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BOARD OF MEDICINE vs JERRY J. NEMECEK, 93-002640 (1993)

Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida May 14, 1993 Number: 93-002640 Latest Update: Nov. 15, 1994

The Issue Whether Respondent committed the violations alleged in the Administrative Complaints? If so, what disciplinary action should be taken against him?

Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since August 27, 1971, a physician licensed to practice medicine in the State of Florida. He holds license number ME 0018306. Respondent previously faced charges of professional misconduct in DPR Case No. 89-0925. In that case, Respondent was charged with practicing medicine with an inactive license from on or about January 1, 1984, until on or about November 22, 1989. The matter was resolved by the parties entering into a settlement stipulation, which was approved by the Board of Medicine in a final order entered August 13, 1990. Under the terms of the agreement, Respondent, without admitting his guilt, agreed to pay a $500.00 administrative fine and not to "in the future violate Chapters 455, 458 and 893, Florida Statutes, or the rules promulgated pursuant thereto." Facts Relating to Case No. 93-2640/Administrative Complaint #1 From on or about February 8, 1991, to March 24, 1991, patient R.D., a 43 year old male who had tested positive for the Human Immunodeficiency Virus (HIV), was hospitalized at North Florida Reception Medical Center Hospital (hereinafter referred to as "MCH"). During his hospitalization, R.D. received treatment for advanced Acquired Immunodeficiency Syndrome (AIDS) and related complications. Elizabeth Mutch, M.D., was R.D.'s attending physician at MCH. R.D. was experiencing difficulty in swallowing oral medications due to multiple ulcerations in his mouth secondary to an uncontrolled Herpes Virus. On or about March 16, 1991, Dr. Mutch determined that R.D. would benefit from intravenous medications through a central venous line. She therefore wrote an order for "central venous line placement Monday 3/18." In another written order, she directed that "IV fluids [be held] until central venous line in place." Both orders were dated March 16, 1991. In her progress notes for March 16, 1991, Dr. Mutch indicated "Central line ASAP." In the middle of March of 1991, Respondent was the acting medical director of MCH. In addition to his duties as acting medical director, he was on the staff of the hospital's internal medicine department. Respondent was the only internist on staff at the hospital with any significant experience in central line placements of the type ordered by Dr. Mutch, although there was a surgeon affiliated with the hospital, a Dr. Capliwski, who had such experience and in fact performed most of the placements needed by patients at the hospital. Sometime after she wrote the order for central venous line placement for R.D., Dr. Mutch verbally requested Respondent to attempt such placement at his earliest possible convenience. On March 18, 1991, Respondent made approximately five unsuccessful attempts to place a subclavian venous line in R.D., the first of which yielded air, indicating that R.D.'s lung had been punctured. Following these unsuccessful placement attempts, Respondent ordered a chest x-ray for R.D. The x-ray taken revealed no evidence of pulmonary distress. Respondent's progress notes for March 18, 1991, do not reflect that he ordered a surgical consultation that day after his placement attempts failed. The next two or three days Respondent was out of town on hospital business in his capacity as the hospital's acting medical director. Respondent reasonably assumed that, in his absence from the hospital, Dr. Mutch would ask Dr. Capliwski to try to perform the central venous line placement that she had initially requested Respondent to attempt. Upon his return to the hospital, Respondent learned that no such attempt had been made. Respondent therefore again made several attempts at central venous line placement. Placement was attempted via R.D.'s jugular vein. While the approach was different, the results were the same. Respondent was unable to accomplish his objective. Following this second series of unsuccessful placement attempts, Respondent ordered another chest x-ray for R.D. On March 24, 1991, at approximately 1:00 a.m., R.D. began to have difficulty breathing. He also had a rapid heart rate, a pulse rate of 140, a respiratory rate of 30, and a temperature of 103.3. degrees. Respondent was the "on call" physician. He was at home, approximately 35 miles away from the hospital. The duty nurse telephoned Respondent and spoke with him about R.D. 3/ Respondent instructed the nurse to give R.D. Tylenol and to make sure that he was receiving oxygen. He did not suggest that R.D. be seen by Dr. Chandler, the physician manning MCH's emergency room. By 9:15 p.m. that same day, R.D.'s condition had further deteriorated. His respiratory rate had increased to 40. The duty nurse again telephoned