STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF MEDICINE,
Petitioner,
vs.
WILLIAM PAUL HOPKINS, M.D.,
Respondent.
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) Case No. 06-3357PL
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RECOMMENDED ORDER
Notice was provided and on March 6, 2007, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2006). The hearing location was the Citrus County Courthouse,
110 North Apopka Avenue, Inverness, Florida. The hearing was held before Charles C. Adams, Administrative Law Judge.
APPEARANCES
For Petitioner: Ephraim D. Livingston, Esquire
Dory Penton, Esquire Department of Health
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 Post Office Box 1772
Tampa, Florida 33602-1772
STATEMENT OF THE ISSUE
Should discipline be imposed against Respondent's license to practice medicine for violation of Section 458.331(1)(t), Florida Statutes (2003)?
PRELIMINARY STATEMENT
On April 25, 2006, in Case No. 2005-06808 before the Board of Medicine (the Board), the Department of Health (DOH) brought an Administrative Complaint against Respondent accusing him of a violation of the statute referred to in the Statement of the Issue. The Administrative Complaint was premised upon the following allegations:
On or about May 18, 2004, Patient RD a seventy-three year old male presented to Citrus Memorial hospital, family care center in Lecanto, Florida, with a chief complaint of constipation and last major bowel movement on May 16, 2004.
On or about May 18, 2004, Patient RD was physically examined and the examination revealed normal vital signs, moderately distended abdomen and slowed, but present bowel sounds in all for (sic) quadrants, no masses, and a nontender abdomen.
On or about May 18, 2004, Respondent ordered an abdominal flat place and upright x-ray which showed "obstruction with stool, air fluid levels."
On or about May 18, 2004, Patient RD's diagnosis was constipation with partial bowel obstruction.
On or about May 18, 2004, the x-rays were interpreted by a radiologist with an impression of marked dilatation of small bowel, likely due to small bowel obstruction.
On May 18, 2004, Patient RD was instructed for treatment of his diagnosis to take Miralax powder as needed and milk of magnesia in between, keep fluid intake up and go to ER (emergency room) if pain increases in abdomen fever or vomiting develop.
Respondent prescribed Miralax to Patient RD, Miralax is counter-indicated for a patient with a diagnosis of partial small bowel obstruction.
Respondent failed to refer Patient RD to a hospital for immediate further evaluation of small bowel obstruction.
Respondent failed to perform a digital rectal examination in a patient presenting with a possible bowel obstruction.
Respondent failed to test the stool for occult blood.
As a consequence Respondent is alleged to have violated Section 458.331(1)(t), Florida Statutes (2003) in 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 one or more of the following ways:
prescribing Miralax to Patient R.D., a patient with a diagnosis of partial small bowel obstruction.
failing to refer Patient RD to a hospital for immediate further evaluation of small bowel obstruction.
failing to perform a digital rectal examination in a patient presenting with a possible bowel obstruction.
failing to test Patient RD's stool for occult blood.
Respondent was provided several options in addressing the Administrative Complaint. He chose the third option. That option was to dispute the allegations of fact contained in the Administrative Complaint. Through that option as evidenced in the form provided to him, Respondent asked that he be heard in accordance with Sections 120.569 and 120.57(1), Florida Statutes, by an administrative law judge to resolve the dispute. He disputed all paragraphs within the Administrative Complaint.
On September 6, 2006, DOH forwarded the case to the Division of Administrative Hearings (DOAH) to assign an administrative law judge to conduct a hearing in accordance with Respondent's request for formal hearing. The assignment was made by Robert S. Cohen, Director and Chief Judge of DOAH in reference to DOAH Case No. 06-3357PL. The assignment was to the present administrative law judge.
After two continuances, the hearing took place on March 6, 2007.
Prior to the hearing, Petitioner filed a Motion in Limine concerning the prospective testimony of Angela Gaglione, now Angela Failla, and Respondent's Exhibit numbered 6. The Motion was addressed at hearing, and the outcome is explained in the hearing transcript.
James Schaus, M.D., testified for Petitioner. Petitioner's Exhibits numbered 1 through 4 were admitted. Respondent presented Angela Failla as his witness. Respondent testified in his own behalf. At hearing, Respondent's Exhibits numbered 3 and 4 were admitted. Respondent's Exhibit numbered 3 is the deposition transcript of David A. Weiland, Jr., M.D. Respondent's Exhibit numbered 6 was denied admission. Ruling was reserved on the admission of Respondent's Exhibits numbered 5A through 5D, subject to Respondent's opportunity post-hearing to undertake necessary arrangements to establish their authenticity. Consistent with those opportunities, Respondent took the depositions of Lisa Montalto and Share Burgard. Their depositions were transcribed and filed. The depositions were reviewed. After review, Respondent's Exhibits numbered 5A through 5D are admitted within the limits described in the hearing transcript. In addition to the parties exhibits admitted, the deposition transcripts of the witnesses Montalto and Burgard are included with this record, together with Respondent's Exhibit numbered 6 which was denied admission.
