STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )
)
Petitioner, )
)
vs. ) Case No. 02-4120PL
)
JOSEPH OVADIA, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, in Miami, Florida, on January 7, 2003.
APPEARANCES
For Petitioner: Daniel Lake, Esquire
Department of Health Office of General Counsel
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: Louise T. Jeroslow, Esquire
Law Offices of Louise T. Jeroslow, P.A. 6075 Sunset Drive, Suite 201
South Miami, Florida 33143 STATEMENT OF THE ISSUE
The issue in this case is whether Respondent, Joseph
Ovadia, M.D., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of
Health, on August 26, 2002, and, if so, what disciplinary action should be taken against him.
PRELIMINARY STATEMENT
On or about August 26, 2002, the Department of Health filed a three-count Administrative Complaint against Joseph Ovadia, M.D., a Florida-licensed medical doctor, before the Board of Medicine. On or about October 3, 2002, Dr. Ovadia executed an Election of Rights form, indicating that he disputed the allegations of fact contained in the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.569(2)(a), Florida Statutes. On October 21, 2002, the matter was filed with the Division of Administrative Hearings, with a request that an administrative law judge be assigned the case. The matter was designed DOAH case number
02-4210PL and was assigned to the undersigned.
The final hearing was scheduled by Notice of Hearing entered November 11, 2002, for December 17 and 18, 2002. On November 26, 2002, a Notice of Appearance and a Motion for Continuance were filed by Respondent. In the Motion it was represented that counsel had been retained on November 26th and, therefore, did not have time to prepare for the final hearing, scheduled to commence on December 17, 2002. Over objection from Petitioner, the continuance was granted and the hearing was
rescheduled for January 7 and 8, 2003, by an order entered December 5, 2002.
On December 31, 2002, Respondent filed a Motion to Continue or in the Alternative Hold Case Open Until Deposition Testimony Can be Taken. By Order entered January 3, 2003, the request for continuance was denied. Respondent's alternative request, however, was granted. Respondent was granted leave to take the deposition of its expert witness between January 13 and 16, 2003, after giving Petitioner an opportunity to take the expert witness' deposition first, and to file the deposition as evidence in this matter. Petitioner was informed in the Order that it could request an opportunity to present reasonable rebuttal to address any testimony presented by Respondent's expert witness.
Official Recognition was taken, at the request of Petitioner, of Section 120.81(4), Florida Statutes.
At the final hearing Petitioner presented the testimony of Richard Glosser, M.D., and Frank F. Cook, M.D. Petitioner also presented transcripts of the deposition testimony of Steven Lancaster, M.D., Leonard Diogenes Benitez, M.D., and Respondent. The transcripts were marked as Petitioner's Exhibits 1, 4, and 6, respectively. Petitioner's Exhibits 2, 3, and 5 were also admitted. Petitioner's Exhibit 3 is the Answer [sic] to
Petitioner's Request for Admissions. The request for admissions to which the answers relate were not offered into evidence.
Respondent testified on his own behalf and presented the testimony of Craig Travis, M.D., and Walton Guerrero.
Respondent's Exhibits 1, 2 and 3 were admitted. Respondent also made a proffer of testimony from a Dr. Reed. After hearing argument on the proffer and entering a ruling, the parties stipulated that, if called to testify, Dr. Reed would have provided the following testimony which, to the extent relevant, may be accepted as fact in this matter:
Dr. Reed is a licensed internist with a specialty in pulmonary medicine and board certified in internal and pulmonary medicine. . . .
He served as the Medical Director for the Respiratory Therapy Department at Homestead Hospital from 1989 - 1999.
. . . .
There is nothing in [the] Bylaws or Rules and Regulations of Homestead Hospital in 1997 that addresses the issue of what happens when a Chief of Surgery (or any Chief) dismisses a physician who is on call in the emergency room from a particular case and then is asked to resume care of the patient at a later time.
. . . .
6. Never in his 25 years as a physician does he know of any instance when a Chief of a Service dismissed a physician from a case and then wants him to come back on the case [sic]. This is a very unusual event.
On February 3, 2003, a transcript of the deposition testimony of Jorge Obray, M.D., taken on January 16, 2003, was filed. The transcript has been marked as Respondent's Exhibit 4 and is hereby admitted.
By Notice of Filing of Transcript issued January 29, 2003, the parties were informed that the last volume of the three- volume Transcript of the final hearing had been filed on January 28, 2003. The parties, pursuant to agreement, therefore, had until February 17, 2003, to file proposed recommended orders. Both parties filed Proposed Recommended Orders on February 17, 2003, and those proposals have been fully considered in entering this Recommended Order.
FINDINGS OF FACT
The Parties.
Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida.
Respondent, Joseph Ovadia, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 0046214.
At the times material to this matter, Dr. Ovadia was on staff at Homestead Hospital, with emergency "on-call" responsibilities.
Although not certified by the Board of Medicine (hereinafter referred to as the "Board"), Dr. Ovadia specialized in orthopedic surgery, with sub-specialties in joint reconstruction, and shoulder and hand surgery.
Dr. Ovadia received his medical degree from McGill University in Canada. He completed an internship/residency in orthopedic surgery at the Department of Orthopedics at New York University Medical Center, completed a clinical assistantship in London, England, and has been licensed to practice in Florida since 1985.
Dr. Ovadia is a Medicare and Medicaid provider with approximately 30 percent of his practice devoted to Medicaid patients.
As a result of the incidents involved in this matter, Dr. Ovadia's privileges at Homestead Hospital were revoked in 1998.
Dr. Ovadia has not been disciplined by the Board. He has made one malpractice payout of $30,000.00 in 1986.
The Department's Administrative Complaint and Dr. Ovadia's Request for Hearing.
On August 22, 2002, the Department filed a three-count Administrative Complaint against Dr. Ovadia before the Board alleging that his treatment of three patients, identified in the Administrative Complaint as W.G., F.S., and W.L, constituted 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 recognized acceptable treatment will hereinafter be referred to as the "Standard of Care"), a violation of Section 458.331(1)(t), Florida Statutes.
On or about October 3, 2002, Dr. Ovadia executed an Election of Rights form, indicating that he disputed the allegations of fact contained in the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.569(2)(a), Florida Statutes.
Dr. Ovadia's request for a formal administrative hearing was filed by the Department with the Division of Administrative hearings.
Treatment of Patient W.G.
On August 21, 1997, W.G., who was 53 years of age at the time, presented to Homestead Hospital's emergency room.
W.G. arrived a little after 7:00 p.m. (2100 hours). At the time of his arrival and throughout his stay in the emergency room, W.G.'s condition was not life-threatening.
Dr. Ovadia was acting as the on-call orthopedic surgeon for Homestead Hospital on August 21, 1997, at all times relevant to the treatment of W.G.
W.G. presented with a severe laceration (3 centimeters long) to his right thumb which had been caused by an electric saw blade. W.G. was examined by an emergency room physician1 who concluded that W.G. had a lacerated flexor tendon in his right thumb. The emergency room physician determined that it was necessary to consult with Dr. Ovadia concerning W.G.'s injury.
The emergency room physician ordered that W.G. be treated with IV antibiotics, that he be given a tetanus shot, and that x-rays be taken of his thumb. Although there is no note in the medical records, W.G.'s wound was cleaned by the emergency room staff, based upon W.G.'s testimony.
