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 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.
Findings Of Fact Dr. Steven D. Shanklin is a Doctor of Osteopathy, maintaining a general practice at 3304 Giddens Street, Tampa, Florida, 33610. During the year 1980, Dr. Shanklin treated numerous Medicaid patients and received payment for these services from the Department of Health and Rehabilitative Services as agent for Medicaid payments in the State of Florida. In 1981 the Department of Health and Rehabilitative Services conducted a routine, computerized assessment of payments made to its Medicaid providers. This assessment identified the respondent for further audit. A level two audit was conducted, which resulted in the Department of Health and Rehabilitative Services requesting 30 specifically identified patient files from Dr. Shanklin. The 30 designated patient files were identified as the result of a disproportionate random sample, which groups by the dollar volume of services rendered. In this method, the total dollar value of Medicaid services is divided by five and the total patient population divided into five subsets in which the value of the services rendered to all the patients in the subset equals 1/5 of the total dollar volume of Medicaid payments. The practical result of the disproportionate random sample is that the subsets become smaller as the dollar value of the services rendered for each individual patient becomes greater. Specifically, in this case, there were 471 patients in subset one, 202 in subset two, 130 in subset three, 78 patients in subset four, and 43 patients in subset five. A sample of six patients was taken from each subset for a total of 30. This is a statistically significant sample of Dr. Shanklin's total Medicaid patient population. Dr. Shanklin transmitted to the Department of Health and Rehabilitative Services 28 of the files specifically identified by the Department of Health and Rehabilitative Services. In addition, Dr. Shanklin provided the Department of Health and Rehabilitative Services two additional files for patients having the same last name as patients whose file had been requested by HRS. The Department of Health and Rehabilitative Services forwarded 30 files to the Peer Review Committee of the Florida Osteopathic Medical Association, which was chaired by Dr. H. Jerome Koser, D.O. The Peer Review Committee consisted of seven Doctors of Osteopathy, five of whom were general practitioners, and two of which were specialists. The Peer Review Committee set aside two of the files furnished them by the Department of Health and Rehabilitative Services, which contained no records. The remaining 28 files were divided among the seven reviewing doctors, each of whom reviewed approximately four files. The individual files were not assessed by the Peer Review Committee acting as a whole, or by a sub-grouping of the Committee. The Peer Review Committee identified seven files in which the reviewing Doctor determined there was over-utilization. In the Peer Review Committee's group discussion, the Committee determined that the over-utilization was minimal. As Chairman of the Committee, Dr. H. Jerome Koser prepared a letter of June 20, 1983 which published the Committee's findings. A copy of Dr. Koser's letter of June 20, 1983 was forwarded to the Department of Health and Rehabilitative Services together with the 30 files which HRS had forwarded to the Peer Review Committee. Upon receipt of the Peer Review Committee's findings, the assigned auditor and Orson Smith, M.D., specializing in Cardiology reviewed the files. Dr. Smith and the Department's auditor determined there was over-utilization in 18 of the 30 cases as indicated in the recoupment determination received as an attachment to petitioner's exhibit nine, the claim letter of October 11, 1983. Based upon the determination of over-utilization by the Department's auditor and Dr. Smith, a percentage of over-utilization in each of the five subsets was determined which was then extended to the total patient population and the amount of recoupment calculated. The recoupment determination form, referenced above, provides as follows: "This form explains how the amount of the recoupment was determined in the peer review process. All of the claims for the sample of recipients were returned to the Medicaid Office by the Florida Osteopathic Medical Association with a cover sheet indicating whether or not there exists misutilization or over-utilization for each recipient. The claims were then reviewed by the Medicaid Medical Consultant to determine the claims that were for services considered to be not medically necessary and that are consequentially being denied in light of the findings of the Peer Review Committee. This first step in the determination is to find the average amount paid, and the average overpayment for the recipients in each stratum of the sample as indicated in this chart:" Based upon the calculations, it was determined that Dr. Shanklin was overpaid $7,808.39.
