Findings Of Fact § 57.111(3)(f) Fla. Stat. (2005) "state agency" The Department of Health meets the definition found within Section 120.52(1)(b)1, Florida Statutes (2005), as an "agency." § 57.111(3)(b)2. and 3., Fla. Stat. (2005) "initiated by a state agency." On June 21, 2005, an Administrative Complaint in Department of Health, Petitioner, v. Donna M. Cameron Connolly, R.N., C.R.N.A, Respondent, DOH Case No. 2004-34970 was signed and served on Nurse Connolly. It accused the Respondent of violating Section 464.018(1)(n), Florida Statutes (2002), in the treatment and care of Patient M.M. Nurse Connolly elected to contest material facts within the Administrative Complaint. On September 9, 2005, the case was referred to the Division of Administrative Hearings (DOAH) to conduct a hearing pursuant to Section 120.57(1), Florida Statutes (2005). It became DOAH Case No. 05-3268PL. The hearing was held, and, on December 8, 2005, a Recommended Order was entered with a recommendation that the case be dismissed. § 57.111(3)(c)1., Fla. Stat. (2005) "prevailing small business party" On February 27, 2006, the Department of Health entered a Final Order dismissing the Administrative Complaint against Nurse Connolly. § 57.111(3)(d)1a., Fla. Stat. (2005) "small business party" The incident involving Patient M.M. that related to the Administrative Complaint took place on March 13, 2003. On the date Nurse Connolly cared for Patient M.M. She did so at Endosurg Outpatient Center (Endosurg) in Lady Lake, Florida, a gastroenterologist practice. She was providing anesthesia to the patient during a colonoscopy. She was acting as an independent contractor for a limited period of time in her engagement with Endosurg. It is her routine to take temporary positions in providing her services. Nurse Connolly works through placement agencies who serve clients who have the need for anesthesia coverage by a C.R.N.A. The placement agency, Nature Coast Anesthesia Providers (Nature Coast), had contacted Respondent to determine her interest in working for two weeks at Endosurg. For the services provided at Endosurg, Nurse Connolly had a verbal agreement with Nature Coast that formed the basis for her pay. The equipment and materials necessary to perform her duties at Endosurg were to be provided by that entity. In addition to the equipment provided by Endosurg, Petitioner Connolly had certain equipment of her own, including a stethoscope and an ambu-bag. At the time that the incident involving Patient M.M. occurred, Nurse Connolly had worked for Endosurg in two separate facilities for seven days. After the incident involving Patient M.M., Petitioner worked for Endosurg for an additional three days. For the year 2003, Petitioner Connolly and Joseph F. Connolly filed a Joint Form 1040 U.S. Individual Income Tax Return, with a Schedule C, representing profit or loss from a business naming Donna C. Connolly as a proprietor, "anesthesia provider," reflecting income and expenses with a net profit of $34,506.00. In 2003, Nurse Connolly's proprietorship carried business insurance through Bloom Insurance Services with a policy written by Evanston Insurance Company. Nature Coast paid Nurse Connolly for services provided at Endosurg. No insurance coverage was provided to Nurse Connolly from Nature Coast for the work done at Endosurg, nor was she entitled to any form of benefits from Nature Coast for that work. Nurse Connolly gave Nature Coast an invoice reflecting the services provided at Endosurg for which she requested payment and was paid. Nurse Connolly had other arrangements with agencies in 2003 to place her. Those agencies were Nation Wide Anesthesia Services and MDA Associates. Arrangements with the latter two agencies were under terms set forth in written contacts. At all times relevant Nurse Connolly did not advertise her services as a sole proprietor. She did provide business cards that set forth her address, telephone number, and e-mail. When performing her duties as an anesthesia provider in outlying locations, Nurse Connolly deducts meals, hotel expenses and her malpractice insurance for purposes of her income tax return. During the relevant period in time, Nurse Connolly had no other employees working for her. Her net worth was not more than two million dollars. § 57.111(4)(b)1., Fla. Stat. 2005 "itemized affidavit" To support Nurse Connolly's application for attorney's fees and costs, an affidavit has been provided by her counsel setting forth a claim for 105.1 hours of work performed by the law firm at a charge of $350.00 per hour for legal services, with an additional $45.08 in costs for federal express expenses in relation to her defense against the Administrative Complaint in DOAH Case No. 05-3268PL/DOH Case No. 2004-34970. The affidavit was prepared on May 23, 2006. Counsel for Petitioner Connolly also provided an itemized statement of work done between June 7, 2005, and February 5, 2006, as to the dates and nature of the services and time necessary to perform the incremental services totaling 105.2 hours, a discrepancy compared to the affidavit of .1 hours. In further support of the request for attorney's fees and costs, the application is accompanied by an affidavit provided by Paul C. Perkins, Jr., Esquire, as to the reasonableness of the fees requested for 105.1 hours of time expended. He comments, that recognizing the complexity and novelty of the issues in the case, an hourly rate for attorney work performed would range from $250 to $400 an hour. Attorney Perkins, like Petitioner Connolly's counsel, practices law in Florida. The affidavit by attorney Perkins refers to his admission to the Florida Bar and license to practice in the State of Florida for a period of 14 years. The affidavit was executed before a notary in Seminole County, Florida. In particular, he speaks to the complexity of the underlying case involving the administrative prosecution of Nurse Connolly, as a matter where expert testimony in the areas of pharmacology, anesthesiology, and cardio-pulmonary health were considered. In addition, the underlying case involved medical ethics and extensive research, according to attorney Perkins. On September 20, 2006, Nurse Connolly's attorney in this case, Damon A. Chase, Esquire, filed a supplemental affidavit as to attorney's fees and costs in the matter, asking that he be reimbursed for his fees at a rate of $350.00 per hour. Attached to the affidavit was a rendition of the services provided in the present case from July 12, 2006, through September 5, 2006, totaling 24.4 hours. A second affidavit by attorney Perkins has not been filed to support the additional 24.4 hours. § 57.111(4)(c), Fla. Stat. (2005) "opposition affidavit" Respondent in this cause filed a counter-affidavit in opposition to Petitioner's attorney's affidavit for fees and costs. The counter-affidavit was provided by Edwin A. Bayo, Esquire, who practices in Leon County, Florida, where he has practiced for the last 22 years. The majority of his practice was in the Office of the Attorney General, State of Florida. Attorney Bayo served as Board counsel for professional regulatory boards to include the Boards of Pharmacy, Dentistry, Osteopathic medicine, Chiropractic medicine, Veterinary medicine and Professional Engineers. His law practice has involved significant administrative law litigation. In response to the original request for reimbursement of attorney's fees in relation to the 105.1 hours, his opinion is that the appropriate hourly rate for the type of work performed in the case, as reviewed by Attorney Bayo, would be from $200 to $325 an hour, with the higher rate of charge being associated with counsel who has had more experience in administrative litigation, that is to say in excess of 15 years. Attorney Bayo contrasts that number of years with the amount of time that counsel for Nurse Connolly has been in practice in Florida, which attorney Bayo represents as being three years. Ultimately attorney Bayo offers the opinion that the rate of reimbursement for Attorney Chase should not exceed $225 per hour. § 57.111(4)(d)1., Fla. Stat. (2005) "nominal party" When the Department of Health undertook its prosecution directed to Donna M. Cameron Connolly, R.N., C.R.N.A., it was not acting as a nominal party. § 57.11(3)(e), Fla. Stat. (2005) "substantially justified" Exhibit "B" to Respondent's Notice of Filing of Additional Documents in the present case, as filed August 25, 2006, is constituted of the investigative report by the Department of Health, with exhibits. It includes patient records and expert opinions in DOH Case No. 2004-34970, all the material being mailed to the Probable Cause Panel which decided in favor of Probable Cause to bring the Administrative Complaint in the case. Exhibit "B" also contains the written response to the investigation provided by Nurse Connolly. The information available to the Probable Cause Panel continues in this discussion. On April 8, 2003, a confidential code 15 report was received by the Health Facility Regulation Hospital and Outpatient Services, within the State of Florida, Agency for Health Care Administration. In content, it pertained to Patient M.M. The report was made in compliance with Section 395.0197(8), Florida Statutes (2002). The report concerned the incident on March 13, 2003, which forms the basis of the administrative prosecution that underlies the present case. The Code 15 report was acknowledged by an Investigation Specialist with the Department of Health in a letter to the reporter dated July 1, 2003. Beyond