The Issue Whether the Petitioner committed the violations alleged in the Administrative Complaint dated September 10, 2004, as amended by Order entered January 11, 2006, 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: Parties 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. 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. Dr. Byrd is, and was at the times material to this proceeding, a physician licensed to practice medicine in Florida, having been issued license number ME 43323, and he is Board-certified in Family Practice. At the times material to this proceeding, Dr. Byrd conducted an office practice and saw approximately 20 patients each day, including those who had an appointment and those who walked in without an appointment. In addition to his private practice, Dr. Byrd was, at the times material to this proceeding, a full-time physician for the Brevard County Department of Corrections and was responsible for providing medical care for all prisoners in that system. Facts underlying charges in Administrative Complaint Patient J.S. was a patient of Dr. Byrd's from approximately 1999 until June 2001. Dr. Byrd treated Patient J.S. during that period primarily for general medical issues. Patient J.S.'s last visit to Dr. Byrd's office was June 11, 2001. The office visits material to this proceeding occurred on December 27, 2000; January 29, 2001; and June 11, 2001. Beginning when she was approximately 20-to-21 years of age, Patient J.S. routinely performed breast self-examinations once or twice a month. She performed a self-examination a few days before Christmas 2000, while she was visiting in New Jersey, and believed she felt a lump in her right breast. She drove home the day after Christmas and telephoned Dr. Byrd's office. She told the person she spoke with that she had found a lump in her breast. The record of Patient J.S.'s December 27, 2000, contact with Dr. Byrd's office was inserted into a form that had been completed for an office visit on November 15, 2000. The date "12.27.00" appears approximately mid-way down the page, with a diagonal line drawn underneath. Below the diagonal line was written "Mammo & ultrasound script given[.] Pt feels she may have a lump in Breast." What appear to be the initials "DS" are included beneath the notation, and the handwriting in this notation is that of Dr. Byrd's medical assistant. Dr. Byrd did not examine or speak to Patient J.S. on December 27, 2000, and he relied on the information conveyed to him by his medical assistant in making the decision to write a prescription for Patient J.S. to obtain an ultrasound and a mammogram.2 Dr. Byrd's staff scheduled an appointment with Boston Diagnostic Imaging for Patient J.S., and she had a bilateral film mammogram and an ultrasound of her right breast done on January 3, 2001.3 In the report of the January 3, 2001, bilateral mammography examination, which was dictated January 3, 2001, the radiologist stated: CLINICAL INDICATIONS: Diagnostic mammography. The patient reports a palpable abnormality within the upper outer quadrant of the right breast. This site was marked with triangular marker. FINDINGS: There is a 2 cm asymmetric area of parenchymal density within the upper outer quadrant of the right breast at the approximately 12 o'clock position. This appears fairly distant from the palpable marker. I would recommend additional cone compression views of the right breast at this time. Some small subcentimeter nodular parenchymal densities are scattered through both breasts. No discreet [sic] mass is noted underlying the region of palpable area of clinical concern. Any clinically suspicious palpable abnormality should be aspirated and biopsied. Some benign microcalcifications are noted bilaterally. * * * IMPRESSION: NUMEROUS SUBCENTIMETER NODULAR DENSITIES SCATTERED THROUGHOUT BOTH BREASTS. GIVEN THE MULTIPLICITY OF FINDINGS THESE ARE LIKELY BENIGN. I WOULD RECOMMEND COMPARISON WITH PRIOR MAMMOGRAPHIC STUDY TO DETERMINE STABILITY. ASYMMETRIC 2 CM NODULAR DENSITY LOCATED IN THE 12 O'CLOCK POSITION OF THE RIGHT BREAST POSTERIORLY. I WOULD RECOMMEND CORRELATION WITH PRIOR STUDY OR ADDITIONAL CONE COMPRESSION VIEWS OF THE RIGHT BREAST AT THIS TIME.[4] Dr. Byrd received a copy of this report from Boston Diagnostic Imaging, signed it, and made a notation on the report to "give ptn copy." He assumes that his staff followed his instructions and gave Patient J.S. a copy of the report, but Dr. Byrd does not recall discussing this report with Patient J.S. The report of the January 3, 2001, bilateral mammography examination showed an abnormality in Patient J.S.'s right breast. Dr. Byrd did not, however, order a cone compression view of the right breast or any other diagnostic test as a result of the report. Rather, Dr. Byrd waited for the Boston Diagnostic Imaging radiologist to do a comparison study of the January 3, 2001, mammography results and the results of any prior mammographic study that the radiologist might locate. A second report of the results of the January 3, 2001, examinations was issued by Boston Diagnostic Imaging, the substance of which is a more comprehensive report of the results of the ultrasound examination of Patient J.S.'s right breast.5 In this second report, which was captioned "Bilateral Film Mammography" and dictated on or about January 5, 2001, the radiologist stated: CLINICAL INDICATIONS: Diagnostic breast ultrasound. Palpable lesion in the upper outer quadrant of right breast. FINDINGS: Sonographic evaluation of the 9-12 o'clock position of the right breast was performed at the site of the patient's reported palpable abnormality. At the 10-11 o'clock position in the right breast at the patient's site of reported abnormality, no discrete solid or cystic nodules are noted by ultrasound. There are two small hypoechoic solid nodules noted at the 12 o'clock position of the right breast measuring 8 x 6 mm. in aggregate size. This is nonspecific and may represent small fibroid adenomas. No dominant solid or cystic nodules are noted by ultrasound in the 12 o'clock position of the right breast to correspond to 2 cm. asymmetric parenchyma density noted on the mammography. Recommend additional cone compression views of the right breast at this time.[6] No simple cyst is noted within the upper outer quadrant. IMPRESSION: TWO SMALL SUBCENTIMETER HYPOECHOIC NODULES NOTED AT THE 12 O'CLOCK POSITION IN THE RIGHT BREAST. THIS IS FAIRLY DISTANT FROM THE REGION OF THE PATIENT'S PALPABLE ABNORMALITY. CONSIDER SHORT TERM FOLLOWUP EXAMINATION. CONSIDER FOLLOWUP RIGHT BREAST ULTRASOUND EXAMINATION IN 6 MONTHS TO EVALUATE FOR STABILITY. NO DISCRETE SOLID OR CYSTIC NODULE IS NOTED IN THE 9-11 O'CLOCK [POSITION] IN THE RIGHT BREAST AT THE SITE OF THE PATIENT'S REPORTED PALPABLE ABNORMALITY. ANY CLINICALLY SUSPICIOUS PALPABLE ABNORMALITY SHOULD BE ASPIRATED BY BIOPSY. NO DOMINANT 2 CM. SOLID OR CYSTIC MASS IS NOTED AT THE 12 O'CLOCK POSITION OF THE RIGHT BREAST BY ULTRASOUND. A "Corrected Copy" of the second report contained the following changes: (1) The heading of the corrected report was changed to "RIGHT BREAST ULTRASOUND" examination; (2) the corrected report stated that the technique involved "[u]sing hand-held sonographic technique, breast was scanned"; and (3) the corrected report indicated that the results of the test were compared with the bilateral mammography of January 3, 2001. In all other respects, the "Corrected Copy" of the report was identical to the second report.7 Dr. Byrd did not receive the Corrected Copy of the report of the ultrasound examination of the right breast. He did, however, receive a copy of the second report. Dr. Byrd signed his copy of the second report, and made the following notation: "Patient aware to follow up in six months with ultrasound." Dr. Byrd did not recall speaking with Patient J.S. about the second report, but he assumed from this note that he did speak with her, probably by telephone. Dr. Byrd did not order a cone compression view of Patient J.S.'s right breast, nor did he schedule a short-term follow-up examination. Boston Diagnostic Imaging issued a fourth report, dictated on January 16, 2001, which was entitled an "Addendum" to the report of Patient J.S.'s January 3, 2001, bilateral mammography examination.8 In the Addendum, the radiologist stated: FINDINGS: Study done here 01/03/01 is compared with exam of 03/02/95. Multiple nodular densities were noted on the previous study. Now that old films available, three area[s] of densities, two in left breast and one in the right breast, are significantly larger than they were then. Ultrasound is recommended for further evaluation. The largest of these is on the right [breast] at 12 o'clock and measures 2 cm. Second of these is in the left breast, slightly superior and slightly lateral to the nipple and contains a single calcification. It is probably 1 cm in maximal diameter and these two side by side lesions are seen on the oblique lateral view of left breast superior aspect. One of these twin densities lies medial to the nipple and measures approximately 14 mm while the other of these twin lesions probably lies slightly lateral to the nipple. No skin thickening, nipple retraction, hypervasculature or microcalcifications can be seen. IMPRESSION: 1. BILATERAL BREAST ULTRASOUND IS RECOMMENDED TO EVALUATE A 2 CM LESION AT 12 0'CLOCK IN RIGHT BREAST AND TO EVALUATE THREE NODULAR MASSES IN LEFT BREAST, ALL OF WHICH ARE SLIGHTLY LARGER IN SIZE THAN THEY WERE ON THE 03/02/95 STUDY. ULTRASOUND SHOULD BE DONE AS SOON AS CAN BE SCHEDULED. Dr. Byrd received and reviewed this Addendum report, circled "BILATERAL BREAST ULTRASOUND IS RECOMMENDED," signed and noted "Done" on the first page of the report. Dr. Byrd did not discuss the results of the Addendum report with Patient J.S., did not schedule a follow-up appointment to discuss the report, and did not give Patient J.S. a copy of this report. Dr. Byrd felt that it was sufficient that he intended to order an ultrasound examination of Patient J.S.'s left breast. Patient J.S. called Dr. Byrd's office and scheduled a follow-up appointment for January 29, 2001. She believed that the lump in her right breast was getting bigger. Dr. Byrd saw Patient J.S. during an office visit on January 29, 2001, at which time he did a physical examination and an examination of her breasts. He was unable to find a lump in her right breast, which caused him to question whether Patient J.S. did, in fact, feel a lump. He noted that he found cystic structures in Patient J.S.' left breast. Dr. Byrd also noted in the medical record of the January 29, 2001, office visit the plan to refer Patient J.S. for another ultrasound. Dr. Byrd did not, however, order a bilateral breast ultrasound as the radiologist recommended in the Addendum report; rather, he ordered only an ultrasound examination of Patient J.S.'s left breast because an ultrasound examination of the right breast had been done on January 3, 2001, and Dr. Byrd felt that no new information would be obtained from another ultrasound examination of Patient J.S.'s right breast. Dr. Byrd was also concerned that Patient J.S.'s insurance company might not pay for another ultrasound examination of her right breast and that she would have to pay for the examination. Dr. Byrd did not include in the medical record of Patient J.S.'s January 29, 2001, office visit a notation that he performed an examination of Patient J.S.'s breasts. According to Dr. Byrd, one can infer that he examined Patient J.S.'s breasts from the notation on the record that he detected cystic structures on her left breast and from the fact that Patient J.S.'s complaint was noted on the medical record as pain in her right breast. The only notation on the medical record regarding Patient J.S.'s complaint of a lump in her right breast was "Large mass ?". There is no mention in the medical records of the January 29, 2001, office visit that Dr. Byrd discussed with Patient J.S. the results of the mammogram, ultrasound of the right breast, or the addendum to the mammogram. Dr. Byrd did not recall Patient J.S. requesting at the January 29, 2001, office visit a referral for a biopsy, but he did recall that Patient J.S. was very anxious about what she perceived as a lump in her right breast. Even though he could not palpate a lump in the location indicated by Patient J.S., in light of the suspicions in the report of the January 3, 2001, mammogram examination of the right breast and in the addendum to this report, Dr. Byrd would "probably" have referred her for a biopsy on