STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) Case No. 97-0337
) MOHAMMAD FATHI ABDEL-HAMEED, M.D., )
)
Respondent. )
) AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) Case No. 97-0338
) MOHAMMAD FATHI ABDEL-HAMEED, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
A formal hearing was held by the Division of Administrative Hearings, before Administrative Law Judge, Daniel M. Kilbride, in Orlando, Florida, on November 18-19, and 20, 1997. The following appearances were entered:
APPEARANCES
For Petitioner: Albert Peacock, Esquire
Gabriel Mazzeo, Esquire
Agency for Health Care Administration Post Office Box 14229
Tallahassee, Florida 32317-4229
For Respondent: Richard A. Simon, Esquire
Rissman, Weisberg, Barrett, Hart, Donahue & McLain, P.A.
201 East Pine Street, 15th Floor Orlando, Florida 32801
Kenneth J. Cotter, Esquire Cotter & Zelman, P.A.
2431 Lee Road
Winter Park, Florida 32789 STATEMENT OF THE ISSUES
Whether, as alleged in the administrative complaints, disciplinary action should be taken against Respondent's license to practice as a physician, based on separate violations of the following statutes for each patient as indicated below:
DOAH Case No. 97-0337
Patient Statute
T. D. 458.331(1)(g), 458.331(1)(t)
F. R.-1 458.331(1)(g), 458.331(1)(m), 458.331(1)(t) S. M. 458.331(1)(g), 458.331(1)(t)
F. R.-2 458.331(1)(g), 458.331(1)(m), 458.331(1)(t)
T. M. 458.331(1)(g), 458.331(1)(t), 766.411
L. F. 458.329, 458.331(1)(j), 458.331(1)(m), 458.331(1)(t), 458.331)1)(x)
C. G. 458.331(1)(k), 458.331(12)(m), 458.331(1)(n), 458.331(1)(t)
DOAH Case No. 97-0338
J. S. 458.331(1)(m), 458.331(1)(q), 458.331(1)(t).
PRELIMINARY STATEMENT
On May 21, 1996, Petitioner filed an Administrative Complaint against the Respondent alleging, in 21 separate counts, that he violated various provisions of Chapter 458, Florida Statutes, for patients T. D., F. R.-1, S. M., F. R.-2, T. M.,
F., and C. G. Respondent denied the allegations and elected to have a formal hearing. On July 19, 1996, Petitioner filed an Administrative Complaint against the Respondent alleging in three
separate counts that he violated the statutes set forth above for patient J. S. Respondent denied the allegations. The cases were referred to the Division of Administrative Hearings for formal hearing and all cases were consolidated into the case numbers set forth above, and discovery ensued. The parties submitted a Prehearing Stipulation with certain stipulated facts.
At the hearing, 16 exhibits were admitted into evidence by Petitioner. Petitioner presented the testimony of Paul W. Oberdorfer, M.D.; Alita Chappell, R.N.; Patient L. F.; Robert E. McCammon, M.D.; Azoria Williams; and Linda McNeil.
Fifteen exhibits, including the deposition testimony of four witnesses, were admitted into evidence by Respondent. Respondent presented the testimony of Mitchell Hoffman, M.D.; Patricia A. Lightfritz; Nadia M. Sadek; Melissa Clough Delamotta; Judith A. Williams; and Respondent testified in his own behalf.
The transcript of the hearing was filed on December 22, 1997. Following an order extending the time for the parties to file their proposed orders, Petitioner filed its proposals on February 19, 1998, and Respondent filed his proposals on February 13, 1998. Both parties' proposals have been given careful consideration in the preparation of this order.
FINDINGS OF FACT
Based on the evidence presented in this proceeding, the following facts were found:
Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number
ME 0056554 by the State of Florida.
The Respondent was licensed in Florida in 1989.
Prior to his licensure in Florida, he underwent residency training in OB/GYN at the State University of New York in New York City and St. Agnes Hospital in Baltimore, Maryland. Following his residency the Respondent performed a two-year fellowship in perinatology at the State University of New York in Syracuse.
Patient J. S.
On December 10, 1992, Patient J. S., a 19 year-old female, presented to Respondent for evaluation and medical care concerning her pregnancy. The patient was transferred from Orlando Birthing Center where she had her entire prenatal care.