that date, the Department of Health undertook its investigation into the matter concerning Patient M.M. and her treatment on March 13, 2003. After the investigation commenced, a Uniform Complaint Form was executed by the Investigation Specialist for the Department of Health, in a setting were Donna Connolly was named as the Respondent in relation to the March 13, 2003, incident. Generally, it summarized the events of that day and the withdrawal of life support from Patient M.M. on March 16, 2003, followed by the patient's death on March 17, 2003. The focus of the investigation was on a possible violation of Section 464.018(1)(h), Florida Statutes (2002), and Florida Administrative Code Rule 64B9-8.005(2)(i). In pursuing the investigation, the Department of Health made contact through its investigator with an official at Endosurg in Lady Lake, Florida. The investigation was facilitated by a subpoena issued October 8, 2003, calling for the release from Endosurg of medical information about Patient M.M. and the care received at Endosurg. The subpoena duces tecum that was sent to Endosurg on October 8, 2003, asked for the outpatient center to provide a copy of the medical records for the March 13, 2003, admission in relation to Patient M.M. Among the items that Endosurg gave the Department of Health concerning the care received by Patient M.M. on March 13, 2003, were the nursing assessments, pre-op and post-op information, the endoscopy report for the procedure being performed on the patient, the anesthesia record, the endoscopy procedure record, the past medical history of the patient, information concerning the provision of anesthesia in advance of its provision, a pre-operative evaluation questionnaire including the history of present illnesses, physical examination and a cardio-pulmonary resuscitation report form in relation to the CPR team who responded to the patient's arrest, which the report form refers to as occurring around 7:45 a.m. on March 13, 2003. It describes the CPR team responding to the incident as Nurse Connolly; Nurse Mayhew, who was a registered nurse; and the attending physician, who performed the colonoscopy. The Department of Health also issued a subpoena duces tecum to Lake Sumter Emergency Medical Services of Mt. Dora, Florida, who responded to the incident, providing care and transport for Patient M.M. on March 13, 2003. In response the Medical Services Agency provided transport information in relation to Patient M.M., who had suffered the cardiac arrest and was taken to the Villages Regional Hospital (Villages Hospital). A copy of a report reflecting the intubation and treatment provided by the agency to the patient was also given to the Department of Health, with a code summary critical event record. The patient was taken to the Villages Hospital for emergency treatment. The Department of Health issued a subpoena duces tecum to the hospital. The response to the subpoena included a written record of the diagnosis, including cardiac arrest, anoxic brain damage. Information from the Villages Hospital included physicians' orders, history and physical, laboratory studies, diagnostic studies, etc. The clinical indication at the time the patient was cared for in the Villages Regional Hospital was that the status was post-cardiac arrest, altered mental status. On that same date, March 13, 2003, the patient was transferred from the Villages Hospital to Lake Regional Medical Center (LRMC) in Leesburg, Florida. LRMC also provided records related to Patient M.M. The information received from LRMC was pursuant to a subpoena duces tecum. The death summary provided by LRMC, where Patient M.M. expired on March 17, 2003, referred to a discharge diagnosis as, severe anoxic encephalopathy following cardio- respiratory seizure, and cardiac arrest secondary to ventricular fibrillation. The patient expired when life support was withdrawn. LRMC patient information included physician's orders, patient progress notes, medication administration record, etc. On March 21, 2003, an associate medical examiner for the District Five Medical Examiner's office located in Leesburg, Florida, determined that the cause of Patient M.M.'s death was hypertensive and arteriosclerotic heart disease. On October 20, 2004, a medical malpractice investigator for the Department of Health wrote to Donna Connolly, A.R.N.P., advising her of Complaint No. 2004-3490. That correspondence referred to an enclosed document that had been determined sufficient for investigation pursuant to Section 456.073, Florida Statutes (2004), and extended an invitation to Nurse Connolly to file a written response or to call in and schedule an interview within 20 days of receiving the letter. Nurse Connolly was reminded that any response "will be made a part of the file and will be considered by the Department and the Probable Cause Panel in determining whether a formal Administrative Complaint should be filed in the matter." Nurse Connolly was also advised that she was not required to answer any questions or give statements and that she could be represented by counsel. On November 12, 2004, as received by the Department of Health on November 15, 2004, Nurse Connolly responded in writing to the ongoing investigation addressing the documents involved in the investigation. She provided an explanation of her recollection of the events on March 13, 2003, related to the care she provided Patient M.M., disavowing any unprofessional conduct on her part. On June 1, 2005, an Order of Emergency Restriction of the license of Donna M. Cameron Connolly, A.R.N.P., C.R.N.A, was entered by the Secretary of the Department of Health. The significance here, is that C. Erwin Velbis, C.R.N.A., A.R.N.P., performed a review of what was referred to at that time as Case No. 2004-3490. On February 4, 2005, utilizing an outline provided by the Department of Health, he performed the medical review related to the overview of the March 13, 2003, case involving Patient M.M., the colonoscopy and the eventual death of the patient on March 17, 2003. In response to the question in the form, Question 3, which says: The applicable standard of care, step by step in this case is He replied: Preanesthesia Care, Basic Standards for Basic Anesthetic Monitoring, Standards for Safe use of Propofol Appropriate level of sedation (Monitored Anesthesia Care vs. Conscious Sedation vs. Deep Sedation/Analgesia vs. General Anesthesia Postanesthesia Care, Basic Standards for Documentation of Anesthesia Care Nurse Velbis indicated that Nurse Connolly, in providing care to Patient M.M. on March 13, 2003, failed to meet the standard of care set out in the questionnaire by: Subject's PACU arrival vital signs do not reflect what was first documented by nursing staff which revealed hypotension and bradycardia that was treated with romazicon and trendelenburg positioning. Subject left an unstable patient upon arrival to PACU no documented ECG rhythm strips support what dysrhythmia patient was having that required ACLS. Under the response to question number 6 in the form, Nurse Velbis opines that Nurse Connolly should have done the following: Stayed with patient upon arrival in the PACU after a bp 74/42 and p40 was assessed Initiated defibrillation more quickly once the airway was secured (10 minutes had expired before the Fire and Rescue Paramedics defibrillated the patient). Provided clear ECG documentation. In this review, Nurse Velbis indicated items that might increase or lessen Nurse Connolly's culpability to the effect: gastroenterologist assumed "captain of the ship" regarding responsibility and accountability in the anesthesia care team model no supplemental oxygen was applied to the patient at PACU nor were [sic] there documentation of the SpO2 dose of Romazicon given by PACU nursing staff is unknown from the records. Was the dosage appropriate for the level of sedation? Nursing staff should have called the subject if Ramazicon was necessary to awaken a previously conversant patient What is the patient to staff ratio in the combined holding area in PACU? Depositions illustrate providers physically too far away from the patient in this case (this is an obese patient with a BMI of 35, no supplemental oxygen, and in trendelenburg position). Patients can resedate and become apneic without continual stimulation. Nurse Velbis was also asked to comment on the Emergency Restriction Order in draft form, which took into account his expert opinion that had been rendered in his written review as a means to make certain that the Emergency Restriction Order accurately reflected his expert opinion. There was also a reference in April 4, 2005, correspondence to Nurse Velbis concerning the addition of a paragraph 19 to the Emergency Restriction Order describing Nurse Connolly's failure to utilize the bag-valve mask immediately as a failure to meet applicable standards of care. This correspondence also describes some discrepancy between the author and Nurse Velbis concerning information that he had reflected in his written review about vital signs associated with Patient M.M. when the patient first arrived at the PACU at Endosurg. On April 21, 2005, Nurse Velbis responded in writing to the April 4, 2005, correspondence, giving advice to omit paragraph 19c to the Emergency Restriction Order for reasons stated in the written response noting in the end that Nurse Connolly "remains justfully [sic] culpable for the underlying cause, primarily hypoxia, of M.M.'s PEA rhythm." Nurse Velbis, who had been called upon to review materials