STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-2665

)

ALFRED O. BONATI, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on April 27, 1994, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Francesca Plendl, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

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, Alfred O. Bonati's, license as a medical doctor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated November 3, 1992, the Department seeks to discipline Respondent's license to practice medicine in Florida, alleging repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent physician as acceptable under similar conditions and circumstances, in violation of Section 458.331(1), Florida Statutes. Respondent demanded formal hearing on the allegations and this hearing followed.

At the hearing, Petitioner presented the testimony of T.M.S., the Respondent's former patient, the treatment of whom gives rise to the Administrative Complaint herein; and Drs. Martin Silverstein and Gerald L.

Smolinsky, both orthopedic surgeons and experts in the field of orthopedic surgery. Petitioner also introduced Petitioner's Exhibits 1 through 10.

Respondent testified in his own behalf and presented, both by deposition and video tape, the testimony of Dr. Grafton F. Sieber, an orthopedic surgeon.

Respondent also introduced Respondent's Exhibits A and B, and D through I. Respondent's Exhibit C was offered but not admitted. After the close of the hearing, Respondent submitted the deposition testimony of Dr. Richard C. Smith, an orthopedic surgeon, which was received into evidence.

Subsequent to the hearing, Respondent filed a Motion to Open Testimony To Receive Additional Exhibits. This related to the offer, at hearing, of Respondent's Exhibit C, an Order of a Circuit Judge in another matter in which the judge granted a Motion For Protective Order prohibiting Dr. Smolensky from conducting an independent examination of a party to that suit. In his Order, the judge recited matters presented to him at the motion hearing which tended to indicate Dr. Smolensky was not even-handed in his approach to examinations regarding individuals involved in automobile negligence matters. At the instant hearing, counsel for Petitioner sought to support Dr. Smolensky by indicating the judge's Order had "effectively been rescinded."

Enclosed with Respondent's current motion is the Clerk of Court Docket regarding the suit in which Dr. Smolensky was prohibited from conducting his examination, which failed to show any recision of the court's Order. Also enclosed was the Petition to the District Court of Appeals for a Writ of Certiorari regarding the court's Protective Order, the Appeals Court's Per Curiam denial of the petition, and the circuit judge's Order judicially recognizing the Opinion.

In response to the Motion, Petitioner enclosed a portion of a transcript of a hearing in Circuit Court on a Motion For Disqualification of Dr. Smolensky in which the judge pointed out the doctor had testified as an expert in his court twice in the previous week. The judge made clear that his ruling on the Motion for Protective Order was based only on the evidence he heard at that hearing.

In substance, it would appear that Dr. Smolensky routinely appears as an expert medical witness for insurance defense firms. The case cited by Respondent related to a protective order to keep Dr. Smolensky from conducting an examination to a party in a negligence action. This is not the case here. Whereas in the other cases he was being asked to evaluate the extent of and expected duration of injury, in the instant case his expertise was sought on a question of professional performance. The requisite comparison to support disqualification cannot readily be seen. At worst, the matters offered in support of Respondent's objection may go to the weight to be given to Dr.

Smolensky's testimony but there has been no showing his testimony should not be received and considered in evidence. The Motion to Open Testimony is, therefore, denied and the prior ruling denying the offer of the prior Circuit Court Order, (Respondent's Exhibit C) is reaffirmed.

A transcript of the proceedings was provided and both counsel have 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, (Board), was the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent, Dr. Alfred O. Bonati, is licensed as a medical doctor in Florida, and holds license No. ME 0038324.

   
   

2. In November, 1984, T.M.S. was experiencing back problems when she was doing strenuous work in her home. On November 13, 1984, she sneezed and experienced a sharp pain in her low back and the back of both legs. She fell to the floor as a result, but subsequently got up and drove herself to work. Shortly thereafter, the pain increased and after several hours, she called her husband and asked him to take her home. When she got home, she called her family physician who scheduled her for an examination that day. The pain worsened, however, and when her husband called the doctor back to report this, he was advised to take her to the hospital where the doctor would meet them.

   
   

3. When Ms. S. arrived at the emergency room, the doctor took x-rays and examined her. Thereafter, he gave her a shot and a prescription for pain and sent her home for strict bed rest. She complied, but after being home only 10 minutes, experienced "terrible" back spasms. When her husband called the emergency room doctor about this, he advised bringing her to the hospital in an ambulance, and upon arrival, she was admitted.

   
   

4. At the hospital, Ms. S. was seen by her family doctor and two others he called in, an orthopedic surgeon and a neurologist. While Ms. S. was in the hospital, she underwent a CAT scan and was diagnosed as having a herniation at L 4-5, and a ballooning at L 3-4. She was released from the hospital with an order of six weeks strict bed rest and traction, and prescriptions for various medications. After four weeks with no improvement, she called her family physician who referred her to Dr. Bonati on December 15, 1984.

   
   

5. When Ms. S. went to her first office visit with the Respondent, she brought her x-rays and CAT scan results and outlined for him the sequence of events described above. Respondent conducted an examination of Ms. S. in his office, after which he told her she had a torn muscle, not a herniated disc. He indicated to her that with rest, the muscle would heal and the pain leave. In addition, however, he gave her an injection for pain.

