STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 98-1313

)

DENNIS GROSS, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on September 11, 1998, in Orlando, Florida.

APPEARANCES

For Petitioner: Gabriel Mazzeo, Esquire

Carol A. Lanfri, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Martin B. Unger, Esquire

Laura Kowalcyk, Esquire

Unger, Swartwood, Latham and Indest, P.A. Post Office Box 4909

Orlando, Florida 32802-4909 STATEMENT OF THE ISSUES

An Administrative Complaint dated February 2, 1998, alleges that Respondent, Dennis Gross, M.D., violated Section 458.331(1)(t), Florida Statutes, by failing 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.

More specifically the Administrative Complaint alleges that Dr. Gross failed to properly diagnose and treat a 20-month old patient on August 8, 1994, which patient expired that same day.

PRELIMINARY STATEMENT

Dr. Gross responded to the Administrative Complaint with a dispute of the allegations and request for a formal administrative hearing. After one continuance, the hearing proceeded as described above.

At the hearing Petitioner presented the deposition testimony of its expert witness, Lucien DeNicola, M.D. For reasons described below, Dr. Gross' motion to strike that testimony was denied. Petitioner's only other evidence was received without objection as Petitioner's Exhibit No. 1 (the certification of licensure) and Petitioner's Exhibit No. 4 (medical records for patient, R.M.)

Respondent, Dr. Gross, testified in his own behalf and presented the testimony of Raymond Caron, M.D. and Cody Meissner, M.D.

Respondent's Exhibits No. 1 and 2, the curriculum vitae of the two experts, were received in evidence without objection.

The transcript was filed on October 8, 1998, and the parties' Proposed Recommended Orders were filed on October 27 and

28, 1998.

FINDINGS OF FACTS

1. Dennis Gross, M.D., is now and since December 31, 1973, has been licensed as a medical doctor in the state of Florida with license no. ME0021286.

2. Dr. Gross is board-certified in pediatrics. He has had an active, private general pediatric practice in central Florida for the last 22 years, seeing an average of 30-35 patients a day. His practice consists of well child care, routine visits, physicals, and immunizations, but also includes acute care, illnesses, and injuries. His office hours are Monday through Friday and a half-day on Saturday; he routinely takes calls from his patients' parents and does not rely on his nurses to handle those calls. He also sees patients at night or on weekends at the hospital, but generally if a patient is critically ill and requires in-hospital care, he calls for a consult from a pediatric intensivist, a sub-specialty of pediatric care for critically ill children.

3. Dr. Gross was the pediatrician for the M. family for about 12 years. R.M., a male child was born on

   November 18, 1992, and Dr. Gross began treating him from birth.

   
   

4. During the course of his treatment of R.M., Dr. Gross learned that the child had a rare immunodeficiency syndrome,

   cyclic neutropenia, characterized by cyclical (generally 14-45 days) reduction in the patient's neutrophils (the most prevelant type of white blood cells.) R.M.'s father and older half-sibling also had this condition. When the patient's neutrophils are low, bacterial infections occur.

5. In the infant R.M. such infections occured frequently. Between his birth and August 1994, Dr. Gross treated R.M. for various infections on approximately 24 occasions. These included boils and abcesses, infected rashes and other infections primarily localized on the skin. R.M. was also treated for normal childhood illnesses such as coughs, colds, and ear infections. On each occasion Dr. Gross was able to quickly identify the problem and treated it appropriately.

6. For approximately 22 months R.M. thrived and achieved age-appropriate growth and developmental levels.

7. On August 8, 1994, between 9:00 a.m. and 9:30 a.m., R.M.'s mother called Dr. Gross at his office and told him that

   R.M. had a low-grade fever and had vomited through the night. She said he had not vomited, however, within the 4 to 5 hours. Dr. Gross told the parent to put R.M. on clear liquids, to call back if the vomiting persisted, and to check back the following day anyway because of the child's history. Although the mother was aware of Dr. Gross' practice of seeing patients the same day on request she did not make such a request at that time.