associated with the investigation into Nurse Connolly's conduct on March 13, 2003, in treating Patient M.M., had access to the Department of Health's investigative report that included medical records. Nurse Velbis' assessment of the circumstances in relation to care of Patient M.M. received on March 13, 2003, at Endosurg, contrasts with the January 11, 2005, memorandum from Kay Frank, R.N., B.S.N., a nurse consultant whose recommendation was "close complaint against D.C. (Donna Connolly) no violation. Consider further investigation of recovery and resuscitation of this client." The investigative report form by the Department of Health that addressed the complaint that was made October 15, 2004, was completed when approved on December 30, 2004. By its table of contents, it refers to written records received from the various sources under subpoena duces tecum to Endosurg, Lake Sumter Emergency Medical Services, Villages Hospital, and LRMC, with a summary of the impression gained from a review of these materials. The investigative report also includes summaries of interviews conducted with the Endosurg Risk Manager Consultant; the Nurse Administrator at Endosurg; the Risk Manager of the Villages Hospital; Maureen Mayhew, R.N. at Endosurg, who was in the PACU when Patient M.M. was transferred to that unit from the procedure room; and the Risk Manager for LRMC, as well as a summary of Nurse Connolly's response to the investigation. On June 20, 2005, a Probable Cause meeting was convened in which panel members Maria Seitz and Jeanne Stark participated. As the transcript of that meeting establishes, the panel members confirmed that they had had sufficient time to review the materials that have been described in aid of their deliberations. Among the cases on the agenda was the subject case involving Donna Connelly. Attorney Judy Law from the Department of Health, who participated in the panel discussion, noted that the panel members had been provided with complete case files including the investigative reports, attached exhibits, all patient medical records, and any expert opinion, as well as any material provided by a licensee to respond to the Department investigation. It was indicated that the panel members had been provided a draft of the Recommended Administrative Complaint in the Connolly case. Attorney LeeAnn Gustafson for the Board of Nursing, who participated in the meeting for probable cause, explained to the Probable Cause Panel members, that if they had questions concerning interpretation or the application of any provision within Chapters 456 and 464, Florida Statutes, they should direct them to her, as well as any of the specifics concerning the cases that were on the agenda at that time, to include the case involving Nurse Connolly. There is a reference in the probable cause transcript to a scrivener's error that needed clarification in the Administrative Complaint related to Nurse Connolly and a need to correct numbers in the paragraphs to the Administrative Complaint without changing the underlying facts. The panel members agreed to these corrections. During the Probable Cause Panel meeting, a Mr. Monte gave a case overview involving the March 13, 2003, incident related to Patient M.M. and commented that the basis for the case was a failure to meet minimum standards of acceptable and prevailing nursing practice: by leaving an unstable patient; by failing to verify the patient's vital signs upon admission; by failing to stay with the patient long enough to ensure that the patient was stable; by disregarding the patient's unstable vital signs; by failing to provide oxygen via bag, valve or mask, or through incubation (intubation) immediately; by failing to ensure the proper equipment for incubation (intubation) was readily available; by failing to utilize incubation (intubation) equipment in a timely fashion, as necessary to restore breathing in an emergency; and by choosing to use mouth to mouth resuscitation as a first intervention. With this explanation, Ms. Sietz moved to find probable cause, which was seconded by Ms. Starke. There ensued subsequent discussion about the case between the panel members and a possible disposition of the case by way of discipline imposed on Nurse Connolly. § 57.111(4)(a), Fla. Stat. (2005) "special circumstances" No evidence was presented by Respondent in this case to show that special circumstances exist which would make the award of attorney's fees and costs unjust.
The Issue This is a case in which the Petitioner seeks to suspend, revoke, or take other disciplinary action against the Respondent as licensee and against his license to practice medicine in the State of Florida. In a two count Administrative Complaint the Respondent is alleged to have violated paragraphs and (h) of Subsection 458.331(1), Florida Statutes, by failing to report to the Department certain activities he is alleged to have witnessed, and is alleged to have violated paragraph (t) of Subsection 458.331(1), Florida Statutes, by failing to take certain specified actions which it is alleged should have been taken by a reasonably prudent physician acting under similar conditions and circumstances. Because of the somewhat unusual nature of this case, the principal allegations of the Administrative Complaint are set forth below to give context to the remainder of this Recommended Order. 1/ * * * COUNT ONE On or about March 16, 1982, Respondent was present at the delivery of a male infant to Mary Jones, reportedly to serve as the supervising physician to three (3) midwives performing the delivery. The delivery was performed by Margaret Hebson, Linda Wilson and Ricky Taylor. Hebson, Wilson and Taylor are not licensed to practice midwifery in the State of Florida, a fact which was known or should have been known to Respondent. Based upon the foregoing, Respondent has violated Section 458.331(1)(f), Florida Statutes, by failing to report to the Department any person who the licensee knows in violation of this Chapter or of the rules of the Department or the Board. Based upon this violation, Respondent has violated Section 458.331(1)(h), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. * * * COUNT TWO Given Jones medical history, a reasonably prudent similar physician acting under similar conditions and circumstances would have ordered Jones transferred to the hospital rather than allow a home delivery to take place. Respondent did not. Respondent further failed to act prudently and to fulfill the duties that a responsible supervising physician acting under similar conditions and circumstances would have fulfilled by failing to examine Jones prior to delivery, failing to furnish obstetrical care when needed during delivery and failing to order Jones transferred to the hospital when it became apparent that Jones was suffering a prolonged labor. Following delivery the infant went into respiratory arrest and expired. A reasonably prudent physician acting under similar conditions and circumstances would have properly CPR to resuscitate the infant. Respondent did not. Based upon the foregoing, Respondent has violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses, I make the following findings of fact. The Respondent, Albert A. Sneij, is a licensed medical doctor, having been issued license number ME0034499, and was so licensed at all times relevant to this case. At all times material to this case, Linda Wilson was not a licensed midwife and Dr. Sneij knew that she was not a licensed midwife. 3/ Mary Jones became pregnant for the third time in June or July of 1981. She went to see Dr. R. Strassberg, a specialist in obstetrics and gynecology, on July 24, 1981, and thereafter made regular visits to Dr. Strassberg's office until February 16, 1982. Mary Jones did not go back to Dr. Strassberg's office after February 16, 1982, because she had decided she wanted to deliver her baby at home. Jones did not tell Dr. Strassberg's office she was planning to have a home delivery; she simply never returned to Dr. Strassberg's office after the visit of February 16, 1982. During the time Jones was being attended by Dr. Strassberg there was nothing particularly remarkable about the course of her pregnancy other than a somewhat large amount of increase in her weight. Prior to her pregnancy in 1981, Mary Jones had given birth to two children, one in December of 1970 and the other in August of 1975. Both of the prior children were born in a hospital. During both of her prior pregnancies Mary Jones was attended by obstetricians. Mary Jones' first baby weighed eight pounds, twelve-and-a-half ounces, and was born breech. Her second baby weighed nine pounds, eight ounces, and was a normal birth. During the course of her 1981 pregnancy, Mary Jones became interested in home birth and began to go to some home birth classes, including some classes that were being taught by Linda Wilson. Jones decided that she wanted to have her baby delivered at home by a midwife and asked Linda Wilson about procuring the services of a midwife. Wilson was not doing home births at that time because Wilson was in nursing school, but Wilson recommended that Jones contact Margaret Hebson because Hebson had indicated an interest in providing midwife services for home births. Mary Jones first met with Margaret Hebson in January of 1982, at which time Mary was in the seventh month of her pregnancy. At their first meeting Hebson took a history, wrote down information about Jones' background, did an external examination which consisted of taking Jones' blood pressure and pulse, listening to the fetal heartbeat, and feeling the position of the baby. At that time Mary Jones hired Margaret Hebson to be her midwife. Jones paid Hebson $100.00 in advance and agreed to pay her an additional $200.00 after the birth. 