The Issue The issue for determination in this proceeding is whether the Respondent, the Department of Professional Regulation, should pay the Petitioner, Kirk A. Woodson, M.D., attorney fees and costs under Section 57.011, Fla. Stat. (1989), the Florida Equal Access to Justice Act. As reflected in the Preliminary Statement, the parties stipulate that the Petitioner is a "prevailing small business party" and that reasonable fees and costs exceed $15,000, the statutory cap. The only remaining issue under the statute is whether the Respondent was "substantially justified" in filing the Administrative Complaint in Case No. 90- 5986 against the Petitioner. 1/
Findings Of Fact On or about June 7, 1988, a complaint was filed against the license of the Petitioner, Kirk A. Woodson, M.D., subsequent to closure of a professional malpractice liability claim against him without payment of indemnity. The substance of the complaint was that, on January 1, 1986, Woodson saw and performed a hysterectomy on a patient who had presented at the emergency room at University Community Hospital in Tampa, Florida, with heavy and continuous vaginal bleeding. The complaint stated that post-surgery the patient developed Adult Respiratory Distress Syndrome (ARDS) and died. The complaint questioned whether Woodson failed to practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances. By letter dated June 30, 1988, the Department of Professional Regulation (the Department or DPR) notified Woodson that it had received the complaint and that it was initiating an investigation. DPR subpoenaed the hospital records which revealed that the patient arrived at the UCH emergency room at 5:28 a.m. on January 1, 1986, with at least a three-day history of vaginal hemorraging. An emergency room physician saw the patient, gave her two units of packed blood cells, and admitted her to Woodson's service. Woodson was called at approximately 8:30 a.m. and saw the patient later that morning. The patient's admission to surgery to determine the cause of the bleeding and perform necessary procedures was delayed until at least approximately 2:00 p.m. because the patient refused to consent to a dilation and curettage (D and C); she was insisting on a hysterectomy only. She finally consented to a D and C to be followed by a hysterectomy if Woodson found it to be medically necessary. During this delay, the patient continued to bleed and was transfused with two more units of packed blood cells at approximately 1:45 p.m. After the consent was given, there was a further delay, not explained by the records, until approximately 6:00 p.m. in getting the patient to surgery. The patient continued to bleed. Surgery took almost five hours. During surgery, the patient's bleeding got worse, and she was transfused with four more units of whole blood during the surgery. The DPR investigator was unable to ascertain from the hospital records the reason for the length of the surgery. The DPR investigator attempted to arrange an interview with Dr. Woodson and his attorney on or about February 28, 1989. The appointment was cancelled. When the DPR investigator contacted Woodson to reschedule the interview, Dr. Woodson questioned why DPR was pursuing the complaint when the malpractice claim was closed without payment of indemnity. Dr. Woodson agreed to be interviewed but expressed his preference that the investigator first review the "extensive depositions" taken in the malpractice litigation. 4/ Having already determined to request an expert evaluation of the case, the investigator decided to postpone the interview with Dr. Woodson. On July 10, 1989, the DPR asked a probable cause panel of the Board of Medicine to authorize the retention of an expert in gynecology to review the information obtained through investigation to that point in time to assist in the determination whether Woodson's treatment of the patient fell below that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances. On July 22, 1989, the probable cause met and authorized the expert review. On or about November 2, 1989, the DPR requested an expert review by Doris N. Carson, M.D., a Board-certified gynecologist with extensive surgical experience, including emergency room experience. Dr. Carson reviewed the hospital records supplied by DPR, some of which were difficult to read. By letter dated November 20, 1989, Dr. Carson reported her impressions. Dr. Carson believed the records supported Dr. Woodson's diagnosis and ultimate course of treatment. In the patient's condition, the proper course of treatment was to attempt to stop the vaginal bleeding by doing a D and C; a hysterectomy only should have been attempted if the D and C did not stop the bleeding. However, Dr. Carson perceived other problems that were not explained to her satisfaction by the hospital records. First, Dr. Carson did not see anything in the records to justify the length of the surgical procedures performed by Dr. Woodson. She reported: Careful review indicated that the subject attempted to remove the fibroids vaginally, and when this only increased the bleeding, then decided to do a laparotomy. The uterus, although enlarged, was not huge and the procedure as described seemed to move along without difficulty. When, however, the time is reviewed five hours would indicate very serious problems of technique or what seems more likely a lot if indecision about how to proceed. Evidently there was no physician surgical assistant, and the subject proceeded alone. In retrospect better operationg room help should have been available. Second, Dr. Carson felt that the patient received too much whole blood replacement during the course of the day and the surgery. Her reading of the hospital records indicated to her that five units of whole blood were given to the patient in addition to four units of packed cells. She felt: "Packed cells altogether would have been a better choice in light of the volume given to the patient." Her concern was that "volume overload," rather than ARDS, may have resulted ultimately in the death of the patient. However, she disclaimed the necessary expertise to render a conclusive opinion on the question and recommended that, if the DPR wanted a conclusive opinion on the cause of death, it should have a specialist in intensive care or a respiratory expert review the records. Dr. Carson had some difficulty with the delay in getting the patient to the operating room. The records indicated that at least some of the delay was caused by the patient's unwillingness to give consent to the recommended D and C. But Dr. Carson nonetheless had concerns that the delay added to the amount of blood transfused. Dr. Carson closed her letter with this remark: "In conclusion: A poorly done sugical proceeding below the recognized normal level of care." For reasons not apparent from the evidence presented, DPR did not interview Dr. Woodson before asking the probable cause panel to find probable cause and file a draft Administrative Complaint against Dr. Woodson based on Dr. Carson's expert review and the rest of the investigative report, including the hospital records. The draft Administrative Complaint, drawn in two counts, sought to discipline Dr. Woodson under Count I for failure to practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances, in two respects: first, for allegedly causing volume overload in the patient by ordering units of whole blood, instead of packed blood, to replace the patient's blood loss; and, second, for allegedly taking too long, without justification, to perform the necessary surgery. Count II alleged that Woodson failed to keep written medical records justifying the course of treatment of the patient, specifically with respect to ordering whole blood instead of packed units and with respect to the length of the surgical procedures. The probable cause panel considered the matter at its meeting on June 22, 1990. Counsel for the panel pointed out that the "extensive depositions" Woodson had indicated he wanted the DPR investigator to read before Woodson was interviewed were not in the packet of materials reviewed by the panel. 5/ But members of the panel indicated that they had reviewed the material that was in the packet and that they thought the information contained in it was adequate to make a probable cause determination. One of the doctors on the panel called it a "horrendous case." She felt that Woodson had "swamped out the patient" and had performed "inappropriate types of fluid therapy and blood therapy." The other member mentioned the "five-hour operating time . . . without any real explanation." The panel's attorney pointed out the part of the report of investigation that referenced the patient's refusal to consent to Dr. Woodson's proposed surgery and asked whether it constituted "any semblance of an explanation for a delay?" It is not clear from the transcript of the probable cause proceeding how the panel resolved the attorney's question, but the panel voted to find probable cause notwithstanding the question. 6/ There is information in the materials reviewed by Dr. Carson, and by the probable cause panel, which tends to explain some of the time it took for Dr. Woodson to perform surgery on the patient. Some of this partially exculpatory information was difficult to read and decipher in the records. Some of the partially exculpatory information was acknowledged by Dr. Carson and may also have been taken into account independently by the panel. Notwithstanding this partially exculpatory information in the record, the finding of probable cause was substantially justified.
