STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 00-1021

) DIANA DEANE CARR, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Sebring, Florida, on August 28-29, 2000.

APPEARANCES

For Petitioner: John E. Terrel

Ephraim D. Livingston

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Jon M. Pellett

Barr Murman

201 East Kennedy Boulevard, Suite 1750 Tampa, Florida 33602

STATEMENT OF THE ISSUES

The primary issue is whether Respondent is guilty of deviating from the applicable standard of care in practicing medicine, in violation of Section 458.331(1)(t), Florida Statutes, and, if so, the penalty. Additional issues are whether Petitioner is liable for any of Respondent's attorneys' fees and

costs and the rates at which opposing parties must compensate specific expert witnesses.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 27, 1999, as amended by pleading filed August 23, 2000 (Amended Administrative Complaint), Petitioner alleged that Respondent is a licensed physician, holding license number ME 0040000.

The Amended Administrative Complaint alleges that M. V., a 78-year-old female, was admitted to Highlands Regional Medical Center, in Sebring, on May 28, 1996, for the purpose of a total knee replacement to be performed by Respondent. The Amended Administrative Complaint alleges that Respondent performed the procedure the next day. The Amended Administrative Complaint alleges that, on the morning following the surgery, a vascular surgeon, whom Respondent had consulted, ordered an arteriogram, which revealed an occluded superficial femoral artery cutting off circulation.

Late in the afternoon of the day following the total knee replacement, M. V. was allegedly transferred to Florida Hospital South for a vascular reconstruction procedure. The Amended Administrative Complaint alleges that the vascular reconstruction procedure, which revealed a near-total transection of the artery, was unsuccessful, and a surgeon had to amputate M. V.'s nonviable right leg above the knee.

The Amended Administrative Complaint alleges that Respondent deviated from the applicable standard of care by transecting the popliteal artery during surgery, delaying in consulting a vascular surgeon, warming the leg so as to compromise the tissues of the leg, failing to assure a prompt revascularization, and not reacting aggressively enough the night following the surgery in treating a patient with a vascular insufficiency.

As set forth in the Joint Prehearing Stipulation filed August 8, 2000, Petitioner sought to impose discipline against Respondent for a violation of Section 458.331(1)(t), Florida Statutes, as a result of Respondent’s transection of the popliteal artery during knee-replacement surgery and failure to treat the problem after the surgery. The effect of the amendment, which the Administrative Law Judge allowed over the objection of Respondent, was to disjoin these conjunctive allegations, so that proof of either allegation would result in discipline.

Shortly before the hearing, disputes arose concerning the compensation due expert witnesses who were retained by one party, but sought to be deposed by the opposing party. Consistent with Engel v. Rigot, 434 So. 2d 954 (Fla. 3d DCA 1983), the Administrative Law Judge required the witnesses to present themselves for prehearing depositions, subject to the setting of reasonable expert witness fees in this Recommended Order.

At the hearing, Petitioner called four witnesses and offered into evidence 13 exhibits: Petitioner Exhibits 1-7 and 10-15; Respondent called three witnesses and offered into evidence 20 exhibits: Respondent Exhibits 1 and 3-21. All exhibits were admitted.

However, Petitioner did not file Petitioner Exhibit 11, which was reserved for the transcript of the posthearing deposition of Dr. Stephen Schreiber. At the conclusion of the hearing on August 29, 2000, the Administrative Law Judge entered an order setting forth deadlines for various posthearing activities. As memorialized in the Order on Posthearing Activities entered September 1, 2000, the Administrative Law Judge gave Petitioner through September 19, 2000, within which to take Dr. Schreiber’s deposition and September 26, 2000, within which to file the deposition transcript.

On September 19, 2000, Petitioner filed a Motion to Amend Order on Post Hearing Activities. In this motion, Petitioner stated that, due to a two-day hearing attended by Petitioner’s counsel on September 5 and 6, the first date available for

Dr. Schreiber’s deposition had been September 15. Petitioner had planned to participate by telephone, but the telephone had malfunctioned and the deposition had been cancelled, even though Dr. Schreiber, counsel for Dr. Schreiber, and counsel for Respondent had been present in the doctor’s office and otherwise

prepared to proceed. Petitioner requested leave to reschedule the deposition for September 25.

On September 20, 2000, Respondent filed a Response to Petitioner’s Motion to Amend Order on Post-Hearing Activities. In this response, Respondent objected to the extension of time, noting, among other things, that Petitioner had set the deposition for after-business hours, when Dr. Schreiber would

have no staff available to help with the telephone; Dr. Schreiber had waited 45 minutes before announcing that he could wait no longer for the deposition to start; and Respondent had expended over $800 in securing her counsel’s appearance at the failed deposition.

On September 21, 2000, the Administrative Law Judge entered an Order Denying Motion, which denied Petitioner’s request for an extension of the deadline within to take the deposition of

Dr. Schreiber.

The court reporter filed the Transcript on September 19, 2000.

FINDINGS OF FACT

1. Respondent is a licensed physician, holding license number ME 0040000. Respondent has not previously been the subject of disciplinary action.

2. Respondent has been Board certified in orthopedic surgery since 1984 and has held a subspeciality certificate in hand surgery since 1995.

3. After completing a residency in orthopedic surgery, Respondent entered private practice in Sebring in 1989. From 1981 to 1998, Respondent performed 6-10 total knee replacements annually. A couple of years ago, Respondent restricted her practice to surgery on the upper extremities, especially the hand, and discontinued performing surgery on the lower extremities. In the past couple of years, Respondent has done most of the hand surgery in Sebring.

4. Respondent first examined M. V. on April 18, 1996.

   
   

   M. V. was a 78-year-old female referred by her treating physician for severe pain in both of her knees. M. V. suffered from severe pulmonary edema, severe osteoarthritis of both knees and hips, borderline Type II diabetes, chronic renal failure, and severe arteriosclerotic heart disease with cardiomegaly. The osteoarthritis caused her significant pain and forced her, since 1981, to rely on a walker or wheelchair to ambulate. Because of the osteoarthritis, M. V.’s knees were fixed and had a limited range of motion of about 30 degrees from 30-60 degrees. M. V. is also deaf and speaks only Spanish, but her bilingual daughter remained with M. V. much of the time that M. V. was in the hospital.

5. M. V.’s primary physician had recommended a bilateral knee replacement in order to relieve the pain from which M. V. was suffering. The primary physician cleared M. V. for surgery immediately before her hospitalization.

6. Following the April 18, 1996, office visit, Respondent scheduled M. V. for surgery on May 6, 1996. Respondent decided to replace the right knee first and, after M. V. had recovered, replace the left knee.

7. M. V. was admitted to Highlands Regional Medical Center in Sebring on May 6, but, shortly after her admission, became very nervous, exhibiting shortness of breath, respiratory distress, and atrial fibrillation. Rather than perform the knee replacement, it became necessary to intubate M. V. for a couple of days and retain her in this hospital for one week. It appears that M. V. suffered a panic attack, which precipitated an asthma- like attack, which put M. V. into severe congestive heart failure.

