STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

vs. ) CASE NOS. 92-5687

) 92-5688

YASER HASAN LOUTFI, M.D., ) 92-5689

) 92-6249

Respondent. ) 93-1198

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on September 13-16, 1993, in Perry, Florida and September 17-23, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0972

For Respondent: Yaser Hasan Loutfi, M.D., Pro Se

2005 Natalie Street

Panama City, Florida 32401

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.

PRELIMINARY STATEMENT

On August 3, 1992, in DOAH Case No. 92-5687, Petitioner issued an Administrative Complaint alleging that Respondent had violated Section 458.331(1)(t), Florida Statutes, through his failure to practice medicine with that level of care, skill, and treatment recognized as acceptable by a reasonably prudent physician under similar conditions and circumstances as a result of his treatment of the patient P.Y., who was complaining of abdominal pain. Respondent is alleged to have failed to have obtained a consultation; to have failed to correctly diagnose the patient's obstructed ileum; and to have failed to provide follow-up treatment for the patient. The Administrative Complaint also alleges that Respondent violated Section 458.331(1)(m), Florida Statutes, through his failure to keep adequate medical records justifying the course of treatment accorded this patient.

On August 13, 1992, in DOAH Case No. 92-5688, Petitioner filed an Administrative Complaint alleging Respondent's violation of Section 458.331(1)(t), Florida Statutes, due to his alleged failure to practice medicine with that level of care, skill, and treatment recognized as acceptable by a reasonably prudent physician under similar conditions and circumstances as a result of his treatment of the patient J.W. for acute appendicitis and subsequent failure to change this diagnosis upon receipt of an allegedly conflicting pathology report. The Administrative Complaint also charges Respondent with violation of Section 458.331(1)(k), Florida Statutes, in that he allegedly misrepresented to the patient that the patient suffered from acute appendicitis when he knew or had reason to know that such diagnosis was wrong.

The Administrative Complaint further charges Respondent with violation of Section 458.331(1)(hh), Florida Statutes, for allegedly concealing or misrepresenting a material fact during the course of a licensing or disciplinary procedure related to Respondent's treatment of the patient.

On August 13, 1992, in DOAH Case No. 92-5689, Petitioner filed an Administrative Complaint alleging Respondent's violation of Section 458.331(1)(t), Florida Statutes, due to his alleged failure to practice medicine with that level of care, skill, and treatment recognized as acceptable by a reasonably prudent physician under similar conditions and circumstances as a result of his treatment of the patient M.H., where Respondent allegedly perforated the patient's intestine with a jejunostomy tube. Further, the Administrative Complaint alleges that Respondent violated Section 458.331(1)(m), Florida Statutes, in that he failed to keep adequate medical records justifying the course of treatment accorded this patient.

On September 9, 1992, in DOAH Case No. 92-6249, Petitioner filed an Administrative Complaint alleging Respondent's violation of Section 458.331(1)(t), Florida Statutes, due to his alleged failure to practice medicine with that level of care, skill, and treatment recognized as acceptable by a reasonably prudent physician under similar conditions and circumstances as a result of his treatment of the patient P.R., where Respondent allegedly prematurely and inappropriately discharged the patient from the hospital. The Administrative Complaint also alleges that Respondent violated Section 458.331(1)(m), Florida Statutes, in that he failed to keep adequate medical records justifying the course of his treatment of this patient.

On February 3, 1993, in DOAH Case No. 93-1198, Petitioner filed an Administrative Complaint alleging Respondent's violation of Section 458.331(1)(t), Florida Statutes, due to his alleged failure to practice medicine with that level of care, skill, and treatment recognized as acceptable by a reasonably prudent physician under similar conditions and circumstances as a result of his treatment of the patients C.T., B.M., and N.C.

Respondent is alleged to have failed to properly seek consultation with regard to C.T.'s liver disease or to have sought the patient's transfer to another facility better equipped to deal with the patient's liver problems.

Respondent is alleged to have performed surgery on the patient B.M., contrary to advice of consultants, without first insuring that the patient could withstand such surgery.

Respondent is alleged to have failed to aggressively treat in a timely manner the gastrointestinal bleeding of patient N.C., or to have sought an appropriate and timely consultation with regard to this patient's condition.

The Administrative Complaint in DOAH Case No. 93-1198 also alleges that Respondent violated Section 458.331(1)(m), Florida Statutes, in that he failed to keep adequate medical records justifying the course of his treatment of patients B.M. and N.C.

With regard to patient C.T., the Administrative Complaint also charges Respondent with violation of 458.331(1)(v), Florida Statutes, with accepting and performing professional responsibilities which Respondent knew or should have known he was not competent to discharge.

Respondent requested a formal administrative hearing on each of these charges. Upon transfer to the Division of Administrative Hearings for conduct of formal hearings pursuant to Section 120.57(1), Florida Statutes, the cases were consolidated by the Hearing Officer.