The Issue The issues in this case for determination are whether Respondent James C. Dozier, M.D., committed the violations of Chapter 458, Florida Statutes (2003), as alleged in an Administrative Complaint filed by the Department of Health on October 3, 2006; and, if so, what disciplinary action should be taken against his license to practice medicine in Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. Respondent, James C. Dozier, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 47971. Dr. Dozier’s mailing address of record at all times relevant to this matter is Indian River Memorial Hospital Department of Emergency Medicine, 1000 36th Street, Vero Beach, Florida 32960. Dr. Dozier is board-certified in Emergency Medicine. Dr. Dozier has previously been subject to license discipline in Agency for Health Care Administration Case Number 93-20295. Patient D.C. On September 3, 2003, Patient D.C. was 49 years of age and obese. He was living a largely sedentary lifestyle, having suffered a work-related spinal injury several years before 2003. D.C. did not work. He was taking methadone, a powerful narcotic painkiller used for long-term, chronic pain relief, daily. As a result of his spinal injury, D.C. spent most of his time at home and did not engage in significant physical activity. On September 3, 2003, D.C. experienced an episode of hard coughing, during which he produced brown sputum. At approximately 9:15 a.m., September 4, 2003, D.C. awoke with sharp, left-sided chest and shoulder pain, and shortness of breath. The pain in his chest was excruciating and he had difficulty breathing. Consequently, his wife, S.C., telephoned 911 and requested emergency assistance at approximately 9:19 a.m. Transport of Patient D.C. to the Hospital. Emergency medical services personnel (hereinafter referred to as “EMS Personnel”), arrived at D.C.’s house at approximately 9:25 a.m., September 4, 2003. What transpired beginning with the arrival of EMS Personnel and their delivery of D.C. to Indian River Memorial Hospital (hereinafter referred to as “Memorial Hospital”), was documented in an Indian River County EMS report, Incident # 014509 (hereinafter referred to as the EMS Report). A copy of the EMS Report was admitted as Petitioner’s Exhibit 3. As alleged in the Administrative Complaint, the EMS Report indicates the following: D.C.’s lung sounds were decreased on the left side with wheezes in several fields bilaterally and during transport to the hospital there was no change in his pain, although there was a decrease in the wheezing; At 9:27 a.m. D.C.’s pulse rate was 110, respiratory rate was 24 and oxygen saturation level was 92 percent by pulse oximetry; At 9:39 a.m. D.C.’s pulse rate was 116, respiratory rate was 24, and oxygen saturation level was 97 percent after the administration of oxygen by nasal cannula. A copy of the EMS Report was not provided to Memorial Hospital until after the events relevant to this case. While the EMS Report notes that EMS Personnel “[t]ransferred care to ER nurse with report,” the nature of the “report” was not proved during the hearing of this matter. Dr. Dozier was not made aware of the contents of the EMS Report or the “report” purportedly made by EMS Personnel to the emergency room nurse. Nor did he make any effort to inquire about D.C.’s condition during the time he was in the care of EMS Personnel. While the evidence presented at hearing proved that Dr. Dozier should have made an effort to inquire about D.C.’s condition during the time he was in the care of EMS Personnel, the charges in this case are limited to Dr. Dozier’s actions after D.C.’s arrival at Memorial Hospital; there is no allegation in the Administrative Complaint relating to any failure on the part of Dr. Dozier to determine what data EMS Personnel were aware of or ultimately reported. Most importantly, while there are allegations of fact concerning what EMS Personnel determined about D.C.’s condition, the Administrative Complaint does not inform Dr. Dozier of how those facts related to his care of D.C. What was in the EMS Report is, therefore, ultimately not relevant in deciding whether the allegations of the Administrative Complaint have been proved. Counsel for the Department has accurately reported parts of the EMS Report in paragraphs 23 through 32 of Petitioner’s Proposed Recommended Order and counsel for Dr. Dozier have accurately summarized some of the information contained in the EMS Report in their proposed finding of fact 8. Those proposed findings of fact, although accurate, have not been included in this Recommended Order because they relate to information which Dr. Dozier never had at the times relevant to this case. Dr. Dozier’s Treatment of Patient D.C. EMS personnel delivered D.C. at Memorial Hospital at approximately 9:54 a.m., September 4, 2003. It was documented in the Emergency Room (hereinafter referred to as the “ER”), nurse’s notes, that D.C., upon arrival, reported that he had suffered a severe coughing spell the night before, experienced increased shortness of breath, coughed up dark brown sputum, and had felt sharp left-side chest pain. It was also documented that D.C.’s oxygen saturation was 94 percent on supplemental oxygen; he was experiencing the highest level of left-sided chest pain, pain that increased with deep breaths; he was awake, alert, and oriented; his complexion was normal in color; his pulse rate was 99 beats per minute; and his respiratory rate was 22 breaths per minute. An ER nurse noted that D.C. had a history of spinal surgery and was taking methadone. Another ER nurse saw D.C. at approximately 10:00 a.m. The nurse noted in the record that D.C. was suffering sharp pain on inspiration, his oxygen saturation had increased to 97 percent on two liters of supplemental oxygen, and that he had decreased breath sounds on the left side of his chest. One of the nurses who saw D.C. ordered blood tests, including a complete blood count, cardiac markers, a differential, and a complete metabolic panel. The blood tests were subsequently cancelled. The only documentation in D.C.’s medical records at Memorial Hospital indicates that the tests were cancelled at 10:15 a.m. with a notation “Cancelled Requested by Nurse/MD PER DR DOZIER,” although Dr. Dozier did not first see D.C. until approximately 10:15 a.m. Dr. Dozier testified at final hearing that the tests had been cancelled at D.C.’s request. There are no medical notes to substantiate this testimony. Dr. Dozier documented his care of D.C. in an “Any Complaint Template” form with a time stamp of 10:17:33 a.m. Dr. Dozier noted in the Any Complaint Template that D.C. was suffering from sharp, left-sided chest pain of several hours duration with splinting (stiffening of the body to avoid pain caused by movement) and decreased breath sounds on the left side. Dr. Dozier also documented that D.C.’s past medical history included chronic pain that was being treated by methadone. Dr. Dozier ordered a chest X-ray and an EKG. He also started D.C. on Toradol, a non-steroidal, anti-inflammatory drug used for pain relief, and Levaquin, an antibiotic. The chest X- ray and EKG were documented in the Any Complaint Template. The EKG performed on D.C. was normal. His chest X-ray was interpreted by the radiologist as normal, except that he was exhibiting poor inspiratory effort. Dr. Dozier, under “differential diagnosis,” listed pleurisy (an inflammation of the lining of the chest wall and lungs marked by chest pain that increases on inspiration) first and pneumonia (an infection of the lungs marked by a severe cough, chest pain, and fever) second. A “differential diagnosis” was explained by Dr. Murray: Differential diagnosis is when you have a patient that comes into the emergency room and he has this constellation of signs and symptoms and risk factors. You try to put it together, you make a list, here’s all the possible things that could be wrong with this