STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 98-2379

) FRANK PETER FILIBERTO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings, before Daniel M. Kilbride, Administrative Law Judge, in Rockledge, Florida, on November 18 and 19, 1998. The following appearances were entered:

APPEARANCES

For Petitioner: John O. Williams, Esquire

Maureen L. Holz, Esquire Williams & Holz, P.A.

355 North Monroe Street Tallahassee, Florida 32301

For Respondent: J. Charles Ingram, Esquire

Hannah, Voght, Estes & Ingram, P.A. Post Office Box 4974

Orlando, Florida 32802-4974 STATEMENT OF THE ISSUE

Whether the Respondent violated Section 458.331(1)(m), Florida Statutes, which requires a physician to keep legible medical records on Patient S.W., during the period August 20, 1992, through November 1992.

Whether Respondent violated Section 458.331(1)(t), Florida Statutes, which prohibits 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, where Respondent performed surgery that was not necessary and/or failed to diagnose and treat a postoperative infection that resulted in necrosis of the Patient S.W.'s turbinates.

PRELIMINARY STATEMENT

On February 2, 1998, Petitioner filed a two-count Administrative Complaint against Respondent, Frank P. Filiberto,

1. Respondent denied the allegations in the complaint and requested a formal hearing, pursuant to Section 120.57(1), Florida Statutes. This matter was referred to the DOAH for a formal hearing. Following discovery, a formal hearing was conducted.

   At the hearing, the Petitioner offered the testimony of two witnesses, Michael Schwartz, M.D., and S.W. The Petitioner offered six exhibits, all of which were admitted in evidence:

   P-1: Dr. Filiberto's post-operative office notes

   P-2a,b,c: Dr. Filiberto's surgical notes (3) P-3: Dr. Filiberto's disciplinary history

   P-4: Dr. Filiberto's billing record (excerpt)

   P-5: Dr. Filiberto's 3/25/91 office note P-6: Dr. Filiberto's 4/1/91 office note

   The Respondent testified in his own behalf and offered the

   testimony of Richard Goulding, M.D., and Lija Scherer, a representative for the Agency for Health Care Administration (AHCA). The Respondent offered three exhibits, all of which were admitted in evidence:

   
   

   R-1: Dr. Filiberto's complete chart of the Patient S.W. (composite)

   R-2: 3/25/91 correspondence from Dr. Filiberto to Marilyn Moss, M.D. R-3: Dr. Filiberto's AHCA probation completion and compliance records

   
   

   The Petitioner offered two exhibits in rebuttal, both of which were admitted over objection of Respondent:

   P-7: 11/12/98 deposition of Marc Lieberman, M.D.

   P-8: 6/28/95 deposition of Richard Goulding, M.D.

   
   

   Following the hearing, the complete transcript was filed by February 3, 1999. Petitioner filed its proposed recommended order on February 1, 1999. Respondent filed his proposal on the same date. Each of the parties' proposals have been given careful consideration in the preparation of this order.

   FINDINGS OF FACT

   
   

   1. Respondent, Robert Peter Filiberto, is and has been, at all times material hereto, a licensed physician in the State of Florida, having been issued license no. ME 0032703. Respondent maintains offices in Palm Bay and Sebastian, Florida.

   2. Respondent is board certified in otolaryngology and head/neck surgery.

   3. S.W., a 46 year-old adult female, was referred on

      March 25, 1991, to Respondent with complaints of "chronic bronchitis." Physical examination revealed the following: Mild polypoid changes of both vocal chords, 2+ rhinitis, with 3+ post nasal drainage.

   4. Respondent diagnosed the patient as suffering from allergic rhinitis with a post nasal drainage, which precipitated her chronic cough.

   5. S.W. returned to Respondent on August 20, 1992, having fallen and suffered a broken nose. Respondent diagnosed a comminuted (multiple) fracture and septal deformity.

   6. Respondent recommended surgical correction.

      
      

   7. On August 26, 1992, S.W. executed a Surgical Contract for a "septorhinoplasty and bilateral turbs" and also executed a Surgical Consent Form as follows:

      I consent to the performance of operations and procedures in addition to or different from those now contemplated, whether or not arising from presently unforeseen conditions, which Dr. Filiberto may consider necessary or advisable in the course of the operation.

      
      

      * * *

      
      

      The nature and purpose of the operation, possible alternative methods of treatment, the risks involved, the possible consequences and the possibility of complications have been fully explained to me by Dr. Filiberto or his assistant. These may include infection, loss of function, disability, scar formation, pain, bleeding, and possibility of recurrence.

      
      

      I acknowledge that no guarantee or assurance has been given by anyone as to the results that may be obtained. Dr. Filiberto assured me he would fix my nose and I would be happy. (Final sentence added by S.W.)

