STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ) ADMINISTRATION, )
)
Petitioner, )
)
vs. ) CASE NO. 95-5323
)
JUNG SOO LIU, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, this cause came on for formal hearing on March 14 and 15, 1996, in Pensacola, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: William Frederick Whitson, Esquire
Agency for Health Care Administration 1940 North Monroe Street
Tallahassee, Florida 32399-0792
For Respondent: Jung Soo Liu, M.D., Pro se
1196-A Ellison Drive Pensacola, Florida 32503
STATEMENT OF THE ISSUES
Is Respondent guilty of violating Section 458.331(1)(t), F.S., 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; and/or,
Is Respondent guilty of violating Section 458.331(1)(m), F.S., failing to keep written medical
records justifying the course of treatment of the patient; and,
If Respondent is guilty of the foregoing charge(s), what is/are the appropriate penalties?
PRELIMINARY STATEMENT
Petitioner presented the oral testimony of William Rummel, M.D., Bascom Raney, M.D., John G. Burke, Terry Griffen, Charles A. Rosenberg, M.D., Nettie Ruth Goetsch, R.N., Ann Hoyt, R.N., Sherry Williams, R.N., Lillie Mae Wright, L.P.N., Jacqueline Taylor, and Jennifer Flower- King, L.P.N., and had eleven exhibits admitted in evidence.
Respondent testified on his own behalf and had one exhibit admitted in evidence.
A transcript was filed in due course. Only Petitioner timely filed a proposed recommended order, the findings of fact of which are ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.
To protect the confidentiality of the deceased patient, the record has been sealed and it was required that the transcript refer to the patient only by his initials. Patient initials have also been used in this recommended order.
FINDINGS OF FACT
At all times material, Respondent was a licensed medical physician, holding Florida license number ME 0027524.
At all times material, Respondent was employed by the Department of Corrections and was responsible for primary health care at the sick bay of Berrydale Forestry Camp and at Century Correctional Institute Infirmary. Standard operating procedure was for Respondent only to see patients at Century Correctional Institute Infirmary.
Century Correctional Institute is a major correctional institution. Its infirmary has basic primary care equipment. Berrydale is an ancillary work camp with about 280 inmates as opposed to the 1,000 or so at Century. At all times material, nurses routinely conducted sick call at Berrydale. After triage, the nurses would schedule those cases requiring a physician to see the Respondent physician at Century Infirmary. Respondent would then determine the care needed for each referred patient. He could prescribe medication, admit patients to the infirmary, or refer patients to Jay Hospital.
Jay Hospital is the hospital that provides acute care for inmates who become acutely ill at either Berrydale or Century. Jay Hospital is not part of the Department of Corrections.
Pursuant to the testimony of Charles A. Rosenberg, M.D., who was accepted as an expert medical physician, the standard for health care in prison is the same as for health care which would be delivered to anybody who seeks it in the community.
While employed by the Department of Corrections, Respondent treated Patient S.M., a 33 year old male inmate assigned to Berrydale Forestry Camp.
On September 17, 1991, Respondent saw S.M. who had presented with left foot pain and an acute upper respiratory infection. Respondent prescribed Motrin for the pain and an expectorant for S.M.'s cough.
On September 20, 1991, and on September 23, 1991, Patient S.M. was seen by nurses at Berrydale sick call. At that time he was complaining of dizziness and night sweats. The dizziness had been of two weeks' duration. S.M. was mildly afebrile at the time of these visits.
On September 20, 1991, S.M. presented to the nurses with a temperature of almost 101 degrees.
On September 26, 1991, S.M. was complaining of fever, sore throat, and dry cough of several weeks' duration. He was sent, upon Respondent's orders, to the emergency room of Jay Hospital.
Jay Hospital took a history from S.M. of dry cough, fever, vague abdominal pain and a sore throat for several weeks' duration.
During the September 26, 1991 physical examination given by Jay Hospital's emergency room physician, Dr. Rummel, S.M. was noted to have a small white plaque on his hard palate. The emergency room physician questioned whether this might be a fungus infection known as candida albicans.
The emergency room physician's diagnosis at that point was early bronchitis, or bronchitis upper respiratory infection, pharyngitis, and gastroenteritis. He felt something else was going on, but in the emergency room setting, he only took care of the acute problem. In his opinion, S.M.'s blood tests were essentially normal, showing an acute but not very severe infection and mild anemia. In his opinion, the remaining test results, including blood, urine and liver function, were non- specific, non-diagnostic, or consistent with gastroenteritis. S.M.'s chest x-ray revealed no acute changes, but there was some interstitial (between the lobes of the lungs) changes which might be early pneumonia.
