STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. )

)

KURT DANGL, M.D., )

)

Respondent. )

Case No. 04-2708PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on January 5 and 6, 2005, in Sarasota, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Irving Levine, Esquire

Diane K. Kiesling, Esquire Department of Health

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

For Respondent: Sean M. Ellsworth, Esquire

William V. Roppolo, Esquire Ellsworth Roppolo, P.A.

404 Washington Avenue, Suite 750 Miami Beach, Florida 33139

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 458.331(1)(m), (q), and (t), Florida Statutes (2003), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On April 27, 2004, Petitioner, Department of Health, Board of Medicine (Department), filed a three-count Administrative Complaint against Respondent, Kurt Dangl, M.D. (Dr. Dangl), alleging that he violated Subsections 458.331(1)(m), (q),

and (t), Florida Statutes (2003). Dr. Dangl requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on August 3, 2004, for assignment to an Administrative Law Judge.

The final hearing was scheduled to commence on November 3, 2004. On October 8, 2004, Dr. Dangl filed a Motion for Continuance, which was granted. The final hearing was rescheduled to commence on January 5, 2005.

The parties filed a Joint Prehearing Stipulation, in which they stipulated to certain facts contained in Section E of the prehearing stipulation. Those facts have been incorporated in this Recommended Order. Official recognition was taken of Subsections 458.331(1)(m), (q), and (t), Florida Statutes (2003), Section 893.03, Florida Statutes (2003), and Florida Administrative Code Rules 64B8-9.003 and 64B8-9.009.

At the final hearing, the Department called the following witnesses: Amanda Fortner, Bruce Crow, Lawrence Dale Bonet, Dr. Donato Anthony Viggiano, and Dr. Joan M. Christie.

Petitioner's Exhibits 1, 2, and 4 were admitted in evidence. The Department proffered Petitioner's Exhibit 3. Dr. Dangl called Dr. Charles E. Graper and Dr. Donald Caton as his witnesses. Respondent's Exhibits 1 and 2 were admitted in evidence.

The two-volume Transcript of the proceeding was filed on January 20, 2005. The parties agreed to file their proposed recommended orders within ten days of the filing of the transcript. The Department filed its Proposed Recommended Order on January 31, 2005, and Dr. Dangl filed his Proposed Recommended Order on February 1, 2005. The parties proposed recommended orders have been considered in rendering this Recommended Order.

FINDINGS OF FACT

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

2. Dr. Dangl, whose address of record is 3900 Clark Road, Suite F-1, Sarasota, Florida 34233, was issued Florida license number ME 71286.

3. On or before September 25, 2003, Dr. Dangl's office was approved to perform Level II Office surgical procedures by the Department. In a Level II Office surgery, "the patient is placed in a state which allows the patient to tolerate unpleasant procedures while maintaining adequate cardiorespiratory function and the ability to respond purposefully to verbal command and/or tactile stimulation." Fla. Admin. Code R. 648-9.009(4).

4. Patient J.R., a 38-year-old female, presented to Dr. Dangl on September 25, 2003, for the removal of existing breast implants and the placement of larger saline implants.

   The surgery was scheduled to take place in Dr. Dangl's office. The surgical team consisted of Dr. Dangl; Amanda Fortner, R.N.; and Bruce Crow.

5. Ms. Fortner assisted Dr. Dangl in administering anesthetic agents and other controlled substances, and monitored

   J.R. during the procedure. Her duties included documenting J.R.'s vital signs and the types and quantities of medications that were administered. A cardiac respiratory monitor, a pulse oximeter, and a blood pressure monitor were devices used to monitor J.R. during the surgery.

6. A cardiac respiratory monitor records the heart rate, respirations, and the sinus rhythm of the heart. The oxygen saturation in the blood is measured by the pulse oximeter, which

   is placed on one of the patient's fingers. Blood pressure is monitored by the blood pressure machine.

7. Bruce Crow was the surgical technician. During the surgical procedure, he made sure supplies and surgical instruments were ready, maintained the sterile field, and assisted Dr. Dangl with the procedure.

