STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 97-3103

) ADOLOFO CARDENAS DULAY, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 2-4, 1997, in Madison, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: John Terrell, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Richard B. Collins, Esquire

Ryan Garrett, Esquire Collins and Truett, P.A.

2804 Remington Green Circle, Suite 4

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue is whether Respondent's medical license should be disciplined for alleged violations of Chapter 458, Florida Statutes.

PRELIMINARY STATEMENT

On March 25, 1997, the Agency filed an Administrative Complaint alleging that Respondent's medical license should be disciplined for alleged violations of Chapter 458, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent, a licensed physician, practiced medicine below the acceptable standard of care in failing to adequately assess a patient's complaints and symptoms; that he failed to recognize the severity of the patient's vital signs; that he failed to treat a hypertensive emergency and very high heart rate; that he failed to adequately document in the patient's written medical records communications with EMS, including an order for Procardia; and that he failed to adequately justify the decision to transfer the patient to another facility, in contravention of Section 458.331(1)(t), Florida Statues, malpractice Section 458.331(1)(m), Florida Statutes, which requires the keeping of adequate written medical records.

By Election of Rights dated April 4, 1997, Respondent disputed the material allegations of the Administrative Complaint and demanded a formal administrative hearing. Additionally, Respondent, by Motion dated December 1, 1997, requested an award of attorney's fees and costs pursuant to Section 120.569(2)(c), Florida Statutes, on the basis that Petitioner did not base its pursuit of this action on reasonable inquiry, as evidenced by the fact that Petitioner's sole expert witness had not performed the medical areas at issue here since 1989, and thereby lacked the

requisite expertise to offer his opinion on Respondent's performance. The Motion for Attorney's Fees is denied.

At the hearing, Petitioner called nine (9) witnesses and submitted six exhibits into evidence. Petitioner proffered three additional items that were not admitted into evidence.

Respondent testified on his own behalf, called three (3) witnesses and introduced one exhibit into evidence.

Additionally, one joint exhibit was submitted by the parties. After the hearing, Petitioner submitted the deposition testimony of its medical expert, Dr. Blanchar.

FINDINGS OF FACT

1. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0027368.

2. Respondent is board certified in family practice; however, he is not board certified in emergency medicine.

3. On May 30, 1994, Dr. Dulay was on call in the hospital emergency room at Madison County Memorial Hospital (MCMH) in Madison, Florida.

4. On May 30, 1994, Patient T.H. an obese, forty-eight year-old male was found unconscious on the floor of the bathroom by his brother, Wallace. T.H. had an arteriovenous malformation (AVM) in his brain.

5. An AVM is a weakened area of a blood vessel which can fill with blood, expand and/or burst. AVMs located in the brain

   are very dangerous since a ruptured AVM can damage the brains tissue. The amount of damage depends on the amount and rapidity of the bleeding. Under any circumstances, a ruptured AVM is an emergency medical condition where time is of the essence in diagnosing and treating usually with some neurosurgical intervention.

6. On May 30, 1994, at approximately 4:56 a.m., Carol Wells a Madison County 911 Operator received an emergency call regarding T.H. The call was originally received as a fall.

7. An Advanced Life Support (ALS) ambulance was dispatched to T.H.'s location in Cherry Lake Garden Trailer Park.

8. An ALS unit is intended to be a mobile critical care unit, able to render critical care and stabilization to a patient enroute to an appropriate hospital. An Advanced Life Support unit contains equipment needed for insertion of a chest tube, a lab, and an x-ray, as well as equipment and medications for cardiac emergencies. The equipment and medications needed for T.H.'s case were present.

9. The ALS unit arrived at T.H.'s location at 5:19 a.m.

   
   

10. Jimmy Kent was an EMT and driver of the ALS unit that responded to the 911 emergency call on T.H. Richard Kline was the paramedic on the ambulance. Mr. Kline was trained in ALS care and could administer certain drugs, including Procardia without a physician's order.

11. Paramedic Kline found patient T.H. on the floor of the trailer. He observed T.H. to be comatose, unresponsive to painful stimuli, and exhibiting snoring-type respirations. His skin was hot and dry, and his face was red. T.H. scored a three on the Glasgow Coma Scale, the lowest possible score.

12. T.H.'s vital signs were blood pressure estimated at 300 plus over 150, respiratory rate of 40, heart rate "tacking" at approximately 170, with raspy breathing. T.H. was considered in critical condition.

13. At the scene, Paramedic Kline was having problems with his cardiac monitor, which became non-functional due to battery problems. However, patient T.H. could still be adequately monitored manually. Additionally, within twenty-five minutes of beginning the run, the cardiac monitor on the ALS unit was non- functional due to failure of the primary and back-up batteries. The lack of the units equipment did not significantly impact the paramedic's ability to monitor or treat T.H.'s condition.

