STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF MEDICINE,

Petitioner,

vs.

OWEN R. HUNT, JR., M.D.,

Respondent.

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) Case No. 00-4714PL

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RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on March 14, 2001, and August 15 and 16, 2001, in Deland, Florida,

and conducted by Harry L. Hooper, Administrative Law Judge, with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce A. Campbell, Esquire

Agency for Health Care Administration Post Office Box 14229

Mail Stop 39-A

Tallahassee, Florida 32317-4229

For Respondent: Carol A. Lanfri Esquire

FPIC Insurance Group, Inc.

1000 Riverside Avenue, Suite 800

Jacksonville, Florida 32204 STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against Respondent's license.

PRELIMINARY STATEMENT

Petitioner, Department of Health (Department), filed an Administrative Complaint before the Board of Medicine against Owen R. Hunt, Jr., M.D. (Dr. Hunt), on October 24, 2000. On November 3, 2000, Dr. Hunt disputed the allegations of fact contained in the complaint and requested a formal hearing. On November 20, 2000, the matter was filed with the Division of Administrative Hearings. A hearing was set for March 14, 2001.

Petitioner, on February 19, 2001, filed a Notice of Scrivener's Error seeking to amend the pleadings with regard to the times certain events were alleged to have occurred.

Respondent objected to the requested changes. By Order dated March 6, 2001, the alleged scrivener's errors were recharacterized as amendments to the pleadings and were allowed despite the objection.

At the hearing, Petitioner attempted to admit hospital records into evidence. The hospital records were indispensable to Petitioner's case. Respondent objected to the admission of the records on the grounds of hearsay. Petitioner was unable to lay a proper foundation for the admissibility of the emergency records and the matter was, therefore, not received into evidence. Petitioner thereafter rested.

The next day, March 15, 2001, Petitioner moved to reopen the proceedings. This motion was opposed by Respondent. By

Order dated March 23, 2001, Petitioner's motion was granted. The case was set for final hearing on June 12, 2001.

On April 25, 2001, a Petition for Review of a Non-Final Order of the Division of Administrative Hearings was filed by Respondent with the First District Court of Appeal. On May 11, 2001, subsequent to Respondent's Motion for Abeyance, the case was placed in an inactive status. On June 7, 2001, the First District Court of Appeal dismissed the interlocutory appeal and issued its mandate. The case was subsequently set for hearing by a Third Notice of Hearing and was heard on August 15 and 16, 2001, in Deland, Florida.

Petitioner offered seven and had admitted six items of documentary evidence. Petitioner presented the testimony of Heidi M. Haeseker, an investigator supervisor with the Agency for Health Care Administration, Debra Bradfield, records custodian for Florida Hospital Deland, and Mark J. Slepin, M.D.

Respondent offered and had admitted two items of evidence.

Respondent called Susan Griffis, M.D., who testified by video deposition; Don Hilbun, a registered nurse at Florida Hospital Deland; and Jay Edelberg, M.D.

Transcripts of the hearing were filed with the Division of Administrative Hearings on April 1, 2001, and September 13, 2001. Proposed Recommended Orders were timely filed by both

parties and were considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Dr. Hunt is and has been at all times material, licensed by the Florida Board of Medicine. His license number is ME 001081.

2. The Department of Health is charged with regulating the practice of medicine.

3. The Department of Health may contract with the Agency for Health Care Administration (AHCA) to provide investigative and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards, as appropriate. In this case, ACHA provided those services to the Department of Health.

4. The Board of Medicine is an administrative body statutorily situated under the Division of Medical Quality Assurance.

5. On the evening of June 28, 1999, Dr. Hunt was on duty in the emergency room of the Memorial Hospital-West Volusia.

6. Memorial Hospital-West Volusia subsequently became known as Florida Hospital Deland (Hospital Deland).

7. At 9:35 p.m., on June 28, 1999, Patient V.V., a

   
   

   22-month-old female, was brought by her father to the emergency room of Hospital Deland with a complaint of fever and shortness of breath. It was reported to emergency room personnel that

   V.V. had experienced shortness of breath for many hours before she was brought to the emergency room.

