Petitioner: DEPARTMENT OF HEALTH, BOARD OF MEDICINE
Respondent: DAVID M. SPELLBERG, M.D.
Judges: J. LAWRENCE JOHNSTON
Agency: Department of Health
Locations: Naples, Florida
Filed: Nov. 16, 2012
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Friday, February 15, 2013.
Latest Update: Nov. 17, 2024
STATE OF FLORIDA
DEPARTMENT OF HEALTH
DEPARTMENT OF HEALTH,
Petitioner,
Vv. CASE NO. 2009-23402
DAVID M. SPELLBERG, M.D.,
Respondent.
/
a ee ee
ADMINISTRATIVE COMPLAINT
COMES NOW Petitioner, Department of Health, by and through its
undersigned counsel, and files this Administrative Complaint before the
Board of Medicine against Respondent, David M. Spellberg, M.D., and in
support thereof alleges:
1. 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.
2. At all times material to this Complaint, Respondent was a
licensed physician within the State of Florida, having been issued license
number ME 59339,
3. Respondent's address of record is 1132 Goodlette Road, Naples,
Florida 34102.
J:\PSU\Medical\Bates Shirley\Spellberg 2009-23402\AC.doc
Filed November 16, 2012 2:07 PM Division of Administrative Hearings
4. | Respondent is board certified by the American Board of
Urology.
5. Onor about August 29, 2007, Patient R.M., a 72 year old male,
presented to Respondent with complaint of blood in his urine.
6. On or about August 29, 2007, Respondent ordered a CT without
contrast which revealed a “3.6 cm mass upper pole left kidney.”
7. On or about August 29, 2007, Respondent ordered an
ultrasound. The ultrasound was completed on or about September 4, 2007.
The ultrasound report indicated, “3.9 x 3.1 x 3.4 cm mass of the upper
pole left kidney, worrisome for renal cell carcinoma. Correlation with
contrast-enhanced CT or MRI would be useful for verification.”
8. On or about August 29, 2007, Respondent did not order a
retrograde pyelogram with renal pelvic washings for cytology.
9. Respondent did not order a CT with contrast or an MRI as
suggested by the September:4, 2007, ultrasound report.
10. On or about October 16, 2007, Respondent performed
cryosurgery on Patient R.M. at Naples Community Hospital (NCH) prior to
obtaining a full and complete evaluation..
JAPSU\Medical\Bates Shirley\Spellberg 2009-23402\AC.doc 2
11. At a follow-up appointment, on or about December 28, 2007,
Respondent ordered a CT with contrast for Patient RM. The CT report
indicated, “mass increased in size in left kidney area, with nodules in lung
and heart areas...” Respondent recommended that Patient R.M. undergo
surgery to remove his left kidney.
12. Patient R.M. declined further treatment from Respondent and
sought out a second opinion.
13. On or about January 18, 2008, Patient R.M. saw a physician at
Florida Cancer Specialists. At that time, the record indicates Patient R.M.’s
diagnosis was, “stage IV renal carcinoma, metastatic to lymphatics and
lung.” The assessment portion of the record indicates that a biopsy was
not performed at the time of initial diagnosis in October of 2007.
14. The records from Florida Cancer Specialists detail subsequent
care and treatment for end stage cancer through on or about October 26,
2008, at which time Patient R.M. died.
15. Section 458.331(1)(t), Florida Statutes (2007), subjects a
doctor to discipline for committing medical malpractice as defined in
Section 456.50. Section 456.50, Florida Statutes (2007), defines medical
malpractice as the failure to practice medicine in accordance with the level
J:\PSU\Medical\Bates Shirley\Spellberg 2009-23402\AC.doc 3
of care, skill, and treatment recognized in general law related to health
care licensure.
16. Level of care, skill, and treatment recognized in general law
related to health care licensure means the standard of care specified in
Section 766.102. Section 766.102(1), Florida Statutes (2007), defines the
standard of care to mean”... The prevailing professional standard of care
for a given health care provider shall be that level of care, skill, and
treatment which, in light of all relevant Surrounding circumstances, is
recognized as acceptable and appropriate by reasonably prudent similar
health care providers. .. .”
