STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. )

)

CLINTON BERTRAND DAVIS, )

)

Respondent. )

Case No. 03-0425PL

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above styled case on May 9, 2003, in St. Petersburg, Florida, by William R. Pfeiffer, a duly-designated Administrative Law Judge, of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel Lake, Esquire

Department of Health Prosecutorial Services Unit 4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Christopher J. Schulte, Esquire

Burton, Schulte, Weekley, Hoeler & Beytin, P.A.

100 South Ashley Drive, Suite 600 Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Subsections 458.331(1)(t) and 458.331(1)(m), Florida Statutes

(1995), as alleged in the Administrative Complaint, and, if so, what is the appropriate discipline to impose.

PRELIMINARY STATEMENT

On January 13, 2003, Department of Health, Board of Medicine (Petitioner), filed a two-count Administrative Complaint against Clinton Bertrand Davis, M.D. (Respondent), alleging that Respondent, in 1995, violated provisions of Chapter 458, Florida Statutes, governing the practice of medicine in the State of Florida.

Specifically, Petitioner alleges in Count I of the Complaint that the Respondent violated Subsection 458.331(1)(m), Florida Statutes, by failing to keep legible medical records that identify the licensed physician or the physician extender and supervising physician by name and professional title who is or are responsible for rendering, ordering, supervising, or billing for each diagnostic or treatment procedure and that justify the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

Petitioner alleges in Count II of the Complaint that Respondent failed to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions

and circumstances, in violation of Subsection 458.331(1)(t), Florida Statutes, by failing to adequately treat Patient D.L.'s broken wrist, including, but not limited to, the application of pins and internal or external fixation; failing to adequately follow-up with Patient D.L. after the initial treatment of her broken wrist; and failing to advise Patient D.L. of the available options and treatment for her injury.

Petitioner recommends in its Proposed Recommended Order that Respondent be disciplined with an administrative fine in the amount of $10,000.00, a reprimand, 60 hours of Continuing Medical Education, and two years of probation. Petitioner does not seek the assessment of costs related to the investigation and prosecution of the case.

Upon receipt of the Complaint in January 2003, Respondent denied the allegations and timely requested an administrative hearing. Petitioner forwarded the Complaint to the Division of Administrative Hearings on February 7, 2003, requesting the assignment of an Administrative Law Judge to conduct an administrative hearing pursuant to Section 120.57(1), Florida Statutes. The final hearing was held on May 9, 2003, in

St. Petersburg, Florida.

At the final hearing, Petitioner presented the following exhibits which were marked and admitted into evidence: Exhibits 1 and 2, the expert deposition testimony of Alvin

Stein, M.D., and Philip Averbuch, M.D.; Exhibits 3 and 4, their respective expert opinion letters; Exhibit 5, the licensure file for Clinton Davis, M.D.; Exhibit 6, the curriculum vitae of Philip Averbuch, M.D.; Exhibit 7, the medical records of Patient

1. from the Respondent's office; Exhibit 8, the medical records of Patient D.L. from Northside Hospital; Exhibit 9, the medical records of Patient D.L. from Lewis Eastlick, M.D.; Exhibit 10, pictures of Patient D.L.'s wrist; and Exhibit 11, the death certificate for Patient D.L.

   Respondent testified and presented the expert testimony of Michael Wasylik, M.D. In addition, Respondent presented the following exhibits which were marked and admitted into evidence: Exhibit 1, the medical records for Patient D.L. from the Respondent's office; Exhibit 2, the curriculum vitae of Clinton Davis, M.D.; and Exhibit 3, the curriculum vitae of Michael Wasylik, M.D.

   The one-volume Transcript was filed on May 29, 2003, and the parties timely submitted their respective Proposed Recommended Orders, which have been duly considered.

   FINDINGS OF FACT

   
   

   The Parties

   
   

   1. Petitioner is the state agency charged with regulating the practice of medicine in Florida, pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 458, Florida Statutes.

      Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance pursuant to Section 20.43(3), Florida Statutes.

