STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEAN JOSEPH LOCHARD, M.D., )

)

Petitioner, )

)

vs. ) Case No. 98-5479

) DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 10, 1999, a formal administrative hearing in this case was held by videoconference in Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Grover C. Freeman, Esquire

Jon M. Pellett, Esquire Freeman, Hunter & Malloy Suite 1950

201 East Kennedy Boulevard Tampa, Florida 33602

For Respondent: Allen R. Grossman

Lola M. Swaby

Assistant Attorneys General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in the case is whether the Respondent should grant the Petitioner’s application for licensure in Florida as a physician. Specifically, the Respondent asserts that the

Petitioner’s application should be denied based on alleged inability to practice medicine with reasonable skill and safety, and on the Petitioner’s alleged material misrepresentations made during the course of the licensing process.

PRELIMINARY STATEMENT

In February 1998, the Petitioner filed an application for licensure by endorsement as a physician in the State of Florida. The application was denied. The Petitioner requested a formal administrative hearing to challenge the denial. The Respondent forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner testified on his own behalf, and had Exhibits numbered 1 and 3-9 admitted into evidence. The Respondent presented the testimony of two witnesses, including late-filed deposition testimony, and had Exhibits numbered 4-5 and 7-11 admitted into evidence.

A Joint Prehearing Statement filed by the parties was admitted as an Administrative Law Judge’s exhibit.

A Transcript of the hearing was filed. The Respondent filed a Proposed Recommended Order.

The Petitioner filed a Motion for Attorney’s Fees and Costs.

The Petitioner also filed a Statement Concerning Filing of Proposed Recommended Order and Argument in Support of Proposed Disposition, wherein the Petitioner states that proposed findings of fact are contained within the Motion for Attorney’s Fees and

Costs. The Respondent filed a response and an amended response to the Motion for Fees, and separately moved to strike the Statement and the Motion for Fees. The Petitioner filed a response to the Motion to Strike. The Respondent filed a reply to the response. Upon review of the materials, the Motion to Strike is denied.

In the Motion for Attorney’s Fees and Costs, the Petitioner asserts that the Respondent has participated in this proceeding for an improper purpose. Section 120.595(1), Florida Statutes, provides that, in the case where the nonprevailing party participated in the proceeding for an improper purpose, the prevailing party may, upon the filing of a motion, be entitled to an award of reasonable attorney’s fees and costs. An "improper purpose" as defined at Section 120.595(1)(e), Florida Statutes, includes "participation in a proceeding . . . primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity."

The evidence indicates that the Respondent’s participation in this case was not intended primarily to "harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing." The severity of the 1991 incident, combined with the difficulty in obtaining the medical records related to the 1991 incident, and the Petitioner’s poor recollection of certain events, resulted in the appearance that

the Petitioner was attempting to conceal information from the Respondent.

Although the Petitioner’s erroneous recollection related to the unsuccessful medical procedure and his reluctance to address an implied relationship between a patient and a referring physician are deemed herein to be immaterial, there is no credible evidence that the Petitioner’s pursuit of the information was for an "improper purpose" as the term is defined. The Motion for Attorney’s Fees and Costs is denied.

FINDINGS OF FACT

1. In February 1998, Jean Joseph Lochard, M.D., filed an application for licensure by endorsement as a physician in the State of Florida.

2. As part of the application review process, the Petitioner disclosed that he had been involved in four malpractice claims during his medical career. Of the four, only one claim is at issue in this proceeding since it is the only one in which he was personally involved.

3. In 1991, the Petitioner performed a completion curettage on a patient who had come to his office for treatment.

4. At the time the patient arrived at his office, she was apparently in the process of spontaneously aborting a fetus. The Petitioner administered medication via an IV line prior to beginning the completion curettage. According to his medical records, he administered Demerol and Valium via the IV line.

5. There is no evidence that the administration of medication was inappropriate. There is no evidence that the administration of the medication failed to meet the appropriate standard of care.

6. After administration of the medication, the Petitioner began the completion curettage. At some point during the procedure, the patient’s breathing stopped.

7. The Petitioner did not monitor the patient during the procedure. The Petitioner was not aware that the patient’s breathing had stopped until after he had completed the curettage.

8. Upon noticing that the patient was not breathing, the Petitioner summoned another physician with whom he shared office space to assist in providing emergency services.

9. Although the Petitioner’s recollection of events subsequent to the completion of the curettage is disorganized, the evidence establishes that unsuccessful attempts were made to intubate the patient and to restore the flow of oxygen to the patient.

