STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 99-3723

) JOHN CHRISTOPHER CHAUVIN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 9, 2000, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: James Morrison, Certified Legal Intern

Albert Peacock, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: R. Bruce McKibben, Jr., Esquire

1301 Miccosukee Road

Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against Respondent's license to practice medicine, based on alleged violation of Section 458.331(1)(t), Florida Statutes.

PRELIMINARY STATEMENT

On January 30, 1999, Petitioner filed an Administrative Complaint against Respondent alleging that he violated Section 458.331(1)(t), Florida Statutes. Specifically, Petitioner alleged that Respondent was guilty of failing to practice medicine with an acceptable level of care, skill, and treatment as recognized by a reasonably prudent physician under similar circumstances. Respondent denied the allegations of the Administrative Complaint and requested an administrative hearing. Respondent's request was forwarded to the Division of Administrative Hearings.

At the hearing Petitioner presented the expert testimony of Jay Edelberg, M.D., and offered three exhibits into evidence.

Respondent testified on his own behalf but did not offer any exhibits into evidence.

After the hearing, Respondent and Petitioner filed Proposed Recommended Orders on April 7, and April 10, 2000, respectively.

FINDINGS OF FACT

1. Respondent is a licensed physician in the State of Florida. He has been licensed in Florida at all times material to this proceeding. He currently holds license no. ME 0063272.

2. Respondent has been practicing medicine for 20 years.

   
   

   He is certified by the American Association of Physician Specialist in Emergency Room Medicine. He has spent over 50,000

   hours working in an emergency room setting and has never had his license suspended, revoked, or otherwise sanctioned.

3. For approximately six to nine months in 1995-1996, Respondent was employed by a company which provided emergency room physicians to hospitals in the Central Florida region. On May 14, 1996, Respondent was providing services through that company at Glades General Hospital's emergency room.

4. S.A.R. is a 69-year-old male.

   
   

5. On May 14, 1996, S.A.R.'s wife called Emergency Medical Services (EMS), in connection with her husband, S.A.R. He was experiencing chest and epigastric pains. S.A.R. wore a nitroglycerin patch and had a history of heart disease.

6. In response to the wife's call, EMS arrived at S.A.R.'s home. The emergency medical technicians (EMTs) noted that patient S.A.R. complained of severe chest pain and that he was cool and moist. The EMT's placed S.A.R. on a heart monitor.

   The heart monitor showed that S.A.R. was experiencing multifocal premature contractions (PVC's).

7. Multifocal PVC's are a sign of an irritated heart.

   
   

   They are a risk factor for sudden cardiac death. S.A.R. was also experiencing abnormal, ectopic heartbeats consistent with heart disease. EMS gave S.A.R. Lidocaine and oxygen to reduce the irritability in his heart muscle and to suppress the abnormal heartbeats.

8. At approximately 9:10 p.m., EMS transported S.A.R. to the emergency room at Glades General Hospital in Belle Glade, Florida.

9. The Emergency Service Record concerning S.A.R. contains the following findings by the nurse who received the patient into the emergency room:

   1. Current medications: Axid 150 mg, Minitran 10 mg patch.

   2. Heart disease (Myocardial Infarction 20 years prior).

   3. Hernia.

   4. Patient complaining of epigastric pains since Friday (May 14 was Thursday).

   5. Pains come and go and are non-radiating.

   6. Skin is warm and dry, lungs are clear, and there is no respiratory distress.

   7. Oxygen is at 98 percent and there is strong pulse.

   8. Multifocal PVC "noted on cardiac monitor."

      
      

10. Respondent was among the admitting team who evaluated the patient. Respondent noted that S.A.R. was experiencing severe pains located in the epigastric area with some radiation to the chest. The pains would last approximately five minutes and then fade away. Respondent also learned that S.A.R. had experienced the pain for approximately one week long and had gone to see his regular physician about the chest pain the day before he came to the hospital. His physician had prescribed Axid.

11. Axid is a medication for indigestion. It takes some amount of time to become effective. Therefore it was not surprising to Respondent that S.A.R. had not gotten any relief

    25 hours after he had begun taking the indigestion medication.

    
    

12. Respondent took patient S.A.R. off the Lidocaine and ordered a GI Cocktail and a cardiac work-up.

13. A GI Cocktail coats the stomach lining and reduces stomach spasms. It is intended to act quickly. A cardiac work- up consists of placing a patient on a heart monitor, monitoring vital signs, observing for arrhythmias, performing an EKG, and drawing blood tests for abnormal electrolytes and cardiac enzymes.

14. A GI Cocktail will relieve chest pain. However, it will not normally alleviate cardiac pain in the chest area. In this case, all of S.A.R.'s pain and discomfort was relieved by the GI Cocktail, indicating that the epigastric pain was the reason for S.A.R.'s distress.

15. The nurses notes indicate that at approximately 10:15 p.m., S.A.R. was experiencing multifocal PVC's on the monitor. The nurses notes indicate a more serious heart condition.

16. The blood tests showed normal electrolytes and cardiac enzymes, indicating that S.A.R.'s heart was not the problem. Respondent did not find any evidence of a possible cardiac problem from his review of the patient's symptoms, from the test

    results, or by way of his personal observation of the patient. Respondent did not observe any multifocal PFC. He did observe that S.A.R.'s heart was not normal due to heart disease.