guy. So that’s your differential diagnosis. What are the possibilities here with what I have to look at. So you list our differential diagnosis. Transcript, page 39, lines 22-25, and page 40, Lines 1-4. Based upon the information which Dr. Dozier had concerning D.C., while pleurisy and pneumonia were reasonably included in his differential diagnosis, he should have also considered myocardial infarction, bronchitis, and, most significantly, pulmonary embolus. Of significance in this case, is Dr. Dozier’s failure to include pulmonary embolus in his differential diagnosis. Pulmonary embolus is a condition whereby the arteries in the lungs are blocked by one or more blood clots. A pulmonary embolism usually occurs when blood clots that have formed in the veins of a person’s extremities dislodge and are transported by the blood stream to the lungs where they become trapped by smaller arteries. The formation of blood clots in the extremities is called deep vein thrombosis (hereinafter referred to as the “DVT”). When blood clots become lodged in the lungs, the lungs can be damaged or, if blood flow becomes too constricted, the person can die. Pulmonary embolisms are encountered in emergency rooms with some frequency. In determining whether a person is suffering from pulmonary embolus, the common risk factors must be considered. Those risk factors include a history of previous pulmonary embolus or DVT; immobilization (the person is confined to bed, sedentary, or has recently taken a long trip); smoking; obesity; hypercoagulablity (increased tendency of the blood to clot); and cancer. The most common signs of pulmonary embolus are chest pain, usually of sudden onset and which becomes worse with deep breathing or coughing; shortness of breath, again of a sudden nature; sweating; nausea; rapid breathing or tachypnea; increased heart rate or tachycardia; low oxygen saturation; and hemotysis or coughing up blood. Making it difficult to diagnose, a patient with a pulmonary embolism may present with various combinations of symptoms, and the symptoms are often similar to those of other ailments, such as heart attack, bronchitis, pleurisy, pneumothorax, acid reflux, dissecting thoracic anerurysm, and pneumonia. Tests which can assist a physician in the either confirming or ruling out a pulmonary embolism, include ventilation/perfusion scanning (hereinafter referred to as “V/Q Scanning”), d-dimer testing, spiral computerized axial tomography, pulmonary angiography, and Doppler ultrasound. While not all of these tests were available to Dr. Dozier, V/Q Scanning was. Pulmonary embolus should have been included in Dr. Dozier’s differential diagnosis of D.C. because D.C. arrived at the ER with a chief complaint of chest pain and, as explained by Dr. Murray because of the following: Now, what would even make [pulmonary embolus] more likely, and perhaps having to pursue a little bit more, is the type of pain that he had, which is important to tell the difference between a lot of those conditions. He had pleuritic pain. That’s the classic type of chest pain that somebody with a pulmonary embolus has as classically described as pleuritic sharp chest pain. That’s what this patient had. Then what was the onset? Was this gradual onset or sudden? P[ulmonary] E[mbolism]s are sudden onset. As far as I can tell, when it says in timing, it says symptoms for, now I can’t read that, how many that is, but he had circled hours. So I can just assume that he told Dr. Dozier that he was having these symptoms just for however many hours that stands for. So I was worried about the chest pain, the nature of the chest pain, the short duration of it, that I think it says brownish – or I’m not even – I would cough brownish sputum. I think that’s what it says, but I couldn’t say for sure under history of present illness, which would make me worry about that. Transcript, page 85, lines 3-23. D.C.’s history of acute onset shortness of breath and severe left-side pleuritic chest pain, his possible hemoptysis the night before his arrival at Memorial Hospital, and his elevated pulse and respiratory rates, all facts that were documented in the medical records for D.C. at Memorial Hospital, should have caused Dr. Dozier to include pulmonary embolus in his differential diagnosis. As a result of the fact that he did not consider pulmonary embolus as a possible ailment, Dr. Dozier failed to order tests which could have helped him to rule out pulmonary embolus or led him to conclude that D.C. was suffering from the ailment. In particular, he failed to order a V/Q scan. Ultimately, Dr. Dozier released D.C., listing as his final diagnoses pleurisy and bronchitis (inflammation of the bronchial tubes marked by painful cough and fever). Dr. Dozier prescribed Vioxx, a non-steroidal anti-inflammatory drug, Levaquin, and Flexeril (a central nervous system depressant, commonly referred to as a “muscle relaxer”). Cancellation of the Blood Tests. As noted in Findings of Fact 19, blood tests ordered for D.C. were ultimately cancelled. According to Dr. Dozier, they were cancelled because D.C. refused the tests, a suggestion that was not documented by Dr. Dozier in D.C.’s medical records, despite the seriousness of a patient refusing tests which a physician prescribes. Given the significance of the consequences of such a refusal, Dr. Dozier’s testimony on this point is questionable and rejected as not convincing. Other facts also raise concerns about the credibility of Dr. Dozier’s testimony concerning the cancellation of the blood tests. For example, S.C. saw D.C. approximately an hour after his arrival at the hospital and found him quiet, pale, and looking very ill. At no time did D.C. or Dr. Dozier, whom she had spoken with, inform S.C. that D.C. had refused blood tests. It is also noted that D.C. did not refuse other tests, including the chest X-ray and EKG ordered by Dr. Dozier. Ultimately, Dr. Dozier’s explanation concerning the cancellation of the blood tests was not convincing, based upon findings made in this Recommended Order and because of the troublesome aspects of his testimony as explained in paragraph 51 of Petitioner’s Proposed Recommended Order, which is incorporated by reference. Despite this conclusion, ultimately, it was the Department’s burden to prove why the blood tests were cancelled. This the Department simply did not do. Ultimately the evidence simply proved that the tests were ultimately cancelled. Regardless of why the blood tests were cancelled, Dr. Dozier violated the standard of care, as found, infra. Instructions on Discharge. On discharge, D.C. was given the following written instructions on a pre-printed form: The doctor thinks your symptoms may be due to: PLEURISY. Keep this in mind: DIAGNOSIS WITH 100% CERTAINTY IS NOT POSSIBLE in the Emergency Department. Therefore, if you find you are not getting better, another diagnosis is possible, and you must see your doctor or return here. After you leave, you must properly care for your problem and observe its progress. If you do not improve as expected, or are worse, do one of the following. Immediately: contact your doctor or follow up doctor or call here [the ER]. Contact your doctor, call, or return here if you experience any of the following: A) high fever or chills B) difficulty breathing C) difficulty; swallowing or drooling D) pain or tightness in chest or neck E) thick green or bloody sputum F) fast pulse (more than 100 a minute at rest) G) vomiting. Your symptoms should improve within 4-6 days and should not worsen. You should be able to breathe comfortably when sitting or lying down, and should not be struggling to breathe. You should be able to eat, drink, and swallow without pain or drooling. Rest, drink plenty of fluids, and eat regular well-balanced meals. Use Acteminophen (Tylenol, etc.) for pain or fever, and take any prescribed medications. A cool-mist vaporizer may help decrease cough and discomfort. DO NOT use a hot mist vaporizer of hot steam. DO NOT smoke during your illness; smoking will delay your recovery. The forgoing instructions were consistent with Dr. Dozier’s diagnosis of pleurisy or bronchitis. Having failed to consider pulmonary embolus, the instructions were inadequate in failing to address this possible condition. The Standard of Care. The Department's expert, John V. Murray, M.D., credibly opined that Dr. Dozier failed to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure in violation of Section 458.331(1)(t), Florida Statutes (hereinafter referred to as the "Standard of Care"), in his treatment of D.C. In particular, it was Dr. Murray’s opinion that Dr. Dozier violated the Standard of Care by failing to recognize the possibility that D.C. was experiencing a pulmonary embolism and, as a consequence, by