The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician, license number ME 0060427, based on violations of Sections 458.331(1)(j) Florida Statutes, by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity and Section 458.331(1)(x), Florida Statutes, by violating any provision of this Chapter, in that he violated Section 458.329, Florida Statutes, and Rule 59R-9.008, Florida Administrative Code, by committing sexual misconduct in the practice of medicine.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Sections 458.331(1)(j) and (x), Florida Statutes as to Patients T.S. and A.A. As discipline therefore, it is FURTHER RECOMMENDED: Respondent's license be suspended for a period of one year, commencing December 12, 1994, with his reinstatement upon demonstration that he can practice with skill and safety and upon such conditions as the Board of Medicine shall deem just and proper. Respondent pay an Administrative fine in the amount of $6,000.00. Respondent be placed on probation for a period of three years. DONE and ENTERED this 9th day of May, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 8, 9 (in part), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29 (in part), 30, 3, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88. Rejected as subsumed or irrelevant and immaterial: paragraphs 7, 9 (in part), 17 (in part), 28, 29 (in part), 59, 61, 65. Rejected as not proven by clear and convincing evidence: paragraphs 52, 53, 54, 55, 56, 57, 58, 60, 62, 63, 64, 66, 67. Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, (in part), 7, 8, (in part), 9, 10 (in part), 12, 18 (in part), 19 (in part), 20 (in part), 21 (in part), 22 (in part) 27 (in part), 31, 44 (in part), 46 (in part), 47 (in part), 48 (in part), 49 (in part), 53 (in part), 57 (in part), 58 (in part). Rejected as subsumed or irrelevant and immaterial: paragraphs 6 (in part), 8 (in part), 10 (in part), 13, 15, 16, 18 (in part), 20 (in part), 21 (in part), 23, 24, 25, 26, 28, 29, 30 (in part), 34, 35, 36, 38, 39, 43, 44 (in part), 50, 55, 57 (in part), 58 (in part). Rejected as a restatement or commentary on the evidence: paragraphs 11, 14, 17, 22 (in part), 23, 27 (in part), 29, 30, 34, 35, 36, 37, 48, 40, 41, 42, 44 (in part), 45, 46 (in part), 47 (in part), 48 (in part), 49 (in part), 50, 51, 52, 53 (in part), 54, 55, 56. Rejected as not supported by the evidence: 19 (in part), 20 (in part), 32 and 33. COPIES FURNISHED: William Frederick Whitson, Esquire Senior Attorney Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lee Sims Kniskern, Esquire 2121 Ponce de Leon Blvd. Suite 630 Coral Gables, Florida 33134 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monore Street Tallahassee, Florida 32399-0792 Tom Wallace Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issues in this case are whether Respondent, an osteopathic physician who had a year-long consensual affair with one of his patients, committed sexual misconduct in the practice of osteopathic medicine; and if so, whether Petitioner should impose discipline on Respondent's license within the applicable penalty guidelines or take some other action.
Findings Of Fact Respondent David Simon, D.O. ("Simon"), is a family practitioner who was, at all times relevant to this case, licensed as an osteopathic physician in the state of Florida. His office was located in Palm Beach County, where he practiced medicine from 1985 through the events at issue and beyond, until at least the date of the final hearing. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed osteopathic physicians such as Simon. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Osteopathic Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. In May 2005, a 30-something year-old woman named C.K. became a regular patient of Simon's. As C.K.'s primary care physician from 2005 until the end of 2011, Simon treated C.K. for a variety of physical and psychological disorders. The nature and quality of Simon's medical care of C.K. are not in dispute, the Department having neither alleged nor proved that Simon's treatment of C.K. ever fell below the applicable standard of care, or that Simon's medical records failed to justify any course of treatment he undertook for her benefit. In or around November 2010, while their otherwise unremarkable physician-patient relationship remained intact, Simon and C.K. entered into a mutually consensual sexual relationship. This affair had its genesis in a discussion between Simon and C.K. that occurred on October 12, 2010, during an office visit. While being seen that day, C.K. expressed concern about having been exposed recently to sexually transmitted diseases as a result of experiences which she not only related in some detail to Simon, but also corroborated with photographic evidence stored in her cell phone. In view of these disclosures, Simon lost his professional detachment and entered into a flirtatious conversation of a personal, even intimate, nature with C.K. that was outside the scope of his examination or treatment of C.K. as a patient. C.K. was a willing participant in the non-clinical sexual banter which ensued. Some days or weeks later (the precise date is unavailable), C.K. stopped by Simon's office on a Friday afternoon after business hours, when Simon was there alone. The two resumed their previous, personal conversation, and C.K. proposed that they have sexual relations with one another, a suggestion to which Simon responded positively. Within weeks afterwards, Simon called C.K., and they made arrangements to meet privately after hours at his office, which they later did, as mentioned above, sometime in November 2010. Beginning with that visit, and continuing for about one year, Simon and C.K. met once or twice a month in Simon's office, alone, to engage in sexual activity.2/ Simon used his cell phone to call or text C.K. to schedule these trysts. C.K. consented to the sexual activity with Simon. She was, however, incapable of giving free, full, and informed consent to such activity with her physician.3/ Because C.K. was, at all relevant times, a competent adult, the undersigned infers that her incapacity to freely give fully informed consent stemmed from Simon's powerful influence over her as a patient of his. C.K. and Simon did not have sexual relations during, or as part of, any visit that C.K. made to Simon's office for the purpose of seeking medical advice or care. In other words, doctor's appointments did not provide occasions, or serve as cover, for intimate rendezvous. There is no persuasive evidence that Simon ever tried to convince C.K. that their sexual encounters would be therapeutic or were somehow part of a course of purported medical treatment or examination. Rather, Simon testified credibly (and it is found) that he and C.K. kept their personal and professional relationships separate and distinct.4/ The Department has made much of the type of sexual acts that Simon and C.K. engaged in. Simon described their behavior, somewhat euphemistically, as "sexually adventurous." The Department, in contrast, has implied that Simon is a paraphiliac or pervert, a contention which the undersigned rejects as not just unsupported, but disproved by the evidence. Although at least some of the sexual conduct in question might fairly be dubbed unconventional, more important is that every interaction between these adults took place in private, within the context of mutual consent. There is, moreover, no clear and convincing proof in this record of sexual violence or aggression, nor any evidence of actual injury, damage, or harm. For reasons that will be discussed, the undersigned has concluded that the details of Simon and C.K.'s sexual encounters are irrelevant to the charges at hand; thus, no additional findings about the specific sexual activities are necessary. Simon's liaison with C.K. lasted until late December 2011, at which time C.K. abruptly terminated the relationship. The evidence fails to establish C.K.'s reasons for doing so. Thus, the circumstances surrounding the end of the affair, of which scant evidence was presented in any event, are irrelevant. In the wake of the break up, Simon's affair with C.K. became a matter of public knowledge, gaining him the sort of notoriety few physicians would covet. Facing personal disaster and professional ruin, Simon sought counseling from Helen Virginia Bush, a specialist in sex therapy who is licensed both as a clinical social worker and as a marriage and family therapist. Ms. Bush counseled Simon on subjects such as professional boundaries and erotic transference. At her urging, Simon attended and successfully completed the PBI Professional Boundaries Course, a nationally recognized program for doctors and others at risk of developing inappropriate personal relationships with patients or clients. Ms. Bush testified credibly that in her opinion, which the undersigned accepts, Simon is unlikely to enter into another sexual relationship with a patient or attempt to do so. Simon shares office space and staff with Mary Scanlon, D.O., a physician who, like Simon, specializes in family medicine. Although she has an independent practice, Dr. Scanlon works in close proximity to Simon, whom she met in 2000 during her residency when Simon was the attending physician. Dr. Scanlon believes Simon to be an excellent physician from whom she has learned much about practicing medicine, and her credible testimony that Simon's patients hold him in high regard and have largely stood by him throughout this scandal is accepted. Dr. Scanlon was an effective character witness for Simon who favorably impressed the undersigned with her earnest and forthright demeanor. That she has elected to continue practicing in the office she shares with Simon despite the public disclosure of Simon's disgraceful dalliance with C.K. (which she in no way condoned or tried to excuse), even though she is not contractually bound to stay there, manifests genuine support of and respect for Simon, and tells the undersigned—— more persuasively than any testimony——that his career is worth saving. This is the first time that any disciplinary action has been taken against Simon's medical license. Ultimate Factual Determinations The evidence establishes, clearly and convincingly, that Simon exercised influence within the patient-physician relationship, albeit probably unwittingly, for purposes of engaging C.K. in sexual activity. This ultimate finding is based in part on an inference which follows from the presumed fact of C.K.'s incapacity to consent to sexual activity with Simon, but also on other circumstances, the most salient of which are that the initial steps toward the affair were taken during a medical examination, and that all of the sexual activity at issue occurred in the doctor's office. It is therefore determined, as a matter of ultimate fact, that Simon is guilty of engaging in sexual misconduct with a patient, as more fully defined in section 459.0141, Florida Statutes, which is a disciplinable offense punishable under section 459.015(1)(l).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a final order finding Simon guilty of committing sexual misconduct with a patient, which is punishable under section 459.015(1)(l), Florida Statutes. Because this is Simon's first such offense, it is further RECOMMENDED that Simon be placed on probation for two years subject to such reasonable terms and conditions as the board deems appropriate, and that an administrative fine of $10,000 be imposed. DONE AND ENTERED this 30th day of July, 2014, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2014.
