Findings Of Fact Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein. There is competent substantial evidence to support the findings of fact.
Conclusions The Administrative Complaint has charged, concerning patient No. 1, that the Respondent failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent failed to perform the procedure to which the patient consented, a bilateral salpingo- oophorectomy. He did not document in the record that he informed or explained to her that the procedure was not performed and why. His records do not show why the procedure was or was not medically necessary. Additionally, he performed a D&C procedure which was not authorized by the patient; and the records contain no documentation of the fact that he informed her of performing that procedure nor the medical reasons why it was indicated, if it was. Because of this and because he failed to perform the procedure to which the patient had consented, the BS&O, without explanation in his records, it has been proven by clear and convincing evidence that the Respondent is guilty as charged in Count I of violating Section 458.331(1)(t), Florida Statutes, by departing from the medical practice standard mentioned in the paragraph above. It was not established, however, that he failed to inform the patient that the procedure which she consented to was not performed, the records merely do not show that she was informed. Moreover, although her eventual death from ovarian cancer stemmed from the organs which he failed to remove surgically when the patient had authorized them to be removed, it was not shown that they were in a cancerous or pre- cancerous condition at the time he performed the surgery or otherwise that the lethal cancer condition resulted directly from his failure to remove the organs at the time of the surgery some five years prior to the patient's death. It was not shown that he should, for some reason, have foreseen that the organs might become cancerous and ignored the risk or that their removal was then medically necessary. In light of the above Findings of Fact, which are supported by the clear and convincing evidence of record, it has been established that Section 458.331(1)(n), Florida Statutes (1979), now substantially reenacted as Section 458.331(1)(m), Florida Statutes, has been violated by the Respondent's failure to keep written medical records justifying his course of treatment of patient No. 1 by failing to document any reasons for his plan to perform the BS&O procedure, to document any symptoms or complaints by the patient, or to document why he changed his plans and did not perform the planned procedure authorized by the patient. This situation is distinguished from that of Breesman v. Department of Professional Regulations, 567 So.2d 469 (1st DCA 1990), which held that the above statutory section was not violated where a physician failed to document other courses of treatment which he elected not to employ. Here, the Respondent planned the BS&O procedure and then changed his plan during surgery. The basis for the change was unexplained in his records. He did not keep written records containing any description of the patient's fallopian tubes or ovaries, as observed during the operation, nor why he performed a D&C to which the patient had not consented, or why the procedures performed were not discussed with the patient. Concerning Count III, the Petitioner has shown by clear and convincing evidence, which culminated in the above Findings of Fact, describing in detail the Respondent's practice and treatment related to patient No. 2, that the Respondent is guilty of violating Section 458.331(1)(q), Florida Statutes, by administering the legend drug, marcaine, to patient No. 2 other than in the course of his professional practice. The administering of a legend drug inappropriately (here, by epidural catheter) or in excessive or inappropriate quantities (12 milliliters of a 0.75% solution in a patient described as, and under the circumstances of, the above Findings of Fact) was not in the best interest of patient No. 2 and was thus not within the proper course of the Respondent's professional practice. The inappropriate administration and the excessive concentration and volume of marcaine for patient No. 2 prescribed and administered under the circumstances delineated in the above Findings of Fact constitutes a violation of Section 458.331(1)(t), Florida Statutes, as charged in Count IV, because the Respondent has been proven by clear and convincing evidence to have failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under those conditions and circumstances in light of the above factual findings pertaining to this patient. Count V of the complaint involves the charge that the Respondent failed to keep written medical records justifying his course of treatment of patient No. 2. This is a violation of former Section 458.331(1)(n), Florida Statutes (1983), now substantially reenacted as Section 458.331(1)(m), Florida Statutes. The above Findings of Fact, supported by clear and convincing evidence of record, demonstrate that the Respondent failed to document any justification for using a highly-concentrated and dangerous agent, such as marcaine, in a volume which was excessive under the circumstances with which the patient presented (regardless of the allowable maximum dose indicated in a general fashion in the PDR). It was an excessive volume for a patient of this size and weight and medical circumstance, including the circumstance that she gave every indication of being able to accomplish a routine vaginal delivery and thus clearly did not need such an excessive volume and concentration of this drug, given the attendant risks, delineated in the above Findings of Fact, which, indeed, came to pass. The Respondent additionally failed to keep any anesthetic record concerning his evaluation of the patient, a description of his anesthetic technique, nor any justification for his anesthetic plan. Unrefuted testimony from an expert anesthesiologist (Dr. Cross) establishes that an obstetrician who prescribes, dispenses, and administers the anesthetic during a surgical, obstetrical procedure is held to the same standard with regard to anesthetizing patients, caring for patients, and documenting the anesthesia portion of his practice with regard to a patient, as is an anesthesiologist. In Count VI, the Respondent is charged with a violation of Section 458.331(1)(t), Florida Statutes, concerning patient No. 3. As delineated in more detail in the above Findings of Fact, the Respondent failed to take an adequate history and to document the performance of an adequate physical examination of this patient. He failed to correctly assess the patient's laboratory results, to obtain appropriate diagnostic studies and failed to adequately assess, monitor, or treat the patient's pregnancy-induced hypertension, as elaborated in greater detail in the above Findings of Fact. He failed to obtain an adequate or complete history and failed to perform an adequate physical examination. He did not adequately assess or monitor the pregnancy-induced hypertension, failed to adequately treat that condition, failed to order appropriate diagnostic studies to accurately determine fetal status prior to initiating therapy to prolong the patient's pregnancy, failed to adequately assess the patient's laboratory test results, and when there was evidence that the baby was in distress, failed to deliver the pregnancy immediately. The above Findings of Fact show, based upon clear and convincing evidence, that the Respondent prescribed, dispensed, administered, mixed or otherwise prepared legend drugs inappropriately or in excessive or inappropriate quantities, not in the best interest of the patient, by prescribing aldomet for the patient. This may have decreased placental perfusion or blood flow. Prescribing lasix for the patient also can decrease placental blood flow and create electrolyte imbalances. It was also inappropriate to prescribe yutopar to prolong the high-risk pregnancy and to prescribe a corticosteriod cream for the patient as treatment for her condition (swelling), which the Respondent had never diagnosed nor assessed. This amounts to prescribing, dispensing, administering, etc. legend drugs not in the course of the Respondent's professional practice, in violation of Section 458.331(1)(q), Florida Statutes. Concerning Count VIII of the complaint, clear and convincing evidence, supportive of the above Findings of Fact, established that the Respondent's written medical records do not justify the course of his treatment of patient No. 3, including, but not limited to, the patient's history, examination test results, and the failure to document any