STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. )

)

PHILIP H. DUNN, M.D., )

)

Respondent. )

Case No. 03-4589PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on February 5, 2004, in Orlando, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Irving Levine, Esquire

Department of Health

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

For Respondent: Michael R. D'Lugo, Esquire

Wicker, Smith, O'Hara, McCoy Graham & Ford, P.A.

Post Office Box 2753 Orlando, Florida 32802-2753

STATEMENT OF THE ISSUES

Whether Respondent violated Subsection 458.331(1)(t), Florida Statutes (2000), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On June 17, 2003, Petitioner, Department of Health, Board of Medicine (Department), filed an Administrative Complaint against Respondent, Phillip H. Dunn, M.D. (Dr. Dunn), alleging that he had violated Subsection 458.331(1)(t), Florida Statutes (2000). On July 7, 2003, Dr. Dunn filed an Election of Rights form, requesting an administrative hearing. The case was forwarded to the Division of Administrative Hearings on December 5, 2003, for assignment to an Administrative Law Judge.

The parties filed a Joint Prehearing Stipulation in which they stipulated to certain facts contained in Section E of the stipulation. Those facts have been incorporated in this Recommended Order to the extent relevant.

At the final hearing, the Department called Howard R. Abel, M.D., as an expert witness. Petitioner's Exhibits 1 and 2 were admitted in evidence. Dr. Dunn testified in his own behalf and called Lee M. Zehngebot, M.D., as his witness. Respondent's Exhibits 1 and 2 were admitted in evidence. At the final hearing, Dr. Dunn's Motion for Leave to Hold Evidence Open at the Conclusion of Final Hearing was granted, allowing the filing of the deposition of Arnold Blaustein, M.D., who had been retained to provide expert testimony on behalf of Dr. Dunn, after the conclusion of the final hearing. Dr. Blaustein's

deposition was filed on March 4, 2004, and is admitted as Respondent's Exhibit 3.

The parties agreed to filed their proposed recommended orders within ten days of the filing of the transcript or the filing of Dr. Blaustein's deposition, whichever occurred later. The one-volume Transcript was filed on February 26, 2004.

Petitioner filed Petitioner's Proposed Recommended Order on March 15, 2004, and on the same date Respondent filed an Unopposed Motion for an Extension of Time to File Proposed Recommended Order(s). The motion was granted. Respondent filed his Proposed Recommended Order on March 22, 2004. The parties' proposed recommended orders have been considered by the undersigned in rendering this Recommended Order.

FINDINGS OF FACT

1. The Department is the state department charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes (2003), and Chapters 456 and 458, Florida Statutes (2003).

2. Dr. Dunn was issued license number ME 37819 in 1981 and is board certified in internal medicine and oncology. At all material times to this proceeding, Dr. Dunn was a licensed medical physician in the State of Florida. Prior to this case, Dr. Dunn has never been the subject of disciplinary action regarding his license to practice medicine in Florida.

3. B.P. became Dr. Dunn's patient in 1984, when she was diagnosed with a tumor at the base of her tongue. The tumor was a malignant, large cell lymphoma. Dr. Dunn treated her with radiation and chemotherapy, and the lymphoma disappeared.

4. Dr. Dunn monitored her for seven years, and B.P. did well until 1991, when nodules were discovered on the sides of her neck, underneath her arm, and in her groin area. She was diagnosed with diffuse mixed lymphoma. At the time she was diagnosed with lymphoma, she had asthmatic bronchitis and was under the care of pulmonary physicians.

5. B.P. again received chemotherapy, but the results were not as positive as they were with her earlier bout of lymphoma. She was switched to an oral chemotherapy, which she took until 1993 when she began a remission. Her remission lasted until 1998, when she was diagnosed with lymphoma in her blood and bone marrow. Another course of chemotherapy was begun. However, the chemotherapy did not completely cure the lymphoma, and B.P. had problems with low blood counts and intermittent reappearances of the lymphoma cells in her blood.