The x-ray of W.G.'s thumb indicated that he had a comminuted fracture. The x-ray was taken at 7:18 p.m. (1918 hours), but the observation concerning the x-ray was apparently not made until the following day, August 22, 1997, at 11:17 a.m. Petitioner's Exhibit 2, Page 300.
A notation at 9:50 p.m. (2155 hours), indicates that "MD on call [called] ortho Ovadia . . . ." There was no direct
testimony from the nurse or physician's assistant who made this note that the he or she actually spoke to Dr. Ovadia or whether Dr. Ovadia was only paged. The following note, however, made at 9:55 p.m. (2255 hours), only five minutes after the first note, indicates that the nurse spoke with Dr. Ovadia at 9:55 p.m.
Lacking direct evidence as to what took place at 9:50 p.m., an inference is drawn that Dr. Ovadia did not talk with anyone from the emergency room until 9:55 p.m. and that the first notation relates only an effort to page Dr. Ovadia at 9:50 p.m.
At 9:55 p.m., Dr. Ovadia was informed by a nurse or physician's assistant that W.G. had been diagnosed with a severe laceration of the flexor tendon of his right thumb. Rather than indicating that he would come to the emergency room to assess the patient, Dr. Ovadia ordered a pressure bandage to be applied to W.G.'s hand and that W.G. be told to come to Dr. Ovadia's office the next morning for follow-up. Although Dr. Ovadia did not come to the hospital to clean and "drain" the wound, or order staff to do so,2 it was reasonable for him to have assumed that the wound had been cleaned by the emergency room staff,3 as it had been, and there was no medical need to drain the wound because it was an open wound.4
Dr. Ovadia's orders at 9:55 p.m. were not acceptable to the unidentified emergency room physician who was treating
W.G. at the time. Dr. Ovadia was, therefore, telephoned
"several"5 more times. The evidence failed to prove clearly and convincingly that Dr. Ovadia was specifically requested to come to the emergency room to attend to W.G. or that he refused any request to come to the emergency room to take over the care of W.G.6
Despite the failure of the evidence to prove that
Dr. Ovadia refused to come to the hospital to treat W.G., it is clear that Dr. Ovadia did not come to the emergency room to assess W.G.'s condition. Instead, at 10:55 p.m. (2255 hours), apparently after the last of the "several" calls made to
Dr. Ovadia, Dr. Ovadia ordered that W.G. be admitted to the hospital.
Although the medical notes indicate that Dr. Ovadia's orders at 9:55 p.m. were not acceptable to the emergency room physician, there was no evidence to prove why his or her orders were considered unacceptable. The evidence also failed to prove that the emergency room physician's displeasure with those orders was ever reported to Dr. Ovadia or that the emergency room physician was so displeased that he or she personally contacted Dr. Ovadia to discuss the situation.
The only direct evidence, which is uncontroverted by the Department, concerning the dispute between Dr. Ovadia and the emergency room on August 21, 1997, came from Dr. Ovadia. Dr. Ovadia believed that the emergency room physician, upon
determining that W.G. had suffered a laceration to the flexor tendon, believed that Dr. Ovadia should attend to the injury immediately. Dr. Ovadia, however, realized that immediate attention to the flexor tendon injury was not advisable or necessary until at least the next morning. Dr. Ovadia's opinion about the lack of need for immediate attention to the flexor tendon laceration was agreed with by all of the physicians who testified in this matter.
The medical records do not include an order from Dr. Ovadia to debride the wound, regardless of the proper definition of the term, and Dr. Ovadia admits that he did not give such an order.
W.G. left the hospital at approximately 11:50 p.m. (2350 hours).7 W.G.'s hand was ultimately repaired a few days later at another hospital.
Allegations of Wrongdoing Concerning W.G.
In Count One of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating W.G. in that he failed to do the following specific acts:
come to the hospital to personally examine or treat Patient W.G. on or about August 21, 1997;
clean and drain Patient W.G.'s lacerated thumb; or
order that other hospital personnel clean and drain the laceration.
The Experts' Opinions; The Standard of Care
At least five physicians, including Dr. Ovadia, testified concerning the appropriate Standard of Care required in the treatment of W.G. None of the five physicians were consistent; not even the two experts called by the Department, Steven Lancaster, M.D., and Frank Cook, M.D.
Dr. Lancaster opined that the appropriate Standard of Care for the treatment of W.G. was:
An open fracture with a dirty wound would generally be treated by a reasonable orthopedic surgeon in a similar situation by some type of irrigation [cleaning] and debridement to minimize the chances of infection occurring at a later point.
To address the flexor tendon on a delayed basis is reasonable, and as well to address a fracture on a delayed basis is reasonable. But the open wounds [sic] having not been irrigated, debrided, or assessed until the following day would be unacceptable.
Petitioner's Exhibit 1, Page 14, Lines 1-9.
Dr. Lancaster goes on to opine that Dr. Ovadia failed to meet this Standard of Care by failing to go the hospital to assess, irrigate [clean], and debride the wound. Id.
Dr. Cook, opined that the appropriate Standard of Care for the treatment of W.G. was:
. . . . Essentially in the W.G. case my opinion would be the correct treatment would
be to debride and clean the wound, and to close the skin. Appropriate antibiotics and appropriate prophylactic for tetanus.
Transcript, Volume 1, Page 95, Lines 5-9.
Dr. Cook agreed that the foregoing Standard of Care for W.G. had been met in all respects except that the skin over the wound was not closed:
If you have an exposed flexor tendon, I think you need to close the skin over that for the simple reason of what we discussed.
. . . The tendon is much healthier with the skin closed. It doesn't dry out.
Transcript, Volume 1, Page 137, Lines 12-17
Dr. Cook, while he discussed Dr. Ovadia's responsibility for making sure W.G.'s wound was cleaned,8 ultimately concludes that it is only the failure to either close the wound himself or order that someone in the emergency room to do so that constitutes a violation of the Standard of Care:
Q Is it your testimony that Dr. Ovadia fell below the standard of care because he did not come to see [W.G.] between 10 and 12:00?
A No, ma'am.
Q I guess when all is said and done, the remaining criticism of Dr. Ovadia is that he did not temporarily close this wound?
A That the skin was not temporarily closed either by himself or one of the staff members. (Emphasis added).
Transcript, Volume 1, Page 141, Lines 12-20.
Dr. Lancaster's opinion that Dr. Ovadia violated the Standard of Care by not going to the hospital to irrigate or clean the wound is not supported by Dr. Cook's opinion. Ultimately, Dr. Cook opined that Dr. Ovadia was not required to go to the hospital, but that any treatment necessary for W.G. could have been ordered by Dr. Ovadia. Dr. Cook ultimately opined that the only treatment required for W.G. which was not provided was the closure of the wound, not the cleaning of the wound.
As to Dr. Lancaster's opinion that Dr. Ovadia violated the Standard of Care by not going to the hospital to "debride" the wound, this opinion is also contrary to Dr. Cook's opinion for the same reasons stated in Finding of Fact 32 and, more importantly, is contrary to any allegation in the Administrative Complaint. There is simply no allegation in the Administrative Complaint that Dr. Ovadia violated the Standard of Care by failing to "debride" the wound.
