STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6553

)

WILLIAM T. BREESMEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Tampa, Florida, on September 15, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Barbara Whalin Makant

Staff Attorney

Department of Professional Regulation

Northwood Center, Suite 60 1940 N. Monroe St.

Tallahassee, Florida 32399-0972

For Respondent: William B. Taylor, IV

Macfarlane Ferguson

P.O. Box 1531

Tampa, Florida 33618 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of violating the minimum standard of care in the diagnosis and treatment of four patients and, in the case of one patient, failing to maintain required medical records.

PRELIMINARY STATEMENT

Count I of the Administrative Complaint dated May 14, 1992, alleges that on or about March 24, 1988, Respondent admitted Patient 1 to the hospital, failed to pursue a diagnosis of upper abdominal pain, and discharged her, thereby failing to practice medicine with the level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances.

Count II alleges that on or about May 9, 1988, Respondent admitted Patient

2 to the hospital due to possible Lithium toxicity, failed to address the psychotherapy necessitating the patient's taking of psychotropic medications, failed to obtain a psychiatric consultation for the patient, and failed to address the post-discharge needs of the patient, thereby failing to practice medicine with the level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances.

Count III alleges that on or about February 5, 1988, Respondent admitted Patient 3 to the hospital due to breathing problems, failed to assess atelectasis or consider a diagnosis of reversible inflammatory bronchitis, failed to treat the patient with bronchodilators, failed to document that Respondent considered a superior vena cava syndrome and suggested a course of radiation therapy, and failed to order an admission EKG for the patient, thereby failing to practice medicine with the level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. Petitioner abandoned at the hearing other allegations concerning Respondent's diagnosis and treatment of Patient 3.

Count IV alleges, as to Patient 3, that Respondent failed to keep written medical records justifying the course of treatment of the patient.

Count V alleges that on or about February 14, 1988, Respondent admitted Patient 4 to the hospital due to a chronic productive cough that had lasted 8-10 days and a weight loss of 10 pounds and failed to treat adequately the pulmonary problem for which the patient had been admitted, thereby failing to practice medicine with the level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances.

By Election of Rights dated May 27, 1992, Respondent requested a formal hearing.

At the hearing, Petitioner called one witness and offered into evidence five exhibits. Respondent called two witnesses and offered into evidence six exhibits. All exhibits were admitted.

The transcript was filed September 28, 1993. Each party filed a proposed recommended order. Rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. At all material times, Respondent has been currently licensed as a physician in Florida, holding license ME 0033496.

   
   

2. Patient 1 was a 32 year old female who was admitted to Lykes Memorial Hospital on March 24, 1988, due to upper and lower abdominal pain, vomiting, and early signs of dehydration.

   
   

3. Respondent placed Patient 1 on intravenous fluids and administered medications to control the vomiting. Patient 1 underwent diagnostic studies, including an upper gastrointestinal series, and received medication for the abdominal pain.

   
   

4. After five days of hospitalization and tests, the source of the pain had not yet been identified. However, the lower abdominal pain had ceased, and

   the upper abdominal pain had lessened considerably. In general, the patient had improved during the hospitalization.

   
   

5. At this point, Respondent discharged Patient 1 from the hospital with a final diagnosis of acute gastroenteritis. Respondent directed Patient 1 to return to his office for a follow-up visit. Five or six days after discharge, Patient 1 called Respondent and told him that her symptoms, which she now linked with taking birth control pills, had disappeared. Respondent advised her not to resume taking the pills, but to return to her gynecologist.

   
   

6. With respect to Patient 1, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances.

   
   

7. Patient 2 was a 37 year old male who was admitted to Lykes Memorial Hospital on May 9, 1988, after having been found by a relative in a state of semi-consciousness. The admitting diagnosis was a probable overdose of lithium and possibly Thorazine.

   
   

8. Respondent treated the drug toxicity during Patient 2's three-day hospitalization. Respondent became increasingly lucid during his hospitalization, and Respondent successfully managed the event of drug toxicity.

