STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6301

) RICHARD ALAN REINES, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Fort Lauderdale, Florida, on September 27 and 28, 1995, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Monica L. Felder, Esquire

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

Tallahassee, Florida 32399-0792

For Respondent: Thomas A. Graham, III, Esquire, and

Kenneth J. Miller, Esquire

Wicker, Smith, Tutan, O'Hara, McCoy, Graham, Lane & Ford, P. A.

Post Office Box 14460

Fort Lauderdale, Florida 33302 STATEMENT OF THE ISSUES

This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against a licensed physician on the basis of alleged violations of paragraphs (m), (q), and (t) of Section 458.331(1), Florida Statutes. By means of an Amended Administrative Complaint it is alleged that the Respondent violated the cited statutory provisions by failing to keep appropriate medical records, by inappropriate administration of medication, and by failing to practice medicine at the required level of care, skill, and treatment.

PRELIMINARY STATEMENT

At the formal hearing on September 27 and 28, 1995, the Petitioner presented the testimony of three witnesses; Ms. Lolli McLeroy, Dr. Eliezer Livnat, and Dr. Lee Fisher. Ms. McLeroy is the daughter of the patient B. M.;

the other two witnesses are medical doctors. The Petitioner also offered seven exhibits, one of which was rejected and one of which was withdrawn. 1/ The other five were received in evidence.

The Respondent offered only one exhibit, the transcript of the deposition testimony of Dr. Janousek. The Respondent's exhibit was received in evidence. The Respondent testified on his own behalf and also presented the testimony of two other medical doctors, Dr. Harry Farb and Dr. Jonathan Reimer.

At the conclusion of the formal hearing the parties requested, and were granted, twenty days from the filing of the transcript within which to file their proposed recommended orders. A transcript of the proceedings was filed with the Hearing Officer on October 13, 1995. Thereafter, all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix hereto.

FINDINGS OF FACT

Stipulated facts 2/

1. The Respondent is a licensed physician in the State of Florida and has been licensed in Florida at all times material herein.

   
   

2. The Respondent is Board Certified in family practice.

   
   

3. The patient B. M., a female born on May 18, 1934, with a history of hypertension, diabetes, and obesity, presented to the Respondent on multiple occasions between August of 1979 and November of 1990.

   
   

4. On September 29, 1979, when she was forty-five years old, patient B. M. notified the Respondent that her periods were spreading out and that she was getting hot flashes.

   
   

5. On February 18, 1982, patient B. M. indicated that she was having irregular periods every couple of months.

   
   

6. The Respondent's medical records indicate that he did not see or treat the patient B. M. between October 1, 1984, and July 3, 1987.

   
   

7. On July 3, 1987, patient B. M. presented to the Respondent with complaints of excessive vaginal bleeding for the past three (3) months. The patient indicated the bleeding had stopped approximately three weeks earlier.

   
   

8. The Respondent diagnosed patient B. M. with vaginitis, and prescribed her medication for vaginitis, based on the patient's complaints of vaginal discharge. Respondent did not perform a pelvic examination on that day to make that diagnosis. Patient B. M. returned the following week for a pelvic examination.

   
   

9. The Respondent did not document the medical history of the patient B.

   M. during the preceding three years, although she had a history of high blood pressure and diabetes, both conditions that require periodic monitoring and prescription medication. The Respondent also did not document any pertinent information relating to the patient's gynecological history, including, but not

   limited to, the dates of the patient's last period, how often her periods were occurring, and how much she was bleeding, despite her complaints of excessive bleeding.

   
   

10. On August 7, 1987, after several other visits, the patient B. M. returned for an examination. A pelvic examination revealed a vaginal laceration that was bleeding.

    
    

11. On January 18, 1988, patient B. M. presented to the Respondent with complaints of irregular bleeding for the prior month.

    
    

12. The Respondent suggested a dilation and curettage (scraping of the uterine walls) if patient B. M.'s bleeding continued.

    
    

13. On December 21, 1989, patient B. M. presented to the Respondent with complaints of excessive vaginal bleeding with clots since the previous night. The Respondent indicated that the patient had her regular period the previous week, and was using condoms.

    
    

14. The Respondent performed a pelvic examination which revealed blood clots, and diagnosed patient B. M. with dysfunctional uterine bleeding and administered progesterone to patient B. M.

    
    

15. The Respondent did not document any additional information concerning the patient's menstrual activity, such as how often she had periods, what was meant by uncontrollable vaginal bleeding, where the bleeding was coming from, or why she was using condoms.

