STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Petitioner, vs. JOHN B. MILTON, M.D., Respondent. | ) ) ) ) ) ) ) ) ) ) ) | Case No. 07-3609PL |
RECOMMENDED ORDER
Notice was provided and a formal hearing was held in this case. The hearing dates were November 18, 2007, and January 28, 2008. The hearing took place in Deland, Florida. Authority for conducting the hearing is set forth in Sections 120.569, 120.57(1), and 456.073(5) Florida Statutes (2007). The hearing was held before by Charles C. Adams, Administrative Law Judge.
APPEARANCES
For Petitioner: Donald Freeman, Esquire
Staci Braswell, Esquire Allison M. Dudley, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: Kevin K. Chase, Esquire
Michael D'Lugo, Esquire Richard J. Brooderson, Esquire Wicker, Smith, O'Hara, McCoy,
Graham & Ford
390 North Orange Avenue Orlando, Florida 32801
STATEMENT OF THE ISSUE
Should discipline be imposed against Respondent's license to practice medicine for violation of Section 458.331(1)(m) and (t), Florida Statutes (2005)?
PRELIMINARY STATEMENT
On December 8, 2006, in Case No. 2006-04341 before the Board of Medicine (the Board), the Department of Health (DOH) brought an Administrative Complaint against Respondent accusing him of violations of the statute referred to in the Statement of the Issue. The Administrative Complaint was premised upon the following factual allegations:
On or about December 31, 2005, at approximately 1:40 a.m., Patient W.C., a then forty year-old man, presented to the emergency room at Bert Fish Medical Center in New Smyrna Beach, FL complaining of difficulty breathing, which he attributed to a possible allergic reaction to his wife's birds. He was examined and treated by Respondent, who was working in the emergency department at the time.
Respondent examined Patient W.C. at approximately 1:55 a.m. and noted that he was having difficulty breathing, had acute, severe, pharyngitis (inflammation of the throat) and was experiencing stridor at rest. Stridor is rough breath sounds indicative of respiratory obstruction. His oxygen saturation (O2 sat.) at this time was
10 % and his pulse rate 86. Respondent ordered Decadron (a steroid) and nebulized racemic epinephrine (aerosol adrenaline) to address the stridor.
Respondent examined W.C. again after several minutes of the therapy described in paragraph six (6) proved ineffective and Patient W.C.'s respiratory difficulties grew worse. Respondent examined W.C.'s mouth and throat and observed that his pharynx (back of the throat) was inflamed and the lymph nodes in his neck swollen. Respondent then ordered Solu-cortef (a steroid) and Rocephin (an antibiotic) in case W.C. was suffering from epiglottitis.
Epiglottitis is a bacterial infection that can cause swelling of the epiglottis. The epiglottis is a flap of cartilage that protects the entrance to the trachea, or windpipe.
The treatments described above were not effective and Patient W.C. continued to experience difficulty breathing, reporting that he felt like his throat was closing. At approximately 2:20 a.m. Respondent began preparations for orotracheal intubation.
Orotracheal intubation is a procedure in which a device called a laryngoscope is used to visualize a patient's glottis in order to introduce a tube into the trachea (called an endotracheal tube) to assist the patient in breathing.
Orotracheal intubation can be accomplished using the "conventional technique," in which the patient is under general anesthesia or has received local or topical anesthesia to the upper airway structures, or using "rapid sequence induction (RSI)." In RSI, the patient is given a sedative to relax him or her and a fast-acting paralytic agent to disable the patient's involuntary reflex to fight the intubation.
The paralytic agents used in RSI deprive a patient of the ability to breath on his or her own. Administering a paralytic agent
before securing an unobstructed airway is only appropriate in emergency situations, such as when a patient is experiencing acute respiratory or cardiac arrest.
Prior to Respondent's first attempt at intubating Patient W.C., W.C. called his wife and spoke to her for approximately one (1) minute, explaining what was happening and asking her to come to the hospital. W.C.'s O2 sat. at this point was 98%.
Respondent elected to intubate W.C. using RSI. He ordered Versed (a sedative), which was administered at 2:20 a.m. and Anectine (a paralytic agent) which was administered at 2:25 a.m.
Prior to undertaking Patient W.C.'s RSI, Respondent did not consult with or enlist the assistance of an anesthesiologist or surgeon.
Based on Patient W.C.'s O2 sat. and his ability to speak with his wife on the phone, at the time Respondent undertook W.C.'s RSI,
W.C. was not experiencing an acute airway, respiratory or cardiac emergency.
After W.C. was sedated and paralyzed, Respondent's attempt at intubation was unsuccessful because Patient W.C.'s epiglottis was swollen, preventing introduction of the endotracheal tube into the trachea. As a result, Respondent was unable to secure W.C.'s airway and W.C. was deprived of oxygen.
During the aforementioned attempt at RSI, Respondent failed to record Patient W.C.'s cardiac activity and O2 sat.
Respondent continued to attempt to intubate W.C. without success. W.C. became cyanotic (blue from lack of oxygen) so Respondent next attempted a crichothyroidotomy, again without success.
A crichothyroidotomy is an emergency puncture of the throat with a hollow needle to secure patient's airway for emergency relief of upper airway obstruction.
Dr. Robert Schreiber, the on-call general surgeon for Bert Fish Medical Center on December 31, 2005, was paged in his hotel room to assist Respondent at approximately 2:30 a.m.
Dr. Schreiber arrived at Bert Fish approximately ten minutes later. During this interval, Respondent continued to try to establish an unobstructed airway for Patient
W.C. without success.
When Dr. Schreiber began to treat Patient W.C., at approximately 2:40 a.m.,
W.C. was hypoxic (starved of oxygen) and in cardiac arrest.
Dr. Schreiber performed an emergency tracheotomy (insertion of an airway through an incision in the windpipe) and was able to establish good bilateral air movement, however, W.C.'s hypoxia and cardiac arrest proved irreversible and he was pronounced dead at 2:54 a.m.
Based upon the factual allegations, Respondent was alleged to have violated Section 458.331(1)(t), Florida Statutes (2005), as related in Count One in that:
27. 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;
by failing to consult with or elicit assistance from an anesthesiologist or the on-call surgeon prior to inducing paralysis in and attempting RSI on Patient W.C. on or about December 31, 2005;
by inducing paralysis in Patient W.C. prior to securing an obstructed airway when this method of intubation was not justified by W.C.'s symptoms.[1/]
Additionally Respondent was alleged to have violated Section 458.331(1)(m), Florida Statutes (2005), as related in Count Two in that:
30. Respondent failed to keep medical records that justified the course of Patient W.C.'s treatment in one or more of the following ways:
by failing to document symptoms in Patient W.C. justifying paralysis and RSI as opposed to other, less risky forms of securing an airway
by failing to document W.C.'s 02 sat. and cardiac activity during the RSI attempt and subsequent procedures described above.