Petitioner filed a Motion for Official Recognition of Section 458.331(1)(t), Florida Statutes (2003), and Florida Administrative Code Rule 64B8-8.001. At hearing, the motion was granted as reflected in the hearing transcript.
Consistent with the Order of Pre-hearing Instructions, the parties filed a Joint Pre-hearing Stipulation. Within the Stipulation, the parties have set out facts upon which they agree. The factual stipulations are reflected in the findings of fact to this Recommended Order.
On March 28, 2007, the hearing transcript was filed. On April 6, 2007, Respondent filed a Proposed Recommended Order.
On April 9, 2007, Petitioner filed a Proposed Recommended Order. The Proposed Recommended Orders have been considered in preparing the Recommended Order.
FINDINGS OF FACT
Stipulated Facts
Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes.
Respondent was (is) a licensed physician within the state of Florida, having been issued License No. 84357.
At all times material to this complaint Respondent's address of record was 68 East Ludlow Place, Citrus Springs, Florida 34434.
On or about May 18, 2004, Patient R.D., a 73-year-old male, presented to Citrus Memorial Hospital, Family Care Center in Lecanto, Florida.
Patient R.D.'s chief complaint on May 18, 2004, was of constipation and last major bowel movement on May 16, 2004.
On or about May 18, 2004, Patient R.D. was physically examined, and the examination revealed normal vital signs, moderately distended abdomen with slowed, but present bowel sounds in all four quadrants, no masses, and a nontender abdomen.
On or about May 18, 2004, Respondent ordered an abdominal flat plate and upright X-ray, which showed "obstruction with stool, air fluid levels."
On or about May 18, 2004, Patient R.D.'s diagnosis was constipation with partial bowel obstruction.
On or about May 18, 2004, the X-rays were interpreted by a radiologist with an impression of marked dilatation of small bowel, likely due to small bowel obstruction.
On or about May 18, 2004, Patient R.D. was instructed for treatment of his diagnosis to take Miralax powder as needed and milk of magnesia in between, keep fluid intake up and go to
ER (emergency room) if pain increased in the abdomen or fever or vomiting develop.
Respondent prescribed Miralax to Patient R.D.
Section 458.331(1)(t), Florida Statutes (2003), sets forth grounds for disciplinary action by the Board of Medicine for 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. Respondent's Care of Patient R.D.
Respondent received his Doctor of Medicine Degree from George Washington University. He became board certified in family practice in 1980 and was recertified in 1987, 1994, and 2001.
Respondent practices at the Allen Ridge Family Care Center, an urgent care facility that is part of Citrus Memorial Hospital.
On May 18, 2004, a history was taken from Patient R.D. The patient complained of constant mild abdominal pain. The patient reported that he had not had a stool for two days, that his last bowel movement (bm) had occurred two days earlier. The patient was complaining that he was constipated and that his stomach felt full.
When Respondent saw Patient R.D., it was their first encounter. Respondent examined the patient. When Respondent asked the patient if he had blood or black stool, Patient R.D. denied either condition. Having a complaint of GI problems, Respondent was trying to ascertain whether the patient had internal bleeding when inquiring about the condition of the stool.
Respondent, when recording information on
Patient R.D.'s chart, noted that the distention and constipation were mild and constant. Respondent inquired of the patient concerning diarrhea, chills, vomiting, and issues with his appetite and noted that the patient was not suffering from any of those symptoms, other than to note that the patient's appetite was slightly down. The fluid intake was noted as being adequate for purposes of hydration. A nurse practitioner had noted the nature of the medications the patient was taking.
Respondent did discuss those medications with the patient. Respondent was aware of the patient's vital signs and found them to be normal, as taken by a nurse.
Respondent noted that the patient was in "no apparent distress," that is, he did not look sick by appearance. Instead the patient appeared well.
Respondent noted in the chart that the bowel sounds were slowed but present in all four quadrants. Respondent wanted to determine whether the patient had absent bowel sounds or very rapid sounds that would have alerted Respondent to difficulties experienced by the patient. Absent bowel sounds represent some inflammatory process in the abdominal cavity such as appendicitis or a kidney stone, whereas rapid bowel signs signify a possible obstruction.
Respondent noted "negative bruits," referring to the use of the stethoscope on the abdomen to listen for arterial sounds.
Respondent found the liver and spleen to be normal upon examination. There was no hernia. There was "no CVA pain," referring to pain in the back that would be accompanied by flank pain.
