STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-7142

)

ARTHUR J. SCHATZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 2, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Arthur B. Skafidas, Esquire

Agency For Health Care Administration 1940 North Monroe Street, Legal A Tallahassee, Florida 32399-0792

For Respondent: Jonathon P. Lynn, Esquire

Stephens, Lynn, Klein & McNicholas, P.A. Two Datran Center, PH I & PH II

9130 South Dadeland Boulevard Miami, Florida 33156

STATEMENT OF THE ISSUE

The issue for determination at formal hearing was whether Respondent committed the offenses set forth in the administrative complaint, and, if so, what action should be taken.

PRELIMINARY STATEMENT

On August 25, 1992, an administrative complaint was filed by the Department of Professional Regulation (now, Agency for Health Care Administration), Board of Medicine (Petitioner) against Arthur J. Schatz, M.D. (Respondent).

Petitioner charged Respondent with violating Section 458.331(1)(t), Florida Statutes, by 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 accepted under similar conditions and circumstances. On September 21, 1992, Respondent executed an election of rights disputing the allegations of fact in the administrative complaint and requesting a formal hearing.

On December 21, 1993, the matter was referred to the Division of Administrative Hearings. Pursuant to notice, a hearing was held on September 2, 1994. Prior to hearing, the parties filed a joint prehearing stipulation. At the hearing, Petitioner presented the testimony of two witnesses, one an expert, and entered seven exhibits into evidence. Respondent testified on his own behalf and presented the testimony of one witness, an expert, and entered no exhibits into evidence.

A transcript of the hearing was ordered. The parties submitted proposed findings of fact which have been addressed in the appendix to this recommended order. 1/

FINDINGS OF FACT

1. The Department of Professional Regulation (now, the Agency for Health Care Administration), Board of Medicine (Petitioner), is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 458, Florida Statutes.

   
   

2. At all times material hereto, Arthur J. Schatz, M.D. (Respondent), has been a licensed physician in the State of Florida, having been issued license number ME 0024745.

   
   

3. On or about September 7, 1988, Patient A. H., a 61-year-old female, presented to her internist with complaints of left pelvic pain. The internist ordered a pelvic sonogram and an MRI. Both procedures revealed a five centimeter mass on the left side of Patient A. H.'s pelvis.

   
   

4. The internist referred Patient A. H. to Respondent. On or about September 16, 1988, she presented to Respondent who performed an examination by palpation, which revealed a mass on the left side of her pelvis. Respondent diagnosed Patient A. H. as having a left ovarian tumor.

   
   

5. Respondent scheduled Patient A. H. for exploratory laparotomy and probable total abdominal hysterectomy and bilateral salpingo-oophorectomy. Exploratory laparotomy is a surgical procedure in which a patient's abdomen is opened to explore the abdominal cavity in order to determine whether there is any pathology present.

   
   

6. Exploratory laparotomy was indicated, and Respondent was qualified and credentialed to perform the surgical procedure.

   
   

7. Because of the location of the mass and because of Patient A. H.'s history, especially her age, pre-operatively, Respondent believed that the mass was highly suggestive of a malignancy.

   
   

8. Respondent did not perform or order any other diagnostic test or seek any consultation with any other physician or any specialist. Such conduct by Respondent was within the acceptable standard of care, skill, and treatment in the practice of medicine.

   
   

9. On or about September 25, 1988, Respondent admitted Patient A. H. to Parkway Regional Medical Center for the surgical procedure to be performed.

10. On or about September 26, 1988, Respondent performed the exploratory laparotomy. Upon entering Patient A. H.'s abdomen, Respondent took washings. Respondent then proceeded to examine her female organs and discovered that they were normal.

    
    

11. Continuing, Respondent palpated the mass on the left side of Patient

    A. H.'s pelvis in the retroperitoneal area, behind a very thin layer of tissue called the peritoneum.

    
    

12. Pre-operatively, Respondent could not have known that the mass was retroperitoneal. The overwhelming majority, ninety-eight percent, of gynecologic surgery is performed on the intra-peritoneal structures, while only two percent is performed retroperitoneally. General gynecologists are trained to and do perform surgical procedures retroperitoneally.