6. From 1998 to 2000, B.P. also suffered chronic respiratory problems with asthmatic bronchitis and fibrosis in the lungs. In July 2000, B.P. was diagnosed with proptosis, which meant that her eye was bulging out of the eye socket. The lymphoma had reoccurred, and a mass of lymphoma cells were

   behind the eye pushing the eyeball forward. Dr. Dunn attempted to treat B.P. with radiation therapy, but B.P. could not complete the radiation therapy because her blood counts were too low, and her bone marrow was malfunctioning.

7. B.P.'s white blood count steadily decreased, and she was not producing red blood cells. On August 17, 2000, Dr. Dunn saw B.P. in his office and ordered a blood transfusion to increase her blood counts. On August 25, 2000, B.P. was hospitalized in Orlando Regional Medical Center (ORMC) for a fever and a low white blood count. She was given antibiotics and blood transfusions. After she was released from the hospital, Dr. Dunn continued to see her in his office to monitor her blood counts.

8. On October 3, 2000, B.P. came to Dr. Dunn's office.

   
   

   She appeared very ill and frail and was confined to a wheelchair. B.P.'s prognosis was very poor. Her breathing was problematic; her bone marrow was overrun with lymphoma; the mass behind her eye was causing the eye to bulge; and she was unable to tolerate either radiation therapy or chemotherapy. There was very little that could be done for B.P.'s condition other than to try measures to keep her comfortable.

9. At the time of the October 3 office visit, B.P.'s blood counts were low. Dr. Dunn ordered a transfusion for B.P. in an attempt to raise her hemoglobin count above ten so that her

   oxygen-carrying capacity would be optimal. There was little that could be done for the low platelet and white cell counts. The transfusion was to be performed at ORMC, where B.P. had most of her care done. ORMC did not have any beds available so B.P. was sent to Sand Lake Hospital to have the transfusion done on an outpatient basis. When B.P. went to Sand Lake Hospital, an Interdisciplinary Patient Care Flowsheet was completed, indicating that B.P. could communicate pain and that she was not having any pain.

10. Originally it was not anticipated that the transfusion would require an overnight stay. However, because of the hour when the transfusion would be completed, the nurses requested that B.P. be allowed to stay overnight.

11. The transfusion was completed around 1:20 a.m. on October 4, 2000. At approximately 5 a.m., B.P. attempted to go to the bathroom alone and fell. She sustained a bruise to the head approximately five-by-four centimeters in size. There was a reddened area on her left temple and a laceration to the left internal cheek. There were no other external injuries. Ice was applied to B.P.'s head, and her mouth was rinsed with water.

12. At 5:45 a.m., a nurse called Dr. Dunn's answering service to advise of B.P.'s condition and that B.P. had fallen. The evidence does not establish that the answering service called Dr. Dunn at his home.

13. At 8:00 a.m., a nurse called Dr. Dunn's office concerning B.P. Dr. Zehngebot, Dr. Dunn's partner, returned the telephone call. The nurse advised Dr. Zehngebot that B.P. had been found on the floor where she had fallen around 5 a.m. and that B.P. had sustained a quarter-sized bruise to her left forehead. Dr. Zehngebot was told that the patient was not in distress and that she was alert and oriented times three.

    Dr. Zehngebot ordered a complete blood count (CBC) to determine B.P.'s blood count level. The nurse was told to call Dr. Dunn if the results of the CBC were abnormal. According to

    Dr. Zehngebot's telephone order, B.P. was to be discharged on that day and was to follow-up with Dr. Dunn in one week.

14. At 8 a.m., another Interdisciplinary Patient Care Flowsheet was completed for B.P. It was noted on the form that

    B.P. had a purple, quarter-sized bruise on her left forehead and a bruise on her right upper chest area. It was noted that the doctor was aware of these bruises. Based on the timing of the telephone conversation between the nurse and Dr. Zehngebot, the completion of the Interdisciplinary Patient Care Flowsheet and the nurse's notes, it can be inferred that the doctor referenced on the 8 a.m. Interdisciplinary Patient Care Flowsheet as having been advised of the bruises on B.P. was Dr. Zehngebot and not Dr. Dunn.

