STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION )

)

Petitioner, )

)

vs. ) CASE NO. 96-1339

) SANFORD YANKOW, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Joyous D. Parrish, held a formal hearing in the above-styled case on July 18, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Kevin W. Crews, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Jonathon P. Lynn, Esquire

Stephens, Lynn, Klein & McNicholas Two Datran Center

9130 South Dadeland Boulevard Miami, Florida 33156

STATEMENT OF THE ISSUE

Whether Respondent should be disciplined for alleged violations of provisions of Section 458.331(1), Florida Statutes.

PRELIMINARY STATEMENT

This case began on February 16, 1996, when the Agency for Health Care Administration (Agency or the Department) filed an administrative complaint against the Respondent, Sanford L. Yankow, M.D. Such complaint alleged Respondent had violated provisions of Section 458.331(1), Florida Statutes, by practicing medicine below the standard of care which is recognized by a reasonably prudent similar physician; and by failing to keep medical records to support the treatment afforded the patient. All allegations are related to the care and treatment for a patient known in this record as J.P.

Respondent executed an election of rights which disputed the allegations of fact contained in the administrative complaint and requested a formal hearing.

The case was forwarded to the Division of Administrative Hearings for formal proceedings on March 13, 1996.

At the hearing, the parties jointly submitted medical records for the patient, J.P., which were received and marked for identification as a stipulated exhibit. Such records have been clearly marked and sealed in an envelope to preserve their confidentiality. Petitioner presented the testimony of Pierre J. Bouis, M.D. Petitioner's exhibits numbered 1 and 2 were admitted into evidence.

Respondent testified on his own behalf, presented the testimony of George

F. Battle, M.D., and offered the deposition testimony of Michael J. Cavanaugh,

1. which was marked and admitted as Respondent's exhibit 1. Ruling on the deposition testimony of the witness, Manual A. Penalver, M.D., was reserved pending the opportunity of Petitioner's counsel to cross-examine the witness and to file any post-hearing argument regarding its admissibility. Petitioner's motion to strike, together with the deposition, was filed on September 3, 1996. Respondent has not responded to the motion to strike. Having considered the argument of counsel presented at the hearing, and being advised in the premises, the motion to strike is hereby granted. The deposition direct examination together with the cross-examination from the later date have been marked for identification only as Respondent's exhibit 3. Respondent's exhibit 2 was marked for identification only.

   
   

   The parties filed a joint motion for extension of time to file their proposed recommended orders on August 6, 1996. Such motion was granted and the parties were afforded until September 3, 1996 to file their proposed orders.

   Specific rulings on the proposed findings of fact are included in the appendix at the conclusion of this order.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material to the allegations of this administrative complaint, the Respondent has been a licensed physician in the State of Florida. He is a board certified obstetrician and gynecologist. Nothing in this record suggests Respondent has ever been disciplined in connection with the performance of his duties as a physician.

      
      

   2. The Petitioner is the state agency charged with the responsibility of regulating licensed physicians.

      
      

   3. In September of 1991, the patient, J.P., a sixty-seven year old postmenopausal female, presented to her primary care physician, Dr. Cavanaugh, with complaints of abdominal pain and pain on intercourse.

      
      

   4. Dr. Cavanaugh is board certified in general internal medicine, geriatrics, and quality assurance and utilization review. He has been licensed in Florida since 1981 or 1982 and, at the time of this examination, was employed by an HMO.

      
      

   5. Dr. Cavanaugh performed a physical examination for J.P. which included a pelvic exam and a pap smear taken from her uterus. It was evident to Dr. Cavanaugh that the patient was not posthysterectomy.

      
      

   6. In the course of the exam, Dr. Cavanaugh felt what he believed to be a left ovarian mass in the patient, J.P.

      
      

   7. Given his concern over the suspected mass and the pain (which the patient reported had been for several months), Dr. Cavanaugh referred the patient to the Medical Park Diagnostic Center for a CT scan.

   8. The CT scan was performed on September 20, 1991, and Dr. Farmer, a radiologist at the Medical Park Diagnostic Center, issued a radiological report which incorrectly indicated that the patient had undergone a prior hysterectomy.

      
      

   9. Dr. Farmer's report further indicated a left adnexal mass of ovarian origin. Dr. Farmer's report provides, in pertinent part:

      
      

      THE PATIENT APPEARS STATUS POST HYSTERECTOMY. THERE IS A COMPLEX APPEARING 6.5 X 5.0 X 4.0 CM PELVIC MASS WHICH DEMONSTRATES SIGHTLY DIMINISHED INTERNAL ATTENUATION AND APPEARING SOMEWHAT BILOBULAR SUGGESTING A THICKENED PERIPHERAL BORDER WHICH DEMONSTRATES MILD CONTRAST ENHANCEMENT. IT IS UNCERTAIN WHETHER THE PATIENT HAD BOTH OVARIES REMOVED

      AT THE PREVIOUS HYSTERECTOMY. NEITHER A RIGHT NOR A LEFT OVARY ARE DISTINCTLY IDENTIFIED ALTHOUGH THE LEFT PELVIC MASS MAY BE ADNEXAL IN NATURE ARISING FROM THE LEFT OVARY. IN ADDITION, THERE IS A SOMEWHAT ILL-DEFINED AREA OF SOFT TISSUE FULLNESS WHICH MEASURES 3 X 2 X 2 CM LYING JUST SUPERIOR TO THE APPARENT VAGINAL CUFF WHICH MAY BE RELATED TO THE LEFT ADNEXAL MASS OR MAY BE A RESIDUAL RIGHT OVARY.