4/ About three weeks later Hebson went to Mary Jones' house to do another examination. During that visit Hebson told Jones that Linda Wilson was also going to attend the birth and that Wilson would bring a doctor. Jones was uncertain about whether she wanted to have a doctor at the birth. Jones' uncertainty was due in large part to her very negative attitude towards doctors and hospitals as a result of her experiences during her two prior deliveries. She felt that doctors and hospitals made the birthing experience too impersonal and did not permit her to do things her way. She particularly wanted to be able to have the people of her choice in the birthing room and to hold her baby as soon as it was born; things which were denied her during her two prior deliveries which were at hospitals where she was attended by doctors. Mary Jones called Linda Wilson to discuss what Hebson had told her and Wilson told Jones that she could meet the doctor at Wilson's classes and then make up her mind. The doctor turned out to be Dr. Albert A. Sneij. Mary Jones first met Dr. Sneij during February of 1982, during her eighth month of pregnancy, after she had already made the decision to have a home birth and had already hired and paid a midwife. She met Dr. Sneij at one of the classes conducted by Linda Wilson. On the day she met Dr. Sneij, he took a prenatal history, did an external examination of her abdomen, and listened to the fetal heartbeat. On at least one subsequent occasion Dr. Sneij performed a similar abdominal examination and again listened to the fetal heartbeat. Mary Jones never retained the services of Dr. Sneij, never asked him to be her doctor, never agreed to be his patient, and never agreed to pay him anything for his services. No doctor-patient relationship was ever established between Dr. Sneij and Mary Jones. Mary Jones did not really want Dr. Sneij, or any other doctor, to be present at her delivery, but merely tolerated his presence because of her understanding that Linda Wilson wished to have Dr. Sneij present. 5/ As late as two days before her delivery, Mary Jones told Wilson and Hebson that she was not comfortable around Dr. Sneij and didn't know if she wanted him to attend her delivery. Wilson and Hebson told her she could wait until she was in labor to decide whether she wanted to have the doctor present at the delivery. Mary Jones' understanding of why Linda Wilson wanted the doctor present was that in the event Jones tore any tissues during the delivery the doctor would be there to suture her. Postpartum suturing was the only thing that Mary Jones even impliedly agreed to let Dr. Sneij do for her. Dr. Sneij did not have her consent, expressed or implied, to do anything else. Early in the morning on March 15, 1982, Mary Jones began to have contractions and to experience some pain. She got in touch with Hebson and ultimately around 9:00 or 9:30 a.m., Linda Wilson and Ricki Taylor 6/ arrived at the Jones residence. They checked Mary Jones and told her not to worry and to go on about her regular activities. Mary Jones spent the rest of the day doing such things as having lunch with her sister, going shopping, and then going for a walk around the block with her husband. Sometime before 5:00 p.m. that day Mary Jones called Hebson again. Hebson said she could not get off work until 5:00 p.m., but would get in touch with Wilson or Taylor and have one of them go out to the Jones residence. Sometime shortly before 5:00 p.m., Ricki Taylor arrived at the Jones residence. Then between 5:30 and 6:00 p.m. Louise Godwin, who is Mary Jones' sister and a registered nurse, arrived at the Jones residence. Margaret Hebson arrived about the same time as Godwin. Hebson did an internal examination of Mary Jones and told her that she was dilated four centimeters. Hebson also asked Jones various questions about what she had eaten that day and took her pulse and blood pressure. Linda Wilson did not arrive until sometime after 7:00 p.m. At that time Godwin was making supper and from then until about 9:30 p.m. everyone present attended to such things as domestic chores, eating supper, and/or trying to make Mary Jones more comfortable. At about 9:30 p.m., Wilson, Hebson, and Taylor decided to take Jones' two sons to the drug store for a few minutes. As they were leaving, Mary Jones' mother arrived. Wilson, Hebson, Taylor and the two boys returned about 40 minutes later. Nothing eventful happened until shortly before 11:00 p.m., at which time Jones' contractions started coming a lot closer together and Mary Jones suggested that someone start getting the bedroom ready for the delivery. Things were made ready, Wilson, Hebson, and Taylor changed clothes, and shortly after 11:00 a.m. Mary Jones was in the bedroom ready to begin trying to deliver her baby. It was probably at about this time that Linda Wilson called Dr. Sneij. 7/ Before Dr. Sneij arrived at the Jones residence, there were ten other people in the bedroom with Mary Jones; namely, Hebson, Wilson, Taylor, Godwin, Bob Jones (Mary's husband), both of the Jones sons, Mary's mother, and two of Mary's friends. Dr. Sneij arrived at the Jones residence shortly thereafter and remained in the living room for a few minutes until someone asked him to come into the bedroom. 8/ When Dr. Sneij entered the bedroom the baby's head was not yet visible. At that time Mary Jones had probably been in the second stage of labor for about twenty or thirty minutes. The baby's head was first visible about five or ten minutes after Dr. Sneij entered the bedroom. Thereafter the top of the baby's head was visible pressing against the peroneum for approximately thirty minutes until the baby's head was entirely delivered. Within a minute or two after the delivery of the baby's head, the baby was fully delivered. When the baby was born it had a blueish color and was not making any attempt to breathe. The baby was promptly suctioned and then Dr. Sneij and Louise Godwin administered mouth-to-mouth CPR to the baby. The baby's pulse was checked and found to be present. A few minutes later Fire Rescue was called. When the Fire Rescue personnel arrived, they took over the CPR efforts. At that time the baby still had a pulse and during the CPR efforts by Fire Rescue the baby's color improved. Fire Rescue transported the baby to James Archer Smith Hospital. The baby was still alive when the Fire Rescue personnel delivered the baby to the hospital. The baby died some time before noon on March 16, 1982. From the time Dr. Sneij entered the bedroom until the time the baby was delivered, Dr. Sneij was observing what was happening and Hebson was doing most of the "hands-on" work assisting Mary Jones with the delivery. Hebson was being assisted to some extent by Linda Wilson. Ricki Taylor appears to have been primarily an observer. Dr. Sneij was sufficiently attentive to what was happening to conclude that the delivery should probably be expedited and to recommend an episiotomy. When it was suggested that an episiotomy be done, Mary Jones protested against that suggestion and refused an episiotomy. During the second stage of labor the fetal heartbeat was checked at least once every fifteen minutes and the heartbeat was recorded on the midwife's notes on labor and delivery. 9/ The fetal heartbeat rate never indicated any fetal distress and the baby still had a pulse shortly after delivery. An autopsy of the Jones baby was performed by Dr. Charles V. Wetli, the Deputy Chief Medical Examiner for Dade County, Florida. The autopsy revealed no evidence of trauma and no evidence of any congenital diseases or abnormalities. The only findings were generalized visceral congestion and petechiae of the lungs and heart. These findings are indicative of a nonspecific form of an asphyxial mechanism of death. 10/ Dr. Wetli also examined the placenta. It appeared to be normal and contained no evidence of meconium staining. He also examined a section of the umbilical cord and found it to be normal. I have not made any findings of fact as to the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under conditions and circumstances similar to those involved in this case because, for the reasons stated at length in the Conclusions of Law portion of this Recommended Order, there is no sufficiently substantial evidence in the record in this case a to the appropriate level of such care, skill, and treatment. 11/
Recommendation For all of the reasons stated above, I recommend that the Board of Medical Examiners enter a Final Order in this case which DISMISSES the entire Administrative Complaint against Dr. Sneij. DONE and ORDERED this 9th day of November, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1984.
