STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1589

)

KENNETH AUNG-DIN, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on August 13, 1996, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Kevin W. Crews, Esquire

Post Office Box 14229 Tallahassee, Florida 32317-4229

For Respondent: W. Jerry Foster, Esquire

1342 Timberlane Road, Suite 101-A Tallahassee, Florida 32312-1775

STATEMENT OF THE ISSUE

The issue is whether respondent's license as a physician should be disciplined for the reasons cited in the administrative complaint filed on December 21, 1992.

PRELIMINARY STATEMENT

This matter began on December 21, 1992, when respondent, then known as the Department of Professional Regulation, and now known as the Agency for Health Care Administration, Board of Medicine, issued an administrative complaint alleging that respondent, Kenneth Aung-Din, a licensed physician, had violated Chapter 458, Florida Statutes, in various respects. More specifically, the complaint alleged that in February 1991, while serving as the attending emergency room physician at a Jacksonville, Florida hospital, respondent failed to practice medicine with the level of care, skill, and treatment which a reasonably prudent physician recognizes as acceptable under similar conditions and circumstances. He is also charged with failing to keep written medical records justifying the course of treatment to a patient. For this conduct, the agency proposes to discipline respondent's license.

Respondent disputed these allegations and requested a formal hearing to contest the agency's proposed action. The matter was referred by petitioner to the Division of Administrative Hearings on April 1, 1996, with a request that a Hearing Officer be assigned to conduct a formal hearing. By Notice of Hearing dated April 22, 1996, a final hearing was scheduled on August 13, 1996, in Jacksonville, Florida.

At final hearing, petitioner presented the testimony of Dr. Jack F. Kareff, a Boca Raton board certified emergency medicine physician and accepted as an expert in emergency medicine. Also, it offered petitioner's exhibits 1-3. All exhibits were received in evidence. Respondent testified on his own behalf and presented the testimony of Dr. Michael W. Lusko, a Tallahassee board certified emergency medicine physician and accepted as an expert in emergency medicine; and Dr. J. R. Perez-Povdea, chairman of the department of emergency medicine at Columbia Memorial Hospital in Jacksonville, Florida.

The transcript of hearing was filed on August 29, 1996. Proposed findings of fact and conclusions of law were filed by the parties on September 13, 1996. The undersigned has considered the proposed orders in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. Respondent, Kenneth Aung-Din, is a licensed medical doctor having been issued license number ME 0051923 by petitioner, Agency for Health Care Administration, Board of Medicine (Board). He is board certified in emergency medicine having received his certification in 1994. When the events herein occurred, respondent was an emergency room physician at Memorial Medical Center (MMC) in Jacksonville, Florida.

      
      

   2. On the evening of February 21, 1991, V. P., a thirty-five year old female who was then eight months pregnant, presented herself to the MMC emergency room complaining of lower abdominal discomfort, difficulty urinating, and a five-hour history of nausea and vomiting. After being examined and treated by respondent, and diagnosed as having a urinary tract infection, the patient was released the same evening. Less than an hour later, however, the patient went into labor and delivered a new born.

      
      

   3. On December 21, 1992, the Board issued a two-count administrative complaint charging that, while treating V. P., respondent failed to practice medicine with that level of care, skill, and treatment which a reasonably prudent similar physician recognizes as acceptable under similar conditions and circumstances in that he "failed to obtain fetal heart tones, determine fetal position, and ausculatate for fetal heart tones with a doppler that was available to him in the ER when he examined (the) patient, who was a high risk near term obstetrical patient." The complaint further alleges that respondent failed to keep written medical records justifying the course of treatment of V. P., "including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations." Respondent denied all material allegations and requested this hearing to contest these charges.

2. Did respondent deviate from the standard of care?

1. On presentment to the emergency room nurse around 8:53 p.m. on February 21, 1991, V. P. complained of generalized abdominal pain and pressure since around 3:30 p.m. that day, with nausea and two episodes of vomiting. She also complained that she was unable to urinate since approximately 2:30 p.m. An additional complaint was allegedly made by the patient, but it is not a part of the nurse's notes and thus is hearsay in nature. The patient further disclosed that this was her second pregnancy. After recording in her notes the patient's complaints, the nurse, on her own volition, conducted a nitrozine test which was negative. It later came to light that the test was improperly conducted by the nurse, but respondent was never told this fact.

   
   

2. Respondent first observed the patient around 9:08 p.m. and recalled that she "was obviously in discomfort." Based on V. P.'s complaints, respondent initially suspected that she might be in preterm labor. After obtaining a patient history, respondent palpitated V. P.'s abdomen for any pain, tenderness, abnormalities or contractions. Although V. P. was eight months pregnant, she was nontender and exhibited no signs of active labor. The patient also denied that she was having contractions.

   
   

3. Based on V. P.'s primary complaint of urinary retention, respondent asked the nurse to insert a Foley catheter in V. P.'s bladder. Before the nurse did so, V. P. was able to urinate on her own accord. Even so, respondent ordered a catheter inserted around 9:30 p.m. to empty any residual in the bladder. This procedure yielded approximately 200cc. of urine which was used for a urinalysis test. By now, having urinated at least once, and having her bladder emptied, V. P.'s pain and discomfort had gone away, and she appeared to be "totally comfortable and with no complaints."

