STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

) CASE NO. 93-3966

vs. )

)

JACK L. GRESHAM, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 16, 1994, in Orlando, Florida.

APPEARANCES

For Petitioner: Kenneth J. Metzger, Esquire

Senior Attorney

Agency For Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Jack L. Gresham, M.D., pro se

9430 Turkey Lake Road Orlando, Florida 32819-8015

STATEMENT OF THE ISSUES

The issues are whether Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and, if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation filed an Administrative Complaint against Respondent on June 2, 1993. Respondent timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct a formal heating.

At the formal hearing, the parties stipulated to the admission of Petitioner's 19 exhibits. Petitioner called one witness. Respondent submitted one exhibit for admission in evidence. Respondent cross examined Petitioner's witness, but did not call any witnesses in Respondent's case in chief, and did not testify in his own behalf. Testimony, exhibits, and rulings are reported in the transcript of the formal hearing filed on August 23, 1994.

Petitioner and Respondent timely filed proposed recommended orders on September 16 and 20, 1994, respectively. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

Effective July 1, 1994, the Division of Medical Quality Assurance was transferred from the Department of Business and Professional Regulation to the Agency for Health Care Administration, Division of Health Quality Assurance.

Section 20.42, Florida Statutes. Authority to regulate licensees and licensure previously vested in the Department of Business and Professional Regulation under Section 20.165 was transferred to the Agency For Health Care Administration. Chapter 93-129, Laws of Florida. The Agency For Health Care Administration is substituted as Petitioner in this proceeding.

FINDINGS OF FACT

1. Stipulated Facts

1. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, Florida Statutes. Respondent is a licensed physician in Florida holding license number ME 0009772.

   
   

2. Respondent's last known address is 9430 Turkey Lake Road, Orlando, Florida 32819-8015. Respondent is Board certified in orthopedic surgery.

   
   

3. Respondent provided medical treatment to two male patients between 1990 and 1991. Patient 1 was treated from approximately April 29, 1991, through August 12, 1991. At the time, Patient 1 was approximately 34 years old.

   Patient 2 was treated from approximately May 14, 1990, through June 20, 1991. Patient 2 was approximately 29 years old.

   
   

   1. Patient 1

      
      

4. Patient 1 had a history of hip dislocation with aseptic necrosis, chronic back and leg pain, and foot numbness associated with degenerative disc disease and lumbar stenosis. Lumbar stenosis is compression of the spine. Spine compression was particularly significant between the fifth lumbar and first sacral vertebrae.

   
   

5. Prior to April 29, 1991, Patient 1's treatment was conservative and nonsurgical. On April 29, 1991, Patient 1 presented to Respondent to explore alternative therapy. Patient 1 complained of pain and numbness in his back, hip, and legs.

   
   

6. Respondent diagnosed Patient 1 with lumbar spinal stenosis and possible disc herniation. Respondent recommended a myelogram.

   
   

7. A myelogram was performed on May 13, 1991. The myelogram confirmed Respondent's diagnosis of lumbar spinal stenosis and possible disc herniation. The myelogram revealed a disc defect on the right side of L5-S1 as well as severe spinal and lateral recess stenosis.

   
   

8. On June 11, 1991, Respondent performed a laminectomy on Patient 1, an L5-S1 disc excision, and an internal spinal stabilization using Harrington rods attached with lamina hooks. Use of lamina hooks resulted in the compression of Patient 1's underlying neural tissue.

9. Compression of the underlying neural tissue caused Patient 1 to suffer perineal numbness. Respondent's medical records of June 17, 1991, show that Respondent knew Patient 1's perineal numbness was a result of compression of the sacral nerve root at L5-S1.

   
   

10. On June 17, 1991, Respondent again performed surgery on Patient 1. Respondent replaced the lamina hooks with alar hooks. Respondent also replaced and adjusted the tension of the Harrington rods.

    
    

11. On August 1, 1991, Patient 1 was admitted to Sandlake/Orlando Regional Medical Center ("ORMC") for surgical removal of the implanted hooks and Harrington rods. Respondent surgically removed the Harrington rods and attachment hooks.

    
    

12. On August 12, 1991, Respondent's medical records showed that Patient 1 suffered from persistent numbness of the sacral nerve root areas. The area of numbness included the perineum, scrotum, and penis. Respondent did not perform an L5-S1 bone fusion during any surgery.

    
    

    1. Patient 2

    
    

13. On May 14, 1990, Patient 2 presented to the Emergency Room ("ER") at ORMC with primary complaints of back and right leg pain. The ER physician diagnosed Patient 2 with a herniated nucleus pulposus at L4-L5. The nucleus pulposus is the soft central portion of the intervertebral disc.

    
    

14. Respondent admitted Patient 2 on May 14, 1990, and treated him with intravenous muscle relaxants. On May 15, 1990, a computerized axial tomography ("CAT") scan revealed a bulging, herniating disc at L4-L5. On May 17, 1990, Respondent discharged Patient 2 with instructions regarding back care and an exercise program.

    
    

15. On August 24, 1990, Patient 2 presented to Respondent with recurrent disabling sciatic pain. A magnetic resonance imaging ("MRI") scan was performed on August 28, 1990. The MRI revealed a prominent disc bulging at L4-L5 with material intruding into the spinal cord.

    
    

16. On September 7, 1990, Respondent performed a lumbar laminectomy and disc excision at L4-L5. Respondent discharged Patient 2 on September 12, 1990.

    
    

17. On December 11, 1990, Patient 2 presented to Respondent with recurrent back and right leg pain. Respondent prescribed analgesics including Soma with codeine and Naprosyn.