failing to include pulmonary embolus in his differential diagnosis; and by failing to order diagnostic tests, in particular V/Q Scanning, which may have either ruled out or confirmed the existence of a pulmonary embolism. Dr. Murray’s opinions are credited and accepted. The opinions to the contrary offered by Dr. Dozier and his expert witness are rejected as not convincing and as not addressing the issues precisely enough. Too much was made of facts which were not available to Dr. Dozier at the time he made his differential diagnosis and the consequences thereof, unlike Dr. Murray, who specifically testified, when asked whether he attempted “to put yourself in Dr. Dozier’s shoes on the day these events occurred,” as follows: A. Yes, sir. I think that’s necessary. If you’re going to make a finding that was the standard of care, I think the standard of care relates to what would the prudent physician in the same circumstances on the same day do. In order to do that, you put yourself in those shoes. Say if I was there what would I do and what would be the standard of care for that, the minimum. Transcript, page 33, lines 22-25, and page 34, lines 1-3. Dr. Murray went on to explain that, although he had learned from the documents presented to him, information that Dr. Dozier did not have available while caring for D.C., he was able to limit his opinions appropriately to the time of the actual events and the information which Dr. Dozier was presented with. The opinions offered on behalf of Dr. Dozier were not so precisely limited. Medical Records. Dr. Dozier failed to document in his medical records for D.C. whether D.C. was a smoker or had recently taken any long trips, both facts which are relevant bits of information when considering pulmonary embolus. Dr. Dozier’s medical records were, therefore, inadequate in this regard. Dr. Dozier also failed to give adequate follow-up instructions for pulmonary embolus upon discharge. Dr. Dozier’s actions, however, were the result, not of his failure to include pulmonary embolus in his differential diagnosis, but in the failure to accurately diagnosis D.C.’s condition, a failure for which Dr. Dozier has not been charged. I. D.C.’s Demise. On September 6, 2003, D.C. died in his sleep. A postmortem autopsy of D.C. revealed that he died of “massive pulmonary thromboembole due to phlebothromboses of lower extremities.” It was found that D.C. had an abdominal malignancy, a significant contributing factor in the death of D.C. What role, if any, that Dr. Dozier’s failures in his treatment of D.C. contributed to D.C.’s ultimate demise was not proved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that James C. Dozier, M.D., has violated Section 458.331(1)(m) and (t), Florida Statutes, as described in this Recommended Order; issuing a reprimand; imposing a fine of $10,000.00; requiring that he complete the Florida Medical Association’s “quality Medical Record Keeping for health Care Professionals” course or a Board-approved equivalent; and requiring that he complete five hours of continuing medical education in diagnosis and treatment of pulmonary embolus. DONE AND ENTERED this 20th day of September, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 20th day of September, 2007. COPIES FURNISHED: Don Freeman, Esquire Assistant General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250 Barry A. Postman, Esquire Lee Cohen, Esquire Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Boulevard Second Floor West Palm Beach, Florida 33401 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 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent's license to practice medicine in the state of Florida should be revoked, suspended or otherwise disciplined.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all time relevant to this proceeding, the Respondent was licensed to practice medicine in the state of Florida, having been issued license number 0024212. Respondent is also licensed to practice medicine in the states of Pennsylvania, New York, New Jersey and Illinois. Respondent is an anesthesiologist who was board certified in 1962, and has had experience as a professor of anesthesiology. The two cases involving patients L. Y. and O. G. that are in issue in this proceeding arose while Respondent was practicing at Manatee Memorial Hospital in Bradenton, Florida. It is the recovery room nurse's responsibility to fill out the post anesthesia care unit (PACU) record which documents the patient's course through the recovery room. The record includes notations which track the patient's activity, respiration, blood pressure, consciousness and color. Each category is scored on the basis of 0, 1 or 2. Each individual score is determined by the recovery nurse's observation of the patient and her judgment of the patient's condition at that particular moment. Ambu-bagging is a procedure whereby a mask with a reservoir bag of oxygen is placed over the nose and mouth of the patient and the bag is squeezed to force air and oxygen into the lungs of patient. Ambu-bagging is used in situations where the patient is not breathing and the procedure, in effect, breathes for the patient. PATIENT, L. Y. L. Y., a 72 year-old female who presented with abdominal pain and was initially evaluated in the emergency room of Manatee Memorial Hospital on March 22, 1988. The emergency room physician, James A. DeRespino, M. D., diagnosed the patient's condition on admission as abdominal pain/rule out perforated viscus. Jose Estigarriba, M. D., the physician called in for consultation on March 23, 1988 by Robert A. Fishco, the attending physician, diagnosed the patient's condition as acute abdomen, peritonitis, possible perforated viscus. L. Y. was in extremely ill health upon her admission. L. Y. had diabetes, chronic high blood pressure, coronary artery disease, recurrent heart failure, congestive heart failure and a history of pulmonary edema. L. Y. was on multiple medications for her diabetes and cardiovascular disease. Both Dr. Estigarribia, the patient's surgeon, and Dr. Fishco felt that immediate surgical intervention was necessary to determine and correct the problem. L. Y. initially refused to have the surgery for approximately 24 hours. However, after talking with Dr. Fishco the patient finally consented to surgery late in the afternoon of March 23, 1988, approximately 24 hours after admission to the hospital. After the patient consented to surgery, Dr. Estigarribia immediately discussed with the patient the various invasive monitoring techniques and retaining the patient on a respirator after surgery. The patient refused these procedures because of difficulties she had experienced during similar procedures in the recent past. At this point, Dr. Estigarribia determined that it was best to move the patient to surgery as quickly as possible and dispense with such devices as swan-ganz catheters because he was concerned that she may change her mind and decide against surgery. The Respondent was first notified of the surgery approximately fifteen minutes prior to L. Y. being transported to the operating room. Respondent saw the patient in the operating room and took a history. Dr. Estigarribia informed the Respondent of the urgent situation and of the patient's refusal to consent to ventilation therapy and invasive monitoring. Respondent anesthetized the patient using a rapid sequence induction. Dr. Estigarribia then performed an exploratory laparotomy, resection of the small bowel, end-to-end anastomosis, and peritoneal lavage on the patient. After the surgery was completed but prior to the patient being extubated, Respondent checked the patient's blood pressure (120/70) and pulse rate (90), found the patient's color to be good and her oximetry (oxygen saturation of blood) readings to be satisfactory. Just prior to extubation, the patient's blood pressure was 140 over 90, her pulse rate 90, her oximetry reading was 96, she was breathing on her own and was conscious to the point of being able to communicate with Respondent by opening her eyes when asked a question. After making certain that the patient was breathing on her own and was conscious, Respondent extubated the patient while still in the operating room. Shortly thereafter, approximately 10 minutes, the patient was moved to the recovery room. The patient progressed satisfactorily in the recovery room. The patient's PACU score upon arrival in the recovery room at 10:30 p.m. was 5 out of a possible 10, with consciousness and activity each being given a score 0 by the recovery room nurse and respiration a score of 1. However, within 10 minutes the patient had improved to a total score of 9, with a consciousness and activity each being given a score of 2 and the respiration score