10. An emergency medical services team was summoned and arrived, but was unable to revive the patient. A second team was also called to the scene, and the patient was intubated and transported to a hospital, but the patient expired.

11. The Petitioner’s failure to monitor the patient’s condition during the procedure led to a delay in provision of emergency services when her respiration stopped.

12. The Petitioner testified that he no longer uses IV sedation in his office practice.

13. The Respondent’s expert witness, Dr. Charles L. Cooper, opined that it was below the standard of care to perform the completion curettage without monitoring the patient’s vital signs including the patient’s pulse, respiration, and blood pressure.

14. Dr. Cooper opined that the medication administered was not excessive.

    
    

15. Dr Cooper opined that the medical records related to the procedure and to the emergency services provided were adequate.

16. When asked whether the Petitioner is currently unable to practice medicine with reasonable skill and safety, Dr. Cooper was unable to offer an opinion.

17. When asked whether this sole incident was sufficient to indicate an inability to practice safely, Dr. Cooper testified that assuming there were no others, he was unable to opine that the Petitioner was unable to practice with reasonable skill and safety. There is no evidence that the Petitioner has been personally involved in any other incidents of malpractice.

18. The Respondent asserts that the Petitioner’s action related to this case establishes that he is not able to practice medicine with such reasonable skill and safety as to permit his licensure as a physician in the State of Florida. The evidence

    fails to support the assertion.

    
    

19. The Respondent asserts that during the licensing process, the Petitioner made material misrepresentations and attempted to conceal facts related to the malpractice case.

20. The Petitioner asserts that the "misrepresentations" are based on an alleged inability to review medical records prior to offering information to the Respondent. The Petitioner asserts that he was unaware that the Respondent would require a substantial level of information related to past malpractice claims.

21. Question no. 31 of the application requests historic information related to malpractice actions against an applicant. The Petitioner included the 1991 incident in his response to the question.

22. By letter dated June 18, 1998, the Petitioner was notified that the Credentials Committee of the Board of Medicine would meet with him to discuss the malpractice cases.

23. The Petitioner did not review the 1991 case records prior to his testimony before the Credentials Committee and his recollection as to certain details of the event was erroneous. There is no evidence that his erroneous testimony was intended to mislead or conceal facts material to this case.

24. The Petitioner did not have access to the 1991 records because they had been obtained by plaintiff’s counsel for use in the malpractice action brought by for the patient’s family. After the case was resolved, plaintiff’s counsel retained the records. The Petitioner did not retain copies of the records.

25. The Petitioner asserts that he did not have copies of the records and that, until counsel for the Respondent in this case located them, did not know where they were maintained.

26. The Respondent asserts that the Petitioner attempted to mislead the Board of Medicine as to the details of the medication administered to the patient during the completion curettage that led to her death.

27. At the Credentials Committee meeting, the Petitioner

    testified that he administered Demerol (75mg) and Phenergan (35mg) to the patient. During a later deposition, the Petitioner testified that he administered Demerol (75mg) and Phenergan (25mg, rather than 35mg) to the patient.

28. At the Credentials Committee meeting, the Petitioner testified that he did not use Valium when performing routine completion curettage in his office.

29. A review of the medical records, confirmed by the Petitioner, establishes that the Petitioner administered Demerol (75mg) and Valium (5mg) to the patient.

30. A review of the medical records establishes that he also administered Valium to the same patient two years earlier when performing a similar office procedure.

31. There is no evidence that the actual administration of medication was improper in this case.

32. Although the Petitioner’s statements relating to medication used in this procedure were in conflict, there is no evidence to establish that the misstatements were material. There is no evidence that the administration of any medication was improper. There is no evidence that that administration of Demerol and Phenergan would have been inappropriate had the Petitioner’s initial recollection of events been correct.

33. The Respondent asserts that the Petitioner attempted to conceal personal information related to the patient who died as a result of the 1991 incident. In his deposition testimony, the

    Petitioner stated he could not recall the name of the person who referred the patient.

34. Dr. Nazaire, a long-time friend of the Petitioner, referred the patient to the Petitioner. The Petitioner initially treated the patient in 1989 when she came to him for an abortion. The Petitioner testified that, to his knowledge, Dr. Nazaire was not the patient’s treating physician.

35. At hearing, the Respondent implied that the patient and the referring physician had some type of personal relationship. The evidence fails to establish any such relationship.