Findings Of Fact At all times relevant hereto, Respondent was licensed as a medical doctor by the Florida Board of Medicine. He holds License No. ME 0019700. Respondent received his medical degree overseas and did his residence in obstetrics and gynecology at Bayfront Medical Center in St. Petersburg, Florida. He is neither board certified nor board eligible. For the past eight plus years Respondent's practice has been limited to terminating pregnancies at All Women's Health Clinic at Tampa, Florida. He has performed in excess of 15,000 abortions. One reason given by Respondent for so limiting his practice is the cost of medical malpractice insurance. Since he has no private practice, Respondent gave up admitting privileges at hospitals in the area. Without malpractice insurance, he would not be given staff privileges. On August 23, 1986, A. L., a pregnant 16 year old, entered All Women's Health Center, Tampa, to have her pregnancy terminated. A. L. had noted on her history statement that her last menstrual period started some eight weeks ago. Respondent first saw A. L. when he entered the procedures room at All Women's Health Center and commenced his examination prior to instituting abortion procedures. With respect to the examination the testimony varied widely. Diane Roberts, LPN, who was performing the duties of physician's assistant during the procedure, initially told the investigators that the examination lasted only a couple of seconds and consisted of a vaginal examination with two fingers of the right hand in the vagina while the abdomen was palpated with the left hand. At the hearing, Roberts testified that she wasn't paying much attention to the patient during the examination, didn't recall telling investigator the examination only took a couple of seconds, and recalled Respondent telling A. L. several times to relax. Respondent testified he performed a normal vaginal examination. The examination was longer than usual because A. L. wasn't relaxed and tensed her stomach muscles which made the uterus more difficult to palpate; and that following his examination he determined the gestational age of the fetus to be 12 weeks. Respondent testified he also checked the patient's heart and lungs before commencing the pelvic examination. A. L. testified that Respondent palpated her abdomen with two hands, but did not check heart and lungs or do a pelvic examination. A. L. had an earlier pregnancy terminated the previous year when the doctor did a pelvic examination with two fingers in the vagina while the abdomen was palpated with his other hand. The patient was ultimately determined to be 28 to 30 weeks pregnant. Largely because of the large error in gestational age, it is concluded that Respondent performed only a perfunctory examination on A. L. Had he conducted the proper examination, it is inconceivable that he, an experienced gynecologist, could underestimate the gestational age of the fetus by some four months. The magnitude of this error is illustrated by Respondent's testimony that a 12 week fetus is approximately 3 inches long and weighs 30 grams, while a 28 week fetus is approximately 14 inches long and weighs 1100 grams. Respondent started the procedure thinking he was aborting a 12 week fetus with the patient on the table and feet in the stirrups. After the instruments were inserted and the procedure started, Respondent concluded the fetus was 16 weeks, obtained a larger curette, then determined the fetus was more likely 20 weeks, again changed curette, and after removing fluid and part of an arm Respondent concluded that the gestational age of the fetus was some 28 weeks and required hospitalization to complete the procedure. Mistakes in determining gestational age can be made by a prudent physician if: (1) the patient is obese; (2) if the uterus is very soft and the extremities difficult to locate; (3) if the baby has a low fluid volume; (4) if the patient is very tense; or, (5) if the head of the fetus is felt and not the uterus. Here A. L. was more thin than obese which should have greatly facilitated palpation of the abdomen to determine the size of the uterus. Accepting the testimony that she was tense during the examination, and the earlier pregnancy would cause the uterus to be soft, no experienced gynecologist should conduct an examination of a patient such as A. L. and err on the magnitude here involved. Further, if the examination was difficult, the procedure should not have commenced until Respondent was reasonably positive of the gestational age of the fetus. One indication Respondent received that the fetus was older than 12 weeks was the quantity of fluid drawn. Further, no experienced gynecologist should mistake the head of the fetus as the extremity of the uterus on a patient such as A. L. Once Respondent determined the fetus was more than 16 weeks along, he called Dr. Barile, a gynecologist with admitting privileges at Humana Women's Hospital, Tampa, to request he remain available in case Respondent needed to send A. L. to a hospital. When Respondent determined the gestational age of the fetus' was more than 26 weeks, he again called Barile who suggested it would be better to refer the patient to an obstetrician. Respondent then telephoned his backup obstetrician and found she was on vacation, and a doctor with whom Respondent was not acquainted was taking her calls. Since A. L. was stable and in no apparent distress, Respondent called Dr. Klein, a pediatrician with admitting privileges at Bayfront Memorial Hospital in St. Petersburg. Dr. Klein agreed to take care of the patient by having his associate, who had the duty that day, meet the patient at Bayfront. A. L. had been brought to the clinic by her brother, and Respondent concluded A. L. could be safely transported to Bayfront by automobile and suggested her brother drive her. The brother demurred on the ground that his car overheated and might not make the 40-odd mile trip to Bayfront safely, but another brother had a more reliable car. The other brother was called and agreed to take his sister to Bayfront and stated that he would be at the clinic in about 10 minutes. Approximately 1 hour and 15 minutes later this brother arrived, and A. L. was started to the brother's car. At this time she appeared unsteady, and Respondent concluded she should go to Bayfront by ambulance. When a Hillsborough ambulance service was called, they told Respondent of the policy whereby they could not transport a patient out of Hillsborough County and that he should contact a Pinellas County ambulance service to perform the desired transportation. Respondent then called a Pinellas County ambulance service who arrived about an hour later to take A. L. to Bayfront where she was met by Dr. Yeshnick, the associate of Dr. Klein, who admitted the patient. Between the time Respondent determined the abortion could not be performed at the clinic until A. L.'s arrival at Bayfront Hospital, some 6 hours had elapsed. Of the approximately 15,000 abortions that Respondent has performed, less than 5 became emergencies that required removal from the clinic to a hospital. Respondent's backup procedures for emergencies were adequate. On August 23, 1986, A. L. was in the third trimester of her pregnancy, and the abortion was not necessary to save the life or preserve the health of A. L.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint December 19, 2005, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. See § 455.225, Fla. Stat. (2009). The Board is the entity responsible for regulating the practice of medicine in Florida and for imposing penalties on physicians found to have violated the provisions of Section 458.331(1), Florida Statutes. See § 458.331(2), Fla. Stat. (2009). At the times pertinent to this proceeding, Dr. Achong was a physician licensed by the State of Florida, having been issued license number ME38304, and his medical office was located at 690 East 49th Street, Hialeah, Florida. Dr. Achong specialized in obstetrics and gynecology, although he was not board-certified in these areas of practice. Dr. Achong has not previously been the subject of disciplinary action by the Board of Medicine, and he is not currently practicing medicine, having retired with a disability in 2006. At the times pertinent to this proceeding, Dr. Achong had hospital privileges at Hialeah Hospital and at North Shore Medical Center ("Medical Center"). Both facilities had his home telephone number and his beeper number. It was his practice to keep his beeper close to him at all times. When he was in the delivery room, it was his practice to give his beeper to the circulating nurse, who would be responsible for alerting him whenever someone tried to reach him on his beeper. The beeper he used in 2004 gave only the telephone number of the person trying to reach him, but he was able to recognize the number of Hialeah Hospital and the Medical Center. On February 12, 2004, Patient L.H. went to her gynecologist, Ramon Hechavarria, M.D., for a routine examination. Patient L.H. was, at the time, a 27-year-old who was 32 weeks' pregnant, and she had previously had one live birth. Dr. Hechavarria's examination revealed that Patient L.H.'s blood pressure was elevated, and Dr. Hechavarria admitted her to Medical Center for 24 hours for observation. On February 12, 2004, Dr. Hechavarria ordered blood and laboratory tests done in the Medical Center. The blood tests included a Disseminated Intravascular Coagulopathy ("DIC") profile and a Fibrinogen Degradation Profile ("FDP"); the results of these blood tests were normal. Patient L.H.'s hemoglobin and her platelet count were normal, and, although there was a slight trace of protein in her urine, that is considered normal. On February 13, 2004, Dr. Hechavarria discharged Patient L.H. with a diagnosis of chronic hypertension and a prescription for 250 milligram tablets of Aldomet, to be taken three times per day. Aldomet is a medication that treats hypertension by lowering the blood pressure. Patient L.H. was in good, stable condition when she was discharged on February 13, 2004. Readings from a fetal heart monitor taken during the time Patient