STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3531

) BOYD ANSON SKINNER, 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 June 7, 1995, in Pensacola, Florida.

APPEARANCES

For Petitioner: Britt Thomas, Senior Attorney

Mary Anne Davies, Certified Legal Extern Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Donald Partington, Esquire

CLARK, PARTINGTON, ET AL.

Post Office Box 13010 Pensacola, Florida 32591-3010

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Respondent's medical licensure should be subjected to discipline for the reasons asserted in the Administrative Complaint, involving his alleged malpractice concerning patient, E.L.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Administrative Complaint on March 20, 1994 by the Petitioner. It charged that the Respondent, Boyd Anson Skinner, M.D., a licensed medical doctor and board-certified dermatologist, had violated Chapter 458, Florida Statutes, by practicing medicine below acceptable standards. Specifically, it charged that the Respondent failed to adequately assess a patient's condition by failing to make earlier and more frequent biopsies and by failing to get consultations on the biopsies in a timely manner. It was charged that this conduct constituted a violation of Subsection 458.331(1)(t), Florida Statutes.

The Respondent disputed those allegations and availed himself of his right to a formal proceeding, pursuant to Section 120.57(1), Florida Statutes, to contest the proposed agency action. The matter ultimately was assigned to the undersigned Hearing Officer.

The cause came on for hearing as noticed. The Petitioner presented the testimony of Thomas S. Breza, M.D., a dermatologist accepted as an expert in dermatology. The Petitioner also presented the testimony of patient, E.L. Additionally, Exhibits 1-3 were offered and received into evidence by the Petitioner.

The Respondent testified on his own behalf and offered the videotaped deposition testimony of William C. Hanke, M.D., a dermatopathologist and professor of dermatology and pathology at Indiana University School of Medicine and a practicing dermatologist and dermatopathologist. He was accepted as an expert witness in those fields.

The parties stipulated at hearing that the Hearing Officer could view the videotaped deposition and review the transcript of it, along with Dr. Hanke's CV (Respondent's Exhibits 30, 30-A, 30-B in evidence) after the conclusion of the last testimony at hearing. The Respondent's Exhibits 1-11, 30, 30-A, 30-B, 31, and 20 were offered and received into evidence. The parties agreed that the slides contained in Composite Exhibit 20, which were shown at hearing, could be substituted by the provision of identical photographs of the slides, in Composite Exhibit 20. All of the Respondent's exhibits were received into evidence, including the photographs comprising Composite Exhibit 20.

Upon conclusion of the proceeding, a transcript was ordered by the parties; and they undertook to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders, which were timely filed. The proposed findings of fact therein are treated in this Recommended Order and again specifically in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Respondent at all times material hereto has been a licensed physician in the State of Florida, having been issued License No. ME0030859. The Respondent practices at 1800 N.E. Street, Suite 521, Pensacola, Florida 32501.

   
   

2. The Petitioner is an agency of the State of Florida. It is charged by the Legislature, as pertinent hereto, with enforcing the provisions of Chapter 458, Florida Statutes, and related rules, pertaining to the regulation of licensure and the quality of practice of medical doctors within the State of Florida.

   
   

3. The Respondent is a board-certified dermatologist, practicing that specialty in the State of Florida in excess of 15 years. There is no evidence of any prior disciplinary action against the Respondent's licensure nor of any prior instance when his practice failed to conform to appropriate professional standards.

   
   

4. In the course of his practice, the Respondent sometimes does his own microscopic pathological examination of tissue samples taken from patients (biopsies) on occasions when he deems it appropriate and that a consulting opinion is not required. It is undisputed by the parties that a dermatologist

   such as the Respondent, who had extensive training in dermatopathology during his medical education, can appropriately do such biopsy work within the standard of care of a reasonable physician practicing under similar conditions and circumstances. If he does so, however, he is held to the standard of a dermatopathologist in the course of his professional practice.