At the final hearing, Petitioner presented the testimony of 22 witnesses and 10 evidentiary exhibits. Respondent presented the testimony of five witnesses, including himself, and 19 exhibits of which 16 were received in evidence.

The transcript of the final hearing was filed with the Division Of Administrative Hearings on November 1, 1993. The parties requested and were granted leave to file posthearing submissions more than 10 days after the filing of the transcript, and in accordance with Rule 60Q-2.031, Florida Administrative Code, waived provisions of Rule 28-5.402, Florida Administrative Code.

Proposed findings of fact were submitted by the parties and are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is Yasar Hasan Loutfi, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0037378. Respondent's last known address is 2005 Natalie Street, Panama City, Florida.

   
   

2. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes.

   
   

3. At all times material to the subject matter of this proceeding, Doctors Memorial Hospital (DMH) was a primary care facility located in Perry, Florida. At one time, DMH was known as Crest Medical Center. Tallahassee Memorial Regional Medical Center (TMRMC) was a full service tertiary treatment facility located approximately 50 miles from Perry, Florida, which maintained a provider contract with DMH/Crest Medical Center.

   
   

4. A tertiary care facility is an institution that provides access to all major specialities in the field of medicine on site 24 hours a day, and is available to serve smaller, primary care hospitals.

   
   

   FACTS RELATING TO DOAH CASE NO. 92-5687

   
   

5. P.Y. was an 82 year old resident of Perry Health Facility (PHF). She was normally treated by Dr. Eulogio Vizcarra, a physician with whom Respondent shared office facilities. Between August and November of 1991, P.Y. experienced various abdominal difficulties. During a visit by her to Dr. Vizcarra on

   November 7, 1991, Respondent examined P.Y. On November 11, 1991, Respondent performed a colonoscopy on the patient's midtransverse colon and diagnosed P.Y. as suffering from chronic diverticulitis.

   
   

6. Respondent recommended further radiological study of P.Y.'s colon and specifically a barium enema. According to Respondent, though not documented in the patient's records, P.Y. refused to undergo a barium enema. Respondent provided no further follow-up examinations or diagnostic testing to address P.Y.'s difficulties until January 10, 1992.

   
   

7. On January 10, 1992, P.Y. was brought to Dr. Vizcarra's office suffering abdominal pain and nausea. She was seen at that time by Respondent. He ordered an X-Ray which disclosed an obstruction of the large bowel. He then performed a manual bowel disimpaction. The patient was returned to the nursing home with orders by Respondent for enemas and placement of rectal tubes. Interestingly, Respondent used the non-medical term "no hokey pokey" in describing the fashion in which these procedures were to be performed on the patient. The rectal tube procedures and enemas were performed regularly from January 10, 1992, through January 13, 1992. P.Y. continued to eat and perform bowel movements.

   
   

8. On January 16, 1992, P.Y. suffered severe abdominal pain. P.Y.'s daughter had P.Y. transferred to Crest Medical Center (DMH) where P.Y. underwent surgery by another physician, revealing obstruction of the ileum with perforation of the small intestine and mesenteric thrombosis. As established by testimony of Dr. Miles Nelson, a minimal period of 48 to 72 hours elapses before perforation occurs as the result of an acute bowel obstruction. No evidence was presented regarding the maximum period of time which could elapse before a perforation occurs. Accordingly, there is insufficient evidence to determine that the obstruction of the small intestine existed on January 10, 1992.

   
   

9. Respondent failed to keep medical records which documented his recommendation for further study of P.Y.'s condition or her refusal of the recommended barium enema. He also failed to keep written medical records which adequately explained or justified the use of the term "no hokey pokey" or the method of treatment for P.Y.'s condition, rectal tubes.

   
   

   FACTS RELATING TO DOAH CASE NO. 92-5688

   
   

10. Patient J.W., a 36 year old male, arrived at the DMH emergency room on February 6, 1990, complaining of pain in the lower right quadrant of his abdomen. The pain had been ongoing for three days. The patient's abdomen was soft. Respondent admitted J.W. to the hospital with a diagnosis of acute appendicitis and performed an appendectomy on J.W. In the course of removing the non-perforated appendix, Respondent noted his observation of free pus in the abdominal cavity and two fiery red colored beefy loops of small bowel. He also noted the possibility of Crohn's disease. Following the operation, Respondent's postoperative diagnosis of patient J.W. remained acute appendicitis.

    
    

11. The pathology report of an appendix specimen, dated February 8, 1990, contradicts Respondent's diagnosis. The pathology report stated that the sample revealed serosal congestion with focal exudate and some chronic inflammation in the serosa. There was no significant intraluminal or mucosal acute inflammation. While stating that could reflect acute appendicitis with resolution of previous intraluminal component, the report concluded with a

    diagnosis of acute and chronic periappendicitis, or secondary involvement of the appendix by an extrinsic inflammatory process. Periappendicitis and acute appendicitis are different illnesses or diseases.