January 29, 2001, if she had asked him to do so. In Dr. Byrd's opinion, however, there was no clinical indication in his physical examination of Patient J.S.'s breasts on January 29, 2001, or in the reports of the mammography examination and addendum or in the ultrasound examination of her right breast to indicate that he should refer Patient J.S. for a biopsy of her right breast. The ultrasound examination of Patient J.S.'s left breast was done by Boston Diagnostic Imaging on March 7, 2001, and the report was dictated on March 9, 2001. According to the report, the ultrasound examination of Patient J.S.'s left breast correlated with the results of the mammography examination and showed multiple cystic regions in Patient J.S.'s left breast, ranging in size from 1 mm to 3 mm. in diameter. The radiologist noted that the cysts were benign. Dr. Byrd received and initialed the report of the March 7, 2001, ultrasound, but he did not discuss the results of the ultrasound with Patient J.S. Patient J.S. became concerned because the lump she felt in her right breast was getting bigger, and she called Dr. Byrd's office and scheduled another office visit for June 11, 2001. When she called to make the appointment, she told Dr. Byrd's nurse that the lump was getting bigger. Dr. Byrd did not examine Patient J.S. during the June 11, 2001, office visit. Rather, Patient J.S. was seen by Dr. Byrd's physician's assistant, who noted on the medical record of the office visit that "Pt wants referral for breast Bx." Dr. Byrd's physician's assistant did not examine Patient J.S.'s breasts during the June 11, 2001, office visit, but Dr. Byrd, when he reviewed the physician's assistants notes of the June 11, 2001, office visit, approved a referral to a general surgeon for a breast biopsy. Patient J.S. called Dr. Jeffrey Smith on Dr. Byrd's referral. Dr. Smith advised Patient J.S. to get an updated mammogram and ultrasound examination of her right breast. Before she obtained these tests, however, Dr. Smith performed a core needle biopsy of the mass in her right breast that produced a finding that the mass was benign. Mammography and ultrasound examinations of Patient J.S.'s right breast were performed at Boston Diagnostic Imaging on July 13, 2001, and both the mammogram and ultrasound indicated a mass in the upper outer quadrant of Patient J.S.'s right breast, at the 11:00 o'clock position, that was "highly suggestive of malignancy." The radiologist called his report in to Dr. Smith and strongly recommended a biopsy. Dr. Smith performed a lumpectomy that produced a finding that the mass was malignant. Patient J.S. had a mastectomy of her right breast, followed by chemotherapy. Standard of Care Dr. Byrd was required to practice medicine in his care of Patient J.S. 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." Based on the credited opinions of George Wilson, M.D., Dr. Byrd's treatment and care of Patient J.S., violated the standard of care for the following reasons. Even though a family practice physician is justified in relying on the findings, impressions, and recommendations of a radiologist, the standard of care applicable to family practice physicians under the circumstances presented in this case requires the physician to assess all of the information available to him or her and to refer the patient for further evaluation if medically indicated. Specifically, when a female patient presents with a complaint that she has felt, or even has possibly felt, a lump in her breast, the standard of care requires a family practice physician to rule out a malignancy. In this case, at the time of Patient J.S.'s January 29, 2001, office visit, Dr. Byrd had available the information that Patient J.S. believed that she had detected a lump in her right breast and that she was experiencing pain in her right breast; the report of the January 3, 2001, bilateral mammography examination, in which the radiologist reported an abnormality in the form of an "asymmetric 2 cm nodular density located in the 12 o'clock position of the right breast posteriorly," the general area in which Patient J.S. had reported feeling a lump; and the Addendum report dictated on or about January 15, 2001, in which the radiologist reported that a comparison of the January 3, 2001, mammography examination and a 1995 mammography examination showed that the two-centimeter mass in Patient J.S.'s right breast, as well as two "densities" in her left breast, were either "significantly" or "slightly" larger than they were in 1995. Even though it was reasonable for Dr. Byrd to rely on the recommendations of the radiologist, there were inconsistencies in the recommendations included in the "FINDINGS" and "IMPRESSIONS" sections of the reports, though not in the substantive observations, of the radiologist's reports of the January 3, 2001, ultrasound and mammography examinations, as well as in the Addendum report. Dr. Byrd did not, however, contact the radiologist to clarify any of these inconsistencies when formulating his treatment plan for Patient J.S. Nonetheless, the information available to Dr. Byrd in late January 2001, taken together, was sufficient to warrant the referral of Patient J.S. for further evaluation of her right breast, either to a radiologist for a mammography cone compression view focusing on the area in which the two centimeter mass appeared or to a general surgeon for a biopsy of the two centimeter mass. The evidence presented clearly and convincingly establishes that Dr. Byrd violated the standard of care applicable to family practice physicians under similar circumstances as those presented in this case because he failed to refer Patient J.S. for further evaluation of her right breast on the basis of her complaint and of the substantive information included in the mammography reports. Dr. Byrd's care and treatment of Patient J.S. did meet the standard of care in the following respects, again based on the credited testimony of Dr. Wilson: Dr. Byrd's referral of Patient J.S. to Boston Diagnostic Imaging for bilateral mammography and an ultrasound examination of the right breast after her contact with his office on December 27, 2000, was consistent with the standard of care for family practice physicians under the circumstances. Likewise, Dr. Byrd did not deviate from the standard of care by making this referral without having conducted an examination of Patient J.S. and prior to referring Patient J.S. to a general surgeon for a biopsy. Finally, Dr. Byrd's failure to diagnose Patient J.S. as having a malignant mass in her right breast did not constitute a deviation from the standard of care applicable to family practice physicians because, under the applicable standard of care, a family practice physician is not expected to make such a diagnosis. Medical Records The medical record of Patient J.S.'s contact with Dr. Byrd's office on December 27, 2001, does not meet Florida's standards for medical records. The entry for December 27, 2000, when Patient J.S. contacted Dr. Byrd's office complaining that she felt a lump in her right breast, was included only as a note inserted in the medical record of an office visit on November 15, 2000. Although the note indicates that Patient J.S. was given a prescription for a mammogram and ultrasound, it cannot be determined from the note whether Patient J.S. visited Dr. Byrd's office on December 27, 2000; who she communicated with regarding her complaint; or whether she was examined or by whom.9 Although Dr. Byrd made a notation on the report of the January 3, 2001, bilateral mammography examination issued by Boston Diagnostic Imaging that Patient J.S. should be given a copy of the report, there is nothing in the medical records submitted into evidence documenting the actual transmittal of the report to Patient J.S. Similarly, although Dr. Byrd made a notation on the second report, which was misidentified as a report of the bilateral mammography examination, that Patient J.S. was "aware" that she should follow-up with an ultrasound examination in six months, there is nothing in the medical records submitted into evidence documenting how, when, and by whom Patient J.S. was made "aware" of the need for a follow-up examination or any instructions that were given to Patient J.S. for follow-up. The medical record maintained by Dr. Byrd of Patient J.S.'s office visit on January 29, 2001, does not meet Florida's standards for medical records: Portions of the medical record are illegible. There is no clear indication that Dr. Byrd conducted a breast examination during that office visit. Rather, Dr. Byrd testified that it must be inferred from the notations in the medical record that he did an examination of Patient J.S.'s right and left breasts. There is no indication in the medical record of the results of an examination of Patient J.S.'s right breast. The marks in the boxes by which the results of the "Health Examination" are recorded are sloppy; it is difficult to determine whether Dr. Byrd examined Patient J.S.'s "chest/lungs" or "heart" or both and whether the results were normal or abnormal; and Dr. Byrd admittedly erroneously indicated by a checkmark that he had examined Patient J.S.'s "genitals and anus" and that the results were abnormal. Dr. Byrd's assessment of Patient J.S.'s condition at the January 29, 2001, office visit was "mastodynia," or pain in the breast, which merely confirmed Patient J.S.'s complaint, and there is no data in the medical record to support the assessment. There is no indication in the medical record that Dr. Byrd explored the possible cause of the breast pain by questioning Patient J.S. or by examination. Finally, there is no indication in the medical record for the January 29, 2001, office visit that Dr. Byrd discussed with Patient J.S. the results of the bilateral mammography examination, of the ultrasound examination of her right breast, or of the results of the comparison of the 1995 and 2001 mammography examination results. Prior disciplinary history Two previous disciplinary actions have been filed against Dr. Byrd. In both cases, the actions were resolved without resort to an administrative hearing. The first action arose out of an Administrative Complaint in which Dr. Byrd was charged with having failed to practice medicine within the acceptable level of care; with failing to maintain appropriate medical records; with having inappropriately prescribed medication to a patient; and with delegating professional responsibilities to a person not qualified to perform the duties. A Final Order was entered on January 7, 1999, as a result of a Consent Order in which Dr. Byrd neither admitted nor denied the facts alleged in the Administrative Complaint. The Board reduced the fine specified in the Consent Order to $1,000.00; deleted in toto the suspension set forth in the Consent Order; and adopted the requirements in the Consent Order that Dr. Byrd attend a drug course and a medical records course and undergo a quality assurance review. The second action arose out of an Administrative Complaint in which Dr. Byrd was charged with having failed to comply with the 1999 Final Order. A Final Order was entered in the second action on December 13, 2000, as a result of a Consent Order in which Dr. Byrd neither admitted nor denied the facts alleged in the Administrative Complaint. The Board adopted the Consent Order in toto and required Dr. Byrd to appear before the Board and pay investigative costs in the amount of $415.96.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding the Bill Byrd, M.D., is guilty of having violated Section 458.331(1)(m) and (t), Florida Statutes, and Issuing a reprimand to Dr. Byrd; Imposing an administrative fine in the amount of $12,000.00; Placing Dr. Byrd on probation for a period of two years under such terms and conditions as the Board shall deem appropriate; and Requiring Dr. Byrd to complete a medical records course approved by the Board. DONE AND ENTERED this 9th day of June, 2006, in Tallahassee, Leon County, Florida. S 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 9th day of June, 2006.
The Issue This case concerns an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Jose Antonio Benavides, It accuses the Respondent of violating Subsection 458.331(1)(t) , Florida Statutes, related to gross or repeated acts of malpractice or the failure to practice medicine in keeping with the level of care, skill and treatment Prescribed by that provision. The matter specifically relates to Dr. Benavides' treatment of the patient Beatrice Fisher.
