The Issue The issue is whether Respondent's license as a medical doctor should be disciplined for the reasons given in the Administrative Complaints filed on October 17, 1997, and February 2, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times material hereto, Respondent, Duke H. Scott, was a licensed medical doctor having been issued license number ME 0013791 by the Board of Medicine (Board). Until 1998, Respondent practiced as a family physician at 1205 Beach Boulevard, Jacksonville, Florida. Except for the charges raised in this proceeding, there is no evidence that Respondent has ever been involved in a prior disciplinary action. Based on complaints filed by three former female patients, J. P., B. N., and S. C., Petitioner, Department of Health (Department), prosecuting this matter on behalf of the Board, issued an Administrative Complaint on October 17, 1997, alleging that while treating those patients between the years 1992 and 1994, Respondent improperly exercised influence in the patient-physician relationship for the purpose of engaging those patients in a sexual activity, and he engaged in sexual misconduct in the practice of medicine. Those three complaints are found in Case No. 98-0985. On February 2, 1998, the Department issued a second Administrative Complaint alleging that during the years 1992 through 1995 Respondent engaged in similar activity with two other female patients, C. A. and A. G. Those two complaints are found in Case No. 98-0785. Respondent has denied all allegations of misconduct and requested a hearing for the purpose of contesting the charges. Because the parties presented sharply conflicting versions of events, the undersigned has accepted the most credible testimony and resolved those conflicts in the following manner. Respondent's Practice Respondent has worked as a family practitioner in Jacksonville, Florida, since the 1960's and has treated thousands of patients over the years. When the events herein occurred, he was employed as a physician by Health South, Inc. (HSI), a large medical organization, until HSI was bought out by another entity. In 1992 through 1994, when the alleged misconduct occurred, Respondent's typical day would begin around 5:30 a.m. or 6:00 a.m. when he made "morning rounds" at two local hospitals visiting patients. He then met with his office personnel at 7:30 a.m., and he began seeing patients shortly thereafter. His work day did not end until the last patient was seen, generally between 6:00 p.m. and 8:00 p.m., depending on the case load. In an average day, Respondent saw no fewer than twenty-five, and as many as sixty, patients. The regular staff, which numbered five or six, reported to work each morning by 7:30 a.m. Besides the regular staff, Respondent also hired temporary or part-time workers, often former or current patients, to staff the office after 4:00 p.m. so that some of his regular staff could be relieved. Respondent encouraged these part-timers to complete their education, he paid for their books and tuition while they worked in his office, and he arranged their work schedules around their classes. Because of his full work day, it was not unusual for Respondent to meet with potential part-timers at the end of the work day in his office to discuss possible employment and what their duties would entail. The staff was divided into "front" and "back" staff, which meant they either worked in the front reception area answering the telephone, making appointments, receiving payments, and processing insurance claims, or they worked in the back assisting the doctor when he was seeing patients. As a rule, part-timers worked with the front staff and not with patients. During the early 1990's, Respondent had a fairly large contingent of patients who were on a weight loss program. After an initial comprehensive examination, these patients would return on a periodic basis at 7:30 a.m. for weight and blood pressure checks and a quick visit with Respondent to check on their progress. They remained fully clothed during follow-up visits. Unless they had a specific problem, the patients rarely saw the doctor for longer than a minute or two, and an assistant was always present to keep the patients moving. Beginning around 1985 or so, Respondent had a policy of always having a female assistant in the examination room whenever he conducted a pelvic or breast examination on a female patient. Whenever patients were required to disrobe, they were given a paper gown to wear. It was established that a female assistant would remain in the room until the examination was completed. During a pelvic examination, Respondent always wore a rubber glove on the hand that was being used for the examination. Finally, Respondent kept detailed patient records, and he would never do a breast examination without documenting this in the patient's chart. Unlike most modern era doctors, Respondent occasionally made house calls to family members of his patients when unusual circumstances arose. He followed up on concerns personally, and he treated whole families. In terms of his practicing style, Respondent would sometimes hug his patients, male and female, or even give the females a peck on the forehead before they left his office. This conduct was grounded on his care and concern for the patient, and not for sexual gratification. His style of personally caring for patients has become so rare in today's society that some patients might misinterpret this behavior. The Charges Each of the five patients who filed charges with the Department was either represented in a civil action, or signed an affidavit prepared, by the same Jacksonville attorney. Their claims will be discussed separately below. Patient C. A. In September 1997, C. A. read an article in a local newspaper regarding a civil lawsuit filed against Respondent and certain other defendants by J. P., S. C., and B. N. Motivated by the fact that she could "help out getting [Respondent's] license taken away," she contacted the attorney who was representing the plaintiffs and agreed to sign an affidavit prepared by him. The attorney then mailed it to the Department. She offered no plausible explanation as to why she had waited five years after the alleged misconduct occurred before making a complaint. Respondent's initial contact with C. A. occurred on November 16, 1992, or five years earlier, when she was eighteen years old, after she fell out of a jeep, broke her ankle, and suffered multiple bruises and contusions. Using her parents' health insurance policy, she visited Respondent's office on seven occasions for treatment of her ankle between November 16 and December 30, 1992. She had no complaints regarding his conduct while visiting him for treatment on those occasions. At hearing, C. A. contended that on an undisclosed date in late 1992, at Respondent's invitation, she rode with him to his condominium where they ate a take-out dinner and he mixed her one drink, ostensibly for the purpose of discussing a part-time job at his office. Respondent denied that this occurred. She also claimed that they met several times at his office "after dark," when the office was empty, for "training" sessions. While she felt "uncomfortable" and "weird" in those settings, she conceded that Respondent never raised the subject of sex, never asked her to engage in sexual relations, and never tried to inappropriately touch her. C. A.'s recollection of the alleged events was somewhat hazy. For example, she claimed that Respondent showed her around the condominium, but her description of the condominium was inaccurate. She could not recall the specific dates or times that she visited his office, except that it was after 5:30 p.m., when it became dark. She agreed that it was probably between 6:00 and 7:00 p.m., but if this were true, there would still have been patients or staff in the office at that time, as well as the cleaning crew. She also says that on one occasion, she got some basic training on how to take blood pressure; that training, however, was always given by an assistant, rather than Respondent, and in any event, she would have been hired as "front" staff to meet patients rather than assisting the doctor in treating them. C. A. says that she related Respondent's alleged misconduct to her "mom, stepmother, grandmother, and roommate," and to her present husband, whom she met a few months after last seeing Respondent in December 1992. Except for her husband, no one appeared at hearing to corroborate this assertion. As to the husband, his testimony has been discredited as being biased since he was evicted as a tenant from a rental property owned by Respondent. This occurred after he made an unannounced visit to Respondent's home one Sunday afternoon seeking reimbursement for some painting expenses. During that visit, he banged on the door and windows of Respondent's home until Respondent threatened to call the police and have him arrested. Because of his animosity towards Respondent, it is fair to suspect that he may have motivated his wife to bring these charges or color her testimony. For the foregoing reasons, the testimony of C. A. has not been credited. Even assuming arguendo that the events described by C. A. occurred, there is less than clear and convincing evidence that Respondent exercised influence within this relationship for the purpose of engaging C. A. in sexual activity, as alleged in the complaint. Patient A. G. Like C. A., A. G. read a local newspaper story which detailed the fact that three other patients had filed a lawsuit against Respondent and certain other defendants. She also read that one or more of the actions had been settled for money by the other defendants. After contacting the plaintiffs' attorney, she learned that the statute of limitations barred her from filing a claim. She agreed, however, to sign an affidavit executed by the attorney, who then filed it with the Department. A. G. first visited Respondent in September 1992 to seek assistance in controlling her weight. She was referred to Respondent by her mother, who was also a weight loss patient and a "long time" friend. A. G. continued in the weight loss program for around nine months. In her complaint, A. G. contended that Respondent always asked her to remove her bra, without any attendant being present, while he conducted her follow-up weight loss examinations. Although he never touched her breasts, she complained that she was "uncomfortable" without a top, and that he sometimes positioned himself much closer to her than was necessary. Once, she says he brushed his body against her while examining her eyes and ears. Besides these office visits, A. G. also contended that Respondent approached her to discuss the possibility of her appearing in a scuba diving instruction video he wished to produce. A meeting at his office, however, never