Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. On February 23, 1983, the horse "Rock Steady" owned by Petitioner, Russell Michael, Jr., and trained by Ronnie Warren, ran in the seventh race at Gulf Stream Park. The horse finished first. Subsequent to the running of the aforementioned race, and in accordance with standard procedure, "Rock Steady" was led over to the state detention barn for the taking of a urine specimen. The specimen was placed in a sealed container and transported to the Division's laboratory with other specimens. Upon reaching the Division's laboratory, the specimen was logged in, assigned a number and subjected to various preliminary tests. Based on those preliminary tests, further tests were made and on March 3, 1983, the Division's laboratory reported that the specimen taken from "Rock Steady" contained at least 182 micrograms of phenylbutazone and/or its derivatives per milliliter of urine. (Respondent's composite Exhibit 1) "Rock Steady" was administered phenylbutazone in oral paste form at some time prior to the seventh race on February 23, 1983. (Post-hearing stipulation of the parties entered pursuant to a joint telecon on July 25, 1984) On April 28, 1983, Dr. Wayne C. Duer, 3/ Chief of the Division's Bureau of Laboratory Services, sent a split sample from the urine specimen taken from "Rock Steady" to Dr. Thomas Tobin in accordance with instructions of Respondent's counsel. (Petitioner's Exhibit 8) On or about that same date, Dr. Duer sent another split sample from "Rock Steady" to Dr. George A. Maylin, Director of the New York State Racing and Wagering Board Drug Testing and Research Program. Dr. Tobin reported an average amount in the sample of 125.1 micrograms of phenylbutazone per milliliter of urine. Dr. Maylin reported a sum total of 154.4 micrograms of phenylbutazone per milliliter of urine. (Petitioner's Exhibit 10) The methods employed by the Division laboratory, and which were utilized by Chief Duer, liquid chromatography, thin laver chromatography and ultraviolet spectrophotometry, are methods recognized as the "state of the art" for quantitating phenylbutazone in urine. Based on analysis of the specimen here in question on March 1 by Dr. Duer, an average amount of 182 micrograms of phenylbutazone per milliliter of urine was indicated. In reporting his results, Dr. Duer reported his findings by factoring in the various results and averaging to report the concentration of phenylbutazone in "Rock Steady's" urine specimen. All of the Division's analyses were conducted under Dr. Duer's direction and supervision. Dr. Duer has noted a variance of approximately 3 - 4 percent when analyzing any given sample. Samples can vary based on the exposure to air for long periods of time; samples left unsealed for long periods of time; samples analyzed over various time periods; the amount of alkaline in a urine sample and the physiology of an animal - all of which may fluctuate the phenylbutazone levels in the blood plasma of a given animal. However, as noted, a specimen analyzed soon after a race is apt to be more reliable than subsequent analyses. THE PETITIONER'S DEFENSE Petitioner takes the position that it should not be required to return the purse money because the sample analyzed is different from the sample taken from the horse owned by Petitioner, "Rock Steady"; that the testing procedures utilized by the Respondent are unreliable and the analyses show widely varying concentrations of the drug phenylbutazone and based on the varying calculations, there is no competent and substantial evidence upon which a finding or a requirement can be made herein requiring Petitioner to return the purse money for using the drug phenylbutazone. Respecting Petitioner's claim that the sample analyzed was not the sample taken from the Petitioner's horse "Rock Steady" or that somehow the samples were mishandled or otherwise confused, the evidence herein reveals that Dr. Duer analyzed the urine sample taken from the horse "Rock Steady" and it remained under his custody and control until he personally apportioned the sample such that it could be analyzed by independent laboratories at Cornell University in New York and at the University of Kentucky in Lexington, Kentucky. The analytical methods employed by the Respondent, under the direction of Dr. Duer, appear reliable and are generally recognized as the state of the art in analytical procedures for measuring the drug phenylbutazone. Based on the methods utilized and the fact that the urine sample was analyzed within a short period after "Rock Steady" ran in the seventh race on February 23, 1983, I find that the testing procedures and the results of the analysis were reliable. Finally, as to Petitioner's claim that the methods employed by Respondent lend to varying results, all of the experts herein related that the calculations may vary from one laboratory to the next in a range of approximately 3 - 4 percent. Given that degree of variance as the range within which a given sample may vary, that degree of variance does not alter the conclusion herein by Respondent that the Petitioner's horse competed with an excessive amount of a permitted drug in its system in violation of Rule 7E- 1.0612, Florida Administrative Code. It is so found.
The Issue The issues to be determined in this proceeding are whether Respondent violated section 458.331(1)(t)1., Florida Statutes (2012), and if so, what penalties should be imposed.
