STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE )

)

Petitioner, )

)

vs. ) CASE NO. 94-2664

)

ALFRED O. BONATI, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on July 13, 1994, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Hugh R. Brown, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Steven A. Rothenberg, Esquire

Agency for Health Care Administration 9325 Bay Plaza Boulevard

Tampa, Florida 33610

For Respondent: Paul B. Johnson, Esquire

Johnson & Johnson Post Office Box 3416 Tampa, Florida 33601

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint.

PRELIMINARY MATTERS

By Administrative Complaint, filed in this case on April 12, 1993, Petitioner seeks to discipline Respondent's license as a physician in Florida, alleging that Respondent is guilty of gross or repeated malpractice as a result of his treatment of Patient #1, as alleged therein, in violation of Section 458.331(1)(t), Florida Statutes. Thereafter, Respondent denied the allegations and demanded formal hearing and this hearing followed.

At the hearing, Petitioner presented the testimony of Drs. Steven Nadler and Joseph Visconti, experts in the field of general orthopedic surgery, and introduced Petitioner's Exhibits 1 through 7. Respondent testified in his own behalf and introduced the testimony of Francine Sutton, a licensed practical nurse, Joyce Chacon, a registered nurse, and Dr. Alexander Angelides, an expert in orthopedic surgery specializing in hand surgery. Respondent also introduced Respondent's Exhibits A through E.

A transcript was provided and subsequent to the hearing, both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Board of Medicine, through the Agency For Health Care Administration, and formerly the Department of Business and Professional Regulation, has been the state agency in Florida responsible for the regulation of the practice of medicine and the licensing of physicians in this state. Respondent has been a physician licensed in Florida under license number ME 003824.

   
   

2. Starting on January 12, 1988 and continuing thereafter until on or about March 16, 1988, Respondent treated Patient #1 for a condition known as Dupuytren's Contracture of the left hand. This conditions results in the thickening of scar tissues and contracture of fibrous bands in the palm and fingers which pulls the fingers into the palm and constricts their ability to flex or straighten out.

   
   

3. Patient #1 had suffered from this condition since 1982. In 1984, a surgeon in New Jersey performed Dupuytren's Contracture release surgery on the patient's right hand, but the results were not altogether satisfactory.

   
   

4. Respondent first saw Patient #1 on January 12, 1988. At this initial visit, Respondent discussed the implications of the proposed surgical procedure and advised the patient of the possible adverse consequences thereof. He noted that because the patient had delayed seeking treatment for the left hand, there was a strong possibility of complications as a result of surgery which could involve nerve damage and infection in addition to a possibility of vascular damage and necrosis of the tissue of the hand.

   
   

5. On February 10, 1988, Respondent performed a Dupuytren's Contracture release on the patient's left hand at the Gulf Coast Orthopedic Center, (GCOC). This surgery is a complicated, delicate and difficult procedure which in the instant case, was made even more difficult by the extent of the existing contracture of the patient's hand.

   
   

6. After the completion of the surgery, Respondent placed Patient #1 on Keflex, an antibiotic, and also prescribed Darvocet for pain. Respondent saw Patient #1 again on February 11, 1988. At this time, the patient was complaining of pain in the hand and of the tightness of the bandage. Respondent examined the wound at this time, cleaned it, placed a plastic platform splint on the hand and re-bandaged it. The patient was also prescribed Percodan for pain and advised to continue the Keflex at a 1,500 mg/day dosage.

7. Patient #1 returned to Respondent again on February 12, 1988, still complaining of pain and that the bandage was too tight. After again examining the hand, Respondent re-bandaged it, placing gauze between the patient's fingers and the splint. He also gave the patient another prescription for Percodan for the pain.

   
   

8. On February 17, 1988, the patient again came to the Respondent's office for his third postoperative checkup. When Respondent removed the bandage, he noticed a small greenish area on the palm which was exuding what appeared to be white pus. Respondent thoroughly cleaned the wound by placing the hand in a whirlpool bath of water and Betadine solution for approximately 45 minutes. He did not culture the green area or the white exudation. When he released the patient that day, however, he increased the Keflex dosage to 2,000 mg/day but refused to give him a prescription for additional Percodan for the pain. Instead, he told him to take extra strength Tylenol. He also told the patient to keep the hand elevated but did not suggest the patient call in the event of pain.

   
   

9. Respondent did not see Patient #1 again until February 24, 1988 even though the pain had increased during that period. The patient, however, did not call the Respondent to complain, believing the increase in pain was the result of the removal of the prescription for Percodan and the substitution of a lesser strength substance, Tylenol, therefor. The patient assumed, from the Respondent's prior comments, that the pain was normal and to be expected.

