On March 6, 1997, a formal administrative hearing was held in this case by video teleconference in Tallahassee, Florida, before Richard Hixson, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Steven A. Rothenburg, Esquire
For Respondent: Thomas R. Bopp, Esquire
FOWLER, WHITE, GILLEN, BOGGS, VILLAREAL & BANKER, P.A.
The issue for determination in this case is whether Respondent violated certain provisions of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, and if so, whether Respondent’s license to practice medicine in the State of Florida should be revoked or otherwise disciplined.
On February 28, 1996, Petitioner, AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE, filed an Administrative Complaint charging Respondent, RAMESCHANDRA BHAGWANDAS SHAH, M.D., with one count of violating Section 458.331(1)(t), Florida Statutes, as being guilty of the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as acceptable under similar conditions and circumstances. Specifically, the Administrative Complaint charged Respondent, an emergency room physician, with failure to adequately diagnose and treat an emergency room patient.
Respondent disputed the factual allegations of the Administrative Complaint, and on April 2, 1996, filed a Petition for Formal Administrative Hearing. On May 6, 1996, the matter was forwarded to the Division of Administrative Hearings to conduct these proceedings. The case was scheduled for hearing on September 6, 1996. Pursuant to the Joint Motion for Continuance filed by the parties on July 22, 1996, hearing in this matter was continued. On November 11, 1996, Petitioner filed a Motion to Hold the Case in Abeyance pending settlement negotiations, which was granted without objection. On December 18, 1996, the parties filed a Status Report requesting the matter be set for formal hearing. The case was thereafter rescheduled for formal hearing on March 6, 1996.
At formal hearing Petitioner presented the testimony of one witness, Jay Edelberg, M.D., qualified as an expert in the practice of emergency room medicine. Petitioner also presented Composite Exhibit 1, a compilation of medical records relating to the patient
in this case, which was received in evidence. Respondent testified in his own behalf, and also presented the testimony of two witnesses, Henry Elton Smoak, III, M.D., qualified as an expert in the practice of emergency room and internal medicine, and Elsie Samuel, R.N. Respondent presented one exhibit, the curriculum vitae of Dr. Smoak, which was received in evidence.
ore tenus motion for directed verdict which for reasons more fully set out below is DENIED.
A transcript of the proceedings was filed March 31, 1997. On April 9, 1997, Petitioner filed a Proposed Recommended Order, and on April 11, 1997, Respondent filed a Proposed Recommended Order.
Petitioner, AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE, is the agency of the State of Florida vested with the statutory authority to administer the provisions of Chapter 458, Florida Statutes, governing the practice of medicine.
Respondent, RAMESCHANDRA BHAGWANDAS SHAH, M.D., is now, and at all material times hereto was, licensed to practice medicine in the State of Florida holding license number ME 0050099. Respondent was first licensed to practice medicine in the State of Florida in 1987.
At all material times hereto, Respondent was employed as an emergency room physician at Polk General Hospital in Bartow, Florida. Prior to being employed at Polk General Hospital, Respondent was employed with E.P.I., an Emergency Physician’s Group. Dr. Jay Edelberg, who testified in this proceeding as an
expert witness for Petitioner, is the President and CEO of
E.P.I. Respondent’s primary duties with E.P.I. related to emergency treatment for prisoners at various institutions under contract with E.P.I.
Respondent became employed at Polk General Hospital in November of 1993.
Polk General Hospital treats a majority of indigent patients. Polk General does not employ a cardiologist, nor does the hospital have a cardiac laboratory.
Nurse Elsie Samuels has been a registered nurse for eighteen years, and has worked for more than nine years in emergency rooms. Nurse Samuels is certified in advanced cardiac life support.
Dr. Jay Edelberg and Dr. Henry Smoak, III, were qualified in this proceeding as expert witnesses in the field of emergency room medical practice and are both highly qualified by experience and education.