8. At approximately 9:15 a.m. on September 25, 2003,

   
   

   Dr. Dangl started an IV in J.R.'s left hand and administered the following medications: one gram of Rocephin, 20 milligrams of Reglan, 50 milligrams of Demerol, ten milligrams of Valium, 25 milligrams of Ketamine and Versed. Dr. Dangl gave the initial medications, and Ms. Fortner administered additional drugs pursuant to Dr. Dangl's orders. J.R. was given an additional

   200 milligrams of Demerol. The last dose of Demerol was administered by Ms. Fortner at 9:50 a.m. J.R. was a small person, and, for her weight and size, it took an unusual amount of Demerol to get J.R. sedated.

9. Versed and Valium are sedative hypnotics, which sedate patients and cause them to become sleepy. Demerol is an analgesic, a pain medication. These medications can decrease respiration. Ketamine is a dissociate anesthetic, which does not cause respiratory depression.

10. J.R. was also given a Propofol drip IV to help keep

    
    

    J.R. asleep. Propofol is a general anesthetic which depresses

    brain cells. The Propofol was mixed with a saline solution at a rate of one 55 cc vial per 100 cc's of saline. Ms. Fortner prepared the solution, which was initially administered by

    Dr. Dangl until he got it to the rate that he wanted. Once the surgery started, he would tell Ms. Fortner to speed-up or slow- down the drip as necessary. Three bottles of Propofol were used during the surgical procedure.

11. J.R. was also given two liters of oxygen during the procedure. An oral airway was inserted into J.R.'s mouth during the early stages of the procedure. An oral airway is a long device that is inserted behind the tongue and goes deep into the patient's throat. In order to tolerate an oral airway, the patient would have to be in a deep level of sedation.

12. J.R. was awake when the medications were started. She continued to talk through at least half of the time the medications were being administered. At one point during the surgery, J.R. "moaned a little bit, but then went right back to sleep."

13. During the surgical procedure, Dr. Dangl sat J.R. up approximately three times to check the symmetry of the implants.

    J.R. continued to sleep through these checks. During the last time that J.R. was brought to a sitting position at approximately 11:55 a.m., the pulse oximeter alarmed. Thinking that the device may have fallen off J.R.'s finger, Ms. Fortner

    checked the device and also checked to make sure that the oximeter was not on the arm on which the blood pressure machine was placed. The pulse oximeter was on the correct finger.

14. Ms. Fortner advised Dr. Dangl that something was wrong. She turned up the oxygen and placed an Ambu bag1 over the oral airway which had been placed in J.R.'s mouth at the beginning of the case. Ms. Fortner started Ambu bagging J.R.

    At Dr. Dangl's direction, Ms. Fortner turned off the Propofol drip. However, J.R.'s pulse oximeter reading did not improve. Not wanting to break the sterile field, Dr. Dangl yelled at Ms. Fortner, "Don't make me come back there and help your ass." When J.R. still did not improve, Dr. Dangl broke the sterile field, pushed Ms. Fortner aside, and began to Ambu bag J.R.

15. Dr. Dangl checked J.R. for a pulse, but was unable to find one. Ms. Fortner checked for a pulse and thought that she may have found a faint pulse. Dr. Dangl, hearing the receptionist in the hallway, called to her to get Michelle Purdy, another employee of Dr. Dangl. The receptionist went to get Ms. Purdy and came back saying that Ms. Purdy was on the telephone. Dr. Dangl told the receptionist to get Ms. Purdy. Ms. Purdy, who is not a nurse, came into the operating area and tried to find a pulse for J.R. Unfortunately, Ms. Purdy tried to find a pulse using her thumbs. After being corrected by the surgical team, Ms. Purdy attempted to locate a pulse in the

    brachial, then the femoral, and then the pedal pulses, but she was unable to find a pulse. After being unable to locate a pulse, Dr. Dangl instructed one of his staff to call for emergency medical services (EMS).

16. While Dr. Dangl and his employees were searching for a pulse, the surgical technician asked for leave to begin chest compressions. Mr. Crow told Dr. Dangl that the heart rate monitor was flat lining, meaning that it showed no basic heart rhythm for J.R. J.R.'s skin was gray and her fingers were turning blue. Dr. Dangl told Mr. Crow to wait.

17. Dr. Dangl instructed Ms. Fortner to give J.R. three milligrams of Atropine two times. Ms. Fortner complied with his orders, but J.R. still had not started to breathe again.