8. Two findings from physical examinations during M. V.’s one-week hospitalization are relevant. On May 5, 1996, the examining physician found that M. V.’s pulses were felt equally “on both sides” of otherwise unidentified “extremities.” On

   May 13, 1996, a different examining physician noted that M. V.’s pulses were “faint” at unidentified “extremities.” The record does not disclose whether “extremities” means the patient’s legs or arms or both legs and arms, but they probably involve the legs.

9. Following M. V.’s discharge from the hospital on May 13, Respondent next saw her when she was readmitted to Highlands Regional Medical Center for a second attempt at replacing the

   right knee. The surgery was scheduled for May 29, 1996, but Respondent had M. V. admitted the prior evening to reduce her anxiety and allow the anesthesiologist to administer sedation to prevent another panic attack.

10. Pulses are of crucial importance in this case. There are two relevant means of taking pulses: palpation or Doppler.

    A person takes a Doppler pulse by means of an augmented listening device. A person takes a palpated pulse by means of touch, such as at the wrist.

11. For taking pulses, there are several locations of importance in this case. The dorsalis pedis pulse is taken from the top of the foot from at or below the ankle. The posterior tibial pulse is taken from the back of the leg below the knee and above the ankle. A radial pulse is taken at the wrist. An apical pulse is taken by listening directly to the heartbeat.

12. The most important anatomical feature in this case is the popliteal artery. This is the artery that starts at the adductor at the end of the femoral artery above the knee, proceeds behind the knee, and ends at a branch, which marks the upper end of the anterior and posterior tibial arteries.

13. Another important anatomical feature in this case is collateral circulation. Collaterals are compensating, secondary circulatory vessels subordinate to the primary vessel of an artery.

14. Other terms of importance in this case are distal and proximal locations. When referring to arterial blood flow, this recommended order sometimes refers to these terms, respectively, as downstream and upstream. In this case, a distal location is toward the foot, and a proximal location is toward the main trunk.

15. Following M. V.’s second admission, the initial nursing assessment performed at 8:25 p.m. on May 28 discloses no edema and “clear” pulses on the right and left, but otherwise unidentified, extremities. However, about four hours later, the nursing assessment reports edema and only “faint” pulses on the right and left extremities. At neither time, though, was there a notation of coldness or discoloration of the extremities. At about midnight, M. V.’s vital signs were temperature--98.3,

    pulse--82, respiration--16, and blood pressure--132/64.

    
    

16. References to “extremities” in the nursing assessments are to the lower extremities. The nursing assessment form lists, under “Cardiovascular,” several items under “Pulse.” The first and second rows are “Apical” and “or Radial” with adjoining columns supplying places for the nurse to mark whether the pulse is regular or irregular and strong or faint. The third row is “Extremity pulse.” Next to this item is a single place for a nurse to mark “NA,” which is either not available or not applicable. However, immediately beneath this item are two

    rows--one marked left and one marked right--and three strength

    levels: clear, faint, and absent. Immediately under these three strength levels are four additional rows: “Extremity feels cold,” “Extremity is discolored,” “Edema is present,” and "pitting or nonpitting." Thus, analysis of the nursing assessment form reveals that nurses chart pulses in the upper extremities in the row marked “Apical” or “Radial” and pulses in the lower extremities in the rows beside and under “Extremity pulse.”

17. Other facts also support the interpretation of “extremities” on the nursing assessment forms as legs or feet, not arms or hands. As noted below, at midnight following the surgery, the nursing assessment reports no pulse in the left or right extremity. At no time did M. V. ever lose her pulse in the upper extremities, so this reference is clearly limited to the lower extremities. Also, it is highly unlikely that the nursing staff would not take pulses in the lower extremities, below the knee, after a knee replacement. Lastly, the nurse’s narratives for midnight and 4:30 a.m., which are attached to the nursing assessments, reveal the nurse was taking a pedial pulse.

18. For these reasons, this Recommended Order treats all pulse data from extremities in the nursing assessments as pulse data from the foot or leg below the knee.

19. Respondent commenced the surgery to replace the right knee on May 29 at 11:00 a.m. The surgery proceeded uneventfully and ended at 12:45 p.m.

20. The anesthesiologist administered spinal anesthesia to

    
    

    M. V. Respondent used a foot holder to flex the knee. Respondent then exsanginuated the right leg using an Esmarch, wrapping the leg from the toes to the tourniquet, to force the blood back into the trunk. Respondent inflated the tourniquet, which was placed as high toward the groin as possible. The inflated tourniquet remained in place for 102 minutes.

21. After making a straight midline cut to the extended knee, Respondent flexed the knee up, to push the artery away from the back of the knee. After opening up the knee joint, the first major task that Respondent performed was to prepare the end of the femur for a rod, after which she worked with the tibia, pulling it forward and preparing it.

22. Using preoperative X-rays to guide the cutting angle, Respondent attached a cutting jig to the top of the tibia. Respondent applied retractors behind the knee to remove the artery, veins, and nerve from the reach of the blade. The veins and artery travel together through the knee, and the nerve is posterior to the veins and artery. The artery, veins, and nerve are encapsulated by soft tissue that surrounds the knee.

23. The sawblade that Respondent used is too short to reach the back of the knee. The sawblade would chew up, rather than cut, soft tissue, such as an artery, due to the blade’s oscillating teeth, which are intended to cut bone.

24. M. V.’s right knee already had undergone considerable erosion in the tibia, so Respondent was not required to do much cutting ,if any, to prepare the tibia to accept the prosthesis. In general, Respondent described the entire surgical procedure as proceeding more smoothly than typical knee-replacement surgery.

25. After installing the prosthesis, Respondent placed a drain, sewed the capsules, sewed the subcutaneous skin, sewed the skin, dressed the wound, wrapped the wound in a couple of Ace bandages, and deflated the tourniquet. Respondent wrapped the second Ace bandage a little tighter to prevent tissue oozing and eliminate the need for a transfusion. Respondent then directed that ice bags be placed around the right knee.

26. The purposes of the drain are to remove blood that could cause bacterial infection into the knee and to identify pools of occult blood. M. V.’s drain received an average to low- average volume of blood, which is consistent with a smooth surgical procedure. The color of the drained blood was dark, suggesting that the bleeding was from a vein in the bone marrow or tissues, rather than from an artery.

27. M. V. was taken to the recovery room at 1:00 p.m. and remained in the post-anesthesia care unit until 4:00 p.m. When Respondent visited M. V. in the recovery room, a nurse informed Respondent that M. V. was cool and the nurse was having trouble finding a pulse in the lower extremity.

