STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 91-2969
)
LEWIS SIDNEY WOLF, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Port St. Lucie, Florida on October 18, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For the Petitioner: Bruce D. Lamb, Esquire
Department of Professional Regulation 731 S. Sterling Street, Suite 201
Tampa, Florida 33609 and
Larry McPherson, Esquire
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
For the Respondent: Dr. Harold J. Ticktin, pers. rep.
2106 Drew Street, Suite 102
Clearwater, Florida 34625 STATEMENT OF THE ISSUES
The issue for consideration in this case is whether Respondent's license as a physician in Florida should be disciplined in some fashion because of the matters set forth in the Administrative Complaint filed herein.
PRELIMINARY MATTERS
In the two Counts of an Administrative Complaint file in this case on February 6, 1991, the Department of Professional Regulation, (Department), on behalf of the Board of Medicine, (Board), alleged that Respondent, Lewis Sidney Wolf, M.D., had, as to two separate patients, failed to keep written medical records justifying the course of medical treatment and was guilty of gross or repeated malpractice or failed to practice medicine with an appropriate level of skill and care, in violation of Section 458.331(1)(m) and (t), Florida Statutes.
By letter of April 8, 1991, the Respondent requested a formal hearing on the allegations and on May 8, 1991, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.
After the Petitioner's response to the Initial Order, and further communication between Respondent and H.O. Mary Clark, to whom the case was first assigned, the matter was transferred to the undersigned who, with benefit of the correspondence between the parties and H.O. Clark, on August 5, 1991, set the matter for hearing in Port St. Lucie on October 18, 1991. Subsequent to that Order, Respondent requested a continuance to afford him time to earn sufficient funds to hire counsel, but that request was denied. Respondent then requested that Dr. Harold Ticktin, a colleague, be allowed to serve as his personal representative. The undersigned sent Dr. Ticktin all available materials relating to appearance before DOAH, and at the hearing, inquired of Dr. Ticktin of his familiarity with the rules of evidence and the rules of procedure before this agency. Counsel for Petitioner thereafter interposed no objection to Dr.
Ticktin's appearance on behalf of the Respondent and the undersigned concluded that his appearance as such would be appropriate.
At the hearing, Petitioner presented the testimony of Dr. Frederick Hobin, medical examiner for Florida's 19th Medical Examination District; the Respondent; Candace Marie Dye, formerly assistant office manager of Aware Woman's Clinic where the alleged misconduct took place; and Dr. Edward J. Zelnick, an expert in obstetrics and gynecology. Petitioner also introduced Petitioner's Exhibits 1 through 10. Respondent testified in his own behalf and presented the testimony of Michelle Westbrook Trent Windle, an employee of the Aware Woman's Clinic while Respondent practiced there, and Dr. Gary Andrew Dresden, a physician, no longer in practice, who specialized in obstetrics and gynecology with an emphasis on termination of pregnancy.
A transcript was provided and subsequent to the hearing, counsel for Petitioner submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. Respondent's representative was afforded the opportunity to and made a statement in closing on behalf of Respondent. He was advised of his right to, in addition, submit matters in writing subsequent to the hearing but indicated his intention not to do so. None were forthcoming.
FINDINGS OF FACT
At all times pertinent to the allegations herein, the Petitioner, Board of Medicine, was the state agency in Florida charged with the licensing and regulation of physicians in this state. Respondent, Dr. Lewis Sidney Wolf, was at all times pertinent licensed as a physician in Florida.
Dr. Wolf took his medical degree at the university of Bologna, in Italy, and thereafter did his internship and residency training at hospitals in New York. He has been in the private practice of obstetrics and gynecology since 1977 and though not Board certified, has limited Board eligibility. Upon completion of the required continuing medical education courses he will be eligible to sit for the Board examination.
He was employed as a physician at the Aware Woman's Medical Center, (Center), an abortion clinic in Port St. Lucie, Florida, from May, 1987 to October 8, 1990. During that time he had no responsibility for administration or the business affairs of the Center.
On January 5, 1990, he saw L. S., (Patient 1), a 19 year old rather tall woman on whom he had done a previous abortion, who had come in for termination of another pregnancy. He recalls her as being normal both mentally and physically.