The emergency room physician prescribed Ceftin, a broad spectrum antibiotic, with rest and observation by the prison physician. He expected that S.M.'s condition would be followed up by Respondent within 48-56 hours to determine more specifically what further treatment S.M. needed.
According to registered nurses Goetsch and Hoyt, broad spectrum antibiotics should begin to have an effect on the patient within 24 hours. Upon all evidence, the failure of an antibiotic to have an effect in that timeframe may be reason to further evaluate the patient or change antibiotics.
A copy of the emergency room paperwork with lab results was given to the guard accompanying S.M. to take back to Century Correctional Institute.
It was Dr. Rosenberg's expert testimony that if the white patch on S.M.'s hard palate were indeed candida albicans, it should have alerted Respondent to a lowered immune deficiency.
To be certain a white patch is, in fact, candida albicans, a test is necessary, but it is common for medical physicians and registered nurses to act upon a sight evaluation.
Dr. Rosenberg also opined that the interstitial changes showing up on S.M.'s September 26, 1991 chest x-ray are not uncommon in beginning pneumocystic carinnii pneumonia (PCP) and that S.M.'s symptoms, his minimally abnormal urine and liver function tests done at Jay
Hospital, and his admitted prior intravenous drug use should have aroused Respondent's "level of suspicion" to do additional tests to determine if HIV-AIDS and/or PCP were present.
PCP is the most common complication of undiagnosed AIDS.
Contrary to Respondent's assertions, it is found upon Dr. Rosenberg's testimony that in an inmate population with a high HIV seropositivity, several percent of all inmates have positive HIV, a precursor to AIDS.
Respondent knew at the very latest on September 27, 1991 that S.M. had a past history of unsafe sex and intravenous drug use, two indicators of high risk for HIV- AIDS.
According to Dr. Rosenberg, it would have been appropriate and within the standard of reasonable medical practice if, no later than September 27, 1991, the day after S.M. visited Jay Hospital, Respondent had, in the Century Infirmary, taken a sputum examination for PCP and/or a lymphocyte CD-4 count to get an indication of lowered immunity.
Respondent did not do either the sputum examination or CD-4 test which would have confirmed the presence of PCP, but not necessarily confirmed HIV or AIDS.
Dr. Rosenberg further indicated that the standard of care under the circumstances would have been for the Respondent to have seen and examined S.M. the day after he was returned from Jay Hospital, that is, on September 27, 1991, and at that time taken a complete history and begun treatment with an antibiotic specific to PCP, preferably Bactrim.
Although 100 percent of AIDS patients eventually die, those with the first one or first several attacks of PCP pneumonia get well from the pneumonia and go on, if they are treated properly.
There is no appropriate medical record to show that Respondent ever actually took a full history or did a full physical examination of S.M. (See Findings of Fact 30,37,57-61)
S.M. was not seen by Respondent upon his return to Century either on September 26 or 27. He was returned to the general prison population on September 26, 1991.
On September 27, 1991, S.M. signed a form for an HIV-AIDS serology test and blood was drawn by a nurse at Century for that purpose and sent to a Jacksonville laboratory. S.M.'s form was countersigned by the nurse who counselled him and by Respondent.
Thereafter, Respondent did not see or treat S.M. until September 30, 1991. On that date, Respondent diagnosed acute bronchitis and wrote in the patient's records that the medication prescribed at Jay Hospital should be continued. Respondent's notes do not reflect the taking of a history from S.M. or of his giving S.M. a physical. His notes are inadequate by reasonable medical standards.
There is no firm evidence that the prescription for Ceftin from Jay Hospital was ever filled or administered to S.M. back at Century or Berryville. The fact that S.M. did not get the Ceftin did not make any difference in his condition, because it was not a specific therapy for his condition, such as Bactrim would have been.
On September 30, 1991, S.M. was again put back into the general prison population.
Respondent's explanation for why he did not personally evaluate or treat S.M. from September 17 to September 30, a total of 13 days, despite all indications of S.M.'s having both an acute and a chronic condition, seems to be that he did not have the results of the HIV- AIDS test, that the nurses did not schedule S.M. for the Infirmary and that Respondent was seeing approximately 40 patients daily in Century Infirmary during his 7:00 a.m. to 4:00 p.m. Monday through Friday shift. This explanation does not comport with good medical practice or professional standards.