17. Respondent diagnosed the patient with Gastritis, and released patient S.A.R. at approximately 10:30 p.m.

18. The heart strips introduced into evidence did not show multifocal PVCs. They did show an abnormal heart beat consistent with heart disease.

19. However, S.A.R. had numerous risk factors for a heart attack, including:

    1. Patient S.A.R. was a 69-year-old male.

    2. Patient S.A.R. suffered from coronary artery disease.

    3. Patient S.A.R. suffered a myocardial infarction approximately twenty years earlier.

    4. Patient S.A.R. was taking nitroglycerin for his heart condition as evidenced by a patch on his arm.

    5. Patient S.A.R. experienced multifocal PVC's on the cardiac monitor in the ambulance.

    6. Patient S.A.R.'s EKG taken in the hospital displayed unifocal PVC's and was abnormal, showing damage to two of the three electrical conduction bundles.

    7. Patient S.A.R. was cold and clammy when EMS first arrived.

       
       

20. In this case, there is no way to know if S.A.R.'s pain was related to his heart. However, there is no way to rule out S.A.R.'s pain was caused by his heart.

21. Approximately sixteen hours later, patient S.A.R. returned to the emergency room in full cardiac arrest. On May 15, 1996, seven and one-half hours later, he had another

    heart attack and died, of a myocardial infarction. There is no evidence that S.A.R.'s earlier emergency room visit was the cause of his later demise or that admission to the hospital would have prevented S.A.R.'s later demise.

22. Petitioner's expert witness found that Respondent's treatment of S.A.R. was appropriate. That is, he ordered the proper test and treated the epigastric pain properly. In fact, his diagnosis that the problem was "GI in origin" was, according to Dr. Edelberg, statistically correct.

23. Petitioner's expert concluded that Respondent could not rule out coronary ischemia and therefore should have tried to admit S.A.R. to the hospital for observation. The standard of care is for an emergency physician to evaluate a patient based on the worst case suggested by the symptoms even if statistically not the most probable.

24. Based on patient S.A.R.'s past history and his current symptoms, the standard of care required Respondent to admit this type of patient into the hospital for observation.

25. In failing to admit patient S.A.R. into the hospital for observation, the Respondent deviated from the standard of care required by a reasonably prudent similar physician under

    similar circumstances and conditions. Other than this one violation there is no evidence that Respondent is incompetent to practice medicine.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.57(1) and 455.225, Florida Statutes.

27. Pursuant to Section 458.331, Florida Statutes, the Board of Medicine is empowered to revoke, suspend, or otherwise discipline the license of a physician for violations of Section 458.331, Florida Statutes. Section 458.331, Florida Statutes, states in pertinent part:

    (1)(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. 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 judgment 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 recommended by a reasonably prudent similar physician under similar conditions and circumstances," shall be construed to require that a physician be

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

    
    

28. Section 766.102(4), Florida Statutes, states in relevant part:

    The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider.

    
    

29. When the Board of Medicine 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 or suspension of a license.

    3. Restriction of practice.

    4. Imposition of an administrative fine not to exceed $5000 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 re-examination, or to work under the supervision of another physician.

    7. Issuance of a letter of concern.

    8. Corrective action.

    9. Refund of fees billed to and collected from the patient.

30. Disciplinary licensing proceedings are penal in nature. State ex re. Vining v. Florida Real Estate Commission,

    281 So. 2d 487 (Fla. 1973). In this disciplinary proceeding, Petitioner must prove the alleged violation of Section 458.331(1)(t), 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).

31. There is clear and convincing evidence that patient

    
    

    S.A.R. presented to Respondent with numerous warning signs of a heart attack. Those signs were the patient's age, history of coronary heart disease, abnormal EKG readings, irregular heartbeats, and presenting symptomology.

32. In this case, there is no evidence Respondent failed to diagnose or treat a patient's condition. There is no clear evidence S.A.R. had a 'condition' other than epigastric discomfort. In fact, no one could say that the patient's heart attack would not have occurred (or that S.A.R. would have survived it) had Respondent admitted S.A.R. to the hospital. However, given all the circumstances of this case, heart eschemia could not be ruled out as the cause for S.A.R.'s pain. Respondent in ruling out a potential underlying cause violated the standard of care for emergency physicians. Respondent's action was not gross or repeated malpractice. It was negligent. There was no evidence that Respondent is otherwise incompetent.

    Likewise, there was no evidence that Respondent's infraction warranted more than a minimal penalty.

33. This case comes down to a purely speculative assertion by Petitioner as to whether a patient, presented to the emergency room with gastric pain, had enough symptoms or red flags to have required hospitalization - based on the level of care provided in the area by reasonably prudent health care providers. There is no evidence to support his contention.

RECOMMENDATION

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

is

RECOMMENDED:

That Petitioner Department of Health, Board of Medicine enter a final order finding Respondent John Christopher Chauvin, M.D., guilty of violating Section 458.331(1)(t), Florida Statutes, and imposing upon the Respondent the following penalty: A Reprimand from the Board of Medicine and that Respondent, within two years take twenty-five hours of continuing education in the treatment of myocardial infarction in addition to any hours required for license renewal.

DONE AND ENTERED this 12th day of May, 2000, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2000.

COPIES FURNISHED:

James Morrison, Certified Legal Intern Albert Peacock, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

R. Bruce McKibben, Jr., Esquire 1301 Miccosukee Road Tallahassee, Florida 32308

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

William Langue, General Counsel Department of Health

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Tanya Williams, Executive Director 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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 99-003723

Orders for Case No: 99-003723