Recommendation Having found that the amount of recoupment was not based upon the seven specific files identified by the Peer Review Committee as the rules require, it is recommended that the Department not recoup the $7,808.30 originally claimed. DONE and RECOMMENDED this 20th day of September, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1984. COPIES FURNISHED: Robert V. Pierce, Supervisor HRS Medicaid Investigative Services 1317 Winewood Boulevard Building 6, Room 271 Tallahassee, Florida 32301 Ted Mack, Esquire HRS Assistant General Counsel 1323 Winewood Boulevard Building 1, Suite 407 Tallahassee, Florida 32301 S. D. Shanklin, D.O., pro se 3304 East Giddens Avenue Tampa, Florida 33610
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint December 19, 2005, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. See § 455.225, Fla. Stat. (2009). The Board is the entity responsible for regulating the practice of medicine in Florida and for imposing penalties on physicians found to have violated the provisions of Section 458.331(1), Florida Statutes. See § 458.331(2), Fla. Stat. (2009). At the times pertinent to this proceeding, Dr. Achong was a physician licensed by the State of Florida, having been issued license number ME38304, and his medical office was located at 690 East 49th Street, Hialeah, Florida. Dr. Achong specialized in obstetrics and gynecology, although he was not board-certified in these areas of practice. Dr. Achong has not previously been the subject of disciplinary action by the Board of Medicine, and he is not currently practicing medicine, having retired with a disability in 2006. At the times pertinent to this proceeding, Dr. Achong had hospital privileges at Hialeah Hospital and at North Shore Medical Center ("Medical Center"). Both facilities had his home telephone number and his beeper number. It was his practice to keep his beeper close to him at all times. When he was in the delivery room, it was his practice to give his beeper to the circulating nurse, who would be responsible for alerting him whenever someone tried to reach him on his beeper. The beeper he used in 2004 gave only the telephone number of the person trying to reach him, but he was able to recognize the number of Hialeah Hospital and the Medical Center. On February 12, 2004, Patient L.H. went to her gynecologist, Ramon Hechavarria, M.D., for a routine examination. Patient L.H. was, at the time, a 27-year-old who was 32 weeks' pregnant, and she had previously had one live birth. Dr. Hechavarria's examination revealed that Patient L.H.'s blood pressure was elevated, and Dr. Hechavarria admitted her to Medical Center for 24 hours for observation. On February 12, 2004, Dr. Hechavarria ordered blood and laboratory tests done in the Medical Center. The blood tests included a Disseminated Intravascular Coagulopathy ("DIC") profile and a Fibrinogen Degradation Profile ("FDP"); the results of these blood tests were normal. Patient L.H.'s hemoglobin and her platelet count were normal, and, although there was a slight trace of protein in her urine, that is considered normal. On February 13, 2004, Dr. Hechavarria discharged Patient L.H. with a diagnosis of chronic hypertension and a prescription for 250 milligram tablets of Aldomet, to be taken three times per day. Aldomet is a medication that treats hypertension by lowering the blood pressure. Patient L.H. was in good, stable condition when she was discharged on February 13, 2004. Readings from a fetal heart monitor taken during the time Patient L.H. was in the Medical Center indicated that the fetus was alive. Dr. Hechavarria considered Patient L.H.'s to be a high risk pregnancy in part because of her hypertension but also because she came in late for prenatal care, missed two appointments, and was overweight. Dr. Hechavarria left town for a vacation on February 13, 2004, and Dr. Achong was to cover his patients during his absence under an arrangement whereby Dr. Hechavarria and Dr. Achong provided coverage for each other when one or the other was out of town or otherwise unavailable to see patients. Under the arrangement, Dr. Achong was expected to go to the hospital if one of Dr. Hechavarria's patients were in labor or if a patient were to go to the emergency room complaining of vaginal bleeding or any other obstetrical or gynecological condition. Whenever coverage of patients was passing from one physician to the other, Dr. Hechavarria and Dr. Achong advised each other of any patient that was in the hospital for gynecological, obstetrical, or any other medical reason. They did not advise each other of patients that had recently been discharged from the hospital, and, therefore, Dr. Hechavarria did not discuss Patient L.H. with Dr. Achong because she had been discharged from the Medical Center before Dr. Achong began covering Dr. Hechavarria's patients. Patient L.H. presented at the Medical Center at approximately 2:00 a.m. on February 15, 2004, complaining of abdominal pains. She was seen by labor and delivery nurse Jennifer Williams, a registered nurse with 20 years' nursing experience, with 13 years' experience in the Medical Center's labor room, and with training as a mid-wife. Nurse Williams had worked with Dr. Achong at the Medical Center since 1991. Subsequent to Patient L.H.'s arrival at the Medical Center, Nurse Williams interviewed her, took her medical history, examined her, and