   
   

9. Respondent tried to elicit from Patient 2 a medical and psychiatric history, but Patient 2 would or could not cooperate. Respondent was unable to identify any relatives or friends of Patient 2, including the person who brought him to the hospital. Respondent could not even find out where Patient 2 obtained the lithium and Thorazine that he was taking.

   
   

10. Respondent treated the altered mental status that Patient 2 presented. There was no need during the short period of hospitalization to obtain a psychiatric consultation. Resumption of psychotropic medication so soon after the drug intoxication would have been imprudent.

    
    

11. Consistent with the policy of Lykes Memorial Hospital, which has no psychiatrists on staff, Respondent referred Patient 2 to the Hernando County Mental Health Center. He directed Patient 2 not to take lithium or Thorazine until instructed to do so by a psychiatrist or other physician at the mental health center. Respondent and the hospital ensured that Patient 2 got to the mental health center following discharge.

    
    

12. With respect to Patient 2, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances.

    
    

13. Patient 3 was a 49 year old male who was admitted to Lykes Memorial Hospital on or about February 5, 1988, with complaints of difficulty breathing. At the time, Patient 3 had been diagnosed with lung cancer that had metastasized to the spine and had undergone maximum radiation therapy. He was paralyzed from the waist down and in the last year of his life. He steadfastly refused all diagnosis or treatment involving radiation. By his own request, Patient 3's standing medical orders were "Do Not Resuscitate." He only wanted to be made comfortable.

    
    

14. The acute illness resulting in Patient 3's admission was pulmonary congestion. There is some likelihood that the symptoms of infectious bronchitis

    with which he presented at time of admission were exacerbated by his chronic obstructive pulmonary disease.

    
    

15. There is a possibility that some of Patient 3's discomfort was caused by mucous plugs in the lungs, whose capacity had already been diminished by the other diseases. However, mucous plugs were not affecting Patient 3 at the time of discharge. Respondent discussed with Patient 3 the possibility of cleaning out his lungs with a bronchoscope, but Patient 3 refused.

    
    

16. Respondent treated Patient 3's discomfort with oxygen, diuretics, and increased steroids. Patient 3 had been receiving steroids due to a spinal disorder resulting from the cancer. Patient 3 was already receiving bronchodilators at the time of his admission.

    
    

17. There is also a possibility that Patient 3 suffered from superior vena cava syndrome in which one or more tumors would block veins of the thorax. However, diagnosis of the condition would have been invasive, and Patient 3 refused such interventions. Treatment of such a condition would likely have required radiation, and Patient 3 would not tolerate additional radiation treatment. Respondent discussed with Patient 3 the possibility of superior vena cava syndrome and the possible treatment, but Patient 3 declined this intervention.

    
    

18. Patient 3 received no EKG while in the hospital. The emergency medical services team transporting Patient 3 to the hospital performed a rhythm strip, which provides information about limited cardiac functions. Although Patient 3's potassium levels were slightly below normal at discharge, they had improved during hospitalization.

    
    

19. With respect to Patient 3, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances.

    
    

20. Respondent's medical records represent the bare minimum required by law to justify the course of treatment. Matters discussed with Patient 3 were not always recorded. Patient 3's decisions concerning diagnosis and treatment were likewise not always recorded. But, on balance, the medical records adequately documented the course of treatment of Patient 3 while under Respondent's care at the hospital.

    
    

21. Patient 4 was a 68 year old male who was admitted to Lykes Memorial Hospital on or about February 14, 1988, with complaints of a persistent cough and some gastric upset. He was suffering from exacerbation of chronic obstructive pulmonary disease.

    
    

22. Respondent appropriately treated Patient 4's conditions. Patient 4 experienced problems with certain medications, which interfered with his progress, but he was drinking and eating without difficulty prior to his discharge. X-rays taken at admission and discharge revealed no significant change in Patient 4's condition during his eight-day hospitalization.

    
    

23. At discharge, Respondent ordered Patient 4 to return for an office visit in two weeks. Patient 4's condition continued to improve following discharge.

24. With respect to Patient 4, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jursdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

26. Section 458.331(1)(t) provides that Petitioner may discipline a licensee in the event of:

    
    

    Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. . . .