Hospitalization of November 29-December 1, 1994
The allegations of the Administrative Complaint relate to the care and treatment of Patient L.G.T., a 59-year old male. Patient L.G.T. first presented to the emergency room of Polk General Hospital at approximately 9:00 a.m. on November 29, 1994 complaining of chest pain, a very common complaint in emergency room medical practice. Like many of the patients at Polk General Hospital, Patient L.G.T. was indigent and without medical insurance.
At this time, Patient L.G.T. was initially evaluated by Dr. C. B. Clark, the emergency room physician on call at the time. Patient L.G.T. reported an episode of chest pain that had recently occurred at approximately 3:00 a.m. that morning. Upon presentation Patient L.G.T. did not exhibit or report shortness of breath, other respiratory distress, nausea, or a family history of cardiac problems. Patient L.G.T. reported that his primary symptom was a feeling of “gas” moving around. Patient L.G.T.’s cardiac risk factors included his age, gender, and a history of hypertension.
After the initial emergency room examination, Patient
L.G.T. was referred by Dr. Clark to Dr. Thieu Nguyen, an internist at Polk General Hospital for further evaluation. As set forth above, there was no cardiologist on staff at Polk General Hospital.
Patient L.G.T. was admitted to Polk General Hospital on November 29, 1994, and discharged by Dr. Nguyen on December 1, 1994. During this three-day hospitalization, Patient L.G.T. underwent a thorough cardiac evaluation, including three electrocardiograms (EKGs), an echocardiogram, cardiac enzymes test, and a complete blood work-up.
The results of the cardiac work-up as evaluated by Dr. Ngyuen were inconclusive. The EKGs were abnormal, but non- diagnostic. In this respect, the EKGs indicated questionable anterolateral ischemia; however, Patient L.G.T. was not experiencing chest pain during the hospitalization. The EKG results showed some depressions in the ST changes at V5-V6. This result, however, was not diagnostic of myocardial infarction
because if Patient L.G.T. was experiencing a myocardial infarction a rise in ST elevation would be expected.
The results of the AST and LDH blood studies indicated a normal range.
The results of the cardiac enzyme test revealed some levels were elevated. Dr. Nguyen, however, concluded that the cardiac enzyme elevation was due to non-cardiac causes. This conclusion appears contradictory in these circumstances, and there is no indication in the record upon what basis Dr. Nguyen arrived at this conclusion.
Dr. Nguyen also noted that the patient’s chest pain was not typical, and might be due to gastrointestinal problems.
Patient L.G.T. had a history of hypertension, and a cholesterol reading of 302, which was high. The normal range is 100 to 200.
On December 1, 1994, Patient L.G.T. was discharged from Polk General Hospital by Dr. Nguyen, with follow-up treatment ordered in three days including EKGs, blood work-up, and further cardiac enzymes. At the time of Patient L.G.T.’s discharge, Dr. Nguyen made no specific diagnosis of cardiac disease.
Emergency Room Admission of December 2, 1994
Patient L.G.T. returned to the emergency room of Polk General Hospital at 12:55 a.m. on December 2, 1994, approximately twelve hours after his discharge by Dr. Nguyen. Respondent was the physician on duty at this time. Nurse Samuels was also on duty in the emergency room.
An initial intake evaluation was performed by the triage
nurse which indicated that Patient L.G.T. reported he began experiencing chest pain at approximately 2:00 p.m. on December 1, 1994, with the pain primarily located in his chest and under his left arm. Patient L.G.T. did not at this time appear in acute distress, and denied any radiating pain. Patient L.G.T.’s vital signs were normal.
Patient L.G.T. was then referred to Respondent who performed a physical examination which specifically evaluated the patient for signs typical of myocardial ischemia including: constricting chest pain, perspiration, respiratory disorders, vomiting or nausea, paleness, elevated temperature, and elevated pulse rate. Respondent’s physical examination of Patient L.G.T. showed no findings indicative of myocardial ischemia. Nurse Samuels was present during the physical examination by Respondent. At this time Patient L.G.T. expressed generalized complaints of discomfort, and did not indicate specific complaints which were cardiac in origin.
