STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-5990

) ROBERT H. LESTER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on April 19, 1994, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Alex D. Barker, Esquire

Department of Business and Professional Regulation

7960 Arlington Expressway, Suite 230

Jacksonville, Florida 32211

For Respondent: Jeptha F. Barbour, Esquire

Post Office Box 447 Jacksonville, Florida 32201

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether Respondent's license to practice medicine should be subject to sanctions based upon alleged violations of Section 458.331(1)(m) and 458.331(1)(t), Florida Statutes.

Specifically, it must be determined whether he departed from the appropriate standard of medical care and treatment of a patient in the course of his practice of ophthalmology and whether his record keeping with regard to the care and treatment of that patient met appropriate standards.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Administrative Complaint by the above-named agency against the Respondent, Robert H. Lester, M.D., on September 20, 1993. Basically, it is alleged in the Complaint that patient D.P. presented to the Respondent with extremely high intra-ocular pressure and severe pain in both eyes, which condition arose immediately after abdominal surgery, approximately two days before the patient presented to the Respondent. The Respondent diagnosed her condition as acute angle closure glaucoma.

It is alleged that the Respondent failed to adhere to a proper standard of medical care by failing to explore and possibly employ other treatment, methods or procedures before performing a "vitreous tap" on the patient's right eye. It is alleged that he inappropriately performed the vitreous tap when the condition did not justify that treatment or procedure and failed to keep written medical records wholly justifying the course of treatment of the patient, by failing to adequately document that procedure in his records, as envisioned in Section 458.331(1)(m), Florida Statutes. The Respondent timely requested a formal administrative proceeding to contest the allegations of the Administrative Complaint. In due course, the cause was assigned to the undersigned Hearing Officer and set for hearing on the above-mentioned date.

The cause came on for hearing as noticed in Jacksonville, Florida. The parties stipulated to certain facts which are delineated in the Findings of Fact below, and the Petitioner presented the patient's medical records as Exhibit 1, the deposition of Leonard Berg, M.D. as Exhibit 2, and the deposition of Jeffrey

1. Baumann, M.D. as Exhibit 3. The Petitioner offered no other testimony. The Respondent offered and had admitted into evidence two exhibits, consisting of the curriculum vitae of the Respondent and the Respondent's expert witness, William Doyle, M.D. The Respondent presented the live testimony of Dr. Doyle, as well as the testimony of the Respondent himself. Subsequent to the hearing and the transcription thereof, the parties timely submitted Proposed Recommended Orders, containing proposed findings of fact and conclusions of law. The proposed findings of fact submitted have been addressed in this Recommended Order and again treated and specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

   
   

   FINDINGS OF FACT

   
   

   Stipulated Facts

   
   

   1. The Petitioner is the state agency charged with regulating the practice of medicine, pursuant to Section 20.30, Florida Statutes, and Chapter 455, Florida Statutes.

      
      

   2. The Respondent is, and at all times material hereto, has been a licensed medical doctor in the State of Florida, having been issued license number ME0004933. The Respondent's address is 820 Prudential Drive, Suite 712, Jacksonville, Florida.

      
      

   3. On or about September 13, 1989, patient D.P., a 65-year-old-female, presented to the Respondent for evaluation regarding extremely high intra-ocular pressure and severe pain in both eyes.

      
      

   4. Patient D.P. had undergone abdominal surgery two days prior to the Respondent's examination, which was her second abdominal surgery in two weeks.

      
      

   5. The Respondent examined patient D.P. and diagnosed her with acute angle closure glaucoma, which had been present since the time of her second abdominal surgery, two days earlier.

      
      

   6. The Respondent treated patient D.P. with topical medications to decrease the intra-ocular pressure. Patient D.P.'s left eye responded to treatment with decreased pressure. The intra-ocular pressure in the right eye remained extremely high, in excess of 70 millimeters.

   7. On or about September 13, 1989, the Respondent performed a vitreous tap of the patient D.P.'s right eye, which immediately relieved the intra-ocular pressure. The Respondent did not consult patient D.P.'s surgeons or internists prior to performing the vitreous tap, regarding the possible use of intravenous medications.