Contrary to Respondent's assertion that he could not treat S.M. for PCP or AIDS until he received a firm test result of HIV-AIDS, the undersigned accepts as more credible and compelling the testimony of Dr. Rosenberg and all of the nurses called to testify to the effect that
Respondent should have begun aggressive treatment with specific antibiotics, such as Bactrim. Dr. Rosenberg's expert testimony also is accepted that it is common recommended medical practice with life threatening illnesses to treat in anticipation of receiving positive results from HIV serology, CD-4 lymphocyte counts, and sputum exams for PCP and to begin specific therapy while waiting for such test results to come back. If the diagnosis made prior to test confirmation is incorrect, the physician can discontinue the therapy with little harm to the patient, but when one waits until the tests come back and the patient has become terminally ill during the interim, it makes no difference if one has the diagnosis.
If the disease has progressed so far that the patient is going to die, having the diagnosis confirmed by test results is moot comfort. While it would be outside the standard of care to have aggressively treated S.M. without any such tests, it would have been reasonable to make the tests and start the treatment with Bactrim while awaiting the test results.
On October 2, 1991, S.M. was seen again at Berrydale sick call. The inmate complained of high fever (100.2 degrees), chills, and of feeling bad. He was coughing and bringing up a moderate amount of mucus. The lung examination by the nurse indicated some abnormalities.
In the afternoon, S.M. began vomiting. For this reason and because of increased temperature elevation, he was transferred to the Century Infirmary for observation. Upon arrival, S.M.'s temperature was 105 degrees.
On October 3, 1991, S.M. was admitted to Century Infirmary. There are no admitting notes, history, physical exam or progress notes by the Respondent. Respondent was notified, but did not personally examine the patient. Respondent ordered the continuation of cough medication and Tylenol.
On the morning of October 3, 1991, the patient's temperature was below normal, but he was sweating profusely. It is not uncommon for people to have remitting and spiking temperatures with pneumonia and other acute infections.
Minimal treatment was given to the patient: a tub bath and ice packs for the temperature, Phenergan for nausea and vomiting, and Tylenol for the temperature.
That same evening, S.M. got worse. After several attempts, Respondent was notified by phone. He ordered an antibiotic called Keflex.
On the morning of October 4, 1991, a nurse asked Respondent if they should start an I.V. to replace fluids. Respondent rejected that idea and ordered the nurses to just force fluids by mouth. Between October 2 and October 5, 1991, several nurses urged Respondent to try antibiotics by I.V.
Respondent's explanation as to why he ordered no
I.V. for any purpose was that he did not think an I.V. was available due to Century being a new facility under construction. This assertion is not credible, given the circumstances and responsibilities of his primary physician status and the repetitive requests by the nurses.
The patient was unable to drink and was vomiting, so he could not take fluids by mouth.
On October 4, 1991, S.M.'s symptoms continued to get worse. He complained of severe chills, nausea, fever (103 degrees) and being unable to take fluids. Candida albicans was again noted by a nurse's sight evaluation.
When Respondent was phoned by the nurse on duty, Respondent said to give no treatment and monitor the temperature every 30 minutes.
Later, when the Respondent was informed that the patient had a temperature of 104 degrees and was experiencing tremors, he ordered Tylenol and had the patient sent to Jay Hospital for x-rays and a complete blood count (CBC).
S.M.'s chest x-ray at Jay Hospital on October 4, 1991 was only read by a radiology technician, not a radiologist M.D., but the technician's information that the x-ray revealed that S.M. had infiltrates in the lungs and other information that the CBC indicated that S.M.'s hematocrit was very low (probably profound anemia) was relayed to the Respondent by telephone by Jennifer Flower-
King, the Century L.P.N. who had accompanied S.M. to Jay Hospital. She asked permission to take the inmate to Jay Hospital's emergency room and admit him because he was so very sick. Respondent ordered the nurse to "bring him back" to Century Infirmary. S.M. was returned to Century Infirmary later on October 4, 1991.
On Saturday, October 5, 1991, S.M.'s temperature was 102.2 degrees. He also had heavy sweating and was very weak. Abnormal sounds were heard when the nurse listened to the patient's lungs. Respondent was notified, and he ordered Phenergan suppositories to suppress the nausea and vomiting. By 1:15 p.m., S.M.'s temperature was 105 degrees.
On October 5, 1991, after much prompting from the nurses, Respondent gave telephoned instructions to send
S.M. to Jay Hospital for admission because there was no improvement in his condition.
According to Respondent's deposition testimony, by the time he sent S.M. to Jay Hospital on October 5, Respondent had "confirmatory tests" that S.M. was HIV- positive. At formal hearing, he testified that these test results were relayed to him at home by telephone by a nurse at Century. Respondent did not have the results of the
HIV-AIDS serology report at any time. He got only the results of some type of confirmatory HIV tests on October 5, 1991 when he finally sent S.M. back to Jay Hospital where S.M. expired shortly thereafter on October 6, 1991. PCP in S.M. was not positively diagnosed until an autopsy was performed after S.M. died on October 6, 1991.