    
    

12. While Respondent talked with J.W. and told him that he might require further abdominal surgery, Respondent did not change his diagnosis to conform with the pathology report. He recorded the diagnosis of acute appendicitis in the discharge summary of patient J.W.

    
    

13. J.W. departed DMH without Respondent's approval and subsequently received treatment for his symptoms at the Veteran's Administration Hospital in Lake City, Florida, where physicians diagnosed and treated him for acute perforated diverticulitis with local abscess formation.

    
    

14. In a June 19, 1991 letter to Petitioner in the course of Petitioner's disciplinary investigation, Respondent stated that the "pathology report reflects the exceptionally high degree of accuracy of my operative findings." This statement of Respondent is in conflict with Respondent's misdiagnosis of patient J.W. as having acute appendicitis and Respondent's failure to reconsider or change his diagnosis in the face of the pathology report proving the diagnosis to be incorrect.

    
    

15. In view of the pathology report and expert testimony of Dr. Milton Caster presented at the final hearing, the testimony of Respondent that he observed J.W.'s appendix to be acutely inflamed at the time of removal is not credited.

    
    

16. Respondent gave J.W. a discharge diagnosis of acute appendicitis when he knew, or had reason to know, that this diagnosis was wrong. Further, Respondent misrepresented the facts when he stated in his June 19, 1991 letter to Petitioner that the pathology report verified his diagnosis.

    
    

17. As established by testimony of Petitioner's expert, Dr. John C. Fletcher, Respondent's medical records of J.W. fail to justify his diagnosis of acute appendicitis.

    
    

18. Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances in that he misdiagnosed

    J.W. and failed to reconsider or change that diagnosis when the pathology report documented that another diagnosis was more appropriate.

    
    

19. Respondent also made a deceptive or untrue representation in or related to the practice of medicine when he knew, or had reason to know that his diagnosis of J.W. was incorrect and yet confirmed to Petitioner in the June 19, 1991 letter that the pathology report verified Respondent's operative findings. This action by Respondent also constitutes the misrepresentation or concealment of a material fact during a phase of a disciplinary process or procedure.

    
    

    FACTS RELATING TO DOAH CASE NO. 92-5689

    
    

20. From January 18, 1989 until January 26, 1989, Respondent provided medical treatment to M.H., a 74 year old male with a history of stroke with resultant decreased mental capacity and aphagia.

    
    

21. M.H. was admitted to DMH on January 18, 1989, suffering from severe malnutrition and cachexia. That same day, Respondent performed a laparotomy on

    M.H. and inserted a silicone jejunostomy feeding tube into the small intestine to attempt to alleviate M.H.'s malnutrition.

    
    

22. Respondent's medical records with regard to patient M.H. failed to document the size of the jejunostomy tube inserted in the patient's small intestine, or whether the tube had been irrigated at the time of insertion to confirm that it was appropriately placed.

    
    

23. Following the onset of severe abdominal pain and tenderness, M.H. was subjected to an x-ray contrast study on January 20, 1989, revealing that the jejunostomy tube implanted by Respondent had perforated the wall of M.H.'s small intestine. Respondent performed a second operation on M.H. that same day and verified the small intestine perforation. M.H.'s small intestine was also observed to be severely thickened and inflamed, with pus and small bowel content in the abdominal cavity. Respondent diagnosed M.H. as having acute peritonitis, repaired the perforation and inserted a second jejunostomy tube made of red rubber.

    
    

24. Postoperatively, M.H. was diagnosed with septicemia, pneumonia, and respiratory failure. He continued to deteriorate and expired on January 26, 1989.

    
    

25. Respondent made a serious technical surgical error during the initial operation on M.H. when he perforated M.H.'s small intestine. He should have recognized his error immediately and taken appropriate corrective action.

    
    

26. Because Respondent inappropriately perforated M.H.'s small intestine during the initial surgery, and inappropriately failed to recognize this perforation and take corrective measures, Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

27. Respondent's medical records, as the result of omissions regarding the size of the tube and documentation of procedures following to insure proper tube placement, fail to justify the course of treatment of patient M.H.

    
    

    FACTS RELATING TO DOAH CASE NO. 92-6249

    
    

28. Patient P.R., an 83 year old female nursing home resident at Perry Health Facility (PHF) in Perry, Florida, was treated by Respondent from June 22, 1990 to July 18, 1990.

    
    

29. P.R. had been admitted to the hospital for acute abdominal pain, fever, vomiting, distension, and hypotension on July 16, 1990. She suffered from organic brain syndrome, a form of senility. P.R.'s family requested that she not be resuscitated in the event of death or become the subject of heroic lifesaving measures. The family's desire was that she be kept comfortable in the hospital.

    
    

30. On July 18, 1990, P.R.'s temperature was more than 100 degrees. She had a white blood count of over 50,000, but was resting comfortably as a result of pain medication. P.R. was unable to eat since she had a nasal gastric tube in place to relieve abdominal pressure.

