STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4007

)

DAVID ZUFI, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 7 and 8, 1994, at Miami, Florida.

APPEARANCES

For Petitioner: Arthur B. Skafidas, Esquire

Agency for Health Care Administration Department of Business and

Professional Regulation Northwood Centre, Legal A 1940 North Monroe Street,

Tallahassee, Florida 32399-0792

For Respondent: Laurence Wanshel, Esquire

Cummins & Wanshel

9555 North Kendall Drive, Suite 202

Miami, Florida 33176

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of allegations that the Respondent has violated subparagraphs (m) and (t) of Section 458.331(1), Florida Statutes, by failing to keep written medical records justifying the course of treatment, and by failing to practice medicine with the appropriate level of care, skill, and treatment.

PRELIMINARY STATEMENT

At the hearing on September 7 and 8, 1994, the Petitioner presented the testimony of four witnesses; Dahna Schaublin, an agency investigator, and expert witnesses Lawrence Robbins, M.D., Emilio Carullo, M.D., and David Wells, M.D. The Petitioner also offered eight exhibits, all of which were received in evidence.

The Respondent testified on his own behalf and also presented the testimony of the following expert witnesses: Steven Dresnick, M.D., Ira Jacobson, M.D., and Claude Noriega, M.D. The Respondent also offered three exhibits, all of which were received in evidence.

A transcript of the proceedings was filed with the Hearing Officer on October 11, 1994. Thereafter, all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix hereto.

FINDINGS OF FACT

1. The Respondent, David Zufi, M.D., is and has been at all times material to this proceeding a licensed physician in the State of Florida, having been issued license number ME 0014856. The Respondent's last known address is 641 Reinaute Avenue, Coral Gables, Florida 33156-2345. The Respondent was and is a Board Certified plastic surgeon certified by the American Board of Plastic and Reconstructive Surgery since 1976.

   
   

2. At all times material to this case, Dr. Ricardo Samitier-Cardet 1/ was the primary care physician or the attending physician for the Patient C.R. The Patient C.R. had sought out Dr. Samitier for the purpose of having several cosmetic surgical procedures performed; procedures which for a patient with a normal health history would have been minor cosmetic procedures. At all times material to this case, Dr. Samitier was a licensed practicing physician in the State of Florida. Dr. Samitier has never been Board Certified in any area of

   medicine. Dr. Samitier self-designated himself as a "cosmetic surgeon." At all times material to this case, the Respondent was unaware of any pending charges against Dr. Samitier. 2/

   
   

3. Prior to Friday, May 1, 1992, the Respondent was acquainted only marginally with Dr. Samitier. For a period of six months the Respondent had in the past rented office space one day a week to Dr. Samitier for consultation purposes. The Respondent had also spoken to Dr. Samitier a few times at meetings of the Coral Gables Hospital staff. The Respondent and Dr. Samitier had never shared any type of professional relationship with regard to the medical care of any patient. There were no referrals of patients between the two doctors, nor had the Respondent ever acted as a consultant in any capacity for Dr. Samitier prior to Friday, May 1, 1992. The Respondent had never visited Dr. Samitier's office prior to Friday, May 1, 1992.

   
   

4. Dr. Samitier's medical records for the Patient C.R. include the following historical details. The patient had had an aortic valve replacement approximately twenty years earlier and had no history of angina. The patient was taking Coumadin, 5 mg. daily. The patient had no history of bleeding or hematomas and had normal erections.