Respondent was provided a form entitled "Election of Rights," in which he was allowed to choose among several options in addressing the Administrative Complaint. He chose option three which states:
Option 3. X I do dispute the allegations
of fact contained in the Administrative Complaint and request this to be considered a petition for formal hearing, pursuant to Section 120.569(2)(a) and 120.57(1), Florida Statutes, before an Administrative Law Judge appointed by the Division of Administrative Hearings. I specifically dispute the following paragraph of the Administrative Complaint:
He executed the election of rights form on December 19, 2006.2/ On August 9, 2007, DOH forwarded the case to the Division
of Administrative Hearings (DOAH) to assign an administrative law judge to conduct a hearing pursuant to 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. 07-3609PL. The assignment was to the present administrative law judge.
The hearing was originally scheduled to be heard on October 9, 2007. Upon a motion, the hearing date was changed to November 28, 2007. The case proceeded to hearing on
November 28, 2007. The hearing was not concluded until January 28, 2008.
Respondent's Motion in Limine regarding Respondent's personnel file and Respondent's Motion to Strike/Exclude the Testimony of Petitioner's Rebuttal Expert Witnesses were considered during the hearing and dealt with as explained in the hearing transcript.
Consistent with the Order of Prehearing Instructions, the parties filed a joint prehearing stipulation. In that submission the parties have set out facts on which they agree. The factual stipulations are reflected in the Findings of Fact to this Recommended Order.
At hearing Petitioner presented the testimony of William Haas, R.N..; Mary Boothe, R.N.; Steven Igrec, R.T.; John Murray, M.D.; and F.C., wife of Patient W.C.. Petitioner's Exhibits numbered 1 through 3 and 5 through 7 were admitted.
Petitioner's Exhibit numbered 3 is the deposition of Robert H. Schreiber, M.D. Petitioner's Exhibit numbered 6 is the
deposition of Bruce Goldberger, Ph.D. Petitioner's Exhibit numbered 7 is the deposition of Marie Herrmann, M.D.
Respondent testified in his own behalf and presented the testimony of Marlon Priest, M.D. Respondent's Exhibits numbered
1 through 4 were admitted. Respondent's Exhibit numbered 1 is the deposition testimony of Thomas R. Beaver, M.D. Respondent's Exhibit numbered 2 is the deposition testimony of Michael A. Evans, Ph.D. Respondent's Exhibit numbered 5 was
denied admission. It is the affidavit of Peter E. Fisher, M.D. This exhibit is included with the record.
On December 14, 2007, volumes one and two of the hearing transcript of November 28, 2007, were filed with DOAH. On February 13, 2008, a one-volume transcript of the January 28, 2008 hearing was filed with DOAH. Petitioner and Respondent filed proposed recommended orders, which have been considered in preparing the Recommended Order.
FINDINGS OF FACT
Stipulated Facts:
Petitioner is the state department charged with the regulation of the practice of medicine pursuant to Chapter 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes.
Respondent is John B. Milton, M.D.
Respondent is a licensed medical doctor in the State of Florida having been issued license ME 53961.
Respondent's mailing address of record is 4702 Van Kleeck Drive, New Smyrna Beach, Florida 32169.
Additional Facts:
Hospital Records (Petitioner's Exhibit numbered 1)
On December 31, 2005, Patient W.C. came to the Bert Fish Medical Center (Bert Fish) in New Smyrna Beach, Florida, at 1:40 a.m. He was 40 years old at the time. He was seen in the
Emergency Department at Bert Fish. Triage of the patient took
place at 1:43 a.m. The triage record reports that he walked in to the hospital complaining of his throat swelling and difficulty breathing. The record reflects that the patient was experiencing pain of an intensity level seven (7) in his throat. At the time his blood pressure was 153/83. His pulse rate was 88. His respirations were 20. His temperature was 98.2. His 02 sat. was
99.
In the heading within the Emergency Department Triage
Record, statement of "Previous Surgery/Other Medical Hx (referring to history)" it states "allergic reaction to birds with throat swelling, "
According to the Emergency Department triage nursing notes Patient W.C. was first seen by Respondent at 1:55 a.m. on
the aforementioned date. Respondent was serving in the capacity of emergency room physician at Bert Fish at the time.
Among the nursing note entries in the Emergency Department triage record for Patient W.C. are handwritten nursing notes that state:
At 2:05 Rocephin was given; at 2:20 a.m. pt. (patient) states throat closing saO2 98%; at 2:25 a.m. pt. (patient) tubed by Dr. Milton- placement checked tube pulled-(pt.) patient vent 100% O2 via ambu; at 2:31 a.m. crick. (cricothyroidotomy) by Dr. Milton tube inserted 100% 02; at 2:35 a.m. H/R 40's - atropine; at 2:37 a.m. b/p 213/90 P-87
Dr. Milton attempting crick 0249 epi 1 mg IV; at 2:41 a.m. Dr. Schreiber here; at 2:43 pt. (patient) tubed by Dr. Schreiber s/r 0 pulses and at 2:54 a.m. code called by
Dr. Milton.
The Bert Fish Emergency Physician Record refers to
Patient W.C.'s chief complaint as "shortness of breath." It states "pt (patient) seems to have acute severe pharyngitis and difficulty breathing and mild stridor at rest." The degree of
the condition is further described in the record as "moderate."
An associated symptom is listed under "Pulmonary," as "cough." It is noted in this record that the patient is experiencing a "sore throat." The Emergency Physician Record under the "Social Hx (history)," notes that the Patient W.C. was a "smoker" and
occasionally used "alcohol." No reference is made to the use of any other form of drugs.
On the patient chart describing a physical exam performed on the patient, the categories of "alert" and "anxious" are checked. The level of distress is described as "NAD." There is a reference to "pharyngeal erythema," associated with that entry a handwritten note states "mild stridor at rest." A
reference is made to "lymphadenopathy" both right and left "mild." There was no "respiratory distress" and "breath sounds
nml (normal);" Again the condition "stridor" is noted while the patient is "at rest." "CVS" is noted as regular rate rhythm with "no JVD."
On the same page as discussed in the preceding paragraph, within the patient record maintained by Bert Fish, under "clinical impression," Respondent notes several things in the overall experience in treating the patient. They are in turn:
acute severe pharyngitis/epiglottitis;
emergency cricothroidotomy
cardio pulmonary arrest and ER death.
These entries reflect events at the end of the case.
The medication administration record at Bert Fish in relation to Patient W.C. notes administration of Decadron (a steroid) at 2 a.m.; Solu-cortef (a steroid) at 2:02 a.m.; Rocephin (an antibiotic) at 2:05 a.m.; Versed (a sedative) at 2:20 a.m. and Anectine (a paralytic agent) at 2:25 a.m.
A separate set of entries is made in the Code Blue Record at Bert Fish, noting the administration of Epinephrine, and Atropine during the Code Blue response prior to
Patient W.C.'s death due to his cyanotic condition (lack of oxygen).
