STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0929

)

JOHN P. CHRISTIE, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Michael M. Parrish, conducted a formal hearing in this case on July 1, 1993, at Miami, Florida. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Francesca Plendl, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Mark A. Dresnick, Esquire

Grand Bay Plaza, Suite 201 2665 South Bayshore Drive Miami, Florida 33133

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of a violation of Section 458.331(1)(t), Florida Statutes.

PRELIMINARY STATEMENT

At the commencement of the formal hearing on July 1, 1993, the Respondent filed with the Hearing Officer a document titled Respondent's Renewed Motion to Quash Probable Cause Determination and To Dismiss Administrative Complaint, With Supporting Memorandum of Law. By notice filed on August 10, 1993, the Respondent withdrew the renewed motion, and no ruling will be made on that motion.

During the course of the formal hearing on July 1, 1993, the Petitioner presented the testimony of three witnesses and also offered numerous exhibits, some of which comprised the deposition testimony of other witnesses. The

Respondent testified on his own behalf and, like the Petitioner, also offered numerous exhibits, some of which comprised the deposition testimony of other witnesses.

At the conclusion of the hearing the parties requested, and were granted,

30 days from the filing of the transcript within which to file their respective proposed recommended orders. The transcript of the hearing was filed with the Division of Administrative Hearings on July 21, 1993, and thereafter all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all proposed findings of fact submitted by the parties are contained in the Appendix hereto. The Hearing Officer has to a large extent been persuaded by the versions of the facts and the law advanced by the Respondent and has, therefore, drawn heavily from the Respondent's proposals in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent, John Christie, M.D., is and has been a physician licensed to practice medicine in the State of Florida at all times material to this proceeding. Respondent's license number is ME 0023493.

   
   

2. Dr. Christie is a Board-certified general surgeon who specializes in colon and rectal surgery. He received his M.D. degree from the University of Cincinnati in 1965. Dr. Christie is a Clinical Associate Professor of Medicine at the University of Miami School of Medicine.

   
   

3. The patient whose care is at issue in this case, H. M., was at the time seen by Dr. Christie a 77-year old male with cancer of the colon and advanced cirrhosis of the liver. H. M. was operated on by Dr. Christie on two occasions. The first occasion was January 13, 1988, and the second occasion was February 10, 1988. The first surgery performed by Dr. Christie on patient H. M. was a sigmoid resection, also known as a colectomy. This procedure involved the removal of a short segment of the colon, ensuring that there was adequate clearance on both sides of the cancerous tumor, and then connecting the open ends of the colon, making an anastomosis.

   
   

4. In addition to the Respondent, other members of the surgical team present during the January 13, 1988, surgery on patient H. M. were: Dr. Joseph Marrazzo, a Board-certified colon and rectal surgeon; an anesthesiologist; a house physician; a scrub nurse; and a circulating nurse. The surgery lasted one hour and twenty minutes.

   
   

5. During the January 13, 1988, surgery, Dr. Christie was required to turn away from the operating table and divert his attention to another table for the purpose of dissecting a six to eight inch colon specimen removed from H. M. to ensure that there was adequate clearance from the cancerous tissue. During the time Dr. Christie was away from the operating table performing the dissection, Dr. Marrazzo and the rest of the surgical team remained at the operating table with patient H. M. This dissection took several minutes. At other times during the surgery, Dr. Christie may have momentarily turned away from the patient to get a retractor.

6. The operative report on H. M.'s January 13, 1988, sigmoid resection evidences the fact that H. M.'s abdomen was quite fatty and oozing serous material. The report also indicated that H. M. had cirrhosis of the liver and ascites, which is consistent with a messy abdominal cavity. Within this patient's abdominal cavity, the liver was in an advanced state of cirrhosis and the spleen was enlarged. Within the surgical area were numerous organs which also included the stomach, kidneys, bladder, and approximately 25 feet of intestines and colon. The intestines and retro-peritoneum were fatty making for protuberant tissues in the abdomen.

