STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT )
OF PROFESSIONAL REGULATION, )
BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 91-5325
) DPR Nos. 0111343 and
ROBERT C. BROWN, JR., M.D., ) 0111344
)
Respondent. )
) STATE OF FLORIDA, DEPARTMENT )
OF PROFESSIONAL REGULATION, )
BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 91-6358
) DPR Nos. 8901804, ROBERT C. BROWN, JR., M.D., ) 0111385 and 0111353
)
Respondent. )
) STATE OF FLORIDA, DEPARTMENT )
OF PROFESSIONAL REGULATION, )
BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 92-1076
) DPR No. 91-06883
ROBERT C. BROWN, JR., M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Notice was provided and on June 8, 9, 10, 15, 16, 17, 18, 22, and 23 and July 1 and 10, 1992, a formal hearing was conducted in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes.
This presentation was made before Charles C. Adams, Hearing Officer or via telephone conference call. The hearing locations were Tallahassee and Jacksonville, Florida.
APPEARANCES
For Petitioner: Susan E. Lindgard, Senior Attorney
Michael Blazicek, Senior Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60
Tallahassee, FL 32399-0792
For Respondent: Julie Gallagher, Attorney at Law
Sandra Stockwell, Attorney at Law Stowell, Anton and Kraemer
201 South Monroe Street, Suite 200 Tallahassee, FL 32302
STATEMENT OF ISSUES
Through the several administrative complaints to which these cases pertain, Petitioner seeks to take disciplinary action against the medical license held by the Respondent. The alleged misconduct is more fully described in the discussion that follows.
PRELIMINARY STATEMENT
When served with the various administrative complaints Respondent sought relief by requesting a formal hearing to contest the charges. The cases were consolidated for purposes of that hearing to be held in accordance with Section 120.57(1), Florida Statutes.
Within DOAH Case No. 91-6358/DPR No. 8901804, Petitioner dismissed the charges as they relate to care rendered Irene Shulman. That dismissal was with prejudice.
Respondent sought the dismissal of DOAH Case No. 92-1076/DPR No. 91-06883 on procedural grounds contemplated by Section 455.225, Florida Statutes.
Respondent asserted that the Petitioner was without authority to initiate an investigation concerning the patients Jacquelyn Cross, Deborah Reed, and Theresa Emery based upon the failure to follow procedures set forth in Section 455.225, Florida Statutes. Respondent also argued that the administrative complaint should be dismissed as it was associated with those patients and the patient Kelly John by failure on the part of the Probable Cause Panel to adequately consider evidence leading to a decision finding probable cause to prosecute.
The latter ground for relief was not compelling; however, as related in the hearing transcript, it was determined that Petitioner failed to conduct the investigation by meeting the procedural requirements called for in Section 455.225, Florida Statutes, and the allegations pertaining to treatment of Jacquelyn Cross, Deborah Reed and Theresa Emery were dismissed without prejudice to the Petitioner to pursue those matters following compliance with the procedures set forth in Section 455.225, Florida Statutes.
Petitioner presented the testimony of Ralph Hadley, Gloria Wakefield, Udelia Thomas, Emily Rivera, Lynn A. Quimby-Pennock, Dottie Akers, Cynthia Lynn Lankry, Lillian Andrews, Kelly John, Balenda Fulton and the testimony of medical doctors Reginald M. Davis, Kenneth Sekine, Karen Watts McCarthy, Norman Pak, Robert Brauner, Arthur C. Rudolph, and John D. Becker. Dr. Rudolph was presented by video deposition and Dr. Becker by deposition transcript.
Petitioner's Exhibits 1, 2, 3, 5, 6, 7, 9, 10, 11 and 12 were admitted into evidence upon conditions identified in the transcript of the final hearing.
Petitioner's Exhibit 4 was withdrawn from evidence. Petitioner's Exhibit 8 was denied admission.
Respondent testified in his own behalf and presented the testimony of Michelle Hudson McCrary, W. W. Sam Ingram, Jr., Charles Coats and medical doctors James Eugene Glenn, Kenneth W. Jones and Euan Robertson. Respondent's Exhibits Nos. 1, 2, 3, 4, 5, 7, 8, 9, 10, and 11 were admitted into evidence. Ruling was reserved on the admission of Respondent's Exhibit No. 6. Upon consideration Respondent's Exhibit No. 6 is admitted.
A prehearing stipulation was filed.
To the extent that various physicians offered opinion testimony concerning Respondent's care and treatment given to the subject patients adequate factual predicate was established to support the opinion expressed by those physicians.
Hearing Officer's Exhibit No. 1 is constituted of materials reviewed by Dr.
Brauner in preparing to give his testimony which materials Dr. Brauner brought with him to the hearing. In addition, upon the opportunity presented by the Hearing Officer the Petitioner was allowed to solicit from Dr. Rudolph those materials which he had been provided in assisting Dr. Rudolph to prepare for his video deposition. Materials presented by the Petitioner which purport to be that information available to Dr. Rudolph in his preparation as presented by the Petitioner during the hearing were accepted by the Hearing Officer as being documents provided to Dr. Rudolph for those purposes. Those materials concerning Dr. Rudolph's participation in the hearing process are included with this record.
Petitioner's motion to reopen the record to present rebuttal evidence concerning Respondent's disciplinary history was denied.
The parties were afforded the opportunity to submit proposed recommended orders. The time for filing those proposals was extended from the normal ten day limit to allow the parties to address the factual and legal complexity in this case. The filing date became September 30, 1992. Both parties availed themselves of this opportunity and submitted proposed recommended orders. The extension of time to file proposed recommended orders waives the Hearing Officer's requirement to complete the recommended order within 30 days from receipt of the transcript. See Rules 28-5.402 and 60Q-2.031, Florida Administrative Code.
The fact finding suggested by the parties is addressed in an Appendix within this Recommended Order.
The following rulings are made concerning objections offered during the course of the video deposition of Arthur C. Rudolph, M.D.:
Objection lines 1-3, page 18, overruled.
Objection lines 1 and 2, page 34, overruled.
Objection lines 17 and 18, page 35, overruled.
Objection lines 12-15, page 36, overruled.
Objection lines 9-12, page 40, sustained.
Objection lines 5-8, page 42, overruled.
Objection lines 21-24, page 42, overruled.
Objection lines 3-6, page 43, overruled.
Objection lines 8-10, page 44, overruled.
Objection lines 18 and 19, page 44, sustained.
Objection commencing line 25, page 44 and ending line 1, page 45, sustained.
Objection line 18, page 45, overruled.
Objection line 11, page 46, sustained.
Objection lines 10 and 11, page 48, overruled.
Objection line 3, page 51, overruled.
Objection line 5, page 52, overruled.
Objection line 8, page 53, overruled.
Objection lines 18 and 19, page 56, sustained.
Objection lines 6-9, page 59, sustained.
Objection lines 11 and 12, page 59, sustained.
Objection lines 3 and 4, page 60, overruled.
Objection lines 4 and 5, page 61, overruled.
Objection line 9 page 63, overruled.
Objection line 10, page 95, sustained.
Objection lines 1 and 2, page 100, overruled.
Objection line 8, page 104, sustained.
Objection lines 14-19, page 113, overruled.
Objection lines 20-23, page 135, sustained. Objection commencing lines 22-25, page 193 and ending on line 2, page 194, overruled.
To the extent that objections were sustained the answers given are disallowed. No ruling has been made reference the discussion of patients whose cases were dismissed.
FINDINGS OF FACT GENERAL
Respondent is licensed to practice medicine in Florida. His license number is ME0036443. He also is licensed to practice medicine in the states of New York and Virginia. His address is 1820 Barrs Street, No. 614, Jacksonville, Florida 32204-4720.
Respondent holds board certification in obstetrics and gynecology.
Respondent has received micro-surgical training and has performed between 125 and 250 tuboplasty procedures during his practice.
During the course of Respondent's private practice he has performed between 500 and 700 laparoscopies and a similar number of laparotomies.
In addressing a patient's interest in reestablishing fertility Respondent has had between a 50 and 75 per cent success rate overall.
Since 1987 Respondent has limited his practice to gynecology. He has not had hospital privileges since June 1990 because of a lack of malpractice insurance.
Before issuance of an emergency restriction order by Petitioner in the summer of 1991 Respondent had not been the subject of disciplinary action against his license which restricted his practice.
OTHER PHYSICIANS
Those physicians who have been previously named were accepted as experts in the field of medicine for purposes of the testimony they presented. Additionally, with the exception of Drs. McCarthy and Jones these physicians have practiced and/or continue to practice obstetrics and gynecology and their expertise in those medical specialities are accepted. Dr. McCarthy practices internal medicine. Dr. Jones practices general surgery, peripheral vascular surgery and kidney transplantation.
DOAH CASE NO. 91-5325/DPR No. 0111343 ALLEGATIONS
Respondent failed to detect that Dottie Akers' fimbriae had been removed.
Respondent attempted to reconstruct that patient's fallopian tubes when not enough tissue was available for such a procedure.
Respondent subjected the patient to five unnecessary surgical procedures within a five month period.
Respondent rendered care and treatment to the patient Akers from March 4, 1987 through October 14, 1987.
When the patient was first seen on March 4, 1987, she reported lower abdominal pains for a period of five months and that she had been taking antibiotics for treatment of her condition without success. At that visit Respondent was made aware of the patient's tubal ligation in 1981. Respondent's impression was salpingitias and suspected endometriosis. He planned a laparoscopic examination. This was an impression reached upon recount of her history and observation of her physical condition in which the cervix, uterus and right and left adnexa, and cul-de-sac were found to be tender.
On March 6, 1987, Respondent performed a laparoscopic examination of this patient. The visualization of the pelvic organs revealed that the uterus was approximately normal in size. Both adnexa showed evidence of past tubo- occlusion surgery. That surgery had occurred in 1981 when the patient underwent the tubal ligation. The laparoscopic examination revealed approximately 2 to 2 1/2 cms. of proximal portion of the fallopian tubes on both sides. Severe tubo- ovarian adhesions were noted between the remaining tube and the right ovary. That same situation was noted in the left adnexa region. Mild endometriotic implants were found throughout the cul-de-sac. The laproscopic examination was diagnostic in purpose. No therapeutic intervention was undertaken.