Upon presentation, Patient J. S. was at 42 weeks gestation. After examination in Respondent's office, Respondent subsequently made arrangement for admittance to Princeton Hospital for induction and delivery the following day.
On December 11, 1992, at approximately 6:45 a.m., Patient J. S. was admitted to Princeton Hospital.
At approximately 11:30 a.m., Pitocin, a legend drug, was administered by the staff as directed by Respondent.
Pitocin, a derivative of the pituitary gland, is a commonly used substance to stimulate the uterus to contract. However, it is not risk free and must be used carefully. If the muscle is over-stimulated causing too much contraction, there can be interference with the blood supply to the placenta or it can
cause the uterus to rupture. The use of Pitocin must be carefully monitored.
Variability and reactivity of the fetal tracing was within normal limits at that time.
At approximately 5:30 p.m., on December 11, 1992, Patient J. S.'s membranes were artificially ruptured and an internal fetal scalp monitor was placed.
At approximately 7:30 p.m., the nursing assessment revealed that J. S. was 2 centimeters (cm) dilated, 70 percent effaced, and at minus 2 station.
At approximately 10:10 p.m., Patient J. S. experienced a deceleration in the heart rate. At approximately 10:35 p.m., the patient experienced two more decelerations indicative of fetal distress. This resulted in the nurse on duty turning off the Pitocin.
A vaginal examination revealed that Patient J. S. was still 2cm dilated, 70 percent effaced with the baby at a minus 2 station though the Pitocin had been running continuously for approximately 11 hours.
During this period the Respondent was not on the premises.
At approximately 11:50 p.m., Pitocin was re-initiated, and variable and late decelerations were again noted.
Respondent was notified at approximately 1:10 a.m. and no new orders were given.
Patient J. S.'s Pitocin was subsequently increased.
Following the increase of Pitocin, Patient J. S. suffered an episode of variable decelerations which lasted approximately three minutes.
The fetal heart rate was noted to be 64 beats per minute.
Respondent was notified and Patient J. S.'s Pitocin was subsequently discontinued.
However, Patient J. S. continued to suffer episodes of severe variable and late decelerations.
In the early morning hours of December 12, 1992, Patient J. S.'s uterine contractions increased followed by late decelerations.
Pursuant to Respondent's orders, Pitocin was restarted at 9:30 a.m.
At approximately 10:00 a.m., Respondent arrived at the hospital.
By approximately 1:45 p.m., poor variability was noted.
At approximately 2:00 p.m., Patient J. S.'s fetal heart rate became unstable and decelerations became more profound.
Evaluation revealed that the fetal heart tracing showed a distress pattern with repeated episodes of bradycardia and moderate to severe variable deceleration while the station of the baby never proceeded beyond minus 1 station.
Respondent subsequently increased Pitocin. Despite poor fetal tracing, Respondent indicated that he intended a vaginal delivery.
Patient J. S. was given an epidural with a bolus at approximately 8:00 p.m.
At approximately 9:13 p.m., following four hours of full dilation, Patient J. S. was transferred to Labor and Delivery for a trial forceps set-up.
Respondent applied Tucker/McLean forceps to the fetal head.
At this time, fetal heart rate tracing was noted to be 80-90 beats per minute. Respondent subsequently determined that the infant could not be delivered and a Cesarean section was performed approximately 40 minutes later. The delay in delivery was the result of the need to wait for the surgical assistant to arrive, who was on-call, and for the anesthesia to take effect before he could operate.
The infant was delivered with visible forcep marks including a skin lesion. The infant appeared to be emaciated and also displayed behavior indicative of a seizure shortly after delivery. A subsequent CT Scan revealed a subdural hemorrhage. The infant was later diagnosed as suffering from right facial nerve paralysis.
Respondent failed to practice medicine within the acceptable level of care in that Respondent failed to appropriately monitor Patient J. S.'s progress during labor.
Respondent failed to pursue the appropriate plan of treatment for Patient J. S. Patient J. S.'s poor response to Respondent's initial attempts to initiate labor indicated that
Respondent should have pursued an alternative plan of treatment.
Respondent failed to practice medicine within the acceptable level of care by failing to proceed to the hospital to evaluate Patient J. S.'s condition following the episode of bradycardia on the evening of on or about December 11, 1992.