materialized. A. G.'s testimony contained many inconsistencies. For example, at one point, she contended that she was asked by Respondent to take off her bra on "every" office visit; she later testified that he asked her to do so on some occasions; she finally testified that this occurred only once. Even then, she conceded that Respondent had never touched her breasts during any office visit. A. G. also recalled Respondent wearing an old fashioned doctor's band with a little silver "thing" on the top of his head. His office staff established, however, that he does not use such a device. The testimony regarding weight checks by Respondent's former office staff was unequivocal that weight patients are fully clothed; that evidence has been accepted as being the most credible on this issue. Visits by weight program patients took no more than a minute or two at most, and an assistant was always in and out of the room to ensure that Respondent moved on to the next waiting patient. In 1995, after having not seen him for over two years, A. G. returned to Respondent's office and requested that he give her a medical excuse to cover an unauthorized leave of absence from her job. Although A. G. denied that this occurred, it was established that she had in fact returned to his office in 1995 and was very angry when she left because Respondent refused to give her the work excuse note that she requested. A. G. also testified that she told her confidant and godmother, Margaret Hightower, about Respondent's alleged behavior. Hightower denied, however, that A. G. ever relayed these alleged incidents to her, and testified that A. G. has a reputation for untruthfulness. For the foregoing reasons, the testimony of A. G. has not been credited. Even one of Petitioner's own experts did not find her testimony to be credible. Accordingly, there is insufficient clear and convincing evidence that Respondent improperly exercised influence in his relationship with A. G. for the purpose of engaging in sexual activity, as alleged in the complaint. Patient J. P. J. P.'s allegations are rather lengthy and involve a number of office visits beginning in late April 1993 and ending in early May 1994. However, she did not have specific recall of which allegations arose from a particular office visit. During her testimony, she relied on notes she had made over two years later in contemplation of civil litigation. In some cases, her testimony was in conflict with contemporaneous medical and insurance records, or with the testimony of other witnesses. In addition, her testimony was seriously impeached as a result of other matters found in the record. For these reasons, her testimony has not been accepted. J. P. initially saw Respondent for hormone and thyroid problems, and emotional distress. She was also treated for a knee injury occuring in May 1993. She was a very large woman weighing approximately 272 pounds. The patient had no complaint regarding her first visit. On her second visit on May 18, 1993, however, she claimed that Respondent examined her without an assistant in the room and attempted to undress her by unbuttoning her blouse and unhooking her bra. She also contended that he examined her breasts unlike any other doctor she had ever visited, including doing so while she sat upright on an examination table and rubbing her nipples until they became hard. Although J. P. contended that the purpose of the second visit was for treatment of an injured knee, the record shows that the original purpose of the visit was to review lab tests and to receive a refill for her thyroid medication. There was no indication in the medical records that a breast examination was performed, and the documentary evidence has been accepted on this issue. Even if one was performed, Petitioner's own expert agreed that it was appropriate to examine her breasts while she was sitting up on the examination table and that it was appropriate and necessary to examine and rub her nipples. J. P. also contended that Respondent performed breast examinations on other occasions even though she was being treated for a knee injury. The medical records do not support this assertion. She also contended that on two occasions, she felt an erection when Respondent brushed up against her during an examination. Like many other doctors, however, Respondent routinely carried an otoscope in his pocket, and it is more likely that the patient felt this instrument if in fact Respondent may have accidentally brushed against her. During a pelvic examination conducted on December 15, 1993, J. P. recalled that Respondent insisted that the female assistant, Frances McLaurin, leave the room. McLaurin disputed that this occurred, and her testimony has been accepted on this issue. When asked why she continued to see Respondent despite the foregoing conduct, J. P. stated that she believed that her insurance company would not allow her to change doctors. The record belies this contention in several respects. For the foregoing reasons, it is found that Respondent did not improperly influence his relationship with J. P. for sexual purposes, or engage in sexual misconduct with the patient, as alleged in the complaint. Patient B. N. B. N. first saw Respondent in March 1979 when she was eighteen years of age. She continued to see him on approximately thirty-five occasions prior to May 1992. She expressed no complaints regarding his conduct during those visits. In April 1992, B. N. began working as an assistant in Respondent's office. She was terminated in October 1992. A few months later, she was rehired on a part-time basis in the late afternoon. This employment ended on August 19, 1993, when she found a full-time job elsewhere. When she left Respondent's employ, B. N. had a disagreement with Respondent regarding her insurance benefits. This was confirmed by a representative of HSI, who was in charge of health insurance benefits. B. N. was under the impression that Respondent had maliciously and intentionally cut her work hours so that she would not be eligible for insurance. As it turned out, though, Respondent had no control over the provision of health insurance to a part-time employee. This bias on the part of B. N. casts doubt on the credibility of her testimony. On May 15, 1992, B. N. claimed that she was disrobed above the waist while no one other than she and Respondent were in the room. She further complained that Respondent touched her forehead while breathing in her ear. She also contended that Respondent stared into her eyes while doing a breast examination, and that he kissed her on the forehead after the examination was completed. Assuming arguendo that the foregoing events occurred, they do not rise to the level of constituting sexual activity or misconduct, as charged in the complaint. For example, Petitioner's expert conceded that it was not inappropriate to stare into a patient's eyes while performing a breast examination. Moreover, the fact that the patient may have felt Respondent's breath while he looked into her ears is not per se an inappropriate activity. Finally, when Respondent gave a female patient a peck on the forehead before she left his office, it was established that this was done out of care and concern for the patient, and not for sexual gratification. On August 10, 1993, Respondent performed a pelvic examination on B. N. after she presented complaints of pain in her lower left quadrant which was enhanced during sexual relations. She was diagnosed with inflammation of the cervix and a bacterial infection of the uterus and vagina. B. N. complained, however, that she felt pressure to her clitoris during the pelvic examination, and she was asked inappropriate questions of a sexual nature by the doctor. As to the first contention, Petitioner's own expert established that given the complaints presented by the patient, it was appropriate for a doctor to touch the clitoris during a pelvic examination, particularly if the patient had complained of pain during sex. As to the inappropriate questions, the same expert testified as to the legitimate medical reasons for the inquiries made by Respondent. B. N. further contended that Respondent performed the vaginal examination without a glove. In light of the more credible evidence presented by his medical assistants on this issue, and Respondent's own testimony to the contrary, this assertion has been rejected. In summary, there is insufficient clear and convincing evidence that Respondent exercised influence within his relationship with B. N. for the purpose of engaging in sexual activity, or that he engaged in sexual misconduct with the patient. Patient S. C. S. C. was a twenty-year-old female when she first saw Respondent as a patient in August 1993. She was taken to see Respondent on August 18, 1993, by her mother, who was also a patient. At that time, she complained of shortness of breath and anxiety. During the comprehensive initial examination, S. C. was asked by a member of the staff to remove her blouse, but not her bra, and she was given a paper gown to wear. During the comprehensive examination, Respondent checked the patient's groin areas for nodes, and he felt the femoral pulses. Although S. C. felt uncomfortable when this occurred, she did not think it was inappropriate. According to Petitioner's expert, this was acceptable conduct on the part of Respondent since there were medical reasons for checking a femoral pulse. S. C. also noted that Respondent cupped her breast while listening to her heart with a stethoscope. However, he never rubbed, caressed, or otherwise fondled her breast, and S. C. never indicated this made her feel uncomfortable or was inappropriate. S. C. was unemployed during this period of time and was looking for a job. At the same time, Respondent needed someone to replace a part-timer (B. N.) who was leaving the next day. Accordingly, he asked her to return later that day to discuss possible employment. When S. C. returned, the office floors were being buffed by the clean-up crew, and it was too noisy to discuss a job. Respondent suggested that they go to his nearby condominum, sometimes used as a rental or loaned to friends, where his wife was cleaning and restocking the unit. This was confirmed by his wife, who was waiting for him at the condominium. On the way to the condominium, S. C. suggested they stop to eat dinner. Since Respondent had already eaten with his wife, he suggested they return to his office on the assumption that the cleaning of the floors was completed. When they returned, one member of the clean-up crew was still present. While in the office, S. C. mentioned that she was having trouble breathing through her nose. Respondent gave her a medication for allergic rhinitis. S. C. recalled that he also performed a quick nasal inspection, and while doing so, Respondent's groin area came into