His physical examination of the patient consisted of listening to her heart and lungs and doing a bi-manular pelvic examination. This includes placing one hand in the patient's vagina to feel the cervix and the other hand on the patient's abdomen at the top of the uterus. By doing this, the physician can see how big the uterus is and feel for any abnormality caused by pregnancy or fibroids. Respondent's examination of this patient showed she had a regular, smooth and symmetrical, if large, uterus. Since other tests had shown she was pregnant, he decided to terminate it at her request.
Respondent's initial examination caused him to estimate the fetus size was larger than 9 weeks. He therefore suggested the patient be given a sonogram to determine with some accuracy how big it was. However, since the patient was so tall, and this can be deceiving as to uterus size, and because his assistant, Candace Dye, the clinic administrator who, incidentally, had no medical training, disagreed with him, and because the procedure was already scheduled and a sonogram, which had to be done outside the office, would be costly to the patient and would interfere with the scheduled procedure, he checked the patient again and concluded the fetus size was only 9 weeks. Since he felt that maybe the untrained layman was correct and since the termination procedure was the same up to 14 weeks as it was at 9 weeks, he assumed responsibility and decided to go ahead with the termination using a dilation and curettage.
In this procedure, metal rods of increasing size are inserted into the cervical opening to dilate it after which a plastic tube with a hole on the side, (a cannula) is inserted into the uterus to remove the fetus by means of a vacuum aspirator, (suction). This procedure is not generally used to terminate a pregnancy of longer than 14 weeks.
Page 10 of Petitioner's Exhibit 2, the patient records from the Center, reflect that Respondent's initial estimate of fetal size, as recorded by the nurse, was greater than 12 weeks and the Respondent at first ordered a size 12 cannula. However, after the cervix was dilated, Respondent ordered a 14 cannula because during dilation he felt the fetus was larger than anticipated.
After the first aspiration, Respondent felt there was still some tissue left in the uterus and inserted the cannula again to get it. At this point, Respondent noticed some yellow fatty material in the aspirator which he believed came from the omentum, the outside of the uterus, and he believed that the cannula head had gone through the side of the uterus at the site of a scar from a previous caesarian section, (the patient had had two previous caesarian sections). This is the place where, according to Respondent, most perforations occur due to the weakening of the uterus as a result of those procedures.
In the interim period between the removal of the cannula after the first insertion and the second insertion, because he could not get all the tissue out during that first insertion, Respondent used a placenta forceps to get the bony part of the fetus, (an arm), which would not go through the cannula. He then used the cannula the second time and cannot be sure if it was the forceps or the second application of the cannula that caused the perforation. In any case, when he realized that a perforation had occurred, he packed the uterus with gauze and called 911 to have the patient taken to the hospital. She subsequently recovered but lost one tube.
Patient 2, a 41 year old female, reporting two prior deliveries, came to the Respondent for a pregnancy termination on October 28, 1989. At the time, she seemed quite nonchalant about the whole process. She reported having a fibroid uterus and claimed to have had a recent sonogram which showed a "VBD" of
5.1. The term "VBD" is incorrect for use in connection with a sonogram. The appropriate initials are "BPD", bi-parietal diameter, and a BPD of 5.1 correlates to a fetus age of in excess of 21.5 weeks. The patient also indicated that she had only had sexual relations twice in several years, the last of which was consistent with a pregnancy of far less duration that 20 weeks.
Respondent did a bi-manular examination and estimated from that a gestational age of the fetus of 20 weeks. However, the patient's forms showed a sonogram had been done on October 21, 1989 and the uterus size given as a result thereof was 9. Respondent claims his estimate of 20 was for the uterus size, not the fetus size, and this is not inconsistent with the diagnosis of fibroid uterus which could, of itself, considerably increase the size of the uterus. In addition, Respondent claims his examination showed the uterus to be firm and in pregnancy, the uterus generally gets soft. Based on all the above, and given the fact that the Patient could not recall where the sonogram had been done, and the fact that she seemed reliable to him, Respondent concluded that the pregnancy was of only 9 weeks duration and agreed to terminate it by dilation and curettage. His description of the patient as reliable is not consistent with his other comments regarding her at the hearing wherein he described her as inconsistent and mixed up. In retrospect, at the hearing, he admitted he now realizes she was lying to him.