   
   

6. Ms. S. saw Respondent two or three more times before her visit in April, 1985. On each visit, she told him the pain was not going away. In response, he told her to be patient and to continue to rest and use an electrical stimulator he had given her for pain - nothing else. When, at the April visit, some five months after she started seeing Respondent without relief, he suggested doing another CAT scan, she advised him then she had brought with her on her first visit the results of her CAT scan, and he then indicated he wanted to do a myelogram. Before this time, however, even though she had suggested other tests, he had declined to do any.

   
   

7. Ms. S. went to the hospital for three days in April, 1985 for the myelogram. Afterwards, Respondent told her the test showed two herniations, one at L 3-4 and one at L 4-5, and recommended surgery. He performed the surgery in July, 1985, delaying to that time because of his absence from the country. She claims to have been in constant pain the entire time.

8. Following the surgery, however, Ms. S. was in worse pain than before, experiencing pain in additional areas of her body. When Respondent came to see within an hour after she woke up, he appeared to be upset. He asked her then why she had not told him she had meningitis. Though she had never had that disease, he claimed her back was full of scar tissue.

   
   

9. When Ms. S. went to see Respondent again, to have the stitches removed, ten days after she was released from the hospital, She advised him of continuing and increased pain. He indicated the pain could be caused by several things: muscle relaxation, nerve reaction, or tendonitis which, he decided, was the actual cause of her pain. He told her to continue the electrical stimulation and the pain would go away. It never did though she continued to see him periodically and report pain.

   
   

10. In October, 1985, she again went to see Respondent, alarmed due to her constant pain. At this point, Respondent said he needed to do another myelogram, which he did, and afterwards told her it showed a herniated disc at L 4-5. He told her at this time she must have re-injured her back and recommended a second surgery. She agreed.

    
    

11. Respondent performed the second operation without any resultant change in her pain level. He indicated to her he had again seen a lot of scar tissue which he cleaned out and her spine was now perfect. Nonetheless, when she saw him again after her discharge from the hospital, she told him her pain still existed and was increasing. She told him she also was experiencing numbness in her foot and pain in her hip.

    
    

12. In December, 1985, Ms. S. called Respondent about her pain and he put her into the hospital for stronger pain medication and traction. At this time, she told him of a test she had heard of, magnetic resonance imaging, (MRI), and asked him about it. He advised her that he was familiar with it; that it was being done in St. Petersburg. That same day, he admitted her to the hospital where the test was to be administered. Ms. S. was put in traction and administered pain medication while she waited for the results of the MRI. The MRI staff had indicated to her that the results would be sent with priority to Respondent the same day the test was done, but Respondent's office personnel indicated it was not received. Finally, Ms. S.'s father picked up a duplicate copy of the MRI test results from the administering facility and delivered it to the Respondent.

    
    

13. That evening, Respondent came to Ms. S.'s hospital room, angry and agitated, and warned her against trying to sue him. At this point, she claims, she had never mentioned suit. He left her room and came back the next day. On that visit, he said he felt she was dissatisfied with him and needed to get a second opinion. He gave her some choices and she picked Dr. Day, on staff at Shands Hospital in Gainesville.

    
    

14. Ms. S. saw Dr. Day in January, 1986. When she went for her examination, she took her records to Dr. Day, but he did not look at them He recommended additional surgery which he did. When she woke up from that surgery, her pain was gone. She still has back problems, but attributes them to a weak back.

15. Dr. Martin Silverstein, an orthopedic surgeon and an expert in orthopedic surgery, reviewed the medical records pertaining to Ms. S.'s case and was present in the hearing room during her testimony. His review of the results of the CAT scan indicated a possible herniated disc. The symptoms described by Ms. Somers are consistent with that diagnosis.

    
    

16. While a CAT scan is of some diagnostic benefit, the myelogram is very helpful in diagnosing a herniated disc. His review of the myelogram done of Ms. S.'s spine in May, 1985 showed a prominent left side herniated disc at L 4-5 with some lesser effect on L 3-4. In the July, 1985 surgery, Respondent did not take out disc material. His procedure was to do a small incision at L 4-5 on the right side, (Dr. Silverstein felt this description of "right" side might be a typographical error), and get to the disc, but the record does not show Respondent removed any bone or tissue getting there. He noted scar tissue which he removed, and the records denote Respondent saw the disc to be intact. As a result, he irrigated and closed the wound properly. Dr. Silverstein categorized this procedure by Respondent as merely an exploration of a disc space and removal of adhesions. The patient's pain after surgery is consistent with a herniated disc.

    
    

17. The second myelogram showed persistence of a herniated disc at L 4-5 and a lesser bulge at L 3-4. This was no change to what was shown on the myelogram done prior to the first surgery. Nonetheless, the second surgery done by Respondent, in November, 1985, again did not remove any disc material.

    Again, the record shows Respondent saw lots of scar tissue, which he debrided, and saw the disc to be intact. Again, he merely irrigated and closed.

    
    

18. In Dr. Silverstein's opinion, the Respondent's first surgery did not take care of the problem in that he didn't remove the herniated disc. The Respondent's second surgery differed from his first only in that he approached from the right side instead of the left side, and both myelograms showed herniation on the left side. This was, in his opinion, improper.