      
      

   8. On or about September 14, 1989, the Respondent consulted Dr. James Staman, a retinal specialist, due to the patient's diminished vision in her right eye. Dr. Staman examined patient D.P. and diagnosed her with a vitreous hemorrhage. (End of stipulated facts).

      
      

   9. The Respondent has been licensed to practice medicine in the State of Florida since 1954 and has practiced in the field of ophthalmology since 1966. He has been board certified in the field of ophthalmology since 1969. He has never been investigated or disciplined by the Department of Business and Professional Regulation or any predecessor agency charged with regulating the licensure and practice standards of medical doctors in Florida. The Respondent maintains hospital staff privileges appropriate to his practice and has never had hospital staff privileges denied, revoked, or suspended at any hospital at which he has had privileges.

      
      

   10. Patient D.P. is a 65-year-old-female, who presented to the Respondent on September 13, 1989 complaining of severe pain in both eyes and with regard to which the Respondent immediately determined the presence of extremely intra- ocular pressure in both eyes. Patient D.P. had recently undergone a gastrectomy, a major abdominal surgical procedure, within 48 hours prior to presenting to the Respondent. This was the second abdominal surgery she had undergone within the past two weeks.

       
       

   11. When she presented to the Respondent on that date, she was in severe pain from the increased intra-ocular pressure in both eyes and appeared to be weak and in great discomfort. Pursuant to order of her doctors who attended and treated her with regard to the abdominal condition and surgery, the patient was and had been "NPO" for four weeks. This condition or situation means that she was forbidden from taking food or liquids of any type by mouth during this period of time.

       
       

   12. Upon evaluating the pressure in her eyes, the Respondent determined that the intra-ocular pressure in her left eye was 35 millimeters of mercury and in excess of 70 millimeters of mercury in the right eye. This is because the standard instrument with which her pressure was tested by the Respondent only depicts a maximum pressure of 70 millimeters of mercury. The normal intra- ocular pressure for such a patient would be 17-18 millimeters of mercury.

       
       

   13. Upon evaluating and examining the patient, the Respondent determined her condition to be bilateral acute angle closure glaucoma. He determined that the condition had been present since her surgery 48 hours earlier. The anesthesia from the surgery had precipitated dilation in both eyes which, in turn, precipitated the acute angle closure glaucoma. This occurred because, upon the dilation of the pupils of both eyes caused by the anesthesia, the iris folded back as the pupil expanded, and the folds of the iris occluded or blocked the drain structure by which fluid can drain from within the eye. The inability of the fluid to drain thus caused the severe increase in intra-ocular pressure and thus the glaucoma condition.

   14. The Respondent initially treated the acute angle closure glaucoma in both eyes with glycerin. This is a topical medication designed to reduce the amount of swelling in the cornea and to increase absorption of medication into the eye. The Respondent also initially treated the condition with pilocarpine. This is a topical medication administered to constrict the pupil and thus open the channel in the trabecular meshwork (the drainage structure) in an attempt to break the attack of acute angle closure glaucoma by allowing the eye fluid to drain and thus relieve the pressure. The intent is that by constricting the pupil, the iris will stretch with the pupil's closure so as to remove its folds from the position of blocking the channel in the trabecular meshwork.

       
       

   15. The Respondent initially administered a "beta blocker" medication in an attempt to open the trabecular meshwork by cutting down on the amount of aqueous fluid produced by the ciliary body. The topical medications, indeed, broke the attack of glaucoma in the left eye and the intra-ocular pressure in that eye returned to normal levels. However, after approximately a four-hour trial of the array of topical medications used by the Respondent, the attack of glaucoma in the right eye had not subsided at all.