15. It was also noted on the Interdisciplinary Patient Care Flowsheet completed at 8 a.m. that B.P. was having intermittent headaches. Nothing in the record indicates that either Dr. Zehngebot or Dr. Dunn was ever advised that B.P. was having headaches after her fall.

16. The CBC was done, and the results were abnormal. The white count was 1100 and the platelet count was 6000. The normal platelet count range is from 145,000 to 355,000. A nurse telephoned the results to Dr. Zehngebot at 9:50 a.m. At

    10:30 a.m., another call was placed to Dr. Zehngebot to get a response to the lab work which had been performed. A message was left with the doctor's nurse. By 12:30 p.m., the nurse at Sand Lake Hospital had not received a response from either Dr. Zehngebot or Dr. Dunn; thus, another call was placed to Dr. Dunn's office. A message was left with a nurse in

    Dr. Dunn's office that B.P.'s husband was at the hospital to pick up his wife and that they were still waiting for an answer from the doctor's office.

17. At 2 p.m., Dr. Dunn returned the telephone 12:30 p.m. call from the hospital. He was aware of the laboratory results. Although, the white cell count and the platelet count were similar to what they had been in his office on October 3, the hemoglobin count was up to 10.9; thus, Dr. Dunn felt that the transfusion had accomplished its purpose by raising the

    hemoglobin count above ten. The nurse gave him a patient status update and advised him that B.P. was alert and oriented times three and that her vital signs were stable. Dr. Dunn was aware at the time of his two o'clock telephone call that B.P. had fallen; however, the record does not clearly establish that Dr. Dunn knew that B.P. had sustained bruises to her head as a result of the fall or that B.P. had headaches after her fall.

    He did not order a neurological consult nor did he go to the hospital to examine B.P. before he gave the order to discharge

    B.P. at 2:00 p.m.

    
    

18. Normally a physician may not come to the hospital to examine a patient while the patient is at the hospital to receive a transfusion on an out-patient basis. Dr. Dunn did not see B.P. from the time she went to Sand Lake Hospital on October 3, 2000, and the time he discharged her on October 4, 2000.

19. On October 6, 2000, Dr. Dunn received a telephone call from B.P.'s husband, who told Dr. Dunn that B.P. had slipped and fallen on the way to the bathroom and was now having headaches and nausea. Dr. Dunn told the husband to take B.P. to the emergency room at ORMC, called the hospital, and ordered a stat CT scan to be done as soon as B.P. arrived at the hospital.

    Dr. Dunn went to the hospital to see B.P.

20. B.P. was diagnosed with Traumatic Subdural Hematoma, admitted to ORMC, and referred to a neurosurgeon who, on October 16, 2000, performed an evacuation of the hematoma.

    B.P. died on October 22, 2000.

    
    

21. The Department called Dr. Howard R. Abel as its expert witness. Dr. Abel opined that Dr. Dunn fell below the standard of care because he did not go to the hospital and evaluate B.P., or if Dr. Dunn could not go to the hospital, he did not request a neurological consultation. Dr. Abel's opinion is premised on the assumption that Dr. Dunn was aware that B.P. had sustained head trauma when she fell. Dr. Abel further opined that if

    Dr. Dunn were not aware that B.P. had suffered a head trauma, Dr. Dunn did not fall below the standard of care by not going to the hospital or ordering a neurological consultation.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2000).

23. The Department has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

24. Florida courts have defined clear and convincing evidence in the following manner:

    [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 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. The Department alleges that Dr. Dunn violated Subsection 458.331(1)(t), Florida Statutes (2000), which provides:

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

       
       

       * * *

       
       

       (t) [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 board shall give great weight to the provisions of s. 766.102 when enforcing this paragraph. As

       used in this paragraph, . . . "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 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.