    
    

19. During the patient's third surgery, by Dr. Day at Shands Hospital in January, 1986, the physician did a bona fide microdiscectomy, removing the ligamentum flavum. In doing so, he significantly increased exposure so he could see the problem better. This was a more adequate procedure and allowed him to see the herniated disc which he then removed. The patient's absence of pain after the surgery is consistent with removal of the disc.

    
    

20. According to Dr. Silverstein, had the disc not been removed it could have extruded and become an emergency problem. Also, the longer there is pressure on a nerve, the less likely it is to recover. The patient could be left with residual symptomology such as pain and numbness.

    
    

21. In Silverstein's opinion, Respondent's performance was not consistent with the standard of care for physicians which existed in 1984/1985 in that he failed to go far enough in these operations to find and remove the patient's problem which existed throughout that time. This is not to say that microdiscectomy, the procedure Respondent utilized in both the surgeries he performed, is not an accepted procedure. It is, even though Dr. Silverstein does not use it. Instead of using a microscope to examine the tissue within the incision, he uses a loup which, when combined with a somewhat more extensive incision, affords the physician a greater opportunity to identify the problem. It is in this failure to properly disclose the problem that Silverstein sees Respondent's failure, not merely the failure to achieve a favorable result.

22. To be fair, Dr. Silverstein admits the Respondent's decision to go micro on the first surgery was appropriate and his procedure was correctly done. Since he did not see a herniated disc, he did not do the discectomy, but the witness believes that had Respondent seen a herniation, he would have done the right thing. Here, however, since the myelogram showed herniation both times, Respondent was alerted to the actual condition. Myelograms are normally reliable and Dr. Silverstein knows of no incident where a myelogram showed pathology which did not actually exist when the surgeon got inside. Dr. Day's use of a midline incision large enough to disclose the problem, which permitted him to then approach the disc from the right side, was the correct way to treat the problem.

    
    

23. Dr. Smolensky concurs with the conclusions drawn by Dr. Silverstein. His review of the records indicates that the second myelogram shows an aggravation of the herniation of the disc over that which existed before the first surgery. In his second surgical report, Respondent stated he could see the ligamentum flavum. Had Respondent removed that in his first surgery, it would not have been there for the second, and since he did not remove it in the first surgery, he could not have repaired the problem then.

    
    

24. The records also show that Dr. Day removed a lesion that was so big, Dr. Smolensky cannot see how Respondent could have missed it unless he failed to remove the ligamentum flavum, and one cannot find any abnormality as suspected here without going past that. For these reasons, and because three weeks were allowed to go by without any action after the second surgery in which the abnormality was found, but primarily because Respondent did not extend his exploration far enough to discover the extent of the patient's problem, Smolensky is of the opinion Respondent's care did not meet the standards as they existed in 1984/1985.

    
    

25. Dr. Smolensky has no criticism of Respondent's management of the patient from when he first saw her, nor of his postoperative treatment after the first surgery. By the same token, he does not quarrel with Respondent's use of a micro procedure, if that is what, in fact, was used. His criticism rests with the Respondent's exposure. A surgeon is taught that exposure is the key to success. The more that can be seen, the better the result. There must be a balance against the increased risk of morbidity and instability. While Smolensky finds little to fault Respondent with as a result of the first procedure, he has definite problems with Respondent's performance in the second surgery, for the reasons noted above.

    
    

26. Respondent, a self-styled expert in arthroscopic surgery of the spine, who, he relates, lectures worldwide on the subject, began to use microsurgery because of the difficulties he had seen occur as a result of the use of laminectomy procedures. He, therefore, developed instrumentation and procedures which are now being used worldwide, and which, he claims, do less damage to the patient.

    
    

27. He believes, regarding the first surgery he performed on Ms. Somers , that when he was cleaning up all the inflammation and scar tissue, he pushed the bulging disc back in place. Before this, the patient had normal movement range, even though she complained of back pain. Therefore, he concluded she had only a low back strain which, he felt, could be controlled by rest and the use of the stimulator.

28. It is found, from the evidence, that in both operations Respondent performed on Ms. S., Respondent admits the possibility he did not remove enough of the ligamentum flavum. He asserts Ms. S.'s claims of continuing pain on the left side are not supported by the nurses' notes after the surgery which indicate that Ms. S. received only tylenol for her pain and was ambulatory. After that surgery, she was in the hospital for three days and came to his office somewhat later. At the time of her visit, he relates, she indicated her prior pain on the left side was gone and complained of pain on the right side and in her buttocks.

    
    

29. Midline disc surgery is, Respondent claims, a nightmare for surgeons and herniations are missed regularly. When he did the second surgery, he still could not see the problem. He did not make a larger incision in this second surgery because he believed the problem on the left side was solved and that the problem on the right was the same and could be corrected by the use of the smaller incision process. He claims that for him to make a larger incision would mean he was not then doing microsurgery which was what the patient had agreed to. On the basis of this evidence, it is clear that had he exposed more of the spinal column, he most likely would have seen the patient's problem, as Dr. Day did, and could have corrected it.