      
      

   8. On or about September 18, 1992, Respondent performed septorhinoplasty (plastic surgery of the nose and septum, the cartilage between the nostrils), with bilateral inferior

      turbinectomy (removal of the lower moisturizing membranes inside the nose) on S.W. at Humana Hospital - Sebastian.

   9. Respondent removed a portion of both inferior turbinates. The right inferior turbinate was manually resected (cut) with superficial electrocauterization used to control bleeding. The left inferior turbinate was fulgurated using an intramural electrocautery technique. The surgery proceeded without complication.

   10. Following the operation, the hospital pathology report confirmed Respondent's diagnosis: chronically inflamed hypertrophied nasal turbinates.

   11. Respondent's post-operative report indicates he intended to remove only the lower two-thirds of Patient S.W.'s turbinates.

   12. Respondent's performance of surgical electocautery is not mentioned in Respondent's medical records until Patient S.W.'s visit on or about November 13, 1992.

   13. Between September 21, 1992, through November 20, 1992, Respondent saw Patient S.W. for postoperative follow-up examinations.

   14. During her postoperative visits, S.W. complained of pain, a greenish discharge, and a bad smell numerous times.

   15. When the symptoms did not cease, Respondent prescribed antibiotics on October 22, 1992, approximately four weeks after surgery.

   16. After approximately three weeks on the antibiotics, the pain, discharge, and smell continued.

   17. Respondent prescribed more of the same antibiotics.

   18. Between on or about September 21, 1992, through on or about November 11, 1992, Respondent's medical records described S.W.'s nose as clear.

   19. Between on or about September 21, 1992, through on or about November 11, 1992, Respondent's medical records indicate no postoperative infection. However, the patient had an infection that was impervious to the antibiotics that Respondent had first prescribed. When that became apparent, Respondent failed to order a culture.

   20. Patient S.W. subsequently transferred her case to another physician and underwent extensive treatment by other physicians for tissue necrosis and osteonecrosis (infectious destruction of bone), including removal of necrotic tissue and intravenous antibiotics.

   21. Patient S.W.'s subsequent treating physicians discovered that her turbinates were completely missing.

   22. S.W. now has severely limited senses of smell and taste. She suffers from chronic pain and sinus headaches. She experiences nightly discharges of thick mucous, and numbness of certain parts of her face.

   23. Expert witnesses speculated that the turbinates were missing, either because Respondent had removed them entirely, which is not standard practice and is not reflected in his medical notes, or because he allowed the infection to continue so long that necrosis destroyed whatever portion of the turbinates

       had not been removed.

       
       

   24. Respondent's medical records do not justify his course of treatment of Patient S.W. Respondent's medical records inadequately document Patient S.W.'s history and physical condition or amounts and frequencies of antibiotics prescribed.

   25. The records also do not justify Respondent's delay in diagnosing Patient S.W.'s developing post-operative infection.

   26. The evidence is not clear and convincing that Respondent performed inappropriate nasal surgery on Patient S.W. on September 18, 1992.

   27. A reasonably prudent similar physician would not have failed to timely diagnose and treat Patient S.W.'s developing postoperative infection.

       CONCLUSIONS OF LAW

       
       

   28. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569, 120.57(1), 120.60 and Chapter 458, Florida Statutes.

   29. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 458, Florida Statutes, and the Board of Medicine is empowered to revoke, suspend, or otherwise discipline the license of a nurse for violations of Chapter 458, Florida Statutes.

   30. Revocation of license proceedings are penal in nature; State ex rel Vining v. Florida Real Estate Commission, 281 So. 2d

       487 (Fla. 1973) and must be construed strictly in favor of the one against whom the penalty would be imposed. Munch v. Department of Professional Regulation, Division of Real Estate,

       592 So. 2d 1136 (Fla. 1st DCA 1992); Fleischman v. Department of Professional Regulation, 441 So. 2d 1121 (Fla. 3d DCA 1983). The standard of proof required in this matter is that relevant and material findings of fact must be supported by clear and convincing evidence of record. Hal Heifetz d/b/a Key Wester Inn v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 475 So. 2d 1277 (Fla. 1st DCA 1985); Department of Banking and Finance v. Osborne Stern Co., 670 So. 2d 932 (Fla. 1996). Petitioner has the burden of proving by clear and convincing evidence each of the allegations in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   31. Respondent was charged in Count I of the Administrative Complaint with violating Sections 458.331(1)(m), Florida Statutes which provides in pertinent part that:

       1. The following acts shall constitute grounds for which the disciplinary actions

          . . . may be taken:

          
          

          (m) Failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the licensed physician or the physician extender and supervising physician by name and professional title who is or are responsible

          for rendering, ordering, supervising, or billing for each diagnostic 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.

