STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01-2241PL

)

HULLON E. SWITZER, M.D., )

)

Respondent. )

_________________________________ )

RECOMMENDED ORDER

Notice was provided and on September 11, 2001, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing was held in the City Hall Annex Building, 220 East Bay Street, Jacksonville, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Marilyn M. Sandbeck, Esquire

Agency for Health Care Administration Fort Knox Building II, Suite 1100

2729 Fort Knox Boulevard, Mail Stop 39-A Tallahassee, Florida 32308-6287

For Respondent: Bruce E. Lamb, Esquire

Ruden, McClosky, Smith Schuster & Russel, P.A.

401 East Jackson Street, 27th Floor Tampa, Florida 33602

STATEMENT OF THE ISSUE

Did Respondent fail 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 in responding to Patient W.M.'s health needs?

PRELIMINARY STATEMENT

Petitioner brought an administrative complaint against Respondent, DOH Case Number: 1998-12121, concerning care Respondent allegedly provided Patient W.M. and the quality of that care. On the 29th of June, 2000, Respondent elected the option to dispute the allegations of fact contained in the Administrative Complaint in accordance with Section 120.569(2)(a), Florida Statutes. On June 5, 2001, the case was transmitted to the Honorable Sharyn L. Smith, Chief Judge of the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was assigned and than heard on the aforementioned date.

Prior to hearing Respondent moved to dismiss the case based upon the unavailability of tomograms ordered by Respondent to assist Respondent in managing W.M.'s care, as the availability of the tomograms would be involved with Respondent defending himself against the allegations in the

Administrative Complaint. Respondent attributes the unavailability of the tomograms for purposes of the defense as the fault of the Petitioner in not timely prosecuting the case. Petitioner filed a written response to the written Motion to Dismiss. Ruling was reserved on the Motion to Dismiss for laches pending the opportunity to consider the hearing record in addition to the Motion to Dismiss and response to that motion. Subsequent to the hearing the parties submitted additional written argument on the motion.

Upon consideration, the Motion to Dismiss, premised upon the doctrine of laches, is denied.

Consistent with an Order of Prehearing Instructions the parties have agreed to a Statement of Facts which are admitted. Those admitted facts are detailed in the Findings of Facts that follow. As well, Joint Exhibits 1A and 1B have been admitted in accordance with a stipulation by the parties. Petitioner's Exhibit 2B, the deposition testimony of Rory Evans, M.D., with attached exhibits has been admitted.

Respondent testified and presented the testimony of Michael Wasylik, M.D., together with Respondent's Exhibits 3A and 3B, and Respondent's Exhibit 3C, the deposition of Steven Gross which exhibits were admitted.

On October 19, 2001, the hearing Transcript was filed.

Petitioner, with Respondent's concurrence, moved to extend the

time for filing Proposed Recommended Orders. The parties were advised that the request was granted. The due date for filing Proposed Recommended Orders became November 13, 2001.

Proposed recommended orders were timely filed, together with written argument, all of which have been considered.

FINDINGS OF FACT

Stipulated Facts:

1. Respondent is and has been at all times material hereto a licensed physician in the State of Florida having been issued license number ME 0024587.

2. Respondent's address is 1801 Barr Street, Suite 435, Jacksonville, Florida 32204.

3. Respondent is Board certified in orthopedic surgery.

   
   

4. On or about June 1, 1993, Patient W.M. a 40-year-old male presented to the emergency room (ER) at St. Vincent's Medical Center in Jacksonville, Florida, via ambulance, for treatment of an injury to his left upper extremity which occurred when he fell off a ladder and landed on a concrete floor.

5. Subsequently, Respondent, who was the orthopedic surgeon on call, treated Patient W.M. Respondent initially diagnosed Patient W.M. with a shoulder contusion and an open comminuted fracture of his left radius.