Findings Of Fact Based upon the Stipulation of the parties and the evaluation of the evidence presented at hearing, the following facts are found: At all times material to the allegations in the Administrative Complaint, Respondent was a licensed medical doctor within the State of Florida and held license number ME 109501. Respondent’s address of record is 216 Elm Drive, Chattahoochee, Florida 32324. The Department presented no evidence of prior discipline against his license. In 2013, Respondent was under contract to furnish health care services to inmates at Suwannee Correctional Institution (SCI). This case involves the care and treatment for hypertension that Respondent provided to R.G. while R.G. was an inmate at SCI in June and July 2013. David Libert, M.D., who testified on behalf of the Department, is a Board-certified family practice physician who has been licensed in Florida since 1983. Dr. Libert sees patients in a clinical setting approximately three days a week but has never practiced in a correctional institution setting. Dr. Libert testified that a “perfect” blood pressure reading is 120/80. A reading that is under 140/90 is considered acceptable, but blood pressure that is consistently above 140/90 indicates hypertension. Malignant hypertension, or hypertensive emergency, is an acute elevation of blood pressure that is associated with end organ damage. End organ damage is the affect that the high blood pressure has on certain parts of the body, such as the brain, heart, and kidneys. The traditional benchmark reading that signals malignant hypertension is 180/120, which Dr. Libert testified is an arbitrary number but represents the “old” definition of the condition. According to Dr. Libert, newer studies define malignant hypertension as an acute rise on the height in blood pressure associated with end organ damage, even if the blood pressure reading does not go as high as the 180/120 measure recognized in older literature. The record is not clear when the change in definition took place, and if that change reflects the standard of practice in June 2013. Dr. Libert did not describe what constitutes an acute rise in blood pressure, either in terms of the length of time by which it is measured, or how much of a change in blood pressure constitutes an acute rise. The systolic reading is the top number in a blood pressure reading and represents the maximum pressure that is exerted on the arteries with the contraction of the heart. The diastolic reading represents the pressure after the heart has relaxed from its beat and is the lower number in a blood pressure reading. While 180/140 is the traditional reading identified as a signal for malignant hypertension in “older” literature, there was no testimony as to whether systolic and diastolic readings are equally important, or whether one is more important than the other when determining that a patient’s blood pressure is too high. In other words, no testimony was presented to answer the question of whether, for example a blood pressure reading of 185/96 or 170/133 would be considered a symptom of malignant hypertension. While there is no question both readings would indicate hypertension, the evidence did not indicate whether it is enough to have one of the two pressure readings above the 180/120 level to signal the possibility of malignant hypertension. The Department of Corrections has protocols for treatment of different systems of the body. The form for the Hypertension Protocol, which is included several times within R.G.’s medical records from Suwannee, includes several categories of information to be addressed by treating personnel, such as Subjective (which includes the patient’s chief complaint and current symptoms); Objective (which requires notation of vital signs, such as temperature, pulse, respiration, blood pressure, oxygen saturation and weight); Findings Requiring Immediate Clinician Notification; Plan; and Education. Under the heading “Findings Requiring Immediate Clinician Notification,” there are several factors that a health care provider (typically in this setting, a nurse) would check before the need to contact a physician arises. Those factors are blood pressure greater than 160/100 (see PLAN first); oxygen saturation less than 93 percent; heart rate less than 60 or greater than 110; wheezing (chest congestion); blurred vision; pedal edema extending to above the knees; severe headache OR headache not relieved after two hours of OTC pain med; or other. The PLAN portion of the protocol provides the following treatment alternatives: For mild to moderate headache give: Acetaminophen 325mg two tablets every 4-6 hours as needed for pain, OR Ibuprofen 200mg two tablets every 6 hours as needed for pain Put patient in a quiet environment; recheck blood pressure in 15 minutes x2. Notify clinician if BP remains greater than 160/100. 1st blood pressure recheck: / , at . 2nd blood pressure recheck: / , at . Bed rest lay-in x24 hours Blood pressure recheck in 24 hours Return to clinic for BP check Pass Other Respondent was responsible for patient R.G.’s medical care at SCI and had access to all of R.G.’s medical records from SCI’s medical clinic. R.G. was a 61-year-old male inmate who presented to the clinic at SCI for treatment. On or about June 7, 2013, R.G. presented to SCI’s clinic with a blood pressure reading of 164/96, and complaining of a headache. R.G. was given 10 mg Lisinopril to reduce his blood pressure, a pass for three days of bedrest, and a follow-up appointment for June 10, 2013. The medical record entitled Hypertension Protocol does not contain Respondent’s name and he did not see R.G. that day. However, from the Physician’s Order Sheet, it appears that he was consulted and approved the administration of Lisinopril, and prescribed 10 mg of Lisinopril daily for three months. On June 9, 2013, R.G. presented at the clinic complaining about his blood pressure. The medical record notes that he had a headache. His blood pressure reading