STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, )
BOARD OF MEDICINE, )
)
Petitioner, )
) Case No. 02-0468PL
vs. )
)
) DAVID WOODING CAHILL, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on April 17, 2002, in Tampa, Florida, on behalf of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Kim Kluck, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Tallahassee, Florida 32308
For Respondent: Bruce D. Lamb, Esquire
J. Travis Godwin, Esquire Ruden, McClosky, Smith,
Schuster, & Russell, P.A.
401 East Jackson Street, 27th Floor Tampa, Florida 33602
STATEMENT OF THE ISSUES
The issues in this case are whether Respondent violated Section 458.331(1)(t), Florida Statutes (1997), 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 (the standard of care); and, if so, what penalty, if any, should be imposed against Respondent's license to practice medicine. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
PRELIMINARY STATEMENT
On December 12, 2001, Petitioner filed an Administrative Complaint against Respondent. Respondent timely requested an administrative hearing.
At the hearing, the parties submitted one Joint Exhibit consisting of the medical records relevant to this case. The ALJ granted the parties' request to seal the Joint Exhibit.
Petitioner presented the testimony of a registered nurse and submitted three exhibits for admission in evidence. Two of Petitioner's exhibits consist of the deposition testimony that Petitioner's expert physician provided during two depositions.
Respondent testified in his own behalf and as an expert, and submitted six exhibits for admission in evidence. One of Respondent's six exhibits is the deposition testimony of Respondent's expert witness. In addition, Respondent submitted one late-filed exhibit that is the deposition testimony of
Dr. Ralph Edward Rydell. Petitioner objected to the
admissibility of the deposition testimony of Dr. Rydell but did not object to Respondent submitting the deposition as a late- filed exhibit. The identity of the witnesses and exhibits and any attendant rulings are set forth more fully in the Transcript of the hearing filed on May 1, 2002.
The ALJ allowed the parties ten days from the filing of the late-filed exhibit to submit Proposed Recommended Orders ("PROs"). Respondent filed the late-filed exhibit on May 31, 2002. Petitioner and Respondent timely filed their respective PROs on June 10 and 2, 2002.
The investigation file that Petitioner developed before filing the Administrative Complaint against Respondent includes two written expert opinions that Petitioner obtained from
Dr. Dean Lohse and Dr. Rydell. Petitioner produced the written expert opinions in response to discovery requests from Respondent, and Respondent took the deposition testimony of each physician.
At the hearing, Respondent submitted the written reports and deposition testimony of Drs. Lohse and Rydell. Petitioner objected to the admissibility of the reports and deposition testimony on the grounds that they are irrelevant, hearsay, and cumulative. The ALJ reserved ruling on Petitioner's objections and requested the parties to brief the evidentiary issues in their respective PROs.
In Petitioner's PRO, Petitioner argues for the first time that the written expert opinions and deposition testimony of Drs. Lohse and Rydell constitute work product that is protected from discovery pursuant to Florida Rules of Civil Procedure Rule 1.280(b)(4)(B)(1997). A determination of whether the reports and deposition testimony constitute work product requires certain findings of fact for which neither party adduced any evidence during the administrative hearing. (All references to rules are to rules promulgated in the Florida Rules of Civil Procedure (1997) unless otherwise stated.)
The ALJ contacted the attorneys for the respective parties and gave the attorneys the choice of either reconvening the hearing to resolve the requisite factual issues or submitting a stipulation of facts. Counsel for both parties agreed to a factual stipulation and requested additional time to brief the issues. The ALJ granted the parties joint request for additional time.
The parties filed the Joint Stipulation Regarding Production of Written Expert Reports on July 17, 2002. Respondent filed Respondent's Memorandum of Law Regarding "Work Product" on July 22, 2002. Petitioner filed Petitioner's Memorandum of Law in Support of Excluding the Expert Witness Testimony of Drs. Lohse and Rydell on July 24, 2002.
FINDINGS OF FACT
Petitioner is the state agency responsible for regulating the practice of medicine in Florida pursuant to Section 20.43, Chapter 458, and Chapter 456, Florida Statutes (2001). Respondent is licensed as a physician in the state pursuant to license number ME 0043324.
The Administrative Complaint involves one male patient who underwent emergency surgery in 1997 at Tampa General Hospital (TGH). The record identifies the patient as D.Y. in order to preserve the patient's confidentiality.
The Administrative Complaint, in relevant part, alleges that Respondent failed to keep written medical records justifying the course of treatment of D.Y. in violation of Section 458.331(1)(m) and departed from the standard of care in violation of Section 458.331(1)(t). At the administrative hearing, however, Petitioner voluntarily dismissed the charge that Respondent failed to keep adequate medical records in violation of Section 458.331(1)(m). The only remaining issue in the Administrative Complaint is whether Respondent deviated from the standard of care by failing to ensure that the attending residents performed surgery on the correct side of D.Y.'s head, i.e., "at the correct site."