   2. Respondent is a licensed physician in the State of Florida, having been issued License No. ME0053370, and is board- certified in orthopedic surgery. Respondent's medical license has never previously been subject to discipline.

      The Injury and Treatment

      
      

   3. On March 3, 1995, Patient D.L., then aged 76, fell off a curb and injured her face and right wrist. She presented to the emergency room at Columbia Northside Medical Center in

      St. Petersburg, Florida, with severe contusions to her face and an aching wrist. Patient D.L. was evaluated by the emergency room physician, who documented the pertinent medical information, including the physical findings, results of diagnostic x-rays taken of Patient D.L.'s wrist, and the recommended treatment plan. She was diagnosed by the emergency room physician as having severe contusions to her face and a wrist fracture, commonly known as a Colles fracture.

   4. The physician applied an air splint to Patient D.L.'s arm, ordered a consult with an orthopedic physician to evaluate it, and admitted her into the hospital for observation. The

      admitting physician documented an admission note on March 3, 1995, noting a history and physical examination, findings, diagnosis, and treatment plan.

   5. At 2:00 on the following day, Respondent and his physician's assistant, Paul Russo, examined Patient D.L., pursuant to the consult order and diagnosed her as having a "comminuted, impacted, slightly shortened distal radius fracture with minimal angulation; will need a short arm cast." No further written report of Respondent's initial evaluation or diagnosis exists.

   6. On March 6, 1995, Patient D.L. purportedly was experiencing some hallucinations and exhibiting psychotic behaviors, and was ordered to remain admitted to the hospital for psychiatric evaluation. Respondent was not advised of her condition.

   7. Respondent admits that he currently has no specific recollection of Patient D.L. Respondent had a general policy of discussing his findings and diagnosis with his patient, as well as the various treatment options available; however, Patient D.L.'s chart does not reflect such a discussion.

   8. Notwithstanding Respondent's written diagnosis calling for a short-arm cast, Respondent placed her wrist in a long-arm cast. While Respondent explains that the long-arm cast was necessary to restrict and limit certain movements of Patient

      D.L.'s arm, there is no information within Patient D.L.'s chart noting the event or the modification rationale.

   9. Respondent explains that it is his policy to instruct each of his patients to follow-up with an appointment in his office within a week to ten days. However, it is clear that Patient D.L.'s chart does not reflect any communication or instructions.

   10. Respondent explained that he and his physician's assistant regularly documented various activities in the hospital chart's progress notes as a matter of policy, including the evaluation, findings, diagnosis, and disposition. It is clear, however, that Patient D.L.'s hospital chart contains no written notes made by Respondent relating to her history, physical examination, or disposition.

   11. On March 8, 1995, Patient D.L. was discharged to a nursing home with an order by the attending physician to follow- up with Respondent in two weeks.

   12. Two weeks later, on March 22, 1995, Patient D.L. presented to Respondent's office for a follow-up appointment. Upon arrival, Patient D.L. completed paperwork, including a Patient Medical Questionnaire, and was evaluated. Respondent's typed progress note indicates that Patient D.L. had extensive arthritis throughout her hand with very limited range of motion

       of her fingers. There is no patient history or physical in Respondent's note.

   13. On that same day, Respondent ordered and reviewed

       
       

       x-rays of Patient D.L.'s wrist which revealed that the fracture had remained in satisfactory position, with essentially neutral angulation of the lateral view and some shortening on the AP view.

   14. Respondent's note indicates that he removed Patient D.L.'s long-arm cast and placed her in a short-arm cast. The note indicates that Respondent instructed Patient D.L. to wear the cast for an additional three to four weeks; and thereafter, would likely require splinting and therapy. Respondent was advised that Patient D.L. was relocating to Fort Lauderdale, and Respondent instructed her to seek treatment there. Although Respondent explains that Patient D.L. would have likely been given the x-rays to take to the next orthopedic surgeon, the medical records do not indicate that Patient D.L. received them.