8. Instead, R.M.'s father, a school principal, stayed home

   with him in the morning and brought him to school to the mother, a teacher, in the later morning. R.M.'s mother took him home and apparently called Dr. Gross' office for a same-day appointment because she appeared with R.M. at the pediatrician's office around 3:30-4:00 p.m.

9. When Dr. Gross entered the examining room, R.M. was walking around the room. Dr. Gross placed him on the examining table and observed an "alert and active child." His mouth appeared slightly dry and with the exception of increased bowel sounds and a rectal temperature of 104.1, all other signs were normal.

10. Dr. Gross told the mother that he felt R.M. had gastroenteritis, a viral infection, and told her he didn't want the child to dehydrate. He administered a shot of antiemetic and

    R.M. howled, a thoroughly normal reaction. Dr. Gross also prescribed Phenergan suppositories and told the mother to keep him on clear liquids slowly and call back if necessary. The child walked out of the office with his mother.

11. Approximately 45 minutes later at home R.M. stopped breathing and was taken to the hospital. Dr. Gross was called to the hospital where CPR, epinephrine and other emergency measures were employed to attempt to revive the child. He was pronounced dead at 6:25 p.m.

12. The autopsy determined that the cause of death was "septicemia, due to complications of cyclic neutropenia." More

    specifically, bacteriology studies revealed three species of clostridium, including clostridium septicum identified in the blood culture. (Petitioner's Exhibit No. 4, p. 5/83)

    The Standard Of Care

    
    

13. The foregoing facts are substantially uncontroverted. The parties' dispute is whether Dr. Gross' diagnosis of R.M. on August 8, 1994, constituted 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. On this issue, the experts are at odds.

14. Petitioner's sole witness was Dr. Lucian DeNicola, a professor of pediatrics in pediatric critical care medicine at the University of Florida Health Science Center in Jacksonville, Florida. Dr. DeNicola's opinion formed the basis for the Administrative Complaint in this case.

15. Dr. DeNicola is board-certified in pediatrics and in pediatric critical care. With outstanding education and experience Dr. DeNicola has, nonetheless, very limited experience in an active outpatient general pediatrics practice such as Dr. Gross' practice. That practice was for 6 years at an outpatient clinic operated by the University of Massachusetts and that experience ceased approximately 16 years ago. Dr. DeNicola is an intensivist, specializing in the care of critically ill children.

16. Based on R.M.'s history and the elevated temperature,

    Dr. DeNicola's opinion is that Dr. Gross should have suspected something serious, should have taken or ordered a blood culture, and should have immediately administered a broad spectrum antibiotic. Clostridia infections are virulent and highly toxic, but they are killed with antibiotics, usually a penicillin.

17. Dr. DeNicola's opinion was considered and weighed in this proceeding but has been rejected in favor of the more relevant and, under the circumstances of this case, more credible, opinions of Respondent's witnesses.

18. Dr. Raymond Caron is board-certified in pediatrics and has practiced in Orlando, Florida, for approximately ten years. A sole-practitioner like Dr. Gross, he sees children from birth through adolescence, providing a mix of routine well-child care and acute care.

19. Dr. Cody Meissner's training and experience is closely analogous to that of Dr. DeNicola. That is, he practices medicine in a teaching hospital setting, through the Tuft's University School of Medicine in Boston, Massachusetts.

    Dr. Meissner is head of the Pediatric Infectious Disease Division at the New England Medical Center. He teaches, directs research, consults with pediatricians throughout New England, and spends several hours a day with patients in the hospital or emergency room. Dr. Meissner is board-certified in pediatrics and in pediatric infectious diseases.

20. There are viral infections and bacterial infections.

    Viral infections do not respond to antibiotics and administering antibiotics indiscriminately is contraindicated and can be very detrimental. The indiscriminate use of antibiotics can create drug-resistent strains of infections and the antibiotics may ruin an outcome of subsequent blood cultures which are supposed to identify the potential bacteria.