As Respondent was preparing the patient for the procedure, he noted on her chart that the sonogram showed 5.1. This figure represents the diameter through the head of the fetus. He did not have a chart handy from which to extrapolate the sonogram figure to a fetal age. He asked his assistant, Michelle Trent Wimble to check it. She left the room and when she came back reportedly stated, "It's OK - it's only 11 weeks." In reality, Ms. Wimble did not look at the correct chart and the information she gave to the Respondent was incorrect. He did not verify it.
In the termination, Respondent started with a size 12 cannula. Once the vacuum was initiated with that cannula, he shifted to a 14 and then requested a placenta forceps. He changed the size because, he asserts that once the patient was dilated, he realized the fetus was larger than he had anticipated and needed the larger size. Also, when he saw the amniotic sac he knew the pregnancy was further along than 11 weeks but because he was committed and could not let the patient go home like that, he had to continue. He broke the sac and tried to vacuum with a 16 mm cannula, the largest made, but was still unsuccessful. He then tried the forceps. When he saw the umbilical cord had prolapsed, and had removed a hand from the fetus, he knew it was much older than anticipated. Since it was obviously beyond the 14 weeks menstrual limit the Center set for abortions there, he called 911 to have the patient taken to the hospital for completion.
Respondent has specialized in abortions not only for his 3 years at the Center, but at other clinics in New York, Tampa and Ft. Myers, where he filled in for another physician whose license was under attack. He has done over 5,000 abortions and claims to have experienced complications in only 4 of them. Each of these involved perforations of the uterus. According to Ms. Dye,
who worked with Respondent for the three years he was at the Center, his problem rate was low.
A perforation may occur as the result several different factors such as a tilting of the uterus or frequent prior pregnancies which weaken or soften the wall of the uterus. A perforation is also more likely in a woman who has had one or more caesarian sections. It is not necessarily due to negligence on the part of the physician though it may be. According to Respondent, most often it is not negligence but more a complication which occurs because of the anatomical arrangement of the pelvic organs.
With regard to Patient 1, Respondent feels he did nothing wrong. Her records show that from her last menstrual period she would be 11 weeks pregnant based on her last period date of November 1, 1989. Also, from her history sheet he notes 2 reasons for her being a higher risk patient. She had had two caesareans sections and one prior abortion. She was 19 years old and had had 5 pregnancies. Therefore, he claims, her uterus had not had time to rest and could easily be perforated. In addition, as a result of his examination, he was quite comfortable with a 9 weeks fetal determination. Though she might have been slightly over that she was still within the limits for a suction abortion. He is also comfortable having done the bi-manual examination which he feels is generally reliable. Factors such as a tall patient can throw it off, however, he claims.
With regard to Patient 1, Respondent claims there was nothing about her to alert him to danger. It is not usual to change cannulas in mid- procedure. It is done from time to time, especially in the first pregnancies of young women whose cervix are hard to dilate. He also claims it is not unusual to over or under estimate a pregnancy by 2 weeks. It is impossible to tell exactly how many weeks a patient is pregnant.
Respondent admits a patient history sheet is important and it is important that the patient give honest information for it. Erroneous information from any source, if relied on by the physician, can result in injury to the patient.
Patient 2 was a 41 year old woman at the time he saw her. This fact makes her a high risk patient for carrying the fetus to term. From the last menstrual period she reported, she would be 12 weeks pregnant. The sonogram results as passed to the Respondent was consistent with 11 weeks of pregnancy and with the menstrual history. Assuming her sexual history were correct, she could be no more than 16 weeks pregnant. Because the patient referred to a "VBD", similar in sound to "BPD", the correct term, Respondent considers it was reasonable for him to believe she had had a sonogram. Here, however, the Respondent stated at one point that at that time he did not believe her and if that is the case, it was improper for him to do the procedure on a patient who he did not believe had given him a correct history. Further, when a patient shows a history of prior pregnancies or caesarian sections, admittedly that patient is at a higher risk of perforation and the doctor should be more cautions and more prepared than otherwise.
Respondent's performance in the two cases at issue here was reviewed by Dr. Edward J. Zelnick, himself an expert in the field of obstetrics and gynecology, who has done numerous pregnancy terminations in the past. His review consisted of an examination of the clinic and hospital records of both patients.