Finally, as to the allegation that Dr. Ovadia violated the Standard of Care by failing to go to the emergency room to "assess" W.G., as opined by Dr. Lancaster, this opinion was also contradicted by Dr. Cook. Dr. Cook did not agree that it was necessary for Dr. Ovadia to go to the hospital for anything, even the one error in treatment Dr. Cook believes Dr. Ovadia made: failing to close the wound. While Dr. Cook opined that
the wound should have been closed, he was of the opinion
Dr. Ovadia could have met this responsibility by either going to the hospital or by giving an appropriate order. It cannot, therefore, be concluded that Dr. Ovadia was required to go to the hospital for any purpose.
Finally, although Dr. Cook's testimony about the need for the wound to be closed was convincing, the Administrative Complaint does not contain an allegation that Dr. Ovadia failed to meet the Standard of Care for failing to ensure, personally or through an order, that the wound was closed.
The evidence failed to prove that the Standard of Care for the treatment of W.G. required that the wound be "drained."
The evidence failed to prove that Dr. Ovadia's treatment of W.G. violated the Standard of Care as specifically alleged in the Administrative Complaint.
Treatment of Patient F.S.
On the same night that W.G. presented to the emergency room, August 21, 1997, another patient, F.S., a 26-year-old male, also arrived. F.S. was first seen in the Homestead Hospital emergency room at approximately 6:51 p.m. (1851 hours).
F.S. had a 6-centimeter razor knife cut across the palm of his left hand. The cut occurred when F.S. fell from a ladder with the razor knife in his hand. The wound was not limb- or life-threatening.
F.S. was first seen by Jim Long (hereinafter referred to as "PA Long")9, a physician's assistant in the emergency room. According to PA Long's notes, the bleeding from F.S.'s hand was "uncontrollable". This note, however, conflicts with the emergency room nurse notes, which indicate that, upon his arrival, F.S.'s "bleeding ha[d] stopped." Based upon the weight of the evidence, it is concluded that the nurse notes are correct. The nurses were more likely the first to see F.S. and note his condition, the note is time specific, indicating that the bleeding had stopped "when he came in" and the note appears just before the first time specific entry of 7:15 p.m. (1915 hours). PA Long's notes on the other hand are not time specific until his note of 9:40 p.m. (2140 hours).
F.S. was given IV antibiotics and a shot for tetanus.
At approximately 7:15 p.m. (1915 hours), F.S. was "set up for suture . . ." by PA Long. Although there was no indication in the notes as to whether the wound was bleeding at this time, logic dictates the conclusion that it was not bleeding, since PA Long was attempting to suture the wound. At some time during the suturing process, the wound began to bleed uncontrollably.
As of approximately 7:45 p.m. (1945 hours), PA Long was "unable to stop bleeding." Once the wound began to bleed, it is likely that pressure was applied to it in an effort to
stop the bleeding. These efforts were, however, unsuccessful. Consequently, Dr. Ovadia, who it will be recalled, was the on- call orthopedic surgeon the night of August 21, 1997, was called for a consultation.
At some point after PA Long attempted unsuccessfully to suture F.S.' wound, a Dr. Sission,10 who was one of two physicians who saw F.S. in the emergency room, discussed the case with Dr. Ovadia. PA Long's note concerning this call indicates that the time of the call was either 8:40 p.m. (2040 hours) or 9:40 p.m. (2140 hours). The evidence failed to prove what the nature of this telephone conference was. In particular, the evidence failed to prove whether Dr. Sission requested that Dr. Ovadia come into the emergency room to assess and treat F.S. or whether he was satisfied with Dr. Ovadia's response.
At approximately 9:45 p.m. (2145 hours), at least two hours after the wound began to bleed uncontrollably, PA Long spoke to Dr. Ovadia. The nurse's notes indicate that the conversation took place at 9:55 p.m. (2155), the same time noted in the notes concerning W.G. that Dr. Ovadia was telephoned about W.G. Dr. Ovadia indicated that he did not want to come to the hospital to see F.S. Instead, he ordered that a pressure bandage be applied and that F.S. be instructed to see Dr. Ovadia in his office in the morning.
Dr. Ovadia's order at 9:45 p.m., like his order with regard to W.G., was not acceptable to the "ER physician" treating F.S. at the time. Dr. Ovadia was, therefore, telephoned "several"11 more times. Although the evidence failed to prove that Dr. Ovadia was specifically requested to come to the emergency room to attend to F.S., the evidence did prove that Dr. Ovadia refused to come to the emergency room to take over the care of F.S.12, and that Dr. Ovadia did not in fact come to the emergency room to assess F.S.'s condition. Instead, at 10:55 p.m. (2255 hours), the same time he ordered W.G. admitted to the hospital, Dr. Ovadia ordered that F.S. be admitted to the hospital, despite the fact that it had been three hours since the wound had begun to bleed again.
Unlike W.G., during at least one of the follow-up calls to Dr. Ovadia, Dr. Ovadia was told that emergency room staff did not believe that applying a pressure bandage was adequate. Because pressure had been applied after the wound began to bleed without any apparent effect and because the emergency room personnel were concerned that F.S. had cut part of one of the arteries in his hand, the emergency room staff told Dr. Ovadia that his orders were not sufficient. See
Dr. Cook's testimony at Lines 3-12, Page 102, Transcript, Volume 1.
F.S. left the hospital at approximately midnight.13
Allegations of Wrongdoing Concerning F.S.
In Count Two of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating F.S. in that he failed to do the following specifically alleged acts:
come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997; or
stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm.
The Experts' Opinions; The Standard of Care
Again, five physicians, including Dr. Ovadia, testified concerning the appropriate Standard of Care required in the treatment of F.S. As was the case with the experts' testimony about the Standard of Care for W.G., the five physicians who testified about F.S. gave inconsistent testimony. Unlike the testimony concerning W.G., however, the testimony of the two experts called by the Department, Dr. Lancaster and
Dr. Cook, was consistent to the extent they testified about at least one of the specific acts alleged in the Administrative Complaint (paragraph "a." quoted in Finding of Fact 49, supra.
Dr. Lancaster opined that Dr. Ovadia violated the appropriate Standard of Care for the treatment of F.S.:
Q Could you please express you opinion as to this case?
A My opinion is that Dr. Ovadia, as the orthopedic surgeon that was contacted being on-call for a hemorrhaging laceration, fell below the standard of care by not coming to the hospital to assess that or take appropriate actions to treat that.
Q And why would you believe it necessary to come to the hospital to see this patient?
A My understanding of the injuries were that this was a knife wound to the palm with arterial-type bleeding that the emergency room physician had assessed and did not feel comfortable with for fear of continued hemorrhage. That would represent potentially a case where an individual could bleed out from a wound like that. Most of those do not.
But the idea would be that this would need to be assessed by someone with more specialization than the emergency room physician to make a decision whether this should be repaired, not repaired, or what direction they should take.
By failing to come to the hospital when asked as an orthopedic surgeon on call, this could then fall below the standard of care.
Petitioner's Exhibit 1, Page 16, Lines 16-25, and
Page 17, Lines 1-10.
Dr. Cook opined the following concerning the appropriate Standard of Care for the treatment of F.S. and Dr. Ovadia's failure to meet that Standard:
Q We'll go into detail, but at this point, were you able to formulate a medical opinion [concerning F.S.]?