The Issue The issues in this case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2006). At all times material to this case, the Respondent was a physician licensed by the State of Florida, holding license number ME 90545, and certified by the American Board of Internal Medicine. Beginning in 2005, the Respondent owned, and practiced medicine at, the Jude Medical Clinic, 2700 East Bay Drive, Largo, Florida. His wife worked at the clinic as the office manager. The patients specifically referenced herein were clients of Pinellas County Health Services (CHS), an agency that provided access to medical care for low-income residents. CHS apparently paid for some, but not all, medical services and tests. CHS clients selected primary care physicians from a referral list maintained by CHS. The Respondent was a primary care physician who participated in the referral program and accepted CHS clients as patients. Prior to opening the clinic, the Respondent practiced medicine at the Bay Pines VA Medical Center (Bay Pines) in St. Petersburg, Florida, and, for a period of time, he continued to practice at both. The Respondent employed a female nurse at the clinic, with whom he also worked at Bay Pines. Routine practice at Bay Pines required a female to be present in the exam room when a male physician performed a medical exam on a female patient. The Respondent adopted the same practice for the clinic's female patients. Clinic patients were escorted into an exam room by either the nurse or the Respondent's wife. The other female would leave the room to address other responsibilities while the Respondent conducted the medical history interview, recording the information in his notes. The nurse generally recorded the patient's vital signs prior to the interview, although the Respondent did so when the nurse was absent from work. After the interview was completed, the nurse or the Respondent's wife would enter the room and remain during the physical exam. Patient J.R. On August 9, 2007, Patient J.R. presented to the Respondent's office for her initial visit with complaints of neck and back pain. The Respondent interviewed Patient J.R. and conducted a complete medical exam on August 9, 2007. There was no evidence that the exam was unwarranted. The interview and exam were documented by medical records admitted into evidence at the hearing. The exam included a breast exam. The medical records document the size and location of a lesion on her left breast. There was no evidence that the medical records were not created contemporaneously with the physical exam of the patient. Prior to the exam, the clinic's nurse escorted the patient into the exam room and recorded vital signs. The clinic's nurse was present in the room during the exam. At one point during the exam, the Respondent's wife also entered the exam room. After completing the physical exam, the Respondent ordered an MRI to address the patient's complaint of pain and ordered lab tests for the patient. He gave the patient a prescription for medication, which the patient filled. He also scheduled a follow-up appointment, which the patient did not keep. At the time of the initial visit, the patient was taking a significant amount of medication for chronic pain, and she requested that the Respondent provide a prescription for pain medication. He declined to comply with her request. Patient J.R. testified at the hearing that the Respondent fondled her breasts for approximately 15 minutes with no one else present in the exam room at the time. She also testified that the Respondent performed no physical exam during the office visit. The patient's testimony was contrary to the greater weight of the evidence and has not been credited. Patient W.S. On October 15, 2007, Patient W.S. presented to the Respondent's office for her initial visit with complaints of back and leg pain. The patient also suffered from Crohn's Disease and had burns to the skin on the backs of her thighs. She attributed the burns to use of a heating pad. The patient was taking various prescription medications, including pain relievers, at the time of the office visit. The Respondent interviewed Patient W.S. and conducted a complete medical exam, including a neurological exam, on October 15, 2007. There was no evidence that the exam was unwarranted or otherwise inappropriate. The interview and exam were documented by medical records admitted into evidence at the hearing. There was no evidence that the medical records were not created contemporaneously with the physical exam of the patient. Because the clinic's nurse was absent on October 15, the Respondent's wife entered the room at the time of the physical exam and was present throughout the exam. The Respondent took the patient's vital signs. Upon the conclusion of the exam, the Respondent left the room prior to both the patient and his wife. After completing the physical exam, the Respondent ordered an MRI to address the patient's complaint of pain and ordered lab tests for the patient. He gave the patient a prescription for antibiotic medication for the burns to her thighs and a prescription for a muscle relaxant to address her pain. He also referred her to a gastroenterologist for treatment of the Crohn's Disease. The patient completed the MRI test and filled the medication prescriptions. She also saw a gastroenterologist for her Crohn's Disease, although not the one to whom she was referred by the Respondent. At the hearing, Patient W.S. testified that the Respondent examined her spine by rubbing his hand down her back, during which she emitted a sound of pain, and that the Respondent said, "Don't do that, it makes me think you are horny." She also testified that the Respondent used excessive force when striking her knees with a reflex instrument and said "See what happens when you piss your doctor off." The testimony was not supported by the greater weight of the evidence, and it has not been credited. Allegations related to improper use of a "business or index card" during a neurological exam were withdrawn prior to the hearing. Patient E.S. On February 25, 2008, Patient E.S. presented to the Respondent's office for a follow-up to an initial visit on January 16, 2008. Upon arriving at the clinic for the follow-up, she complained of chest pain and "heaviness" and was immediately taken to an exam room by the nurse. The nurse took the patient's vital signs and retrieved an EKG machine. The nurse placed the EKG machine leads on the patient's chest and performed the test. The test results were within normal limits. The Respondent was not present in the room at the time of the EKG test. After completing the test, the nurse located the Respondent in his office and reported the information to him, and both the nurse and the Respondent went to the exam room. The Respondent advised the patient that the EKG test was normal. The Respondent then discussed the results of lab tests that had been performed after the January appointment. The patient's tests results reported the presence of a urinary tract infection (UTI) and specified that the identified bacteria "may represent colonizers from external and internal genitalia." Based upon the reported source of the bacteria identified as responsible for the UTI, the Respondent discussed sanitary cleansing practices with the patient during the exam. At the conclusion of the appointment, the Respondent referred the patient for cardiac stress testing, prescribed an antibiotic for the UTI, and ordered additional lab tests. The Respondent left the exam room prior to both the patient and the nurse. The nurse removed the EKG leads from the patient's chest. The patient filled the prescription and went to the lab as directed by the Respondent. The patient's office visit on February 25, 2008, was documented by medical records admitted into evidence at the hearing. There was no evidence that the medical records were not created contemporaneously with the physical exam of the patient. There was no evidence that the Respondent's interaction with Patient E.S. was inappropriate or unwarranted based upon the information available to the Respondent from test results or obtained during the patient's initial clinic appointment. At the hearing, Patient E.S. testified that the Respondent performed the EKG and that no one else was present at the time. The testimony was contrary to the greater weight of the evidence and has not been credited. Patient E.S. testified that after telling her about the UTI, he told her to "lay off the sex." There was no credible evidence presented that providing such advice to a patient with an active UTI was improper or constituted sexual misconduct. Patient E.S. also testified that the Respondent pulled down her underwear, and, using an ungloved finger, touched her clitoris and inserted his finger into her vagina, while identifying each. The testimony was contrary to the greater weight of the evidence and has not been credited. The Administrative Complaint alleged that, at the time of the initial visit, the Respondent told the patient she needed a pap smear test and that one could be provided for her payment of $50 "under the table." At the hearing, the Respondent denied making the statement, but testified without contradiction that the CHS did not pay for pap smear tests and that patients were required to pay the expense of the test. There was no evidence that such a statement, even assuming it were made, constituted sexual misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Administrative Complaint filed against Kayode Ezekiel Sotonwa, M.D. DONE AND ENTERED this 25th day of September, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 25th day of September, 2009. COPIES FURNISHED: Shirley L. Bates, Esquire Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Kory J. Ickler, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Suite 200 Post Office Box 10095 Tallahassee, Florida 32302-2095 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue to be presented is whether Respondent failed to maintain good moral character as alleged in the Administrative Complaint, in violation of Section 943.1395(7), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was certified as a law enforcement officer by the Florida Department of Law Enforcement, having been issued certificate number 281123. Respondent was employed by the City of Madison Police Department from December 2008 through July 2009. At the beginning of 2009, Respondent was 23 years old. Sometime in late December 2008 or early in 2009, Respondent received the telephone