STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. )

)

DIEN DUONG, P.A., )

)

Respondent. )

Case No. 01-4754PL

)

RECOMMENDED ORDER

Pursuant to notice, this case came on for formal hearing before Fred L. Buckine, Administrative Law Judge, Division of Administrative Hearings, on February 13, 2002, in Plant City, Florida.

APPEARANCES

For Petitioner: Bruce A. Campbell, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 39A Tallahassee, Florida 32399-0450

For Respondent: Jon M. Pellett, Esquire

Barr, Murman, Tonelli, Slother and Sleet, P.A.

201 East Kennedy Boulevard, Suite 1750 Tampa, Florida 33602

Julie Kauziarich, Esquire Post Office Box 1/2669 Tampa, Florida 33672-0669

STATEMENT OF THE ISSUES

Whether Respondent, Dien Duong, violated the provisions of Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, as specifically alleged in the Administrative Complaint, and, if so, what penalty would be appropriate.

PRELIMINARY STATEMENT

On May 14, 2001, the Department of Health (the Department) in AHCA Case No. 99-59753, filed an Administrative Complaint against Respondent, Dien Duong, P.A. The Administrative Complaint alleged that Respondent violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a prudent similar physician's assistant as being acceptable under similar conditions and circumstances, with regard to patient D.Z. on May 8, 1998. Specifically, Petitioner alleged that Respondent violated the above quoted subsection of the Florida Statutes by:

1. Passing a suture directly through Patient D.Z.'s ulnar nerve; and/or

2. Knotting a suture around Patient D.Z.'s ulnar nerve, partially attaching the nerve to other soft tissue; and/or

3. Suturing Patient D.Z.'s laceration using two layers instead of closing the laceration in a single layer.

Additionally, Petitioner alleged Respondent failed to keep medical records that justify the course of treatment, violating

Subsection 458.331(1)(m), Florida Statutes, in that Respondent's medical records did not justify her:

1. passing a suture directly through Patient D.Z.'s ulnar nerve; and/or

2. Knotting a suture around Patient D.Z.'s ulnar nerve, partially attaching the nerve to other soft tissue; and/or

3. Suturing Patient D.Z.'s laceration using two layers instead of closing the laceration in a single layer.

Respondent timely filed an election of rights disputing the allegations of fact contained in the Administrative Complaint and petitioning for a formal administrative hearing.

On December 6, 2001, the matter was referred to the Division of Administrative Hearings. On December 18, 2001, the Notice of Hearing scheduling the final hearing for February 13, 2002, in Plant City, Florida was issued. On February 6, 2002, the parties filed their Joint Prehearing Stipulation.

At the final hearing Petitioner presented one witness, Patient D.Z., and offered in evidence the deposition of Robert

1. Maddalon, M.D., (Exhibit P-1), dated January 24, 2000, that was received in evidence without objection. Respondent objected to Petitioner's second exhibit P-2, (deposition of Heather Wood, P.A., dated January 30, 2002) citing a violation of Section 90.706, Florida Statutes, alleging that Petitioner's use of Exhibit P-2 was as a conduit for the introduction of inadmissible evidence. Exhibit P-2 was admitted in evidence

   with reservation on ruling on Respondent's objection until entry of this recommended order.

   After review of the deposition of Heather Wood, P.A., and after review of arguments of counsel, memoranda of law and the law cited by counsel, it is determined that Heather Wood's opinion testimony was based on page 94 of the cited text.

   Counsel's use of page 94 of the cited text during his direct examination of Ms. Wood, had the effect and the purpose of bolstering her opinion. Respondent's motion to strike from consideration in this cause the deposition of Heather Wood is granted.1 See Green v. Goldberg, 630 So. 2d 606 (Fla. 4th DCA 1993).

   Respondent testified on her own behalf, and offered the testimony of Deborah Vergara, P.A., qualified as an expert in the area of physician assistant's responsibilities, duties and protocol; Charles Eaves, D.O., Board Certified in Emergency Medicine and qualified as an expert in physician supervision of physician's assistants; and Barry Solomon, M.D., qualified as an expert in the protocol and relationships between a physician and a physician's assistant in emergency room settings.

   Respondent offered into evidence six exhibits (R-1 through R-6), which were admitted without objection.

   The parties stipulated that one joint exhibit (J-1), the Emergency room medical records of D.Z. from South Florida Baptist Hospital, be admitted in evidence.

   On February 27, 2002, a Transcript of the proceeding was filed and the parties filed their respective Proposed Recommend Orders on March 20, 2002, which have been considered in the drafting of this Recommended Order.