justification for the Respondent's failure to adequately assess, monitor and treat the PIH. They do not contain justification for the failure to order appropriate diagnostic studies to accurately determine fetal status prior to initiating therapy to prolong pregnancy; the failure to assess and diagnose the swelling and the failure to adequately treat the patient during the C-section. They contain inaccurate documentation to the effect that the patient had a "saddleblock" anesthesia, when other medical records reveal that it was an epidural anesthesia. The records do not document that the patient's laboratory test results were adequately assessed; and there is no documentation of either an initial assessment of the infant or his resuscitation efforts shortly after delivery. This recordkeeping deficit amounts to a violation of Section 458.331(1)(n), Florida Statutes (1981) (now Section 458.331(1)(m), Florida Statutes). Concerning Count IX of the complaint, for all of the reasons delineated in the above Findings of Fact with regard to patient No. 4, it has been demonstrated that the Respondent failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. This is shown by the failure to obtain an adequate or complete history, to perform an adequate physical examination on the various dates delineated above, to adequately assess, diagnose and treat the patient by failing to attempt a vaginal delivery, and the failure to obtain informed consent from the patient for sterilization prior to C-section. Additionally, the Respondent failed to adequately assess, diagnose and treat the lacerated cervix, and failed to adequately treat the patient during her postoperative recovery period. Thus, a violation of Section 458.331(1)(t), Florida Statutes, has been established by clear and convincing evidence in these particulars. It has also been so demonstrated that by prescribing the antibiotic, garamycin, without ordering attendant renal function studies (because of the potential for kidney damage) and by changing the route of that medication to a less effective means (oral), even though the patient remained febrile, amounts to prescribing, dispensing, administering, etc. a legend drug, other than in the course of his professional practice and inappropriately, for purposes of Section 458.331(1) (q), Florida Statutes (Count X). Concerning Count XI, it was established, as shown by the above Findings of Fact, that the Respondent failed to keep written medical records justifying the course of treatment of patient No. 4. He failed to document a complete history of the patient and failed to make an adequate or complete physical examination. He recorded no justification for the failure to attempt to deliver the patient vaginally; to document any justification for continued use of the nasogastric tube after the patient began eating; to document any justification for not ordering renal function studies with the use of the above- named antibiotic and failed to document any justification for changing the route of administration of that antibiotic in a febrile patient. He recorded statements in the discharge summary which are directly contradicted by the Respondent's statements in the medical records; and failed to document any explanation for the contradictory statements contained in these records. This constitutes a violation of Section 458.331(1)(m), Florida Statutes. Concerning Count XII of the complaint, the Petitioner has demonstrated by clear and convincing evidence, culminating in the above Findings of Fact, that the Respondent is guilty of unprofessional conduct, incompetence, and negligence, in violation of Section 458.1201(1)(m), Florida Statutes (1977), now incorporated into Section 458.331(1)(t), Florida Statutes (1989). Unprofessional conduct shall include any departure from or the failure to conform to the standards of acceptable and prevailing medical practice within a physician's area of expertise, as determined by the Board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of a physician's practice. There is no question, given the above Findings of Fact, that the Respondent did not conform to standards of acceptable and prevailing medical practice within his area of expertise in his conduct of the care and treatment of patient No. 5. Thus, he has committed a violation of Section 458.331(1)(t), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, as well as the disciplinary guidelines and the consideration of aggravating and mitigating circumstances as provided for in Rule 21M-20, Florida Administrative Code, official recognition of which was taken; to wit, the exposure of the patient to injury or potential injury, the number of counts of separate offenses proven, and the disciplinary history of the licensee, it is therefore, RECOMMENDED that the Respondent be found guilty of violating Subsection 458.331(1)(g), Florida Statutes, as concluded hereinabove, with regard to Case No. 90-2680, but, in consideration of the above-referenced circumstances, that no penalty be imposed. With regard to Case No. 89-6489, it is RECOMMENDED that the Respondent be found guilty of violating the above enumerated subsections of Section 458.331(1), Florida Statutes, as concluded above, and that the Respondent's license to practice medicine in the State of Florida be revoked. DONE AND ENTERED this 9th day of September, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 89-6489 and 90-2680 Petitioner's Proposed Findings of Fact Case No. 90-2680 1-5. Accepted. 6. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 7-8. Accepted. Rejected, as not in accordance with clear and convincing evidence. Accepted. 11-12. Accepted. 13. Rejected, as not in accordance with clear and convincing evidence. 14-20. Accepted. Case No. 89-6489 1-7. Accepted. 8. Rejected, as it was not established with clear and convincing evidence what the patient believed. 9-13. Accepted. 14. Rejected, as not entirely supported by the evidence and as subordinate to the Hearing Officer's findings of fact. 15-28. Accepted. 29-69. Accepted. 70-83. Accepted. 84-95. Accepted. 96. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 97-103. Accepted. 104-120. Accepted. Respondent's Proposed Findings of Fact Case No. 89-6489 Accepted, except as to time period noted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Case No. 90-2680 Accepted, in part, but subordinate to the Hearing Officer's findings of fact. Accepted. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Mary B. Radkins, Esq. Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Elliott F. Monroe, M.D. 2709 Arden Panama City, FL 32401
Findings Of Fact Respondent has been a licensed physician in the State of Florida for 30 years. He holds license number ME 0009656. Respondent, whose specialty is general surgery, began practicing in Orlando in 1963. At no time has Respondent' practice been limited to general surgery. When Respondent arrived in Orlando in 1961, he assisted a Dr. Cox. At the time, Dr. Cox and Respondent were the only physicians providing medical services, outside of public health clinics, to the predominantly black community of the Washington Shores area of Orlando. The subject patient (Patient), who was born on December 2, 1951, selected Respondent as her primary physician in 1977. At the time, Respondent was the physician for the Patient's husband and his mother. The Patient saw Respondent Periodically for-several years. Respondent's medical records of the Patient's initial visit record complaints of headaches and dizziness and a history of glaucoma in the Patient's left eye. The glaucoma arose from a traumatic injury suffered when she was eight years old. The Respondent's treatment of the Patient during 1977-1984 is not in question in this case. After a six-month period during which she did not visit Respondent, the Patient saw Respondent on February 14, and March 12, 1985, complaining of pain in her arm. After ordering X-rays and trying Feldene for the pain, Respondent found that the Patient responded better to Indocin, which is a mild pain reliever and anti-inflammatory medication. The X-ray reports, dated March 3, 1985, indicated that the Patient's cervical and dorsal spine were normal. According to the medical records, on February 14, the Patient's blood pressure was 146/96 in her left arm and 136/95 in her right arm and her pulse was 70 and 65 respectively On the March 12 visit, her blood pressure was 149/98 and her pulse was 81. On her next office visit, May 23, 1985, the Patient complained of nervousness, as reflected in the medical records. Her blood pressure was 152/104 and her pulse was 87. Respondent prescribed Inderide 40/25 for the Patient's hypertension and Centrax 10 mg. for the Patient's nervousness. This is the first time that he had prescribed either medication for the Patient. Respondent's medical records disclose what drugs were prescribed, the strength, and the frequency that they were to be taken. Respondent's records are not as clear as to how many pills were prescribed or whether the prescriptions were refillable. By reference to pharmacy records, however, one can determine with reasonable certainty how long the Patient was prescribed Centrax and Inderide by Respondent. With this finding, it is possible to determine from Respondent's records when a reference to a drug means that Respondent is acknowledging that the Patient is still taking the drug and when such a reference means that Respondent is giving the Patient a new prescription. Inderide is a controlled substance that combines a diuretic with Inderal, which is a beta-blocker. Both ingredients are antihypertensive agents. Inderide 40/25 contains 40 mg. of Inderal and 25 mg. of the diuretic. Besides blocking beta- receptor sites, Inderal does not otherwise affect autonomic nervous system activity. Inderal may also decrease intraocular pressure, such as that associated with glaucoma. 