   
   

5. On Friday, May 1, 1992, at approximately 9:00 p.m., Patient C.R. underwent a Suction Assisted Lipectomy to the face, neck, and trunk, plus Circumferential Autologous Penile Engorgement (CAPE), which was performed by Dr. Samitier at Dr. Samitier's office. At the time of the foregoing surgical procedure Patient C.R. was a 47-year-old male who had previously undergone two open heart procedures, had a permanent pacemaker inserted, had a prosthetic aortic valve, and had been on Coumadin therapy for approximately twenty years. 3/

6. Coumadin is an anticoagulant drug which is taken to prolong a patient's blood clotting time. A patient maintained on long-term Coumadin therapy is at increased risk for clotting when the Coumadin is discontinued. The Patient C.R.'s long-term Coumadin anticoagulation therapy was made necessary by the fact that he had a prosthetic aortic valve. Before performing surgery on a patient with a history of cardiac problems such as those presented by the Patient C.R., a surgeon should obtain a cardiac clearance by means of consultation with a cardiologist. Dr. Samitier did not obtain a cardiology consultation prior to the surgery on the Patient C.R. 4/

   
   

7. A Prothrombin Time Test is a test which is utilized to evaluate a patient's blood clotting time. A Prothrombin Time Test should have been performed on the Patient C.R. immediately before the surgery on May 1, 1992. The test was not performed at that time. 5/ A Prothrombin Time Test was performed on the Patient C.R. about two weeks prior to the surgery.

   
   

8. The Patient C.R. was a high risk patient who should never have been considered a candidate for elective surgery due to his history of cardiac problems, his prosthetic aortic valve, and his long-term Coumadin therapy. 6/ The two primary risks for a patient like Patient C.R. are that if his coagulation rate is substantially slower than normal the patient is at risk of uncontrollable bleeding at the surgery sites and if his coagulation rate becomes normal or slower than normal he is at risk of clot formation on his prosthetic aortic valve. Either condition can produce serious consequences, even fatality.

   
   

9. On Friday, May 1, 1992, at approximately 11:30 p.m., which was approximately two hours after completion of the surgical procedure, the Patient

   C.R. began bleeding from his right cheek. It was a slow venous oozing bleed. The patient was taken back to the operating room where Dr. Samitier attempted without success to stop the bleeding with digital pressure.

   
   

10. At approximately 2:30 a.m. on Saturday, May 2, 1992, by which time the bleeding from the patient's right cheek had persisted for approximately three hours, Dr. Samitier placed an emergency telephone call to the Respondent to request assistance in controlling the bleeding from a right buccal stab incision. The Respondent discussed the matter briefly with Dr. Samitier and told Dr. Samitier to try to control it with pressure. A few minutes later the Respondent became concerned that Dr. Samitier might need more assistance and called him back. During the second telephone call Dr. Samitier made it clear that he would feel more comfortable if the Respondent came to his office.

    
    

11. The Respondent went to Dr. Samitier's office, arriving at approximately 3:00 a.m. on Saturday, May 2, 1992. Upon arrival, the Respondent discussed the situation with Dr. Samitier, obtained patient history information from Dr. Samitier, examined the patient, and promptly applied digital pressure with an adrenaline pad. The Respondent and Dr. Samitier alternated in the application of digital pressure and the bleeding stopped in approximately twenty minutes. There is no evidence that the patient was bleeding from any of the other surgical sites.

    
    

12. While the Respondent was at Dr. Samitier's office, the Respondent did not review Dr. Samitier's medical chart on the Patient C.R. because he did not feel it was necessary to do so. During the entire time that the Respondent was examining, evaluating, and treating the Patient C.R., Dr. Samitier was right beside the Respondent providing the Respondent with information and answering the Respondent's questions about the patient. Under these circumstances,

    especially in view of the Respondent's limited role in the care of the patient, it was reasonable for the Respondent to rely on the oral information provided by Dr. Samitier and it was not necessary for the Respondent to review the written chart. 7/

    
    

13. Dr. Samitier advised the Respondent that the Patient C.R. had been on maintenance Coumadin and that the Coumadin had been discontinued three days prior to the surgery. Dr. Samitier also advised the Respondent that no pre- operative Prothrombin Time Test had been performed immediately prior to the surgery, and that the Patient C.R. had a pacemaker.