    
    

31. Faced with what he perceived as the need to either treat the patient's illnesses more aggressively or make alternative arrangements for her care,

    Respondent issued discharge orders to permit P.R.'s return to PHF, conditioned upon the willingness of the nursing home to accept her in her condition. This action was taken following Respondent's request that hospital staff attempt to locate P.R.'s brother to authorize further medical care which would justify her retention in the hospital. The attempts to contact the brother were not successful.

    
    

32. The patient was discharged to the nursing home. Upon receiving the patient, personnel at PHF communicated with the hospital, pointing out that the patient could not be accepted under current regulations since she could not eat.

    
    

33. In response to the nursing home's concern about retaining P.R., Respondent authorized removal of her nasal gastric tube and provision to her of a liquid diet. As a result, P.R. began to vomit and, on July 19, 1990, was brought back to the hospital. She was readmitted by another physician and successful contact with family members resulted in the recission of previous directives regarding her treatment.

    
    

34. Respondent's authorization of P.R.'s hospital discharge was premature and inappropriate in view of her need for further medical supervision and treatment. As a consequence, Respondent's discharge of P.R. constituted a failure to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under the circumstances.

    
    

    FACTS RELATING TO DOAH CASE NO. 93-1198

    
    

    Patient C.T.

    
    

35. On October 24, 1989, C.T., a 49 year old female, presented to DMH with complaints of severe abdominal pain, nausea, vomiting, fever and abdominal distention. Respondent diagnosed a bowel obstruction and surgery was performed on the day of admission. In the course of the exploratory laparotomy on C.T., Respondent discovered C.T. had a small bowel obstruction, several abdominal adhesions, and severe liver cirrhosis with acute alcoholic hepatitis. A biopsy of C.T.'s liver confirmed the patient's condition. The patient improved after surgery and was awake and alert.

    
    

36. On October 26, 1989, Respondent discussed C.T.'s condition with her and her family. He informed C.T. that she was suffering from end stage liver disease in the form of severe liver cirrhosis and recommended that she be transferred to Tallahassee Memorial Regional Medical Center for further treatment. The refusal of the patient's husband to assent to transfer of the patient was documented in medical records on October 31, 19889. Respondent asserts that the patient also refused to be transferred, although no signature of the patient exists to document such a finding. Respondent did not order an appropriate consultation with a specialist in liver disease and proceeded to provide medical treatment for the patient. She expired on November 2, 1989.

    
    

37. As established by testimony of Petitioner's expert, James H. Corwin, M.D., management of postoperative care of a patient with advanced liver disease is beyond the expertise of a general surgeon.

    
    

38. Respondent attempted to provide C.T. with postoperative care necessary for patients with severe liver cirrhosis and attempted to perform professional responsibilities which he knew or had reason to know that he was not competent to perform.

39. Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

    Patient B.M.

    
    

40. On March 8, 1990, B.M., an 80 year old female, was admitted to DMH with a chief complaint of breathing difficulty. On the morning of March 9, 1990,

    B.M. was in shock and near death. Respondent provided resuscitative measures to the patient and examined her.

    
    

41. Respondent found B.M.'s abdomen to be hard with negative bowel signs. Her white blood cell count was 55 thousand. Respondent made a diagnosis of acute abdomen. Respondent thought that B.M.'s shock was the result of acute abdominal catastrophe.

    
    

42. Although an administrative consultation of the patient was ordered by the hospital prior to surgery on B.M., neither of the two consultants appointed by the administrator of DMH provided the results of their review of B.M.'s case to Respondent.

    
    

43. While Petitioner's expert, Dr. James H. Corwin, M.D., testified that Respondent treated B.M. inappropriately, Corwin's opinion was based on the understanding that Respondent had been provided access to the results of the administrative consultation prior to surgery on B.M. Accordingly, to the extent that Corwin's opinion that Respondent should not have operated relies on the mistaken belief that Respondent was aware of results of the administrative consultation, that opinion is not credited.

    
    

44. Corwin's expert opinion does establish, however, that Respondent's medical records were unclear and failed to document or justify Respondent's treatment of B.M. in that the records did not adequately document preoperative diagnostic testing.

    
    

45. During surgery on March 9, 1990, Respondent performed a total colectomy, an ileostomy, and lysis of adhesions. On March 11, 1990, B.M. was returned to surgery for reexamination of her bowel which was found to be septic. On March 18, 1990, B.M. expired due to multiple organ system failure.

    
    

46. Respondent did not perform surgery on the patient B.M. in disregard of consultants' advice against such surgery.

    
    

    Patient N.C.

    
    

47. A 40 year old male, N.C. was first seen on June 14, 1990, in the emergency room of DMH. N.C. was not seen by Respondent at that time and was treated by another physician. He was then released, although he was vomiting blood.

    
    

48. N.C. returned to the emergency room on June 27, 1990, with severe epigastric pain, tenderness, nausea, and vomiting. N.C. was admitted to the hospital at that time.