number for E.B.H. from Paige Bell, a friend of E.B.H.'s. At the time Ms. Bell gave Respondent E.B.H.'s number, E.B.H. was 16 years old. Respondent knew that E.B.H. was under the age of 18. Although the exact time-frame of the communications is unclear, in approximately January or February of 2009, Respondent and E.B.H. texted and called each for a one to two-week period. They never met in person. During their short period of communication, the two sent each other pictures of themselves so that each knew what the other looked like. E.B.H. testified that the first pictures sent were normal photos where she was clothed. After receiving those, she testified that Respondent asked her for "sexy" photos of herself wearing no underclothing. In response, E.B.H. sent him two pictures of herself, either nude or partially nude. The communication between Respondent and E.B.H. was brief, lasting no more than a few weeks. Once E.B.H. learned that Respondent was a law enforcement officer, she stopped texting him because she did not want either of them to get in trouble. Sometime after the texting stopped, the police chief for City of Madison Police Department received an anonymous complaint alleging that Respondent had possession of nude pictures of a minor female. On July 7, 2009, Sergeant Benton Ebberson was assigned to conduct an internal investigation in response to the complaint. As part of his investigation, Sergeant Ebberson spoke to several individuals who did not testify at hearing. What those individuals told him during the investigation is clearly hearsay. However, from these interviews, Sergeant Ebberson was able to gather enough information to get descriptions of the photos and identify E.B.H. as the subject of the photos. As a consequence, Sergeant Ebberson located and, with the permission of her parents, interviewed E.B.H. She admitted sending the photos to Respondent, but no longer had possession of the phone from which the texts were sent or copies of the pictures. Her father had discovered her actions and the pictures earlier in the year, and had deleted the photos and confiscated her telephone. Respondent also was interviewed as a consequence of the internal investigation. Consistent with the information he gave during his interview, he denies asking for the photos and claims E.B.H. sent them to him on her own volition. Whether he asked for the pictures is not particularly relevant. There is no dispute that E.B.H. sent and Respondent received at least two pictures of E.B.H. in which E.B.H. was wearing little or no clothing. Respondent claims that, while he received the pictures and looked at them, he did not know they were pictures of E.B.H., and therefore a minor, because the pictures did not include her face. However, he knew that the pictures were received from E.B.H.'s telephone number. Respondent did not report receiving the pictures to either his supervisors or to E.B.H.'s parents. Respondent also claims that upon receiving the pictures, he simply deleted them. His testimony to this effect is not credible. E.B.H. testified credibly that while she had sent inappropriate photographs to a former boyfriend on a separate occasion, she had sent these photographs to Respondent only. Regardless of the possible motives involved for complaining, it makes no sense that anyone would be able to complain to the police department and that the photos could be described in sufficient detail for Sergeant Ebberson to be able to locate E.B.H. unless Respondent either talked about receiving the photos or showed the photos to someone else. The photos, however, are not in evidence. E.B.H. knew she was either completely nude or only partially dressed, but could provide very little other information about the photos. No evidence was presented to indicate that the photos included a depiction of sexual conduct.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 14th day of December, 2010. COPIES FURNISHED: Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ernest M. Page, IV, Esquire Post Office Box 167 Perry, Florida 32348 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether, in his treatment of patient H.M., Dr. Sewell failed to practice medicine with the level of care, skill and treatment which is recognized by reasonably prudent, similar physicians as acceptable under similar conditions and circumstances.
Findings Of Fact Jesse Q. Sewell, III, M.D., is a licensed physician in the State of Florida, holding license ME0028694. He has been licensed for eleven years. On or about February 11, 1986, Dr. Sewell was the treating physician for H.M. When H.M. visited his office, Respondent performed a pelvic examination and concluded that the patient was not pregnant, and prescribed a legend drug for birth control, Ortho- Novum. No test was done to determine if H.M. was pregnant because Dr. Sewell regarded those tests as an unnecessary expense to the patient. Dr. Sewell did not instruct the patient to wait until her next menstrual period to begin to take the birth control pills. Rather, he told H.M. to discontinue the pills if she did not have a period by the time she finished the first packet of pills. At the time of the examination, the patient was already six to eight weeks pregnant. By failing to perform a urine or blood pregnancy test on February 11, 1986, the care rendered by Dr. Sewell fell below that level of care, skill and treatment recognized as appropriate by reasonably prudent physicians. Under proper care, a urine or blood pregnancy test would have been ordered and Dr. Sewell would have instructed the patient not to use the birth control pills until she had had a period. It is generally recognized that birth control pills should not be prescribed for anyone who is pregnant or suspected of being pregnant. Dr. Sewell relies on six articles from medical journals to demonstrate that there is no discernible risk to a woman or fetus when taking birth control pills prior to, during or after conception. These articles include: Smithells, R.W. (1981) "Oral Contraceptives and Birth Defects," 23 Journal of Developmental Medical Childhood Neurology at 369; Rothman, K.J., and Louik, C. (1978), "Oral Contraceptives and Birth Defects," 299 The New England Journal of Medicine, at 522; Harlap, S. and Eldor, J. (1980), "Births Following Oral Contraceptive Failures," 55 Journal of Obstetrics and Gynecology at 447; Savolainen, E., Saksela, E. and Saxen, L. (1981) "Teratogenic Hazards of Oral Contraceptives Analyzed in a National Malformation Register," 140 American Journal of Obstetrics and Gynecology at 521; Cuckle, H.S. and Wald, N.J. (1982), "Evidence against Oral Contraceptives as a Cause of Neural-Tube Defects," 89 British Journal of Obstetrics and Gynecology, at 547; Harlap, S., Shiono, P.H., and Ramcharan, S. (1985), "Congenital Abnormalities in the Offspring of Women Who Used Oral and Other Contraceptives Around the Time of Conception," 30 International Journal of Fertility at 39. Dr. Sewell's contention that the current medical literature indicates no statistically significant risk to a woman taking birth control pills prior to, during or after conception, is accepted. The deposition testimony of Dr. Edward J. Zelnick was entered by the Board of Medicine. Dr. Zelnick indicated that the failure to perform a blood or urine pregnancy test and starting the patient on birth control pills without testing to determine whether or not the patient was pregnant was imprudent practice, and fell below community standards. He went on to testify that Dr. Sewell's action did not constitute malpractice because it resulted in no injury. In determining whether or not the care rendered failed to meet community standards, it is not relevant that the patient was not harmed. A patient may be fortunate enough to suffer no ill effects even though the care provided was substandard. The issue is quality of the care, not the severity of any injury which may or may not result from inadequate care. Whether the patient suffered an injury, and if so, whether that injury was severe is an appropriate consideration in assessing any penalty for failure to practice medicine with that level of care and skill recognized as appropriate by similar physicians. The testimony of Dr. Zelnick that a pelvic examination was insufficient, that urine or blood pregnancy test should have been performed, and the patient should have been informed not to use the birth control pills until after a period, is persuasive. Even if no injury was caused, it is obviously useless for a physician to prescribe oral contraceptives for a patient who, already being pregnant, requires no protection against conception. Accordingly, a physician ought to determine whether the patient is pregnant before prescribing oral contraceptives.
Recommendation It is RECOMMENDED that Dr. Sewell be found to have violated Section 458.331(1)(t), Florida Statutes, that he be fined $250, placed on probation for three months, and required to complete three hours of continuing medical education in the prescription of legend drugs, including birth control drugs. DONE AND ORDERED this 20th day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2567 The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings: Adopted in finding of fact 1. Adopted in finding of fact 2. Adopted in finding of fact 3. Adopted in findings of fact 5 and 7. Adopted in findings of fact 5 and 7. The gist of this finding is adopted in finding of fact 4 by stating the period of pregnancy as of the time of Dr. Sewell's examination and prescription of Ortho-Novum for the patient. Rulings on Respondent's Proposed Findings: The argument contained in Dr. Sewell's letter of September 28, 1987 is dealt with in finding of fact 6, adopting Dr. Sewell's argument that there is no statistically significant risk to a woman or her fetus in taking birth control pills prior to, during or after conception. Nonetheless, his actions constitute malpractice for the reasons stated in findings of fact 7 through 10. See also the Conclusions of Law. COPIES FURNISHED: Peter Fleitman, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Jesse Quimby Sewell, 111, M.D. 2855 Overseas Highway Marathon, Florida 33050 Ms. Dorothy Faircloth Executive Director Board of Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether disciplinary action should be taken against Respondent's license to practice veterinary medicine, license number VM-2404, based on the violations of Section 474.214(1), Florida Statutes, as charged in three separate Administrative Complaints filed against Respondent.