Findings Of Fact By Administrative Complaint dated April 10, 1981, State of Florida, Department of Professional Regulation, Board of Medical Examiners, Petitioner seeks to revoke, suspend otherwise discipline Jose A. Benavides, medical doctor. As grounds, it is alleged that the Respondent inappropriately failed to diagnose carcinoma in a patient in violation of Section 458.331(1)(t) , Florida Statutes (1979) At the hearing the Petitioner presented five (5) witnesses. Further, the Petitioner introduced five (5) exhibits which were received into evidence. The Respondent testified in his own behalf and was permitted to introduce the testimony of his expert witnesses in the form of deposition. The deposition of Dr. William Espinoza was taken on August 19, 1981. The Respondent's other expert witnesses, Dr. George Dabiglus and Dr. Bienendo Benach were unavailable for their scheduled depositions on August 19, 1981. At that time the parties contacted the Hearing Officer and the Respondent requested that the matter be continued so that the depositions of Dr. Benach and Dr. Dabiglus could be taken at a later date. Counsel for the Petitioner noted her objection to a continuance. In light of the fact that these witnesses were not subpoenaed and the prejudice to the Petitioner resulting from unwarranted delay in these proceedings, the Respondent's request for a continuance was denied. The petitioner, however, stipulated that the testimony of Dr. Benach and Dr. Dabiglus would be substantially the same as that of Dr. Espinoza. Material Facts Jose A. Benavides, .D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation as a medical doctor and was so licensed at all times pertinent to this case. The Respondent has engaged in family practice, obstetrics and gynecology since becoming licensed in Florida in 1975. In addition, Respondent has received special training in obstetrics, gynecology, and surgery. On August 13, 1979, the Respondent saw the patient Beatrice Fisher for the first time. Ms. Fisher had been the patient of Dr. T. Brandwein, whose practice Dr. Benavides assumed. On the occasion of the first visit, Ms. Fisher complained that she had blood in her urine and in the face of this complaint, the Respondent had an urinalysis performed, the results of which may be found in the Petitioner's Exhibit No. 1, admitted into evidence. Those results, by their general nature, were negative. At the time of this visit, no other procedures were undertaken by the Respondent to determine if the bleeding had its origin as a vaginal or rectal discharge. (Ms. Fisher was a woman in her seventies whose menopausal cycle had ceased a number of years before.) On this first visit, the patient was also concerned about not being able to sleep, and complained of back pain and swelling in her right hand. At that point the Respondent diagnosed the case as a matter of deep depression and continued the medication that had been prescribed by the prior physician. Dr. Benavides saw the patient again on August 20, 1979, and the normal urinalysis was reported. On this occasion the patient described a problem with pain when she walked or stood up. In response to this, Dr. Benavides continued the previously prescribed medication. (The medication prescribed on the August 13 and 30, 1979, visits may be found in Petitioner's Exhibit No. 2.) The patient Fisher, returned to the office of Dr. Benavides on September 4, 1979, and had as complaint, the fact that she felt tired and was concerned about getting enough rest. She was particularly concerned about her inability to sleep. At this time, Dr. Benavides prescribed medication for depression as set forth in Petitioner's Exhibit No. 2. The next office visit by Ms. Fisher to Dr. Benavides occurred on September 28, 1979. At that time, Ms. Fisher complained about vaginal bleeding. Dr. Benavides conducted a pelvic examination which revealed a bloody vagina and odorous discharge from the vaginal region. The pelvic examination in its gross terms found the vagina to be acceptable and the uterus to be small and hard. According to the patient, this discharge had been occurring for approximately two weeks. Dr. Benavides also did a pap smear. No other examination or tests were conducted at that time to ascertain the agent responsible for the bleeding. Dr. Benavides did note in the file the probability of a malignancy and recommended that the patient return to his office in a month. Although there was no discussion about malignancy with the patient, the patient told Dr. Benavides about problems with cancer in her family and the fact that her son, mother, aunt and brother had died from this disease. On this visit, Dr. Benavides found that the patient's state of depression had improved. On October 2, 1979, Ms. Fisher called Dr. Benavides to get the results of the pap smear test and she was told that he might have to conduct another pap smear test, notwithstanding negative results from the test. The next office visit with the patient occurred on October 15, 1979. At that time, the patient was still experiencing a discharge in the way of staining, or spotting. Again Dr. Benavides noted his concern about possible malignancy. He also expressed concern about infection in the vaginal area. He described this spotting as chocolate in color, and odorous. A vaginal culture was taken and the results of that culture were normal, with the exception of a moderate amount of proteus mirabilis for which he prescribed tetracycline, an antibiotic. The prescription was dated the date of the visit. The results of the vaginal culture were made known on October 18, 1979, and may be found in Petitioner's Exhibit No. 2. Dr. Benavides did not discuss the possible malignancy with the patient Fisher on the October 15, 1979, visit. Dr. Benavides was of the persuasion that the vaginal culture was indicated to rule out the malignancy; however, the testimony of experts in the field of medicine offered in the course of the hearing, shows that such a test would not rule out a malignancy in the uterus. Ms. Fisher at this visit continued to express her concern that her condition might be caused by cancer. On October 18, 1979, the patient Fisher called the Respondent and was still complaining of staining, a bloody discharge. Medication was prescribed as set forth in the Petitioner's Exhibit No. 2 and the patient was told that the results of the laboratory test performed from the vaginal culture were negative. The records of the Respondent indicate a further prescription was written for the patient on November 6, 1979, and this followed a call on that date by the patient Fisher to the Respondent in which she continued to complain about staining. On December 7, 1979, the patient Fisher returned to the doctor's office and complained of the problem with her knee and certain medications were prescribed. No further discussion was held on the subject of vaginal bleeding and no further tests were performed to ascertain the cause of that bleeding. On January 23, 1980, Ms. Fisher went to see her Opthalmologist, Dr. Robert Goldwyn. Dr. Goldwyn mentioned that he felt Ms. Fisher did not look well and there ensued discussion about the reason for her appearance, in which she described her problem with vaginal bleeding. Dr. Goldwyn immediately referred the patient to Dr. Arthur Rudolph, a specialist in obstetrics and gynecology, who was in Dr. Goldwyn's building. On January 23, 1980, Dr. Rudolph saw Ms. Fisher. Dr. Rudolph is a physician admitted to practice in the State of Florida, who has twenty-five (25) years experience. After examining the patient Fisher, he indicated to her that she needed to be hospitalized to have dilatation and curettage performed. He also performed a pap smear and found it to be Class III, that is suspicious carcinoma. On January 31, 1980, the patient Fisher was admitted to Baptist Hospital of Miami. A dilatation and curettage examination was performed revealing adenocarcinoma of the endometrium with superficial invasion. There followed a total abdominal hysterectomy and bilateral salpingo-oophorectomy. Following the operation, Dr. Rudolph finds the patient's outlook to be good. Nevertheless, it is not known whether or not the problem with carcinoma is concluded. The findings of Dr. Rudolph's proceedings may be found in Petitioner's Exhibit No. 3, admitted into evidence. Further, testimony by Dr. Rudolph establishes that there is a presumption of possible malignancy any time bleeding is observed in a post- menopausal patient whose last menstrual cycle occurred one year or more before the event of bleeding. In this instance, Ms. Fisher's last menstrual cycle had occurred some twenty (20) years before her complaints with bleeding. To determine if there is carcinoma in the uterus, Dr. Rudolph correctly indicates that suction curettage or dilatation and curettage are proper methods of detection. A pap smear would be a method of detection of carcinoma in the cervix, but not in the endometrium, as established by the expert, Dr. Rudolph. Assuming that September 28, 1979, was the first complaint of this bleeding, it was inappropriate for a month to transpire before scheduling the next appointment, as identified by Dr. Rudolph. The pap smear followed by suction curettage or dilatation and curettage should occur as soon as possible from detection of bleeding, in that there is a correlation between treatment success and time before treatment. Dr. Rudolph's testimony established that the vaginal culture was not an adequate method for determining cancer unless that cancer happened to be in the wall of the vagina. Dr. Rudolph's examination of the medicines prescribed for the patient Fisher by the Respondent, with the exception of polymax with which Dr. Rudolph was not familiar, established that those other medicines were not valid in the detection of carcinoma. Dr. Rudolph correctly asserts that the Respondent's care and treatment of the patient Fisher, especially as related to diagnostic tests and procedures, was inconsistent with the care which is recognized by a reasonably prudent physician in the Dade County, Florida, community in which Dr. Rudolph and Dr. Benavides practice medicine, either for specialists in obstetrics and gynecology or family practitioners. Dr. Edwin Crane, a specialist in obstetrics and gynecology, licensed in the State of Florida, also gave testimony. Dr. Crane correctly stated in his testimony that complaints of vaginal bleeding in post-menopausal patients indicates possible carcinoma. He also identified the fact that a pap smear will not detect bleeding from the uterus and identified the proper method for establishing the cause of bleeding from the uterus to be the gravilee jet wash; endometrial bio-suction curettage and that if these methods proved negative a dilatation and curettage (scraping of the lining of the uterus) . The pap smear is not acceptable because if the cancer is high in the uterus, the smear is only positive 15 percent of the time. This fact was established through the witness Crane. Assuming September 28, 1979, as being the first date of complaint of spotting, Dr. Crane felt that one or two weeks delay in any further consideration of this case might be acceptable, but in this instance Dr. Benavides intended to put off further procedures for a period of one month and when the patient returned on October 15, 1979, still did not undertake methods for identitying carcinoma in the uterus. Dr. Crane rightly indicates that speed in detection and treatment are vital in promoting a likelihood of cure. An analysis of the drugs which Dr. Benavides, prescribed to the patient Fisher, as conducted by Dr. Crane, reveals those drugs were not valid in the detection or treatment of carcinoma. Dr. Crane was of the persuasion that Dr. Benavides' treatment of the patient Fisher is not what would be expected from a reasonably prudent medical practitioner in the State of Florida, and that at a minimum, Dr. Benavides should have recommended procedures to be followed in detecting the reason for the bleeding and informed the patient that there was a possible malignancy, which was not done on this occasion. Dr. William T. Mixson, licensed in the State of Florida, and an expert in obstetrics and gynecology, gave testimony. Dr. Mixson testified that if confronted with vaginal bleeding, the physician should take the history and describe the amount, color, odor of the blood, how long it had been present, any hormonal therapy and any trauma associated with this discharge. A physician, according to Dr. Mixson, when confronted with this condition, should examine the abdomen, pelvis (speculum) and rectum and should take a pap smear if there is no excessive bleeding. According to Dr. Mixson, post-menopausal bleeding is a sign of possible malignancy. The sources of that bleeding, per Dr. Mixson, would be the vagina, cervix or uterus, and the explanation for the bleeding in order of occurrence would be polyps, atropic vaginitus and carcinoma. In addition to a pap smear, an office biopsy from the endometrium or dilatation and curettage would have been an appropriate diagnostic method and to wait one month to conduct these proceedings was inappropriate. In Dr. Mixson's opinion vaginal cultures are not designed to detect carcinoma, but are more appropriate for identifying infections and the medications prescribed by Dr. Benavides for the benefit of the patient Fisher were not designed to diagnose or treat carcinoma. According to Dr. Mixson, Dr. Benavides' actions were not in keeping with those of a reasonably prudent physician either in the field of obstetrics and gynecology, or as a general practitioner. Dr. Mixson's perceptions as described are accepted. The testimony by Dr. William Espinoza does not vary in a significant way on the subject of the proper care and treatment of a patient such as Ms. Fisher when contrasted with that of Drs. Crane, Rudolph and Mixson. If the facts were as established in this Recommended Order, Dr. Espinoza would not find Dr. Benavides' performance to be in keeping with that of a reasonably prudent practitioner licensed in the State of Florida. The difference in Dr. Espinoza's perception comes about in view of the fact that he would believe the Respondent's explanation of having discussed and advised Ms. Fisher of a possible malignancy on several occasions and attempting to have Ms. Fisher undergo dilatation and curettage. This explanation by the Respondent is not accepted. Therefore, the experts offered in the course of the hearing are in accord on the standard for a reasonably prudent practitioner confronted with a case similar to that of Ms. Fisher.
The Issue The issues in these cases are whether Respondent violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2002), in DOAH Case No. 09-4678PL; Subsections 456.072(1)(l), 458.331(1)(m), and 458.331(1)(t), Florida Statutes (2003), in DOAH Case No. 09-4679PL; and Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2005), in DOAH Case No. 09-4680PL, and, if so, what discipline should be imposed.