contact with her hands and that he had an erection. She later amended her testimony to state that his groin area came into contact with her knee. At no time, however, did Respondent ever say a word about engaging in sex. Assuming that the above scenario occurred, an accidental brushing up against the patient does not constitute sexual misconduct. Even if S. C. may have felt something brush up against her knee, it is more likely that she felt his otoscope, which he routinely carried in his pocket. S. C. accepted the offer of employment, but she left for Miami shortly thereafter, where her father lived, and she never returned to work for Respondent. In light of the foregoing, it is found that there is less than clear and convincing evidence to indicate that Respondent exercised influence within the patient-physician relationship for the purpose of engaging S. C. in sexual activity, or that he engaged in sexual misconduct with her, as alleged in the complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the two complaints, with prejudice. DONE AND ENTERED this 4th day of May, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire The Cambridge Center 355 North Monroe Street Tallahassee, Florida 32301 Kelly B. Mathis, Esquire Michael A. Wasylik, Esquire DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1999. Suite 1700, SunTrust Building 200 West Forsyth Street Jacksonville, Florida 32202-4359 Joseph P. Milton, Esquire 1660 Prudential Drive, Suite 200 Jacksonville, Florida 32207-8185 Robert M. Ervin, Jr., Esquire Melissa F. Allaman, Esquire Post Office Drawer 1170 Tallahassee, Florida 32302-1170 Tanya Williams, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0750 J. Harding Peterson, III, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
The Issue The matters presented for consideration in this action are related to an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Dr. Lee, accusing him of having violated various provisions of Chapter 458, Florida Statutes, pertaining to his practice of medicine. The complaint accuses the Respondent of violating Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or the failure to practice medicine with the level of care, skill and treatment which is recognized by reasonably prudent similar physician as being acceptable under similar conditions and circumstances, related to the treatment of several patients. Respondent is also accused of having failed to keep written medical records justifying the course of treatment for those patients in violation of Section 458.331(1)(n) , Florida Statutes.
Findings Of Fact William J. Lee, M.D., is a physician licensed to practice medicine in the State of Florida through a license issued by the State of Florida, Department of Professional Regulation, Board of Medical Examiners, License No. MEO12345. He has held that license at all times relevant to this case and in that time sequence has practiced general medicine and general surgery in Jacksonville Beach, Florida, in his office and at Jacksonville Beach's Hospital in that same community. Dr. Lee is 51 years old and is a graduate of Emory University in 1958, receiving his M.D. from Emory in 1964. He did an internship at the University of Florida in Gainesville, Florida, followed by a residency in general surgery at the University of Florida from 1965 through 1968 and completed his residency at Duval Medical Center in Jacksonville, Florida, in 1969. The Administrative Complaint, which is the subject of this hearing was filed on February 22, 1983. Proper service of the Administrative Complaint was effected upon the Respondent and Dr. Lee made a timely request for formal hearing pursuant to Section 120.57(1), Florida Statutes. THELMA A. PARKER From August 9 through 13, 1974, Thelma Parker was treated medically at Memorial Hospital of Jacksonville, Jacksonville, Florida, for acute diverticulitis. This treatment was provided by Dr. C. Cooksey. In particular, Dr. Cooksey's medical regime was NOP, IV fluids, and large doses of Fibramycin. A barium enema was done on the patient on August 10, 1974, and revealed diverticulosis of the sigmoid colon and one large acutely inflamed diverticulum of the mid-sigmoid level. This diverticulum was unusually long and Dr. Cooksey was of the impression that the diverticulum produced some edema of the bowel wall with low grade obstruction. Finally, Dr. Cooksey felt that at some point the diverticulum should be resected because of its size. In late August 1978, Ms. Parker, who had become a patient of the Respondent's, began to experience cramping, and diarrhea pain for which she took lomotil to slow down the bowel activity. This relieved her symptoms temporarily. Nevertheless, the symptoms persisted and on September 2, 1978, Ms. Parker went to the emergency room at Jacksonville Beach's Hospital, displaying the same type of pain and showing a mild distention. This pain was a generalized to and fro type of pain of cramping nature across the area of the abdomen. It was not localized. Dr. Lee admitted the patient to that hospital on that date. At that time, Dr. Lee was aware of the prior 1974 bout which the patient had with diverticulitis. Lee obtained an x-ray obstruction series and based upon this information felt that possible explanation was adynamic ileus versus early obstruction. He did not feel that the patient was suffering from diverticulitis in that there was no indication of lower left quadrant abdominal pain, bowel dysfunction such as constipation or obstipation and no indication of temperature elevation, indicators of diverticulitis. The symptoms she did display were not inconsistent with diverticulitis. At admission, the Respondent did note the past history of diverticulitis and the emergency room admission and hospital records indicated chronic lower quadrant abdominal pain and change in bowel habits and diarrhea, which are consistent with diverticulitis. Based upon examination of the patient, x-rays and associated materials, Respondent performed an exploratory laparotomy on September 4, 1978, for the purpose of relieving a small bowel obstruction. In the surgery, he found grossly dilated loops of the small bowel with obvious obstruction of the terminal ileum approximately 15 cm's proximal to the ibocacal valve. He found that area to be "firmly adherent to a mass of scar tissue in the sigmoid colon area of the pelvis with chronic low grade inflammatory reaction present in the region." The portion of the ileum that was involved in this was wound severely upon itself with the massive scar tissue in the area. Given the condition, he determined to resect that portion of the small bowel and effected a repair by anastomosis. No evidence was revealed in the course of the operation of any blockage of the large bowel, based upon his observations and manipulations. Gross examination was also made of the sigmoid colon and this revealed no dilation. No contrast studies were done to examine the lumen of the sigmoid colon, such as barium enema or colonscopy. Those studies would have ruled out diverticulitis in the area of the sigmoid colon. The post operative diagnosis by Dr. Lee was small bowel obstruction, secondary to diverticular disease and upon the discharge date of September 14, 1978, the diagnosis was 1) small bowel obstruction and 2) diverticular disease. The patient was seen in Dr. Lee's office on September 18, 1978 and had a fever and abdominal symptoms. She was told to see the doctor again on the next day and lacking improvement on that date was admitted to the hospital on September 19, 1978. At the time of admission on September 19, 1978, initial impression by Dr. Lee was that the patient was suffering intra-abdominal abcesses, secondary to anastomostic break or leakage in the area of the resection of the small bowel. The patient demonstrated a tenderness in the lower abdomen and had some nausea and vomiting. On rectal examination, the patient demonstrated a fluctuant area in the rectum, at the pelvic basin formed by the peritoneum. This area was determined to be an abscess and on September 26, 1978, Dr. Lee performed a procedure by going through the anus into this area of abscess and making an incision in the wall of the rectum to allow drainage of the abscess through the rectum. There was some improvement but the patient continued to have temperature elevation and abdominal pain and on October 2, 1978, further laparotocy was done and an anastonimotic break was discovered. Reanastomosis was achieved following a second resection in the area of the initial small bowel obstruction. Gross examination during the course of this surgery did not reveal any evident blockage of the large intestine or active diverticulitis. Again, no specific diagnostic work was done to determine the condition of the sigmoid colon related to diverticulitis. During the surgery, in addition to the revision of the ileostomy, abdominal abscesses were also evacuated. The patient was discharged on October 21, 1978. After her release in October 1978, the patient was seen on a number of occasions by the Respondent and indicated occasional episodes of cramping, diarrheal type stool but no localized pain in the left, lower quadrant, constipation or obstipation. The patient developed a ventral hernia in the area of the incision related to the abdominal surgery performed by the Respondent and on June 21, 1979, was admitted to the hospital to attend that condition. Exploratory laparotomy was dome on June 22, 1979 and the Respondent did further resectioning and reanastomosis in the area of the small bowel repair together with repair to the ventral incisional hernia. The large intestine in the area of the previous diverticular disease was examined and no indication, on gross examination, was given as to obstruction of the large bowel or any showing of acute inflammation in the area of the sigmoid colon suggesting diverticulitis. As was the case before, no specific examination of the sigmoid colon by a process of barium enema or otherwise was made at the time of this hospitalization. The patient was seen in the Respondent's office on July 3, 1979, and it was noted that her wound from the most recent operation was healing and that her appetite was good and bowel movements normal. A further visit of July 6, 1979, revealed a pink, serous drainage from the portion of the most recent incision and the abdomen was tender. Eventually, the patient had to be readmitted on July 23, 1979. Upon admission, it was believed that the patient was suffering intra-abdominal abscesses. She demonstrated temperature elevation and abdominal pain. The serous drainage from the incision had subsided. On this admission, particularly July 27, 1979, Dr. Lee did obtain a barium enema for purposes of examining the sigmoid colon and it showed a narrowed portion within the sigmoid colon with a communication