    
    

49. On June 28, 1990, Respondent performed an endoscopy on N.C. and discovered a huge peptic ulcer. On June 29, 1990, N.C. developed massive GI bleeding with recurrent hematemesis, abdominal distention, and frank shock.

    Respondent transferred N.C. to the intensive care unit and resuscitated him through use of blood transfusions and gastric suction.

    
    

50. On June 30, 1990, N.C. was the subject of the following surgical procedures by Respondent: vagotomy; gastric resection; exclusion of the peptic ulcer; oversewing of the gastroduodenal artery; hemigastrectomy with Bilroth II, enteroenterostomy; and left lateral anal sphincterotomy with dilation of the anus.

    
    

51. Postoperatively, N.C.'s recuperation was uneventful and Respondent discharged him from DMH on July 9, 1990. Within two hours of the discharge,

    N.C. returned to the emergency room after an episode of vomiting of blood. He was readmitted to the hospital by Respondent for massive upper GI bleeding and blood loss shock. N.C. was placed in the intensive care unit, treated with intravenous fluids, blood transfusions and medication.

    
    

52. On July 10, 1990, an abdominal x-ray of N.C. revealed an undefined "ground glass appearance" on the left side of the mid and upper abdomen of N.C. The radiologist expressed concern and a need for a computerized axial tomography (CAT) scan of N.C.'s abdomen for further evaluation. Subsequent x-ray studies were done on July 13 and July 15, 1990.

    
    

53. Respondent sent N.C. to Tallahassee Memorial Regional Medical Center (TMRMC) in Tallahassee, Florida, on July 16, 1990, to undergo the recommended CAT scan. Shortly after his arrival, N.C. began vomiting blood and went into shock. Dr. J.W. Stockwell, a gastroenterologist, took over treatment of N.C. and admitted him to TMRMC.

    
    

54. Respondent waited approximately six days after the readmission and recurrence of bleeding by N.C. to obtain proper consultation and the use of a tertiary medical facility to assist in the treatment of the patient, inaction constituting a failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. Respondent's medical records fail to reflect any attempt to take any such consultative action earlier and do not contain any justification for this delay in treatment. Respondent failed to keep written medical records which justified such a course of treatment of N.C.

    
    

55. On July 23, 1990, N.C. was discharged following treatment at TMRMC.

    In the course of that treatment another shallow ulcer was discovered just inside his cardioesophageal junction by Dr. Stockwell in the performance of an endoscopy on the patient on July 18, 1990.

    
    

56. On July 30, 1990, N.C. arrived at Walker Hospital in Avon Park, Florida, in a comatose condition with severe hypotension and recorded hemoglobin of 2.2 grams. N.C. expired several hours after admission.

    
    

57. The conclusion of an autopsy report of N.C.'s body on August 1, 1990, was uncorroborated by any direct pathologist testimony at final hearing and appears to contradict the testimony of Dr. Stockwell and his discharge summary. Accordingly, the autopsy report's conclusion is not credited.

    
    

    CONCLUSIONS OF LAW

    
    

58. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

59. Petitioner bears the burden of proof of the charges set forth in the various Administrative Complaints in this consolidated case. Since a final determination of Respondent's culpability could result in the revocation of Respondent's license, the proof that Respondent has committed those violations must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

    DOAH CASE NO. 92-5687

    
    

60. There are two counts in the Administrative Complaint filed in DOAH Case No. 92-5687. Count One alleges Respondent violated Section 458.331(1)(t), Florida Statutes, through the commission of gross and repeated malpractice. In the absence of clear and convincing evidence that P.Y.'s small bowel obstruction or mesenteric thrombosis existed on January 10, 1992, or earlier, Respondent is not guilty of Count One of this Administrative Complaint.

    
    

61. Respondent is guilty of violation of Section 458.331(1)(m), Florida Statutes, as set forth in Count Two of the Administrative Complaint in this case, through his failure to maintain medical records documenting his treatment of P.Y., specifically his recommendation of further study of P.Y.'s condition and her refusal of the recommended barium enema. His written records, to the extent he did maintain them, also do not adequately explain or justify the term "no hokey pokey" or provide an explanation for his treatment of P.Y.'s condition with the use of rectal tubes.

    
    

    DOAH CASE NO. 92-5688

    
    

62. Count One of the Administrative Complaint in this case alleges Respondent's violation of Section 458.331 (1)(t), Florida Statutes, as the result of failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. Respondent is guilty of this violation in view of his misdiagnosis of J.W. as suffering from acute appendicitis and refusing to change that diagnosis to conform to a diagnosis of periappendicitis as documented by the pathology report.

    
    

63. Count Two of the Administrative Complaint alleges Respondent's violation of Section 458.331(1)(k), Florida Statutes, as the result of making deceptive, untrue, or fraudulent representations in or related to the practice of medicine. Respondent is guilty of this allegation. Respondent gave J.W. a discharge diagnosis of acute appendicitis when he had reason to know that the diagnosis was incorrect. He further misrepresented the facts in his June 19, 1991 letter to Petitioner by claiming that the pathology report supported his diagnosis.