   
   

7. In January of 1988, it was the policy of all South Florida hospitals to require a post operative count of all sponges, including laparotomy sponges (soft cotton absorbent white sponges used to absorb fluid or pack intestines), as well as a count of all surgical instruments, and for hospital personnel to report the counts to the surgeon.

   
   

8. The reason that all South Florida hospitals require sponge and instrument counts is because it is easy for these items to be left inside of the patient, as they can be camouflaged inside of the abdomen by the abdominal tissue, serum, and blood.

   
   

9. Since it is not uncommon for laparotomy sponges to be camouflaged inside a patient, the sponges are designed with a radio opaque thread so that when a surgeon is unable to locate a laparotomy sponge within the abdominal cavity of the patient, an x-ray machine can be used to locate the missing sponge.

   
   

10. In the January 13, 1988, surgery on patient H. M., there was a laparotomy sponge count and an instrument count which were reported by the nurses as correct.

    
    

11. In January of 1988, no hospital in the South Florida community, including South Miami Hospital, had a policy of counting surgical towels, and accordingly the standard of care did not require a post operative count of surgical towels. In this regard it is noted that surgical towels are not normally placed inside the abdominal cavity of a patient during surgery. It is the Respondent's consistent practice to never place a surgical towel inside a patient's body.

    
    

12. At no time during the January 13, 1988, operation on patient H. M. did the Respondent, Dr. John Christie, use a folded surgical towel.

    
    

13. At no point during the January 13, 1988, surgery on patient H. M., did Dr. Christie place a surgical towel inside patient H. M., observe a surgical towel inside patient H. M., or instruct any member of the surgical team to place a surgical towel inside patient H. M. There is no evidence in the record of this case as to how the folded surgical towel entered the abdominal cavity of patient H. M. It is possible it was placed there by one of the other members of the surgical team. Once inside an abdominal cavity, an object like a folded surgical towel can be very difficult to see and can be overlooked by a skillful surgeon exercising an appropropriate level of care. This is because a foreign body like a surgical towel will absorb fluids in the abdominal cavity and have a color and feel similar to the body parts in the cavity, making it difficult to detect even by a qualified surgeon who is proceeding in a manner consistent with the applicable standard of care.

14. On February 10, 1988, patient H. M. returned to South Miami Hospital with an abdominal picture of a partial bowel obstruction. A CT scan was done and confirmed the presence of a foreign body inside patient H. M.

    
    

15. A second surgery was performed on February 10, 1988, at which time a folded green surgical towel was removed from the abdominal cavity of patient H. M.

    
    

16. Immediately after the February 10, 1988, surgery on patient H. M., Dr. Christie notified the family of H. M. that a folded green towel had been found inside H. M., and Dr. Christie accepted responsibility as "captain of the ship."

    
    

17. On March 14, 1988, H. M. passed away due to a cardiac arrest as a consequence of liver, pulmonary, and renal failure, alcoholic cirrhosis, and abdominal abscess.

    
    

18. A civil malpractice suit was filed by the family of H. M., and was settled for the insurance policy limits with the recommendation and consent of the Respondent, Dr. John Christie.

    
    

19. The size of the folded towel was smaller than the size of an open laparotomy pad.

    
    

20. All of the medical care and treatment of the patient H. M. furnished by the Respondent was furnished "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."

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

22. The Department has the burden of proof in this proceeding. Since the Department has stipulated that it would not seek a suspension or revocation, the Department must carry that burden of proof by the greater weight of the evidence. Section 458.331(3), Florida Statutes.

    
    

23. The Administrative Complaint in this case charges, at paragraph 12, that:

    
    

    12. Respondent failed to practice medicine with a reasonable level of care, skill, and treatment in that he negligently allowed a surgical towel to enter Patient #1's open body, failed to notice said towel, and left said towel within Patient #1.