   FINDINGS OF FACT

   
   

   Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following material and relevant facts are found:

   1. Petitioner, Department of Health, Board of Medicine, is the state agency charged with regulating the practice of physician's assistants pursuant to Chapters 455 and 458, Florida Statutes, and Section 20.43, Florida Statutes.

   2. Respondent is and has been at all times material hereto a licensed physician's assistant in the state of Florida, having been issued license number PA 0003211 in 1997. Respondent received a Bachelor's Degree in Biology from Hope College, Holland, Michigan, in 1989 and thereafter received her physician's assistant degree from Western Michigan University in 1991, and became certified in Family Practice and in Surgery in Michigan upon graduation. Respondent has maintained her

      certification in Family Practice and in Surgery by successfully passing an examination every six years since 1991, in addition to taking a minimum of 100 hours of Continuing Medical Education (CME) courses each year.

   3. In 1997 Respondent began working at South Florida Baptist Hospital Emergency Department and has maintained her employment in that department as a physician's assistant. During the course of her employment, Respondent has gained extensive experience in the practice of assessing lacerations and repairing lacerations of all types. Respondent is highly respected by her employing physician, Dr. Charles Eaves, and by her supervising physicians in the emergency department of the hospital. Respondent has never been the subject of discipline or corrective action regarding her professional job performance as a physician's assistant.

   4. A physician's assistant is a licensed health care professional who works under the supervision of a doctor. Typical protocol between the supervising doctor and the physician's assistant is for the physician's assistant to inspect and evaluate the patient, examine the injury, prepare the patient for treatment, consult with the supervising doctor, and thereafter administer treatment to the injury approved by the doctor, followed by after-care instructions to the patient.

   5. Based upon the testimony of the experts, the protocol between experienced physician's assistants and their supervising doctors is based upon the doctor's respect and confidence in the physician's assistant's abilities, competence, experience and work history. In these mutual trust and respect working relationships, protocol typically permits the physician's assistant to work relatively autonomously. Without involvement of the supervising doctor, the physician's assistant examines emergency room injuries; they often treat the injured patient, and thereafter present the patient's case treatment and the patient's medical record to the supervising doctor for approval and, when recommended, signature for prescribed medication. The protocol between Respondent and her supervising physician, Dr. Diaz, at South Florida Baptist Hospital on May 8, 1998, was that of mutual trust.

   6. Patient D.Z. was a 33 year-old male who had fallen from a ladder and, while attempting to break his fall with his right hand, suffered a blunt, T-shaped, tear-like laceration injury to his right hand. The injury was on the palmar aspect in the area of the fifth metacarpal of the hand-bone that extended to the small finger; a complex laceration, described by doctors as a "sort of bust or blunt type," as opposed to a clean knife cut type, approximately 3/4 centimeter in depth.

   7. On May 8, 1998, D.Z. presented himself to the South Florida Baptist Hospital (Hospital) emergency room for treatment of his right hand laceration that extended to the subcutaneous level with subcutaneous tissue exposure. The Hospital's triage nurse, after completing preliminary patient information, directed D.Z. to First Care, that part of the hospital's emergency department where Respondent was working.

   8. Respondent, following protocol, examined D.Z.'s injured right hand and ordered x-rays to be taken. An x-ray was taken of D.Z.'s right hand and was reviewed by Respondent's supervising physician, Dr. Diaz, prior to treatment of the injury by Respondent. Dr. Diaz concluded that D.Z.'s x-ray was negative, with no broken bones or tendon involved. The medical records noted that D.Z. had the full range of motion of his fingers without numbness or tingling at that time.

   9. Respondent's treatment of D.Z. consisted of laying D.Z. on his back with his arm out to his side and using local anesthesia to numb the injured area. After numbing the hand, she infiltrated the wound with one percent plain Lidocaine, irrigated the wound with normal saline, and cleaned the wound with Betadine. She then debrided the tissue. Using sterile techniques, Respondent proceeded to suture the T-shaped laceration of D.Z.'s right hand.

   10. Because of the shape and depth of the laceration and because of the exposure of jagged-edge tears to the subcutaneous tissues, Respondent placed four subcutaneous sutures with 4.0 vicryl, an absorbable suture, in order to bring and keep the jagged-edged tears of D.Z.'s laceration together.

   11. For the type of wound suffered by D.Z., described as "bust-type-ripping-flesh tear," it is not possible to close a three or four centimeter wound with only surface sutures. Subcutaneous sutures are required for those wounds of this type and depth. For these reasons and acting appropriately within the scope of the practice of an experienced physician's assistant, Respondent determined to use subcutaneous sutures on D.Z., who is right-hand dominate.

