STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 02-4285PL

)

TEODULO REYES MATIONG, JR., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on February 25 and 26, 2003, in Tampa, Florida, before Susan

B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James W. Earl, Esquire

Department of Health

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

For Respondent: A. S. Weekley, Jr., Esquire

Holland & Knight, LLP

400 North Ashley Drive, Suite 2300 Tampa, Florida 33602

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On August 15, 2002, Petitioner, Department of Health (Department), filed a two-count Administrative Complaint against Respondent, Teodulo Reyes Mationg, Jr. (Dr. Mationg), alleging that he had violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes. Dr. Mationg requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on October 10, 2002, for assignment of an Administrative Law Judge to conduct the final hearing.

The final hearing was scheduled for January 7 and 8, 2003. On December 5, 2002, Dr. Mationg filed a Motion for Continuance, which was granted by Order dated December 13, 2002. The final hearing was re-scheduled for February 25 and 26, 2003.

On December 12, 2002, Petitioner filed Petitioner's Motion for Leave to Amend the Administrative Complaint. The Motion was granted by Order dated December 18, 2002. On February 12, 2003, Petitioner filed Petitioner's Motion for Leave to Amend the Administrative Complaint. An Order Granting Leave to Amend the Administrative Complaint was issued on February 13, 2003.

The parties filed a Joint Prehearing Stipulation and stipulated to certain facts contained in Section e of the

Joint Prehearing Stipulation. Those facts have been incorporated in this Recommended Order.

At the final hearing, Petitioner called the following witnesses: Marcia Wild, Hazel Mahoney, Timothy Mark Harberts, John Michael Culligan, and Harry Curtis Benson, M.D. Petitioner's Exhibits 1 through 5 were admitted in evidence.

Respondent testified in his own behalf and called Mohan Kutty,

1. and Siddharth H. Shah, M.D. Respondent's Exhibits A, B, D, E, and F were admitted in evidence. Joint Exhibit 1 was admitted in evidence.

   The parties agreed to file their proposed recommended orders within 20 days of the filing of the transcript. The two-volume Transcript was filed on March 17, 2003. The parties timely filed their Proposed Recommended Orders.

   FINDINGS OF FACT

   
   

   1. The Department is the State agency charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes.

   2. At all times material to this proceeding, Dr. Mationg was a licensed physician in the State of Florida. His license, numbered ME 0028183, was issued on April 13, 1976.

   3. Dr. Mationg is the primary care physician of A.A.

      
      

      Dr. Mationg referred A.A. to Dr. Steven Schafer, an orthopedic

      surgeon, for pain in the right shoulder, which was found to require arthroscopic surgery and repair of a rotator cuff.

   4. On January 10, 2000, A.A. was admitted to Regional Medical Center Bayonet Point (Bayonet Point) for surgery. At the time of his admission to the hospital, A.A. was 65 years old and suffered from numerous medical problems. He had cardiomyopathy, meaning his heart was enlarged and not functioning properly. A.A. had high blood pressure and a history of heavy smoking. He had generalized arteriosclerosis and peripheral artery disease. A.A. had previously had surgeries involving the placement of a stint and angioplasty. Based on his medical history, A.A. was subject to a stroke and a heart attack.

   5. Prior to his admission to the hospital, A.A. had been taking aspirin daily. Approximately three days prior to surgery, A.A. was directed by Dr. Schafer to discontinue taking aspirin. The aspirin was discontinued to reduce the risk of A.A.'s blood not being able to clot sufficiently.

   6. The hospital records of A.A. contain a request for consultation with Dr. Mationg for medical management dated January 10, 2000. The discharge summary shows that the medical evaluation was obtained so that A.A. could be followed by his primary care physician for his hypertension and other medical history.

   7. Dr. Schafer performed the surgical procedure on A.A. on January 10, 2000. A.A. had some respiratory problems, and Dr. Mationg ordered a pulmonary consultation with Dr. Patel the afternoon of January 10, 2000. Because of the respiratory problems, A.A. was placed on a ventilator and transferred to the intensive care unit. On January 11, 2000, Dr. Patel extubated A.A., which means that A.A. was taken off the ventilator.