28. After being told by a nurse in the recovery room that she was having trouble detecting a pulse in M. V.’s lower leg, Respondent determined that M. V. was unlikely suffering from a cardiovascular problem because her blood pressure was normal. Deciding to check the dressing to see if it was too tight, Respondent removed the second Ace bandage, which had been in place only 15 minutes, but found that the dressing was not too tight. Respondent found a pulse in the right foot by Doppler, although not by palpation.

29. In addition to a weak pulse, M. V. was also cold, pale, and shivering, despite the nurses’ attempts to warm her. Respondent ordered a nurse to apply a warmed blanket to M. V.’s leg for a few minutes to improve circulation.

30. Ordering a pulse oximeter reading, Respondent found that M. V.’s oxygen level was only 86 percent at the right foot, while she averaged 96 percent in the hand. A reading of oxygen saturation of arterial blood, pulse oximeter values normally are 95-99 percent. However, Respondent claims that she thought at the time that vascular insufficiency in M. V.’s lower extremity could account for the difference in oxygen levels because a pulse oximeter does not efficiently register oxygen levels in static blood. The anesthesiologist testified that an 86 percent reading is not unusual for a person suffering from severe peripheral vascular disease. On the other hand, M. V. was receiving oxygen, which could have generated an artificially high reading.

31. Soon, however, M. V. began to warm, and her lower- extremity pulse strengthened. Respondent left the recovery room, and M. V.’s remaining time in the recovery room was uneventful.

32. When M. V. returned to her room at 4:00 p.m. on May 29, her vital signs were temperature--96.6; pulse--80;

    respiration--20; and blood pressure--200/100. The drain continued to capture dark red blood. M. V. was receiving fluids intravenously and still receiving oxygen. She cried out in pain whenever her right leg was touched, although this is not unusual after knee-replacement surgery. The nursing assessment done at 4:00 p.m. on May 29 states that M. V.’s pulses were “clear” on the right and left legs, although edema remained.

33. At 4:15 p.m., M. V. began to receive 6 mg of morphine intramuscularly every four hours for pain. A physical therapist also installed a CPM machine, which, by moving the right lower extremity, assists in the recovery process. M. V.’s attempts to disconnect the intravenous line and oxygen necessitated the administration of wrist restraints.

34. At 4:30 p.m., the nurses paged Respondent due to

    
    

    M. V.’s elevated blood pressure. Respondent ratified the earlier decision to apply wrist restraints, ordered the nurses to check

    M. V.’s circulation every two hours and loosen the restraints as needed, and advised the nurses to contact M. V.’s physician concerning the elevated blood pressure.

35. Except for the hypertension, which responded to medication by 2:20 a.m. on May 30, M. V. did not present anything unusual for the next seven hours. At midnight, the nurse noticed that M. V.’s right foot was “cold to touch,” and the nurse could not find a pedial pulse by palpation. The nursing assessment reports absent pulses in both legs. M. V.’s “feet nailbeds” were cyanotic. Her vital signs were temperature--98; pulse--92; respiration--20; and blood pressure--208/104. M. V. continued to complain of pain upon movement, the CPM was still flexing the right lower extremity, and the knee remained packed in ice.

36. When a nurse telephoned Respondent at about 12:15 a.m. on May 30 and informed her of M. V.’s condition, Respondent immediately dressed and came into the hospital. Examining M. V. at 12:40 a.m., Respondent removed the dressing to examine the wound and perhaps improve circulation if the dressing had bunched up. Because the sling of the CPM machine can impede circulation in the calf branches from the popliteal artery, Respondent disconnected the CPM machine and directed the nurses not to reconnect it.

37. Respondent was unable to detect, by palpation or Doppler, a pulse in the right ankle, but she found a pulse in the right popliteal artery. Based on her assessment of the sound of the pulse, Respondent concluded that M. V. had a functioning right popliteal artery or substantial collaterals compensating for a blocked popliteal artery. Respondent hypothesized that

    M. V. was experiencing a blockage somewhere between the knee and ankle.

38. Respondent examined M. V.’s calf to check for arterial bleeding or swelling sufficient to block an artery. However, the calf was soft and exhibited no swelling or tightness. Notwithstanding M. V.’s disorientation from pain medication and anesthesia, Respondent was able to determine that M. V.’s gross sensation was intact.

39. Aware that M. V. was suffering from some sort of vascular problem, but unsure what it was, Respondent called Dr. Albert Bajohr, a local vascular surgeon. She informed Dr. Bajohr that M. V. was a 78-year-old diabetic with faint

    pulses in the foot. Respondent stated that M. V. had undergone a total knee replacement without any problems, but, following surgery, the patient had chilled and lost her pulse, although the nurses had warmed her and her pulse had returned. Respondent concluded her description of the patient by stating that M. V. had remained in satisfactory condition until midnight when she had again lost her pulse below the popliteal artery and had become cooler, although she had retained gross sensation.

40. Dr. Bajohr recommended Heparin and, at Respondent’s suggestion, Hydergine, which would prevent clotting and might help collateral circulation. Dr. Bajohr stated that he would see

    M. V. early the following morning, unless he was needed sooner.

41. The nursing assessment done at 4:30 a.m. on May 30 reveals that M. V.’s pedial pulse remained undetectable by palpation and that her foot remained “cold to touch.” The nursing assessment done at 5:40 a.m. reveals that M. V.’s pedial pulse was undetectable by palpation or Doppler, and her foot was “purple” and “cool to touch.” Her foot had cooled even more since midnight.

42. A nurse called Respondent, who directed the nurse to call Dr. Bajohr. At 6:30 a.m., Dr. Bajohr ordered an immediate arteriogram. Due to the misunderstanding of the radiologist, who scheduled the arteriogram for May 31, the radiology department did not perform the arteriogram for at least three hours.

43. The nursing assessment done at 7:00 a.m. on May 30 reports that the pulse for the left leg was clear, but the pulse for the right leg was absent, and the right leg was cold and discolored.

44. At some point during May 30, probably before the performance of the arteriogram, M. V.’s primary physician examined her. His report notes that M. V.’s right foot was “clammy and cold,” pulses below the right knee were absent, and femoral and popliteal pulses “seemed to be present” in the right leg. Among his diagnoses were arteriosclerotic heart disease and to rule out congestive heart failure and peripheral vascular disease of the right foot.

45. A right femoral arteriogram revealed “peripheral vascular disease with occlusion.” The report, which was dictated on May 30 and transcribed on May 31, finds “severe atheromatous plaque with total occlusion at the distal end of the superficial femoral artery near the adductor canal region.” The report adds: “Extensive collateral vessels are noted in the knee and calf area; however, no significant reconstitution of any of the major calf vessels were[sic] evident.”

46. The arteriogram exposures did not visualize the popliteal artery, although they did reveal that no dye had entered the surrounding tissues anywhere in the exposed area. This fact is consistent with the finding that the artery immediately proximal, or upstream, of the occlusion was intact.