   
   

5. The Respondent treated E.L. (an 80-year-old male patient at times pertinent hereto) since approximately 1982 for various problems involving pathology of the skin, including skin carcinoma. On November 21, 1991, E.L. presented as a patient of the Respondent showing a crusty area measuring approximately 1 x 2 centimeters on the vertex of his scalp or the back of his head. The lesion in question appeared on the skin with a hard crust, whitish or yellowish in color, and the Respondent diagnosed it as hypertrophic actinic keratosis. This is sometimes a pre-cancerous condition of the skin. Upon making his diagnosis, which he did clinically, without biopsy, the Respondent performed a curettage, or scraping of the tissue, to remove and destroy it. He did this by injecting the area with lidocaine as an anesthetic before performing the curettage. The Respondent had previously treated the same sort of condition on E.L. with liquid nitrogen but chose, this time, to treat the lesion with extension cautery and curettage. He did this because he was attempting to lessen the discomfort in his 80-year-old patient, who had already undergone a number of procedures to remove pre-cancerous or cancerous lesions of the skin on his head. The use of liquid nitrogen and the associated burning of the tissues involved would cause more difficult healing and discomfort for the patient. The treatment which the Respondent accorded the actinic keratosis condition, by curettage, is an acceptable, appropriate treatment for such a condition. It is undisputed by either the Petitioner's or the Respondent's expert witnesses, as well as the Respondent in his testimony, that such a clinical diagnosis and the following treatment by curettage is within the professional standard of care and practice by dermatologists practicing under similar conditions and circumstances. A biopsy is not a necessary prerequisite to such treatment.

   
   

6. After the November 21, 1991 destruction of the skin lesion, the patient did not return for approximately one month. On December 19, 1991, he returned to the Respondent concerned about possible infection at the removal site. The Respondent, however, detected only granulation tissue, which are normal granular projections on the surface of a normally-healing wound. Consequently, there was no reason within the bounds of reasonable medical treatment standards for the Respondent to have biopsied the lesion area on that office visit occasion, either.

   
   

7. Patient E.L. returned on January 3, 1992, at which point the Respondent noted a minor area of "dermatitis" or a non-cancerous inflammation of the skin, for which he prescribed a cortisone ointment. The Respondent did no biopsy at that time, either, and the clear and convincing evidence does not demonstrate that a biopsy was required under those conditions and circumstances within acceptable, reasonable bounds of the Respondent's professional practice.

   
   

8. Patient E.L. returned to the Respondent on January 23, 1992 complaining of unsatisfactory progress with the healing of the lesion. The lesion by that time had become a rounded, raised growth with central cratering, characteristic of a keratoacanthoma. The Respondent examined the lesion or tumor clinically and determined that it appeared to be a keratoacanthoma. A keratoacanthoma is a rapidly-growing nodule with a central "crater", which then fills with a crusty material. It usually remains localized and most often resolves itself spontaneously, even if untreated. On very rare occasions does it become an aggressively-growing tumor.

9. The Respondent biopsied the suspected keratoacanthoma by performing an excision of the area. He excised the nodule, taking a narrow margin of several millimeters around it and then performed a suture closure of the wound. He performed a biopsy of the tissue thus taken himself and interpreted the biopsy results approximately one week later as confirming his clinical diagnosis of a keratoacanthoma.

   
   

10. Keratoacanthoma is regarded as a "low-grade" form of squamous cell carcinoma. The diagnosis is based upon a clinical observation with the naked eye, based upon history, as well as by pathological diagnosis. Conservative treatment is appropriate for a keratoacanthoma since they often resolve themselves spontaneously. Simple observation, surgical excision, curettage with or without electro-desiccation, radiation therapy, intra-lesional injection, and topical application of 5-fluorouracil and methotrexate are all acceptable forms of treatment for keratoacanthoma and can be reasonably expected to cure the condition.

    
    

11. On rare occasions, keratoacanthoma can recur, even with such treatment. The diagnosis and treatment of keratoacanthoma is a matter of good- faith differences of opinion among reasonable dermatologists and pathologists, based upon their clinical judgment and experience. Some diagnose it as keratoacanthoma, which is a low-grade form of squamous cell carcinoma; and some diagnose it as squamous cell carcinoma with varying degrees of "differentiation".

    
    

12. The photograph of the lesion as it was seen by the Respondent prior to the January 23, 1992 surgery shows a lesion consistent with the clinical appearance of a keratoacanthoma.

    
    

13. The Respondent has been properly trained as a dermatologist in dermatopathology, and he commonly reviews biopsy and pathology slides. He is not required, under pertinent practice standards, to seek consultation when he believes that he has made a proper diagnosis. It was proper for him to read and review the pathology slide of the biopsy specimen, even though he himself acknowledges, as do the two expert witnesses, that he would be held to a dermatopathologist's professional practice standard by doing so.