14. Paramedic Kline was informed by T.H.'s family that he had a history of Arterial Venous Malformation, paralysis on the right side, and strokes.

15. T.H.'s sister was called and she advised that T.H. not be brought to Madison County Memorial Hospital (MCMH) because they usually don't have a doctor available. She wanted T.H. to go to South Georgia Medical Center (SGMC) in Valdosta, Georgia.

16. The paramedic thought that they needed to take T.H. to MCMH because of the serious vital statistics that T.H. had. The paramedic felt T.H. could go into cardiac arrest. After being advised by the paramedic that T.H. needed immediate assistance at MCMH, T.H.'s sister agreed to have T.H. taken to MCMH.

    There are two hospital emergency facilities to choose from when transporting an emergency case in the Madison, Florida, area, MCMH and SGMC. In driving terms MCMH is slightly, but not significantly, closer to Cherry Lake Garden Trailer Park than SGMC. However, the facilities are very different in the services each can offer in an emergency situation.

17. MCMH is not a trauma center. MCMH does not have any neurosurgical facilities, neurosurgical consults, diagnostic MRI's, diagnostic CT scans, or cerebral monitoring equipment available. MCMH cannot treat a cerebral vascular accident or bleeding in the brain. On the other hand, SGMC is a tertiary care facility. It has neurosurgical facilities, neurosurgical consults, diagnostic CT scans, and cerebral monitoring equipment available. SGMC can treat a cerebral vascular accident and is the closest facility which can provide such care.

18. The ambulance was en route to MCMH when it contacted the hospital by radio; Joanie Cruce, R.N., spoke to the ambulance driver over the radio. Paramedic Kline informed Nurse Cruce of T.H.'s history, including the presence of T.H.'s AVM and vital

    signs. He also informed Nurse Cruce that he was bringing the

    
    

    T.H. to MCMH.

    
    

19. Nurse Cruce relayed T.H.'s information to Joe Jaime,

    
    

    R.N. Nurse Jaimie was on the telephone to Dr. Dulay who was in another room at the hospital. Nurse Jaimie relayed over the telephone to Dr. Dulay the information Nurse Cruce gave her. At no time did Dr. Dulay speak directly with the paramedic. Dr. Dulay was informed that the patient had high blood pressure, was unconscious, and had a history that included an arterial venous malformation. Due to the patient being unconscious, he suspected a cerebral vascular accident/stroke (CVA).

20. At approximately 5:40 a.m., while en route to MCMH, the paramedic asked for advice on whether to administer Procardia. Procardia is used to reduce blood pressure. Respondent advised that it was appropriate to administer 10mg of Procardia.

21. There was some uncertainty in the testimony as to whether the administration of Procardia was requested by the paramedic and approved by Dr. Dulay, or ordered by Dr. Dulay. Either person could have authorized the use of the drug. In any event, 10mg of Procardia was the appropriate medication for the patient's condition and met or exceeded the appropriate standard of care for an emergency room physician under the circumstances.

22. At some point, Dr. Dulay advised the ambulance to have

    
    

    T.H. taken to the nearest appropriate facility.

23. The ALS unit was one to two miles from MCMH when Joanie Cruce, R.N., advised the ambulance driver to take T.H. to the nearest appropriate facility. Either Nurse Cruce misspoke and said Tallahassee or Richard Kline misunderstood her to say Tallahassee. Richard Kline questioned the direction to take T.H. to Tallahassee. He told nurse Cruce that the family wanted T.H. to go to the hospital in Valdosta. The information was passed to Dr. Dulay. He agreed that SGMC was an appropriate facility for

    T.H. and in fact SGMC was the closest appropriate facility for T.H.'s condition.

24. Dr. Dulay never informed the nursing staff that T.H. could not be brought to MCMH and indeed the nurses thought that the ambulance was on its way even after the conversation about Valdosta.

25. Patient T.H. was not in respiratory or cardiac arrest at the time the ambulance was turned around to go to Valdosta.

26. After the change of direction, which is always within the discretion of the ambulance crew, there was no further contact with MCMH. Therefore Dr. Dulay was never informed of the results of the Procardia. Additionally, T.H. was never admitted to MCMH and never became a patient of Dr. Dulay or the hospital. Therefore, since T.H. was not a patient of the hospital no transfer from one facility to another facility occurred.

27. While en route to SGMC, the ambulance contacted SGMC's emergency room. The staff advised the paramedic to give T.H.

    sodium nitroprusside. However, the ambulance did not carry sodium nitroprusside. Instead the paramedic was advised by SGMC staff to administer Lasix IV and nitroglycerine.