    
    

30. When the patient woke up in continuing pain after the second surgery, Respondent discussed a further surgery with her and her husband. He proposed to do a laminectomy, which he did not have permission to do during the prior operations, though he was somewhat reluctant to do it himself because he had already failed to solve the problem twice. He knew a laminectomy was appropriate for this patient but, being a micro surgeon, he claims to have been emotionally ill equipped to do it. The later surgery by Dr. Day at Shands corrected the problem. Respondent's post operative communications with Dr. Day indicate that as late as 1988, as a result of the last surgery, Ms. S. had an unstable back. This was the condition, Respondent claims, which often comes about as the result of laminectomy, and which he was trying to avoid by doing micro surgery.

    
    

31. Both Dr. Seiber and Dr. Smith, orthopedic surgeons who specialize in backs, examined the medical charts and records pertaining to Respondent's treatment of Ms. S.. They also reviewed the deposition given by Dr. Day and that doctor's records of his treatment of Ms. S. at Shands. They traced the course of Respondent's treatment of Ms. S. from when she first came to see him until the end. They both conclude that the Respondent failed to find the herniated disc which was present through both surgeries, but both Seiber and Smith opine the failure to find a herniated disc does not necessarily constitute a failure to afford the proper standard of care to the patient. As Seiber states, "Sometimes we miss the disk."

    
    

32. Based on their examination of all the relevant available material in this case, both Dr. Seiber and Dr. Smith concluded Respondent's failure to find the herniated disk in his operations of July, 1985 and November, 1985 did not constitute a failure to afford appropriate standard of care to his patient on either occasion, albeit a more extensive exposure during the second surgery would have been more prudent. Dr. Seiber has known Respondent for a number of years and, even since the operations on Ms. S., has sent him several patients for surgery. In fact, he has allowed Respondent to operate on him for a herniated disk at L 4-5, right side.

    CONCLUSIONS OF LAW

    
    

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

    
    

34. Petitioner seeks to discipline the Respondent's license as a medical doctor in Florida because, it alleges, he is guilty 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 in that he failed to repair a herniated disc after performing two separate surgeries. If proven, such misconduct would be in violation of Section 458.331(1)(t), Florida Statutes.

    
    

35. The burden of proof in this case is on the Petitioner to prove its allegation by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

36. The basic facts of this case are not in issue. Respondent was called upon to treat Ms. S. in 1985, for pain in her back which, based on a CAT scan and a myelogram, was related to a herniated disc at L-4 and L-5. He elected to perform miscro surgery on his patient, with her concurrence, and in performing a microdiscectomy on the left side in the pertinent area, discovered scar tissue and lesions which he believed were the cause of her pain. He removed this tissue and closed the incision without discovering the herniated disc which the prior CAT scan and myelogram had shown. This did not, however, resolve Ms. S.'s problem.

    
    

37. Some time later, when she continued to complain of back pain, similar but located elsewhere from the seat of the earlier pain, he did another myelogram which again indicated the herniated disc at L-4/5. Again, with the consent of his patient, he did another microdiscectomy, this time approaching from the right side rather than the left due to the location and nature of her subjective symptoms. For the second time he discovered scar tissue and lesions but not the herniation, and after removing the scar tissue, closed. This, too, did not relieve Ms. S.'s pain, and when she suggested a magnetic resonance imaging test, he agreed. This test apparently also revealed the herniation, but Respondent was reluctant to again operate since a more extensive procedure, a laminectomy, was indicated. Respondent was forthright with Ms. S. and recommended the matter be handled by another surgeon and, to his credit, assisted her in finding a qualified surgeon, Dr. Day. When Dr. Day performed his operation, opening more of the body area to examination, he immediately found the herniated disc, repaired it, and closed, which, it would appear, substantially relieved Ms. S.'s pain.

    
    

38. There is a divergence of opinion on the better way to accomplish back surgery. Respondent claims that the larger the incision made in the back, the more likely the surgeon is to create future instability in the back. This opinion is shared by a respectable body of surgeons. On the other hand, there is an equally valid opinion that without proper exposure, the ability to correct a defect is substantially diminished.

    
    

39. On balance, the evidence that Respondent, having once performed micro- surgery on his patient without success, and being confronted with another myelogram which clearly indicated there was a herniated disc involved, should

    have, on the second surgery, gone beyond repeating, on the opposite side, what had been shown to be an inadequate procedure for this patient, and his failure to do so constitutes a violation of Section 458.331(1)(t), Florida Statutes.

    
    

40. This leaves for resolution the issue of an appropriate penalty for the misconduct established. Petitioner suggests as an appropriate penalty a reprimand, an administrative fine of $5,000.00, probation for 2 years and a requirement for 30 extra hours of continuing medical education. The Department has promulgated a rule for the Board, Rule 21M-37.001(2), F.A.C., which provides a range of penalties for violations of the provision in issue here.

    The rule requires the Board to take into consideration certain factors in assessing penalty.