was 151/90, and the section entitled Findings Requiring Immediate Clinician Notification did not have any symptoms checked. The medical record does not indicate that Respondent saw R.G. on June 9, 2013, and he was not consulted about his care. The PLAN section of the Hypertension Protocol says “No treatment required.” On June 10, 2013, it appears that R.G. may have been seen at the clinic more than once. The initial entry in his medical records for that date, which does not have a time recorded, indicates that his blood pressure was 158/98. The second entry, recorded at approximately 2:00 p.m., indicates that R.G. presented to the clinic with a blood pressure reading of 173/98. Respondent ordered a one-time dose of .2 mg Clonidine, and 10 mg of Lisinopril and directed that his blood pressure be taken again in an hour. Respondent tried to find the underlying cause for the rise in R.G.’s blood pressure by sending him for blood work, and a thyroid and cardiovascular evaluation by the cardiac clinic. Respondent also directed that his blood pressure be checked twice weekly for an indecipherable number of weeks. When R.G.’s blood pressure was rechecked at approximately 4:00 p.m., it was 158/89. Respondent again ordered administration of 10 mg Lisinopril, increased his prescription for Lisinopril to 20 mg for three months, and ordered 600 mg of Ibuprofen to treat R.G.’s headache. R.G. next presented to the clinic on June 11, 2013, at 10:00 a.m. At that time, his blood pressure was noted as 152/94. There is no indication in the medical record that Respondent saw R.G. during that visit, and there is no documentation in the Physician’s Order Sheet to indicate that Respondent ordered any prescriptions for him. On June 18, 2013, R.G. went to the clinic complaining of a headache and vomiting. He listed his pain level at 6 out of 10. At his initial presentation at noon, his blood pressure was 197/105 in the left arm, and 186/86 in the right. Under the PLAN heading, the medical record indicates R.G. was given 200mg Ibuprofen for his headache, and 0.2 mg of Conidine for blood pressure. His blood pressure was rechecked at 1:00 p.m. and had lowered to 139/84. The medical record for June 18, 2013, does not indicate that Dr. Alaka saw R.G. or that he was consulted about him. The Department of Corrections Physician Order Sheet for R.G. has an entry dated June 18, 2013, but part of the record is indecipherable, and there is no doctor Signature/stamp completed for the entry. In addition, the portion of the entry that is readable refers to a Dr. Gonzalez, as opposed to Dr. Alaka. On June 20, 2013, R.G. returned to the clinic, this time complaining that he was stumbling and had a headache. A protocol sheet for Neurological Changes/Deficits was used in the medical records as opposed to the Hypertension Protocol. At this visit, his blood pressure was 120/62. There is no indication on the medical record for this date that Dr. Alaka saw R.G. R.G. returned to the clinic on June 25, 2013, at 5:39 p.m. The medical record indicates that he had a slight headache, a small amount of pitting/extremity swelling, fatigue, and had vomited that morning. His blood pressure was 165/94 in the left arm and 175/91 in the right. Pedal edema was noted to stop at the mid to upper shins, and the records indicate that R.G. had slept only three hours or less in the previous 24-hour period. R.G. was given acetaminophen for his headache, and his blood pressure was rechecked at 5:59 p.m. and 6:15 p.m.. His blood pressure at the first recheck was 165/94, and at the second recheck was 164/93. The Hypertension Protocol indicates that R.G. was administered 10 mg of Lisinopril, was instructed to comply with all prescribed medications, and not to sit with his legs crossed. The Physician’s Order Sheet indicates that per Respondent’s discussion with the nurse who saw R.G.,1 the prescription for 20 mg of Lisinopril was discontinued and replaced with a prescription for the same drug at 10 mg daily for three months. There was speculation throughout the hearing that R.G. did not always take his medications as prescribed, and there are notations in the medical records that R.G. sometimes refused recommended medical treatments, such as a referral for a urologist and a cardiac workup. There was no clear and convincing evidence that R.G. was also failing to take his blood pressure medications as required, although it is certainly a possibility. There is no indication in the medical records that R.G. went to the clinic for treatment after June 25, 2013.2 On July 2, 2013, R.G. was found unresponsive on the floor. He was transferred to ShandsLiveOak Regional Medical Center, and from there, transferred to Jacksonville Memorial on 1 The Administrative Complaint alleges that R.G. was seen by an ARNP during this visit. The signature of the health care provider indicates that he or she was an SRN, not an ARNP. The ARNP who reviewed the records and made what was referred to as an incidental entry (one where the record is reviewed but the patient is not seen) the following day is a different provider. 