remaining at 1. The total score remained at 9 until 12 midnight, approximately one and one-half hours after the patient was delivered to the recovery room. At 12:30 a.m., approximately two hours after her admission to the recovery room, the patient's score dropped to a total of 4 and the patient experienced ventricle fibrillation and expired as a result of this cardiac event at approximately 12:47 a.m. There is competent substantial evidence in the record to establish facts to show that Respondent's treatment of patient, L. Y. was within that level of care, skill, and treatment recognized as being acceptable under similar conditions and circumstances at the time of extubation and subsequent recovery room care, notwithstanding the testimony of Dr. Monroe and Dr. Kruse to the contrary which was based primarily on the hospital's records and more specifically on the recovery room nurse's scores and notes in the PACU records. PATIENT, O. G. Patient, O. G., is a sixteen year old male athlete who sustained a fractured mandible in an athletic event. O. G. was admitted as an emergency case to the Manatee Memorial Hospital on June 9, 1988 with a diagnosis of acute fracture of the mandible and laceration of the mouth. On June 9, 1988 the patient's attending surgeon performed an open reduction of the right angle of the mandible and the removal of four impacted wisdom teeth. Respondent placed the patient under general anesthesia for the above scheduled procedure. When the operative procedure ended (at approximately 6:55 p.m.), Respondent remained in the operating room with the patient approximately 30 minutes to assess the patient's post-operative condition. While still in the operating room the patient exhibited the usual indicators for extubation. The patient's oximetry readings were good, his blood pressure and pulse were good, he was breathing on his own with adequate title volume, he responded when given verbal commands, and was able to lift his head. At this point in time, the patient was having adverse reaction to the tube used by Respondent to maintain the patient's airway. Based on his training and experience as an anesthesiologist, using the above indicators, the Respondent determined that the patient was ready to be extubated. The patient was extubated in the operating room by the Respondent before being transferred to the recovery room. Upon being delivered to the recovery room, at approximately 7:25 p.m., the patient's condition began to deteriorate. The patient's breathing became shallow and he did not respond to verbal commands. The Respondent had the recovery room nurse remove the blanket covering the patient so that the Respondent could observe the patient's respiratory pattern and coloration to determine if the patient needed assistance with breathing and to give assistance, if needed. The Respondent had the nurse place the patient on 100% oxygen. Normally, a patient is placed on 40% oxygen. The patient did not recover from the anesthesia as quickly as the Respondent had anticipated. Notwithstanding the recovery room nurse's testimony as to her observation of the patient's condition as set out in the PACU records, the patient's condition was not so life threatening as to require intervention by the Respondent prior to the time he decided to call in a pulmonologist. While I do not doubt the competence of the recovery room nurse, the Respondent's testimony that his observation of the patient's condition during this period of time led him to believe that it was not life threatening was more credible. It was the Respondent's observation of the patient's condition that guided him in choosing a conservative procedure in his handling of the patient. Although Respondent was assisting with other operations in the hospital during this time, he stayed within voice range of the patient and nurse, monitoring the patient's condition and periodically assisting or having the nurse assist the patient in breathing by using an Ambu-bag and when necessary, either the Respondent or the nurse, would suction off blood secretions through the nasal passage. The Respondent chose this conservative procedure of monitoring the patient's condition rather than performing a "blind" intubation through the nasal passage or by cutting the wires holding the patient's jaws shut and intubating through the mouth thinking the patient would respond without the necessity of reintubation. The first procedure would have involve the risk of pushing possible blood clots into the lower portion of the patient's airway, while the second procedure would necessitate that the patient undergo an additional operation. Eventually, when O. G. failed to respond, Respondent decided to reintubate the patient. However, since the Respondent had decided against a "blind" intubation through the nasal passage or cutting the wires on the jaws to intubate through the mouth, he decided to intubate using a fiber optic bronchoscope in order to visualize the airway and remove any blood clots that may have formed in the upper portion of the airway as a result of the surgery. This procedure would avoid the risk of pushing the blood clots down into the lower part of the patient's airway. Since Respondent was not a pulmonologist he was not given the privilege at Manatee Memorial Hospital to use a fiber optic bronchoscope. Therefore, Respondent sought the services of David Law, M. D., a pulmonologist on call at the hospital that evening, to perform the reintubation using the fiber optic bronchoscope. Dr. Law reintubated the patient using the fiber optic bronchoscope. Dr. Law found blood clots in the upper portion of the patient's airway which were removed before attempting the reintubation. The patient was then transported to the Intensive Care Unit and afterwards recovered satisfactorily. Dr. Law opined that he would not have attempted a "blind" nasal reintubation of the patient under the circumstances here because of the possibility of pushing blood clots down into the lower portion of the patient's airway. In the medical community a pulmonary physician is the specialist most experienced with the use of a fiber optic bronchoscope, and it would be unusual for a non-pulmonary physician to use a fiber optic bronchoscope under circumstances similar to those occurring with this patient. There is competent substantial evidence in the record to establish facts to show that Respondent's treatment of the patient, O. G. was within that level of care, skill, and treatment recognized as being acceptable under similar conditions and circumstances at the time of extubation and subsequent recovery room care, notwithstanding the testimony of Dr. Monroe and Dr. Kruse to the contrary which was based primarily on the hospital's records and more specifically on the recovery room nurse's scores and notes in the PACU records.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order dismissing the Administrative Complaint filed in this case. RECOMMENDED this 15th day of January, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0596 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1, 3, 4, 5, 6, and 9 are adopted in substance as modified in findings of fact 1, 6, 7, 5, 13, and 16, respectively. Proposed finding of fact 2 is unnecessary. Proposed finding of fact 7 is neither material nor relevant to the conclusion reached in the Recommended Order. Proposed findings of fact 8 and 16 go to the credibility of the expert witnesses and are unnecessary as findings of fact. Proposed findings of fact 10-15 and 17-22 are rejected as not being supported by substantial competent evidence since there is more credible evidence supporting a finding contrary to the findings set forth in these proposed findings of fact. 6. Proposed findings of fact 23, 24-25, 29, 30, 31, 33-35, 39- 42, 39, 40, 41, 42, 43 and 44 are adopted in substance as modified in findings of fact 19, 20, 21, 23, 22, 4, 23, 25 and 5, respectively. Proposed finding of fact 26 although acceptable is unnecessary. Proposed findings of fact 27 and 28 go to the credibility of a witness and while they may be accurate they are unnecessary. 