    
    

14. The Respondent opined that actinic keratosis developed into the keratoacanthoma. Dr. Breza, the Petitioner's expert witness, opined that actinic keratosis does not develop into keratoacanthoma but, rather, into squamous cell carcinoma. Even he acknowledged, however, that good pathologists have trouble making the diagnosis of keratoacanthoma and prefer generally to diagnosis such conditions as simply "low-grade" squamous cell carcinoma. Dr. Hanke, in his testimony, established that keratoacanthoma and squamous cell carcinoma are different gradients of diagnosis on the same continuum or range describing squamous cell carcinoma. That is, in lay terms, a keratoacanthoma is a "low-grade" squamous cell carcinoma. They are not precisely the same diagnosis, but both diagnoses describe the same general type of cells.

    
    

15. As shown by Dr. Breza, squamous cell carcinoma tumors or lesions generally tend to appear somewhat flatter than that characteristic of a keratoacanthoma. Squamous cell carcinomas tend to be more indurated or firm on the outer edges and to have more inflammation on the outer edges, including occasional ulceration. The Respondent's description in E.L.'s medical record seems more consistent with squamous cell carcinoma, but the photographic images of the growth or lesion at issue, made at the time the biopsy and excision was

    performed, appear also consistent with keratoacanthoma. Based upon the information, including clinical appearance, that the Respondent had to consider in making his diagnosis and given that reasonable pathologists can differ concerning the gradients of diagnosis of squamous cell carcinoma (which includes keratoacanthoma), as shown by the expert testimony, the Respondent's diagnosis does not constitute a departure from appropriate, professional standards.

    
    

16. The deficiency in the Respondent's practice in this instance began with the excision made on January 23, 1992. The Respondent took the tissue material from the excision for biopsy and, after pathological examination of the sample, diagnosed the nodule as keratoacanthoma. The Respondent, however, did not establish a "negative margin" for the excision. That is, the tissue removed had positive margins, especially the deep margin, which means that carcinoma cells could be observed on the surface of the piece of tissue removed. This means that the Respondent could not be assured that carcinoma cells did not remain in the tissue area surrounding the walls of the excision site because the margin of the excision around the nodule to be removed was not wide enough.

    
    

17. The same slide and tissue sample which the Respondent used for biopsy in January 1992 was examined by a dermatopathologist, but not until some six months later, in July 1992. The dermatopathologist reported his opinion that the biopsy showed an "infiltrating squamous cell carcinoma with involvement of the lateral and deep margins." An infiltrating carcinoma implies that it is a more aggressive tumor than would be the case with a normal keratoacanthoma. The Respondent did not report those positive margins from the results of his excision and biopsy in January 1992.

    
    

18. His testimony indicates that he may have seen them or been aware of them but did not make a larger incision in order to achieve a negative margin because of his concern about the complicated closure techniques that would be necessary. He was concerned with attendant additional discomfort to this elderly patient, as might be entailed with the possible use of grafting in order to make closure of the wound. He also seemed to discount the need to excise a larger margin because of his belief that he was dealing with a non-aggressive keratoacanthoma. In fact, however, the clear and convincing evidence shows that a larger margin wound could have been excised without the necessity for more elaborate techniques of closure and attendant discomfort to the patient. Moreover, it was established that even this elderly patient, with his attendant heart problems, could have tolerated a more elaborate excision of the tumor in question, since the procedure could still be done under low-risk local anesthesia in the Respondent's office.

    
    

19. An infiltrating carcinoma is one which is more aggressive. It can move from its original location and infiltrate the skin and blood vessels, which can, in some cases, result in the tumor spreading via the blood stream or by infiltrating the lymphatic system, with migration to regional lymph nodes. The squamous cell carcinoma is not known for being a readily metastasizing form of cancer. It is known on some occasions to metastasize, however.

    
    

20. The finding of positive margins on the pathological examination in July 1992 means that the tumor extended to the cut surface of the excision at the time of the January excision procedure from which that biopsy sample was taken. Thus, tumor cells remained in the patient's scalp after the January 1992 excision procedure. The finding of a positive margin requires that another margin be established, meaning that the physician must cut another level of tissue until normal skin (a negative margin) is revealed. This can be done by conventional surgery, by just a larger excision area being removed, or by "MOHS"

    surgery, which involves freezing sections of the excision area, with small portions of the suspicious area removed at a time and with attendant pathology examinations so that each "thread" of cancer cells can be removed with minimal damage to surrounding tissues and less attendant discomfort and healing problems associated with the resulting surgical wound. The patient could have tolerated either type of procedure in January 1992.

