STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2053

)

LAWRENCE A. GALITZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on August 2, 1996, at Miami, Florida, before Judge Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kevin W. Crews, Esquire

Agency For Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Wilson Jerry Foster, Esquire

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

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Section 458.331(l)(m) and (t), Florida Statutes. In this regard it is alleged that the Respondent failed to keep medical

records justifying the course of treatment of a patient and also failed to practice medicine with an acceptable level of care, skill and treatment.

PRELIMINARY STATEMENT

At the final hearing on August 2, 1996, the parties offered six joint exhibits, all of which were received in evidence. The Petitioner also presented the testimony of an expert witness.

At the conclusion of the hearing the parties requested, and were granted, 20 days from the filing of the transcript within which to file their proposed recommended orders. The transcript of the hearing was filed on August 16, 1996, and on September 5, 1996, both 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.

Upon careful consideration of all of the evidence, the undersigned is persuaded that this matter should be resolved in a manner consistent with the Respondent’s view of the matter.1 Accordingly, in preparing the findings of fact and conclusions of law which follow, the undersigned has relied extensively on the proposed findings and conclusions submitted by the Respondent and incorporated most of such proposals into the findings and conclusions which follow.

FINDINGS OF FACT

1. The Respondent graduated from the University of Maryland Medical School in 1981 and then went on to State University of New York at Stoney Brook where he did an internship and residency for four years in general surgery.

2. He was licensed in Florida in 1985 and, since then, has been practicing emergency medicine in Florida.

3. In January 1992, patient H. G. was hospitalized at Parkway Regional Medical Center (Parkway) under the care of Malcolm G. Goldsmith, a board certified colorectal surgeon. The patient had been a patient of Dr. Goldsmith’s for two or three months prior to admission. The patient was hospitalized for the purpose of reconnecting his intestine after a prior colostomy with detachment of the rectum.

4. Dr. Goldsmith admitted the patient and performed surgery on him. The patient was discharged from Parkway six days after the surgery. At that time he was on a regular diet, was having bowel movements and was ambulatory.

5. The patient, upon discharge on January 27, 1992, remained the patient of Dr. Goldsmith and was given instructions regarding diet, activity, wound care, and pain medications, and was told to return in two weeks for removal of the staples or sutures. He was also instructed to let Dr. Goldsmith know about any unusual difficulties or problems.

6. In the early morning of January 28, 1992, the Respondent was working the 7:00 p.m. to 7:00 a.m. shift at Pembroke Pines Hospital (PPH) when the patient presented with severe abdominal pain and nausea without emesis. The patient stated that he had recently had abdominal surgery, had been released the previous afternoon from the hospital, had been having bowel movements and had been tolerating food for a couple of days. The patient was awake, alert, and able to provide his history to the Respondent.

7. The Respondent obtained a history from the patient and noted that he had a fever of 100.8. He then physically examined the patient’s abdomen noting in the medical record, “abdomen bowel sounds positive but decreased. Firm, distended diffused tenderness.”

8. The Respondent also ordered a complete blood count (CBC) and an x-ray of the abdomen. Although he did not note his findings in the medical record, the Respondent read the x-ray as showing the patient had some dilated small bowel loops with some air-fluid levels which he interpreted as an ileus, a lack of proper motion of the small intestine.

9. The Respondent read the CBC which showed a shift to the left which the Respondent interpreted as showing the patient having either an infeciton or aon inflammatory process going on. A shift to the left could be caused by

   sepsis which could be caused by a wound infection, which is not an unusual postsurgical event.

10. At 5.55 a.m., after examination of the patient and reading the x-ray and laboratory report, the Respondent telephoned Dr. Goldsmith and consulted with him about the patient. He told Dr. Goldsmith of the results of his physical exam, the blood test results and his interpretation of the x-ray. After discussing the matter, the two physicians agreed that the patient should see Dr. Goldsmith later that same morning at Dr. Goldsmith’s office.

11. Dr. Goldsmith did not have privileges at PPH.

    
    

12. The Respondent then gave the patient a pain medication shot (effective for about four hours duration) and told the patient to follow up in four hours with Dr. Goldsmith or Dr. Schalen (the surgeon who was on call that day and on the staff at PPH). The Respondent then authorized the discharge of the patient, noting his diagnosis in the medical records as, “Abdominal pain secondary to surgery.”