On March 20, 1987, Respondent performed a laparotomy on this patient. This procedure involved lysis of adhesions, removal of a parovarian cyst and a tuboplasty. Before undertaking this procedure Respondent gave the patient a trial of medical treatment for the endometriosis, but in his admitting diagnosis of March 18, 1987, he notes that the patient had not responded to the medicine and was being admitted for surgical treatment of the endometriotic implants as well as tubo-ovarian adhesions that had arisen secondary to the endometriotic implants.
The operative note from the March 20, 1987 laparotomy indicated that the uterus was slightly enlarged, retroverted and boggy. The right adnexa
region showed severe adhesions between the tube and the ovary. The adhesions were lysed with pin point needle cautery. A Zeiss 300 power microscope with micro surgical instrumentation was used to lyse adhesions along the long axis of the tube. Concerning the right fallopian tube the Respondent reports that the fimbriated end of the tube was completed clubbed. In the operative note Respondent reports that "new fimbriated end was created". In his testimony Respondent asserts that in affect repairs were being made on the existing fimbriated end which he found at the time of surgery. Respondent checked the tubal patency with a lacrimal probe. He found a cyst in this area that was approximately 2 1/2 to 3 cms. in size. The para-ovarian cyst was removed with the use of needle cautery and sharp dissection. Respondent found severe adhesions between the tube and ovary in the left adnexa region. These adhesions were lysed with sharp dissection. In his note he states that the fimbriated end of the tube was clubbed. That area was visualized and again he states that a new fimbriated end was created through a micro-surgical technique. The new fimbriae were then said to be attached back to the serosa of the long axis of the tube. He noted the ovary to be within normal limits. He found endometriotic spots throughout cul-de-sac that were fulgurized with needle point cautery. No endometriotic implants were found on the ovaries. Endometriotic implants were found along the left uterosacral ligament. No explanation was given concerning the intended disposition of the endometriotic implants along the left uterosacral ligament.
Following the laparotomy of March 20, 1987, the patient returned to the Respondent's office with a compliant of left lower quadrant pain. Respondent's suspicions concerning her condition was tubal-occlusion and his plan to address that circumstance was a hysterosalpingogram.
On May 22, 1987, the patient again came to the Respondent's office with a complaint of left lower quadrant pain for a period of one month and the pains were not relieved by use of medication. A sonogram that was performed on that occasion showed a 6 cms. left ovarian cystic mass. The Respondent's plan was a laparoscopic examination.
A laparoscopic examination was performed on May 28, 1987. The uterus was found to be approximately normal in size. The right adnexal region showed a tube that had extensive adhesions. Respondent reports that the fimbriated end was clubbed. The left adnexal region showed cystic left ovary and the cyst had ruptured by appearance. The left tube was clubbed at the fimbriated end as reported by Respondent. Chromopertubation of the fallopian tube was done with Methylene Blue Dye. The dye filled both tubes but without spillage. Severe adhesions were noted between the left tube and ovary. The cul-de-sac showed multiple implants of endometriosis. Respondent terminated the procedure without therapeutic response to the conditions observed.
On June 10, 1987, the patient came to Respondent's office complaining of pelvic pain, dysmenorrhea. In the face of these complaints Respondent planned to use Danazol then to laser endometriosis, lyse adhesions and perform a fimbrioplasty. Respondent is not confident that the patient took the Danazol.
Respondent admitted the patient to the hospital on June 25, 1987, for purposes of performing a laparotomy that would include the lysis of adhesions, fulguration of the endometriosis and performance of another tuboplasty to address tubal-occlusion. This surgery was performed on the next day.
During the June 26, 1987 surgery Respondent noted that the uterus was approximately normal in size. He saw there was severe tubo-ovarian adhesions
noted in both adnexa. The right adnexa region showed a tube that was stuck to the ovary and the ovary was stuck to the abdominal wall by adhesions. The adhesions were lysed with sharp and blunt dissection. The fallopian tube on that side was visualized and the fimbriated end was clubbed over, according to Respondent. Indication in the operative note states that sharp dissection was used to open the fimbriated end. A new os was created and the new fimbriates, as Respondent describes, were tacked back to the long axis of the tube. Patency is remarked as being established by use of a small angiocath and use of lactated ringers. Inspection of the left adnexa region revealed tubo-ovarian adhesions that were severe between the tube, ovary and sidewall. These were lysed with use of sharp dissection and pinpoint needle cautery. According to Respondent's notes, the fimbriated end was noted to be clubbed and was opened with sharp dissection. Again Respondent reports that new fimbriates were created and tacked back to the long axis of the tube on the left side. Endometriotic implants throughout the cul-de-sac were seen and were fulgurated by use of hot cautery. Because of retroflexion and retroversion of the uterus, uterine suspension was done using round ligaments imbricating one upon the other in the anterior aspect of the fundus of the uterus using sutures.
On July 11, 1987 and again on July 25, 1987, Respondent performed hydrotubation on the patient and these procedures revealed that the patient's fallopian tubes were open. At the time of the second hydrotubation on July 25, 1987, Respondent planned a hysterosalpingogram to be done in two weeks.
On August 1, 1987, Respondent performed a hysterosalpingogram on the patient and no tubes were visualized. Respondent's plan then was to schedule a laparoscopic examination to ascertain why the tubes could not be visualized.
The admitting diagnosis for the laparoscopic procedure which was performed on August 7, 1987, was tubal-occlusion. During this procedure the uterus was noted to be slightly enlarged. There were severe tubo-ovarian adhesions on the left adnexal region. The ovary was stuck to the posterior aspect of the fundus of the uterus as well as the tube. Adhesions were lysed in the left adnexal region and the ovary was freed from the tube in the posterior aspect of the uterus. According to Respondent, the fimbriated end of the fallopian tube on that side was then visualized and chromopertubation was done with Methylene Blue Dye. The dye spilled freely through the left tube. The right tube however was blocked on its so called fimbriated end and no spillage of dye was noted. Some tubo-ovarian adhesions were found and were lysed in that area. Observation of the cul-de-sac revealed endometriotic implants mild in nature along the right uterosacral ligament.
The laparoscopic examination performed on May 28, 1987 was a procedure in which Respondent failed to practice medicine with a level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The purpose of the laparoscopic examination was to address chronic pelvic pain associated with suspected adnexal mass which was a 6 cms. cyst. The pain had presented one month and medicine had not resolved it. The pain was most likely related to the cyst which had been visualized on ultrasound. The cyst was most likely a functional cyst which will occur in a female patient each month when that patient was not on birth control pills and should resolve on its own. Therefore the procedure was unnecessary. If not a functional cyst the possibility existed that the growth was cancerous or that it might be a type of neoplasm, irregular growth on the ovary, and there might be the necessity for some form of operation. The possibility existed that the functional cyst might be interfering with the ovary. If a form of problem which would not resolve on its
own, the only reasonable treatment would be to perform a laparotomy not a laparoscopic examination. During the laparoscopy, the Respondent observed that the cyst had ruptured. He also noted that the patient was a candidate for lysis of tubo-ovarian adhesions and fulgration of endometriosis and for further fimbrioplasty.
In order to determine whether the tubes were occluded, it would not have been necessary to perform the May 28, 1987 laparoscopic. This could have been ascertained by the use of a hysterosalpingogram.
Associated with the laparoscopic examination on August 7, 1987, the complaint was tubal-occlusion. This complaint did not constitute sufficient reason to perform the laparoscopic examination. In this instance severe tubo- ovarian adhesions were lysed. Endometriosis was found but not treated through surgery. Instead Respondent preferred the plan to use medical therapy for the endometriosis.
The laparoscopy that was performed on August 7, 1987 in which the problems with occlusion of the tube was observed was not of any utility in addressing that problem.
On August 1, 1987, when Respondent had performed a hysterosalpingogram he observed blockage at the proximal of the tube. Because the blockage was in that area the Respondent would not be able upon the laparoscopic examination on August 7, 1987, to correct the blockage. Further, the reason for going to the August 7, 1987 laparoscopy was not to address pain. Finally, the hysterosalpingogram of August 1, 1987 was in conflict with the hydrotubation performed on July 11 and 25, 1987, which would make one suspect the finding on August 1, 1987 as to its accuracy.
The circumstance on August 7, 1987 when the laparoscopic examination was made was not one in which the tubal- occlusion was causing pain. Although the chromopertubation performed during the laparoscopic examination could assess the tubal-occlusion that process of assessment would not correct the tubal- occlusion nor would any other activity during the course of the laparoscopic examination bring about a correction.
In performing the August 7, 1987 laparoscopic examination Respondent failed to practice medicine with the level of care, skill, or treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Respondent failed to practice medicine with the level of care, skill and treatment which is recognized by reasonably prudent and similar physicians as been acceptable under similar conditions and circumstances in his inability to identify the fimbriae in the patient followed by an attempt to reconstruct or repair the fallopian tubes in the interest of reobtaining fertility in the patient when not enough tissue was available to accomplish this task. The same criticism pertains to the March 20, 1987 and June 26, 1987 operations related to fertility. The situation which Respondent was presented with in the patient concerning her fallopian tubes was one in which on either side in the distal portion, the anterior portion to include the fimbriae was missing. The type of tubal ligation that the patient had was a distal salpingectomy which is virtually the same as a fembriatomy. When Respondent tried the reconstruction of the fallopian tubes he had too little tissue to revive an adequate functioning fallopian tube.
The patient was not the proper subject for tubal reanastomosis. There are no good procedures available for high success rates in reversing the type of tubal ligation the patient had, although reversal was not an impossibility the likelihood of success was very poor.
Upon condition that the patient had been told of the possible risk and benefits of performing the tuboplasty to address her problem with fertility, then the initial attempt on March 20, 1987 would have been reasonable. The second attempt at assisting her with her fertility through the operation that took place on June 26, 1987 was not reasonable even if the patient wished to proceed. Rather than identify the marginal likelihood of success in performing the tuboplasty on March 20, 1987, Respondent told the patient that she would probably be able to get pregnant with the performance of the tuboplasty on March 20, 1987, although he did not offer a guarantee. He also told her she had a better chance of getting pregnant if the tubes were connected than she would if they were not connected. A distal salpingectomy is considered to be a non- reversible procedure that involves a fimbriotomy in the tubal ligation. Any attempt to substitute for the fimbriae by simulation of the function of the fimbriae has a very low chance of success.