The initial diagnosis at Jay Hospital on October 5, 1991 was pneumonia.
On October 5, 1991, Jay Hospital's emergency room physician did not receive an adequate medical record or history of S.M. from Century upon his arrival at the Jay Hospital emergency room. He relied on S.M.'s oral history of his symptoms. That consisted of what has been related supra. S.M. also told the treating physician that he had no appetite and had approximately a five pound weight loss over the last month. S.M. admitted to abusing drugs in the past.
Because S.M. had been an I.V. drug abuser and was acutely ill, the emergency room physician, Dr. Raney, thought there was a possibility that S.M. had PCP.
At Jay Hospital, S.M. was given oral and I.V. antibiotics including Bactrim, and I.V. fluids.
On Sunday, October 6, 1991, at 6:44 p.m., S.M. experienced respiratory arrest and died. A subsequent autopsy revealed PCP, positively.
On Monday, October 7, 1991, the day following S.M.'s death, his records were sealed in accordance with the policy of the Department of Corrections.
Subsequent to the records being sealed, Respondent sent two pages to the Department of Corrections to be added to the medical records of Patient S.M. showing that on Thursday, October 3, 1991 he had performed a physical on S.M. and diagnosed PCP at that time, and that
S.M. was discharged from Century Infirmary on that date with his diagnosis of PCP. Respondent's explanation for this alteration or addition to S.M.'s medical records was that he could not find the records when he decided to make the late entry upon his return to work on Monday, October 7, 1991, since by that time the records had been sealed.
The correct way to make a late entry in medical records is to indicate the date, the time, the annotation of late entry, and why it was a late entry. Respondent's two pages of late entries did not meet this standard of medical correctness. Moreover, Respondent's after-the-fact entries are clearly incorrect because they report that S.M. was transferred to Jay Hospital on October 3, when in fact, Respondent never personally saw S.M. on October 3, 1991 and
S.M. was not transferred until October 5, 1991. Also, they show PCP as the discharge diagnosis from Century Infirmary when in fact, Respondent asserted directly contrariwise throughout formal hearing to the effect that he had never diagnosed S.M. with PCP until October 5 when he got telephoned confirmation of HIV-AIDS and shipped S.M. out to Jay Hospital. Respondent further asserted throughout formal hearing that he could not legitimately diagnose PCP without positive tests. Further, all other evidence confirms that the first recorded diagnosis of PCP was at the autopsy after October 5, 1991. (See Findings of Fact 33-34 and 50)
On October 11, 1991, Respondent was terminated from his position as a physician from the Department of Corrections. Respondent was terminated for his failure to follow established agency policy regarding his treatment of inmate S.M. and because he had entered into S.M.'s record a physical form and discharge summary that were not only incorrect, but were late entries which were not identified as late entries.
Upon the evidence as a whole, it is found that Respondent did not provide to S.M. health care commensurate with that to be found in the community at large.
Upon the evidence as a whole, it is found that Respondent's medical records of S.M. did not justify his course of treatment of S.M.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.
Pursuant to Section 458.331(2), F.S., the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a physician for violations of Sections 458.331(1)(m) and (t), F.S., which provide in pertinent part as follows:
(m) Failing to keep written medical records justifying the course of treatment of the pat- ient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations
and palatalizations.
* * *
(t) Gross or repeated malpractice or fai- lure 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.
Petitioner agency bears the duty to go forward to prove by clear and convincing evidence the violations
alleged. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Petitioner has proven, clearly and convincingly, that Respondent violated Section 458.311(1)(m), F.S., by not documenting a complete history or physical examination, and by improperly and contrary to good medical practice and standards attempting to add a physical examination and discharge summary/diagnosis which did not occur.
Petitioner has proven, clearly and convincingly, that Respondent violated Section 458.331(1)(t), F.S., by failing to practice medicine within the appropriate standard of care due to his lack of personal involvement with Patient S.M., his unfamiliarity with the clinical picture of HIV-AIDS complicated by PCP, and his failure to initiate timely hospital referral and admission for S.M. Even if there was some reason for Respondent's missing the correct diagnosis on September 27, 1991, (such as the suggestion that the Jay Hospital blood work on September 26, 1991 was ambiguous, that bronchitis had been diagnosed by another physician, that no test to confirm observation diagnoses of candida albicans had been performed, or that a nonspecific antibiotic already had been prescribed), there is no credible reason Respondent did not perform reasonable clinical tests for PCP, do a physical examination and assessment of his own, and aggressively and anticipatorially (that is, before the results of all the tests were in) treat S.M. for PCP between September 27 and October 5, 1991. In failing to do this, Respondent departed from commonly accepted medical practice. Under all the circumstances, it is astonishing that Respondent did not at least seek the admission of S.M. to the hospital emergency room on October 4, 1991, when he was already there.