1O. The abrupt discontinuation of Inderal is contraindicated for a broad class of patients who have angina or may be at risk of having occult atherosclerotic heart disease. Additionally, Inderal may impair certain heart functions, which "may augment the risks of general anesthesia and surgical procedures." 1991 Physician's Desk Reference, Product Information, P. 2389. Centrax is a controlled substance derived from benzodlazepine, which has depressant effects on the central nervous system. As a benzodiazepine, Centrax is capable of producing psychological and physical dependence- According to the 1991 Physician's Desk Reference: Centrax is indicated for the management of anxiety disorders or for the short-term relief of the symptoms of anxiety. . The effectiveness of Centrax in long-term use, that is, more than 4 months, has not been assessed by systematic clinical studies. The physician should periodically reassess the usefulness of the drug for the individual patient. 1991 Physician's Desk Reference, Product Information, p. 1625. The 1991 Physician's Desk Reference recommends that patients taking Centrax for long periods have blood counts and liver function tests "periodically. " Special care is advised when using Centrax in combination with other antidepressants. Side effects of Centrax include dizziness and fatigue in about 10 percent of the patients and, less commonly, headaches and slight decreases in blood pressure. On May 30, 1985, the Patient returned to Respondent's office to have a dressing changed in connection with the removal of a growth from her arm. Her blood pressure was 128/92 and pulse was 78. The Patient next visited Respondent on July 23, 1985. As directed by Respondent, the Patient had been taking the recommended dosages of Centrax and Inderide for the past two months. On this visit, she complained of weak spells. She reported that her ophthalmologist had prescribed for her Timoptic, which is a beta blocker that is available in an eye solution. Timoptic reduces intraocular pressure, such as that associated with glaucoma. The Patient's blood pressure was 146/93 and her pulse was 55. Respondent's medical records note that the Patient was taking, in addition to the Timoptic and Indocin, Centrax and Inderide 40/25. At this time, Respondent ordered laboratory work on the Patient, including a complete blood count, fasting blood sugar, the SMAC series of 23 blood tests (which would disclose certain liver dysfunctions), an EKG, and an RPR seroiogical test. The test results were normal except for indicating borderline anemia. The Patient visited Respondent a week later on July 30. Her blood pressure was 140/82 and her pulse was 63. In response to her complaints of headaches, Respondent ordered a CT scan of her brain, continued the Centrax and Inderide, as well as Hemocyte tabs for the borderline anemia. By report dated August 7, 1985, the CT scan proved normal. The Patient visited Respondent about a week later on August 8. Her blood pressure was 121/77 and her pulse 50. On this visit, Respondent directed her not to take the Zantac, which he had prescribed two weeks earlier for a possible ulcer. The Patient had never taken any Zantac. His records also notes that the Patient only briefly took Fiorinal, which Respondent had Prescribed during the prior visit, due to nasal bleeding. Five days later, as reflected in the medical records, Respondent called Dr. Ferguson, who was then the Patient's ophthalmologist. They agreed that the Patient should discontinue the Timoptic due to the low pulse. On August 16, the Patient returned to see Respondent. Her blood pressure was 122/98 and her pulse had increased to 85. The medical records report that Dr. Ferguson had discontinued the Timoptic and had substituted another medication for intraocular eye pressure. The records also show that Respondent gave the Patient a prescription for Inderide 40/25 and Centrax 10 mg, as well as a potassium supplement for leg aches and Indocin for pain and inflammation. On August 29, 1985, the Patient returned to see Respondent. She stated that her head was ready to "explode," according to the medical records. She reported that she had been taken off all eye medication. Complaining of insomnia, the medical records note Respondent's observation of constant fidgeting indicative of anxiety. Respondent decided to increase the frequency that the Patient would take the Centrax from twice a day to three times a day. He also ordered T3 and T4 tests to determine if the Patient suffered from hyperthyroidism. About a week later, on September 5, the Patient revisited Respondent. Respondent prescribed an antihistamine for her complaints of hoarseness and a dry cough. The records disclose that the thyroid test results were normal. The Patient returned to Respondent on September 13. Noting less nervousness and hoarseness and only intermittent headaches, as reflected in the medical records, Respondent approved her returning to work. Her blood pressure was 130/1OO. The notes show that she is to "cont[inue]" the Inderide, Centrax, and Indocin. In the four months since the Patient commenced taking Inderide and Centrax, Respondent had seen her nine times or about once every two weeks. Respondent had also ordered substantial laboratory work to monitor the Patient's condition, consulted with her ophthalmologist with the result that she was taken off eye medication to see if her complaints would be eliminated, obtained a CT scan to rule out other sources of the headaches and related complaints, and obtained thyroid tests to rule out a thyroid malfunction. Sometime prior to the end of 1985, the. Patient changed ophthalmologists and retained Dr. Jerry Shuster to treat her glaucoma. Respondent had continued to prescribe Inderide 45/20, as he intended her to take it for an indefinite period to control hypertension. However, Respondent's prescription for Centrax had run out. On December 26, 1985, the Patient called Respondent to ask for a conference. As a result of this conversation, Respondent called Dr. Shuster and learned that, while treating her for her eye problems, he too had noticed her nervousness. The physicians agreed the nervousness would be helped by restarting Centrax. On December 26, following his conversation with Dr. Shuster, Respondent reissued the Patient's prescription for Centrax, Inderide, and Indocin. The Centrax prescription was for 60 pills with no refill; if taken at the maximum prescribed frequency, the Centrax prescription would run out in about 20 days. By contrast, the Inderide prescription was for 30 pills and allowed three refills; at one pill daily, this prescription would last 120 days. The Patient visited Respondent on January 16, 1986. Her pulse was 52, and she was treated for a vaginitis. A return visit on January 30 disclosed that her vaginitis had cleared up. The medical records note that her blood pressure was 121/89 and pulse was 69. The records also note that the Inderide, Centrax, Indocin, a cortisone (for the vaginitis), and Timoptic prescribed by Dr. Shuster would be continued. Based on the findings contained in Paragraphs 33 and 38 below, the word, "continued," as used in Respondent's medical records, means that the Patient was directed to continue taking medication from a prior prescription, not that she received a new prescription. In January or February, 1986, the Patient decided to discontinue the Centrax because of the fatigue that she associated with its use. She did not again take Centrax until about August, 1986, although she continued to take the Inderide. When she continued the