When Respondent palpitated the patient's abdomen light and deep, the patient reported that he experienced no pain. He responded by saying that he "feels full," which Respondent understood was in association with moderate distension.
Before the visit, Respondent had experience with the type of patient represented by Patient R.D. Respondent has treated patients over time who have small bowel obstructions and who have constipation.
Respondent's working differential diagnosis was that the patient was probably constipated, as had been reported. Respondent decided to have an X-ray made of the patient's abdomen. The decision to order an X-ray was in view of the distension. Respondent reviewed the results of the X-rays. The X-ray series were both flat and upright. The flat X-ray refers to lying flat (supine). That approach was requested in that Respondent was trying to determine how much stool and air were in the abdomen. Respondent was using the results of the X-ray to try to determine if the patient had a potential for obstruction.
Respondent's impression of the results of the X-ray was that the rectum area showed stool in it. There was some indication of stool in the colon. Respondent was unsure as to whether there was stool in the small bowel. There were air fluid bubbles in an area that probably reflected the small bowel.
Ultimately Respondent reached a diagnosis of constipation with partial bowel obstruction.
Respondent, when he looked at the X-rays, went back to discuss the findings with the patient and said:
Your x-ray does not look good. It has air fluid levels. You could have a problem here. It does not match up with your exam and your vital signs. You got a bad x-ray.
The response by the patient was something to the effect that he did not care if he had a bad X-ray. He was constipated and he wanted something for his constipation. Respondent elected to give the Petitioner Miralax powder and give him precautions if anything developed such as abdominal pain, fever, or vomiting that was not in evidence at the moment, that the patient should go to the emergency room.
Based upon the X-ray results, Respondent noted in his testimony that the patient:
. . . wasn't out of the woods as far as I was concerned yet. Our standard procedure on a patient like this, is you get these air
. . . you get something like that back . . .
. probably, went in and recommended that he go to the emergency room.
Respondent goes on to say in his testimony:
. . . now if everything looked o.k. on this, this guy would have his Miralax prescription, be out of the door, and I wouldn't even see him if he had a normal x- ray. I went in the room and I talked to the guy and I said, look you got this and it could be obstruction, and he goes, 'what's obstruction' I said, well, just what we've been talking about this morning, blah, blah, blah. Pain, increase, bowel sounds, vomiting, 'Do I have any of that?'
Respondent then describes the verbal exchange between the patient and Respondent as to the severity of the situation, and Respondent says in his testimony ". . . he won."
Respondent indicated that the patient convinced Respondent that he was not ill.
In summary, the Respondent told the patient that he could be in trouble or he might be fine.
Respondent was also aware of other cases as he describes:
. . . a certain percentage of people admitted for partial bowel obstruction like this that go through the hospital and has got to be a significant that go home the next day. They poop and go home the next day, 30 or 40 percent, o.k. So this guy could be that guy easily because he had symptoms so -- and he is not going to the ER because he waited two hours, three hours, whatever it was. I've seen nursing home patient's x-rays twice as bad as that and they are constipated and they are not in pain, so I had experience with these patients that some of them are not in trouble. I told this guy, you could be in trouble and this is -- and he said, 'I just need something for my constipation'.
Respondent recognizes that the patient was coming to him for medical care and that he was obligated to determine if the patient was ill and that he could not rely completely upon someone else's ability to convince him of the circumstances. Respondent did not find the patient to look ill and indicated through his testimony that the patient ". . . was not in any trouble." Respondent did not find the patient in acute distress at the time the patient was seen.
Respondent believes that had the patient been suffering small bowel obstruction when he was seen, that instead of moderate distension there would have been severe distension, and instead of the bowel sounds slow and present, they would have either been absent or increased. There would have been tenderness in the abdomen. There may have been a mass where none was found on examination. There was no finding of colicky pain, which Respondent considers to be the gold standard of bowel obstruction, crampy abdominal pain in severe waves that "double you over."
Respondent called the patient's condition constipation with partial obstruction because of the findings in the X-ray. Respondent recognizes that there was some obstruction. He attributed the bowel obstruction to constipation caused by feces.
However, in making his choices for care Respondent recognizes that distension is a symptom of obstruction. The inability to defecate is a symptom of obstruction.
Respondent did not rely upon the radiologist's reading and report concerning the X-rays when making his choices for Patient R.D.'s care because he did not have the report at that time.
Respondent recognized the Physician's Desk Reference (PDR) available on May 18, 2004, as a reference source and in its discussion of Miralax was an authoritative source and that according to the PDR, it considered Miralax as contraindicated for patients who are known or suspected of having small bowel obstructions.