The agency relies upon the disciplinary guidelines for physicians promulgated by the Board of Medicine and found in Rule 59R-8.001 F.A.C., and proposes a penalty of reprimand, $6,500.00 administrative fine, and three years' probation. Such a penalty is permitted by the rule.
The violations having been proven by clear and convincing evidence, the undersigned adopts the requested penalty as representative of the agency's expertise in the setting of penalties.
RECOMMENDATION
Upon the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that the Board of Medicine enter a final order that:
Finds the Respondent guilty of violating Sections 458.331(1)(m) and (t) F.S.;
Reprimands Respondent;
Requires Respondent to pay an administrative fine in the amount of $6,500.00;
Places Respondent on probation for a period of three years with terms to be determined by the Board of Medicine.
RECOMMENDED this 29th day of May, 1996, at Tallahassee, Florida.
1550
_
ELLA JANE P. DAVIS, Hearing
Officer
Division of Administrative Hearings
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-
(904) 488-9675
Filed with the Clerk of the Division of Administrative
Hearings
this 29th day of May, 1996.
APPENDIX TO RECOMMENDED ORDER CASE NO. 95-5323
The following constitute specific rulings, pursuant to Section 120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).
Petitioner's PFOF:
1-15, 17-23, and 25-59 Accepted, except for unnecessary, subordinate, and/or cumulative material which is non-dispositive and not adopted. Also, immaterial matters have been excluded and some adjustments of text have been made to more accurately reflect the record as a whole rather than the isolated testimony/evidence referenced in the proposals.
16 The greater weight of the credible evidence is that additional tests should have been conducted by Respondent no later than 9/27/91. Therefore, the proposal is rejected as stated.
24 Rejected as immaterial.
60 Rejected as argumentation and/or facts subordinate to the facts as found.
Petitioner's second set of paragraphs 1-27 under the sub-heading, "ARGUMENT," contain references to the record.
However, having been designated by the proponent agency as mere "argument," rulings thereon will not be made pursuant to Section 120.59(2) F.S.
Respondent's PFOF: None submitted.
COPIES FURNISHED:
William Frederick Whitson, Esquire Agency for Health Care Administration 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Jung Soo Liu, M.D. 1196-A Ellison Drive
Pensacola, Florida 32503
Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine
1940 North Monroe Street Tallahassee, Florida 32399-0792
Jerome W. Hoffman, General Counsel Agency for Health Care Administration 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.
| Issue Date | Proceedings |
|---|---|
| Sep. 16, 1996 | Final Order filed. |
| Jun. 18, 1996 | (Petitioner) Motion for Final Order filed. |
| May 29, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 03/14-15/96. |
| Apr. 08, 1996 | Petitioner`s Proposed Recommended Order filed. |
| Apr. 04, 1996 | Post-Hearing Order sent out. |
| Mar. 29, 1996 | Volume 1 (Transcript) filed. |
| Mar. 28, 1996 | Volume II Transcript filed. |
| Mar. 21, 1996 | (Petitioner) Notice of Filing (No enclosures) filed. |
| Mar. 20, 1996 | (Petitioner) Notice of Filing (No Enclosure) filed. |
| Mar. 14, 1996 | CASE STATUS: Hearing Held. |
| Feb. 13, 1996 | (Petitioner) Notice of Taking Deposition filed. |
| Jan. 30, 1996 | Notice of Serving Petitioner`s First Set of Request for Admissions, Interrogatories, and Request for Production of Documents; Petitioner`s First Set of Request for Admissions, Interrogatories, and Request for Production of Documents filed. |
| Jan. 25, 1996 | Notice of Hearing sent out. (hearing set for March 14-15, 1996; 10:00am; Pensacola) |
| Jan. 10, 1996 | (Petitioner) Amended Joint Response to Initial Order filed. |
| Nov. 15, 1995 | (Petitioner) Joint Response to Initial Order filed. |
| Nov. 06, 1995 | Initial Order issued. |
| Nov. 01, 1995 | Agency Action Letter; Notice Of Withdrawal; Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 06, 1996 | Agency Final Order | |
| May 29, 1996 | Recommended Order | Fine, reprimand and probation assessed against Medical Doctor who didn't practice medicine with appropriate level of care or keep proper medical records and aids patients died. |