    
    

21. The Respondent did not establish a negative margin, however. He only excised the carcinoma once. He stated that he was really seeking only a biopsy sample and that he considered the treatment by excision of the nodule itself and attendant scraping of the wound to be adequate as conservative treatment, to take care of what he believed to be a non-aggressive keratoacanthoma. This may be a correct assessment if the physician is certain that he is confronted with a non-aggressive, non-infiltrating keratoacanthoma. However, if positive margins to the excisional wound result, the patient is better served, and a successful treatment result much more likely, if all suspected carcinoma cells are removed at that time. If the Respondent knew of the positive margins to the excision and had made an additional excision to remove all positive margins, the provision of additional, more elaborate treatment techniques would not have been delayed for nearly six months and likely would have been unnecessary.

    
    

22. The determination of the existence of positive margins, after the January 1992 excision procedure, should have caused him to remove additional tissue to obtain a safe, negative margin. That failure of care, in his capacity as a dermatopathologist, resulted in a six-month delay before the dermatopathologist, at Sacred Heart Hospital, identified the positive margins. He identified them on the Respondent's same January 1992 pathological slide, when he examined it in July 1992, after which radiation and further more radical treatment was attempted.

    
    

23. Thus, the delay in treatment action, resulting from the delay in acting on the existence of positive margins by the Respondent, resulted in a six-month delay in appropriate treatment being provided the patient, which is a deviation from the accepted standard of care, as established by the testimony of Dr. Breza, which is accepted in this regard.

    
    

24. Earlier determination (or acting on a determination) of the positive margins, after the January 1992 excision procedure would have alerted the Respondent that the excision procedure was unsuccessful and that further treatment was necessary.

    
    

25. The patient's lesion occurred on a sun-damaged scalp. The Respondent had treated the patient repeatedly for sun-damaged skin problems, including carcinomas, in the past. Squamous cell carcinomas can be susceptible to mestastases, either regional or systemic when they are located on the scalp, although they are much less susceptible to such mestastases than if they are located on the lip or possibly the dorsal surface of the hand. The Respondent, as a board-certified dermatologist, knew or should have known that the scalp is an area of the body that can be susceptible to metastatic disease such as squamous cell carcinoma. The patient, as even acknowledged by the Respondent's expert, Dr. Hanke, was one with a high risk for developing skin cancer.

    
    

26. In any event, after the excision procedure on January 23, 1992, the patient was seen on February 10, 1992 for removal of sutures and examination of the wound. It appeared to be healing nicely at the time, and the patient was advised to return to the Respondent in three months, unless a problem developed. The Respondent next saw the patient on April 6, 1992, when he complained of

    persistent pain at the excision and tumor site. This was treated by the Respondent by drainage, antibiotics, narcotic pain medications, and sleep- inducers. Later during the treatment regimen, in approximately May 1992, the Respondent felt that chemotherapy was indicated because apparently, the lesion had not been completely excised. Consequently, he prescribed injections of intralesional cortisone methotrexate and 5-fluorouracil. These, however, did not produce satisfactory healing or control of the pain. During April and May 1992, the Respondent saw the patient for complaints of persistent pain, poor healing, and drainage of the wound. On May 18, 1992, the Respondent performed a drainage of the lesion which had begun to show an abscess formation. An abscess formation is an indicator of squamous cell carcinoma, which should have been recognized by the Respondent. This should have alerted him that his diagnosis of simply keratoacanthoma was not correct, at least by that time.

    
    

27. With the presence of these continuing and exacerbated problems with the wound site, the Respondent did not seek or perform further biopsy of the tumor site, despite continued complaints of persistent pain and further growth of the lesion between April and July 1992. The patient made 16 visits to the Respondent between April 1992 and July 14, 1992 for treatment and pain relief. During this time, little improvement occurred in the patient's condition, but no additional biopsy or consultation was requested or performed by the Respondent. The lack of improvement in E.L.'s condition during the period of April through July 1992 should have alerted the Respondent that something was incorrect about the patient's condition and that more extensive radical treatment would be necessary.