Nurse's notes on the Code Blue Record for Patient W.C.
maintained by Bert Fish state:
Upon me entering the room Dr. Milton was doing CPR on pt. Dr. Schreiber, Dr. Milton and the ER staff attending to pt. ER staff busy. I started scribing for them. Note pt. was in PRA throughout the code. Pt. was given 3 ep. & 3 atoprine total =
(-)response.
Respondent signed the Code Blue Record as physician.
The ER Physician's Order Sheet, as signed by Respondent concerning Patient W.C., in a shorthand reference, describes orders for nebulized racemic Epinephrine, which is an aerosol adrenaline agent, together with the Solu-cortef, Decadron and Rocephin.
In the records maintained by Bert Fish concerning Patient W.C., there is a handwritten note made by Respondent at 3:35 a.m., on December 31, 2005, following Patient W.C.'s death, which says:
S/P IV steroids, Racemic epinephrine PT
continued to c/o "getting worse" "can't breath." At times his respirations were gasping.
.. I discussed with him fact the he may require intubation & he understood. PT placed in TRI and preparation made for intubation. PT had secure IV site, Respiratory TX in Room to assist. S/P preoxygenation 1HR> 80 PT had IV Versed
and Anectine to facilitate intubation. The laryngoscope revealed a massive "beefy" appearance of the epiglottis. Attempted X 2 E 8.0 & 7.5 ET to secure an airway but Ø success. PT had attempts to ventilate E BVM Ø air movement. PT cyanotic @ this point so a scalpel was used to attempt a crichothyroidotomy. When a ETT was passed thru the incision however attempts to
ventilate were again unsuccessful.
Dr. Schreiber (gen surgery) had been paged and he responded. He was able to place a ETT in the airway but by now PT had arrested.
Monitor-bradycardia at this time ACLS measures were undertaken and PT given repeated doses of atropine/epinephrine/CPR-> ventilated E BVM. PT continued to have Ø response to proper ALS measurers and Resus efforts stopped @ 0254.
Patient Care Explained Nurse Haas
William Haas, R.N., was working at Bert Fish on the early morning that Patient W.C. was seen. Nurse Haas first saw
the patient around 1:55 a.m. He hooked the patient up to a monitor and took his vital signs. None of the readings were considered by the nurse to be abnormal. Those readings were blood pressure 153/83, heart rate 88, respirations 20, temperature 98.2. and O2 sat. 99%.
Patient W.C. was taken into treatment room 16 and was seen by Respondent and nurse Haas. Nurse Haas asked Respondent what Respondent thought was wrong with the patient. Orders were
given by the Respondent for 8 mg. of Decadron and 100 mg. of
Solu-cortef IV. The purpose of these medicines was to reduce inflammation. Both medications were steroids designed for that purpose. At that time Respondent gave an order for the
antibiotic Rocephin. Respondent also wanted a racemic Epinephrine treatment. That treatment was to be provided by the respiratory therapist.
When nurse Haas first saw the patient, the patient was complaining about difficulty breathing. Nurse Haas did not observe any manifestation of those difficulties.
At one point the patient told nurse Haas that he, the patient, was experiencing an allergic reaction to feathers or birds. The patient told nurse Haas by way of history that it happened to him in the past. (None of this was true. He had no allergy to birds. The patient's deception was never discovered by the hospital treatment team, and they all proceeded on the basis that the patient had a bird allergy.) On the evening before arriving at the hospital, the patient explained to nurse Haas that he went to bed about 9:00 or 10:00 p.m. and woke up around 1:00 a.m. with a raspy feeling in his throat and he felt like his throat was closing up. So he came to the emergency room for care.
After attending to the patient in treatment room 16, nurse Haas left the presence of the patient. He next saw the patient standing in treatment room 17 talking on the phone. This was around 2:20 a.m. The patient was again placed on a monitor to track his vital signs. Nothing about those vital signs appeared abnormal. At that time Mary Boothe, R.N., told nurse Haas that the patient was going to be intubated. Nurse Haas inquired of Respondent on the subject, and Respondent told nurse Haas that the patient wanted to be intubated and to get
ready to perform the intubation. The procedure for intubation that was being utilized by Respondent is referred to as rapid sequence intubation or RSI.
Nurse Haas retrieved Anectine and Versed to be administered in the intubation. The patient was told about the procedure for intubation. The patient was laid down. Nurse Haas gave the patient Versed and Anectine. The Versed was designed to, as nurse Haas describes it, "muddle the mind." The Anectine was an agent that would promote paralysis in the area where the intubation would occur.
When in treatment room 17, at around 2:20 a.m., the patient said to nurse Haas that the patient felt that his throat was closing. Those remarks were made when the patient was being hooked up to the monitor to measure his vital signs. This was the second time that the patient had mentioned his throat closing. He had made similar remarks when nurse Haas first saw him in treatment room 16.
Steve Igrec, R.T., participated in the intubation procedure in addition to nurse Haas, nurse Boothe and Respondent. Prior to the laryngoscope being introduced in the intubation procedure, nurse Haas did not notice any sharp decline in Patient W.C.'s vital signs.
When Respondent accessed the airway for Patient W.C., nurse Haas heard Respondent say, "Oh, he's got epiglottitis,"
while proceeding further with the intubation. Respondent was unable to intubate and removed the ET tube. Another tube was used to try and intubate, again without success.
Nurse Boothe
Nurse Boothe first encountered Patient W.C. after he had undergone his racemic Epinephrine treatment. He came out of the treatment room and told her that he did not feel that the treatment had worked. Respondent came by and the nurse repeated what the patient had told her. Nurse Boothe did not notice anything about the patient that made her believe that he was having difficulty breathing. He coughed and told her, "Can you hear it?" but he was not gasping for air, nor making gestures about his chest or throat. Respondent then offered the patient the option of being admitted to the hospital and continuing treatments by steroids to address his condition or putting him on a ventilator and letting him have the treatments through the ventilator. The patient elected the latter option. The ventilator option would allow the patient to be released the next day. The patient was told by Respondent that he would "knock him out" and put the tube in and give the patient the medication that way and that the patient's release would come the next day. Nurse Boothe did not hear the Respondent make any mention to the effect of what might happen if there were difficulties in intubating the patient.
The attempted intubation was made in the treatment room 17, which is also referred to as CC-1. The patient walked into the room. Once in the room nurse Boothe did not notice anything about the patient that indicated any difficulty breathing. The patient did mention that he was not feeling any better. Nurse Boothe overheard the patient talking on the telephone. On his end of the conversation he told his wife that he did not feel any better and that they were going to "knock him out" and put him on a breathing machine overnight and that he would see her the following day.
Nurse Boothe noticed that as the attempted intubation proceeded, the patient began to have trouble with the intubation. The equipment that was in the room for those purposes included the laryngoscope, the intubation tube, and a stylet. Before the tube was introduced the patient was being ventilated with a bag and mask.