entered the pertinent information on the Medical Center's Admission Assessment. The Admission Assessment form was dated February 15, 2004, and the time was noted as 2:45 a.m. The time written by Nurse Williams' signature on the Admission Assessment form was 3:00 a.m., and it appears that the information was obtained and entered on the form between 2:00 a.m. and 3:00 a.m. Pertinent to this matter, Nurse Williams maintained several other documents recording Patient L.H.'s condition and observations and actions taken by Nurse Williams relating to Patient L.H. Nurse Williams began maintaining a Labor Flow Record at 2:07 a.m. and she made periodic entries on the Labor Flow Record related to, among other things, Patient L.H.'s vital signs, the results of vaginal examinations and fetal monitoring, uterine activity, and pain intensity at different times during the night and morning. In addition, Nurse Williams entered on the Labor Flow Record the time and content of her communications with Dr. Achong; the first recorded contact between Dr. Achong and Nurse Williams was recorded on the Labor Flow Record as 2:30 a.m. Nurse Williams also maintained Progress Notes in which she recorded her observations of Patient L.H. and her conversations with Patient L.H. The first entry in the Progress Notes was at 2:35 a.m.2 Nurse Williams' Progress Notes reflect that, at 2:35 a.m., Patient L.H. advised Nurse Williams that she had contractions and believed she had been in labor since 6:00 p.m. the previous evening but had waited to come to the Medical Center until she was certain she was in labor. Patient L.H. also reported abdominal pain in her upper abdomen that did "not go away," and Nurse Williams observed that Patient L.H. was distressed by the pain in her abdomen. Patient L.H. also told Nurse Williams that she had no ruptured membranes or vaginal bleeding. Nurse Williams noted that she examined Patient L.H. and felt contractions but was unable to detect a fetal heart tone. Nurse Williams reported in the Admission Assessment form that Patient L.H. was having uterine contractions of moderate intensity and 60 seconds' duration, that her cervix was dilated 1-to-2 centimeters, that she had vaginal bleeding that was bright red, that her blood pressure was 159/118, which she described as "elevated," and that Patient L.H.'s abdominal pain was the "worse" pain on a pain scale ranging from 1 to 10; there is, however, no indication on the Admission Assessment form that the pain was constant. Nurse Williams also noted on the Admission Assessment form that she heard no fetal heart rate. Although the time noted on the Admission Assessment form was 2:45 a.m., it is apparent from a review of the relevant records that the information included on the Admission Assessment form was obtained by Nurse Williams over a period of time extending from the time Patient L.H. presented to her until 3:00 a.m., the time on the Admission Assessment form beside Nurse Williams' signature. Nurse Williams reported in the "Physician /CNM in/Called Report" section of the Labor Flow Record that she contacted Dr. Achong at 2:30 a.m. and conveyed to him the following information: "[P]atient arrived in ER c/o contractions since 6 pm last night & observation that no FHT [fetal heart tone] and contractions palpated." Nurse Williams telephoned Dr. Achong using his home telephone, even though his beeper number was also on file at the Medical Center. There is nothing in the report Nurse Williams gave to Dr. Achong at 2:30 a.m. that would require that he proceed to the Medical Center and examine Patient L.H., and he did not violate the standard of care by failing to do so. Because Dr. Achong did not know Patient L.H., Nurse Williams' normal procedure would have been to advise Dr. Achong of Patient L.H.'s history, including the medications she was taking, and her vital signs, including her blood pressure. No notation appears in the Labor Flow Record to confirm that she gave Dr. Achong this information during her conversation with him at 2:30 a.m., nor is there a notation in the 2:30 a.m. entry in the Labor Flow Record that Nurse Williams told Dr. Achong about the results of her examination of Patient L.H.'s cervix, Patient L.H.'s complaint of abdominal pain, or the presence of vaginal bleeding of bright red blood.3 Nurse Williams indicated in her entry in the "Physician/CNM in/Called Report" section of the Labor Flow Record that Dr. Achong ordered a "stat," or expedited, obstetrical sonogram during the 2:30 a.m. contact with Nurse Williams. The purpose of the obstetrical sonogram was to determine if the fetus was alive. Although not noted in the Labor Flow Record, the Labor and Delivery Orders form completed by Nurse Williams indicates that, at 2:30 a.m., Dr. Achong ordered a complete blood count, which is routine with a patient in labor; a DIC profile; and a Comprehensive Metabolic Panel ("CMP"). The Labor and Delivery Orders form contains standard orders for a woman in labor, but the DIC profile and the CMP tests were not included on the form but were ordered specifically by Dr. Achong. A DIC profile is used to determine if a patient has a problem with blood clotting. The DIC includes an assessment of prothrombin time and