Respondent is Board certified in Neurology and Neurological Surgery and is a professor and Chairman of the
Department of Neurosurgery at the University of South Florida College of Medicine (USF). Respondent is the founder of the residency program in neurological surgery at USF. Respondent performs approximately 300 to 400 neurosurgical procedures each year and has done so for more than 15 years.
In 1997, Respondent was the Director of the USF residency program in Neurological Surgery. The residency program required residents to complete six to seven post- doctoral years. The record refers to post-doctoral years alternatively as post graduate years or as PGY-1 through PGY-7. TGH was the primary teaching hospital for USF in 1997 and operates in that capacity today.
In March 1997, two resident physicians in the USF neurology program performed surgery on D.Y. at TGH. The record identifies the resident physicians as Drs. Etebar and Makoui. Drs. Etebar and Makoui were authorized and qualified to perform the task each performed during the surgery on D.Y.
Respondent was the attending physician of record for D.Y., but TGH protocol did not require Respondent to be present in the operating room during the surgery. Although Respondent was present in the operating room at some point during the surgery, Respondent did not participate in the surgery.
On March 25, 1997, D.Y. was 44 years old and involved in an automobile accident. Airmed Flight Service (Airmed), a
helicopter flight service, transported D.Y. to TGH. The Airmed Flight Service record indicates that D.Y. had a history of progressive lethargy and suffered a right side subdural hemorrhage.
TGH admitted D.Y. under the care of Respondent.
The admitting nurse conducted an initial evaluation of D.Y. that included a neurological assessment. D.Y. was extremely lethargic, obeyed only simple commands, and was non-verbal.
Dr. Makoui conducted a physical examination of D.Y.
D.Y. responded to stimulus but was unable to follow commands and was dysphasic.
A magnetic resonance image (MRI) revealed a large subdural hematoma on the left side of D.Y.'s head. A subdural hematoma is a blood clot between the surface of the brain and the dural membrane that covers the brain.
While D.Y. was in the MRI suite, the patient herniated and became comatose. He developed seizure activity, and his heart rate dropped below 30 from a normal rate of
75 to 125.
Herniation in a patient suffering from a subdural hematoma indicates that a portion of the patient's brain has shifted over a fixed membrane inside the skull and is pressing on the brain stem. It is a life-threatening event because the
upper brain stem malfunctions and impacts vital functions, including respiration.
Surgical intervention was critical or D.Y. would have died. Respondent ordered D.Y. to be transported to the operating room for evacuation of the subdural hematoma. One means of removing a subdural hematoma is by a surgical procedure known as a burr hole evacuation. In the operating room, the medical team prepared D.Y. for a "burr hole evacuation of hematoma and placement of intracranial pressure monitor."
The operating record listed Respondent as the attending surgeon, Dr. Etebar as the surgeon, and Dr. Makoui as an assistant. However, Respondent did not participate in the surgery. Respondent did not enter the operating room until after D.Y. was in the operating room. Drs. Makoui and Etebar were in the operating room with D.Y. when Respondent entered the operating room.
The operating room record indicates that Respondent approved the positioning of the patient in the "supine" position, i.e., facing straight up. However, the nurse who made the entry in the operating record customarily lists the name of the attending physician of record as the person who approves the position of the patient.
Dr. Makoui shaved D.Y.'s scalp in preparation for the surgery. Dr. Etebar then made two one-inch-long scalp incisions
in the frontal and parietal areas on the right side of D.Y.'s head. Respondent did not make any incision in D.Y., including the incorrect incision on the right side of D.Y.'s head.
At an undetermined point in the surgery, the surgical team became aware that the incisions made by Dr. Etebar on the right side of D.Y.'s head were incorrect. Respondent was present in the surgical suite when it was first noted that the initial incisions had been made on the incorrect side of D.Y.'s head.
Dr. Etebar closed the incisions on the right side of D.Y.'s head and repositioned D.Y. with the left side of the patient's head facing up. Dr. Etebar then made burr hole incisions on the left side of D.Y.'s head and evacuated a large amount of liquid clot.
Dr. Etebar placed two drains subdurally on the left side of D.Y.'s head and closed the wounds. Dr. Etebar placed drains in the left side of the brain to prevent any reoccurrence of hematoma.
The surgical team repositioned D.Y. neutrally.
Dr. Etebar then placed a burr hole and a ventriculostomy catheter on the right side of D.Y.'s head to monitor intracranial pressure.
It was medically necessary to monitor intracranial pressure with a pressure monitor because the patient was
comatose and could not be monitored clinically for the development of pressure. Respondent and the surgeons at TGH routinely place intracranial pressure monitors in a patient who is suffering from a subdural hematoma and who is comatose preoperatively.