    
    

41. To be sure, medical malpractice is serious and often constitutes a danger to the public. It was, here, to Respondent's patient. However, the incident took place a long time ago and, though there is obviously some distaste among other practitioners for Respondent's practice, there is no evidence of any prior disciplinary action. He has practiced medicine in Florida for a considerable length of time and the evidence does not establish that the patient in issue here suffered any permanent injury as a result of Respondent's malpractice.

    
    

42. Clearly, a reprimand is appropriate as is the requirement for a period of probation. However, there is no evidence that Respondent's malpractice was financially motivated or that he was unjustly enriched by his misconduct. For that reason, it is not felt that a substantial fine, which would not benefit the patient, would serve any useful purpose.

RECOMMENDATION

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

RECOMMENDED that a Final Order be issued by the Board of Medicine finding that Respondent's treatment of this patient was in violation of the provision of Section 458.331(1)(t), Florida Statutes, and imposing a reprimand and probation for two years under such terms and conditions as the Board may require, including, if appropriate, a requirement for additional continuing medical education.

RECOMMENDED this 30th day of July, 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 30th day of July, 1994.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2664

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. - 4. Accepted and incorporated herein.

   1. Accepted.

   2. - 9. Accepted and incorporated herein.

      		10.	Accepted	and	incorporated	herein.
      11.	-	13.	Accepted	and	incorporated	herein.
      14.	&	15.	Accepted	and	incorporated	herein.
      16.	&	17.	Accepted	and	incorporated	herein.
      		18.	Accepted	and	incorporated	herein.
      19.	-	21.	Accepted	and	incorporated	herein.
      		22.	Accepted.
      23.	&	24.	Accepted	and	incorporated	herein.
      25.	&	26.	Accepted	and	incorporated	herein.
      27.	-	30.	Accepted	and	incorporated	herein.
      		31.	Accepted.

      1. Though framed by Petitioner in language directly tracking the terms of the regulatory statute allegedly violated, the proposed finding properly indicates that Respondent's management of this patient was improper and below a prudent level of care, skill, and treatment acceptable under similar conditions and circumstances.

      2. & 34. Accepted and incorporated herein.

1. & 36. Accepted and incorporated herein.

   1. Rejected.

   2. Accepted.

   3. Rejected.

FOR THE RESPONDENT:

1. & 2. Accepted and incorporated herein.

   1. Accepted and incorporated herein as appropriate.

   2. Accepted and incorporated herein.

   3. Accepted and incorporated herein.

   4. Accepted.

   5. Accepted and incorporated herein.

   6. Rejected to the extent Respondent was justified in assuming a similar operation on the other could properly address his patient's problem, or that the repetition of an identical procedure would be acceptable.

   7. - 11. Accepted and incorporated herein.

      1. Accepted.

      2. Accepted as a statement of Respondent's position and consistent with his testimony at hearing.

      3. & 15. Accepted.

16. - 18. Accepted.

1. - 21. Rejected as contra to the weight of the evidence.

   22. Rejected.

   COPIES FURNISHED:

   
   

   Francesca Plendl, Esquire Department of Business and

   Professional Regulation 1940 North Monroe Street

   Tallahassee, Florida 32399-0792

   
   

   Paul B. Johnson, Esquire Johnson & Johnson

   Post Office Box 3416 Tampa, Florida 33614

   
   

   Jack McRay

   Acting General Counsel Department of Business and

   Professional Regulation 1940 North Monroe Street

   Tallahassee, Florida 32399-0792

   
   

   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.

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

   
   

   AGENCY FOR HEALTH CARE ADMINISTRATION,

   BOARD OF MEDICINE,

   
   

   Petitioner, AHCA CASE NO. 89-13485 vs. DOAH CASE NO. 93-02665

   LICENSE NO. ME0038324

   ALFRED OCTAVIUS BONATI, M.D.,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on October 1, 1994, in Coral Gables, Florida, for consideration of the Hearing Officer's Recommended Order (Attached as App. A) in the case of Agency for Health Care Administration Board of Medicine v. Alfred Octavius Bonati, M.D. At the hearing before the Board Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney.

   Respondent appeared and was represented by Paul B. Johnson, Esquire. Upon consideration of the Hearing Officer's Recommended Order, the Respondent's Exceptions, Petitioner's responses thereto, and Petitioner's Motion to Increase Penalty, and after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:

   
   

   RULINGS ON RESPONDENT'S EXCEPTIONS TO FINDINGS OF FACT AND CONCLUSIONS OF LAW

   
   

   The Respondent filed exceptions, which are attached as App. B. Pursuant to Rule 61F6-18.004(2) and (3)(m), Florida Administrative Code, the Board reviewed each exception and ruled explicitly on each exception.

   
   

   1. Respondent's Exception to the Hearing Officer's statement of preliminary matters regarding allowing the testimony of Dr. Smolensky is rejected, as the credibility of the witness and weight to be given to the evidence is a matter within the purview of the Hearing Officer and not a matter for the Board to reconsider.

      
      

   2. Respondent's exception to the Hearing Officer's Finding of Fact Number 4, regarding the patient's testimony, is rejected as it goes to the credibility and weight of the evidence.

      
      

   3. Respondent's exception to the Hearing Officer's Finding of Fact Number 8, regarding the patient's testimony, is rejected as it goes to the credibility and weight of the evidence.