47. The radiologist determined from the arteriogram that the calf vessels were also occluded and that collateral circulation had not reached the calf vessels. The radiologist identified the location of the occlusion at 3 cm above the start of the popliteal artery and noted that a 3-4 inch clot upstream of the popliteal artery would prevent leakage from that artery into surrounding tissue, if the artery were cut.

48. The prospects of saving M. V.’s leg had diminished by the time that Respondent and Dr. Bajohr received the arteriogram report. Declining to attempt bypass surgery himself, Dr. Bajohr suggested to Respondent that she contact an Orlando vascular surgeon, Dr. Stephen Schreiber, who had considerable experience

    with bypass procedures and might be able to save the leg. Respondent telephoned Dr. Schreiber, who agreed to treat M. V. Respondent then arranged for M. V. to be transferred to Florida Hospital South in Orlando. However, the time involved in obtaining consents from M. V.’s family, Dr. Schreiber, and Florida Hospital South and transport M. V. from Sebring to Orlando occupied much of the day, so that M. V. was not admitted to Florida Hospital South until 4:30 p.m. on May 30.

49. According to Dr. Schreiber's report, Dr. Schreiber attempted a revascularization on May 30 of M.V.'s left leg. Dr. Schreiber made a longitudinal cut, inserted a Fogarty catheter, and removed a large thrombotic plug. The artery produced “vigorous” bleeding, and Dr. Schreiber suspected a proximal, or upstream, arterial injury. He controlled the bleeding with digital pressure, quickly exposed more of the artery, and found “a large, essentially almost complete transection of the artery involving approximately three-quarters of the arterial wall just in the popliteal space.”

50. Bypassing the injured artery, Dr. Schreiber reestablished blood flow and detected a strong pulse in the graft, as well as distally, or downstream, in the tibial vessels. He found good capillary refill downstream, but could not detect a Doppler pulse. Dr. Schreiber concluded that M. V. suffered either from spasm or significant disease.

51. Due to the advanced deterioration of the lower leg from a prolonged period of ischemia, Dr. Schreiber was unable to complete a bypass. The following day, another surgeon amputated

    M. V.’s right leg above the knee.

    
    

52. The pathology report states that, after dissection, the popliteal, posterior tibial, and anterior tibial arteries all displayed “severe arteriosclerosis and calcification.”

53. Dr. Schreiber did not describe the condition of the capsule, which would have been between the artery and the sawblade. Nor did he describe the condition of the vein; although behind the artery, which is like a hose, the vein, which is like tissue paper, would likely have been injured if the artery had been cut.

54. For the reasons noted in the Preliminary Statement, Dr. Schreiber’s testimony is not part of the record.

55. The record indisputably reveals poor vascularization of both of M. V.’s legs. The post-amputation examination of the vessels revealed that M. V.’s right leg suffered “severe arteroisclerosis and calcification.” Pre-operatively, M. V. displayed faint pulses in both extremities upon her discharge from the initial hospitalization on May 13. Post-operatively,

    M. V.’s underlying circulatory problems manifested themselves, bilaterally, in the absence of pulses both legs following the knee-replacement surgery on May 29, the deterioration of pulses in both legs from clear to faint on the evening prior to the

    surgery, and the absence of pulses in both legs at midnight during the night following surgery. These circulatory deficits in the left leg, on which no surgery took place, establish a baseline of significant peripheral vascular disease, pre- operatively, in both legs.

56. Undoubtedly, M. V.’s peripheral vascular disease complicated her recovery from the trauma of knee-replacement surgery. During the initial hospitalization, merely the anxious anticipation of the surgery probably produced a variety of adverse physical effects. Actually undergoing surgery, M. V. suffered, among other traumas, exsanguination of the left leg through the application of an Esmarch, application of a tourniquet for 102 minutes, and chilling in an operating room for nearly two hours. None of these factors would have had a positive effect upon M. V.’s already-compromised circulatory system in her lower extremities. In fact, subsequent to the time in question, use of the Esmarch on a patient with M. V.’s circulatory complications was contraindicated.

57. It is impossible to determine whether Respondent accidentally transected the popliteal artery during surgery. Normally, such a transection would be obvious, as blood would surge from the severed artery, at least after the release of the tourniquet. However, a largely or intermittently occluded artery would not produce such a flow of blood.

58. Several factors militate against a finding that Respondent accidentally cut M. V.’s popliteal artery during surgery. Although M. V.’s right leg suffered circulatory problems, as reflected by pulse and temperature, in the recovery room, a short time later the circulatory problems resolved themselves with the conservative treatment of warming the leg.

59. Although M. V. continued to suffer serious circulatory problems in her right leg, these problems were accompanied by the presence, intermittently, of a good pulse from the popliteal artery or a vigorous set of collaterals, according to the examination by Respondent at 12:40 a.m. on the night following the surgery and the examination by M. V.’s personal physician six to ten hours later. A good pulse in the popliteal artery is inconsistent with its severance. A good pulse in collaterals around an occluded popliteal artery is inconsistent with subsequent damage from ischemia to distal portions of the anatomy arising from the severance of an occluded popliteal artery.

    Also, as noted above, the display of intermittent disruptions of pulse in both lower extremities was not unusual for M. V.

60. Nonetheless, M. V.’s popliteal artery suffered a cut, which was discovered shortly after Respondent had replaced her right knee. It is unlikely that the sawblade would have made such a cut because the blade chews up soft tissue, and Dr. Schreiber would have presumably described a chewed-up artery. There is no indication of the severance of other features, such

    as the capsule or veins, which likely would have been cut if Respondent had cut the popliteal artery.

61. Respondent suggests that Dr. Schreiber may have cut the artery. However, his incision is longitudinal, or perpendicular to the transverse cut actually found on the artery, so it is unlikely that Dr. Schreiber caused the damage to the artery.

62. Other possible explanations are some injury to the artery during the exsanguination of the leg, application of the tourniquet, or operation of the CPM machine post-operatively. However, the record does not establish any of these elements as the cause of the injury to the artery, even one as calcified and diseased as M. V.’s popliteal artery.

63. One puzzling aspect of this case is Dr. Schreiber’s description of his findings. He reported backbleeding when he removed the clot. However, it appears that the bleeding was infill bleeding, which is downstream from the heart, rather than backbleeding, which is upstream toward the heart. The bleeding was quite vigorous, and, as already noted, Dr. Schreiber immediately suspected a proximal, or upstream, injury to the artery.

64. However, if the bleeding and cut were proximal, or upstream, of the occlusion, the relationship between the cut and the occlusion would be reversed. As reported by the arteriogram,

    M. V. had a clot just proximal, or upstream, of the popliteal artery, and Dr. Schreiber removed this clot, which, again, was

    just upstream of the popliteal area. Thus, it does not make any sense that Dr. Schreiber found the cut upstream of the clot; nothing in the arteriogram disclosed bleeding in this area, nor did Respondent cut tissue upstream of the clot. Additionally, if the cut were actually upstream of the clot, then, absent a showing that the clot formed after the cut, the cut may not have had any bearing on the health of the distal portion of the right lower extremity.

