STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE )
)
Petitioner, )
)
vs. ) CASE NO. 91-3149
)
ALI A. ASIMA, M. D. )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on September 29, 30 and October 1, 1992, in Sarasota, Florida.
APPEARANCES
For Petitioners: Michael K. Blazicek, Esquire
Senior Attorney
Department of Professional Regulation 730 South Sterling Avenue, Suite 201
Tampa, Florida 33609-4582
For Respondent: Darol Carr, Esquire
Farr, Farr, Emerich & Hackett, P. A. 2315 Aaron Street
Post Office Box 2159
Port Charlotte, Florida 33949
James W. Linn, Esquire Carson, Linn & Adkins 1711-D Mahan Station
Tallahassee, Florida 32308 STATEMENT OF THE ISSUE
Whether Respondent's license to practice medicine in the state of Florida should be revoked, suspended or otherwise disciplined.
PRELIMINARY STATEMENT
By an Administrative Complaint dated February 6, 1991 the Petitioner seeks to revoke, suspend or otherwise discipline the Respondent's license to practice medicine in the state of Florida. As grounds therefor, it is alleged that Respondent, in the care and treatment of patient K. Z., violated Section 458.331(1)(m),(q),(t),(v), and (w), Florida Statutes, in that Respondent: (a) failed to keep written medical records justifying the course of treatment; (b) failed to use an electronic fetal monitor during the administration of Pitocin
and used Pitocin in the treatment of K. Z. when Pitocin was contraindicated; (c) 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; (d) practiced or offered to practice beyond the scope permitted by law, or accepted and performed professional responsibilities which Respondent knew or had reason to know that he was not competent to perform; and (e) delegated professional responsibilities to a person when Respondent knew or had reason to know that such person was not qualified by training, experience, or licensure to perform those responsibilities.
By letter dated May 20, 1991, the Petitioner referred this matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and conduct of a formal hearing. The matter was initially scheduled for hearing on October 16-17, 1991 but due to several continuances was not heard until September 29, 30 and October 1, 1992.
At the hearing, the Petitioner presented the testimony of K. Z., Marian M. Bradow, Lynda E. Zanker, Norm J. Wrona and Robert Brauner, M. D. Petitioner's exhibits 1 through 3 were received as evidence in this case. Respondent testified on his own behalf and presented the testimony Sally R. Azima, R. N., Virginia Land, L. P. N., and Herbert F. Sandmire, M. D. Respondent's exhibits 1 through 8 were received as evidence in this case. Official Recognition was taken of Sections 383.30 through 383.335 and 893.05, Florida Statutes, Chapters 21M-20 and 59A-11, Florida Administrative Code, and, for purposes of aggravation of penalty, the disciplinary action taken by the Board of Medicine in Department of Professional Regulation vs. Ali A. Azima, M. D. Case Nos. 83-1205 & 83-2589.
A transcript of this proceeding was filed with the Division of Administrative Hearings on October 15, 1992. The parties timely filed their Proposed Recommended Orders. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
At all time relevant to this proceeding, the Respondent was licensed to practice medicine in the state of Florida, having been issued license number ME 0020485. The Respondent has been licensed to practice medicine in the state of Florida since 1973.
Respondent is Board Certified in Obstetrics and Gynecology having fulfilled the requirements of the American Board of Obstetrics and Gynecology. The requirements include a multi-year residency program in obstetrics and gynecology and successfully passing written and oral examinations.
After graduating from medical school the Respondent completed a two- year residency in obstetrics and gynecology at St. Joseph's Hospital in Baltimore, Maryland. Respondent then spent one year as Chief Resident in Obstetrics and Gynecology at Lutheran Hospital in Baltimore, Maryland where approximately 2000 babies were born during the time Respondent was in residency.
The Respondent then completed a two-year clinical fellowship in obstetrics and gynecology at Peninsula General Hospital in Salisbury, Maryland
where approximately 3,000 babies were born each year during the time Respondent was in residency.
Respondent received additional training in the subspecialty of fetal maternal medicine through a one-year fellowship at New Jersey Medical School.
After the fellowship at New Jersey Medical School, Respondent served one year as a clinical instructor at University Hospital, affiliated with Mercy Hospital in Baltimore, Maryland.
Since the time of his first residency, the Respondent has been involved in the delivery of several thousand babies.
The Respondent moved to Florida in 1975 and has been engaged in the private practice of medicine since that time.
The Respondent opened the Venice Obstetrics Clinic (Clinic) in 1983, and has served as its Medical Director since that time.
The Clinic was at all times relevant to these proceedings licensed by the State of Florida in accordance with Sections 387.30 through 383.335, Florida Statutes, (referred to as the Birth Center Licensure Act).
At all times relevant to these proceedings, the Respondent was permitted to perform surgical services (including episiotomies) and forceps delivery in the Clinic in accordance with the partial exemptions provided in Section 383.335(1), Florida Statutes.