Respondent at home and informed him of R.D.'s deteriorating condition. This time Respondent directed that R.D. be immediately evaluated by Dr. Chandler. In accordance with Respondent's directive, Dr. Chandler was contacted. He ordered a chest x-ray for R.D. The x-ray revealed a 50 percent pneumothorax with right mediastinal shift. Dr. Chandler therefore performed an emergency thoracotomy. Arrangements were then made to transfer R.D. to Lake Shore Hospital. At approximately 10:10 p.m. on March 24, 1991, shortly after he was placed in the ambulance that was to transport him to Lake Shore Hospital, R.D. experienced respiratory arrest and expired. An autopsy was performed by Carolyn Hopkins, M.D., of the local Medical Examiner's Office. The autopsy report prepared by Dr. Hopkins lists "complications of acquire[d] immunodeficiency syndrome" as the cause of death. More specifically, Respondent died as a result of a tension pneumothorax. Facts Relating to Case No. 93-2683/Administrative Complaint #2 Counts 1 and 2 Respondent's license to practice medicine in the State of Florida was inactive due to non-renewal from on or about December 31, 1983, until approximately November of 1989. Respondent engaged in the practice of medicine at Cypress Medical and Professional Centre (hereinafter referred to as the "Centre") in Winter Haven, Florida, during a portion of the period that his medical license was inactive. On or about September 12, 1989, Respondent entered a plea of nolo contendere to the criminal offense of referring a patient to a business entity without disclosure of financial interest, in violation of Section 458.327(2)(c), Florida Statutes (1989). It was stipulated by Respondent and the prosecutor at the time of the entry of the plea that the crime to which Respondent pled was a lesser included offense of the crime of practicing medicine without a license. On or about October 25, 1989, adjudication of guilt was withheld and Respondent was ordered to pay a $500.00 fine. Counts 3, 4 and 5 On January 20, 1989, patient M.L. went to the Centre complaining, among other things, of chronic headaches. M.L. was first seen by a chiropractor at the Centre, who referred her "to M.D. for complete detailed neurologic-orthopedic exam." On January 24, 1989, M.L. was examined by Respondent at the Centre. The records maintained at the Centre reflect that, during this initial examination, Respondent explored the history and possible etiology of M.L.'s chronic headaches. The entries made on the Progress Notes and Patient Control Sheet maintained at the Centre (11 of which apparently were made by, or at the direction of, Respondent) reflect that M.L. visited the Centre on 21 different occasions. Bills from the Centre for 20 of these 21 visits were signed by Respondent. 4/ The Progress Notes and Patient Control Sheet do not reflect that Respondent saw M.L. on all 20 visits covered by these bills. Facts Relating to Case No. 94-0234/Administrative Complaint #3 On November 22, 1989, patient A.M.D., a 40-year old female, presented to the emergency room at Polk General Hospital (hereinafter referred to as "PGH") in Bartow, Florida, with complaints of a high fever, abdominal pain, vomiting and coughing. An examination revealed that she had rapid pulse and respiration rates. It was further observed that she had a flushed face and epigastric tenderness. A.M.D. was treated in the PGH emergency room with, among other things, an antibiotic, vibramyacin, for which she was also given a prescription. She was then discharged. A.M.D. returned to the PGH emergency room on November 23, 1989, with symptoms similar to those with which she had presented the previous day. She was again treated and discharged. Records of these two emergency room visits were made and kept by the hospital. A.M.D. paid a third visit to the PGH emergency room on November 24, 1989, with symptoms similar to those she had exhibited during her first two visits. On this occasion, she was admitted to PGH in the care of Respondent. She remained in Respondent's care throughout her entire stay at the hospital. As her attending physician, it was incumbent upon Respondent to review the records of A.M.D.'s prior two emergency room visits. Upon A.M.D.'s admission to the hospital, Respondent failed to order multiple blood cultures, notwithstanding that, as Respondent should have known, Respondent was already on an antibiotic. A single blood culture is insufficient to properly diagnose the condition of such a patient. Respondent's initial diagnosis of A.M.D., made without the benefit of results of multiple blood cultures, was undetermined gastrointestinal problems. A.M.D. was treated with, among other things, antibiotics. Although A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure, Respondent did not attempt to obtain a consultation with an infectious disease specialist, 5/ nor did he order that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics. A.M.D. continued to run a fever until December 4, 1989, after which her