STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4750

)

JONATHON M. FRANTZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Ft.

Myers, Florida, on March 4, 1997.

APPEARANCES

For Petitioner: Britt Thomas, Senior Attorney

Agency for Health Care Administration

Post Office Box 14229 Tallahassee, Florida 32317-4229

For Respondent: John F. Lauro

John F. Lauro, P.A.

101 East Kennedy Boulevard Suite 3950

Tampa, Florida 33602 STATEMENT OF THE ISSUE

The issue is whether Respondent failed to practice medicine with the required standard of care, in violation of Section 458.331(1)(t), Florida Statutes, and failed to keep required

written medical records, in violation of Section 458.331(1)(m), Florida Statutes. If so, an additional issue is what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 24, 1996, Petitioner alleged that on September 7, 1993, Respondent performed cataract surgery on the left eye of U. V., a 19 year old male with Down Syndrome. While still in the recovery room following the surgery, U. V. suffered cardiac arrest.

Count I alleges that U. V. was terminally ill with end-stage cardiac disease, congestive heart failure, and renal failure.

Count I alleges that U. V. had a Do Not Resuscitate order on his medical chart. Count I alleges that the ocular pressure of the left eye was not significantly elevated and questions the necessity of the surgery based on Respondent’s diagnosis of impending phacolytic glaucoma. Count I asserts that a reasonably prudent physician would have monitored U. V. for evidence of phacolytic glaucoma before attempting surgery. Count I alleges that Respondent deviated from the applicable standard of care, in violation of Section 458.331(1)(t), Florida Statutes, when he concluded that cataract surgery was necessitated by impending phacolytic glaucoma without first monitoring U. V. for evidence of this disease.

Count II alleges that Respondent failed to keep medical records justifying the course of treatment, in violation of

Section 458.331(1)(m), Florida Statutes, because Respondent failed to document his diagnosis of U. V.’s condition.

By Election of Rights dated October 1, 1996, Respondent disputed the material allegations and demanded a formal hearing.

At the hearing, Petitioner called three witnesses and offered into evidence five exhibits. Respondent called three witnesses and offered into evidence five exhibits. All exhibits were admitted.

The court reporter filed the transcript on April 21, 1997.

The parties filed their proposed recommended orders on May 1, 1997.

FINDINGS OF FACT

1. At all material times, Respondent has been a licensed physician in Florida, having been issued license number ME 0022608.

2. Respondent is board-certified in ophthalmology. He was the principal investigator in the Excimer Laser Research Study. He is a fellow with the American College of Surgeons. He has published extensively in prominent medical and ophthalmologic journals.

3. While still receiving medical training, Respondent gained experience in treating the ophthalmologic conditions of patients who suffer from Down Syndrome. While in practice, Respondent has continued to gain considerable experience in

   treating the ophthalmologic conditions of patients with Down Syndrome.

4. Respondent has never previously been disciplined.

   
   

5. U. V. was born on January 6, 1973. He suffered from Down Syndrome. As a young child, U. V. was diagnosed with inoperable congestive heart failure. Suffering from damage to two chambers of his heart and irreversible lung damage, U. V. had been in “terminal” condition since about the age of seven.

6. Despite his serious medical problems, which are common to Down Syndrome patients, U. V. was a happy young man, who developed and matured as a teenager. He communicated his feelings and interacted with others, especially with his family. His mother adopted him when he was about five years old; previously, she had cared for him after his biological family had abandoned him.

7. In March 1992, U. V. became quite ill. His physician discussed with U. V.’s mother the possibility of a Do Not Resuscitate order, but no order was ever given or entered into his medical records.

8. U. V. rallied from his illness. His cardiologist found, after an office visit on October 13, 1992, that U. V. had made “tremendous progress” and was “doing quite well at this point in time.” This was the last time that U. V. visited his personal physician prior to the cataract surgery nearly a year later.

9. In April of 1993, U. V. received home health care through the Hospices of Palm Beach. During this time, the hospice nurse who visited U. V. at home noted that he was sensitive about his Down Syndrome and social isolation.

10. On July 14, 1993, the hospice nurse noted that she found U. V. to be “alert, ambulatory, cheerful.” U. V.’s mother told the nurse that U. V. wanted an eye surgeon to treat a cataract that had developed in his left eye, and the family would be willing to pay for the operation in installments, if health coverage would not pay for the surgery.

11. Ten days later, during another home visit by the hospice nurse, U. V.’s mother again stated her concern about his cataract. The nurse told her to take U. V. to his primary care physician for a referral.

12. U. V.’s family took U. V. to his family physician, who sent him to an optometrist. The optometrist determined that U.

    V. had a cataract in his left eye and was starting to develop one in his right eye too. The optometrist told them that surgery could correct the condition and referred U. V. to Respondent.

13. About a month later, in late August, U. V.’s mother informed the hospice nurse that they had an appointment with an eye surgeon and hoped that he would remove the cataract from U. V.’s left eye.

14. At this time, U. V. was still leading an active life, largely due to the support and assistance of his loving family.

    He was happy and enjoyed dancing at weddings and parties and watching television. The family thought that surgery would help him see better with his left eye.

15. Respondent first examined U. V. on August 31, 1993. He found a hypermature cataract in U. V.’s left eye. U. V.’s eye was totally opacified by the cataract to such an extent that he could see only hand motion.

16. Respondent was immediately concerned with the possibility of phacolytic glaucoma. This is a condition in which the cataract liquifies and may leak through the lens capsule, resulting in an immunological reaction. Phacolytic glaucoma is extremely painful. It is impossible to predict the precise onset of phacolytic glaucoma, but Respondent reasonably determined that the condition could develop in as little time as hours or days, although it was possibly months away.