Respondent failed to practice medicine within the acceptable level of care by allowing Patient J. S. to continue in labor prior to the delivery of the infant given that the infant continued to suffer from unstable and variable heart rates.
Respondent failed to practice medicine within the acceptable level of care by delaying delivery approximately four hours following full dilation.
Respondent failed to practice medicine within the acceptable level of care by failing to appropriately apply forceps in attempts to deliver the infant.
Respondent failed to maintain medical records which justified his course of treatment for Patient J. S.
Respondent failed to appropriately utilize Pitocin. The continued usage of Pitocin following initial attempts to induce labor was inappropriate given Patient J. S.'s failure to progress during labor.
Patient T. D.
On or about August 24, 1992, Patient T. D., an 18 year- old female, presented to Respondent complaining of vaginal and abdominal pain during the previous two days.
Respondent conducted a pelvic examination. Respondent
did not observe vaginal bleeding.
Respondent ordered the performance of an obstetrics ultrasound which revealed a viable 15-week intrauterine pregnancy. Respondent did not perform further tests to determine if Patient T. D. was experiencing premature labor.
Patient T. D. was sent home and directed to go to the hospital if bleeding began.
Later that evening, Patient T. D. presented to Princeton Hospital at which time she aborted.
On August 26, 1992, Patient T. D. returned to Respondent for evaluation.
Respondent performed an ultrasound and prescribed Methergine for bleeding.
Patient T. D. presented with indications of premature labor on August 24, 1992. Respondent did not appropriately evaluate Patient T. D. for premature labor.
Respondent failed to appropriately diagnose Patient
T. D.'s condition or failed to pursue the appropriate plan of treatment.
Patient F. R.-1
On September 20, 1992, Patient F. R.-1, a 38 year-old female, was hospitalized for abdominal pain and vaginal bleeding following a positive pregnancy test conducted at the hospital emergency room.
During the hospitalization, Patient F. R.-1's, levels of human chorionic gonadotropin (HCG) declined, and she underwent
a pelvic ultrasound. The test indicated that the patient had a non-viable pregnancy.
Following her release from the hospital, on or about September 23, 1992, Patient F. R.-1, presented to Respondent with abdominal pain and bleeding and a history of a tubal ligation and non-viable pregnancy. Respondent performed a pelvic examination and asked her to return if the symptoms persisted.
On or about October 8, 1992, Patient F. R.-1 presented to Respondent with the same symptoms, at which time Respondent initiated Patient F. R.-1 on Provera and Estrace.
On or about October 15, 1992, Patient F. R.-1 presented to Respondent with irregular bleeding and abdominal discomfort.
Patient F. R.-1 was advised to return in two weeks for evaluation.
On or about October 29, 1992, Patient F. R.-1 returned to Respondent with continued complaints of abdominal pain.
Respondent performed a pelvic ultrasound on Patient
F. R.-1 which revealed normal follicular cysts in the ovaries.
While treating Patient F. R.-1, Respondent failed to evaluate her HCG levels. Declining levels of HCG indicate that Patient F. R.-1 suffered an early miscarriage.
Respondent failed to appropriately assess Patient
F. R.-1's condition, failed to diagnose a probable early miscarriage, and failed to accurately observe the contents of the uterine cavity.
Respondent failed to attain a conclusive diagnosis of
Patient F. R.-1's condition.
Respondent inappropriately treated Patient F. R.-1 with Provera and Estrace (hormones). The prescribing of hormones following an abortion is below the standard of care.
Respondent failed to maintain medical records which justified his plan of treatment for Patient F. R.-1.
Patient S. M.
On or about July 13, 1992, Patient S. M., a 31 year-old female, presented to Respondent with complaints of pain and cramps.
Patient S. M. presented with a history of two Cesarean sections, a tubal ligation, and an appendectomy.
Patient S. M. presented subsequent to the performance of a pelvic sonogram, which suggested a small fibroid in the uterus.
The sonogram was performed by another physician.
On or about July 13, 1992, Respondent performed a second sonogram, and diagnosed multi-cystic ovaries and heavy menses.
Respondent noted that Patient S. M.'s pelvic examination was normal.
In the course of the office visit, Respondent scheduled
M. for an exploratory laparotomy.
On or about August 5, 1992, Patient S. M. presented to Princeton Hospital for the performance of an exploratory laparotomy, a lysis of adhesions, and a bilateral wedge resection
of the ovaries with repair of the ovaries by chromic suture.