The Clinic's license has never been disciplined for noncompliance with Sections 383.30 through 383.335, Florida Statutes, or Chapter 59A-11, Florida Statutes, by the Department of Health and Rehabilitative Services (HRS), the agency charged with the responsibility of licensing and regulating birth centers.
At all times relevant to these proceedings, Marcos Lara, M.D. acted as the Clinic's consultant, and was board certified with hospital privileges at St. Joseph's Hospital and at Faucett Memorial Hospital in Port Charlotte.
In July 1988, the Clinic employed several nurses licensed by the state of Florida. At the time the patient K.Z. came into the Clinic, the nurse-to- patient ratio was two-to-one. Normally, the ratio was one-to-one.
The patient's first visit to the clinic, and with Respondent, was on March 18, 1988. The patient continued with regular visits to the Clinic seeing the Respondent through July 8, 1988.
On the patient's April 27, 1988 visit the Respondent gave the patient a score of "one" on the HRS, Pre-Term Delivery Risk Scoring Form (Form), indicating that the patient was a low-risk patient.
On the patient's June 28, 1988 visit the Respondent gave the patient a score of "zero" on the Form, again indicating that she was a low-risk patient.
The Respondent in scoring the patient's risk did not circle or use several of the risk factors listed on the Form that would have applied to the patient, including a patient under 20 years, single parent and low socioeconomic status.
Based solely on the risk factors of (a) works outside of home, (b) younger than 20 years, (c) single parent, and (d) low socioeconomic status (based only on patient's level of education), and the points assigned those risk factors, the Respondent should have given the patient a score of "six". This would have placed her in the medium-risk classification which requires a score between six and nine points.
However, since the patient no longer worked outside of the home on June 28, 1988, the date of the reevaluation, her score would have been "five", placing her in the low-risk classification.
Many of the factors listed in the Form are risk factors used by obstetricians in assessing a patient's risk classification. However, many of the risk factors listed in the Form, including those risk factors used to assess this patient's risk classification, are not relied on solely by obstetricians, either singularly or in combinations, to assess a patient's risk classification.
The purpose of the Form is to assist birth centers in assessing a patient's risk classification to determine whether the patient should be permitted to give birth in a birth center, and not to supplant the obstetricians' knowledge and skill in assessing a patient's risk classification.
There is insufficient evidence to establish facts to show that Respondent's failure to correctly fill out the Form was the result of Respondent's failure to use his knowledge and skill as an obstetrician to properly assess the patient's risk classification and thereby fail to practice medicine within the prescribed standard of care.
On June 28, 1988 the patient signed a form wherein she consented to the delivery of her child at the Clinic. At this time, the patient was advised of the risks of not delivering in a hospital and the advantages of delivering at a birth center.
The normal period of gestation is 40 weeks. The methods used to calculate the estimated date of confinement (due date) are: (a) if a patient's menstrual periods are on a 28-day cycle, the due date can be determined by taking the last menstrual period (LMP) and adding 280 days; (b) substract three months from the LMP and add seven days; (c) an ultrasound can be used; (d) from the size of the fetus as determined by physical and pelvic examinations; and (e) fundal height measurement. None of these methods are absolutely accurate and therefore, the due date is considered an estimate.
The fundus is the upper portion of the uterus which grows during pregnancy, with the cervix at the bottom portion of the uterus.
The fundal height measurement is made from the top of the bone, which is the front of the pelvic, called the symphsis, to the top of the uterus. Both ends of this measurement are subjective in placement and vary between those making the measurement. Fundal height measurement is a way of determining the increase in size of the uterine content which is significantly, in normal cases, influenced by the growth of the fetus.
The fundal height measurement is relevant to fetal age if it is consistent with other clinical assessments such as, how low is the baby to help determine the length, palpating to determine the width of the uterus, and a pelvic examination.
Some obstetricians correlate the fundal height measurement with the gestation period where roughly one centimeter of fundal height equals one week of gestation, plus or minus two to four centimeters. While the Respondent measures the patient's fundal height at each visit, and did so with this patient, he does not use fundal height alone to determine the age of the fetus but uses fundal height in conjunction with other assessments found as a result of physical and pelvic examinations.
On her first visit, the patient told the Respondent that her LMP had begun around the first part of December, 1987. Assuming the patient's LMP had begun on December 1, 1987, her due date should have been during the first week of September, 1988, using either method (a) or (b) above.
Also on the patient's first visit the Respondent conducted physical and pelvic examinations. The physical examination consisted of palpation of the abdomen to note the size. The pelvic examination enabled the Respondent to assess the size of the uterus, which indicates the age of the pregnancy.
Based on his physical and pelvic examinations of the patient on March 18, 1988 and the fundal height of 20 centimeters, the Respondent determined the age of the pregnancy to be 22 weeks with a due date of July 22, 1988.