8. V.V. was born on August 29, 1997. V.V. had a history of multiple congenital deformities including panhypopituitarism and a severe cleft lip and palate, among other medical problems.

   V.V. had visited Hospital Deland at least 68 times previous to her visit of June 28, 1999.

9. Panhypopituitarism means that the part of the brain that regulates all of the glands and hormones that the body requires to function, is not functioning. This gives rise to a host of problems, including hypothyroidism, retarded growth, and holoprosencephaly. This latter term means that the brain does not progress or develop much beyond the fetal stage. V.V. also experienced seizures and sodium imbalances which would range from very high to very low.

10. V.V. was described by her Board-certified pediatrician, Dr. Susan Griffis, as being very difficult to manage medically. Dr. Griffis described V.V. as being basically in a vegetative state. She noted that V.V.'s deformities were not compatible with long-term existence. V.V.'s prognosis at birth was a life span of two years. By June 28, 1999, she had attained the age of 22 months.

11. At 9:35 p.m., Nurse Hilbun noted a respiration of 60 and determined, through the use of a pulse oximeter, that V.V.'s concentration of oxygen was 60 percent.

12. V.V. was placed on 100 percent oxygen along with an aerosol medicine through the application of a nonrebreather mask. V.V.'s skin was dry and pink which indicated that she was getting sufficient oxygen.

13. Dr. Hunt, on June 28, 1999, first saw V.V. at

    
    

    10:00 p.m. He conducted a physical examination which revealed, among other things, that the child had shortness of breath and a temperature of 101.8 degrees. The child was diagnosed with bilateral pneumonia.

14. At 10:16 p.m., Dr. Hunt ordered diagnostic studies including a chest X-ray and laboratory studies, which include an RSV test for virus, and a complete blood count (CBC). The CBC could not be obtained because blood could not be drawn. Blood could not be drawn because V.V.'s veins were very small and because of scarring from numerous previous extractions of blood.

15. Dr. Hunt attempted to contact Dr. Griffis, V.V.'s pediatrician, for advice on a course of treatment but was unable to reach her. Dr. Hunt then contacted Dr. Reinertsen, the pediatrician on call who advised Dr. Hunt to intubate the patient and transfer her to Arnold Palmer Hospital in Orlando. It cannot be determined from the record exactly when this

    telephone call transpired. Dr. Reinertsen did not come to the emergency room.

16. Arnold Palmer Hospital had an intensive care pediatrics unit. No intensive care pediatrics unit was available at Hospital Deland. Dr. Hunt did not transfer the child because he determined that V.V. was not stable to the point where she would survive the trip. He also did not follow Dr. Reinertsen's advice to immediately intubate the child, nor was he required to follow his advice.

17. At 9:35 p.m., V.V.'s oxygen saturation was 60 percent and she had a heart rate of 160. At 9:45 p.m., she had an oxygen saturation of 85 percent. At 11:00 p.m., V.V's oxygen saturation was 98 percent and her temperature had improved to

    100.6 degrees. At 11:40 p.m., respiration had improved to 52 and her heart rate was down to 140. At 1:40 a.m., June 29, 1999, respiration was 52, her heart rate was 142 and oxygen saturation was 95 percent. At 2:30 a.m., respiration was 52 and her heart rate was 142. At 3:00 a.m., respiration was 60, her heart rate was 146 and oxygen saturation was 95 percent.

18. During this period, from 9:35 p.m. until immediately before 3:00 a.m. on June 29, 1999, V.V. was not sufficiently stable for transfer but her condition was not deteriorating.

19. At approximately 4:00 a.m., V.V.'s condition took a dramatic turn for the worse. The child began to have difficulty breathing and was experiencing apnea.

20. When the child's condition began to deteriorate,

    
    

    Dr. Hunt asked for and received permission from V.V.'s parents to intubate V.V.