   8. On January 11, 2000, Dr. Mationg saw A.A. at 9:00 a.m. and wrote and signed an order for lasix and lanoxin for A.A.

   9. Around 3:15 a.m. on January 12, 2000, A.A. was awakened for respiratory therapy and experienced numbness in his left arm and slurring of speech. When A.A. smiled, the left side of his mouth remained flat while the right side turned up. The nurse on duty was called, and he observed A.A.'s symptoms. A.A.'s symptoms indicated that he was having a stroke. Nurse Culligan notified Drs. Schafer and Mationg.

   10. Dr. Mationg did not come to the hospital to evaluate

       
       

       A.A. The standard of care would have required him to come to the hospital to evaluate A.A. because A.A. was exhibiting the symptoms of a stroke. Instead of coming to the hospital to do an evaluation, Dr. Mationg gave the following orders telephonically to Nurse Culligan at 4 a.m., on January 12, 2000:

       T.O. Dr. Mationg/M. Culligan

       do CT head [without] contrast today a.m. do carotid doppler study today a.m. consult Dr. S. Shah for neuro eval.

       get speech therapy eval. and video swallow today.

       
       

       Nurse Culligan wrote the orders on A.A.'s chart; Dr. Mationg later countersigned the orders.

   11. The term "stat" in medical parlance means immediately or as soon as possible. An order is not presumed to be stat if the order does not specify that it is stat. The tests and consultation which Dr. Mationg ordered at 4 a.m., on January 12, 2000, were not ordered to be implemented stat. The standard of care for treating A.A. required that Dr. Mationg order a stat neurological consultation and a stat head CT scan.

   12. Bayonet Point has established policies for its imaging services department, including CT services. The normal hours for CT services are 7 a.m. to 11 p.m., Monday through Sunday. After normal hours, the services are provided on-call. Bayonet Point's call-back procedures include the following:

       When an emergent radiologic procedure is ordered after hours, the Radiology personnel will contact the appropriate on call technologist via the hospital operator. Once the procedure is complete, the Technologist will call the Radiologist on call and then transmit those images via Teleradiography.

       Definition of an emergent procedure: In- house STAT, Emergency Department physician requesting radiologist interpretation, any outpatient whose physician requests immediate radiologist interpretation or "wet reading."

       
       

   13. Prior to A.A.'s experiencing the symptoms of a stroke at 3:15 a.m., no orders had been given for A.A. to resume taking aspirin. At 10 p.m. on January 10, 2000, Dr. Schafer ordered that "till further notified" all medications taken by mouth which could be taken intravenously were to be administered via an IV. Aspirin could not be administered intravenously. Because Dr. Schafer had ordered that aspirin therapy be stopped prior to surgery, it would be the responsibility of Dr. Schafer to order the aspirin to be restarted.

   14. Dr. Schafer was at A.A.'s bedside at 8:30 a.m., on January 12, 2000. Dr. Schafer noted that a head CT scan was ordered for that morning and that the patient was on his way down for the test. Dr. Schafer also noted that a neurological evaluation had been ordered for A.A. for that morning.

   15. The hospital records show that at 8:50 a.m., on January 12, 2000, a call was made to Dr. Shah's answering service, requesting a neurological consultation. The request for consultation form, which was filled out after Dr. Schafer's visit at 8:30 a.m., indicated that the request was an emergency request. The request for consultation form was

       filled out by someone other than the nurse who charted Dr. Mationg's verbal order for a neurological consultation. Based on the evidence presented, the request for a neurological consultation was not treated as an emergency request until after Dr. Schafer saw A.A. at 8:30 a.m.

   16. Tissue Plaminogen Activators (TPA) are used to dissolve clots which may be causing a stroke. The use of TPA is limited to a three-hour window following the onset of stroke symptoms. Dr. Mationg did consider the use of TPA, but felt that it was contraindicated based on the recent surgery. This opinion was confirmed at final hearing by a neurologist.

       CONCLUSIONS OF LAW

       
       

   17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes.

   18. The Department alleged in Count I of the Second Amended Administrative Complaint that Dr. Mationg violated Subsection 458.331(1)(t), Florida Statutes, which provides that a physician may be disciplined for "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 Department alleged that Dr. Mationg

       violated Subsection 458.331(1)(t), Florida Statutes, in the following ways:

       1. By failing to re-institute aspirin therapy to Patient A.A. after the right shoulder arthroscopy and open rotator cuff repair performed on January 10, 2000.