Centrax, she had only what remained of the 20- day prescription that she had received on December 26, 1985. On March 11, 1986, the Patient next visited Respondent. Her blood pressure was 150/90. She complained of leg aches and exhaustion, and Respondent noted in his medical records his observations of fidgeting and restlessness. Respondent prescribed a potassium supplement for the aching leg and ordered a complete blood count, fasting blood sugar, and electrolytes test, which proved normal. Seven months passed before the Patient saw Respondent again. On October 15, 1986, she came to the office. Her blood pressure was 134/91 and her pulse was 73. She stated that she was suffering from nausea and dizziness. Respondent gave her another prescription for Inderide 40/25, Cortisporin for an unrelated ear infection, and Antivert 25 for the dizziness. Respondent prescribed no Centrax during the October 15 office visit. The Patient's pharmacy produced the prescription for Inderide, but, unlike the case with the simultaneous prescriptions for Inderide and Centrax on December 26, 1985, produced no prescription for Centrax. In the absence of any mention of Centrax in Respondent's medical records, which are thorough as to when Centrax and other medications were prescribed, there is no basis to find that Respondent wrote a new prescription for Centrax. Almost four months passed before Respondent again saw the Patient. On February 6, 1987, she visited the office because of back pain and stress-induced frequent urination. Her blood pressure was 140/87 and pulse was 75. Dr. Shuster had been prescribing her Timoptic and steroids for her glaucoma. Respondent approved the use of a heating pad and provided no other treatment. Nine months later, on November 11, 1987, the Patient returned to Respondent's office. She was suffering from pain in her right eye and suggested that the Timoptic being prescribed by Dr. Shuster was responsible. She was still taking the Inderide 40/25 that Respondent had prescribed, but had not been prescribed any more Centrax since December 26, 1985. Respondent gave her a new prescription for Centrax 10 mg., to be taken as needed but not more than three times daily. The prescription for Centrax was for 60 tablets with two refills. At the maximum allowed frequency, the Patient received a 60-day supply of Centrax. Respondent also ordered the T3, T4, and TSH thyroid tests, a complete blood count, and SMAC blood test. The results of the thyroid tests, which were reported on November 13, were normal for T4 and TSH and very slightly elevated for T3. Almost two leeks later, on November 23, 1987, the Patient returned to Respondent's office. Her blood pressure was 123/84 and her pulse 77. She was tired and weak and experienced numbness in her right leg, but she said that she was sleeping well. Respondent's notes reflect that he directed her to continue her medications, to take a vitamin B12 injection, and to call him the following day. The notation, "cont[inue] med[ication]s" did not mean that Respondent gave the Patient a new prescription; in this case, he had just given her a three months' supply only 10 days earlier. No prescriptions were produced by the Patient's pharmacy for any new prescriptions on or about November 23. Further, Respondent's testimony concerning his unwillingness to prescribe more than a limited amount of Centrax at one time is credited. On December 1, 1987, the Patient returned to the office. Her blood pressure was 127/78 and pulse 72. The notes record a conversation among Respondent, the Patient, and her husband that concluded with the decision that the Patient would speak with Dr. Shuster about her vision. Respondent prescribed Indocin, which had been used frequently in the past for an arthritic condition and general body aches. Two weeks later, on December 15, the Patient returned. Her blood pressure was 122/95 and pulse was 82. The records note that she appeared calmer. Respondent spoke with Dr. Shuster about the Patient's anxiety about losing her vision in the damaged eye, and they agreed that she needed an antidepressant. According to the records, Respondent prescribed Tofranil 25 mg. and that she continue to take her Centrax. Tofranil, which is a member of the dibenzazepine group, is an antidepressant that acts primarily by stimulation of the central nervous system. The 1991 Physician's Desk Reference suggests that the physician Prescribe a tranquillizer with Tofranil, if manic episodes occur. The use of Tofranil ended two weeks later when the Patient returned to Respondent's office on December 29 complaining of nausea. Recognizing this as an adverse reaction to Tofranil, Respondent took her off the medication. Her blood pressure was 131/96 and pulse 73 during this visit. In response to a complaint of hoarseness, Respondent ordered a chest X-ray and referred her to an ear, nose, and throat specialist. Chest and pelvic X-rays proved normal, as well as a mammogram taken at the same time. In response to complaints of diarrhea and stomach cramps, Respondent Prescribed Tagamet. He also continued the Prescription for Centrax, but did not provide her with a new Prescription at the time. However, on January 8, 1988, the Patient's Pharmacy filled a new Prescription from Respondent for the Patient for 60 Centrax tablets and refillable three times. The prior Centrax Prescription could have been exhausted by this time, if the Patient took three tablets a day. The new prescription gave her a 80-day supply, if she used it at the maximum rate. The ear, nose, and throat specialist, Dr. Stephen E. Howery, saw the Patient on January 4, 1988. He noted that the Patient complained of persistent hoarseness since July, 1987, and suffered from hayfever. His impression was that she suffered from polypoid degeneration of the vocal cords and recommended antihistamines. If this treatment did not work, he recommended a laryngoscopy and stripping of the vocal cords. The Patient visited Respondent on January 12. Her blood pressure was 123/92 and pulse 69. Apparently, Dr. Howery's initial conservative treatment, which was identical to Respondent's successful treatment of the same complaint two and one-half years earlier, did not help. Outpatient surgery was performed on or about January 14, 1988. The surgery, which required general anaesthesia, was successful. In preparation for the throat surgery, the Patient stated that she was taking Centrax, Inderide, Tagamet, and Timoptic, which were all discontinued prior to surgery. Following the throat surgery, the Patient began to experience difficulty in urination. She contacted Respondent, who suggested that she go to the emergency room of a nearby hospital for catheterization. After a couple such visits, when the Patient again could not void her urine, Respondent advised that she go to the hospital. In the meantime, Respondent contacted the patient's gynecologist, Dr. Chisholm. He examined the Patient on January 20 and found no gross abnormalities except for a two cm. ovarian cyst that was not the cause of the Patient's urinary problems. Respondent also contacted a uroiogist, Dr. Helmley, who eliminated the obstruction by Performing a cystoscopy and urethral dilation on January 22 which also required a general anaesthesia. At this time, Dr. Chisholm and Respondent agreed that the Patient required the services of a psychiatrist Dr. Lillian Saavedra met the Patient while she was still in the hospital. The Patient was released from the hospital on January 24, 1988. At about this time, the Patient decided not to see Respondent anymore. She required hospitalization the beginning of February, 1988, spending two weeks in a psychiatric unit of a local hospital. By this time, she was on a variety of medications, most if not all of which had not been Prescribed by Respondent. Dr. Saavedra's final diagnosis at the conclusion of the hospitalization was that the Patient suffered from somatization disorder, possible family discord, hyperthyroidism, and glaucoma in her left eye. After a few months, the Patient discontinued seeing Dr. Saavedra and taking the antidepressant that she had prescribed for the Patient. The Patient saw another psychiatrist and later a chiropractor, and her complaints gradually diminished. Nothing in the record establishes that Respondent failed to obtain adequate laboratory testing to evaluate the condition of the Patient. From May, 1985, through January, 1988, hyroid tests, in addition to various X-rays and a CT scan. These proved normal. The implication in the allegation of inadequate laboratory testing is that Respondent misdiagnosed the Patient's condition. The record is clear that he did not fail to detect thyroid problems because, during this period, she had. none. Although