18. Mr. Crow continued to request Dr. Dangl to allow him to start chest compressions. After the administration of the Atropine failed to revive J.R., Dr. Dangl allowed Mr. Crow to begin chest compressions. From a minimum of two minutes to a maximum six minutes2 elapsed between the time Mr. Crow first asked to do chest compressions and when he began to do chest compressions. While chest compressions were being administered, Dr. Dangl ordered Ms. Fortner to administer Epinephrine to J.R.

19. While Dr. Dangl continued to Ambu bag J.R., Mr. Crow administered three cycles of chest compressions. A cycle is 15 chest compressions to two Ambu breaths. J.R.'s heart rate

    returned and J.R. developed tachycardia, which means a high heart rate.

20. About the time that J.R. revived and became stable, the paramedics arrived. J.R. was breathing, had a heart rate, and had a pulse oximeter reading of approximately 98. Neither the paramedics nor Dr. Dangl or any of his staff checked J.R.'s pupils.

21. When the paramedics arrived, the surgery was not completed. The paramedics informed Dr. Dangl that another EMS team was on the way. Dr. Dangl and the paramedics agreed that Dr. Dangl could finish closing and suturing the wound, while waiting for the other EMS team to come and transport J.R. to the hospital. The paramedics stayed for a short time in the operating area monitoring J.R.'s vital signs and then left to make copies of J.R.'s chart, leaving Ms. Fortner to continue the monitoring of the vital signs.

22. While Dr. Dangl was completing the procedure, J.R.'s vital signs were within normal range. Ms. Fortner periodically checked J.R.'s breathing by placing her hand over J.R.'s mouth.

23. After Dr. Dangl completed suturing the wound, the second team of paramedics came into the operating area to transport J.R. The paramedics examined J.R.'s eyes, which were fixed and dilated. The paramedics immediately intubated J.R. and took her to the hospital. While at the hospital, Dr. Dangl

    admitted to J.R.'s fiancée that he had given J.R. "a lot of medication for her body size and weight," but that he thought

    J.R. was metabolizing the anesthetic very quickly.

    
    

24. J.R. never regained consciousness after she was transported to the hospital. She died several months later from hypoxic encephalopathy, which means low oxygen brain damage.

25. On September 26, 2003, Dr. Dangl dictated a report of operation. His documentation of J.R.'s "cardiorespiratory event" is as follows:

    Immediately prior to closure, the patient experienced a cardiorespiratory event that required CPR and resuscitative efforts. The EMS was activated and assumed care of the patient upon arrival. At this time the patient had responded to the resuscitative effort, vital signs were stable and permission was given by EMS to complete closure of the incisions prior to transport. The incisions were closed in a layered fashion with 3-0 PDS II and 5-0 nylon. A sterile dressing was placed over the incision sites.

    
    

    The patient was entubated [sic] by EMS prior to transport and left the O.R. via ambulance for Doctor's Hospital Emergency Room.

    
    

26. Dr. Dangl signed a document entitled, "Operating Room Record." The record contained a section in which the medications that were administered should have been listed along with the time administered, the dosage, and the method of administration. That section of the record contained the

    following, "see anesthesia record," in lieu of listing the medications.

27. The anesthesia record which was prepared by Ms.

    
    

    Fortner did not list all the medications that were administered to J.R. such as the Atropine and Epinephrine. She did not list the amount of Lidocaine or Propofol that was administered.

28. It should have been obvious to Dr. Dangl when he reviewed the anesthesia report, that it was not correct. When Dr. Dangl prepared the Report of Operation and signed the Operating Room Record, he should have included the medications which he ordered and which were not included in the anesthesia report.

29. Both Dr. Dangl and Ms. Fortner were certified in Advanced Cardiac Life Support at the time of the surgery.

    Ms. Fortner is not an anesthesiologist, a certified registered nurse anesthetist, or a physician assistant.

30. Based on the testimony of Ms. Fortner that three 50 cc bottles of Propofol were used during the surgery, Dr. Joan Christie calculated that the dosage of Propofol that was administered was between 160 and 170 micrograms per kilo per minute. In a normal patient, who has received no other drugs,

    100 micrograms per kilo per minute would be a lot of medication.

    
    

    J.R. received between 160 and 170 micrograms per kilo per minute on top of the other drugs that had been administered to her at

    the beginning of the procedure. The Propofol was administered in excessive amounts.