   
   

4. After seeing the results of the nitrozine test around 9:55 p.m., respondent conducted a pelvic examination. Still considering the possibility of preterm labor, respondent inserted a vaginal speculum into the patient to see if there was any bleeding or fluid. Neither was present, and a manual examination of the patient revealed that the opening to her cervix was thick and closed. A patient in preterm labor would generally present signs of bleeding or fluid, and the cervix would have begun to open and "thin out." Given these findings, and the fact that V. P. was exhibiting no signs of labor or discomfort, it was reasonable for respondent to conclude that V. P. was not in preterm labor.

   
   

5. The results of the urinalysis were reviewed by respondent around twenty minutes before the patient's discharge. By that time, she had voluntarily urinated at least three times since first arriving at the emergency room. The test results revealed 1+ protein, trace ketones, and 0-2 white and red blood cells. Also, they indicated that a sterile (uncontaminated) specimen had been taken, and that trace bacteria were present. Because trace bacteria, if not treated, can lead to "a very significant" urinary tract infection, and V. P. had previously experienced abdominal "pressure" and an inability to urinate, both signs of an infection, respondent prescribed Ampicillin, an antibiotic, on the assumption V. P. had a urinary tract infection. This diagnosis is not unusual for pregnant women, and even petitioner's expert agreed that V. P. had presented some of the "classical signs" of a urinary tract infection.

   
   

6. After having observed the patient for almost two hours, during which time V. P. exhibited no objective clinical signs of active labor, respondent discharged the patient around 10:50 p.m. In doing so, respondent relied not only on the above observations, but also upon the results of his pelvic and

   abdominal evaluations, the urinalysis test results, and the fact that all of V. P.'s complaints (pain, nausea and vomiting) had been resolved. It was also reasonable to conclude that had the patient been in preterm labor, her symptoms would have progressed, rather than abated, during the two hours she was in the emergency room.

   
   

7. At the time of discharge, respondent gave V. P. instructions to make a follow-up visit that week with her primary physician at University Medical Center (UMC), and if her condition did not improve during the interim, to return to MCC or call the "emergency department right away for further assistance."

   She was also given a prescription for an antibiotic for the urinary tract infection.

   
   

8. Just prior to leaving the hospital, V. P. urinated one last time and allegedly told the nurse that she had started "spotting." Even if V. P. actually reported this critical fact, the nurse failed to disclose this to respondent, and he cannot be faulted for the nurse's omission. Had respondent known, or even suspected, that she had just begun bleeding, he would have sent her upstairs to the obstetrical wing for further observation.

   
   

9. The complaint levels a number of criticisms at respondent's conduct which, if true, indicate that he failed to meet the appropriate standard of care. In addressing these criticisms, it should be noted that petitioner's own expert agreed that, at best, this was "a difficult case," and one that all emergency room physicians "hate to see."

   
   

10. The complaint characterizes V. P. as a "high risk near term obstetrical patient." The use of the term "high risk" is based principally on the fact that an ultrasound conducted at UMC on February 19, 1991, revealed that the fetus was in a breech position. But respondent was never told this fact, and even petitioner's expert conceded that without this information, it was reasonable for respondent to consider V. P. as a normal risk pregnancy.

    
    

11. The complaint first alleges that respondent "failed to assess the status of the fetus by neglecting to auscultate for fetal heart tones with a doppler that was available to him in the Emergency Department." A doppler is a device used to listen for fetal heart tones and, while not as effective as other monitoring devices, is nonetheless useful in detecting fetal distress or preterm labor. Here, respondent did not assess the status of V. P.'s fetus because her pain and discomfort had disappeared after her urinary tension was resolved, and she no longer exhibited any signs, clinical or otherwise, of preterm labor. At the same time, while doppler machines were available in emergency rooms, including MMC, during the early 1990's when this incident occurred, it was not prevailing protocol for emergency room physicians to automatically conduct fetus monitoring for what they perceived to be normal risk pregnancies. While the standard for emergency room physicians has subsequently changed, and fetal heart tones are now routinely monitored on all pregnant women twenty weeks and above, respondent did not deviate from the prevailing standard of care in February 1991 by failing to use a doppler.

    
    

12. The complaint next alleges that a prudent physician "would have telephoned (V. P.'s) treating physician from UMC, or the obstetrician- gynecologist on call in order to properly assess (her) condition." As to calling V. P.'s treating physician, however, the more persuasive evidence shows that it would have been imprudent to attempt to contact V. P.'s primary treating physician because she had been treated by an unknown resident at another hospital, and at that hour of the night the chance of speaking with that

    resident was highly improbable. Then, too, since her complaints had been resolved, there was no need to contact another physician.

    
    

13. As to respondent's failure to obtain a specialist consultation, the more persuasive evidence shows that the diagnosis of urinary tract infection was reasonable under the circumstances, and after the patient exhibited no signs of distress for at least an hour and a half, her discharge was appropriate. While it is true, as petitioner suggests, that the initial complaints by V. P. of pressure, nausea, vomiting and abdominal pains can be signs of preterm labor, these complaints were resolved after the catheter was inserted, and there were no corroborating indications of labor. Then, too, based on the information at hand, respondent reasonably concluded that V. P. was a normal risk pregnancy.

