STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4049

)

RUFUS PAUL PALMER, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held on March 23, 1995. Petitioner's counsel, Petitioner's expert witness, and Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee. Respondent, the remaining witnesses, and the court reporter attended the hearing in Ft. Myers.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Attorney Joseph S. Garwood

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

Tallahassee, Florida 32399-0792 For Respondent: Rufus Paul Palmer, pro se

PRELIMINARY STATEMENT

By Administrative Complaint dated September 24, 1993, and amended by order granting leave to file the amendments served January 11, 1995, Petitioner alleged that A. L., a 71 year old male, presented to Respondent in East Point Hospital Emergency Room with complaints of severe headache and vomiting. The Administrative Complaint alleges that Respondent performed a physical examination, diagnosed A. L. with severe sinus headache, prescribed pain medication, and discharged him after observation.

The Administrative Complaint alleges that, a few hours after discharge, A.

L. returned to the hospital in an unresponsive condition. A CT scan later indicated a "subdural and intracerebral hematoma" and A. L. died eight days later.

The Administrative Complaint alleges that Respondent did not document an adequate medical history, did not order or perform adequate neurological tests, and failed to make proper timely diagnosis of A. L. The Administrative Complaint alleges that Respondent thereby committed gross malpractice or failed to practice medicine with the level of care, skill, and treatment recognized by

a reasonably prudent similar physician as being acceptable under similar conditions, in violation of Section 458.331(1)(t), and failed to keep written medical records justifying the course of treatment of the patient, in violation of Section 458.331(1)(m).

Respondent requested a formal hearing. Respondent also moved to dismiss the Administrative Complaint on the grounds of delay in prosecuting the case. The motion to dismiss is denied for the reasons set forth below.

At the hearing, Petitioner called three witnesses and offered into evidence six exhibits. Respondent called four witnesses and offered into evidence nine exhibits. All exhibits were admitted except Respondent Exhibit 7, which was proffered.

The transcript was filed April 24, 1995. Rulings on proposed findings of fact are in the appendix.

FINDINGS OF FACT

1. At all material times, Respondent has been a licensed physician, holding Florida license number ME 0047032.

   
   

2. In June 1988, Respondent worked as an emergency room physician at East Point Hospital emergency room. He had been so employed since 1987.

   
   

3. At 11:26 pm on June 10, 1988, the wife of A. L., a 71 year old male, summoned an ambulance for her husband, who had been suffering from severe headaches and vomiting. He was transported by ambulance to the East Point Hospital emergency room at 11:55 pm.

   
   

4. The notes of the admitting nurse state that A. L.'s headache started about 9 pm and he had vomited twice at home, but without signs of bleeding or diarrhea. He vomited once at the hospital and had a history of five heart attacks. The stated patient complaint is severe headache. The vital signs were normal.

   
   

5. The admitting notes record that A. L. was taking numerous medications. Of particular importance is Coumadin, which is an anticoagulant whose chief side effect is bleeding. There is an increased risk of intracranial bleeding associated with the use of Coumadin.

   
   

6. Respondent's notes record a frontal headache of three to four hours' duration with intermittent sinus problems for several months. The notes reflect a physical examination that disclosed some tenderness over frontal and maxillary sinuses, which are above and below the eyes.

   
   

7. Respondent did not perform a neurological examination. A neurological examination is an examination of the cranial nerves, including the nerves of the eyes and head, and an assessment of motor strength and reflexes.

   
   

8. Respondent claims to have performed a neurological examination and also that an examination of the eyes was precluded by recent cataract surgery. He testified that he did not document the neurological examination because the vital signs were good, the patient was alert and cooperative, and the problem was a sinus headache. As to checking motor strength, Respondent testified, "I did check his extremities. I think he was moving around."

9. Respondent's claim to have performed an undocumented neurological examination is uncredited. Even if eye surgery precluded an examination of the eyes, Respondent did not examine other nerves of the head. Nor did he even claim to have tested reflexes. His claim to have tested motor strength is based on the assertion, "I think he was moving around." Motor strength involves more than self-ambulation.

   
   

10. Respondent's failure to perform a neurological examination constituted a failure to practice medicine with the level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar conditions.

    
    

11. Following his examination of A. L., Respondent observed A. L. for about an hour. When A. L. reported he was feeling better, Respondent allowed A. L.'s wife to take him home with instructions to return if there were more problems. Respondent's diagnosis was sinusitis with headache, and he prescribed

    50 mg of Demerol for pain.

    
    

12. About an hour and a half after discharge, A. L. fell into a stupor. Returned to the hospital in an ambulance, A. L. was in an unresponsive state. Subsequent testing revealed that he had suffered a subdural hematoma and intracerebral hemorrhage. He died a week later.

    
    

13. Petitioner did not prove that Respondent's failure to order a CT scan was a violation of the minimum standard of care. A. L. had a long history of sinus problems. The severe headache and use of Coumadin were not, of themselves, sufficient cause to mandate a CT scan without implying that all patients taken to the emergency room complaining of severe headaches must be given CT scans.

    
    

14. Respondent's failure to perform a neurological examination and misdiagnosis probably had no bearing on A.L.'s prognosis. Intracranial bleeding is not susceptible to surgical correction, although a subdural hematoma is. In fact, the neurological exam might not have clearly indicated the presence of the intracranial bleeding, although, properly interpreted, it should have indicated the necessity of a CT scan, which typically would indicate the presence of intracranial bleeding.

    
    

15. There is no evidence whatsoever that any delay in bringing the case to the Probable Cause panel or filing the Administrative Complaint had any prejudicial impact upon Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Section 458.331(1)(t) provides that The Board of Medicine may impose discipline for 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."

    
    

18. Section 458.331(2) provides that, for any violation under Section 458.331(1), the Board of Medicine may revoke or suspend a license, place a license on probation, restrict a practice, impose an administrative fine of not

    more than $5000 per offense, issue a reprimand, issue a letter of concern, take corrective action, or order the refund of fees.

    
    

19. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

20. Petitioner proved by clear and convincing evidence that Respondent did not perform a neurological examination and that this omission was a 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.

    
    

21. Petitioner did not prove that Respondent kept inadequate medical records, as alleged in the Administrative Complaint. Of particular relevance to this allegation, there was no neurological examination to document.

    
    

22. Rule 59R-8.001 provides that the range of penalties for a single violation of Section 458.331(1)(t) is a minimum of two year's probation up to revocation.

    
    

23. In mitigation, there is no record of prior discipline. The death of the patient is not attributable to the violation, so this factor is not aggravating, although the failure to perform a neurological examination does expose a patient to risk.

RECOMMENDATION

It is

RECOMMENDED that the Board of Medicine enter a final order imposing an administrative fine against Respondent of $5000.

ENTERED on May 18, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on May 18, 1995.

APPENDIX

Rulings on Petitioner's Proposed Findings

1. and 3: rejected as irrelevant.

2. and 4-25: adopted or adopted in substance.

26-30: rejected as unsupported by the appropriate weight of the evidence, irrelevant, and unnecessary.

31: adopted.

32: rejected as repetitious.

33-36: rejected as irrelevant except that an intracerebral hemorrhage is an inoperable condition.

Rulings on Respondent's Proposed Findings

All rejected as not findings of fact, irrelevant, unsupported by the record, and legal argument.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0792

Attorney Joseph S. Garwood

Agency for Health Care Administration 1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Dr. Rufus Paul Palmer 5581 Amoroso Drive Ft. Myers, FL 33919

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: 94-004049

Orders for Case No: 94-004049