24. Paragraph 13 of the Administrative Complaint charges that the allegations quoted immediately above, in the context in which they occurred, constitute a violation of Section 458.331(1)(t), Florida Statutes (1988 Supp.). The cited statutory provision authorizes disciplinary action against a licensed medical doctor upon proof of the following acts:

    
    

    (t) 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. The board shall give great weight to the provisions of

    s. 766.102 when enforcing this paragraph.

    As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of

    $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross 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," shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.

    
    

25. Section 766.102, Florida Statutes, to which the Board has been directed by the Legislature to give great weight in cases involving paragraph

    (t) of Section 458.331(1), Florida Statutes (1988 Supp.), reads as follows, in pertinent part:

    
    

    (4) The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden

    of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the

    health care provider. However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

26. The record in this case does not contain any direct evidence of any specific act or omission by the Respondent that constitutes a departure from the applicable standard of practice, that standard being the "level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances." Therefore, the Petitioner's case rises or falls on the extent to which the presumption incorporated into the last sentence of Section 766.102(4), Florida Statutes, is applicable to an administrative prosecution for a violation of Section 458.331(1)(t), Florida Statutes (1988 Supp.). In this regard,

    
    

    Petitioner argues at page 9 of its proposed recommended order:

    
    

    If the "discovery of the presence of a foreign body," without any indication of fault, is prima facie evidence of negligence on the part of the health care provider, then it holds that it is also below the standard of care. The issues and the elements in the case at bar are similar to those in a civil malpractice case except that here, the Petitioner need not prove causation or harm. While the statute above is only one fact to be considered with all of the evidence, it

    is persuasive. It would be absurd for the state of the law to be that under the same set of facts a doctor has committed civil negligence, yet practiced within the standard of care.

    
    

27. Citing to McDonald v. Dept. of Professional Regulation, Board of Pilot Commissioners, 582 So.2d 660 (Fla. 1st DCA 1991), the Respondent argues that the presumption found in the last sentence of Section 766.102(4), Florida Statutes, cannot properly be applied in a disciplinary proceeding. The Respondent's reliance on McDonald, supra, is misplaced, because even in McDonald it was recognized that the Legislature could, by statute, properly authorize presumptions to be applied in administrative proceedings to carry the agency's burden of proof. See McDonald, supra, 582 So.2d at 663. See also Ayala v. Dept. of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985), and Greenwald v. Dept. of Professional Regulation, 501 So.2d 740 (Fla. 3d DCA 1987), in which application of the presumption recognized in Ayala, supra, was sustained on appeal.

    
    

28. Because the presumption contained in the last sentence of Section 766.102(4), Florida Statutes, is made applicable by legislative enactment, it is appropriate to apply that presumption to an administrative disciplinary proceeding under Section 458.331(1)(t), Florida Statutes (1988 Supp.). It must be noted, however, that the presumption created by the last sentence of Section 766.102(4), Florida Statutes, does not apply to every foreign object found in a patient. Rather, the operation of that presumption is limited to particular types of foreign bodies, those "such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical examination, or diagnostic procedures. . . ." The question of whether a surgical towel comes within the meaning of "other paraphernalia commonly used in surgical, examination, or diagnostic procedures" requires resort to the hoary rule of statutory construction known as "ejusdem generis."

29. The rule of ejusdem generis is described as follows in Smith v. Nussman, 156 So.2d 680 (Fla. 3d DCA 1963):

    
    

    Under the rule of ejusdem generis, where general words follow an enumeration of things by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or

    things of the same general kind or class

    as those specifically mentioned. Black's Law Dictionary, Fourth Edition, Dunham v. State, 140 Fla. 754, 192 So. 324.

    
    

    Substantially identical descriptions of the rule are found in such cases as Green v. State, 604 So.2d 471 (Fla. 1992); Sun Coast International, Inc. v. Dept. of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, 596 So.2d 1118 (Fla. 1st DCA 1992); Halifax Area Council on Alcoholism v. City of Daytona Beach, 385 So.2d 184 (Fla. 5th DCA 1980). To similar effect is the doctrine of "noscitur a sociis" discussed in such cases as DeSisto College, Inc. v. Town of Howey-In-The-Hills, 706 F.Supp. 1479 (M.D. Fla. 1989); State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So.2d 381 (Fla.