       
       

26. The Department specifically alleged that Dr. Dunn violated Subsection 458.331(1)(t), Florida Statutes (2000), by not seeing or examining B.P. during her hospital stay from October 3 to October 4, 2000; by not appropriately recognizing or responding to the potential hazard of the head trauma combined with a low blood platelet count; by not ordering a neurological consult; and by not responding to any of the nurse's five telephone calls made on October 4, 2000, between 5:45 a.m. and 12:30 p.m. to his home, answering service and/or office until 2:00 p.m., when he called to authorize B.P.'s discharge.

27. The Department has failed to establish by clear and convincing evidence that Dr. Dunn violated Subsection 458.331(1)(t), Florida Statutes (2000), by not going to the hospital to examine B.P., by not ordering a neurological consult, and by not recognizing the potential hazard of the head trauma and the low blood platelet count. The evidence established that Dr. Dunn was not aware at the time that he discharged B.P. from the hospital that B.P. had suffered a head trauma when she fell. The Department's expert witness opined that if Dr. Dunn had not been aware of the head trauma that he did not fall below the standard of care by not going to the hospital or ordering a neurological consult. Because of B.P.'s

    prior medical history, the presence of the low blood platelet count alone would not constitute a potential hazard requiring Dr. Dunn to examine B.P. or order a neurological consult.

28. The Department has failed to establish by clear and convincing evidence that Dr. Dunn fell below the standard of care by not responding to the nurse's telephone calls until 2:00 p.m. on October 20, 2000. The first telephone call was made to Dr. Dunn's answering service at 5:45 a.m. The evidence does not establish that Dr. Dunn was ever made aware of this telephone call. The next telephone call was made to Dr. Dunn's office at 8:00 a.m., and was returned by Dr. Zehngebot, who

    ordered a CBC and told the nurse to call Dr. Dunn if the results were abnormal. The next telephone call at 9:45 a.m. from the nurse was to relay the laboratory results to Dr. Zehngebot; however, the nurse did not speak to Dr. Zehngebot. At

    10:30 a.m., the nurse placed another call to Dr. Zehngebot for a response on the laboratory results. The nurse did not receive a response. At 12:30 p.m., the nurse placed another call to

    Dr. Dunn's office and left a message with the nurse. At this time B.P. was stable, alert, and oriented. Dr. Dunn became aware of the telephone calls at approximately 2:00 p.m., when he was advised that B.P. had not been discharged. Dr. Dunn called the hospital at 2:00 p.m. and spoke to the nurse, who advised that B.P. was stable, alert, and oriented.

29. Dr. Dunn did not delay in returning the telephone calls, because he was not aware that the telephone calls had been made by the nurse. The first call to the answering service was not put through to Dr. Dunn's home. The second call was handled by Dr. Zehngebot. The third and fourth telephone calls were made to Dr. Zehngebot, despite his request to the nurse that the blood test results be given to Dr. Dunn. The fifth telephone call at 12:30 p.m. was returned an hour and a half later by Dr. Dunn, when he learned that B.P. was still waiting at the hospital to be discharged. Thus, the Department has failed to establish that Dr. Dunn violated Subsection 458.331(1)(t), Florida Statutes (2000), by not calling the hospital until 2:00 p.m.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered finding that Philip Herbert Dunn, M.D., did not violate Subsection 458.331(1)(t), Florida Statutes (2000), and dismissing the Administrative Complaint.

DONE AND ENTERED this 20th day of April, 2004, 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 20th day of April, 2004.

COPIES FURNISHED:

Irving Levine, Esquire Department of Health

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

Michael R. D'Lugo, Esquire Wicker, Smith, O'Hara, McCoy,

Graham & Ford, P.A. Post Office Box 2753

Orlando, Florida 32802-2753

R. S. Power, Agency Clerk Department of Health

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

William W. Large, General Counsel Department of Health

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

Larry McPherson, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way

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: 03-004589PL

Orders for Case No: 03-004589PL