    
    

14. At the time the Respondent was applying pressure to stop the oozing bleed, the Respondent was unable to communicate with the Patient C.R. because the patient was sedated with Nubain, a synthetic pain killer. Dr. Samitier explained to the Respondent that he had used Nubain during the surgical procedure and had also administered Nubain post-operatively when the patient had complained of pain during the course of Dr. Samitier's efforts to control the cheek bleeding prior to calling the Respondent.

    
    

15. The Respondent's examination of the Patient C.R. included an examination of all of the surgical wounds inflicted during the procedures performed by Dr. Samitier, which included the cheeks, the portion of the neck immediately under the chin, and the lower abdominal area. No significant bruising or swelling was noted and no bleeding was detected at any of the incision sites other than the right buccal site which had occasioned Dr. Samitier's call to the Respondent. The Respondent looked for hematomas and ecchymosis and discoloration. There was no evidence that the patient had any generalized bleeding or hematoma at the time the Respondent was examining or treating him. During the entire time the Respondent was at Dr. Samitier's office in the early morning hours of Saturday, May 2, 1992, the Patient C.R. was connected to various monitors, all of which gave readings within normal ranges. The patient's blood pressure and pulse rate were both checked and found to be within normal ranges.

    
    

16. While the Respondent was at Dr. Samitier's office during the early morning hours of Saturday, May 2, 1992, the Respondent discussed with Dr. Samitier the fact that the most prudent course of treatment for the Patient C.R. would be to hospitalize the patient. Dr. Samitier agreed that hospitalization would be the most prudent course, but then told the Respondent that he could not hospitalize the patient because the patient had told Dr. Samitier that he would not, under any circumstances, agree to be admitted to a hospital. Dr. Samitier also told the Respondent that the patient had said he did not want the nature of his operation to be disclosed to his wife or family members. During this discussion Dr. Samitier also disclosed to the Respondent that Dr. Samitier did not have admitting privileges at any hospital.

    
    

17. In view of Dr. Samitier's reluctance to hospitalize the patient at that time, the Respondent told Dr. Samitier that Dr. Samitier should continue to monitor the patient and observe him clinically and if the vital signs or clinical observations demonstrated any deterioration of the patient's condition, or if the patient changed his mind about hospitalization, Dr. Samitier should call the Respondent and the Respondent would arrange to have the patient admitted into Coral Gables Hospital where the Respondent had admitting privileges. The Respondent also discussed with Dr. Samitier the need for a consultation with a cardiologist or hematologist in the event the patient were to be hospitalized. The Respondent emphasized the need for such a consultation before any action was taken to modify the patient's coagulation status. The

    Respondent's suggestions to Dr. Samitier regarding the future care and management of the Patient C.R. were appropriate under the circumstances.

    
    

18. During the visit to Dr. Samitier's office during the early morning hours of Saturday, May 2, 1992, the Respondent did not recommend to Dr. Samitier that he have a Prothrombin Time Test performed on the Patient C.R. Although such a test might have been useful in the management of the patient's condition if the patient had been hospitalized, it is doubtful that the test would have served any useful purpose while the patient remained at Dr. Samitier's office. Under the circumstances, the failure to recommend a Prothrombin Time Test was not a departure from acceptable standards of medical practice.

    
    

19. After the bleeding stopped, the Respondent remained at Dr. Samitier's office for at least two hours waiting to see if there was any recurrence of the bleeding. During that time period the Respondent examined the Patient C.R. several times to monitor his status and check for any bleeding. There was no recurrence of the bleeding from the patient's right cheek, nor was there any visible bleeding from any of the other surgical wounds. Sometime between 5:00

    a.m. and 6:00 a.m. on Saturday, May 2, 1992, the Respondent left Dr. Samitier's office and returned to the Respondent's home. Dr. Samitier remained at his office to monitor and otherwise care for the Patient C.R. Dr. Samitier never contacted the Respondent to request that the Respondent arrange for the hospitalization of the Patient C.R.