21. Although V.V. had been placed on oxygen shortly after arrival, an oxygen mask will only put oxygen into the lungs. It will not facilitate exhalation. Intubation, if successful, provides a clear passage to the lungs and facilitates both inhalation and exhalation.

22. Dr. Hunt was unsuccessful in intubating V.V. An anesthesiologist was called in and eventually succeeded in intubating V.V. Nevertheless, V.V. continued to rapidly deteriorate, and suffered cardiac and respiratory arrest at approximately 5:00 a.m. Unsuccessful efforts were made to defillibrate V.V. with electric paddles at 5:12 a.m., 5:13 a.m., and 5:14 a.m., but the child could not be resuscitated.

23. Intubating any baby is a difficult and dangerous task.

    
    

    Intubating a baby with the deformities that characterized V.V. is particularly dangerous because the tube could easily penetrate the brain instead of going down the back of the throat as it should.

24. V.V. had been hospitalized at Shands Hospital for a repair of her cleft palate and cleft lip when she was approximately 18 months of age. Shands is a well-known research hospital with a superb reputation. Before the repair could be accomplished, it was necessary to intubate V.V. and the surgeons at Shands were unable to do it. Dr. Hunt was aware of this.

    Because of these factors, Dr. Hunt was reluctant to intubate V.V.

    The testimony of the State's Expert

    
    

25. Mark Slepin, M.D., testified as an expert witness in the area of the delivery of emergency medical care. He is the chief operating officer and chief compliance officer for ECS Holdings. ECS Holdings is a company which provides quality assurance services, among other things, to hospitals throughout Florida and to hospitals in many other states. Dr. Slepin served a residency in emergency medicine at the University Hospital, Jacksonville.

26. Dr. Slepin practiced emergency medicine for ten years at hospitals in the southeastern Virginia area. He practiced at St. Mary's and Good Samaritan Hospitals in West Palm Beach, and at hospitals in Milton and Sarasota, prior to joining ECS. He is Board-certified in emergency medicine. He was accepted as an expert in the practice of emergency medicine.

27. Dr. Slepin reviewed V.V.'s hospital records and statements made by Dr. Hunt. He opined that Dr. Hunt, for the most part, practiced within the standard of care that is expected of a reasonably prudent emergency physician with regard to his evaluation of the patient, his work-up of the patient, and his initial management of the patient in the early stages of the patient's course in the emergency room.

28. Dr. Slepin thereafter opined that the plan of care was not a plan that a reasonably prudent emergency physician would take. There was no written "do not resuscitate" order. He opined that under those circumstances Dr. Hunt should have either admitted V.V. into the hospital or transferred her to a hospital with appropriate resources. Moreover, Dr. Hunt failed to provide appropriate airway management, in his opinion. He opined that Dr. Hunt left the patient in limbo for five hours and, therefore, the patient eventually succumbed because there was no definitive airway intervention in a patient who needed airway intervention.

29. Dr. Slepin opined that the medical records adequately documented the patient's response to therapy and progress, except that there should have been additional physician's notes regarding the patient's progress filed between the initial evaluation and the eventual demise.

    The testimony of the Respondent's Experts

    
    

30. Donald Hilbun, Jr., is a registered nurse who has a bachelor of science degree in nursing from the University of South Alabama. He was a medic in the military for three years and practiced in the labor and delivery unit of a military medical facility in Alaska where he delivered health care to babies. He is certified by the American Heart Association in advanced cardiac life support.

31. Nurse Hilbun had worked at the Hospital Deland for one year on June 28, 1999. He was accepted as an expert on the practice of nursing.

32. Nurse Hilbun prepared nurses notes for V.V., which were part of the overall medical record of V.V.'s care.

33. It is Nurse Hilbun's opinion that V.V. was never stable enough to permit a successful transfer to the Arnold Palmer Hospital. He does not believe Dr. Hunt withheld appropriate treatment.

34. Jay Edelberg, M.D., is a Board-certified emergency room physician. He has a degree in dentistry and received his medical degree in 1975. He did a surgical internship for one year at St. Francis Hospital in Hartford, Connecticut, and did an emergency medicine residency from 1976 to 1978 at what is now called Shands of Jacksonville. He is currently in private

    practice. He also works in the emergency room of Flagler Hospital which is similar in size to Hospital Deland.

