this charge.

    
    

41. In summary, petitioner has failed to meet its burden of proving by clear and convincing evidence that the alleged violations occurred. This being so, the administrative complaint, as amended, should be dismissed with prejudice.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint filed against

respondent be dismissed, with prejudice.

DONE and ENTERED this 7th day of November, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 7th day of November, 1991.

ENDNOTES

1/ According to Dr. Hutto, who gave expert testimony on behalf of respondent, most pediatricians do not have an opportunity to consult with the mother before the birth of the child. In any event, despite suggestions to the contrary, respondent was not charged with failing to confer with the mother prior to delivery.

2/ The autopsy performed after the infant's death confirmed the absence of a corpus callosum. It also revealed the septum pellucidum and fornix were absent. Finally, the report reflected a midline fusion of the cingulate gyrus consistent with lobar holoprosencephaly. The significance, if any, of these latter two findings was not disclosed. However, the medical examiner was unable to determine the cause of death.

3/ It was established that even if the mother had pyonephritis, this would not increase the baby's risk of sepsis, particularly where it occurred a day or two before the baby was delivered.

APPENDIX

Petitioner:

1-3. Partially adopted in finding of fact 3.

1. Partially adopted in findings of fact 3 and 4.

2. Partially adopted in findings of fact 4, 5 and 6.

3. Partially adopted in finding of fact 6.

4. Partially adopted in finding of fact 7.

5. Partially adopted in findings of fact 3 and 9. 9-10. Partially adopted in finding of fact 10.

1. Partially adopted in findings of fact 10 and 11.

2. Partially adopted in findings of fact 11, 13 and 14.

3. Partially adopted in findings of fact 13 and 14.

4. Partially adopted in finding of fact 12. 15-16. Partially adopted in finding of fact 11.

1. Partially adopted in findings of fact 13 and 19.

2. Partially adopted in finding of fact 19.

3. Partially adopted in finding of fact 16.

4. Partially adopted in finding of fact 17.

5. Partially adopted in finding of fact 22.

6. Partially adopted in finding of fact 20.

7. Partially adopted in finding of fact 21.

8. Partially adopted in finding of fact 22.

9. Partially adopted in finding of fact 32.

10. Partially adopted in finding of fact 31.

11. Rejected as being irrelevant.

12. Partially adopted in finding of fact 2 and footnote 2.

13. Partially adopted in finding of fact 2.

14. Partially adopted in finding of fact 11.

15. Partially adopted in finding of fact 30.

16. Rejected as being contrary to the accepted evidence.

17. Partially adopted in findings of fact 13, 14, 25 and 26.

18. Rejected as being contrary to the evidence.

19. Partially adopted in findings of fact 25 and 26.

20. Rejected as being contrary to the accepted evidence.

21. Partially adopted in finding of fact 26.

22. Partially adopted in findings of fact 25 and 26.

23. Rejected as being contrary to the accepted evidence.

24. Partially adopted in finding of fact 40. 41-43. Rejected as being unnecessary.

Respondent:

1. Partially adopted in finding of fact 1.

12. Partially adopted in findings of fact 25, 26 and 28. 13-14. Covered in preliminary statement.

15. Rejected as being unnecessary.

15a. Partially adopted in finding of fact 25. 15b. Partially adopted in finding of fact 26.

15c. Partially adopted in findings of fact 16, 27, and 28. 15d. Partially adopted in findings of fact 30-33.

15e. Partially adopted in findings of fact 35-37. 16-17. Rejected as being unnecessary.

1. Partially adopted in finding of fact 28.

2. Partially adopted in finding of fact 37.

3. Rejected as being irrelevant.

4. Partially adopted in finding of fact 1.

Note - Where proposed findings have been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, not supported by the evidence, a conclusion of law, argument, cumulative, or subordinate.

COPIES FURNISHED:

Mary B. Radkins, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Charles H. Livingston, Esquire

46 North Washington Blvd., Suite 1 Sarasota, FL 34236

Jack L. McRay, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Dorothy Faircloth, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0750

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. 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: 91-002367

Orders for Case No: 91-002367