In order to safely and properly terminate a pregnancy, it is necessary for the physician to know the size of the fetus. This can be determined by the history taken from the patient, by physical examination of the patient, including both palpation and bi-manual manipulation, and by sonogram.
In the case of patient 1, Respondent performed a suction curettage. Before doing so, he accomplished a bi-manular examination and determined the fetus was 9 weeks of age. The records reflect that initially an ultrasound, (sonogram), was requested, but that order was rescinded. In the suction curettage the cervix is dilated with metal rods of increasing diameter and the cannula is then inserted to remove the fetus by suction. The size of the fetus determines the size of the suction tube to be used. Here, Respondent selected an 11 cannula which can be used generally with fetuses from 9 to 11 weeks of age. The records reflect that little tissue was obtained through the use of the
cannula, so Respondent asked for and used a larger one.
After the size of the cannula was increased, a placental forceps was used to remove a fetal extremity and a portion of the oventum, (a portion of fact attached to the intestine not generally found in the uterus). The presence of the oventum indicates that the wall of the uterus was perforated.
Dr. Zelnick feels this perforation could have been avoided if more care had been utilized in the determination of the fetal size. There appeared to be a discrepancy between the appearance and the actual size and duration of the fetus. If the size was, as here, underestimated, the larger actual fetus prevented the doctor from getting the amount of tissue he expected. This could lead him to go deeper or in a different direction that she should go to get tissue. In light of this, Dr. Zelnick opined that the level of care rendered to Patient 1 by the Respondent was below standard because the final outcome and the manner of performance is not properly reflected in the records. Also, the wrong size instruments were used. Most important, however, is the failure to properly determine the size of the fetus. If the doctor is unsure of the fetal size, he should take further steps, through ultrasound or otherwise, to be more specific. Here, in Zelnick's opinion, the perforation occurred when the Respondent went into the uterus with the placental forceps.
Once the perforation was noted, Respondent properly had the patient taken to the hospital where her abdomen was opened and her right fallopian tube and ovary were removed. In addition, her uterus was repaired. All this resulted in her being exposed to risk due to anesthesia, infection and hemorrhage. In addition, she unnecessarily lost her tube and ovary due to the bleeding caused by the perforation. Since she now has only one tube and ovary, there is a possible diminishment in future fertility, but there is some doubt as to that happening.
As to Patient 2, according to Dr. Zelnick, the Respondent established she was 9 weeks pregnant. The records show the result of the bi-manual examination showed 9 weeks, but they also reflect the patient had a sonogram and to Dr. Zelnick, it is unclear because the record of the sonogram showed a 5.1 BPD which is consistent with a 20 - 22 week pregnancy. In addition, the patient gave a history of only 2 sexual relations prior to the visit which is inconsistent with the other findings since the last intercourse would have been
to 15 weeks prior to the visit which would not fit with a 9 week fetus finding. The nurse's note on the patient records indicate the only information the patient could give was that the sonogram showed a 5.1 LMP [sic].
In this case, Respondent also did a suction curettage initially using an 11 cannula. He then requested a 12 cannula and almost immediately went to a
14 which he then increased to a 16 which would be used for a 14 - 16 week fetus. When he failed to get an adequate tissue return, he used a placental forceps and saw a fetal extremity and umbilical cord. When he saw this, he realized the pregnancy was further advanced than expected and stopped the procedure and called for emergency services.
This patient was also given an injection of Petosin, a drug used to contract the uterus, and an intravenous was attempted. She was taken to the hospital and treated for hemorrhage, hypertension and shock, and failure of her blood to coagulate. Hypertension is consistent with blood loss and it was subsequently noted in surgery that the patient had a uterine perforation. The patient was given an exploratory laparotomy and a total abdominal hysterectomy. The danger of anesthesia, infection, hemorrhage, and the loss of fertility as a result of the removal of her uterus are all negative results of the procedure.