65. If, on the other hand, Dr. Schreiber were actually controlling backbleeding, then the cut would be in the proper relationship to the occlusion--i.e., distal or downstream. However, this situation is undermined by Dr. Schreiber’s description of his suspicion of bleeding from an upstream location.

66. One of Petitioner’s expert witnesses seemed to have had trouble with these contradictory findings. Dr. Alvin Stein testified at the final hearing that the bleeding encountered by Dr. Schreiber emerged from a cut upstream of the occlusion. However, he admitted that, during his deposition, he had testified that the bleeding was actually backbleeding, from a cut downstream of the occlusion. At the final hearing, Petitioner’s other expert witness, Dr. Martin Hale agreed that the bleeding encountered by Dr. Schreiber had emerged from a cut upstream of the occlusion.

67. A more important variability in expert testimony, though, took place between Dr. Stein and Dr. Hale. Dr. Stein opined that the deviation from the standard of care was in Respondent’s failure to recognize timely that she had cut the popliteal artery, not in the laceration of the artery itself. Dr. Hale opined that the deviation from the standard of care was in Respondent’s cutting of the popliteal artery, not in the post- operative decisionmaking.

68. Dr. Stein and Dr. Hale are both orthopedists with little recent experience in knee replacements and no significant experience in vascular surgery. Dr. Stein discontinued his surgical practice at the end of October 1995, after having done 2-4 knee replacements annually before that time. Dr. Hale has not performed a knee replacement for at least five or six years and did only 1-2 such procedures annually prior to that time.

69. Dr. Hale testified that he was unconvinced that the loss of M. V.’s leg was caused by the laceration of the artery by Respondent. He opined that the right leg was close to nonviable before the surgery and that the swelling from the surgery and the occlusion of the femoral artery exacerbated the situation. Dr. Hale added that he based his opinion that Respondent cut the popliteal artery on Dr. Schreiber’s notes and that nothing in the other records compels such a finding. Dr. Hale concluded that, absent Dr. Schreiber’s finding of a transected artery, Dr. Hale would testify that Respondent met the standard of care.

70. In sum, one of Petitioner’s experts testified that Respondent’s transection of the artery was not a deviation from the standard of care, and one of Petitioner’s experts testified that Respondent’s post-operative handling of M. V. was not a deviation from the standard of care. Both of Respondent’s experts testified that Respondent did not deviate from the standard of care in any respect.

71. The Administrative Law Judge credits the testimony of Dr. Hale, as well as that of Respondent’s experts, that Respondent’s post-operative care of M. V. met the standard of care in all respects. Respondent adequately responded to her patient’s needs. Although conservative in her response, Respondent did not unreasonably delay in consulting with a vascular surgeon, especially given the earlier success enjoyed by her conservative approach in the recovery room when Respondent ordered only the application of a warming blanket. Perhaps the most serious delay was in the failure of the nursing staff to advise Respondent or Dr. Bijou of M. V.’s continued poor status following Respondent’s visit shortly after midnight.

72. Turning to the question of the laceration of the artery, it is impossible to determine, even by a preponderance of the evidence, that Respondent transected the popliteal artery. Vascular expertise might have developed the nature of the transection of the artery, the condition of the surrounding tissues, and the likely sources of such an injury--e.g.,

    operatively in Sebring, by means of the sawblade, scalpel, retractor, Esmarch, tourniquet, or manipulation of the leg during surgery; post-operatively in Sebring, by means of the CPM; or post-operatively in Orlando, by means of the scalpel or Fogarty catheter. Absent such evidence, there are entirely too many factual questions remaining to assign the source of the arterial injury to Respondent.

73. Likewise, there are entirely too many factual questions remaining to assign the source of the amputation to Respondent’s acts or omissions. As Dr. Hale testified, M. V.’s right leg bordered on nonviable before the surgery, and any one of several factors may have pushed it past the point of sustainability.

74. The parties have presented disputes concerning expert witness fees for the depositions of three physicians and attorneys’ fees for Respondent’s counsel. The expert witness fees are for Drs. Stein and Hale, who testified by deposition and at the final hearing, as well as one of Respondent’s expert witnesses, Dr. Jeffrey Penner, who testified exclusively by deposition. The Administrative Law Judge bifurcated the actual amount of the attorneys’ fees, if any, for separate hearing.

75. Dr. Stein seeks an expert witness fee of $1000 per hour for deposition testimony. He billed Respondent $1750 for his one and three-quarter hour deposition and seeks an order requiring Respondent to pay this sum. Dr. Stein is certified by the American Board of Orthopedic Surgery and American Board of

    Quality Assurance Utilization Review. Dr. Stein works in Plantation, Florida.

76. The last contract into which Dr. Stein entered with Petitioner covered the fiscal year ending June 30, 1998. This contract called for $100 per hour for “time spent on the witness stand under oath” and $75 per hour for all other time. Among the services described by the contract to be performed by Dr. Stein were testifying at depositions and hearings upon the request of Petitioner.

77. The 1998 contract with Dr. Stein omitted mention of testifying at depositions or hearings at the request of the opposing party. However, the 1998 contract noted that the fees reflect the physician’s

    wish to provide a public service by assisting in the regulation of professions at a cost far below what is economically fair market standards. The contract shall in no way be deemed to establish the specified fees as being reasonable for the purpose of costs to be assessed if [the physician] is deposed by a person other than [Petitioner].

78. The 1997 contract with Dr. Stein provided for $100 per hour for “testifying at depositions and hearings” upon the request of Petitioner, “or upon subpoena issued by the subject of an investigation.” The contract had no other cited rate for services.

79. Dr. Hale seeks an expert witness fee of $650 per hour for each hour or part of an hour. Deviating from his partial- hour policy, Dr. Hale billed Respondent $975 for his one and one-

    half hour deposition. Dr. Hale testified, without contradiction, that an hourly rate of $650 is in the lower one-third of fees in his community. Dr. Hale practices in Plantation, Florida.

80. The last contract into which Dr. Hale entered with Petitioner covers the fiscal year ending June 30, 2000. This contract calls for $125 per hour for “testimony at depositions and hearings” upon the request of Petitioner. The contract has no other cited rate for services, but contains a public-service provision substantially identical to that cited above in

    Dr. Stein’s 1998 contract.

    
    

81. Dr. Penner seeks an expert witness fee of $800 per hour. Dr. Penner billed Petitioner an undisclosed sum for a deposition that took place for an undisclosed period. Dr. Penner charges the same fee, regardless whether the party retaining him or the opposing party calls him. Dr. Penner practices in Palm Beach County, Florida.