9. Proposed findings of fact 32, 36-38, 45-51, 55-71, 73, 75, 77, 78, 80-82, 84, 85, 88-96 are accepted as the testimony of the recovery nurse and the experts who testified in this case and a reflection of the hospital's records, particularly the PACU records upon which the experts relied in given their testimony or opinions. However, they are not necessarily adopted as findings of fact because the more credible evidence is to the contrary. See findings of fact 22-30. Proposed finding of fact 52 is accepted but unnecessary since it relates to proposed findings of fact 53 and 54 which are rejected as not being supported by competent evidence in the record. See finding of fact 25. Proposed finding of fact 72 is rejected as not being supported by competent substantial evidence in the record. Proposed findings of fact 74, 76, 79 and 83 are adopted in substance as modified in findings of fact 27, 28, 30 and 24-26, respectively. Proposed finding of fact 86-87 are accepted but unnecessary since there was no showing that patient suffered heart failure and pulmonary edema. Proposed findings of fact 97-101, 103 and 104 are more a restatement of testimony than findings of fact but see findings of fact 24-26. Proposed finding of fact 102 deals more with the credibility of a witness but see finding of fact 24. Proposed finding of fact 105 is rejected, see findings of fact 24-26. Respondent's Proposed Findings of Fact. Proposed finding of fact 1 is unnecessary. Proposed findings of fact 2 - 20 and 22 are adopted in substance as modified in findings of fact 1, 2, 1 & 2, 3, 6, 7, 8, 8, 9, 10, 11, 12, 13, 14, 16, IS, 18, 17, 17 and 18, respectively. Proposed finding of fact 21 is more of a discussion of the testimony of Drs. Monroe, Kruse and Kozma rather than being stated as a finding of fact and is therefore, rejected. COPIES FURNISHED: Richard A. Grumberg, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Allen Bobo, Esquire Roger Lutz, Esquire Lutz, Webb, Bobo and Baitty, P. A. One Sarasota Tower Two North Tamiami Trail Sarasota, Florida 34236 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues for determination in this case are whether the following statement was made by Respondent, AGENCY FOR HEALTH CARE ADMINISTRATION; whether the statement violates the provisions of Section 120.535, Florida Statutes; whether the statement constitutes a declaratory statement under Section 120.565, Florida Statutes; whether Petitioner, ALL CHILDREN'S HOSPITAL, INC., has standing to maintain this action; and whether Petitioner is entitled to attorney's fees and costs. The alleged agency statement which is at issue in this case is: The Agency for Health Care Administration takes the position that a shared service agreement may be modified, without prior approval of the Agency, as long as each party continues to contribute something to the program, and the shared service contract remains consistent with the provisions of Rule 59C-1.0085(4), Florida Administrative Code. In addition, the Agency takes the position that modifications to a shared service agreement do not require prior review and approval by the Agency.
Findings Of Fact Petitioner, ALL CHILDREN'S HOSPITAL, INC. (hereinafter ALL CHILDREN'S), is a medical facility located in St. Petersburg, Florida, which provides pediatric hospital care. Respondent, AGENCY FOR HEALTH CARE ADMINISTRATION (AHCA), is the agency of the State of Florida vested with statutory authority to issue, revoke or deny certificates of need in accordance with the statewide and district health plans. Intervenor, BAYFRONT MEDICAL CENTER (BAYFRONT), is an acute care hospital located in St. Petersburg, Florida. ALL CHILDREN'S and BAYFRONT are located adjacent to each other and are connected by a thirty-yard tunnel. In 1969, ALL CHILDREN'S began operation of a pediatric cardiac catheterization program. ALL CHILDREN'S pediatric cardiac catheterization program existed prior to the statutory requirement for a certificate of need to provide such service. Neither AHCA, nor its predecessor agency, Florida Department of Health and Rehabilitative Services, issued a certificate of need for ALL CHILDREN'S cardiac catheterization program. Since 1969, ALL CHILDREN'S has expended at least $500,000 on upgrading the cardiac catheterization program. Since 1970, ALL CHILDREN'S has operated a pediatric open heart surgery program. ALL CHILDREN'S open heart surgery program existed prior to the statutory requirement for issuance of a certificate of need to perform such service. Neither AHCA, nor its predecessor agency, Florida Department of Health and Rehabilitative Services (HRS), issued a certificate of need for ALL CHILDREN'S open heart surgery program. By letter dated May 13, 1974, HRS specifically advised ALL CHILDREN'S that modifications to the ALL CHILDREN'S open heart surgery program were not subject to agency approval. In May of 1973, ALL CHILDREN'S and BAYFRONT entered into a shared service agreement to provide adult cardiac catheterization services. In accordance with the shared service agreement, the actual catheterizations are performed in the physical plant of ALL CHILDREN'S and with equipment located on the ALL CHILDREN'S campus. BAYFRONT contributed to the adult cardiac catheterization shared service program by providing, inter alia, patients, management, medical personnel, and pre- and postoperative care. Beginning in 1975, BAYFRONT has also provided adult open heart surgery services through a joint program with ALL CHILDREN'S with the actual surgeries being performed at the physical plant on ALL CHILDREN'S campus. BAYFRONT contributed to the adult open heart surgery shared service by providing, inter alia, patients, management, medical personnel, and pre- and postoperative care. The shared service agreement between ALL CHILDREN'S and BAYFRONT to provide adult cardiac catheterization and open heart surgical services was in existence prior to the statutory requirement for a certificate of need to perform such services. Neither AHCA, nor its predecessor agency, Florida Department of health and Rehabilitative Services, issued a certificate of need to provide such services. The cardiac catheterization and open heart surgery program operated by ALL CHILDREN'S and BAYFRONT was "grandfathered" in because the program existed prior to the certificate of need requirement. Because no certificate of need was issued to ALL CHILDREN'S and BAYFRONT for its shared adult cardiac service program, no conditions have been imposed by AHCA on the operation of the program. "Conditions" placed on certificates of need are important predicates to agency approval and typically regulate specific issues relating to the operation of the program and the provision of the service such as access, location, and provision of the service to Medicaid recipients. The ALL CHILDREN'S and BAYFRONT cardiac shared services program is the only "grandfathered in" shared service arrangement in Florida, and is the only shared service arrangement operating without a certificate of need in Florida. An open heart surgery program is shared by Marion Community Hospital and Munroe Regional Medical Center in Ocala, Florida. The Marion/Munroe program operates pursuant to a certificate of need issued by AHCA. On December 22, 1995, AHCA published a notice of its intent to approve a certificate of need for a shared pediatric cardiac catheterization program between Baptist Hospital and University Medical Center in Duval County, Florida. BAYFRONT has applied for, but has not yet been issued, a certificate of need to perform cardiac catheterization services independent of the shared services arrangement with ALL CHILDREN'S. The agency receives hundreds of inquiries each year requesting information and guidance from health care providers regarding the certificate of need application process and other requirements of the certificate of need program. On more than one occasion ALL CHILDREN'S and BAYFRONT have inquired either orally or in letters to the agency regarding whether certain changes in their adult cardiac shared services program would require agency approval through a certificate of need application. In response to a 1990 written inquiry from ALL CHILDREN'S and BAYFRONT regarding modifications to the shared services agreement, the agency (then HRS) by letter dated September 18, 1990, stated in pertinent part that "the alterations you propose still constitute shared services." The agency response went on to state that it is therefore "...determined that they (the proposed changes) have not altered the original intent." On January 31, 1991, Rule 59C-1.0085(4), Florida Administrative Code, governing shared service arrangements in project-specific certificate of need applications was promulgated. The rule provides: Shared service arrangement: Any application for a project involving a shared service arrangement is subject to a batched review where the health service being proposed is not currently provided by any of the applicants or an expedited review where the health service being proposed is currently provided by one of the applicants. The following factors are considered when reviewing applications for shared services where none of the applicants are currently authorized to provide the service: Each applicant jointly applying for a new health service must be a party to a formal written legal agreement. Certificate of Need approval for the shared service