    
    

16. The patient B. M. continued to complain of occasional bleeding after December 21, 1989, and on January 15, 1990, the Respondent referred the patient

    B. M. to a gynecologist.

    
    

17. On February 5, 1990, the patient B. M. presented to a gynecologist, who took cervical biopsies and subsequently performed a dilation and curettage on the patient B. M. on or about February 23, 1990.

    
    

18. The patient was subsequently initially diagnosed with grade two endometrial cancer, and after biopsy was diagnosed with grade three endometrial cancer and was referred to another gynecologist at the University of Miami. 3/

    
    

19. On April 5, 1990, the patient B. M. underwent a total hysterectomy.

    
    

20. The patient B. M. was then diagnosed with Stage III-C endometrial carcinoma and underwent intravenous Adriamycin chemotherapy.

    
    

21. On December 25, 1990, the patient B. M. expired.

    
    

    Facts based on evidence at hearing

    
    

22. At all times material to this case, the subject patient 4/ weighed approximately three hundred pounds.

    
    

23. Periods spreading out and hot flashes are signs that a woman may be beginning menopause.

    
    

24. The average length of time between the beginning of menopausal symptoms and a cessation of menstruation is six months to one year.

25. Endometrial cancer is cancer of the uterus. It is the most common gynecological cancer in women. Endometrial cancer occurs most often in women who are post-menopausal. About 20 to 25 percent of women are diagnosed with endometrial cancer before menopause. Most patients are diagnosed with endometrial cancer after the age of 50. When diagnosed early, patients with endometrial cancer have a very high survival rate. When diagnosed late, patients with endometrial cancer have a very low survival rate.

    
    

26. The subject patient had several of the risk factors associated with endometrial cancer.

    
    

27. The first symptom in most cases of endometrial cancer is abnormal bleeding. Any woman with post-menopausal abnormal bleeding should be checked for endometrial cancer.

    
    

28. The subject patient was hospitalized in 1982. During that hospitalization she was evaluated by a gynecologist who determined that there was no evidence of abnormal or irregular gynecological problems at that time.

    
    

29. After February 18, 1982, through October 1, 1984, there are no references in the Respondent's medical records to the subject patient's menstrual history, and no indication as to whether the patient had regular or irregular menstrual periods during that period of time.

    
    

30. The subject patient was not seen by the Respondent on any occasion between October 1, 1984, and July 3, 1987. 5/

    
    

31. The subject patient returned to the Respondent's office on July 3, 1987. On the occasion of that visit she gave a history to the Respondent's office staff which is recorded in the Respondent's medical records as "excessive bleeding vaginal for 3 mos. Stopped 6/13." The Respondent's records for July 3, 1987, do not contain any additional details regarding the nature of the excessive bleeding.

    
    

32. The Respondent's medical records for the July 3, 1987, office visit also indicate that at that time the patient had a vaginal infection with a discharge. This information was obtained from the patient. On that day the Respondent did not examine the patient to confirm the condition described by the patient. The Respondent diagnosed the patient as having vaginitis and prescribed Sultrin cream and Betadine douche for the vaginitis.

    
    

33. The medical records for the July 3, 1987, office visit note that the patient had high blood pressure. Although the records, standing alone, do not clearly show that any treatment was undertaken on that day for the patient's high blood pressure, during the course of the July 3, 1987, visit, the Respondent prescribed medication for the patient's high blood pressure, as well as syringes for her diabetes. Those prescriptions were recorded in the patient's chart on the front cover.

    
    

34. Because the subject patient had returned for a single office visit on July 3, 1987, after an absence of almost three years, the Respondent determined at that time that he needed to do a full physical examination on her, as well as a pelvic exam. Although the Respondent did not perform either examination at the July 3, 1987, office visit, he made plans to do both shortly thereafter.

35. The subject patient returned ten days later, on July 13, 1987, at which time the Respondent performed a complete physical examination of the patient. No pelvic examination was performed that day, because the Respondent was having her period. The Respondent asked the patient to return one week later for a pelvic examination.

    
    

36. The subject patient returned on July 20, 1987, at which time a pelvic examination was performed. On that day there was no evidence of any irregular or unusual bleeding. The patient did have a vaginal infection that day. The vaginal infection was treated appropriately by the Respondent. In view of the vaginal infection, the patient was advised to return to the office one week later, at which time she would be examined again.