Findings Of Fact At all times pertinent to the allegations in these cases, Respondent was a licensed veterinarian, having been issued license number VM-2404, by the Florida Board of Veterinary Medicine. On March 18, 2000, Respondent performed a spay on Rudy, a six-year-old cat owned by Sharon and James Leonard. Respondent discharged Rudy to Sharon and James Leonard on March 18, 2000. On the following day, when Rudy was not feeling well, the family took Rudy to the emergency clinic where she was seen and treated by Dr. Mark Erik Perreault. When seen by Dr. Perreault, Rudy was wobbly and disoriented, and had pale mucous membranes. In addition, Dr. Perreault observed hair sewn into Rudy's incision site. Because the cat was very tender, it was anesthetized, and a careful examination of the incision was made. That examination revealed the incision had been closed with very large suture material. Because of the cat's condition and his observations, Dr. Perreault recommended and received approval to re-open the incision, and conduct an exploratory operation. This surgery revealed Respondent sutured Rudy’s uterine stump leaving approximately one and a half inches of tissue below the suture. This amount of "stump" is excessive and leaves too much material to become necrotic. Respondent had closed the skin and body wall incisions with excessively large suture material. Respondent secured the body wall and skin incisions with only two throws (knots) in each closing suture. Both Dr. Perreault and Dr. Jerry Alan Greene testified regarding standard of care. It is below the standard of care to sew hair into an incision site or allow hair to become sewn into the incision site because it contaminates the surgical site. It is below the standard of care for veterinarians to use oversized suture material to close the incision site because an excessively large suture leads to excessive inflammation as the body absorbs the excessively large suture material. It is below the standard of care for veterinarians to secure the skin and body wall incisions with less than 5 to 6 throws on their sutures to ensure that the sutures do not loosen or become untied. The potential problems of not using enough throws are exacerbated by using larger suture material which is more likely to loosen. It is below the standard of care to leave an excessive amount of "stump" in the body cavity. An excess of necrotic tissue causes excessive inflammation. Pertaining to Rudy, Respondent’s records contain the notation, "0.6 Ket." Respondent testified that this indicated that he administered Ketaset. Respondent’s records do not indicate whether the administration was intravenously, intramuscularly, or subcutaneously. Respondent testified that he administered the Ketaset intramuscularly. It was below the standard of care for Respondent to fail to indicate the amount of medication administered, i.e., milligrams, cubic-centimeters, etc.; and to fail to indicate the method of administration. Respondent is the owner of V.I.P. Baseline clinic, a veterinary establishment located at 505 Northeast Baseline Road, Ocala, Florida 34470. On August 31, 2002, Teresa McCartney presented her male, white Maltese dog, Puffy, to Respondent at V.I.P. Baseline Pet Clinic for neutering. Teresa McCartney owned no other male, white Maltese dogs. Respondent performed a neuter on Puffy at V.I.P. Baseline Pet Clinic on August 31, 2002. On August 31, 2002, V.I.P. Baseline Pet Clinic was not licensed to operate as a veterinary establishment by the State of Florida Board of Veterinary Medicine. Teresa McCartney picked up Puffy from V.I.P. Baseline Pet Clinic on August 31, 2002. Puffy bled for approximately four days after the neuter was performed. On September 4, 2003, Teresa McCartney presented Puffy to Dr. Mark Hendon for treatment. Upon examination, Puffy was bleeding from the prepuce and from the site of the surgical incision. In addition, there was swelling subcutaneously and intra-dermal hemorrhage and discoloration from the prepuce to the scrotum. The animal indicated pain upon palpation of the prepuce, the incision site, and the abdomen. Dr. Hendon presented the owner with two options: to do nothing or to perform exploratory surgery to determine the cause of the hemorrhage and bleeding. The owner opted for exploratory surgery on Puffy, and Dr. Hendon anesthetized and prepared the animal for surgery. The sutures having been previously removed, upon gentle lateral pressure, the incision opened without further cutting. A blood clot was readily visible on the ventral surface of the penis, running longitudinally the length of the penis and incision area. Dr. Hendon immediately went to the lateral margins of the surgical field, where the spermatic vessels and cord were ligated, and found devitalized and necrotic tissue on both sides of the surgical field which appeared to be abnormal. He explored those areas and debrided the ligated tissues, exposing the vessels and the spermatic cord which he ligated individually. He then proceeded to examine the penis. Dr. Hendon found upon examination of the penis a deep incision into the penis which had cut the urethra, permitting urine to leak into the incision site, causing the tissue damage which he had debrided. Dr. Hendon had not used a scalpel in the area of the penis prior to discovering the incised urethra in the area of the penis, and he could not have been the cause of the injury. Dr. Hendon catheterized Puffy, and closed the incisions into the urethra and penis. Puffy recovered and was sent home the following day. Drs. Hendon and Greene testified about the standard of care in this case. It is below the standard of care to incise the penis or urethra of a male dog during a neuter because neither the penis nor the urethra should be exposed to incision during a properly performed surgery. Respondent’s medical record for Puffy did not indicate the type of gas which was administered to Puffy or that Ace Promazine was administered to Puffy. Respondent's anesthesia logs reflect the animal was administered Halothane and administered Ace Promazine, a tranquilizer. Rule 61G18-18.002(4), Florida Administrative Code, requires that a patient’s medical record contain an indication of the drugs administered to a patient. On September 13, 2002, Department Inspector Richard Ward conducted an inspection of V.I.P. Baseline Pet Clinic. The inspection revealed that Respondent failed to provide disposable towels. It was further revealed that Respondent provided insufficient lights in the surgical area of the premises. Finally it was revealed that Respondent did not have an operational sink in the examination area of the premises. Rule 61G18-15.002(2)(a)4.c., Florida Administrative Code, requires that all veterinary establishments have sinks and disposable towels in the examination area. Rule 61G18-15.002(2)(b)2.d., Florida Administrative Code, requires veterinary establishments that provide surgical services to provide surgical areas that are well lighted. On September 4, 2002, Elaine Dispoto presented her male cat Cinnamon to Respondent at V.I.P. Baseline Pet Clinic, located at 505 Northeast Baseline Road, Ocala, Florida 34470. On September 4, 2003, Respondent practiced veterinary medicine at V.I.P. Baseline Pet Clinic by providing veterinary medical services to Cinnamon. On September 4, 2003, V.I.P. Baseline Clinic was not licensed by the State of Florida to operate as a veterinary establishment. Cinnamon was presented to Respondent with complaints of vomiting and dilated eyes. The owner expressed concern that the animal had been poisoned. Respondent apparently accepted that the animal had been poisoned, and formulated a plan of treatment, because he gave the animal an IV and administered one cubic centimeter of atropine to the animal, a common antidote for organophosphate poisoning. Respondent administered subcutaneously the IV's of Ringer's lactate to the cat. The owners picked up Cinnamon from Respondent, having heard a television news report which was unfavorable about Respondent. Respondent gave the cat to Mr. James Dispoto, who observed that the cat was not doing well, although Respondent indicated that the cat was doing better. Mr. Dispoto was sufficiently concerned about the status of the cat that he took the animal immediately to Ocala Veterinarian Hospital. There the cat was examined by Dr. Fleck. Dr. Fleck found that Cinnamon was in extreme distress; lying on his side and non-responsive to stimuli. A cursory examination indicated that the animal was very dehydrated, approximately 10 percent, and passing yellow, mucousy diarrhea, uncontrollably. His pupils were pinpoint and non-responsive. Upon calling Respondent, Respondent told Dr. Fleck that on the first day he had treated Cinnamon, he had given the cat atropine, dexamethasone, and lactated Ringer's subcutaneously. On the second day, he had given the cat another injection of dexamethasone, penicillin, and lactated Ringer's subcutaneously. Based upon her assessment of the animal, Dr. Fleck wanted to get some blood work to establish what kind of state the rest of the body was in and to start an IV. The owner's consented, and blood was drawn and an IV drip started of normal saline at 25 mils per hour. While the blood work was being started, the cat had a short seizure, and within five minutes, had another bad seizure, going into cardiac arrest and died. A necropsy was performed which was unremarkable. The only significant findings were that the cat was dehydrated. There were indications the cat had received fluids along the ventral midline. The bowels were totally empty and there were no substances within the stomach, intestines, or colon. There was slight inflammation of the pancreas. Samples were taken of the pancreas, liver, kidney, and lung. Analysis of these samples was inconclusive. A cause of death could not be determined. The clinical presentation was very indicative of organic phosphate poisoning. Organophosphates are the active ingredient in certain common insect and garden poisons. However, there were no findings that pin-pointed poisoning as a cause of death. Dr. Greene testified concerning his examination of the files maintained on Cinnamon by Respondent. They reflected Respondent administered one cubic centimeter of atropine on the first day and another cubic centimeter on the second day. Dr. Greene's testimony about the administration