will authorize the applicants to provide the new health service as specified in the original application. Certificate of Need approval for the shared service shall not be construed as entitling each applicant to independently offer the new health service. Authority for any party to offer the service exists only as long as the parties participate in the provision of the shared service. Any of the parties providing a shared service may seek to dissolve the arrangement. This action is subject to review as a termina- tion of service. If termination is approved by the agency, all parties to the original shared service give up their rights to provide the service. Parties seeking to provide the service independently in the future must submit applications in the next applicable review cycle and compete for the service with all other applicants. All applicable statutory and rule criteria are met. The following factors are considered when reviewing applications for shared services when one of the applicants has the service: A shared services contract occurs when two or more providers enter into a contractual arrangement to jointly offer an existing or approved health care service. A shared services contract must be written and legal in nature. These include legal partnerships, contractual agreements, recognition of the provision of a shared service by a governmental payor, or a similar documented arrangement. Each of the parties to the shared services contract must contribute something to the agreement including but not limited to facilities, equipment, patients, management or funding. For the duration of a shared services contract, none of the entities involved has the right or authority to offer the service in the absence of the contractual arrangement except the entity which originally was authorized to provide the service. A shared services contract is not transferable. New parties to the original agreement constitute a new contract and require a new Certificate of Need. A shared services contract may encom- pass any existing or approved health care service. The following items will be evaluated in reviewing shared services contracts: The demonstrated savings in capital equipment and related expenditures; The health system impact of sharing services, including effects on access and availability, continuity and quality of care; and, Other applicable statutory review criteria. Dissolution of a shared services contract is subject to review as a termination of service. If termination is approved, the entity(ies) authorized to provide the service prior to the contract retains the right to continue the service. All other parties to the contract who seek to provide the service in their own right must request the service as a new health service and are subject to full Certificate of Need review as a new health service. All statutory and rule criteria are met. By letter dated October 22, 1993, ALL CHILDREN'S and BAYFRONT inquired again of the agency regarding modifications of the adult inpatient cardiac shared service program. AHCA did not respond to the 1993 inquiry, and AHCA ultimately considered the inquiry withdrawn. By letter dated February 24, 1995, BAYFRONT made further inquiry of the agency, and requested agency confirmation of the following statement: The purpose of this letter is to confirm our understanding that the Agency for Health Care Administration ("Agency") takes the position that the shared services agreement between Bayfront and All Children's may be modified, without prior approval of the Agency, as long as each party continues to contribute something to the program, and that the shared services contract remains consistent with the provisions of Rule 59C-1.0085(4) F.A.C. By letter dated March 16, 1995, the agency made the following reply to BAYFRONT from which this proceeding arose: The purpose of this letter is to confirm your understanding of this agency's position with reference to the reviewability of a modifica- tion of the shared services agreement between Bayfront Medical Center and All Children's Hospital set forth in your February 24, 1995 letter.
Findings Of Fact Dr. Jose A. Mijares is a general and thoracic surgeon who has practiced medicine in Tampa, Florida since 1967. He received his medical degree from the University of Havana in 1943. He served a five-year residency at Tampa General Hospital which was completed in 1967. He is Board certified in general surgery and limits his practice to that field. He is licensed to practice medicine in Florida and was so licensed at all relevant times herein. (Testimony of Respondent, stipulation) In 1977, Respondent was on the staffs of five hospitals in the Tampa area, including Centro Asturiano Hospital. The allegations of the Administrative Complaints deal with Respondent's treatment of six patients at Centro Asturiano Hospital at various times during the period 1977 to 1979. Ricardo Larzabal This sixteen-year-old patient was admitted to the hospital by Dr. A.B. Perez on May 12, 1977, with a diagnosis of abdominal pain and nausea. At admission, the patient's white blood count was slightly elevated at 11,000, but was at a normal range of 10,500 the following day. Respondent was called in for consultation on May 13. His impression was abdominal pain with possible appendical colic, and recommended a barium enema. The results of the barium enema showed that only about on-third of the appendix filled. On May 16, Respondent performed an exploratory laparotomy and appendectomy. He found the appendix kinked with a band in the proximal third of the appendix and fecalith in the distal two-thirds of the appendix. The pathological report reflected a congested vermiform appendix with lymphoid hyperplasia. Respondent's discharge diagnosis was "Abdominal pains. Appendical colic due to fecalith in the appendix. Chronic appendicitis." (Testimony of Respondent, Petitioner's Exhibit 4) Vivian Morejon Dr. C. Castellanos admitted this seventeen-year-old patient to the hospital on May 15, 1977, with a diagnosis of epigastric pain and colitis. On admission, the patient had a normal white blood county of 9,000. A barium enema was administered and reflected no abnormality. Respondent was called in for consultation on May 18 and his impression was "Abdominal pain, appendical colic." He performed an exploratory laparatomy and appendectomy on May 19, at which time he found blood in the peritoneal cavity caused by a ruptured follicle of an ovary. The appendix was retrocecal and covered by adhesions as in chronic appendicitis. His final diagnosis was "Abdominal pain, appendical colic due to chronic appendicitis, and ruptured follicle of the right ovary." The pathology report reflected that the patient had a vermiform appendix with lymphoid hyperplasia. (Testimony of Respondent, Petitioner's Exhibit 7) Ramiro Companioni, Jr. This fourteen-year-old patient was admitted to the hospital by Dr. C. Castellanos on September 24, 1977, due to pain in the right lower quadrant which had not been relieved with medication, and vomiting for two days prior to admission. The patient had been admitted to the hospital during the previous February with the same condition. At time of admission, he had a white blood count of 5,200 which was slightly lower than normal. Respondent was consulted on the day of admission and his impression was abdominal pain, appendical colic. A barium enema was ordered, but the appendix could not be observed. On September 27, Respondent performed an exploratory laparatomy and appendectomy. He found that the appendix was congested, edematous with fecalith in mid-portion covered by adhesions. The pathology report showed a microscopic diagnosis of acute appendicitis, as did Respondent's discharge diagnosis. The patient recovered without complications. (Testimony of Respondent, Petitioner's Exhibit 6) Shirley Alvarez This fifteen-year-old patient was admitted to the hospital by Dr. C. Castellanos on September 26, 1977, with acute abdominal pain in the right side with nausea and vomiting, which was diagnosed as possible appendicitis. Her white blood count was 6,900 and a barium enema did not visualize the appendix. Respondent was consulted on September 28, and his impression was that the patient had abdominal pain, appendiceal colic. He performed an exploratory laparotomy and appendectomy on September 29. The appendix was retrocecal and covered with adhesions as in chronic appendicitis. The pathology report showed on microscopic diagnosis a vermiform appendix with multiple serosal adhesions. The patient was discharged with a final diagnosis of chronic appendicitis. (Testimony of Respondent, Petitioner's Exhibit 8) Luisa Areu This forty-two year old patient was admitted by Respondent to the hospital on July 18, 