    
    

37. The subject patient returned to the Respondent's office on August 7, 1987, for a follow-up pelvic examination, at which time the Respondent identified a small superficial laceration in the patient's vagina. The laceration was causing some slight bleeding. The Respondent noted that there was no bleeding from the cervical os, which indicated that the small laceration was the sole source of the patient's bleeding that day. As an additional follow-up, the Respondent ordered a sonogram. The sonogram was ordered in part because, due to the patient's obesity, the Respondent was unable to palpate her internal organs.

    
    

38. The Respondent did not document any details concerning the vaginal laceration, such as the size of the laceration, the amount the laceration was bleeding, or the precise location of the laceration, because it was a very small laceration with very slight bleeding which was of very little medical significance.

    
    

39. The Respondent did not refer the patient to a gynecologist after learning the results of the sonogram he ordered on August 7, 1987. The Respondent concluded that the 1987 sonogram results were not significantly different from the 1982 sonogram results. Such conclusion was reasonable under the circumstances. Accordingly, the 1987 sonogram results did not suggest any need for further investigation.

    
    

40. The subject patient returned to the Respondent's office on August 24, 1987, at which time she had no complaints of any type of vaginal bleeding. She was being seen in order to follow up on her other complaints, notably her diabetes and her high blood pressure. The Respondent assumed that the vaginal laceration had healed and did not conduct a pelvic examination of the patient during that visit.

    
    

41. After August 24, 1987, and before January 18, 1988, the Respondent saw and treated the subject patient once a month on four more occasions. The medical records for those four office visits do not mention the patient's menstrual history or whether she was bleeding on any of those occasions. During the four monthly visits between August of 1987 and January of 1988, the subject patient did not complain of any episodes of irregular vaginal bleeding.

    
    

42. On January 18, 1988, the subject patient returned to the Respondent's office with complaints of irregular vaginal bleeding since having been the victim of a mugging during the previous month. The Respondent did not record any detailed information about the bleeding, such as her current menstrual condition, how much she was bleeding, or how often she was bleeding. The Respondent concluded that the bleeding was probably due to the patient's anxiety about the recent mugging incident. Nevertheless, he wanted to follow up on the

    irregular bleeding if it did not resolve on its own. To that end he discussed the matter with the patient and told her that if the irregular bleeding did not get better, she should come back and he would do a D & C. The Respondent noted in his record for that visit: "May need D & C if bleeding continues." In view of the patient's intelligence, the Respondent fully (and reasonably) expected she would tell him if she had any further irregular bleeding.

    
    

43. The procedure known as D & C, or dilation and curretage, is a procedure wherein a physician obtains a sample of the lining of the uterus to evaluate it for possible abnormalities. The D & C procedure is commonly used to diagnose, or to rule out, endometrial cancer.

    
    

44. Following the office visit on January 18, 1988, the subject patient presented to the Respondent's office on three other visits during each of which she did not have any complaints of irregular bleeding.

    
    

45. The subject patient did not have any further gynecological complaints until December 21, 1989. On that day she returned to the Respondent's office with complaints of uncontrollable vaginal bleeding since 7:30 p. m. of the previous evening.

    
    

46. During the course of the December 21, 1989, office visit, the subject patient told the Respondent that she had had her last regular menstrual period the week before. She also told him she was using condoms.

    
    

47. During the course of the December 21, 1989, office visit the Respondent performed a pelvic examination of the patient and made a provisional or working diagnosis of dysfunctional uterine bleeding. He administered an injection of progesterone and instructed the patient to return in three days. He also instructed the patient to have another pelvic sonogram performed.

    
    

48. Dysfunctional uterine bleeding is abnormal uterine bleeding not related to or caused by an organic problem such as cancer, polyps, fibroids, or infections. It is usually caused by an hormonal imbalance. In the case of a woman who is not post- menopausal and who presents with complaints of irregular vaginal bleeding, one of the differential diagnoses can be dysfunctional uterine bleeding. In such a case it is appropriate to administer progesterone prior to embarking on additional studies. In such a case the administration of progesterone is useful for two reasons: (1) if the progesterone is successful in stopping the irregular bleeding its success tends to confirm the differential diagnosis of dysfunctional uterine bleeding, and (2) if the progesterone is unsuccessful in stopping the irregular bleeding it tends to rule out the diagnosis of dysfunctional uterine bleeding and confirm the need for further investigation.

    
    

49. Under the circumstances that existed on December 21, 1989, it was reasonable and appropriate for the Respondent to administer progesterone on the basis of a provisional or working diagnosis of dysfunctional uterine bleeding, because if the treatment was successful it would tend to confirm the provisional or working diagnosis and it the treatment was not successful it would rule out the provisional or working diagnosis. 6/ The fact that dysfunctional uterine bleeding was only a provisional or working diagnosis is illustrated by the fact that the Respondent at the same time ordered a sonogram in order to investigate other possible causes of the abnormal bleeding.