to an abscess in the pelvis and from there a fistula to the small bowel at the site of the anastomosis. The abscess described was an abscess that had been addressed by Dr. Lee on September 26, 1978. This narrowing in the sigmoid colon was a partial obstruction, leaving an approximate functional capability of 10 percent. No dilation was observed in the bowel proximal to the area of partial obstruction and there was no distention. The narrowing was caused by the diverticular disease process. No evidence was found of an active condition of diverticulitis in the sigmoid colon. On July 30, 1979, a further surgical course was pursued by Dr. Lee and a segment of the small bowel in the area of the previous attempts at anastomosis was removed and a reanastomosis was done with a cleaning up of the previously described fistula tract and associated repairs. No attention was given to the narrowing of the sigmoid colon. On August 6, 1979, Dr. Lee opened and drained large abscesses in the abdominal wall and this was followed on August 9, 1979, with his notation of a small bowel fistula. On August 10, 1979, the patient requested consultation with another surgeon, Dr. James Corwin and was transferred to his care on August 12, 1979. Corwin advised the patient to have a loop colostomy to try and address continuing problems as described by prohibiting the sigmoid colon from contributing to those difficulties. This procedure was carried out by Dr. Corwin on August 17, 1979. Resection of the sigmoid colon was done by Dr. Corwin on September 17, 1979. (Pathology related to the sigmoid colon showed diverticulosis, indication of diverticular disease. It did not show active diverticulitis.) The patient accepted Dr. Corwin's suggestion that the colostomy and resection of the sigmoid colon were necessary, without hesitation. Respondent's suggestion by testimony or record that he had discussed with Ms. Parker the need to address her diverticular condition and possible resection of the sigmoid colon and her rejection of such diagnosis and treatment is not accepted. These discussions allegedly occurred between her release from the hospital in October 1978, and her hospitalization in June 1979. When examined in light of the facts found, specifically her willingness to submit to all other operations and procedures by Dr. Lee and to accept Corwin's treatment of the colon when suggested, Respondent is not to be believed on this subject. Ms. Parker failed to recover from the series of problems as discussed and died on October 28, 1979. The diverticular disease in the colon contributed to her demise and Dr. Lee failed to diagnose and treat that condition. Notwithstanding the fact that Ms. Parker did not take care of herself in terms of her physical condition, related to her drinking habits, Respondent was not relieved from the necessity to diagnosis and address the problem with the sigmoid colon. Dr. E. R. Woodward testified on behalf of the Petitioner, after being accepted as an expert in medicine with particular emphasis on general surgery. Dr. Woodward is a professor of surgery and former chairman of the Department of Surgery at the University of Florida, College of Medicine, and is a member of various boards, colleges and associations related to the practice of surgery and has written approximately 250 publications and authored two books in the field of general surgery. His testimony was based upon the review of hospital records related to Parker's various hospitalizations under the care of Dr. Lee that have been addressed. Dr. Woodward is of the opinion that the patient suffered diverticulitis in the sigmoid colon at times relevant to the inquiry and finds fault with Dr. Lee's failure to diagnose and treat this condition which Dr. Woodward felt was the underlying cause of the patient's problems pertaining to obstruction in the small bowel and associated anastomotic failures. Even without such diagnoistic procedures as barium enema or otherwise, Dr. Woodward feels that Dr. Lee recognized the diverticulitis of the colon in describing the chronic inflammatory reaction in the area of the sigmoid colon in his September 4, 1978, post operative report. Dr. Woodward revealed that in the September 19, 1978, admission that one of the x-rays showed air fluid levels in the right colon which is indirect evidence of a possible problem of an obstruction in the sigmoid colon. Moreover, given the fact that the intestines heal extremely well, according to Dr. Woodward, the problem with the anastomosis was possibly due to the fact that the lining of the intestine beyond the anastomosis was not open sufficiently and that there was some degree of obstruction as was revealed in the area of the sigmoid colon, which had been caused by chronic diverticulitis. By the time of the June 21, 1979, hospitalization, Dr. Woodward felt that the patient's condition was such that her recovery was not promising. Even in the face of information found after the July 27, 1979, barium enema, Dr. Lee did not address the difficulty with the narrowing in the colon by some process of diverting colostomy or other surgery of the colon. In Dr. Woodward's mind, this was necessary at the time of the September 4, 1978, surgery and continued to be a need at the time of the July 30, 1979, surgery. Risk of mortality increased from 2 percent to as high as 10 percent at the July 30, 1979, operation. Subsequent to that operation, the patient was so ill and the infection so severe that the mortality risk related to surgery was prohibitive, per Woodward. In summary, Woodward felt that the Respondent's failure to diagnose and treat the diverticular condition in the sigmoid colon led to her eventual demise and was such quality of treatment as to constitute gross or repeated malpractice and the failure to practice medicine with a level of care, skill and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions or circumstances. Dr. Corwin, gave his expert opinion, as a general surgeon, after being accepted in that field. This is the same Dr. Corwin who treated Thelma Parker. Dr. Corwin feels that given a past history of diverticulitis, which the Respondent knew about and the condition which he found upon the original surgery performed in the abdomen, Respondent should have searched for the cause of that condition which most likely was the patient's diverticulitis. This opinion refers to the need for an examination by barium enema or some other form of contrast study to determine the condition of the sigmoid colon. The narrowing or obstruction in the area of the distal colon, as described, was felt by Dr. Corwin to be almost total in that the colon was reduced to an approximate 10 percent function. Corwin felt that the Respondent had made a major mistake in his treatment of the patient in not attempting to ascertain the cause of the abscesses and obstruction and to deal with the problem in the colon which he considered to be the underlying cause of her difficulties. According to Corwin, the quality of that mistake was so severe as to constitute gross mistreatment of the patient. He feels there was malpractice in that the problem in the colon was at least partially responsible for the anastomotic breaks. At minimum, Dr. Corwin felt that a diverting colostomy was necessary to address the problem with the colon and probably a resection of the sigmoid colon, which procedures were done by Corwin subsequent to assuming the case. Dr. Wiley Douglas Fowler, Jr., who is a board certified, general surgeon, practicing in the community where Respondent practices, gave testimony. He too felt that the Respondent had failed to deal with the condition in the sigmoid colon which he considered to be diverticulitis. There was a need to do a diverting colostomy and to do further definitive treatment as necessary to address the diverticular condition, per Fowler. He felt that there was a breakdown in surgical judgment to the point that the doctor was unable to perform the responsibilities of care in the case. Dr. Samuel Stephenson, who is a board certified general surgeon practicing in Jacksonville, Florida, testified. He did not find the quality of Dr. Lee's care to be-substandard related to the patient Parker. He placed emphasis on the fact that in his opinion gross signs such as dilation in the colon or large bowel were not observable and no active condition of diverticulitis was ever discovered during Parker's treatment course from the time of the Respondent's involvement to her demise. He did indicate that the barium enema results of July 27, 1983, might make one wonder if the narrowing in the sigmoid colon had caused some of the other recurring problems associated with anastomotic breaks in the small intestine. He indicated that by July 30, 1979, there might be a need for a colon resection. Stephenson was impressed with the fact that the patient died even after attempts to address the problems with the colon, i.e., the temporary colostomy and resection of the colon done by Dr. Corwin, leading him to wonder if the cause of continuing failure in the area of repair at the small bowel was due to some circumstance other than problems in the sigmoid colon. He believed that in the initial admission of September 1978, that there was a possibility of a problem with diverticulitis as well as the small bowel obstruction but no gross signs indicated an active condition of diverticulitis in the area of the colon, such as dilation. The mass that was discovered at the point of the initial laparotomy in September 1978, might have been from the colon or might not have been in the mind of Dr. Stephenson. The thrust of Dr. Stephenson's testimony seems to be that absent a clear indication that diverticulitis in the colon or the narrowing in the colon was the proximate cause of the anastomotic breaks and attendant processes of infection, there was no duty on Dr. Lee's part to rule out the possible involvement of the sigmoid colon as an explanation for the problems with the healing process in this patient. Upon reflection, the impressions gained by Drs. Woodward, Corwin and Fowler, witnesses for the Petitioner, are more compelling than those of Dr. Stephenson, on the subject of culpability by the Respondent related to the patient's care. Evidence reported establishes that the Respondent should have examined the colon by barium enema or some similar process at the point of the initial surgery and certainly before her final admission in July 1979, and when finally so examined the colon was not treated. This failure is excerbated by the fact that the Respondent knew that the patient had a history of diverticulitis. The diverticular condition in the colon, to include the partial obstruction by narrowing, based upon the opinions of the third party experts, is found to have been a contributor to the continuing problems of anastomotic