      * * *

      CLINICAL CORRELATION WITH THESE FINDINGS AND IF NOT PERFORMED PREVIOUSLY, CORRELATIVE SONOGRAPHY OF THE PELVIS MAY BE BENEFICIAL. THE APPARENT LEFT ADNEXAL MASS MAY REPRESENT A CYSTADENOMA/CARCINOMA AND APPEARS TO PRODUCE SIGHT EFFACEMENT OF THE PARTIALLY CONTRAST FILLED URINARY BLADDER.

      [Capitalization in original text]

      
      

   10. It is undisputed that prior to September 20, 1991, J.P. had not undergone a hysterectomy.

       
       

   11. The "correlative sonography" mentioned in Dr. Farmer's report refers to a sonogram which is a noninvasive diagnostic procedure.

       
       

   12. On or about September 24, 1991, Dr. Cavanaugh received Dr. Farmer's report and scheduled a conference with J.P.

       
       

   13. During such conference Dr. Cavanaugh advised J.P. that the CT scan had indicated a mass of ovarian origin. Further, he recommended that she see Dr. Yankow, the Respondent, for further examination and possible surgery. Also on this date Dr. Cavanaugh had the patient give a blood sample for a CA 125 test.

       
       

   14. The CA 125 test results may indicate cancer. In this case, J.P.'s CA

       125 test result was negative. Such result does not rule out cancer.

       
       

   15. Similarly, J.P.'s pap smear test results were negative.

       
       

   16. Dr. Cavanaugh did not schedule a sonogram or any other diagnostic procedure for J.P. Sensing some urgency, Dr. Cavanaugh personally contacted Respondent and scheduled J.P. to see him the next day.

   17. Respondent was under contract to the HMO and had been recruited by Dr. Cavanaugh to provide gynecological services for the group.

       
       

   18. On September 30, 1991, J.P. presented to Dr. Yankow through Dr. Cavanaugh's referral. At that time, Respondent received Dr. Farmer's radiological report of the CT scan.

       
       

   19. Respondent performed a history and a physical examination on J.P. which included a pelvic exam.

       
       

   20. Based upon the pelvic exam it was evident to Dr. Yankow that J.P. was not posthysterectomy.

       
       

   21. During the course of Respondent's pelvic exam of the patient, he noted what he believed to be a left ovarian mass.

       
       

   22. Respondent also noted that J.P.'s uterus was anteverted and anteflexed.

       
       

   23. Based upon his exam of J.P., Respondent knew or should have known that the Dr. Farmer's report was premised, in part, on an erroneous assumption (that the patient was posthysterectomy).

       
       

   24. Respondent did not recommend or order a sonogram for the patient.

       
       

   25. Respondent did not recommend or order a laparoscopy for the patient.

       
       

   26. A laparoscopy is the insertion of a fiber optic apparatus which is normally inserted near the umbilicus so that visualization and/or operative procedures can be performed within the pelvis. A laparoscopy is generally considered less invasive than a laparotomy.

       
       

   27. The Respondent recommended that J.P. undergo an exploratory laparotomy.

       
       

   28. The laparotomy would allow the physician to rule out or confirm cancer and surgically remove it during one procedure.

       
       

   29. In October, 1991, J.P. was admitted to Larkin General Hospital in Miami, and Respondent performed the laparotomy on J.P.

       
       

   30. The laparotomy was described in Respondent's operative report as: a transverse incision in the lower abdomen going through the skin, subcutaneous tissue, fascia, peritoneum and entering the abdominal cavity. Such procedure is considered invasive surgery.

       
       

   31. At the time of the surgery, J.P.'s ovaries were found to be free of disease and normal. A one or two centimeter piece of inflamed fatty tissue was removed by Respondent which pathology determined was infarcted fatty tissue. All concerns regarding cancer were relieved.

       
       

   32. Prior to performing the laparotomy Respondent did not contact Dr. Farmer regarding the CT scan report. Respondent believed the pertinent part of such report was the confirmation of the mass and did not believe the fact that it was premised on an erroneous assumption would make any difference.