13. At discharge, the patient signed the following statement in his medical record:

    I acknowledge that I have been informed of and understand all of the instructions given to me and have received a copy thereof.

    I have been instructed to contact a physician as soon as possible for continued medical diagnosis and care, if indicated.

    
    

    I do not have any more questions at this time, but understand that I may call the Emergency Service Department at any time should I have any further questions or need assistance in obtaining follow up care.

    
    

14. After being discharged from PPH, the patient delayed in contacting Dr. Goldsmith and was not seen by Dr. Goldsmith until 4:00 or 5:00 p.m. on January 28, 1992. At that time he was obviously sick primarily, in Dr. Goldsmith’s opinion, because he was dehydrated. Dr. Goldsmith ordered laboratory findings which showed a normal white cell count of 8,000 and a very minimal shift to the left. The patient did not have a fever and there were no signs in Dr. Goldsmith’s examination of the patient’s abdomen suggesting a peritoneal inflammatory process. According to both Dr. Mead and Dr. Goldsmith, the minimal shift to the left, late in the afternoon of the 28th is inconsistent with a diagnosis of sepsis.

15. Sometime after being admitted to Parkway, and while under Dr. Goldsmith’s care, the patient died. His proximate cause of death was that he vomited, aspirated the vomitus into his lungs and sustained a cardiac arrest. Petitioner’s expert, Dr. Meade, agrees that Respondent is

    not responsible for the proximate cause of death of the patient.

16. The Respondent went off duty at PPH at 7:00 a.m. Sometime after 8:00 a.m., after conducting an “overreading” of the x-ray, a PPH radiologist interpreted the x-ray as a probable 4444distal colonic obstruction, an interpretation different from that of the Respondent’s. The radiologist’s interpretation is inconsistent with the patient’s history of having bowel movements and tolerating food. The fact that the radiologist had a different interpretation of the x-ray is not proof of any deviation by Respondent from the standard of care required in this case.

17. The Respondent was not notified of the radiologist’s interpretation and was not responsible for notification or recall of the patient after going off duty.

18. PPH had a method for notification and recall of patients in such a situation. That system involved contacting the ER doctor on duty. The medical record shows that PPH staff left a message with the family late in the afternoon of January 28, after the patient had already been readmitted to Parkway Hospital, and spoke to the wife that evening regarding the radiologist’s findings.

19. In his care of the patient, Dr. Galitz was responsible for judging the severity of the abdominal pain, the acuteness of the condition, and for determining whether

    to admit the patient to the hospital or release him. His physical examination and the tests and x-rays ordered were all appropriate. He appropriately undertook a “consultation” with the patient’s surgeon, Dr. Goldsmith, obtained his recommendation and advice and then decided to discharge the patient.

20. If the patient is stable, it is appropriate to discharge him with a recommendation that he follow up in the morning with his doctor.

21. At the time that the Respondent discharged the patient, he reasonably believed that the patient was stable and that discharge of the patient would not compromise his safety.

22. It is clear from the evidence in this case that the Respondent secured and took into account all of the relevant facts available regarding the patient’s medical condition, consulted with the patient’s surgeon, and then made a reasonable and appropriate decision to discharge the patient to see his surgeon within four hours. The examination, consultation, test interpretations and decisions of Dr. Galitz in this case were consistent with the standard of care recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    CONCLUSIONS OF LAW

    
    

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

24. 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 is described in Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983).

25. The Petitioner has failed to prove, by clear and convincing evidence, any of the violations alleged in Counts One and Two of the Administrative Complaint.

26. Count One, paragraph 34, of the Administrative Complaint charges violations of Section 458.331(l)(t), Florida Statutes, in a number of respects. With regard to the alleged failures to adequately assess the history and condition of the patient and to perform a complete history and physical examination of the patient, the greater weight of the evidence is to the effect that, under the circumstances of this case, the history and physical examination of the patient was sufficient and appropriate. Such being the case, the evidence is insufficient to establish a violation of Section 458.331(l)(t), Florida Statutes.

