STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS B. B. BENTON, M. D., )

)

Petitioner, )

)

vs. ) CASE NO. 92-2704F

)

BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

This matter came before the undersigned on a petition for attorney's fees and costs filed by petitioner.

APPEARANCES

For Petitioner: Charles H. Livingston, Esquire

46 North Washington Boulevard, Suite 1 Sarasota, Florida 34236

For Respondent: Mary B. Radkins, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The issue is whether petitioner is entitled to attorney's fees and costs under Section 57.111, Florida Statutes (1991).

PRELIMINARY STATEMENT

This matter began on May 4, 1992, when petitioner, Thomas B. B. Benton, a licensed medical doctor, filed a petition seeking an award of attorney's fees and costs in the amount of $15,000.00. The petition was filed under Section 57.111, Florida Statutes (1991). As a ground, petitioner alleged generally that he was a prevailing small business party in Case No. 91-2367, a disciplinary proceeding brought against him by respondent, Board of Medicine (Board). He alleged further that the proceeding was begun without substantial justification or special circumstances being present. On May 21, 1992, respondent filed its response to the petition generally denying the allegations.

By notice of hearing dated June 3, 1992, a final hearing was scheduled on August 13, 1992, in Tallahassee, Florida. However, the parties later requested that the hearing be cancelled and the matter decided based upon a stipulated record and proposed final orders. The proposed orders were filed by petitioner and respondent on September 10 and 11, 1992, respectively. Accordingly, this order has been prepared on the basis of the pleadings and stipulated record, which includes a copy of the final order and recommended order entered in Case

No. 91-2367, the complete investigative report in that case, the transcript of the probable cause panel which met on January 28, 1991, and the probable cause memorandum issued the same date.

FINDINGS OF FACT

Based upon all of the evidence, including the pleadings and stipulated record, the following findings of fact are determined:

1. On November 7, 1989, the Department of Professional Regulation (DPR) received a copy of a Serious Incident Report (SIR) prepared by Alachua General Hospital in Gainesville, Florida. The SIR was filed pursuant to law and indicated that a newborn infant baby had died at the hospital on September 16, 1989, while under the care of petitioner, Thomas B. B. Benton, a licensed medical doctor and pediatrician.

   
   

2. After the SIR was received, a DPR investigator conducted an investigation of the incident, including interviews with petitioner, six involved nurses, the obstretrician at delivery, and the pediatrician who responded to the emergency code at the hospital. The investigator also obtained the medical records of the mother and baby. On February 22, 1990, a one hundred seventeen page investigative report, consisting of the investigator's notes, medical records, SIR, and other related information, was issued.

   
   

3. A copy of the investigative report was given to a board certified pediatrician on August 24, 1990, who reviewed the report and records with a focus on petitioner's care and treatment of his patient. The consulting physician was asked to answer nine specific questions, including whether petitioner prepared and kept written medical records justifying the course of treatment of the patient and whether petitioner met the applicable standard of care in his examination, diagnosis and treatment of the patient. Also asked were questions pertaining to whether petitioner had adquately assessed the patient's condition, whether it was inappropriate to place the patient in the regular nursery without a monitor, and whether it was inappropriate for petitioner to not inform the on-call doctor of the patient's condition. In response to this charge, the consultant prepared a twelve page analysis of the case with responses to each of the nine questions. The analysis contained an ultimate conclusion that petitioner had failed to meet the applicable standard of care with regard to his diagnosis and treatment of the baby and, with respect to the adequacy of his records, petitioner had failed to document his medical records with a definitive treatment plan and with reasons for not ordering certain tests on the infant.

   
   

4. The investigative report and consultant's analysis were given to a probable cause panel on January 28, 1991. The panel was composed of two doctors and a lay person, all members of respondent, Board of Medicine (Board). After a discussion of the report and analysis, which the record shows was a meaningful inquiry, the panel found, by a 2-1 vote, probable cause that a violation of Subsections 458.331(1)(m) and (t), Florida Statutes, had occurred. Those subsections impose requirements that a physician keep adequate written medical records and adhere to the appropriate standard of care. The panel also recommended that DPR issue an administrative complaint. It is noted that the two panel members voting in favor of prosecution expressly relied on the consultant's report.

   
   

5. On February 6, 1991, a two-count administrative complaint was issued by DPR alleging that petitioner had violated subsections 458.331(1)(m) and (t) in