6. On or about June 1, 1993, Respondent performed an irrigation and debridement of the open wound of the left forearm, a left forearm fasciotomy (procedure used to relieve pressure and maintain blood flow), and an open reduction and internal fixation of the radius fracture using a six hole DCP compression plate. Following surgery, Patient W.M.'s arm was immobilized in a splint. Respondent saw Patient W.M. post- operatively on a regular basis for a recheck.

   Additional Facts:

   W.M.'s Treatment as Commented on by Respondent

   
   

7. Generally Respondent had performed orthopedic surgery, excluding back and neck surgery, until approximately six months before the hearing date. Respondent discontinued the performance of orthopedic surgery because of back problems. Respondent now does office practice only.

8. Respondent's familiarity with the internal fixation of W.M.'s radius fracture extended to teaching in the medical community concerning the use of devices similar to that employed in treating W.M.

9. When Respondent saw W.M. on June 1, 1993, in addition to the bone communicating to the outside of the patient's arm from the open fracture, the arm was swollen. X-rays performed at the time confirmed the comminuted (multiple piece fracture) of the radius. By history it was revealed that the patient had fallen from a ten-foot ladder.

10. The reason for performing the forearm fasciotomy, was that between the time that the patient was seen in the ER and was received in the operating room, a short period of time, the muscles were expanding in the forearm and the patient had compartment syndrome.

11. Respondent considered the injury to W.M.'s forearm to be serious. Respondent explained to the patient that if the course of treatment got past any infection, for which W.M. was receiving treatment to avoid that prospect, then one or two things would happen in view of the use of the compression plate. Those prospects were the healing of the bone fracture or the failure of the plate.

12. Respondent also had a concern with what is referred to as fracture disease, in which immobilization of the arm over a period of time could lead to the inability to properly move the joints involved with the arm.

13. At the time that the surgery was performed with the use of internal fixation, Respondent also considered the possibility of the use of a bone graft. That alternative was rejected having in mind that the fracture involved an open wound presenting the possibility of infection and the introduction of the foreign material to complete the bone graft was problematic for infection. The second reason for not performing a bone graft from the inception was that

    Respondent observed stretching in the inter-osseous membrane between the ulnar and the radius, leading to a concern about the patient's ability to supinate or pronate the arm.

14. Respondent provided W.M. follow-up care beyond the surgery and maintained a written record of the office visits by W.M. and other pertinent information. When testifying Respondent also had an independent recollection of the care provided W.M. and Respondent's custom and practice in providing follow-up care to all his patients.

15. W.M. was first seen in Respondent's office post- operative on June 4, 1993. At that time Respondent examined the patient to see if any infection was present, and looked at the character of the wound. Given the point in time in the course of treatment the wound was not touched physically. The office note for June 4, 1993, revealed that the wound looked good and that the neurocirculatory status of the patient was good. The patient was placed in a long arm cast with the expectation that the staples, holding the incision in place, would be removed the following week. Although the office note does not verify the conversation, Respondent routinely takes a history from patients when they are seen in the office including health, family and social information. Part of that conversation would involve any complaints that the patient had concerning the patient's condition. If a patient being cared

    for by Respondent had a complaint concerning his or her condition, Respondent customarily records that complaint in the patient record. On this date no complaints were recorded concerning W.M.

16. When next seen on June 10, 1993, as the office note reflects, the sutures were removed and Respondent placed W.M. in another long arm cast. Although not documented, Respondent also examined the wound while removing the staples. On the June 10, 1993 visit, an x-ray was performed to reveal the condition of W.M.'s fracture. The x-ray taken at Respondent's office was to establish a baseline for future comparison concerning the condition of the fracture. Respondent did not anticipate that the patient would have begun to heal at that point in time. The patient was to return for an office visit in three weeks.