       
       

   16. Prolonged elevated intra-ocular pressure of the magnitude of over 70 millimeters of mercury in the right eye posed a great danger of loss of vision in that eye due to potential occlusion of the ocular artery supplying blood to the eye and concomitant permanent damage to the optic nerve. The artery can be occluded or closed off due to such excessive pressure because the pressure at that level will exceed the blood pressure generated by the heart through the vascular system, including the artery supplying that eye. This results in the ocular pressure overcoming the blood pressure within the artery, thus constricting the artery and, therefore, the blood supply to the eye. The loss of blood supply to the eye in a short time, possibly 90 minutes or less, can cause the eye tissue normally served by the artery to become necrotic (i.e. to die). Necrosis of the internal eye tissue, in turn, can cause complications by weakening the pertinent structures of the eye, such as the tissue by which the retina is attached and held in position.

       
       

   17. The Respondent observed the patient and performed this clinical treatment for approximately four hours without being able to relieve the elevated intra-ocular pressure in the right eye. The Respondent knew, given the symptoms and history with which the patient presented, that severe pain had been experienced by the patient in her eyes since she awakened from the anesthesia administered for her surgery. Thus, he knew that for approximately two days, the glaucoma condition had been operating on the structures of the eye. Accordingly, he knew that time was of the essence if he was going to be able to relieve the glaucoma and thus save the vision, or some of it, in her eye. After these hours of clinical attempts to cure her condition, and in view of the state of urgency the Respondent recognized in the patient, who had already experienced severely-elevated intra-ocular pressure for two days, the Respondent determined that the emergency nature of the patient's situation precluded use of the time necessary to consult with her surgeon and anesthesiologist, to attempt to hospitalize her, to administer a general anesthetic, and perform an alternative surgical procedure. The Respondent, therefore, elected to perform a "vitreous tap". The vitreous tap involves using a hypodermic needle with a "guarded needle" (meaning that the needle is protected so that only a small portion of the point of the needle projects from the guard structure) to withdraw a small amount of the vitreous fluid. This was done to reduce the pressure, open the angles at the trabecular structure in the eye and thus break the attack of acute angle closure glaucoma and return the eye to normal intra-ocular pressure. The

       vitreous tap was performed at approximately 4:05 that afternoon and was successful. It immediately broke the attack of acute angle closure glaucoma and the intra-ocular pressure returned to a normal range.

       
       

   18. However, a vitreous hemorrhage resulted from the vitreous tap caused by the needle striking a small blood vessel in the pars plana area of the eye. This area cannot be visualized when performing the vitreous tap because it is inside the eye. A vitreous hemorrhage is a known and accepted complication or risk of a vitreous procedure. However, it has a low incidence of occurrence of approximately 3-5 percent.

       
       

   19. Upon determining that the hemorrhage condition was present and on or about September 14, 1989, the Respondent obtained a consultation with Dr. James Staman, a vitreal-retinal surgeon, due to the diminished vision in the patient's right eye. Dr. Staman examined the patient and diagnosed a vitreous hemorrhage in her right eye.

       
       

   20. The incidence of retinal detachment from a vitrectomy is approximately 5-10 percent. It would have had a higher risk in this patient's case, due to the probability of her already suffering permanent damage to the eye and eye tissue caused by necrosis, which was caused by loss of blood supply to the eye during the extended period of high intra-ocular pressure. This likely damaged the optic nerve and occluded the ocular artery serving that eye or portion of the eye.

       
       

   21. Dr. Staman performed a vitrectomy and removed the hemorrhage or blood from the patient's eye. Unfortunately, a retinal detachment occurred as a complication of that vitrectomy. This chain of events ultimately resulted in the patient losing the vision in her right eye. This was because of the determination that the retinal detachment could not be repaired without causing the loss of vision itself.

       
       

   22. Dr. Doyle testified as an expert witness for the Respondent. Dr. Doyle is a board certified ophthalmologist specializing in the field of glaucoma and particularly in the sub-specialty area of glaucoma management, including surgical glaucoma management. Additionally, Dr. Doyle is a holder of a fellowship, involving further specialty training in the field of treatment and management of glaucoma and surgical alleviation and management of glaucoma. He is determined to be the most qualified expert witness by training, education and experience in the particular specialty concerning glaucoma, with which this patient's condition is characterized, as is provided in his testimony depicted in the transcript of this proceeding and in his curriculum vitae in evidence. This depiction of his training, education and experience is adopted, by reference, as fact.