Expert Opinion
Dr. James Schaus is licensed to practice medicine in Florida and board certified in family practice. He was offered as an expert to express an opinion concerning Respondent's care provided Patient R.D. on May 18, 2004. To prepare him for that assignment he reviewed investigative materials from the Department, Respondent's records and other available records that pertain to Patient R.D.'s care. When asked to express an opinion concerning whether Respondent met the applicable standards of care as defined by Florida Statutes in the examination, diagnosis and treatment of Patient R.D., Dr. Schaus expressed the opinion that Respondent:
. . . deviated from the standard of care in this case by failing to refer the patient to a hospital for immediate further evaluation of the small bowel as indicated on the abdominal x-ray and the physical examination finding of a distension. The abdominal x- ray revealed multiple air and fluid filled loops in the small bowel which are marketedly dilated and associated small bowel air fluid on upright films. A small amount of air, stool, within colon,
impression marked dilation of small bowel likely due to small bowel obstruction.
Dr. Schaus' view of the definition of "standard of care," is the "failure to practice medicine at a level of care, skill, and treatment which are [sic] recognized by a reasonably prudent similar acting physician as being acceptable under similar conditions and circumstances."
Dr. Schaus went on to state the opinion:
I believe that these x-ray findings taken together with the fact that the patient was distended on the physical exam and complained of some pain with the distension of abdominal wall obligated Dr. Hopkins for immediate further hospital evaluation of this patient. I also believe that
Dr. Hopkins deviated from the standard of care by prescribing Miralax to the patient who had the diagnosis of partial small obstruction.
In addition to expressing the opinion that Respondent should have arranged for immediate hospitalization of the patient diagnosed with partial small bowel obstruction, and the problem with Miralax, Dr. Schaus expressed the opinion that there was a deviation from the standard of care for the failure to do a digital rectal exam on the patient.
Dr. Schaus expressed an opinion that Respondent should have used a digital rectal exam with this patient to determine the presence of stool, occult blood, and the condition of the prostate and to check for rectal or perianal masses. This was
the standard of care that should have been pursued in this case because the patient complained of constipation and possible bowel obstruction. If an impaction of stool were found, this would aid in the diagnosis. It would be properly considered the cause and would constitute the diagnosis. If the digital rectal exam revealed gross blood that is important, or occult blood on the stool sample as detected through a chemical test, those findings would be helpful as well. Gross blood refers to visible blood. It is bright red or darker colored. If a mass is found, it might be an indication of colon cancer.
As Dr. Schaus explained, the presence of blood indicates a more serious problem in that the typical constipation does not bleed.
Dr. Schaus perceived the case involving Patient R.D. as one in which constipation was the patient's presenting complaint, setting up the possibility that it was in view of constipation as such or could be from bowel obstruction.
Dr. Schaus expects the physician to determine that spectrum from the very benign to the very serious. In his review of the record, Dr. Schaus notes that the patient had an obstruction as evidenced by Respondent's diagnosis of obstruction. In particular he emphasizes the diagnosis of "constipation with partial bowel obstruction." In his testimony, Dr. Schaus had referred to small bowel obstruction in his impression of the
findings by Respondent but later acknowledged in his testimony that Respondent had described a condition which was "partial bowel obstruction." The obstruction would be found within the intestinal tract. The nature of the blockage in Dr. Schaus' opinion can be a partial blockage that would limit the passage of stool or a complete blockage that can cause more serious problems.
In this case, Dr. Schaus believed that it was clearly indicated that the patient had a significant bowel obstruction and that it was a small bowel obstruction and the patient needed to be admitted to the hospital for further evaluation and treatment. Dr. Schaus considers the terms "small bowel" to be synonymous with "small intestine."
Dr. Schaus, in expressing his opinion, relies upon Respondent's interpretation of the X-ray where the Respondent notes "abdominal flat and upright obstruction with stool, air fluid levels."
Dr. Schaus expressed the opinion that Respondent should have proceeded logically with the next step after discovering the small bowel obstruction, which was to make sure that the patient receives immediate evaluation and treatment in a hospital setting. The treatment that was given was on an out- patient basis with instruction for the patient to use Miralax as needed, with milk of magnesia PRN and to keep his fluid intake
up and to report to the emergency room if he had problems with abdominal pain, fever, or vomiting. That approach was not acceptable in Dr. Schaus' opinion given the signs, symptoms, and radiographic findings in relation to Patient R.D.
By choosing to have an abdominal X-ray performed on Patient R.D., this was an indication to Dr. Schaus that Respondent believed the patient was experiencing something other than typical constipation. A patient who has only constipation would not be subject to an abdominal X-ray.
