STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

vs. ) Case No. 96-2758

)

EDUARDO S. BLUM, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on May 12, 1997, in Miami, Florida.

APPEARANCES

For Petitioner: Hugh R. Brown, Esquire

Agency for Health Care Administration Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Jonathon P. Lynn, Esquire

Stephens, Lynn, Klein & McNicholas, P.A. Two Datran Center, Penthouse II

9130 South Dadeland Boulevard Miami, Florida 33156

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

On November 30, 1995, Petitioner filed an Administrative

Complaint against Respondent alleging that he had violated certain statutes regulating his conduct as a physician in the State of Florida, and Respondent timely requested an evidentiary hearing regarding those allegations. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Edward J. Zelnick, M.D., and Respondent presented the testimony of Richard L. Litt,

1. Additionally, Petitioner's Exhibits numbered 1-3 and Respondent's Exhibit numbered 1 were admitted in evidence.

   The transcript of the proceeding was filed, and both parties submitted post hearing proposed recommended orders and written closing argument. Those documents have also been considered in the entry of this Recommended Order.

   On July 3, 1997, Petitioner filed a Motion for Substitution of Party which requests that, pursuant to statutory changes, the Department of Health be substituted for the Agency for Health Care Administration. That Motion is granted.

   FINDINGS OF FACT

   
   

   1. At all times material hereto, Respondent has been a physician licensed to practice in the State of Florida, having been issued license number ME 0020248. Respondent is a board- certified pathologist who completed a residency in obstetrics and gynecology in Venezuela and practiced in the field of obstetrics

      and gynecology in South America for almost five years before coming to the United States.

   2. On April 20, 1991, patient J. B., a 27-year-old female, came to A Woman's Care, where Respondent was then employed, for the purpose of terminating her pregnancy. She indicated on a patient history form that the date of her last menstrual period was January 30, 199l. According to the medical records from A Woman's Care, she did not express any uncertainty or equivocation with respect to that date.

   3. One method of determining gestational age is based on calculating from the last menstrual period, assuming that the patient's history is reasonably reliable. With a history of a last menstrual period on January 30, 1991, the gestational age of the fetus on April 20, 1991, based upon a calculation by dates, was seven weeks.

   4. After obtaining a history from the patient with respect to the date of the last menstrual period, the physician needs to perform a bi-manual examination of the patient in order to assess the size of the uterus and to confirm the history given by the patient. Although the bi-manual examination is a reasonably reliable method of assessing the stage of pregnancy, it is a subjective examination and can sometimes be difficult. There is an acknowledged inaccuracy with respect to that clinical evaluation.

   5. The most accurate method of determining the gestational age of a fetus is through ultrasound examination. An ultrasound is performed when there is uncertainty as to the gestational age, such as when the patient does not know the date of her last menstrual period or when there is inconsistency between the patient's disclosed date and the physician's bi-manual examination.

      
      

   6. There is a general correlation between the size of the uterus in centimeters on bi-manual examination and gestational age in weeks.

   7. It is important to determine the gestational age of the fetus before performing a termination of pregnancy because the gestational age is the determining factor in deciding the size of the instruments to be used in the procedure and the amount of tissue to be removed.

   8. Respondent performed a bi-manual examination of the patient and recorded that his examination revealed a uterus consistent with an approximately seven-week gestation. Because the gestational age by dates and the results of the bi-manual examination both indicated a seven-week pregnancy and were consistent, Respondent did not order an ultrasound examination for the purpose of determining gestational age.

   9. On April 20, 1991, Respondent performed a termination of pregnancy on patient J. B. after the patient was informed of the

      possible risks of the procedure and after the patient signed a Patient Informed Consent Form. That Form detailed the possible risks, including infection and incomplete termination.

   10. Based upon the patient's history and the bi-manual examination and his conclusion that the patient was approximately seven-weeks pregnant, Respondent used an 8 mm Vacurette to terminate patient J. B.'s pregnancy. An 8 mm Vacurette is an appropriately-sized device to terminate a seven-week pregnancy.

       
       

   11. After completing the procedure, Respondent submitted the tissue obtained to a pathologist who determined that three grams of tissue had been submitted, consisting of products of conception and chorionic villi. The pathology report revealed what would reasonably be expected as a result of the termination of a seven-week pregnancy.

   12. After the procedure, the patient was given written instructions for her care and was discharged from A Woman's Care at 10:35 a.m.