of atropine is contradictory. He testified at one point that, based on the cat's weight, a proper dose would be about 2.5 cubic centimeters and Respondent did not give enough; however, his answer to a question on cross-examination later indicated that the amount of atropine given was more in line with what was administered. Respondent faced a bad set of alternatives in treating Cinnamon. The cat presented with poisoning symptoms and suggestions of poisoning by the owners. He could run tests and try and determine exactly what was ailing the cat. However, if he did this without treating the possible poisoning, the cat might have died from the poison before he determined what was wrong with the cat. He could begin to treat the cat for poisoning based upon the owner's representations, and perhaps miss what the cat's problem was. He cannot be faulted for treating the most potentially deadly possibility first. It is noted that a full necropsy could not pinpoint the cause of the animal's problem(s). While Respondent may have run additional tests, they would not have been any more revealing. Atropine is the antidote for organophosphate poisoning and is helpful in controlling vomiting. It is clear from the file that Respondent's working diagnosis was poisoning. He treated the cat with the appropriate drug in approximately the correct dosage. Dr. Greene testified that it was a deviation from the standard of care not to administer fluids intravenously to Cinnamon because an ill patient may not absorb fluids through subcutaneous injection. Based upon Dr. Fleck's discussion of the issues involved in administering fluids intravenously, it does not appear nearly so clear cut as Dr. Greene suggests, but is a matter of professional judgment. Dr. Greene testified it was a deviation from the standard of care to administer lactated Ringer's solution to Cinnamon instead of sodium chloride or normal saline. Again, the choice of normal saline versus lactated Ringer's is one of professional judgment and not standard of care. Dr. Greene opined that it was a deviation from the standard of care to administer only 300ml of fluids to Cinnamon because 300ml is an insufficient amount of fluids to treat for dehydration or to even sustain Cinnamon under the circumstances. Dr. Greene assumed that the all of the hydration was via "IV." The testimony was that the cat did take some water orally; therefore, Dr. Green's predicate was flawed. Respondent administered dexamethsone to Cinnamon. Respondent failed to indicate that he administered dexamethasone in Cinnamon’s record. It is a deviation from the standard of care to fail to indicate the administration of dexamethasone in a patient’s record. Respondent administered penicillin to Cinnamon. Respondent’s records for Cinnamon indicate that he administered penicillin-streptomycin to Cinnamon. Respondent's records for Cinnamon indicate that Respondent did not check on the animal frequently, which, given his condition and the multiple problems which the cat was suffering, was a failure to render the standard of care necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Board enter its final order: Finding that Respondent violated the standard of care in treating Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(r), and imposing an administrative fine upon Respondent of $2,000 for each violation; Finding that Respondent violated the requirement to keep adequate records with regard to Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(ee), and imposing an administrative fine upon Respondent of $1,000 for each violation; Finding that Respondent violated the requirement to obtain a license for a premises, contrary to Rule 61G18- 15.002(2), Florida Administrative Code, which is a violation of Section 474.214(1)(f), and imposing an administrative fine upon Respondent of $2,000; Finding that the record of Respondent's previous violations and the violations found above reflect that he is unqualified and unfit to practice veterinary medicine in the State of Florida, and revoking immediately his license, without leave to reapply; Requiring Respondent to pay costs incurred in the investigation and prosecution of these cases in the amount $5,697.96, plus the costs incurred at the final hearing; and Opposing any effort by Respondent to practice veterinary medicine while an appeal in this case is taken. 28 DONE AND ENTERED this 14th day of October, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ STEPHEN F. DEAN 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 14th day of October, 2003. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Tiffany A. Short, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Thomas V. Infantino, Esquire 180 South Knowles Avenue, Suite 7 Winter Park, Florida 32789 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 29 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 2399-2202
The Issue The issues in this case are whether Respondent violated section 458.331(1), Florida Statutes, by committing medical malpractice or by failing to keep legible medical records that justify the course of treatment of a patient, as set forth in the Amended Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating the practice of medicine pursuant to section 20.43, chapter 456, and chapter 458, Florida Statutes (2015). The Board of Medicine is charged with final agency action with respect to physicians licensed pursuant to chapter 458. At all times material to the complaint, Dr. Tsinker was a licensed medical doctor within the state of Florida, having been issued license number ME 39408. Dr. Tsinker's address of record is 2500 East Hallandale Beach Boulevard, Suite 207, Hallandale Beach, Florida 33160. D.G. was pregnant and sought care from Bellymama Midwifery Services (Bellymama Midwifery). On May 16, 2013, she signed a Bellymama Midwifery Services VBAC Consent Form. It generally advised of risks and benefits in attempting a vaginal birth after having had a cesarean section (VBAC). It included the following statements, among others: 3. I understand that 70-80% of women who undergo VBAC will successfully deliver vaginally, and that this percentage increases in relation to the amount of support women receive in making the decision to try a VBAC. * * * 7. The exact frequency of death or permanent injury to the baby when the uterus ruptures is uncertain, but has been reported to be as high as 50% in cases of complete rupture. * * * 9. Probable contraindications to VBAC include a classical uterine incision, multiple gestations, and breech. Each of these statements on the form was initialed by D.G. At the end of the form was a place for the patient to choose to either attempt VBAC or elect a repeat cesarean, as well as a place to explain that choice. After the form's statement "I want to attempt a VBAC because," the following entry was made in script, "I don't agree that my previous C-section was necessary and I disagree w/ interventions for the sake of convenience." D.G.'s printed name and her signature appear at the bottom of the form. At hearing, D.G. testified that the cesarean section with her first daughter had been a difficult experience. The baby had complications arising from induction which led to the emergency cesarean. D.G. stated that she wished to avoid interventions unless they were medically necessary. D.G.'s first prenatal visit was conducted on May 17, 2013, by Corina Fitch, R.N., a licensed midwife. Nurse Fitch has a degree in midwifery and provides prenatal care and assistance with home deliveries. She has worked with many patients wanting to attempt a VBAC. D.G. testified that after it was determined, at about 35 and one-half weeks gestation, that the fetus was in breech position, she had a discussion with Nurse Fitch as to the best way to proceed. They decided that they should wait to see if the baby changed position. Nurse Fitch testified that the baby did change to vertex position, but then changed again, back to breech. Nurse Fitch testified that she had advised D.G. generally of the risks and benefits of a vaginal delivery and that she specifically briefed D.G. about some of the additional risks of TOLAC1/ with a breech presentation, but not completely: Well, I think that I-–according to what I told you before, I didn't give her all the risks. I talked about cord prolapse, and I talked about head entrapment. So, potentially, no, she did not receive enough information. At slightly over 40 weeks, D.G. telephoned Nurse Fitch to advise that her water had broken (spontaneous rupture of membrane (SROM)). D.G. and Nurse Fitch decided that D.G. should to go to the hospital to deliver there. Based upon information that Dr. Tsinker had successfully delivered breech babies vaginally, D.G. and her husband had decided to seek care from Dr. Tsinker. Nurse Fitch called Dr. Tsinker. She told Dr. Tsinker that D.G. was a 37-year-old pregnant woman at 40 weeks and four days gestation, that D.G. had previously undergone a cesarean section with her first child, that the fetus was in frank breech presentation, and that she wished to deliver vaginally if possible. Nurse Fitch testified that she did not believe that her conversation with Dr. Tsinker included discussion about consent forms or whether the patient had been advised of the risks of attempting a VBAC under all of these circumstances. However, Nurse Fitch testified that Dr. Tsinker had accepted patients from her before and that she always provided a copy of the consent form that her patients signed to him on those occasions, so he was generally familiar with the consent form. Dr. Tsinker agreed to accept D.G. as a patient. Records of Bellymama Midwifery dated December 10, 2013, indicate: Received T.C. from pt reporting SROM @ 10 a.m., mild cramping. Home visit made. FHT's 140's, all VS WNL, baby in breech presentation, VE done to report findings to OB for transfer of care, 1 cm, 100%, 0 station. Dr. Tsinker called as pt desires vaginal birth, he agreed to do delivery, pt transported to hospital in own car in stable condition for augmentation and delivery, CF. At about 1247 hours on December 10, 2013, D.G. presented to the Broward Health Medical Center in Fort Lauderdale with ruptured membrane and fetus in breech position. Her husband was with her. Based upon communications from Dr. Tsinker, she was expected, and the hospital had the admissions paperwork ready for her. D.G. signed