    
    

20. At approximately noon on Saturday, May 2, 1992, the Respondent was driving in his car a few blocks from Dr. Samitier's office. Because he was near Dr. Samitier's office, the Respondent decided to stop by Dr. Samitier's office to see how the patient was doing instead of making a telephone call later. The Respondent arrived at Dr. Samitier's office unannounced and inquired as to the status of Patient C.R. Dr. Samitier told the Respondent that the patient was doing fine, that his vital signs remained stable, that he was up and about, that he had taken oral sustenance, and that he had passed urine. Dr. Samitier also told the Respondent that the Respondent did not need to see the patient. After the foregoing discussion, Dr. Samitier invited the Respondent to observe a penile engorgement procedure Dr. Samitier was getting ready to perform on another patient. While walking with Dr. Samitier to the operating room, the Respondent had a brief glimpse of the Patient C.R. sitting up in bed in a small room. The Respondent continued on with Dr. Samitier and watched Dr. Samitier perform a penile engorgement procedure on another patient. After watching that procedure, the Respondent left Dr. Samitier's office. During the noon visit to Dr. Samitier's office on Saturday, May 2, 1992, the Respondent did not examine or treat the Patient C.R.

    
    

21. On Sunday morning, May 3, 1992, at approximately 1:10 a.m., the Respondent received a telephone call from Dr. Samitier's office advising him that the Patient C.R. had gone into cardiac arrest. The Respondent went to Dr. Samitier's office. When the Respondent arrived at Dr. Samitier's office, the Patient C.R. was already being treated by emergency medical technicians. The emergency medical technicians told the Respondent that his services or assistance in the care of the patient were not needed and that they were going to transport the patient to Mercy Hospital. The emergency medical technicians took the Patient C.R. to Mercy Hospital where he was pronounced dead in the Emergency Room. The Respondent did not examine or treat the Patient C.R. during the early morning hours of Sunday, May 3, 1992.

22. Later that same day an autopsy was performed on the body of the Patient C.R. The Respondent and Dr. Samitier attended the autopsy. The medical examiner did not come to any conclusion as to the cause of the patient's death.

    
    

23. The Respondent did not document any of his contact with the patient

    C.R. in Dr. Samitier's office chart because the Respondent did not think it was necessary for him to do so. The Respondent thought it was sufficient for him to make his own record of what he did in the form of a consultation report. In the normal course of events he would have written such a report the following Monday when he got to his office, which seems to be a common practice of physicians who perform consultation services away from their own offices on weekends.

    
    

24. There is no clear and convincing evidence that under the circumstances of this case the Respondent was required to write anything in Dr. Samitier's medical records concerning the Patient C.R. There is no established practice in this regard because it is very rare for a physician to perform consultation services in the office of another physician. Further, although consultation reports are virtually always prepared following formal consultations, when a consulting physician is called in for a very limited purpose, performs his services in the presence of the primary care physician or the attending physician, and orally advises the primary care physician or the attending physician what he has discovered or done, the consulting physician often does not prepare any written report at all, but leaves it to the primary care physician or the attending physician to memorialize what was discovered or done in the patient's chart.

    
    

25. During the late afternoon or early evening of May 3, 1994, after the autopsy of the Patient C.R., the Respondent wrote a historical recapitulation of his involvement with the care and treatment of the Patient C.R. The record prepared by the Respondent on May 3, 1992, documents the Respondent's involvement in the care and treatment of the Patient C.R. The record demonstrates the Respondent's observations, recommendations, treatment, and the reasons why the Respondent did not get involved in all aspects of the patient's care. The record prepared by the Respondent on Sunday, May 3, 1992, was sufficiently timely to comply with applicable standards of medical care and record-keeping. The information contained in that record was sufficient to comply with applicable standards of medical care and record-keeping.