50. A verbal report of the results of the sonogram ordered on December 21, 1989, was given to the Respondent's office by telephone on December 26, 1989.

    7/ A written report of the results was provided shortly thereafter.

    
    

51. The report of the sonogram ordered on December 21, 1989, indicated that the subject patient had an enlarged uterus measuring 18.8 x 9.3 x 10.8 centimeters. The 1989 sonogram report revealed that the patient's uterus was substantially larger than it had been at the time of the 1987 sonogram. The report of the December 21, 1989, sonogram included a recommendation for follow up examination of the uterus and the endometrial canal.

    
    

52. The subject patient returned to the Respondent's office on December 26, 1989, at which time she told the Respondent that the bleeding had stopped. He asked her to return again in two weeks. When she returned twenty days later on January 15, 1990, she had started to again have occasional episodes of bleeding and spotting. The Respondent thereupon referred the patient for a gynecological consult.

    
    

53. The subject patient was seen by a gynecologist, Dr. William Shure, on February 5, 1990. The patient provided Dr. Shure with a history that her last menstrual period had been on December 19, 1989. This last menstrual period history is the same history that was recorded by the Respondent on December 21, 1989.

    
    

54. On February 5, 1990, Dr. Shure took cervical biopsies from the subject patient, and subsequently performed a D & C on the patient on February 23, 1990. The patient was then diagnosed with Stage II-B endometrial cancer. Following a total hysterectomy on April 5, 1990, the patient was diagnosed with Stage III-C endometrial cancer. Stage II-B endometrial cancer is cancer of the uterus with extension into the cervix. Stage III-C endometrial cancer is an advanced stage of cancer of the uterus which extends into the cervix and has metastasis to pelvic lymph nodes. The patient underwent chemotherapy for the cancer. The chemotherapy was unsuccessful and the patient expired on December 25, 1990.

    
    

55. At all times material to this case the Respondent used a record- keeping methodology in his medical practice known as the SOAP method. This is an appropriate methodology for record- keeping in a medical practice. The Respondent's records regarding the subject patient demonstrate that he kept a running list of all medications prescribed for the patient. The Respondent's records regarding his care and treatment of the subject patient were sufficient to justify his course of treatment of the patient. 8/

    
    

56. The care, skill, and treatment applied by the Respondent in the treatment of the subject patient from July of 1987 through January of 1990 (the only time period at issue here) was reasonable under the circumstances and did not depart from the level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent's treatment of the subject patient did not constitute gross or repeated malpractice. 9/

    
    

57. The Respondent has not been the subject of any prior disciplinary proceedings.

    CONCLUSIONS OF LAW

    
    

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

    
    

59. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remem- bered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evi- dence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above- quoted language from Slomowitz. The Smith case also includes the following at page 958:

    
    

    "Clear and convincing evidence" is an inter- mediate standard of proof, more than the "pre- ponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

60. Section 458.331(1), Florida Statutes, authorizes the Board of Medicine to take disciplinary action against a physician upon proof of any of several acts which are itemized in detail in numerous paragraphs of that statutory provision. In this case the Respondent has been charged with violations of the provisions of paragraphs (m), (q), and (t) of Section 458.331(1), Florida Statutes.

    
    

61. Count One of the Amended Administrative Complaint alleges that the Respondent violated paragraph (q) of Section 458.331(1), Florida Statutes, ". .

    . in that Respondent inappropriately administered progesterone to Patient B. M., without justification." At all times relevant to this proceeding, 10/ paragraph (q) of Section 458.331(1), Florida Statutes, described the following conduct for which the Board of Medicine could take disciplinary action:

    
    

    (q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's pro- fessional practice. For the purposes of this

    paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is

    not in the best interest of the patient and is not in the course of the physician's pro- fessional practice, without regard to his intent.

    
    

62. The greater weight of the persuasive evidence in this case is to the effect that it was reasonable and appropriate for the Respondent to administer progesterone to the subject patient. Accordingly, the Respondent's conduct in this regard does not constitute a violation of paragraph (q) of Section 458.331(1), Florida Statutes, and Count One of the Amended Administrative Complaint should be dismissed.

    
    

63. Count Two of the Amended Administrative Complaint alleges that the Respondent violated paragraph (m) of Section 458.331(1), Florida Statutes, ". .