    
    

28. In fact, the Respondent did respond to the continued complaints by, in addition to prescribing antibiotics and pain medication, prescribing the above- referenced intralesional injections of cortisone, methotrexate, and 5- fluorouracil. On July 9, 1992, another curettage procedure was performed and the pathology of the scrapings was sent for evaluation by a pathologist. The Respondent's interpretation of this tissue at the time apparently was a keratoacanthoma; well-differentiated squamous cell carcinoma. This was ultimately described by the pathologist to whom it was referred as a moderately- differentiated squamous cell carcinoma. Subsequently, after the C&D procedure, the patient was referred to Baptist Hospital in Pensacola, Florida, for radiation therapy. He received a full-course of radiation therapy with some booster therapy afterward and then, on his own volition, went for a second opinion to the University of South Alabama Medical Center in Mobile, Alabama. Five physicians at that facility recommended more extensive surgery, which ultimately the patient refused. There is no clear and convincing evidence that, at least at that point in the patient's progress, the persistent tumor had actually mestastized, although it was apparently growing locally.

    
    

29. The fact that the lesion at issue was failing to heal and producing persistent pain by the visit of April 6, 1992 should have been interpreted so as to set in motion further investigative procedures, including an additional biopsy, to find out the reason for that condition and its persistence. Although a proper procedure involving excision and biopsy was done in January of 1992, the frozen sections of the lesion could have been interpreted to show that the tumor was an infiltrating carcinoma extending to the lateral and deep margins of the excision and something more aggressive could have been done to treat it at that time. It could have either been re-excised with frozen section control of the margins, referred to a "MOHS'" surgeon for a similar type of surgery or referred to a general surgeon. Radiation therapy could have been tried, at least by the time the persistence of the problem was determinable in April of 1992. The resultant reduction of delay in securing more extensive treatment of

    the lesion would have certainly benefited the patient. The persistence of the pain in the six-month period of time after the January 1992 excision of the tumor, until just before the time the patient was referred for radiation therapy indicates there was probably perineural invasion by the tumor (infiltration of the nerves), which produced pain. This should have alerted the Respondent that something more than a non-aggressive keratoacanthoma was involved, as well.

    
    

30. In summary, it has been demonstrated that the Respondent failed to practice medicine within that level of care, skill and treatment recognized by reasonably prudent, similarly-situated physicians as acceptable under the circumstances, by failing to make an additional biopsy after the patient re- presented with problems associated with persistent pain and improper healing in April 1992; by failing to recognize and act on the presence of positive margins to the excision material taken in January 1992, to effect an additional excision at that time, so as to secure a safe, negative margin to the tumor. The failure to obtain consultation on the biopsy taken from a dermatopathologist was not in itself evidence of falling below appropriate professional levels of care, skill and treatment, but the Respondent, by doing his own interpretation of the biopsies was, as he agrees, creating a situation in which he would be held to the same standard as a dermatopathologist. The failure to correctly interpret the biopsy he took in January 1992, by failing to recognize the positive margins to the excised material and failing to act to remove those indicia of the continued presence of the tumor, at a time when it was thus easily excised, likely prevented an easily-effected cure.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

    
    

32. In Section 458.331(1)(t), Florida Statutes, it is provided that a violation of that subsection exists when a physician commits:

    
    

    gross or repeated malpractice or the failure to practice medicine at that level of care, skill and treatment which is recognized by reasonably prudent, similarly-situated physicians as being acceptable under similar conditions and circumstances.

    
    

    Section 458.331(2), Florida Statutes, authorizes the Board of Medicine to revoke, suspend or otherwise discipline the license of a physician who violates this provision.

    
    

33. Disciplinary licensing proceedings, such as this, are penal in nature. State Ex Rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). The allegations of the Administrative Complaint in such a case must be proven by clear and convincing evidence. The level of penalty sought by the agency does not affect the burden of proof. Ferris v. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987); Nair, M.D. v. Department of Business and Professional Regulation, Board of Medicine, 654 So.2d 205 (Fla. App. 1st Dist. 1995).

    
    

34. The Respondent is charged with practicing medicine below the acceptable standard of care delineated in the above-quoted statute, in that the Respondent failed to adequately assess the patient's condition by failing to make earlier and more frequent biopsies and by failing to get consultations on

    the biopsies in a timely manner. Because this proceeding is penal in nature, the statute under which the Respondent is charged and the violations charged in the Administrative Complaint must be strictly construed in favor of the Respondent. Here, the specific violation charged is precisely as set forth above. The Respondent is charged with failing to make earlier and more frequent biopsies and failing to get consultations on the biopsies in a timely manner and, for these two reasons, thus failing to adequately assess the patient's condition. He is not charged with making an incorrect diagnosis or with failing to correctly interpret biopsies which were obtained. The testimony of Dr.