partial thromboplastin time, both of which indicate different levels at which a patient's blood is able to clot. It is important to know whether a woman in labor and delivery has a clotting problem, or coagulopathy, because of the danger of bleeding, and the classic situation in which DIC profiles are ordered is when there is fetal demise. Because Patient L.H. had the high risk factors of overweight and hypertension and because Nurse Williams could detect no fetal heart tone, Dr. Achong's order for the DIC profile was appropriate and met the standard of care. It is also appropriate to order a DIC profile when there is a concern about placental abruption, which is the separation of the placenta from the walls of the vagina. A placental abruption causes a great deal of bleeding, and can cause death when not treated, because the fetus is still in the womb and the uterus is not able to contract and constrict the large blood vessels that attach to the placenta. Although hypertension is one risk factor for placental abruption, the symptoms of placental abruption also include fetal demise, bleeding, constant pain, a decrease in hematocrit, and a number of other conditions. There is no indication in Patient L.H.'s medical records that Dr. Achong had sufficient information at 2:30 a.m. that would indicate that Patient L.H. had a possible placental abruption, and he ordered the DIC profile because of the lack of fetal heart tones.4 The CMP includes tests for kidney and liver function and for uric acid. It is used to determine if a woman has pre-eclampsia, or pregnancy-induced hypertension. Given Patient L.H.'s history of hypertension and the level of her blood pressure as reflected in the Admission Assessment form, Dr. Achong's order for the CMP was appropriate and met the standard of care in ordering the CMP. All orders for blood tests for women in labor and delivery are treated as "stat" orders and are processed ahead of all other test orders except those from the emergency room. When the situation warrants, a physician may order that the tests be performed more quickly than the usual "stat" order would require, and it would be possible to obtain blood-test results within 45 minutes. There is, however, no indication in Patient L.H.'s medical records that Dr. Achong had any information at 2:30 a.m. that might indicate that he should further expedite Patient L.H.'s blood tests. Nurse Williams reported in her Progress Notes that, at 2:40 a.m., Patient L.H. reported a "gush of something down there," and Nurse Williams noted that she observed a large amount of blood; there is, however, no notation in the Progress Notes regarding the color of the blood. Nurse Williams also included a notation in the Progress Notes that Patient L.H.'s cervix was "3cm dilated, 50% effaced, -3 station" to describe the progress of Patient L.H.'s labor. Nurse Williams reported in the Labor Flow Record that she contacted Dr. Achong at 2:45 a.m. and conveyed to him the following information: "Dr. Achong notified of gush of vaginal bleeding. VE [vaginal examination] 2-3, 50% effaced, -3 station and that we are awaiting sonogram." The results of Nurse Williams' vaginal examination of Patient L.H. showed that Patient L.H. was in active labor. The information that Patient L.H. experienced a "gush of vaginal bleeding" did not indicate to Dr. Achong that there was anything more than one episode of bleeding, which he attributed to an especially heavy "bloody show," which is the bleeding that occurs when the cervix is dilating. The notation indicates that Dr. Achong told Nurse Williams to call him if Patient L.H. went to delivery. The information conveyed to Dr. Achong at 2:45 a.m., as reflected in the notation in the Labor Flow Record, was not sufficient to indicate that Patient L.H. was not proceeding through labor normally to a vaginal delivery of the dead fetus, which is preferred over delivery by a Cesarean Section. Nurse Williams did not include in her records a notation that she advised Dr. Achong that the "gush of vaginal bleeding" consisted of a large amount of bright red blood, which would have been an indication of a possible placental abruption. Some bleeding is normal during labor, but it is usually a dark color from having been in the uterus and in a small amount or tickle, although there could be a "gush of blood" during normal labor. When Dr. Achong was advised by Nurse Williams that Patient L.H. had a "gush of blood," however, it was his responsibility to inquire into the amount of blood, the color of the blood, and the persistency of the bleeding to determine if Patient L.H. was proceeding with normal labor or if she was experiencing a hemorrhage or other abnormal condition. Nurse Williams made no entries in the Progress Notes for Patient L.H. between 2:40 a.m. and 3:40 a.m., when she reported that the ultrasound had been completed. She further noted in her Progress Notes: "Report of no fetal heart tones to Dr. Achong. Orders given." Nurse Williams additionally made a notation in the Labor Flow Record that, at 3:40 a.m., she contacted Dr. Achong and reported to him the following: "Ultrasound report No FHT's given to Dr. Achong. Orders received." Nurse Williams did not, however, indicate