    . in that Respondent failed to keep appropriate medical records including, but not limited to, the following manner: on numerous and diverse occasions Respondent failed to keep appropriate records of the patient's medical history, of the patient's complaints, failed to document adequate justification for his diagnoses and treatments, and failed to record prescriptions of medications given to the patient." In 1987 paragraph (m) of Section 458.331(1), Florida Statutes, described the following conduct for which the Board of Medicine could take disciplinary action:

    
    

    1. Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.

       
       

64. In 1988, paragraph (m) of Section 458.331(1), Florida Statutes, was modified by the Legislature to read as follows: 11/

    
    

    1. Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dis- pensed, or administered; and reports of con- sultations and hospitalizations.

       
       

65. The greater weight of the persuasive evidence in this case is to the effect that the Respondent kept appropriate written medical records which were sufficient to justify the course of treatment of the subject patient. Accordingly, the Respondent's record-keeping has not been shown to constitute a violation of paragraph (m) of Section 458.331(1), Florida Statutes, and Count Two of the Amended Administrative Complaint should be dismissed. 12/

    
    

66. Count Three of the Amended Administrative Complaint alleges that the Respondent violated paragraph (t) of Section 458.331(1), Florida Statutes, ". .

    . in that Respondent, between July, 1987, and December, 1989, failed to timely refer Patient B. M. to a gynecologist and failed to evaluate or diagnose Patient

    B. M. with endometrial cancer." In 1987, paragraph (t) of Section 458.331(1),

    Florida Statutes, described the following conduct for which the Board of Medicine could take disciplinary action:

    
    

    (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recog- nized by a reasonably prudent similar physi- cian as being acceptable under similar condi- tions and circumstances. The board shall give great weight to the provisions of s.

    768.45 when enforcing this paragraph. As used in this paragraph, "repeated malprac- tice" includes, but is not limited to, three or

    more claims for medical malpractice within

    the previous 5-year period resulting in indemn- ities being paid in excess of $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to prac- tice medicine with that level of care, skill, and treatment which is recognized by a rea- sonably prudent similar physician as being acceptable under similar conditions and circumstances," shall not be construed so as

    to require more than one instance, event, or act.

    
    

67. In 1988 paragraph (t) of Section 458.331(1), Florida Statutes, was modified by the Legislature by adding the following sentence at the end of the language quoted immediately above: 13/

    
    

    Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.

    
    

68. The greater weight of the persuasive evidence in this case is to the effect that the Respondent's treatment of the subject patient did not constitute gross or repeated malpractice, as well as to the effect that the care, skill, and treatment applied by the Respondent in the treatment of the subject patient was reasonable under the circumstances and did not depart from the level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Accordingly, the Respondent's treatment of the subject patient did not constitute a violation of paragraph (t) of Section 458.331(1), Florida Statutes, and Count Three of the Amended Administrative Complaint should be dismissed.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in this case dismissing all charges in all three counts of the Amended Administrative Complaint.

DONE AND ENTERED this 17th day of May 1996 at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, 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 17th day of May 1996.

ENDNOTES

1/ Petitioner's Exhibit 7 is the transcript of the deposition of the Respondent. Objection to that exhibit was sustained and the exhibit is included in the record as a rejected exhibit. Petitioner's Exhibit 5 is the transcript of the deposition of Ernestine Bevel. That exhibit was originally received in evidence, but was later withdrawn by the Petitioner.

2/ In their prehearing stipulation the parties stipulated to many of the facts regarding the Respondent's care and treatment of the patient B. M.

3/ At hearing the language of paragraph 18 of the admitted facts in the parties' prehearing stipulation was modified by agreement of all parties. See pages 5 and 6 of the transcript of the hearing.

4/ All references in these findings of fact to "the subject patient" or to "the patient" are references to the patient B. M., the only patient whose treatment is at issue in this case.

5/ There is no evidence in the record of this case of any occasion on which the subject patient was seen at the Respondent's office without the visit being documented in the Respondent's medical records.

6/ The record in this case contains conflicting expert opinion testimony on the issue of whether it was reasonable and appropriate for the Respondent to administer progesterone on December 21, 1989. The Hearing Officer finds the opinions supporting the reasonableness and appropriateness of the Respondent's conduct in this regard to be more persuasive than the opposite opinions.

7/ It is not clear from the record in this case whether the telephone report of the sonogram report was communicated directly to the Respondent or to someone else in his office. It is also not clear from the record in this case whether that information was received by the Respondent before or after he saw the subject patient on December 26, 1989.

