STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. )

)

GEORGE FIGUEROA, M.D., )

)

Respondent. )

Case No. 06-1946PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on August 18, 2006, in St. Petersburg, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ephraim Livingston, Esquire

Department of Health

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

For Respondent: Bruce D. Lamb, Esquire

Jennifer Ferrer, Esquire

Ruden, McClosky, Smith, Schuster, & Russell, P.A.

401 East Jackson Street, 27th Floor Tampa, Florida 33602-0551

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2000),1 and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On September 20, 2002, Petitioner, Department of Health, Board of Medicine (Department), filed a two-count Administrative Complaint against Respondent, George Figueroa, M.D.

(Dr. Figueroa), alleging that Dr. Figueroa violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes. Dr. Figueroa requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on May 30, 2006, for assignment of an administrative law judge to conduct the final hearing.

The final hearing was originally scheduled for August 16 and 17, 2006. The Department filed a Notice of Unavailability for Final Hearing, and the final hearing was rescheduled for August 17 and 18, 2006.

At the final hearing, official recognition was taken of Florida Administrative Code Rule 64B8-8.001, and the Department was allowed to file a copy of the rule after the close of the final hearing.

The parties filed a Joint Pre-hearing Stipulation, where the parties agreed to certain facts contained in section E of

the Joint Pre-hearing Stipulation. To the extent relevant, those facts have been incorporated in this Recommended Order.

At the final hearing, Joint Exhibit 1, a composite of medical records for Patient G.C. (G.C.), was admitted into evidence. The Department called no witnesses. Petitioner's Exhibits 2, 3, 4, and 5 were admitted into evidence.

Petitioner's Exhibits 4 and 5 are the depositions of Gordon Rafool, M.D., which were submitted in lieu of his live testimony.

Dr. Figueroa testified on his own behalf at the final hearing and called Arthur Harold, M.D., as a witness.

Respondent's Exhibits 1 and 2 were admitted into evidence.

The one-volume Transcript of the final hearing was filed on September 11, 2006. The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. Dr. Figueroa filed a Motion for Extension of Time to File Proposed Recommended Order, which was granted, and the parties were to file their proposed recommended orders no later than September 25, 2006. The Department's Proposed Recommended Order was timely submitted. Dr. Figueroa's Proposed Recommended Order and closing argument were received on October 23, 2006.

Dr. Figueroa attempted to fax his Proposed Recommended Order and closing argument on September 25, 2006, and received a fax confirmation; however, the Proposed Recommended Order and

closing argument were not received by the Division of Administrative Hearings on September 25, 2006. The parties' Proposed Recommended Orders have been considered 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 and Chapters 456 and 458, Florida Statutes (2006).

2. At all times material to this proceeding, Dr. Figueroa was a licensed physician within the State of Florida, having been issued license number ME 60819. Dr. Figueroa is board- certified in Family Practice.

3. At all times material to this proceeding, Dr. Figueroa was the supervisor and employer of mid-level provider Carl Sellers, P.A. (Mr. Sellers).

4. G.C., a 33-year-old male, first presented to Mr. Sellers as a new patient on November 14, 2000. G.C.

   complained of a two-month history of coughing, low-grade fever, fatigue, and heavy breathing. G.C.'s temperature was 98.4, his weight was 181 pounds, and his heart rate was 68 beats per minute.

5. Mr. Sellers conducted an examination of G.C. and noted that G.C. was having difficulty taking a deep breath, shortness of breath on inspiration that was better if standing upright,

   severe fatigue, and fits of couching where he nearly vomited. Mr. Sellers also noted that G.C. had mild lymph adenopathy.

6. Mr. Sellers' diagnosed G.C. with a persistent upper respiratory infection. He prescribed Zithromax and Guaifed TR and ordered a chest X-ray and blood testing, including a complete blood count (CBC) with differential, comprehensive metabolic profile (CMP), and erythrocyte sedimentation rate (ESR). G.C. was instructed to return in a week or sooner if he worsened.

7. Dr. Figueroa's normal operating practice was to review Mr. Sellers' files of the previous day on the following morning. Dr. Figueroa reviewed G.C.'s medical record and concurred with Mr. Sellers' diagnosis.

8. Laboratory results from the blood testing arrived in the office of Dr. Figueroa on November 20, 2000. G.C.'s blood testing results revealed abnormal liver function, anemia, borderline protein, and an abnormal sedimentation rate. The results of the blood tests did not warrant immediate follow-up with G.C.