Dr. Zelnick is of the opinion that Respondent's treatment of patient 2 was below acceptable standards because the Respondent had an obligation to be certain of the age of the fetus before initiating action and did not do so. His omissions led to an unfortunate series of events which injured his patient. In fact, Dr. Zelnick goes so far as to classify Respondent's actions as gross negligence. The relative sizes of a 9 week and a 22 week fetus is so disparate that such a mistake as here is not reasonable. While a 9 week fetus is about the size of an orange, a 22 week fetus is about the size of a volley ball.
While the existence of a uterine fibroid cyst can make the determination of fetal size more difficult, a doctor can make the determination. A fibroid cyst is hard and solid while a fetus is soft. In any case, if there is a question, a sonogram should be done. If the physician cannot be absolutely sure of the length of gestation by examination or history, he should take all necessary other steps to find out. If he does not, his failure constitutes negligence.
Here, especially, the inconsistent BPD value, a figure with which any doctor routinely doing abortions should be familiar, should have tipped Respondent off to the need for more information.
In addition, according to Dr. Zelnick, the Respondent's record keeping was poor. They do not accurately reflect or justify the procedures done on this patient.
Dr. Zelnick admits that a uterine perforation is a complication which can occur without negligence on the part of the physician. Certain conditions, including an abnormality of the uterus can increase the risk, and by itself, a perforation is not necessarily bad care. If a patient has had 2 prior caesarian sections and 3 pregnancies, an attending physician could easily be slightly off in the age of the fetus. However, a doctor, as here, who does many abortions should be better at estimating the length of a pregnancy than one who does fewer.
Respondent's expert, Dr. Dresden, also a Board certified obstetrician and gynecologist, who has performed over 10,000 abortions during his medical career, appeared on Respondent's behalf because, inter alia, he believes there is a grey area in the practice of medicine to which, in his opinion, the Department is not sensitive. It does not recognize differing methods of practice. He also contends that the mere fact a complication occurs which must be reported does not justify an indictment of the practitioner. Disciplinary action, in his opinion, should be reserved for cases of misconduct.
As to Patient 1, Dr. Dresden feels that bi-manual examinations are quite difficult to do and are quite often inaccurate as to the length of gestation. The mistake made by Respondent here, as to the size of the fetus, is common.
As to Patient 2, Dr. Dresden could see no reason for another ultrasound being taken. The government does not normally reimburse for it, and if, as here, he had found the incorrect estimate had been made and the instrument he was employing was too small, he'd go on with the procedure with a larger instrument.
The is no relationship between the mis-diagnosis of size of the uterus and the risk of perforation except that there would be a greater weakness in the uterine wall in the case of a 20 week pregnancy. However, even a prudent doctor could end up perforating the wall of a uterus for a myriad of reasons. The position of the uterine cavity may be out of line, and if the instrument is not properly lined up, there is a greater risk of perforation. Also, a pregnant woman has softer uterine walls that are more easily perforated than a non- pregnant woman.
Dr. Dresden could see nothing that Respondent could have done to avoid the perforations here nor does he believe Dr. Zelnick could accurately determine, from looking at the records, what instrument caused the perforation. If Patient 2 said she had had an ultrasound, he probably would have believed her. Most patients do not know enough to make up a story like that, he believes, and if he saw a record that the BPD was 5.1, he would ask a nurse or an assistant to look up the meaning of that reading and would rely on it.
Here, based on what information he had about Patient 2, the 4 factors he took into consideration being better than the usual 2, he believes Respondent could have reasonably relied on the stated size of the fetus. He cannot say that Respondent used poor judgement in these cases notwithstanding his comment to the contrary in a prior letter to the Department regarding this case. By the same token, he cannot see any errors in Respondent's performance other than the mis-diagnosis of fetal size. The witness' prior professional record and his obvious antipathy toward the enforcement activities of the Department, cast some doubt on the value of his testimony, however.
No evidence was presented with regard to the medical records of either patient in issue here to bear on the issue of their adequacy or inadequacy. Dr. Zelnick commented on his opinion that the records were poor, but no specific evidence of inappropriate recordation of the patients' conditions or other relevant matters was submitted to show them to be inadequate.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
In the Administrative Complaint, the Petitioner has alleged that as regards to two patients as described therein, the Respondent's treatment rendered them was below the standards recognized as acceptable by reasonably prudent physicians, and that his written records regarding his treatment of these patients was insufficient, incorrect, or inadequate in violation of the provisions of Section 458.331(1), Florida Statutes.