There was a difference in the due date calculated using the date expressed by the patient as her LMP as opposed to the due date determined by the Respondent from his clinical assessment as to the size of the fetus in conjunction with the fundal height. However, since the Respondent's clinical assessment did not reveal any problems, and the fact that approximately 25 percent of the pregnant women experience two or more false menstrual periods, the Respondent concluded that any size/date discrepancy was explainable. Therefore, the Respondent considered his determination of July 22, 1988 as the due date reasonable, and did not order an ultrasound since it was neither beneficial to the patient nor medically necessary at this point of the pregnancy.
On April 27, 1988, June 8, 1988 and June 22, 1988 the Respondent measured the patient's fundal height as 23, 28 and 31 centimeters respectively. However, on these same dates the Respondent determined the age of the fetus to be 28, 34 and of the size of the fetus 36 weeks, respectively, based on his examination of the patient.
On April 27, 1988, June 8, 1988 and June 22, 1988 the Respondent concluded that an ultrasound was not needed based on the same reasoning he had employed on March 18, 1988.
On her June 28, 1988 visit, the Respondent performed physical and pelvic examinations, including palpating the abdomen, estimated the age of the fetus to be 39 weeks based on its size and advised the patient that her due date may be earlier than July 22, 1988, the initial due date. The fundal height measurement was 31 centimeters.
Respondent's examination of the patient on her July 6, 1988 visit made him suspect twins and a possible abnormal delivery. Therefore, Respondent ordered an ultrasound. The ultrasound revealed a single baby in cephalic presentation (baby's head first), at term (fetus at least 37 weeks). The ultrasound did not indicate any problems in delivering the patient's baby. In fact, no risk factor was identified by the ultrasound.
While the Respondent's records are sketchy in regard to his reasoning of the date/size discrepancy, the testimony of both the Respondent and Herbert
F. Sandmire, M. D. supports the Respondent's reasoning in not ordering the ultrasound until the July 6, 1988 even though normally the date/size discrepancy may have justified the use of an ultrasound. Therefore, the Respondent was practicing medicine within the prescribed standard of care by not ordering an ultrasound until July 6, 1988 because there was sufficient reasons justifying the size/date discrepancy on the earlier dates, notwithstanding the testimony of Robert Brauner, M. D. to the contrary.
The patient went into labor on July 8, 1988. The patient arrived at the Clinic around 11:50 a.m. on July 8, 1988, and at that time her cervix was dilated two centimeters and was 100 per cent effaced.
Nurses Sally Azima and Virginia Lane were assisting with the patient and made the notations on the Nurses' Notes, with Nurse Lane making the notes from 1:30 p.m. through 7:00 p.m. and Nurse Azima making the notes from 7:30 until the end of the Nurses Notes.
The patient's fetal heart rate was monitored with a Doptone. A Doptone is a devise that is placed on the abdomen which allows the fetal heart beat to be heard in the room.
At 5:27 p.m., the cervix was 9 centimeters, 100 per cent effaced with membranes bulging.
At 7:00 p.m., the patient suffered dysfunctional labor. The patient's uterine contractions were irregular and weak. The Respondent decided to administer Pitocin to the patient in order to regulate her uterine contractions.
Pitocin is a brand name for a drug that stimulates uterine contractions. Pitocin is used for dysfunctional labor.
Pitocin does not increase any risk that is not already present, and no change in management decisions is needed merely because Pitocin is being administered to the patient.
The Respondent administered Pitocin to the patient by making a single injection of one ampule (10 units) of Pitocin into an existing intravenous bag.
Another method of administering Pitocin is referred to as the piggy- back system wherein the Pitocin is maintained in a separate bag and infused through the existing intravenous line. While the piggy-back system may be the preferred method of administering Pitocin to a patient, neither the Birth Center Licensure Act nor the prescirbed medical standard of care in July, 1988 required the use of the piggy-back system to administer Pitocin to a patient.
At the time the Pitocin was injected, the existing intravenous bag contained approximately 900 milliliters of fluid, plus or minus 20 milliliters. The Respondent set the IV flow rate at 20 drops per minute which resulted in a dosage level of approximately 10 milliunits per minute.
While a dosage level of 10 milliunits per minute of Pitocin is higher than what was previously thought to be the correct dosage level of Pitocin, a patient could benefit from the higher dosage level of Pitocin, particularly under the circumstances and conditions that existed with this patient on July 8,
1988. The Respondent was practicing medicine within the prescribed standard of care when he administered the higher dosage level of Pitocin to the patient on July 8, 1988, notwithstanding the testimony of Robert Brauner, M. D. to the contrary.