   13. On April 21, 1991, at approximately 6:30 a.m., the patient's grandmother telephoned A Woman's Care to advise that the patient was complaining of dizziness and pain. The patient was advised to take Tylenol and call back if she continued to feel sick. At approximately 7:30 a.m., the patient's grandmother

       called again to advise that the patient was going to go to the hospital.

   14. On April 21, 1991, at 1:25 p.m., patient J. B. arrived at the Emergency Room at North Shore Medical Center with a temperature of 104.3 degrees, an elevated white blood cell count, chills, lower abdominal pain, and spotting.

   15. The patient was seen during her North Shore admission by Dr. Ramon Hechavarria, a physician certified in obstetrics and gynecology, and by Dr. Tomas Lopez, a general surgeon. Dr. Lopez noted in his consultation report that a pelvic bi-manual examination that he performed on April 21 showed an enlarged uterus corresponding to approximately 11-12 weeks' gestation.

       
       

   16. An ultrasound examination done on April 21 revealed a uterus measuring 11.0 x 7.8 x 7.8 centimeters and a viable intra- uterine pregnancy which was estimated by the radiologist to be

       13-14 weeks' gestational age.

       
       

   17. On April 22, the patient underwent termination of her pregnancy by Dr. Hechavarria who noted in his operative report that both the pelvic ultrasound and a bi-manual examination revealed an intra-uterine pregnancy of about 11 weeks with a live fetus. An ultrasound performed intra-operatively confirmed that all fetal tissue had been removed and that there were no perforations.

   18. Infection and an incomplete termination are two of the

       recognized complications resulting from terminations of pregnancy. The fact that a patient suffers an infection or an incomplete termination does not, per se, indicate any negligence on the part of the physician.

   19. Respondent did not fall below the recognized standard of care by failing to perform an ultrasound on patient J. B. His examination revealed a gestational age consistent with the date identified by the patient as the date of her last menstrual period. Accordingly, there was no need to perform an ultrasound.

   20. Respondent did not fall below the recognized standard of care by misjudging the gestational age of the fetus. It is not uncommon for a physician to misjudge the length of gestation by several weeks. For example, Drs. Lopez and Hechavarria concluded the fetus had a gestational age of 11 weeks; yet, the ultrasound reported 13-14 weeks.

   21. Respondent did not fall below the recognized standard of care by using the wrong size of equipment to perform the termination of pregnancy. He used the proper equipment consistent with his judgment as to the length of gestation.

       CONCLUSIONS OF LAW

       
       

   22. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

   23. The Administrative Complaint filed against Respondent in this cause contains two counts. Count Two was dismissed by Petitioner at the conclusion of its case-in-chief.

   24. Count One alleges that Respondent failed 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, in violation of Section 458.331(1)(t), Florida Statutes. The parties agree that Petitioner must prove its allegations by clear and convincing evidence. Petitioner has failed to prove its allegations by even a preponderance of the evidence.

   25. Petitioner has failed to prove that Respondent fell below the standard of case by not performing an ultrasound. Both Petitioner's expert and Respondent's expert agree that it is necessary to perform an ultrasound only when there is uncertainty as to the gestational age of the fetus. No evidence was offered that patient J. B. was uncertain as to the date of her last menstrual period or that Respondent was uncertain as to the size of J. B.'s uterus as a result of his bi-manual examination.

       Since her disclosed date and his examination revealed a consistent gestational age, there was no reason to perform an ultrasound to resolve uncertainty.

   26. Petitioner also alleges that Respondent used inappropriately-sized equipment to perform the termination of pregnancy procedure. The evidence reveals, however, that he used

       the proper equipment for a 7-8 week pregnancy. His choice of equipment was reasonable under the circumstances.

   27. In the case at bar, Petitioner presented the testimony of one expert, and Respondent presented the testimony of one expert. Respondent's expert's experience with terminations of pregnancy outweighs that of Petitioner's. On those matters where Petitioner's expert and Respondent's expert disagreed, the testimony of Respondent's expert was more logical and credible.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED THAT a Final Order be entered finding Respondent not guilty of the allegations and dismissing the Administrative Complaint filed against him in this cause.

DONE AND ENTERED this 25th day of July, 1997, at Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 25th day of July, 1997.

COPIES FURNISHED:

Hugh R. Brown, Esquire

Agency for Health Care Administration Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jonathon P. Lynn, Esquire

Stephens, Lynn, Klein & McNicholas, P.A. Two Datran Center, Penthouse II

9130 South Dadeland Boulevard Miami, Florida 33156

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0770

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

Tallahassee, Florida 32309

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: 96-002758

Orders for Case No: 96-002758