Postoperatively, the surgical team transported D.Y. to the neurosurgical intensive care unit where he remained for several days while recovering. On March 31, 1997, TGH discharged D.Y. in stable condition with instructions to follow up with Respondent in two weeks.
D.Y. suffered no complication or permanent injury as a result of the incisions by Dr. Etebar in the right side of D.Y.'s head. Respondent did not cause any harm to the patient.
Respondent did not personally commit any act or omission that deviated from the standard of care. Nor did Respondent improperly delegate responsibility to Drs. Etebar or Makoui.
Four experts, in addition to Respondent, reviewed Respondent's care of D.Y., rendered opinions, and testified in this case. Two of the experts are Drs. Lohse and Rydell.
Drs. Lohse and Rydell are experts within the meaning of Section 90.702. Dr. Lohse is Board-certified in neurological surgery and treats subdural hematomas. Dr. Rydell is Board-certified in neurological surgery and provides treatment for subdural
hematomas including burr hole evacuations. Dr. Daniel P. Robertson is Petitioner's expert witness. Dr. Robert Snow is Respondent's expert witness.
All four experts agree. In providing medical care to D.Y., Respondent did not engage in a direct act or omission that violated the standard of care. Nor did Respondent improperly delegate responsibility to the residents who performed the surgery on D.Y.
A burr hole evacuation of a subdural hematoma is the simplest operation performed by neurosurgeons. Dr. Etebar and Dr. Makoui were each competent in 1997 to perform the evacuation of the subdural hematoma using the burr hole procedure.
Dr. Makoui was a PGY-2 in his second post graduate year. Dr. Etebar was a fellow in his 7th post-doctorate year of training and was classified as a PGY-7. A fellow in USF neurological surgery has completed the residency program, is at least a PGY-7, is Board-eligible in neurosurgery, and wishes to complete additional training.
Dr. Etebar was a Board-eligible neurosurgeon who had completed the residency program and could have easily performed burr hole surgery in any community hospital in the country. Dr. Makoui was in his second year of the residency program and competent to perform the tasks he performed during the surgery.
The burr hole procedure performed on D.Y. was a very basic procedure that was performed by a Fellow. A PGY-2 physician in training was also present.
Under the terms of the TGH "Scope of Practice" protocol for neurological surgery, a PGY-2 or above could perform the procedure in question without the presence of an attending physician. Although the TGH "Scope of Practice" protocol did not require the presence of Respondent in the operating room, Respondent's normal practice was to walk into the surgical suite to make sure things were going well.
Dr. Robertson is Petitioner's expert witness in this case. Dr. Robertson provided an expert opinion letter to Petitioner and testified during two different depositions taken by Respondent. Dr. Robertson could not identify anything that Respondent did personally that deviated from the standard of care. An excerpt from one of Dr. Robertson's depositions is illustrative.
Q. . . . is there anything that Dr. Cahill did or failed to do, that you can identify, that constituted a deviation from acceptable standards as opposed to just being responsible for the residents?
A. Other than being responsible for the resident's action, no.
Petitioner's Exhibit 2 (P-2), at page 41. See also P-3 at 10-11.
Dr. Robertson concluded that Respondent did not commit any act or omission that deviated from the standard of care but that Respondent was responsible for the acts or omissions of Drs. Etebar and Makoui. The issue of whether a member of the faculty at a teaching hospital may be liable for the acts or omissions of resident physicians is a legal issue that is beyond the scope of the expertise of the witness. It is not a factual issue of whether the faculty member committed an act or omission that deviated from the standard of care.
Even if the issue of Respondent's liability for the acts or omissions of Drs. Etebar and Makoui were a factual issue within the scope of Dr. Robertson's expertise, Dr. Robertson's opinion is based on facts not in evidence. Dr. Robertson assumed that Respondent supervised Drs. Etebar and Makoui and instructed each resident on what to do to D.Y. During
Dr. Roberson's testimony, he testified:
Q. What is the basis of your opinion that [Respondent] is responsible for the actions of the residents?
A. . . . when a surgery is done under a mentor's supervision, then the mentor is ultimately responsible for what occurs in the operating room.
* * *
. . . what do you mean by "responsible?"
A. That the resident is doing what the supervising surgeon is instructing him to do.
P-2, at 39-40.
Respondent did not supervise and instruct Drs. Etebar and Makoui during the surgical procedure performed on D.Y. Hospital protocol did not require Respondent to be present in the operating room. Although Respondent was present in the operating room at some juncture, Respondent did not participate in the surgery.
During the administrative hearing, Respondent submitted the written opinions of Drs. Lohse and Rydell and their deposition testimony for admission into evidence. Petitioner objected to the admissibility of the evidence on the grounds that it is hearsay, irrelevant, and cumulative, and that the witnesses are not qualified as experts.