A Yes.
. . . .
Q What would that opinion be?
A My opinion was that the emergency room felt uncomfortable dealing with this patient injury. It was their opinion that he cut part of, one of the arteries in the hand.
It's called the distal palma arch. It's part of that arterial circulation in the hand. And despite putting pressure dressings on it, they still felt uncomfortable that the bleeding was [un]controlled. That's why the numerous phone calls requesting orthopedic back up or assessment were requested.
Transcript, Volume 1, Page 101, Lines 22-25 and
Page 102, Lines 1-12.
While Dr. Ovadia's expert witness, Jorge Obray, M.D., disagreed with the ultimate opinions of Drs. Lancaster and Cook concerning whether Dr. Ovadia met the Standard of Care with regard to F.S., he did so essentially because of his conclusion that there was insufficient time before Dr. Ovadia should have realized that he should come in to assess and treat F.S. and when F.S. left the hospital. Dr. Obray did agree, however, that, if the bleeding had not been stopped by a pressure bandage within an hour, Dr. Ovadia should have come in and dealt with the patient:
Q How long would you expect to wait until the bleeding stopped?
A When I use a pressure dressing, I put them for one hour, take them off and see if it stops bleeding. If it stops bleeding, I
put a lighter dressing on it and they go home.
Q And if the wound for some reason did not stop bleeding, what would be your opinion of treatment then?
A Well, then I could have to come in and actually myself do something to stop the bleeding, which usually means put a suture on the arterial arteries, ligate the arteries to control the bleeding.
Respondent's Exhibit 4, Page 24, Lines 1-14. This opinion is not inconsistent with the opinions expressed by Drs. Lancaster and Cook. Dr. Cook also agreed that waiting an hour after applying a pressure bandage would not be unreasonable:
Q How soon would you have expected [Dr. Ovadia] to come in once he was first called in this case?
A With the bleeding hand I think an hour's time is not unreasonable.
Transcript, Volume 1, Page 150, Lines 1-6.
The difference in the ultimate opinion of Dr. Obray and the ultimate opinions of Drs. Lancaster and Cook is due to Dr. Obray's conclusion that insufficient time had passed between the time Dr. Ovadia ordered a pressure dressing and when he would have been expected to come see F.S.
Dr. Obray's factual distinction is not, however supported by the record. Dr. Ovadia knew that F.S.'s hand was bleeding for over three hours when he ordered F.S. admitted to
the hospital and it was another hour after that before F.S. left the hopsital:
7:45 p.m.: F.S. began to bleed and unsuccessful efforts were made by the emergency room staff to stop the bleeding;
9:55 p.m.: Just over two hours after F.S.' hand began to bleed, Dr. Ovadia was informed of the situation. Dr. Ovadia ordered a pressure bandage;
10:55 p.m.: During the hour after Dr. Ovadia ordered a pressure bandage, and more than three hours after the bleeding started, "several" calls were made to Dr. Ovadia. Concern over Dr. Ovadia's order to apply a pressure bandage were related to Dr. Ovadia. Dr. Ovadia ordered F.S. admitted; and
11:55 p.m.: Finally, although the evidence failed to prove whether the bleeding stopped at some time after
10:55 p.m., an hour passed before F.S. left the hospital.
Based upon the foregoing, and the consistent opinions of Drs. Lancaster and Cook, it is concluded that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to "come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997, as alleged in the Administrative Complaint, subparagraph "a." quoted in Finding of Fact 49, supra.
The evidence failed to prove, however, that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to "stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm." No expert opinion to support such a finding was given in this matter.
Treatment of Patient W.L.
On October 5, 1997, patient W.L., a 52-year-old male, was brought to the emergency room of Homestead Hospital at approximately 5:34 p.m. (1734 hours).
W.L. had been involved in a severe motorcycle accident and was in a great deal of pain when he arrived. He had suffered multiple injuries, including a limb-threatening open posterior compound dislocation of his right elbow. The injury was serious and required reasonably expeditious treatment.
Dr. Ovadia was the on-call orthopedic surgeon at the time of W.L.'s arrival. Dr. Ovadia was in an operating room performing surgery on another patient when he was informed of W.L.'s condition. After completing the surgery, Dr. Ovadia examined W.L., ordered that he be given pain relief medicine, and recommended immediate surgery for W.L.'s dislocated elbow, to which W.L. gave verbal consent at approximately 7:45 p.m. (1945 hours).
Dr. Ovadia arranged for the necessary surgery personnel and waited while Leonard D. Benitez, M.D., the on-call
general surgeon, was contacted for clearance of the surgery.
W.L. was reported in the Emergency Department Nursing Assessment form to be resting comfortably as of 9:00 p.m. (2100 hours), which was about the time that Dr. Benitez finally arrived at the hospital.
Dr. Benitez, Dr. Ovadia, and W.L. came together in the CT scan room. A verbal altercation then ensued, between
Drs. Benitez and Ovadia, which ended with Dr. Ovadia leaving the CT scan room. Claudette Pinto,14 the nurse supervisor that evening, left the CT scan room with Dr. Ovadia.
Ms. Pinto told Dr. Ovadia that she would contact "administration to report the verbal altercation."15 Dr. Ovadia went to the lounge to wait for Ms. Pinto to report back.
After waiting in the lounge without any word from Ms.
Pinto, Dr. Ovadia contacted Ms. Pinto, who told him that she had called Dr. Russell, the Chief of Surgery for Homestead Hospital and reported the incident. Ms. Pinto told Dr. Ovadia that
Dr. Russell was dismissing him from the care of W.L. and that
W.L. would be transferred to another hospital for orthopedic care.16
At 9:30 p.m. (2130 hours), Dr. Ovadia spoke with Dr. Russell to confirm Ms. Pinto's message. Dr. Russell
confirmed Ms. Pinto's report: Dr. Russell dismissed Dr. Ovadia
from further care of W.L. and took over responsibility for arranging for W.L. to be transferred to another hospital.17
Following his dismissal from the care of W.L. by Dr. Russell, Dr. Ovadia left Homestead Hospital and went home. Although his care of W.L. had been terminated by Dr. Russell, his on-call status had not been. Dr. Ovadia, therefore, remained on-call.
Emergency room staff were eventually instructed to contact Dr. Ovadia to ask him whether he "would like to resume care of W.L."18
Dr. Ovadia was first contacted by emergency room staff after being dismissed from W.L.'s care and being informed that
W.L. would be transferred to another facility, at approximately 11:35 p.m. (2335 hours). This telephone call came approximately two hours after Dr. Ovadia had been dismissed by Dr. Russell. Dr. Ovadia was offered the opportunity to resume care of W.L. Dr. Ovadia informed whoever made the telephone call that he could not do so because he had been removed from W.L.'s care by Dr. Russell.19 Dr. Ovadia indicated that Dr. Russell would have to instruct him to return. Although Dr. Ovadia was surprised that W.L. was still at Homestead Hospital, he still had no authority to counteract Dr. Russell's orders.
At approximately 1:00 a.m. (0100 hours), October 5, 1997, Dr. Russell telephoned Dr. Ovadia, as requested.