    1958); Dunham v. State, 192 So. 324, 140 Fla. 754 (Fla. 1940).

    
    

30. Although the matter is not entirely free from doubt, under the rule of ejusdem generis a surgical towel does not appear to come within the scope of the "other paraphernalia" encompassed by the last sentence of Section 766.102(4), Florida Statutes. This is because all of the items specifically mentioned in the last sentence of Section 766.101(4) are items which are routinely placed inside a patient's body during the course of major surgery, and it is clear from the testimony in this case that in normal usage surgical towels are not placed inside a patient's body. Inasmuch as a surgical towel does not appear to be within the class of items encompassed by the last sentence of Section 766.102(4), Florida Statutes, the presumption created by that statutory provision is not invoked by the discovery of a surgical towel in a patient.

    Such being the case, the presumption created by Section 766.102(4), Florida Statutes, does not operate in this case to assist the Petitioner in meeting its burden of proof. And there being no other proof sufficient to show that the Respondent failed to practice at the statutory level of care, the charges in this case should be dismissed.

    
    

31. Even if it were to be concluded that a surgical towel is within the scope of the paraphernalia encompassed by Section 766.102(4), Florida Statutes, the ultimate disposition of this case would remain the same, because the presumption created by that statute is a rebuttable presumption, and the evidence in this case is sufficient to rebut the presumption. In this regard it is specifically noted that the evidence establishes that the Respondent did not place any surgical towel inside patient H. M., that the Respondent did not direct anyone else to do so, that the Respondent did not see anyone else do so, and that the Respondent did not see a surgical towel inside patient H. M. at any time. It is also significant that it can be very difficult to see an object the size of a folded surgical towel once it is inside a patient's abdominal cavity. And as a final matter, the evidence demonstrates that in his treatment of patient H. M., the Respondent at all times employed "that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances."

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 27th day of August 1993 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-929

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by the Petitioner:

Paragraphs 1, 2, 3, 4, 5, 6, 7, and 8: Accepted in substance.

Paragraph 9: Accepted that the patient developed an abscess following the January 13, 1988, surgery. The proposal that the abscess resulted from the towel is rejected because the evidence in this case is insufficient to determine whether the towel caused the abscess.

Paragraphs 10, 11, 12, and 13: Accepted in substance.

Paragraph 14: Rejected as redundant in view of proposal in paragraph 13. Paragraph 15: Accepted in substance.

Paragraph 16: Rejected as either subordinate and unnecessary details or as irrelevant in view of the totality of the evidence.

Paragraphs 17 and 18: Rejected as subordinate and unnecessary details.

Paragraph 19: Accepted as literally true, but as also somewhat misleading inasmuch as the towel involved in this case was a folded towel. The measurements of the folded towel were 6 inches by 4 inches by one-half inch.

Paragraph 20: Accepted in substance.

Paragraphs 21 and 22: Rejected as either subordinate and unnecessary details or as irrelevant in view of the totality of the evidence.

Paragraph 23: Rejected as not supported by the evidence cited or by other evidence in the record. (It seems well settled in the record of this case that, depending on a large number of variables, a foreign object left inside a human body during surgery may or may not cause significant problems.)

Paragraph 24: Literally true, but irrelevant in view of the fact that it is not customary to place surgical towels inside the abdominal cavity.

Paragraphs 25, 26, and 27: Literally true, but again irrelevant in view of the fact that it is not customary to place surgical towels inside the abdominal cavity.

Paragraph 28: Literally true, but irrelevant in view of the fact that (a) the changes in procedure at South Miami Hospital were at the suggestion of the Respondent and (b) most other hospitals in the Dade County area still do not have a procedure for counting surgical towels as part of their operative procedure.