L.H. was in the Medical Center indicated that the fetus was alive. Dr. Hechavarria considered Patient L.H.'s to be a high risk pregnancy in part because of her hypertension but also because she came in late for prenatal care, missed two appointments, and was overweight. Dr. Hechavarria left town for a vacation on February 13, 2004, and Dr. Achong was to cover his patients during his absence under an arrangement whereby Dr. Hechavarria and Dr. Achong provided coverage for each other when one or the other was out of town or otherwise unavailable to see patients. Under the arrangement, Dr. Achong was expected to go to the hospital if one of Dr. Hechavarria's patients were in labor or if a patient were to go to the emergency room complaining of vaginal bleeding or any other obstetrical or gynecological condition. Whenever coverage of patients was passing from one physician to the other, Dr. Hechavarria and Dr. Achong advised each other of any patient that was in the hospital for gynecological, obstetrical, or any other medical reason. They did not advise each other of patients that had recently been discharged from the hospital, and, therefore, Dr. Hechavarria did not discuss Patient L.H. with Dr. Achong because she had been discharged from the Medical Center before Dr. Achong began covering Dr. Hechavarria's patients. Patient L.H. presented at the Medical Center at approximately 2:00 a.m. on February 15, 2004, complaining of abdominal pains. She was seen by labor and delivery nurse Jennifer Williams, a registered nurse with 20 years' nursing experience, with 13 years' experience in the Medical Center's labor room, and with training as a mid-wife. Nurse Williams had worked with Dr. Achong at the Medical Center since 1991. Subsequent to Patient L.H.'s arrival at the Medical Center, Nurse Williams interviewed her, took her medical history, examined her, and entered the pertinent information on the Medical Center's Admission Assessment. The Admission Assessment form was dated February 15, 2004, and the time was noted as 2:45 a.m. The time written by Nurse Williams' signature on the Admission Assessment form was 3:00 a.m., and it appears that the information was obtained and entered on the form between 2:00 a.m. and 3:00 a.m. Pertinent to this matter, Nurse Williams maintained several other documents recording Patient L.H.'s condition and observations and actions taken by Nurse Williams relating to Patient L.H. Nurse Williams began maintaining a Labor Flow Record at 2:07 a.m. and she made periodic entries on the Labor Flow Record related to, among other things, Patient L.H.'s vital signs, the results of vaginal examinations and fetal monitoring, uterine activity, and pain intensity at different times during the night and morning. In addition, Nurse Williams entered on the Labor Flow Record the time and content of her communications with Dr. Achong; the first recorded contact between Dr. Achong and Nurse Williams was recorded on the Labor Flow Record as 2:30 a.m. Nurse Williams also maintained Progress Notes in which she recorded her observations of Patient L.H. and her conversations with Patient L.H. The first entry in the Progress Notes was at 2:35 a.m.2 Nurse Williams' Progress Notes reflect that, at 2:35 a.m., Patient L.H. advised Nurse Williams that she had contractions and believed she had been in labor since 6:00 p.m. the previous evening but had waited to come to the Medical Center until she was certain she was in labor. Patient L.H. also reported abdominal pain in her upper abdomen that did "not go away," and Nurse Williams observed that Patient L.H. was distressed by the pain in her abdomen. Patient L.H. also told Nurse Williams that she had no ruptured membranes or vaginal bleeding. Nurse Williams noted that she examined Patient L.H. and felt contractions but was unable to detect a fetal heart tone. Nurse Williams reported in the Admission Assessment form that Patient L.H. was having uterine contractions of moderate intensity and 60 seconds' duration, that her cervix was dilated 1-to-2 centimeters, that she had vaginal bleeding that was bright red, that her blood pressure was 159/118, which she described as "elevated," and that Patient L.H.'s abdominal pain was the "worse" pain on a pain scale ranging from 1 to 10; there is, however, no indication on the Admission Assessment form that the pain was constant. Nurse Williams also noted on the Admission Assessment form that she heard no fetal heart rate. Although the time noted on the Admission Assessment form was 2:45 a.m., it is apparent from a review of the relevant records that the information included on the Admission Assessment form was obtained by Nurse Williams over a period of time extending from the time Patient L.H. presented to her until 3:00 a.m., the time on the Admission Assessment form beside Nurse Williams' signature. Nurse Williams reported in the "Physician /CNM in/Called Report" section of the Labor Flow Record that she contacted Dr. Achong at 2:30 a.m. and conveyed to him the following information: "[P]atient arrived in ER c/o contractions since 6 pm last night & observation that no FHT [fetal heart tone] and contractions palpated." Nurse Williams telephoned Dr. Achong using his home telephone, even though his beeper number was also on file at the Medical Center. There is nothing in the report Nurse Williams gave to Dr. Achong at 2:30 a.m. that would require that he proceed to the Medical Center and examine Patient L.H., and he did not violate the standard of care by failing to do so. Because Dr. Achong did not know Patient L.H., Nurse Williams' normal procedure would have been to advise Dr. Achong of Patient L.H.'s history, including the medications she was taking, and her vital signs, including her blood pressure. No notation appears in the Labor Flow Record to confirm that she gave Dr. Achong this information during her conversation with him at 2:30 a.m., nor is there a notation in the 2:30 a.m. entry in the Labor Flow Record that Nurse Williams told Dr. Achong about the results of her examination of Patient L.H.'s cervix, Patient L.H.'s complaint of abdominal pain, or the presence of vaginal bleeding of bright red blood.3 Nurse Williams indicated in her entry in the "Physician/CNM in/Called Report" section of the Labor Flow Record that Dr. Achong ordered a "stat," or expedited, obstetrical sonogram during the 2:30 a.m. contact with Nurse Williams. The purpose of the obstetrical sonogram was to determine if the fetus was alive. Although not noted in the Labor Flow Record, the Labor and Delivery Orders form completed by Nurse Williams indicates that, at 2:30 a.m., Dr. Achong ordered a complete blood count, which is routine with a patient in labor; a DIC profile; and a Comprehensive Metabolic Panel ("CMP"). The Labor and Delivery Orders form contains standard orders for a woman in labor, but the DIC profile and the CMP tests were not included on the form but were ordered specifically by Dr. Achong. A DIC profile is used to determine if a patient has a problem with blood clotting. The DIC includes an assessment of prothrombin time and partial thromboplastin time, both of which indicate different levels at which a patient's blood is able to clot. It is important to know whether a woman in labor and delivery has a clotting problem, or coagulopathy, because of the danger of bleeding, and the classic situation in which DIC profiles are ordered is when there is fetal demise. Because Patient L.H. had the high risk factors of overweight and hypertension and because Nurse Williams could detect no fetal heart tone, Dr. Achong's order for the DIC profile was appropriate and met the standard of care. It is also appropriate to order a DIC profile when there is a concern about placental abruption, which is the separation of the placenta from the walls of the vagina. A placental abruption causes a great deal of bleeding, and can cause death when not treated, because the fetus is still in the womb and the uterus is not able to contract and constrict the large blood vessels that attach to the placenta. Although hypertension is one risk factor for placental abruption, the symptoms of placental abruption also include fetal demise, bleeding, constant pain, a decrease in hematocrit, and a number of other conditions. There is no indication in Patient L.H.'s medical records that Dr. Achong had sufficient information at 2:30 a.m. that would indicate that Patient L.H. had a possible placental abruption, and he ordered the DIC profile because of the lack of fetal heart tones.4 The CMP includes tests for kidney and liver function and for uric acid. It is used to determine if a woman has pre-eclampsia, or pregnancy-induced hypertension. Given Patient L.H.'s history of hypertension and the level of her blood pressure as reflected in the Admission Assessment form, Dr. Achong's order for the CMP was appropriate and met the standard of care in ordering the CMP. All orders for blood tests for women in labor and delivery are treated as "stat" orders and are processed ahead of all other test orders except those from the emergency room. When the situation warrants, a physician may order that the tests be performed more quickly than the usual "stat" order would require, and it would be possible to obtain blood-test results within 45 minutes. There is, however, no indication in Patient L.H.'s medical records that Dr. Achong had any information at 2:30 a.m. that might indicate that he should further expedite Patient L.H.'s blood tests. Nurse Williams reported in her Progress Notes that, at 