2 There is an entry for June 28, 2013, entitled Pre-Special Housing Health Assessment. Dr. Alaka testified he did not know what that meant. It appears from the record that the purpose of the assessment was to extend R.G.’s low bunk pass. At that time, his blood pressure was recorded as 158/92. It is not clear who conducted the assessment. July 3, 2013. R.G. died on July 5, 2013. The Medical Examiner’s Report lists R.G.’s cause of death as hypertension. Dr. Libert reviewed the medical records related to R.G.’s treatment. He opined that Respondent did not meet the applicable standard of care in his care and treatment of R.G. because he did not arrange for transportation to the hospital on June 18, 2013. He also opined that Respondent should have transferred R.G. on later dates prior to the transfer that occurred on July 2, 2013. He further opined that Respondent failed to recognize the signs and symptoms of malignant hypertension and failed to diagnose it. Dr. Libert also testified that Respondent failed to order basic blood tests that should have been ordered for a patient with hypertension. However, as noted above, Respondent did order blood work on June 10, 2013. There is no indication in the medical records that Dr. Alaka saw R.G. on June 18, 2013. With respect to the June 25 visit, Dr. Alaka would have received a phone call from staff, but did not see R.G. in person. Dr. Alaka has no independent recollection of seeing R.G., and had to rely solely on his review of the medical records for his account of what happened. The treatment of this patient occurred over eight years prior to the hearing in this case. Dr. Alaka did not believe that treatment in a prison setting is the same as the treatment rendered in a typical outpatient setting, and testified that in an outpatient setting, physician groups are free to set their own protocols. In a correctional setting, physicians were required to follow the protocols established by the Department of Corrections. Dr. Alaka testified that following the protocols was a condition of employment. Dr. Alaka testified that he did not create or maintain the medical records for patients at the facility, but would have access to the records when treating a patient. It is not clear, however, whether he had access to the records when he was not at the facility but received a telephone call regarding the treatment of a patient. Based upon the medical records in evidence, Dr. Alaka saw R.G. on June 10; was consulted about R.G. on June 7 and June 25; and was neither present nor consulted regarding R.G. on June 9, June 11, June 18, and June 20, 2013. The only time that the medical records indicate R.G.’s blood pressure may have been above the standard of 180/120 for malignant hypertension was June 18, 2013, and when rechecked, the pressure went down to 139/84. As noted above, the medical records do not indicate that Dr. Alaka either saw R.G. or was consulted about his care on that day. On June 25, 2013, R.G.’s blood pressure, while still considered high, was well below the standard identified for consideration of malignant hypertension. Dr. Alaka also testified that one must always consider the possibility of malignant hypertension when taking a patient’s blood pressure, but did not believe R.G.’s blood pressure reached that level. He tried to prevent it through the use of medication but did not believe that you needed to transfer a patient because of swelling, vomiting, or headache combined with high blood pressure, because those symptoms can occur with a variety of conditions. In his view, there should be concrete blood pressure readings, with indications of organ disturbance or stress. Organ damage would be substantiated through blood work and treated with medication while waiting for results. If the blood pressure is sustained, then he would call his supervisor and report the blood pressure; that it is not coming down; what medications were given; and request a transfer. He testified he did not request a transfer in this case because the blood pressure came down with treatment. In addition, Dr. Alaka noted that blood pressure readings can vary within the same hour, depending on who took the reading, the size of the cuff used, operator error, etc. Dr. Alaka also testified, credibly, that transfers to facilities outside the prison setting required approval by the regional medical director, and that was a condition for working at SCI. The Department did not provide any evidence to rebut the statement that Respondent did not have the authority to order transfer out of the facility, or that following the protocols reflected in the medical records was not required for employment at the facility. Dr. Alaka’s view of what blood pressure reading would have triggered a diagnosis of malignant hypertension is higher than Dr. Libert’s. Based on the evidence presented, Dr. Libert’s definition appears to be more reasonable. However, based on the totality of the evidence presented, the Department did not present clear and convincing evidence to show that Respondent’s care and treatment of R.G. violated the prevailing standard of care as alleged in the Administrative Complaint.
Conclusions For Petitioner: Hunter M. Pattison, Esquire Michael Jovane Williams, Esquire Department of Health Prosecution Services Unit Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 For Respondent: Edmond Olatunde Alaka, M.D., pro se 216 Elm Drive Chattahoochee, Florida 32324
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against Respondent be dismissed. DONE AND ENTERED this 20th day of December, 2021, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2021. COPIES FURNISHED: Hunter M. Pattison, Esquire Department of Health Prosecution Services Unit Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Edmond Olatunde Alaka, M.D. 216 Elm Drive Chattahoochee, Florida 32324 Paul A. Vazquez, JD, Executive Director Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 Michael Jovane Williams, Esquire Department of Health Prosecution Services Unit Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399