31. Based on the evidence presented, it is clear that J.R. went from a Level II to a Level III office surgery during the surgical procedure. She tolerated an oral airway, which she could not do under a Level II or Level I. She was not responding purposefully to verbal commands or tactile stimulation. When J.R. was sat up to check the symmetry of her implants, she did not wake up or otherwise respond. Although she did moan at one time during the surgical procedure, that did not mean that she was either at Level I or Level II.

32. Dr. Dangl has had no prior disciplinary actions taken against him by the Department.

    CONCLUSIONS OF LAW

    
    

33. 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. (2004).

34. The Department has the burden to establish the allegations contained 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). The Department has alleged Dr. Dangl violated Subsections 458.331(1)(m), (q), and (t), Florida Statutes (2003), which provide:

    1. The following acts constitute grounds for denial of a license or disciplinary action as specified in s. 456.072(2):

       
       

       * * *

       
       

       (m) Failing to keep legible, as defined by department rule in consultation with the board, 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; record of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

       
       

       * * *

       
       

       (q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his or her intent.

       
       

       * * *

       
       

       (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar

       conditions and circumstances. The board shall give great weight to the provisions of

       s. 766.102 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of $50,000 each to the claimant in a judgment or settlement and which incidents

       involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a 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. . . .

       
       

35. In Count One of the Administrative Complaint, the Department alleged that Dr. Dangl violated Subsection 458.331(1)(t), Florida Statutes (2003), by the following actions:

    1. By dispensing, injecting, and administering anesthetic agents and other controlled substances in an inappropriate manner and in excessive quantities;

       
       

    2. By failing to adequately monitor the anesthetic agents and other controlled substances that were administered to Patient

       J.R. both prior to and during the surgery;

       
       

    3. By failing to adequately monitor the effects of the anesthetic agents and other controlled substances that were administered

       to Patient J.R. both prior to and during the surgery;

       
       

    4. By failing to retain the presence of a medical professional who had the expertise to appropriately administer anesthetic agents and other controlled substances to Patient J.R., to adequately monitor Patient J.R., and maintain an airway if excessive sedation occurred;

       
       

    5. By failing to adequately monitor Patient J.R.'s oxygen saturation levels during Patient J.R.'s surgery;

       
       

    6. By failing to diagnosis [sic] the respiratory insufficiency of Patient J.R. in a timely manner;

       
       

    7. By failing to treat Patient J.R.'s respiratory insufficiency in a timely manner;

       
       

    8. By failing to perform chest compressions when Patient J.R. became pulseless with cardiac arrest, following the respiratory arrest, in a timely manner;

       
       

    9. By failing to adequately document the anesthetics and other controlled substances administered to Patient J.R.;

       
       

    10. By failing to record the amount of Propofol and lidocaine administered to Patient J.R.;

        
        

    11. By failing to record Patient J.R.'s oxygen saturation levels during the surgery;

        
        

    12. By failing to adequately document the medications administered and actions taken once it was discovered that Patient J.R. was suffering from respiratory insufficiency.

    
    

36. The Department established by clear and convincing evidence that Dr. Dangl violated Subsection 458.331(1)(t),

    Florida Statutes (2003), by his failure to practice medicine with the level of care, skill, and treatment which is recognized as being accepted under similar conditions and circumstances.

    Dr. Dangl administered Propofol in excessive amounts. He failed to adequately monitor the effects of the anesthetics because

    J.R. went from a Level II to a Level III office surgery during the surgical procedure. Because J.R. remained at a Level III throughout a large portion of the surgery, Dr. Dangl was required by Florida Administrative Code Rule 64B8-9.009(6)(b)4. to have an anesthesiologist, a certified registered nurse anesthetist, or a physician assistant administer the anesthesia, and he did not do so.

37. Dr. Dangl failed to treat the respiratory and cardiac arrests in a timely manner. When Dr. Dangl could not find a pulse and Ms. Fortner could not be sure if she found a faint pulse, Dr. Dangl called for an unqualified person, Ms. Purdy, to come and try to find a pulse. Making matters worse, Ms. Purdy did not know how to correctly take a patient's pulse. Valuable time was lost in that effort. If he, a physician, could not find a pulse, it is ludicrous to expect an untrained office manager to be able to find one.