8/ The record in this case contains conflicting expert opinion testimony on the issue of whether the Respondent's written medical records were sufficient to justify his course of treatment of the subject patient. The Hearing Officer finds the opinions supporting the sufficiency of the records to be more persuasive than the opposite opinions.

9/ The record in this case contains conflicting expert opinion testimony on the issue of whether the care, skill, and treatment applied by the Respondent fell below the standards established by paragraph (t) of Section 458.331(1), Florida Statutes. The Hearing Officer finds the opinions to the effect that the Respondent did not fall below the statutory standards to be more persuasive than the opposite opinions.

1. From 1987 through 1990 the language of paragraph (q) of Section 458.331(1), Florida Statutes, remained the same.

   
   

2. From 1988 through 1990 the language of paragraph (m) of Section 458.331(1), Florida Statutes remained the same.

   
   

3. In view of this disposition of Count Two of the Amended Administrative Complaint, it is not necessary to address any issues regarding the legal sufficiency of the allegations in paragraph 38 of the Amended Administrative Complaint. It is sufficient to note that in future Administrative Complaints the Agency for Health Care Administration would be well advised to avoid references to "numerous and diverse occasions" and to instead allege specific acts on specific dates.

   
   

4. The 1988 amendments to paragraph (t) of Section 458.331(1), Florida Statutes, also changed the reference to "s. 768.45" to read "s. 766.102" as a result of the relocation of the statutory language that had previously appeared at Section 768.45, Florida Statutes. From 1988 through 1990 there were no further amendments to paragraph (t) of Section 458.331(1), Florida Statutes.

APPENDIX

The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1 through 10: Accepted in whole or in substance.

Paragraph 11: Rejected as not supported by clear and convincing evidence. (The subject patient's menstrual history in 1979 and 1982 indicating that her periods were spreading out and becoming irregular is consistent with the onset of menopause, but it is also consistent with other possible causes. Further, there is evidence which suggests that several years later the subject patient was not yet post-menopausal. The evidence in this case is insufficient to determine when, if ever, the subject patient became post-menopausal.)

Paragraph 12: Accepted.

Paragraphs 13, 14, and 15: Rejected as not supported by clear and convincing evidence. Further, even if these matters were taken as proved, there is no clear and convincing evidence that the subject patient (or anyone else) reported them to the Respondent. During the time it is asserted that the subject patient became menopausal, she was not being treated by the Respondent. Another factor that casts doubt on this matter is that the Respondent appears to be an intelligent person and everyone involved seemed to be of the view that the subject patient was an intelligent and responsible person. It simply seems most unlikely that an intelligent physician and an intelligent patient would have failed to communicate effectively with each other on so basic a subject as whether the patient was or was not having regular menstrual periods.

Paragraphs 16, 17, and 18: Accepted in substance.

Paragraph 19: Accepted in part and rejected in part. It is accepted that the Respondent did not believe the complaint of excessive bleeding required any further investigation, but that is not why he did not perform a vaginal examination that day. He performed a vaginal examination a few days later.

Paragraph 20: Rejected as being a conclusion of law, rather than a finding of fact.

Paragraphs 21, 22, and 23: Rejected as contrary to the greater weight of the persuasive evidence and as not supported by clear and convincing evidence.

Paragraph 24: Rejected as consisting of subordinate and unnecessary details.

Paragraph 25: Rejected as contrary to the greater weight of the persuasive evidence. (The Respondent had obtained a history from the patient that supported a conclusion that she was not post-menopausal. There was also other evidence indicating that the patient was not post-menopausal.)

Paragraph 26: Rejected as contrary to the greater weight of the persuasive evidence and as not supported by clear and convincing evidence. The testimony at page 39 is not clear and convincing and, in any event, it conflicts with the Respondent's testimony at page 429. The Respondent's version appears to be more reliable.

Paragraph 27: Rejected as subordinate and unnecessary details because the greater weight of the evidence is to the effect that the Respondent's records were sufficient.

Paragraphs 28 and 29: Rejected as a mischaracterization in part and as contrary to the greater weight of the persuasive evidence in another part. The Respondent did follow up on the complaint of excessive bleeding by observing the patient and asking the patient about her bleeding on subsequent visits. The greater weight of the persuasive evidence is to the effect that the Respondent's records were sufficient under the circumstances.

Paragraphs 30, 31, 32, and 33: Accepted.

Paragraphs 34 and 35: Rejected as consisting of subordinate and unnecessary details about which there appear to be some differences of opinion.