2:40 a.m., Patient L.H. reported a "gush of something down there," and Nurse Williams noted that she observed a large amount of blood; there is, however, no notation in the Progress Notes regarding the color of the blood. Nurse Williams also included a notation in the Progress Notes that Patient L.H.'s cervix was "3cm dilated, 50% effaced, -3 station" to describe the progress of Patient L.H.'s labor. Nurse Williams reported in the Labor Flow Record that she contacted Dr. Achong at 2:45 a.m. and conveyed to him the following information: "Dr. Achong notified of gush of vaginal bleeding. VE [vaginal examination] 2-3, 50% effaced, -3 station and that we are awaiting sonogram." The results of Nurse Williams' vaginal examination of Patient L.H. showed that Patient L.H. was in active labor. The information that Patient L.H. experienced a "gush of vaginal bleeding" did not indicate to Dr. Achong that there was anything more than one episode of bleeding, which he attributed to an especially heavy "bloody show," which is the bleeding that occurs when the cervix is dilating. The notation indicates that Dr. Achong told Nurse Williams to call him if Patient L.H. went to delivery. The information conveyed to Dr. Achong at 2:45 a.m., as reflected in the notation in the Labor Flow Record, was not sufficient to indicate that Patient L.H. was not proceeding through labor normally to a vaginal delivery of the dead fetus, which is preferred over delivery by a Cesarean Section. Nurse Williams did not include in her records a notation that she advised Dr. Achong that the "gush of vaginal bleeding" consisted of a large amount of bright red blood, which would have been an indication of a possible placental abruption. Some bleeding is normal during labor, but it is usually a dark color from having been in the uterus and in a small amount or tickle, although there could be a "gush of blood" during normal labor. When Dr. Achong was advised by Nurse Williams that Patient L.H. had a "gush of blood," however, it was his responsibility to inquire into the amount of blood, the color of the blood, and the persistency of the bleeding to determine if Patient L.H. was proceeding with normal labor or if she was experiencing a hemorrhage or other abnormal condition. Nurse Williams made no entries in the Progress Notes for Patient L.H. between 2:40 a.m. and 3:40 a.m., when she reported that the ultrasound had been completed. She further noted in her Progress Notes: "Report of no fetal heart tones to Dr. Achong. Orders given." Nurse Williams additionally made a notation in the Labor Flow Record that, at 3:40 a.m., she contacted Dr. Achong and reported to him the following: "Ultrasound report No FHT's given to Dr. Achong. Orders received." Nurse Williams did not, however, indicate in her notations what orders were given. Nurse Williams contacted Dr. Achong through his home telephone number, which was normal procedure during the nighttime hours. When the sonographer, that is, the person performing the sonogram, entered Patient L.H.'s room to perform the sonogram, he noted that Patient L.H. was sitting upright in bed, was combative, and was in a lot of pain. He also noted that there was a fair amount of blood on the bed sheets. The sonographer was able to get Patient L.H. to lie on the bed, and he performed "a very short ultrasound,"5 and pulled the machine out of the room and into the hall. He powered the machine back up and read the numbers off the worksheet on the machine. He confirmed that the fetus was dead and that the placenta appeared to be balled up rather than lying smoothly against the uterine wall, as is normal. While he was writing down the information from the worksheet on the machine, Nurse Williams approached him and told him that she had Dr. Achong on the telephone. He told her that he had "a placental abruption and fetal demise."6 He then wrote up his report, left a copy for Nurse Williams, and went downstairs to process the sonogram images.7 The results of the sonogram were reported on a form headed "Obstetrical Preliminary Report," which was completed by the sonographer. A radiologist is usually present at the Medical Center during daytime hours to read sonograms, but on the off-hours, it is the practice of the sonographer to present a sonographer's impression of what was seen during the sonogram. The sonographer who performed the sonogram on Patient L.H. noted on the report that her history included obesity, hypertension, heavy vaginal bleeding, and contractions. He included the following comments in the report: "Ant/Rt [unintelligible] placenta appears to be 'balled up[.]' Suggestion of placental abruption," and, on a separate line, "NO FETAL HEART MOTION SEEN PT IS COMBATIVE." Finally, at the bottom of the report, the sonographer noted that a copy of the report was given to Nurse Williams. There was no notation as to the time the sonographer gave the report to Nurse Williams, but, even if she had the report, she did not read it to Dr. Achong; rather, she put the copy of the report in Patient L.H.'s chart for Dr. Achong to review when he came to the hospital and gave him only a verbal report. Nurse Williams did not tell Dr. Achong during the 3:40 a.m. telephone conversation that the sonographer had reported a possible placental abruption.8 Dr. Achong was familiar with and had treated placental abruptions prior to February 15, 2004, and he always treated patients with placental abruptions on an emergency basis because both the mother and the baby could die if treatment was not received as soon as possible. Had Nurse Williams advised Dr. Achong that the sonographer had told her that he found a placental abruption or that the sonogram report included a reference to a possible placental abruption, he would have gone to the Medical Center immediately. At 3:45 a.m., Nurse Williams noted in her Progress Notes that she gave Patient L.H. Nubain and Phenergan for her painful contractions. There is no mention of continued vaginal bleeding in this entry in the Progress Notes. At 4:15 a.m., Nurse Williams noted in her progress notes that Patient L.H. was sleeping quietly and was relaxed and that Pitocin had been administered in accordance with Dr. Achong's orders. Pitocin is used to induce labor, augment labor, or to stop bleeding. In this case, Dr. Achong ordered the Pitocin to regulate Patient L.H.'s contractions. There is no mention in the 4:15 a.m. entry in the Progress Notes of continued vaginal bleeding. The next entry in Nurse Williams' Progress Notes was made at 5:15 a.m., when Nurse Williams reported that she had observed vaginal bleeding, that a vaginal examination showed dilation of four centimeters, and that Patient L.H. was very restless and moving around the bed. Nurse Williams received the laboratory report showing the results of the blood tests ordered by Dr. Achong at or around 5:00 a.m. According to the laboratory report, the blood for these tests was drawn at or about 3:20 a.m.; the report did not show any critical values in the blood sample. Nurse Williams attempted to contact Dr. Achong to convey these results to him. She noted on the Labor Flow Record that, at 5:15 a.m. "Dr. Achong beeped re lab results. Phone message left on home phone to call LR [Labor Room]." Nurse Williams made another entry on the Labor Flow Record that, at 6:55 a.m., she left a "message to Dr. Achong answering machine at home re labor progress update and labs." Dr. Achong was not, however, at home to receive the telephone calls or the messages. At or about 5:00 a.m. on February 15, 2004, Dr. Achong received a telephone call on his home telephone from Hialeah Hospital advising him that one of his patients or one of Dr. Hechavarria's patients was in active labor and about to deliver. Shortly after receiving the telephone call, Dr. Achong left his home to travel to Hialeah Hospital. He carried his beeper with him, but he did not receive any calls on the beeper. When he arrived at Hialeah Hospital and prepared to go into the delivery room, he gave it to the circulating nurse in case he should receive a beeper call while he was in the delivery room. Nurse Hayes, who had replaced Nurse Williams when Nurse Williams' shift had ended at 7:00 a.m., made a notation on the Labor Flow Record that, at 7:15 a.m., she called Dr. Achong and left a message. At 7:25 a.m., while he was in the delivery room, Nurse Hayes called his beeper. The circulating nurse had his beeper, and she notified him that he had received a call and told him the number. He recognized the number of the Medical Center, and he told the nurse to call the Medical Center and let them know that he was in the delivery room at Hialeah Hospital. Nurse Hayes asked that he call back as soon as possible. Blood for additional blood tests was drawn at or about 7:30 a.m., and the results, which were available within 15 minutes, showed several critical values that indicated that Patient L.H. was entering coagulopathy. At 7:38 a.m., as soon as he finished the delivery, he called the Medical Center and spoke with Nurse Hayes, who gave him a report on the status of Patient L.H. She told him that Patient L.H. had heavy bleeding and that the vaginal examination showed no change in the cervix. Dr. Achong ordered the Pitocin turned off. When Dr. Achong arrived at the Medical Center at 7:56 a.m., he found Patient L.H. very combative, bleeding, and with very bad vital signs. He ordered a "stat" Cesarean Section and ordered a blood transfusion. Patient L.H. died at 8:38 a.m., before any of the measures ordered by Dr. Achong could