   12. The experts who testified, Dr. Eaves, Dr. Solomon, Dr. Maddalon and Ms. Vergara, agreed that the process of using subcutaneous sutures helps to control bleeding, reduce tension within the laceration, and minimize potential "air pockets" within the wound, thereby promoting the healing process, and preventing potential, after-surgery, complications.

   13. In accord with protocol established between Dr. Diaz and Respondent, it was at the conclusion of her treatment care of D.Z. that she advised Dr. Diaz of her subcutaneous suture treatment and follow-up care plan. Respondent presented D.Z.'s record for his review, approval and signature. Dr. Diaz

       approved Respondent's subcutaneous suture treatment, her follow- up care plan of keeping the wound clean, taking the prescribed medication and having the sutures removed within a few days during his follow up a doctor of his choice. Dr. Diaz signed both the Emergency Room report and Respondent's suggested prescription medications for D.Z.

   14. On May 11, 1998, four days after his treatment and without obtaining and taking his prescription medications as instructed, D.Z. presented himself to Dr. Maddalon's office for a follow-up examination and evaluation of his injury.

   15. On May 14, 1998, Dr. Maddalon, who employed D.Z.'s mother as his office manager and had employed D.Z. for six years to clean his office and who had operated and treated D.Z.'s right hand for carpal tunnel syndrome some years earlier, examined D.Z.'s right hand following an earlier examination by his physician's assistant.

   16. On May 15, 1998, during exploratory surgery,

       
       

       Dr. Maddalon reopened the laceration of D.Z.'s right hand and observed that a subcutaneous suture had passed through the ulnar nerve and tied the ulnar digital nerve to the adjoining soft tissue. He removed the subcutaneous suture and removed the damaged part of the ulnar nerve. He then re-attached the exposed ends of the ulnar nerve. D.Z. recovered satisfactorily

       from Dr. Maddalon's surgery with most but not all of the sensation returning to the little finger on his right hand.

   17. According to his deposition, and without a review of D.Z.'s medical records from South Florida Baptist Hospital emergency room prepared by Respondent, Dr. Maddalon opined that certain protocol should be followed in treating "blunt-tear" type hand injuries like that suffered by D.Z. Dr. Maddalon went on to stress, however, that in his opinion placing subcutaneous sutures in such an injury as D.Z.'s was not below the standard of care for a physician's assistant.

   18. Deborah Vergara, a physician's assistant at Town and Country Hospital, Tampa, Florida, qualified as an expert in physician's assistants' duties, responsibilities and protocol, and after reviewing D.Z.'s medical records, opined that the care provided D.Z. by Respondent during treatment on May 8, 1998, was appropriate for a patient with D.Z.'s type laceration and was not below the standard of care for a physician's assistant.

   19. Deborah Vergara further opined that a suture passing through the ulnar nerve, in and of itself, is not a breach of the standard of care, and she was not aware of any textbooks for physician's assistants that prohibited ever placing subcutaneous sutures in a laceration.

   20. Dr. Charles Eaves, D.O., an expert in emergency medicine and an expert in supervising physician's assistants and

       who also has been the supervising doctor of South Florida Baptist Hospital for the past three years, opined that Respondent's placing subcutaneous sutures in a palmar laceration was absolutely within the standard of care. Dr. Eaves further opined that Respondent's entries in D.Z.'s medical records were within the standard of care.

   21. Dr. Barry Solomon, Board Certified expert and employed by the Physician Health Care Alliance in Clearwater, Florida, after review of all of D.Z.'s medical records from South Florida Baptist Hospital, the Administrative Compliant filed in this case, Dr. Maddalon's deposition, and records from Brandon Regional Medical Center, gave his opinions in the following areas:

       1. Protocol of supervising physician and physician's assistants working in specific areas of medicine. According to Dr. Solomon, physician's assistants generally operate with relative autonomy, based upon the experience of the assistant and the confidence of the supervising physician. Physician's assistants see low acuity patients, leaving the physician to see high acuity patients. Physician's assistants do check with the physician on duty as they proceed through treating a patient, checking to make sure what they are going to do is appropriate and have the physician review and sign the chart as the patient is being made ready for discharge.

          
          

       2. Protocol for physician's assistants suturing palmar lacerations. Dr. Solomon opined that Respondent's conduct when presented with a patient with a palmar laceration in a subcutaneous area with an abnormal, complex laceration, and after assessment for nerve damage, tendon damage, bone injury, and after obtaining an x-ray which was reviewed by the emergency room physician at the time, and then proceeding to place a two- layer closure consisting of four subcutaneous sutures and eleven external sutures to close the wound, was within the standard of care of physician's assistant, in this case, the Respondent.