the low pulse rate was properly a matter of concern, Respondent reacted to it by causing the discontinuation of Timoctin. Later, Respondent's pulse rate evidently acclimated to the beta blockers. Similarly, Respondent did not fail to diagnose the polyps on the vocal cords that were later corrected by surgery. The initial treatment of the ear, nose, and throat specialist, was the same as Respondent's successful treatment of the condition two and one-half years earlier. In view of Dr. Howery's conservative initial approach to the problem, it is impossible to infer that Respondent failed to make a missed diagnosis or untimely referred the Patient to a specialist. Respondent did not fail to diagnose any dependency upon Centrax. There are two breaks in the Centrax prescriptions. Following the commencement of Centrax on May 23, 1985, the Patient took the drug continuously far four to seven months, before a break occurred prior to the December 26, 1985, prescription. The Patient discontinued taking Centrax in January or February, 1986, so, except for what tablets may have been unused from the December 26 prescription, the Patient took no Centrax for almost two years before Respondent gave new a new prescription on November 11, 1987. Within two months, however, the Patient discontinued the use of Centrax again. Although the first period during which the Centrax was Prescribed-- four to eight months--may have exceeded the period for which the drug may normally be expected to :e effective, there is no evidence that any dependency resulted during this time. The second period of use was not Particularly long-- only two months--and followed nearly two years during which the Patient had not used the drug. If taken at the maximum frequency, the Centrax would have lasted only four and one-half months from November 11 through the early January, 1988, renewal. Nothing in the record establishes that Respondent's referral of the Patient to a psychiatrist was untimely. The medical records reflect that the Patient was making some progress in late 1987. She reported sleeping fairly well during her November 23, 1987, office visit, and she appeared calmer during her December 15, 1987, visit. It is impossible to attribute her emotional and mental decline in February, 1988, to anything that Respondent did or did not do. Nothing in the record establishes that Respondent should have observed symptoms requiring psychiatric care sooner than he did. Also, the referral to the urologist was timely following the throat surgery. Nothing in the record establishes that it was unreasonable to try two catheterization before having unused from the December 26 prescription, the Patient: took no Centrax for almost two years before Respondent gave new a new prescription on November 11, 1987. Within two months, however, the Patient discontinued the use of Centrax again. Although the first period during which the Centrax was prescribed-- four to eight months--may have exceeded the period for which the drug may normally be expected to be effective, there is no evidence that any dependency resulted during this time. The second period of use was not particularly long-- only two months--and followed nearly two years during which the Patient had not used the drug. If taken at the maximum frequency, the Centrax would have lasted only four and one-half months from November 11 through the early January, 1988, refill. Nothing in the record establishes that Respondent's referral of the Patient to a psychiatrist was untimely. The medical records reflect that the Patient was making some progress in late 1987. She reported sleeping fairly well during her November 23, 1987, office visit, and she appeared calmer during her December 15, 1987, visit. It is impossible to attribute her emotional and mental decline in February, 1988, to anything that Respondent did or did not do. Nothing in the record establishes that Respondent should have observed symptoms requiring psychiatric care sooner than he did. Also, the referral to the urologist was timely following the throat surgery. Nothing in the record establishes that it was unreasonable to try two catheterization before having the Patient examined by a urologist. Respondent's medical records amply justify the various treatments that the Patient received during the years that she was seen by Respondent. The medical records are, at times, somewhat obscure as to the number of tablets prescribed at a given point. However, the records disclose A. uniform use of certain terms which, as corroborated by the pharmacy's records, provide the information from which the number of tablets can be calculated. The major exception is the Inderide, but Respondent intended to maintain this drug indefinitely. Nothing in the record establishes that Respondent failed to practice medicine with the level of care, skill, and treatment that a reasonably prudent physician recognizes as acceptable under similar conditions and circumstances. In this finding, the relevant level of care, skill, and treatment imposed upon Respondent is not relaxed because he, a general surgeon, elected to practice general medicine or because he chose to provide medical services to a community in need of such services.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint. ENTERED this 9th day of July, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 July, 1991. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-5: adopted or adopted in substance. 7: adopted except that the evidence did not demonstrate that Centrax could not be useful for treatment of anxiety over the periods for which Respondent prescribed it to the Patient. 8: rejected as subordinate and irrelevant. Petitioner failed to prove that Centrax was inappropriately prescribed foi the Patient. 9-10: adopted. 11: adopted except that May 23, 1985, is the date that Respondent first prescribed Centrax for the Patient. 12-13: adopted in substance. 14-15: rejected as unsupported by the appropriate weight of the evidence. 16: rejected as recitation of testimony. 17: rejected as unsupported by the appropriate weight of the evidence. 18 and 20: rejected as subordinate. 21: rejected as unsupported by the appropriate weight of the evidence. 22: rejected as subordinate. 23 and 29-35: rejected as recitation of testimony. Dr. Garoni's testimony has not been given much weight for the reasons set forth on the record at the hearing. 24: rejected as recitation of testimony. 25: adopted in substance. 26-28: rejected as irrelevant. Petitioner failed to prove that the Centrax was responsible for any of these problems. To the contrary, the record suggests other factors responsible for these symptoms. 36 (except for (c)): rejected as recitation of evidence. 36(c): rejected as unsupported by the appropriate weight of the evidence. The indication as to amount of pills and renewability, however, is oblique and barely satisfies the requirements of recordkeeping. 37-38: rejected as recitation of evidence. 39: rejected as legal argument. There were obvious shortcomings in Dr. Garoni's testimony concerning the subject medications, and he candidly admitted his lack of familiarity with the subject drugs. Doubtlessly, Dr. Garoni is a "reasonably prudent similar physician," as described by Section 458.331(1)(t). However, it is obvious that Dr. Garoni's prudence has led him to exercise an abundance of caution when prescribing medications such as Centrax and Inderide. Dr. Garoni candidly testified, as to Tofranil and Centrax: "I'll be honest with you, I don't feel confident to tell you whether you ought to give those two drugs together. I mean, I think that's out of my field. I would never prescribe those two drugs at all . . .." Deposition of Dr. Garoni, P. 32. His testimony is elsewhere qualified with "I think" and "I feel," when referring to Respondent's treatment of the Patient. The strategic problem for Petitioner was that Dr. Garoni was not qualified to opine on the appropriateness of the medications. This fact does not of course mean that Respondent improperly prescribed medications for the Patient because Respondent, like Dr. Garoni, holds himself out as specializing in general surgery. Nothing prevented Petitioner from offering testimony from a physician qualified to opine as to the proper use of these drugs. If Petitioner felt constrained to limit itself to a physician practicing Respondent's self-declared specialty, then another general surgeon would have to be found. However, Respondent's actual practice is, by his own admission, not confined to general surgery. In this case, an internist or general practitioner would have qualified as a similar physician. In addition, nothing would have prevented Petit:Loner from supplementing the testimony of the similar physician, whether he or she was Dr. Garoni, an internist, or a general practitioner. In this manner, Petitioner could have offered the testimony of an expert specially trained or experienced in the use of these medications. 