    
    

26. The Respondent was called by Dr. Samitier for the limited function of stopping an oozing venous bleeding from an incision wound in the right cheek of the Patient C.R. The Respondent's consultation in this regard was of an informal nature and was limited in scope. His treatment of stopping the bleeding with direct pressure with an adrenalin pad was an appropriate course of treatment for the condition he was called to resolve. The Respondent was not at any time the primary care physician or attending physician for the Patient C.R.; that responsibility was at all material times the responsibility of Dr. Samitier. By assisting Dr. Samitier to stop the bleeding from one incision wound, the Respondent did not undertake, nor did he become responsible for, the overall care and management of the patient. Inasmuch as the nature of the consultation the Respondent was asked to perform was limited in scope, the Respondent's examination of the Patient C.R. was sufficient. Under the circumstances of this case it was not necessary for the Respondent to perform a comprehensive physical examination. The Respondent's authorized role in the care of the Patient C.R. was complete when he departed between 5:00 and 6:00

    a.m. on the morning of Saturday, May 2, 1992. He had performed all he had been authorized to perform and, although he had offered to do more (such as arrange for the patient to be hospitalized), his offer of further assistance was

    rejected by Dr. Samitier. When the Respondent paid his courtesy visit to Dr. Samitier's office at about noon on Saturday, May 2, 1992, the Respondent did not have permission or authority from anyone to examine or treat the Patient C.R.

    At that time Dr. Samitier expressly told the Respondent that the Respondent did not need to see the patient. Under those circumstances, the Respondent had neither authority nor obligation to examine the Patient C.R. at the time of his noon visit on Saturday, May 2, 1992.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

    
    

28. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as

    to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the

    above

    following at page 958:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v.

    Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

29. Section 458.331(1), Florida Statutes (1991), includes the following as acts for which the Board of Medicine may take disciplinary action against a licensed physician:

    
    

    (m) Failing to keep written medical records justify- ing the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

    * * *

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

    
    

    Count One

    
    

30. Count One of the Amended Administrative Complaint charges violations of Section 458.331(1)(t), Florida Statutes,

    
    

    . . . in that Respondent failed to do one or more of the following: review Patient C. R.'s medical records as kept by Dr. Cardet; perform a thorough and complete physical examination; record the results of his (Respondent's) treatment of Patient

    C. R. in Dr. Cardet's medical records; maintain a separate written medical record of Patient C. R.'s care as rendered by Respondent; and recommend to Dr. Cardet that Patient C. R. be hospitalized.

    
    

31. With regard to the alleged failure to "review Patient C.R.'s medical records as kept by Dr. [Samitier] Cardet," the Respondent admits that he did not review those records. However, the greater weight of the evidence is to the effect that, under the circumstances of this case, the Respondent's failure to review the records was not a departure from applicable standards of medical care because the Respondent was able to obtain oral information directly from Dr. Samitier. Therefore, the failure to review the records does not constitute a violation of Section 458.331(1)(t), Florida Statutes (1991).

    
    

32. With regard to the alleged failure to "perform a thorough and complete physical examination," the greater weight of the evidence is to the effect that, under the circumstances of this case, the examination performed by the Respondent was sufficient and appropriate. Under the circumstances of this case, it was not necessary for the Respondent to perform a complete physical examination of the patient. Rather, it was sufficient for the Respondent to examine areas of possible concern, which he did. Inasmuch as the examination performed by the Respondent was sufficient under the circumstances, the failure to perform a complete examination was not a violation of Section 458.331(1)(t), Florida Statutes (1991).

    
    

33. With regard to the alleged failure to "record the results of his (Respondent's) treatment of Patient C. R. in Dr. [Samitier] Cardet's medical records," the Respondent admits that he did not record anything in Dr. Samitier's medical records. As noted in the findings of fact, the evidence is insufficient to establish that the Respondent was required to write anything in Dr. Samitier's medical records. Such being the case, the evidence is insufficient to establish that such failure was a violation of Section 458.331(1)(t), Florida Statutes (1991).