Concerning the prescription of Miralax, Dr. Schaus noted that this medication is an osmotic agent. It is considered a fairly powerful laxative. It is designed to cause the stool to retain water leading to a softer bowel movement, but it can be a dangerous treatment or contraindicated in a patient with known or suspected bowel obstruction as mentioned in the PDR. Dr. Schaus considers the PDR to be authoritative, and it is a commonly-used reference source for prescribing medications. When explaining the circumstances concerning Miralax, Dr. Schaus commented that the absorption of water is potentially dangerous in the instance where you have a blockage and you are promoting an expansion in the stool. This patient had partial bowel obstruction and Respondent prescribed the medication.
Dr. Schaus believed that the patient could have had the entire spectrum from simple constipation to a complete bowel obstruction, because a patient may present with a wide variety of symptoms. In this case, the typical expectation of nausea and vomiting does not overcome the necessity for having a high- end suspicion of serious problems in the interest of not overlooking something.
Dr. David A. Weiland, Jr., is licensed to practice medicine in Florida. He is board certified in internal medicine. His practice principally involves care of adult patients. In the past, he has taught family medicine for a period of almost ten years. Patient R.D. was an elderly patient, a type of patient seen in family practice.
Dr. Weiland occasionally uses the PDR when he is unaware of a drug, or, if a drug is new, he will look it up in the PDR in discussing dosage or potential drug interactions. He sees the PDR as one reference source. It serves as a guide in prescribing.
Dr. Weiland sees the definition of standard of care as being "that practiced by a prudent clinician in similar circumstances, with similar findings."
In preparing himself to offer testimony, Dr. Weiland reviewed the Respondent's medical records in association with Patient R.D. He considered those records to be sufficient for
him to render an opinion about the care provided Patient R.D. by Respondent.
Dr. Weiland in his practice deals with 73-year-old males, such as Patient R.D. He deals with males who have constipation. Dr. Weiland has dealt with patients with distention of the abdomen.
At present, Dr. Weiland's predominant practice is in hospice care. Many of his patients are severely constipated because of the use of narcotics due to the nature of their illness in the hospice setting. In deciding the choice of treatment, the choice of medications for addressing a 73-year- old with distention and constipation for two days, in his practice, Dr. Weiland relies on trials and failures or successes with the use of previous medications and an understanding of the illness and the degree of illness. He looks for symptoms such as diarrhea, pain associated with a fecal mass of the rectal wall, nausea, and vomiting, to guide him in deciding where the obstruction may be located and how to address the suspected obstruction.
According to Dr. Weiland, you need to encourage the forward motion of the bowels in elderly patients.
Dr. Weiland uses Miralax in his practice. He describes it as a promotility agent, an agent that allows the bowel to move more functionally. Miralax is not a drug that
Dr. Weiland routinely prescribes. He just does not use the drug often, even though he understands it to be a very popular laxative.
Dr. Weiland believes that Miralax is contraindicated for people with mechanical bowel obstruction, meaning anything mechanical that causes the bowel to be obstructed which could be cancer, adhesions, or twisting. The complete bowel obstruction, regardless of the reason, would be contraindicated for use of Miralax. With a partial obstruction, it is not clear to him whether Miralax is contraindicated. If there is stool movement forward, there is no absolute contraindication. The fact that the patient was not vomiting was an indication to Dr. Weiland that the stool was moving forward. With a complete bowel obstruction, the patient would present nausea and vomiting.
Dr. Weiland agrees with the PDR warning that Miralax is contraindicated for patients who have known or suspected bowel obstructions. Symptoms suggestive of a bowel obstruction present would be nausea, vomiting, and abnormal distention and should be evaluated to rule out the bowel obstruction before using Miralax therapy, as explained in the PDR. Dr. Weiland thinks the key elements in the evaluation of those symptoms relate to nausea and vomiting and a patient with extreme nausea and vomiting should not be given promotility medication. Therefore, Dr. Weiland's opinion concerning the use of Miralax
is conditioned upon those symptoms in relation to nausea and vomiting.
Concerning general contraindications for using medications, Dr. Weiland is familiar with a medication by its general use, having looked it up on the PDR, and he has used other texts for medications, pharmacopeia. Dr. Weiland's response to contraindications depends on whether they are considered as absolute contraindications or relative contraindications. He sees the process of determining the use of the medication as dependent of the patient's underlying situation and the whole clinical condition.
Dr. Weiland is also familiar with milk of magnesia, which is a chemical laxative.
In addressing a patient's condition, Dr. Weiland treats the symptoms about 95 percent of the time. He uses additional testing when he confronts something unusual. For example, severe nausea would lead him to consider the use of X-rays. Other examples of a patient's circumstances in his
experience that might cause the use of an X-ray or CT scan would be severe pain that was in association with a history of a particular malignancy known to cause complete obstruction, ovarian cancer or prostate cancer. Dr. Weiland would be impressed with passing significant amounts of blood in the stool, bloody diarrhea, high fever, nausea, and vomiting.