leakages, abscesses and other conditions which would not allow a successful treatment course for the patient. Even if diverticulitis in the colon or the diverticular condition in that organ did not cause failure in her treatment results, per the physicians, whose opinion is accepted, the circumstance in the colon should have been examined and ruled out at a minimum. The idea expressed by Dr. Stephenson, that in the absence of being able to clearly establish that the colon's condition caused the patient's demise, the Respondent may not be held accountable, is unacceptable. Having determined that the diagnosis should have been made, Respondent should have performed the diverting colostomy to be followed by a resection of the colon if necessary, again in keeping with the opinions of Petitioner's experts. Finally, the opinion related to Respondent's malpractice and failure to perform at an acceptable standard for same or similar physicians, as attributed to Dr. Woodward and supported in concept by Dr. Corwin, is accepted. Respondent is accused of having failed to keep adequate medical records pertaining to the patient Parker. Although there was some demonstrated ambiguity in his record keeping, that ambiguity does not rise to the level of finding facts showing a violation related to record keeping on this patient. JOHN WILLIAM PHILLIPS On July 2, 1979, John William Phillips had an accident in which he fell off of a ladder and came to the emergency room at Beach's Hospital for treatment. An admission was made on July 3, 1979, and Dr. Lee undertook the care of the patient. The patient suffered multiple fractures of the ribs, had a contusion of the left shoulder, was demonstrating slight tenderness in the left flank and evidenced a large swollen and contused area in the left chest wall posterior with tenderness. He showed a normal abdomen with bowel signs present but hypo-active. The patient suffered nausea, abdominal distention and tachycardia. From admission through July 12, 1979, the patient waxed and waned. He received fluids and pain medication and a series of x-rays were taken to better understand his condition. On July 12, 1979, a liver scan was made which demonstrated a cold area in the left lobe of the liver, leaving Dr. Lee in the position of ruling out hemotoma versus tumor versus cyst, though he believed the condition to be benign and unrelated to the accident. The cold spot on the x- ray appeared as a smooth contoured defect. The patient continued to show distention following the liver scan and continued to evidence tachycardia and vomiting for the next several days. Respondent did not choose to verify his preliminary clinical impression of the condition of the liver related to the defect, by use of sonogram or angiogram, electing instead to wait for the patient's condition to change for better or worse. On July 15, the patient showed marked increase in temperature. On that date, a chest x-ray demonstrated plate-like atelectasis in the right lung and an elevated diaphragm. With the advent of the temperature elevation on July 15, the patient was transferred to the CCU unit of the hospital and among other matters prescribed, a broad spectrum antibiotic was ordered. The patient was showing an elevated blood count at that time. Following the liver scan, the patient had also developed rapid pulse and shown mental confusion. By the morning of July 15, the patient's condition was one approaching septic shock if not in that condition. Clinically, there was indication of sepsis or septicemia. The family of the patient requested a second opinion and the patient was subsequently transferred to Dr. Corwin. Dr. Woodward gave his opinion about the treatment of Phillips, expressing the belief that the problems evidenced related to this patient were too long and severe and too related to an abdominal condition to be associated solely with the injury in the chest. Given the location of the injury, Dr. Woodward felt like the defect in the liver, seen on the scan, may have been related to the injury. Dr. Woodward felt that the Respondent should have established whether or not the lesion in the liver was caused by the accident, either by exploratory laparotomy or selective arteriogram. To do otherwise would be less than expected of a prudent general surgeon, according to Dr. Woodward. In essence, Dr. Woodward felt that something should have been done to verify the character of the defect shown on the liver scan and whether that defect was associated with injury suffered by the patient. Dr. Corwin testified about the treatment afforded Phillips. He felt that at the time that he took over the case on July 15, that the quality of the septicemia suffered by the patient was such that he was in septic shock and that an operation was necessary to address the defect in the liver. An operation was undertaken to remove that defect and when first visualized, Dr. Corwin was not sure whether the defect was a cystic hemangioma or not, although it gave an appearance of being that condition. (At the time of the liver scan, given the location of the liver defect, Corwin felt that most probable explanation was hematoma or tear in the left lobe of liver, cystic hemangioma being a rare occurrence in liver.) After removal of this cyst, the patient began to improve and Dr. Corwin believes that the removal of the cyst contributed to that improvement. He thinks that the area of the cyst became a seed bed for the septicemia in the sense of aiding in the circulation of bacteria in the patient's system. Dr. Corwin had criticism of Dr. Lee in the treatment of Mr. Phillips in the sense that once the patient's condition began to decline, approaching the place and time at which Corwin was substituted as the physician, Dr. Lee should have done more to determine the true nature of the patient's problem. He does not feel that the Respondent's treatment can be described as malpractice. He is simply of the opinion that the case was not handled very well and showed poor judgment by the treating physician. Dr. Fowler testified about the care of the patient Phillips after examining the records of hospitalization. He indicated that given the deteriorating condition of the patient, that there was an indecisive action pattern on the part of Dr. Lee but it was not of such proportions as to constitute a breakdown in the care of the patient. He had no specific opinion as to whether this conduct by Dr. Lee constituted gross or repeated malpractice. Stephenson's opinion of the Respondent's treatment of Phillips was to the effect that it was not substandard. Given the appearance of the cold spot on the liver scan, he felt certain that this was a cyst or hemangioma and not a hematoma. He indicated that uncertainty in this regard could have been confirmed by a sonogram. He did not find the necessity to conduct surgery to discover the condition of the liver. Having considered the facts of the treatment of Phillips and the opinions of the experts, while the Respondent's reactions to Mr. Phillips' condition were less than sterling, they did not reach the level of constituting gross or repeated malpractice or care unworthy of a same or similar physician. Again, the records kept by the Respondent related to the care of Mr. Phillips were sufficient. CLIFTON WORCESTER On January 31, 1977, Respondent conducted surgery on Clifton Worcester to patch a perforated duodenal ulcer. Worcester had further hospital admissions on June 21, 1978 and August 1, 1978, for recurrent ulcer symptoms. On these occasions he was treated medically. On December 27, 1978 through January 4, 1979, the patient was admitted for the treatment of pneumonia. On September 6, 1979, Worcester was admitted to the hospital under the Respondent's care for conditions which preliminarily seemed to be related to respiratory and cardiac problems. At that time, the patient was 74 years old and was in a deteriorated condition suffering from a variety of maladies to include cardiac and respiratory conditions as well as the peptic ulcer disease. On September 9, 1979, Respondent after diagnosis determined that the patient was suffering from ulcer disease and an operation was done to repair the perforated pyloric ulcer. A Graham closure was used with omental patch and permanent silk sutures were employed. This ulcer was the same ulcer as had caused problems for the patient in 1977. On the morning of September 12, 1979, blood was visualized from the nasogastric tube which had been placed in the patient and when the patient was later irrigated, a large amount of blood appeared. The initial impression by Dr. Lee was that this blood was either due to the active peptic ulcer or possibly gastritis. To ascertain the source of bleeding, Dr. Corwin was called in to do a gastroscopy. That procedure was done around 7:00 pm. on September 12, 1979. Although the entire area of the stomach could not be visualized, Dr. Corwin was of the impression that the cause of the bleeding was not gastritis, leaving the most probable explanation to be that the patient had a problem of a bleeding ulcer. Dr. Corwin made it known to the Respondent that the bleeding was probably due to an ulcer as explanation for the lesion and Dr. Lee acknowledged that the probable source of bleeding was an ulcer condition. In the early morning hours of September 13, 1979, Dr. Lee again operated on the patient, envisualized the prior pyloric ulcer and was satisfied that the sutures in that ulcer were holding fast. He also discovered a gastric ulcer. The gastric ulcer measured approximately 8 centimeters in diameter. The gastric ulcer was shallow in its depth. There was present in the patient 1200-1500 cc's of old blood and a clot in the duodenum. No active bleeding was seen at that time and no major vessels were present in the ulcer beds. Dr. Lee waited 15 to 20 minutes to see if any active bleeding would occur and failing such appearance, he placed a tube gastrostomy. After cleaning out the blood and placing the gastrostomy tube, the patient was closed. No direct attention was given to the ulcers either in the oversewing of the ulcers or by more definitive surgery addressing both ulcer beds. The reason given for not conducting some form of definitive surgery was to the effect, according to Dr. Lee, that he was worried that the patient would not survive the time it would take to conclude such surgery. The surgery that was done took two hours and twenty minutes to achieve. On reflection, Dr. Lee believes that he should have at least sutured the gastric ulcer by oversewing it like a baseball, being unable to identify a bleeding point. This is in opposition to what he did which was to hope that the patient would not rebleed after the operation of September 13, 1979. That hope was not realized because on September 15, 1979, the patient again experienced massive bleeding between 