STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERIC GROSCH, M.D. )

)

Petitioner, )

)

vs. ) CASE NO. 91-3997F

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on September 6, 1991, at Tampa, Florida.

APPEARANCES

For Petitioner: William E. Hahn, Esquire

Scott P. Distasio, Esquire Post Office Box 2378 Tampa, Florida 33601

For Respondent: Mary Radkins, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether the Respondent was substantially justified in bringing the charges contained in the Amended Administrative Complaint heard November 6, 1990, in DOAH Case No. 90-4808.

PRELIMINARY STATEMENT

By Petition for Attorney's Fees and Costs dated June 25, 1991, Petitioner seeks attorney's fees and costs resulting from his defense of charges brought against him and heard in DOAH Case No. 90-4808. At the commencement of this hearing, the parties stipulated that attorney fees of $15,000 is reasonable; that Petitioner was the prevailing party in DOAH Case No. 90-4808; that Petitioner qualifies as a small business party in accordance with Section 57.111, Florida Statutes; and that no basis exists for finding the award of the fee requested unjust.

Thereafter, Petitioner called two witnesses, Respondent called two witnesses, one by deposition (Exhibit 11), and 11 exhibits were admitted into evidence.

Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Petitioner is the prevailing party in charges of medical malpractice initiated against him by Respondent herein. (Stipulation)

   
   

2. Petitioner is a small business party as defined in Section 57.111, Florida Statutes. (Stipulation)

   
   

3. No special circumstances exist which would make the award of fees and costs unjust. (Stipulation)

   
   

4. Reasonable attorney's fees and costs exceed the maximum of $15,000 authorized to be awarded in these proceedings. (Stipulation)

   
   

5. The initiation of the proceedings which resulted in an administrative complaint being filed naming Eric Grosch, M.D., as a party respondent followed disciplinary action instituted against Dr. Grosch by the Peer Review Committee at Humana Hospital, St. Petersburg, Florida, following the hospital death of a 74-year old female patient of Dr. Grosch.

   
   

6. The investigator assigned to this case interviewed numerous witnesses at Humana Hospital, notified Dr. Grosch of his inquiry, and submitted an investigative report to the Department of Professional Regulation (DPR) with medical records.

   
   

7. On the basis of this investigative report and medical records, an administrative complaint was prepared by DPR, and the investigative report with medical records was forwarded to the members of the Probable Cause Panel (PCP) with a recommendation to obtain an expert opinion on the standard of care issue. This panel met on January 19, 1990.

   
   

8. At this meeting of the PCP, the panel members voted to refer the records to an expert who would submit his opinion on whether the evidence supported malpractice on the part of Dr. Grosch.

   
   

9. By letter dated January 23, 1990, the hospital records and uniform complaint form were forwarded to Dr. Braunstein, who is board certified in the field of internal medicine, for his review and opinion as to whether Dr. Grosch failed to treat the patient 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.

   
   

10. By letter dated April 13, 1990, Dr. Braunstein submitted his opinion that in the treatment of the subject patient, Dr. Grosch failed to adhere to the requisite standard of care.

    
    

11. The investigative file, medical records and Dr. Braunstein's opinion were referred to a different PCP on June 2, 1991, for a determination if probable cause existed to file an administrative complaint. After having reviewed the evidence presented, this panel voted to proceed with the charges in the administrative complaint.

12. During the meeting of this PCP, one of the members raised the question as to whether the administrative complaint addressed an issue relative to the alteration of some medical records by Dr. Grosch. DPR staff members at the PCP meeting agreed to look into the altering records issue and, if found warranted, to refer this issue back to the PCP.

    
    

13. The administrative complaint and records were forwarded to Bruce Lamb, the DPR attorney assigned to prosecute the case.

    
    

14. After reading the investigative report and interrogating the various witnesses named in the investigative report, Mr. Lamb found a conflict in the medical records discharge summary and the observations of witnesses regarding the administration of a sedative to the patient during the intubation process. The witnesses recalled the sedative being proposed after the intubation started, while the Respondent's discharge summary stated the sedation was given before the intubation was started.

    
    

15. As a result of this discrepancy in the medical records and witnesses' versions of the sequence of events, Mr. Lamb prepared a proposed Amended Administrative Complaint adding factual paragraphs 20 and 21 and Counts 3 and 4 charging the filing of a report known to be false and making deceptive, untrue or false representations related to the practice of medicine.

    
    

16. This Amended Administrative Complaint with investigative report, medical records and expert opinion was presented to a third PCP on October 12, 1990, and the panel voted to amend the original administrative complaint to include the additional counts shown in the proposed Amended Administrative Complaint.

    
    

17. At the hearing on November 6, 1990, DOAH Case No. 90-4808, Dr. Grosch, Respondent, admitted factual allegations 20 and 21 in the Amended Administrative Complaint, and witnesses to testify to these facts were not called.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

    Section 57.111(4)(a), Florida Statutes, provides:

    Unless otherwise provided by law, an award of attorney fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the state agency were substantially justified or special circumstances exist which would make the award unjust.