40: rejected as recitation of testimony. 41: rejected as subordinate. Treatment Accorded Proposed Findings of Respondent The proposed findings of Respondent have been adopted in substance except as otherwise indicated: 1-2: rejected as subordinate except as to Respondent. 7 (last sentence): rejected as legal argument. 10 and 12-13: rejected as recitation of evidence. 11: rejected as subordinate. 18 (after third sentence): rejected as subordinate. 20: rejected as unsupported by the appropriate weight of the evidence. 22-23: rejected as subordinate. 23 (second): rejected as irrelevant. 25: rejected as recitation of testimony and legal argument. 26 (last sentence): rejected as irrelevant. 28: rejected as recitation of evidence. 29: rejected as subordinate. 30: rejected as subordinate and irrelevant. 33: rejected as repetitious and recitation of evidence. 34 and 38: rejected as subordinate and irrelevant. 35: rejected as legal argument. 36: rejected as recitation of evidence. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Richard A. Grumberg Senior Attorney Department of Professional Regulation Northwood Centre 1940 N. Monroe St. Tallahassee, FL 32399-0792 Harvey M. Alper Massey, Alper & Walden, P.A. 112 W. Citrus St. Altamonte Springs, FL 32714-2577
The Issue Whether, as alleged in the administrative complaints, disciplinary action should be taken against Respondent's license to practice as a physician, based on separate violations of the following statutes for each patient as indicated below: DOAH Case No. 97-0337 Patient Statute T. D. 458.331(1)(g), 458.331(1)(t) F. R.-1 458.331(1)(g), 458.331(1)(m), 458.331(1)(t) S. M. 458.331(1)(g), 458.331(1)(t) F. R.-2 458.331(1)(g), 458.331(1)(m), 458.331(1)(t) T. M. 458.331(1)(g), 458.331(1)(t), 766.411 L. F. 458.329, 458.331(1)(j), 458.331(1)(m), 458.331(1)(t), 458.331)1)(x) C. G. 458.331(1)(k), 458.331(12)(m), 458.331(1)(n), 458.331(1)(t) DOAH Case No. 97-0338 J. S. 458.331(1)(m), 458.331(1)(q), 458.331(1)(t).
Findings Of Fact Based on the evidence presented in this proceeding, the following facts were found: Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number ME 0056554 by the State of Florida. The Respondent was licensed in Florida in 1989. Prior to his licensure in Florida, he underwent residency training in OB/GYN at the State University of New York in New York City and St. Agnes Hospital in Baltimore, Maryland. Following his residency the Respondent performed a two-year fellowship in perinatology at the State University of New York in Syracuse. Patient J. S. On December 10, 1992, Patient J. S., a 19 year-old female, presented to Respondent for evaluation and medical care concerning her pregnancy. The patient was transferred from Orlando Birthing Center where she had her entire prenatal care. Upon presentation, Patient J. S. was at 42 weeks gestation. After examination in Respondent's office, Respondent subsequently made arrangement for admittance to Princeton Hospital for induction and delivery the following day. On December 11, 1992, at approximately 6:45 a.m., Patient J. S. was admitted to Princeton Hospital. At approximately 11:30 a.m., Pitocin, a legend drug, was administered by the staff as directed by Respondent. Pitocin, a derivative of the pituitary gland, is a commonly used substance to stimulate the uterus to contract. However, it is not risk free and must be used carefully. If the muscle is over-stimulated causing too much contraction, there can be interference with the blood supply to the placenta or it can cause the uterus to rupture. The use of Pitocin must be carefully monitored. Variability and reactivity of the fetal tracing was within normal limits at that time. At approximately 5:30 p.m., on December 11, 1992, Patient J. S.'s membranes were artificially ruptured and an internal fetal scalp monitor was placed. At approximately 7:30 p.m., the nursing assessment revealed that J. S. was 2 centimeters (cm) dilated, 70 percent effaced, and at minus 2 station. At approximately 10:10 p.m., Patient J. S. experienced a deceleration in the heart rate. At approximately 10:35 p.m., the patient experienced two more decelerations indicative of fetal distress. This resulted in the nurse on duty turning off the Pitocin. A vaginal examination revealed that Patient J. S. was still 2cm dilated, 70 percent effaced with the baby at a minus 2 station though the Pitocin had been running continuously for approximately 11 hours. During this period the Respondent was not on the premises. At approximately 11:50 p.m., Pitocin was re-initiated, and variable and late decelerations were again noted. Respondent was notified at approximately 1:10 a.m. and no new orders were given. Patient J. S.'s Pitocin was subsequently increased. Following the increase of Pitocin, Patient J. S. suffered an episode of variable decelerations which lasted approximately three minutes. The fetal heart rate was noted to be 64 beats per minute. Respondent was notified and Patient J. S.'s Pitocin was subsequently discontinued. However, Patient J. S. continued to suffer episodes of severe variable and late decelerations. In the early morning hours of December 12, 1992, Patient J. S.'s uterine contractions increased followed by late decelerations. Pursuant to Respondent's orders, Pitocin was restarted at 9:30 a.m. At approximately 10:00 a.m., Respondent arrived at the hospital. By approximately 1:45 p.m., poor variability was noted. At approximately 2:00 p.m., Patient J. S.'s fetal heart rate became unstable and decelerations became more profound. Evaluation revealed that the fetal heart tracing showed a distress pattern with repeated episodes of bradycardia and moderate to severe variable deceleration while the station of the baby never proceeded beyond minus 1 station. Respondent subsequently increased Pitocin. Despite poor fetal tracing, Respondent indicated that he intended a vaginal delivery. Patient J. S. was given an epidural with a bolus at approximately 8:00 p.m. At approximately 9:13 p.m., following four hours of full dilation, Patient J. S. was transferred to Labor and Delivery for a trial forceps set-up. Respondent applied Tucker/McLean forceps to the fetal head. At this time, fetal heart rate tracing was noted to be 80-90 beats per minute. Respondent subsequently determined that the infant could not be delivered and a Cesarean section was performed approximately 40 minutes later. The delay in delivery was the result of the need to wait for the surgical assistant to arrive, who was on-call, and for the anesthesia to take effect before he could operate. The infant was delivered with visible forcep marks including a skin lesion. The infant appeared to be emaciated and also displayed behavior indicative of a seizure shortly after delivery. A subsequent CT Scan revealed a subdural hemorrhage. The infant was later diagnosed as suffering from right facial nerve paralysis. Respondent failed to practice medicine within the acceptable level of care in that Respondent failed to appropriately monitor Patient J. S.'s progress during labor. Respondent failed to pursue the appropriate plan of treatment for Patient J. S. Patient J. S.'s poor response to Respondent's initial attempts to initiate labor indicated that Respondent should have pursued an alternative plan of treatment. Respondent failed to practice medicine within the acceptable level of care by failing to proceed to the hospital to evaluate Patient J. S.'s condition following the episode of bradycardia on the evening of on or about December 11, 1992. Respondent failed to practice medicine within the acceptable level of care by allowing Patient J. S. to continue in labor prior to the delivery of the infant given that the infant continued to suffer from unstable and variable heart rates. Respondent failed to practice medicine within the acceptable level of care by delaying delivery approximately four hours following full dilation. Respondent failed to practice medicine within the acceptable level of care by failing to appropriately apply forceps in attempts to deliver the infant. Respondent failed to maintain medical records which justified his course of treatment for Patient J. S. Respondent failed to appropriately utilize Pitocin. The continued usage of Pitocin following initial attempts to induce labor was inappropriate given Patient J. S.'s failure to progress during labor. Patient T. D. On or about August 24, 1992, Patient T. D., an 18 year- old female, presented to Respondent complaining of vaginal and abdominal pain during the previous two days. Respondent conducted a pelvic examination. Respondent did not observe vaginal bleeding. Respondent ordered the performance of an obstetrics ultrasound which revealed a viable 15-week intrauterine pregnancy. Respondent did not perform further tests to determine if Patient T. D. was experiencing premature labor. Patient T. D. was sent home and directed to go to the hospital if bleeding began. Later that evening, Patient T. D. presented to Princeton Hospital at which time she aborted. On August 26, 1992, Patient T. D. returned to Respondent for evaluation. Respondent performed an ultrasound and prescribed Methergine for bleeding. Patient T. D. presented with indications of premature labor on August 24, 1992. Respondent did not appropriately evaluate Patient T. D. for premature labor. Respondent failed to appropriately diagnose Patient T. D.'s condition or failed to pursue the appropriate plan of treatment. Patient F. R.