   15. On April 4, 1995, Patient D.L. presented to Lewis Eastlick, M.D., in Plantation, Florida. Dr. Eastlick noted that an abutment of the ulna was displaced which caused marked shortening of the radius and resulted in a permanent deformity of Patient D.L.'s wrist. Dr. Eastlick referred Patient D.L. to physical therapy.

   16. Petitioner established by clear and convincing evidence that Respondent's medical records for Patient D.L. were inadequate. Respondent did not sufficiently document, in writing, his evaluation, diagnosis, treatment, and patient communication. The testimony provided by Petitioner's experts, relating to documentation, was reasonable and credible.

   17. The testimony provided by Respondent's expert,

       
       

       Dr. Wasylik, relating to record keeping was less credible, given the available physical evidence. While Dr. Wasylik opined that Respondent's hospital progress note dated March 4, 1995, and the office record dated March 22, 1995, contain sufficient information regarding Patient D.L.'s condition and Respondent's evaluations and treatment plans, his conclusion was not supported by the evidence. Furthermore, Respondent's suggestion that Patient D.L.'s dictation notes may have been lost by the transcription service lacks credence.

   18. Although it is clear that Respondent deficiently memorialized certain information, Petitioner did not prove by clear and convincing evidence that Respondent's casting treatment of Patient D.L. fell below the applicable standard of care. In fact, one of Petitioner's own experts, Dr. Averbuch, agrees with Respondent's expert that casting Patient D.L.'s fractured wrist was more appropriate than utilizing more aggressive treatment via an external fixation or open reduction

       with internal fixation. The experts conclude that the fracture was non-displaced and impacted and in good position, making it more stable and more appropriate for casting. Respondent adhered to the standard of care in treating Patient D.L.'s fractured wrist by placing it in a cast.

   19. In addition, Petitioner did not demonstrate by clear and convincing evidence that Respondent's follow-up care fell below the applicable standard of care. Although it is established that Respondent did not see Patient D.L. until eighteen days after the initial setting of her fracture, the evidence is clear that Respondent regularly requested patients to follow up in his office within one week to ten days.

   20. Despite the fact that Petitioner's experts opine that Respondent should have seen Patient D.L. sooner, it is important to note that Patient D.L. was specifically instructed in writing by her attending physician, upon her discharge from the hospital on March 8, 1995, to follow up with Respondent in 14 days, which she did.

   21. There is no evidence that Respondent was made aware of Patient D.L.'s new psychiatric condition and extended hospitalization nor that he should have inquired. Patient D.L. was admitted on March 3, 1995, for observation only, treated by the Respondent on March 4, 1995, and formally admitted for mental examination on March 6, 1995. Patient D.L.'s mental

       status was not at issue until March 6, 1995, two days after Respondent placed her arm in a cast.

       CONCLUSIONS OF LAW

       
       

   22. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding, pursuant to Sections 120.569, 120.57(1), and 456.073, Florida Statutes.

   23. License revocation and discipline proceedings are penal in nature. The parties agree that Petitioner has the burden of proof in this proceeding to demonstrate the truthfulness of the allegations in the Complaint by clear and convincing evidence. See Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   24. The "clear and convincing" standard requires:

       
       

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

       
       

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

       
       

   25. Section 458.331(2), Florida Statutes (1995), authorizes the Board of Medicine to revoke, suspend, or

       otherwise discipline the license of a physician for violating the following relevant provisions of Section 458.331, Florida Statutes (1995):

       (1)(m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations.

       
       

   26. The standard for the adequacy of medical records is set forth in Rule 64B8-9.003, Florida Administrative Code, which states:

       1. Medical records are maintained for the following purposes:

          
          

          1. To serve as a basis for planning patient care and for continuity in the evaluation of the patient's condition and treatment.

             
             

          2. To furnish documentary evidence of the course of the patient's medical evaluation, treatment, and change in condition.

             
             

          3. To document communication between the practitioner responsible for the patient and any other health care professional who contributes to the patient's care.

             
             

          4. To assist in protecting the legal interest of the patient, the hospital, and the practitioner responsible for the patient.