17. On July 2, 1993, Respondent next saw W.M. An x-ray was taken which Respondent described as looking appropriate at that point in time in its depiction of W.M.'s condition. The office note describes the x-ray as looking good. The x-ray taken on July 2, 1993, was not expected to reveal objective signs of healing; it was ordered in the interest of continued follow-up of the patient. The office note reflects that the patient was being sent to a firm to fit an orthosis for the injured arm. The orthosis was being prescribed to allow the

    patient to have some motion in his elbow above the fracture. Respondent was persuaded that if a patient of the age of W.M. were left in a cast for longer than three weeks, that it would be difficult for the injured person to regain motion in the elbow because of the prospect of fracture disease. W.M. was to be seen again in three weeks beyond the July 2, 1993 office visit.

18. On July 22, 1993, Respondent saw W.M. in the office and another x-ray was performed. Respondent described what he saw in the x-ray as the beginning of what he referred to as trabeculation. That term describes where the bone begins to jump the fracture gap somewhat. The x-ray taken on July 22, 1993, as reviewed by the use of a hot-light, led Respondent to observe trabeculation. On this visit Respondent palpitated the wound site. The reason Respondent palpitated the wound site was to get a baseline on the amount of pain that W.M. was having at that time. Palpitation describes the act of pressing down on the fracture site. Respondent was also trying to feel crepitus, which would reveal that the compression plate was not properly fixed. On this visit there was no indication of movement of the bone. The office note states "beginning to heal his fracture."

19. Respondent next saw W.M. in the office on August 26,

    
    

    1993. The x-ray taken on that date was followed by a note

    placed in the patient record in which Respondent stated "x-ray looked o.k. today, but I can still see the fracture line. It may be united but it is difficult to tell on regular films." As a consequence, Respondent sent the patient to have tomograms performed to gain a clearer depiction of the healing process. Respondent considers tomograms to be superior to plain film x-rays in determining the amount of healing of a fracture, because the tomograms provide a number of different "cuts" to look at. This is contrasted with the one- dimensional portrayal of the plain x-rays that had been performed in Respondent's office.

20. Tomograms were performed on W.M. The examination date was August 31, 1993. The radiology report concerning the examination stated:

    The preliminary films show internal fixation of a fracture through the mid- shaft of the radius. Tomograms were obtained in an attempt to establish osseous union. The examination is compromised by the presence

    of the orthopedic internal fixation of the metallic side plate with six metallic screws. However, the examination does show partial osseous and fibrous union across the fracture side at least a one level (3.5cm).

    
    

21. The impression of the reading radiologist, Marvin S. Berk, M.D., is stated in the tomogram report. It says: "partial osseous and fibrous union at the level of the

    fracture involving the mid-shaft, the radius as described above."

22. Respondent received the report concerning the tomograms performed on W.M., and made the report a part of his patient's record for W.M. Respondent's interpretation of what was stated in the report is that the radiologist "is seeing areas where the bone is healing. He's also seeing fibrous tissue which is exactly what I would expect." Respondent considers a finding of fibrous tissue to be a precursor to establishing bone, in that the fibrous tissue forms the lattice-work for bone. Respondent's reading of the report concerning the discussion of the existence of some osseous tissue is to the effect "that's where the bone is actually healing across, that's an area of trabeculation like I was seeing on the regular film." Respondent believes that the report shows exactly what he expected and he considered the report to create reassurance that healing was occurring.

23. Following receipt of the report on the tomograms,

    
    

    Respondent saw W.M. in his office on September 8, 1993. In the office note Respondent stated "fracture is healing on tomograms." Respondent does not recall whether he discussed the results of the findings in the tomogram with the patient. Respondent observed W.M.'s condition clinically to be one in which there was not swelling or redness in the arm, no

    crepitus and the pain initially experienced by W.M. was beginning to "get less and less." These findings were made upon physical examination. There was no indication of a non- union of the fracture at that time. As Respondent perceives the condition concerning a possibly delayed union at the fracture site, Respondent believes that the concept is a progression in that there is a bell-shaped curve as to the time within which the bone should be healed. Once outside the bell-shaped curve there may be delays in the union and there may or may not be healing at the fracture site. With more time the fixation of the device may become loose and there would be a complaint of pain, erythema, redness, which would constitute a non-union. The condition precedent to non-union was not in evidence on September 8, 1993, from Respondent's impression.