-1 On September 20, 1992, Patient F. R.-1, a 38 year-old female, was hospitalized for abdominal pain and vaginal bleeding following a positive pregnancy test conducted at the hospital emergency room. During the hospitalization, Patient F. R.-1's, levels of human chorionic gonadotropin (HCG) declined, and she underwent a pelvic ultrasound. The test indicated that the patient had a non-viable pregnancy. Following her release from the hospital, on or about September 23, 1992, Patient F. R.-1, presented to Respondent with abdominal pain and bleeding and a history of a tubal ligation and non-viable pregnancy. Respondent performed a pelvic examination and asked her to return if the symptoms persisted. On or about October 8, 1992, Patient F. R.-1 presented to Respondent with the same symptoms, at which time Respondent initiated Patient F. R.-1 on Provera and Estrace. On or about October 15, 1992, Patient F. R.-1 presented to Respondent with irregular bleeding and abdominal discomfort. Patient F. R.-1 was advised to return in two weeks for evaluation. On or about October 29, 1992, Patient F. R.-1 returned to Respondent with continued complaints of abdominal pain. Respondent performed a pelvic ultrasound on Patient F. R.-1 which revealed normal follicular cysts in the ovaries. While treating Patient F. R.-1, Respondent failed to evaluate her HCG levels. Declining levels of HCG indicate that Patient F. R.-1 suffered an early miscarriage. Respondent failed to appropriately assess Patient F. R.-1's condition, failed to diagnose a probable early miscarriage, and failed to accurately observe the contents of the uterine cavity. Respondent failed to attain a conclusive diagnosis of Patient F. R.-1's condition. Respondent inappropriately treated Patient F. R.-1 with Provera and Estrace (hormones). The prescribing of hormones following an abortion is below the standard of care. Respondent failed to maintain medical records which justified his plan of treatment for Patient F. R.-1. Patient S. M. On or about July 13, 1992, Patient S. M., a 31 year-old female, presented to Respondent with complaints of pain and cramps. Patient S. M. presented with a history of two Cesarean sections, a tubal ligation, and an appendectomy. Patient S. M. presented subsequent to the performance of a pelvic sonogram, which suggested a small fibroid in the uterus. The sonogram was performed by another physician. On or about July 13, 1992, Respondent performed a second sonogram, and diagnosed multi-cystic ovaries and heavy menses. Respondent noted that Patient S. M.'s pelvic examination was normal. In the course of the office visit, Respondent scheduled M. for an exploratory laparotomy. On or about August 5, 1992, Patient S. M. presented to Princeton Hospital for the performance of an exploratory laparotomy, a lysis of adhesions, and a bilateral wedge resection of the ovaries with repair of the ovaries by chromic suture. Respondent performed the procedure. Following the operation, pathology report revealed normal ovaries. On or about July 13, 1992, Respondent did not misdiagnose Patient S. M.'s condition or fail to appropriately assess her complaints. Respondent failed to appropriately perform the surgical procedure on or about August 5, 1992. The repair of the ovaries by chromic suture is inappropriate for 1992 surgical techniques and will ensure the formation of adhesions post-operatively. Patient F. R.-2 On or about July 3, 1992, Patient F. R.-2, a 37 year- old female, presented to Respondent for the performance of a gynecologic examination. Respondent performed a normal pelvic examination. Respondent's examination revealed heavy menses, and he diagnosed yeast vaginitis and pelvic pain. Patient F. R.-2 presented with a history of several operations on her kidneys and gallbladder, an appendectomy, and a tubal ligation. Approximately six weeks later, Patient F. R.-2 returned to Respondent for the performance of a pelvic sonogram which revealed a single cyst on one ovary, and several cysts on the other ovary. Respondent subsequently scheduled Patient F. R.-2 for the performance of a wedge resection of the ovaries. On or about September 23, 1992, Patient F. R.-2 presented to Princeton Hospital for the performance of a bilateral wedge resection of the ovaries with repair of the ovaries by chromic suture, and lysis of minimal pelvic adhesions. The post-operative pathology report revealed sections of normal ovaries. Respondent did not appropriately diagnose, assess, and treat Patient F. R.-2's condition. Respondent failed to appropriately perform the surgical procedure on or about September 23, 1992. The repair of ovaries by chromic suture is inappropriate for 1992 surgical techniques, and will ensure the formation of adhesions post-operatively. Respondent failed to maintain medical records which justify his course of treatment for Patient F. R.-2. Patient T. M. On or about July 20, 1992, Patient T. M. presented Respondent with a complaint of irregular bleeding and pain. Respondent performed a pelvic examination of the patient and noted that Patient T. M. was taking birth control pills. On or about July 28, 1992, Patient T. M. returned to Respondent with continued abdominal and pelvic pain. In addition to his examination, Respondent performed an office ultrasound. Respondent made a diagnosis of polycystic ovarian disease. He also treated Patient T. M. for a urinary tract infection. On or about July 29, 1992, Respondent performed a second sonogram and noted no change in the pelvic cysts. Following the performance of the second sonogram, Respondent scheduled Patient T. M. for a wedge resection of the ovaries. On or about July 31, 1992, Respondent admitted Patient M. to Princeton Hospital for the performance of a wedge resection of the ovaries. The post-operative pathology report indicated that the removed portion of the ovaries were normal. Respondent failed to appropriately diagnose, assess, and treat patient T. M.'s condition. Respondent failed to attain a conclusive diagnosis of Patient T. M.'s condition. On or about July 31, 1992, Respondent inappropriately performed a surgical procedure on Patient T. M., which was not indicated, given that her ovaries were normal and some other reason was the likely cause of her bleeding. Respondent failed to appropriately perform the surgical procedure on or about July 31, 1992. The surgical techniques utilized by Respondent were inappropriate in that Respondent should have used a non-reactive suture. Respondent failed to maintain medical records which justify his course of treatment for Patient T. M. Patient L. F. On or about Friday, May 7, 1993, Patient L. F. was hired to work for Respondent as an insurance clerk. On or about Monday, May 10, 1993, Patient L. F. Reported for work at Respondent's office. Patient L. F. was agitated and nervous and complained of stomach pain. Patient L. F. left the office for the day around noon. On or about May 11, 1993, Patient L. F.'s second day of employment, L. F. reported to work, but went home at the beginning of the day complaining of stomach problems. She later reported back to work at approximately 12:15 p.m. Patient L. F.'s testimony that after she returned to work, Respondent inquired into how Patient L. F. was feeling; that Respondent invited Patient L. F. into an examination room for the purpose of performing an examination; that during the examination, Respondent touched Patient L. F.'s vaginal area with an ungloved finger; that Respondent placed his finger or fingers on L. F.'s genitalia area and started rubbing that area; that Respondent placed his palm on L. F.'s breast, then rubbed the side of her face with his knuckles, and told her how pretty she was; and that there was no other female present during the examination is not credible. On May 11, 1993, Respondent was in his office seeing patients until approximately 12:30 p.m. Shortly thereafter, he left the office and traveled to Princeton Hospital to do rounds. Respondent arrived in a Patient Lightfritz's room at approximately 1:00 p.m., and then examined at least two other patients. He then returned to the office, arriving shortly after 2:00 p.m.; Respondent began seeing patients for the remainder of the afternoon. Patient L. F. remained on the job for the remainder of the afternoon and left for the day at approximately 5:30 p.m. She did not return to work the next day, or thereafter. Respondent did not perform a physical exam of L. F. and she was, therefore, not a patient of Respondent. Patient C. G. On or about May 12, 1993, Patient C. G., a 29 year-old female, presented to Respondent with complaints of a backache and vaginal discharge. Respondent conducted an examination of Patient C. G., including a pelvic sonogram. Following the examination, Respondent administered an injection of Depo-Provera to the patient. Respondent contemporaneously prepared medical records on Patient C. G. justifying the course of treatment.