    
    

13. Respondent appropriately elected to open the peritoneum and entered the retroperitoneal space to identify and surgically address the area of suspected pathology. He found a somewhat soft mass, approximately five centimeters in diameter, on the pelvic side wall with a white structure running through the middle of the mass. The mass, a tumor, which was encapsulated was round in shape and yellowish in color. Encapsulation is more commonly associated with benign tumors than malignant tumors.

    
    

14. Unsuccessfully, Respondent attempted several times to dissect the mass off the white structure. Respondent recognized the white structure as the obturator nerve which was later identified as such.

    
    

15. Respondent observed that the mass had the general appearance of a lymphoma which is a benign, fatty, slow-growing tumor. However, he was unable to precisely identify the nature of the mass which could also have been lymphosarcoma, malignant, since no analysis had been performed on the mass. Respondent believed that the tumor was more likely benign than malignant.

    
    

16. Confronted with a most unusual situation in that the tumor was in a very unusual location and the obturator nerve was within the mass itself, Respondent requested that the entire hospital be paged for a gynecologic oncologist. He was informed that neither of the two gynecologic oncologists on the hospital staff were in the hospital or scheduled to be in the hospital. Respondent's act of not having a gynecologic oncologist present or on call during the scheduled surgery was not practicing medicine below the acceptable standard of care, skill, and treatment.

    
    

17. Respondent then requested the paging of a general surgeon. A board certified general surgeon responded and entered the operating suite where Respondent was operating on Patient A. H. The general surgeon did not scrub to assist Respondent but came into Respondent's operating suite and viewed the operating field. He advised Respondent that he had never seen a condition like that of Patient A. H. and could offer no suggestions.

    
    

18. Getting no assistance from the general surgeon, Respondent requested that a neurosurgeon or orthopedist be called. A board certified orthopedist was in surgery in an adjacent operating suite. Respondent broke scrub, left his operating suite and entered the orthopedist's operating suite. He questioned the orthopedist regarding the function of the obturator nerve and the anticipated effect of sacrificing the nerve, if that were necessary, in order to remove the tumor in its entirety.

19. The orthopedist advised Respondent that the obturator nerve was a major nerve which governs the muscles involved in the adduction of the thigh and affects the ability to walk. He further advised Respondent that sacrificing the nerve should result in only a minimal disability which could be adequately addressed with physical therapy.

    
    

20. Generally, a general gynecologist, including Respondent, has a cursory understanding of the function of the obturator nerve. Arising from the lumbar section of the spinal column, the obturator nerve is a major nerve and is extremely important in allowing a person's legs to move to the midline for the purpose of walking.

    
    

21. After being advised by the orthopedist, Respondent re-scrubbed and returned to his operating suite. He again attempted, without success, to dissect the tumor from the obturator nerve.

    
    

22. Thereupon, Respondent decided that Patient A. H. would benefit from a complete resection of the tumor even though it would mean sacrificing the obturator nerve in order to remove the tumor in its entirety. He had no experience in the removal of lymphomas from nerves.

    
    

23. Respondent appropriately decided against performing a frozen section on the tumor, prior to removal, because such a procedure might expose Patient A.

    H. to the risk of cancer cells being spread through the retroperitoneal space if the tumor was malignant. His action was within the acceptable standard of care, skill, and treatment in the practice of medicine.

    
    

24. A frozen section is a procedure in the intraoperative period 2/ in which a surgeon attempts to remove a piece of a tumor or mass to send to a pathologist to determine whether the mass is malignant or benign. The procedure is important because it provides the surgeon with direction as to how to proceed in terms of treatment and care of a patient while the patient is under anesthesia and in the operating room.

    
    

25. Furthermore, Respondent appropriately decided against removing only portions of the tumor, thereby leaving some of it behind, because such a procedure could result in the tumor re-growing, and possibly as a malignancy. His action was within the acceptable standard of care, skill, and treatment in the practice of medicine.

    
    

26. Respondent removed the tumor in its entirety which included removing the portion of the obturator nerve to which the tumor was attached to and incorporated within the tumor. Respondent sent the specimen to the pathology lab for analysis which revealed that the tumor was a fatty, benign lymphoma and that the white structure incorporated within the tumor was nerve tissue. Prior to removing the tumor in its entirety, there was no acceptable method available to Respondent for him to definitively know that the tumor was benign.