The second attempt at performing the tuboplasty on June 26, 1987, was inappropriate no matter the motivation of the patient to become pregnant, in that it was basically a repeat of the first procedure which had not been successful as opposed to some other technique at addressing the problem of infertility. The remaining portions of the fallopian tubes on each side was 2 1/2 centimeters and to try and work with that amount of tube to correct the problem of infertility was basically a futile exercise.
The aspects of the laparotomy which was performed on March 20, 1987 which addressed the endometriotic implants was a correct approach but this could have been done at the time of the laparoscopic examination on March 6, 1987.
DOAH CASE NO. 91-5325/DPR 0111344 ALLEGATIONS
Respondent failed to perform a repeat pregnancy test on Lillian Andrews, his patient, prior to beginning drug therapy by use of Danazol.
Respondent prescribed Danazol not in the course of medical treatment.
Lillian Andrews was seen and treated by Respondent beginning March 21, 1988 and ending May 9, 1988.
When Respondent first saw the patient her last menstrual period was noted as being February 23, 1988. On her first visit of March 21, 1988, she complained of lower abdominal pains for a period of a week, dyspareunia, dyfunctional uterine bleeding with a history of an ulcer. The pelvic examination revealed tenderness in the uterus, both adnexal regions and the cul- de-sac. Respondent performed a pap smear, and a sonogram to rule out a pelvic mass. His impressions of the patient's condition upon examination was that she had endometriosis. The recommendation to the patient was that she have a laparoscopy performed to diagnose the suspected condition of endometriosis.
A pre-operative serum pregnancy test which results were reported on March 22, 1988, was negative.
Respondent performed the laparoscopic examination on March 24, 1988 and confirmed the diagnosis of endometriosis.
Upon the findings through laparoscopic examination, Respondent explained to the patient that she had the choice of medication to treat the condition or she could undergo surgery to treat the endometriosis. The medication that was to be prescribed was Danazol. The patient selected the medication.
On April 11, 1988, Respondent prescribed Danazol for the patient at an office visit and noted that the last menstrual period for the patient was February 24, 1988. No further pregnancy test was conducted prior to prescribing the Danazol on April 11, 1988.
Because of the expense involved with purchasing the Danazol the patient shopped around to find the best price and did not actually have the prescription filled for approximately a week beyond its being prescribed by the Respondent. The patient took three bottles of the medication over a period lasting longer than three weeks.
Danazol is a medication used in the treatment endometriosis which suppresses ovarian function to eliminate production of hormones. The consequence is that the patient may be able to spontaneously resolve endometriotic implants. Among the contra-indications for the use of Danazol are abnormal vaginal bleeding during the course of a pregnancy.
In this connection the appropriate standard of care in prescribing Danazol is to ensure that the patient is not pregnant when the Danazol is started and does not become pregnant when taking Danazol. Respondent did not provide these explanations and precautionary advice to the patient.
To ensure against the use of Danazol when pregnant the patient should be told to start the medication beginning with a normal menstrual cycle and should be advised to use contraception while taking the medication before commencing the use of the medication. In the event Danazol was going to be started at a time other than the normal menstrual cycle the physician should confirm the use of reliable birth control by the patient for a sufficient amount of time to guard against pregnancy and employ the use of a pregnancy test to rule out such pregnancy.
In confirming a pregnancy a blood pregnancy test may show positive within seven days after conception and the majority of those tests will show a positive result within ten days after conception. Generally stated a blood pregnancy test will show a positive result by the twelfth day following conception. By contrast a urine pregnancy test will become positive at approximately two weeks after conception, upon the assumption that the test was performed at the first morning urine specimen.
This patient was not subjected to nor made aware of any of the precautions in the use of Danazol, she was merely told that after taking Danazol for a period of time the medication should correct the problem with endometriosis. Thus, Respondent violated the expected standard of care recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances by failing to practice medicine with the appropriate level of care, skill and treatment.
The pregnancy test administered whose results were made known on March 22, 1988, in a setting in which the last menstrual cycle was reported as February 23 or 24, 1988, would not have ruled out pregnancy, at the point in April 11, 1988, when Respondent prescribed the Danazol.
On April 18, 1988, Respondent saw the patient again and she reported her last menstrual cycle as February 24, 1988.
The patient had a positive home pregnancy test and reported this outcome to the Respondent on May 9, 1988. At that time Respondent told the patient not to take anymore of the Danazol. In the conversation he asked the patient if she had taken any of the Danazol and she said that she had taken one that morning and that she had been taking four a day. Respondent told the patient to come right in if she thought she was pregnant, to come in as soon as she could.
DOAH CASE NO. 91-6358/DPR 0111385
ALLEGATIONS
Respondent failed to adequately diagnose the condition of the patient Balenda Fulton,
Failed to perform a pelvic ultrasound on that patient,
Performed an unnecessary laparoscopy,
Inappropriately performed a laparoscopy,
Inappropriately recommended the patient to undergo a total hysterectomy,
Exploited the patient for financial gain by performing an unnecessary laparoscopy and recommending the patient undergo a total hysterectomy, and
Failed to keep written medical records justifying the course of treatment in the patient in that the records failed to reflect symptoms justifying the diagnosis of endometriosis or of an enlarged uterus, failed to justify not performing a pelvic ultrasound prior to laparoscopy and failed to justify inappropriately performing the laparoscopy.
BALENDA FULTON
Respondent provided medical care and treatment to Balenda Fulton commencing May 23, 1988 and ending on June 6, 1988.
The patient went to see the Respondent after picking his name from a telephone book as a physician who would accept reimbursement for services under a program known as CHAMPUS. The purpose of her visit was a routine examination for purposes of obtaining a pap smear.
In the first visit it was revealed that the patient and undergone a tubal ligation in 1977 or 1978. The patient did not report any form of pain or cramping. She offered no complaints whatsoever. She had just had her menstrual cycle on May 12, 1988.
When seen on May 23, 1988, the patient had had two children.
Upon physical examination performed by the Respondent on May 23, 1988, the patient was found to have a slightly enlarged uterus possibly secondary to fibroids. The adnexa were tender, the cul-de-sac was tender and the Respondent formed the impression that these conditions were probably due to endometriosis. Respondent suggested that the patient undergo laparoscopic examination. That examination was conducted on May 26, 1988. It revealed an enlarged uterus retroverted with fibroids that was boggy in appearance. The right ovary appeared to be enlarged approximately 5 to 6 cms. at its greater diameter and was irregular. Following this diagnostic examination Respondent reported the condition of the patient as endometriosis stage III, severe reaching the ovaries, tubes, sidewalls, pre-cul-de-sac, interior aspect of the uterus and bowel.
A sonogram or ultrasound was not performed. It would have explained the enlarged uterus and confirmed a cyst found on laparoscopic examination. The condition of the enlarged uterus should be monitored over time to see that it doesn't grow inordinately.
Following laparoscopic examination the Respondent reported that the patient was a candidate for medical treatment of the endometriosis and three or four months afterwards was a candidate for a possible abdominal hysterectomy with removal of both tubes and ovaries, lysis of adhesions and laser therapy of endometriotic implants. Respondent prescribed Danazol to treat the reputed endometriosis he described. The patient took the medication for a time.
Following the laparoscopic examination performed on May 26, 1988, Respondent told the patient that she had endometriosis and that it was a very severe case and that he did not understand why she wasn't walking around doubled over in pain. He also told the patient that she needed surgery. That surgery was a hysterectomy.
Having considered the overall evidence presented concerning this patient it is not accepted that the patient had a severe case of endometriosis and needed a hysterectomy.
Nothing in the patient's history in the physical findings upon examination by Respondent on May 23, 1988 justified the laparoscopic examination that was performed on May 26, 1988. As a consequence Respondent failed to practice medicine within the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Respondent through his conduct committed gross malpractice and exploitation of the patient for financial gain. Medical records of the Respondent were sufficiently detailed but inaccurate.
DOAH CASE NO. 91-6358/DPR 0111353
ALLEGATIONS
Respondent misdiagnosed the condition of the patient, Emily Rivera,
Failed to perform a biopsy subsequent to laparoscopy to confirm the diagnosis of endometriosis,
Failed to diagnose the patient's intestinal infection,
Performed unnecessary procedures including a laparoscopy and laparotomy,
Exercised influence on the patient to exploit her for financial gain in performing an unnecessary laparoscopy and an unnecessary laparotomy and in recording that he had performed a colposcopy when the lab report only described a biopsy of the cervix and
That Respondent failed to keep adequate medical records justifying the course of treatment and that Respondent failed to reflect the symptoms to support a diagnosis of endometriosis, failed to reflect that he had performed a colposcopy on the patient, failed to note if the Respondent visualized any adhesions during the laparoscopy and failed to justify the need for performing a laparoscopy and a laparotomy.
Emily Rivera received medical care and treatment from the Respondent from May 25, 1988 through August 24, 1988.
Emily Rivera had been referred to Respondent to investigate an abnormal pap smear, Class II. When first seen the patient was the mother of two children and had had three pregnancies. She had taken oral contraceptives for thirteen years.
The Navcare Clinic which referred the patient had recommended that a colposcopy be done.
Based upon the results of the pap smear Respondent told the patient that she needed to have a cervical biopsy performed. Respondent's plan included scheduling a colposcopy for June 14, 1988, and a hysteroscopy for June 21, 1988.
When the patient first saw the Respondent on May 25, 1988, no clinical examination was made because the patient was on her menstrual cycle. A urine test was done and her blood pressure taken. These findings are contrary to Respondent's records in which he erroneously reports that the patient had a slightly enlarged uterus, tender adnexa, tender cul-de-sac and the impression that the patient suffered from dyspareunia. On the other hand the same office notes indicate the last menstrual period was May 24, 1988, which coincides with the patient's indication that she was on her menstrual cycle when seen by Respondent.
The patient never complained to the Respondent at any time during her care that she suffered from pelvic pain other than slight cramps with her menstrual cycle. She never complained of difficulties or problems associated with intercourse. She never complained of having problems with infertility.