28. Patient T.H. suffered respiratory arrest just outside the city limits of Valdosta. Efforts to intubate and revive him were unsuccessful.

29. Patient T.H. arrived at SGMC in full arrest. The ambulance arrived at SGMC at 6:25 a.m. Attempts to revive the patient at the hospital were unsuccessful.

30. T.H. was pronounced deceased shortly after his arrival at SGMC. T.H.'s cause of death was cardiopulmonary arrest with an underlying cause of intracranial hemorrhage, probably due to an aneurysm. In short, all of T.H.'s symptoms were caused by a rapidly expanding and bleeding cerebral vascular incident from his AVM. T.H.'s condition was not due to a cardiac problem.

31. The medical condition of T.H. at the time he was transported by Madison County ALS was indicative of an intracranial hemorrhage. Such a condition could only be evaluated for surgical treatment through the utilization of an MRI and CT scan, and required the immediate consultation of a neurosurgeon. None of which were available at MCMH. Moreover, it would generally be preferable to transport a patient with a score of three on the Glasgow Coma Scale to a trauma center.

32. SGMC was the closet facility to Cherry Lake at which a neurosurgical consult was available, and which had the capability

    of treating an intracranial hemorrahage; therefore, patient T.H. was appropriately diverted to that facility.

33. Dr. Dulay did not open a chart on T.H., and could not recall whether he made written notes during T.H.'s emergency.

34. However, it is not customary practice that a medical chart be opened for an emergency case when consults are made via radio and the person is diverted or otherwise delivered to a separate facility. Generally, neither the hospital nor the doctor know the name of the person being transported. If the person does not arrive at the hospital, that facility has no information on which to open a patient record. Under such circumstances, the person's history, vital signs, and medication administration are recorded in the ALS run sheet, which accompanies the person to his or her ultimate destination. The radio communications are recorded by audiotape.

35. In this case, the history, vital signs, and medication administration to T.H. were in fact recorded in the ALS run sheet. The run sheet appropriately accompanied T.H. to SGMC. The radio communications were recorded by audiotape. These documents are adequate records in emergency situations.

36. Given these facts, there was no deviation by Dr. Aldolfo Dulay from the applicable standard of care for a physician under the circumstances presented in this case or that there was a failure to keep adequate written medical records justifying the course of treatment of the patient.

    CONCLUSIONS OF LAW

    
    

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

38. Section 458.331(1)(t), Florida Statutes, provides that disciplinary action may be taken against a physician for gross or repeated malpractice or the failure to practice medicine within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances.

39. Section 458.331, Florida Statutes, states in part:

    
    

    (1)(t) through 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.

    
    

    (m) by 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 and hospitalizations.

    
    

    1. 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:

       1. Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration.

          
          

       2. Revocation of license.

          
          

       3. Restriction of practice.

          
          

       4. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

          
          

       5. Issuance of a reprimand.

          
          

       6. Placement of the physician on probation for such period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

    (h) Corrective action.

    
    

40. 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 Sections 458.331(1)(j),(k),(m),(t), and (x), Florida Statutes, by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987); see Addington v. Texas, 441 U.S. 426 (1979).

41. In this case, the agency has not shown by clear and convincing evidence that Respondent either practiced below any relevant standard of care or practice. Likewise the agency has not established by clear and convincing evidence that Respondent failed to keep adequate medical records. The evidence

demonstrated that SGMC was the appropriate facility for a person in T.H.'s condition and that he was sent to that facility. MCMH was not an appropriate facility for a person in T.H.'s condition. MCMH could not treat T.H.'s condition. MCMH could only perform the same things the ALS unit could perform, i.e. stabilize T.H and ultimately transport him to Valdosta. The ambulance run sheet and the audio tapes of T.H.'s emergency are the standard records kept for an emergency event. Based on these facts, the Administrative Complaint should be dismissed.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is,

RECOMMENDED:

That the Board of Medicine enter a final order finding that

Adolofo Dulay, M.D. did not practice below the accepted standard of care in his handling of the diversion of patient T.H. to a tertiary care facility, that there was no transfer of patient

T.H. and that the records maintained were appropriate under the circumstances and that the Administrative Complaint be dismissed.

DONE AND ENTERED this 2nd day of June, 1998, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 2nd day of June, 1998.

COPIES FURNISHED:

John Terrell, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Richard B. Collins, Esquire Ryan Garrett, Esquire Collins and Truett, P.A.

2804 Remington Green Circle, Suite 4

Tallahassee, Florida 32308

Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Pete Peterson, Esquire Department of Health Building 6, Room 102-E 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary Department of Health Building 6, Room 306

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Dr. Marm Harris, Executive Director Department of Health

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.

Docket for Case No: 97-003103

Orders for Case No: 97-003103