    Breza, for the Petitioner, that he was not able to review the slides and could not express an opinion concerning the slide(s) taken by the Respondent in January's biopsy, coupled with the testimony of Dr. Hanke, does not result in a clear finding that the diagnosis of keratoacanthoma, which is a form of squamous cell carcinoma, was itself an incorrect diagnosis at that time. It is a fundamental principle of law that a physician is not the insurer of the correctness of his diagnosis. Hill v. Broughton, 146 So. 505, 512, 1 So.2d 610 (Fla. 1941); Gentry v. Department of Professional and Occupational Regulations, State Board of Medical Examiners, 293 So.2d 95 (Fla. 1st DCA 1974). In the Gentry opinion, the First District Court of Appeals stated:

    
    

    If every physician who makes an honest but incorrect diagnosis were held to be guilty of a violation of [Section 458.331(t)] there would probably be few who would not be subject to disciplinary procedures.

    
    

    Gentry, 293 So.2d at 97.

    
    

35. The Respondent may not be chargeable with an honest, reasonable diagnosis, which might later turn out to be incorrect. However, the fact that his excision and biopsy in January 1992 revealed, or should have revealed, to him the positive margins, indicating that carcinoma cells remained in the patient's scalp, coupled with the persistent problems involving healing, pain and abscessing, commencing in early April 1992 and continuing through his ultimate second biopsy and referral for radiation in July 1992, should have put him on notice that further investigation was indicated. This should have included at least one biopsy as early as April or by May 1992 in order to assess why the patient's lesion and related symptoms appeared to be persistent. The recurring complaints in April of 1992 should have alerted him that this lesion was not behaving like the normal, non-aggressive keratoacanthoma. The Respondent failed to obtain an additional biopsy at this time when the patient made him aware of the persistent pain, poor healing, and other problems. An earlier biopsy could have been a significant aid in investigating what was occurring at the patient's wound site at this time. It could have hastened additional, more aggressive treatment so that the patient's carcinoma could have been effectively treated several months earlier, at a less-destructive stage. There is no dispute, and Dr. Breza agreed, that a biopsy was not required prior to the January 23, 1992 excisional biopsy. However, the Respondent should have been on notice that he should have investigated more thoroughly the reason for the persistence in the patient's problems with the wound site in April and May 1992, which should have included at least one additional biopsy.

    
    

36. The Respondent was shown to be competent by his education and training to do the biopsy pathological examination himself. The fact that he failed to get consultations on the biopsy taken, or the second one that he should have performed, when taken or shortly thereafter, is not in itself a departure from the professional standard delineated in the above-quoted statutory provision, as

    shown by Dr. Hanke's expert testimony, which is accepted in this context. The Respondent, in effect, was shown to be competent to read his own slides.

    However, his biopsy in January 1992, which showed that positive margins of carcinoma cells were present, should have alerted him that possibly his diagnosis of the keratoacanthoma form of squamous cell carcinoma might not be correct. This circumstance should, in turn, have led him, when in April 1992 the patient presented with recurrent problems with the wound site, to determine that another biopsy was needed to see just what was occurring in terms of the type of lesion he was confronted with. If he had biopsied the lesion in April or early May of 1992, on one of the 16 visits for the recurrence of the problem, one of the above-referenced surgical procedures could have been performed and likely would have effected a complete cure of the carcinoma at that time.

    Consequently, the patient care in this situation suffered by the failure to timely order the additional biopsy.

    
    

37. Thus, it has been established by clear and convincing evidence that failure to obtain an additional biopsy in April or early May 1992 constitutes proof of the charge of failing to assess the patient's condition by failing to make earlier and more frequent biopsies, in this context of April and May of 1992. There is no proof that the failure to biopsy the lesion site before January 23, 1992 constituted a departure from the appropriate professional practice standards delineated above and in the expert testimony. The totality of the evidence culminating in the above Findings of Fact does not reveal that, however beneficial it might have been, the Respondent departed from the appropriate professional standard of care by not getting a consultation on the biopsy until July of 1992. The Respondent, in his own judgment as a properly trained and educated board-certified dermatologist, could properly elect to examine and render an opinion on his own biopsy. The problem arises by his failure to do an additional biopsy procedure when the patient's problems recurred in April and May of 1992. If he had done so then, he, in his own examination of the biopsy slide(s), might have determined the more aggressive nature of the carcinoma involved, without the necessity of consultation by another pathologist.