   4. Respondent's exception to the Hearing Officer's Finding of Fact Number 9, regarding the patient's testimony, is rejected as it goes to the credibility and weight of the evidence.

      
      

   5. Respondent's exception to the Hearing Officer's Finding of Fact Number 10, regarding the testimony of the patient and the Respondent, is rejected as it goes to the credibility and weight of the evidence.

      
      

   6. Respondent's exception to the Hearing Officer's Finding of Fact Number

      11 is rejected as the Hearing Officer's statement of facts regarding occurrences on October 13, 1985, is legally sufficient to describe factual findings of the Hearing Officer regarding the occurrences on that date.

      
      

   7. Respondent's exception to the Hearing Officer's Finding of Fact 12, regarding not making an additional finding regarding certain progress notes in hospital records, is rejected as irrelevant; there is no legal necessity in determining the material issues in this case to make such additional findings.

      
      

   8. Respondent's exception to the Hearing Officer's Finding of Fact 13, regarding an incident between the patient and the Respondent is rejected as the Hearing Officer specifically found that the matter was material and the record reflects that cross examination was terminated by the Respondent's attorney voluntarily, not by order of the Hearing Officer.

      
      

   9. Respondent's exception to the Hearing Officer's Finding of Fact 14, in which the Respondent states that the Hearing Officer did not make additional findings of fact regarding Respondent's opinion on why the patient had a weak back, in addition to the findings made regarding the patient's opinion of why he had a weak back, is rejected as the finding that was made is supported by competent and substantial evidence in the record and credibility of witnesses is a matter for the Hearing Officer, not the Board.

      
      

   10. Respondent's exception to the Hearing Officer's Finding of Fact 15 regarding review of a CAT scan, is rejected as the finding is supported by competent and substantial evidence in the record, specifically the testimony of expert Martin Silverstein, M.D., at pages 92 and 93 of the transcript.

       
       

   11. Respondent's exception to the Hearing Officer's Finding of Fact 16, regarding removal of scar tissue, is rejected as competent and substantial evidence in the record supports the Hearing Officer's finding that the matter in question was scar tissue, specifically the testimony of expert Martin Silverstein, M.D., at pages 93, 96 and 100 of the transcript and Exhibit 4.

       
       

   12. Respondent's exception to the Hearing Officer's Finding of Fact Number 18, regarding the testimony of expert Martin Silverstein, M.D., is rejected as it goes to the credibility of a witness.

       
       

   13. Respondent's exception to the Hearing Officer's Finding of Fact Number 19, regarding Dr. Day performing a microdiskectomy, is rejected as it goes to the credibility of a witness and as competent and substantial evidence in the record supports the Hearing Officer's finding that Dr. Day performed a microdiskectomy, specifically the testimony of expert Martin Silverstein, M.D. at page 106.

   14. Respondent's exception to the Hearing Officer's Finding of Fact Number 20, on the Hearing Officer's not making a finding on what was not testified to at hearing in regards to the patient's residual symptomology, is rejected as there was no legal necessity in determining the material issues of this case that the Hearing Officer make such findings.

       
       

   15. Respondent's exception to the Hearing Officer's Finding of Fact Number 21, regarding the manner in which Dr. Bonati fell below the standard of care, is rejected as it goes to the credibility of a witness and as competent and substantial evidence in the record supports the Hearing Officer's finding that Dr. Bonati fell below the standard of care as described, specifically the testimony of expert Martin Silverstein, M.D. at pages 111 and 141 of the transcript.

       
       

   16. Respondent's exception to the Hearing Officer's Finding of Fact Number 22, regarding the professional credentials and experience of expert Martin Silverstein, is rejected as it goes to the credibility of a witness.

       
       

   17. Respondent's exception to the Hearing Officer's Finding of Fact Number 23, regarding what weight the Hearing Officer should give to the testimony of expert Gerald Smolensky, M.D., is rejected as it goes to the credibility of a witness, a matter for the Hearing Officer and not the Board.

       
       

   18. Respondent's exception to the Hearing Officer's Finding of Fact Number 24, that the Hearing Officer should not rely on the testimony of expert Gerald Smolensky, M.D., is rejected as it goes to the credibility of a witness, a matter for the Hearing Officer and not the Board.

       
       

   19. Respondent's exception to the Hearing Officer's Finding of Fact Number 25, that the Hearing Officer should not accept the testimony of expert Gerald Smolensky, M.D., is rejected as it goes to the credibility of a witness.

       
       

   20. Respondent's exception to the Hearing Officer's Finding of Fact 27, regarding the Respondent's findings during the first surgery, is rejected as there is competent and substantial evidence in the record that supports the Hearing Officer's finding that the Respondent believed he pushed the disc back into place, specifically the testimony of the Respondent at page 165 of the transcript and in Exhibit 5.

       
       

   21. Respondent's exception to the Hearing Officer's Finding of Fact 28 is accepted in that there is no evidence in the record of such an admission by the Respondent.

       
       

   22. Respondent's exception to the Hearing Officer's Finding of Fact Number 29, that the Respondent should have exposed more of the patient's spine as Dr. Day did, is rejected, as it goes to the credibility of a witness.