27. With regard to the alleged failure to order appropriate tests thus preventing Respondent from making an accurate and timely diagnosis of the patient’s condition, the evidence was undisputed by experts for both sides that the tests ordered were appropriate. Such being the case, the evidence is insufficient to establish a violation of Section 458.331(l)(t), Florida Statutes.

28. With regard to the alleged failure to recognize the patient’s signs of post-operative surgical complicaiton including fever, sudden severe abdominal pain, distended and tender abdomen, low white blood cell count with shift to the left, and the presence of an obstruction on x-ray and Respondent’s failure to hospitalize the patient in response to these findings, the greater weight of the evidence is to the effect that, under the circumstances of this case, the Respondent acted appropriately. There was no evidence presented showing that the patient suffered “sudden” abdominal pain. The Respondent did note the patient’s fever and discussed it with Dr. Goldsmith. The Petitioner’s expert agreed that the shift to the left could be caused by a wound infection which is not an unusual postsurgical event. Such a condition is consistent with Respondent’s discharge diagnosis. There was no evidence presented that the Respondent was ever informed of the radiologist’s interpretation of a probable obstruction. Further, the

    laboratory test results at Parkway and lack of fever of the patient upon admission to parkway—10 hours after being seen by Respondent—is inconsistent with the Petitioner’s position that the patient had overwhelming sepsis at PPH. Further, Petitioner’s expert agrees that it was appropriate for the Respondent to evaluate the patient’s abdominal pain and to discharge him if stable. Such being the case, the evidence is insufficient to establish a violation of Section 458.331(l)(t), Florida Statutes.

29. With regard to the alleged failure of the Respondent to keep the patient under his care in the emergency room until the preliminary report of the abdominal x-rays returned and following Respondent’s receipt of the x- ray interpretation, the evidence is undisputed that it was within the standard of care for the Respondent to evaluate the patient’s condition and to discharge him if he considered him stable. Such being the case, the evidence is insufficient to establish a violation of Section 458.331(l)(t), Florida Statues.

30. With regard to the alleged failures of the Respondent to make a strong effort to contact the patient, request his presentation to the evergency room following his receipt of the radiologist’s x-ray interpretation, or report the findings to the patient’s surgeon, the evidence is uncontradicted that the Respondent never received the

    radiologist’s interpretation before he went off duty at 7:00

    
    

    a.m. and that he was not responsible for any notification and recall of the patient. Such being the case, the evidence is insufficient to establish a violation of Section 458.331(1)(t), Florida Statutes.

31. With regard to the alleged failure of the respondent to request either a consultation or an examination of the patient by the patient’s surgeon, the evidence is uncontradicted that the Respondent appropriately obtained a telephone consultation with the patient’s surgeon, who, at the time, had a co-responsibility to the patient and that both physicians were in accord with the Respondent’s decision to discharge the patient with instructions to see Dr. Goldsmith at his office within four hours. Such being the case, the evidence is insufficient to establish a violation of Section 458.331(l)(t), Florida Statutes.

32. Count two, paragraph 37, of the Administrative Complaint charges violations of Section 458.331(l)(m), Florida Statutes, for the alleged failure to “document Patient H. G.’s complete family history and medical history, as well as a complete review of systems for his examination of the Patient H. G.” With regard to this allegation, there was no evidence presented by the Petitioner supporting any need for a family history. Such being the case, the

evidence is insufficient to establish a violation Section 458.331(l)(t), Florida Statutes.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 20th day of December, 1996, in Tallahassee, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1996.

ENDNOTE

1/ This is a case in which the parties have presented conflicting expert witness testimony. Upon consideration of the totality of the evidence, the testimony supporting the Respondent’s version of the matter is more persuasive that the opposing testimony.

COPIES FURNISHED:

Kevin W. Crews, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Wilson Jerry Foster, Esquire 1342 Timberlane Road, Suite 101A Tallahassee, Florida 32312-1775

Dr. Marm Harris, Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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

Tallahassee, Florida 32309

NOTICE OF RIGHT TO FILE 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.

1 This is a case in which the parties have presented conflicting expert witness testimony. Upon consideration of the totality of the evidence, the testimony supporting the Respondent’s version of the matter is more persuasive that the opposing testimony.

Docket for Case No: 96-002053

Orders for Case No: 96-002053