When difficulties arose concerning the intubation, nurse Boothe left the treatment room to get a scalpel and to get what is referred to as a "cric" kit. That kit is a set-up that has been assembled to aid in providing emergency access to the trachea. The kit is not kept in treatment room 17. It was kept in another room on a respiratory cart. Nurse Boothe observed Respondent utilize the scalpel and the "cric." After the
Respondent experienced difficulties in this effort, the on-call surgeon was contacted by a secretary at the hospital.
The Surgeon Arrives
On December 31, 2005, Dr. Schreiber was the on-call surgeon at Bert Fish. When he was paged by the hospital, he called and was told that he needed to go immediately to the emergency room because of an airway problem. He received the call at approximately 2:30 a.m. He arrived at the hospital at 2:41 a.m.
Once at the hospital Dr. Schreiber, took over and performed surgery, insertion of the endotracheal tube, thereby ventilating the patient. That procedure by Dr. Schreiber was
quickly performed.
Mr. Igrec
Mr. Igrec administered the racemic Epinephrine treatment to Patient W.C. Prior to providing the treatment
Mr. Igrec visibly examined the patient to see if the patient was using assessory muscles to breathe or if he had any stridor, any wheezing or anything of that nature. He did not observe the patient using any assessory muscles to breathe. He did not notice the patient evidencing stridor, that is to say a high- pitched sound that is made when a person experiences upper airway obstruction. Mr. Igrec provided two of the treatments to Patient W.C. Before the second treatment, he visibly examined
Patient W.C. and did not notice the patient having difficulty breathing. Sometime during the course of the treatment, near the end, the patient asked the question, "How long is this going to take to work?" Mr. Igrec told the patient to give it time.
The patient appeared anxious. He did not appear short of breath.
Mr. Igrec reported to Respondent that he had provided Patient W.C. the second treatment. Following the second treatment, Mr. Igrec suggested to Respondent the use of Decadron to aerosolize Patient W.C. The racemic Epinephrine is a short- acting drug, and Decadron is a steroid that takes longer to work. In response, the Respondent told Mr. Igrec "We may have to intubate."
Mr. Igrec was called to treatment room 17 where Respondent told him that they were going to intubate Patient W.C. In preparation, an ambu-bag, mask, intubation
tube, pressure cuff, stylet and strap were retrieved. The cuff was used to keep the intubation tube in place during the procedure. The stylet keeps the tube rigid. Once the patient was sedated, Mr. Igrec began to use the ambu-bag with the patient. At that time, there was no difficulty using the bag, squeezing the bag to provide air into the patient's lungs.
Mr. Igrec had one hand on the mask over the patient's face and one hand on the ambu-bag. Respondent used the laryngoscope in
placing the tube, trying to look while placing the tube. The tube went into the stomach and not the trachea, such that ventilation did not occur. After that, when Mr. Igrec was bagging the patient he had a lot more resistance, to the point where Respondent had to hold the mask while Mr. Igrec bagged the Patient W.C. After a second attempt to intubate the patient, Respondent attempted to establish a surgical airway. Respondent was using a scalpel and palpating the patient to try and find the crichothyroid cartilage to create the necessary incision.
An incision was created. There was no success in placing an airway because the tube did not pass through the crichothyroid cartilage. Mr. Igrec understood this because the tube that he had cut down to place and to ventilate the patient could not be used because there was no hole in the trachea. Blood was pooling around the patient. Dr. Schreiber arrived and established the surgical airway. During this time, CPR was provided the patient under Code Blue conditions where the patient's heart had stopped beating. Attempts at reviving the patient were not successful.
Respondent and Patient W.C.
Prior to the occasion when he intubated Patient W.C., Respondent had vast experience in performing intubations. As he describes it, this is a necessary skill for an emergency room doctor, recognizing that having an unobstructed airway is vital
to a patient's survival. When intubating a patient, Respondent believes that you would want to do this before they "crash," before they lose their vital signs and become unconscious.
Before his attempt to intubate Patient W.C., Respondent had never had an instance in which he could not intubate the patient, a function that he had performed numerous times without the assistance of a surgeon or an anesthesiologist.
By contrast, before the circumstance that was confronted in Patient W.C., Respondent had never performed a crichothyroidotomy. He had been trained to perform that
procedure.
On December 31, 2005, nurse Haas approached Respondent and told Respondent that he placed Patient W.C. in a treatment room, described as the ortho room, and that the patient was
having trouble breathing and that he needed to be seen by Respondent.
Respondent inquired of the patient about the duration of his problem. He asked the patient if he had asthma. Had this happened before? The patient told Respondent that he was
having an allergic reaction to his wife's bird and that this problem that he was experiencing had occurred once years before. Respondent asked the patient if he was telling Respondent that
an hour ago he was fine and that now he was not. Patient W.C.
said "absolutely." When listening to the patient's lungs
Respondent did not notice any wheezing. There was no fever in the patient and the patient had not been sick. Unlike the other health care providers attending the patient, Respondent observed that Patient W.C. was having trouble getting air in, the patient was having inspriatory stridor. Respondent believed that the presentation by Patient W.C. was that of someone having an allergic reaction, with some airway compromise, he refers to as
laryngospasm. Respondent told nurse Haas to start an IV on the
patient and get respiratory therapy to provide a racemic Epinephrine treatment. The reasons for this decision was Respondent thought the patient was having an allergic reaction.
In particular, Respondent's impression at that moment was that the patient was someone having an allergic reaction to birds. Patient W.C.'s case was comparable to another case that Respondent had with a woman who had experienced an allergic reaction. In the case of the woman, the patient worsened and quickly had to be intubated.
The differential diagnosis that Respondent was proceeding with was that of a patient having an allergic reaction. The orders Respondent gave concerning administration of medications were designed to alleviate an airway problem associated with an allergic reaction.
Consistent with Respondent's orders, the nurse started the IV and provided medications, and the respiratory therapist
came to provide the aerosol treatment. Respondent observed that Patient W.C. was sitting up in bed and did not appear to be doing anything unusual.
Respondent received the report on the patient's status. Respondent went to see Patient W.C., who at that time was anxious and restless. He was having trouble getting air in and telling Respondent that he could not breathe and that his airway was closing off. Patient W.C. told Respondent that "you guys ain't helping me at all." Respondent told the patient that the treatment already provided was the normal thing that was done. Respondent got more history from the patient by asking the patient, "You were perfectly fine until an hour ago?" The response was "yes." Respondent asked the patient if he had not been sick at all. Again the response was "no." The Respondent asked the patient if he had a sore throat. The patient said a little bit. Respondent took a tongue depressor and looked in the patient's throat. It looked pretty normal. (The Emergency Physician Record indicated the patient had a sore throat.) The patient had very mild prominent lymph nodes but nothing out of the ordinary. There was still no wheezing. At that juncture, the decision was made to give Patient W.C. another aerosol treatment. In addition, the decision was made to provide antibiotics in case there was some tracheitis, pharyngitis. It
was anticipated that the antibiotics would take 24 hours to have any effect.