24. W.M. was next seen by Respondent on October 7, 1993.

    
    

    At that time Respondent noted in his office record that W.M.'s "bone is healing." Respondent took an x-ray at that time. He noted upon examination that "the range of motion is good." Respondent went on to note that "he still has some pain from time to time. I will keep him on modified duty. Return in six weeks."

25. Although the x-ray taken on October 7, 1993, used a somewhat different technique, Respondent indicated his

    impression that there was bony growth at the fracture site in the arm. Contributing to the appearance of lucencies on the x-ray was the existence of stress shielding in the area where

    the compression plate was located. Respondent referred to the bone in that area as being "washed-out because you haven't been using it. . . . that's what happens underneath a plate.

    This plate effectively does away with all the forces of the bone underneath it. So you have an area of osteoporosis or the bone gets washed-out." From Respondent's perspective this does not mean that the fracture is not healing. The x-ray on October 7, 1993, compared to the previous x-ray did not evidence resorption, destruction of bone or delayed union, according to Respondent; neither were there any signs of delayed union from a clinical perspective based upon Respondent's observation of his patient on October 7, 1993.

    On that visit, W.M. did not report any redness, swelling or warmth at the fracture site or increase in pain. Respondent did observe fibrous tissue in the x-ray. Overall, Respondent perceived the status of the patient on October 7, 1993, as one in which the healing process was "right on track." Respondent did not find the need for further intervention at that time.

26. One of the possibilities that was available to Respondent in assisting W.M. in the healing process was the use of a bone stimulator around October 7, 1993. Respondent

    did not favor that form of intervention in W.M. Respondent would use the bone stimulator in the instance where he believed there was a non-union in the bone and he would defer to the use of the bone stimulator in "trying everything" to effect the outcome.

27. Respondent saw the patient on November 18, 1993. In the office note he indicated "Patient is healing his fracture. He is still not healed all the way so I want him to have modified duty. He has pain in his wrist. He probably injured his wrist at the same time that he broke the bone which is fairly common." An x-ray was taken of the patient's arm. Physical examination of the patient on that date revealed no clinical signs of non-union that Respondent observed. There was no warmth or redness or swelling. The principal complaint by the patient was that of his wrist hurting which ligaments could have been strained in the wrist at the time of the fracture. On this date, Respondent was persuaded that the fracture was healing adequately. The x-ray taken on that date revealed the plate and screws still intact, some area of lucencies and bridging across the bone, according to Respondent. The bridging of the bone describes osseous healing at the mid-portion of the fracture and right underneath the plate. Respondent does not believe that the November 18, 1993, x-ray shows evidence of resorption or

    destruction of bony tissue. Respondent saw no evidence on the x-ray of delayed union in the fracture site. Again, Respondent did not find the necessity to use a bone stimulator as of this date, there being no clinical indication for its use.

28. Respondent next saw W.M. in the office on

    
    

    January 11, 1994. At that time he noted in the record "his forearm bone is healed. I think that we should leave the plate in. There is really no reason to remove it." An x-ray was taken and Respondent expressed the opinion "I felt like the bone was healed at that point." Respondent told the patient that there was no indication for taking the plate out, as an adult patient. As before, W.M. continued to express concern about pain in his shoulder. That was W.M.'s main complaint on that visit. There were no complaints of increased pain or tenderness in the forearm. No swelling, redness, or warmth was observed by Respondent in examining the forearm. Respondent's clinical impression was that the fracture in the forearm had healed. Specifically, the x-ray indicated that the plate was intact, and areas of lucencies were observed on the January 11, 1994 x-ray, together with areas where the bone was bridging across. Upon reflection, Respondent amended his impression concerning the fracture site to say that the fracture was healing as opposed to "healed."