   several respects. As to subsection 458.331(1)(m), the complaint alleged he had failed to document his reasons for not ordering a cardiac/apnea monitor, had failed to document his reasons for not ordering studies to assess the patient for the possibility of sepsis, and had failed to document a definitive plan of treatment. As to subsection 458.331(1)(t), it need only be said that the complaint alleged generally that petitioner failed to adhere to the standard of care while treating the infant. After petitioner requested a formal hearing to contest the charges, the complaint was forwarded to the Division of Administrative Hearings and was assigned Case No. 91-2367. Several months prior to hearing, DPR amended its first count in the complaint to delete the two allegations that respondent failed to document reasons for not ordering certain tests. In lieu thereof, it added an allegation that there was a contradiction between petitioner's recorded plans to closely monitor the infant and his subsequent conduct, an allegation also based on an alleged violation of subsection 458.331(1)(m). This amendment was made after petitioner had filed a motion to compel discovery seeking the basis for the two factual allegations and whether they contravened the holding in Breesmen v. Department of Professional Regulation, 567 So.2d 469 (Fla. 1st DCA 1990). Conceding as much that they did, the Board thereafter filed an amended complaint. Because the Board was a party to that case, and the issuance of the opinion predated the panel's meeting, it must be assumed that the panel and its counsel were aware, or should have been aware, of the case's holding when the matter was considered. Therefore, the Board's decision to bring the two deleted charges in Count I was not substantially justified.

   
   

6. After an evidentiary hearing was conducted, a recommended order was issued on November 7, 1991, recommending that the complaint be dismissed with prejudice. This recommendation was adopted in toto by the Board and a final order dismissing the complaint was issued on February 25, 1992. The recommended and final orders are reported in Department of Professional Regulation v. Benton, 14 F.A.L.R. 1924 (Board of Medicine, February 22, 1992). Because no appeal was taken, the Board's order is now final.

   
   

7. Petitioner contends that the consultant's analysis is at odds with the information available to the probable cause panel and thus the panel's reliance on the analysis resulted in a flawed decision to prosecute. More specifically, petitioner focused on that part of the analysis which concluded that he failed to perform certain follow-up tests on the patient, failed to place the patient on a monitor or under closer supervision in the nursery, and failed to inform the on-call physician about the patient's medical problems. All relate to the general charge in Count II that he failed to conform to the appropriate standard of care.

   
   

8. To support her conclusion that petitioner failed to perform certain follow-up tests, the consultant noted that at the time of birth, the patient's mother had had a fever for several days and the infant was at risk for sepsis (infection), the infant had known neurologic abnormalities, the mother had experienced placental abruption and thus the child may have had anemia, and the child was at risk for respiratory problems from possible meconium aspiration. Although the medical records showed that the mother's fever had actually subsided before the C-section was performed, the mother had experienced fever for several days just prior to the date of delivery and was on antibiotics. The records also reflected that the child had neurologic abnormalities, meconium staining was present at birth, and the mother had a partial placental abruption during delivery. Therefore, the consultant's analysis as to this allegation was substantially in accord with the medical records, and the panel had a reasonable basis in fact to bring this charge.

9. The complaint also alleged that petitioner failed to adequately monitor the baby after it was placed in the nursery. This allegation was drawn from a recommendation by the consultant, whose conclusions were based on two considerations. First, the infant had known neurologic abnormalities and other risk factors, as discussed in the previous finding. Second, the consultant opined that the regular nursery was a "busy nursery", the nurses did not have "many years of nursing experience", and "all worked (in the newborn nursery) less than one year". The latter opinion was predicated on certain investigative notes and the consultant's review of statements made by six nurses. Petitioner asserts that because the investigator failed to record the work experience of a senior nurse and failed to interview two nurses who were on duty in the nursery the night of the infant's death, and the consultant failed to note that several of the nurses had been licensed for more than two years, the recommendation was flawed. However, it is noted that the consultant did not rely exclusively on the purported lack of experience on the part of the nursing staff in reaching her conclusion but placed equal reliance on the notion that the baby's history and risks warranted giving the baby special post-delivery supervision. Therefore, the report contains a factual basis to support the consultant's conclusion and thus the panel had a reasonable basis in fact to bring this charge.

   
   

10. Petitioner next contends that the recommendation to charge him with failing to adhere to the standard of care because of his failure to inform the on-call physician about the patient's condition and history was likewise at odds with the real facts. In making this argument, he points to findings in the recommended order which found in favor of petitioner on this issue and to that portion of the baby's medical records which recorded his condition while in the nursery. Again, however, the consultant reached this conclusion based on the baby's "history and status", and thus she had a factual basis to support her opinion. Therefore, the panel's decision to prosecute this alleged breach of care was substantially justified.

    
    

11. The parties have stipulated that petitioner is a small business party as defined by Subsection 57.111(3)(d), Florida Statutes, he was the prevailing party in the underlying disciplinary action, his attorney's fees and costs incurred in defending against the action are reasonable but are limited to the statutory cap of $15,000, and at least $4,000 was incurred in defending Count I while at least $15,000 was incurred in defending Count II. They have further agreed that there are no special circumstances that would make an award of attorney's fees and costs unjust.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Sections 57.111 and 120.57(1), Florida Statutes (1991).

    
    

13. Under well-established principles of law, petitioner bears the burden of showing that it is a prevailing small business party within the meaning of the law, and that the requested fees and costs, which cannot exceed $15,000, are reasonable and necessary. Once this burden is met, respondent must then demonstrate that it was "substantially justified" in initiating the proceeding. In other words, the Board must show that it had a reasonable basis in law or fact to justify its recommendation that an administrative complaint be issued. To do this, the Board must show that it "conducted a reasonable investigation"

    prior to filing the complaint. Ann & Jan Retirement Villa, Inc. v. Department of Health and Rehabilitative Services, 580 So.2d 278, 280 (Fla. 4th DCA 1991).