17. Respondent was also concerned with U. V.’s right eye. Respondent found a cataract in the right eye in the lens where all the light rays pass into the eye. This type of cataract advances rapidly, so much so that it might overtake in seriousness the older cataract in U. V.’s left eye.

18. Respondent performed a comprehensive examination of both eyes. He discussed cataract surgery with U. V.’s mother. Respondent agreed to perform the surgery for the Medicaid payment. He carefully explained the condition of U. V.’s left eye and the risks and benefits of surgery and general anesthesia.

    To assist in communicating with U. V.’s Spanish-speaking mother, Respondent had someone in the office translate for the mother.

    After hearing the explanation, U. V.’s mother agreed to the surgery, and Respondent set up the surgery for September 7, 1993.

19. After returning home, U. V. began complaining of problems with his right eye. His sight was deteriorating at this time, heightening his feeling of isolation from the world around him.

20. In the meantime, Respondent had the laboratory work done in preparation for the surgery. His office contacted

    U. V.’s physicians to get medical information in preparation for the cataract surgery. But they were unable to get such information from the physicians’ offices.

21. On September 7, U. V. and his family returned to Ft. Myers for the surgery. The board-certified anesthesiologist examined U. V. and found that he had wheezing respiration, so the anesthesiologist told Respondent that the surgery had to be postponed. Respondent rescheduled the surgery for September 15, 1993.

22. Respondent and the anesthesiologist then discussed the possibility of using a local anesthetic, which would present fewer risks to U. V. than would be posed by a general anesthetic. But, as is typical with Down patients, U. V. had been fidgety during the August 31 office visit and was a poor candidate for local anesthesia during the extremely delicate cataract surgery

    that he was about to undergo. Respondent and the anesthesiologist agreed that U. V. would receive general anesthesia for the surgery.

23. After the first surgery was canceled, the anesthesiologist undertook the task of obtaining the medical clearances for general anesthesia. He spoke with U. V.’s primary physician, who practices in the small town where U. V. lived at the south end of Lake Okeechobee between Clewiston and Belle Glade.

24. U. V.’s primary physician appeared as a witness at the hearing. He seemed to suffer from communication problems not entirely attributable to obvious difficulties with the English language. Not surprisingly, the anesthesiologist obtained little useful information from the physician.

25. The anesthesiologist’s nurse called the cardiologist’s office several times on September 15 prior to the surgery. Unable to reach the cardiologist or any of his partners, the anesthesiologist spoke with one of the cardiologist’s office

    nurses and had her read him U. V.’s chart. Especially interested in U. V.’s cardiac malformations, the anesthesiologist satisfied himself that U. V. could withstand the rigors of general anesthesia and developed a plan, after discussing the case with his partners, to use special drugs and techniques so as to affect

    1. V.’s heart and lungs as little as possible.

26. The anesthesiologist also studied either a chest xray taken on September 6, 1993, or a report of the chest xray taken on that date. He examined the xray or report to determine if U.

    1. was suffering from any reversible heart problems that might resolve themselves if surgery were postponed. The anesthesiologist found no cardiac problems of this type.

27. Prior to the administration of the general anesthesia, the anesthesiologist spent several hours with U. V. and his family discussing the risks and benefits of general anesthesia.

    U. V.’s mother accepted the risks and agreed to the use of the general anesthesia.

28. U. V.’s cardiologist testified that, if asked about the surgery and general anesthesia, he would have cautioned Respondent and the anesthesiologist of the risks of surgery, but he would not have offered an opinion on the advisability of using general anesthesia on U. V. The cardiologist would have left the decision on this matter to the anesthesiologist.

29. On September 15, 1993, Respondent removed the cardiac from U. V.’s left eye. The surgery was flawless.

30. During the surgery, U. V. was stable and tolerated the anesthesia. Following the surgery, U. V. awoke in the recovery room, where he was alert and following commands.

31. Once U. V. began to breathe better on his own, the ventilator machine was turned off. U. V. suddenly developed cardiac arrhythmia and died within an hour.

32. Respondent did not deviate from the applicable standard of care in his diagnosis and treatment of U. V. Respondent’s medical records amply memorialize his diagnosis and fully justify the surgery undertaken on September 15, 1993.

    CONCLUSIONS OF LAW

    
    

33. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

34. The administrative complaint does not seek revocation or suspension. Section 458.331(3) provides that the standard of proof in such a case is the greater weight of the evidence, not clear and convincing evidence.

35. Section 458.331(1)(t) authorizes the imposition of discipline for the failure of a physician 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.”

36. Section 458.331(1)(m) authorizes the imposition of discipline for the failure to keep medical records justifying the course of treatment of a patient.

37. Petitioner has failed to prove by the greater weight of the evidence that Respondent violated the applicable standard of care or failed to keep adequate medical records.

RECOMMENDATION

It is

RECOMMENDED that the Board of Medicine enter a final order dismissing the administrative complaint against Respondent.

ENTERED in Tallahassee, Florida, on June 4, 1997.

ROBERT E. MEALE

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 on June 4, 1997.

COPIES FURNISHED:

Britt Thomas, Senior Attorney Agency for Health Care

Administration

Post Office Box 14229 Tallahassee, Florida 32317-4229

John F. Lauro, Esquire John F. Lauro, P.A. Suite 3950

101 East Kennedy Boulevard Tampa, Florida 33602

Dr. Marm Harris Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0972

Jerome Hoffman, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-004750

Orders for Case No: 96-004750