82. Dr. Penner testified that similar physicians in Palm Beach County charge between $600 and $1000 per hour for deposition testimony. Dr. Penner is certified by the American Board of Orthopedic Surgeons and American Board of Quality Assurance and Utilization Review Physicians, Inc. and holds a license as a Florida Certified Health Care Risk Manager.

83. Dr. Stein appears to have considerable background in the practice of medicine, but his lack of recent relevant work undermined his value in this case. As he admitted in his

    deposition, he does not derive significant income from the practice of medicine.

84. Dr. Stein undermined the value of his deposition testimony by changing his testimony in two important respects between the time of the deposition and the time of the final hearing: 1) he later opined that Dr. Schreiber actually observed infill bleeding, not backbleeding and 2) he later opined that Respondent’s transection of the popliteal artery during surgery was not, in itself, a deviation from the standard of care (although, at one point during his deposition, Dr. Stein appeared to admit as much, contradicting two other statements during his deposition that the transection was a deviation).

85. Dr. Stein further undermined the value of his testimony by his elaboration of a third alternative basis for liability-- unsuitability for knee-replacement surgery--which Petitioner wisely declined to pursue. At one point, Dr. Stein admitted to using illegible records in preparing his written report, despite the standard agency request to alert it to any illegible records before preparing his written report. At times, Dr. Stein’s deposition testimony, such as his discussion of tourniquet time, inspired some doubt as to whether his ultimate opinions and conclusions were adequately informed by the underlying data and analysis.

86. The maximum reasonable fee for Dr. Stein’s time while being deposed is $150 per hour with fractional hours charged proportionately.

87. Dr. Hale also lacks recent relevant work, but his value to resolution of the case is much greater due to his willingness to express consistently succinctly, at deposition (as well as at final hearing), his candid analysis of the facts of the case. As is consistent with the case law, described below, Dr. Hale should not be penalized for his willingness to provide services at a discounted rate to Petitioner to assist Petitioner in discharging its important regulatory duties.

88. The maximum reasonable fee for Dr. Hale’s time while being deposed is $300 per hour with fractional hours charged proportionately.

89. Dr. Penner practices in one of two relevant specialties, and the Administrative Law Judge found his testimony useful, candid, responsive, authoritative, and succinct. Setting Dr. Penner’s fee, especially based on a slim record, is difficult. As is consistent with the case law, described below, setting a reasonable fee for Dr. Penner requires a balancing of the right of a licensee to obtain as qualified an expert witness as he or she can afford against the need not to allow a licensee to spend Petitioner into submission.

90. The maximum reasonable fee for Dr. Penner’s time while being deposed is $500 per hour with fractional hours charged proportionately.

91. In setting these maximum reasonable rates, the Administrative Law Judge is aware that the record is devoid of any evidence whatsoever directly rebutting the obviously self- serving testimony of each expert that his fees are reasonable in amount. In addressing this obvious omission from the record, the Administrative Law Judge has considered the rates set in the case law described below.

92. The last issue is whether Petitioner is liable to pay Respondent’s attorneys’ fees and costs.

93. First, Respondent claims that Petitioner brought this case for an improper purpose. Respondent places considerable emphasis in this claim on Petitioner’s failure to comply with Respondent’s request that Petitioner timely obtain and review the arteriograms, which showed no bleeding immediately proximal, or upstream, of the occlusion. Respondent also bases her claim upon Petitioner’s reliance upon the opinions of two experts,

    Drs. Stein and Hale, whom Respondent contends were unqualified to testify against Respondent because they had not recently performed knee replacements and had performed only a small number of such procedures in the past. Finally, Respondent contends that Petitioner’s failure to supply these experts with the arteriograms before the preparation of their written opinions and

    testimony at deposition deprived Petitioner of a reasonable basis for relying on their expert opinions and prosecuting the case against Respondent.

94. Respondent places too much emphasis on the importance of analysis of the arteriograms when she argues, in her proposed recommended order, that these films do not reveal an injury to the popliteal artery. These films do not expose the popliteal artery; they expose the femoral artery, which is proximal, or upstream of, the popliteal artery. These films do reveal that there was no bleeding at the location of the occlusion at the distal end of the femoral artery, just proximal of the popliteal artery, and, in so doing, these films tend to call into doubt Dr. Schreiber’s finding of an transection just proximal of the occlusion, as well as other of his critical findings.

95. Even an early identification of the questions surrounding Dr. Schreiber’s key findings would not have eliminated the question of Respondent’s post-operative care of

    M. V. Serious fact questions remained as to whether Respondent was too conservative in her post-operative responses to a patient whose peripheral vascular system was compromised even before the trauma of knee-replacement surgery.

96. In the alternative, Respondent claims attorneys’ fees and costs in establishing the truth of certain items in her first and second requests for admission.

97. In the first set of requests for admission, Petitioner denied requests stating the following:

    1. Vascular injuries as a result of total knee replacement with tourniquet are known complications from the procedure.

       
       

    2. It is not a deviation from an applicable standard of care for a vascular injury to occur as the result of a total knee replacement with tourniquet procedure.

       
       

       16. Petitioner is aware of no facts that would show that Respondent failed to consult a vascular surgeon appropriately or formulate a conservative treatment plan for M. V. following completion of her surgery on

       May 29, 1996.

       
       

       1. The arteriogram performed on May 30, 1996 does not indicate there was a transection of an artery.

          
          

       2. The arteriogram performed on May 30, 1996 demonstrates evidence of a clot formation in the distal femoral artery.

          
          

       3. Petitioner is aware of no facts showing that M. V. did not have a thrombus formation in the distal superficial femoral artery on May 30, 1996.

       
       

98. Petitioner denied paragraphs 13, 14, 16, and 19 as vague and the remaining paragraphs with a reference to the expert opinions.

99. Petitioner denied paragraphs 5-7 of the second set of requests for admission. These paragraphs are essentially the same as paragraphs 19-21 above. The reasons for the denial were vagueness and reliance on the expert reports. Additionally, Petitioner denied paragraph 12 of the second set of requests for admission. This request asks Petitioner to deny that the

    arteriogram bears an incorrect date for the procedure performed on May 30, 1996. Petitioner responded only that the hospital records contain an arteriogram bearing a date of May 31, 1996.

100. Several requests for admission pertain to the distribution of the arteriogram, but, as already noted, the arteriogram does not rise to the level of importance assumed by Respondent. Other requests concern complex (sometimes ultimate) factual issues, which would essentially serve as interrogatories if Petitioner had attempted to admit with conditions.

101. However, as to the ten identified requests for admission discussed above, Petitioner denied matters that were true, and the denials suggest either an unacceptable unfamiliarity with the file on the part of the person preparing the responses or an unacceptable unfamiliarity with the requirements of the Florida Rules of Civil Procedure governing responses to requests for admission.