35. Dr. Edelberg has had a contract with the AHCA for the last seven or eight years. The contract provides that he is to review cases relating to emergency room physicians. He gives written opinions, when asked, to the probable cause panel of the Board of Medicine. He was accepted as an expert in the field of emergency room medicine.

36. Dr. Edelberg reviewed V.V.'s hospital records. He opined that when treating a patient who is having shortness of breath, intubation is done only as a last resort. He opined that Dr. Hunt's decision to intubate V.V. at the time he did was the correct decision and that it would have been a mistake to have done it earlier.

37. Dr. Edelberg opined that the events of the evening of July 28, 1999, and the morning of July 29, 1999, were adequately documented by Dr. Hunt.

38. Dr. Edelberg pointed out that Dr. Reinertsen was

    
    

    on-call for Dr. Griffis, V.V.'s pediatrician. He was not on- call for the emergency room. He also pointed out that when someone like Dr. Reinertsen is consulted, unless that person comes in and takes over the case, it is the emergency room physician who must ultimately make all of the decisions with regard to care.

39. Dr. Edelberg stated that it was his opinion, within a reasonable degree of medical certainty, that the care provided to V.V. met the required standard of care.

    Conclusion

    
    

40. On the whole, the expert testimony of Dr. Edelburg and Nurse Hilbun, was more persuasive than that of Dr. Slepin.

    CONCLUSIONS OF LAW

    
    

41. The Division of Administrative Hearings has jurisdiction in accordance with Section 120.57, Florida Statutes, and Section 456.073(5), Florida Statutes.

42. The party seeking to prove the affirmative of an issue has the burden of proof. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981) and

    Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Therefore, the burden of proof is on Petitioner.

43. Because this case is penal in nature, the material allegations set forth in the Administrative Complaint must be proven 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).

44. The Board of Medicine is empowered to revoke, suspend, or otherwise discipline the license of a physician for a violation of Section 458.331(1), Florida Statutes.

45. Section 458.331(1)(t), Florida Statutes, requires that a physician licensed by Chapter 458, Florida Statutes, "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."

46. Section 458.331(1)(m), Florida Statutes, provides that a physician licensed by Chapter 458, Florida Statutes, must keep medical records which justify a course of treatment, "including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalization."

47. Rule 64B8-9.003(2), Florida Administrative Code, requires that medical records contain, "sufficient detail to clearly demonstrate why the course of treatment was undertaken or why an apparently indicated course of treatment was not undertaken."

48. Rule 64B8-9.003(3), Florida Administrative Code, requires that the medical record "shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of

    treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient."

49. Patient records must contain a sufficient amount of information so that "neutral third parties can observe what transpired during the course of treatment of a patient." Robertson v. Dept. of Professional Regulation, Board of Medicine, 574 So. 2d 153, 156 (Fla. 1st DCA 1987).

50. The evidence in the case failed to establish by clear and convincing evidence that Dr. Hunt failed to "practice medicine with that level of care and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances."

51. The evidence in the case failed to establish by clear and convincing evidence that Dr. Hunt failed to prepare adequate medical records.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it is

RECOMMENDED

That a final order be entered dismissing with prejudice the complaint filed against Dr. Hunt.

DONE AND ENTERED this 3rd day of October, 2001, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

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 3rd day of October, 2001.

COPIES FURNISHED:

Tanya Williams, Executive Director Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Bruce A. Campbell, Esquire

Agency for Health Care Administration Post Office Box 14229

Mail Stop 39-A

Tallahassee, Florida 32317-4229

Carol A. Lanfri, Esquire FPIC Insurance Group, Inc.

1000 Riverside Avenue, Suite 800

Jacksonville, Florida 32204

Mason H. Grower, Esquire Grower, Ketcham et. al Post Office Box 538065

Orlando, Florida 32853-8065

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: 00-004714PL

Orders for Case No: 00-004714PL