in her notations what orders were given. Nurse Williams contacted Dr. Achong through his home telephone number, which was normal procedure during the nighttime hours. When the sonographer, that is, the person performing the sonogram, entered Patient L.H.'s room to perform the sonogram, he noted that Patient L.H. was sitting upright in bed, was combative, and was in a lot of pain. He also noted that there was a fair amount of blood on the bed sheets. The sonographer was able to get Patient L.H. to lie on the bed, and he performed "a very short ultrasound,"5 and pulled the machine out of the room and into the hall. He powered the machine back up and read the numbers off the worksheet on the machine. He confirmed that the fetus was dead and that the placenta appeared to be balled up rather than lying smoothly against the uterine wall, as is normal. While he was writing down the information from the worksheet on the machine, Nurse Williams approached him and told him that she had Dr. Achong on the telephone. He told her that he had "a placental abruption and fetal demise."6 He then wrote up his report, left a copy for Nurse Williams, and went downstairs to process the sonogram images.7 The results of the sonogram were reported on a form headed "Obstetrical Preliminary Report," which was completed by the sonographer. A radiologist is usually present at the Medical Center during daytime hours to read sonograms, but on the off-hours, it is the practice of the sonographer to present a sonographer's impression of what was seen during the sonogram. The sonographer who performed the sonogram on Patient L.H. noted on the report that her history included obesity, hypertension, heavy vaginal bleeding, and contractions. He included the following comments in the report: "Ant/Rt [unintelligible] placenta appears to be 'balled up[.]' Suggestion of placental abruption," and, on a separate line, "NO FETAL HEART MOTION SEEN PT IS COMBATIVE." Finally, at the bottom of the report, the sonographer noted that a copy of the report was given to Nurse Williams. There was no notation as to the time the sonographer gave the report to Nurse Williams, but, even if she had the report, she did not read it to Dr. Achong; rather, she put the copy of the report in Patient L.H.'s chart for Dr. Achong to review when he came to the hospital and gave him only a verbal report. Nurse Williams did not tell Dr. Achong during the 3:40 a.m. telephone conversation that the sonographer had reported a possible placental abruption.8 Dr. Achong was familiar with and had treated placental abruptions prior to February 15, 2004, and he always treated patients with placental abruptions on an emergency basis because both the mother and the baby could die if treatment was not received as soon as possible. Had Nurse Williams advised Dr. Achong that the sonographer had told her that he found a placental abruption or that the sonogram report included a reference to a possible placental abruption, he would have gone to the Medical Center immediately. At 3:45 a.m., Nurse Williams noted in her Progress Notes that she gave Patient L.H. Nubain and Phenergan for her painful contractions. There is no mention of continued vaginal bleeding in this entry in the Progress Notes. At 4:15 a.m., Nurse Williams noted in her progress notes that Patient L.H. was sleeping quietly and was relaxed and that Pitocin had been administered in accordance with Dr. Achong's orders. Pitocin is used to induce labor, augment labor, or to stop bleeding. In this case, Dr. Achong ordered the Pitocin to regulate Patient L.H.'s contractions. There is no mention in the 4:15 a.m. entry in the Progress Notes of continued vaginal bleeding. The next entry in Nurse Williams' Progress Notes was made at 5:15 a.m., when Nurse Williams reported that she had observed vaginal bleeding, that a vaginal examination showed dilation of four centimeters, and that Patient L.H. was very restless and moving around the bed. Nurse Williams received the laboratory report showing the results of the blood tests ordered by Dr. Achong at or around 5:00 a.m. According to the laboratory report, the blood for these tests was drawn at or about 3:20 a.m.; the report did not show any critical values in the blood sample. Nurse Williams attempted to contact Dr. Achong to convey these results to him. She noted on the Labor Flow Record that, at 5:15 a.m. "Dr. Achong beeped re lab results. Phone message left on home phone to call LR [Labor Room]." Nurse Williams made another entry on the Labor Flow Record that, at 6:55 a.m., she left a "message to Dr. Achong answering machine at home re labor progress update and labs." Dr. Achong was not, however, at home to receive the telephone calls or the messages. At or about 5:00 a.m. on February 15, 2004, Dr. Achong received a telephone call on his home telephone from Hialeah Hospital advising him that one of his patients or one of Dr. Hechavarria's patients was in active labor and about to deliver. Shortly after receiving the telephone call, Dr. Achong left his home to travel to Hialeah Hospital. He carried his beeper with him, but he did not receive any calls on the beeper. When he arrived at Hialeah Hospital and prepared to go into