   
   

10. When Respondent saw Patient #1's hand again on February 24, 1988, he became excited because it appeared there was infection in the left palm which had spread to the PIP joint of the middle finger at which point there was some necrosis. Respondent appeared upset because the Patient had not called him when the pain continued or increased. Patient #1's wife had asked that the patient do so, but the patient decided to wait until the next scheduled appointment on February 24, 1988.

    
    

11. At this time, Respondent removed the sutures from the patient's hand and irrigated the wound with a mixture of saline solution and an antibiotic, Kepsol. A culture was also taken at this time. Since Respondent did not have hospital admitting privileges in the area, he arranged through Dr. Alea, an associate in his clinic who did have such privileges, to have Patient #1 admitted to Bayonet Point Hospital for treatment of the infection. The treating physician there was Dr. K. Sundaresh, an infectious disease specialist. The admission was on February 24, 1988.

    
    

12. Dr. Sundaresh placed Patient #1 on prolonged antibiotic treatment, obtained a bone scan to document any infection, and directed debridement, incision and drainage of the wound. The bone scan report indicated that Patient #1 "most likely" had developed osteomyelitis, a bone infection, at the base of the middle finger on the left hand. X-rays taken around the same time, on March 1, 1988, revealed findings consistent with osteomyelitis.

    
    

13. Following the hospital admission, Respondent departed for Arizona for three days to attend a previously scheduled medical seminar, returning on February 27, 1988. While he was gone, however, Respondent spoke daily with Patient #1 by telephone and consulted with the physicians who were treating him. Dr. Alea suggested that Patient #1 be examined by another orthopedic physician, Dr. Moss, but when Dr. Moss came to see Patient #1 in the hospital, he was told the patient had already seen Respondent. The consult report prepared by Dr. Moss reflects no consult was had because the patient "wants treatment as now

    arranged under Dr. Bonati." Records of GCOC indicate that on March 1, 1988, Respondent spoke with patient #1's daughter by telephone indicating that if the patient did not come to the clinic that day, he would be released from Respondent's care. In fact, the patient did go to see Respondent on March 1 and 2, 1988 on pass from the hospital, but claims he did not refuse treatment by Dr. Moss.

    
    

14. When Respondent saw Patient #1 in his office on March 1, 1988, after noticing a greenish material on the patient's left palm which he thought might be pseudomonas, he elected to continue the antibiotic treatment that was initiated in the hospital. When the patient was released from the hospital on March 4, 1988, the wound was healing well. Dr. Sundaresh arranged for the patient to continue the intravenous antibiotic treatments through a home nursing services. The final diagnosis at the time of discharge was osteomeleyitis of the middle finger of the PIP joint on the left hand due to pseudomonas aeruginosa infection.

    
    

15. Respondent saw Patient #1 in his office on March 7, 9, and 16, 1988, after the patient's discharge from the hospital. The patient was scheduled for another visit on March 22, 1988, but cancelled that appointment and also elected to discontinue the physical therapy Respondent had prescribed for him at GCOC. The hospital records show that while there, Patient #1 received daily physical therapy treatments consisting of whirlpool treatments to the hand and sterile dressings, starting on his admission on February 24, 1988, but no range of motion exercises. The physical therapy prescribed at GCOC by Respondent starting on March 8, 1988 included range of motion exercises which he continued until March 15, 1988. At the time of the last visit, on March 16, 1988, Respondent noted that the patient's wounds were healing well, but there was some limited range of motion.

    
    

16. One of Petitioner's experts, Dr. Nadler, a board certified orthopedic surgeon with over 17 years experience, who is in practice with Dr. Angelides, to whom he refers all his hand surgery cases, opined that the standard of care for orthopedic surgery such as performed here by Respondent would be for the surgeon to have the ability to admit and follow the patient in a hospital if complications should arise. At very least, the surgeon should have the ability to make arrangements for another orthopedic surgeon to follow the patient in his absence.

    
    

17. According to Dr. Nadler, it is not at all unusual for infection to occur in Dupuytren's Contracture release surgery. He concluded that Respondent fell below the standard of care when he performed a complicated surgical procedure on Patient #1 without having the personal ability to admit his patient to a hospital or to follow his patient's progress in the hospital in the event complications, such as an infection, should occur. He also concluded that Respondent's failure to have another orthopedic surgeon available to follow the patient while in the hospital was below standards as well. This opinion was shared by Petitioner's other expert, Dr. Visconti, a board certified orthopedic surgeon who, by his own admission, however, is not a hand surgeon specialist.