The burden of proof in this case is on the Department to establish the Respondent's misconduct by clear and convincing evidence. Ferris v. Turlington,
510 So.2d 292 (Fla. 1987). Petitioner claims, as well, that if the penalty does not involve revocation or suspension of a license, Section 458.331(3) allows action by the Division of Medical Quality Assurance based on the greater weight of the evidence. For the purposes of this hearing, the test shall be that of clear and convincing evidence.
Section 458.331, Florida Statutes, provides in pertinent part:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(m) failing to keep written medical records justifying course of treatment of the patient, including, but not limited to, patient's histories; examination results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.
* * *
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable
under similar conditions and circumstances.
With regard to the medical records, the only evidence regarding their adequacy relates to Patient 2 and in that case, Dr. Zelnick, opining that the records did "not ... reflect adequately or justify the course of treatment that was given to this patient", explained his opinion on the basis of the "discrepancy between the patient's gestational age and the techniques that were used to perform [the] procedure". In other words, the procedures that were utilized were not justified by the records. At no point did Dr. Zelnick discuss with particularity the deficiencies he found in the records or refer to them in any way to demonstrate his conclusion. While his evidence is not contradicted, without amplification it does not meet the test of establishing the violation clearly and convincingly.
By the same token, the expert testimony relied upon to establish the issue of malpractice as to Patient 1 is conclusory but not specific and taken together the sum of the evidence does not clearly and convincing demonstrate that degree of malpractice or substandard performance necessary to support a conclusion that the statute was violated with regard Patient 1.
On the other hand, the evidence is clear and convincing that as to Patient 2, Respondent's performance was well below standard. He was obviously confronted by a less than reliable patient. He, himself described her as "spacey." His bimanual examination was not consistent with the age of the fetus she described, and her stories, especially regarding the sonogram results, were a warning beacon and should have alerted him to delve more deeply into her true condition. In this case, his reliance on the report from his assistant as to the reading of the sonogram was inappropriate.
Having concluded that Respondent is guilty of at least one incident of malpractice, if not the other offenses alleged, a determination of appropriate disciplinary action is called for. Rule 21M-20.001, F.A.C. provides the Board's guidelines for disciplinary action as called for in the statute and provides, in pertinent part, as to the established malpractice:
(t) Malpractice. From 2 years probation to revocation or denial, and an administrative fine from $250 to $5,000.
In light of the fact that the Respondent's misconduct resulted in unnecessary injury to his patient, which could have been avoided, it is clear that sufficient action is required to insure he demonstrate adequate medical skill before being allowed to continue treating patients.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Respondent's license to practice medicine in Florida be suspended for a period of six months and until such time as he has satisfactorily completed the special purpose examination of clinical skills; that upon reinstatement of his license, he be placed on probation for a period of two years under such terms and conditions as is considered appropriate by the Board of Medicine; and that he pay a fine of $1,500.00 within six months of the reinstatement of his license.
DONE and ENTERED in Tallahassee, Florida this 17th day of December, 1991.
ARNOLD H. POLLOCK
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 17th day of December, 1991.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-2969
The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all the Proposed Findings of Facts submitted by the Petitioner herein. Respondent failed to submit Proposed Findings of Fact.
FOR THE PETITIONER:
1. & 2. Accepted and incorporated herein.
3. - 10. Accepted and incorporated herein.
11. & 12. Accepted.
Rejected.
- 27. Accepted and incorporated herein.
Rejected in that the Respondent's failure to ascertain the results of the sonogram is not evidence of poor record keeping.
Rejected in that Respondent's failure to ascertain the gestational age of the fetus when facing conflicting information is not evidence of poor record keeping.
& 31. Accepted and incorporated herein.
COPIES FURNISHED:
Larry McPherson, Esquire Department of Professional
Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Dr. Harold J. Ticktin
2106 Drew Street, Suite 102
Clearwater, Florida 34625
Jack McRay General Counsel DPR
1940 North Monroe Street Tallahassee, Florida 32399-0792
Dorothy Faircloth Executive Director Board of Medicine
1940 North Monroe Street 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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should b e filed with the agency which will issue the Final Order in this case.