    
    

27. Section 458.331(1)(m) provides that Petitioner may discipline a licensee in the event of:

    
    

    Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test

    results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

    
    

28. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

29. Petitioner has not proved that Respondent violated the cited statutes concerning minimum standard of care or recordkeeping.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Business and Professional Regulation enter a final order dismissing the administrative complaint.

ENTERED on October 11, 1993, in Tallahassee, Florida.

ROBERT E. MEALE

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 on October 11, 1993.

APPENDIX

Treatment Accorded Proposed Findings of Petitioner 1-5: adopted or adopted in substance.

6: rejected as unsupported by the appropriate weight of the evidence. 7-12: adopted or adopted in substance.

13: rejected as unsupported by the appropriate weight of the evidence. The pain or discomfort had lessened considerably.

14: adopted.

15: rejected as unsupported by the appropriate weight of the evidence. 16-17: rejected as irrelevant and unnecessary.

18: rejected as unsupported by the appropriate weight of the evidence.

1. and 21-23: adopted or adopted in substance.

2. and 24: rejected as unsupported by the appropriate weight of the evidence. 25: adopted except that Respondent and the hospital ensured that the patient was referred to a mental health treatment center as soon as his condition was sufficiently stabilized to allow discharge from the hospital.

26: rejected as unsupported by the appropriate weight of the evidence. 27: adopted or adopted in substance.

28: rejected as unsupported by the appropriate weight of the evidence. The record does not suggest how a psychiatrist would obtain a history from an unwilling patient.

29: adopted with respect to the period of the hospitalization through the point at which the patient could recommence active psychiatric treatment.

30: rejected as unsupported by the appropriate weight of the evidence. Respondent duly referred the patient to an appropriate facility for the treatment of the patient's underlying mental health problems.

31: rejected as recitation of evidence and subordinate.

32: rejected as legal argument and unsupported by the appropriate weight of the evidence.

33-36: adopted or adopted in substance.

37-38: rejected as unsupported by the appropriate weight of the evidence. 39: rejected as subordinate.

40: rejected as unsupported by the appropriate weight of the evidence. 41-43 (through third sentence): adopted or adopted in substance.

43 (fourth sentence): rejected as unsupported by the appropriate weight of the evidence with respect to this patient.

44-48 (first sentence): adopted or adopted in substance.

48 (except first sentence)-50: rejected as irrelevant and subordinate. 51-52 and 54: adopted or adopted in substance.

53: rejected as unsupported by the appropriate weight of the evidence. 55-56: adopted or adopted in substance.

57-59: rejected as unsupported by the appropriate weight of the evidence. Treatment Accorded Proposed Findings of Respondent

1-6: adopted or adopted in substance. 7: rejected as legal argument.

8: rejected as recitation of evidence.

9: rejected as legal argument and recitation of evidence. 10: adopted or adopted in substance.

11: rejected as recitation of evidence.

12: rejected as recitation of evidence and subordinate. 15: adopted or adopted in substance.

16 (first sentence): rejected as legal argument.

16 (second and third sentences): adopted or adopted in substance.

1. (fourth sentence): rejected as recitation of evidence.

2. (first sentence): rejected as legal argument.

17 (second sentence): adopted or adopted in substance.

17 (third sentence)-19 (first sentence): rejected as recitation of evidence.

19 (second sentence): adopted or adopted in substance. 20: rejected as recitation of evidence.

21: rejected as legal argument and recitation of evidence. 22: rejected as legal argument and recitation of evidence. 23: rejected as subordinate.

24: rejected as recitation of evidence. 27: adopted or adopted in substance.

28-31 (second sentence): rejected as legal argument and recitation of evidence.

31 (third sentence): adopted or adopted in substance.

32-34: rejected as legal argument and recitation of evidence. 38: adopted or adopted in substance.

39-43: rejected as legal argument, recitation of evidence, and subordinate.

COPIES FURNISHED:

Dorothy Faircloth Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Barbara Whalin Makant, Staff Attorney

Department of Business and Professional Regulation Northwood Center, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399-0972

William B. Taylor, IV Macfarlane Ferguson

P.O. Box 1531 Tampa, FL 33618

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.

Docket for Case No: 92-006553

Orders for Case No: 92-006553