Findings Of Fact At all times relating to the three Administrative Complaints at issue, Dr. Kachinas was a licensed medical doctor within the State of Florida, having been issued license number ME 65595. He is board-certified by the American Board of Obstetrics and Gynecology. DOAH CASE NO. 09-4678PL In 2002, Dr. Kachinas was working at several clinics that were owned by the same individual. He received payment from Sarasota Women’s Health Center and Tampa Women’s Health Center. His primary office was located in Sarasota, but he rotated through the offices located in Clearwater and Tampa. He was advised that he would be attending a patient in the Tampa office. One of the medications that he used in his method of sedating patients, Propofol, was not available in the Tampa office. He took a vial of the Propofol and took it to the Tampa office, holding the vial in his hand. While at the Tampa office, Dr. Kachinas drew the Propofol into a syringe. He did not have to use the Propofol for the patient. He placed the syringe filled with Propofol inside the sock that he was wearing. Dr. Kachinas transported the syringe back to the Tampa office. He used this method of transport so that the office manager in the Tampa office would not know that he was transporting the drug. When he got back to the Tampa office, he placed the filled syringe in a secure place. Propofol must be used within 24 hours after being drawn into a syringe. The next day it was decided that the drug would not be used on another patient, and Dr. Kachinas wasted the syringe filled with Propofol. At the clinics where Dr. Kachinas worked, there were no logs to keep track of the drugs, except for the drug Fentanyl. Dr. Kachinas acknowledged in a letter dated January 30, 2007, to the Department of Health that his method of transporting Propofol was “unorthodox.” In the same letter, Dr. Kachinas acknowledged that “a reasonable and prudent doctor would not generally transport medication in that manner, but foolishness seemed reasonable in that aberrant environment.” DOAH CASE NO. 09-4679PL On March 26, 2004, B.S. presented to Premier Institute for Women’s Health (Premier) for an elective termination of pregnancy. Dr. Kachinas was the physician who handled the procedure. Dr. Kachinas maintained records relating to B.S. at Premier. In 2004, Petitioner subpoenaed B.S.’s records from Dr. Kachinas’ office. Petitioner received a packet of documents, which purported to be B.S.’s medical records. In July 2006, Lori Jacobs, an employee of Premier, sent Petitioner another copy of the documents sent in 2004. Neither the records provided in 2004 nor the records provided in 2006 contain progress notes for B.S.’s treatment on March 26, 2004, and March 27, 2004. For the first time on November 5, 2009, Dr. Kachinas produced a three-page document, which he claimed was part of B.S.’s medical records that had been misplaced in B.S.’s insurance file. Two of the pages purported to be progress notes for March 26 and 27, 2004. The third page, which is also labeled as a progress note, is dated June 29, 2004, and appears to relate to insurance claims. The two pages relating to March 26 and 27 are on paper which is a different color from the progress note relating to insurance claims and the progress notes which were previously furnished in 2004 and 2006.1 Additionally, the progress notes for March 26 and 27, 2004, contain a break in each of the ruled lines on the sheets on both the right and left sides of the sheets. The insurance progress note and the progress notes furnished in 2004 and 2006 do not have such breaks in the ruled lines. Dr. Kachinas completed a Laminaria Insertion report documenting procedures done on March 26, 2004, and March 27, 2004. The March 26, 2004, report documents the insertion of Laminaria and administration of medications. The comment section of the report documents the removal of the Laminaria and administration of medications on March 27, 2004. The comment section continues to document the administration of medications and the taking of vital signs after the removal of the Laminaria and also the transfer of the patient to Doctors Hospital. The detail on the comment sections suggests that Dr. Kachinas was making his progress notes in the Laminaria Insertion report. The failure to produce the purported progress notes for March 26 and 27, 2004, until November 5, 2009; the difference in the color of the paper of the March 26 and 27, 2004, purported progress notes and the other progress notes in Dr. Kachinas’ records; the presence of breaks in the ruled lines on the March 26 and 27, 2004, purported progress reports, which do not appear on the other progress notes; and the detail of the comments on the Laminaria Insertion report support the conclusion that the progress notes submitted as Respondent’s Exhibit 1 were not done contemporaneously with the treatment given to B.S. on March 26 and 27, 2004, but were prepared for this proceeding. Thus, the progress notes for March 26 and 27, 2004, are not credited. Dr. Kachinas determined B.S.’s pregnancy to be at approximately 23½-to-24 weeks’ gestation, the last week of the second trimester. He confirmed by sonogram that the gestation period was 24 weeks. On March 26, 2004, Dr. Kachinas began the induction of labor ordering the insertion of ten Laminaria, which are osomotic cervical dilators which cause the cervix to open and allow easier emptying of the uterus. Dr. Kachinas’ records do not show that B.S.’s medical history was taken prior to the insertion of the Laminaria. However, Dr. Kachinas did take a medical history of B.S. at the time of her admission to Doctors Hospital, and the history is recorded in the medical records. Prior to the insertion of the Laminaria, Dr. Kachinas’ records do show that a limited physical examination of B.S. was done. The Laminaria Insertion report shows that B.S.’s baseline blood pressure, temperature, and pulse were taken and recorded. There was no expert testimony of what other physical examination should have been done. Dr. Kachinas injected the fetus with Digoxin, which is injected directly into the fetus to stop the fetal heartbeat, causing an Intrauterine Fetal Demise (IUFD). The injection of the Digoxin was not documented in B.S.’s medical records. B.S. was then released from Premier. On March 27, 2004, B.S. returned to Premier. Prior to removing the Laminaria, Dr. Kachinas did an ultrasound and determined that there was still fetal heart activity and fetal movements. Dr. Kachinas continued the labor induction procedure by removing the Laminaria and administering Cytotec and high dosages of Pitocin. When the Laminaria were removed, there was a rupture of membranes with a loss of essentially all the amniotic fluid. Sometime during the afternoon of March 27, 2004, Dr. Kachinas did another ultrasound and determined that there was no fetal heart activity. Based on the length of time from the Digoxin injection to the ultrasound showing no fetal heart activity, the loss of amniotic fluid, and the administering of medication to cause contractions, Dr. Kachinas determined that the Digoxin injection was not the cause of death. On March 27, 2004, at approximately 6:30 p.m., Dr. Kachinas transferred B.S. to Doctors Hospital and had her admitted to the hospital for failure to progress with the induction of labor procedure. While at the hospital, B.S. continued to experience pain. On March 28, 2004, Dr. Kachinas performed the following procedures on B.S.: mini-laparotomy, hysterotomy, removal of products of conception, and a modified Pomeroy bilateral tubal ligation. In his description of the procedures, he stated that the fetal demise was at least of 48 hours duration. However, Dr. Kachinas’ records do not reflect the time of the fetal demise. Jorge Gomez, M.D., Petitioner’s expert witness, credibly testified that a physician is required to document the time of the fetal demise. In the hospital records following B.S.’s surgery, Dr. Kachinas listed the post-operative diagnosis as a failure to induce labor, an intrauterine fetal demise, a thin umbilical cord, and asymmetric intrauterine growth retardation, a condition in which the fetus is smaller than expected for the number of weeks of pregnancy. An autopsy was performed on the fetus. A surgical pathology report was also issued. The pathology report showed mild infarcts on the maternal side. On the fetal death certificate, Dr. Kachinas listed the immediate causes for the IUFD as a possible cord incident and multiple placental infarctions. Dr. Kachinas did not document the elective termination or the Digoxin injection on the fetal death certificate. Dr. Gomez disagrees with the reasons for IUFD given on the death certificate. His credible reading of the pathology report does not indicate that the infarcts were severe enough to have contributed to the fetal demise. His credible reading of the pathology report does not indicate that there was any evidence of a cord incident. Dr. Gomez is of the opinion that the cause of death should have been listed as elective termination. Dr. Gomez’ opinion is credited. However, Dr. Gomez did not give an opinion on whether the fetal demise was caused by the injection of Digoxin. DOAH CASE NO. 09-4680PL On December 13, 2005, K.M. was seen by Walter J. Morales, M.D., at Florida Perinatal Associates, which specializes in internal fetal medicine. Dr. Morales performed an ultrasound on K.M., who was pregnant with twins as a result of in vitro fertilization. The ultrasound revealed that the twins were fraternal, meaning that each twin had a separate placenta and a separate sac. One of the twins, Twin A, had an anomaly called a cystic hygroma, which results from an obstruction, causing the lymphatic fluid, which normally drains into the juglar vein, to accumulate in the neck area. Approximately 50 percent of the fetuses which have this anomaly in the first trimester also have a chromosomal anomaly, such as Down syndrome. The decision was made to have K.M. return to Florida Perinatal Associates in three weeks for further evaluation. On January 3, 2006, Edgard Ramos-Santos, M.D., a partner of Dr. Morales, performed another ultrasound on K.M. Dr. Ramos-Santos found that Twin A, a male, had a cystic hydroma, a thickening of the nuchal fold2, and shortened femur and humerus. These findings are soft markers for abnormal chromosomes. The ultrasound also revealed a possible heart defect. At the time of the ultrasound, Twin A was cephalic bottom, meaning that Twin A was positioned lowest in the uterus. Dr. Ramos-Santos also performed an amniocentesis on Twin A on the same date as the ultrasound. The amniocentesis showed that Twin A had an abnormal chromosome pattern compatible with trisomy 21 or Down syndrome. Both ultrasounds showed that Twin B, a female, appeared to be normal. At the request of K.M., no amniocentesis was performed on Twin B on January 3, 2006. At the time of the ultrasound performed on January 3, 2006, the presentation of Twin B was cephalic right. The findings of the January 3, 2006, ultrasound were discussed with K.M. and her husband. On January 9, 2006, Dr. Ramos-Santos discussed the results of the amniocentesis with K.M.’s husband. It was decided that a selective feticide would be performed on Twin A. Selective feticide is a procedure in which a solution of potassium hydroxide is injected into the fetus’ heart to make the heart stop beating. K.M. was referred to Dr. Kachinas at Premier for the selective feticide. On January 10, 2006, Roberta Bruce, a nurse at Florida Perinatal Associates, sent to Premier by facsimile transmission the January 3, 2006, ultrasound report for K.M. and K.M.’s insurance information. The cover page for the facsimile transmission included a note from Ms. Bruce, which stated: “* FYI Fetus have different gender. The male is the affected one.” The standard of care as specified in Section 766.102, Florida Statutes (2005), requires a physician performing a selective feticide to correctly identify the affected fetus. Dr. Kachinas did not correctly identify Twin A prior to performing the selective feticide and performed the procedure on Twin B, the normal fetus. Dr. Kachinas performed an ultrasound on K.M., but failed to identify the correct position of Twin A in relation to K.M. The ultrasound done on January 3, 2006, by Dr. Ramos-Santos showed that Twin A was located at the bottom and Twin B was located to the right of K.M. In his progress notes, Dr. Kachinas placed Twin A on the right and Twin B on the left. Although it is possible for twins to shift positions, it is not probable that the twins shifted from left to right. Dr. Kachinas performed an ultrasound, but failed to identify that Twin A was the fetus with multiple anomalies. Although the standard of care required Dr. Kachinas to do a Level 2 ultrasound evaluation, a Level 1 ultrasound evaluation would have identified the cystic hygroma, the shortened long bones, and the sex of Twin A. Dr. Kachinas failed to perform an adequate ultrasound evaluation by failing to identify the anomalies and the gender of Twin A. Dr. Kachinas’ notes do not show whether Twin A or Twin B had anomalies. His notes did not identify the sex of each of the twins. His notes did not document the attempts that Dr. Kachinas made to identify the anomalies such as a recording of the length of the long bones or any examination made to identify the sex of each of the twins. On January 24, 2006, K.M. returned to Florida Perinatal Associates for another consultation. Dr. Morales performed another ultrasound, which revealed that Twin A, who had the anomalies, was still viable. The ultrasound revealed the continued presence of a cystic hygroma, the thickening of the nuchal fold, shortened extremities, and a congenital heart defect. The ultrasound also showed that the viable twin was male. The presentation of Twin A was shown by the ultrasound as cephalic bottom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4678PL that a final order be entered finding that Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes (2002), by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances; finding that Dr. Kachinas did not violate Subsection 458.331(1)(m), Florida Statutes (2002); imposing an administrative fine of $2,500; and placing Dr. Kachinas on probation for one year. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4679PL that a final order be entered finding that Dr. Kachinas did not violate Subsections 456.072(1)(l) and 458.331(1)(t), Florida Statutes (2003); finding that Dr. Kachinas violated Subsection 458.331(1)(m), Florida Statutes (2003); imposing an administrative fine of $1,000; and placing Dr. Kachinas on probation for one year. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4680PL that a final order be entered finding that Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes (2005), by committing gross medical malpractice; finding that Dr. Kachinas violated Subsection 458.331(1)(m), Florida Statutes (2005); imposing an administrative fine of $2,000 and placing him on probation for one year for the violation of Subsection 458.331(1)(m), Florida Statutes (2005); and revoking his license for the violation of Subsection 458.331(1)(t), Florida Statutes (2005). DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 26th day of January, 2010.