the delivery room, he gave it to the circulating nurse in case he should receive a beeper call while he was in the delivery room. Nurse Hayes, who had replaced Nurse Williams when Nurse Williams' shift had ended at 7:00 a.m., made a notation on the Labor Flow Record that, at 7:15 a.m., she called Dr. Achong and left a message. At 7:25 a.m., while he was in the delivery room, Nurse Hayes called his beeper. The circulating nurse had his beeper, and she notified him that he had received a call and told him the number. He recognized the number of the Medical Center, and he told the nurse to call the Medical Center and let them know that he was in the delivery room at Hialeah Hospital. Nurse Hayes asked that he call back as soon as possible. Blood for additional blood tests was drawn at or about 7:30 a.m., and the results, which were available within 15 minutes, showed several critical values that indicated that Patient L.H. was entering coagulopathy. At 7:38 a.m., as soon as he finished the delivery, he called the Medical Center and spoke with Nurse Hayes, who gave him a report on the status of Patient L.H. She told him that Patient L.H. had heavy bleeding and that the vaginal examination showed no change in the cervix. Dr. Achong ordered the Pitocin turned off. When Dr. Achong arrived at the Medical Center at 7:56 a.m., he found Patient L.H. very combative, bleeding, and with very bad vital signs. He ordered a "stat" Cesarean Section and ordered a blood transfusion. Patient L.H. died at 8:38 a.m., before any of the measures ordered by Dr. Achong could be implemented. The cause of death was recorded as placental abruption. Summary In summary, the evidence presented by the Department is not of sufficient weight to establish that Nurse Williams conveyed to Dr. Achong the information necessary for him to conclude that he should personally conduct a clinical evaluation of Patient L.H.; that he should consider the possibility that Patient L.H. had placental abruption; or that he should have provided medical assistance to Patient L.H. prior to his contact with Nurse Hayes at 7:38 a.m. Nurse Williams' Progress Notes report only two remarkable items: There were no fetal heart tones detected by physical examination or by sonogram; and, at 2:40 a.m., Patient L.H. reported a "gush of something" and Nurse Williams observed a large amount of blood. Neither Nurse Williams' entries in the Labor Flow Record regarding her contacts with Dr. Achong nor her testimony, to the extent that it has been found persuasive, is sufficient to establish that she advised Dr. Achong that she had observed a large amount of red blood at 2:40 a.m. or that the sonographer detected a possible placental abruption in the sonogram. Finally, Nurse Williams did not follow the protocol that required her to contact Dr. Achong through his beeper when she did not get an answer on his home telephone; she tried his beeper only once, at 5:15 a.m., and when she failed to reach him, left three messages on his home telephone. The Department presented no evidence to establish that Nurse Williams attempted to reach Dr. Achong by beeper between 5:15 a.m. and 7:55 a.m., the time of her last call to Dr. Achong's home telephone. Furthermore, the Department did not present evidence of sufficient weight to establish that Dr. Achong failed to initiate the appropriate procedures after he arrived at the Medical Center and examined Patient L.H. at or around 8:00 a.m. The evidence presented by the Department is, however, of sufficient weight to establish that Dr. Achong should have questioned Nurse Williams further when she advised him at 2:45 a.m. that she had observed a "gush" of vaginal bleeding. Even though vaginal bleeding may not be not unusual during labor, a report of a "gush" of blood should have alerted Dr. Achong to a potential problem. Although a physician practicing obstetrics is meeting the standard of care when relying on labor room nurses to advise him or her of the clinical status of labor and delivery patients and of any unusual symptoms exhibited by the patients, it is also incumbent on the physician to inquire further if a patient is presenting unusual symptoms. The persuasive evidence establishes that Dr. Achong violated the standard of care when he failed to ask Nurse Williams for additional information on Patient L.H.'s status during their 2:45 a.m. telephone conversation. Had he inquired further, Dr. Achong would have been alerted to the possibility that Patient L.H. had a placental abruption and would have gone to the hospital to provide appropriate care for Patient L.H.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order finding that Dr. Achong violated Section 458.331(1)(t), Florida Statutes, by failing to elicit further information from Nurse Williams regarding the gush of blood she observed in Patient L.H and imposing the following penalties: Issuance of a letter of reprimand; Imposition of administrative fine in the amount of $2,500.00; and Six months' probation under such conditions as the Board of Medicine determines appropriate, should Dr. Achong ever resume the practice of medicine. DONE AND ENTERED this 4th day of January, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2010.