condition slightly improved. Even though a blood culture had indicated that A.M.D. had a staphylococcal infection, Respondent nonetheless ordered that the intravenous administration of antibiotics be discontinued because A.M.B. had been afebrile for a few days. Thereafter, A.M.D.'s condition quickly deteriorated. She suffered congestive hear failure, but Respondent did not seek to obtain a consultation with a cardiologist. On December 11, 1989, 17 days after she had been admitted to the hospital, A.M.D. expired. At the time of her death she was not on antibiotics. This was a factor which contributed to her demise. Respondent's final primary diagnosis of A.M.D. was toxemic shock, protracted. His secondary diagnoses included: staphylococcal septicemia, acute; cholelithiasis, chronic; and pneumonitis, subacute, staphylococcal. In not doing the following while A.M.D. was hospitalized at PGH and under his care, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time: ordering multiple blood cultures upon A.M.D.'s admission to the hospital in order to properly assess her condition; attempting to seek a consultation with an infectious disease specialist and ordering that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics when A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure; seeking to obtain a consultation with a cardiologist when A.M.D. suffered congestive heart failure; and appropriately treating A.M.D. with antibiotics throughout the time she was under his care, including the period following the brief improvement in her condition and reduction of her temperature to normal. Facts Relating to Case No. 94-0235/Administrative Complaint #4 On or about August 17, 1992, patient A.A., a 69 year old male, presented to Respondent at Preferred Quality Medical Care in Plantation, Florida with complaints of shortness of breath and nocturia (two to three times a night). A.A. provided Respondent with a written medical history, which revealed, among other things, that he was a heavy smoker. During his physical examination of A.A., Respondent observed and noted in his written record of the examination, among other things, inspiratory wheezes, prolonged expiration, shortness of breath and that A.A. gave the appearance of being chronically ill. Respondent diagnosed A.A.'s condition as C.O.P.D. (chronic obstructive pulmonary disease) and what Respondent termed "tobaccism," which is a nonstandard diagnosis. Respondent ordered an EKG, spirometry, urinalysis and blood tests. He failed to order a chest x-ray, notwithstanding that A.A. had indicated he was a heavy smoker and that Respondent's examination had revealed that A.A. had shortness of breath and that he had the appearance of someone who was chronically ill. Under such circumstances, it was quite possible that A.A. was suffering from C.O.P.D., as Respondent had opined. There were other possibilities, however, such as cancer, 6/ tuberculosis, pneumonia and congestive heart failure. In order to fully investigate these other possibilities, it was necessary for Respondent to order a chest x-ray. On or about September 11, 1992, A.A. returned to Respondent complaining of intermittent coughing spells. Respondent examined A.A. and observed prolonged wheezing. Respondent diagnosed A.A.'s condition as C.O.P.D. and hypertensive disease and treated him with bronchodilators. Although a diagnosis of hypertensive disease requires a baseline chest x-ray as part of the initial evaluation, Respondent made his diagnosis without the benefit of such an x-ray. A.A. next visited Respondent on October 19, 1992, complaining of extreme nervousness and inability to sleep. Respondent found that A.A. was expectorating large amounts of mucus. Respondent treated A.A. with Sinequan, which is an antidepressant that helps with sleep. Once again Respondent failed to order a chest x-ray. A.A. returned to Respondent on November 23, 1992, complaining of shortness of breath and nocturia. Respondent examined A.A. and discovered a soft mass in the supraclavicular area. He also noted that A.A. had a heart murmur. Respondent finally ordered a chest x-ray. The x-ray revealed pleural effusion. Subsequent testing detected inoperable cancer, which led to A.A.'s death on May 9, 1993. In waiting until A.A.'s fourth visit before ordering a chest x-ray and, as a result, not making an earlier diagnosis of A.A.'s cancer, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations of subsection (1) of Section 458.331, Florida Statutes, noted above, dismissing the remaining allegations against him and disciplining him for the violations he committed by suspending his license for a period of eighteen months, placing him on probation for the following five years, and imposing an administrative fine in the amount of $4,000.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of November, 1994. STUART M. LERNER 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 November, 1994.

Florida Laws (2) 458.327, 458.331

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