STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2813

)

TARIQ H. ABDULLAH, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on October 28, 1991, in Crestview, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esq.

Department of Professional Regulation 730 S. Sterling Ave, Suite 201

Tampa, FL 33609

For Respondent: Thomas G. Sherman, Esq.

218 Almeria Ave.

Coral Gables, FL 33134 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.

PRELIMINARY STATEMENT

On March 7, 1991, Petitioner issued an Administrative Complaint containing nine counts or alleged violations by Respondent of various provisions of Chapter 458, Florida Statutes. Respondent requested a formal administrative hearing on these charges. Subsequently, the matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner was permitted to delete all paragraphs comprising counts one, four, five, six, and eight of the Administrative Complaint, leaving only counts two, three, seven, and nine. Petitioner further deleted paragraphs 8, 14-16, and that portion of paragraph 35 in count three of the Administrative Complaint containing the allegation that Respondent failed to examine the patient before, during or after labor.

Petitioner presented the testimony of three witnesses and five evidentiary exhibits. Respondent presented the testimony of two witnesses, including himself. Respondent was also presented six evidentiary exhibits, inclusive of one posthearing deposition. The transcript of the final hearing was filed with the Division Of Administrative Hearings on December 11, 1991.

Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is Tariq Abdullah, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0021526. Respondent's last known address is Route 2, Box 124, Laurel Hill, FL 32567-9511.

   
   

2. Although he is not board certified as a specialist in the areas of obstetrics or gynecology, Respondent was employed by the Milton Memorial Birthing Center (Center) near Laurel Hill, Florida, in the multiple capacity of medical director, co- administrator and physician at all times pertinent to this proceeding.

   
   

3. Respondent has a wealth of practical experience in the delivery of babies gained through working with his mother, a midwife for many years who delivered babies over a large expanse of northwest Florida and south Alabama.

   
   

4. The patient was 18 years of age and pregnant when she came to the Center for a prenatal care visit on January 28, 1989. From that visit until April 29, 1989, Respondent provided medical care and treatment to the patient.

   
   

5. Either at the initial visit or shortly thereafter, the patient signed a "CONSENT TO DELIVER IN A BIRTH CENTER" form at the Center. According to representations set forth on that form, the patient acknowledged her understanding that a physician or graduate midwife duly licensed to practice in the State of Florida would attend her during labor and delivery.

   
   

6. In the event that she or her child faced medical complications during labor or after birth, the form indicated the patient's consent to transfer of either the infant or herself to the hospital for further care. The form was explained to the patient by a midwife at the Center. The midwife also prepared the patient for visits with the doctor by taking the patient's blood pressure, weight and urine samples during prenatal visits.

   
   

7. On April 29, 1989, at approximately 1:00 a.m., the patient entered the Center in labor. She entered the second stage of labor at approximately 12:15

   p.m. that same day. The patient did not progress adequately during the second stage and, over four hours later, at 4:25 p.m., had not delivered. As a result, she was transported to the hospital in Andalusia, Alabama.

   
   

8. The patient was transferred to the hospital in Alabama, although personnel at that facility had previously notified personnel at the Center that a lack of necessary personnel and equipment would prevent the hospital from serving as the Center's referral back-up facility for obstetrical patients in future emergency situations.

   
   

9. When contacted by Respondent via telephone at approximately 4:00 p.m. on April 29, 1989, personnel at the hospital in Andalusia, Alabama, referred him to the hospital's chief of obstetrics, Dr. Albert St. John, M.D.

10. Dr. St. John reviewed the patient's case with Respondent in a subsequent telephone conversation. During the course of that conversation, St. John asked pertinent questions about the patient and the extent of the baby's descent in the pelvis. Respondent put a midwife on the telephone to provide the information, then took the telephone back and concluded the discussion following St. John's statement that the hospital would not accept the transport of the patient in view of the hospital's lack of pediatric facilities and the high risks that would be associated with providing the patient and her child with care.

    
    

11. In accordance with existing medical standards, the patient should have been considered to be a patient at "high risk" by Respondent since the patient was a teenager and had failed to deliver by the due date calculated from her last menstrual period (known as "post dates"). Further, Respondent should have recognized that the patient was definitely a high risk when she failed to deliver the fetus vaginally within the two hours following her entry into the second stage of labor at 12:15 p.m. on April 29, 1989.

    
    

12. Respondent should have moved immediately to transfer the patient to an appropriate hospital facility upon conclusion of the two hour period following her entry into the second stage of labor. Respondent's failure to transfer the patient by that time, approximately 2:15 p.m. on April 29, 1989, constituted a deviation from acceptable standards of medical care. Respondent's deviation from acceptable standards of medical care was exacerbated by the later transfer of the patient to a hospital without a pediatrician.

    
    

13. In the course of transfer to the hospital, the patient was accompanied by Respondent's sister who is a midwife at the Center. At that time, she was unlicensed. Subsequently, the midwife has received her license. Respondent never represented to the patient that the midwife was licensed.

    
    

14. Although the midwife was unlicensed at the time of the patient's transfer, she did hold a Bachelor of Science degree in Biology and was licensed as an emergency medical technician. Also, she had completed formal training at the North Florida School of Midwifery in Gainesville, Florida.

    
    

15. The patient finally arrived at the hospital in Andalusia, Alabama, at 4:50 p.m. on April 29, 1989. Physical examination of the patient following her arrival revealed fetal distress. Further, the patient had a thick labial edema.