          
          

   32. The evidence is clear and convincing that Respondent's records of his treatment of S.W. are wholly inadequate. The records do not give a clear reason why a turbinectomy was necessary. In addition, they do not depict adequate care of the postoperative infection. By the Respondent's failure to keep adequate records, judgment must be based on certain limited available facts. These omissions in the record are acts which constitute grounds for which disciplinary action may be taken, in violation of Section 458.331(1)(m), Florida Statutes.

   33. Although Petitioner has established that Respondent's office records were inadequate at the time that they were prepared in 1992, Respondent has established that his current procedures for the generation of medical records are complete and in compliance with the applicable statutory and regulatory requirements.

   34. Respondent was charged in Count II of the Administrative Complaint with violating Section 458.331(1)(t), Florida Statutes, which provides, in pertinent part:

       1. The following acts shall constitute grounds for which the disciplinary actions .

          . . may be taken:

          
          

          (t) Gross or repeated malpractice or 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 s. 766.102 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous

          5-year period resulting in indemnities being paid in excess of $25,000 each to the claimant in a judgement or settlement and which incidents involved negligent conduct by the physician. 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 incompetent to practice medicine in order to be disciplined pursuant to this paragraph.

   35. The evidence is not clear and convincing that Respondent practiced medicine below the standard of care in the obtaining of consent for and performing the September 18, 1992, surgical procedure on Patient S.W. Although the Respondent's records fails to establish that the turbinectomy was or was not justified, nevertheless, it is clear that a total turbinectomy was problematic. It is clear that S.W. had no turbinate left as a result of Respondent's treatment, although it is unclear whether he completely resected it in the operating room or allowed the portion remaining after surgery to die as a result of his failure to diagnose.

   36. The evidence is clear and convincing that Respondent

       violated Section 458.331(1)(t) by practicing medicine below the standard of case by failing to timely diagnose and treat Patient S.W.'s postoperative infection. In the instant case after the surgery, the Patient suffered real harm at the hands of the Respondent. In her postoperative office visits, Respondent knew that S.W. was experiencing pain, green discharge, and a strong odor emanating from her nose. Respondent knew that this had continued for several weeks after surgery, an unusually long period of time. Respondent knew that the infection had not responded to the antibiotic in the time that such an antibiotic normally takes effect. In the face of all this information, Respondent failed to recognize that what he was doing was not working and that S.W.'s tissue and bone were dying. Respondent fell below the standard of care by failing to recognize that he was confronted with a more serious problem that was not responding to standard treatment. When he dismissed the complaints of the patient, and the accepted norms regarding the duration of postoperative infection, he fell below the standard of care. The Patient had an infection that was impervious to the antibiotics that Respondent had first recommended. After learning that, continuing on the same course simply makes no sense. It was not reasonable for Respondent to expect that continuing the same treatment would solve the problem.

       Respondent should have ordered a culture. Respondent's course of treatment was not solving S.W.'s problem, and Respondent had

       numerous indications of that. It was a deviation from the standard of care not to recognize the abnormal post-operative events and follow a different protocol.

   37. It is quite clear and convincing that Respondent's postoperative care fell below the standard of care.

   38. Respondent has greatly improved his record-keeping since the events in question and must be considered in mitigation of Count I of the Administrative Complaint.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Board of Medicine issue a final order that:

1. Finds the Respondent guilty of failure to keep legible medical records that justified the course of treatment for Patient S.W. during the period August 1992 through November 1992, in violation of Section 458.33(1)(m), Florida Statutes.

2. Finds the Respondent not guilty of gross 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 conditions and circumstances in regard to the diagnosis and surgery performed on Patient S.W., on September 18, 1992.

3. Finds the Respondent guilty of gross 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 conditions and circumstances in regard to the treatment of the Patient S.W. for the postoperative infection that resulted in necrosis of the Patient's turbinates in the period September through November 1992, in violation of Section 458.331(1)(t), Florida Statutes.

4. Finds that Respondent has established mitigation as to Count I, in that his current procedures for the generation of

   medical records are in compliance with statutory and regulatory requirements.

5. Suspends Respondent's license to practice medicine for a period of three months, followed by a period of probation under such terms and conditions as the Board may require; and imposes an administrative fine of $5,000, plus the costs of prosecuting this complaint.

DONE AND ENTERED this 26th day of February, 1999, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

J. Charles Ingram, Esquire

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1999.

Hannah, Voght, Estes & Ingram, P.A. Post Office Box 4974

Orlando, Florida 32802-4974

John O. Williams, Esquire Maureen L. Holz, Esquire Williams & Holz, P.A.

355 North Monroe Street Tallahassee, Florida 32301

Pete Peterson, General Counsel Department of Health

2020 Capital Circle, Southeast Bin A-02

Tallahassee, Florida 32399-1703

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast Bin A-02

Tallahassee, Florida 32399-1703

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: 98-002379

Orders for Case No: 98-002379