a General Consent form at the time of her admission. At about 1320 hours, a labor assessment was conducted by nursing staff. It indicated, among other things, that the reason for admission was spontaneous rupture of membrane, that D.G. was calm, and that her obstetrical history included a previous cesarean section due to low amniotic fluid at 37 weeks. Electronic fetal monitoring begun at 1317 hours showed no decelerations and active movement. Examination confirmed that the fetus was in breech presentation. D.G. told the nursing staff that she wanted to labor without pain medications. The LD-Flowsheet BG indicates that at about 1334 hours, Dr. Tsinker was made aware of the examination and that he issued orders. Dr. Tsinker testified that he was told that the baby was in frank breech position and that there was only "mild" labor activity. Dr. Tsinker testified that he gave the order to start D.G. on oxytocin (or Pitocin). A Maternal Child Inter-Disciplinary Patient Education Record indicates that D.G. was advised of potential side effects from the use of Pitocin at about 1400 hours. This was the only entry in the "Medications" content area. The form contains the initials "SY" and contains a signature that appears to read "Simone Young, RN." The form contains no mention of misoprostol (or Cytotec). D.G. signed a Vaginal Delivery Consent form at about 1410 hours on December 10, 2013. The form had Dr. Tsinker's name filled in and, in a typed line which had been added, indicated that he was authorized to perform "delivery of baby, possible cesarean section, possible use of forceps or vacuum extractor, possible episiotomy." The form itself contained no information about the risks of vaginal delivery, no information about the risks of vaginal delivery after cesarean section, and no information about the risks of vaginal delivery after cesarean section with a baby in breech presentation. The only provision related to risks stated: The Physician has explained to me, and I understand, the potential benefits, risks, or side effects of the procedure, including potential problems related to recuperation; the likelihood of achieving goals; the reasonable alternatives to the procedure; and the relevant risks, benefits, and side effects related to alternatives, including the possible results of not having the procedure. The document contains a signature in the "witness" space which appears to read "S. Young, RN." It was uncontroverted, however, that D.G. had not actually talked with the attending physician about anything before she signed the form. Dr. Tsinker testified that it is his signature which appears at the bottom of the form in the "Physician Signature" space. While there was some question about the date Dr. Tsinker signed the form, this is of no significance. The form does not show that Dr. Tsinker advised D.G. of the risks of TOLAC under her circumstances, and its statement that this had been done was completely rebutted by all of the other evidence, including testimony of Dr. Tsinker. Dr. Tsinker never advised D.G. of the particular risks involved in a vaginal delivery, given her previous cesarean section and breech presentation. He never advised her that a cesarean section was indicated. Further, he admitted that D.G. never told him she was unwilling to have a cesarean section. He simply assumed, based upon the information that had been provided to him by others, that she would decline a cesarean section even if he strongly recommended it to her. He testified that he came to that conclusion because: The patient never, A, asked me any additional questions that she may have had--you know I'm not her mind reader--at time when she was admitted and I showed up after that, right. She knew about her right to ask these questions and to have them answered to her full satisfaction. When I showed up, she didn't have that opportunity when she came in because I wasn't there. But when I showed up, she had all in the world opportunity, if she was even a little bit still in the dark or had reservations or any problems, she had the opportunity to ask me that and I would have definitely given her a complete answer. She never mentioned she had regret her opinion or she wants to stop and revert to a cesarean section, or to do anything but to continue the trial of TOLAC. Some of D.G.'s medical records, such as the medications list, suggest that misoprostol, a drug used to make the patient more receptive to oxytocin, was never ordered in D.G.'s case. Other records suggest that it may have been administered to D.G. Dr. Tsinker stated in response to interrogatories and testified at hearing that misoprostol was not used in D.G.'s case. As for entries appearing to indicate that misoprostol was discontinued, Dr. Tsinker's uncontroverted testimony was that you cannot "discontinue" misoprostol because it is introduced intravaginally in the form of a small pill. The only drug that could be discontinued is oxytocin, which is introduced intravenously. Dr. Tsinker maintained that any references to "discontinue" are references to oxytocin, not misoprostol. He further maintained that misoprostol is used when the cervix needs ripening and noted that, in this case, it was already thinned, with D.G's records showing 100 percent effacement, so that there would have been no need to order misoprostol. Hospital records of Pharmacy Orders reference that administration of Pitocin through continuous infusion began at 1514 hours. An accompanying note provided, "6 milliunit/min = 0.3 mL/min = 18 mL/hr – Start at 6 milliunit/min. Increase by 3 milliunit Q15 min until contractions are Q2 min apart, 40 sec in duration & moderate to strong by palpation – continuous infusion (not to exceed 20 MU/min). Hold for non reassuring FHR pattern or tachysystole." Dr. Tsinker did not perform an examination of D.G. in order to determine whether D.G.'s fetus was in frank, footling, or some other breech position prior to the administration of Pitocin to D.G. As Dr. Tsinker testified, he had been informed that the fetus was in frank breech position. There was some conflicting evidence as to whether the fetus was in frank breech or in foot breech position. The Discharge Summary form, dictated by Dr. Siegel and signed by Dr. Tsinker, indicates that the "patient was delivered vaginally, foot breech," and the Newborn Consultation form of Dr. Otero similarly had a block indicating "foot breech" checked. However, Nurse Fitch testified that she determined the baby was in frank breech position earlier, and, consistent with the testimony of Dr. Tsinker, the Baby's Delivery Record indicated "Breech Position: Frank." Norman Donald Diebel, M.D., later testified that although he could not be sure, he concluded that the baby was in frank breech position. Dr. Tsinker had never met D.G. in person, or spoken to D.G. prior to December 10, 2013. He saw her for the first time around 1635 hours on that day. At some point, Dr. Tsinker prepared an OB/GYN History and Physical form. It was dated December 10, 2013, but no time was given. No pelvic examination was recorded which could be used to determine when it was prepared. As Dr. Tsinker admitted, the notes are untimed and mostly abbreviated. It records the presentation as "breech" and the membranes as "ruptured." While it has a few spaces left blank, it was substantially completed, albeit with little detail. During D.G.'s labor, Dr. Tsinker did not dictate or write any progress notes. Dr. Tsinker maintained that because he believed everything was progressing well, he did not think it necessary. At 2031 hours, the flowsheet records Dr. Tsinker at bedside and indicates that he reviewed the fetal strip. At 2051 hours, the flowsheet records that Dr. Tsinker responded to a page and was "notified/updated" and notes that there were "no new orders." Nurse Radhiya Walther could not remember these entries when asked about them, or recall if they were in fact entered about ten hours after the events they describe. Dr. Tsinker disputed that he was ever contacted at this time. At 2130 hours, the flowsheet records that "augmentation D?c'd unable to continuously monitor doula and pt instructed to assist with FHR monitoring while on ball." Nurse Walther stated she discontinued oxytocin because the patient was sitting on the ball, and she was unable to monitor the strip. She admitted in cross-examination that if oxytocin was discontinued, the physician should be notified. She admitted that the records did not indicate that Dr. Tsinker was notified. The fetal monitor strip indicates noticeable loss of variability in the trace and some early decelerations. These were not yet clear signs of fetal distress, but as Dr. Diebel testified, would have caused a reasonably prudent obstetrician/gynecologist to remain with the patient. At 2203 hours, the flowsheet records a vaginal exam by Dr. Tsinker, with dilatation at 10 cms, and effacement at 100 percent. Dr. Tsinker requested that D.G. demonstrate how she was going to push so that he could evaluate the effectiveness of her pushing. D.G. testified later, "Dr. Tsinker asked me to push, I attempted to push with all of my might, they were unproductive pushes. He told me continue to labor, I'll come back later and he left the room." Dr. Tsinker testified that at that time he directed the delivery nurse to have D.G. start pushing, but neither D.G. nor Nurse Walther recall that order. Additional comments recorded for this time indicate "Dr. Tsinker at bedside strip reviewed Pt attempted pushing will labor down." Nurse Fitch, who had arrived in the labor and delivery room about 2000 hours, did not recall Dr. Tsinker ever telling D.G. or the labor and delivery nurse that D.G. could "labor down." As Nurse Fitch testified: I don't recall that. What I do recall is, when [Dr. Tsinker] left the room, she was very distraught because the exam was extremely painful and she didn't have a sensation to push that was very-–she tried. She gave it her best. And she said "Corina, I don't know if I can do this." And the nurse-—I remember the nurse saying, "Don't worry. There's no urgency. We'll just let her wait till she has the urge. Nurse Walther recalled that D.G. stated she did not want to push because she did not feel any pressure, which is why Nurse Walther recorded the "labor down" comment. Nurse Walther testified she would have called Dr. Tsinker if she had felt this was contrary to his