    
    

64. Respondent is also guilty of Count Three of the Administrative Complaint which alleges Respondent violated Section 458.331(1)(hh), Florida Statutes, through his misrepresentation of the facts in his June 19, 1991 letter to Petitioner, a letter issued in the course of Petitioner's investigatory phase of this disciplinary process.

    
    

65. Respondent's written medical records failed to justify his diagnosis of acute appendicitis and constitute a violation of Section 458.331(1)(m), Florida Statutes, as alleged in Count Four of the Administrative Complaint in this case.

    DOAH CASE NO. 92-5689

    
    

66. There are two counts in the Administrative Complaint filed in DOAH Case No. 92-5689. Count One alleges Respondent violated Section 458.331(1)(t), Florida Statutes, as the result of failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. Respondent is guilty of this violation in view of his perforation of M.H.'s small intestine with the initial jejunostomy tube.

    
    

67. Respondent is guilty of violation of Section 458.331(1)(m), Florida Statutes, through his failure to maintain medical records documenting his treatment of M.H., specifically his omission of documentation of the size of the jejunostomy tube and whether the tube had been irrigated at the time of insertion.

    
    

    DOAH CASE NO. 92-6249

    
    

68. There are two counts in the Administrative Complaint filed in DOAH Case No. 92-6249. Count One alleges Respondent violated Section 458.331(1)(t), Florida Statutes, as the result of failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. Respondent is guilty of this violation in view of his premature and inappropriate discharge of P.R. from the hospital when she needed further medical supervision and treatment. Particularly troubling is Respondent's later authorization for the nursing home to remove the nasal gastric tube from the patient and give her a liquid diet when he knew she was unable to eat.

    
    

69. Respondent is not, however, guilty of violation of Section 458.331(1)(m), Florida Statutes, as set forth in Count Two of the Administrative Complaint in this case. He maintained adequate medical records documenting his treatment of P.R.

    
    

    DOAH CASE NO. 93-1198

    
    

    Patient C.T.

    
    

70. Count One of the Administrative Complaint in this case alleges Respondent violated Section 458.331(1)(t), Florida Statutes, as the result of failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. Respondent is guilty of this violation in view of his failure to order appropriate consultations with liver specialists and his continued treatment of a patient that he knew or should have known required specialized care, preferably in a tertiary care facility. Respondent's desire to honor the wishes of the patient and family not to transfer C.T. did not preclude the immediate involvement of other specialists upon discovery of C.T.'s liver condition, and perhaps the success of those specialists in convincing the family to seek specialized treatment.

    
    

71. Respondent is also guilty of Count Two of the Administrative Complaint in that he accepted and performed professional responsibilities which he knew or should have known he was not competent to perform when he continued to provide postoperative care for a patient with severe liver cirrhosis, facts constituting a violation of Section 458.331(1)(v), Florida Statutes. Noteably, Respondent's defense in this case places great weight on documentation of the acquiescence of

    C.T.'s husband to the patient's retention in DMH. Documentation of the husband's consent to such a course of action is an inadequate substitute for documentation of the patient's consent and fails to provide a rationale for his failure to involve other specialists in the patient's care.

    
    

    Patient B.M.

    
    

72. In Count Three of the Administrative Complaint, Respondent is alleged to have violated Section 458.331(1)(t), Florida Statutes, through failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. The violation is alleged to have occurred because Respondent proceeded to operate on B.M. although two consulting physicians advised against surgery. Inasmuch as Respondent was not privy to the consultations of these physicians, Respondent is not guilty of Count Three of this Administrative Complaint.

    
    

73. In Count Four of the Administrative Complaint, Respondent is alleged to have violated Section 458.331(1)(m), Florida Statutes, through the failure to maintain medical records justifying the course of medical treatment. Respondent is guilty of this charge. As established by Dr. Corwin's expert opinion, Respondent's medical records were unclear and did not adequately document preoperative diagnostic testing.

    
    

    Patient N.C.

    
    

74. In Count Five of the Administrative Complaint, Respondent is alleged to have violated Section 458.331(1)(t), Florida Statutes, through failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. Respondent is guilty of the charge contained in Count Five as the result of his delay for six days before transferring N.C. to a tertiary care facility. Even then, the transfer initially was simply for purpose of a CAT scan and not for review and care by multiple specialists.

    
    

75. In Count Six of the Administrative Complaint, Respondent is alleged to have violated Section 458.331(1)(m), Florida Statutes, through the failure to maintain medical records justifying the course of medical treatment. Respondent is guilty of this charge. Respondent's medical records do not contain any justification for the delay in transfer of N.C. to TMRMC.

    
    

76. With regard to Respondent's treatment of the seven patients which form the basis for the Administrative Complaints filed in these consolidated cases, Respondent has been found to have violated Section 458.331(1)(m), Florida Statutes, relating to maintenance of adequate medical records, in five of the seven cases.