       2. By failing to present to evaluate Patient A.A. immediately after being notified of Patient A.A.'s slurred speech and paresis of his right arm and leg on January 12, 2000.

       3. By failing to order a stat CT scan of Patient A.A.'s brain after being notified of Patient A.A.'s slurred speech and paresis of his right arm and leg on January 12, 2000.

       4. By failing to order a stat neurological consult after being notified of Patient A.A.'s slurred speech and paresis of his right arm and leg on January 12, 2000.

       5. By failing to immediately consider TPA in consultation with a Neurologist after being notified of Patient A.A.'s slurred speech and paresis of his right arm and leg on January 12, 2000.

       6. By failing to perform a complete history and physical examination of Patient A.A.

          
          

   19. The Department has failed to establish by clear and convincing evidence that Dr. Mationg violated Subsection 458.331(1)(t), Florida Statutes, by failing to reinstitute aspirin therapy after A.A.'s surgery. Having ordered the aspirin to be discontinued, Dr. Schafer would be the one who would decide when the aspirin therapy could be resumed. Additionally, A.A. was unable to resume taking any aspirin

       until at least after he had been extubated, which was late in the afternoon of January 11, 2000.

   20. The Department has established by clear and convincing evidence that Dr. Mationg violated Subsection 458.331(1)(t), Florida Statutes, by failing to present to A.A. immediately after being advised of A.A.'s symptoms at 4 a.m. on January 12, 2000. A.A. was having a stroke, and the evidence does not establish that A.A.'s condition was stabilized when Dr. Mationg was notified of A.A.'s symptoms. Thus, the standard of care required Dr. Mationg to come to the hospital to evaluate A.A.'s condition.

   21. The Department has established by clear and convincing evidence that Dr. Mationg violated Subsection 458.331(1)(t), Florida Statutes, by failing to order a stat head CT scan, when he gave his orders at 4 a.m., on January 12, 2000. The standard of care required that a stat CT scan be ordered, and Dr. Mationg did not do so.

   22. The Department has established by clear and convincing evidence that Dr. Mationg violated Section 458.331(1)(t), Florida Statutes, by failing to order a stat neurological consultation. A.A. was in the process of having a stroke when Dr. Mationg was notified of A.A.'s symptoms.

       The standard of care required that a neurological consultation be ordered stat, and Dr. Mationg did not do so. Dr. Mationg's

       argument that the nurse should have known under the circumstances that the consultation order was to be preformed stat even though not given as a stat order is without merit. An order is not considered a stat order unless it is given as a stat order.

   23. The Department has failed to establish that Dr.

       
       

       Mationg did not consider the use of TPA. He did consider it and felt it was contraindicated because of the recent surgery.

   24. The Department alleged in Count II of the Second Amended Administrative Complaint that Dr. Mationg violated Subsection 458.331(1)(m), Florida Statutes, by failing to document a complete history and physical examination of A.A. and by failing to document a discharge summary for A.A. The Department conceded in its Proposed Recommended Order that the Department failed to establish by clear and convincing evidence that Dr. Mationg violated Subsection 458.331(1)(m), Florida Statutes.

   25. The Department has established by clear and convincing evidence that Dr. Mationg is guilty of failure to practice medicine with that level of care, skill, and treatment, which is recognized as being acceptable under similar conditions and circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dr. Mationg violated Subsection 458.331(1)(t), Florida Statutes; finding that Dr. Mationg did not violate Subsection 458.331(1)(m), Florida Statutes; placing Dr.

Mationg on two years probation; imposing an administrative fine of $5,000; and requiring that Dr. Mationg attend ten hours of continuing medical education courses in the diagnosis and treatment of strokes and four hours of continuing medical education courses in risk management.

DONE AND ENTERED this 3rd day of July, 2003, in Tallahassee, Leon County, Florida.

S

___________________________________

SUSAN B. KIRKLAND

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 3rd day of July, 2003.

COPIES FURNISHED:

James W. Earl, Esquire Department of Health

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

A. S. Weekley, Jr., Esquire Holland & Knight, LLP

400 North Ashley Drive, Suite 2300 Tampa, Florida 33602

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 A-02 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: 02-004285PL

Orders for Case No: 02-004285PL