orders in any way, but she did not, because she had not been told to make the patient push. D.G. spent much of her labor on the birthing ball, next to the bed. With D.G. in this position, it was more difficult to monitor fetal heart rate because the monitoring belts can more easily shift and not provide clear readings. Also, D.G., who declined a bedpan, made several trips to the bathroom. Portions of the fetal monitor strips have missing or sketchy readings. By 2230 hours on December 10, 2013, D.G.'s fetal monitor had begun to show clear signs of fetal distress, evidenced by late decelerations. D.G. was never advised by anyone that there were signs of fetal distress, or told of the advisability of having a cesarean section in light of that new information. At 2300 hours, under "Interventions," in D.G.'s records, it is stated that "IV Bolus; Discontinue Uterine Stimulants; O2 On; other Interventions – Please Annotate Annotation: Pitocin remains off O2 remains in place." At 2304 hours, the flowsheet records "MD notified that patient is on ball and unable to get cont tracing and having variable decelerations. Pt instructed to return to bed." Under care provider status it is recorded, "Responded to Page; Report Given; In Department; Notified/Updated See SBAR; No New Orders." Dr. Tsinker again disputes that he was given this notification. Nurse Walther stated she could not remember how Dr. Tsinker was notified. She could not recall if Dr. Tsinker showed up personally in response, or called. She could not remember if she repeated the call to him. The flowsheet records a late deceleration at 2316 hours and another at 2320 hours. As Nurse Walther acknowledged in cross-examination, repetitive late decelerations are dangerous and constitute "category 3," the most serious category. Nurse Walther stated she did not know if she notified Dr. Tsinker after these decelerations. She later conceded that three late decelerations constitute an emergency that required that the attending physician be notified. Nurse Walther testified she walked outside to tell the charge nurse, but could not recall what the charge nurse told her in response. There was no evidence of any actions taken by the charge nurse. Under Additional Comments at 2330 hours, it is noted, "Pt found off monitor in restroom, family at bedside safety precautions maintained. Pt instructed to return to bed, assisted to Labor Bed." Nurse Walther's testimony was generally not very clear or credible and many of the entries in the flowsheet record are found to be unreliable, especially those concerning events that supposedly took place after the visit at 2203 hours by Dr. Tsinker. The stored fetal strip, incomplete in places as it is, is the best evidence of the progress of labor. It was not clearly shown that Dr. Tsinker ever reviewed the fetal monitor strip or was otherwise made aware of the late decelerations occurring after 2200 hours at any time before his return to the room shortly before midnight. When Dr. Tsinker returned to the room before midnight, D.G. and Nurse Fitch were in the bathroom. He asked D.G. to come out. The patient was returned to bed. At about 0003 hours, D.G. was placed in foot pedals and partially elevated. Under Additional Comments, it is noted "audable fhr 147 pt prepped for pushing Dr. Tsinker." The Mother's Delivery Record prepared by Nurse Walther indicated that the Neonatal Intensive Care Unit (NICU) was called at midnight and arrived at 0005 hours. Dr. Tsinker asked D.G. to push. There was some difficulty in hearing the fetal heart monitor. It was a fairly quick delivery, taking about 11 minutes or so. On December 11, 2013, around 0014 hours, D.G. delivered a stillborn male infant. NICU recorded "0" for all Apgar score factors at both one minute and five minutes after birth. Despite multiple efforts, the NICU was unable to resuscitate the baby. The efforts of the NICU team caused D.G. to have feelings of panic; she testified that she was expecting to hear a baby crying and did not realize until then that there was any issue. After about 20 minutes or half an hour, the NICU team came to D.G.'s bedside and informed her that they were unable to resuscitate the baby. A Vaginal Delivery Summary form completed by Dr. Tsinker and dated December 11, 2013, at 1214 hours, briefly described the placenta, blood loss, laceration, and suturing after delivery, as well as the failure of the NICU team to resuscitate the stillborn child, but it said almost nothing of the labor and delivery itself, noting only that Dr. Tsinker "assisted breech delivery" and that the Apgar scores were "0" at one and five minutes. There was no evidence of any other delivery note prepared by Dr. Tsinker. Dr. Tsinker did not talk with D.G. after the delivery, or at any time on December 11, 2013, although D.G. had been requesting to speak with him to find out what had happened. On the morning of December 12, 2013, Dr. Tsinker came to D.G.'s hospital room, but D.G. was in the bathroom. Dr. Tsinker told D.G.'s husband that he would return. D.G. came out of the bathroom and waited for Dr. Tsinker to return. When he did not, D.G. went to the nurse's station and again asked to see him. When D.G. learned that he was no longer in the ward, she asked for her discharge papers. Dr. Tsinker appeared, and they returned to D.G.'s room. In the brief discussion about the course of labor and delivery which followed, D.G. believed that Dr. Tsinker was insensitive and blamed her for the outcome. After receiving further care not relevant to this case, D.G. was discharged from Broward General Medical Center at 1220 hours on December 12, 2013. Standards Dr. Diebel is an obstetrician/gynecologist who has been licensed in Florida since 1977. He is board-certified by the American Board of Obstetrics and Gynecology and was an examiner for the board for 18 years. He has previously served as an expert witness in administrative proceedings for the state of Florida. Dr. Diebel is an expert in obstetrics/gynecology and has knowledge, skill, experience, training, and education in the prevailing professional standard of care recognized as acceptable and appropriate by reasonably prudent obstetricians/gynecologists in Florida. Dr. Diebel reviewed D.G.'s medical records from Broward Health, the fetal monitor tracings, the midwife records, the autopsy report, and the Amended Administrative Complaint filed in this case. As Dr. Diebel testified, a vaginal delivery after cesarean section has some risks, but they are still performed. A vaginal delivery with breech presentation has some risks, but they are performed. However, he testified that to attempt a VBAC with a breech presentation was below the standard of care recognized as acceptable and appropriate by reasonably prudent obstetricians/gynecologists in Florida. As Dr. Diebel testified, you have two risky procedures, and "nobody would recommend" doing TOLAC and breech together. While Dr. Diebel acknowledged that this standard of care was not expressly set forth in American Congress of Obstetricians and Gynecologists' Practice Bulletin Number 115, August 2010, entitled "Vaginal Birth After Previous Cesarean Delivery," Dr. Diebel's testimony was clear and convincing and is credited.2/ Dr. Diebel credibly testified that it was below the standard of care to place the burden on the patient to "ask" about a cesarean section. The standard of care in labor and delivery requires that there be an agreement between the physician and the patient, as a part of which the patient is clearly presented with the potential hazards of what she is about to undertake. Dr. Tsinker should have discussed the potential benefits and risks of D.G. undergoing TOLAC, as well as the option to elect a repeat cesarean delivery, with D.G. as soon as possible after her arrival at the hospital. As Dr. Diebel testified, Dr. Tsinker should have advised D.G. that it was a very risky procedure for D.G. to undergo TOLAC because the baby was in breech position, that this is not currently an acceptable procedure, and that she should have a cesarean section. The standard of care required Dr. Tsinker to advise D.G. of the additional risks involved in attempting a VBAC due to her breech presentation. It was Dr. Tsinker's responsibility to fully explain those risks, recommend a cesarean section, and affirmatively ascertain and document her response. Dr. Diebel testified that if a patient refused to follow the physician's recommendations or was uncooperative in this regard: You would document it profusely if a patient- –you know, I explain to the patient that this is what's happening, this is what can happen, this is what the effects can be. I explained all that, she expressed understanding. Yeah, if only to cover myself, I want it to be very clear that we had this discussion and still her decision was otherwise. Dr. Tsinker's testimony that he believed that others had previously had discussions with D.G. about these risks and benefits did not satisfy this standard of care. Dr. Tsinker failed to have the appropriate discussions with D.G. or to document them, as he was required to do. Dr. Diebel's testimony that misoprostol should not be used to induce labor in patients who have had an earlier cesarean delivery was unrefuted and is accepted. Dr. Diebel also testified that the ordering of Pitocin for D.G. violated the standard of care. This conclusion was contested, however, and the basis for Dr. Diebel's conclusion was not carefully explained. While Dr. Diebel did describe risks of uterine rupture, as well as risks of causing contractions to be too close together, it was not explained in what way these risks were unique or increased with a TOLAC with breech presentation. Dr. Diebel testified: Q. Are there any risks associated with administering Pitocin to a patient attempting trial of labor after cesarean with breech presentation? A. Well, you won't find papers devoted to that particular thing, because it is not done. It's not-–breeches are not allowed to have a TOLAC. * * * Q. Why would it not be done? Why would Pitocin not be given in that situation? A. Well, because you wouldn't allow the situation to happen to begin with. Q. Right. A. Where you've got a breech and a previous cesarean section. So there'd be no reason to give Pitocin. This explanation does not provide a logical basis to support a separate charge of medical malpractice. Accepting Dr. Diebel's