Dr. Russell asked Dr. Ovadia if he would like to resume care of W.L., to which Dr. Ovadia responded "no." Dr. Russell did not tell Dr. Ovadia that he was being reassigned to W.L.'s care or that Dr. Russell no longer planned to transfer W.L. to another facility.
At 1:40 a.m. (0140 hours) a nurse's note indicates that Dr. Ovadia was "contacted again [apparently by Dr. Russell] regarding Pt acceptance. Pt was not accepted by Dr. Ovadia." [Emphasis added].
Between the 11:35 p.m. and the 1:40 a.m. nurse's notes and after the 1:40 a.m. note, there follows a series of notes, all of which report the status of W.L., which Dr. Ovadia remained unaware of, indicating the confusion caused by
Dr. Russell's decision to transfer W.L. to another facility, describing the ultimate frustration of the emergency room nursing staff, and explaining the ultimate problem with caring for W.L., the inability to obtain insurance authorization for his care:20
0005 Dr. Benitez signs admit orders for Homestead hospital if procedure for ortho surgery can be performed at Homestead hospital . . . .
0020 Awaiting instructions concerning pt transfer or admit instructions. Pt resting comfortably still on spine board. IV intract f/owing KVO
. . . .
0200 Pt resting comfortably, multiple facilities, multiple physicians contacted. No admit, no transfer, no surgery, no change in status of Pt care.
0220 . . . . No change in transfer admit status. . . .
0300 . . . No status change regarding admit transfer status. . . .
0325 Finally!! Admit orders provided by Dr. Benitez by telephone. . . .
0331 Pt to be transferred to ICU WEST 3
. . . .
0325 HMO Primary Care provided Dr. Orlando Arana gave authorization for Dr.
Benitez to admit patient to Homestead Hospital.
0410 . . . Pt will be physically transferred when bed has been cleaned.
. . .
. . . .
0530 Pt transferred to hospital bed for comfort. . . .
Petitioner's Exhibit 2, Pages 76-77.
Although W.L.'s orthopedic injuries, which required immediate care, remained untreated until the day after arriving at Homestead Hospital, Dr. Ovadia's last instruction concerning
W.L. was that he was removed from W.L.'s care, that W.L. would be transferred to another facility, and that, if he wished to, he could resume care for W.L., an offer which Dr. Ovadia told Dr. Russell he declined. At no time was Dr. Ovadia informed that Dr. Russell had reversed his decision to transfer W.L. to another facility, even after declining to resume care or that Dr. Russell had not been able to arrange for W.L.'s transfer to another facility. It was not until the day after W.L. first
arrived at the hospital that Dr. Ovadia learned that W.L. had not been transferred.
Allegations of Wrongdoing Concerning W.L.
In Count Three of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating W.L. in that:
. . . . Respondent failed to come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon.
The Experts' Opinions; The Standard of Care
Again, the same five physicians testified concerning the appropriate Standard of Care required in the treatment of
W.L. As was the case with the physicians who testified about the Standard of Care for W.G. and F.S., the five physicians who testified about W.L. gave inconsistent testimony concerning the Standard of Care. More importantly, the opinions of the experts called by the Department were inconsistent, based upon facts not in evidence, or involved errors in treatment not alleged in the Administrative Complaint.
Dr. Lancaster testified as follows concerning the appropriate Standard of Care and Dr. Ovadia's failure to meet it:
Q Could you express your opinion as to this case. . . .
A I have two opinions in regard to the case. The first is that Dr. Ovadia had a duty to the patient once he saw him to treat him orthopedically. And the only reason that he could be released from that is if there was a transferring orthopedic surgeon, which there wasn't. As such, his removal from the case would fall below the standard of care.
In addition, being an on-call orthopedic surgeon and being requested to come to the hospital to take care of an orthopedic problem and not doing so would, likewise, fall below the standard of care.
Petitioner's Exhibit 1, Page 4, Lines 13-25 and
Page 5, Line 1-2.
Dr. Lancaster also opined that it was a violation of the Standard of Care for Dr. Ovadia not to resume care of W.L. because he was "an on-call physician, who [was] required to take care of any orthopedic problems at the hospital if so requested by the emergency department." Petitioner's Exhibit 1, Page 5, Lines 24-25, and Page 6, Lines 1-2.
Finally, Dr. Lancaster opined that Dr. Ovadia failed to meet the Standard of Care because he failed to follow-up on the passing of the care of W.L. to either another hospital or to another physician, an opinion shared by Dr. Cook.
Dr. Cook opined as follows concerning the treatment of W.L.:
Q What would a reasonably prudent physician under the same circumstances talking about orthopedics in this
circumstance, do in that situation; in light of the knowledge of the facts of this case?
A It would be my opinion that when you are called the second time at home and the conversation just is somewhat that, gee, we don't have anybody else to take care of this orthopedic problem. It is because it's in the middle of the night or because the guy doesn't have any money, or because it's too complex for somebody else to handle. Then, I think the reasonably prudent physician assistant is trying to find someone else to care for the patient, and failing that I think the ball is still in your court, it's still on your shoulders. Whatever metaphor you want to use, you need to come in and take care of the situation.
Albeit, even to say to the patient, look I know this seems very confusing what's going on here tonight, but the gist of the matter is that this injury needs to be cared for immediately, I'm going to take care of that for you and then tomorrow you're going [to] meet Dr. XYZ and he or she is going to care for you the rest of the time. Or you pick up the telephone and you make the telephone calls and you find somebody or you assist in the transfer. (Emphasis added).
Transcript, Volume 1, Page 115, Lines 3-25, and
Page 116, Lines 1-4.
While the foregoing opinion supports the charges of the Administrative Complaint, Dr. Cook goes on to testify on cross examination as follows:
My opinion is, and my problem with the case is, who was looking out for the patient? There is no question that
Dr. Ovadia had every reason to be upset with the way this case went initially. There was no question he was compromised by the acts
of the chief of the staff or the chief of surgery, whatever the case may be, in both, in front of the rest of the staff members in the emergency room, in front of the patient, just in his own ability to take care of the patient.
These is no question, I, as a physician, would have been upset by the whole event. And then to get called later that night and they say, oh, by the way, would you mind coming in and taking care of the mess I've made? But at some point in time when we assume the mantel of a physician, we have to assume that we are going to look out for the patient and put our own egos aside -- that may not be the right term here -- and that's what my problem is. Who was looking out for the patient?
I don't expect Dr. Ovadia who was not taking care of the patient, but I do expect that he would have gotten on the phone and called his very best friends and said, hey, I got a heck of a problem. I do expect that he could have called another hospital and said the same thing himself, not relying upon the hospital administrator or did not rely on the chief of staff, who has already shown what a problem he was rather than a solution. That's the way I come down. I know there is not textbook that's going to back that up, it's the way I come down to. (Emphasis added).
Transcript, Volume 1, Page 166, Lines 7-25, and
Page 167, Lines 1-12.
Dr. Cook also testified about a number of actions that Dr. Ovadia could have taken. See, e.g., Transcript, Volume 1, Page 117, Lines 1-25. The actions which Dr. Cook testified
Dr. Ovadia could have taken were not, however, actions alleged
in the Administrative Complaint and, therefore, are not relevant to this matter.
The first of Dr. Lancaster's two opinions, quoted in Finding of Fact 75, supra, that Dr. Ovadia was never appropriately removed from caring for W.L., is rejected because it is inconsistent with the opinion offered by Dr. Cook and is not an act for which Dr. Ovadia has been charged in the Administrative Complaint.