After setting the IV flow rate at 20 drops per minute, the Respondent instructed Nurse Azima to monitor the flow to be sure the flow remained at 20 drops per minute. Nurse Azima checked the flow by counting the drops with a second hand on her watch every 15 to 20 minutes. Nurse Azima, under the supervision of Respondent, has administered Pitocin using the drop count method ever since Respondent's residency in obstetrics.
While the use of an infusion pump may be the preferred method of administering Pitocin by some obstetricians, the Respondent was practicing medicine within the prescribed standard of care when he used the drop count method of administering Pitocin to the patient on July 8, 1988 rather than using an infusion pump. His use of the drop count method, including allowing Nurse Azima to monitor the flow, met the prescibed standard of care, notwithstanding the testimony of Robert Brauner, M. D. to the contrary.
An electronic fetal monitor records both the baby's heart rate and the mother's uterine contractions, and presents this information on a graph.
The Respondent did not use an electronic fetal monitor while administering Pitocin to the patient on July 8, 1988. Instead, Respondent used intermittent auscultation.
Intermittent auscultation involves using a stethoscope or Doptone to listen to the fetal heart beat at prescribed intervals. A nurse is assigned to check the baby's heart beat periodically and to notify the physician of any abnormality. When an electronic fetal monitor is used, a nurse is assigned to watch the chart and notify the physician of any changes indicated by the chart.
Intermittent auscultation is equivalent to electronic fetal monitoring when it is done on a frequent basis, such as listening every 30 minutes when the patient is in the active part of the first stage of labor and every 15 minutes during the second stage of labor.
Pitocin was administered by the Respondent at 7:00 p.m. and thereafter, Nurse Azima checked the fetal heart rate every 15 to 20 minutes. However, she did not record the fetal heart rate each time because the fetal heart rate was within an acceptable range, nothing was abnormal. The Nurses Notes indicate that Nurse Azima recorded the fetal heart rate at 7:30 p.m., 8:30 p.m., 9:00 p.m. and 9:35 p.m.
There was no indication of any abnormality in the patient's heart rate or of any fetal distress at any time during the course of the patient's labor.
Again, while the use of an electronic fetal monitor may be preferred by some obstetricians, the Respondent was practicing medicine within the prescribed standard of care when he used intermittent auscultation instead of an electronic fetal monitor and in his use of intermittent auscultation on July 8, 1988, notwithstanding the testimony of Robert Brauner, M. D. or the information contained in the Physician's Desk Reference to the contrary.
At 7:30 p.m. the patient was fully dilated and the fetal head was at "zero" station.
Station refers to the progress of the fetal head down the pelvis toward the outside. When the very edge of the fetal head is even with an imaginary line drawn between the patient's two spines (prominence in the middle of patient's pelvis) the fetal head is considered at zero station. Progressing past zero station would be indicated as zero-plus-one station, plus-two, etc. Progressing past plus-three station would be delivery of the fetal head.
At 8:00 p.m., the fetal head was in right occiput posterior (ROP) position. This means the baby's face, as the mother is lying on her back, is looking up and, is a less favorable position for delivery, in that it usually leads to a longer labor.
At 8:30 p.m., an hour after the patient had been fully dilated, the fetal head was at zero-plus-one station. The fetal head was now in the occiput anterior (AO) position, meaning the baby is now looking straight down while the mother is lying on her back. This position is the favorable position for delivery.
The patient was transferred to the procedure room, prepped and given a local anesthetic when the fetal head was at plus-one to plus-two station. Thereafter, the Respondent noted that patient was fully dilated, fetal head was at plus-two station, but there was no further descent of the head.
At this point, the Respondent decided that the patient should be assisted in the delivery by using the forceps to bring the fetal head down and deliver the baby.
Before applying the forceps, the Respondent performed an episiotomy on the patient. An episiotomy is a obstetrical cut made between the vagina and the rectum (the perineum), through the tissue, separating the muscle to help open the vagina for delivery.
The decision on whether to perform the episiotomy before or after applying forceps is a matter of clinical judgment based upon the physical characteristics of the patient, in particular the size of the introitus and the perineum. The Respondent decided to perform the episiotomy on the patient before applying the forceps based on his clinical judgment of what was best for the patient.
Forceps are obstetrical instruments used to assist in the delivery of the fetal head. The Respondent used Simpson forceps, a commonly used forceps, which are designed to come apart.
The Respondent attempted forceps delivery several times without success, even with the patient pushing and fundal pressure being applied simultaneously by Nurse Azima and Nurse Lane. Fundal pressure is applied by pressing down on the top of the patient's abdomen to help in the delivery of the baby and is a fairly common obstetrical procedure.
During the attempt to deliver the baby with the forceps the IV came out but was restored by the Respondent. The Pitocin was discontinued at this time.
The Respondent was practicing medicine within the prescribed standard of care when he performed the episiotomy before the use of the forceps and in
his attempt to delivery the baby with the forceps, notwithstanding Dr. Brauner's testimony to the contrary.