Epiglottitis was a condition at the bottom of the list on the differential diagnosis. Respondent's experience with that condition was that a patient would be sick for a period of time before the condition worsened. Nothing in Patient W.C.'s presentation led Respondent to believe that he had epiglottitis at that point.
By way of history, there was no indication from the patient that he had used cocaine within 24 hours of the time of his visit to the emergency room. (Indeed subsequent toxicology studies revealed recent use of cocaine.) Had such use been reported Respondent would have acted differently in treating Patient W.C.
In his second encounter with the patient on the night in question, the patient told him several times that his airway was closing off and that he believed that any second he was not going to be able to breathe. In reply, Respondent told
Patient W.C. that the normal things to address his condition had been done, but there was one other thing that could be done and that would be to intubate Patient W.C. Respondent explained that it meant that they would lay the patient in a critical care room and render him unconscious and take a breathing tube and put it into his lungs and admit Patient W.C. to the hospital.
This would then be followed by 24 to 48 hours of ventilatory support with use of steroids to address swelling. Patient W.C. told Respondent "let's do it quick."
Respondent told a nurse to gather the standard rapid sequence medication, which in this instance involved the use of Versed and Anecitine.
In the procedure room where the intubation was attempted, the procedure commenced with the patient having a good heart rate. There was a crash cart available in case there were problems. At the moment, Respondent continued to believe that the patient was experiencing an allergic reaction.
Although the patient could have been experiencing epiglottitis secondary to infection, the patient did not show any signs or symptoms of that condition, indications of an on-going infection such as a fever. He was not sweating, his heart rate was not rapid.
Once in the treatment room where the intubation was attempted, the patient worsened. Patient W.C. was gasping. He closed his eyes a second. The respiratory therapist Mr. Igrec experienced problems bagging the patient. Efforts by Respondent and the respiratory therapist were not succeeding in getting air into the patient.
When Respondent looked in, using the laryngoscope, he noticed something that he had not encountered before.
Patient W.C.'s epiglottis had the appearance of a "mushroom."
It did not appear as normal anatomy. Respondent described it as a "moonscape." When Respondent looked into the patient using the laryngoscope, he describes the "picture" as looking like a scorched airway when viewing the larynx and the epiglottis. Now that he had observed the epiglottitis, Respondent decided to try and "get under it" using the ET tube. He encountered a complete blockage. Respondent then asked for a smaller tube. The smaller tube did not work. Efforts at bagging the patient were not successful. Respondent concluded that he could not intubate the patient and could not ventilate the patient in that manner, leaving him the only choice, in his perception, to deal with the obstruction by establishing a surgical airway.
Respondent asked for a scalpel to perform a "cric." Respondent also told someone to call and get the surgeon and indicate that there was an airway emergency and to come immediately, as Dr. Schreiber did.
Respondent took the scalpel and located the crichothyroid membrane below the crichothyroid cartilage and made an incision and air bubbled out. Respondent widened the incision, as he had been trained to do in a course dealing with trauma associated with the airway. Respondent took the ET tube that he had been using and inserted it. It went in smoothly and the treatment team was able to bag the patient. Respondent then
noticed that the heart rate was dropping and that the "stats" were not coming up. Respondent then observed that the patient's neck was bigger. What had happened was that the tube had slipped out of the incision, tracking anteriorly over the trachea and the air was being introduced into the neck. Once the subcutaneous emphysema was seen in the neck, it occurred to Respondent that the tube was in the wrong place. The patient was bleeding profusely. There was an effort at reintroducing the tube but the neck had become more swollen, and the tube could not be replaced. A nursing supervisor, Tom Frith, went to the next trauma room and took one of the crichothyroidotomy kits and brought it back. Respondent was not trained to use that kit. He had seen the kits used at a demonstration. The kit was opened. Respondent took a needle from the kit and tried to find an airway but was unable to locate the airway that had been created because efforts at aspiration produced more blood.
Other equipment in the kit was utilized to try to replace the endotracheal tube back in the patient, but the field would quickly fill with blood and the tube could not be placed into the membrane.
When Dr. Schreiber arrived, using the skill of a surgeon, not that of an emergency room doctor, he performed an emergency tracheotomy on Patient W.C.
Respondent acknowledges that persons suffering from an allergic reaction have a common presentation where they experience hives and itching. Some people have wheezing. Patient W.C. had none of these symptoms. Nonetheless, the patient appeared to Respondent to be having an allergic reaction involving the airway Respondent describes as laryngospasm. Respondent understood the patient's condition to be one in which he was able to move about and speak but he was unable to get air in. While able to compensate for that condition for awhile, that ability did not last.
Respondent had never seen a patient with epiglottitis.
Hypothetically, if a patient were perceived as having that condition, Respondent would consult with a surgeon or an anesthesiologist, if he had time. If confronted with classic signs of epiglottitis, Respondent would start an IV, give the patient supplemental oxygen and not attempt intubation unless the case was emergent. Given sufficient time, the patient would be taken to an operating room and an anesthesiologist could attempt intubation, failing which a surgeon would be available to address the obstruction by placing a surgical airway. This case became one of an emergency, and Respondent took the measures he deemed appropriate.
Concerning notes made pertaining to treatment provided Patient W.C., that record was provided after Patient W.C. died.
Given the volume of patients that were being seen in the emergency room, other patients as well as Patient W.C., five sets of records and tests were being established aside from Patient W.C. As a consequence, Respondent was doing paperwork on those patients and telling nurses what to do for Patient W.C. Only after the attempts at trying to save Patient W.C. were unsuccessful and after talking to Patient W.C.'s family did Respondent turn his attention to the medical records for
Patient W.C.
Expert Opinion
Dr. John Murray is an emergency physician at Central Florida Regional Hospital in Sanford, Florida. He is licensed to practice in Florida and has been since 1983. He is also licensed to practice in Alabama.
Dr. Murray attended medical school at the University of South Florida in Tampa, Florida. He did his residency at the University of Alabama in Tuscaloosa, Alabama. His residency was in family practice.
Dr. Murray practiced in Tuscaloosa, Alabama, in emergency medicine, until four or five years ago. He then entered family practice for about three years. Following that time, he returned to practice in emergency medicine.
Dr. Murray is board-certified in family practice and emergency medicine.
Dr. Murray was received as an expert in emergency medicine to allow him to offer his opinion as an expert.
Dr. Murray served as Petitioner's consultant in the case and was presented as its witness at hearing.