The ALJ stated on the record, as a preliminary observation, that a cursory review suggested the evidence was relevant and not cumulative and that the written expert opinions of Drs. Lohse and Rydell were admissions within the meaning of Section 90.803(18). However, the ALJ reserved final ruling in order to study the evidence more thoroughly and allowed both parties to submit argument and supporting legal authority in their respective PROs.
Petitioner's PRO raises a new objection that Petitioner did not raise during the administrative hearing. Petitioner objects to the admissibility of the written opinions of Drs. Lohse and Rydell and to the admissibility of their deposition testimony on the grounds that the evidence constitutes work product that is protected from discovery by Rule 1.280(b)(4)(B).
The ALJ deemed the assertion of the work product doctrine in Petitioner's PRO to be an objection to the admissibility of evidence based on the lawyer-client privilege in Section 90.502. The parties filed a joint stipulation of facts and submitted legal memoranda on the evidentiary issues.
The written opinions of Drs. Lohse and Rydell are not work product. Petitioner did not obtain the opinion letters in anticipation of litigation within the meaning of Rule 1.280(b)(4)(B). Rather, Petitioner obtained the opinion letters on September 3, 1998, and June 28, 2000, in connection with the investigation of this matter and prior to a determination of probable cause within the meaning of Section 456.073(10), Florida Statutes (2001)(hereinafter, Section 456.073(10)).
Section 456.073(10) requires Petitioner to produce the opinion letters of experts obtained in connection with the investigation of the case. In relevant part, Section 456.073(10) provides:
. . . Upon completion of the investigation and a recommendation by the department to find probable cause, and pursuant to a written request by the subject or the subject's attorney, the department shall provide the subject an opportunity to inspect the investigative file or, at the subject's expense, forward to the subject a copy of the investigative file.
Notwithstanding s. 456.07, the subject may inspect or receive a copy of any expert witness report or patient record connected with the investigation. (emphasis
supplied)
The written expert opinions rendered by Drs. Lohse and Rydell are contained in Petitioner's complaint investigation file. Petitioner obtained the written expert opinions of
Drs. Lohse and Rydell on September 3, 1998, and June 28, 2000, respectively; long before the determination of probable cause that was required before Petitioner could file the Administrative Complaint on December 12, 2001. The opinion letters are not part of Petitioner's theories, mental impressions, or conclusions produced in anticipation of litigation.
Assuming arguendo that the written opinions of
Drs. Lohse and Rydell are work product, Petitioner argues that the statutory mandate in Section 456.073(10) to disclose the expert opinions to Respondent deprives Petitioner of the volition required to voluntarily waive the work product doctrine within the meaning of Section 90.507. Findings regarding the
voluntary nature of the disclosure mandated by Section 456.073(10) are unnecessary because there is no statutory mandate for Petitioner to allow Respondent to take the depositions of Drs. Lohse and Rydell.
Petitioner consented to the depositions of Drs. Lohse and Rydell. Petitioner did not oppose the depositions, did not file a motion for protective order, and did not object during the deposition to questions designed to disclose the expert opinions. The consensual deposition testimony of Drs. Lohse and Rydell disclosed their respective opinions and thereby waived the protection that Petitioner claims under the work product doctrine within the meaning of Section 90.507.
The written opinions of Drs. Lohse and Rydell are admissions within the meaning of Section 90.803(18)(d). The written opinions are statements by Petitioner's agent or servant concerning a matter within the scope of the agency or employment that is made during the existence of the relationship.
In 1998, Petitioner, through its agent, Medimetrics Corporation, Inc. (Medimetrics), solicited an opinion from Dr. Lohse in regard to the care provided by Respondent to D.Y. Dr. Lohse issued a written expert opinion by letter dated
September 3, 1998. Sometime prior to June 28, 2000, Petitioner, through Medimetrics, contacted Dr. Rydell and requested that he provide an expert opinion in this matter. On June 28, 2000,
Dr. Rydell provided a written expert opinion letter to Medimetrics. Both opinion letters state that Respondent met the standard of care in the treatment, care, and diagnosis of D.Y. Respondent submitted both opinion letters into evidence against the interest of Petitioner.
The expert opinions of Drs. Lohse and Rydell are not cumulative of the opinion of Respondent's expert witness,
Dr. Snow. Only the opinions of Drs. Lohse and Rydell constitute exculpatory evidence developed by a prosecuting agency during the investigative phase of an administrative proceeding that is penal in nature.
The expert opinions of Drs. Lohse and Rydell are not cumulative of each other. Each shows that the other is not an anomaly and that Petitioner had evidence of Respondent's innocence from two different sources that were separated by time and community.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and subject matter. The parties received adequate notice of the administrative hearing. Section 120.57(1).
Petitioner objects to the admissibility of the expert opinions of Drs. Lohse and Rydell and to the admissibility of their deposition testimony. Petitioner argues that the opinions and deposition testimony are irrelevant, cumulative, hearsay,
and work product that is protected from disclosure pursuant to Rule 1.280(b)(4)(B).