Paragraph 36: Accepted in substance with a number of subordinate and unnecessary details omitted.

Paragraphs 37 and 38: Accepted in substance.

Paragraphs 39 and 40: Rejected as contrary to the greater weight of the persuasive evidence.

Paragraph 41: Accepted in substance.

Paragraph 42: Rejected as contrary to the greater weight of the persuasive evidence.

Paragraph 43: Rejected as contrary to the greater weight of the persuasive evidence. (The Respondent did not treat the abnormal bleeding, but he did follow up with the patient to see if any abnormal bleeding recurred.)

Paragraphs 44 and 45: Accepted in substance.

Paragraph 46: Rejected as irrelevant, because the Respondent has not been charged with practicing below the applicable standard of care with regard to his treatment of the patient's vaginitis.

Paragraph 47: Rejected as contrary to the greater weight of the persuasive evidence.

Paragraph 48: Accepted.

Paragraph 49: Rejected as contrary to the greater weight of the evidence and as not supported by clear and convincing evidence.

Paragraphs 50 and 51: Rejected as irrelevant because the Respondent has not been charged with any violation in this regard.

Paragraph 52: The first sentence is accepted. The second sentence is rejected as not supported by clear and convincing evidence.

Paragraphs 53 and 54: Accepted.

Paragraphs 55, 56, 57, and 58: Rejected as irrelevant because the Respondent has not been charged with any violation in this regard.

Paragraph 59: Accepted in substance.

Paragraph 60: Rejected as contrary to the greater weight of the persuasive evidence.

Paragraphs 61 and 62: Rejected as consisting of subordinate and unnecessary details and as suggesting greater differences between the subject sonograms than actually existed.

Paragraph 63: Rejected as constituting a conclusion which is not supported by clear and convincing evidence.

Paragraph 64: Rejected as consisting of subordinate and unnecessary details because there is no persuasive evidence that the subject patient's uterus was growing between 1982 and 1987.

Paragraph 65: Rejected as consisting of subordinate and unnecessary details.

Paragraph 66: Accepted in substance.

Paragraph 67: Rejected as contrary to the greater weight of the persuasive evidence and as not supported by clear and convincing evidence.

Paragraphs 68, 69, and 70: Accepted in substance.

Paragraph 71: Rejected as irrelevant because the Respondent has not been charged with any violation in this regard.

Paragraphs 72, 73, and 74: Rejected as irrelevant because the Respondent has not been charged with any violation in this regard and also because contrary to the greater weight of the persuasive evidence.

Paragraphs 75 and 76: Accepted in substance.

Paragraph 77: Rejected as contrary to the greater weight of the persuasive evidence.

Paragraphs 78 and 79: Accepted.

Paragraph 80: Rejected as contrary to the greater weight of the persuasive evidence.

Paragraph 81: Rejected as a mischaracterization of the Respondent's conduct.

Paragraph 82: Rejected as subordinate and unnecessary details, especially in view of the persuasive evidence to the effect that the Respondent's medical records were sufficient.

Paragraphs 83, 84, and 85: Accepted in substance.

Paragraph 86: Rejected as contrary to the greater weight of the persuasive evidence.

Paragraph 87: Rejected as a mischaracterization of the Respondent's conduct.

Paragraphs 88 and 89: Rejected as contrary to the greater weight of the persuasive evidence.

Paragraph 90: Rejected as consisting of subordinate and unnecessary details.

Paragraphs 91 and 92: Accepted in substance.

Paragraph 93: First two sentences accepted. Third sentence rejected as subordinate and unnecessary details because there is no clear and convincing evidence that the Respondent had received the results of the sonogram as of the time he saw the patient on December 26, 1989.

Paragraph 94: Rejected as subordinate and unnecessary details because there is no clear and convincing evidence that the Respondent had received the results of the sonogram as of the time he saw the patient on December 26, 1989.

Paragraph 95: The first two sentences are accepted. The third sentence is rejected as subordinate and unnecessary details or as irrelevant.

Paragraphs 96, 97, 98, 99, and 100: Accepted.

Paragraph 101: Rejected as subordinate and unnecessary generalities which are too broad and vague to be meaningful.

Paragraph 102: Rejected in part because it is based on a faulty factual premise; the Respondent did not tell the subject patient her bleeding was normal peri-menopausal bleeding. Also rejected because other portions of the paragraph are contrary to the greater weight of the persuasive evidence.

Paragraphs 103 and 104: Rejected as consisting of subordinate and unnecessary details and as, in any event, not fully supported by persuasive evidence.