1978, complaining of abdominal pain in the right flank. On examination, Respondent's impression was cervical polyp and possible enlarged uterus. The patient had experienced an exploratory laparotomy some 10 years before, but no records were available to determine the cause or results of the operation. On July 21, 1978, Respondent performed a dilation and four quadrant biopsy of the cervix. Although no polyp was found, there was severe chronic cervicitis and the uterus on palpation was enlarged. Respondent determined that a hysterectomy was advisable due to the enlargement of the uterus and the advanced severe chronic cervicitis. On July 27, Respondent removed the uterus, both fallopian tubes, and the appendix. The ovaries were not removed. The uterus was found to be of normal size, but both tubes were congested and edematous as in salpingitis. The pathology report confirmed the diagnosis of chronic cervicitis but found no significant abnormalities with the patient's tubes or appendix. Respondent's discharge diagnosis was severe chronic cervicitis. His discharge summary stated that in spite of the pathological report that the tubes looked normal, both tubes were congested and edematous like chronic salpingitis. (Testimony of Respondent, Petitioner's Exhibit 1) Deborah Fisher This 22-year-old patient was admitted by Respondent to the hospital on February 4, 1979, complaining of lower abdominal pain. Approximately seven months prior to her admission, she had had a tubal ligation and had experienced pain and occasional vomiting thereafter. The patient's history indicated that intercourse was very painful and that she had not had menstrual periods since September, 1978. Respondent's impression was "lower abdominal pain, rule out chronic pelvic inflammatory disease." All laboratory and other tests of the patient were negative. On February 8, 1979, Respondent performed a total abdominal hysterectomy, bilateral salpingectomy, and appendectomy. He found the tubes to be congested and edematous as in sub-acute salpingitis. The pathology report on microscopic diagnosis showed chronic cervicitis, mild with reserve call hyperplasia and slight dysplasia. No patholgoical diagnosis was found as to the fallopian tubes and appendix. (Testimony of Respondent, Petitioner's Exhibit 2, Respondent's Exhibit 1) It is difficult to diagnose acute appendicitis, particularly in the case of children between 12 and 18 years of age. About 70% to 85% of appendices removed incident to an operating diagnosis of appendicitis are pathologically acute. This generally is because physicians are reluctant to permit the possibility of appendices developing abscesses and perforations if appendectomies are forestalled for too long a period. It is particularly difficult to diagnose acute appendicitis in females between the ages of 14 and 18 because they often have other causes for pain, such as an ovarian cyst. It is an accepted and customary practice to remove a normal appendix in conjunction with other surgery in the right lower quadrant, unless there are contra- indicating problems. This precludes the later possibility of appendicitis attacks, and also lessens the probability of erroneous diagnosis later because of the presence of a lower incision scar. (Testimony of Myers, [Deposition- Respondent's Exhibit 4], Mason [Deposition-Respondent's Exhibit 5] Respondent) In cases that are difficult to diagnose, particularly in young children, the use of the barium enema as a diagnostic tool for appendicitis is accepted medical practice. It helps to determine if an appendix is normal. If the appendix fills completely, it is considered to be normal, but if it does not fill normally and there is also swelling and other complaints, a physician can imply pathology in the area near the appendix. (Testimony of Respondent, Myers, Ferris, Respondent's Composite Exhibit 2, 4) Expert testimony at the hearing established that all six of the operations in question were necessary and proper, and that the care and treatment rendered by Respondent to the patients met acceptable and medical standards in the community. In the case of patient Larrabal, although his white blood count had subsided on the second day of admission, his prior history, coupled with the fact that the barium enema only partially filled the appendix, showed, in the opinion of one expert, that there was a "diagnostic dilemma" which justified the operation after waiting an appropriate time. Although the pathology report reflected a normal appendix, the fact that lymphoid hyperplasia was also found indicated the presence of an abnormality. As to patient Companioni, Respondent testified that he saw no need to operate immediately because the white blood count was normal which could have indicated the presence of viral rather than bacterial infection. Again, however, the barium enema only partially filled the appendix, thus justifying the operation when considered along with the patient's complaints and other indications. Expert opinion established that Respondent's delay was justified in waiting an appropriate time to determine if the patient's illness was minor in nature or acute. The exploratory laparotomy which Respondent performed on patient Morejon was justified in that it was impossible to determine in advance whether the pain she had experienced was caused by appendicitis or something else. It was discovered upon operating that she had had a ruptured follicle of the ovary which was the source of pain. The removal of her normal appendix as incident to the surgery was necessary and proper under the circumstances. Even Petitioner's expert testified that it had been a "close call" as to whether or not to operate on the patient, and he agreed that the appendix should have been removed as incidental to the surgery. As to patient Alvarez, the fact that the appendix didn't "visualize" as a result of the barium enema indicated something was blocking the appendix and warranted the operation. The fact that fibrous adhesions were found showed that the appendix was abnormal. Although Petitioner's expert, Dr. Charles F. James, testified that the presence of adhesions indicated that the patient had probably had previous attacks of appendicitis, he felt that the operation was unjustified because there was no acute inflammation. However, he acknowledged that it is common to remove an appendix in such a case and could not be considered improper. (Testimony of Respondent, Myers, Mason, James, Respondent's Exhibit 4, 5) Petitioner's expert had reviewed the records of 15 appendectomy cases of Respondent, including the four which are the subject of charges herein. He testified that, although his opinion might be different from that of Respondent as to the treatment in question, none of the cases justified disciplinary action. (Testimony of James) There was conflicting expert testimony at the hearing with regard to the property and necessity of Respondent's surgical procedures regarding patients Area and Fisher, but the opinions expressed in the testimony of Dr. Robert W. Withers are accepted. He found that patient Areu's complaints, past medical history, and the fact that a sonogram reflected that she had an enlarged uterus indicated that the only reasonable location for her pain was in the uterus. It was therefore his opinion that such pain related to the uterus is best cured in someone who has had previous surgery in that area by the surgical procedures performed by Respondent. As to patient Fisher, similar surgical procedures performed by Respondent. As to patient Fisher, similar surgical procedures performed by Respondent were considered indicated and proper by Dr. Withers based on the patient's complaints and the prior history of tubal ligation which had resulted in the existence of post-tubal sterilization syndrome. In the opinion of Dr. Withers, there could be no other effective treatment for the patient to relieve her problem than the surgical procedures employed by Respondent. Additionally, it was found that the patient had a precancerous condition known as dysplasia, indicative that Respondent's operative procedures were fortuitous and to the patient's benefit. (Testimony of Respondent, Withers)
Recommendation That Petitioner dismiss the Administrative Complaints herein. DONE AND ENTERED this 3rd day of February, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983. COPIES FURNISHED: Grover C. Freeman, Esquire Freeman and Lopez, P.A. 4600 West Cypress, Suite 410 Tampa, Florida 33607 Tony Cunningham, Esquire Wagner, Cunningham, Vaughan and McLaughlin, P.A. 708 Jackson Street Tampa, Florida 33602 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Petitioner, vs. CASE NOS. 81-3183 82-823 JOSE A. MIJARES, M.D., License Number: 12114, Respondent. /