       
       

   23. According to Dr. Doyle, the loss of vision in the right eye was not caused by the vitreous tap. Rather, the precipitating factor was the retinal detachment which occurred as the result of the direct vitrectomy surgery. A vitreous hemorrhage is a known complication of a vitreous tap and a retinal detachment is a known complication of a vitrectomy. The Respondent and all of the expert witnesses agreed that the patient had probably already suffered permanent damage to the right eye, prior to the performance of the vitreous tap, in the form of corneal decomposition, cataract formation and optic nerve damage. Dr. Doyle's testimony, as corroborated by that of the Respondent, established that, in all likelihood, significant necrosis of the eye tissue involved in the structure by which the retina is attached had occurred due to occlusion of the artery supplying blood to that area of the eye by the 48 hours or more of

       elevated intra-ocular pressure. The elevated intra-ocular pressure occurred as a result of the anesthesia administered to the patient during her abdominal surgery. The Respondent and all expert witnesses agreed that the Respondent had utilized an appropriate and proper procedure in performing the vitreous tap.

       However, Drs. Baumann and Berg, testifying for the Petitioner, do not agree that the vitreous tap should have been performed to relieve the attack of acute angle closure glaucoma in the right eye.

       
       

       Standard of Care

       
       

   24. The Respondent met the standard of care under the circumstances with which this patient presented, in his care and treatment of patient D.P. when he performed the vitreous tap to break the attack of acute angle closure glaucoma in patient D.P.'s right eye. The usual treatment options or alternatives for the treatment of acute angle closure glaucoma were not available to the Respondent due to the extremely unusual set of precipitating circumstances with which the patient presented to him. The patient had already had extreme intra- ocular pressure of approximately 48 hours duration, based upon all of the evidence available to the doctor in performing his diagnosis and examination of treatment options. Dr. Baumann admitted that the situation was "urgent", and Dr. Berg admitted that the situation was an "emergency" and that the Respondent's "back was up against the wall" under the circumstances. Because of this, the treatment, including surgical options preferred by Drs. Baumann and Berg, was not effectively available to the Respondent in an attempt to save the vision in the patient's eye. This is because, in order for a general anesthetic to be administered and the patient prepared, monitored and evaluated for the surgery, she would have had to be hospitalized, with accompanying consultation with her internal medicine physician, her abdominal surgeon, and the anesthesiologist. All of this process would have taken approximately six hours, from the time the decision was made to perform the vitreous tap, which was made when the topical medications failed to alleviate the attack, until the surgery could be performed in the hospital. Even if the patient's eye was not already significantly damaged by the 48 hours of elevated intra-ocular pressure when she presented to the Respondent at his office, substantial damage to her vision would have occurred as a medical certainty if another six hours had elapsed after the unsuccessful conclusion of conservative, clinical treatment between 4:00 p.m. and 4:30 p.m.

       
       

   25. The first treatment option in an angle closure glaucoma case is topical therapy in an attempt to reduce the production of fluid by the ciliary body in the eye and to cause the iris to constrict and thus open the angle and its drainage structure. The Respondent initially treated the angle closure glaucoma in both eyes with topical medications, including pilocarpine, glycerin and a beta blocker. He repeated this topical therapy for approximately three hours at the appropriate intervals which all testifying physicians, including Dr. Doyle, agree was "normal, appropriate care". Under ordinary circumstances, if the topical medications failed to lower the intra-ocular pressure, the use of diamox or mannitol would be the next treatment alternative to try. However, diamox, a carbonic anhydrase inhibitor, which affects the ciliary body to reduce the production of fluid, would not have produced any greater benefit than the topical medications which had failed already.