2:00 and 4:00 p.m. Dr. Lee had tried to treat the ulcers with Tagamet and irrigation through the gastrostomy tube. On September 16, 1979, Respondent operated and performed a vagotomy and antrectomy related to the pyloric and gastric ulcers. At that time, the patient was not better able to tolerate that operation than he would have been on September 13, 1979. In fact, between those two operations, he lost a considerable amount of blood, further weakening his resistance. In view of the relative condition of the patient, that is to say, generally poor health, the effects of the bleeding ulcers and associated insult caused by the surgeries, the patient died on September 27, 1979. Among the problems experienced by the patient, in the waning days of his life, were an anastomotic leak and peritonitis. Dr. Woodward, after review of the patient's hospital records, was of the opinion that the bleeding experienced by the patient on September 13, 1979, was from one of the ulcers and not because of gastritis. This belief is held notwithstanding the failure of the ulcers to bleed in the course of the operation on September 13, 1979. Bleeding sometimes subsides during surgery. Given the patient's circumstance related to bleeding ulcers, the least acceptable approach by the treating physician would have been to oversew and/or excise the ulcer craters. The excision would relate to the gastric ulcer. In addition, if possible, Respondent should have done a vagotomy and antrectomy or vagotomy and pyloroplasty during the September 13, 1979, surgery. Alternatively, the ulcers could have been treated medically after oversewing or excision. Use of Tagamet and irrigation would not stop the ulcers from bleeding, in Woodward's opinion. Woodward felt that a patient such as Worcester, who was in distress during the course of the operation, and had lost a great volume of blood, was a patient in greater need of the aforementioned procedures than the average patient, based upon the patient's inability to tolerate additional blood loss if the ulcer started to rebleed after he had been sewn up. At the time of the September 13, 1979, operation, there was evidence that the patient was in shock, which might cause the surgeon to stabilize the patient before conducting the minimum procedures identified, according to Dr. Woodward, but this would not cause the closure of the patient without addressing the bleeding ulcer or ulcers. The shock in Woodward's opinion was due to blood loss. In summary, in Dr. Woodward's mind, to visualize the ulcers on September 13, 1979, having recognized that they were the source of bleeding and to do nothing to stem that bleeding, was unacceptable Performance by the surgeon. Per Woodward, the procedures of September 16, 1979, a vagotomy and antrectomy, were correct but too late. The risk of mortality on September 13, 1979, as opposed to September 16, 1979, was 10 to 20 percent versus a prohibitive chance for recovery. Dr. Woodward found the treatment of Clifton Worcester to be clearly substandard in the face of the requirement to practice medicine with the level of care, skill and treatment which is recognized by reasonably prudent similar physician as being unacceptable under similar conditions and circumstances. Dr. Woodward's opinions as stated herein are accepted with the exception that pyloroplasty was not an appropriate choice given the location of the pyloric ulcer. Antrectomy would have been the substitute choice. Dr. Corwin, with the knowledge that Dr. Lee had been informed of the results of the gastroscope indicating that the source of bleeding on September 13, 1979, was probably an ulcer, felt that the Respondent, when he opened the patient on September 13, 1979, even though the ulcers were not bleeding, should have dealt with those ulcers to prohibit rebleeding, as opposed to cleaning out the ulcer beds and closing the patient. The minimum response would have been oversewing the ulcers with nonabsorbable sutures, and the aging condition of the patient should not have deterred Dr. Lee in that task. When asked if Dr. Woodward had performed the level of care, skill and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances, Corwin was of the opinion that the patient had received very poor treatment and that most any physician practicing as a surgeon would have done differently. Corwin did not think there was any value to the irrigation of blood within the stomach and the treatment of the ulcers by Tagamet through the gastrostomy tube. The treatment of the patient in failing to correct the bleeding constituted gross malpractice according to Dr. Corwin. The opinions of Corwin are accepted. Dr. Fowler also believed that to simply open the patient on September 13, 1979, and close without treating the bleeding ulcer in the sense of definitive suturing was unacceptable. While the antrectomy and vagotomy were recognized as appropriate responses, in terms of surgical technique, Dr. Fowler felt that in the sense of appropriate judgment, those procedures came too late, having followed another bleeding episode after. the September 13, 1979, surgery. According to Dr. Fowler, when asked the question about whether this conduct by Dr. Lee in his September 13, 1979, operation in his treatment of Worcester was at the level of care, skill and treatment which is recognized by reasonably prudent, similar health care providers as being acceptable under similar conditions and circumstances, he was of the opinion that the breakdown in surgical judgment was to the point that the doctor was unable to fully perform the full responsibilities of care in the case. Dr. Fowler's opinions are also accepted. Dr. Stephenson felt that the choices made on September 13, 1979, to close the patient and treat with Tagament and to irrigate were appropriate. He felt that the source of the bleeding might have been gastritis but was most likely from the ulcers. To him, conservative treatment of the patient in not further addressing the ulcers was acceptable given the condition of the patient. Had the patient been in better health, Dr. Stephenson said he might have taken a chance in addressing the ulcers. He felt that when you cannot visualize the source of the bleeding oversewing isn't particularly helpful because you don't know whether anything is achieved. Given this patient's condition, he felt that the chances were one in three that the patient would not rebleed. Dr. Stephenson's opinion as to the acceptability of the Respondent's conduct at the time of the surgery of September 13, 1979, is not accepted. Even this physician recognized that the patient's source of bleeding was most likely the ulcer beds and that there was a great likelihood that he would rebleed and this considered together with the fact of the tremendous amount of blood that the patient had already lost prior to the September 13, 1979, surgery causes a rejection of the opinion of this physician about Respondent's performance. The related charge of failure to keep written medical records justifying the course of treatment of patient Worcester has not been shown. There is ample information to gain an understanding of the patient's condition, as evidenced by the ability of the experts to give opinion testimony.
Findings Of Fact I. Respondents Are Licensed General Surgeons. At all times material hereto, respondents SPIEGEL and EBKEN were licensed to practice medicine in Florida as general surgeons. They practiced as a professional association, with offices located at 9299 Coral Reef Drive, Miami, Florida. They worked closely together, frequently assisting each other in surgical procedures. The respondents are charged with professional misconduct in connection with surgery they performed on Caroline Pedraza, 25, respondent SPIEGEL's patient. (Hereafter she will be referred to as "the Patient.") In four separate courts, the DEPARTMENT accuses them of failing to conform to standards of acceptable and prevailing medical practice in their area of expertise (general surgery). Count I alleges that respondent SPIEGEL, assisted by respondent EBKEN, surgically removed the Patient's uterus (a procedure commonly referred to as a hysterectomy) together with her right ovary, and that, based on what respondent SPIEGEL knew of the Patient's medical history and symptoms, such surgery was unjustified and unnecessary. II. Count I: Removal of the Patient's Uterus and Right Ovary The Patient first saw respondent SPIEGEL on August 1, 1977, pursuant to a referral by Marilyn Marcus, M.D., a general practitioner who also practices office gynecology. As explained by the Patient, Dr. Marcus had referred her to respondent SPIEGEL for a hysterectomy, subject to his decision that such an operation was appropriate. (Testimony of Spiegel; P-3) Upon questioning, the Patient appeared to be troubled and uncomfortable. She complained of irregular menses; severe pain, cramps, and blood spotting during menses; headaches before and during menses; and severe pain during sexual intercourse ("dyspareunia"). She explained that she had experienced these symptoms since her sterilization (by tubal ligation) three years earlier; that a D and C ("dilation and curettage," a procedure by which the cervix is dilated and the inside of the uterus is curetted to obtain tissues for pathologic diagnosis) had been performed on her one year earlier and fibroids had been removed; and that her last menses had lasted three weeks. Respondent SPIEGEL then physically examined her. (Testimony of Spiegel; P-3) His examination revealed, and his office notes document, that the lower portion of the Patient's abdomen was tender. Pelvic examination indicated that her external genitalia, the Bartholin, and the urethra were normal; the cervix showed chronic cystic cervicitis; the ovary (right or left) was of normal size but tender; and the uterus was large, retroverted and retroflexed. When a uterus is retroverted and retroflexed, it is tipped backwards, can impinge on the colon, and is frequently associated with symptoms similar to those complained of by the Patient. (Testimony of Spiegel; P-3) The uterus serves to carry babies and is vital to the birthing process. When a female is sterilized, the uterus no longer serves a useful purpose. Rather, it remains and becomes a potential source of bleeding, infection and cancer. Based on the Patient's complaints and his physical examination, respondent SPIEGEL recommended that she have a hysterectomy, reasoning that removal of the uterus would end her dysfunctional uterine bleeding and cramps; that the Patient's symptoms had been chronic and progressive during the last three years; and that a D and C had previously been performed and fibroids removed. The Patient agreed to the operation and appeared pleased to have some potential for relief. (Testimony of Spiegel, Ebken; R-3) On August 9, 1977, several