       
       

   23. Respondent's exception to the Hearing Officer's Finding of Fact 30, regarding the Respondent's abilities, is accepted to the extent that the portion of Paragraph 30, which begins on Line 5 and provides "...but, without being a microsurgeon..." is rejected. The remainder of Paragraph 30 is accepted.

       
       

   24. Respondent's exception to the Hearing Officer's Finding of Fact 32, regarding the testimony of the Respondent's expert witnesses, is rejected as the finding is supported by competent and substantial evidence in the record, specifically the testimony of Grafton Sieber, M.D. at page 20 of Exhibit B and the testimony of Richard Smith, M.D. at page 28 of Exhibit J.

   25. Respondent's exception to the Hearing Officer's Conclusion of Law 36, regarding findings in the CAT scan and myelogram, is rejected because the Conclusion of Law is merely a restatement of facts supported by competent and substantial evidence in the record.

       
       

   26. Respondent's exception to the Hearing Officer's Conclusion of Law 37, regarding the Respondent's reluctance to operate, is rejected because the Conclusion of Law is a restatement of facts supported by competent and substantial evidence in the record.

       
       

   27. Respondent's exception to the Hearing Officer's Conclusion of Law 38, describing the "other side of the coin" regarding amount of exposure needed during back surgery, is rejected as it misstates the Hearing Officer's findings and there is competent, substantial evidence to support the Conclusion of Law that without proper exposure, the ability to correct a defect is substantially diminished.

       
       

   28. Respondent's exception to the Hearing Officer's Conclusion of Law 39, that the Respondent was justified in the manner he performed the second surgery, is rejected as there was, through expert testimony, competent and substantial evidence to support this Conclusion of Law.

       
       

   29. Respondent's exceptions to the Hearing Officer's Conclusions of Law 40, 41, and 42, regarding discipline, are rejected as the discipline is appropriate, except that based upon the mitigating factors in this case, that Respondent was attempting a less invasive procedure, the Reprimand should be changed to a Letter of Concern.

       
       

   30. Respondent's general exceptions to the Hearing Officer's Appendix, without detailing a basis for the exception, is rejected as redundant because those exceptions have been addressed by the specific exceptions presented above.

FINDINGS OF FACT

1. The Hearing Officer's Recommended Findings of Fact are approved and adopted except as amended above, and are incorporated herein by reference as the Findings of Fact of the Board in this cause.

   
   

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 establish that Respondent has violated Sections 458.331(1)(t), Florida Statutes, as charged in the Administrative Complaint.

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 hereby accepted and adopted, except that a Letter of Guidance rather than a Reprimand shall be issued.

WHEREFORE, it is found, ordered and adjudged that the Respondent shall receive a Letter of Concern, and that he shall be placed on two (2) years probation with the following terms:

1. Respondent shall comply with all State and Federal statutes, rules and regulations pertaining to the practice of medicine, including Chapters 455, 458, 893, Florida Statutes, and Rule 61F6, Florida Administrative Code.

   
   

2. Respondent shall appear before the Probation Committee of the Board of Medicine at the first Committee meeting after probation commences; at the last meeting of the Committee preceding scheduled termination of the probation; annually; and at such other times as requested by the Committee. Respondent shall be noticed by the Board staff of the date, time and place of the Committee meeting whereat Respondent's appearance is required. Failure of Respondent to appear as requested or directed shall be considered a violation of the terms of this Agreement, and shall subject the Respondent to disciplinary action.

   
   

3. In the event the Respondent leaves the State of Florida for a period of thirty days or more or otherwise does not engage in the active practice of medicine in the State of Florida, then certain provisions of Respondent's probation (and only those provisions of said probation) shall be tolled as enumerated below and shall remain in a tolled status until Respondent returns to active practice in the State of Florida. Respondent must keep current residence and business addresses on file with the Board. Respondent shall notify the Board within ten (10) days of any changes of said addresses. Furthermore, Respondent shall notify the Board within ten (10) days in the event that Respondent leaves the active practice of medicine in Florida.

   
   

4. In the event that Respondent leaves the active practice of medicine in this state for a period of thirty days or more, the following provisions of his probation shall be tolled:

   
   

   1. The time period of probation shall be tolled.

      
      

   2. The provisions regarding supervision, whether direct or indirect by another physician, included in paragraphs 6 through 9 below (where applicable).

      
      

   3. The provisions regarding preparation of investigative reports detailing compliance with this Stipulation. See paragraph 10 below.

   
   

5. In the event that Respondent leaves the active practice of medicine for a period of one year or more, the Board's Probationer's Committee may require Respondent to appear before the Probationer's Committee and demonstrate his ability to practice medicine with skill and safety to patients prior to resuming the practice of medicine in this State.