be implemented. The cause of death was recorded as placental abruption. Summary In summary, the evidence presented by the Department is not of sufficient weight to establish that Nurse Williams conveyed to Dr. Achong the information necessary for him to conclude that he should personally conduct a clinical evaluation of Patient L.H.; that he should consider the possibility that Patient L.H. had placental abruption; or that he should have provided medical assistance to Patient L.H. prior to his contact with Nurse Hayes at 7:38 a.m. Nurse Williams' Progress Notes report only two remarkable items: There were no fetal heart tones detected by physical examination or by sonogram; and, at 2:40 a.m., Patient L.H. reported a "gush of something" and Nurse Williams observed a large amount of blood. Neither Nurse Williams' entries in the Labor Flow Record regarding her contacts with Dr. Achong nor her testimony, to the extent that it has been found persuasive, is sufficient to establish that she advised Dr. Achong that she had observed a large amount of red blood at 2:40 a.m. or that the sonographer detected a possible placental abruption in the sonogram. Finally, Nurse Williams did not follow the protocol that required her to contact Dr. Achong through his beeper when she did not get an answer on his home telephone; she tried his beeper only once, at 5:15 a.m., and when she failed to reach him, left three messages on his home telephone. The Department presented no evidence to establish that Nurse Williams attempted to reach Dr. Achong by beeper between 5:15 a.m. and 7:55 a.m., the time of her last call to Dr. Achong's home telephone. Furthermore, the Department did not present evidence of sufficient weight to establish that Dr. Achong failed to initiate the appropriate procedures after he arrived at the Medical Center and examined Patient L.H. at or around 8:00 a.m. The evidence presented by the Department is, however, of sufficient weight to establish that Dr. Achong should have questioned Nurse Williams further when she advised him at 2:45 a.m. that she had observed a "gush" of vaginal bleeding. Even though vaginal bleeding may not be not unusual during labor, a report of a "gush" of blood should have alerted Dr. Achong to a potential problem. Although a physician practicing obstetrics is meeting the standard of care when relying on labor room nurses to advise him or her of the clinical status of labor and delivery patients and of any unusual symptoms exhibited by the patients, it is also incumbent on the physician to inquire further if a patient is presenting unusual symptoms. The persuasive evidence establishes that Dr. Achong violated the standard of care when he failed to ask Nurse Williams for additional information on Patient L.H.'s status during their 2:45 a.m. telephone conversation. Had he inquired further, Dr. Achong would have been alerted to the possibility that Patient L.H. had a placental abruption and would have gone to the hospital to provide appropriate care for Patient L.H.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order finding that Dr. Achong violated Section 458.331(1)(t), Florida Statutes, by failing to elicit further information from Nurse Williams regarding the gush of blood she observed in Patient L.H and imposing the following penalties: Issuance of a letter of reprimand; Imposition of administrative fine in the amount of $2,500.00; and Six months' probation under such conditions as the Board of Medicine determines appropriate, should Dr. Achong ever resume the practice of medicine. DONE AND ENTERED this 4th day of January, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 4th day of January, 2010.
The Issue The issues are whether Respondent failed to maintain emergency medications, in violation of Florida Administrative Code Rule 59A-9.0225(1), and failed to ensure that a defibrillator was available for immediate use, in violation of Florida Administrative Code Rule 59A-9.0225(2). If so, another issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has operated, under the jurisdiction of Petitioner, a licensed abortion clinic facility, bearing license number 899. The facility in question is located in North Miami Beach. At the time of the surveys described below, Respondent also operated another facility in south Miami, but that facility is not involved in this case. All references to "facility" will therefore refer to the North Miami Beach location. On June 8, 2010, one of Petitioner's surveyors conducted a relicensure survey of Respondent's facility. As is typical of such surveys, this survey was unannounced. During the survey, the surveyor discovered three expired medications in the facility: 0.2 mg Isuprel®--expired August 2009, 0.4 mg atropine--expired February 2010, and an unspecified dosage of nalbuphone--expired February 2010. These expired medications were on a shelf in the operating room. During the survey, the surveyor also discovered that the facility did not have a defibrillator. At the conclusion of the survey, the surveyor conducted an exit conference with the sole employee present at the facility. During this conference, the surveyor explained these deficiencies and gave Respondent until July 8, 2010, to correct them. Subsequently, the surveyor prepared a report showing these violations and confirming that the deadline for correcting both deficiencies was July 8, 2010. On April 21, 2011, the surveyor returned, again unannounced, to the facility to conduct a followup survey and again found only one employee present at the facility. During this survey, the surveyor discovered three expired medications in the facility: one 500-ml IV bag of Lactated Ringer's-- expired April 2009, 1 mg atropine--expired November 2010, and 2% lidocaine hydrochloride injection--expired November 2010. The surveyor found these expired medications in a locked storage box on the crash cart, which is the cart used for medical emergencies. During the followup survey, the surveyor also discovered that the facility did not have a defibrillator. On the dates of both surveys, the facility did not have any surgical procedures scheduled. Also, no patients were present at anytime during either survey. During each survey, the surveyor selected five dates at random to determine if the facility had performed any second- trimester abortions, and she found that no such procedures had been performed on any of these dates. For this reason, the surveyor did not cite the facility for any violations that are contingent on the actual performance of second-trimester abortions--such as, the failure to have a registered nurse in the recovery room. Similarly, because no patient was present during the surveys, the surveyor testified that she did not cite the facility for a failure to maintain anaesthesia equipment in the operating room; the surveyor explained that the anaesthesiologist brings his or her own equipment when attending a surgical procedure. The surveyor explained that she cited Respondent for the deficiencies alleged in this case because they are contingent upon licensure only, not licensure and the actual performance of second-trimester abortions. At the time of each survey, regardless of the level of patient activity, the facility was open and capable of supporting the procedures for which it is licensed. Dr. Rosenthal offered an explanation for each of the deficiencies cited in this case. As he testified, the expired medications found during the followup survey were in a locked storage box maintained by a certified registered nurse anesthetist, who had not worked at the facility for several years, but had never returned to retrieve her storage box. However, Dr. Rosenthal's explanation does not account for why the surveyor missed the Lactated Ringer's IV fluid during the original relicensure survey, if, in fact, she did miss this item. (The other two items were not expired at the time of the earlier survey.) Notwithstanding any shortcoming in Dr. Rosenthal's explanation, more importantly, the record fails to establish the absence of current emergency medications and IV fluids at the facility. As noted below, the cited rule requires that the facility contains these items; as long as it does, the cited rule is not violated by the presence of expired medications and fluids at the facility. The presence of such expired items is insufficient, especially when the standard of proof, as noted below, is clear and convincing evidence, to support an inference that adequate, current medications and IV fluids were not also available at the facility. As Dr. Rosenthal testified, at the time of both surveys, Respondent maintained a single defibrillator, which he transferred from one facility to another, depending on which facility was to be the site of surgical procedures on a given day. This explanation is not responsive to the requirement of a defibrillator at each facility.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of failing to maintain a defibrillator and imposing an administrative fine of $500 for this violation and dismissing the charge pertaining to expired medications and IV fluids. DONE AND ENTERED this 10th day of July, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2012. COPIES FURNISHED: Vlad Van Rosenthal A Medical Office for Women Suite 402 909 Northeast 163rd Street Miami, Florida 33160 Nelson E. Rodney, Esquire Agency for Health Care Administration Suite 300 8333 Northwest 53rd Street Miami, Florida 33166 nelson.rodney@ahca.myflorida.com Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308