days later, respondent SPIEGEL admitted her to Miami-Dade General Hospital for the purpose of performing the hysterectomy. The next day he performed the operation and, at his request, respondent EBKEN acted as a surgical assistant. Respondent EBKEN functioned solely as a surgical assistant in this operation; his role was narrow and limited. He did not know the patient, had not talked with her prior to her admission, and was unfamiliar with her medical condition. His lack of knowledge about the Patient was consistent with prevailing and acceptable standards of medical care governing general surgery, which do not require surgical assistants to examine the patients prior to surgery, review their records, or ascertain whether the surgery is justified or necessary. (Testimony of Caster, Ebken, Spiegel) Before performing the hysterectomy on the Patient, respondent SPIEGEL performed a D and C to check for cancer -- the result was negative. (If a cancer had been discovered, he would have first treated the uterus with radiation therapy.) As a precaution he also performed a pregnancy test. Then he commenced surgery. On opening the Patient, respondent SPIEGEL noted that the left ovary looked normal, but that the right ovary was enlarged and appeared to have a corpus lutiem cyst. He judged it appropriate to remove the right ovary, the tubes, and the uterus, but leave the left ovary intact. (Testimony of Spiegel; P-3) He removed the right ovary because it was cystic and enlarged. Normal ovary size is 4 centimeters, which it exceeded. Further, when he manipulated the ovary, it was friable or bled -- an abnormal condition. (Testimony of Spiegel; P-3) The DEPARTMENT contends that respondent SPIEGEL is guilty of misconduct, claiming that the right ovary and uterus were normal and that the operation was unnecessary and unjustified. This contention is unsupported by the weight of the evidence, and is rejected. Under the circumstances of this case, removal of the Patient's uterus and right ovary conformed to, and did not deviate from, standards of acceptable and prevailing medical practice in the area of general surgery. Respondent SPIEGEL's decision to recommend and perform a hysterectomy was consistent with the Patient's complaints, symptoms and medical history; it was a reasonable and permissible exercise of medical judgment. During the operation, the right ovary was observed to be abnormal, enlarged, cystic, and friable. The decision to remove it was also a reasonable, justifiable and permissible exercise of medical judgment. (Testimony of Spiegel, Ebken; R-3) Respondent EBKEN, as a surgical assistant, assisted with the operation. He observed that the Patient's uterus looked normal, but did not protest or question respondent SPIEGEL concerning the purpose or necessity of the operation. (Testimony of Ebken, Spiegel) Respondent EBKEN's conduct as a surgical assistant was proper and conformed to standards of acceptable and prevailing medical practice in the area of general surgery. The primary surgeon is the decision maker in the operating room; an assisting surgeon may give advice, but his main role is to provide assistance to the primary surgeon. A patient's uterus may (and often does) look totally normal on an operating table, yet is properly removed. The decision to remove is arrived at by using a variety of diagnostic tools other than visualization. (Testimony of Spiegel, Ebken; R-3) The DEPARTMENT contends that respondent EBKEN has a medical duty to protest or question respondent SPIEGEL about the necessity for the hysterectomy because the uterus looked "normal." This contention is also unsupported by the weight of the evidence and is rejected. The testimony of Milton P. Caster, M.O. on this question is equivocal and unconvincing. Acceptable and prevailing standards of medical practice in the area of general surgery did not impose such a duty on respondent EBKEN. The retroverted uterus, alone, could have caused some of the symptoms complained of by the Patient and provided justification for its removal. Finally, given the symptoms and medical history of the Patient, the surgery performed by respondent SPIEGEL conformed to prevailing and acceptable standards of medical practice; it follows that respondent EBKEN cannot be guilty of misconduct by virtue of his surgical assistance. (Testimony of Joseph, Spiegel, Ebken; R-3) III. Count II: Performance of Bilateral Subcutaneous Mastectomy In Count II, the DEPARTMENT charges that respondent SPIEGEL, assisted by respondent EBKEN, performed a bilateral subcutaneous mastectomy (removal of internal breast tissue without damaging skin or nipple) on both breasts of the Patient; that this surgery was unnecessary; that neither respondent SPIEGEL nor EBKEN explained the possible adverse effects of surgery to the Patient; and that respondent EBKEN provided surgical assistance without questioning the need for the surgery. Such conduct, the DEPARTMENT alleges, violated acceptable and prevailing standards of medical practice in the area of general surgery, in violation of Section 458.331(1) Florida Statutes (1981). Respondent SPIEGEL next saw the Patient on August 19, 1977, when she came to his office complaining of soreness when she slept on her abdomen and a mass or lump on her left breast. Upon examination, he detected a lump or mass at 2 o'clock on her left breast, preliminarily diagnosed it as fibrocystic disease, and told her to return in two weeks for reexamination. (Testimony of Spiegel; P-3) On September 6, 1977, she returned to his office complaining of a week-long headache, and pain in her left breast. Explaining that she had a family history of breast cancer, she was nervous and jumpy. His examination of her left breast indicated that the lump was larger, dominant, and more tender. Because the lump had become larger and more defined, he recommended a biopsy, to which she agreed. He explained that the biopsy would lead to one of three alternatives. First: If, on examination, the pathologist determined that the breast lump was benign, they would close the incision and send her home. Second: If, instead, the tissue is found to be malignant (cancerous) he recommended the immediate performance of a radical mastectomy--removal of the entire breast, including the skin, nipple, and the pectoralis major and minor chest muscles. He explained that there were alternative cancer treatments which would cause less disfigurement -- radiation, lumpectomy, and a modified radical mastectomy -- but that, in his opinion, the radical mastectomy was the most statistically effective method for eliminating breast cancer. She agreed that if her breast was found to be cancerous, he should immediately perform a radical mastectomy. Third: If the pathologist, for one reason or another, is unable to definitively determine whether the breast lump is benign or cancerous, no further surgery would be performed until a definite conclusion was forthcoming. (Testimony of Spiegel; P-3) On September 9, 1977, the Patient was admitted to Miami-Dade General Hospital for the scheduled biopsy. Before it was performed, a hospital physician did a patient history and physical on her -- a procedure the hospital routinely followed prior to surgery. The history described her illness: Patient is a 25-year-old white female admitted to Miami-Dade Hospital with left breast mass. Patient has strong family history of carcinoma of the breast and is scheduled for biopsy and frozen section in the A. M. and possible mastectomy. Patient states that she noticed the lump two years ago and on [sic] the past two months she has been getting pain and increase in size. Patient states lump is in the lower left quadrant of the left breast (TR 112-113) Respondent SPIEGEL then performed the biopsy. (Respondent EBKEN did not attend, assist, or have any involvement with, the biopsy.) The pathologist, who was at first unable to make a definite determination, ultimately determined that the breast lump was not cancerous; that, rather, it indicated three diseases: fibrocystic disease, intraductal papillomatosis, and sclerosing adenosis of the breast. These are "pre-malignant" diseases. (Testimony of Spiegel, Ebken; P-3) Respondent EBKEN visited the Patient in the hospital the day after the biopsy (a Saturday), since he had agreed to cover respondent SPIEGEL's patients that weekend. Respondent EBKEN discussed the pathology reports with the pathologist, then met with the Patient and told her that she did not have cancer. He explained the significance of the three "pre-malignant" diseases and described alternative treatments, including monitoring and frequent breast examination, and a subcutaneous mastectomy. The nurses' progress notes confirm that respondent EBKEN explained the pathology report to the Patient at that time, and the patient's denial that this occurred is rejected. Respondent EBKEN also wrote a progress note on the Patient, then issued an order authorizing her discharge from the hospital. (Testimony of Spiegel, Ebken, Waltuck; P-5, R-1, R-3) On September 19, 1977, the Patient visited respondents' offices for the removal of the biopsy sutures. She asked respondent EBKEN (because respondent Spiegel was absent) about breast cancer, stating that she had two maternal aunts who had breast cancer and that she had decided to "go ahead" with the subcutaneous mastectomy (with implants), the procedure which he had earlier discussed with her in the hospital. He removed her sutures and told her to return in three weeks and discuss the matter further with respondent SPIEGEL. (Respondent EBKEN did not see or talk with the Patient again until May, 1978, subsequent to her undergoing a subcutaneous mastectomy in October, 1977, and a left oophorectomy (removal of left ovary) in May, 1978.)