    The reason for this change in opinion was in recognition that the improvement at the fracture site is a process and "you get to the point where you think it's healed enough to allow them to do everything, and that's a clinical judgment." That was the ultimate judgment which Respondent expressed concerning the patient's condition on January 11, 1994. Respondent felt that the patient could return to regular duty. His findings were based upon clinical evaluation, the type of bone involved and the appearance on x-ray. On January 11, 1994, Respondent found no resorption or delayed or non-union of the fracture.

    The open fracture area had not completely filled with osseous tissue as of that date, but given the nature of the radius bone, Respondent felt that it was not beneath the expected standard of care to discharge the patient prior to the fracture being filled with osseous tissue. Beyond that point in time the Respondent recognizes that the radius bone could still fail in W.M.

29. Unassociated with the complaint in this case Respondent did an arthroscopy on W.M.'s shoulder and saw the patient on follow-up for that treatment. The follow-up office visits for the shoulder were made on February 25, 1994 and March 31, 1994. Nonetheless, Respondent conducted a clinical examination of the patient's forearm on those two dates. The patient was not complaining of increased pain in the forearm,

    nor was any swelling, redness or warmth observed. No clinical signs of non-union or delayed union were observed by Respondent. Although the patient record does not note, the Respondent recalls telling the patient that if W.M. experienced any problems at all such as a loosening of the plate or anything in the forearm that seemed different he could call Respondent or come in immediately. No contact was made between W.M. and Respondent between March 31, 1994 and March 31, 1995.

30. Respondent next saw W.M. in the office on March 31, 1995. W.M. came to see Respondent because "he felt something in his forearm." W.M. did not report experiencing a lot of pain, however. On clinical examination Respondent could feel a looseness in the compression plate in the forearm. An x-ray was performed. The x-ray revealed a bony non-union at the fracture site. As a consequence Respondent recommended that the patient receive a bone graft. It is reported that W.M. had the bone graft performed by another physician. The patient record, office note, entered on March 31, 1995, by Respondent stated:

    Has an obvious non-union of his mid-shaft to his humorous in spite of tomograms one time saying that he was healed. He needs to have his plate out. He has one screw that is broken off and a couple that are loosened. The broken screw will probably have to remain where it is. He needs to

    have an iliac bone graft, some new fixation followed by an EBI.

    
    

    Michael Wasylik, M.D.:

    Opinion supporting propriety of care

    
    

31. Dr. Michael Wasylik is an orthopedic surgeon licensed in Florida and is Board Certified by the American Board of Orthopedic Surgery. Dr. Wasylik is an expert in the field of orthopedic surgery. His practice includes the treatment of injuries such as that suffered by W.M.

    Dr. Wasylik is sufficiently familiar with the treatment Respondent provided W.M. to comment on the level of care, skill, and treatment Respondent afforded W.M. in comparison to that expected of a reasonably prudent physician as being acceptable under similar conditions and circumstances.

32. Dr. Wasylik expressed the opinion that Respondent had met the expected standard of care in treating W.M. Pertinent to this case, Dr. Wasylik believes Respondent did everything a prudent doctor would do in following up the initial care provided W.M., in making judgments based upon clinical signs of the patient and following the patient's course for the necessary period of time, with the advise that the patient come back to see Respondent if W.M. experienced problems.

33. In offering his opinion concerning the follow-up care Respondent provided W.M., Dr. Wasylik relied upon three

    factors which Respondent engaged in evaluating W.M. Those components are the report by history of significant pain in association with the injury, the results of physical examination, to include palpitation of the arm, and the use of x-rays to depict the condition. In Dr. Wasylik's experience, x-rays are often times the least likely tool to provide an answer concerning the patient's condition.