9. Mr. Sellers reviewed the laboratory report of the blood tests and indicated that he would discuss the results with G.C. on his next visit.

10. G.C. was scheduled for a return visit on November 21, 2000, but called Dr. Figueroa's office and rescheduled his

    appointment for November 22, 2000. G.C. failed to keep his scheduled appointment.

11. On November 22, 2000, Mr. Sellers reviewed the Radiological Report for G.C. The report stated:

    The lungs are clear of infiltrates. There is mild blunting of the costophrenic sulci probably representative of small effusions.

    The heart size is moderately enlarged. No pulmonary edema nor widening of the superior mediastinum detected.

    
    

    The impression of the radiologist was "moderate cardiomegaly with probably small pleural effusions." The Department's expert, Dr. Rafool, testified that the Radiological Report was an indication that G.C.'s heart was failing, which was inconsistent with the initial diagnosis of upper respiratory infection. Dr. Figueroa and his expert, Dr. Harold, testified that radiologists often "over read" chest X-rays; therefore, the Radiological Report did not warrant emergent action by

    Dr. Figueroa. Dr. Rafool countered the common over-read argument by testifying that regular radiologists do not equivocate because it causes more work for the ordering physician. The language of the radiologist is clearly intended to alert Dr. Figueroa to the presence of unusual conditions observed in G.C.'s chest X-ray that were inconsistent with an upper respiratory infection. Dr. Rafool's testimony is more

    credible concerning the significance of the Radiological Report and its implications on the diagnosis of G.C.

12. Dr. Rafool testified that the Radiological Report indicated that G.C.'s heart was failing, which constitutes a "medical emergency" that required urgent notification of the patient. Dr. Figueroa and Dr. Harold conceded that the report indicated conditions that warranted "timely" follow-up, but not immediate intervention or contact with the patient. The Radiological Report revealed a "moderate" cardiomegaly that was an indication of cardiomyopathy, a heart condition that is more often fatal if not corrected by treatment that may include a heart transplant. Since early intervention is likely to lead to an opportunity for a favorable outcome, the testimony of

    Dr. Rafool is more credible regarding the need for notification of the patient.

13. The record does not indicate any affirmative effort by Dr. Figueroa, his staff, or by Mr. Sellers to contact G.C. between November 22 and November 27, 2000, which was the next time that G.C. presented to Dr. Figueroa's office.

14. On November 27, 2000, G.C. was complaining of worsening conditions since November 23 including swollen legs, inability to sleep at night, and coughing with shortness of breath mainly at bedtime. G.C.'s temperature was 97.2, his

    weight was 188 pounds, and his heart rate was 114 beats per minute.

15. Mr. Sellers conducted an examination of G.C. and noted definite lid lag with mild exophthalmia, crackles in the lungs with no wheeze, moderate jugular vein distention, orthopnea, grade +2 pitting edema, and no goiter.

16. Mr. Sellers ordered a STAT EKG on G.C. The EKG indicated "sinus tachycardia with occasional ventricular premature complexes and possible left atrial enlargement." Mr. Sellers documented that G.C. might be suffering from left ventricular hypertrophy.

17. Mr. Sellers' primary diagnosis of G.C. was hyperthyroid crisis (storm), his secondary diagnosis was mild congestive heart failure secondary to hyperthyroid crisis caused by high output failure, his third diagnosis was IDA, the fourth diagnosis was elevated liver function tests and bilirubin, and the fifth diagnosis was insomnia. Mr. Sellers mistakenly diagnosed G.C. with a hyperthyroid crisis.

18. Mr. Sellers consulted with Dr. Figueroa, who also examined G.C. Dr. Figueroa concurred with the assessment, diagnosis, and treatment plan of Mr. Sellers, including the diagnosis of hyperthyroid crisis. He indicated on the EKG strip that he agreed with the findings of G.C.'s EKG.

19. A patient in a hyperthyroid crisis requires immediate hospitalization. Dr. Figueroa did not hospitalize G.C.

20. Mr. Sellers prescribed 40 mg of Lasix, daily; 40 mg of Inderal, twice daily; and 50 mg of propylthiouracil, three times daily. The propylthiouracil prescribed was an insufficient dose based on the diagnosis of hyperthyroid crisis.