36. Although review of the Petitioner’s responses to questions related to the alleged relationship suggest that the Petitioner was reluctant to address these issues, there is no evidence that the existence of any alleged relationship is material to this case. There is no evidence that any alleged relationship impacted the care provided to the patient.

37. The Respondent asserts that the Petitioner attempted to mislead the Board of Medicine by suggesting that the patient died as a result of an anaphylactic reaction to the medication he provided during the completion curettage.

38. The Petitioner has opined on several instances that the patient could have suffered an anaphylactic reaction to the Demerol.

39. There is no credible evidence that the patient suffered from an anaphylactic reaction to medication. The credible

    evidence fails to establish any cause of death.

    
    

40. The Respondent asserts that the Petitioner attempted to mislead the Respondent by stating that he was unaware of the patient’s medical history prior to June of 1991.

41. At one point, the Petitioner appears to testify on deposition that he did not perform any surgical procedures on this patient prior to June of 1991. The evidence establishes that the Petitioner performed an abortion on the patient in 1989. The erroneous recollection appears to be the result of confusion and the Petitioner’s failure to review medical records and does not appear to be an attempt to mislead the questioner.

42. The Petitioner asserts that the Respondent has participated in this proceeding primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing. As set forth in the Preliminary Statement to this Recommended Order, the assertion is not supported by credible evidence.

    CONCLUSIONS OF LAW

    
    

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

44. The Board of Medicine is charged with the responsibility for licensure and regulation of physicians in Florida. Chapter 458, Florida Statutes.

45. The Petitioner has the burden of establishing

    entitlement to the licensure sought by a preponderance of the evidence. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (1st DCA 1977).

46. As grounds for the denial of his application for licensure, the Board of Medicine asserts that the Petitioner is unable to practice medicine with reasonable skill and safety. The evidence fails to establish that the Petitioner is incapable of practicing medicine with reasonable skill and safety.

47. By his own admission, the Petitioner stated that he no longer used IV sedation in his office practice, apparently recognizing the difficulty of performing a procedure and properly monitoring a patient without assistance. Yet, even the Respondent’s expert witness was unwilling to opine that all physicians should refrain from using IV sedation in office practices, and was further unwilling to opine that the Petitioner was incapable of practicing medicine with reasonable skill and safety.

48. As further grounds for the denial of his application for licensure, the Board of Medicine asserts that the Petitioner made numerous misrepresentations during the course of this proceeding sufficient to warrant denial of his application for licensure. The evidence fails to support the assertion, but rather establishes that the "misrepresentations" are immaterial to the issue of the Petitioner’s ability to practice medicine with reasonable skill and safety.

49. The Respondent suggests that the Petitioner actively concealed the records of the 1991 incident. There is no credible evidence that the Respondent acted to conceal the records.

50. There is no evidence that the Petitioner’s mistaken recollection and incorrect statements regarding the type of sedative administered to the patient in 1991 are material to the issue of whether the Petitioner is capable of practicing medicine with reasonable skill and safety.

51. The evidence establishes that administration of the medication that the Petitioner initially believed had been provided essentially would have been as appropriate as that which the medical records indicated was actually used.

52. The Petitioner was obviously disinterested in identifying the referring physician for the patient who died during the 1991 office procedure, or in suggesting any personal relationship between the referring physician and the patient. Nonetheless, there is no evidence that these details are material to issues involved in this case. There is no evidence that the medical care delivered to the patient was impacted in any manner by the existence or non-existence of any relationship between the patient and any other person.

53. Review of the Petitioner’s alleged attempt to ascribe the patient’s death to an anaphylactic reaction suggests that the Petitioner was attempting to offer an explanation for the otherwise inexplicable result that occurred.

54. Review of the testimony cited by the Respondent as supporting the assertion that the Petitioner had not previously treated the patient suggests that there was confusion regarding the questions asked, and fails to establish that the Petitioner was attempting to mislead the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order granting the Petitioner’s application for licensure.

DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 30th day of July, 1999.

COPIES FURNISHED:

Allen R. Grossman Lola M. Swaby

Assistant Attorneys General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Grover C. Freeman, Esquire Jon M. Pellett, Esquire Freeman, Hunter & Malloy Suite 1950

201 East Kennedy Boulevard Tampa, Florida 33602

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Tanya Williams, Executive Director Board of Medicine

Department of Health 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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-005479

Orders for Case No: 98-005479