Upon completion of the physical examination, Respondent ordered a cardiac enzyme test for Patient L.G.T. The results of the cardiac enzyme test indicated that at 1:25 a.m. on December 2, 1994, that the CPK, ASTs, and LDs were in the normal range.
Respondent also ordered an EKG for Patient L.G.T. The computerized results of the EKG as of 1:23 a.m. on December 2, 1994 indicated that there were non-specific ST and T-wave abnormalities. These computerized results were identical to the results of the EKG performed on L.G.T. on December 1, 1994 at 7:19 a.m. during his previous hospitalization and evaluation by Dr. Nguyen. Both expert
witnesses, Dr. Edelberg and Dr. Smoak, agreed that these computerized EKG results were common for a man of L.G.T.’s age. Both experts also agreed that there was no acute change between the EKG results of December 1, 1994 and December 2, 1994.
Chest pain alone is not diagnostic of myocardial infarction, and may be the result of several causes including gastrointestinal problems, as indicated in this case by Dr. Nguyen during L.G.T.’s previous hospitalization.
At 1:05 a.m. and 1:15 a.m. on December 2, 1994, Patient
L.G.T. was given nitroglycerin for relief from angina, and gastroesophageal pain. At 2:15 a.m. Patient L.G.T. reported that he was not experiencing chest pain which was reported to Respondent by the emergency room nurse.
At 2:45 a.m. Respondent, after evaluating the results of Patient L.G.T..’s physical examination, EKG, cardiac enzymes, and blood work-up, decided to discharge Patient L.G.T. from the emergency room. At this time Patient L.G.T.’s vital signs were normal, and he was not experiencing any chest pain.
After being informed that he would be discharged, Patient
L.G.T. informed Nurse Samuels that he was experiencing chest and back pain, and that he also was experiencing nausea. Nurse Samuels informed Respondent of the patient’s reported condition. Patient
L.G.T. also told Nurse Samuels that he had eaten spicy fish earlier that day while at home.
Respondent then prescribed for Patient L.G.T. a “G.I. cocktail,” consisting of a combination of medications given to
relieve gastrointestinal discomfort, which was administered at 2:50
a.m. on December 2, 1994.
At 3:10 a.m. Patient L.G.T. stated, “I can’t go home, I am sick.” Patient L.G.T. requested that Respondent admit him to Polk General Hospital. Respondent reviewed with Patient L.G.T. the results of his EKG, cardiac enzyme tests and physical examination, and informed him that there was no basis for admission. Patient
L.G.T. kept telling Respondent to send him upstairs and admit him.
At this time, Respondent did not consult with Dr. Nguyen or any other internist on staff at Polk General Hospital regarding Patient L.G.T. on December 2, 1994. Respondent had reviewed Dr. Nguyen’s records regarding Patient L.G.T. and was aware of the apparent contradictory conclusion that elevated cardiac enzymes were due to non-cardiac causes, but did not question this conclusion.
At 3:15 a.m. on December 2, 1994, Patient L.G.T. was discharged by Respondent from the emergency room at Polk General Hospital. At this time Patient L.G.T. appeared to be in stable condition, and stated to Nurse Samuels that he would call his family to take him home.
Post Discharge Incident
At approximately 4:20 a.m. Nurse Samuels had gone to her car and was returning to the emergency room when she was informed that someone had collapsed in the emergency room lobby. Nurse Samuels went to investigate and found Patient L.G.T. unresponsive, with face down in vomit, with no pulse, no respiration, and urine incontinent. Both pupils were fixed and dilated.
A code was instituted, and Patient L.G.T. was taken back to the emergency room. All efforts to resuscitate him were unsuccessful. Patient L.G.T. was pronounced dead at approximately 5:00 a.m. on December 2, 1994. The stated diagnosis was probable aspiration/asphyxia.
Respondent requested that the medical examiner perform an autopsy on Patient L.G.T..