position that simply undertaking a TOLAC with breech constitutes medical malpractice, it does not follow that every other related, but distinct, element in the labor and delivery procedure would necessarily constitute a separate violation of the standard of care. Dr. Diebel acknowledged that it was appropriate to use a little Pitocin in a (non-breech) TOLAC where the patient is not having any contractions, but that it is run for only a short time, and then once the patient is in labor, discontinued. Dr. Diebel then contrasted that limited use with what was done in this case: In this situation, it was continued all day, even though she was having, in some place on the tracing, contractions a minute to a minute and a half apart, which are too close together. The basis of Dr. Diebel's concern with the use of Pitocin in this case thus appears to be that it was used for too long. However, that was not the charge in this case. The evidence was not clear or convincing that initially ordering Pitocin for D.G., as opposed to continuing its administration for too long, constituted medical malpractice. Dr. Diebel's testimony that D.G.'s admission history and physical was inadequately documented was not clear and convincing. He noted that the form was not properly timed, but the form itself appeared to be substantially completed, and Dr. Diebel did not sufficiently elaborate on what additional information should have been present. Dr. Diebel testified that the standard of care requires that a physician keep progress notes during the labor of their patients. Under cross-examination, Dr. Diebel admitted that as long as everything was going well, there was no need to write a progress note. However, he also testified that the fetal monitor indicated that after 1700 hours, everything was not going well in D.G.'s case. There were missed signals on the monitor, a loss of variability in the trace, and some decelerations before 2200 hours. It was undisputed that Dr. Tsinker failed to keep any progress notes on D.G.'s labor. Under these circumstances, Dr. Diebel's testimony that Dr. Tsinker failed to maintain adequate progress notes was clear and convincing. Dr. Diebel also credibly testified that Dr. Tsinker's delivery note describing what took place during D.G.'s delivery was inadequate. The stillborn child created a duty for Dr. Tsinker to fully document what took place during the course of labor and delivery, with careful attention to documentation of any possible factors that it might appear in retrospect to have contributed to the tragic outcome. Dr. Tsinker's Vaginal Delivery Summary, while briefly describing the placenta, blood loss, laceration, and suturing after delivery, as well as the failure of the NICU team to resuscitate the stillborn child, says almost nothing of the labor and delivery itself, noting only that Dr. Tsinker "assisted breech delivery" and that the baby was stillborn. This was not sufficient under the circumstances. Dr. Tsinker was charged with violating the standard of care in performing as an obstetrician/gynecologist during D.G.'s labor and delivery, and he failed to keep medical records reflecting his participation in the treatment of D.G. during that time. Prior Discipline No evidence was introduced to show that Dr. Tsinker has had any prior discipline imposed upon his license. Dr. Tsinker was not under any legal restraints on December 10, 2013. It was not shown that Dr. Tsinker received any special pecuniary benefit or self-gain from his actions on December 10, 2013. It was not shown that the actions of Dr. Tsinker on December 10, 2013, involved any trade or sale of controlled substances. On August 25, 2014, Dr. Tsinker completed an independent self-study course in Advanced Electronic Fetal Monitoring offered by PESI, Inc., consisting of 6.25 hours of instructional content. On April 6, 2015, Dr. Tsinker completed medical continuing education courses Documentation 154 and Documentation 155, consisting of one hour and two hours of instructional content, respectively, offered by OnlineContinuingEd, LLC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine finding that Dr. Simion Tsinker violated sections 458.331(1)(m) and (t), Florida Statutes (2013), as charged in the Amended Administrative Complaint; suspending his license to practice medicine for a period of four months; imposing an administrative fine in the amount of $20,000; and requiring that he complete continuing medical education as deemed appropriate by the Board. DONE AND ENTERED this 12th day of February, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 12th day of February, 2016.
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine in the State of Florida, for committing the violations alleged in an Administrative Complaint entered March 26, 1996.
Findings Of Fact Petitioner, the Agency for Health Care Administration, is an agency of the State of Florida charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Respondent, Brian Hardcastle, M.D., is a licensed physician in the State of Florida. Dr. Hardcastle was licensed by the State of Florida at all times relevant to this proceeding. Dr. Hardcastle was issued license number ME 0015980. On or about August 27, 1991, D.C. presented to Dr. Hardcastle with complaints of headaches. D.C. is a female. In August of 1991, D.C. was twenty years of age and was taking birth control pills. Dr. Hardcastle diagnosed D.C. as suffering from rhinitis, with a secondary diagnosis of a deviated nose and septum. Rhinitis is an inflammation of the mucous membrane. There are two major categories of rhinitis: (a) allergic rhinitis; and (b) non-allergic or vasomotor rhinitis. Dr. Hardcastle followed a course of treatment that first ruled out allergic rhinitis. Dr. Hardcastle failed to adequately assess D.C.'s complaint when he failed to take into account the fact that D.C. was taking birth control pills. Dr. Hardcastle failed to consider the possibility that D.C. was suffering from vasomotor rhinitis as a result of taking birth control pills. Dr. Hardcastle concluded that surgery was necessary. A second opinion from a Dr. Walker also recommended surgery. Dr. Walker only recommended that a septoplasty be performed. Septoplasty is a procedure whereby a deviation, thickening or abnormality of the septum, the partition in the middle of the nose, is corrected surgically. Dr. Hardcastle recommended that D.C. undergo a septorhinoplasty: septoplasty and rhinoplasty. Rhinoplasty is cosmetic and involves some reduction, thinning, or narrowing of the outer nose. A separate form describing each surgical procedure was provided to D.C. (see Respondent's exhibits 2 and 3), and a film (not offered into evidence) was provided to D.C. by Dr. Hardcastle. The evidence failed to prove that the description of the types of procedures to be performed on D.C. were not adequate or that D.C. was not adequately informed on the possible results of the rhinoplasty procedure. The evidence also failed to prove that Dr. Hardcastle failed to keep adequate medical records of his explanation of the procedure to D.C. The surgery recommended by Dr. Hardcastle was performed on D.C. by Dr. Hardcastle on December 19, 1991. During the surgery Dr. Hardcastle removed approximately 1 inch x 1/2 inch of cartilage. Dr. Hardcastle also performed an osteotomies or the separation of the nasal bone, which according to Dr. Hardcastle's notes, was to correct a minor tilting of the nose to one side. The procedure performed by Dr. Hardcastle was poorly planned, and did little, if anything, to address the problems for which D.C. had first presented to Dr. Hardcastle. Following surgery, D.C. experienced difficulty breathing. She returned to Dr. Hardcastle from December of 1991 until May of 1992 in an attempt to get the problem corrected. Dr. Hardcastle addressed D.C.'s problem breathing by prescribing antihistamines and suggesting that the problem was allergies, even though Dr. Hardcastle had already concluded that D.C. was not suffering from any significant allergies. A reasonably prudent physician should have recognized that the procedure Dr. Hardcastle had performed on D.C. had not been effective and that she was suffering from a septum that was more deviated, or that had redeviated, or was obstructed. Dr. Hardcastle failed to discover this problem. D.C. ultimately presented to an allergist who determined that her septum was deviated or obstructed. It was subsequently determined that a bone spur on D.C.'s septum had not been removed by Dr. Hardcastle. The bone spur was removed during a second operation performed by another physician, Dr. Groff, in December of 1992. Based upon the foregoing, it is concluded that Dr. Hardcastle failed 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 in that he failed to consider the possibility that D.C. was suffering from vasomotor rhinitis as a result of taking birth control pills, his treatment of D.C. was poorly planned, and did little, if anything, to address the problems for which D.C. had first presented to him, and he failed to provide adequate postoperative treatment and care. It is also concluded that Dr. Hardcastle failed to keep adequate medical records in that he failed to note that D.C. was taking birth control pills. Dr. Hardcastle has one prior disciplinary action. On August 8, 1992, Dr. Hardcastle received a reprimand, was required to pay an administrative fine and he was prohibited from practicing otolaryngological surgery. See the Final Order in DRP Case Nos. 90-2824 and 90-4978.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Board of Medicine enter a Final Order finding that Respondent, Brian Hardcastle, M.D., committed acts prohibited by Sections 458.331(1)(m) and (t), Florida Statutes. It is further RECOMMENDED that the Board of Medicine impose the following penalties on Dr. Hardcastle: (1) an administrative fine in the amount of $5,000.00; (2) a reprimand; (3) probation for a period of two years; and (4) a permanent restriction on Dr. Hardcastle's license prohibiting him from performing surgery. DONE and ENTERED this 30th day of October, 1996, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1996. COPIES FURNISHED: Albert Peacock, Esquire Joseph S. Garwood, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Brian Hardcastle, M.D. 6604 Southwest 35th Way Gainesville, Florida 32608 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