102. However, the Administrative Law Judge finds that these unfair denials did not cause Respondent to incur more expenses for expert witnesses or treating physician witnesses. The radiologist needed to testify as to the area of artery covered by the arteriogram and absence of leakage in that area. The experts needed to testify about numerous details of the knee-replacement procedure and subsequent handling of the case. These witnesses needed to time to deal with the relatively simple matters raised in the 10 requests for admission.

103. On the other hand, counsel for Respondent was unfairly required to address the matters raised in the 10 requests for admission. In an effort to assist the parties in settling, without an additional evidentiary hearing, the question of fees arising out of Petitioner’s improper responses to these ten requests for admission, absent additional evidence, the Administrative Law Judge would find that four hours of attorney time represent a fair allocation of time to deal with these matters, which overlapped numerous other factual issues that Respondent’s counsel had to address in any event.

     CONCLUSIONS OF LAW

     
     

104. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. Unless otherwise indicated, all references to Rules are to the Florida Rules of Civil Procedure.)

105. Section 458.331(1)(t) authorizes discipline for “committing 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.”

106. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

107. Petitioner has failed to prove any deviation by Respondent from the applicable standard of care in her diagnosis and treatment of M. V.

108. Rule 1.280(b)(4)(C) requires that, “unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery . . ..” The Florida rule is similar to Rule 26(b)(4)(C), Federal Rules of Civil Procedure.

109. In setting a reasonable fee, courts attempt to arrive at a result “'so that plaintiffs will not be hampered in efforts to hire quality experts, while defendants will not be burdened by unfairly high fees preventing feasible discovery and resulting in windfalls to the expert.'” Mathis v. NYNEX, 165 F.R.D. 23, 24 (E.D.N.Y. 1996)(citing Hurst v. United States, 123 F.R.D. 319, 320 (D.S.D. 1988).

110. The courts uniformly consider the following factors in setting a reasonable fee: 1) the witness’s area of expertise; 2) the education and training required to provide the expertise; 3) the prevailing rates for other comparably qualified, available experts; 4) the nature, quality, and complexity of the discovery sought; 5) the cost of living in the expert’s geographical area;

     6) any other relevant factor; 7) the fee charged by the expert to the party retaining him or her; and 8) fees traditionally charged by experts on related matters. See, e.g., Magee v. Paul Revere Life Insurance Company, 172 F.R.D. 627, 644 (E.D.N.Y. 1997).

111. In this case, the three expert witnesses are orthopedic surgeons with similar levels of education and training for their professions. Although Dr. Stein has substantially more experience, Dr. Penner has substantially more relevant, recent experience, with Dr. Hale somewhere in between. All three physicians work in southeast Florida, so cost of living considerations among them are comparable. The matter of which they were retained to testify--a total knee replacement--is not extraordinarily complicated.

112. Dr. Penner is seeking to charge the same fee to Petitioner as he is to Respondent, who retained him. Drs. Stein and Hale are seeking to charge Respondent considerably higher fees than they are charging Petitioner, but, as their contracts acknowledge, a certain element of public spirit justifies a discrepancy between the fees that they charge Petitioner and those that they charge opposing parties. See Equal Employment Opportunity Commission v. Johnson & Higgins, Inc., 79 FEPC 210,

     22 Emp. Benefits Cas. 2906, 1999 WL 32909 fn.5 (S.D.N.Y. January 21, 1999)(“The Court also observes that the Government often is able to get attorneys and experts to charge the Government a reduced rate, making those rates less useful as ‘comparables.’ [citation omitted].”

113. According to Drs. Penner, Stein, and Hale, other orthopedic surgeons testifying as expert witnesses charge approximately what each of these physicians seeks to charge.

     According to available case law, physicians may be charging similar sums, but they are not getting such sums from courts setting maximum reasonable fees.

114. In Edin v. Paul Revere Life Insurance Company, 188

     
     

     F.R.D. 543 (D. Ariz. 1999), decided about one year ago, a court awarded a Phoenix orthopedic surgeon $450 per hour as a reasonable fee for deposition time, not the $800 for the first hour and $600 for the second hour that he sought.

115. In Coleman v. Dydula, 190 F.R.D. 320 (W.D.N.Y. 1999), decided about 11 months ago, the court set $250 per hour as a reasonable fee for treating physicians with an undisclosed specialty. In Magee v. Paul Revere Life Insurance Company, 172

     F.R.D. 627, 646 (E.D.N.Y. 1997), the court, noting that a $350 hourly rate for a psychiatrist was “significantly higher than expert psychiatric fees deemed reasonable by other courts,” reduced the rate to $250 per hour.

116. Applying the case law to the facts already discussed, the maximum reasonable hourly rates for actual deposition time are: Dr. Stein--$150, Dr. Hale--$300, and Dr. Penner--$500.

117. Lastly, Respondent seeks attorneys’ fees and costs on two grounds. First, Respondent seeks attorneys’ fees and costs under Section 120.595(1).

118. Section 120.595(1)(b) provides that the Administrative Law Judge shall award reasonable costs and a reasonable attorneys’ fees to the prevailing party where the “nonprevailing

     adverse party” has “participated in the proceeding for an improper purpose.” Section 120.595(1)(e)1. provides that “improper purpose” means “participation in a proceeding pursuant to s. 120.57(1) 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.”

119. Respondent relies on Good Samaritan Hospital v. Department of Health and Rehabilitative Services, 582 So. 2d 722 (Fla. 4th DCA 1991). In Good Samaritan, the court reversed an order of a hearing officer of the Division of Administrative Hearings denying a motion for attorneys’ fees under the predecessor to Section 120.595(1), which also provided for fees upon a showing of an “improper purpose.” The court held that the agency’s attempt to enforce nonrule policy, as set forth in a letter, through adjudication, rather than through rulemaking, constituted an improper purpose, under the facts of the case.

120. Analyzing the meaning of “improper purpose,” the Good Samaritan court warned that the courts should not “delve into an attorney’s or party’s subject intent or into a good faith-bad faith analysis.” 582 So. 2d 722, 724-25 (Fla. 4th DCA 1991)(citation omitted). The court suggested that if “reasonably clear legal justification can be shown for the filing of the paper in question,” then the purpose is not improper.

121. In Friends of Nassau County, Inc. v. Nassau County, 752 So. 2d 42 (Fla. 1st DCA 2000), the court considered an

     administrative law judge’s order imposing attorneys’ fees under the predecessor to Section 120.595(1). The court restated the above-cited statements from the case cited by Good Samaritan and reaffirmed the objective nature of the standard. In the case before it, the court recognized that the reasonableness of the position was partly a function of the reasonableness of a party’s reliance on expert opinions: “When making inquiry, lawyers and parties alike may rely on the opinions of experts, when it is reasonable to do so.” 752 So. 2d at 52. The court cited with approval Wagner v. Allied Chemical Corp., 623 F. Supp. 1407,

     1411-12 (D. Md. 1985)(“It appears that plaintiff’s attorney did conduct an inquiry which falls within the range of reasonableness prior to filing this action. Although defendants point out serious factual weaknesses with several of the claims, plaintiff’s attorney did consult with an expert, talked to claimants, and received an oral opinion from a doctor who examined most of the claimants, prior to filing this action.