    
    

38. Accordingly, it has been demonstrated that the Respondent failed to practice medicine within the acceptable standard of care delineated above by failing to adequately assess the patient's condition when he failed to make more frequent and earlier biopsies in the manner explained in the above Conclusions of Law, supported by the above Findings of Fact. The remaining portions of the charges contained in paragraph 18 of the Administrative Complaint, to the effect that the Respondent failed to adequately assess the patient's condition by failing to get consultations on the biopsies in a timely manner have not been proven by clear and convincing evidence.

    
    

39. The Petitioner has proposed a penalty as follows:

    
    

    1. The Respondent shall pay a fine in the amount of $5,000.00.

    2. The Respondent shall receive a reprimand.

    3. That an independent risk manager will review the complete medical records from at least 20 cases which the Respondent has handled involving skin-cancer patients and review each type procedure performed by the Respondent, including his system for confirming diagnosis, the training duties of the Respondent's medical staff, and the Respondent's method of record

       keeping. This risk manager will then prepare a report addressing the Respondent's practice, including suggested improvements of quality assurance for the Respondent's practice. The Respondent would submit this report, as well as documentation demonstrating his compliance with the suggestions enumerated in the report to the Board for consideration.

    4. The Respondent will have 25 percent of his slides read by an outside source, whereby

       diagnosis can be confirmed, for the next two years.

    5. The Respondent will attend 20 hours of risk management training.

    6. The Respondent will attend 20 additional hours of Category I continuing medical education in the area of treatment of skin cancer.

    7. The Respondent will write an article on the hazards of mis-diagnosing invasive squamous cell carcinomas as lower-grade carcinomas such as the Keratoacanthoma type.

       
       

40. In view of the single aspect of the charged violations in the Administrative Complaint which was proven in this case and in view of the Respondent's previously-unblemished professional record, the above array of penalty provisions is excessive under the circumstances presented by the above Findings of Fact and Conclusions of Law, which were predicated on the clear and convincing evidence.

RECOMMENDATION

Having considered 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 guilty of a violation of Section 458.331(1)(t), Florida Statutes, in the manner concluded above, and that the Respondent receive a private reprimand, a $2,000.00 fine, and that he be required to attend 20 additional hours of Category I continuing medical education in the area of diagnosis and treatment of skin cancer.

DONE AND ENTERED this 30th day of October, 1995, 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 30th day of October, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3531

Petitioner's Proposed Findings of Fact 1-8. Accepted.

9-10. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

1. Accepted, but not itself materially dispositive.

2. Rejected, as contrary to the clear and convincing evidence. The evidence does not reflect that one biopsy sample only showed one part of the lesion at issue but, rather, several parts were represented.

3. Accepted.

4. Accepted, but not itself materially dispositive. 15-21. Accepted.

22-24. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

25-26. Accepted.

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

28-36. Accepted.

37-41. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

42-44. Accepted.

45. Rejected, as contrary to the clear and convincing evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.

46-53. Accepted, but not in their entirety materially dispositive.

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

55-56. Accepted.

1. Rejected, as not in its entirety supported by clear and convincing evidence of record.

2. Accepted.

3. Accepted, to the extent of failing to practice medicine within the appropriate standard of care by not making earlier and more frequent biopsies only.

Respondent's Proposed Findings of Fact 1-17. Accepted.

18. Rejected, as subordinate to the Hearing Officer's findings of fact

on this subject matter.

19-20. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely in accord with the clear and convincing evidence of record.

2. Accepted.

3. Accepted, but not necessarily as to its material import and subordinate to the Hearing Officer's findings of fact on this subject matter, which contain additional findings of fact not contained in Proposed Finding of Fact No. 23 and which are material, relevant, and necessary to a clear picture of the patient's progress and treatment rendered during the period of April 6, 1992 through July 14, 1992.

4. Accepted, but not as to its purported material import.

5. Rejected, as contrary to the clear and convincing evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter.

6. Accepted, but not as to its purported material import. 27-31. Accepted.

COPIES FURNISHED:

Britt Thomas, Senior Attorney

Mary Anne Davies, Certified Legal Extern Agency for Health Care Administration 1940 North Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Donald Partington, Esq. CLARK, PARTINGTON, ET AL.