38. Dr. Dangl failed to allow Mr. Crow to do chest compressions in a timely manner. After informing Dr. Dangl that

    J.R. was flatlining, that J.R. was gray, and that her fingers

    were blue, Mr. Crow requested that he be allowed to do chest compressions. Dr. Dangl refused to allow the chest compressions until after Mr. Crow's second or third request. Based on the information that Mr. Crow was giving to him, Dr. Dangl should have begun the chest compressions earlier.

39. In Count Two of the Administrative Complaint, the Department alleged that Dr. Dangl violated Subsection 458.331(1)(q), Florida Statutes (2003), by inappropriately and excessively administering anesthetic agents and other controlled substances to J.R. both prior to and during J.R.'s surgery.

40. The Department established by clear and convincing evidence that Dr. Dangl violated Subsection 458.331(1)(q), Florida Statutes (2003), by administering excessive amounts of Propofol to J.R. during the surgical procedure.

41. In Count Three of the Administrative Complaint, the Department alleged that Dr. Dangl violated Subsection 458.331(1)(m), Florida Statutes (2003), by failing to justify the course of treatment for J.R. in his medical records in the following ways:

    1. Failing to record all the anesthetic agents and other controlled substances administered to Patient J.R. both prior to and during surgery;

       
       

    2. Failing to record the amount of Profofol administered to Patient J.R. during surgery;

    3. Failing to adequately record Patient J.R.'s oxygen saturation levels during the surgery;

       
       

    4. Failing to document the amount of lidocaine administered to Patient J.R.;

       
       

    5. Failing to adequately document the medications administered and actions taken once it was discovered that Patient J.R. was suffering from respiratory insufficiency.

    
    

42. The Department has established by clear and convincing evidence that Dr. Dangl violated Subsection 458.331(1)(m), Florida Statutes (2003). Respondent argues that it was

Ms. Fortner's responsibility to record the medications that were given and not Dr. Dangl's. Although Dr. Dangl did not record the medications that were given as they were given, he did sign the Operating Room Record which stated, "See anesthesia record" in lieu of listing the medications that were given. Dr. Dangl ordered the medications to be given and in the initial stages of the procedure actually administered the medications. He would have known by looking at the anesthesia record that all the medications were not listed and that the amounts of some medications were not listed. He should have listed the omitted medications and amounts in either his Report of Operation or in his Operating Room Report. He failed to adequately document the medications administered and actions taken once it was discovered that J.R. was suffering from respiratory insufficiency. Dr. Dangl authored a report of operation, which

did not address the medications which he ordered to be given to

J.R. in an attempt to revive her, did not address the failure to find a pulse, did not address the Ambu bagging which was done on J.R., did not address the patient's gray color and blue fingers, and did not address the heart rate. His report essentially said, "the patient experienced a cardiorespiratory event that required CPR and resuscitative efforts."

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Dr. Dangl violated Subsections 458.331(1)(m), (q), and (t), Florida Statutes (2003), and revoking his license to practice medicine.

DONE AND ENTERED this 23rd day of February, 2005, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 23rd day of February, 2005.

ENDNOTES

1/ An Ambu bag makes a seal around the patient's mouth so that oxygen can be administered directly into the lungs.

2/ Ms. Fortner testified that Mr. Crow asked two or three times to do chest compressions. She guessed that a minute to a minute and a-half lapsed between the time Mr. Crow asked to do chest compressions and the time he was given permission to do the chest compressions by Dr. Dangl, stating, "It was a while."

Mr. Crow testified that he asked Dr. Dangl two or three times to allow him to do chest compressions, and that approximately one to two minutes lapsed between each request. Given that after Mr. Crow's first request, Dr. Dangl ordered the administration of two doses of Atropine, which were given to J.R., Mr. Crow's estimation of the time frame is more credible.

COPIES FURNISHED:

Irving Levine, Esquire Diane K. Kiesling, Esquire Department of Health

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

Sean M. Ellsworth, Esquire William V. Roppolo, Esquire Ellsworth Roppolo, P.A.

404 Washington Avenue, Suite 750 Miami Beach, Florida 33139

R. S. Power, Agency Clerk Department of Health

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

Timothy M. Cerio, 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: 04-002708PL

Orders for Case No: 04-002708PL