After the unsuccessful attempt to deliver the baby with forceps, the Respondent decided to transfer the patient to a hospital for a cesarean section.
Nurse lane was instructed by the Respondent to call for an ambulance. Nurse Lane called the Sarasota Fire Department which responded in approximately three minutes. After calling the Sarasota Fire Department, Nurse Lane called St. Joseph's Hospital and advised the hospital that the patient would be on the way.
The episiotomy was not bleeding excessively and the bleeding could be controlled by packing the incision with gauze sponges and keeping the patient lying down with her legs together.
Since the repair of the episiotomy would have required 10 to 15 minutes, the Respondent, using his best clinical judgment, decided to control the bleeding as set out above rather than to repair the episiotomy and delay the patient's transport to the hospital. The patient's life or well-being was not threatened by not repairing the episiotomy.
While blood loss is a concern, specially for someone facing an operation, apparently the blood loss for this particular patient was not an overriding concern since the decision was made at the hospital not to repair the episiotomy until after the cesarean section, some two hours later.
Under the circumstances and conditions existing at the time, the Respondent was practicing medicine within the prescribed standard of care when he, in his best clinical judgment, decided not repair the episiotomy which would have delayed transporting the patient to the hospital.
Upon arrival the paramedics were advised of the patient's condition, that the patient was to be transported to St. Joseph's Hospital and that the Respondent was attempting to reach Respondent's back-up physician. However, the Respondent did not want to delay transport of the patient to the hospital so he advised the paramedics to proceed to St. Joseph's Hospital in Port Charlotte before he had made contact with the back-up physician, other than with the doctor's answering service.
On July 8, 1988 the Respondent's consultant (back-up obstetrician) was Dr. Lara, who was a Board certified obstetrician with hospital privileges at St. Joseph's Hospital in Port Charlotte.
After the ambulance had departed for St. Joseph's Hospital, the Respondent, being unable to make contact with the Dr. Lara other than with answering service, called St. Joseph's Hospital and advised them of the patient's condition, Nurse Lane having already called the hospital to advised them that the patient was being transported there.
In route to St. Joseph's Hospital, the paramedics made their own assessment of the patient's conditions and, under the conditions and circumstances existing at that time, decided to reroute the patient to the Venice Hospital which was closer.
Venice Hospital did not have an obstetrical unit. Therefore, contact was established with a Dr. Chen, the supervising emergency room physician, who
advised the paramedics to transport the patient to Venice Hospital for evaluation.
After examining the patient, Dr. Chen called the Respondent and told him that he thought the patient was ready to deliver. However, after the Respondent told Dr. Chen of the patient's condition and not to delay getting the patient to a hospital with obstetrical service, Dr. Chen directed transport of the patient to Memorial Hospital in Sarasota.
After talking with Dr. Chen, the Respondent called the Memorial Hospital, discussed the patient's condition with the nurse on the obstetrics floor, advised the nurse of what had been attempted with the patient, and that in his opinion a cesarean section was necessary. The Respondent left his phone number with the nurse so that the obstetrician handling the case could call the Respondent, if necessary. The obstetrician handling the patient's care at Memorial Hospital did not call Respondent and Respondent made no attempt to call the obstetrician.
The patient was admitted to Memorial Hospital at 11:40 p.m., and was monitored with an external monitor for nearly 55 minutes before being taking to the operating room at 11:34 p.m. where she underwent an emergency cesarean section delivery at 11:49 p.m. After the delivery, the patient's episiotomy was repaired.
Although the baby had forceps marks graded from "no marks" to "bad forceps marks" by personnel at Memorial Hospital, there was no evidence that the baby was in any way affected by the Respondent's attempted forceps delivery.
The mother and the baby fared well while in the hospital and were discharged on July 12, 1988.
There is competent substantial evidence to establish facts to show that the Respondent was practicing 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 throughout the treatment and management of the patient, K. Z. from March 18, 1988 through July 8, 1988.
During the course of the hearing the Department stipulated on the record that it did not intend to pursue Count III of the Administrative Complaint (failure to keep written medical records justifying the course of treatment for the patient) and presented no evidence on this charge.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
Section 458.331(2), Florida Statutes, empowers the Board of Medicine to revoke, suspend or otherwise discipline the license of a physician found guilty of any one of those acts enumerated in Section 458.331(1), Florida Statutes.
Respondent was initially charged with the violation of Section 458.331(1)(m),(q),(t),(v) and (w), Florida Statute. However, during the course of the hearing the Petitioner stipulated on the record that it did not intend to pursue Count III of the Administrative Complaint, violation of Section 458.331(1)(m), Florida Statutes. Therefore, the violations with which the
Respondent is charged are violations of Section 458.331(1)(q),(t),(v) and (w), Florida Statutes, which provide in pertinent part as follows:
(q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. For the purpose of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances,
inappropriately or in excessive quantities is not in the best interest of the patient and is not in the course of the physicians's practice, without regard to his intent.