Unlike the May 25, 1988 visit, on June 14, 1988 Respondent recorded a complaint of pelvic pain 2 to 3 days prior to menses. Again, the patient did not offer such a complaint in reality. Respondent reported pelvic findings on June 14, 1988 as slightly enlarged uterus, tender adnexa and tender cul-de-sac. Respondent indicated the impression of possible endometriosis, the condition whereby endometrial tissue that normally lines the uterus and is shed during the menstrual cycle attaches and implants outside the uterus. On this date Respondent's reported findings and impression, as well as the patient's alleged complaint are not accepted as correct.
On June 14, 1988, the colposcopy was performed. In his note concerning the procedure Respondent found that the cervix under direct vision did not reveal any abnormalities. The T zone appeared to be within normal limits. He found endocervix growing out onto the exocervical region. He painted the area with acidic acid and noted no change. No abnormal vessels or mosaic was noted. The area was then painted with Logol's solution and an area at approximately 11 o'clock was found to be schiller positive and a biopsy was taken and sent to pathology. No complications were encountered in the procedure.
In a report which was placed in the patient's file kept by the Respondent at his office, the findings of Dr. Rickie P. Sander, pathologist, stated that the cervical biopsy revealed mild koilocytotic dyplasia (cervic, biopsy). That report held in the Respondent's records stated that the specimen that was provided for pathology consisted of one irregular fragment of soft tissue. The comment concerning that item was that, "the specimen consisted of exocervical and endocervical mucosa with koilocytotic change characteristic of human papiloma viral infection. Mild dyplasia is associated with the changes. No evasive malignancy is present."
In explaining the results of the cervical biopsy to the patient Respondent told her that something was not right and that he needed to schedule a laparoscopy.
A laparoscopy was performed on the patient on June 16, 1988. Following that procedure Respondent told the patient that she needed to have another surgery done because she had lots of adhesions and that the Respondent had seen some things like tumors inside and that he needed to get them out.
The pre-operative diagnosis for the laparoscopy performed on June 16, 1988, was endometriosis; pelvic pain. No report of pelvic pain had been made to form the basis of this pre-operative diagnosis.
On June 22, 1988 at an office visit following the laparoscopic examination on June 16, 1988, a reference is made to endometriosis and a plan to use Danazol.
On July 28, 1988, Respondent performed a laparotomy on the patient. Following that surgery he told the patient that he had taken care of all of her problems and that she should be okay in a couple of weeks.
In the admitting diagnosis statement for the laparotomy done on July 28, 1988, Respondent erroneously reports that the patient had as a chief complaint chronic pelvic pain. He stated that the patient had been complaining of chronic pelvic pain on and off for several weeks without relief with pain medications and subsequently was given a laparoscopic examination and found to have severe endometriosis with severe adhesions. The finding of endometriosis is also rejected. The laparoscopic examination refers to that examination done on June 16, 1988. In this admitting diagnosis of July 28, 1988, Respondent indicates that the patient was placed on Danazol and the pain became worse and she was scheduled for exploratory laparotomy and laser evaporation of the endometriosis. This reference to the patient reporting pain is also false.
Following the second surgery on July 28, 1988, the patient had problems with fever and diarrhea which were treated by the Respondent.
Respondent had no medical justification for performing the laparoscopic examination on June 16, 1988, no acute problem nor chronic problem associated with pelvic pain formed the basis of this diagnostic examination which basis would have been necessary before proceeding.
Inconsistencies existed between the operative notes in the laparoscopic examination of June 16, 1988, and the laparotomy of July 28, 1988. In the latter procedure a notation was made that the bowel was stuck to the omentum and the anterior wall. Extensive adhesions were noted between the tubes on the left side of the sidewall, endometriotic implants were noted along the left ovary, the uterus was said to be enlarged, a lesion was said to be found on the posteria aspect of the fundus of the uterus that was approximately 1 cm. in its greatest diameter with blood filled blisters, the right adnexal region was noted to have implants along the right ovary and endometriosis was found as well in the area of the rectum. By contrast the June 16, 1988 laparoscopic examination postoperative report noted that the uterus was approximately normal in size, endometriotic implants found in the cul-de-sac and in the left and right uterosacral ligaments and on the rectum. The alleged facts concerning the patient's condition that differed between the two examinations in which additional features were reported as being visualized at the time of the laparotomy, could not reasonably have developed between June 16, 1988 and July 28, 1988. Any attempt by Respondent to explain this as an oversight in his report of June 16, 1988 by failing to note the structures and their conditions is rejected. By inference the reported findings in these two operations are so suspicious as to be beyond belief, especially given that the basis for the examination having to do with alleged pelvic pain complaints by the patient have been discredited. This constitutes further support for the finding that the laparoscopic examination of June 16, 1988, as well as the laparotomy of July 28, 1988, were medically unnecessary. Moreover, given the amount of time that the patient had taken birth control pills, which had placed the ovaries at rest, the follicies would not develop and there would be no polycystic nature to the ovaries and any necessity to construct laser tunnels as reported in the operative notes of July 28, 1988. The polycystic ovaries were not present and the need for laser tunnelling was unnecessary during the course of the laparotomy. All these actions by the Respondent are violative of proper medical practice.
It was inappropriate for Respondent to diagnose the patient's condition as endometriosis and to subsequently perform the laparoscopy and laparotomy. In doing so, Respondent failed to meet the proper medical standards for practice in that he failed to practice level 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. This also constituted gross malpractice, and exploitation of the patient for financial gain. Medical records of the Respondent were sufficiently detailed but inaccurate.
There has been no showing of a need to perform a biopsy subsequent to a laparoscopy to confirm the diagnosis of endometriosis or any failure on the part of the Respondent to properly care for the patient related to any intestinal infection.
This is DOAH Case No. 92-1076/DPR 91-06883
ALLEGATIONS
Respondent failed to appropriately and timely treat the patient, Kelly John, given her history, symptoms, physical findings and laboratory data, this is associated with what eventually proved to be an ectopic pregnancy, and
Respondent is alleged to have exploited the patient for financial gain by performing unnecessary and repeated surgeries.
Respondent cared for and treated the patient, Kelly John, beginning August 20, 1990, and concluding on October 1, 1990.
When the patient first saw the Respondent on August 20, 1990, she was complaining of irregular menstrual cycles in that she had had a menstrual cycle and about a week later started bleeding again or spotting. Respondent explained to the patient that she might have urinary infection and prescribed antibiotics and Valium. In filling out the personal medical history, the patient noted that her menstrual cycle was every 28 days and that the last cycle began August 7, 1990, and that it was two weeks late. She indicated in this form that she had cramps with her menstrual cycle and that she had not missed menstrual cycles in the past. In describing changes in her menstrual cycle that occurred over the last year, she said that they went from two days to one week and back to normal and that now that it was two weeks late and was not as heavy or as long.
Respondent told the patient to make an appointment to come back in two weeks.
The patient was seen again on September 7, 1990, and beyond that on September 25, 1990, and October 1, 1990.
When the patient returned to see the Respondent on September 7, 1990, Respondent told her that he thought that she had endometriosis and that he wanted to place her on birth control pills for three months to regulate her menstrual cycle.
At the time that the patient saw the Respondent on September 7, 1990, the Respondent's records revealed that a further appointment was scheduled for December 7, 1990.
On September 21, 1990, the patient administered a home pregnancy test to herself and it showed positive. The patient called the Respondent and made him aware of this test. Respondent told her to make an appointment. She made the appointment for September 25, 1990.
A further telephone contact was made between the patient and the Respondent in which she called and told the Respondent that she had been spotting. Respondent told her that either she was starting her period or she was miscarrying. No other instructions were given by Respondent other than to keep the September 25, 1990 appointment.
On September 25, 1990, when the patient was seen, a pregnancy test was administered and it showed positive. A Beta subunit of HCG, serum pregnancy test was sent out for laboratory analysis.
Respondent told the patient to make another appointment for the following week to get more blood work done to make sure the count was going up.
This refers to the measurement of the development associated with the pregnancy as measured by the Beta subunit of HCG test.
On October 1, 1990, the date upon which the next appointment had been scheduled, the Respondent called and spoke to the patient and asked her if it would be acceptable for him not to be there when the patient came for her appointment. She responded in the affirmative. The patient went to Respondent's office on October 1, 1990, and a further blood sample was taken. She did not see the Respondent on that occasion.
After the first blood test of September 25, 1990, Respondent had told the patient that the placenta count was 7,000 and some odd and by result, she was five to eight weeks pregnant. In relation to the second Beta subunit of HCG test, the Respondent told the patient that she was about nine to ten weeks pregnant by virtue of a placenta count of 19,000. This conversation concerning the second blood test to determine pregnancy took place a couple of days after the October 1, 1990 blood test. The patient made an appointment after hearing about the results of the second blood test for purposes of having a sonogram performed under Respondent's aegis. This appointment was not kept. October 7, 1990 the patient appeared at a local hospital on an emergent basis with a ruptured ectopic pregnancy. Her medical condition at that time was very serious.
An ectopic pregnancy is a pregnancy that does not grow within the uterine cavity, developing outside somewhere within the abdomen. It presents a risk of rupture which can cause significant bleeding and create life-threatening problems for the patient. That occurred in this instance.
The patient had specifically asked the Respondent about the possibility of a tubal pregnancy, an ectopic pregnancy. This conversation took place after the results had been provided concerning the second Beta subunit of HCG test. The patient had called the Respondent about prenatal vitamins. The vitamins which had not been given, after the first Beta subunit of HCG test in that Respondent had indicated that he wanted to make sure that the patient was pregnant and did not wish to have the patient waste her money until the results were obtained from the second Beta subunit of HCG test. The patient was concerned that if she were nine to ten weeks pregnant and the Respondent had done an ultrasound six days before that the Respondent should have been able to see the pregnancy and she asked the Respondent could she have a tubal pregnancy, to which he responded, "Well, Kelly, are you feeling any pain?" She answered she was not, and Respondent said, "Well, with a tubal pregnancy, you experience a lot of pain. Are you in any type of pain?" Again she said that she was not, and the Respondent said, "Kelly, you do not have a tubal pregnancy."
Attempts to reach the Respondent on the day that the patient suffered the ruptured ectopic pregnancy were unsuccessful. As a consequence, she went to the nearest hospital emergency room and received care. Respondent had never warned the patient that she might have an ectopic pregnancy and that she might have complications associated with that condition.