Rule 1.280(b)(4)(B) generally protects a party from having to disclose the opinions of experts that the party obtains in anticipation of litigation and does not intend to use at trial. The rule authorizes disclosure only when the party seeking the opinions can show the existence of "exceptional circumstances." In relevant part, Rule 1.280(b)(4)(B) provides:
A party may discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only . . . upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
The protection from disclosure in Rule 1.280(b)(4)(B) does not necessarily conflict with the requirement for disclosure in Section 456.073(10). In relevant part, the rule protects against the disclosure of expert opinions if they are obtained "in anticipation of litigation or preparation for trial." The statute requires disclosure of expert opinions if they are obtained prior to a determination of probable cause.
Prior to a determination of probable cause, the agency is neither anticipating litigation nor preparing for trial. Rather, the agency is merely investigating the matter.
Section 456.073(10) does not require disclosure of opinions obtained after a determination of probable cause, presumably, because they are obtained in anticipation of litigation. Rule 1.280(b)(4)(B) protects opinions obtained in anticipation of litigation from disclosure if they satisfy the other requirements of the rule.
The statute and the rule share another apparent consistency. The statute requires disclosure of only an "expert witness report" (emphasis supplied). The rule does not protect expert opinions obtained in anticipation of litigation from disclosure if a party intends to call the expert as a witness.
If the agency does not intend to call an expert as a witness, the literal terms of Section 456.073(10) do not require disclosure of the expert opinion. Similarly, Rule 1.280(b)(4)(B) protects a party from disclosing the opinions of experts that a party will not use at trial if the party satisfies the other requirements in the rule.
Section 456.073(10) limits its disclosure requirement to expert opinions that satisfy the specific temporal requirement of being "connected with the investigation." The investigation necessarily precedes a determination of probable cause because a reverse sequence would be patently arbitrary. Rule 1.280(b)(4)(B) does not expressly condition its protection on any temporal requirement. Rather, the rule expressly
conditions its protection on the purpose for which a party intends to use an expert opinion irrespective of when the party obtains the opinion.
The purpose for which a party intends to use an expert opinion is an issue of intent rather than timing. If the agency obtains an expert opinion prior to a determination of probable cause, the agency satisfies the temporal requirement of Section 456.073(10) but, under the express terms of the statute, obtains the opinion for the purpose of the investigation rather than any litigation. Under the same hypothesis, the analysis is somewhat different under Rule 1.280(b)(4)(B). If the agency's attorney obtains the opinion with the intent to use it in the event that the agency, as the attorney's client, authorizes litigation, the attorney arguably has obtained the opinion in "anticipation of litigation" within the meaning of the rule.
The apparent tension between Section 456.073(10) and Rule 1.280(b)(4)(B) arguably may be resolved by limiting the statutory disclosure requirement to the opinions of experts whom the agency intends to call as an "expert witness." However, a literal interpretation of the term "expert witness" in Section 456.073(10) ignores a fundamental distinction in the nature of the proceedings that Section 456.073(10) and Rule 1.280(b)(4)(B) address. The rule applies to civil proceedings. The statute applies to administrative proceedings that are penal in nature.
Penal proceedings, unlike civil proceedings, are similar to criminal proceedings. Vining v. Florida Real Estate Commission, 281 So. 2d 487, 491 (Fla. 1973).
When, as in this case, the written opinions of experts constitute exculpatory evidence that tends to prove the innocence of a respondent in a penal proceeding, the evidentiary issues raised by Petitioner are imbued with implications for constitutional principles of due process. Although the ALJ does not have jurisdiction to determine the constitutionality of Section 456.073(10), the ALJ is obligated, whenever possible, to construe Section 456.073(10) in a manner that preserves the statute's constitutionality.
In Brady v. State of Maryland, 373 U.S. 83, 87 (1963), the Court held that the failure of a criminal prosecutor to reveal exculpatory evidence to the defendant is a denial of due process. Certain protections afforded defendants in criminal cases have been held to apply to respondents in penal proceedings. In Vining, the court held:
. . . the right to remain silent applies not only to the traditional criminal case, but also to proceedings 'penal' in nature in that they tend to degrade the individual's professional standing, professional reputation or livelihood.
Vining, 281 So. 2d at 491 (citing Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); Stockham v. Stockham,
168 So. 2d 320 (Fla. 1964)). See also Best Pool and Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993); Scott v. Department of Professional Regulation, 603 So. 2d 519,
520 (Fla. 1st DCA 1992).
The Brady rule may apply to penal proceedings by extension of the decision in Vining. However, neither party cited any case law, rule, or statute that expressly applies the Brady decision to penal proceedings. Nor is such an interpretation of the decisions in Brady and Vining necessary to dispose of the evidentiary issues in this case.