    
    

14. Petitioner first contends that the medical consultant's analysis, which was heavily relied upon by the probable cause panel, was seriously flawed in several respects and justifies an award of attorney's fees and costs. In this regard, there is precedent to hold that where an expert's letter (analysis) is relied upon by a panel to establish probable cause in the face of contrary facts in the medical records, an award of fees and costs will lie. Mills, M. D.

    v. Department of Professional Regulation, 13 F.A.L.R. 4254 (DOAH, October 4, 1991); Richman, D. O. v. Department of Professional Regulation, 12 F.A.L.R. 376 (DOAH, December 12, 1989). At the same time, however, it should be noted that section 57.111

    
    

    does not reach questions of whether the Department's investigation could have been carried out more carefully, whether the opinion of the consultants obtained by the Department could have been stated more elegantly, or whether additional opinions would have been helpful to the probable cause panel in deciding whether or not to initiate a prosecution by finding probable cause.

    Arias, M. D. v. Department of Professional Regulation, 13 F.A.L.R. 2648, 2657 (DOAH,

    July 1, 1990).

    
    

    Therefore, where there is some factual basis in the medical records to justify a consultant's conclusion, a decision to prosecute is reasonable even if a licensee can point to other facts which might lead another expert to a contrary opinion.

    
    

15. As to the charges in Count II, the evidence shows that while "the Department's investigation could have been carried out more carefully," in that two nurses were not interviewed and the experience of one nurse was not recorded, and there may be some facts on which experts might differ, there is still a sufficient factual basis in the investigative report to support the consultant's analysis. As such, there was a reasonable basis in fact for the panel to initiate the questioned charges in Count II.

    
    

16. Petitioner's next contends that the decision to prosecute him for failing to document reasons why he did not order certain tests is contrary to the holding in the Breesmen decision, a case that had been decided and the opinion published before the probable cause panel met. That case held, among other things, that a doctor could not be disciplined for failing to document his medical records with reasons for not pursuing a particular course of action.

    Id. at 471. As a party to that decision, it must be presumed that the panel was aware of the case's holding when it reviewed the investigative report and analysis. By recommending the inclusion in Count I of two factual allegations concerning respondent's failure to document his records with reasons for not ordering certain tests, the panel took a position that was directly contrary to the Breesmen decision. Therefore, there could be no reasonable basis in law or fact to justify the initiation of those two allegations in Count I. Although the two allegations were later deleted after being tested by a motion, to the extent petitioner was required to incur fees and costs in obtaining a dismissal of the two allegations, he should prevail. The other factual allegations in Count I involved charges that petitioner failed to document a definitive

    treatment plan and took a course of action inconsistent with his treatment plan, allegations not barred by the Breesmen holding, and which were decided in petitioner's favor after the testimony of his experts on those issues were accepted. Therefore, the claim for fees and costs as to those allegations will not lie.

    
    

17. The parties have stipulated that petitioner incurred $4,000 in fees and costs in defending Count I. Since two of the four allegations underpinning Count I were not substantially justified, an apportionment of that amount is necessary. In making such an apportionment, the undersigned has considered the fact that the two errant allegations were dismissed prior to hearing and that a 50-50 split of these expenses may not be wholly precise. Even so, such a division is a reasonable method of allocating the expenses and is hereby approved. Accordingly, the undersigned concludes that petitioner should receive one-half of the total expenses incurred in defending Count I, or $2,000. It is, therefore,

ORDERED that the Board of Medicine reimburse petitioner $2,000 for attorney's fees and costs incurred by petitioner in seeking the dismissal of two allegations in Count I of the administrative complaint filed in Case No. 91- 2367. The remainder of the petition should be denied.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of October 1992.

DONALD R. ALEXANDER

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 12th day of October 1992.

APPENDIX

Petitioner:

1. Partially accepted in finding of fact 1.

2. Partially accepted in finding of fact 4.

3. Partially accepted in finding of fact 11. 4-5. Partially accepted in finding of fact 5.

1. Partially accepted in finding of fact 7. 6a. Partially accepted in finding of fact 8. 6b. Partially accepted in finding of fact 9. 6c. Partially accepted in finding of fact 10.

2. Rejected as being contrary to the evidence except that portion accepted in finding of fact 5.

Respondent:

Note - Where a proposed finding has been partially accepted, the undersigned has rejected the remainder has being unnecessary, subordinate, irrelevant, contrary to the more persuasive evidence, or a conclusion of law.

COPIES FURNISHED:

Charles H. Livingston, Esquire Suite 1

46 North Washington Boulevard Sarasota, Florida 34236

Mary B. Radkins, Esquire Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack L. McRay, Esquire 1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68. FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 92-002704F

Orders for Case No: 92-002704F