When the patient was initially seen on August 20, 1990, in her history as reported in these facts, she indicated that her menstrual cycle was two weeks late and not as heavy as usual. By contrast, Respondent indicates that the patient is complaining of menomentorriahagia for two to three months. That condition is heavy bleeding at irregular intervals. Respondent also reports that patient complained of lower abdominal pain and dyspareunia. Those were not complaints which the patient testified as having been presented to the
Respondent and her recollection is credited. There is also a reference to anxiety and depression on the patient's part for several months due to domestic problems. That part of the Respondent's records is accepted as correct.
In his physical findings on August 20, 1990, Respondent indicates that the patient had right outer quadrant breast tenderness, tender cystic mass in the adnexa and perirectal abscess. His impression was menomentorriahagia, anxiety and depression and breast tenderness. His plan was to do a pap smear, which was obtained, and a sonogram to look for a possible cyst. A report on the sonogram was not found. Mention is made of hysteroscopy, D&C, and renal ultrasound. The record also mentions the use of Ampicillin for twelve days, Diazapim, which is Valium, and for return visit in two weeks. A urine pregnancy test done on that date was negative.
Contrary to the Respondent's records, which describe that he performed a hysteroscopy and dilation and curettage on the patient, he did not do so.
When the patient was seen on September 7, 1990, her last menstrual cycle was reported as August 7, 1990, which is the date upon which her menstrual cycle had been noted in her visit of August 20, 1990.
On September 7, 1990, there is a complaint registered in the Respondent's notes that the patient was complaining of DUD, which means history of dysfunctional uterine bleeding. Also an indication that a rectal abscess was stable, resolving. Diazapim was being used to treat anxiety.
When seen on September 25, 1990, the patient did not report any pain to the Respondent, and that lack of pain is reflected in the Respondent's notes. The uterus was four to six weeks in size, which is the normal size for a nonpregnant uterus or the upper normal size. The adnexa were negative. A positive pregnancy test was obtained and the ultrasound which was conducted, did not show an intrauterine pregnancy, nor is there an extrauterine pregnancy reported.
On the September 25, 1990 visit, which followed the positive home pregnancy test on September 21, 1990, there was a report that the patient had had irregular bleeding for the past couple of days in a setting in which the patient was not reporting pain. On September 25, 1990, Respondent records the patient's condition as ameneorrhea which means that there was no menstrual cycle but goes on to document that there was a complaint "on and off vaginal bleeding yesterday and today."
Contrary to the office notes for September 25, 1990 to the effect that the patient was advised of a possible ectopic pregnancy, such advice was not given. Nor is the note where indication is given that the patient was told to have strict bed rest for 24 hours believed. The note indicates the patient was to call if she had cramps or pains. Again, mention is made of possible ectopic pregnancy, but that risk was not explained to the patient. An indication was given that the patient was to contact the Respondent to get the results of the Beta subunit of HCG blood pregnancy test, which contact was made. Reference in the notes that the patient was to make an appointment with an obstetrician as soon as possible is not credible. Reference to establishment of an appointment in one week is a correct portrayal of the arrangement in which an appointment was made, although the patient did not see the Respondent on that occasion. The note goes on to state that the patient was to call in the event of cramps, pains or vaginal bleeding.
The results of the initial Beta sub unit of HCG pregnancy test revealed a reading of 7,857. When confronted with this reading, which was in excess of 6,000, by use of abdominal ultrasound, the Respondent should have been able to see the pregnancy in the uterus. If unable to visualize the pregnancy in the uterus, then it was necessary for the Respondent to rule out ectopic pregnancy in that the likelihood of an ectopic pregnancy was extremely high.
In the event that an ultrasound does not show an intrauterine pregnancy, the technique for ruling out an ectopic pregnancy is by a laparoscopic examination, which was not done here.
There are Respondent's notes said to have been taken upon an assessment of the patient on October 1, 1990. Respondent did not see the patient on that day. Nonetheless, Respondent falsely states that he told the patient of a possibility of ectopic pregnancy and her need to see an OB/GYN two names of which were provided because Respondent no longer had local hospital privileges. No record is made of a physical examination. A record is made of the Beta subunit of HCG blood pregnancy test, which was drawn.
The Respondent's office notes for October 1, 1990, indicate that the patient presented at his office without abdominal cramps or pains and no signs of vaginal bleeding. The note erroneously says that on that occasion of her visit with the Respondent, that he stressed again that she should get an appointment with an obstetrician immediately simply since the Respondent no longer had admitting privileges at local hospitals and only did office gynecology. The note goes on to say that, however, the patient was properly counseled until she established herself as a patient with another obstetrician, that Respondent was to be informed immediately of any sign of pelvic pain or vaginal bleeding. Again a false report. Further, the note says that the patient was informed that if she had problems relating to her pregnancy and was unable to contact Respondent, that she was to go to the nearest hospital emergency room and inform the physician on call of her situation. There was a further falsehood. The note says that the patient told Respondent that she understood his instructions. This was also a falsehood. The note indicates that the patient was given a one week follow-up appointment at Respondent's office if she still did not have an appointment with an obstetrician.
Given the findings on the first Beta subunit of HCG in excess of 6,000, and knowing that the uterus was empty, there was a high probability that the patient had a tubal pregnancy and that it might rupture, causing problems, and the standard of care expected of a physician at that time was for an immediate evaluation of the tubal pregnancy. Since Respondent was not able to undertake this evaluation in a hospital, then Respondent should have referred the patient to another doctor or sent the patient to an emergency room for an evaluation to rule out ectopic pregnancy. A repeat ultrasound following the results of the Beta subunit of HCG with preferably a vaginal probe ultrasound would assist in making certain of the suspicions Respondent may have had about the ectopic pregnancy following the results of the first Beta subunit of HCG pregnancy test. If that additional ultrasound did not show an intrauterine pregnancy then a laparoscopy would be needed to investigate. Respondent did not advise the patient of the possible ectopic pregnancy nor perform the ultrasound. Respondent fell below the expected standard of care for a physician. In this circumstance there was sufficient reason to believe that the patient had an ectopic pregnancy and complications could be experienced to include loss of blood and Respondent did not adequately deal with this problem. Respondent's actions constituted the failure to appropriately and timely treat Kelly John and evidences gross malpractice and the failure to practice medicine at a level of
care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances and was exploitative of the patient for financial gain by indicating performance of a hysterocopy and dilation and curettage when those procedures were not done.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.57 and 455.225, Florida Statutes. It is Petitioner's burden is to prove by clear and convincing evidence that the Respondent has violated the law in the manner alleged in the various administrative complaints. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987) and Section 458.331(3), Florida Statutes.
Reference the patient Dottie Akers, DOAH Case No. 91-5325/DPR 0111343, Petitioner has proven by clear and convincing evidence that Respondent has violated Section 458.331(1)(t), Florida Statutes, by gross malpractice and the failure to practice medicine with a level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances for reasons set forth in the fact finding.
Reference the patient Lillian Andrews, DOAH Case No. 91-5325/DPR 0111344, Petitioner has proven by clear and convincing evidence that the Respondent has violated Section 458.331(1)(t), Florida Statutes, by gross malpractice and the failure to practice medicine with a level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances for reasons set forth in the fact finding. Notwithstanding the mistake in prescribing the Danazol for which Respondent is held accountable under Section 458.331(1)(t), Florida Statutes, he is not guilty of prescribing, dispensing, administering, mixing or otherwise preparing a legend drug, including any controlled substance, other than in the course of his professional practice in his prescribing of Danazol to this patient, alleged to be a violation of Section 458.331(1)(q), Florida Statutes. The drug was an appropriate medicine to be prescribed for the condition and was prescribed in the course of the professional practice, the error was in the establishment of the prerequisites for the use of the drug by the patient.
Reference the patient Balenda Fulton, DOAH Case No. 91-6358/DPR 0111385, Petitioner has proven by clear and convincing evidence that Respondent has violated Section 458.331(1)(t), Florida Statutes, by gross malpractice and the failure to practice medicine with a level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances for reasons as set forth in the fact finding. In addition Respondent violated Section 458.331(1)(n), Florida Statutes, by exercising the influence on the patient to exploit the patient for financial gain in performing the laparoscopic examination. Petitioner did not prove that the Respondent violated Section 458.331(1)(m), Florida Statutes, by inadequate medical records keeping.
Reference the patient Emily Rivera, DOAH Case No. 91-6358/DPR 0111353, Petitioner has proven by clear and convincing evidence that Respondent violated Sections 458.331(1)(t), Florida Statutes, by gross malpractice and the failure to practice medicine with a level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances and Section 458.331(1)(n), Florida
Statutes, by exercising influence on a patient in a manner intended to exploit the patient for financial gain for reasons set forth in the fact finding.
Petitioner has failed to show by clear and convincing evidence that the Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records adequate to justify the treatment.
Reference the patient Kelly John, DOAH Case No. 91-1076/DPR 91- 06883, Petitioner has proven by clear and convincing evidence that Respondent has violated Section 458.331(1)(t), Florida Statutes, by gross malpractice and the failure to practice medicine with a level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances and Section 458.331(1)(n), Florida Statutes, by exercising influence for financial gain for reasons set forth in the fact finding.
Upon the consideration of the facts found and the conclusions of law reached, it is,
RECOMMENDED:
That a Final Order be entered which revokes Respondent's license to practice medicine in Florida.
DONE and ENTERED this 30th day of December, 1992, in Tallahassee, Florida.
CHARLES C. ADAMS
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 30th day of December, 1992.
APPENDIX
The following discussion is given concerning the proposed facts of the parties:
Petitioner's Facts:
Facts on Expert Witnesses:
Paragraphs 1 through 31 are not necessary to the resolution of the dispute. Paragraphs 32 through 38 constitute legal argument.
Patient Kelly John:
Paragraphs 1 through 4 are subordinate to facts found.
Paragraphs 5 and 6 are not relevant in that the D&C was not performed. Paragraphs 7 through 19 are subordinate to facts found.
Paragraph 20 is not necessary to the resolution of the dispute. Paragraphs 21 through 28 are subordinate to facts found.
Patient Dottie Akers:
Paragraphs 1 and 2 are subordinate to facts found.
Concerning Paragraph 3, the surgery by Dr. Becker and its findings standing alone do not form the basis for determining the appropriateness of Respondent's efforts to reestablish fertility.
Paragraphs 4 through 18 are subordinate to facts found. Paragraphs 19 through 22 constitute legal argument.