When the expert opinions that must be disclosed pursuant to Section 456.073(10) are exculpatory, as they are in this case, the statutory disclosure requirement is consistent with the decision in Brady. However, neither party cited any authority to support a conclusion that the relationship between the Brady rule and the disclosure requirement in Section 456.073(10) is causal rather than coincidental.
In Orange County v. Florida Land Company, 450 So. 2d
341 (Fla. 5th DCA 1984), the court determined that the mandatory disclosure requirement in Chapter 119 is a matter of substance and takes precedence over rules of practice and procedure such as those in Rule 1.280(b)(4)(B). Putting aside the issue of whether the expert opinions of Drs. Lohse and Rydell are subject to disclosure in Chapter 119, the protection afforded by
Rule 1.280(b)(4)(B) in civil proceedings does not take precedence over the statutory mandate in Section 456.073(10) for disclosure of written expert opinions in penal proceedings.
Neither party cited any authority to support a contrary conclusion.
Petitioner has never asserted that Rule 1.280(b)(4)(B) takes precedence over the mandatory disclosure requirement in Section 456.073(10). Rather, Petitioner did not assert the protection of Rule 1.280(b)(4)(B) until Respondent submitted the expert opinions and deposition testimony of Drs. Lohse and Rydell for admission into evidence.
If the Florida Legislature had intended the expert opinions of Drs. Lohse and Rydell to be subject to discovery but not admissible into evidence, the Legislature could have included an express limitation in Section 456.073(10) that prohibits the admissibility of such evidence. The Legislature included such an express limitation in Section 395.0193(8). In relevant part, Section 395.0193(8) provides:
The investigations, proceedings, and records of the peer review panel, a committee of a hospital, a disciplinary board, or a governing board, or agent thereof with whom there is a specific written contract for that purpose, as described in this section shall not be subject to discovery or introduction into evidence in any civil or administrative action. . . .
67. Unlike Section 395.0193(8), Section 456.073(10) includes an express requirement for disclosure of the written expert opinions of Drs. Lohse and Rydell but omits an express provision that either prohibits or requires their admissibility. The legislative omission of an express provision in Section 456.073(10) addressing the admissibility of the written expert opinions of Drs. Lohse and Rydell provides sufficient ambiguity in the literal terms of the statute for each party in this case to argue that Section 456.073(10) implicitly supports the party's respective position.
Petitioner argues that the legislative omission in Section 456.073(10) of an express requirement for the admissibility of disclosed expert opinions, together with the limitation of the disclosure requirement to expert witnesses, supports Petitioner's position that the Legislature did not intend for Section 456.073(10) to waive the lawyer-client privilege in Section 90.502. Conversely, Respondent argues that the legislative omission of an express prohibition against admissibility supports Respondent's position that the Legislature intended to permit the admissibility of exculpatory expert opinions even if Petitioner does not intend to call the experts as witnesses.
The legislative omission in Section 456.073(10) of an express provision concerning the admissibility of the opinions
that the statute requires to be disclosed does not create, by implication, any presumption relating to the admissibility of those opinions. A determination of the admissibility of the expert written opinions of Drs. Lohse and Rydell must rest on some basis other than an implied statutory presumption in Section 456.073(10).
The admissibility of the written opinions and deposition testimony of Drs. Lohse and Rydell rests on a determination of whether the evidence is privileged, within the meaning of Section 90.502, and whether Petitioner waived the privilege pursuant to Section 90.507. For reasons stated in the Findings of Fact and not repeated here, neither the written opinions of Drs. Lohse and Rydell nor their deposition testimony is privileged within the meaning of Section 90.502. The written opinions and deposition testimony do not constitute work product prepared by Petitioner in anticipation of litigation.
A finding by the trier of fact that the written opinions of Drs. Lohse and Rydell are work product would not render the opinions inadmissible. Petitioner waived any protection otherwise afforded in Section 90.502 and Rule 1.280(b)(4)(B) by voluntarily disclosing the information, within the meaning of Section 90.507, prior to asserting the privilege in an appropriate pleading to the ALJ. Cf. Truly Nolen Exterminating, Inc. v. Thomasson, 554 So. 2d 5 (Fla. 3d DCA
1989)(failure to assert work privilege at earliest opportunity, in response to discovery motion, does not constitute waiver of the privilege so long as a party asserts the privilege to the trial court before actual disclosure of the information alleged to be protected by the work product doctrine). See also Underwater Storage, Inc. v. United States Rubber Company, 314 F. Supp. 546 (D.C. D.C. 1970)(disclosure of the document at issue breaches its confidentiality and thereby destroys the continued existence of the privilege).