       
       

   26. Mannitol is a hyperosmotic medication. It is ordinarily administered by mouth, which allows the body's stomach and intestines to regulate and gradually accomplish a safe absorption of the medication. However, oral mannitol was not an option to this patient because, under her previous doctor's

       orders, she was not allowed to take anything by mouth at times pertinent to this proceeding, including the day and times when the Respondent was treating her for the glaucoma.

       
       

   27. Mannitol reduces vitreous volume by reducing water everywhere in the body, including the eyes. The fluid is drawn into the blood stream, which, however, increases blood volume. Administration of mannitol intravenously would have put the patient at significant risk for an overload of volume in the blood which would have caused readily increased blood pressure with attendant possible medical complications, massive congestive heart failure, or kidney problems. These are life-threatening risks which would have necessitated hospitalization, evaluation and monitoring in the hospital before and during administering of intravenous mannitol. By the time this could have been accomplished, the vision in the eye would have already been lost.

       
       

   28. Dr. Doyle and the Petitioner's expert, Dr. Baumann, both agreed that administration of intravenous mannitol would have been dangerous for this patient. Intravenous mannitol is only 50 percent effective in such a situation, in any event, and is contra-indicated in patients such as D.P., who are post- gastrectomy surgery. This 65-year-old patient, weakened by her second gastrectomy surgery in a four-week period, involving the use of general anesthetics, was simply not a safe candidate for the administration of mannitol under the risky intravenous method which would have been necessary with the patient. The risk of kidney or heart failure and other complications was simply too great.

       
       

   29. The Petitioner's expert, Dr. Baumann, admitted that it was reasonable for the Respondent to have these concerns about the use of diamox and intravenous mannitol and further that the Respondent was not negligent in deciding not to use those medications.

       
       

   30. Under ordinary circumstances, if the topical therapy and the administration of medication failed to relieve an attack of acute angle closure glaucoma, the next course of treatment to be considered would be an argon or YAG laser iridectomy or an irridoplasty in order to place a small hole in the iris to relieve the pressure differential in the eye.

       
       

   31. A laser is a focused beam of light, at high energy, which can insert the necessary hole in the eye to relieve the intra-ocular pressure. It requires a clear media over the iris in order to penetrate the eye and make the hole in the required position. In this case, due to the extraordinary high intra-ocular pressure over a two-day period, the cornea was very cloudy and hazy. This precluded the laser being effective and created the potential for damage to the cornea had the laser been directed against the eye. Dr. Doyle and the Petitioner's experts, Dr. Berg and Dr. Baumann, all agreed, that in a patient such as D.P., with intra-ocular pressure of over 70 millimeters of mercury extending for 48 hours, the cornea would be very cloudy. The Respondent's testimony confirms this. After the vitreous tap was performed and the intra- ocular pressure relieved, the edema and cloudiness of the cornea resolved itself so that the Respondent was able to perform a successful argon laser iridectomy the following day and a YAG laser irridoplasty in his office five days later, to prevent a recurrence of the problem by providing an additional means of fluid drainage.

       
       

   32. Under ordinary circumstances where topical therapy, medication therapy, and laser iridectomy had either failed or were not viable options, then surgical treatment would be the next consideration. The surgery would include

       either surgical iridectomy or a trabeculectomy. A surgical iridectomy creates a small hole in the iris which relieves the pressure. A trabeculectomy creates a secondary drain for the eye.

       
       

   33. The Respondent was justified in not pursuing a surgical iridectomy or trabeculectomy in that the surgery could not have been done under a local anesthetic and would have required general anesthesia. This is undisputed. This would have required surgery in the hospital operating room, including the necessity for insertion of a tube, which might have caused risk to her recent abdominal surgery. It would have necessitated contacting her surgeon, her internal medicine physician, and her anesthesiologist for pre-surgical

       evaluation and clearance. This would have taken considerable time, at least six hours, thereby, within reasonable medical certainty causing permanent significant damage or entire loss of vision to the eye.