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that in regard to DOAH Case No. 97-0337, Respondent be found guilty on Counts One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, and, it is RECOMMENDED that Respondent be found not guilty on Counts Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, Twenty, and Twenty-one; and, it is RECOMMENDED that, in regard to DOAH Case No. 97-0338, Respondent be found guilty on Counts One, Two, and Three; and, it is further RECOMMENDED that the Respondent shall have his license to practice as a physician suspended for a period of one year; pay a civil penalty of $10,000, plus the costs of this prosecution; and the suspension be followed by a two-year period of probation, under such reasonable terms and conditions as the Board may require, including continuing medical education and evaluation. DONE AND RECOMMENDED this 1st day of April, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1998. COPIES FURNISHED: Gabriel Mazzeo, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Richard A. Simon, Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 201 East Pine Street 15th Floor Orlando, Florida 32801 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Dr. Marm Harris, Executive Director Department of Health Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services (HRS), is designated as the state agency responsible for the administration of federal and state Medicaid funds, and is authorized by statute to provide payments for medical services. Respondent, Marvin H. Ledbetter, is a doctor of osteopathy who is enrolled as a general practitioner provider in the Medicaid Program. His professional office is in Ormond Beach, Florida where he is engaged in family practice. Under the Program, Ledbetter is assigned a provider number (48220-0) which is used to bill Medicaid for services rendered to Medicaid recipients. During calendar year 1981, which is the only time period in question, Ledbetter received $42,809 in Medicaid reimbursements from HRS, of which $28,062 related to fees for Medicaid hospital patients. The latter category of fees is at issue. In order to qualify for federal matching Medicaid funds HRS must meet certain federally-imposed requirements, including the establishment of a program integrity section designed to insure that all Medicaid services are medically necessary. If they are not, HRS is obliged to seek recoupment of funds paid to the provider. This proceeding involves an attempt by HRS to recoup certain funds paid to Ledbetter for hospital services. After providing medical services to various hospital patients, Ledbetter completed and sent in the necessary forms to obtain payment. As noted earlier, these payments totaled $28,062 during 1981. Upon receipt of the forms, HRS input the information from the forms into a computer data base, along with similar information from other Medicaid providers throughout the State. This information included, among other things, the number of admissions, number of discharges, amount paid for hospital services and length of stay. The retention of such data is necessary so that possible overpayments may be detected by HRS through the statistical analysis of claims submitted by a group of providers of a given type. Because Ledbetter's total discharges exceeded the average of other family physicians throughout the State, the computer generated a report which flagged Ledbetter for further review and examination. An HRS analyst conducted such a review of Ledbetter's records, and found his average hospital length of stay for patients to be acceptable when compared to the average physician in the State. This report was forwarded to the HRS peer review coordinator who randomly selected thirty of Ledbetter's patients from the computer, and obtained their patient charts (numbering sixty-eight). Such a statistical calculation is authorized by Rule 10C-7.6(4)(b), Florida Administrative Code. A medical consultant employed by HRS then reviewed twelve of the sixty-eight charts and recommended the records be sent to a Peer Review Committee (PRC) for its review and recommendation. This committee is authorized by Rule 7C-7.61(4)(c), Florida Administrative Code serves under contract with HRS, and is composed of eight members of the Florida Osteopathic Medical Association. It is their responsibility to review the files of physicians whose Medicaid payments are questioned by HRS's program integrity section. When Ledbetter's records were forwarded to the PRC by HRS, the transmittal letter stated that a "study" of his records had been made, and that said study revealed "overutilization of inpatient hospital services" and "excessive lengths of stay." After a PRC review was conducted in early 1984, the records were returned to HRS with a notation that "mild overutilization" had occurred. According to informal guidelines used by the PRC, this meant that Ledbetter's overutilization fell within the range of 0 percent to 20 percent. HRS accepted these findings but for some reason initially determined that a 40 percent overutilization had occurred, and that Ledbetter was overpaid in 1981 by 40 percent for his hospital services. Finding this amount to be inconsistent with the mild overutilization guidelines, HRS arbitrarily added back two days to each patient's hospital stay, which decreased overutilization to 33.8 percent, or $9,505.06 in overpayments. By proposed agency action issued on May 18, 1984, it billed Ledbetter this amount, thereby precipitating the instant controversy. All of the patients in question were from the lower income category, and most were black. Their home conditions were generally less than desirable, and the ability of the parents to supply good nursing care to ill or sick children was in doubt. At the same time, in 1981 Ledbetter was working an average of 56 hours per week in the emergency room of a local hospital and devoted only minimal time to his family practice. Because of this Ledbetter's number of hospital admissions greatly exceeded the norm when compared to general practitioners who engaged in an office practice. Consequently, he received most of these patients through the emergency room rather than his office and was dealing with patients whose socioeconomic conditions were an important consideration. These factors must be taken into account in analyzing Ledbetter's patient records. HRS does not contend that Ledbetter failed to perform the services for which he was paid--rather, it questions only whether some of the admissions were medically necessary and whether some of the lengths of stay were too long. In this regard, conflicting expert testimony was offered by the parties concerning the amount of overutilization, if any. Expert testimony by two local doctors of osteopathy support a finding that only mild overutilization of admissions and lengths of stay occurred. This is corroborated by HRS's expert (Dr. Smith) and by the testimony of its "live" expert, Dr. Conn, who conceded that lengths of stay were only "a little bit too long." The more persuasive testimony also establishes that while mild overutilization falls within the range of 0 percent to 20 percent, 10 percent is an appropriate median in this proceeding. Using this yardstick, Ledbetter should reimburse HRS for 10 percent for his billings, or $2,806.20.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent repay petitioner $2,086.20 in excess Medicaid payments received for calendar year 1981 claims. DONE and ORDERED this 16th day of May, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of May, 1985.