    
    

14. Finally, later inquiry disclosed that during her first pregnancy, V.

    P. was in labor for only fifteen minutes, a remarkably short period of time. Respondent was not aware of this fact at the time of treatment. As it turned out, V. P. experienced another remarkably short period of labor on the evening of February 21, 1991.

    
    

15. In summary, the more persuasive evidence supports a finding that, while treating V. P. in February 1991, respondent practiced medicine with that level of care, skill and treatment which was recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

    C. Adequacy of Medical Records

    
    

16. The complaint generally alleges that respondent failed to keep written medical records justifying the course of treatment of the patient. In the history section of his notes for patient V. P., which have been made a part of this record, respondent made the following recordations:

    
    

    2110 - 35-year old white female, eight months pregnant; complaining of unable to urinate; dysuria; feels like pressure; denies vaginal bleeding; no contractions;

    
    

17. Under the physical examination portion of his notes, respondent reported as follows:

    
    

    white female, well developed, awake, alert, times 3.

    Abdomen, pregnant uterus equals 8 months; nontender.

    Pelvic - zero blood; oz thick and closed. Late entry - 2/26/91, Nitrozine Test performed, which was negative.

    
    

18. Finally, under his diagnostic impressions and discharge instructions, respondent wrote as follows:

    
    

    UTI (urinary tract infection)

    1. Ampicillin 250 mg, q.i.d., for 7 times.

    2. Tylenol if needed.

    3. Follow up, UMC this week.

    4. Return if any problems.

19. In responding to the charge that his notes were inadequate or incomplete, respondent agreed that the diagnostic impressions section would have been more accurate and complete if he had written "urinary retention- resolved/UTI" rather than "UTI" alone. This is because urinary retention was a secondary diagnosis which was resolved during the patient's visit. In this respect, the records are not adequate. In addition, because the records fail to note that V. P.'s symptoms of abdominal pain and pressure were resolved, they lack completeness. In all other respects, they are found to be adequate.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. Because respondent's license is at risk, petitioner bears the burden of proving the allegations in the complaint by clear and convincing evidence. See, e.g., Nair v. Dep't of Bus. and Prof. Reg., Bd. of Medicine, 654 So.2d 205,

    208 (Fla. 1st DCA 1995).

    
    

22. The administrative complaint alleges that respondent has violated Section 458.331(1), Florida Statutes, in two respects. Subsection (1) provides that, among others, the following acts shall constitute grounds for which disciplinary action against a licensee may be taken:

    
    

    (m) 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, dispensed, or administered; and reports of consultations and hospitalizations.

    (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

23. As to Count I, which alleges that respondent deviated from the appropriate standard of care, there is less than clear and convincing evidence that respondent deviated from that standard by failing to obtain fetal heart tones, determine fetal position, and ausculatate for fetal heart tones with a doppler" as alleged in the complaint. There is also less than clear and convincing evidence that his failure to contact the patient's treating physician or obtain a specialist consultation constituted a deviation from the appropriate standard. Therefore, Count I should be dismissed.

    
    

24. As to Count II, which involves respondent's alleged recordkeeping shortcomings, the law is clear that patient records must contain "a minimal amount of information . . . so that neutral third parties can observe what transpired during the course of treatment of a patient." Robertson v. Dep't of Prof. Reg., 574 So.2d 153, 156 (Fla. 1st DCA 1990). By clear and con- vincing evidence, petitioner has established that respondent failed to meet this requirement by not documenting urinary retention as a resolved diagnosis nor the fact that V. P.'s symtoms of abdominal pain and pressure were resolved. In these limited respects, Count II of the complaint has been sustained.

25. Rule 59R-8.001(2), Florida Administrative Code, provides that for a violation of section 458.331(1)(m), the recommended penalty range is as follows:

    
    

    From a reprimand to denial or two (2) years suspension followed by probation, and an administrative fine from $250.00 to $5,000.00.

    
    

26. Also, Rule 59R-8.001(3), Florida Administrative Code, prescribes the aggravating and mitigating factors to be considered, where appropriate, so that the Board may deviate from the recommended penalties. Because there are no such factors present which would warrant a deviation from the above guidelines, reference to those factors is unnecssary.

    
    

27. Based on the facts and circumstances of this case, and given the fact that only one count has been sustained in two minor respects, a reprimand is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order finding

respondent guilty of violating Section 458.331(1)(m), Florida Statutes, as

described above, and that he be given a reprimand. Count I should be dismissed.

DONE AND ENTERED this 1st day of October, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1996.

COPIES FURNISHED:

Dr. Marm Harris, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0770

Kevin W. Crews, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

W. Jerry Foster, Esquire

1342 Timberlane Road, Suite 101-A Tallahassee, Florida 32312-1775

Jerome W. Hoffman, Esquire

Agency for Health Care Administration Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within fifteen 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: 96-001589

Orders for Case No: 96-001589