But most constipation he treats initially, medically, and it would be necessary that he would have other of the issues that he described going on before it would warrant further investigation.
Dr. Weiland explains that most treatments of small bowel obstruction are conservative initially. If the patient presents with a complete bowel obstruction as evidenced by nausea, vomiting, that patient is admitted to the hospital and the management involves bed rest and the provision of IV fluids to see if the patient resolves the situation. To determine whether there is a small bowel obstruction, two factors enter in, according to Dr. Weiland. One is the clinical presentation, which is abdominal pain, marked distension, nausea, and vomiting. If one of those factors is not present, Dr. Weiland does not believe that it would necessarily be considered as being a small bowel obstruction. He thinks that there is the possibility of confusing obstruction, in the sense of whether it is partial or complete. Dr. Weiland understands the differences between patients and the way they present abdominal pain and distension could be explained by lots of things, among them bowel obstruction.
Concerning the Patient R.D. in his clinical presentation, considering the patient's appearance, vital signs, lack of nausea and vomiting no symptoms, Dr. Weiland would not
have thought he was dealing with a bowel obstruction. The slow bowel that is described would not lead Dr. Weiland to conclude otherwise. The Respondent's impression concerning the bowel obstruction was based on X-ray findings, as Dr. Weiland perceives the matter. Dr. Weiland would not have gotten those X-rays. He believes that X-rays can sway you in the wrong direction and they do not always represent bowel obstruction.
If the patient had presented looking "relatively toxin," Dr. Weiland would have ordered films, and, when he got those films, it would have confirmed the condition.
Dr. Weiland proceeded with his opinion based upon the belief that Respondent reached the diagnosis of constipation with partial bowel obstruction after the X-ray results were known.
Dr. Weiland looked at Patient R.D.'s X-rays. He found them to be abnormal in that there is evidence of dilation in the case because of striations, and there are fluid levels. In his experience, not all fluid levels are obstructions. Sometimes they are caused by other abnormalities.
Dr. Weiland expressed the opinion that the standard of care for a patient like R.D. is that you look at the patient, determine the patient's symptoms, and make a clinical recommendation with a follow-up, and, if the patient systems
worsen, then the patient should go to the emergency room for care.
Dr. Weiland believes that partial small bowel obstruction could be a life threatening condition. If the patient were facing a life threatening condition, Dr. Weiland would hospitalize the patient. Evidence of a life-threatening condition would be nausea, vomiting, inability to keep down oral medications, and abnormal signs none of which were evidenced in this case in the case of R.D.
Dr. Weiland considers abdominal distension to be a non-specific symptom in the patient, as well, abdominal distension with pain is non-specific.
Dr. Weiland would not have sent the patient to the emergency room on May 18, 2004. The conservative approach was acceptable. The causation of the problem would often times resolve on its own. Dr. Weiland refers to the Respondent having the luxury of looking at the actual patient and the patient's appearance and the vitals did not appear to be toxic.
Dr. Weiland agrees with the Respondent that if the patient developed fever or vomiting he should go to the emergency room. That would be evidence that the patient was experiencing a complete bowel obstruction.
Dr. Weiland's reading of the Respondent's reference to partial bowel obstruction is that it is based upon information that Respondent had, including the patient had fecal material, and that the patient is obstipated. Dr. Weiland believes that the partial bowel obstruction could be caused by any number of things, that have been mentioned in his testimony and reflected in this discussion and that the patient should be treated conservatively. If the problem resolves then that ends it. If it does not, then a CAT scan should be considered, and only upon the condition becoming a bowel obstruction that is complete will surgery be necessary.
Dr. Weiland agrees that the use of a rectal exam can aid in the determination of the cause of an obstruction.
Dr. Weiland expresses a preference to have a rectal exam documented in the patient chart.
Having considered the opinions of the medical experts in view of the choices Respondent made in caring for Patient R.D., Dr. Schaus' opinions that Respondent fell below the standard of care in prescribing Miralax with a diagnosis of partial obstruction and the opinion by Dr. Schaus that the Respondent's failure to refer the Patient R.D. to the hospital for further evaluation of bowel obstruction fell below the standard of care are accepted. Although the choice to proceed to the hospital or not would have been the patient's decision,
Respondent in his approach did not create that option. Rather he deferred to perceived limitations placed on the care by the patient, commenting that he was there principally for difficulties with constipation. That response to the patient's needs was below the standard of care. Respondent left available the choice to proceed to the emergency room if the patient began to have abdominal pain, fever or vomiting.
Dr. Schaus' opinion that Respondent fell below the standard of care in not performing a digital rectal examination on Patient R.D. is accepted when addressing the possibility of a bowel obstruction.
Mitigation/Aggravation
The record does not reveal any adverse outcome attributed to Respondent's care provided Patient R.D. on May 18, 2004.