The Issue The issues in this case are whether Respondent, a plastic surgeon, committed medical malpractice in connection with a breast augmentation procedure; and if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action. RELIMINARY STATEMENT In or around November 2006, Petitioner Department of Health issued a two-count Administrative Complaint against Respondent Roger L. Gordon, M.D. The Department alleged that Dr. Gordon had committed medical malpractice in connection with a breast augmentation procedure performed on patient "D.V.", and that he had failed to maintain medical records justifying the course of D.V.'s treatment. Dr. Gordon denied the charges and timely requested a formal hearing. The Department referred the matter to the Division of Administrative Hearings ("DOAH"), where it proceeded as Case No. 07-0644PL. DOAH's file in Case No. 07- 0644PL was closed on April 30, 2007, on the Department's Motion to Relinquish Jurisdiction, in which the parties reported that they had reached an agreement to settle the dispute. On March 30, 2011, under a Motion to Re-Open Case, the Department referred the matter back to DOAH following the Board of Medicine's rejection of the agreement between the Department and Dr. Gordon. The undersigned was assigned to preside in the matter, which was placed on the docket as Case No. 11-1600PL. The final hearing took place as scheduled on August 24, 2011. Both parties were represented by counsel. At the outset, the undersigned granted both (a) the Department's uncontested motion to take official recognition of the pertinent disciplinary guidelines and (b) the Department's Motion to Amend Administrative Complaint, which Dr. Gordon opposed. In accordance with the latter ruling, the Department's Amended Administrative Complaint was deemed filed as of August 17, 2011. Also as a preliminary matter, the Department urged the undersigned to admit into evidence the medical records relating to D.V.'s treatment at the Florida Center for Cosmetic Surgery1 (the "FCCS records"), on two principal grounds. First, the Department argued, on the authority of Sheppard v. Florida State Board of Dentistry, 369 So. 2d 629, 631 (Fla. 1st DCA 1979), that because the FCCS records are of the sort required by law to be kept and made available for inspection by regulatory authorities, they therefore are not protected by the Fifth Amendment in a penal proceeding such as this. This argument was rejected, in short because Dr. Gordon did not invoke his right to remain silent as the basis for excluding the FCCS records; he objected to them on the basis of the hearsay rule. Second, the Department contended that because Dr. Gordon failed to invoke the Fifth Amendment as a basis to quash the subpoena by which the Department obtained the FCCS records, he waived the privilege against self-incrimination and therefore should be compelled to give testimony regarding the facts necessary to establish the business-records exception. The undersigned rejected this argument because the Department was unable to cite any law in support of the proposition that Dr. Gordon's failure to seek invalidation of the subpoena necessarily resulted in the evisceration of his right to remain silent at the final hearing. The proposition is unsupportable in any event because the subpoena was not addressed to Dr. Gordon personally but rather commanded the records custodian of the South Florida Center for Cosmetic Surgery to produce the medical records at issue. See Respondent's Motion in Limine to Exclude Records (filed July 14, 2011), Exhibit A. Dr. Gordon himself, in his individual capacity, did not have "standing to assert the fifth amendment right on a subpoena which was not addressed to him personally." State v. Wellington Precious Metals, Inc., 510 So. 2d 902, 905-06 (Fla. 1987). That being the case, Dr. Gordon did not waive his right against self- incrimination by declining to object to the subpoena, which would have been a futile act given his lack of standing to do so.2 The Department's witnesses were Donna Howell, an employee of the Department; and Cynthia Lee Toot, an advanced registered nurse practitioner. The Department's Exhibit A (a composite exhibit comprising D.V.'s medical records from Holy Cross Hospital in Fort Lauderdale) was admitted into evidence at hearing, and the record was held open to allow the Department to submit the deposition of D.V., which was subsequently received and is hereby admitted. Dr. Gordon did not present a case. On September 8, 2011, the Department filed a Motion to Relinquish Jurisdiction. As a result of that motion, the undersigned ruled that jurisdiction over the Amended Administrative Complaint (but not the pending Motion for Attorney Fees3) would be relinquished without delay or additional input from the parties; proposed recommended orders thus were unnecessary.
Findings Of Fact At all times relevant to this case, Respondent Roger L. Gordon, M.D., was licensed to practice medicine in the state of Florida, having been issued license number ME 82538. Dr. Gordon is certified in Plastic Surgery by the American Board of Plastic Surgery. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Gordon. On November 24, 2004, D.V. appeared as scheduled at the South Florida Center for Cosmetic Surgery for an augmentation mammoplasty and full pattern mastopexy. According to her medical records, D.V. tolerated the procedures well, and was discharged home at around 11:45 a.m. Later that day, D.V. returned to the South Florida Center for Cosmetic Surgery with complaints of pain and swelling of the right breast. Dr. Gordon diagnosed hematoma (accumulation of blood) of the right breast. He noted that the condition required evacuation and placement of a drain. Because D.V. had eaten after her original discharge, the evacuation procedure was performed under local anesthetic. Dr. Gordon warned D.V. that a more extensive exploration surgery under general anesthesia might be required in the future. He did not obtain an anesthesia consult prior to evacuating the hematoma. Dr. Gordon did not identify any active bleeding during the evacuation procedure. D.V. was again discharged home after the hematoma had been evacuated. D.V. reported that, after returning home, she experienced two episodes of fainting. The records of Holy Cross Hospital reflect that D.V. was admitted to the emergency room following the fainting spells. Upon admission, D.V.'s hemacrit was 22.5, indicating significant anemia. Two units of blood were administered to D.V. in anticipation of a re-exploration of the right breast under general anesthetic. On or about November 25, 2004, at Holy Cross Hospital, D.V. underwent surgical exploration of the right breast and removal of the right breast implant. She tolerated the procedures well and was discharged with instructions to follow up with Dr. Gordon on November 26, 2004. D.V. had no further complications and returned for right breast re-augmentation on or about January 21, 2005, with no known complications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Gordon not guilty of the charges set forth in the Amended Administrative Complaint. DONE AND ENTERED this 20th day of September, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 20th day of September, 2011.
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 acts attributed to her and whether such acts constitute a violation of the statutes and rules.
Findings Of Fact Carolle L. Baya is a licensed lay midwife holding a license issued by the Petitioner. Exhibit 1 is a composite of certified copies of birth certificates of babies at whose births Ms. Baya attended. Ms. Baya was very late on over 17 occasions in initiating the registration of the birth of a child whom she had delivered. On two additional occasions, she was so late that a delayed certificate of birth had to be prepared. Frances Friedl was seen by Dr. Sudesh Metah, M.D., at the hospital on April 9, 1988, at 8:30 a.m., for delivery of her first baby. She had been admitted through the emergency room and referred to obstetrics where Dr. Metah was the on-call doctor. When initially seen at the hospital, Ms. Friedl was in active labor. From the admission notes prepared by the labor and delivery nurse, Ms. Friedl started labor between 5:00 and 6:00 p.m. on April 8, 1988; and her water broke about 12:30 a.m. on April 9, 1988. Ms. Baya stated to Dr. Metah when Ms. Friedl was admitted that she had done a pelvic examination at 3:30 a.m. and had determined that Ms. Friedl was in second stage labor. The patient confirmed this information. Although Ms. Friedl had been and was pushing, the birth of the baby had not and was not progressing. At 8:30 a.m. when the doctor saw her, she was fully dilated and the baby had not descended into the birth canal. Ms. Friedl had remained in second stage labor over four hours before admission to the hospital. Dr. Metah considered two (2) hours of second stage labor long enough, with medications, epidural anesthesia, and with progress towards delivery by the patient. Dr. Metah considered three (3) hours to be the maximum for a woman to remain in second stage labor without medical intervention. Dr. Metah had to rotate the baby, who was in a vertex posterial presentation, in order for the baby to be delivered. The baby was a female, 7 pounds, 5-1/2 ounces, with Apgars of 9-10 or 9-9. 1/ She was born 1-1/2 hours after the mother's admission to the hospital. The baby was delivered as soon as possible at the hospital. Ms. Baya did not transport Ms. Friedl to the hospital until four hours after Ms. Friedl was fully dilated and in second stage labor. Annette Louise Zivkovic was admitted to Memorial Medical Center emergency room with obstetric complications in active labor. Her physician, Dr. Sager, was present when she was admitted. Ms. Baya, her midwife, was also present when Ms. Zivkovic was admitted. Admission notes state that Ms. Baya assisted the patient for three hours but that the patient was unable to deliver. Dr. Sager was present at admission and performed a vaginal examination. He determined that Ms. Zivkovic was dilated to "Station 4." The patient stated that she was very scared and her arms and legs were stiff when she had contractions. The patient was unable to push effectively and assist in delivery. The admission notes indicate she was in active labor three hours before being taken to the hospital. The Labor and Delivery Summary indicates that the patient was admitted at 4:25 p.m. on January 2, 1989. She was delivered at 4:41 p.m. She had been in labor since 1:00 p.m. There is no evidence that Ms. Baya knew that Ms. Zivkovic was staining or that she did not have Ms. Zivkovic assessed. The Petitioner's expert midwife, Ms. Richter, testified. A delay of over two hours in referring a patient who was in active labor and had not delivered was unprofessional conduct. Karen Evans was admitted to the hospital via the emergency room and delivered by C-section by Dr. Wooden because the baby was in fetal distress. When delivered, the baby's head was molded into the pelvis. A bad odor from the uterus indicated interuterus infection. Ms. Evans had a high white blood count which was consistent with an infection. Ms. Evans reported to the doctor that she had been leaking fluid for two weeks. Ms. Evans was admitted to the hospital by the emergency squad, who had been requested by Ms. Baya. The doctor stated that the midwife called the medical squad when she realized that she had a complicated patient in labor with fetal distress. Ms. Evans' labor-began at 10:30 a.m., according to Ms. Baya's reports to the patient; and Ms. Evans was admitted to the hospital at 10:30 p.m. for emergency delivery of the baby by C-Section. The baby was delivered approximately 1-1/2 hours later, at 11:57 p.m. The Petitioner's medical expert's opinion was that Ms. Evans should have been referred when it was determined that her water was leaking and should have been referred to the doctor long before she had been in active labor for 12 hours. There was no evidence that Ms. Baya knew or should have known that Ms. Evans was leaking ambiotic fluid. The baby's head being molded into the pelvis is a sign of prolonged labor. There is evidence that Ms. Baya knew that Ms. Evans had been in active labor for over 12 hours. There is no evidence that Ms. Baya knew that Ms. Evans had unexplained vaginal bleeding. There was no credible evidence that Ms. Baya failed to do metabolic screening on M.K. 2/ failed to provide accurate information on the birth certificate of M.K.'s child; or provided care to M.K., who was at high risk.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that: The Petitioner revoke the license of the Respondent; and The Petitioner suspend the revocation upon demonstration by Ms. Baya that she has taken refresher courses in midwifery and can practice safely and in accordance with all applicable statutes and rules. DONE AND ENTERED this 17th of February, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1992.