       
       

   34. A surgical iridectomy or trabeculectomy are not benign procedures and carry the highest complication rate of any ophthalmic procedure, when used for malignant glaucoma and, indeed, the accepted treatment for malignant glaucoma (albeit a different type of glaucoma condition) is a vitreous tap. Either surgical procedure would have had a risk of complication resulting in loss of vision in the eye of at least 3-5 percent or more, thus, the same or greater level of risk than that attendant to the vitreous tap procedure.

       
       

   35. Paracentesis, a surgical procedure to make a small hole in the anterior chamber of the eye, was itself not a reasonable treatment alternative under the circumstances. It was simply not feasible because the anterior chamber of the eye had virtually ceased to exist because the iris diaphragm had bulged forward through the space normally occupied by the anterior chamber because of the great pressure behind it.

       
       

   36. Dr. Doyle established that the Respondent's vitreous tap effected a complete cure of the glaucoma condition in patient D.P. A vitreous tap is a procedure recognized in the medical literature as a treatment for several ophthalmic conditions, including malignant glaucoma, positive pressure during cataract surgery, and for the purpose of obtaining vitreous material for pathological testing (biopsy).

       
       

   37. The medical literature, indeed, does not address the use of a vitreous tap as treatment for acute angle closure glaucoma because the medical literature and text books tend to deal with more common presentations of all diseases.

       None of the literature addresses treatment of acute angle closure glaucoma under the unusual set of emergency circumstances presented with this case.

       
       

   38. The Respondent's expert, Dr. William Doyle, is a board-certified ophthalmologist who has a sub-specialty in glaucoma management and treatment, including surgical management thereof. He is one of only a handful of fellowship-trained glaucoma specialists in the State of Florida and the only one in the North Florida area. He sees patients on referral from other doctors in Florida and South Georgia, who have unusual glaucoma-related problems. Dr. Doyle is an assistant professor of ophthalmology at the University of Florida and is responsible for teaching glaucoma management and treatment. He has authored some twelve article, book chapters, and other publications specifically in the field of glaucoma management and treatment.

   39. According to Dr. Doyle, if the vitreous tap procedure had been successful, the Respondent "should have written it out for the literature as a viable, interesting way to cure a disease". The Petitioner's expert, Dr. Berg, in his report attached to his deposition, referenced an article in International Ophthalmology Clinics, by Kevin C. Greenridge, M.D., of the Metropolitan Hospital Center, Department of Ophthalmology, New York, New York, and which Dr. Berg admitted was authoritative in the field of acute angle closure glaucoma. The article specifically states that in cases of acute angle closure glaucoma, for a duration of more than 24 hours, the eyes are more inflamed and have evidence of corneal decomposition, which are relative contra indications to argon laser iridectomy. Since the acute angle closure glaucoma had a duration of 48 hours when the Respondent first saw the patient, corneal decomposition could have been significantly advanced by that point such that the set of conditions requisite to causing the retinal detachment, which ultimately led to the loss of the patient's sight in that eye, were likely already in place.

       Thus, the vitreous hemorrhage caused by the vitreous tap may not itself have been the cause of the loss of sight.

       
       

       Medical Record Issue

       
       

   40. The Respondent's office records note "Vitreous tap. 4:30 p.m., immediately patient felt better". The Respondent also made an entry in the patient's hospital chart on the date of the vitreous tap which noted:

       
       

       Acute angle closure glaucoma right eye. Totally unresponsive to treatment. Pressure of 70 unaffected by treatment. Pars plana

       1/2 cc vitreous tap done with immediate relief. Both eyes very shallow [referring to anterior chamber]. Started on pilocarpine and both

       eyes will need argon laser iridectomy soon.

       
       

       A copy of the hospital note was included and contained in the Respondent's records of the patient. In addition, the Respondent obtained a signed, written, informed consent for the procedure.

       
       

   41. The Respondent's records, including his office records and the note in the hospital chart, adequately document the course of therapy leading up to the vitreous tap and the vitreous tap procedure itself such that the Respondent's medical record keeping would adequately inform the Respondent in the future when reviewing the patient's records with a view toward further follow-up and treatment of the patient's entire status. They would also adequately inform any physician to whom the patient was later referred by the Respondent of her status, the treatment and procedures performed, and the symptoms and diagnosis involved in the patient's care and treatment.