34. As of August 26, 1993, when an x-ray was taken, Dr. Wasylik indicated that he would have been "pretty happy with that," referring to the findings on the x-ray. That x-

    ray still evidenced the fracture in Dr. Wasylik's opinion. It showed good alignment and Dr. Wasylik made the assumption that healing was taking place. As of that time, Dr. Wasylik believed that the condition in the patient's arm was going from soft-callus to hard-callus, the conversion of fibrous tissue into cartilage and from there into bone. What Dr.

    Wasylik would want to see on the x-ray and what he thought that he did see, was osteocytes or bone cells "jump the fracture line." Osteocytes in Dr. Wasylik's understanding are bone cells that will produce bones.

35. Dr. Wasylik approved of Respondent ordering the tomograms to evaluate the circumstances of the fracture. Dr. Wasylik reviewed the report of the findings in the tomogram x-rays rendered by the radiologist. In his

    understanding of the report, it described a partial osseous union as well as an area of fibrous tissue reflecting the progress of the healing. In his opinion, Dr. Wasylik does not believe existence of a partial fibrous union is an indication of a negative finding concerning the healing process.

    Dr. Wasylik stated the belief that he would expect that condition. Significantly, the report persuades Dr. Wasylik that there is a bridging of the fracture and gives him comfort that the fracture is going to heal "and be o.k. on down the line." Dr. Wasylik sees consistency in the discussion in the radiological report concerning the tomograms and the office note Respondent entered on September 8, 1993, to the effect that the "fracture is healing on tomograms."

36. Dr. Wasylik's review of the x-ray taken by Respondent on October 7, 1993, was described by him as a part of a continuum of x-rays taken by Respondent which looked about the same. Dr. Wasylik did not believe that the

    October 7, 1993, x-ray revealed a loss of bone or destruction of bone. Dr. Wasylik does not believe that the October 7, 1993, x-ray reveals delayed union in the fracture site, nor does he believe that the patient history or clinical observations about the patient on that date are consistent with a delayed union in the fracture. Dr. Wasylik does not

    believe that any medical intervention was necessary in W.M.'s care as of October 7, 1993.

37. In discussing the x-ray performed by Respondent on November 18, 1993, Dr. Wasylik observed what he believed to be the presence of bone across the fracture site. Again this x- ray looked similar to prior x-rays taken by the Respondent in Dr. Wasylik's opinion. The November 18, 1993, x-ray did not indicate a delayed union or resorption. Dr. Wasylik believed that the patient's condition on November 18, 1993, was essentially unchanged in that the patient was in a situation where the fracture was in a remodeling phase of bone healing.

38. In considering the January 11, 1994, x-ray Respondent had performed on W.M., Dr. Wasylik did not find any resorption, other than in the area of the plate. There was no indication on the x-ray concerning delayed union in

    Dr. Wasylik's opinion. Dr. Wasylik did not find it necessary for Respondent to do anything for the patient upon this date. As Respondent has conceded, contrary to the note in the patient record, the forearm bone had not healed on January 11, 1994. Dr. Wasylik describes the circumstances as one in which the bone was in the remodeling phase, leading to the assumption that it would get stronger.

39. Dr. Wasylik described W.M.'s condition on March 31, 1995, as a non-union of the radius, with the failure of the plate.

40. Dr. Wasylik did not believe that the standard of care for treating W.M. required Respondent to use a bone stimulator.

    Rory Evans, M.D. - Opinion that Respondent fell below the standard of care by failing to diagnose a delay and subsequent non-union of the fracture of the mid-shaft of the left radius

    
    

41. Dr. Rory Evans is licensed in Florida to practice medicine. He is Board certified in orthopedic surgery, in peer review and in utilization review. He is an expert in orthopedic surgery. He is sufficiently familiar with Respondent's treatment provided W.M. to render an opinion concerning the quality of that care. He treats patients for radius fractures routinely.