Paragraph 29: Rejected as not supported by the evidence cited and as contrary to the greater weight of the evidence. In this regard it is noted that the Petitioner has gone forward in this case with some very problematic evidence. It is very clear from the reports and deposition testimony of Dr.

Caster that any statement of his to the effect that the Respondent acted below the applicable standard of care was the result of some semantic confusion and was not the result of any opinion by Dr. Caster that the Respondent had engaged in any conduct that deviated from the applicable standard of care. The last sentence of Dr. Caster's letter of May 10, 1993, made his position quite clear when he wrote: "I do not believe that Dr. Christie fell below the standard of care in his treatment of this patient." The deposition testimony of Dr.

Santelices is even more problematic. On the key question, Dr. Santelices' answer consists of rambling double-talk, the bottom line of which is that even though he thinks "the standard of care was followed," he also thinks that leaving the towel behind "is not the standard of care." (See Deposition Transcript, pages 38-40.) It is clear from Dr. Santelices' testimony that his opinion is based on he assumption that if there was a bad result, there must have been a bad deed that caused the bad result. Such is not necessarily the case.

Paragraph 30: The first sentence is rejected as subordinate and unnecessary details. The second sentence is rejected as being incorrect; Dr. Santelices' opinion is inconsistent and confusing.

Paragraphs 31 and 32: Rejected as subordinate and unnecessary details. (Details such as these have been considered in deciding what findings of fact to make, but it would serve no useful purpose to include this type of subordinate details in the ultimate fact-finding.)

Paragraphs 33 and 34: Rejected as constituting argument regarding the credibility of witnesses, rather than proposed findings of the ultimate facts at issue. The Hearing Officer is not persuaded by the arguments advanced by the Petitioner in these paragraphs.

Paragraph 35: Rejected as constituting argument, rather than proposed findings of fact. The Hearing Officer is not persuaded by the argument advanced by the Petitioner in this paragraph.

Paragraph 36: Rejected as contrary to the greater weight of the evidence. Proposed findings submitted by the Respondent:

Paragraph 1: Rejected as constituting a conclusion of law, rather than a proposed finding of fact.

Paragraphs 2 and 3: Accepted in substance.

Paragraph 4: Rejected as subordinate and unnecessary details.

Paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,

22, 23, 24, and 25: Accepted in substance.

Paragraphs 26 and 27: Rejected as subordinate and unnecessary details.

Paragraphs 28, 29, and 30: Rejected as subordinate and unnecessary background information and as unnecessary summary of expert witness testimony. (The ultimate opinion expressed by the mentioned witness has been accepted and incorporated into the fact-finding in this Recommended Order.)

Paragraphs 31 and 32: Rejected as subordinate and unnecessary background information and as unnecessary summary of expert witness testimony.

Paragraph 33: Accepted in substance.

Paragraph 34: Rejected as subordinate and unnecessary background information.

Paragraph 35: Accepted in substance.

Paragraph 36: Rejected as subordinate and unnecessary anecdotal material.

More generalized findings have been made on the subjects addressed here.

Paragraph 37: Accepted.

Paragraph 38: Rejected as constituting a summary of expert witness testimony. (The ultimate opinion expressed by the mentioned witness has been accepted and incorporated into the fact-finding in this Recommended Order.)

Paragraph 39: Rejected as constituting argument about the expert witness testimony, rather than proposed findings of ultimate facts at issue.

Paragraphs 40, 41, 42, 43, 44, 45, 46, and 47: All rejected as subordinate and unnecessary details in view of other facts in this case and in view of recommended disposition of the case.

COPIES FURNISHED:

Francesca Plendl, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Mark A. Dresnick, Esquire Grand Bay Plaza, Suite 201 2665 South Bayshore Drive Miami, Florida 33133

Dorothy Faircloth, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 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 ten 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: 93-000929

Orders for Case No: 93-000929