To prepare himself to testify, Dr. Murray reviewed the Bert Fish hospital records relating to Patient W.C., the autopsy report, the Administrative Complaint, correspondence from Respondent's attorney, Respondent's deposition, the deposition of the nurses who treated Patient W.C. at Bert Fish, the deposition of the respiratory therapist involved with
Patient W.C.'s patient care, and the toxicology report pertaining to Patient W.C.
Having prepared himself Dr. Murray testified concerning Respondent's performance when measured against the expected "standard of care." In offering his opinion,
Dr. Murray conformed to the expectation that Respondent's performance meet what was minimally acceptable in the standard of care.
Dr. Murray does not believe that Respondent met the standard of care incumbent upon Respondent. In Dr. Murray's opinion, when a patient is seen in an emergency room the development of the differential diagnosis begins with the worse case scenario. In Patient W.C.'s case, the first consideration in the differential diagnosis should have been epiglottitis,
recognizing that the main problem in the condition is inspiratory stridor, the closing of the airway or the upper airway which may cause the patient to die. Therefore, the physician should do everything possible to assure that this does not happen.
Dr. Murray believes that the patient was presenting with signs and symptoms of epiglottitis when he arrived at the emergency room at Bert Fish.
Dr. Murray believes that when Respondent decided to intubate Patient W.C., it should have been anticipated that there was going to be a very difficult procedure if the patient had acute epiglottitis. Sometimes the intubation fails and there is the need to provide a surgical airway. Because Respondent did not anticipate that difficulty, the intubation procedure was not properly "setup," according to Dr. Murray. That setup would envision dealing with intubation to potentially be followed by the need to provide a surgical airway.
Given the possibility that the patient had epiglottitis, it was important to have the most experienced person available to perform the intubation. Dr. Murray believes that would be an anesthesiologist. Beyond that point, if the surgical airway is needed, a surgeon should be available to provide a surgical airway.
Dr. Murray believes there was time to have a successful intubation, or if not, the provision of a successful airway by surgery and these arrangements were not made.
Notwithstanding the patient's reported history, recognizing the symptoms present, Dr. Murray did not believe that the patient was suffering from an allergic reaction.
Nothing in the medical records suggested to Dr. Murray that Patient W.C. was under the influence of cocaine when he was seen at Bert Fish.
Commenting on the medical record where the term "pharyngeal erythema" was circled, Dr. Murray explained that pharyngitis is a form of infection either viral or bacterial in relation to the red or sore throat seen in the back of the throat of Patient W.C. when examined by Respondent. Respondent also made reference to lymphadenopathy both right and left, swollen lymph nodes. Patient W.C. was experiencing inspiratory stridor, difficulty in getting air in to his lungs. With inspiratory stridor, swollen lymph nodes and a red and painful throat, Dr. Murray said he would be concerned about
Patient W.C.'s having an infection. Dr. Murray was concerned that if Patient W.C. had a lot of inspiratory stridor that the condition might be epiglottitis. With infection and stridor, the airway can close quickly. These circumstances could make intubation of the patient difficult, if not impossible.
Dr. Murray acknowledges that epiglottitis was on Respondent's differential diagnosis for Patient W.C.
Respondent's orders for use of racemic Epinephrine through nebulization and the provision of steroids, Decadron and Solu-cortef were appropriate in Dr. Murray's view. Repeating the nebulization would have been appropriate in dealing with an allergic reaction which was the number one condition treated by Respondent. Dr. Murray speaks of the use of antihistamines as well.
Dr. Murray opined that as long as Patient W.C. was perceived as having an allergic airway problem, the patient would be treated with updraft treatments and antihistamines, if the patient remained stable and did not appear to be "going down hill and crashing." If the patient is "crashing," stops breathing, then a response to the condition would be necessary before the patient had respiratory arrest. However, with epiglottitis most patients would have to be intubated to protect the airway. The condition would be treated as an infection with use of an antibiotics and steroids over time while being cautious about the patient having his or her airway close off.
Criticism that Dr. Murray has of Respondent's care was not the basic idea that the patient was intubated to address epiglottitis. It was the expectation that intubation need not be done unless it was absolutely an emergent circumstance, i.e.,
the patient had stopped breathing. If there is suspected epiglottitis, the physician should not use a tongue blade that may cause spasms or a laryngoscope. The physician should not paralyze the patient. The doctor is going to be confronted potentially with the fact that there is "no hole" to put the tube, in an attempt at intubation and it becomes necessary to "do something and get an airway in." Again the arrangement that needs to be made, in Dr. Murray's opinion, is the double setup to address the intubation and possible surgical airway.
Dr. Murray does not believe that Respondent had the needed equipment to address the patient's condition when he began the intubation. In particular, the necessary equipment for the second step in the double setup, that of providing a surgical airway had not been sufficiently arranged by Respondent.
Only in the instances where the patient had stopped breathing and Respondent had no time to call in other physicians would it be appropriate to paralyze the patient and attempt the intubation. Dr. Murray does not believe that the patient was dying, and there was the opportunity to call in the surgeon who was available in eight minutes, to provide assistance if one anticipates difficulty.
Dr. Murray described three methods of addressing the surgical airway. One is crichothyroidotomy, which was attempted
here. The second method is jet insufflation used in pediatrics but also taught for use in adults. The third method is the use of a needle with a catheter.
Dr. Murray explained that if using the crichothyroidotomy is a procedure that is comfortable to the physician, then there is no necessity for redundancy beyond the use of that method for providing a surgical airway. Redundancy would be the use of the kit known as Seldinger that causes a small puncture wound. This method is a new technique, an alternative to needle crichothyroidotomy and regular crichothyroidotomy.
The Seldinger method is the jet insufflation. Jet insufflation is not a common procedure in adults and is used more in pediatric care. In Dr. Murray's opinion, a reasonably prudent emergency room doctor would know of the availability of that option for ventilating a patient whether the patient is an adult or a child.
Dr. Murray criticizes Respondent's medical records for Patient W.C. In his review, Dr. Murray did not find an explanation why it was necessary to intubate Patient W.C. at that moment and by the method employed. The record does not justify attempting a paralytic intubation under the existing circumstances, according to Dr. Murray.
Dr. Marlon Priest, witness for Respondent, graduated from the University of Alabama with a degree in chemistry. He attended the University of Alabama School of Medicine from 1974 until 1977. He completed an internal medicine residency. From 1981 through November of 2006, Dr. Priest was on the faculty of the University of Alabama, Birmingham, Alabama, and served as a professor of emergency medicine and director of critical care transport. Over the years, Dr. Priest has had extensive experience in emergency medicine in a hospital setting. He is licensed to practice medicine in Alabama.
Dr. Priest was accepted as an expert and allowed to testify concerning his opinion of Respondent's care provided Patient W.C., whether Respondent met the standard of care.
Dr. Priest reviewed the Administrative Complaint, the medical records from Bert Fish concerning Patient W.C., Respondent's deposition, the deposition of Thomas Beaver, M.D., and the deposition of Michael A. Evans, Ph.D. to prepare himself to testify. He found the information sufficient to prepare to offer his opinion concerning the care provided Patient W.C.