42. Dr. Evans takes no issue with Respondent's surgery on W.M. and early follow-up care. He does criticize Respondent in the later response to W.M.'s condition. That criticism coincides with the basis for the Administrative Complaint as Dr. Evans describes in a report he rendered concerning his critique of the care provided W.M. The failure to meet standards in Dr. Evans' opinion was in relation to not diagnosing a delayed and then subsequent non-union of the fracture in W.M.'s radius. Dr. Evans believes that the x-rays

    performed on October 7, 1993, make it apparent that in the five months post-injury there was at least a delayed union at the fracture site. In his report Dr. Evans indicates that a subsequent series of x-rays indicated a non-union of the fracture. Dr. Evans' report indicates that the January 11, 1994, note in Respondent's office records that "his forearm bone is healed" is not a valid comment given that at this point in time there was a definite non-union of the bone. It is the failure to recognize the complication of the non-union that constitutes practice below the applicable standard of orthopedic care, according to the report.

43. In his testimony, Dr. Evans further explained his criticism. While Dr. Evans agrees with the choice not to do a bone graft from the inception, he was impressed with the instability of the fracture, a condition that could not be attended anatomically and was put back together with plates and screws. Respondent committed error, in Dr. Evans' opinion, when after reviewing a series of x-rays Respondent believed that the progress in the healing was shown on the x- rays. When Dr. Evans reviewed those x-rays it led him to believe that there was no progression of healing.

44. Concerning the August 26, 1993, x-ray Dr. Evans in his review of the results indicated that he would have started to get concerned about the fracture site, in that there is

    more resorption of the bone, although the fixation was still intact. Dr. Evans does not see evidence of healing on that x- ray.

45. Dr. Evans did not believe that the tomograms ordered two months away from the time of the injury would show healing, notwithstanding the special nature of those x-rays. Dr. Evans does not believe that Respondent's interpretation of the meaning of the tomograms was consistent with the impression gained by the radiologist who studied the x-ray. Dr. Evans' interpretation of what the radiologist's report stated, by paraphrase, is that the radiologist "said that there was fibrous union, which is not bony union." Dr. Evans' view did indicate that there was a small area of union at the fracture site, a little bony-ridge there. But in Dr. Evans' opinion it is very clear from the x-rays that the bone is a long way from healing.

46. Although Dr. Evans disagrees with Respondent's interpretation of the tomogram report written by the radiologist, Dr. Evans does not offer the opinion that Respondent should have intervened in the care at that time. At that juncture Dr. Evans expressed the opinion that the patient's circumstance was one of watching and waiting.

47. Dr. Evans in his testimony, takes issue with Respondent's statement in the October 7, 1993 office note that

    "the bone is healing. Range of motion is good." In particular, Dr. Evans, in examining the x-ray taken on

    October 7, 1993, believes that it begins to show that the bone is not healing. Dr. Evans expressed the opinion that he would have been very concerned in October 1993. Dr. Evans believes that the x-ray on October 7, 1993, was starting to show resorption around the fracture.

48. By the time of the November 18, 1993 x-ray, it is perceived by Dr. Evans as making it quite apparent that there is a problem, and that the fracture is not healing.

49. The x-ray on January 11, 1994, in Dr. Evans' opinion, absolutely, unequivocally shows that the fracture is not healing and that there is no new bone at the fracture site. Moreover, he believes that the x-ray shows more resorption around the screws in the plate.

50. Dr. Evans also expressed the opinion that the use of a bone stimulator as early as October 1993 was appropriate to try and heal the fracture.

51. As of November 18, 1993, Dr. Evans believes that the fracture was not healing, instead it was going in the opposite direction. Intervention was necessary at that time, from

    Dr. Evans' perspective and he would have recommended the use of a bone stimulator. The failure to recommend the use of a bone stimulator on that date constitutes the deviation from

    acceptable standards of care in Dr. Evans' opinion. Alternatively, bone grafting could have been considered. The more conservative choice would be the use of a bone stimulator. In his testimony, Dr. Evans expressed the opinion that most orthopedic surgeons would have recognized a delayed union at the fracture site on November 18, 1993.