    
    

34. With regard to the alleged failure to "maintain a separate written medical record of Patient C. R.'s care as rendered by Respondent," the evidence establishes that the Respondent did timely prepare and maintain such a record. The timeliness and the contents of the medical record prepared by the Respondent were consistent with applicable standards of care. Accordingly, the Respondent's record-keeping does not constitute a violation of Section 458.331(1)(t), Florida Statutes (1991).

35. With regard to the alleged failure to "recommend to Dr. [Samitier] Cardet that Patient C. R. be hospitalized," the greater weight of the evidence is to the effect that the Respondent did tell Dr. Samitier that the most prudent course of treatment would be to hospitalize the patient. When Dr. Samitier rejected that suggestion on the basis that the patient was strongly opposed to hospitalization and had refused to consent to hospitalization, the Respondent offered to make the necessary arrangements to have the patient admitted to a hospital in the event that either the patient or Dr. Samitier changed their minds. The Respondent's conduct in this regard was reasonable and was consistent with applicable standards of care under these unusual circumstances. Accordingly, the Respondent's conduct in this regard was not a violation of Section 458.331(1), Florida Statutes (1991).

    
    

    Count Two

    
    

36. Count Two of the Amended Administrative Complaint charges violations of Section 458.331(1)(m), Florida Statutes (1991),

    
    

    . . . in that Respondent failed to document the consultation that he had on Patient C. R. in Dr. Cardet's medical records, and/or Respondent failed to maintain a separate written medical record (consultation report) justifying Patient C. R.'s course of treatment.

    
    

37. With regard to the alleged failure "to document the consultation that he had on Patient C. R. in Dr. [Samitier] Cardet's medical records," as noted above in the discussion of the alleged violation of Section 458.331(1)(t), the Respondent admits that he did not record anything in Dr. Samitier's medical records. And as also noted in that discussion, there is no clear and convincing evidence that, under the circumstances of this case, the Respondent was under any duty or obligation to record anything in Dr. Samitier's medical records. Accordingly, the Respondent's failure to write anything in Dr. Samitier's records is not a violation of Section 458.331(1)(m), Florida Statutes (1991).

    
    

38. With regard to the alleged failure "to maintain a separate written medical record (consultation report) justifying Patient C. R.'s course of treatment," as noted above in the discussion of the alleged violation of Section 458.331(1)(t), the evidence establishes that the Respondent did timely prepare and maintain such a record. The timeliness and the contents of the medical record prepared by the Respondent were consistent with applicable standards of care. Accordingly, the Respondent's record-keeping does not constitute a violation of Section 458.331(1)(m), Florida Statutes (1991).

    
    

39. For the reasons stated above, the evidence is insufficient to establish that the Respondent is guilty of any of the misconduct alleged in the Amended Administrative Complaint.

RECOMMENDATION

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

DONE AND ENTERED this 9th day of January, 1995, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 9th day of January, 1995.

ENDNOTES

1/ In the exhibits and testimony in this case Dr. Ricardo Samitier-Cardet is referred to in several ways, including "Dr. Samitier-Cardet," "Dr. Samitier," and "Dr. Cardet." Throughout this Recommended Order Dr. Ricardo Samitier-Cardet will be referred to as :Dr. Samitier."

2/ It is not clear from the evidence in this case whether there were any charges pending against Dr. Samitier as of May 1992.

3/ It is not clear from the evidence in this case whether the Coumadin Therapy was Discontinued prior to the surgical procedure on May 1, 1992. Dr. Samitier told the Respondent that the Coumandin had been discontinued for three days prior to the surgery, but there is no mention in Dr. Samitier's medical records of the discontinuation of the Coumadin.

4/ This failure is not attributable to the Respondent because the Respondent was not involved in the patient's care at the time.

5/ Again it must be kept in mind that Dr. Samitier bears the sole responsibility for this failure.

6/ The Respondent did not participate in the decision to perform surgery on his high risk patient. Dr. Samitier bears the sole responsibility for that decision.