Paragraph 105: Rejected as not supported by clear and convincing evidence; the findings proposed in this paragraph are nothing more than speculation.

Paragraphs 106 and 107: Rejected as contrary to the greater weight of the persuasive evidence.

Findings submitted by Respondent:

Interspersed among the Respondent's proposed findings of fact are a number of what appear to be "recommendations," which are more nearly proposed conclusions of law than proposed findings of fact. To the extent that the Respondent's "recommendations" are treated as rejected in the paragraphs which follow, the rejection is addressed to their status as proposed findings of fact. The essence of some of the "recommendations" has been adopted in the conclusions of law, but they are nevertheless rejected as proposed findings of fact.

Paragraphs 1, 2, and 3: Accepted.

Paragraph 4: First and third sentences are accepted. The second sentence is irrelevant in view of the acceptance of the third.

Paragraph 5: First, second, and third sentences are accepted in substance.

The remainder of this paragraph is rejected as subordinate and unnecessary details and as argument.

Paragraph 6: Rejected as a combination of argument and proposed conclusions of law, rather than proposed findings of fact.

Paragraph 7: Rejected as consisting of statement of position and argument, rather than proposed findings of fact.

Paragraphs 8 and 9: Accepted in substance.

Paragraph 10: Rejected as consisting of subordinate and unnecessary details.

Paragraph 11: Rejected as consisting of argument. Paragraph 12: Accepted in substance.

Paragraph 13: First sentence is accepted in substance. Second sentence is rejected as subordinate and unnecessary details and argument.

Paragraph 14: First and third sentences are accepted in substance. Second sentence is rejected as subordinate and unnecessary details.

Paragraph 15: Rejected as consisting of subordinate and unnecessary details and argument.

Paragraph 16: Rejected as consisting of subordinate and unnecessary details or as irrelevant.

Paragraph 17: Rejected as a combination of argument and proposed conclusions of law, rather than proposed findings of fact.

Paragraphs 18-A, 18-B, and 18-C: Accepted in substance.

Paragraph 18-D: First sentence is accepted. The second sentence is rejected as not fully supported by persuasive evidence.

Paragraph 18-E: The first sentence is rejected as not supported by persuasive evidence. The second sentence is rejected as consisting of subordinate and unnecessary details or as irrelevant. (The medical note referred to in the second sentence of Paragraph 18-D and in both sentences of Paragraph 18- E is probably the note on page 87 of Petitioner's Exhibit 3. That page does not contain Dr. Wiesenthal's name, nor does his name appear on any other note in Petitioner's Exhibit 3. To the best of the Hearing Officer's ability to read it, the note on page 87 of Petitioner Exhibit 3 concerns the

patient's complaint about a lump on her lower back that was diagnosed as an infected sebaceous cyst. The subject note does not appear to contain any information about the patient's menstrual status. The absence of such information does not appear to be unusual, because it is rather unlikely that the patient's menstrual status was of any relevance to the diagnosis and treatment of an infected sebaceous cyst.)

Paragraph 18-F: Accepted.

Paragraph 18-G: Rejected as a combination of subordinate and unnecessary details and argument about the weight of the evidence. (The argument is essentially correct, but it does not belong in the findings of fact.)

Paragraph 18-H: Accepted in substance.

Paragraph 18-I: Accepted in substance with some subordinate and unnecessary details omitted.

Paragraphs 18-J, 18-K, 18-L, 18-M, 18-N, 18-O, 18-P, 18-Q, 18-R, 18-S, 18-

T, and 18-U: Accepted in substance.

Paragraph 19: Rejected as subordinate and unnecessary details or as irrelevant discussion of issues not raised in this case.

Paragraph 20: Rejected as consisting of argument.

Paragraph 21: Rejected as an unnecessary summary and discussion of conflicts in the evidence, rather than proposed findings of fact.

Paragraphs 22 and 23: Rejected as consisting of argument.

Paragraph 24: Rejected as a combination of argument and proposed conclusions of law, rather than proposed findings of fact.

COPIES FURNISHED:

Monica L. Felder, Esquire

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

Tallahassee, Florida 32399-0792

Thomas A. Graham, III, Esquire, and Kenneth J. Miller, Esquire

Wicker, Smith, Tutan, O'Hara, McCoy, Graham, Lane & Ford, P. A.

Post Office Box 14460

Fort Lauderdale, Florida 33302

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Dr. Marm Harris, Executive Director Board of Medicine

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 94-006301

Orders for Case No: 94-006301