21. Dr. Harold testified that G.C. did not present clinical signs of pulmonary edema during Mr. Sellers' examination on November 27, 2000, based on a lack of acute distress, moist rales and rhonchi throughout the lung fields, and respiratory distress. Dr. Rafool opined that G.C. did present clinical signs of pulmonary edema based on the crackles in the lungs, neck vein distension, pitting edema, elevated heart rate, and weight gain. The Department has failed to establish by clear and convincing evidence that pulmonary edema was ever clinically apparent to Dr. Figueroa or Mr. Sellers. In fact, hours after G.C. was examined by Dr. Figueroa and

    Mr. Sellers, the emergency room physicians did not diagnose G.C. with pulmonary edema.

22. Inderal is contraindicated in the presence of pulmonary edema. Since pulmonary edema was not clinically apparent, Inderal was appropriately prescribed.

23. Mr. Sellers' diagnosis of mild congestive heart failure was incorrect. Based on the symptoms exhibited by G.C.

    of neck vein distension, weight gain, orthopnea, and grade +2 pitting edema, it should have been apparent that G.C. had severe heart failure.

24. G.C. presented to the Bayfront Medical Center Hospital Emergency Room at 10:03 p.m. on November 27, 2000. G.C. complained of abdominal pain and swelling, nausea and vomiting, and difficulty breathing.

25. Examination of G.C. by emergency room personnel revealed the presence of bibasilar rales, but good breath sounds. Hospital chest X-ray revealed cardiomegaly, no infiltrates.

26. At 1:33 a.m. on November 28, 2000, G.C. went into cardiac arrest. G.C. was pronounced dead at 3:04 a.m., November 28, 2000. An autopsy performed on G.C. revealed dilated cardiomyopathy, bi-ventricular dilation, pulmonary edema, and congested liver. The immediate cause of death was listed as idiopathic dilated cardiomyopathy. The autopsy report indicated that G.C. also had pulmonary edema; however, the pulmonary edema could have resulted from the large amounts of fluids that were being administered to G.C. by hospital staff during the last few hours of G.C.'s life.

27. Dr. Figueroa was notified of G.C.'s demise on November 28, 2000, and he immediately sent his medical records

    on G.C. to his legal counsel without making any further notations on the records.

    CONCLUSIONS OF LAW

    
    

28. 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. (2006).

29. 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).

30. The Department has alleged that Dr. Figueroa violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, which provide:

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

       
       

       * * *

       
       

       (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; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

       
       

       * * *

       
       

       (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, "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.

       
       

31. The Department alleges in Count I of the Administrative Complaint that Dr. Figueroa violated Subsection 458.331(1)(t), Florida Statutes, as follows:

    1. Failed to recognize that Patient G.C. was experiencing congestive heart failure on or about November 14, 2000;

    2. Failed to recognize that Patient G.C. was experiencing obvious pulmonary edema with worsening congestive heart failure on or about November 27, 2000;

    3. Failed to immediately follow-up with Patient G.C. following the adverse results of his laboratory studies and chest x-ray;

    4. Failed to immediately hospitalize Patient G.C. on November 14, 2000, or November 27, 2000;

    5. Failed to recognize that Inderal was contraindicated in the presence of pulmonary edema.

    
    

32. The Department failed to establish that the diagnosis and treatment plan for G.C. on November 14, 2000, fell below the standard of care.

33. The Department did not establish by clear and convincing evidence that G.C. was exhibiting sufficient signs of pulmonary edema on November 27, 2000, to warrant a diagnosis of pulmonary edema. While the testimony clearly indicates that

    G.C. did exhibit some signs of pulmonary edema, the symptoms were not sufficiently specific to make the diagnosis obvious. Mr. Sellers' examination of G.C. indicated rales in the bases of the lungs, but the testimony indicated that a symptom of pulmonary edema is moist rales and rhonchi in all the lung fields. Furthermore, the fact that the hospital X-ray and the emergency room physicians did not make a diagnosis of pulmonary edema just hours after Dr. Figueroa and Mr. Sellers had examined

    G.C. supports the conclusion that G.C. was not exhibiting sufficient signs of obvious pulmonary edema when examined by Dr. Figueroa and Mr. Sellers.

34. Since the Department failed to establish clear and convincing evidence that G.C. was experiencing obvious pulmonary edema on November 27, 2000, the Department has failed to provide sufficient evidence that the use of Inderal was below the standard of care. The weight of evidence indicated that Inderal

    was an appropriate medication to treat hyperthyroid crisis and mild congestive heart failure.

