STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6437

) HERNANDO L. DEL CASTILLO, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Tampa, Florida, on April 11, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Francesca Plendl

Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Grover C. Freeman

Freeman, Hunter & Malloy

201 East Kennedy Boulevard, Suite 1350 Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 24, 1993, Petitioner alleged that Respondent failed to assess adequately the condition of Patient R. S., who presented with a premature rupture of membranes in connection with her pregnancy. The Administrative Complaint alleges that Respondent failed to use Pitocin to try to stimulate contractions and failed to place an intrauterine catheter to document the contractions prior to performing a caesarian section. The Administrative Complaint alleges that Respondent was guilty of gross or

repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar conditions by failing to evaluate appropriately the poor contractions and failing to stimulate appropriately the patient's contractions prior to doing a caesarian section.

Petitioner alleged that Respondent was guilty of another violation of the same standard of care in connection with Patient L. C. The Administrative Complaint alleges that the patient also presented with a pregnancy. Although only 32 weeks' pregnant, L.C.'s cervix was allegedly 1-2 centimeters dilated. Respondent allegedly diagnosed cervical incompetence and performed a cervical cerclage in order to reinforce the cervix.

Respondent demanded a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence five exhibits. Respondent called two witnesses and offered into evidence six exhibits. All exhibits were admitted.

The transcript was filed May 2, 1994. Each party filed a proposed recommended order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. At all material times, Respondent has been licensed as a physician in Florida, holding license number ME 0024024. He has not been disciplined previously.

   
   

2. R. S. was a 19 year old, about 32-33 weeks' pregnant at the time of the caesarian section. She was admitted at Walker Memorial Hospital with ruptured membranes on the evening of January 6, 1991. She remained in the hospital overnight and was seen by Respondent on the following morning.

   
   

3. When admitted, R. S.'s cervix was 2-3 centimeters dilated and partially effaced, or thinned. Her contractions were lasting 30-70 seconds.

   
   

4. When seen by Respondent at about 9:15 am on January 7, R. S. was still having mild contractions. Her cervix had dilated to about 4.5 centimeters. Her contractions were about two to three minutes apart and lasted about 40 seconds. The fetal heart tones were good.

   
   

5. After 11:00 am, R. S.'s cervix did not dilate further. Respondent checked her several times to confirm that her labor was not progressing, despite adequate labor in terms of the strength, frequency, and duration of the contractions.

   
   

6. At the same time, Respondent observed moulding or elongation of the cartiliginous fetal skull in response to the pressures it encountered above the cervix. Through palpitation, Respondent confirmed that the frequency, duration, and strength of the contractions remained adequate.

   
   

7. Due to the head-first position of the fetus and absence of other abnormalities, Respondent appropriately concluded that the most likely reason that the labor was not progressing was cephalopelvic disproportion. This is a condition in which the head of the fetus is too large for the pelvic area of the mother.

8. Based on his determination of the adequacy of the contractions and the presence of cephalopelvic disproportion, Respondent decided not to use Pitocin, which is a medication used to stimulate labor. The use of Pitocin is contraindicated when the baby's head is too large for the mother's pelvic area.

   
   

9. By 2:00 pm, three hours had passed without further dilation of the cervix. At this time, Respondent decided to perform a caesarian section.

   
   

10. A couple of hours later, Respondent performed a caesarian section on

    R. S. The baby was delivered without complications, and the mother and baby were discharged from the hospital without any problems.

    
    

11. Compared to vaginal delivery, a caesarian section involves various risks to the mother and fetus, including injury to the mother or fetus from the anaesthesia or incision. Incidents of aspiration are more common among newborns taken by caesarian section. There is a somewhat increased chance that the mother will have to undergo caesarians for subsequent pregnancies. Also, the duration and cost of hospitalization are greater for a caesarian section.

    
    

12. However, Respondent's decision to perform a caesarian after three hours of no progress in labor did not violate the applicable standard of care and did not constitute gross or repeated malpractice.

    
    

13. L. C. was a 26 year old in her seventh pregnancy. She had previously delivered three babies at full term and one preterm at about 36 weeks. Normal term is 38-40 weeks. L. C. had suffered spontaneous abortions of two fetuses at two and three months' gestation.

    
    

14. Respondent first saw L. C. in February, 1990, and thereafter provided her prenatal care. After June 13, Respondent saw L. C. weekly. In early July,

    L. C.'s cervix began to dilate and efface. She was hospitalized on July 11, 1990. L. C. presented with definite uterine contractions at about 32.5 weeks' gestation. Her cervix was dilated to 2 cm.