Findings Of Fact At all times relevant hereto, Respondent was licensed as a medical doctor in Florida, having been issued License No. ME 0031092. She has a general family practice and is not board certified or board eligible in any specialty. The charges here involved stem from the treatment of six patients by the Respondent, who was the admitting physician for these patients at Lykes Memorial Hospital (Lykes) in Brooksville, Florida. PATIENT A. S. When first seen in Respondent's office on December 3, 1983, A. S. was a 62 year old female who had been seen at the Lykes emergency room a few days earlier complaining of pain in the right shoulder and indigestion. When seen by Respondent, A. S. complained of stabbing pain in her right side, frequency of urination and constipation. Respondent did a complete physical on A. S. and discussed the patient's symptoms with Dr. Nazir Hamoui, a board certified urologist who concurred in the decision to hospitalize A. S. A urinalysis taken in Respondent's office noted bacteria too numerous to count and the white blood cell count within the normal range. During her examination, A. S. stated she was allergic to codeine, ampicillin and aspirin which Respondent noted on the patient's record. While in the hospital the day before A. S.'s admission to Lykes, Respondent prepared the preadmission order in which she prescribed Tylenol 3 and Keflin for A. S. Upon returning to her office that evening and reviewing A. S.'s chart, Respondent realized Tylenol #3 which contains codeine, to which A. S. stated she was allergic, and Keflin were improper drugs to prescribe to this patient. The following morning, prior to A. S.'s admission, Respondent directed the prescription for Tylenol #3 be changed to Demoral, and the prescription for Keflin was changed to Erythromycin. These changes did not get placed on the patient's chart until after 12:25 when A. S. was offered Tylenol and refused it. A. S. was admitted to the hospital at 11:55 on December 4. Upon admission, the admitting diagnosis for A. S. was: right flank pain, rule out pyelonephritis, rule out diverticulitis. Petitioner's experts witnesses testified the Respondent's records on A. S. would not support a diagnosis of possible diverticulitis and pyelonephritis; however, this testimony respecting pyelonephritis was based largely upon their conclusion that the urine specimen showing high bacteria count was probably contaminated. Respondent's notes did not indicate how the specimen was obtained. Respondent testified that she had established office policies in which the nurses explained to patients how to catch a clean sample, and that these procedures were followed in all cases. While A. S. was hospitalized, Dr. Hamoui was called in as a consultant and he determined that a cystoscopy was necessary, and he performed that procedure. Petitioner's witnesses also opined that the evidence contained in the patient's office records was insufficient to support a diagnosis of possible diverticulitis which was to be ruled out by the barium enema tests. Several reasons for this conclusion were given, yet one of the discharged diagnoses was possible diverticulitis. The other discharge diagnoses were chronic cystitis, urethral stricture and one degree heart block. PATIENT B. L. B. L. was a 71 year old female when first seen by Respondent on October 23, 1984. B. L. complained of pressure in her lower abdomen, pain during urination, bowel problems and constipation. A urinalysis showed 2+ sugar in the urine. A blood sugar test taken this same date was reported by the lab to be 209. Patient records are unclear whether this was from a random sample, fasting or two hour post prandial. B. L. was also seen by Dr. P. G. Desai, a board certified urologist, in Respondent's office on October 23, 1983, and he decided surgical intervention was indicated, and this required hospitalization. Additional blood sugar tests were run on blood drawn from B. L. on October 24 and October 25. Although the office records do not clearly so indicate, Respondent testified that these blood tests were two hour post prandial or fasting. The post prandial readings were 209 and 196, and the fasting blood sugar test resulted in a reading of 141. All of these readings are at or slightly above the upper range for normal or lower range for diabetes. Respondent put B. L. on a 1500 calorie diet and prescribed Orinase. While prescribing Orinase was questionable in view of the blood sugar readings and possible complication if a low blood sugar condition is obtained, B. L. was scheduled for surgery, and Respondent thought the Orinase would lower the blood sugar enough to allow the surgery to proceed without the complications of diabetes. Respondent had diagnosed B. L. as having urinary retention, caruncle, possible urethral stricture and diabetes uncontrolled. B. L. told Respondent that she had trouble staying on a diet. Respondent took B. L. off Minizide which she had been on for some time and prescribed Diazide. Diazide can significantly affect blood sugar by increasing it 5 or 10 percent. This change in medication, therefore, could have affected the blood sugar reading for B. L. PATIENT M. H. Respondent first-saw this patient on July 23, 1983 for an insect bite. Subsequent thereto, on September 17, 1983, at an office visit, M. H. revealed to Respondent an extensive history of transient ischemic attacks (TIA) for which she had earlier been tested and to control which she took aspirin every day. Respondent suggested that M. H. undergo a work-up for TIA, but M. H. declined since she did not want to undergo those procedures again. On October 4,1983, M. H. came to Respondent's office complaining of frequency of urination, sporadic blood in urine, a 5 to 6 pound weight loss, anxiousness and an old history of vision problems, and a few times on and off weakness in the arms. Upon examination of M. H., Respondent found blood in the patient's urine (hematosis). M. H. was admitted to the hospital by Respondent with differential