Petitioner argues that the express requirement for disclosure in Section 456.073(10) deprives Petitioner of the volition necessary for the disclosure to be voluntary within the meaning of Section 90.507. However, Petitioner voluntarily disclosed the content of the written reports by consenting to the deposition testimony of Drs. Lohse and Rydell. Drs. Lohse and Rydell actually disclosed the content of their written opinions by publishing their opinions in their deposition testimony. Petitioner never filed a motion for protective order in response to the notices of depositions and never objected to specific questions during the depositions that led to the disclosure of the opinions of the experts. After the actual disclosure of the written opinions in the deposition testimony, Petitioner did not file a motion to strike or a motion to suppress the evidence. Petitioner did not assert the privilege
afforded by the work product doctrine until Petitioner raised the issue in a legal argument in its PRO.
In Morgan v. Tracy, 604 So. 2d 15 (Fla. 4th DCA 1992), the court held that a party did not waive the privilege afforded under the work product doctrine by disclosing an expert's written report, listing the expert on the party's witness list, and later removing the expert from the witness list. The court held that the opposing party could not take the deposition of the expert after the other party removed the expert's name from the witness list even though the written opinion of the expert had already been disclosed. Unlike the facts in Tracy, Petitioner never filed a motion for protective order to prevent the depositions of Drs. Lohse and Rydell and never objected to specific questions during the depositions designed to disclose the opinions of the experts.
Some Florida courts have held that the failure to assert the work product doctrine prior to disclosure does not waive the privilege against disclosure. See, e.g., 5500 North
Corporation v. Willis, 729 So. 2d 508 (Fla. 5th DCA 1999). However, the matters disclosed in those cases generally involve matters that are outside the scope of permissible discovery.
Unlike the matters at issue in 5500 North Corporation, the written expert reports of Drs. Lohse and Rydell are within the scope of permissible discovery. Section 456.073(10) expressly
requires Petitioner to disclose the written expert opinions in response to an appropriate request by Respondent.
Petitioner argues that the expert opinion of Respondent's expert witness shows that it is not impracticable, within the meaning of Rule 1.280(b)(4)(B), for Respondent to obtain opinions on the same subject by other means. However, Petitioner's argument fails to consider the significance of exculpatory evidence in a penal proceeding. The written expert opinions of Drs. Lohse and Rydell constitute both expert opinions and admissions by agents of the prosecution in a penal proceeding. The dual attributes of those opinions satisfy the requirement in Rule 1.280(b)(4)(B) for "exceptional circumstances under which it is impracticable" for Respondent to obtain by other means expert opinions that are exculpatory admissions by the prosecution in a penal proceeding.
The ALJ overrules Petitioner's objections to the admissibility of the written opinions and deposition testimony of Drs. Lohse and Rydell on the grounds that the evidence is hearsay, irrelevant, and cumulative. The evidence is relevant because each expert renders an opinion on whether Respondent deviated from the standard of care at issue in this case. The written opinion of each physician is admissible hearsay because each opinion is an admission within the meaning of Section 90.803(18). Exculpatory evidence that is an admission of
innocence by the prosecution in a penal proceeding is not cumulative of the opinions of Respondent's expert witness.
The burden of proof is on Petitioner. Petitioner must show by clear and convincing evidence that Respondent committed the violation alleged in the Administrative Complaint and the reasonableness of any proposed penalty. Section 120.57(1)(j); Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987) State ex rel. Vining, 281 So. 2d at 487.
Petitioner failed to meet its burden of proof. Four experts, other than Respondent, concluded that Respondent did not personally commit any act or omission that deviated from the standard of care. The same four experts agreed that Respondent did not improperly delegate responsibility to Drs. Etebar and Makoui. Dr. Etebar was fully qualified to perform the surgical procedure on D.Y. The Board of Medicine recognizes that delegation of responsibility to resident physicians is appropriate and necessary for training. See Florida Administrative Code Rule 64B8-6.005.
Petitioner argues that the absence of any personal act or omission or improper delegation of responsibility on the part of Respondent does not exonerate Respondent from the allegations in the Administrative Complaint. Petitioner argues that
Respondent is absolutely responsible for the acts or omissions of the resident physicians ("absolute liability").
In support of the absolute liability theory, Petitioner filed a Motion to Take Official Recognition of the Final Order of the Board of Medicine in Department of Health v. Charles A. Lankau, M.D., DOAH Case No. – FOF MQA. Petitioner argues that the facts in Lankau are similar to those in this case and that the Board of Medicine has found, as a conclusion of law, that an attending physician supervising the services of a resident physician, is directly responsible for the acts or omissions of the resident physician.
As a threshold matter, the Final Order of the Board of Medicine in Lankau is not controlling. The Final Order has been appealed, and the appeal is pending.
The facts in Lankau are distinguishable from those in the instant case. Unlike the surgery in Lankau, the surgery in this case involved an unscheduled emergency procedure. In addition, the respondent in Lankau directed the actions of a second year fellow to begin the surgical exploration at the unintended site. There is no similar evidence in this case that Respondent directed the actions of those who actually performed surgery on D.Y.