Respondent performed the procedure. Following the operation, pathology report revealed normal ovaries.
On or about July 13, 1992, Respondent did not misdiagnose Patient S. M.'s condition or fail to appropriately assess her complaints.
Respondent failed to appropriately perform the surgical procedure on or about August 5, 1992. The repair of the ovaries by chromic suture is inappropriate for 1992 surgical techniques and will ensure the formation of adhesions post-operatively.
Patient F. R.-2
On or about July 3, 1992, Patient F. R.-2, a 37 year- old female, presented to Respondent for the performance of a gynecologic examination.
Respondent performed a normal pelvic examination. Respondent's examination revealed heavy menses, and he diagnosed yeast vaginitis and pelvic pain.
Patient F. R.-2 presented with a history of several operations on her kidneys and gallbladder, an appendectomy, and a tubal ligation.
Approximately six weeks later, Patient F. R.-2 returned to Respondent for the performance of a pelvic sonogram which revealed a single cyst on one ovary, and several cysts on the other ovary.
Respondent subsequently scheduled Patient F. R.-2 for the performance of a wedge resection of the ovaries.
On or about September 23, 1992, Patient F. R.-2 presented to Princeton Hospital for the performance of a bilateral wedge resection of the ovaries with repair of the ovaries by chromic suture, and lysis of minimal pelvic adhesions.
The post-operative pathology report revealed sections of normal ovaries.
Respondent did not appropriately diagnose, assess, and treat Patient F. R.-2's condition.
Respondent failed to appropriately perform the surgical procedure on or about September 23, 1992. The repair of ovaries by chromic suture is inappropriate for 1992 surgical techniques, and will ensure the formation of adhesions post-operatively.
Respondent failed to maintain medical records which justify his course of treatment for Patient F. R.-2.
Patient T. M.
On or about July 20, 1992, Patient T. M. presented Respondent with a complaint of irregular bleeding and pain.
Respondent performed a pelvic examination of the patient and noted that Patient T. M. was taking birth control pills.
On or about July 28, 1992, Patient T. M. returned to Respondent with continued abdominal and pelvic pain. In addition to his examination, Respondent performed an office ultrasound.
Respondent made a diagnosis of polycystic ovarian
disease. He also treated Patient T. M. for a urinary tract infection.
On or about July 29, 1992, Respondent performed a second sonogram and noted no change in the pelvic cysts.
Following the performance of the second sonogram, Respondent scheduled Patient T. M. for a wedge resection of the ovaries.
On or about July 31, 1992, Respondent admitted Patient
M. to Princeton Hospital for the performance of a wedge resection of the ovaries.
The post-operative pathology report indicated that the removed portion of the ovaries were normal.
Respondent failed to appropriately diagnose, assess, and treat patient T. M.'s condition. Respondent failed to attain a conclusive diagnosis of Patient T. M.'s condition.
On or about July 31, 1992, Respondent inappropriately performed a surgical procedure on Patient T. M., which was not indicated, given that her ovaries were normal and some other reason was the likely cause of her bleeding.
Respondent failed to appropriately perform the surgical procedure on or about July 31, 1992. The surgical techniques utilized by Respondent were inappropriate in that Respondent should have used a non-reactive suture.
Respondent failed to maintain medical records which justify his course of treatment for Patient T. M.
Patient L. F.
On or about Friday, May 7, 1993, Patient L. F. was hired to work for Respondent as an insurance clerk.
On or about Monday, May 10, 1993, Patient L. F. Reported for work at Respondent's office. Patient L. F. was agitated and nervous and complained of stomach pain. Patient
L. F. left the office for the day around noon.
On or about May 11, 1993, Patient L. F.'s second day of employment, L. F. reported to work, but went home at the beginning of the day complaining of stomach problems. She later reported back to work at approximately 12:15 p.m.
Patient L. F.'s testimony that after she returned to work, Respondent inquired into how Patient L. F. was feeling; that Respondent invited Patient L. F. into an examination room for the purpose of performing an examination; that during the examination, Respondent touched Patient L. F.'s vaginal area with an ungloved finger; that Respondent placed his finger or fingers on L. F.'s genitalia area and started rubbing that area; that Respondent placed his palm on L. F.'s breast, then rubbed the side of her face with his knuckles, and told her how pretty she was; and that there was no other female present during the examination is not credible.