17. Respondent failed to meet the prevailing standard of care in
regard to patient R.M. in one or more of the following ways:
a. By failing to order a retrograde pyelogram with renal
pelvic washings for cytology, on or about August 29, 2007;
and/or
b. By failing to order a CT with contrast or an MRI as
suggested by the September 4, 2007, ultrasound report; and/or
c. By performing cryosurgery on. Patient R.M. prior to
obtaining a full and complete evaluation, on or about October
16, 2007.
J:\PSU\Medical\Bates Shirley\Spellberg 2009-23402\AC,.doc 4
18. Based on the foregoing, Respondent has violated Section
458.331(1)(t), Florida Statutes (2007), by committing medical maipractice.
WHEREFORE, the Petitioner respectfully requests that the Board of
Medicine enter an order imposing one or more of the following penalties:
permanent revocation or suspension of Respondent's license, restriction of
practice, imposition of an administrative fine, issuance of a reprimand,
placement of the Respondent on probation, corrective action, refund of
fees billed or collected, remedial education and/or any other relief that the
Board deems appropriate.
SIGNED this 27" day of May, 2011.
H. Frank Farmer, Jr., M.D., Ph.D.
State Surgeon General
Shirley L/Bates
Assi General Counsel
DOH Prosecution Services Unit
FILED 4052 Bald Cypress Way, Bin C-65
Denne Tallahassee, FL 32399-3265
CLERK Angel Sanders Florida Bar # 946311
paTe JUN 0 1 2011 (850) 245-4640
(850) 245-4681 FAX
SLB/cab
PCP: May 27, 2011
PCP Members: El-Bahri, Winchester, Mullins
JAPSU\Medical\Bates Shirley\Spellberg 2009-23402\AC.doc 5
NOTICE OF RIGHTS
Respondent has the right to request a hearing to be
conducted in accordance with Section 120.569 and 120.57,
Florida Statutes, to be represented by counsel or other qualified
representative, to present evidence and argument, to call and
cross-examine witnesses and to have subpoena and subpoena
duces tecum issued on his or her behalf if a hearing is requested.
NOTICE REGARDING ASSESSMENT OF COSTS
Respondent is placed on notice that Petitioner has incurred
costs related to the Investigation and prosecution of this matter.
Pursuant to Section 456.072(4), Florida Statutes, the Board shall
assess costs related to the investigation and prosecution of a
disciplinary matter, which may include attorney hours and costs,
on the Respondent in addition any other discipline imposed.
J\PSU\Medical\Bates Shirley\Spellberg 2009-23402\AC.doc 6
Docket for Case No: 12-003823PL
Issue Date |
Proceedings |
Feb. 15, 2013 |
Order Closing File and Relinquishing Jurisdiction. CASE CLOSED.
|
Feb. 15, 2013 |
Joint Motion to Relinquish Jurisdiction filed.
|
Feb. 15, 2013 |
Notice of Appearance of Substitute Counsel (Alicia Adams) filed.
|
Jan. 10, 2013 |
Order Granting Continuance and Re-scheduling Hearing (hearing set for March 12, 2013; 9:00 a.m.; Naples, FL).
|
Jan. 09, 2013 |
Petitioner's Joinder in Respondent's Motion for Continuance filed.
|
Jan. 07, 2013 |
Respondent's Unopposed Motion for Continuance filed.
|
Nov. 28, 2012 |
Order of Pre-hearing Instructions.
|
Nov. 28, 2012 |
Notice of Hearing (hearing set for January 23, 2013; 9:00 a.m.; Naples, FL).
|
Nov. 26, 2012 |
Joint Response to Initial Order filed.
|
Nov. 19, 2012 |
Initial Order.
|
Nov. 16, 2012 |
Election of Rights filed.
|
Nov. 16, 2012 |
Notice of Appearance (R. Milne) filed.
|
Nov. 16, 2012 |
Agency referral filed.
|
Nov. 16, 2012 |
Petition for Administrative Hearing filed.
|
Nov. 16, 2012 |
Administrative Complaint filed.
|