    
    

27. Respondent failed to record his contacts with the general surgeon and the orthopedic surgeon in his operative notes for the surgery but recorded the contacts in his discharge summary. It is customary and appropriate to record intra-operative consultations in an operative report. Neither the general surgeon nor the orthopedist considered their contact with Respondent as a consultation.

28. Patient A. H.'s postoperative recovery was not as anticipated in that she suffered severe, instead of minimal, disability which has affected her ability to walk. She is unable to walk without the assistance of either a cane or a leg brace.

    
    

29. No literature or authority exists which supports the sacrifice of the obturator nerve for a benign tumor or a tumor which appears to be benign.

    
    

30. Patient A. H.'s condition was a rare case because of the location of the tumor and because the tumor was attached to the obturator nerve which was incorporated within the tumor. Neither the expert for Petitioner nor for Respondent had ever experienced, or heard or read of such a situation. Furthermore, because of Respondent's experience with Patient A. H. and her resulting condition, both experts have greater knowledge of the obturator nerve.

    
    

31. Respondent's removal of the tumor in its entirety, including removing a portion of the obturator nerve, was within the acceptable standard of care, skill, and treatment in the practice of medicine.

    
    

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections

    120.57 and 455.225, Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

33. Pursuant to Subsection 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 licensed in the State of Florida, who is found guilty of the acts enumerated in Subsection 458.331(1), Florida Statutes.

    
    

34. License revocation proceedings are penal in nature. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

35. The Department of Professional Regulation (now, the Agency For Health Care Administration), Board of Medicine (Petitioner), charges Arthur J. Schatz,

    M.D. (Respondent), with violating Section 458.331(1)(t), Florida Statutes, in the care and treatment he provided to Patient A. H. by 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.

    
    

36. Subsection 458.331(1)(t) provides in pertinent part:

    
    

    The board shall give great weight to the provisions of s. 766.102 when enforcing this paragraph . . . .

37. Section 766.102, Florida Statutes, addresses medical negligence and the standards of recovery for medical negligence and provides in pertinent part:

    
    

    1. In any action for recovery of damages based on the . . . personal injury of any person in which it is alleged that such . . . injury resulted from the negligence of a health care provider . . . the claimant shall have the burden of proving by the greater weight of the evidence

       that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.

       The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

       * * *

       (4) The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider . . . .

       
       

38. By joint prehearing stipulation, Petitioner contended that Respondent violated Section 458.331(1)(t), Florida Statutes, by "failing to obtain the necessary surgical consultations or assistance prior to removing" the tumor from Patient A. H.'s "obturator nerve" and by "inappropriately and unnecessarily remove [sic] a portion of "Patient A. H.'s "obturator nerve when he dissected" the tumor from the nerve. Any unrelated argument by Petitioner will not be addressed. 3/

    
    

39. Regarding Petitioner's contention that Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances by failing to obtain the necessary surgical consultations or assistance prior to removing the tumor from Patient A. H.'s obturator nerve, the evidence is not clear and convincing to substantiate the charge. To the contrary, the evidence is clear and convincing that Respondent's actions were within the acceptable level of care, skill, and treatment in the practice of medicine. Hence, Petitioner has failed to meet its burden on this charge.

    
    

40. As to Petitioner's contention that Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances by inappropriately and unnecessarily removing a portion of Patient A. H.'s obturator nerve when he dissected the tumor from the nerve, here, again, the evidence is not clear and convincing to substantiate the charge. The location of the tumor and it being attached to the obturator nerve which was incorporated within the tumor was a rare condition and completely foreign to all whom came in contact with the condition, including both Petitioner's and Respondent's experts. Hence, Petitioner has also failed to meet its burden on this charge.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency For Health Care Administration, Board of

Medicine, enter a final order dismissing the administrative complaint.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of December 1994.

ERROL H. POWELL

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 2nd day of December 1994.

ENDNOTES

1/ Petitioner filed motions to strike Respondent's proposed recommended order as untimely. The motions to strike were denied.

