STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. )

)

MANUEL IRIBAR, M.D., )

)

Respondent. )

Case No. 02-3207PL

)

CORRECTED RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above- styled cause before the Division of Administrative Hearings by its duly-designated Administrative Law Judge, Florence Snyder Rivas, on November 18, 2002, in Miami, Florida.

APPEARANCES

For Petitioner: John E. Terrel, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Sean M. Ellsworth, Esquire

Dresnick, Ellsworth & Felder, P.A. Suntrust Plaza, Suite 701

201 Alhambra Circle

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 23, 2000, and filed May 25, 2000, Petitioner, Department of Health (Petitioner or Department), charged that Respondent, Manuel R. Iribar, M.D. (Respondent or Iribar), violated Section 458.331(1)(t), Florida Statutes. This statute governs conduct by a physician which deviates from the minimum standard of care under the facts or circumstances of a particular instance of patient care.

In this case, Iribar is alleged to have deviated from the standard of care by prescribing Pen VK (penicillin) to C. H. (C. H.), a patient who had an allergy to penicillin which was documented in his medical chart. More specifically, the Department contends that Iribar failed to take sufficient care while treating C. H. to make himself aware of the potential for allergic reaction to penicillin.

Respondent timely requested a hearing pursuant to Sections

120.569 and 120.57(1), Florida Statutes.

At the final hearing, Petitioner introduced Exhibits 2, 6, 8-9, 13-15, and 18. Petitioner also presented the testimony of Annie Holliman (Patient C. H.’s wife); Barbara Olesco (medical

assistant for Respondent); and Dora Oliva (administrator for Respondent). Petitioner also proposed to call Dr. Stanley Sinclair (Sinclair) as an expert. In so doing, the Department represented to the Administrative Law Judge (ALJ) that his live testimony was fully set forth in his deposition, a transcript of which was available and reviewed by the ALJ during a recess in the hearing. Upon careful consideration of the transcript, the undersigned ruled that Petitioner could not call Sinclair. His testimony was cumulative, and a discovery violation regarding Sinclair had occurred which could be remediated only by holding the record open to afford Iribar a fair opportunity to conduct discovery concerning Sinclair. This would have been a poor use of the parties' time where, as here, the Department conceded that Sinclair's testimony would have added nothing of substance to the Department's case.

Respondent introduced Exhibit 1, testified on his own behalf, and presented the expert testimony of Arthur Fournier, M.D.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating the practice of medicine in Florida pursuant to Sections 20.165 and 20.43, and Chapters 456 and 458, Florida Statutes.

2. Respondent is at all times material to this case a licensed physician in the state of Florida. As such, he is subject to disciplinary action for failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable, prudent similar physician as being acceptable under similar conditions and circumstances.

3. Iribar has been disciplined on two prior occasions.

   
   

   Both cases involved standard of care violations. In Case No. 113487, the Board of Medicine entered a Final Order on

   April 20, 1992, disciplining Respondent for multiple violations of Section 458.331(1)(t) related to, among other things, prescribing errors. In Case No. 1991-03407, the Board of Medicine entered a Final Order on July 17, 1995, disciplining Respondent for additional prescribing violations.

4. On August 25, 1997, C. H. required medical attention for pain and swelling in his left knee. By the time he was "worked in" at the office of his primary care physician, C. H. was unable to get around without the aid of crutches. In seeking relief for his knee problem, C. H. set in motion a chain of events which would cost him his life.

5. C. H. had been for years a patient at the clinic where Iribar practiced medicine in partnership with Dr. Raul Alvarez (Alvarez).

6. C. H. had a complex medical history, and had long been under the care of Alvarez. Iribar had never seen C. H., but was covering his partner's emergencies on August 25, 1997. C. H.'s knee swelling, which was visible from across a medical examining room, plainly qualified as a matter which needed prompt attention.

7. The clinic had an extensive chart on C. H. It contained records of many office visits, tests, and information concerning care received at other locations which occurred over a period of years in which Alvarez served as C. H.'s primary care doctor.

8. As a partner in the practice, Iribar would of course have been authorized to read every word on the chart before, during or after C. H.'s visit.

9. Numerous references in the chart address real or perceived allergies. At many places in C. H.'s chart, an allergy to aspirin in indicated. In many other places, C. H. is said to be allergic to penicillin as well as aspirin.

10. Iribar's focus in his lone encounter with C. H. was totally upon the need for emergency attention to the swollen and sore knee.

11. On August 25, 1997, it was the routine in the Iribar/Alvarez practice to maintain a form detailing the patient's history, including allergies, on the inside left cover

    of the file. C.H.'s chart had such a document and it reflected an allergy to penicillin.

12. Iribar freely admits that he never looked at C. H.'s chart prior to prescribing penicillin for his injured knee.

13. Instead, Iribar testified that he conversed with C. H. while examining him and felt that he could obtain from C. H. an accurate answer to the question of whether he was allergic to any medications.

14. During the examination and treatment process, C. H. was articulate regarding his complex medical history. He enumerated at least six medications which he was currently taking. Iribar testified that he asked C. H. if he was allergic to any medications and C. H. responded "aspirin." Iribar states that he informed C. H. that he was going to place him on oral penicillin, which might later be discontinued depending upon the outcome of lab results. According to Iribar, C. H. failed to inform him of a penicillin allergy. For reasons more fully set forth below, the undersigned does not credit Iribar's recollection that he in fact asked C. H. if he had allergies. Neither does the undersigned credit Iribar's testimony to the effect that he informed C. H. of his intent to administer penicillin.