The Issue The issues to be determined are whether Respondent fell below the minimum standard of acceptable nursing practice in violation of section 464.018(1)(n), Florida Statutes; engaged in unprofessional conduct by inaccurately recording in violation of section 464.018(1)(h), Florida Statutes, and Florida Administrative Code Rule 64B9-8.005(1); or made deceptive, fraudulent, or untrue statements in or related to the practice of her profession in violation of section 456.072(1)(m), Florida Statutes; and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, through its Board of Nursing, is the state agency charged with regulating the practice of nursing in the state of Florida, pursuant to section 20.43 and chapters 456 and 464, Florida Statutes. At all times material to this proceeding, Cynthia L. Denbow was a licensed ARNP in the state of Florida, holding license number ARNP 9283016. Prior to the instant case, Respondent has never had a complaint or discipline against her Florida Registered Nurse or ARNP licenses. Respondent has been certified by the American College of Nurse Midwives (ACNM) to practice as a CNM since 2006. Section 464.012(1)(a) provides that to be licensed as an ARNP, a nurse must be licensed to practice professional nursing and hold certification from an appropriate specialty board. Florida Administrative Code Rule 64B9-4.002(1)(b) provides that the ACNM is one of the specialty boards recognized by the Board of Nursing. Respondent, as a nurse-midwife, is not regulated under chapter 467, Florida Statutes, which governs “licensed midwives” in Florida. Respondent was the owner/operator of Gentle Birth Options (GBO), a birth center located at 296 Bayshore Drive, Niceville, Florida 32578. At GBO, Respondent offered midwifery services, which included prenatal care, child birth education classes, and labor and delivery medical support. In 2017, Respondent provided midwifery services to A.R., a 36-year-old female patient who was pregnant with her first child. Prior to becoming a client at GBO, A.R. and her husband, F.R., attended an open house at GBO designed to introduce prospective clients to the concepts of informed consent, and how the birthing center differs from the medical model of care. They then selected Respondent as the medical provider to guide them during their pregnancy, to provide one-on-one care to them during labor and delivery, and to make decisions to facilitate the birthing process. As a client of GBO, A.R. signed an informed consent form entitled: “Consent to Deliver in a Birth Center” documenting the date at June 16, 2017. The informed consent documents provided that no matter the quality of care, there remained a possibility of unforeseen events resulting in a poor labor outcome. The forms also informed A.R and F.R. that the midwife would transfer the laboring mother to the hospital if the course of labor was outside her scope of care. The informed consent forms also provided that, whenever possible, decisions regarding transfers would be made jointly by the laboring mother, the father, and the midwife. However, it warned that situations may arise where the midwife’s decisions and judgements must be trusted. During the course of the pregnancy, A.R. and F.R. attended prenatal appointments and child birth education classes at GBO. A.R. attended all the provided classes at GBO, while F.R. attended four to six classes. The classes provided at GBO were taught by either Respondent or her assistant, Christy Shields. The classes covered topics including: shared decision-making, reasons for transfer from GBO to the hospital, what to do when the client begins labor, and the role of the father during and after pregnancy. Breech presentation was discussed in the prenatal classes. However, transfer during labor due to breech presentation was not discussed, as GBO deals only with unplanned breech deliveries. GBO clients were taught not to count contractions, as they are an unreliable indicator of labor progression. GBO clients were provided materials indicating that the Fort Walton Beach Medical Center (FWB) performed an unreasonably high number of cesarean sections per year. That information influenced A.R. and F.R.’s negative feelings toward giving birth at FWB. Two months prior to the delivery date, A.R. and F.R. chose a birth plan that expressed a preference for limited vaginal exams, and a vaginal birth as opposed to a cesarean section. The birth plan preferences did not mean A.R and F.R. were opposed to vaginal exams prior to delivery, or delivery via cesarean section, if medically necessary. Both A.R. and F.R. assumed Respondent would conduct all medically necessary vaginal exams and arrange for a cesarean section, if medically necessary. Jenny Hernandez was hired as A.R.’s doula. A doula is a professional who attends a birth to provide physical and emotional support to the mother and father before, during, and after the birth. The delivery of A.R. and F.R.’s child was the first midwife birth attended by Ms. Hernandez, all others in her experience having been in a hospital with continuous fetal monitoring. On the morning of December 7, 2017, A.R., who was 40 weeks and 4 days pregnant, and 4 days past her due date, presented at GBO for a routine prenatal appointment. Respondent preformed a vaginal exam on A.R., and determined the position of the fetus by placing her hands on A.R.’s abdomen. When the exam was completed, Respondent told A.R. that the fetus was head down (vertex position), and that A.R. was 50 percent effaced and one centimeter dilated. Respondent did not perform an ultrasound on A.R. at this appointment, but did perform Leopold maneuvers which confirmed the vertex position of the baby. Respondent also informed A.R. that the baby was resting on her pelvis. Respondent gave A.R. a sash and some exercises designed to fix the fetus’s position before sending her to the chiropractor. The position of a fetus can change from vertex to breech at any time, including up to the very time of delivery. After the appointment A.R. and F.R. retuned home. Before 4:00 p.m., A.R. began feeling pains and felt she was experiencing the signs of early labor. At 3:56 p.m., A.R. called Respondent’s number, which was given out specifically for clients going into labor. Respondent did not answer. A.R. then called GBO’s front desk and was informed by Ms. Williamson that Respondent was unavailable. A.R. informed Ms. Williamson that she believed she was going into labor and was feeling crampy. Respondent was unable to take A.R.’s call because she was in the birthing suite assisting in another birth. When informed about the A.R.’s call, she believed it to be a “heads up call,” a common occurrence at GBO where expecting mothers call in to allow GBO to prepare for the impending birth. She also believed that the cramping could be related to the vaginal examination performed that morning. At 4:00 p.m. on December 7, 2017, A.R. texted her doula, Ms. Hernandez, and said “Hey Jenny, I think I might be in early labor, just FYI. I'll contact you in a little bit if I go into active labor, thanks” At 6:49 p.m., Respondent inquired into A.R.’s condition, texting “How are you.” A.R. replied “Doing well. Pressure waves getting a bit more intense, so took a hot shower. Making groaning cake with mom now.” A groaning cake is an intricate cake with lots of ingredients designed to take one’s mind off of the pains of early labor. Around 9:00 p.m., A.R. began feeling stronger contractions. F.R. called Respondent at 9:07 p.m. to give a labor update and report the rupture of A.R.’s membranes. Respondent assured F.R. that the labor was progressing normally and did not provide any other guidance. F.R. informed Respondent that he would call back when the labor progressed further. At roughly that time, A.R.’s birth doula, Ms. Hernandez, was called to come to their home. F.R. called Respondent at 9:39 p.m. to give a labor update and to inquire as to whether it was the appropriate time to come to GBO. Respondent replied that this was a normal labor progression and to wait for the doula to arrive before coming in. By the time Ms. Hernandez arrived at A.R.’s home, A.R. had begun to vomit and release a pink discharge. A.R.’s contractions were two to three minutes apart, and very intense. Based on the symptoms displayed by A.R., and the estimated time between contractions, Ms. Hernandez believed that A.R. was in transition between latent and active labor. The transitional period is the shortest stage of labor. The doula and F.R. jointly made the decision that it was time to take A.R. to the birthing center. F.R. called and informed Respondent that the birth party would be arriving at GBO in around 15 minutes. At no point before reaching the birthing center did A.R. or F.R. count contractions. There is conflicting evidence as to whether A.R. was screaming in pain before heading to GBO. Ms. Hernandez testified that A.R. was not screaming in pain while at her house, but rather was working hard, groaning, and exerting energy, stating that “I wouldn't say that she was out of control. She was working hard and I'd say, in my experience, she was coping well.” She further testified that A.R. was screaming only at the end while at GBO, immediately before her transfer to the hospital as described herein. Ms. Hernandez’s testimony is accepted. At 10:35 p.m., A.R., F.R., Ms. Hernandez, and A.R.’s mother arrived at the birthing center and were greeted by the medical assistant, Katherine Williams. A.R walked into GBO on her own. Ms. Williams accompanied A.R. to the birthing suite, and A.R. sat down on the bed. Ms. Williams’ job as medical assistant at GBO was to support the midwife during labor. Her duties included checking a client’s vitals upon admission into the birthing suite, documenting intrapartum and postpartum records, and comforting the mother and father during the birthing process. While it is disputed if Ms. Williams ever performed a check of vital signs on A.R. upon admission to the birthing suite, Ms. Williams testified that she did so, and the intrapartum records state that Ms. Williams documented A.R.’s blood pressure, respiration, temperature, and fetal heart tones. The report indicates A.R. was coping with contractions at this time. Ms. Williams’s testimony and contemporaneous records are accepted. Shortly after the birthing party arrived in the suite, Respondent and Ms. Shields entered the room. Respondent greeted the party, and observed A.R. in labor, but did not perform any physical examination. Ms. Shields saw the records of Ms. Williams’s vitals check when she entered the birthing suite. Respondent and her assistants watched and assessed A.R. in the birthing suite in an attempt to determine what stage of labor A.R. was in. Ms. Hernandez was massaging A.R.’s back, applying counterpressure, and generally offering encouragement. At 11:15 p.m., A.R. got up to go to the bathroom. She returned from the bathroom and sat at the foot of the bed. Ms. Shields then checked the baby’s vitals. A.R. alternated positions from the bed to the birthing stool and back. Respondent and her assistants continued to monitor A.R. to determine the stage of labor. At some point, Respondent left the room to review materials on stem cell extraction from the umbilical cord. F.R. called Respondent back into the birthing suite. Respondent indicated that A.R. did not seem to be handling the contractions well, and had begun to vocally express pain and breathe heavily. A.R. expressed the desire to get into the birthing tub, at which time Respondent asked A.R. if she would like her to perform a vaginal exam. A.R. responded in the affirmative. Respondent conducted the vaginal exam and informed A.R. she was 100 percent dilated and completely effaced, but that the baby was in breech position. Meconium was observed after the vaginal exam. The parties stipulated that the examination was performed one hour and seven minutes after A.R. arrived at GBO, making the time 11:42 p.m. Respondent informed A.R that it was her decision as to how to proceed with the breech delivery. Respondent told A.R. that she had performed unplanned breech deliveries and was comfortable with undertaking the delivery. Respondent gave A.R. two choices: give birth at the birthing suite; or give birth at the hospital where they would likely perform a cesarean section. There was conflicting evidence as to whether Respondent provided information to A.R. about the options for safe delivery based on the nature of the delivery and its imminence. Respondent testified that she informed A.R. that because the birth may be imminent, it could occur in the ambulance which can be dangerous due to a lack of available trained personnel and equipment, a conversation described in the intrapartum records. Respondent did testify that “I did not quote exactly what I said. I may not have used the word precipitous, but I told her, your labor is progressing fast, and that means the same thing.” Ms. Shields went to check the emergency cart because, to her, “it seemed like we were about to have a baby any second now.” F.R. and Ms. Hernandez testified that Respondent did not tell them that the birth was imminent or precipitous. However, they knew at a minimum that A.R. was 10 centimeters dilated and completely effaced, which would reasonably suggest that delivery could come quickly -- within 30 minutes according to Ms. Mitrega. F.R., Ms. Hernandez, or A.R. could not recall Respondent advising that an ambulance delivery could be dangerous, but recalled Respondent reiterating the downside of a FWB delivery. A complete review of the testimony of each of the witnesses, including GBO staff, indicates that the differences in the recollection of the witnesses were not so dissimilar as to suggest that any witness was intentionally fabricating their testimony. Rather, given the impact of the situation -- as stated by F.R., “all the air went out of the room” -- the differences in time, tone, and