On May 11, 1993, Respondent was in his office seeing patients until approximately 12:30 p.m. Shortly thereafter, he left the office and traveled to Princeton Hospital to do rounds.
Respondent arrived in a Patient Lightfritz's room at approximately 1:00 p.m., and then examined at least two other
patients. He then returned to the office, arriving shortly after 2:00 p.m.; Respondent began seeing patients for the remainder of the afternoon.
Patient L. F. remained on the job for the remainder of the afternoon and left for the day at approximately 5:30 p.m. She did not return to work the next day, or thereafter.
Respondent did not perform a physical exam of L. F. and she was, therefore, not a patient of Respondent.
Patient C. G.
On or about May 12, 1993, Patient C. G., a 29 year-old female, presented to Respondent with complaints of a backache and vaginal discharge.
Respondent conducted an examination of Patient C. G., including a pelvic sonogram.
Following the examination, Respondent administered an injection of Depo-Provera to the patient.
Respondent contemporaneously prepared medical records on Patient C. G. justifying the course of treatment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569, 120.57(1), and 455.225, Florida Statutes.
Pursuant to Section 458.331(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a physician for violations of Section
458.33(1), Florida Statutes.
This proceeding involves disciplinary action against Respondent's physician's license. Therefore, the burden of proof to establish the facts upon which the Petitioner seeks to discipline Respondent's physician's license is on the Petitioner. 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, Petitioner must prove the alleged violations of Section 458.331(1), Florida Statutes, by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
Section 458.331(1) provides, in pertinent part:
Grounds for disciplinary action; action by the board and department.-
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(g) Failing to perform any statutory or legal obligation placed upon a licensed physician.
* * *
Exercising influence within a patient- physician relationship for purposes of engaging a patient in sexual activity. . . .
Making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in
the practice of medicine.
* * *
Failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the licensed physician . . . and that justify 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.
Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee.
* * *
(q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug,
. . . other than in the course of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, . . . inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his or her intent.
* * *
(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.
* * *
(x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing
or failing to comply with a lawfully issued subpoena of the department.
Section 458.331(2) provides, in pertinent part:
(2) When the board finds any person guilty of any of the grounds set forth in subsection (1). . . it may enter an order imposing one or more of the following penalties:
* * *
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the physician on probation for a period of time. . . .
Section 766.111 provides, in pertinent part:
Engaging in unnecessary diagnostic testing; penalties.-
No health care provider licensed pursuant to chapter 458, chapter 459, chapter 460, chapter 461, or chapter 466 shall order, procure, provide, or administer unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of a patient's condition.
A violation of this section shall be grounds for disciplinary action pursuant to s. 458.331.
Patient J. S.
The Petitioner has proven by clear and convincing evidence that Respondent failed to practice medicine within the acceptable level of care in that Respondent failed to appropriately monitor Patient J. S.'s progress during labor;
failed to pursue the appropriate plan of treatment for Patient J. S.; failed to proceed to the hospital to evaluate Patient J. S.'s condition following the episode of bradycardia; allowed Patient
J. S. to continue in labor prior to the delivery of the infant (given that the infant continued to suffer from unstable and variable heart rates); delayed delivery approximately four hours following full dilation; and failed to appropriately apply forceps in attempts to deliver the infant, all of which constitute a violation of Section 458.331(1)(t), Florida Statutes, gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a responsibly prudent similar physician as being acceptable under similar conditions and circumstances.
Petitioner has proven by clear and convincing evidence that Respondent failed to maintain medical records which justify his course of treatment for Patient J. S., in violation of Section 458.331(1)(m) Florida Statutes.
Petitioner has proven with clear and convincing evidence that Respondent failed to appropriately use Pitocin.
The continued use of Pitocin following initial attempts to induce labor was inappropriate without physician monitoring given Patient J. S.'s failure to progress satisfactorily during labor, in violation of Section 458.331(1)(q), Florida Statutes.
Patient T. D.
Petitioner has proven by clear and convincing evidence that Respondent failed to pursue the appropriate plan of
treatment by failing to evaluate Patient T. D. for premature labor, which constitutes a violation of Section 458.331(1)(t), Florida Statutes, 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.