    
    

18. Respondent's expert, Dr. Angelides, a board certified orthopedic surgeon who specializes exclusively in surgery to the hand and upper extremity, indicated that the presence of a green wound which exudes pus is consistent with infection. The standard of care for treating such an infection consists of cleaning the wound, obtaining cultures of the suspected infection, and seeing the patient again within a day or two for follow-up examination. In Angelides' opinion, Respondent's leaving the bandage on Patient #1's hand from the time of

    surgery on February 17 through February 24, without taking it off to check on the course of infection was not the way he would have handled the situation. However, he did not go so far as to state the Respondent's failure to do so was inappropriate, and he could find no impropriety in the way Respondent managed this case.

    
    

19. Recognizing that the case presented here was about as severe an example of Dupuytren's Contracture as can be seen, Dr. Angiledes opined that the result achieved by Respondent was quite good considering the severity of the problem. He was not put off by the development of necrosis here, accepting that as a common complication in cases of this nature. He was satisfied by Respondent's calling in an infectious disease specialist and with the continuation of antibiotics administration after discharge through home health care. In his opinion, the surgery was appropriate and the ensuing complications common. The admission of the patient through an intermediary was not, to him, inappropriate so long as, as here, the patient continued to be seen by an infectious disease specialist. In substance, Dr. Angelides could see no problems with this case that were not properly handled and nothing that could have been done that was not done.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. Petitioner contends that Respondent's failure to see Patient #1 for a period of approximately 1 week during the patient's recuperation from hand surgery, with the ensuing infection to the patient's hand; his performing surgery on the patient without having admitting privileges at a hospital to which the patient could be admitted by him in the event such admission became necessary; and his arranging for the patient's admission to the hospital without arranging for the patient to be seen by an orthopedic surgeon while there, constitutes a 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, in violation of Section 458.331(1)(t), Florida Statutes. The burden of proof in this case rests upon the Petitioner to establish the violations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

22. The evidence of record in this case regarding the actions taken by Respondent is, for the most part, not in controversy. It is clear that Respondent treated Patient #1, who was suffering from an acute Dupuytren's Contracture of the left hand and performed a surgical release procedure, the appropriateness of which and the degree of skill and care utilized in which are not contested.

    
    

23. The evidence also shows that Respondent saw the patient in the office on two successive days after the surgery. On each occasion he examined the wound, provided treatment as necessary, and redressed it. Respondent also saw the patient a week after the surgery, at which time he noted a slight greenish, pus exuding area on the palm which he had cleaned and treated and for which he increased the dosage of the antibiotic medication he had been prescribing for the patient.

24. Respondent did not see his patient for another week, during which time he heard from neither the patient or anyone on the patient's behalf. It appears, however, that during that week-long period, the patient experienced a great deal of pain in his hand for which his wife suggested he call or see the Respondent. The patient refused, however, assuming the pain was as a result of the withdrawal from Percodan and the substitution of a less powerful pain reliever. The evidence of record indicates Respondent did not tell the patient to call him during that week if he experienced pain, but it is unrealistic to believe a patient as old and experienced as this man was would not know to call or feel free to call if the pain were severe, especially in light of his wife's encouragement to do so.

    
    

25. When the patient came in for his regularly scheduled appointment, a week after the discovery of the green and pus exuding spot, Respondent discovered the full-blown infection for which he had the patient immediately treated at the clinic, and for which he arranged with an associate with hospital admitting privileges to have the patient admitted to the hospital. Upon admission, Respondent arranged for his patient to be seen by an infectious disease specialist, not an orthopedic surgeon.

    
    

26. Neither of Petitioner's experts, though both are orthopedic surgeons, has extensive experience in hand surgery of the kind possessed by either Respondent or his expert. Both Dr. Nadler and Dr. Visconti are of the opinion Respondent's failure to see the patient for that week in question is below standard practice. They also believe that because the infection had the potential to become, and may have developed into osteomyelitis, it was below standards for Respondent not to have insured the patient was seen by an orthopedic surgeon while he was in the hospital. They further took the position that Respondent's performance of a Dupuytren's Contracture release procedure when he did not have admitting privileges at any hospital in the area is practice below standard.

    
    

27. Dr. Angelides, on the other hand, an orthopedic surgeon with extensive experience in, and a practice limited to, surgery of the hand and upper extremities, including the procedure involved here, could find no fault whatever in the actions of the Respondent and expressed wonder at the fact an issue was being made.