diagnosis of hematuria, etiology to be determined; weight loss, etiology to be determined; hypertension by history; numbness of the left hand; and transient ischemic attacks, rule out CVA. While in the hospital, M. H. was seen by Dr. Nazir Hamoui, a board certified urologist, who determined that a cystourethroscopy and urethral dilation were necessary, and which he performed. Prior to performing this surgery, Dr. Hamoui carefully examined the patient for evidence of active symptoms of TIA and found none. The primary emphasis of the evidence submitted by Petitioner on the treatment rendered by Respondent, was that TIA is a precursor to strokes and that Respondent should have done more to push M. H. to consenting to a TIA work- up. However, these witnesses both admitted on cross-examination that the patient has the final word on whether a certain procedure is done, and that if the patient declines to have a TIA work-up, there is nothing more a physician can do. Fasting blood tests taken on this patient revealed blood sugar slightly higher than the normal range, and Respondent made a discharge diagnosis of borderline diabetes mellitus. PATIENT L. R. L. R. was admitted to Lykes on February 16, 1984 with a differential diagnosis of acute bronchitis and possible bilateral pneumonia. During hospitalization, one blood sugar reading of 97 was obtained, and the discharge diagnosis included "borderline diabetes." One blood sugar reading of 97 will not support a diagnosis of borderline diabetes. Although Respondent contends the diagnosis was based upon the patient's past history, the Respondent's office records would not support this diagnosis, and the hospital records for this history was missing from the file. At the time of the hearing, the hospital records for this patient contained no patient physical or history. Hospital policy requires all records to be complete and include both a history and physical before they can be closed. No one was able to explain the absence of these documents from the hospital records, and it is as likely they were removed from the file after closing as it is that they were never prepared by Respondent and placed in the file. Accordingly, no permissible inference can be drawn that Respondent failed to take a history and physical on L. R. Respondent treated this patient with an aminophylline IV solution without monitoring theophylline level in the patient's blood. Aminophylline is a dangerous drug with a low margin of safety. Too much theophylline in the blood will be toxic to the patient, and too little will not be effective. Here the IV solution was administered for only a short period of time, and no side effects were seen. PATIENT C. K. After treating this patient in her office for a short period, Respondent admitted C. K. to Lykes for further treatment with a diagnosis of abdominal pain, bloody diarrhea, possible acute diverticulitis, rule out ulcerative colitis and rule out infection. While hospitalized, C. K. was seen by Dr. P. K. Paul, a board certified gastroenterologist, who determined a proctosigmoidoscopy was indicated, which he performed. Dr. Paul concurred with testing the patient for diverticulitis. When discharged seven days after admission, the discharge diagnosis of C. K. was internal hemorrhoids and proctitis. It is rare for a thirty-two year old woman to have diverticulitis. Petitioner's expert witness opined that a general practitioner should be able to diagnose internal hemorrhoids and proctitis without calling in an expert; while Respondent's expert witnesses, who were equally, if not better qualified, opined that respondent's actions were proper. PATIENT R. B. R. B. was seen in Respondent's office on March 24, 1984, and was admitted to the hospital the same day with an admitting diagnosis of acute abdomen, abdominal pain, rule out appendicitis, rule out colitis, G. I. bleeding. In the admitting order, Respondent directed R. B. receive nothing by mouth and an IV set at keep vein open. Dr. Soliman, a consultant called in, changed the order to sips of water and finally to full liquids. Normally a patient with suspected appendicitis will be kept hydrated, but not allowed to take liquids orally. Two of the expert witnesses called by Respondent, one a board certified urologist and the other, a board certified gastroenterologist and internist, both testified that the admission of R. B. to the hospital was proper as were the admission orders. GENERAL The principal import of the charges here involved is that Respondent called in consultants when it should not have been necessary, admitted patients to the hospital when not justified and diagnosed patients with diabetes on insufficient evidence. Respondent's own testimony that she called in a consultant every time before admitting a patient to the hospital supports the excessive use of consultants. However, this does not equate with malpractice. At the time the hospital admissions here complained of occurred, a major change in Medicare reimbursements also took place with the advent of Diagnostic Related Groups (DRG) whereby the U.S. Government withdrew the blank check formerly given the hospitals to fill in and inserted fixed payments for specified diagnoses. This resulted in hospitals no longer encouraging doctors to admit patients to the hospital, unless the diagnosis was such that someone would pay for the patient's hospital expenses. Although no direct testimony was presented in this regard, it appears that Respondent was caught in this transition, and the hospital had difficulty getting treatment received by the patients and whether Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. With respect to the patient records maintained by Respondent, Petitioner's