       3. Dr. Solomon further opined that there is nothing wrong with placing subcutaneous sutures in a hand laceration and there is always a risk, with a deep wound that nerves, blood vessels, arteries and veins could potentially be hit or sutured. This risk is a recognized complication when one places subcutaneous sutures in that (hand) part of the body. He concludes that Respondent practiced within the physician assistant's standard of care in her subcutaneous suture treatment of Patient D.Z.'s right hand.

   22. Petitioner has failed to provide the opinion of an expert that establishes a standard of care for an experienced physician's assistant; has failed to provide evidence of standard of care for maintaining medical records; and has failed

       to provide an expert opinion in support of the allegation that Respondent's treatment of D.Z.'s right hand laceration fell below a physician's assistant standard of care for treatment of hand lacerations.

   23. The testimony of Dr. Charles Eaves, Dr. Barry Solomon and Deborah Vergara is credible in establishing that Respondent, Dien Duong, actions were not violations of Subsection 548.331(1)(m) and 488.331(1)(t), Florida Statutes.

       CONCLUSIONS OF LAW

       
       

   24. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this proceeding, pursuant to Sections 120.57 and 456.073, Florida Statutes.

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

   26. License revocations and discipline procedures are penal in nature. Petitioner must demonstrate the truthfulness of the allegations in the Administrative Complaint dated May 15, 2001, by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   27. The "clear and convincing" standard requires:

       
       

       [T]hat the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

       
       

       Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

       
       

   28. In this case, Respondent is charged in the Administrative Complaint with violating Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, that in pertinent parts provide:

       (m) Failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the licensed physician or the physician extender and supervising physician by name and professional title who is or are responsible for rendering, ordering, supervising, or billing for each diagnostic or treatment procedure and that justify the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

       
       

       * * *

       
       

       (t) Gross or repeated malpractice

       or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent

       similar physician as being acceptable under similar conditions and circumstances.

       
       

   29. Petitioner has failed to prove by clear and convincing evidence that Respondent is guilty of the charges contained in the Administrative Complaint filed in this cause.

   30. Where Petitioner charges negligent violations of general standards of professional conduct, as in this case, Petitioner must present expert testimony that proves the required professional conduct, as well as the deviation there from. Purvis v. Department of Professional Regulation, 461 So. 2d 134 (Fla. 1st DCA 1984).

   31. Petitioner has failed to prove the general standards of professional conduct for physician's assistants by testimony of an expert and has likewise failed to prove Respondent's conduct was a deviation there from.

   32. Assuming arguendo that the deposition testimony of Ms. Wood had been admitted in evidence, the results would not change. The deposition of Ms. Wood did not qualify her as an expert. It failed to identify the learned treatises from which a general standard could be determined and failed to confirm that by education and experience Ms. Wood was qualified to give expert testimony of general standards for physician's assistants. Had these factors been met, Ms. Wood's testimony

would not have overcome the testimony of other experts who were in agreement in their testimonies that physician's assistants' protocol changed when trust and confidence of the supervising doctor toward his or her physician's assistant increased.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Board of Medicine enter a final order finding Respondent not guilty of violating Subsections 458.331(1)(m) and (t), Florida Statutes.

DONE AND ENTERED this 2nd day of May, 2002, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 2nd day of May, 2002.

ENDNOTE

1/ In Green, supra, the Court held that authoritative publications could only be used during cross-examination of an expert and not to bolster credibility of the expert or to supplement opinion of the doctor, which had already been formed. The Green Court went further, explaining that learned treatises

may not be used as substantive evidence, even through statute authorizes use of authoritative publications to cross-examine expert witnesses; treatise is hearsay if used as substantive evidence. Section 90.706, Florida Statutes.

The pertinent portion of Wood's testimony in response to direct examination contrary to Green is found on pages 10 through 12.

COPIES FURNISHED:

Bruce A. Campbell, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 39A Tallahassee, Florida 32399-0450

Julie Kauziarich, Esquire Post Office Box 1/2669 Tampa, Florida 33672-0669

Jon M. Pellett, Esquire

Barr, Murman, Tonelli, Slother and Sleet, P.A.

201 East Kennedy Boulevard Suite 1750

Tampa, Florida 33602

Tanya Williams, Executive Director Board of Physicians Assistants Department of Health

4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-004754PL

Orders for Case No: 01-004754PL