(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.....
Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform.
Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.
Risk Mangers may suggest that physicians practice "risk management" in order to preclude law suits, as indicated by Dr. Brauner's testimony at pages
179 and 183 of the transcript. However, that standard of care is not necessarily the same standard of care by which a reasonably prudent physician under similar conditions and circumstances should judge another physician's performance. That standard of care is set out above in Section 458.331(1)(t), Florida Statutes, and requires a physician in treating a patient to first utilize the medical knowledge, skill and experience that the physician possesses and not require the patient to expend the extra time, effort and expense of additional tests or procedures unless they are medically necessary or in the best interest of the patient.
In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino
v. Department of Health and Rehabilitative Services, 348 So.2d 349 (2 DCA Fla. 1977). The Petitioner must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 191 (Fla. 1987). The Petitioner has failed to prove the material allegations of the Administrative Complaint by clear and convincing evidence and thereby, has failed to sustain its burden in this regard.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order dismissing Counts I, II, III, IV, and V of the Administrative Complaint filed in this case.
RECOMMENDED this 15th day of February, 1993, at Tallahassee, Florida.
WILLIAM R. CAVE
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 15th day of February, 1993.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3149
The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.
Petitioner's Proposed Findings of Fact.
The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(9,14); 3 -11 (15,24,30,32,32,26,27,29,and 28,respectively); 12(28,29); 13(32); 14(25,27); 15(25); 16(38); 17(32-34,36 and 38); 24(37); 26(28,29); 27 - 30(16-18 and 22, respectively); 32 - 35(19); 36(43,46); 38(51,53); 43(52); 47(55); 50(46); 52 - 59(60 - 63,65,67,68); 61(66); 64(74); 67(74); 68(75); 70(74- 76); 72-74(67,68); 76(69); 79-89(72-75,77,80-84); 90-94(77- 79,82,83); 96-97(83,84); 100(84); and 105-106(85).
The following proposed findings of fact are not supported by competent substantial evidence in the record: 19, 21, 23, 25, 39-42, 44, 45, 48, 49, 51, 62, 63, 69, 71, 78, 95, 98, and 99.
The first sentence of proposed findings of fact 18, 20, 22 and 37 are adopted in Findings of Fact 32, 34 and 44. The balance of proposed findings of fact 18, 20, 22 and 37 are not supported by competent substantial evidence in the record.
The following proposed findings of fact are neither material nor relevant to the conclusion reached in the Recommended Order: 31, 46, 60, 65, 66, 75, 77, 101 - 104 and 107.
6. The Findings of Fact 1 - 30 concerning Expert Witnesses go to the credibility of those expert witnesses and are not addressed in the Findings of Fact.
Respondent's Proposed Findings of Fact.
Proposed findings of fact 1 - 11 are adopted in substance as modified in Findings of Fact 2 - 12, respectively.
Proposed finding of fact 12 is unnecessary.
Proposed findings of fact 13 and 14 are adopted in substance as modified in Finding of Fact 13.
Proposed findings of fact 15 and 16 are adopted in substance as modified in Findings of Fact 14, 15 and 19.
Proposed findings of fact 17 - 24 are adopted in substance as modified in Findings of Fact 25, 27, 30 - 33 and 84.
Proposed findings of fact 25 - 29 are adopted in substance as modified in Findings of Fact 27, 28, 31, and 34.
Proposed findings of fact 30 - 36 are adopted in substance as modified in Findings of Fact 25,33 and 37.
Proposed findings of fact 37 - 45 are adopted in substance as modified in Findings of Fact 16 - 24.
Proposed findings of fact 46 - 52 are adopted in substance as modified in Findings of Fact 39 - 42.
Proposed findings of fact 53 - 56 are adopted in substance as modified in Findings of Fact 43 - 45.
Proposed findings of fact 57 - 61 are adopted in substance as modified in Findings of Fact 46 - 49.
Proposed findings of fact 62 - 68 are adopted in substance as modified in Findings of Fact 50, 51 and 69.
Proposed findings of fact 69 - 88 are adopted in substance as modified in Findings of Fact 52 - 58.
Proposed findings of fact 89 - 94 are adopted in substance as modified in Findings of Fact 59 - 64.
15 Proposed findings of fact 95 - 100 are adopted in substance as modified in Findings of Fact 65 - 71.
Proposed findings of fact 101 - 110 are adopted in substance as modified in Findings of Fact 71 - 76.
Proposed findings of fact 111 - 129 are adopted in substance as modified in Findings of Fact 77 - 83.
Proposed findings of fact 129 - 137 are adopted in substance as modified in Findings of Fact 84 - 86.
Proposed findings of fact 138 - 162 are matters relating to the witnesses and go to the credibility of those witnesses and are not addressed as Findings of Fact.