   
   

6. Respondent shall not practice except under the indirect Supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probationer's Committee. Absent provision for and compliance with the

   terms regarding temporary approval of a monitoring physician set forth in paragraph 8 below, Respondent shall cease practice and not practice until the Board's Probationer's Committee approves a monitoring physician. Respondent shall have the monitoring physician with him at his first probation appearance before the Board's Probationer's Committee. A failure of the Respondent or his monitoring physician to appear at the scheduled probation meeting shall constitute a violation of the Board's Final Order. Failure of-the Respondent or the monitoring physician to appear at the scheduled Probation Committee shall constitute a violation of this Order. Prior to approval of the monitoring physician by the Board's Probationer's Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Complaint and Final Order filed in this case. Prior to the approval of the monitoring physician by the Board's Probationer's Committee, Respondent shall submit to the Board's Probationer's Committee a current curriculum vitae and description of the current practice from the proposed monitoring physician. Said materials shall be received in the Board office no later than fourteen days before the Respondent's first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of a monitoring physician shall include:

   
   

   1. Submit semiannual reports, in affidavit form, which shall include:

      
      

      1. Brief statement of why physician is on probation.

         
         

      2. Description of probationer's practice.

         
         

      3. Brief statement of probationer's compliance with terms of probation.

         
         

      4. Brief description of probationer's relationship with monitoring physician.

         
         

      5. Detail any problems which may have arisen with probationer. Respondent shall be responsible for ensuring that the monitoring physician submits the required reports.

         
         

   2. Be available for consultation with Respondent whenever necessary, at a frequency of at least once per month.

      
      

   3. Review fifteen percent of Respondent's patient records selected on a random basis at least once every month. In order to comply with this responsibility of random review, the monitoring physician shall go to Respondent's office once every month. At that time, the monitoring physician shall be responsible for making the random selection of the records to be reviewed by the monitoring physician.

      
      

   4. Report to the Board any violations by the probationer of Chapter 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

7. The Board shall confer authority on the Chairman of the Board's Probationer's Committee to temporarily approve Respondent's monitoring physician. In order to obtain this temporary approval, Respondent shall submit to the Chairman of the Board's Probationer's Committee the name and curriculum vitae of the proposed monitoring physician. This information shall be furnished to the Chairman of the Board's Probationer's Committee by way of the Board of Medicine's executive director, within 48 hours after Respondent receives the Final Order in this matter. This information may be faxed to the Board of

   Medicine at (904) 487-9622 or may be sent by overnight mail or hand delivery to the Board of Medicine at the Agency for Health Care Administration, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399-0750. In order to provide time for Respondent's proposed monitoring physician to be approved or disapproved by the Chairman of the Board's Probationer's Committee, Respondent shall be allowed to practice medicine while approval is being sought, but only for a period of five working days after Respondent receives the Final Order. If Respondent's monitoring physician has not been approved during that time frame, then Respondent shall cease practicing until such time as the monitoring physician is temporarily approved. In the event that the proposed monitoring physician is not approved, then Respondent shall cease practicing immediately.

   Should Respondent's monitoring physician be approved, said approval shall only remain in effect until the next meeting of the Board's Probationer's Committee. Absent said approval, Respondent shall not practice medicine until a monitoring physician is approved.

   
   

8. In view of the need for ongoing and continuous monitoring Respondent shall also submit the curriculum vitae and name of an alternate monitoring physician to be approved by the Board or its Probationer' Committee. Such physician shall be licensed pursuant to Chapter 458, Florida Statutes, and shall have the same duties and responsibilities as specified for Respondent's monitoring physician during those periods of time which Respondent's monitoring physician is temporarily unable to provide supervision. Prior to practicing under the indirect supervision of the alternate monitoring physician, Respondent shall so advise the Board's Probationer's Committee in writing. Respondent shall further advise the Board's Probationer's Committee in writing of the period of time during which Respondent shall practice under the supervision of the alternate monitoring physician. Respondent shall not practice unless he is under the supervision of either the approved monitoring physician or the approved alternate.

   
   

9. Respondent shall submit semiannual reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:

   
   

   1. Brief statement of why physician is on probation.

   2. Practice location.

   3. Describe current practice (type and composition).

   4. Brief statement of compliance with probationary terms.

   5. Describe relationship with monitoring physician.

   6. Advise Board of any problems.

      
      

10. Respondent understands that during this period of probation, semiannual investigative reports will be compiled with the Agency concerning his compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine.

    
    

11. Respondent shall comply with the terms and condition of his criminal probation.

    
    

12. Respondent shall pay all costs necessary to comply with the terms of the Final Order issued based on this proceeding. Such costs include, but are not limited to, the costs of preparation of the investigative reports detailing compliance with the terms of the Final Order entered in this case, the cost of

analysis of any blood or urine specimens submitted pursuant to the Final Order entered as a result of this proceeding, and administrative costs directly associated with Respondent's probation. See Section 458.331(2), Florida Statutes.

This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Regulation

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 Agency for Health Care Administration 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.

DONE and ORDERED this 6th day of October, 1994.

BOARD OF MEDICINE

GARY E WINCHESTER, 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 Alfred Octavius Bonati, M.D., Gulf Coast Orthopaedic Institute, 7315 Hudson Avenue, Hudson, Florida 34667, Paul B. Johnson, Esquire, JOHNSON & JOHNSON, P.O. Box 3416, Tampa, Florida 33601, Arnold H. Pollock, Hearing Officer, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 6th day of October, 1994.

Marm Harris, Ed.D. Executive Director

Docket for Case No: 93-002665

Orders for Case No: 93-002665