There is no indication that Respondent has ever been disciplined in Florida or other jurisdictions while practicing
medicine.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding in accordance with Sections 120.569, 120.57(1) and 456.073(5), Florida Statutes (2006).
Respondent is a licensed physician in Florida. He was issued the license by the Department. The license number is 84357.
Through the Administrative Complaint, Respondent has been accused of the failure 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. The manner of the alleged violation is that Respondent fell below the standard in:
prescribing Miralax to Patient RD, a patient with a diagnosis of partial small bowel obstruction.
failing to refer Patient RD to a hospital for immediate further evaluation of small bowel obstruction.
failing to perform a digital rectal examination in a patient presenting with a possible bowel obstruction.
failing to test Patient RD's stool for occult blood.
As a consequence Respondent is alleged to have violated Section 458.331(1)(t), Florida Statutes (2003), which states in pertinent part:
(1) The following acts constitute grounds for . . . disciplinary action, as specified in s. 456.072(2):
* * *
(t) . . . 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, . . . '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. A recommended order by an administrative law judge or a final order of the board finding a violation under this paragraph shall specify whether the licensee was found to have committed . . . 'failure to practice medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances,' . . . and any publication by the board must so specify.
This hearing has been held recognizing the procedural expectations set forth in Section 456.073(5), Florida Statutes (2006), which states:
(5) A formal hearing before an administrative law judge from the Division of Administrative Hearings shall be held pursuant to chapter 120 if there are any disputed issues of material fact. The determination of whether or not a licensee has violated the laws and rules regulating the profession, including a determination of the reasonable standard of care, is a conclusion of law to be determined by the board, or department when there is no board, and is not a finding of fact to be determined by an administrative law judge. The administrative law judge shall issue a recommended order pursuant to chapter 120.
. . .
In accordance with Section 458.331(1)(t), Florida Statutes (2003), in this Recommended Order it must be specified whether Respondent failed to practice medicine with that level of care, skill and treatment which is recognized as being acceptable under similar conditions and circumstances. Ultimately, the Board in its Final Order must determine whether Respondent violated Section 458.331(1)(t), Florida Statutes (2003), as to the issue of pursuit of a reasonable standard of care, a legal conclusion. § 456.073(5), Fla. Stat. (2006). But not before findings of fact have been made concerning Respondent's "failure to practice medicine with that level of care, skill and treatment which is recognized as being acceptable under similar conditions and circumstances," to include the underlying facts that relate to patient care and the opinion of experts on standard of care.
This is a disciplinary case, for that reason Petitioner bears the burden of proof. That proof must be sufficient to sustain the allegations in the Administrative Complaint by clear and convincing evidence. See Department of
Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The term clear and convincing evidence is explained in the case In re:
Davey, 645 So. 2d 398 (Fla. 1994), quoting, with approval from Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).
The Administrative Complaint must provide reasonable notice to Respondent of the conduct that would warrant the imposition of discipline. See Cottrill v. Department of
Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996). Respondent was noticed concerning the care provided Patient R.D. on May 18, 2004. It emphasized the choices made in addressing the care at that time. The Administrative Complaint does not speak to the outcomes beyond that date as constituting a substantive violation.
Given the penal nature of this case, Section 458.331(1)(t), Florida Statutes (2003), had been strictly constructed. Any ambiguity favors the Respondent. See State v.
Pattishall, 99 Fla. 296 and 126 So. 147 (Fla. 1930), and Lester v. Department of Professional and Occupational Regulation, State
Board of Medical Examiners, 348 So. 2d 923 (Fla. 1st DCA 1977).
As referred to previously, the disciplinary response that may be imposed should Respondent be found in violation of Section 458.331(1)(t), Florida Statutes (2003), is set forth in Section 456.072(2), Florida Statutes (2003), which states:
When the board . . . finds any person guilty . . . of any grounds set forth in the applicable practice act, . . . it may enter an order imposing one or more of the following penalties:
* * *
Suspension or permanent revocation of a license.
Restriction of practice or license, including, but not limited to, restricting the licensee from practicing in certain settings, restricting the licensee to work only under designated conditions or in certain settings, restricting the licensee from performing or providing designated clinical and administrative services, restricting the licensee from practicing more than a designated number of hours, or any other restriction found to be necessary for the protection of the public health, safety, and welfare.
Imposition of an administrative fine not to exceed $10,000 for each count or separate offense. If the violation is for fraud or making a false or fraudulent representation, the board, or the department if there is no board, must impose a fine of $10,000 per count or offense.
Issuance of a reprimand or letter of concern.
Placement of the licensee on probation for a period of time and subject to such conditions as the board, or the department when there is no board, may specify. Those conditions may include, but are not limited to, requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.
Corrective action.