Paragraphs 23 through 54 are subordinate to facts found.
Paragraphs 55 and 56 are not necessary to the resolution of the dispute. Paragraphs 57 and 58 are subordinate to facts found.
Patient Lillian Andrews:
Paragraphs 1 through 18 are subordinate to facts found.
Patient Emily Rivera:
Paragraphs 1 through 23 are subordinate to facts found.
Paragraph 24 is contrary to facts found in that the patient had taken birth control pills for thirteen years not ten years.
Paragraphs 25 through 27 are subordinate to facts found. Paragraph 28 is not accepted.
Paragraph 29 is subordinate to facts found.
Patient Balenda Fulton:
Paragraphs 1 through 6 are subordinate to facts found. Paragraphs 7 is not necessary to the resolution of the dispute. Paragraph 8 is subordinate to facts found.
Paragraphs 9 and 10 are not necessary to the resolution of the dispute nor is paragraph 11. Facts were found found concerning the patient's two children.
Paragraphs 12 through 15 are subordinate to facts found.
Paragraph 16 is not accepted.
Paragraphs 17 and 18 are subordinate to facts found.
Paragraph 19 is not necessary to the resolution of the dispute. Paragraphs 20 through 34 are subordinate to facts found.
Respondent's Facts
Paragraph 1 is subordinate to facts found.
Paragraphs 2 through 4 are not necessary to the resolution of the dispute. Paragraphs 5 through 7 are subordinate to facts found.
Paragraphs 7 through 9 are not necessary to the resolution of the dispute.
It is noted that notwithstanding Dr. Rudolph's reservations concerning his objectivity, on balance his testimony was deemed an appropriate subject for consideration together with the observations of the other experts.
Paragraph 10 is spoken to in the preliminary matters to the Recommended Order.
Paragraph 11 is subordinate to facts found.
Paragraphs 12 and 13 are not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found.
Paragraph 15 is subordinate to facts found with the exception of the reported advice to the patient to have a tubal reanastomosis that is not accepted.
Paragraph 16 through 25 are subordinate to facts found.
Paragraph 26 is is not necessary to the resolution of the dispute. Paragraphs 27 through 30 are subordinate to facts found.
Paragraph 31 is rejected in that it suggests that there were existing fimbriated ends of the fallopian tubes.
Paragraphs 32 through 39 are subordinate to facts found. Paragraphs 40 through 42 constitute legal argument.
Paragraph 43 is subordinate to facts found. Paragraphs 44 through 47 are contrary to facts found. Paragraphs 48 and 49 are subordinate to facts found. Paragraph 50 is contrary to facts found.
Paragraph 51 is subordinate to facts found.
Paragraph 52 is contrary to facts found.
Concerning Paragraph 53 while it is not necessary to record instructions about the use of Danazol, Respondent did not perform the needed task of oral instruction.
Paragraph 54 is subordinate to facts found with the exception of references to pain two to three days prior to menses. That suggested fact finding is rejected as is Paragraph 55 to the extent that it is dependent upon that fact.
Paragraph 56 is rejected in its suggestion that extensive endometriosis was present. The same response is made to the fact finding suggested in Paragraph 57.
Paragraphs 58 through 63 are subordinate to facts found. Paragraph 64 is not necessary to the resolution of the dispute.
Paragraph 65 is not accepted as to the extent that the proposed finding suggests performing a laparoscopic examination on that limited information.
Reference in Paragraph 66 to the civil suit is not necessary to the resolution of the dispute. The balance of Paragraphs 66 through 71 are subordinate to facts found.
Paragraphs 72 through 77 constitutes legal argument.
Paragraph 78 is contrary to facts found in its suggestion that there was any pelvic exam performed.
Paragraph 79 is rejected in its indication that there were any reports of pelvic pain prior to menses.
Paragraph 80 is subordinate to facts found.
Paragraph 81 is contrary to facts found in its suggestion that an adequate basis was being present to justify the laparoscopy.
Paragraph 82 is subordinate to facts found.
Paragraphs 83 is rejected as to purported findings on laparoscopy and laparotomy.
Paragraph 84 is subordinate to facts found. Paragraph 85 is contrary to facts found.
Paragraph 86 is not necessary to the resolution of the dispute. Paragraphs 87 through 94 constitute legal argument.
Paragraph 95 is subordinate to facts found.
Paragraph 96 is not accepted in its depiction of a complaint of menometrorrhagia, same for paragraph 97.
Paragraphs 98 through 101 are contrary to facts found in their suggestion that the D&C and hysterocopy were performed.
Paragraphs 102 and 103 are subordinate to facts found.
As to Paragraphs 104 and 105 and their suggestion that Respondent instructed the patient concerning ectopic pregnancy those Paragraphs are contrary to facts found as are Paragraphs 106 through 108.
Paragraphs 109 and 110 are subordinate to facts found. Paragraphs 111 through 117 constitute legal argument found.
Paragraphs 118 through 121 are accepted but are not necessary to be reflected in the fact finding.
COPIES FURNISHED:
Susan E. Lindgard, Esquire Michael Blazicek, Esquire
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, FL 32399-0792
Julie Gallagher, Esquire Sandra Stockwell, Esquire Post Office Box 11059 Tallahassee, FL 32302
Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine
1940 North Monroe Street Tallahassee, FL 32399-0792
Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street
Tallahassee, FL 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 contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE,
Petitioner,
DOAH CASE NO. 91-5325
vs. DPR CASE NOS. 0111343 and
0111344
ROBERT C. BROWN, JR., M.D.,
Respondent.
/ STATE OF FLORIDA, DEPARTMENT
OF PROFESSIONAL REGULATION, BOARD OF MEDICINE,
Petitioner,
DOAH CASE NO. | 91-6358 | |
vs. | DPR CASE NOS. | 8901804, |
0111385 and | 0111353 | |
ROBERT C. BROWN, JR., M.D., |
Respondent.
/ STATE OF FLORIDA, DEPARTMENT
OF PROFESSIONAL REGULATION, BOARD OF MEDICINE,
Petitioner,
vs. DOAH CASE NO. 92-1076
DPR CASE NO. 91-06883
ROBERT C. BROWN, JR., M.D.,
Respondent.
/
FINAL ORDER
This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on February 5, 1993, in Jacksonville, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Respondent's Supplemental Exceptions to the Recommended Order, and Petitioner's Response to Respondent's Supplemental Exceptions (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause.
Petitioner, Department of Professional Regulation, was represented by Susan E. Lindgard and Michael Blazicek, Attorneys at Law. Respondent was present and represented by Julie Gallagher, Attorney at Law.
Upon review of the Recommended Order, the pleadings and motions, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.
PRELIMINARY MATTERS
Prior to the hearing on the Recommended Order, Respondent filed a Motion for Extension of Time for filing Exceptions. Since the time for filing Exceptions was to expire prior to Respondent's receipt of a ruling on the Motion, Respondent filed "bare bones" Exceptions first. After the Motion was granted, Respondent filed Supplemental Exceptions. At the hearing, Respondent agreed that it was the Supplemental Exceptions that he expected the Board to rule on.
Furthermore, at the time the undersigned ruled on the Motion for Extension of Time for Filing Exceptions, he set January 29th as the date upon which the Exceptions were due and set a date by which Petitioner had to file a response. Petitioner's Response was timely filed. Subsequent to that ruling, Respondent filed a Motion To Strike the Petitioner's Response. That Motion was denied.
There is a scrivener's error in the second set of Administrative Complaints which is hereby corrected to show a date of 1991, instead of 1992.
Board members acknowledged on the record having received materials outside the record, but all members asserted that they were not prejudiced by that fact. Neither party asked for the recusal of any of the Board members after this disclosure.
RULINGS ON SUPPLEMENTAL EXCEPTIONS
In order to make clear which Supplemental Exception is being ruled upon, the list below will show the numbers used in the Supplemental Exceptions, which refer to the numbered paragraph(s) of the Recommended Order being challenged, followed by a reference to the page of the Supplemental Exceptions on which the subject paragraph(s) begin(s).
1 (p.2) Denied because the exception does not specify the bases for the exception, but makes a conclusory general reference to "the reasons argued at the hearing." See Rule 21M-18.004(2), Florida Administrative Code. Also denied based on the arguments set forth by Petitioner.
2 (p.2) Denied based on the oral and written arguments by Petitioner.
3 (p.5) Denied based on the oral and written arguments by Petitioner.
15 (p.8) Granted. Petitioner agrees that the correct date is 5/27/87.
23 (p.8) Granted based on the oral and written arguments by Respondent.
24 (p.9) Denied based on the oral and written arguments by Petitioner.
25-27 (p.9) Denied based on the oral and written arguments by Petitioner.
29 (p.10) Denied based on the oral and written arguments by Petitioner.
30 (p.10) Denied based on the oral and written arguments by Petitioner.
31 (p.14) Denied based on the oral and written arguments by Petitioner.
32 (p.14) Denied based on the oral and written arguments by Petitioner.
33 (p.14) Denied based on the oral and written arguments by Petitioner.
34 (p.14) Granted based on the oral and written arguments by Respondent.
43 (p.15) Granted based on the oral and written arguments by Respondent.
46 (p.15) Granted based on the oral and written arguments by Respondent.
52 (p.16) Denied based on the oral and written arguments by Petitioner.
57 (p.16) Denied based on the oral and written arguments by Petitioner, as well as based on the advice of the Board's attorney as stated on the record. The credibility determination by the finder of fact encompasses whether a witness actually remembers the facts at issue, not just whether the witness believes those facts.
58 (p.18) Denied based on the oral and written arguments by Petitioner, as well as based on the advice of the Board's attorney as stated on the record. A conflict is not created between expert witnesses on an issue when one witness offers an opinion and the other states he is unable to render an opinion after a review of the same material. Furthermore, even when one witness changes testimony during the course of a case, the finder of fact can decide, based on a review of the testimony, the demeanor, and any explanation, which testimony to believe.
59 (p.19) Denied based on the oral and written arguments by Petitioner.
60 (p.19) a. Denied as to the issue of gross malpractice based on the oral and written arguments by Petitioner.
b. Granted as to the issue of exploitation of the patient for financial gain based on the oral and written arguments by Respondent. Petitioner conceded that there was no affirmative proof of any billing of the patient or any third party payor or any payment; accordingly, there was no competent substantial evidence to support this finding.