       
       

       CONCLUSIONS OF LAW

       
       

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

   43. Pursuant to Section 458.331(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license to practice medicine of any physician found guilty of the acts enumerated in Section 458.331(1), Florida Statutes, including:

       
       

       (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, test results, records of drugs prescribed, dispensed, and 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 unacceptable under similar circumstances.

       
       

   44. Pursuant to Section 458.331(3), Florida Statutes:

       
       

       In any administrative action against a physician which does not involve revocation or suspension of license, the division shall have the burden, by the greater weight of the evidence, to establish the existence of grounds for discip- linary action.

       
       

   45. In this license disciplinary proceeding in which revocation or suspension is not sought, the Petitioner bears the burden of proving its charges by a preponderance of the evidence. DPR v. Colvin, 13 FALR 4367 (Feb. 28, 1991). The underlying facts showing the patient's condition and status at all times pertinent hereto, the treatment modalities and procedures contemplated or actually rendered, the observations made, the results obtained, and the ultimate facts concerning whether the treatment modalities employed departed from the proper standard of care, are fact determinations susceptible to and demonstrable by ordinary methods of proof. They are not matters which are of necessity infused with agency expertise. Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. App. 1st Dist. 1983). Employing "ordinary methods of proof" herein with the use of expert witnesses, the Hearing Officer has weighed the candor credibility level of experience, education, training, and the emphasis of that experience, education, training, and research as to each of the expert witnesses and has determined that Dr. Doyle's testimony is accepted as having more weight and probative value than that of Drs. Berg and Baumann for the reasons delineated in the above Findings of Fact. Thus, Dr. Doyle's testimony is accepted over that of the other two physicians testifying, such that, in conjunction with the Respondent's testimony, which is also accepted as credible, probative, and worthy of belief, it is determined that the Petitioner has not proven the allegations of the Administrative Complaint by the greater weight of the evidence. It has, thus, not been demonstrated that the Respondent violated Section 458.331(1)(m) or (t), Florida Statutes, by performing the vitreous tap on the right eye of patient D.P. or in his documentation in the medical records of his course of treatment for the patient.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that the Respondent be found not guilty of violating Sections 458.331(1)(m) or (t), Florida Statutes, and that the Administrative Complaint against the Respondent be dismissed in its entirety.

DONE AND ENTERED this 7th day of September, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF 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 7th day of September, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5990

Petitioner's Proposed Findings of Fact

1-16. Accepted, but not necessarily for their purported material import.

1. Rejected, as contrary to the preponderant, probative evidence.

2. Accepted.

3. Accepted, but not itself dispositive of the material issues presented.

4. Accepted.

21-26. Accepted, but not necessarily for their purported material import and subordinate to the Hearing Officer's findings of fact on this subject matter.

27. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and as not probative of the medical records being inadequate as a matter of fact and law.

28-29. Accepted.

30. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant weight of the evidence.

31-41. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not dispositive of the material issues presented.

42-43. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.

44-46. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter, and for the additional reason that these proposed findings are not dispositive of the material issues presented.

47-50. Accepted, in part, but not as materially dispositive of the issues presented for resolution and as subordinate to the Hearing Officer's findings of fact on this subject matter.

1. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Accepted.

3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

Respondent's Proposed Findings of Fact

1-55. Accepted, to the extent not rejected by or subordinate to the Hearing Officer's findings of fact. Those proposed findings of fact not treated in the Hearing Officer's findings of fact are rejected as unnecessary or immaterial.

COPIES FURNISHED:

Alex D. Barker, Esquire Department of Business and

Professional Regulation 7960 Arlington Expressway

Suite 230

Jacksonville, Florida 32211

Jeptha F. Barbour, Esquire Post Office Box 447 Jacksonville, Florida 32201

Dr. Marm Harris Executive Director

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 93-005990

Orders for Case No: 93-005990