Any attempt by the Board of Medicine to establish that the attending physician is "strictly liable" for the acts or
omissions of a resident physician, and that any act or omission by the resident physician which constitutes a deviation from the acceptable standard of care is a deviation by the attending physician, would constitute a rule, within the meaning of Section 120.52(15). Petitioner has not promulgated such a rule in accordance with the rulemaking requirements prescribed in Section 120.54. An agency can not subject a licensee to a disciplinary proceeding based on a policy of general applicability that has not been adopted as a rule. Anglickis v. Department of Professional Regulation, Division of Real Estate, 593 So. 2d 298 (Fla. 2d DCA 1992).
Petitioner cites no other supporting authority for its argument concerning absolute liability. Assuming, arguendo, that Respondent is responsible (i.e., legally liable as the respondeat superior), Petitioner cites no statute or case law that equates absolute liability with a deviation from the standard of care.
Strict liability for the acts or omissions of residents under the supervision of a licensed physician is not expressly authorized in Section 458.331(1)(t). Section 458.331(1)(t) is penal in nature and must be strictly construed, with any ambiguities resolved in favor of Respondent. Vining,
281 So. 2d at 491; School Board of Pinellas County v. Noble, 384 So. 2d 205 (Fla. 1st DCA 1980); rev. den., 389 So. 2d 1114;
Lester v. Department of Professional and Occupational Regulation, 348 So. 2d 923 (Fla. 1st DCA 1977). In addition, a licensee may only be disciplined for the grounds enumerated in the statute. Bach v. Florida State Board of Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1979).
In the absence of controlling legal authority to support Petitioner's argument concerning the absolute liability of a faculty member for the acts of resident physicians, Petitioner relies on the expert opinion of Dr. Robertson.
Dr. Robertson's expert opinion is that Respondent deviated from the standard of care because Respondent is ultimately responsible for the acts of the resident physicians.
Section 90.703 generally allows the opinion of an expert to include an ultimate issue to be decided by the trier of fact. However, the issue of whether Respondent is absolutely liable for the acts of the resident physicians is not a factual issue to be decided by the trier of fact within the meaning of Section 90.703. Rather, it is an issue of law that is beyond the scope of expertise of any witness in this case, including Dr. Robertson. Legal issues are not within the purview of the trier of fact but must be decided by the ALJ in his quasi- judicial capacity.
The outcome of this case would not be altered by the exclusion of the expert written opinions and deposition
testimony of Drs. Lohse and Rydell. Even if the trier of fact were to disregard the entire body of evidence submitted by Respondent, the evidence submitted by Petitioner is less than clear and convincing.
In Smith v. Department of Health and Rehabilitative Services, 522 So. 2d 956 (Fla. 1st DCA 1988), the court defined clear and convincing evidence. In relevant part, the court stated:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witnesses must be lacking 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.
522 So. 2d at 958.
Petitioner relies primarily on the testimony of
Dr. Robertson and the circulating nurse in the operating room to establish a factual basis for a finding that Respondent deviated from the standard of care. Neither witness provided testimony that satisfies the definition of clear and convincing evidence.
Dr. Robertson can identify no specific act or omission by Respondent that would constitute a deviation from the standard of care. Dr. Robertson testified that there was no
deviation by Respondent in allowing the resident physicians to initiate surgery on D.Y.
Dr. Robertson's expert opinion that Respondent is responsible for the acts of the residents is not applicable to evidence adduced at the administrative hearing within the meaning of Section 90.702. For example, Dr. Robertson based his expert opinion on the assumption that Respondent was present in the operating room while D.Y. was positioned, shaved, and prepped; supervised the residents; and directed their actions. There is no evidence that Respondent was present in the operating room while the patient was positioned, shaved, and prepped; supervised the residents; or directed their actions.
The circulating nurse did not normally attend the type of surgical procedures performed on D.Y. On cross-examination, the nurse conceded that she could not state with certainty that Respondent was present in the operating room when D.Y. was prepped and positioned.
The testimony of Dr. Robertson and the circulating nurse is not precise and explicit. Their testimony is confused as to the facts in issue. The evidence did not produce 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.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED, that Petitioner enter a Final Order finding Respondent not guilty of the allegations in the Administrative Complaint and dismissing the Complaint.
DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida.
DANIEL MANRY
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 14th day of August, 2002.
COPIES FURNISHED:
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701
Kim Kluck, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Tallahassee, Florida 32308
Bruce D. Lamb, Esquire Ruden, McClosky, Smith,
Schuster & Russell, P.A.
401 East Jackson Street, 27th Floor Tampa, Florida 33602
Tanya Williams, Executive Director Board of Medicine
Department of Health
4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701
S. Power, Agency Clerk 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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 04, 2003 | Agency Final Order | |
| Aug. 14, 2002 | Recommended Order | Physician of record who is member of faculty does not depart from standard of care when resident physicians perform surgery incorrectly and faculty member does not participate in surgery. |