expert witnesses' primary complaints were that the records were not complete in that blood and urine samples taken for tests were not definitive in that the blood test often did not indicate whether it was a fasting test, two hour post prandial or random. Similar for the urine samples taken, the records did not specify how the sample was taken so as to insure a clean catch. Respondent testified that all blood sugar tests were fasting or two hour-post prandial and that standard office procedures were set up to be sure uncontaminated urine specimens were obtained. Other objections to these records resulted from the witnesses being unable to read Respondent's handwriting or decipher some of the abbreviations used. When the record was understood, some of these objections were withdrawn. It could be said that all or nearly all patient records could be more complete and the handwriting easier to read. Petitioner's witnesses also contended that the blood sugar readings on several of these patients were not high enough to justify a diagnosis of diabetes or borderline diabetes, yet one of these patients is today still being treated for diabetes. It clearly appears that Respondent is more likely to diagnose an elderly patient with elevated blood sugar levels as diabetic than would many other family practitioners. However, this does not equate to clear and convincing evidence that patient records fail to justify the diagnosis or treatment of these patients by Respondent. Respondent's expert witnesses, who were equally, if not better, qualified than were Petitioner's witnesses, all opined that the patient records were adequate. The fact that Respondent conferred with a specialist before admitting each of her patients to the hospital indicates that Respondent is unsure of her diagnosis or is ultraconservative. Again, the parties' expert witnesses were poles apart in their testimony regarding whether the diagnoses and treatment of six patients was below the minimally acceptable standards. This does not constitute clear and convincing evidence that Respondent failed to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Finally, it is noted that in Exhibit 25 of the Board of Medical Examiners took disciplinary action against Respondent at a time well after the treatment of the patients involved in these charges. Although the basis for that action was not included in Exhibit 25, it would appear that the investigation that led to the stipulation and Exhibit 25, if thorough, should have revealed the charges here involved, and these charges should have been disposed of at that time. Regardless of the fact that these charges were not then considered (in 1985), Exhibit 25 may not now be used in aggravation of the charges involving events occurring before Exhibit 25 was entered should Respondent be found guilty of these charges. From the foregoing, it is concluded that Petitioner has failed to prove, by clear and convincing evidence, that Respondent failed to keep medical records justifying the course of treatment on the six patients, or failed to practice medicine with the level of care, skill and treatment which a reasonably prudent physician recognizes as acceptable under similar conditions and circumstances. It is RECOMMENDED that all charges against Raees Iftekhar Gazi be dismissed. ENTERED this 1st day of November, 1988, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1398 Treatment Accorded Petitioner's Proposed Findings 1. Included in H.O. #1. 2. Included in H.O. Preamble. 3. Included in H.O. #2. 4. Included in H.O. #3. 5,6,7,8,9 Included in H.O. #4. 10,11. Included in H.O. #6. 12. Rejected as speculation. 13. Rejected as speculation. 14. Included in H.O. #4. 15. Included in H.O. #6. 16,17. Accepted. 18. Included in H.O. #6. Accepted. Last sentence rejected as irrelevant. Rejected. Included in H.O. #8. Rejected. Rejected. 25,26,28. Included in H.O. #5. 27. Accepted. 29. Included in H.O. #4. 30,31. Included in H.O. #5. 32,33. Accepted. 34,35. Included in H.O. #5. 36. See H.O. #5. 37. See H.O. #5. 38. Included in H.O. #5. 39. Accepted. 40. Accepted. 41. Rejected. 42. Accepted. 43,44,45,46. Included in H.O. #5. 47. Rejected. 48. Rejected. 49. Rejected. 50. Accepted. 51,52,53. Included in H.O. #9. Accepted, but irrelevant. Accepted. Included in H.O. #12. Included in H.O. #11. 58-60. Accepted. Included in H.O. #12. Included in H.O. #11. Accepted. Included in H.O. #11. Rejected. Rejected. Accepted. 68,69,70,71. Included in H.O. #13. 72. Included in H.O. #12. 73,74,75. Accepted. Rejected. Rejected. 78,79. Accepted. 80,81. Included in H.O. #14. 82. Accepted. 83,85. Included in H.O. #15. 84. Included in H.O. #16. Accepted. Included in H.O. #17. 88,89,90,91,92. Accepted. Included in H.O. #19. Accepted. 95,96,97. Included in H.O. #20. 98,99. Included in H.O. #21. 100,101. Included in H.O. #20. 102,103,104. Included in H.O. #22. Included in H.O. #23. Included in H.O. #24. Included in H.O. #25. Accepted. Included in H.O. #25. 110,111,112. Accepted. 113. Included in H.O. #26. 114,115. Included in H.O. #27. 116,117. Included in H.O. #28. 118-122. Accepted. However, these are ideals which are rarely met by the average physician. 123,124. Included in H.O. #29. Treatment Accorded Respondent's Proposed Findings 1. Included in Preamble. 2,3. Included in H.O. #1. Included in H.O. #21. Included in Preamble. Included in H.O. #3. Included in H.O. #4. Included in HO. #6. Included in H.O. #7. Accepted. Rejected insofar as relating to Petitioner's witness. Included in H.O. #8. Accepted. 14,28,42,58,50,72. Rejected as immaterial. 15,16. Included in H.O. #5. 17-20. Accepted. 21,22. Rejected as conclusion only. 23. Included in H.O. #10. 24,25,26. Accepted. 27. Included in H.O. #10. 