substance were, more likely than not, an artifact of the stress and tumult of the moment. The greater weight of the evidence indicates that Respondent gave A.R. the option of continuing with the delivery at GBO or going to FWB. A.R. initially agreed to continue with the delivery in the birthing suite. As stated by F.R., “I agreed, let's do this,” a statement reiterated by several witnesses. To be sure, the decision was influenced by information provided during birthing classes as to the cesarean delivery rate at FWB, and by Respondent’s assurance that she could manage the unplanned breech delivery. Such does not constitute “encouragement” as pled in the Administrative Complaint. Thus, the evidence is not clear and convincing that Respondent failed to meet the minimal standards of acceptable and prevailing nursing practice by encouraging A.R. to continue delivery at GBO after learning that A.R.’s fetus was in breech position, that Respondent engaged in unprofessional conduct as a result of the circumstances surrounding A.R.'s consent to continue the delivery at GBO after learning that A.R.’s fetus was in breech position, or that Respondent made deceptive and/or untrue representations in A.R.'s patient records regarding the decision to continue the delivery at GBO after learning that A.R.’s fetus was in breech position. After A.R. agreed to continue the birth at GBO, Respondent had to assess whether the birth was imminent in case there had to be a decision to transfer to the hospital. Respondent then allowed A.R. to push, stating that: I had to determine if the baby was imminent or not. It was an assessment. She had to push a few times before I could even decide if I had a minute to go use the phone and call -- call 911. The baby could have been born when I walked out the room. Her labor was progressing quickly. I had to establish if birth was imminent. There is conflicting evidence on the number of contractions A.R. went through at the birthing center before a transfer to FWB was initiated by Respondent. A discussion of the discrepancy and the charting thereof is set forth below. Regardless of the number of contractions, Ms. Hernandez indicated that after contractions on the birthing stool, Respondent got the fetal Doppler to measure heart tones. Respondent instructed A.R. to get on the bed on “all-fours” to get a better read on the baby’s heart rate because, as stated by Ms. Shields, “[a] lot of times if it's just the positioning thing, that will help the baby's heart rate just fine if the baby didn't like the position.” Respondent determined that the baby’s heart tones were decelerating during contractions, though they recovered to normal levels thereafter. The second incident of decelerating heart tones prompted the Respondent’s decision that this was a precipitous labor, and that it was time for transfer.1/ After the contractions described above, Respondent noted the baby was not descending normally, and noticed abnormal decelerations of the baby’s heart tones. Respondent told A.R. to stop pushing at this point. Respondent determined that the situation was emergent and left the room to call emergency services for hospital transport. Ms. Shields stayed with A.R. “encouraging her to breathe, [and] trying to discourage her from pushing if she had another contraction.” Ms. Williams retrieved the emergency cart and began to administer oxygen to A.R. Respondent called 911 and asked Ms. Shields to gather and print A.R.’s records for delivery to FWB. A.R. and the rest of her party were led to Respondent’s office where A.R. laid down on the couch to await the arrival of the ambulance. Respondent approximated the call with 911 took about five minutes to provide all the information the emergency operators were asking for. As the call progressed, Respondent transferred the phone to Ms. Williams so Respondent could complete the transfer records for the hospital and check on A.R. Respondent used the fetal Doppler to check fetal heart tones and performed an ultrasound to confirm the baby was in breech position. When the first responders arrived at GBO and were able to assume the care of A.R. and prepare her for transport, approximately 12 minutes after the 911 call was placed, Respondent called in a report to the Labor & Delivery unit at FWB. Deborah Wahlman, R.N., was the charge nurse that answered the call. Respondent gave a full report to Ms. Wahlman that included: A.R. was 40+5 weeks pregnant, complete, breech, and pushing. A.R. was transported from GBO to FWB, a distance of 11 miles, via ambulance. Respondent sat in the back of the ambulance with A.R., while F.R. sat in the front with the driver. Upon arrival at FWB, Respondent transferred full responsibility for the care of A.R. and her fetus to the hospital in accord with her physician protocols. It was not disputed, nor was it an issue, that Respondent correctly performed the steps related to A.R.’s transfer to FWB, ensured that pushing efforts were ceased, encouraged A.R. to breathe, administered oxygen, repositioned A.R., performed a bedside sonogram, and went with A.R. in the ambulance. Respondent provided FWB with handwritten and incomplete intrapartum notes, along with lab reports from A.R.’s 28th and 36th weeks. These lab reports included CBC’s, a glucose tolerance test, and a group beta test strip. She did not provide the OB labs to the hospital because the birthing staff lacked the time to obtain them. A.R. was taken in on a stretcher and admitted to the operating room after being asked preliminary health questions by the hospital staff. Respondent and F.R. were not permitted in the operating room. While waiting in the operating room, Respondent and her staff were completing the notes and forms detailing what occurred at GBO. Respondent and F.R. disagreed as to the number of times A.R. pushed at GBO. At the hearing, A.R., F.R., and the doula testified A.R. went through two to four contractions on the birthing stool. A.R. testified that she had perhaps three to four contractions on the bed before Respondent made the decision to go to the hospital. Respondent indicated that she documents contractions, rather than individual pushes that may occur during a contraction. She testified that a patient may push multiple times during a single contraction. Respondent testified as to her recollection that A.R. had two contractions during which she pushed several times before the decision to transfer her to the hospital was made. When she was charting, Respondent had to estimate how many pushes A.R. might have had in the 15 frenetic minutes or so between the discovery that the baby was breech and the call to 911. She asked Ms. Shields how many pushes she counted, and she indicated two or three. F.R. disagreed, indicating that A.R. pushed at least six times. Respondent construed the statements as meaning there were multiple pushes over two contractions, and charted it as such, logging “attempted to push x2 contractions.”2/ The evidence that Respondent was being untruthful both at the time she prepared the charts and at the hearing was not clear and convincing. Thus, the allegation that Respondent engaged in unprofessional conduct by inaccurately recording the number of times A.R. pushed after Respondent learned that the baby was in breech position is not supported by the applicable quantum of proof. The fetal heart rate with beats per minute (BPM) in the 80s was heard by Ms. Wahlman at FWB when A.R. arrived via ambulance, before A.R. was taken to the operating room. The fetal heart rate with BPM in the 60s was heard when A.R. was in the operating room. A.R. underwent an emergency cesarean section surgery performed by Jennifer Seaton, M.D. Dr. Plano, neonatologist, was called by the hospital staff to report for neonatal resuscitation. She arrived approximately eight minutes after delivery, and testified that “the baby had had normal heart rate in the ambulance ride over, but had had a decrease in the heart rate just prior to delivery and so -- so I proceeded to try to resuscitate a child that -- that according to the history, might have had had a heart rate ten minutes before.” After some time had passed, Dr. Seaton came in to the waiting room and informed F.R. and Respondent that the outcome had not been positive, and that A.R. and F.R.’s child had died. The child died minutes before birth as estimated by the pathologist who performed the autopsy. The autopsy report also documented that the child was diagnosed with cardiomegaly and myocarditis. The Department alleged that Respondent misrepresented to Dr. Seaton whether A.R. pushed while at GBO. Dr. Seaton testified that Respondent “stated that she did not ask the patient A.R. to push.” Respondent testified that the exchange with Dr. Seaton started when she asked “Did you make this patient push when you knew she was breech? And I said, no, I did not make her push. She chose to push. She was pushing spontaneously.” F.R.’s recollection of the initial exchange between Respondent and Dr. Seaton differed from both of theirs. The allegation that Respondent was falsifying information is undercut further by the fact that Respondent advised Ms. Wahlman that A.R. was breech and pushing when she called in the report to FWB. Without something further, the evidence is not clear and convincing that Respondent made deceptive and/or untrue representations to Dr. Seaton regarding her interactions with A.R. while at GBO as alleged in Count III of the Administrative Complaint. Respondent’s notes go up to 2:00 a.m. on December 8, 2017. Respondent testified that all of the notes were completed during the period at GBO, in the FWB waiting room, or shortly thereafter on December 8, 2017, when she was able to sit down at her computer and recollect the events as they happened. The electronic signature of December 19, 2017, was a result of Respondent leaving the record open to confirm her recollection of the time she called for the EMS was consistent with their records. The evidence is not clear and convincing that Respondent, or anyone on the GBO staff, modified her records on December 19, 2017, or that she made deceptive and/or untrue representations in A.R.'s patient records as alleged in Counts II and III of the Administrative Complaint. Standards of Care It is not the individual opinion of a qualified witness that establishes the standards of acceptable and prevailing nursing practice. Rather, it is “community standards” that define the appropriate standard of care. In order to establish the standard of care applicable to nurse midwives, Petitioner relied on the testimony of Joanne Mitrega, who was accepted as an expert in labor and delivery. Ms. Mitrega has been a CNM in Florida since 2001. Although she “came to Florida to join a birth center, a freestanding birth center,” her primary practice since then has been in a hospital setting or a private practice setting with two OB/GYNs. The last time Ms. Mitrega worked at a birth center was in 2002, and even that center was owned and operated by a hospital. Ms. Mitrega indicated that, when asked to develop an opinion regarding standards of care for CNMs: I had reviewed my own practice guidelines from my birth center, at which I used to practice and current practice guidelines, yes. Q And the guidelines from your birth center, are those the same guidelines that Ms. Denbow would be required to follow? A No. Every place has their own set of practice guidelines. Ms. Mitrega further testified that the standard of care is established through a practice’s operating guidelines and protocols, stating that: Every place I've practiced I had Standards of Care, I had guidelines, practice guidelines, which is the Standards of Care, and they were always provided to me by my group. Confirming Ms. Mitrega’s testimony as to the basis for an applicable standard of care, Ms. Richards stated that “in the State of Florida, a nurse midwife has protocols that are signed off by a physician and that's really kind of her governing body, like what she needs to follow.” When asked the basis for her opinion as to “the Standards of Care that are within the community,” particularly as it relates to a vaginal examination upon presentment at a birth center, Ms. Mitrega responded that they were derived from “within the community and establishments I have been a part of.” As indicated previously, the community and establishments with which Ms. Mitrega has recent experience include only hospital or hospital affiliated facilities. They do not include home birth or birthing centers similar to GBO. Ms. Mitrega testified that “everywhere I practiced there was a set of practice guidelines under which I had to practice and be compliant with.” Nonetheless, Ms. Mitrega did not review the protocols in place at GBO. Despite her testimony that every facility has their own set of practice guidelines and their own approved relationship with a physician in the form of signed protocols, her testimony as to standard of care was based on protocols established at her places of employment. As will be discussed herein, in light of Ms. Mitrega’s credible testimony as to the basis for a practioner’s standard of care, her failure to review Respondent and GBO’s operating practices and protocols diminishes the credibility and weight of her testimony that Respondent violated her applicable standard of care. Furthermore, Ms. Mitrega did not, with any degree of specificity, rely on sources she identified and acknowledged as authoritative as support for her opinions. Dr. Lane was accepted as an expert in midwifery. She is a certified nurse midwife, and specializes in home birth, outcomes in home birth and birth center deliveries, and vaginal breech deliveries. She has never practiced midwifery in Florida, but is familiar with community standards of midwifery in Florida, having taught midwifery classes in Destin, worked with community representatives in Florida, and reviewed the Nurse Practice Act. She was a co-author for the Home