65 (p.21) Denied based on the oral and written arguments by Petitioner.
66 (p.21) Denied based on the oral and written arguments by Petitioner.
67 (p.22) Denied based on the oral and written arguments by Petitioner.
70-72 (p.22) Denied based on the oral and written arguments by Petitioner.
74 (p.22) Denied based on the oral and written arguments by Petitioner.
75 (p.23) Denied based on the oral and written arguments by Petitioner.
77 (p.23) Denied based on the oral and written arguments by Petitioner.
78 (p.23) Denied based on the oral and written arguments by Petitioner.
79 (p.24) a. Denied as to the issue of gross malpractice based on the oral and written arguments by Petitioner.
b. Granted as to the issue of exploitation of the patient for financial gain based on the oral and written arguments by Respondent. Petitioner conceded that there was no affirmative proof of any billing of the patient or any third party payor or any payment; accordingly, there was no competent substantial evidence to support this finding.
85 (p.24) Denied based on the oral and written arguments by Petitioner.
91-92 (p.25) Denied based on the oral and written arguments by Petitioner, as well as based on the advice of the Board's attorney as stated on the record. This exception seeks to have the board substitute its judgment for that of the finder of fact on the issue of credibility; this the board may not do. Further, it is noted that the ruling in Robinson v. Florida Board of Dentistry, 447 So.2d 930 (Fla. 3rd DCA 1984), is distinguishable in that Robinson dealt with expert witness testimony, whereas the testimony at issue was that of a fact witness.
94-95 (p.25) Denied based on the oral and written arguments by Petitioner.
96 (p.25) Denied based on the oral and written arguments by Petitioner.
98 (p.26) Granted based on the oral and written arguments by Respondent.
103 (p.26) Denied based on the oral and written arguments by Petitioner.
106-107 (p.26) Denied based on the oral and written arguments by Petitioner.
108 (p.26) a. Denied to the issue of gross malpractice based on the oral and written arguments by Petitioner.
b. Grants as to the issue of exploitation of the patient for financial gain based on the oral and written arguments by Respondent. Petitioner conceded that there was no affirmative proof of any billing of the patient or any third party payor or any payment; accordingly, there was no competent substantial evidence to support this finding.
88 (p.30) Denied based on the oral and written arguments by Petitioner, as well as based on the advice of the Board's attorney as stated on the record. See, Farzad v. Dept. of Professional Regulation, Board of Medical Examiners, 443 So.2d 373 (Fla. 1st DCA 1983).
89 (p.31) Granted based on the oral and written arguments by Respondent. The Hearing Officer's Conclusion of Law is not supported by the Findings of Fact accepted by the Board.
90 (p.31) a. Denied as to Section 458.331(1)(t) based on the oral and written arguments by Petitioner.
b. Granted as to Section 458.331(1)(n) based on the oral and written arguments by Respondent. The Hearing Officer's Conclusion of Law is not supported by the Findings of Fact accepted by the Board.
91 (p.33) a. Denied as to Section 458.331(1)(t) based on the oral and written arguments by petitioner.
b. Granted as to Section 458.331(1)(n) based on the oral and written arguments by Respondent. The Hearing Officer's Conclusion of Law is not supported by the Findings of Fact accepted by the Board.
92 (p.34) a. Denied as to Section 458.331(1)(t) based on the oral and written arguments by Petitioner.
b. Granted as to Section 458.331(1)(n) based on the oral and written arguments by Respondent. The Hearing Officer's Conclusions of Law is not supported by the Findings of Fact accepted by the Board.
RULINGS ON ADDITIONAL EXCEPTIONS AND OBJECTIONS
1 (p.36) Denied based on Rule 21M-18.004(2), Florida Administrative Code and based on the oral arguments made by Petitioner. This exception lacks the requisite specificity to require a ruling.
2 (p.36) a. The exception to the state of the record presented to the Board is denied on the basis that the Board was able to review the complete record.
The exception to the lack of an exhibit is denied for three reasons. First, until the case was orally argued before the Board, the Board and Petitioner were unaware that this exception referred to Petitioner's provision of a transcript from videotaped testimony rather than the videotape itself. As such, the written exception lacks sufficient specificity to require a ruling under Rule 21M-18.004(2), Florida Administrative Code; neither the Beard members nor Petitioner could ascertain from the Exception what exhibits were alleged to be missing. Secondly, no claim is made that the transcript of the videotape was not provided or was incomplete or incorrect. Third, the error, if any, did not materially affect the fairness of the proceeding since the credibility of the
witness, as evaluated by viewing the witness's demeanor is in the sole discretion of the Hearing Officer.
FINDINGS OF FACT
Findings of fact set forth in the Recommended Order as modified by the Board's rulings on the Supplemental Exceptions, are approved and adopted and incorporated herein. Specifically, Paragraphs of the Findings of Fact 15, 24, 34, 43, 46, 60, 79, 98, and 108 were modified.
There is competent substantial evidence to support the findings of fact of the Board.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
Sua sponte, the Board rejected the Conclusions of Law in Paragraphs 90 and 91, finding that there was no competent substantial evidence to support a finding that Respondent violated Section 458.331(1)(m), Florida Statutes, on the basis that the relevant Conclusion of Law in Paragraph 90 is not supported by the Findings of Fact in Paragraphs 59 and 60 and the relevant Conclusion of Law in Paragraph 91 is not supported by the Findings of Fact in Paragraphs 77, 78, and 79. In short, the conclusion that the medical records complied with Section 458.331(11)(m) and, therefore, that the records justified the course of treatment and that Respondent recorded patient histories, examination results, test results, etc., is contradicted by the factual findings that nothing in the patient history in the physical findings on May 23, 1988, justified the laparoscopic examination performed on May 26, 1988 (59); that the medical records "were sufficiently detailed but inaccurate" [emphasis supplied] (61,79); that Respondent had no medical justification for performing the laparoscopic examination on June 16, 19888 (77); and that Respondent's reported findings were "beyond belief" and that some explanations were "discredited." (78)
The other conclusions of law set forth in the Recommended Order as modified by the Board's rulings on the Supplemental Exceptions are approved and adopted and incorporated herein. Specifically, Paragraphs 89 (as to (1)(t)) and 90, 91, 92 (as to (1)(n)) are modified.
There is competent substantial evidence to support the conclusions of law of the Board.
PENALTY
Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be REJECTED as inappropriate, based on the Board's rejection of some specified facts and legal conclusions in the Recommended Order. Specifically, the Board has found Respondent not guilty of one of the violations of Section 458.331(1)(t), F.S., and all three of the violations of Section 458.331(1)(n), F.S., found by the Hearing Officer. Further, Respondent has had no hospital privileges since 1990. WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
Respondent's license to practice medicine in the State of Florida is SUSPENDED until such time as he successfully completes the Special Purposes Examination (SPEX) or completes one year of training in a University setting. Such training shall be a residency or fellowship training approved by the Board. During the period of suspension, Respondent cannot practice medicine except within the purview of the University setting approved.
As a condition of continued licensure, Respondent shall not perform any operative gynecology in the office, but shall practice only office gynecology, unless he does so under the direct supervision of a physician approved by the Board. He may be permitted by the Board to do surgery at a JCAHO hospital (in- patient or out-patient) if he has hospital privileges in that hospital. Said surgery must be performed under terms and conditions set forth in a Practice Plan approved by the Board.
Respondent is hereby REPRIMANDED.
Respondent shall pay an administrative fine in the amount of $5000 to the Board of Medicine, Department of Professional Regulation, prior to the reentry into the practice of medicine.
Upon reinstatement, Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of 5 years under terms and conditions to be set at that time. Such terms and conditions may include, but not be limited to, the following:
After the period of suspension, Respondent must appear before the Board to seek reinstatement. At that time, he shall submit a Practice Plan to the Board for consideration.
For at least the first 18 months, Respondent shall practice medicine only under the direct supervision of a physician fully licensed under Chapter 458, approved in advance by the Board.
After 18 months of practice under direct supervision, Respondent may seek authorization for practice under indirect supervision, subject to terms set by the Board.
This order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 24th day of February, 1993.
BOARD OF MEDICINE
EDWARD A. DAUER, M.D. VICE CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Robert C. Brown, Jr., M.D., 1820 Barrs
Street, #614, Jacksonville, Florida 32204-4729 and to Julie Gallagher and Sandra Stockwell, Attorneys at Law, Stowell, Anton and Kraemer, 201 South Monroe Street, Suite 200, Tallahassee, Florida 32302, by U.S. Mail to Charles C. Adams, 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 26th day of February, 1993.
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.