Petitioner has proven by clear and convincing evidence that Respondent performed an ultrasound on Patient T. D., which was not indicated and did not assist Respondent in diagnosing Patient T. D.'s condition. By doing so, Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in violation of Section 766.11, Florida Statutes, which constitutes a violation of Section 458.331(1)(g), Florida Statutes.
Patient F. R.-1
Petitioner has proven by clear and convincing evidence that Respondent failed to appropriately assess Patient F. R.-1's condition, failed to diagnose a probable early miscarriage, failed to appropriately evaluate her HCG levels, and inappropriately treated Patient F. R.-1 with Provera and Estrace. By doing so, Respondent practiced medicine below the acceptable level of care which constitutes a violation of Section 458.331(1)(t), Florida Statutes, 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.
Petitioner has proved by clear and convincing evidence that by performing an ultrasound on Patient T. D. which was not indicated and did not properly diagnose Patient T. D.'s condition, Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in violation of Section 766.111, Florida Statutes, which constitutes a violation of Section 458.331(1)(g), Florida Statutes.
Petitioner has proven by clear and convincing evidence that Respondent failed to maintain medical records which justify the plan of treatment for Patient F. R.-1. This constitutes a violation of Section 458.331(l)(m), Florida Statutes, failing to keep written medical records justifying the course of treatment of the patient.
Patient S. M.
Petitioner did not prove by clear and convincing evidence that Respondent misdiagnosed Patient S. M.'s condition, failed to appropriately assess her complaints, or failed to appropriately perform the surgical procedure on or about
August 5, 1992. Respondent did not violate Section 458.331(1)(t), Florida Statutes.
Petitioner did not prove by clear and convincing evidence that the performance of an ultrasound on Patient S. M. was not indicated and did not assist Respondent in diagnosing Patient S. M.'s condition. Respondent did not violate
Section 766.111, Florida Statutes, or Section 458.331(1)(g),
Florida Statutes.
Patient F. R.-2
Petitioner has proven by clear and convincing evidence that Respondent misdiagnosed Patient F. R.-2's condition, failed to appropriately assess her complaints, and failed to appropriately perform the surgical procedure on or about September 23, 1992. By doing so, Respondent practiced medicine below the acceptable level of care which constitutes a violation of Section 458.331(1)(t), Florida Statutes, 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.
Petitioner has proven by clear and convincing evidence that by performing surgery and a sonogram on Patient F. R.-2, which were not indicated and did not assist Respondent in diagnosing Patient F. R.-2's condition, Respondent failed to perform any statutory or legal obligation placed upon a licensed physician, in violation of Section 766.111, Florida Statutes, which constitutes a violation of Section 458.331(1)(g), Florida Statutes.
Petitioner has proven by clear and convincing evidence that Respondent failed 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; Respondent failed to maintain medical records which justify the plan of treatment for Patient
F. R.-2, which constitutes a violation of Section 458.331(1)(m), Florida Statutes.
Patient T. M.
Petitioner has proved by clear and convincing evidence that Respondent misdiagnosed Patient T. M.'s condition, failed to appropriately assess her complaints, and failed to appropriately perform the surgical procedure on or about July 31, 1992. By doing so, Respondent practiced medicine below the acceptable level of care which constitutes a violation of Section 458.331(1)(t), Florida Statutes, 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.
Petitioner has proven by clear and convincing evidence that by performing surgery and a sonogram on Patient T. M. which were not indicated and did not assist Respondent in diagnosing Patient T. M. condition, Respondent failed to perform any statutory or legal obligation placed upon a licensed physician in violation of Section 766.111, Florida Statutes, which constitutes a violation of Section 458.331(1)(g), Florida Statutes.
Petitioner has proven by clear and convincing evidence that Respondent failed to maintain medical records which justify the course of treatment which constitutes a violation of Section
458.331(1)(m), Florida Statutes, 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.
Patient L. F.
In the matter of L. F., Petitioner has failed to prove by clear and convincing evidence that Respondent violated Section 458.331(1)(t), Florida Statutes.
Petitioner has failed to prove by clear and convincing evidence that Respondent exercised influence within a physician- patient relationship for the purposes of engaging L. F. in sexual activity. The credible evidence did not support the conclusion that L. F. was a patient or that Respondent engaged in sexual activity with L. F.