Imposition of an administrative fine in accordance with s. 381.0261 for violations regarding patient rights.
Refund of fees billed and collected from the patient or a third party on behalf of the patient.
Requirement that the practitioner undergo remedial education.
In determining what action is appropriate, the board, . . . must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the practitioner. All costs associated with compliance with orders issued under this subsection are the obligation of the practitioner.
Clear and convincing evidence was presented to show 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. When Respondent prescribed Miralax for Patient R.D., a patient whom he had diagnosed as having a partial bowel obstruction, the choice to prescribe that medication was contraindicated in that patient given the diagnosis of partial bowel obstruction. In addition,
Patient R.D. was experiencing abdominal pain and had distension. That was part of Respondent's diagnosis in relation to a problem of bowel obstruction, another reason not to prescribe Miralax.
Furthermore, Respondent violated the standard of care in not referring Patient R.D. to the hospital for immediate further evaluation of the bowel obstruction. Instead, he allowed the patient to talk him into the position of addressing the constipation with Miralax and milk of magnesia, without referral
for immediate care at the hospital. Respondent had also suggested that the patient increase his fluid intake.
Respondent left the possibility for treatment at the emergency room for another time should the patient experience abdominal pain, fever, or vomiting.
Respondent's suggestion that a certain percentage of cases such as Patient R.D.'s would resolve itself without the need for follow-up in the hospital does not justify the failure to refer the patient at the time the partial bowel obstruction was found.
Respondent violated the standard of care by failing to perform a digital rectal examination on Patient R.D. as a means to explain an obstruction.
The failure to test Patient R.D. stool for occult blood would be dependent upon obtaining stool. Respondent cannot be punished for failing to test a specimen which he did not have.
Otherwise for reasons that have been set out Respondent violated the standard of care. Thus, he violated Section 458.331(1)(t), Florida Statutes (2003).
Florida Administrative Code Rule 64B8-8.001, sets forth disciplinary guidelines for license violations. The suggested range of punishment for the first offense, which this
is, is "from two (2) years probation to revocation or denial and an administrative fine from $1,000 to $10,000."
Florida Administrative Code Rule 64B8-8.001(3) addresses aggravating and mitigating circumstances in determining an appropriate punishment where it states:
Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating factors the following:
Exposure of patient or the public to injury or potential injury, physical or otherwise: none, slight, severe, or death;
Legal status at the time of the offense: no restraints, or legal constraints;
The number of counts or separate offenses established;
The number of times the same offense or offenses have previously been committed by the licensee or applicant;
The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;
Pecuniary benefit or self-gain injuring to the applicant or licensee;
The involvement in any violation of Section 458.331, F.S., of the provision of controlled substances for trade, barter or sale, by a licensee. In such cases, the Board will deviate from the penalties recommended above and impose suspension or revocation of licensure.
Any other relevant mitigating factors.
Patient R.D. was not shown to have been injured by Respondent's choices in providing treatment. There was some risk of physical harm that could be severe. That risk was mitigated by the instructions Respondent gave the patient, should the patient begin to experience more severe symptoms than he had demonstrated when seen by Respondent. There were no legal restraints or constraints placed on Respondent at the time of the violation. The violation concerns a single count and several failures in judgment. No indication was given that Respondent has committed the same offenses at any other time.
Respondent has no disciplinary history. Respondent has not experienced pecuniary benefit or self-gain as a result of this violation. None of the violations concern themselves with the provision of controlled substances by the Respondent.
Based upon the findings of fact and conclusions of law, it
is
RECOMMENDED:
That a final order be entered finding Respondent in violation of Section 458.331(1)(t), Florida Statutes (2003), placing Respondent on a period of probation for one year,
issuing a letter of reprimand and imposing an administrative fine of $5,000.00.
DONE AND ENTERED this 1st day of May, 2007, in Tallahassee,
Leon County, Florida.
S
CHARLES C. ADAMS
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 1st day of May, 2007.
COPIES FURNISHED:
Ephraim D. Livingston, Esquire Dory Penton, Esquire Department of Health
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 Post Office Box 1772
Tampa, Florida 33602-1772
Larry McPherson, Executive Director Board of Medicine
Department of Health 4052 Bald Cypress Way
Tallahassee, Florida 32399-1701
Josefina M. Tamayo, General Counsel 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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 27, 2007 | Agency Final Order | |
| May 01, 2007 | Recommended Order | Respondent failed to refer the patient immediately. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs RONALD A. FORD, M.D., 06-003357PL (2006)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs HARRY M. ROSENBLUM, M.D., 06-003357PL (2006)
BOARD OF MEDICAL EXAMINERS vs. WILLIAM J. LEE, 06-003357PL (2006)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ABBAS SHARIAT, M.D., 06-003357PL (2006)