7/ In this regard it should also be noted that there is no evidence that Dr. Samitier's chart was available for the Respondent to read on May 2, 1992.

APPENDIX

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

Findings submitted by Petitioner:

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

Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and

19: Accepted in substance, with some subordinate and unnecessary details omitted.

Paragraph 20: Rejected as irrelevant, because the Respondent has not been charged with failure to adequately evaluate and assess the patient's condition. And, in any event, the greater weight of the evidence is to the effect that the Respondent's evaluation and assessment of the patient's condition were adequate.

Paragraph 21: Rejected as contrary to the greater weight of the evidence.

The greater weight of the evidence is to the effect that the Respondent's examination of the patient was adequate under the circumstances.

Paragraph 22: Rejected as irrelevant, because the Respondent has not been charged with failure to recommend or order appropriate blood tests.

Paragraph 23: Accepted in substance, as a general proposition. However, under the unique circumstances of this case there is no clear and convincing evidence that a post-operative prothrombin time test would have been of any significant value.

Paragraph 24: Rejected as irrelevant, because the Respondent has not been charged with failure to appropriately diagnose and treat the patient.

Paragraph 25: Rejected as irrelevant, because the Respondent has not been charged with failing to recommend that the patient be hospitalized immediately. And, in any event, the greater weight of the evidence is to the effect that the Respondent's recommendations to Dr. Samitier were appropriate under the circumstances.

Paragraphs 26, 27, 28: Accepted in substance.

Paragraph 29: Rejected as irrelevant because the Respondent has not been charged with failing to evaluate or review the patient's medical record, perform a physical examination or otherwise evaluate the patient on the second visit.

Paragraph 30: Rejected as not supported by persuasive clear and convincing evidence and as contrary to the greater weight of the evidence.

Paragraphs 31, 32, and 33: Accepted in substance.

Paragraphs 34, 35, 36, and 37: Rejected for two reasons; first, because these are all subordinate and unnecessary details and, second, because they are irrelevant inasmuch as the Respondent has not been charged with anything regarding his communications with Investigator Schaublin. Furthermore, the communications between the Respondent and the DPR investigators appear to have been somewhat acrimonious and the Hearing Officer has serious doubts as to the accuracy of anyone's recollection of the details of what was said at that time.

Paragraph 38: Accepted.

Paragraph 39: Rejected as not supported by clear and convincing evidence and as, in any event, subordinate and unnecessary details.

Paragraphs 40 and 41: Rejected as subordinate and unnecessary details, or as irrelevant.

Paragraphs 42 and 43: Rejected as irrelevant, because the Respondent has not been charged with anything regarding his communications with Investigator Schaublin. Furthermore, the communications between the Respondent and the DPR investigators appear to have been somewhat acrimonious and the Hearing Officer has serious doubts as to the accuracy of anyone's recollection of the details of what was said at that time.

Paragraph 44: Rejected as constituting argument about the legal significance of a document, rather than proposed findings of fact.

Paragraph 45: Accepted in substance.

Paragraph 46: Rejected as subordinate and unnecessary details. Paragraphs 47 and 48: Rejected as irrelevant.

Paragraph 49: Rejected as not supported by persuasive clear and convincing evidence.

Paragraphs 50 and 51: Rejected as constituting conclusions of law, rather than proposed findings of fact.

Paragraph 52: Accepted in substance.

Paragraph 53: Rejected as irrelevant to the issues in this case.

Findings submitted by Respondent:

Paragraphs 1 and 2: Accepted in substance.

Paragraph 3: Accepted in substance, with the exception of the inference that the subject surgery was "minor surgery." (Given the specific circumstances of the subject patient, the subject surgery was "high risk" surgery.)

Paragraph 4: Most of this paragraph has been rejected as consisting of subordinate and unnecessary details, not all of which are accurate.

Paragraphs 5, 6, 7, 8, and 9: Accepted in substance.