================================================================= AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONALREGULATION,
Petitioner,
DPR CASE NUMBERS: 90-00292
89-13024
-vs-
LICENSE NUMBER: ME 0028761 LEWIS SYDNEY WOLF, M.D.,
Respondent.
/
DOAH CASE NUMBER: 91-2969
This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on February 8, 1992, in Fort Lauderdale, Florida, for the purpose of considering the Hearing Officer's Recommended Order (a copy of which is attached hereto as Exhibit A) in the above-styled cause.
Petitioner, Department of Professional Regulation, was represented by Larry G. McPherson, Attorney at Law. Respondent was present and testified at the hearing. Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.
FINDINGS OF FACT
Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein. However, the following technical corrections are made:
On page 2, line 1, the word "file" is corrected to read "filed."
On page 4, line 7, delete the word "the."
On page 4, paragraph 5, line 2 and page II, paragraph 23, line 2, the description of the pelvic examination is corrected to read "bi-manual."
On page 20, line 18, the first word is changed to ensure
There is competent substantial evidence to support the findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the conclusions of
law.
PENALTY
Upon a complete review of the record in this case, the Board determines
that the penalty recommended by the Hearing Officer be ACCEPTED and ADOPTED. WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
Respondent's license to practice medicine in Florida be suspended for a period of six months and until such time as he has satisfactorily completed the special purpose examination of clinical skills; that upon reinstatement of his license, he be placed on probation for a period of two years under such terms and conditions as is considered appropriate by the Board of Medicine; and that he pay a fine of $1,500.00 within six months of the reinstatement of his license.
This order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 25th day of February , 1992.
BOARD OF MEDICINE
ZACHARIAH P. ZACHARIAH, M.D. CHAIRMAN
NOTICE OF RIGHT TO JUDICIAL REVIEW A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Lewis Sidney Wolf, M.D., 6207 Curry Ford Road, Orlando, Florida 32822 and Harold J. Ticktin, M.D. 2106 Drew Street, Suite 102, Clearwater, Florida 34625, by U.S. Mail to Arnold H. Pollock, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399- 1550; and by interoffice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792 at or before 5:00 P.M., this 3 day of March , 1992
DOROTHY J. FAIRCLOTH
| Issue Date | Proceedings |
|---|---|
| Dec. 17, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 10/18/91. |
| Nov. 22, 1991 | (Petitioner) Notice of Appearance of Co-Counsel filed. |
| Nov. 22, 1991 | (Petitioner) Proposed Recommended Order filed. |
| Nov. 06, 1991 | Transcript of Proceedings (Volumes 1&2) filed. |
| Oct. 31, 1991 | Letter to AHP from Harold Ticktin (re: telephone deposition of Dr. Jose Vivo) filed. |
| Oct. 15, 1991 | Letter to AHP from Gary A. Dresden (re: Presenting himself as an expert witness) filed. |
| Oct. 10, 1991 | (Petitioner) Notice of Taking Deposition filed. |
| Oct. 07, 1991 | Notice of Taking Deposition filed. (From Bruce Lamb) |
| Oct. 03, 1991 | Ltr. to AMP from H. Ticktin re: representation at hearing filed. |
| Sep. 05, 1991 | Order Denying Motion for Continuance sent out. |
| Sep. 03, 1991 | (Petitioner) Response to Motion to Continue filed. (From Bruce D. Lamb) |
| Aug. 19, 1991 | (ltr form) Request for Continuance filed. (From Lewis S. Wolf) |
| Aug. 05, 1991 | Notice of Hearing sent out. (hearing set for Oct. 18, 1991; 9:00am; Port St. Lucie). |
| Aug. 01, 1991 | Letter to MWC from Lewis Sidney Wolf (re: Continuance) filed. |
| Jun. 24, 1991 | New Address filed. (From Lewis Wolf) |
| Jun. 17, 1991 | Order to Show Cause sent out. |
| May 30, 1991 | (Petitioner) Response to Initial Order filed. |
| May 17, 1991 | Initial Order issued. |
| May 13, 1991 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 25, 1992 | Agency Final Order | |
| Dec. 17, 1991 | Recommended Order | Failure to determine gestational age of fetus before terminating pregancy and keep proper records constitutes gross malpractice. |