   33. Respondent did however, after-the-fact, write to Dr. Cavanaugh regarding the patient. Such letter provided, in part:

       
       

       In reviewing the report of the CAT scan of Mrs. P. [name appears in the original], I realize that the second paragraph starts off that the patient appears [status post hysterectomy]. You and I examined this patient and we both realized that she had not had a hysterectomy. In view of this, all it would have taken was a phone call to Medical Park and this mass that was seen on CAT scan would naturally be her uterus. Any cystic structure that may have been seen in the cul-de-sac most likely was diverticular disease as she thought she had diverticular disease. I have spoken with Dr. Farmer and

       let him know that I really felt that both you and I and he combined, dropped the ball on this one. He was led to believe that she had had a hysterectomy and you and I both examined the patient and knew that she had not and we let this go by. I just thought you would

       like to know this. [Emphasis in original text]

       
       

   34. When Respondent made the decision to recommend the laparotomy, he believed two physicians (himself and Dr. Cavanaugh) had clinically noted the mass and that the CT scan had also indicated one.

       
       

   35. Under the facts of this case, given the patient's age and medical history (postmenopausal and complaints of pain), it was reasonable for the physicians treating this patient to be concerned about the possibility of cancer.

       
       

   36. In hindsight, additional diagnostic procedures such as a sonogram or a laparoscopy might have ruled out the need for surgery.

       
       

   37. In hindsight, contact with Dr. Farmer by either Dr. Cavanaugh or Dr. Yankow might have changed the radiological report and the course of conduct undertaken.

       
       

   38. Respondent's failure to avail himself of other diagnostic procedures does not, however, under the facts of this case, rise to the level of failing 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.

       
       

   39. Respondent's medical records for this patient support the course of treatment for the patient and candidly admit that, with the clearer vision only hindsight affords, all three physicians might have taken different tacks had they known then what they now do.

       
       

   40. Under the practices utilized in 1996, a sonogram would be ordered in instances such as J.P.'s case. However, in 1991, the sonogram was not always ordered to confirm a CT scan.

       CONCLUSIONS OF LAW

       
       

   41. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

       
       

   42. The Petitioner has the burden of proof in this case to establish, by clear and convincing evidence, that the Respondent committed the violations alleged in the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   43. In Inquiry Concerning Davey, 645 So.2d 398 (Fla. 1994) the court addressed the clear and convincing evidence standard and held at 404:

       
       

       ...There must be more than a 'preponderance of the evidence,' but the proof need not be 'beyond and to the exlusion of a reasonable doubt.'

       This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

       [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence 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. [Citations omitted]

       
       

   44. Section 458.331(1), Florida Statutes, authorizes the Board of Medicine to take disciplinary action against a physician upon proof of any of the acts itemized in the statute. In this case the Respondent has been charged with two violations, subparagraphs (m) and (t), of the cited statute.

       
       

   45. The greater weight of the persuasive evidence in this case does not support the conclusion that Respondent violated the cited provisions. First, as to the alleged medical records violation, Respondent's records were accurate and verified the examinations performed, the course of treatment pursued, and candidly assessed the after-the-fact knowledge gained from the laparotomy. In this instance since the course of treatment did not fall below the standard of care, it cannot be concluded that the records which accurately tracked that course are inadequate.

       
       

   46. As to the standard of care provided by Respondent, it is concluded that J.P. was afforded care and treatment that did not constitute gross or repeated malpractice. Further, such care 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. Given the patient's age, postmenopausal status,

and reports of pain together with the clinical findings of a mass noted by two qualified physicians and seemingly supported by the CT scan, the concerns of the physicians regarding possible ovarian cancer were reasonable and supported by the records. In hindsight, and certainly given the technological preferences of 1996, a sonogram would have greatly assisted Respondent's treatment of the patient. However in 1991 Respondent acted only based upon the findings he believed were reliable: the findings of his colleague, Dr. Cavanaugh; and Dr.

Farmer's radiological report. That he did not realize the potential consequences of Dr. Farmer's erroneous assumption at the time while indicative of a failure of communications among the physicians does not support, by clear and convincing evidence, a breach of the standard of care.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Agency for Health Care Administration, Board of Medicine, enter a final order dismissing the administrative complaint against this Respondent.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of January, 1997.

JOYOUS D. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1997.

APPENDIX

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 27, 29 and 30 are accepted.

2. With regard to paragraph 28, it is accepted that Respondent could have used ancillary less invasive procedures to attempt diagnosis; otherwise rejected as contrary to the weight of the evidence.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs 1 through 18, and 22 are accepted.

2. To the extent that paragraphs 19, 20, 21 are supported by the testimony of Dr. Penalver, such paragraphs are rejected as not supported by the evidence; otherwise where consistent with the findings of fact and conclusions of law noted above, they are accepted.

COPIES FURNISHED:

Kevin W. Crews Senior Attorney

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Jonathan P. Lynn, Esquire Two Datran Center, PH I & II

9130 South Dadeland Boulevard Miami, Florida 33156

Dr. Marm Harris Executive Director

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 within 15 days from the date of 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: 96-001339

Orders for Case No: 96-001339