Petitioner has failed to prove by clear and convincing evidence that Respondent violated a provision of Chapter 458, Florida Statutes, by attempting to engage L. F. in sexual activity in violation of Section 458.329, Florida Statutes, which constitutes a violation of Section 458.331(1)(x), Florida Statutes.
Patient C. G.
Petitioner has failed to prove by clear and convincing evidence that Respondent committed any violation of Section 458.331(1), Florida Statutes, as to C. G.
As To All Cases
In determining which penalties the Board should impose, it is necessary to consult Rule 64B-8.001, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Board.
Subsection (2) of Rule 64B-8.001, Florida Administrative Code, sets forth "the range of penalties which will routinely be imposed" for each of the statutory provisions listed.
Subsection (3) of Rule 64B-8.001, Florida Administrative Code, provides that the Board may impose a penalty outside the normal range where there are mitigating or aggravating circumstances.
According to subsection (3) of Rule 64B-8.001, Florida Administrative Code, the mitigating or aggravating circumstances that the Board may warrant to such a deviation are as follows:
Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, 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 of offenses have previously been committed by the licensee or applicant;
The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;
Pecuniary benefit or self-gain inuring to the applicant or licensee; and
Any other relevant mitigating factors.
Upon the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that in regard to DOAH Case No. 97-0337, Respondent be found guilty on Counts One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, and, it is
RECOMMENDED that Respondent be found not guilty on Counts Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, Twenty, and Twenty-one; and, it is
RECOMMENDED that, in regard to DOAH Case No. 97-0338, Respondent be found guilty on Counts One, Two, and Three; and, it is further
RECOMMENDED that the Respondent shall have his license to practice as a physician suspended for a period of one year; pay a civil penalty of $10,000, plus the costs of this prosecution; and the suspension be followed by a two-year period of probation, under such reasonable terms and conditions as the Board may require, including continuing medical education and evaluation.
DONE AND RECOMMENDED this 1st day of April, 1998, at Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1998.
COPIES FURNISHED:
Gabriel Mazzeo, Esquire
Agency for Health Care Administration Post Office Box 14229
Tallahassee, Florida 32317-4229
Richard A. Simon, Esquire Rissman, Weisberg, Barrett,
Hurt, Donahue & McLain, P.A.
201 East Pine Street 15th Floor
Orlando, Florida 32801
Angela T. Hall, Agency Clerk Department of Health
1317 Winewood Boulevard
Building 6
Tallahassee, Florida 32399-0700
Pete Peterson, General Counsel Department of Health
1317 Winewood Boulevard Building 6, Room 102-E
Tallahassee, Florida 32399-0700
Dr. Marm Harris, Executive Director Department of Health
Board of Medicine Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
| Issue Date | Proceedings |
|---|---|
| Nov. 03, 1998 | Amended Final Order filed. |
| Jul. 30, 1998 | Final Order filed. |
| Apr. 22, 1998 | Petitioner`s Response to Respondent`s Exceptions to Recommended Order filed. |
| Apr. 15, 1998 | Respondent`s Proposed Recommended Order to the Department of Health/Board of Medicine filed. |
| Apr. 15, 1998 | Respondent`s Written Exceptions to Recommended Order of the State of Florida Division of Administrative Hearings filed. |
| Apr. 01, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 11/18-19/97. |
| Feb. 19, 1998 | Petitioner`s Proposed Recommended Order filed. |
| Feb. 13, 1998 | Respondent`s Proposed Recommended Order filed. |
| Feb. 10, 1998 | (Petitioner) Notice of Serving Answers to Respondent`s Request to Produce filed. |
| Jan. 08, 1998 | Order sent out. (PRO`s due by 2/20/98) |
| Dec. 23, 1997 | (Joint) Stipulation; Order Ratifying Stipulation (for judge signature) filed. |