The second of Dr. Lancaster's two opinions, also quoted in Finding of Fact 75, supra, is rejected because
Dr. Lancaster's understanding of the facts was inconsistent with the evidence presented at hearing. Dr. Lancaster testified that it was his understanding that Dr. Ovadia was contacted after he left the hospital and informed that W.L. had been cleared for surgery and, therefore, Dr. Ovadia was being requested to return. The evidence failed to prove that Dr. Ovadia had been relieved temporarily until W.L. was cleared for surgery or that Dr. Ovadia was "requested" to return; rather, Dr. Ovadia was "offered" an opportunity to return.
More importantly, Dr. Lancaster's opinion, given its most generous interpretation, is not supported by Dr. Cook's opinion. Dr. Cook, while initially testifying that Dr. Ovadia failed to meet the Standard of Care because he did not come to the hospital and "take care of the situation" (Finding of
Fact 78) later testified that Dr. Ovadia failed to meet the Standard of Care because he failed to arrange for W.L.'s care, an action which did require Dr. Ovadia to come to the hospital (Finding of Fact 79). Therefore, to the extent that
Dr. Lancaster opined that Dr. Ovadia should have come to the hospital, Dr. Cook ultimately retreated from such an opinion.
As to the opinion of Drs. Lancaster and Cook that Dr. Ovadia failed to meet the Standard of Care by failing to ensure that another hospital or, more particularly, another
orthopedic surgeon, had assumed responsibility for W.L.'s care, while their opinions were consistent and credible, their opinions relate to an error in treatment not alleged in the Administrative Complaint. This opinion cannot, therefore, support a finding that Dr. Ovadia failed to meet the Standard of Care in his treatment of W.L. in this proceeding.
Finally, Dr. Lancaster's opinion that Dr. Ovadia failed to meet the Standard of Care because he did not resume care of W.L. even though he was "an on-call physician, who [was] required to take care of any orthopedic problems at the hospital
. . . " must be rejected for two reasons: first, this opinion was not supported by Dr. Cook's opinions; and, secondly, and more importantly, this alleged error in treatment is not alleged in the Administrative Complaint
Based upon the foregoing, it is concluded that the evidence failed to prove that Dr. Ovadia failed to meet the Standard of Care because he "failed come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon."
Conclusion.
The weight of the evidence in this case proved that Dr. Ovadia violated the Standard of Care as alleged in subparagraph 21.a. of Count Two of the Administrative Complaint.
The evidence failed to prove clearly and convincingly that Dr. Ovadia violated the Standard of Care as alleged in Count One, subparagraph 21.b. of Count Two, or Count Three of the Administrative Complaint.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), and Section 456.073(5), Florida Statutes.
The Charges of the Administrative Complaint.
91. In its Administrative Complaint, the Department has alleged that Dr. Ovadia has violated Section 458.331(1)(t), Florida Statutes, which provide in pertinent part:
. . . . [T]he 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 Department has asserted that Dr. Ovadia committed three separate violations of Section 458.331(1)(t), Florida Statutes, and has set out the specific facts it believes support a finding that Dr. Ovadia committed the violations in three separate counts in the Administrative Complaint.
In Count One, it is alleged that Dr. Ovadia violated the Standard of Care in his treatment of W.G. by failing to:
come to the hospital to personally examine or treat Patient W.G. on or about August 21, 1997;
clean and drain Patient W.G.'s lacerated thumb; or
order that other hospital personnel clean and drain the laceration.
In Count Two, it is alleged that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to:
come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997; or
stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm.
In Count Three, it is alleged that Dr. Ovadia violated the Standard of Care in his treatment of W.L. by failing to:
. . . come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon.
The Burden and Standard of Proof.
The Department seeks to impose penalties against Dr. Ovadia through the Administrative Complaint that include
suspension or revocation of his license and/or the imposition of an administrative fine. Therefore, the Department has the burden of proving the specific allegations of fact that support its charge that Dr. Ovadia violated Section 458.331(1)(t), Florida Statutes, by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Pou v.
Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).
What constitutes "clear and convincing" evidence was described by the court in Evans Packing Co. v. Department of
Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), as follows:
. . . [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence 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 the 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).
See also In re Graziano, 696 So. 2d 744 (Fla. 1997); In re Davey, 645 So. 2d 398 (Fla. 1994); and Walker v.
Florida Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).
The Department's Proof.
The proof presented by the Department in this case was clear and convincing only as to the specific allegations of Count Two of the Administrative Complaint, and then only to the extent that it was alleged in subparagraph 21.a. of Count Two that Dr. Ovadia failed to meet the Standard of Care in his treatment of F.S. by failing to "come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997." Dr. Ovadia did, therefore, violate Section 458.331(1)(t), Florida Statutes, as alleged in subparagraph
21.a. of Count Two.
As to subparagraph 21.b. of Count Two, Count One, and Count Three, the Department failed to meet its burden of proof. The evidence concerning the specific acts of wrongdoing alleged in those Counts was not clear and convincing; it could not be
when the Department's own expert witnesses could not agree how Dr. Ovadia failed to meet the Standard of Proof, when their understanding of the facts differed, and when the evidence of the events was limited to the medical records rather than the recollection of those who wrote the medical records or participated in the pertinent events.
Where the Department's experts did agree, the fault they found with Dr. Ovadia's treatment of W.G., W.L., and F.S. (other than agreeing that Dr. Ovadia violated the Standard of Care alleged in subparagraph 21.a. of Count Two), involved actions that Dr. Ovadia took or actions he failed to take that were not alleged in the Administrative Complaint. Therefore, even though their testimony may have been clear and convincing with regard to those unalleged violations, due process prohibits the Department from taking disciplinary action against
Dr. Ovadia based upon that conduct. Due process requires that Dr. Ovadia be placed on notice of the specific violations the Department believes he has committed. Having listed the specific acts which constitute the alleged violations of the Standard of Care in the Administrative Complaint, the Department cannot now discipline Dr. Ovadia for actions which may have been proved to be in violation of the Standard of Care which
Dr. Ovadia was never informed he had to defend against. See Hamilton v. Department of Business and Professional Regulation,
764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).
The Appropriate Penalty
In determining the appropriate punitive action to recommend to the Board in this case, it is necessary to consult the Board's "disciplinary guidelines," which impose restrictions and limitations on the exercise of the Board's disciplinary authority. See Parrot Heads, Inc. v. Department of Business and
Professional Regulation, 741 So. 2d 1231 (Fla. 5th DCA 1999).
The Board's guidelines are set out in Rule 64B8- 8.001, Florida Administrative Code, which provides the following "purpose" and instruction on the application of the penalty ranges provided in the Rule:
Purpose. Pursuant to Section 456.079, F.S., the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 458, F.S. The purpose of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The ranges of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single, isolated violation.
Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations.
Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Section 120.57(1) and 120.57(2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included.
Rule 64B8-8.001(2)(t), Florida Administrative Code, goes on to provide, in pertinent part, the following range of penalties for a first offense of violating Section 458.331(1)(t), Florida Statutes: "From two (2) years probation to revocation . . . and an administrative fine from $1,000.00 to
$10,000.00."