    
    

18. On January 14, 1991, Patient 2 presented to Respondent with back and right leg pain. Patient 2 underwent a CAT scan to determine if recurrent disc herniation was present. The CAT scan failed to indicate any obvious asymmetric changes which would confirm Respondent's diagnosis of recurrent disc herniation.

    
    

19. On January 21, 1991, Respondent performed a decompressive laminectomy on Patient 2. Respondent's operative report for January 21, 1991, indicates that Respondent found no evidence of a herniated disc.

    
    

20. On February 26, 1991, Patient 2 presented to Respondent with complaints of recurrent leg and back pain. Respondent referred Patient 2 to Dr. William Bradford for treatment utilizing epidural blocks.

21. On April 16, 1991, Patient 2 again presented to Respondent. Respondent placed Patient 2 in a molded, fiberglass body jacket. Back and leg pain subsided while Patient 2 wore the fiberglass jacket.

    
    

22. On May 14, 1991, Respondent performed surgical stabilization of the lower lumbar spine utilizing Harrington rods. On June 17, 1991, Patient 2 presented to Respondent with persistent numbness of the perineal area as well as bowel and bladder incontinence. Respondent determined that the numbness and incontinence were caused by sacral nerve root irritation associated with the Harrington rod hooks. Respondent surgically adjusted the Harrington rods on June 20, 1991. Respondent did not perform vertebral bone fusion during any surgery.

2. Standard Of Care

1. Respondent failed to practice medicine in his treatment of Patient 1 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. Respondent improperly seated lamina hooks in Patient 1. As a result, Patient 1 suffered compression of underlying neural tissue. Respondent improperly used Harrington rods and hooks to achieve transient spinal decompression without performing essential vertebral bone fusion.

   
   

2. Use of Harrington rods in the lumbar spine is an obsolete technology. It is fraught with dangers. Among other things, it eliminates the lordosis, or natural spinal curvature.

   
   

3. Respondent failed to practice medicine in his treatment of Patient 2 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. Respondent performed numerous surgeries on Patient 2 when CAT scans and other examinations failed to confirm recurrent disc herniation. In addition, Respondent failed to perform essential vertebral bone fusion on Patient 2.

3. Proximate Cause And Severity Of Injury

1. Respondent's 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 was the proximate cause for permanent neurological damage to Patient's 1 and 2. Both patients suffered sacral nerve root paralysis.

   
   

2. Sacral nerve roots feed functions in the pelvis, bladder bowel, and sphincter. Both patients suffered permanent incontinency, including loss of bladder and bowel function. Each patient requires a colostomy and must wear diapers. Patient 1 has suffered sexual dysfunction in that he has lost the sensation necessary for a natural erection.

   
   

3. The neurologic injuries to Patients 1 and 2 are major and permanent. Nothing can restore the functional loss suffered by either patient.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1). The parties were duly noticed for the formal hearing.

   
   

5. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent violated the applicable standard of medical care in the treatment of Patients 1 and 2. Ferris v. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987).

   
   

6. Petitioner satisfied its burden of proof. The testimony of Petitioner's expert and the totality of Petitioner's evidence was clear and convincing. Respondent's cross examination was not persuasive, and Respondent failed to present any evidence to refute the evidence presented by Petitioner.

   
   

7. Respondent violated Section 458.331(1)(t), Florida Statutes, in his medical treatment of Patients 1 and 2. For the reasons stated in the foregoing findings of fact, Respondent failed to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

   
   

8. Section 458.331(2), Florida Statutes, provides, in relevant part, that a licensed physician who has been found guilty of any violation in Section 458.331(1) is subject to one or more penalties including reprimand, probation, fine, restriction of practice, and suspension or revocation of the physician's license. Florida Administrative Code Rule 59R-8.001 provides that a violation of Section 458.331(1)(t) is subject to a penalty of anywhere from two years probation to license revocation and a fine of $250 to $5,000.

   
   

9. Florida Administrative Code Rule 59R-8.001(3) prescribes aggravating and mitigating circumstances that should be considered in determining the penalty that is appropriate in a particular case. Based upon the circumstances in this proceeding, Petitioner has requested that Respondent's practice be restricted and that a fine of $7,500 be imposed against Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding Respondent guilty

of violating Section 458.331(1)(t) in his treatment of Patients 1 and 2, imposing an administrative fine of $7,500, and restricting Respondent's practice as follows:

1. Respondent shall not perform any spinal surgery on patients unless and until Respondent appears before the Board of Medicine and demonstrates to the satisfaction of the Board that he is able to do so with skill and safety; and

   
   

2. The Board of Medicine may place other reasonable conditions on Respondent's practice of orthopedic surgery at such time as the restriction in the preceding paragraph is lifted.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of October, 1994.

DANIEL MANRY

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 6th day of October, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3966

Petitioner's Proposed Findings of Fact

1. -39. Accepted as stipulated fact 40.-41. Rejected as recited testimony

1. Accepted in substance

2. Rejected as recited testimony

3. Accepted in substance

45.-51. Rejected as recited testimony Respondent's Proposed Findings of Fact

Respondent stipulated to Petitioner's proposed findings of fact, paragraphs 1-

39. Respondent's only additional proposed finding of fact is unnumbered and is rejected as not supported by persuasive evidence.

COPIES FURNISHED:

Dr. Marm Harris, Executive Director Department of Business and

Professional Regulation Board of Medicine Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Harold D. Lewis, Esquire Agency For Health Care

Administration

The Atrium, Suite 301

325 John Knox Road Tallahassee, FL 32303

Kenneth J. Metzger, Esquire Agency For Health Care

Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack L. Gresham, M. D. 9430 Turkey Lake Road

Orlando, Florida 32819-8015

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-003966

Orders for Case No: 93-003966