    
    

28. Taken together, in light of the fact that the Respondent had seen the patient three times after the surgery and had, on two of those occasions noted nothing untoward and on the third, took action to remedy what he did observe; and in light of the fact that the patient at no time during that period contacted Respondent or the clinic to complain of pain; the evidence is not clear and convincing that Respondent was guilty of substandard practice. By the same token, the testimony of the Petitioner's experts, in light of the other evidence of record, does not clearly and convincingly establish that Respondent's failure to arrange for the patient to be seen by an orthopedic surgeon while in the hospital, especially since an infections disease specialist was seeing and treating him, constituted substandard practice.

    
    

29. The question of Respondent's performing surgery in his clinic, when he did not have admitting privileges at a hospital in the area, is somewhat more troubling, however. The potential for tragedy is great. Patient #1 was an older man concerning whom medical difficulties could be more extensive. To be sure, the evidence shows Respondent took a history from the patient before performing the operation and, thereby, could have been prepared for most

    contingencies, but it would have been less troublesome had he, himself, had the authority to admit the patient to a hospital, in the event it became necessary, on an emergency basis.

    
    

30. On the other hand, Respondent had, working with him in the clinic, at least one other physician who had hospital admitting privileges and who, it is seen, was able to arrange for Respondent's patient to be hospitalized when the need arose on a non-emergency basis. Both Drs. Nadler and Visconti opine this was not within standards, yet Dr. Angelides, the expert of the three who had the most experience with surgery of this nature, took an opposing posture. Based on the state of this evidence, it cannot, therefore, be concluded that the evidence on this point met the clear and convincing test to establish that Respondent's practice was below standard.

    
    

    RECOMMENDATION

    
    

    Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

    
    

    RECOMMENDED that a Final Order be entered in this case finding Respondent not guilty of the offenses alleged in the Administrative Complaint and ordering it dismissed.

    
    

    RECOMMENDED this 22nd day of August, 1994, in Tallahassee, Florida.

    
    

    
    

    ARNOLD H. POLLOCK

    Hearing Officer

    Division of Administrative Hearings The DeSoto Building

    1230 Apalachee Parkway

    Tallahassee, Florida 32399-1550

    (904) 488-9675

    
    

    Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1994.

    
    

    APPENDIX TO RECOMMENDED ORDER

    
    

    The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

    
    

    FOR THE PETITIONER:

    
    

    1. Accepted and incorporated herein.

    2. - 4. Accepted and incorporated herein.

5. - 7. Accepted and incorporated herein.

8. - 10. Accepted and incorporated herein.

11. - 13. Accepted and incorporated herein.

1. - 19. Accepted and incorporated herein.

   1. Accepted and incorporated herein.

   2. - 23. Accepted and incorporated herein.

24. & 25. Accepted and incorporated herein.

44. & 45. No more than recitations of evidence.

1. & 47. Accepted and incorporated herein.

   1. Rejected as a classification of Respondent's treatment as "inappropriate." The deposition cited as authority for that comment does not support it. However, the action described and the time frame in question are accurately noted.

   2. Accepted.

   3. Accepted as a recitation of the witness' testimony. Rejected as to the description "well supported."

   4. & 52. Accepted as restatements of testimony.

      1. Accepted.

      2. See "50" above.

      3. Rejected as not supported by clear and convincing evidence.

         
         

         FOR THE RESPONDENT:

         
         

         1. Accepted and incorporated herein.

         2. Accepted.

         3. & 4. Accepted and incorporated herein.

1. - 9. Accepted and incorporated herein.

   1. Accepted and incorporated herein.

   2. Not an evidentiary Finding of Fact.

   3. - 14. Accepted as restatements of testimony.

15. - 18. Accepted as restatements of testimony.

19. & 20. Accepted as restatements of testimony.

21A. - O. Not proper Findings of Fact. These are more Proposed Conclusions of Law which are drawn by the Hearing Officer independently in that portion of the Recommended Order.

COPIES FURNISHED:

Hugh R. Brown, Esquire Agency for Health Care

Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Steven A. Rothenberg, Esquire Agency for Health Care

Administration

9325 Bay Plaza Boulevard Tampa, Florida 33610

Paul B. Johnson, Esquire Johnson & Johnson,

Post Office Box 3416 Tampa, Florida 33601

Sam Power Agency Clerk

Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Harold D. Lewis, Esquire Agency for Health care

Administration

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Dr. Marm Harris Executive Director Board of Medicine

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 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 93-002664

Orders for Case No: 93-002664