21. Dr. Gross did not have an in-office capacity to perform a blood culture nor did most his colleagues in private pediatric practice have that capacity. The standard of care did not require that capacity. Even a culture taken in an emergency room setting would have meant a several-hour delay between the time

    R.M. was seen by Dr. Gross and the results of the culture. In the meantime, the injection of an antibiotic by Dr. Gross would likely have masked the result of the culture and would have produced a false negative.

22. More significantly, and even with Dr. Gross' foreknowledge of R.M.'s propensity for infections, nothing specifically in the child's condition on the afternoon of

    August 8, 1994, clued the pediatrician to the fact that the child was already full of deadly toxins. Bacterial infections, in contrast with viral infections, are generally identified with a focus of the infection: lesions, draining, inflammation, tenderness or localized pain or swelling.

23. Impending septicemia typically is manifested by lethargy, limpness, cyanosis (paleness), low blood pressure, an

    inability to make eye contact, and severe irritability. R.M. presented none of these signs to Dr. Gross. R.M.'s very normal reaction to the injection would not be typically found in a child as sick as he truly was.

24. Young children with temperatures of 104 are not extraordinary. Pediatricians in an active practice like Dr. Gross' may see several such patients daily, or weekly, depending on the season.

25. Dr. Gross' diagnosis of gastroenteritis was consistent with his observations, examination and knowledge of the child's history. According to Dr. DeNicola, R.M. could have had an interferring viral infection that caused the earlier vomiting that set up the bacteremia. (deposition, p. no. 66)

26. In summary, the standard of care as more credibly described by Respondent's witnesses did not require that Dr. Gross perform or order a blood culture or administer an antibiotic to R.M. on the afternoon of August 8, 1994.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes, and Section 455.225(5), Florida Statutes.

28. Section 458.331(1)(t), Florida Statutes, provides that the Board of Medicine may discipline a licensee for

    . . . 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 Section

    766.102 when enforcing this paragraph.

    
    

    . . .

    
    

    . . . 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 competent to practice medicine in order to be disciplined pursuant to this paragraph.

    
    

29. The agency must prove by clear and convincing evidence that the alleged violation was committed by the Respondent in

    
    

    license discipline cases such as this. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

30. The agency in this case failed to meet its burden of proof.

31. It was appropriate to consider and weigh Dr. DeNicola's expert testimony. Section 766.102(2)(b), Florida Statutes, referenced in Section 458.331(1)(t), Florida Statutes, above, provides, in pertinent part:

    1. If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a

       specialist, is trained and experienced in a medical specialty, or holds himself or herself out as a specialist, a "similar health care provider" is one who:

       1. Is trained and experienced in the same specialty; and

       2. Is certified by the appropriate American board in the same specialty.

       . . .

       
       

    2. The purpose of this subsection is to establish a relative standard of care for various categories and classifications of health care providers. Any health care provider may testify as an expert in any action if he or she:

       1. Is a similar health care provider pursuant to paragraph (a) or paragraph (b); or

       2. Is not a similar health care provider pursuant to paragraph (a) or paragraph

       (b) but, to the satisfaction of the court, possesses sufficient training, experience, and knowledge as a result of practice or teaching inn the specialty of the defendant or practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience, or knowledge must be as a result of the active

       involvement in the practice or teaching of medicine within the 5-year period before the incident giving rise to the claim.

       
       

       Dr. DeNicola adequately met the criteria of Section 766.102, Florida Statutes.

32. Dr. DeNicola's testimony and opinions, however, when weighed against the more compelling testimony of Dr. Gross and his witnesses, failed to "clearly and convincingly" establish the alleged violation by Dr. Gross.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED: that the Board of Medicine issue a Final Order dismissing the Administrative Complaint at issue.

DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida.

MARY CLARK

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 8th day of December, 1998.

COPIES FURNISHED:

Carol A. Lanfri, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Martin B. Unger, Esquire

Unger, Swartwood, Latham & Indest, P.A. Post Office Box 4909

Orlando, Florida 32802-4909

Tanya Williams, Executive Director Board of Medicine

Department of Health Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

Angela Hall, Agency Clerk Board of Medicine Department of Health

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

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: 98-001313

Orders for Case No: 98-001313