Rule 64B8-8.001(3), Florida Administrative Code, provides that, in determining the appropriate penalty, the following aggravating and mitigating circumstances are to be taken into account:
Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present
in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating factors the following:
Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;
Legal status at the time of the offense: no restraints, or legal constraints;
The number of counts or separate offenses established;
The number of times the same offense or offenses have previously been committed by the licensee or applicant;
The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;
Pecuniary benefit or self-gain inuring to the applicant or licensee;
The involvement in any violation of Section 458.331, Florida Statutes, of the provision of controlled substances for trade, barter or sale, by a licensee. In such cases, the Board will deviate from the penalties recommended above and impose suspension or revocation of licensure.
Any other relevant mitigating factors.
In its Proposed Recommended Order, the Department has requested that it be recommended that Dr. Ovadia's license be revoked or suspended for two years followed by probation of five years, that he receive a Reprimand, that he be required to pay an Administrative Fine of $5,000.00, per Count, totaling
$15,000.00, that he be required to take course work in ethics as it relates to the practice of medicine, and that he be required to pay the costs of the investigation and prosecution of this matter. The requested penalties are based upon a finding that Dr. Ovadia violated all of the Counts of the Administrative Complaint, which has not been proved.
Having carefully considered the facts of this matter in light of the provisions of Rule 64B8-8.001, Florida Administrative Code, it is concluded that Dr. Ovadia should receive a reprimand, be required to pay a $5,000.00 administrative fine, be required to attend ethics courses relating to the practice of medicine, and be placed on probation for a period of two years. A single offense was proved in this case, this is Dr. Ovadia's first disciplinary action, and the exposure of F.S. and the public to injury or potential injury, physical or otherwise was slight and none, respectively.
As to the request that it be recommended that Dr. Ovadia be required to pay the costs associated with the
investigation and litigation of this matter, Section 456.072(4), Florida Statutes, provides, in pertinent part:
In addition to any other discipline imposed through final order, or citation, entered on or after July 1, 2001, pursuant to this section or discipline imposed through final order, or citation, entered on or after July 1, 2001, for a violation of any practice act, the board, or the
department when there is no board, shall assess costs related to the investigation and prosecution of the case. . . .
[Emphasis added].
It is clear from the language of Section 456.072(4), Florida Statutes, that, if the Board agrees to impose disciplinary action against Dr. Ovadia, that it is to at that time also impose the costs of the investigation and prosecution of this matter. When the Board does so, Dr. Ovadia should then have a point of entry to challenge that decision and, if there are issues of fact in dispute, the matter should proceed to formal hearing. Until that time, the Division of Administrative Hearings has no jurisdiction over the matter of costs and, given the statutory directive to the Board, all that this forum could do at this point would be to remind the Board of its duty, an unnecessary act.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the a final order be entered by the Board of Medicine finding that Joseph Ovadia, M.D., has violated Section 458.331(1)(t), Florida Statutes, as alleged in subparagraph 21.a. of Count Two of the Administrative Complaint; dismissing Count One, subparagraph 21.b. of Count Two, and Count Three of the Administrative Complaint; issuing a Reprimand to
Dr. Ovadia; requiring the payment of a $5,000.00 administrative fine within a reasonable time after the Final Order is issued; placing Dr. Ovadia on probation for a period of two years; and requiring that Dr. Ovadia attend ethics courses relating to the practice of medicine as directed by the Board of Medicine.
DONE AND ENTERED this 10th day of March, 2003, in Tallahassee, Leon County, Florida.
LARRY J. SARTIN
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 10th day of March, 2003.
ENDNOTES
1/ None of the individuals who provided care to W.G. on
August 21, 1997, were called to testify in this matter by either party. Instead, the medical records were offered and accepted into evidence as Petitioner's Exhibit 2 with the agreement of the parties that the medical records were properly admitted and, although hearsay, the notes contained therein are subject to the business records exception to the hearsay rule provided in Section 90.803(6), Florida Statutes. Accordingly, the medical records have been treated as direct evidence of the treatment of the three patients at issue in this case.
2/ Although Dr. Ovadia testified in his deposition several times that he had ordered the wound cleaned, his testimony at hearing was, overall, to the contrary. Compare Petitioner's Exhibit 6,
Page 24, Lines 22-23 and Page 29, Lines 23-25 with Transcript, Volume II, Page 321, Lines 14-25 continuing on Page 322, Lines 1-7, Page 335, Lines 7-12, and Page 337, Lines 20-22. Based upon the lack of a note in the medical records concerning
Dr. Ovadia's orders for the care of W.G. and Dr. Ovadia's inconsistent statements, it is concluded that Dr. Ovadia reasonably assumed that the wound had in fact been cleaned and, therefore, did not order the emergency room staff to do so.
3/ The testimony of Department's own expert witness, Frank Cook, M.D., supports this finding.
4/ Id. The evidence in this case failed to prove that W.G.'s wound needed to be "drained" as alleged in the Administrative Complaint.
5/ The medical notes following the note of 9:55 p.m. indicate the following:
22:15 Pt no actual distress, [sic]
22:25 Dr. Fish called to intervene to discuss problem. . . .
22:55 After several phone calls to Dr. Ovadia, orders were given to Supervisor Janet for admission, awaiting beds to take pt up stairs. . . .
The actual number of telephone calls made by emergency room staff to Dr. Ovadia was not proved. The only direct testimony concerning the number of calls came from Dr. Ovadia, who indicated that two, three, or four calls were made to him.
6/ There was no direct testimony by those with knowledge of what transpired on the night of August 21, 1997, that Dr. Ovadia was specifically requested to come to the emergency room to care for
W.G. There was also no direct evidence that Dr. Ovadia ever stated to anyone that he would not come to the emergency room to see W.G. When asked during his deposition "Okay. Do you admit that on August 21st, 1997, that you made a statement that you did not want to see patient W.G.?" Dr. Ovadia replied "No."
Page 76, lines 16-19, Petitioner's Exhibit 6.
A note entered at 9:55 p.m. (2155 hours) concerning patient F.S., who also presented to the emergency room on August 21, 1997, indicates that "Ortho Ovadia does not want to come to see pts." This note was made at the same time that a similar note was made concerning patient W.G. The note concerning W.G.,
however, and the notes that precede it, are identical in all other respects to the notes concerning F.S. The note for F.S. refers to "pts," indicating more than one patient. The note could, therefore, mean that Dr. Ovadia refused to see both F.S. and W.G. This conclusion, however, is countered by the just as reasonable conclusion that, since the author of the series of notes for both patients was the same and the notes are identical in all other respects, the author of the notes intentionally did not indicate that Dr. Ovadia refused to see W.G. because he had not. Because of these contradictory reasonable conclusions, the evidence is simply not clear or convincing.
7/ Although the medical records indicate that W.G. left the hospital "AMA" or against medical advice, the evidence failed to support a finding that W.G. was ever specifically told that he was leaving AMA. W.G. himself testified that he was told to go to another hospital, Baptist Hospital, which he did. He remained at Baptist Hospital until approximately 4:00 a.m., August 22, 1997. This testimony is supported by a Patient Instruction Sheet for Continuing Care, located at page 299 of Petitioner's Exhibit 2.