Post Office Box 13010 Pensacola, FL 32591-3010

Dr. Marm Harris Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, FL 32399-0770

Jerome W. Hoffman, Esq. General Counsel

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, FL 32309

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.

================================================================= 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: 93-06734 DOAH CASE NO: 94-3531

1. LICENSE NO: ME 0030859

   
   

   BOYD ANSON SKINNER, 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 December 2, 1995, in Orlando, Florida, for consideration of the Hearing Officer's Recommended Order, Respondent's Exceptions and Petitioner's Responses; thereto (Attached as App. A, B and C respectively), in the case of Agency for Health Care Administration, Board of Medicine v. Boyd Anson Skinner, M.D. At the hearing before the Board, Petitioner was represented by Monica Felder, Senior Attorney. Respondent was present and represented by Donald Partington, Esquire. Upon consideration of the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order, and Petitioner's Response to Respondent's Exceptions to the 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:

   
   

   RULINGS ON RESPONDENT'S EXCEPTIONS TO THE FINDINGS OF FACT

   
   

   1. The Respondent's Exception to the Findings of Fact of the Recommended Order that the Administrative Complaint did not allege that Respondent fell below the standard of care by failing to obtain a negative margin on a biopsy, and thus should be stricken from the Recommended Order, is rejected for reasons stated in the Petitioner's Response to Respondent's Exceptions to the Recommended Order.

FINDINGS OF FACT

1. The 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.

   
   

2. There is competent, substantial evidence to support the Board's findings herein.

RULINGS ON RESPONDENT'S EXCEPTIONS TO CONCLUSIONS OF LAW

1. The Respondent's Exception to the Conclusion of Law of the Recommended Order that the Hearing Officer's findings fail to reflect additional findings proposed by the Respondent, is rejected for reasons stated in the Petitioner's Response to Respondent's Exceptions to the Recommended Order.

   
   

2. The Respondent's Exception to the Conclusion of Law of the Recommended Order that the failure to obtain an additional biopsy is not clear and convincing evidence that Respondent fell below the standard of care, is rejected for reasons stated in the Petitioner's Response to Respondent's Exceptions to the Recommended Order.

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 set forth above do establish that Respondent has violated Section 458.331(1)(t), Florida Statutes, as charged in the Administrative Complaint in AHCA Case No. 93-06734, DOAH Case No. 95-3531.

   
   

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

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law, the Hearing Officer recommended the following:

1. That the Respondent is guilty of violating Section 458.331(1)(t), Florida Statutes.

   
   

2. That the Respondent receive a private reprimand, a $2,000 fine, and complete twenty (20) additional hours of Category I continuing medical education in the area of diagnosis and treatment of skin cancer.

In light of the foregoing Findings of Fact and Conclusions of Law the Board hereby determines that pursuant to Rule 59R-8, Florida Administrative Code, the penalty recommended by the Hearing Officer is appropriate as set forth in the Recommended Order, with the exception of the private reprimand. As there is no provision for imposition of a private reprimand as discipline under the rules of the Board of Medicine, the recommendation of a private reprimand is not accepted.

WHEREFORE, it is found, ordered and adjudged that the Respondent is guilty of violating Section 458.331(1)(t), Florida Statutes, and pursuant to Rule 59R- 8, F.A.C., the Board of Medicine imposes the following penalty:

1. Within ninety (90) days of the filing of the Final Order in this cause, Respondent shall pay an administrative fine in the amount of two thousand dollars ($2,000.00) to the Board of Medicine.

   
   

2. Within one (1) year of the filing of the Final Order in this cause, Respondent shall attend twenty (20) additional hours of Category I continuing medical education in the area of diagnosis and treatment of skin cancer.

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 26th DAY OF December, 1995.

BOARD OF MEDICINE

MARY KATHRYN GARRETT, M.D. VICE-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 Boyd Anson Skinner, M.D., 1800 North E Street, Pensacola, Florida 32501; Donald Partington, Esquire, Suite 800, First Florida Bank Building, 125 West Romana Street, Pensacola, Florida 32591; and P. Michael Ruff, Hearing Officer, Division of Administrative Hearings, 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 day 29th day of December, 1995.

Marm Harris, Ed. D. Executive Director

Docket for Case No: 94-003531

Orders for Case No: 94-003531