Paragraph 10: Rejected as subordinate and unnecessary details. Paragraphs 11, 12, 13, 14, 15, 16 and 17: Accepted in substance.

Paragraph 18: First, second, and fourth sentences have been accepted in substance. The remainder of this paragraph has been rejected as subordinate and unnecessary details.

Paragraph 19: Accepted in substance.

Paragraph 20: Rejected as consisting primarily of a summary of testimony and argument about testimony, rather than specific

findings of fact the Respondent wishes to have made.

Paragraphs 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36,

37, 38, 39, 40, 41, 42, and 43: These paragraph are all rejected because they consist primarily of summaries of testimony or arguments about testimony, rather than specific findings of fact the Respondent wishes to have made. Many of these paragraphs also include subordinate, unnecessary and irrelevant details.

Paragraph 44: Accepted in substance.

Paragraph 45: Rejected as consisting primarily of argument, rather than specific findings of fact the Respondent wishes to have made.

Paragraph 46: Rejected as consisting primarily of a summary of testimony and argument about testimony, rather than specific findings of fact the Respondent wishes to have made.

Paragraphs 47, 48, 49, 50 and 51: Accepted in substance with a number of subordinate and unnecessary details omitted.

Paragraphs 52 and 53: These paragraph are both rejected because they consist primarily of summaries of testimony or arguments about testimony, rather than specific findings of fact the Respondent wishes to have made.

Paragraph 54: Accepted in substance with a number of subordinate and unnecessary details omitted.

Paragraphs 55, 56, 57, 58, 59, and 60: Rejected as consisting primarily of arguments about testimony or of subordinate and unnecessary details.

COPIES FURNISHED:

Arthur B. Skafidas, Esquire

Agency for Health Care Administration Department of Business and

Professional Regulation Northwood Centre, Legal A 1940 North Monroe Street,

Tallahassee, Florida 32399-0792

Laurence Wanshel, Esquire Cummins & Wanshel

9555 North Kendall Drive Suite 202

Miami, Florida 33176

Jack McRay, Esquire General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dr. Marm Harris Executive Director Board of Medicine

Agency for Health Care Administration Northwood Centre

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 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.

================================================================= 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. 92-10672

vs. CASE NO. 93-4007

LICENSE NO. ME 0014856

DAVID ZUFI, 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 February 11, 1995, in Tampa, 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. David Zufi, M.D. At the hearing before the Board, Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent was present and was represented by Laurence Wanshel, Esquire. Upon consideration of the Hearing Officer's Recommended Order after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:

FINDINGS OF FACT

1. The following portion of Paragraph 24 is rejected because it is not supported by competent, substantial evidence: 24."...the consulting physician often does not prepare any written report at all, but leaves it to the primary care physician or the attending physician to memorialize what was discovered or done in the patient's chart."

   
   

2. The remaining Hearing Officer's Recommended Findings of Fact are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.

   
   

3. There is competent, substantial evidence to support the Board's findings, as amended, 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, as amended are supported by competent substantial evidence.

   
   

3. The Conclusions of Law of the Recommended Order, as amended, are approved and adopted and incorporated herein.

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law, as amended, the Hearing Officer's recommendation of Dismissal is hereby approved.

WHEREFORE, it is found, ordered and adjudged that the Administrative Complaint in this case is hereby DISMISSED.

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

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 22nd DAY OF FEBRUARY, 1995.

BOARD OF MEDICINE

GARY E. WINCHESTER, M. D. 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 David Zufi, M.D. 641 Reinaute Ave., Coral Gables, Florida 33156-2345, Laurence Wanshel, Esquire, Cummins & Wanshel, 95550 North Kendall Drive, Suite #202, Miami, Florida 33176, Michael M. Parrish, 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 27th February, 1995.

Marm Harris, Ed.D. Executive Director

Docket for Case No: 93-004007

Orders for Case No: 93-004007