COPIES FURNISHED:
Michael K. Blazicek, Esquire Senior Attorney
Department of Professional Regulation 730 South Sterling Avenue, Suite 201
Tampa, Florida 33609-4582
Darol Carr, Esquire
Farr, Farr, Emerich & Hackett, P. A. 2315 Aaron Street
Post Office Box 2159
Port Charlotte, Florida 33949
James W. Linn, Esquire Carson, Linn & Adkins 1711-D Mahan Station
Tallahassee, Florida 32308
Dorothy Faircloth Executive Director Department of Professional
Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Jack McRay General Counsel
Department of Professional Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the 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 their 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.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 91-3149
)
ALI A. AZIMA, M. D., )
)
Respondent. )
)
ORDER CORRECTING STYLE OF RECOMMENDED ORDER
This matter came on for consideration before the undersigned due to an error in the spelling of Respondent's name in the style of the Recommended Order
in the above-captioned case. In accordance with Rule 60Q-2.032(2), Florida Administrative Code, it is, therefore, sua sponte
ORDERED THAT:
The Recommended Order entered in the above-captioned case on February 15, 1993 is corrected to reflect the correct spelling of Respondent's name as AZIMA rather than ASIMA in the style of the case.
The parties shall replace the copy of the incorrect page with the copy of the corrected page attached to this order.
DONE AND ORDERED this 22nd day of February, 1993, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
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 22nd day of February, 1993.
COPIES FURNISHED:
Michael K. Blazicek, Esquire Department of Professional Regulation 730 South Sterling Avenue, Suite 201
Tampa, Florida 33609-4582
Darol Carr, Esquire
Farr, Farr, Emerich & Hackett, P. A. 2315 Aaron Street
Post Office Box 2159
Port Charlotte, Florida 33949
James W. Linn, Esquire Carson, Linn & Adkins 1711-D Mahan Station
Tallahassee, Florida 32308
Dorothy Faircloth Executive Director
Department of Professional Regulation 1940 North Monroe Street
Suite 60
Tallahassee, Florida 32399-0792
Jack McRay General Counsel
Department of Professional Regulation 1940 North Monroe Street
Suite 60
Tallahassee, Florida 32399-0792
| Issue Date | Proceedings |
|---|---|
| Apr. 27, 1993 | Final Order filed. |
| Feb. 22, 1993 | Order Correcting Style of Recommended Order sent out. (corrected to reflect the spelling of Respondent`s name as Azima rather than Asima) |
| Feb. 15, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 9/29-30/92 & 10/1/92. |
| Oct. 29, 1992 | Order sent out. (Respondent`s Motion to exceed the forty page requirement, granted) |
| Oct. 28, 1992 | Respondent`s Proposed Recommended Order filed. |
| Oct. 28, 1992 | (DPR) Proposed Recommended Order filed. |
| Oct. 27, 1992 | Respondent`s Agreed Motion for Leave to File Proposed Recommended Order in Excess of Forty Pages filed. |
| Oct. 15, 1992 | Transcript of Proceedings (3 Volumes) w/Exhibits filed. |
| Oct. 06, 1992 | Post Hearing Order sent out. |
| Oct. 01, 1992 | CASE STATUS: Hearing Held. |
| Sep. 29, 1992 | (Joint) Prehearing Stipulation filed. |
| Sep. 29, 1992 | (Joint) Prehearing Stipulation; Respondent`s Response in Opposition to Petitioner`s Motion for Protective Order; Respondent`s Brief Supporting Admissions in Evidence of Letters From Singletary and Rattan filed. |
| Sep. 28, 1992 | Respondent`s Response in Opposition to Petitioner`s Motion for Protective Order filed. |
| Sep. 28, 1992 | (Respondent) Motion in Limine w/cc Transcript) filed. |
| Sep. 28, 1992 | (Petitioner) Motion for Protective Order filed. |
| Sep. 25, 1992 | (Respondent) Notice of Filing Deposition; Deposition of Robert E. Brauner filed. |
| Sep. 24, 1992 | (Petitioner) Notice of Telephone Hearing on Respondent`s Motion to Dismiss filed. |
| Sep. 22, 1992 | (Respondent) Notice of Service of Answered Interrogatories w/Petitioner`s First Set of Interrogatories and Production of Documents to Respondent; Response to Request to Produce filed. |
| Sep. 22, 1992 | Letter to WRC from James W. Linn (re: scheduling telephone hearing) filed. |
| Sep. 22, 1992 | Petitioner`s Motion to Take Official Recognition filed. |