    
    

77. Respondent has been found to have violated Section 458.331(1)(t), Florida Statutes, a proscription against failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances, in five of the seven cases.

    
    

78. Respondent has been found guilty of violation of Section 458.331(1)(k), Florida Statutes, the prohibition against the making of deceptive, untrue, or fraudulent representations in or related to the practice of medicine, in one case. He has violated Section 458.331(1)(hh), Florida

    Statutes, which prohibits misrepresentation of a material fact in the course of a disciplinary proceeding, in one case. He has been found guilty of violation of Section 458.331(1)(v), Florida Statutes, which prohibits the acceptance and performance of professional responsibilities which a physician knows, or should know, lie outside of his area of expertise, in one case.

    
    

79. Disciplinary guidelines of Petitioner's Board of Medicine are set forth in Rule 61F6-20.001, Florida Administrative Code. For violation of Section 458.331(1)(m), Florida Statutes, the recommended penalty ranges from a reprimand to two years suspension followed by probation and administrative fine from $250 to $5,000. For violation of Section 458.331(1)(t), Florida Statutes, the guidelines provide a penalty range of two years probation to revocation of licensure and imposition of an administrative fine of $250 to $5,000. For violation of Section 458.331(1)(k), Florida Statutes, a penalty of probation to revocation and an administrative fine of $250 to $5,000 is provided. The guidelines provide punishment of a violation of Section 458.331(1)(hh), Florida Statutes, may range from revocation of license with ability to reapply upon payment of a $1,000 fine to denial of licensure. Violation of Section 458.331(1)(v), Florida Statutes, may, under the guidelines, be the basis for penalties ranging from two years suspension to revocation of licensure and an administrative fine ranging from $250 to $5,000.

    
    

80. The severity of the offenses committed by Respondent, the number of those offenses, the actual danger to patients, and the danger to the public posed by a caregiver of such questionable judgement as that exhibited by Respondent must be balanced against the effect of a penalty upon his livelihood as a result of license discipline. In the course of determining that balance, the need of the public to have confidence in the quality of care rendered by physicians and to be safe from harm by physicians is paramount. As noted by counsel for Petitioner, Respondent has demonstrated a lack of ability and temperament to function as a physician and surgeon. The penalty imposed must be severe.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered revoking Respondent's license as a physician in the State of Florida.

DONE AND ENTERED this 22nd day of December, 1993, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5687, 3-5688, 93-5689, 93-6249 AND 93-1198

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings. 1.-12. Accepted.

13. Rejected, argument.

14.-17. Accepted.

18.-19. Rejected, subordinate.

20.-25. Accepted.

26.-27. Rejected, Respondent never given results of consult. 28.-30. Accepted.

31. Rejected, weight of the evidence. 32.-44. Accepted.

45. Rejected, subordinate.

46.-50. Accepted.

1. Rejected, subordinate.

2. Accepted.

3. Rejected, subordinate.

54.-55. Accepted.

56. Rejected, subordinate.

57.-92. Accepted.

93. Rejected, greater weight of the evidence.

Respondent's Proposed Findings 1.-3. Accept.

4.-8. Rejected, subordinate.

1. Accepted.

2. Accepted, except for last sentence, which is rejected as speculation.

11.-12. Rejected, relevance.

13. Accepted.

14.-21. Rejected, subordinate.

22.-23. Accepted.

24.-25. Rejected, subordinate.

26.-27. Rejected, weight and argumentative. 28.-31. Rejected, subordinate.

1. Rejected, hearsay.

2. Accepted, but for last sentence which is rejected as conclusionary.

3. Accepted, except for last sentence, rejected, weight of the evidence.

4. Accepted, except for last sentence, rejected, weight. 36.-38. Accepted.

39.-44. Rejected, subordinate.

45.-50. Rejected, argumentative.

1. Accepted.

2. Rejected, weight of the evidence.

3. Rejected, subordinate.

4. Rejected, unnecessary.

5. Rejected, subordinate. 56.-57. Rejected, argumentative.

58.-59. Rejected, relevance.

60.-67. Rejected, argumentative.

68.-69. Accepted.

70.-72. Rejected, subordinate.

73.-75. Rejected, argumentative. 76.-78. Accepted, but not verbatim. 79.-81. Rejected, relevance.

82.-85. Accepted, not verbatim. 86.-89. Rejected, subordinate.

90. Rejected, relevance. 91.-100. Accepted.

101.-104. Rejected, relevance and unnecessary. 105.-111. Rejected, argumentative.

112.-117. Accepted, not verbatim. 118.-122. Rejected, argumentative.