| Issue Date | Proceedings |
|---|---|
| Aug. 06, 1993 | Deposition of Dr. Arthur I. Rudolph (Vols 1&2) filed. |
| Mar. 03, 1993 | Final Order filed. |
| Dec. 30, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 6/8-10, 15-18, 22-23/92 & 7/1 & 10/92. |
| Oct. 08, 1992 | (Petitioner) Errata Notice filed. |
| Oct. 01, 1992 | Petitioner`s Proposed Recommended Order filed. |
| Oct. 01, 1992 | Petitioner`s Proposed Recommended Order filed. |
| Sep. 30, 1992 | Respondent`s Notice of Filing Proposed Recommended Order; Respondent`s Proposed Recommended Order filed. |
| Sep. 08, 1992 | Order sent out. (Motion to file the evidence and to have it officially recognized, denied) |
| Sep. 04, 1992 | Respondent`s Reply to Petitioner`s Motion to File Rebuttal Evidence, ETC. and Respondent`s Motion for Sanctions filed. |
| Sep. 02, 1992 | Order sent out. (PRO's due 9/30/92) |
| Sep. 01, 1992 | (Petitioner) Motion to File Rebuttal Documentary Evidence or in the Alternative, Motion for Official Recognition; Petitioner`s Response to Respondent`s Motion for Extension of Time filed. |
| Aug. 25, 1992 | (Respondent) Motion for Extension of Time filed. |
| Aug. 21, 1992 | Transcript filed. |
| Aug. 21, 1992 | Transcript filed. |
| Aug. 17, 1992 | Transcript (3 Vols) filed. |
| Aug. 12, 1992 | Transcript (4 Vols) filed. |
| Jul. 22, 1992 | Transcript filed. |
| Jul. 21, 1992 | Transcript filed. |
| Jul. 01, 1992 | Respondent`s Motion to Quash Service of Process, Quash Process, and, Inc the Alternative, for a Protective Order filed. |
| Jun. 23, 1992 | Respondent`s Response to Petitioner`s Second Request for Production filed. |
| Jun. 18, 1992 | CASE STATUS: Hearing Partially Held, continued to 6-22-92; 10:00am; Tallahassee. |
| Jun. 15, 1992 | (Respondent) Motion to Quash Subpoenas filed. |
| Jun. 12, 1992 | Transcript (Vols 1&2) filed. |
| Jun. 10, 1992 | CASE STATUS: Hearing Partially Held, continued to June 15-19, 1992 and June 22 and 23, 1992; Jacksonville) |
| Jun. 09, 1992 | (Respondent) Notice of Cancelling Deposition filed. |
| Jun. 08, 1992 | (Respondent) Response to Motion in Limine filed. |
| Jun. 05, 1992 | Petitioner`s Motion in Limine filed. |
| Jun. 04, 1992 | (joint) Prehearing Stipulation Petitioner`s Exhibit List filed. |
| Jun. 02, 1992 | (Petitioner) Notice of Cancellation of Deposition filed. |
| Jun. 02, 1992 | (Petitioner) Motion in Limine filed. |
| Jun. 02, 1992 | (Petitioner) Motion to Deem Admitted ; Notice of Serving Responses to Petitioner`s Interrogatories, Requests for Admission and Requests for Production filed. |
| May 28, 1992 | (Petitioner) Notice of Response to Order filed. |
| May 22, 1992 | (Respondent) Amended Notice of Taking Deposition filed. |
| May 20, 1992 | Order sent out. |
| May 20, 1992 | Order sent out. |
| May 19, 1992 | Petitioner`s Response to Respondent`s Motion to Compel Discovery filed. |
| May 18, 1992 | Petitioner`s Response to Petitioner`s Request for Production filed. |
| May 18, 1992 | Notice of Serving Petitioner`s Second Request for Production filed. |
| May 15, 1992 | (Petitioner) Notice of Deposition; Notice of Telephone Deposition filed. |
| May 15, 1992 | Notice of Filing Petitioner`s Response to Respondent`s Request for Admissions, Interrogatories, and Request for Production; Notice of Filing Petitioner`s Supplemental Response to Respondent`s Interrogatories and Request for Production; Amended Notice of |
| May 15, 1992 | (Respondent) Notice of Taking Deposition filed. |
| May 13, 1992 | Notice of Filing Petitioner`s Response to Respondent`s Second Request for Producing of Document; Notice of Filing Answers to Respondent`s First Interrogatories to Petitioner filed. |
| May 12, 1992 | (Petitioner) Notice of Telephone Deposition filed. |
| May 11, 1992 | (Petitioner) Notice of Telephone Deposition filed. |
| May 08, 1992 | Respondent`s Motion to Compel Discovery filed. |
| May 08, 1992 | Respondent`s Motion to Compel Discovery filed. |
| May 07, 1992 | Order sent out. (Petitioner`s motion for protective order denied) |
| May 06, 1992 | (Petitioner) Motion for Protective Order; Respondent`s First Interrogatories to Petitioner w/Petitioner`s Response to Respondent`s First Set of Interrogatories filed. |
| May 05, 1992 | (Respondent) Response to Motion for Protective Order filed. |
| May 05, 1992 | (Petitioner) Notice of Providing Curriculum Vitaes filed. |
| May 05, 1992 | Order sent out. (re: prehearing preparation) |
| May 04, 1992 | Joint Request for New Order Regarding Prehearing Instructions filed. (from J. Gallagher) |
| Apr. 29, 1992 | (Petitioner) Notice of Deposition filed. |
| Apr. 28, 1992 | Notice of Cancelling Deposition filed. (From Julie Gallagher) |
| Apr. 27, 1992 | Respondent`s Notice of Filing Third Request for Production; Respondent`s Notice of Propounding Its Second Interrogatories to Petitioner; Respondent`s Request for Admissions filed. |
| Apr. 27, 1992 | (Petitioner) Notice of Appearance filed. |
| Apr. 22, 1992 | Petitioner`s Supplemental Response to Respondent`s Motion to Compel Discovery filed. |
| Apr. 21, 1992 | Order sent out. (motion denied; Petitioner shall have until 4-30-92,to produce the curriculum statements not yet provided) |
| Apr. 20, 1992 | Petitioner`s Response to Respondent`s Motion to Compel Discovery w/(TAGGED) Exhibits 1-5 filed. |
| Apr. 20, 1992 | Order sent out. (motion for reconsideration denied) |
| Apr. 20, 1992 | Second Notice of Taking Deposition; Notice of Taking Deposition filed. (From Julie Gallagher) |
| Apr. 17, 1992 | (Respondent) Motion for Reconsideration filed. |
| Apr. 16, 1992 | Order sent out. |
| Apr. 15, 1992 | (Petitioner) Notice of Deposition filed. |
| Apr. 15, 1992 | (Respondent) Response to Motion for Protective Order; Notice of Taking Deposition filed. |
| Apr. 13, 1992 | (Petitioner) Motion for Protective Order w/Notice of Taking Deposition filed. |
| Apr. 07, 1992 | Notice of Serving Response to Respondent`s Request for Production of Documents filed. |
| Apr. 07, 1992 | (Petitioner) Amended Notice of Serving Responses to Respondent`s Request for Production of Documents filed. |
| Apr. 03, 1992 | Respondent`s Second Request for Production of Documents; Respondent`s Notice of Filing Second Request for Production; Respondent`s Notice of Propounding Its First Interrogatories to Petitioner filed. |
| Mar. 31, 1992 | Notice of Taking Deposition filed. |
| Mar. 27, 1992 | (Respondent) Response to Motion to Expeditiously Assign Hearing Officer filed. |
| Mar. 27, 1992 | Notice of Substitution of Hearing Officer and Order sent out. (request by Petitioner to have counsel to Respondent provide a representation regarding what plan is in place in order to proceed with this case should she be unable due to her pregnancy is |
| Mar. 24, 1992 | (Petitioner) Motion to Expeditiously Assign Hearing Officer filed. |
| Mar. 20, 1992 | Order Granting Motion To Disqualify sent out. |
| Mar. 20, 1992 | Petitioner`s Response to Respondent`s Motion to Disqualify Hearing Officer filed. |
| Mar. 20, 1992 | (Respondent) Notice of Filing Supplemental Authority; Affidavit (B. Nielsen) filed. |
| Mar. 16, 1992 | Notice of Taking Deposition filed. |
| Mar. 16, 1992 | (Respondent) Motion to Disqualify Hearing Officer w/(3) Affidavit filed. |
| Mar. 04, 1992 | Order of Consolidation (hearing set for June 8-11, 15-19 & 22-23, 1992; 10:00am; Jacksonville) sent out. (Consolidated cases are: 91-5325, 91-6358 and 92-1076). |
| Mar. 03, 1992 | Respondent`s Notice of Filing Request for Production; Respondent`s Request for Production of Documents filed. |
| Feb. 28, 1992 | Notice of Rescheduling Deposition filed. |
| Feb. 20, 1992 | Order of sent out. (hearing date rescheduled to June 8-11, 15-19, 22& 23, 1992; Jacksonville) |
| Feb. 17, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Feb. 17, 1992 | (Respondent) Motion for Continuance; (2) Motion to Quash Subpoena w/attached Subpoena Duces Tecum & Affidavit of Service + Exhibit-4 (filed in case #91-6358); Motion to Quash Subpoena w/attached Subpoena Duces Tecum & Affidavit + E xhibit-6 filed. |
| Feb. 17, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Feb. 14, 1992 | Notice of Appearance filed. (From Julie Gallagher) |
| Jan. 24, 1992 | Respondent`s Proposed Witness List filed. |
| Jan. 21, 1992 | Response to Motion for Protective Order filed. |
| Jan. 21, 1992 | Motion to Withdraw; Motion for Protective Order filed. |
| Nov. 20, 1991 | Order sent out. (Hearing set for March 23, 1992; 1:00pm; Jacksonville). |
| Nov. 14, 1991 | (Respondent) Notice of Serving Responses to Petitioner`s Interrogatories, Requests for Admissions and Requests for Production filed. |
| Oct. 31, 1991 | (DPR) Response to Initial Order filed. |
| Oct. 16, 1991 | Order of Consolidation sent out. 91-5325 & 91-6358 consolidated. |
| Oct. 16, 1991 | Ltr. to SFD from G. Freeman re: consolidation w/91-6358, Objection to Consolidation filed. |
| Oct. 04, 1991 | (Petitioner) Motion to Consolidate filed. |
| Oct. 04, 1991 | (Petitioner) Notice of Serving Petitioner`s First Set of Request for Admissions, Request for Production of Documents and Interrogatories to Respondent filed. |
| Sep. 09, 1991 | Notice of Hearing sent out. (hearing set for November 25, 1991: 9:00am: Tallahassee) |
| Sep. 06, 1991 | Notice of Hearing sent out. (hearing set for Dec. 17, 1991; 10:00am;Jacksonville). |
| Sep. 03, 1991 | Joint Response for Scheduling of Final Hearing filed. |
| Aug. 22, 1991 | Notice of Serving Interrogatories; Respondents First Set of Interrogatories to Petitioner; Request to Produce filed. |
| Aug. 22, 1991 | Agency Referral Letter; Administrative Complaint; Notice of Appearance; Request for Formal Hearing; Notice of Reserving Right to File Motions in Opposition to Administrative Complaint; Notice of Serving Petitioners Response to Respondents First Set of Int |
| Aug. 08, 1991 | Agency Referral Letter; Order of Emergency Restriction of The License filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 24, 1993 | Agency Final Order | |
| Dec. 30, 1992 | Recommended Order | Doctor proven to have performed fertility operations inappropriately and to have fabricated diagnoses in other patients to justify fees. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ALEXANDER D. J. BRICKLER, III, M.D., 91-005325 (1991)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ADIB A. CHIDIAC, M.D., 91-005325 (1991)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MATTHEW J. KACHINAS, M.D., 91-005325 (1991)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MATTHEW J. KACHINAS, M.D., 91-005325 (1991)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs SIMION TSINKER, M.D., 91-005325 (1991)