Birth Standards published by the ACNM, of which she is a member of the Home Birth Section and the committee for Full Practice Standards for Nurse Midwives. Ms. Mitrega recognized ACNM clinical bulletins and physician statements as being authoritative in the field of midwifery. Ms. Mitrega further recognized the ACNM, as the governing body for midwives, as “very influential in establishing the guidelines for us.” Dr. Lane reviewed the intrapartum records, birth plan, prenatal records, lab reports, and all other documents at issue in this case, along with the written complaint. Of critical importance is the fact that she reviewed Respondent’s collaboration agreement with her associated physician, and, thus, had a familiarity with the standard of care that would apply to Respondent. Dr. Lane knew Respondent prior to being asked to offer opinion testimony in this case. They were in school together, and Dr. Lane considered themselves to be friends. That, in itself, is not sufficient to demonstrate bias, and is not a reason to discount Dr. Lane’s sworn testimony. Ms. Richards was accepted as an expert in the Florida Standards for Nurse Midwifery. Ms. Richards is a nurse midwife who has been practicing in Central Florida since 2006. She owns a company providing midwifery care including prenatal, delivery, and postpartum care. Ms. Richards has practiced midwifery in a variety of settings, including both birth centers and hospitals. Vaginal Examination Ms. Mitrega identified four stages of labor, with the “second stage” being from complete dilation to delivery. The second stage for a first-time mother can be from three hours to as few as 30 minutes, with a mean of 50 minutes. By watching and listening to a patient, a midwife can “get an idea about what stage of labor she's in, . . . but if I don't do my pelvic exam, I am only guessing.” Therefore, in the hospital setting at which Ms. Mitrega practices, she performs an initial vaginal exam upon the patient arriving to establish a baseline. When asked when nurse midwives should perform their initial assessment and vaginal exam upon patient admittance, Ms. Mitrega testified: Again, if I'm admitting a patient, I've got to have all my information so I know what diagnosis to put and I know my plan for the patient. Q. Was that the standard when you were at the birth center? A. Yes. Q. That's the standard at the hospital? A. Yes. An initial assessment of a patient, including vaginal exam, was a part of any practice I have been part of. (emphasis added). As previously indicated, Ms. Mitrega’s practice for the 17 years she has been in Florida has been limited to hospital or hospital-affiliated facilities. She has no recent experience in home birth or birthing centers similar to GBO. Ms. Mitrega acknowledged the increased risk of infection and chorioamnionitis resulting from vaginal exams after the patient’s water breaks. Thus, “when the patient is ruptured, the membranes are ruptured, we tend to be mindful of how many vaginal exams we perform.” Dr. Lane corroborated that when a patient’s water has broken, vaginal examinations increase the possibility of infection, and opined that they should only be administered when there may need to be a change in management. Respondent’s operating protocols, and her agreement with A.R., establish that vaginal examinations were to be done minimally. Respondent indicated that A.R.’s delivery appeared to be progressing normally. Given that a vaginal exam had been performed the morning of December 7, 2017, Respondent did not believe another to be necessary, or within the general “non- invasive” practice regimen of a midwife. It was not until A.R. appeared to be having difficulty handling the contractions, combined with her desire to get into the birthing tub, that a vaginal examination was determined to be warranted. Dr. Lane and Ms. Richards, appearing on behalf of Respondent, opined that Respondent did not fall short of the minimum standard of care in performing a vaginal exam after one hour of observation. Dr. Lane testified that the practice of midwifery relies in large measure on non-invasive means of assessing the progress of labor. Thus, discussion and observation are within the standard of care in the absence of some sign of distress or complication. Dr. Lane testified that A.R.’s need to push so soon into her active labor could be taken as a sign of precipitous labor that could change management and, therefore, warrant a vaginal exam. Thus, Respondent’s administration of the vaginal exam after one hour of observation and assessment, and after A.R. began to vocally express pain and breath heavily, was appropriate based on the signs displayed by A.R. Given the totality of the evidence in this case, including the testimony of Dr. Lane and Ms. Richards, Petitioner did not prove, by clear and convincing evidence, that Respondent fell below the minimum standards of care applicable to nurse midwives when she waited to perform a vaginal examination, or that Respondent acted inconsistently with GBO’s policies and physician-approved protocols when she did so, as alleged in Count I of the Administrative Complaint.3/ Breech Birth/Attempt at Delivery Ms. Mitrega testified a breech baby can be delivered vaginally by “a skilled, trained provider who is trained in doing breech vaginal deliveries or in emergency -- in emergencies, or under an emergency situation.” When asked her opinion as to the standard of care for nurse midwives upon discovery of a breech birth, Ms. Mitrega testified: Under my practice guidelines and the birth center, as soon as I diagnose by my guidelines, as soon as I diagnose breech, I had to transfer the patients to physicians to the hospital under physician's care. (emphasis added). As indicated previously, Ms. Mitrega’s guidelines as a midwife member of a hospital staff, is not the standard of care for nurse midwives practicing in a free-standing birthing center, unaffiliated with a hospital. In addition to the foregoing, which indicates a lack of knowledge as to the standard of care for midwives other than those operating under her practice guidelines, the force of Ms. Mitrega’s testimony as to whether the standard of care was violated by Respondent in this case was effectively extinguished by the following: Q. . . . Couldn't a skilled nurse midwife who trained in breech deliveries be able to deliver a breech if it was imminent? A. If she's trained in doing so and her protocols allowing her to do so, yes. Q. Well, that was the situation here, wasn't it? A. I don't know. Q. Why don't you know? A. I don't know the protocols. I don't know if the midwife was trained in breech vaginal deliveries and her protocols were corresponding with that. Q. Well, that was a missing component that was important, wasn't it? A. Yes. Ms. Mitrega admitted, on several occasions, that she did not review GBO’s protocols and practice guidelines. Such an astonishing omission of such a critical element serves, in large measure, to decrease the weight to be afforded the witness’ testimony to near zero. Ms. Mitrega was unable to identify a guideline or standard providing that a skilled and trained midwife should not attempt to deliver a breeched baby vaginally if birth was imminent. She had no knowledge of the standard of care required to determine if a breech birth was imminent, or how many pushes are necessary to conduct an assessment on the imminence of a breech birth. In the course of her testimony, Ms. Mitrega admitted that if Respondent was trained in breech vaginal delivery, then it would be her opinion that A.R. would not have to be transferred immediately. Respondent testified that she has experience and training in delivering breech babies, though she has only delivered one breech baby at GBO, in 2017. There was no evidence to contradict her testimony. GBO’s policies and procedures provide that a patient presenting with a breech presentation is to be transferred to a hospital “if there is time for transport before birth.” However, Respondent and GBO staff will manage the breech birth in the event the patient presents too late for transport. Dr. Lane and Ms. Richards, appearing on behalf of Respondent, opined that Respondent did not fall short of the minimum standards of care in asking A.R. to push once breech delivery was discovered, or failing to immediately transfer A.R. once breech delivery was discovered. Dr. Lane testified that the goal of a midwife is to determine a safe environment for birth, and noted that certified nurse midwives are trained in how to manage surprise breech delivery. The GBO informed consent forms authorized Respondent to manage complications. Ms. Richards testified that certified nurse midwives are required to have their protocols signed off on by a physician. Respondent had done so. Respondent’s protocols authorized Respondent to deliver a baby if birth was imminent in a surprise breech birth, and she acted in accord with the required protocols. Dr. Lane testified that, based on the potential danger to the mother and child from giving birth in an ambulance, the most prudent course of action in this case was for Respondent to determine how quickly A.R. was expected to give birth. As to whether Respondent asking A.R. to push after the breech was identified violated the standard of care, Dr. Lane concluded that allowing A.R. to push over the course of roughly 15 minutes informed Respondent as to how fast the birth would likely occur, allowing her to make an informed choice as to the safest birthing environment. Dr. Lane further concluded that Respondent’s assessment to determine that birth was not imminent prior to transfer, including the observations of contractions and measurement of fetal heart tones, was reasonable and necessary. Based thereon, Dr. Lane opined that Respondent did not breach the standard of care by failing to immediately refer A.R. to a higher level of care when breech was diagnosed. Based on the totality of the evidence in this case, Petitioner did not prove, by clear and convincing evidence, that Respondent fell below the minimum standards of care applicable to nurse midwives when she failed to immediately refer A.R. to a higher level of care, or when she allowed A.R. to push through several contractions to assess the imminence of birth before effecting a transfer, as alleged in Count I of the Administrative Complaint. Recordkeeping As to the recordkeeping required of a nurse/midwife, Ms. Mitrega testified that late entry notes on intrapartum records are an acceptable practice, unless the charting is done at a much later date. Respondent testified that her birth assistant incorrectly charted the pre-transfer heart rate decelerations on the intrapartum record because she was not properly trained to diagnose or document the decelerations. Respondent testified she later charted the correct documentation in her Subjective Objective Assessment Plan. Ms. Mitrega testified that, in general, Respondent’s records were legible and accurate. Her testimony to that effect, and her belief that the entry bearing a signed date of December 19, 2017, was not, is as follows: Q. . . . You said that her records were done appropriately and legibly; correct? A. Right. Q. Prenatal records show the patient's care was documented properly, subject followed standard charts and way of charting to maintain records; correct? A. As far as the flow charts go, and as far as what I can see, yes, I have to agree that they were filled according to the rubrics. Q. Okay. And she had appropriate blood work and cultures down at the appropriate time for the standard of care? A. Yes. Yes. Q. Intrapartum records and intrapartum flow chart were filled out completely, timely and according to rubric? A. Yes. Q. And second stage documentation calls for entry every 5 minutes? A. Uh-huh. Q. And you see that was documented, as well? A. Yes. I do say, again, according to what they use at the center, it is filled out correctly, yes. Q. And that late entry note is an acceptable practice; is that right? A. Right. And I was referring to the note that was done at the hospital, when the patient arrived to the hospital, and I do say late entry note is acceptable. We do take care of patients and patients do come first and then we chart, when we find the next available moment. But when I was reviewing the case again, I did see that there was a really late entry note, the events were happening on December 7th, and there was a note from the December 19th. Q. Where are those? A. If I recall, again, reviewing the case, it was page 153. Q. Could that have been the page -- could that have been the date that it was signed? A. It was electronically signed but how do you sign a record if you don't enter the record? Q. It could be left unsigned; right? A. Right. But, to me, the record was redone, rewritten. (emphasis added). Respondent testified, credibly, that the electronic signature of December 19, 2017, was a result of her leaving the record open to confirm her recollection of the time she called for the EMS. She testified, without any evidence to the contrary, that she did not alter A.R.’s records after she initially prepared them on December 8, 2017. Ms. Mitrega’s testimony that the record was “redone, rewritten” was pure speculation, unsupported by competent, substantial evidence. For the reasons set forth herein, the evidence is not clear and convincing that Respondent, or anyone on the GBO staff, modified A.R.’s records on December 19, 2017, that the records kept and produced were materially inaccurate, or that Respondent made deceptive and/or untrue representations either to Dr. Seaton or in A.R.'s patient records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a final order DISMISSING the Administrative Complaint against Cynthia Denbow, ARNP. DONE AND ENTERED this 26th day of December, 2018, in Tallahassee, Leon County, Florida. S GARY EARLY 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 26th day of December, 2018.