| Dec. 22, 1997 | Transcript of Proceedings (Volumes 1 thru 5, tagged) filed. |
| Nov. 18, 1997 | CASE STATUS: Hearing Held. |
| Nov. 17, 1997 | (Respondent) Amendment to Section (f) of the Pre-Trial Compliance filed. |
| Nov. 17, 1997 | (From K. Cotter) Notice of Appearance as Co-Counsel filed. |
| Nov. 07, 1997 | Notice of Respondent`s Third Supplemental Witness List filed. |
| Nov. 06, 1997 | Notice of Respondent`s Second Supplemental Witness List; Respondent`s Exhibit List; Respondent`s Supplemental Witness List filed. |
| Nov. 04, 1997 | (Signed by R. Simon, G. Mazzeo) Pre-Hearing Stipulation; Pre-Trial Stipulation filed. |
| Oct. 20, 1997 | Notice of Serving Petitioner`s Response to Respondent`s Second Set of Interrogatories (Patient C.G.); Petitioner`s Response to Respondent`s Second Set of Interrogatories filed. |
| Oct. 20, 1997 | Notice of Serving Petitioner`s Response to Respondent`s Second Set of Interrogatories (Patient L.F.); Petitioner`s Response to Respondent`s Second Set of Interrogatories filed. |
| Oct. 20, 1997 | Notice of Serving Petitioner`s Response to Respondent`s Second Set of Interrogatories (Patient J.S./K.L.); Petitioner`s Response to Respondent`s Second Set of Interrogatories filed. |
| Oct. 20, 1997 | Notice of Serving Petitioner`s Response to Respondent`s Request for Production; Petitioner`s Response to Respondent`s Second Request for Production filed. |
| Oct. 20, 1997 | Notice of Serving Petitioner`s Response to Respondent`s Second Set of Interrogatories (Patients T.D., F.R., S.M., F.R., and T.M.); Petitioner`s Response to Respondent`s Second Set of Interrogatories filed. |
| Oct. 08, 1997 | Commission to Take Deposition sent out. |
| Oct. 08, 1997 | Order Appointing Commissioners sent out. |
| Oct. 06, 1997 | Motion for Appointment as Commissioner; Order Appointing Commissioner; Commission to Take Deposition filed. |
| Sep. 26, 1997 | Notice of Serving Petitioner`s Response to Respondent`s First Set of Interrogatories (filed via facsimile). |
| Sep. 24, 1997 | Notice of Addendum to Petitioner`s Witness List (filed via facsimile). |
| Sep. 17, 1997 | (Gabriel Mazzeo) Notice of Appearance (filed via facsimile). |
| Aug. 25, 1997 | (Respondent) Witness List filed. |
| Aug. 14, 1997 | (Petitioner) Notice of Compliance; Petitioner`s Witness List (filed via facsimile). |
| Jul. 07, 1997 | (Respondent) Amended Notice of Taking Deposition Duces Tecum* filed. |
| Jul. 03, 1997 | (Petitioner) Motion for Substitution of Party; Order of Substitution of Party (for Judge signature) (filed via facsimile). |
| Jul. 01, 1997 | (Respondent) Request to Produce filed. |
| Jun. 30, 1997 | Notice of Hearing and Initial Prehearing Order sent out. (hearing set for Nov. 18-20, 1997; 1:00 pm; Orlando) |
| Jun. 27, 1997 | (Respondent) Notice of Taking Depositions Duces Tecum filed. |
| Jun. 16, 1997 | (Respondent) Notice of Propounding Interrogatories filed. |
| Jun. 13, 1997 | (Petitioner) Status Report (filed via facsimile). |
| May 06, 1997 | Order of Continuance sent out. (hearing cancelled & will be reset; petitioner to respond by 6/13/97 as to need for further hearing) |
| Apr. 07, 1997 | Petitioner`s Motion to Reschedule Hearing (filed via facsimile). |
| Feb. 26, 1997 | Notice of Hearing and Initial Prehearing Order sent out. (hearing set for June 3-6, 1997; 10:00am; Orlando) |
| Feb. 26, 1997 | Order of Consolidation sent out. Consolidated case are: 97-000337 97-000338 . CONSOLIDATED CASE NO - CN002653 |
| Feb. 07, 1997 | (Respondent) Response to Administrative Complaint filed. |
| Feb. 07, 1997 | Joint Response to Initial Order (filed via facsimile). |
| Jan. 27, 1997 | Initial Order issued. |
| Jan. 21, 1997 | Notice Of Appearance; Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 30, 1998 | Agency Final Order | |
| Jul. 27, 1998 | Agency Final Order | |
| Apr. 01, 1998 | Recommended Order | Respondent guilty of malpractice in delivery of infant; failure to appropriately diagnose patient's condition, four counts; failure to maintain medical records, four counts; not guilty on eight counts, including sexual misconduct. |