8/ Dr. Cook testified at length about the need to clean W.G.'s wound:
Q So as regular serving emergency room physician, wouldn't you expect the emergency room physician to clean the wound and assess the wound before they even called you about the wound?
A You would certainly hope they would do that.
Q And based on your knowledge, that would be within the standard of care of what an emergency room physician does?
A That would be correct.
Q And as part of their responsibilities they would also irrigate that wound, wouldn't they?
A I would certainly hope so, yes, ma'am.
Q Would you expect there to be an order in their record to say clean, irrigate the wound for
Dr. Ovadia?
A I would expect so.
Q If the emergency room physician does not as matter of course, that falls within their standards, why would you expect the order to be subsequently entered by Dr. Ovadia?
A I don't think that I have testified he had to enter the order. I said the standard of care is for the wound to be cleaned, irrigated, and the skin to be closed. Whether Dr. Ovadia does it, the physician assistant does it, the emergency room physician does it, or the patient does it himself that's still a standard of care for that to happen.
If he's on call, then ultimately, the buck stops there. He has to make sure that gets done to the patient especially if they called him regarding that. But I don't think it's written anywhere that he has to personally come in and do all those things, as long as they're done.
Q Do you assume that cleaning and irrigation of the wound is done before you get the call on that patient?
A I would hope so, yes, because otherwise how would they know what they have.
Q Exactly. Cleaning and irrigation is necessary if [sic] order to assess the extent of the wound; isn't that true?
A I think we have to be careful a little bit because cleaning to see what's going on and thorough cleaning may not to [sic] be the same thing, but I think we are cutting hairs here.
Q You would expect if the emergency room physician saw pieces of steal [sic] or dirt in the wound that they would clean it out before they call you?
A Yes, ma'am, we would hope that. (Emphasis added).
Transcript, Volume 1, Page 134, Lines 13-25, Page 135,
Page 1-25, and Page 136, Line 1-12.
As discussed, infra., Dr. Cook ultimately adds to this testimony that his opinion is that Dr. Ovadia violated the Standard of Care only by failing to ensure, personally or by order, that W.G.'s wound was closed.
9/ Neither PA Long nor anyone else in the emergency room during F.S.'s treatment testified at the final hearing.
10/ Dr. Sission was not further identified and he did not testify at the final hearing.
11/ The emergency department nursing notes for F.S. following the note of 9:55 p.m. are identical in all material respects to the notes concerning M.G.:
22:15 Pt no actual distress
22:25 Dr. Fish called to intervene to discuss problem. . . .
22:55 After several phone calls to Dr. Ovadia, orders were given to Supervisor Janet for admission, awaiting beds to take pt up stairs. . . .
The actual number of telephone calls made by emergency room staff to Dr. Ovadia concerning F.S. was not proved.
12/ Unlike the 9:55 p.m. nurses note for W.G., the 9:55 p.m. nurses note for F.S. states that "Ortho Ovadia does not want to come see pts." Based upon this note, it appears, despite Dr.
Ovadia's unconvincing testimony to the contrary, that Dr. Ovadia made it clear that he was not coming to the hospital to treat
F.S. despite the concerns over F.S.'s uncontrollable bleeding being reported by the emergency room staff to Dr. Ovadia.
13/ Although the medical records indicate that F.S., like W.G., left the hospital "AMA" or against medical advice, a Patient Instruction Sheet for Continuing Care Contained in the medical records indicates that F.S. was instructed: "Go directly to Baptist in Kendall."
14/ Ms. Pinto did not testify at the final hearing. To the extent that Dr. Ovadia testified about his direct knowledge of Ms. Pinto's involvement in this matter, relevant findings of fact have been made. For example, despite a hearsay objection from counsel for Petitioner, what Dr. Ovadia heard Ms. Pinto tell him, to the extent relevant, was sufficient to make a finding of fact.
15/ Ms. Pinto had been requested to contact Dr. Russell by Dr. Benitez.
16/ While Dr. Ovadia's testimony proved that Ms. Pinto told him what she was told by Dr. Russell, who did not testify at the final hearing, Dr. Russell's conversation with Ms. Pinto is hearsay. The nature of Dr. Russell's comments, however, were confirmed when Dr. Russell talked directly to Dr. Ovadia.
17/ The Department has suggested in its Proposed Recommended Order that Dr. Russell told Dr. Ovadia to "not treat Patient WL until cleared by the general Surgeon." This proposed finding of fact is based upon the testimony of Dr. Benitez, Petitioner's Exhibit 4, Pages 49-50. This proposed finding of fact is not supported by the weight of the evidence. Dr. Benitez's understanding of Dr. Russell's instruction are unsupported hearsay: Dr. Benitez did not participate in or hear the conversations between Dr. Russell and Ms. Pinto or Dr. Ovadia.
Dr. Benitez's understanding was also contradicted by admissible, non-hearsay evidence.
When asked if Dr. Russell had dismissed Dr. Ovadia from care of W.L., Dr. Benitez testified as follows:
Q Okay, let's go back to the conversation with Dr. Russell.
Is it your testimony that Dr. Russell did not dismiss Dr. Ovadia from the case?
. . . .
THE WITNESS: I'm not aware of what discussion, you know, took place, other than my discussion with him.
My discussion with Dr. Russell mainly centered around what I felt the patient needed and my role in continuing to provide general surgery service.
18/ Dr. Benitez testified that when he completed his role as the on-call general surgeon, he instructed emergency room staff to contact Dr. Ovadia and to inform Dr. Ovadia that he could resume care of W.L. This testimony is not credited. The nurses notes include the following as of 10:40 p.m. (2240 hours) concerning W.L.'s situation:
Pt waiting for transfer to Baptist or Dr. Ovadia to accept Pt for Surgical Procedure.
Petitioner's Exhibit 2, Page 76.
Based upon the 10:40 p.m. note, at least the nurse that wrote the note was aware that, contrary to Dr. Benitez's testimony, W.L. was to be transferred to another facility, as Dr. Russell had told Dr. Ovadia he would be, unless
Dr. Ovadia agreed to "accept" an offer to resume care of W.L.
19/ The nurse's notes concerning this conversation indicate "Dr. Ovadia refusal to treat Pt. Pt to be transferred to Baptist." The portion of this note concerning Dr. Ovadia's "refusal" to treat W.L. is not supported by the weight of the evidence to the extent that it does not accurately relate the facts found in findings of fact 68 and 69.
20/ The progress notes also lead to the conclusion that the problem with transferring W.L. to another facility was the lack of insurance coverage. The progress note for October 6, 1997, indicates "Pt wishes transfer to BMH. This was attempted but pt's insurance would not cover pt. "
COPIES FURNISHED:
Daniel Lake, Esquire Department of Health Office of General Counsel
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Louise T. Jeroslow, Esquire
Law Offices of Louise T. Jeroslow, P.A. 6075 Sunset Drive, Suite 201
South Miami, Florida 33143
Dr. John O. Agwunobi, Secretary Department of Health
4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Larry McPherson, Executive Director Board of Medicine
Department of Health 1940 North Monroe Street
Tallahassee, Florida 32399-0792
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 |
|---|---|---|
| Jun. 23, 2003 | Agency Final Order | |
| Mar. 10, 2003 | Recommended Order | Respondent violated 458.331(1)(t), Florida Statutes, when he failed to go to emergency room while on call to assess patient. |