When asked whether Respondent violated the standard of care for failing to consult with or gain the assistance from an anesthesiologist or the on-call surgeon prior to inducing paralysis and attempting RSI, referring to rapid sequence intubation on Patient W.C., fell below the standard of care for
an emergency room physician, Dr. Priest indicated that he felt that Respondent met the applicable standards. Dr. Priest believes emergency medicine has evolved to the point where emergency room physicians are able to assess and carryout that form of intubation.
In Dr. Priest's experience, on numerous occasions, he has intubated patients without consulting a surgeon or an anesthesiologist. Based upon those insights Dr. Priest does not believe that Respondent was obligated to consult a surgeon or an anesthesiologist before attempting the intubation on
Patient W.C.
Specific to Patient W.C.'s case, the patient presented with shortness of breath and stridor and having failed to improve following treatment to address a possible allergic reaction, the decision was made to oxygenate the patient prior to some event where the patient could not breathe. Based upon the symptoms of the patient and gravity of the situation,
Dr. Priest is persuaded that it was appropriate to attempt intubation.
Concerning the allegation that Respondent failed to meet the standard of care by inducing paralysis in Patient W.C., Dr. Priest indicated that RSI is the preferred method of gaining access to a patient's airway where the patient is awake and
alert and who might struggle if that method was not employed in an effort to intubate the patient.
In his opinion, Dr. Priest makes mention of the progression in the case from having stridor, complaining of not being able to breathe and Dr. Priest's expectation that the airway was becoming smaller over time.
Dr. Priest believes that the principal diagnosis in the differential pertaining to Patient W.C., possible allergic reaction was a reasonable diagnosis based upon information in the patient records.
Concerning the allegation about Respondent's medical records related to alleged failure to document symptoms in Patient W.C. that would justify paralysis and RSI, as opposed to other less risky forms of securing the airway, Dr. Priest believes that there is sufficient evidence in the medical record to justify the intubation.
Related to the second allegation dealing with record keeping by Respondent alleging that Respondent failed to document Patient W.C.'s O2 sat. and cardiac activity during the RSI attempt and subsequent procedures, Dr. Priest believes that this information would have been written down by someone else on the treatment team during the course of the treatment, the attempt to intubate. Even beyond that point, Dr. Priest believes that standard protocol would call upon the respiratory
therapist or the nurse to create the record or potentially someone else on the hospital staff, not the Respondent.
The inaccurate report by Patient W.C. concerning his past history with bird allergies changes the priorities in the differential diagnosis, in Dr. Priest's opinion. That history meant that allergic reaction was placed at the top of the differential diagnosis, in particular with a physical examination that was consistent with the history. Dr. Priest holds this belief even in the absence of fever, sweating, or questionable vital signs in the patient.
When Dr. Schreiber entered the treatment room, he noticed a group including a physician and nurses who were attending Patient W.C. They were trying to resuscitate the patient. The patient did not have an airway. The patient was cyanotic. The patient was bloated and did not have a pulse. An attempt was being made to revive the patient from arrest. A valve bag mask was being used and drugs administered that would support the patient's blood pressure. An effort at gaining a surgical airway had not succeeded. There was a surgical incision on the patient's neck. Blood was on the patient and on the floor. At the moment no attempt was being made to establish a surgical airway.
Dr. Schreiber observed that the patient had a protruding tongue that was obstructing this mouth and airway.
Dr. Schreiber observed that the Petitioner's upper check and abdomen were bloated. Dr. Schreiber noted that the patient evidenced crepitancy, indicating subcutaneous air in the patient's neck and chest. This would be consistent with the placement of an airway tube into the subcutaneous tissue outside the trachea and air blown into the area.
Dr. Schreiber made a nick in the trachea and placed a number 8 ET tube into the trachea.
Following the placement of the ET tube in the trachea, Dr. Schreiber observed air movement in the lungs. However, the patient did not regain a pulse or adequate saturation of oxygen.
On January 3, 2006, Dr. Thomas Beaver, Chief Medical Examiner and pathologist, performed an autopsy on Patient W.C. As part of his Medical Examiner's report on Patient W.C., special studies had been done, and a comprehensive toxicology analysis performed by AIT Laboratories.
Dr. Beaver determined the cause of death as complications of acute epiglottitis and that the manner of death was of natural causes. The complications of acute epiglottitis were explained as a status post crichothyroidotomy. Dr. Beaver also noted atherosclerotic cardiovascular disease involving coronary arteries, mild.
In particular, Dr. Beaver found that the epiglottis was swollen to an extent that it obstructed the deceased's
airway. The condition observed was not the result of an attempted intubation of the patient, in Dr. Beaver's opinion. The condition observed was a disease process that Dr. Beaver felt was on-going for a matter of hours or perhaps a number of days before the attempted intubation. This type of mechanical obstruction in the epiglottitis would obstruct the airway and disable the patient from breathing, according to Dr. Beaver.
The condition of the epiglottitis was not perceived by Dr. Beaver to be in association with some form of allergic reaction. The exact cause was not clear.
Dr. Beaver does not believe that the ingestion of cocaine, whose metabolites were in the body caused the death.
Marie Herrmann, M.D., is the present Medical Examiner and pathologist in the jurisdiction where Dr. Beaver served.
Dr. Herrmann had the opportunity to review
Dr. Beaver's autopsy report on Patient W.C. and to examine some evidence available to Dr. Beaver in performing his examination. She too was not persuaded that cocaine was a contributing factor to Patient W.C.'s death.
In offering this opinion Dr. Herrmann was aware of the toxicology report from AIT Laboratories.
Dr. Herrmann agrees with Dr. Beaver's opinion concerning Patient W.C.'s cause of death.
Dr. Herrmann was unable to determine within a reasonable degree of medical certainty that the efforts by Respondent to intubate Patient W.C. caused the blockage in the airway.
Michael Evans, Ph.D., is the founder, president and CEO of AIT Laboratories. He is an expert in toxicology. He testified concerning the findings in his laboratory related to Patient W.C. using established protocols for examination of the samples provided his facility. Based upon his analysis,
Dr. Evans believes that Patient W.C. had ingested cocaine as recent as three hours and no longer than 24 hours before his death based upon values found in the blood and urine samples provided.
Bruce Goldberger, Ph.D., is an expert in forensic toxicology. He is a professor and director of toxicology at the University of Florida College of Medicine, Departments of Pathology and Psychiatry. He is familiar with the medical examiner's report prepared by Dr. Weaver and the AIT Laboratories' report on Patient W.C. Dr. Goldberger offered the opinion that Patient W.C. could have been using cocaine a day or two before his death. He defers to the medical examiner as to the cause of the patient's death.