29. Rejected. 30,31. Included in H.O. #11. 32,33. Included in H.O. #12. Rejected as conclusion only. Accepted. Included in H.O. #20. Included in H.O. #21. Included in H.O. #20. Accepted insofar as included in H.O. #22. 40,41,43,44,46. Accepted. 45. Rejected as conclusion only. Included in H.O. #23. Included in H.O. #24. Accepted. Included in HO. #24. Accepted as testimony of witness. Accepted. Included in H.O. #26. Accepted. Included in H.O. #28. 56,57. Accepted. Accepted as mere testimony of witness. Rejected as conclusion. Accepted. Included in H.O. #14. 63,64. Accepted. Included in H.O. #15. Included in H.O. #16. Included in H.O. #17. 68,69. Accepted. Included in H.O. #17. Accepted. Rejected as conclusion only. Accepted. 75,76. Accepted. 77-79. While one of Petitioner's expert witnesses did express some confusion regarding the term "standard of care", nevertheless, this witness opined that much of the treatment Respondent provided these six patients was below acceptable standards. In view of the opinions expressed by the witnesses called by Respondent, it is concluded that Petitioner failed to sustain its burden of proof; not that Respondent is an exemplary physician. COPIES FURNISHED: David Milford, Esquire Department of Professional Regulation 130 North Nonroe Street Tallahassee, Florida 32399-0750 Jerry Gottlieb, Esquire 2753 State Road 580 Suite 204 Clearwater, Florida 34621 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The 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.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1988.
Findings Of Fact At all times relevant hereto, respondent, Mark C. Alsaker, was a registered nurse having been issued license number 1174892 by petitioner, Department of Professional Regulation, Board of Nursing (Board or DPR). He has been licensed since September 8, 1980. Respondent presently resides at 2972 Southwest 17th Street, Fort Lauderdale, Florida. On November 8, 1984 the Board entered an Order of Reinstatement which reinstated respondent's license and placed it on probation for three years, or to and including November 7, 1987. 1/ Among the terms and conditions contained therein was the prohibition against respondent consuming, injecting or otherwise self-medicating with any legend drug or controlled substance unless prescribed by a duly licensed practitioner. To enforce this condition of probation, the Board required that periodically respondent submit himself to a random urine test. On May 20, 1987 respondent visited DPR's Fort Lauderdale office to give a urine specimen. This was given in the presence of a DPR investigator. The specimen was capped in a container, sealed and placed in a bag. Respondent then initialed the bag and signed the chain of custody form. The bag was thereafter placed in a locked box for pickup by the testing laboratory, SmithKline BioScience Laboratories, Ltd. (SmithKline). SmithKline is an organization that tests urine samples for the presence or absence of various substances. The laboratory performed a qualitative drug profile and an Emit 10 profile on Alsaker's specimen. The former test determines the presence of certain substances in the urine but does not measure the quantity. The latter test is much the same as qualitative testing but is done by automation and is more precise. The testing results reflected a presumptive positive for cannabinoids (marijuana or opiates), a controlled substance. This was confirmed by a gas chromatography mass specimen (GGMS) test, a procedure employing an instrument to confirm the presence or absence of a substance. The GGMS test is considered to be the state of the art in terms of reliability. On September 22, 1987, and under the same conditions as were present on May 20, respondent gave another urine specimen in the presence of a DPR investigator. Using the same testing procedures, SmithKline confirmed the presence of cannabinoids (marijuana or opiates) in respondent's urine. Respondent was advised of both test results. However, he did not ask for a retest although he stated he was not aware of his right to do so. At hearing, respondent contended the tests were not 100 percent accurate and that some error or mix-up must have occurred when his samples were given to the laboratory. He also stated it would be foolish for him to use drugs just before giving a urine sample knowing that the results could violate the terms of probation. However, the contentions as to the unreliability of the testing procedures and the probability of a mix-up occurring were not supported by any independent proof and are contrary to the more persuasive evidence. Respondent is presently employed at a Broward County rehabilitation hospital where he uses his license as a registered nurse. There is no evidence of any complaint by his employer or that he has not adequately performed his job. Other than the two cited instances, there were no other positive test results during the three year probation period. There was no evidence that, by virtue of his using drugs on these two occasions, Alsaker was unable to practice nursing with reasonable skill and safety. Finally, the record is silent as to whether his use of drugs equated to unprofessional conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 464.018(1)(j), Florida Statutes (1987), and that all other charges be dismissed. It is further recommended that respondent's license be placed on two years' probation, that he regularly attend Alcoholics Anonymous or Narcotics Anonymous meetings during that two year period, and that he submit to random urine tests under such terms and conditions as the Board deems necessary. DONE AND ORDERED this 13th day of July, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1988.