2/ Intraoperative period means from the time that the patient has the initial start of surgery until the time surgery is completed.

3/ In Petitioner's Closing Argument, filed along with its proposed findings, it addresses additional grounds in support of its charge that Respondent violated Section 458.331(1)(t), F.S. Such grounds were not, however, alleged in the administrative complaint and cannot now form the basis for disciplinary action.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact

1. Partially accepted in Finding of Fact 2.

2. Partially accepted in Finding of Fact 3.

3 and 4. Partially accepted in Finding of Fact 4.

5. Partially accepted in Finding of Fact 8.

6 and 7. Partially accepted in Finding of Fact 5.

8, 44 and 55. Rejected as being contrary to the greater weight of the evidence, or not supported by the more credible evidence.

1. Partially accepted in Finding of Fact 9.

2. Partially accepted in Finding of Fact 7.

11 and 12. Partially accepted in Finding of Fact 10.

1. Partially accepted in Finding of Fact 11.

2. Partially accepted in Finding of Fact 12.

15, 16, 19, 20 and 21. Partially accepted in Finding of Fact 13.

17 and 18. Partially accepted in Finding of Fact 14. 22-24. Partially accepted in Finding of Fact 15.

27-30. Partially accepted in Finding of Fact 17.

31 and 32. Partially accepted in Finding of Fact 18.

33. Partially accepted in Finding of Fact 19.

34 and 35. Partially accepted in Finding of Fact 20.

36 and 37. Partially accepted in Finding of Fact 21.

38. Partially accepted in Finding of Fact 22.

39, 40 and 43. Partially accepted in Finding of Fact 26.

41 and 42. Partially accepted in Finding of Fact 24.

45, 46 and 48. Partially accepted in Finding of Fact 27.

47 and 49. Rejected as subordinate, unnecessary, or irrelevant.

50 and 51. Partially accepted in Finding of Fact 31.

52 and 53. Partially accepted in Finding of Fact 28.

54. Partially accepted in Finding of Fact 29.

Respondent's Proposed Findings of Fact

1. Partially accepted in Finding of Fact 2.

2. Partially accepted in Finding of Fact 3.

3 and 4. Partially accepted in Finding of Fact 4.

5 and 6. Partially accepted in Finding of Fact 5.

1. Partially accepted in Finding of Fact 8.

2. Partially accepted in Findings of Fact 6 and 16.

3. Partially accepted in Finding of Fact 9.

4. Partially accepted in Finding of Fact 7.

11 and 12. Partially accepted in Finding of Fact 10.

13. Partially accepted in Findings of Fact 10 and 11.

14 and 16. Partially accepted in Finding of Fact 12.

15. Partially accepted in Findings of Fact 11 and 13.

17 and 19. Partially accepted in Finding of Fact 13.

18. Partially accepted in Finding of Fact 14.

1. Partially accepted in Finding of Fact 15.

2. Partially accepted in Findings of Fact 16 and 30.

3. Partially accepted in Finding of Fact 16.

23 and 24. Partially accepted in Finding of Fact 17.

25 and 26. Partially accepted in Finding of Fact 18.

1. Partially accepted in Findings of Fact 19 and 21.

2. Partially accepted in Finding of Fact 22.

3. Partially accepted in Findings of Fact 23 and 26.

4. Partially accepted in Finding of Fact 25

31 and 32. Partially accepted in Finding of Fact 26.

33 and 35. Partially accepted in Finding of Fact 31.

34. Partially accepted in Findings of Fact 28 and 31.

NOTE--Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, cumulative, not supported by the more credible evidence, contrary to the greater weight of the evidence, argument, or a conclusion of law.

COPIES FURNISHED:

Arthur B. Skafidas, Esquire

Agency For Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jonathon P. Lynn, Esquire

Stephens, Lynn, Klein & McNicholas, P.A. Two Datran Center, PH I & PH II

9130 South Dadeland Boulevard Miami, Florida 33156

Dr. Marm Harris Executive Director Board of Medicine Agency For Health Care

Administration Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Harold D. Lewis General Counsel

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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: 93-007142

Orders for Case No: 93-007142