It is accepted from the findings made in the autopsy report by Dr. Beaver that Patient W.C. died from complications
of acute epiglottitis, from natural causes, not as a result of Respondent's attempt to intubate the patient.
Having considered the facts and the opinions of experts, clear and convincing evidence was not presented to establish the violations alleged in Count One (Section 458.331(1)(t), Florida Statutes) paragraph 27. a). and b). related to consultation with or assistance from an anesthesiologist or the on-call surgeon prior to inducing paralysis in the patient as part of RSI. Likewise, the violation alleged in Count Two (Section 458.331(1)(m), Florida Statutes) paragraph 30. a). relating to failure to document symptoms justifying paralysis and RSI was not proven by clear and convincing evidence.
Concerning the alleged violation in Count Two (Section 458.331(1)(m), Florida Statutes) paragraph 30. b). involving the documentation of Patient W.C.'s O2 sat. and cardiac activity during the RSI attempt and subsequent procedures, the opinion of Dr. Priest is compelling. Based upon that opinion Respondent would not be expected to provide that documentation and maintain the record beyond that point in time.
Respondent's Background
Respondent received his undergraduate education from the University of Tennessee, earning a B.S. in biology. He attended medical school in Nashville, Tennessee, at Harry
Medical College and worked as an emergency physician in Tennessee. He undertook a flexible internship at the University of Tennessee in Knoxville, Tennessee. In 1987 Respondent went to Jacksonville, Florida, to do a three-year residency in pediatrics, graduating from that program in 1990. During that time he worked in local emergency rooms in St. Augustine, Palatka, and Tallahassee, Florida. He took courses in Advanced Trauma Life Support and Advanced Cardiac Life Support. Since 1990 Respondent has been a full-time emergency room physician living in New Smyrna Beach, Florida. At present, Respondent works for M. Care Emergency Services in Jacksonville, Florida.
Mitigation and Aggravation
Respondent has no prior violations related to his license to practice medicine in Florida.
Patient W.C.'s Family
Patient W.C. was married to F.C. and had two young children. At his death his daughter was approximately two-and- a-half years old and his son was 14 months old. Following Patient W.C.'s death, the family has had a difficult time coping with their loss.
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 (2007).
Respondent is a licensed physician in Florida. He was issued the license by the Department. The license number is ME 53961.
Through the Administrative Complaint, Respondent has been accused of violating two provisions within Chapter 458, Florida Statutes (2005).
Count One accuses Respondent of violating Section 458.331(t), Florida Statutes (2005), by committing medical malpractice. The Administrative Complaint refers to the definition within Section 456.50, Florida Statutes (2005), and its definition of medical malpractice where it states at Section 456.50(1)(g), Florida Statutes (2005):
'Medical malpractice' means the failure to practice medicine in accordance with the level of care, skill and treatment recognized in general law related to health care licensure. . . .
Count One states that great weight is to be given provisions of Section 766.102, Florida Statutes (2005), when enforcing Section 458.331(1)(t), Florida Statutes (2005).
Section 458.331(1)(t), Florida Statutes (2005), goes on to explain that:
Medical malpractice shall not be construed to require more than one instance, event or act.
* * *
Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph. 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 . . . 'medical malpractice'
. . . and any publication by the board must so specify.
This hearing has been held recognizing the procedural expectations in Section 456.073(5), Florida Statutes (2005), 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 (2005), in this Recommended Order it must be specified whether Respondent failed to practice medicine in accordance with the level of care, skill and treatment recognized in general law related to health care licensure. Ultimately, the
Board in its Final Order determines whether Respondent violated Section 458.331(1)(t), Florida Statutes (2005), as to the issue of a reasonable standard of care, a legal conclusion.
§ 456.073(5), Fla. Stat. (2005), but not before findings of fact have been made concerning Respondent's alleged "failure to practice medicine in accordance with the level of care, skill and treatment recognized in general law related to health care licensure," to include the underlying facts that relate to patient care and the opinion of experts on the standard of care.
The specific violations in Count One related to Section 458.331(1)(t), Florida Statutes (2005), are that Respondent violated the law:
27. . . .
by failing to consult with or elicit assistance from an anesthesiologist or the on-call surgeon prior to inducing paralysis and attempting RSI on Patient W.C. on or about December 31, 2005.
by inducing paralysis in Patient W.C. when this method of intubation was not justified by W.C.'s symptoms.
Count Two within the Administrative Complaint accuses Respondent of a violation of Section 458.331(1)(m), Florida Statutes (2005), which allows discipline for:
Failing to keep legible, as defined by the department rule in consultation with the board, medical records . . . 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 hospitalization.
Count Two specifically accuses Respondent of violating Section 458.331(1)(m), Florida Statutes (2005):
30. . . .
by failing to document symptoms in Patient W.C. justifying paralysis and RSI as opposed to other, less risky forms of securing an airway.
by failing to document W.C.'s 02 sat. and cardiac activities during the RSI attempt and subsequent procedures described above.
This is a disciplinary case, and 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).
Given the penal nature of this case, Sections 458.331(1)(m) and (t), Florida Statutes (2005), has 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).
Any violation of Section 458.331, Florida Statutes (2005), must be based upon specific allegations within the Administrative Complaint. See Trevisani v. Department of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996) and Hunter v. Department of Professional Regulation, 458 So. 2d 842 (Fla. 2nd DCA 1984).
If Respondent violated Section 458.331, Florida Statutes (2005), he would be subject to discipline in accordance with Section 456.072(2), Florida Statutes (2005), which states in pertinent part:
(2) 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.
Florida Administrative Code Rule 64B8-8.001 sets
forth disciplinary guidelines for violations of Section 458.331, Florida Statutes (2005). Florida Administrative Code Rule 64B8- 8.001(3) addresses aggravating and mitigating circumstances in determining appropriate punishment for a violation.
Clear and convincing evidence was not presented to establish the violations alleged in Counts One and Two of the Administrative Complaint, as amended.
it is
Based upon the findings of facts found and the conclusions,
RECOMMENDED:
That a final order be entered, which dismisses the
Administrative Complaint, as amended.
DONE AND ENTERED this 14th day of April, 2008, 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 14th day of April, 2008.
ENDNOTES
1/ Paragraph 27. b). was amended to read: "by inducing paralysis in Patient W.C. when this method of intubation was not justified by Patient W.C.'s symptoms."
2/ Respondent's dispute related to the Administrative Complaint was made known in an attached letter according to the form.
COPIES FURNISHED:
Donald Freeman, Esquire Staci Braswell, Esquire Allison M. Dudley, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Kevin K. Chase, Esquire Michael D'Lugo, Esquire Richard J. Brooderson, Esquire Wicker, Smith, O'Hara, McCoy,
Graham & Ford
390 North Orange Avenue Orlando, Florida 32801
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. 23, 2008 | Agency Final Order | |
| Apr. 14, 2008 | Recommended Order | Respondent did not violate the standard of care in diagnosis and treatment provided. |