15. Apart from that dispositive fact, the undersigned does credit Iribar's account of his encounter with C. H. Based upon

    that testimony and the corroborating opinion of the experts for both sides, the evidence established that Iribar entered the examining room and noted that C. H. had a large left knee effusion with pain, redness, and increased temperature to touch. Iribar properly performed an arthrocentesis (a puncture through a joint capsule to relieve an effusion), removing 20cc of yellow pus-like material to relieve the pain.

16. He then prescribed ibuprofen for pain and Pen VK, which is in fact penicillin, to prevent infection.

17. Penicillin is, for most patients, safe and effective for the prevention of infection following a procedure such as the one performed on C. H. Alternative antibiotics exist and would have been prescribed for C. H. had Iribar been aware of the existence of a possible allergy.

18. For an allergic patient such as C. H., the result of taking penicillin can be, and in this case was, swift cardiac arrest followed by a coma from which the patient never emerged. He died five months later.

19. Expert witnesses for both sides agree, and the undersigned finds, that it would have been a gross violation of the standard of care to prescribe penicillin to a person known to be allergic. There is no contention that Iribar actually knew of the allergy, and Iribar did not intend any harm to C. H. Instead, the evidence established that Iribar was covering his

    partner's emergency and trying to help the patient. Thus, the issue is whether Iribar fell below the standard of care of failing to take reasonable steps to determine whether C. H. had a penicillin allergy.

20. In this case, the totality of the record compels the conclusion that Iribar did not take even a first step. He did not inquire of C. H. as to whether he had any allergies, nor did he look at the patient's chart, which would have placed him on inquiry notice regarding the existence of a penicillin allergy. In failing to take either precaution, he fell below the standard of care.

21. Iribar's disciplinary history reveals prior failures in adhering to the standard of care with respect to the professional obligation to ask the questions a doctor needs to ask to determine if a drug should or should not be prescribed.

22. Additionally, his careless response to the Board of Medicine's inquiry regarding his treatment of C. H. is telling. In an undated letter to Board investigator, Lidice Muniz, Iribar stated, ". . . I asked the patient in front of two medical assistants aiding me [Ana Dickinson and Barbara Olesco] if he was allergic to any medication, he replied 'Aspirin' and he denied all other drug allergies."

23. Common sense suggests that Iribar would have been scrupulously accurate in communicating in writing to state

    investigators about a matter of such importance. Thus, the undersigned takes seriously Iribar's statement that two assistants witnessed the exchange referenced in the letter. Yet, at the final hearing, neither Iribar nor Olesco claimed that this exchange was witnessed by one, let alone two medical assistants.

24. The undersigned carefully observed Iribar's demeanor while under oath. His recollection that he engaged C. H. on the question of allergies is determined to be untrustworthy. Specifically, the undersigned does not credit Iribar's assertion that he asked his patient about allergies. In light of this finding, it is not necessary to address whether Iribar would have been bound to review the chart had C. H. in fact been asked about allergies.

25. With respect to C. H., Respondent failed 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 that he failed to take any step to afford himself the opportunity to know what if any allergies C. H. had prior to prescribing the medication which caused the patient's death.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this

    proceeding, pursuant to Sections 120.569, and 120.57(1), Florida Statutes, and Section 456.073, Florida Statutes.

27. License disciplinary proceedings are penal in nature.

    
    

    State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973). In this disciplinary proceeding, Petitioner must prove the alleged violations of Section 458.331(1)(t), Florida Statutes, by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987); and Addington v. Texas, 441 U.S. 426 (1979).

28. Section 458.331(1)(t), Florida Statutes, provides in pertinent part as follows:

    Grounds for disciplinary action; action by the board and department.-

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       
       

       * * *

       
       

       (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. The board shall give great weight to the provisions of

       s. 766.102 when enforcing this paragraph. As used in this paragraph, “repeated malpractice” includes, but is not limited to, three of more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of $25,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, “gross

       malpractice” or “the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances,” shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.

       
       

29. In light of the finding that Respondent failed to take any step to ascertain the existence of an allergy to any medication he proposed to prescribe, Petitioner has demonstrated by clear and convincing evidence that Respondent failed 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.

30. In recommending a penalty, the undersigned has carefully considered Respondent's prior disciplinary history. The 1992 violation resulted in a letter of concern. The 1995 violation resulted in a reprimand. Taken together, they did not teach Respondent to observe, at all times, the standard of care requiring that physicians take at least one action aimed at determining the existence of a possibly life-threatening allergy.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law and having reviewed the Recommended Range of Penalty under the Florida Administrative Code, it is RECOMMENDED that the Board enter a final order finding Respondent guilty and imposing the following penalty: A fine of $10,000; continuing medical education classes specified by the Board of Medicine; a six- month suspension; two years of probation, with terms set by the Board of Medicine; a letter of reprimand; and requiring Respondent to report to the Board of Medicine regarding procedures he has or will implement to assure appropriate inquiry of patients regarding their allergies in accordance with the standard of care currently prevailing.

It is also RECOMMENDED that the Board impose costs associated with the investigation and prosecution of this case in compliance with Section 456.072(4), Florida Statutes.

DONE AND ENTERED this 15th day of January, 2003, in Tallahassee, Leon County, Florida.

FLORENCE SNYDER RIVAS

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 15th day of January, 2003.

COPIES FURNISHED:

Sean M. Ellsworth, Esquire Dresnick, Ellsworth & Felder, P.A.

201 Alhambra Circle

Sun Trust Plaza, Suite 701

Coral Gables, Florida 33134-5108

John E. Terrel, Esquire Department of Health 4052 Bald Cypress Way Bin C-65

Tallahassee, Florida 32399-3265

Larry McPherson, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 02-003207PL

Orders for Case No: 02-003207PL