             
             

       2. A licensed physician shall maintain patient medical records in a legible manner and with sufficient detail to clearly demonstrate why the course of treatment was

          undertaken or why an apparently indicated course of treatment was not undertaken.

          
          

       3. The medical record shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient.

          
          

   27. Petitioner clearly and convincingly demonstrated that Respondent failed to keep legible medical records that justify the course of treatment of Patient D.L. within the March 4, 1995, hospital progress note. The evidence established that Respondent was called in on a routine consult to care for Patient D.L. as a consulting physician. While Patient D.L. had previously been evaluated by the emergency room physician who had documented pertinent medical information, Respondent did not adequately note his examination, findings, diagnosis, treatment plan and modification, and communication with the patient.

   28. In addition, although Respondent's expert testified that it would have been acceptable for Respondent to simply rely upon the patient's history and information previously obtained by the emergency room physician, and unnecessary to duplicate

       information already in Patient D.L.'s hospital chart, Petitioner's experts and the physical evidence prove otherwise. In fact, to this day, much information is still unknown, including whether Patient D.L. suffered from severe arthritis prior to the accident and why Respondent changed the cast length. Respondent failed to provide written and detailed records justifying the patient's course of treatment and violated Subsection 458.331(1)(m), Florida Statutes (1995).

   29. Section 458.331(2), Florida Statutes (1995), authorizes the Board of Medicine to revoke, suspend, or otherwise discipline the license of a physician for violating the following relevant provisions of Section 458.331, Florida Statutes (1995):

       (1)(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 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 reasonably 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.

   30. Petitioner did not prove clearly and convincingly 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, in violation of Subsection 458.331(1)(t), Florida Statutes (1995), by failing to adequately treat Patient D.L.'s broken wrist, including, but limited to, the application of pins and internal or external fixation; failing to adequately follow up with Patient D.L. after initial treatment of her broken wrist; and failing to communicate with Patient D.L. the available options and treatment for her injury.

   31. First, the evidence demonstrates that Patient D.L.'s fracture was non-displaced and impacted and in good position, making it more stable and more appropriate for casting. Internal or external fixation by pins or plates is typically used to stabilize the fracture and improve the overall alignment. Patient D.L.'s fracture was already nearly aligned. An invasive surgical procedure would not have greatly improved the overall alignment and may have exacerbated the injury.

   32. Second, Respondent consistently required his patients to follow up one week to ten days after a fracture setting. Notwithstanding his general policy, there is insufficient evidence that Respondent fell below the prevailing standard of care by seeing Patient D.L. for a follow-up eighteen days after

       setting her wrist fracture. Patient D.L. complied with the attending physician's discharge order on March 8, 1995, which instructed her to follow up with Respondent in two weeks.

   33. Finally, with respect to the allegation that Respondent fell below the standard of care by failing to communicate the available options and treatment with Patient D.L., the evidence established that Respondent habitually discussed treatment options with his patients. Although the patient's chart does not document a conversation, Petitioner did not prove clearly and convincingly that Respondent failed to adequately relay treatment options to his patient.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Health, Board of Medicine, enter a Final Order finding that Respondent, Clinton Bertrand Davis, M.D.:

1. DID violate Subsection 458.331(1)(m), Florida Statutes (1995), and is ordered to pay a $5,000.00 fine, to be paid within 30 days, and undergo ten hours of Continuing Medical Education related to medical records documentation within 90 days; and

2. DID NOT violate Subsection 458.331(1)(t), Florida Statutes.

DONE AND ENTERED this 8th day of August, 2003, in Tallahassee, Leon County, Florida.

S

WILLIAM R. PFEIFFER

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 8th day of August, 2003.

COPIES FURNISHED:

Daniel Lake, Esquire Department of Health Prosecutorial Services Unit

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

Christopher J. Schulte, Esquire Burton, Schulte, Weekley,

Hoeler & Beytin, P.A.

100 South Ashley Drive, Suite 600 Tampa, Florida 33602

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

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

Docket for Case No: 03-000425PL

Orders for Case No: 03-000425PL