    
    

19. By virtue of the parties' stipulation, the only issue here remaining is whether the actions of the Department in prosecuting the administrative complaint were substantially justified. Section 57.111(3)(e), Florida Statutes, provides:

    
    

    A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the

    time it was initiated.

    
    

20. These proceedings were initiated by the PCP finding cause to file the Amended Administrative Complaint. It is at this time, as compared to some later date, that substantial justification must be found. Union Trucking Inc. v. Dept. of Transportation, 10 F.A.L.R. 6039 (1988).

    
    

21. In these proceedings, the agency has the burden of proving its actions were substantially justified. The standard of proof here required is less strict than the ". . . complete absence of justiciable issue of either law or fact" standard found in Section 57.105, and is more restrictive than an automatic award of fees to every prevailing small business party. Alario v. Dept. of Professional Regulation, Division of Real Estate, 10 F.A.L.R. 2134 (1988).

    
    

22. Federal law defining the standard is persuasive. Gentele v. Dept. of Professional Regulation, Board of Optometry, 513 So.2d 572 (Fla. 1st DCA 1987). In discussing the meaning of the term "substantially justified" the court in Ashburn v. United States, 740 F.2d 843 (11th Cir. 1984), said:

    
    

    The government bears the burden of showing that its position was substantially justi- fied. The standard is one of reasonable- ness; the government must show "that its case had a reasonable basis both in law and in fact." The fact that the government lost its case does not raise a presumption that the government's position was not substantially justified. Nor is the government required to establish that its decision to litigate was based on a sub- stantial probability of prevailing. (citations omitted)

    
    

23. It is the evidence deemed available at the time the charges were preferred in DOAH Case No. 90-4808 which is determinative of the substantial justification for the charges--not the evidence presented at the hearing.

    
    

24. The evidence before the PCPs included medical records of the patient up to her demise, statements of various witnesses contained in the investigative report, and the opinion of an expert in internal medicine that the action of Dr. Grosch in treating this patient immediately prior to her demise failed to meet the standard of care required by Section 458.331(1)(t), Florida Statutes. With respect to the added charges included in the Amended Administrative Complaint, the PCP had the discharge summary prepared by Dr. Grosch saying he gave the patient a sedative (Tylenol) prior to commencing the intubation and the statements of the two nurses on duty in the ICU that one of them suggested the sedative after the intubation was started. There was substantial evidence to the effect that the damage to the patient's vocal chords during the difficult intubation resulted in excess air being introduced to the patient's body which could have caused the death of the patient.

    
    

25. There was clear evidence before the PCP that the discharge summary prepared by Dr. Grosch regarding the time the intubation sedative was given conflicted with the statements of the two nurses present in ICU while the intubation was ongoing. The schedule of events reported in the discharge summary was more favorable to Dr. Grosch than was the schedule of events

described by the nurses. This was sufficient to raise the issue of falsifying records. The fact that the hearing officer after hearing all evidence presented, including the testimony of Dr. Grosch's expert witnesses which the PCP did not have, found that, under the emergency conditions existing at the time intubation was in progress, the time of administering of a sedative was not particularly relevant and found Dr. Grosch not guilty of falsifying the records.

ORDERED

From the foregoing, it is concluded that the action of the Department in filing the Amended Administrative Complaint was substantially justified, and Petitioner herein is not entitled to an award of attorney's fees and costs.

Accordingly, it is ordered that the Petition of Dr. Eric Grosch for attorney's fees and costs in the amount of $15,000 resulting from his defense of charges brought in DOAH Case No. 90-4808 be dismissed.

ORDERED this 8th day of October, 1991, in Tallahassee, Florida.

K. N. AYERS 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 8th day of October, 1991.

APPENDIX TO FINAL ORDER, CASE NO. 91-3997F

Petitioner's proposed findings of fact are accepted, except for:

Finding 14--First sentence rejected. The Third Probable Cause Panel had information that Bruce Lamb, DPR's prosecuting attorney in the case, had interviewed the witnesses related to the additional charges in the Amended Administrative Complaint. Last sentence rejected. Whether the discharge summary contained information that was contradicted by other witnesses is a factual question for which no expert testimony is necessary.

Findings 18 and 19--rejected as irrelevant to the issue.

COPIES FURNISHED:

William E. Hahn, Esquire Scott P. Distassio, Esquire Post Office Box 2378 Tampa, FL 33601

Mary Radkins, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Dorothy Faircloth Executive Director Board of Medicine

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

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 DIVISION OF ADMINISTRATIVE HEARINGS 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 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

ERIC GROSCH, M.D., NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,

Appellant, IF FILED, DETERMINED.

vs. CASE NO. 91-03615

DOAH CASE NO. 91-3997F

DEPARTMENT OF PROFESSIONAL REGULATION,

Appellee.

/

Opinion filed July 31, 1992.

Appeal from the Department of Professional Regulation. Eric N. Grosch, M.D., pro se.

Assistant General Counsel, Lisa S. Nelson, Tallahassee, for Appellee.

PER CURIAM.

Affirmed.

RYDER, A.C.J., and DANAHY and BLUE, J.J., Concur.

Docket for Case No: 91-003997F

Orders for Case No: 91-003997F