     This is sufficient to avert sanctions under Rule 11.”) 752 So. 2d at 52. The Friends of Nassau County court sustained the sanctions against only the parties who had not read the petition before signing it.

122. In this case, Petitioner obtained written reports from Drs. Stein and Hale before filing the Administrative Complaint. Respondent contends that Drs. Stein and Hale, as well as the Probable Cause Panel, would have formed different opinions if

     they had examined the arteriogram films. However, presented with the films at the final hearing, neither Dr. Stein nor Dr. Hale changed his opinion.

123. Contrary to Respondent’s contentions, the arteriogram films do not exculpate Respondent, although they are helpful to her case. The films expose the femoral artery, not the popliteal artery. The films expose an occlusion at the distal end of the femoral artery. Notably, the films do not expose any bleeding proximal of the occlusion. But these facts are useful only for confirming what is apparent from other evidence--namely, that the transection was distal to the occlusion. The films help Respondent by raising questions concerning Dr. Schreiber’s findings and conclusions, but the films do not approach being outcome determinative.

124. On the improper-purpose fee issue, Respondent is preoccupied with the subissues generated by its prehearing efforts establishing that, contrary to Petitioner’s earlier representations, Petitioner failed to provide the arteriogram films to its expert witnesses. However, the salient facts are that Respondent performed a knee replacement; circulatory problems ensued, probably associated with the trauma of surgery; unresolved, these circulatory problems necessitated the amputation of the leg above the knee two days later; and the popliteal artery in the vicinity of the surgery was found the day following the surgery to have been three-quarters transected.

125. As already noted, the evidence is not clear and convincing that Respondent negligently transected the popliteal artery. Petitioner’s allegations that Respondent transected the artery and that the transection is a deviation from the standard of care are further undermined by Dr. Stein’s testimony that transecting the artery would not be a deviation from the standard of care, in any case.

126. However, the evidence is much closer concerning Respondent’s post-operative management of M. V.’s case, even if Respondent did not transect the artery or did not transect the artery negligently. Respondent’s response to M. V.’s circulatory problems was so conservative as to approach a deviation from the standard of care, especially considering the pre-operative signs of peripheral vascular disease that M. V. presented.

127. In retrospect, the failure of the record to include Dr. Schreiber’s testimony may have adversely affected the claim of Respondent for fees, as well as the claim of Petitioner for liability. Just as Petitioner bears the consequences of this omission from the record as to the liability issue, on which Petitioner bears the burden of proof, Respondent bears the consequences of this omission from the record as to the fee issue, on which Respondent bears the burden of proof.

128. Perhaps a thorough examination of Dr. Schreiber would have provided a definitive explanation of what happened to M. V.; perhaps not. Perhaps the definitive explanation would have

     clearly exculpated Respondent to the extent that the Administrative Law Judge could infer an improper purpose on the part of the Board of Medicine and Petitioner in prosecuting this case; perhaps not. On the present record, though, Respondent’s claim for attorneys’ fees based on improper purpose presents no closer a case than does Dr. Stein’s request for $1000 per hour for deposition time.

129. Respondent also requests fees for Petitioner’s failure to respond adequately to requests for admission.

130. Rule 1.370(1) provides:

     
     

     (a) Request for Admission. A party may serve upon any other party a written request for the admission of the truth of any matters within the scope of rule 1.280(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. . . .

     Each matter of which an admission is requested shall be separately set forth.

     . . . The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless that party states that that party has made reasonable inquiry and that the information known or readily obtainable by that party is insufficient to enable that party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not

     object to the request on that ground alone; the party may deny the matter or set forth reasons why the party cannot admit or deny it, subject to rule 1.380(c). . . .

     
     

131. Rule 1.380(a)(4) provides:

     
     

     (c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorney fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to rule 1.370(a), (2) the admission sought was of no substantial importance, or

     (3) there was other good reason for the

     failure to admit.

     
     

132. As noted above, Respondent has shown that Petitioner unreasonably failed to admit ten specific requests for admission. The nature of the evidentiary requirements in this case preclude any award of any portion of expert witness expenses in connection with Petitioner’s failure to admit these matters. However, Respondent is entitled to an award of attorneys’ fees for the time unnecessarily spent by counsel in addressing the matters that are the subject of these ten requests for admission.

133. The Administrative Law Judge has reserved jurisdiction to set the amount of the attorneys’ fees for Petitioner’s unreasonable failure to admit the ten requests for admission. In an effort to bring this case to an end, the Administrative Law Judge would, absent the presentation of additional evidence, find

that four hours would be the amount of time that it would reasonably take Respondent’s counsel to address the matters that Petitioner unfairly denied.

RECOMMENDATION

It is

RECOMMENDED that the Board of Medicine enter a final order dismissing the Amended Administrative Complaint against Respondent.

ORDER

It is

ORDERED that:

1. The maximum reasonable hourly rates for actual deposition time are: Dr. Stein--$150, Dr. Hale--$300, and Dr. Penner--$500. Fractions of an hour shall be paid proportionately.

2. Respondent’s claim for attorneys’ fees and costs under Section 120.595(1) is denied.

3. Respondent’s claim for costs under Rule 1.380(a)(4)(C) is denied.

4. Respondent’s claim for attorneys’ fees under

   
   

   Rule 1.380(a)(4)(C) is denied, except for the ten requests for admission identified above, as to which it is granted. The Administrative Law Judge retains jurisdiction over only this issue for setting the amount that Petitioner owes Respondent in attorneys’ fees.

5. For the guidance of the parties in attempting to set the amount due for the attorneys’ fees identified in the preceding paragraph, in the absence of additional evidence, the Administrative Law Judge would find that Respondent’s counsel reasonably expended four hours in addressing the matters that Petitioner unfairly denied in its responses to these requests. If the parties are unable to settle this matter without the need of an additional evidentiary hearing, they shall notify the Administrative Law Judge in writing, on or before January 15, 2001, so that he can set a date for the hearing. Failure to

notify the Administrative Law Judge by this date in writing shall constitute an abandonment of this issue, and the Administrative Law Judge shall relinquish jurisdiction over this issue by operation of this paragraph.

DONE AND ENTERED this 28th day of November, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 28th day of November, 2000.

COPIES FURNISHED:

Tanya Williams, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way Bin C03

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way Bin AOO

Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

John E. Terrel Ephraim D. Livingston

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Jon M. Pellett Barr Murman

201 East Kennedy Boulevard, Suite 1750 Tampa, Florida 33602

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

As for the Recommended Order 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.

NOTICE OF RIGHT TO JUDICIAL REVIEW

As for the final order, a party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District

Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 00-001021

Orders for Case No: 00-001021