| Sep. 21, 1992 | Respondent`s Motion to Dismiss w/Exhibits A-E filed. |
| Sep. 21, 1992 | (Petitioner) Notice of Serving Answers to Respondent`s Interrogatories to Petitioner and Response to Request for Production filed. |
| Sep. 04, 1992 | Amended Fifth Notice of Hearing (as to Location of Hearing Room only)sent out. (hearing set for 9/29-30/92 & 10/1/92; 11:00am; Sarasota) |
| Sep. 02, 1992 | (Respondent) Notice of Appearance filed. |
| Aug. 28, 1992 | Notice of Deposition filed. (From Darold H. M. Carr) |
| Aug. 21, 1992 | (Respondent) Notice of Conflict filed. |
| Jun. 25, 1992 | Fifth Notice of Hearing sent out. (hearing set for 9-29-92 at 11:00am; and at 9:00am, on September 30, 1992, and October 1-2, 1992; Sarasota) |
| Jun. 22, 1992 | Letter to WRC from Algis Augustine (re: request for Order granting Motion to withdraw as Dr. Azima`s attorney) filed. |
| Jun. 17, 1992 | Order Of Continuance sent out. (hearing date to be rescheduled at a later date; parties to file status report by 6-30-92) |
| Jun. 17, 1992 | Joint Motion for Continuance; Notice of Appearance of Counsel w/cover ltr filed. |
| May 27, 1992 | Order Granting Withdrawal Of Respondent`s Attorney Of Record sent out. (Motion granted) |
| May 04, 1992 | (Respondent) Amended Motion for Leave to Withdraw as Attorney of Record filed. |
| Apr. 21, 1992 | Letter to WRC from John A. Schaefer (re: ltr dated April 16, 1992 and Order denying substitution) filed. |
| Apr. 20, 1992 | (Petitioner) Notice of Appearance of Co-Counsel filed. |
| Apr. 16, 1992 | Order Denying Substitution Of Counsel sent out. (Notice of withdrawal as attorney for record is denied) |
| Apr. 07, 1992 | Notice of Withdrawal As Attorney of Record & Exhibit filed. (From Algis Augustine |
| Feb. 13, 1992 | (Prehearing) Order sent out. |
| Feb. 13, 1992 | Notice of Hearing sent out. (hearing set for June 22, 1992; 1:00pm; & June 23-26, 1992; 9:00am; Sarasota). |
| Feb. 07, 1992 | (DPR) Response to Hearing Officer`s Order to Re-Advise of Hearing Date filed. |
| Jan. 16, 1992 | Order of Abeyance and Status Report sent out. (Hearing cancelled; Parties` status report due Feb. 10, 1992). |
| Jan. 16, 1992 | Joint Motion for Continuance Hearing of February 10, 1992 filed. |
| Jan. 13, 1992 | (Respondent) Notice of Dismissal (4) filed. |
| Nov. 19, 1991 | Order sent out. |
| Oct. 16, 1991 | Amended Notice of Hearing (as to Place only) sent out. (hearing set for Feb. 10, 1992; 1:00pm; Feb 11-14, 1992; 9:00am; Sarasota). |
| Oct. 11, 1991 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for Feb. 10-14, 1992; 1:00pm; Sarasota). |
| Oct. 11, 1991 | (Respondent) Motion to Continue Hearing filed. |
| Oct. 04, 1991 | Petitioner`s Motion to Take Official Recognition w/Exhibits A-C filed. |
| Sep. 09, 1991 | Order sent out. (RE: Rulings on Motions). |
| Sep. 03, 1991 | Letter to WRC from J. Levens (estimated days for hearing) filed. |
| Aug. 26, 1991 | (Petitioner) Motion for Protective Order filed. (From Mary Radkins) |
| Aug. 21, 1991 | (Respondent) Motion for Leave to Propound in Excess of 30 Interrogatories; Response to Petitioner`s Request for Admissions filed. |
| Aug. 13, 1991 | Petitioner`s Response to Request to Produce filed. (From Mary Radkins) |
| Jul. 24, 1991 | Request to Produce; Interrogatories filed. (From Algis Augustine) |
| Jun. 07, 1991 | Notice of Hearing sent out. (hearing set for Oct. 16-17, 1991; 9:00am; Sarasota). |
| Jun. 07, 1991 | Order sent out. (Re: Respondent`s request to have Algis Augustine, Esquire qualified as his representative granted). |
| Jun. 04, 1991 | Notice of Appearance; Affidavit; Motion for Leave to Appear as qualified Representative filed. (from A. Augustine) |
| Jun. 03, 1991 | Response to Initial Order filed. (from Mary Radkins) |
| May 30, 1991 | Letter to Mary B. Radkins from Ali A. Azima (re: representation of Respondent) filed. |
| May 23, 1991 | Initial Order issued. |
| May 21, 1991 | Agency referral letter; Administrative Complaint; Election of Rights;Notice of Appearance filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 13, 1993 | Agency Final Order | |
| Feb. 15, 1993 | Recommended Order | Insufficient evidence to prove violation of Section 458.331(l)(q)(t)(v)(w). |