COPIES FURNISHED:

Yaser Hasan Loutfi, M.D. 2005 Natalie Street

Panama City, Florida 32401

Albert Peacock, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Business and Professional Regulation

The Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0750

Dr. Marm Harris Executive Director Board of Medicine

Department of Professional Regulation The Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

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

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF MEDICINE

93-1198

/ LICENSE NO. ME0037378

FINAL ORDER

THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on February 5, 1994, in Tampa, Florida, for consideration of the Hearing Officers Recommended Order (Attached as App. A) in the case of Department of Business and Professional Regulation v. Yaser Hasan Loutfi, M.D. At the hearing before the Board, Petitioner was represented by Albert Peacock, Senior Attorney. Respondent appeared before the Board without legal counsel. Upon consideration of the Hearing Officer's Recommended Order, after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following rulings, findings and conclusions:

RULINGS ON EXCEPTIONS

Respondent filed fifty six exceptions to the Recommended Order. (Attached as App. B) Pursuant to Rule 61F6-18.004(2), F.A.C., the Board considered each exception and ruled on each one as follows:

1-5. Rejected for the reasons set forth in Petitioner's response to the exceptions (Attached as App. C).

6. Rejected in part and accepted in part. The Board found competent substantial evidence in the record for most of paragraph 9. of the Recommended Order. However, the Board inserted the word "adequately" at the end of the first line to remove any implication that the Respondent had not kept any records.

7.-9. Rejected for the reasons set forth in Petitioner's responses to the exceptions (Attached as App. C).

10. Rejected for the reasons set forth in Petitioner's responses to the exceptions (Attached as App. C.) and because the Board finds competent substantial evidence in the record to support paragraph 13. of the Recommended Order.

11-13. Rejected for the reasons set forth in Petitioner's response to the exceptions (Attached as App. C).

14. Rejected for the reasons set forth in Petitioner's response to the exceptions (Attached as App. C) and because the finding set forth in paragraph

17. of the Recommended Order involves a determination of the credibility of witnesses which is reserved to the Hearing Officer.

15. Rejected for the reasons set forth in Petitioner's response to the exceptions (Attached as App. C) and because the Board finds competent substantial evidence in the record to support paragraph 18. of the Recommended Order.

16-29. Rejected for the reasons set forth in Petitioner's response to the exceptions (Attached as App. C).

30. Rejected for the reasons set forth in Petitioner's response to the exceptions (Attached as App. C) and because the finding set forth in paragraph

34. of the Recommended Order involves a determination of the credibility of witnesses which is reserved to the Hearing Officer.

31-32. Rejected for the reasons set forth in Petitioner's response to the exceptions (Attached as App. C).

33. Rejected for the reasons set forth in Petitioner's response to the exceptions (Attached as App. C) and because the finding set forth in paragraph

1. of the Recommended Order involves a determination of the credibility of witnesses which is reserved to the Hearing Officer.

   
   

   34-39. Rejected for the reasons set forth in Petitioner's response to the exceptions (Attached as App. C).

   
   

   1. Rejected because the Board finds competent substantial evidence in the record to support paragraph 54. of the Recommended Order.

      
      

   2. Accepted as to the Respondent's use of the term "hokey pokey." The Board amends the last sentence of paragraph 61. of the Recommended Order to read "His written records, to the extent he did maintain them, also do not provide an explanation for his treatment of P.Y.'s condition with the use of rectal tubes."

42-56. Rejected for the reasons set forth in Petitioner's response to the exceptions (Attached as App. C) and because the Recommended Conclusions of Law set forth therein are appropriate as to the findings of fact set forth in the previous paragraphs of the Recommended Order.

FINDINGS OF FACT

1. The Hearing Officer's Recommended Findings of Fact are approved and adopted and are incorporated herein by reference with the correction set forth above in response to Respondent's exception 6.

2. There is competent, substantial evidence to support the Board's findings herein.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.

   
   

2. The findings of fact set forth above do establish that Respondent has violated Section 458.331(1), F.S., as set forth in the Recommended Order.

   
   

3. The Hearing Officer's Recommended Conclusions of Law are approved and adopted and are incorporated herein by reference with the amendment of paragraph

61. as set forth above in response to Respondent's exception 41.

DISPOSITION

In light of the foregoing Findings of Fact and Conclusions of Law the Board hereby determines that pursuant to Rule 61F6-20, Florida Administrative Code, the penalty recommended by the Hearing Officer is appropriate as set forth in the Recommended Order.

WHEREFORE, it is found, ordered and adjudged that the Respondent has violated Section 458.331(1) and pursuant to Rule 61F6-20, Respondent shall have his license to practice medicine in Florida REVOKED.

This Final Order becomes effective upon its filing with the Clerk of the Department of Business and Professional Regulation.

DONE and ORDERED this 5th day of April, 1994.

BOARD OF MEDICINE

RICHARD JAMES CAVALLARO, M.D. VICE-CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Yaser H. Loutfi, 2005 Natalie Street, Panama City, Florida 32401 and to Dan W. Davis, Hearing Officer, Division of Administrative Hearings, the DeSoto Building 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by hand delivery to Albert Peacock, Senior Attorney, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 11th day of April 1994.

NOTICE

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

Docket for Case No: 92-005687

Orders for Case No: 92-005687