    
    

16. Following birth through a caesarian section, the baby required resuscitation and exhibited low apgar scores. The infant was later thought to be experiencing seizures and was eventually transported to another hospital with proper facilities to treat this emergency.

    
    

17. Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in that he permitted the second stage of labor to continue for approximately four hours before sending a "post dates" teenage patient with her first pregnancy to the hospital when the normal standard for other than hospitalized delivery is to wait no longer than two hours.

    
    

18. Through the retention of the patient at the Center after 2:15 p.m. on April 29, 1989, Respondent chose to accept the professional responsibility for provision of medical services to a high risk patient in a facility traditionally

    providing services only to low risk patients. Respondent took this course of action although he does not perform caesarian sections and had not held himself out to the patient as capable of performing a difficult delivery.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. Petitioner bears the burden of proof of the charges set forth in the Administrative Complaint. Since a final determination of Respondent's culpability could result in the revocation of Respondent's license, the proof that Respondent has committed those violations must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

21. Respondent is charged in count two of the Administrative Complaint, as amended at the final hearing, with making a fraudulent representation or employing a trick or scheme in the practice of medicine, a violation of Section

    458.331 (1)(k), Florida Statutes. Respondent is alleged to have made false representations to the patient that a licensed physician or midwife would perform medical services to be received at the Center. No proof was presented which establishes that Respondent made such a representation to the patient. Accordingly, Respondent is not guilty of this count of the Administrative Complaint.

    
    

22. The third count of the Administrative Complaint charges Respondent with violation of Section 458.331(1)(t), Florida Statutes, a charge that he is guilty of gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. One of the grounds that Petitioner relies upon to prove this charge is that Respondent permitted the second stage of labor to last for approximately four hours in a high risk teenage patient with a first pregnancy prior to transferring that patient to a hospital setting. This accusation is supported by clear and convincing evidence and is sufficient to support a finding that Respondent is guilty of this statutory violation.

    
    

23. Count seven of the Administrative Complaint alleges that Respondent violated Section 458.331(1)(x), Florida Statutes, by violating any provision of Chapter 458, Florida Statutes. As noted above, Respondent did violate Section 458.331(1)(t), Florida Statutes, and is consequently guilty of the violation set forth in this count of the Administrative Complaint.

    
    

24. Count nine of the Administrative Complaint alleges that Respondent has practiced beyond the scope permitted by law or has performed or accepted professional responsibilities which he knew or had reason to know that he was not competent to perform, a violation of Section 458.331(1)(v), Florida Statutes.

    
    

25. Although the proof establishes that Respondent was licensed, had received obstetrical training, and was experienced in the delivery of babies, it also establishes that Respondent did not perform caesarian sections and had not held himself out to the patient as capable of handling a difficult or high risk delivery. Yet, he accepted those professional responsibilities which he knew or had reason to know that he was not competent to perform when he retained an obviously high risk patient at the Center after conclusion of two hours of

unsuccessful second stage labor. Respondent is guilty of this count of the Administrative Complaint.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered placing Respondent's license to practice medicine on probation for a period of two years upon terms and conditions to be set by the Board of Medicine and requiring payment of an administrative fine in the amount of $2,000.

DONE AND ENTERED this 8th day of January, 1992, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1992.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

1.-4.Adopted, though not verbatim.

5.Rejected as regards race of the patient, unnecessary. 6.-7.Adopted in substance.

8.Rejected, subordinate to Hearing Officer's findings. Specifically, the form referenced in this proposed finding does not speak to any representation by Respondent that a physician or midwife will accompany the patient to a hospital in the event of a transfer. Basically the form sets forth the patient's understanding that she will be treated by a physician or graduate midwife licensed to practice in the State of Florida.

9.-11. Rejected, unnecessary. 10.-18. Adopted in substance.

19. Rejected, subordinate to Hearing Officer's findings. 20.-21. Adopted in substance.

22. Not supported by weight of the evidence. 23.-25.Adopted in substance.

1. Rejected, not supported by weight of the evidence.

2. Adopted in part, rejected as to failure to send medical records to the hospital.

3. Rejected, unsupported by the evidence.

4. Rejected, relevance.

Respondent's Proposed Findings.

1.-8. Adopted in substance.

9. Rejected, unnecessary. 10.-13. Adopted.

1. Rejected, subordinate to Hearing Officer's finding.

2. Adopted by reference.

16.-19. Adopted in substance, though not verbatim. Whether labor was progressing slowly or not, the evidence clearly and convincingly establishes that Respondent should have transferred the patient to a hospital at 2:15 p.m. on April 29, 1989.

20.-21. Accepted in substance.

22.Rejected, not supported by weight of the evidence which establishes that Respondent knew or should have known that the patient's failure to deliver after two hours in the second stage made her a high risk patient.

23.-25. Rejected as unnecessary.

26. Adopted in substance.

27.-28. Rejected, not supported by weight of the evidence. 29.-32. Rejected, relevance.

33.-34. Adopted in substance. 35.-36. Adopted in substance.

37. Rejected, subordinate to Hearing Officer's findings. 38.-40. Rejected, not supported by weight of the evidence.

1. Rejected, relevance.

2. Rejected, subordinate to Hearing Officer's findings on this point.

COPIES FURNISHED:

Bruce D. Lamb, Esq.

Department of Professional Regulation 730 S. Sterling Ave, Suite 201

Tampa, FL 33609

Thomas G. Sherman, Esq.

218 Almeria Ave.

Coral Gables, FL 33134

General Counsel

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399-0750

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation The Northwood Centre

1940 N. Monroe St. 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. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002813

Orders for Case No: 91-002813