    
    

15. Respondent saw L. C. and gave her medications to stop preterm labor by relaxing the uterus. After ruling out preterm contractions, Respondent appropriately diagnosed an incompetent cervix, which is a painless effacement and dilation of the cervix that often leads to preterm delivery.

    
    

16. The diagnosis of an incompetent cervix is often based on a patient's history. L. C. had no history of incompetent cervix. However, the diagnosis may also be based on physical findings.

    
    

17. L. C.'s cervix was about 80 percent effaced at the time of her hospitalization. Combined with the dilation of two centimeters, she could appropriately be diagnosed as having an incompetent cervix.

    
    

18. The primary health risk of an incompetent cervix is a preterm delivery. Premature infants may suffer from a variety of problems stemming from organ immaturity. A factor aggravating the risk is that the hospital in question is in a rural area, contains only about 100 beds, and has no secondary or tertiary facilities for the treatment of neonatals.

    
    

19. Weighing these factors, Respondent decided to apply a cervical cerclage. A cerclage involves suturing the cervix shut so that it can withstand the pressure of the fetus without dilating and causing premature delivery.

20. There are risks in the cerclage. A pursestring suture must be placed high in the cervix. There is thus the risk of rupture of the membranes. Infection is another risk. These risks are greater in the presence of greater effacement and dilation, as well as when the membrane is bulging into the cervical area.

    
    

21. A cerclage is normally performed at about 24 weeks' gestation. Cerclages are rarely if ever installed at 32 weeks' gestation, as Respondent did in this case. However, the procedure was performed without complications to the mother or fetus. The mother's postoperative contractions were eliminated with medication and did not recur until she delivered a healthy baby at 38 weeks.

    The baby weighed 6 pounds 14 ounces, which was more than the weight of the babies delivered in any of the mother's four prior live births.

    
    

22. Respondent's decision to apply a cerclage at 32 weeks' gestation did not violate the applicable standard of care and did not constitute gross or repeated malpractice.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

24. Section 458.331(1)(t) provides that the Board of Medicine may discipline a physician found guilty of:

    
    

    Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by

    a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. . . .

    
    

25. Section 458.331(3) provides:

    
    

    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 disciplinary action. The division shall establish grounds for revocation or suspension by clear and convincing evidence.

    
    

26. Under Section 458.331(2), a violation of any provision of Section 458.331(1) qualifies as grounds for revocation or suspension, among other lesser penalties. The Administrative Complaint seeks, among other penalties, revocation. Petitioner's Proposed Recommended Order does not seek revocation or suspension.

    
    

27. Even if the applicable standard of proof were a mere preponderance of the evidence, as opposed to clear and convincing evidence, Petitioner has failed to prove that Respondent violated the applicable standard of care with respect to either patient.

RECOMMENDATION

Based upon the foregoing, it is hereby

RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint.

ENTERED on June 6, 1994, in Tallahassee, Florida.

___________________________________ ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on June 6, 1994.

APPENDIX

Treatment Accorded Proposed Findings of Petitioner 1-5: adopted or adopted in substance.

6-8: rejected as unsupported by the appropriate weight of the evidence. 9: adopted or adopted in substance.

10-11: rejected as unsupported by the appropriate weight of the evidence. 12-20: adopted or adopted in substance.

21-22: rejected as unsupported by the appropriate weight of the evidence. 23: rejected as recitation of evidence.

24: rejected as unsupported by the appropriate weight of the evidence.

25: rejected as subordinate.

26: rejected as recitation of evidence.

27: rejected as unsupported by the appropriate weight of the evidence. 28-33: adopted or adopted in substance.

34: rejected as unsupported by the appropriate weight of the evidence. 35-43: adopted or adopted in substance.

44: rejected as unsupported by the appropriate weight of the evidence. 45: rejected as irrelevant.

46: adopted or adopted in substance.

47-51: rejected as recitation of evidence.

52: rejected as unsupported by the appropriate weight of the evidence.

Treatment Accorded Proposed Findings of Respondent 1-9: adopted or adopted in substance.

10-19: rejected as recitation of evidence and subordinate. 20-25: adopted or adopted in substance.

26-28: rejected as recitation of evidence and subordinate. 29-30: adopted or adopted in substance.

31: rejected as recitation of evidence. 32-33: adopted or adopted in substance.

34: rejected as recitation of evidence and subordinate.

COPIES FURNISHED:

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Dorothy Faircloth Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0792

Francesca Plendl, Senior Attorney Department of Business and

Professional Regulation 1940 N. Monroe St.

Tallahassee, FL 32399-0750

Grover C. Freeman Freeman, Hunter & Malloy

201 E. Kennedy Blvd., Ste. 1350

Tampa, FL 33602

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: 93-006437

Orders for Case No: 93-006437