35. The Department did establish by clear and convincing evidence that Dr. Figueroa failed to recognize worsening congestive heart failure on November 27, 2000. The chest X-ray taken on November 17, 2000, indicated a significant medical condition, cardiomegaly. The blood studies indicated abnormal liver function. These prior findings, viewed in conjunction with the symptoms noted by Mr. Sellers on November 27, 2000, should have caused a reasonably prudent similar physician to conclude that G.C. had been suffering congestive heart failure since at least November 14, 2000. The evidence clearly demonstrates that G.C.'s condition had significantly worsened by November 27, 2000, and the condition was worse than mild congestive heart failure.

36. The Department did not establish clear and convincing evidence that the laboratory results received by Dr. Figueroa on November 20, 2000, warranted immediate follow-up.

37. The Department did provide clear and convincing evidence that the November 17, 2000, chest X-ray indicated a serious medical condition that warranted emergent follow-up. The record does not indicate any effort by Dr. Figueroa,

    Mr. Sellers, or their staff to contact G.C. between November 22 and November 27, 2000. The lack of effort to contact G.C.

    during the five-day period fails to indicate even timely notification.

38. The Department did not present sufficient evidence that G.C.'s condition required hospitalization on November 14, 2000. However, the Department did present clear and convincing evidence that G.C.'s condition required hospitalization on November 27, 2000. If Mr. Sellers' diagnosis of hyperthyroid crisis had been correct, G.C. should have been hospitalized. Additionally, G.C. presented clear signs of worsening congestive heart failure with moderate cardiomegaly. The proper treatment for G.C. was hospitalization for intensive treatment and intervention. Therefore, Dr. Figueroa deviated from the standard of care by not hospitalizing G.C. on November 27, 2000.

39. The Department has established by clear and convincing evidence that Dr. Figueroa violated Subsection 458.331(1)(t), Florida Statutes, by failing 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.

40. The Department alleges in Count II of the Administrative Complaint that Dr. Figueroa violated Subsection 458.331(1)(m), Florida Statutes, as follows:

    1. Failed to document any consultation with Mr. Sellers regarding Patient G.C.'s worsening condition;

    2. Failed to justify why Patient G.C. was not immediately hospitalized on November 14, 2000 or November 27, 2000 regardless of the diagnosis of hyperthyroid crisis or congestive heart failure.

    
    

41. The Department failed to provide sufficient evidence that Dr. Figueroa failed to document any consultation with

    Mr. Sellers regarding G.C.'s worsening condition. Testimony and evidence indicated that Dr. Figueroa did examine G.C. with

    Mr. Sellers present. Dr. Figueroa indicated on the EKG that he "agreed" and initialed the strip. Further, it was the normal practice of Dr. Figueroa to sign the charts of Mr. Sellers from the previous day on the following morning. By the morning of November 28, 2000, Dr. Figueroa was notified that G.C. had expired. Dr. Figueroa did not sign the chart on November 28 in an effort to comply with the requirements of his legal counsel.

42. The Department has provided clear and convincing evidence that Dr. Figueroa failed to justify why G.C. was not hospitalized on November 27, 2000. The weight of the evidence indicates that hyperthyroid crisis is a medical emergency that warrants immediate hospitalization. Dr. Figueroa agreed with the diagnosis and treatment plan of Mr. Sellers. However, no documentation was recorded that explains why a patient diagnosed with hyperthyroid crisis and congestive heart failure was being treated as an out-patient rather than the accepted standard of care, which is hospitalization.

43. Florida Administrative Code Rule 64B8-8.001(1)(t) provides that the range of penalties for the first offense of a violation of Subsection 458.331(1)(t), Florida Statutes, is from two years' probation to revocation and an administrative fine from $1,000 to $10,000.

44. Florida Administrative Code Rule 64B8-8.001(1)(m) provides that the range of penalties for the first offense of a violation of Subsection 458.331(1)(m), Florida Statutes, is from a reprimand to two years' suspension followed by probation and an administrative fine from $1,000 to $10,000.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Dr. Figueroa violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes; suspending his license to practice medicine until he completes the Florida C.A.R.E.S. program or a comparable physician skills assessment program to assess his clinical skills; requiring compliance with the program's recommendations; placing him on two years' probation with direct supervision to be set by the Board of Medicine; and imposing an administrative fine of $10,000.

DONE AND ENTERED this 13th day of December, 2006, 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 13th of December, 2006.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes shall be to the 2000 version.

COPIES FURNISHED:

Bruce D. Lamb, Esquire

Ruden, McClosky, Smith, Schuster & Russell, P.A.

401 East Jackson Street, 27th Floor Tampa, Florida 33602

Ephraim D. Livingston, Esquire Department of Health

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

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: 06-001946PL

Orders for Case No: 06-001946PL