It is stipulated by the parties that an autopsy should have been performed on Patient L.G.T., but was not performed and that there was only a visual examination of Patient L.G.T. by the medical examiner before rendering cause of death.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1) and Section 455.225, Florida Statutes.
Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d
487 (Fla. 1973). In this disciplinary licensing proceeding the Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987).
“Clear and convincing evidence” requires evidence must be found to be credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and witnesses must be lacking in confusion as to facts in issue; 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. Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983).
In this case, Respondent is charged in the Administrative Complaint with violating Section 458.331(1)(t), Florida Statutes, which provides:
(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. The board shall give great weight to the provisions of s.
766.102 when enforcing this paragraph. As used in this paragraph, “repeated malpractice” includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities 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 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,” shall not be construed so as to require more than one instance, event, or act. 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.
In regard to the standard of care required of Respondent in this case, each party presented highly qualified expert testimony. Petitioner presented the expert testimony of Dr. Jay Edelberg, whose corporation formerly employed Respondent as an emergency room physician. Dr. Edelberg testified that Respondent failed to practice medicine with the level of care required in this case in that Respondent after reviewing Patient L.G.T.’s records
and evaluating the tests should have recognized a potential for cardiac problems and contacted the primary physician in this case.
Dr. Henry Smoak, III, a practicing emergency room physician, with extensive experience and training in emergency room medical practice testified that Respondent properly evaluated Patient L.G.T. and followed the appropriate protocol in discharging the patient. Dr. Smoak concluded that because Patient L.G.T. had just undergone a complete and thorough cardiac work-up during his three-day hospitalization, and because there were no signs of an acute change in the patient’s condition, that Respondent properly discharged the patient without contacting the primary physician.
In this respect, the evidence is clear and convincing that test results confirmed that Patient L.G.T. had abnormal EKGs and elevated cardiac enzyme levels. Both Dr. Nguyen and Respondent were aware of these results; however, the evidence also reflects that these results were not necessarily diagnostically indicative of myocardial ischemia, nor myocardial infarction. Moreover, the evidence, while probable, is not clear and convincing that the cause of Patient L.G.T.’s death was the result of cardiac arrest.
While the evidence is not clear and convincing that Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to admit Patient L.G.T., the evidence is clear and convincing that Respondent under the circumstances of this case violated the approved standard of care by failing to contact Dr. Nguyen, the primary care physician who had discharged Patient
L.G.T. from Polk General Hospital only twelve hours earlier, to report that the patient’s pain was recurring and to consult with
the primary care physician regarding the abnormalities revealed by the tests.
The disciplinary guidelines of the Board of Medicine, found at 59R-8.061 (formerly 61F6-20.001) Florida Administrative Code, provide a range of penalties for violations of the above- referenced provisions of Section 458.331, Florida Statutes. The range of disciplinary penalties which the Board may impose includes denial of an application, revocation, suspension, probation, reprimand, and a fine. The Board shall consider as aggravating or mitigating factors the following:
Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight or severe or death.
Legal status at the time of the offense: no restraints or legal constraints.
The number of counts or separate offenses established.
The number of times the same offense or offenses have previously been committed by the licensee or applicant;
The disciplinary history of the applicant or licensee in any jurisdiction or the length of practice;
Pecuniary benefit or self gain inuring to the applicant or licensee;
Any other relevant factors.
The Respondent has no disciplinary history. The evidence does not show that Respondent’s actions resulted in the death of Patient L.G.T.; however, in light of the severity of the consequences, Respondent’s failure to inform and consult with the treating physician in these circumstances is not an acceptable standard of care.
It is recommended that the Respondent be found in violation of Section 458.331(1)(t), Florida Statutes, and be placed on one year
of indirect probation with a 25 percent review of his patient records, and attend 20 hours of continuing medical education in cardiology.
Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1997.
Steven A. Rothenburg, Esquire
Thomas R. Bopp, Esquire FOWLER, WHITE, GILLEN, BOGGS,
VILLAREAL & BANKER, P.A.
Dr. Marm Harris, Executive Director Board of Medicine
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.