52. In his testimony, Dr. Evans expressed the opinion that the January 11, 1994 x-ray shows the beginning of the non-union of the fracture where it is developing a wider gap with the bone flaring out, and resorption is taking place around the screw near the fracture. By this point in time healing would be expected if it was going to occur without further intervention, according to Dr. Evans. The repair is failing in his opinion. Again Dr. Evans believes that intervention was necessary on January 11, 1994, by the use of a bone stimulator or further surgery. Unlike the circumstance on November 18, 1993, by January 11, 1994, Dr. Evans does not believe that any reasonable orthopedic surgeon would wait and watch the patient's condition, in contrast to promoting further intervention in the care.

53. Dr. Evans does not take issue with the ultimate choice which Respondent recommended in addressing the obvious non-union that was found on March 31, 1995, the iliac bone

    graft. This necessity is borne out by the March 31, 1995, x- ray as Dr. Evans perceives it.

    In Summary:

    
    

54. The respective opinions expressed by the Respondent, Dr. Wasylik, and Dr. Evans in portraying the quality of care Respondent provided W.M., in the final analysis, are not more persuasive when compared one to the other.

    CONCLUSIONS OF LAW

    
    

55. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

56. The relevant factual allegations in the Administrative Complaint in relation to the care Respondent provided W.M. are as follows:

    * * *

    
    

    1. The x-rays taken by the Respondent in October 1993, revealed signs of osteolysis (softening, absorption, and destruction of bony tissue) and a delayed union, which the Respondent failed to diagnose and treat.

       
       

    2. On or about January 11, 1994, Patient

       W.M. presented to the Respondent for recheck. At this visit, Respondent documented that the left forearm radial fracture had healed and recommended the DCP compression plate to be left in place.

       
       

       * * *

       1. A reasonably prudent physician under similar conditions and circumstances would have correctly diagnosed and treated Patient W.M.'s delayed union of the mid- shaft radial fracture in or about October 1993.

          
          

       2. A reasonably prudent physician under similar conditions and circumstances would have correctly diagnosed and treated Patient W.M.'s non-union of the mid-shaft radial fracture in or about January 1994.

          
          

       3. Respondent failed to practice within the standard of care in that he failed to correctly diagnose and treat Patient W.M.'s delayed union of the mid-shaft radial fracture in or about October 1993.

          
          

       4. Respondent failed to practice within the standard of care in that he failed to correctly diagnose and treat Patient W.M.'s non-union of the mid-shaft radial fracture in or about January 1994.

          
          

       5. Based on the foregoing, Respondent has violated Section 458.331(1)(t), Florida Statutes, by failing 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.

       
       

57. The parties concede that Petitioner must establish proof by clear and convincing evidence that the violations of Section 458.331(1)(t), Florida Statutes, have occurred. That is a proper perception. It is consistent with Section 120.57(1)(j), Florida Statutes. See also Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987), and Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

58. Having considered the opinions offered by doctors Evans and Wasylik, and the explanation provided by Respondent, clear and convincing evidence has not been established that Respondent violated Section 458.331(1)(t), Florida Statutes, through failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances to those involved with Respondent's practice associated with W.M.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered by the Board of Medicine dismissing the Administrative Complaint in Case No. 1998- 12121.

DONE AND ENTERED this 29th day of November, 2001, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 29th day of November, 2001.

COPIES FURNISHED:

Bruce E. Lamb, Esquire Ruden, McClosky, Smith,

Schuster & Russel, P.A.

401 East Jackson Street, 27th Floor Tampa, Florida 33602

Robert C. Byerts, Esquire

Agency for Health Care Administration Fort Knox Building II, Suite 1100

2729 Fort Knox Boulevard, Mail Stop 39-A Tallahassee, Florida 32308-6287

Theodore M. Henderson, Agency Clerk Department of Health

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

Tanya Williams, Executive Director Board of Medicine

Department of Health

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

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: 01-002241PL

Orders for Case No: 01-002241PL