(Testimony of Ebken, Spiegel; P-3) As instructed by respondent EBKEN, the Patient returned on October 5, 1977, and talked to respondent SPIEGEL. She told him that she wanted a subcutaneous mastectomy, with implants, something that SPIEGEL had not previously discussed with her. Although it appeared that she had already made up her mind, he described the risks and benefits of such surgery and told her that, if he performed the operation, he required the assistance of a plastic surgeon. He described alternative treatment methods such as follow-up monitoring and frequent reexamination, and the potential for future biopsies. She indicated that she was anxious to proceed with the subcutaneous mastectomies, that she did not want more biopsies or further worry, that she wanted to end her breast pain and have steps taken which were most likely to eliminate the possibility of her getting breast cancer. She understood that her diagnosed breast diseases increased the likelihood of her getting cancer; her fear of cancer had some basis. Intraductal papillomatosis is a pre-malignant lesion which significantly increases the risk of getting breast cancer. (Testimony of Spiegel, Ebken, Coury; R-3) On October 6, 1977,--at respondent SPIEGEL's request--the Patient and her husband visited Frederick C. Swenson, M.D., the plastic surgeon scheduled to assist with the breast reconstruction phase of the mastectomy. Dr. Swenson discussed the proposed surgery, including breast implants and reconstruction, and gave them an opportunity to ask questions and express their concerns. (Testimony of Spiegel; R-1) On October 10, 1977, respondent SPIEGEL admitted the Patient to Miami- Dade General Hospital for the subcutaneous mastectomy and implants. Prior to surgery, a hospital physician took a medical-history of the Patient which indicated that she had breast masses, "with previous papillomatosis of left breast, fibrocystic disease and adenosis of breast. Patient has family history of cancer of the breast . . . ." (TR 129) Respondent SPIEGEL's note on her admission to the hospital contained a similar description, reciting that the Patient had a "family history of breast cancer and cancer phobia." (Testimony of Spiegel, Ebken; P-3) On that day, October 10, 1977, the bilateral subcutaneous mastectomy, with implants, was performed on the Patient by respondent SPIEGEL; Dr. Swenson assisted with placing the implants and reconstructing the breasts. The surgery was uneventful, and the DEPARTMENT does not allege that the results were other than promised or reasonably expected. (Testimony of Spiegel, Ebken; R-1; P-3) Rather, the DEPARTMENT contends that, under the circumstances, the bilateral subcutaneous mastectomy of both breasts was inappropriate, unjustified, and violated standards of acceptable and prevailing medical practice in the area of general surgery. This contention is unsubstantiated by the weight of the evidence and is rejected. General surgeons are allowed a wide range in the exercise of judgment and discretion on whether to perform a mastectomy when the breast is not malignant but other indicators are present which increase the likelihood of cancer occurring in the future. Here, the indicators were: a strong family history of cancer, multiple papillomatosis, severe lump in the breast, severe breast pain, and extreme fear of cancer. The pre-malignant diseases in the Patient's breast increased her risk of acquiring cancer in the future by three to five times that of the general public. The DEPARTMENT has shown that reasonably prudent similar physicians would have recommended treatment different than that recommended by respondent SPIEGEL, and refused to perform the mastectomies. Conversely, the evidence shows, with equal force, that other reasonably prudent similar physicians agree with, and have no objection to respondent SPIEGEL's actions. Since the evidence does not convincingly show, with the requisite substantiality, that respondent SPIEGEL's conduct violated the standard of acceptable and prevailing medical practice in the area of general surgery, it must be concluded that his actions constituted a permissible exercise of medical judgment and discretion. (Testimony of Coury, M.D., Joseph, M.D.; R-4) As to the conduct of respondent EBKEN, the evidence is insufficient to prove that he was negligent or guilty of professional misconduct toward the Patient. He informed her of the results of the pathology report, described a bilateral subcutaneous mastectomy and alternative treatments, including risks and benefits; he did not assist in the actual surgery. (Testimony of Ebken) IV. Count III: Alleged Misrepresentation in Obtaining Patient's Consent to Mastectomy In Count III, the DEPARTMENT alleges that the respondents induced the Patient to consent to the mastectomy by telling her that her left breast was malignant and that a mastectomy was an absolute necessity; that such misrepresentation deviates from standards of acceptable and prevailing medical practice in the area of general surgery. This charge, too, is unsupported by the weight of the evidence. As already established, the respondents described to the Patient, prior to surgery, the true nature of her breast disease -- that her breast was not malignant, although the diseases were considered pre-malignant. The Patient's own statements believe the allegation that respondents told her she had breast cancer. On separate occasions, she acknowledged to Oswald Coury, M.D., Bernard Waltuck, M.D., and Robert Hartog, M.D. that she knew, prior to surgery, that her breast was not cancerous. The physicians' and nurses' notes made during her hospitalization also corroborate respondents' assertion that they had told the Patient, and she was aware, that her breast was not cancerous. (Testimony of Coury, Hartog, Waltuck, Ebken, Spiegel; P-3, P-5) The only evidence offered to substantiate this charge is the deposition testimony of the Patient. She was an interested witness, having already sued respondents for civil damages. Her testimony was marked by evasiveness and uncertainty; she had difficulty recalling, and responding to questions about the facts. Her testimony lacks credibility. Count IV: Removal of the Patient's Left Ovary In Count IV, the DEPARTMENT alleges that respondent SPIEGEL surgically removed the patient's left ovary without medical justification. On October 28, 1977, the Patient returned to respondent SPIEGEL's office complaining of hot flashes, and pain in her breasts. The breasts appeared to be healing normally. Tubal ligations and hysterectomies may affect the supply of blood to the ovaries. (Knotting-off some of the nearby vessels may affect the functioning of an ovary.) Respondent SPIEGEL concluded that she had a hormone deficiency because the remaining left ovary was not functioning properly. As treatment, he prescribed Premarin, an estrogen-type (hormonal) medication to be taken the first 25 days of each month. (Testimony of Spiegel; P-3) On November 18, 1977, the Patient returned to respondent SPIEGEL's office with more complaints of hot flashes. He doubled the Premarin dosage. (Testimony of Spiegel; P-3) On December 16, 1977, the Patient returned to respondent SPIEGEL's office complaining of pain on the lower left side of her abdomen. He conducted a pelvic examination and found her left side tender but could not detect a mass. She appeared otherwise to be normal. As treatment, he increased the Premarin, prescribed an antibiotic, and suggested warm douches. (Testimony of Spiegel; P- 3) When she returned on January 17, 1978, she again complained of pain in the lower left quadrant of her abdomen. On examination, respondent SPIEGEL found tenderness, the left ovary was palpable and tender. He told her to return in two months for reexamination. (Testimony of Spiegel; P-3) She returned to his office in May, 1978, complaining of continued pain and tenderness in the lower left part of her abdomen, where the left ovary is located. He conducted another pelvic examination, this time finding that the left ovary was tender, and larger than four centimeters. He concluded, based on his seven months of treatment, that she had developed a pathologically enlarged left ovary. He discussed and recommended surgical removal of the remaining left ovary, explaining that such surgery would require her to take hormone supplements on a continuing basis. (Testimony of Spiegel; P-3) She consented to the surgical removal of her left ovary, a technique known as a left oophorectomy. Respondent SPIEGEL admitted her to the hospital, and, on May 10, 1978, performed the left oophorectomy. The left ovary was shown to be larger than normal, cystic and suggestive of endometriosis, a painful ovarian abnormality. The surgery was uneventful, and properly performed. (Testimony of Spiegel; P-3, P-5) This surgical procedure unequivocally provided the Patient relief from her abdomen pain, her complaints ceased. (Testimony of Spiegel; P-3) This charge, too, is unsubstantiated by the requisite quantum of evidence. The Patient's left ovary was enlarged, cystic, tender, and a source of chronic pain from December, 1977 to May, 1978. Its sole function was to produce female hormones, but since the Patient's right ovary had already been removed, she required, in any case, hormone supplements. Under these circumstances, respondent SPIEGEL's performance of a left oophorectomy conformed to, and did not deviate from, standards of acceptable and prevailing medical practice in the area of general surgery 2/ . The surgery, in fact, relieved the Patient of the chronic pain she had been suffering during the preceding six months. (Testimony of Spiegel, Joseph; P-3)
Recommendation Based on the foregoing, it is RECOMMENDED: That all administrative charges against respondents be Dismissed. DONE and ENTERED this 10th day of June, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 10th day of June, 1983.
Findings Of Fact The decedent, James C. Daniels, was employed as a fire fighter with the Village of Miami Shores, Florida, in April of 1972. The Miami Shores Fire Department was subsequently assimilated by Metropolitan Dade County, Florida, and at the time of the decedent's death on July 20, 1976, he was employed by Dade County as a fire fighter/emergency medical technician. On November 4, 1975, the decedent received a physical examination which showed no evidence of heart disease, and an electrocardiogram, the results of which were within "normal" limits. The decedent had no history of heart disease or circulatory problems, did not drink, and began smoking only in 1974 or 975. At the time of his death, the decedent's customary work routine involved 24 hours on duty, from 7:00 a.m. to 7:00 a.m., followed by 48 hours off duty. The decedent's duties included answering emergency calls along with his partner in a rescue vehicle. These calls included such incidences as automobile accidents, fires, violent crimes involving injuries to persons, and various and sundry other emergency situations. Upon answering an emergency call, the decedent was required by his job to carry heavy equipment, sometimes weighing as much as 80 pounds, to the place where the injured person was located. On occasion, the decedent would transport injured persons from the scene to local hospitals. At the time of his death, the decedent appeared outwardly to be in good physical condition. In fact, he engaged in a regular program of physical exercise. During the approximately two months prior to his death, the decedent participated in a busy work schedule which often included numerous rescues, in addition to false alarms and other drills required of his unit. In fact, only four days prior to his death, the decedent and his partner during one twenty- four hour shift, were involved in 13 rescues and one building fire. During that day, the decedent worked for 24 straight hours, apparently without sleep. On July 19, 1976, at 7:00 a.m., the decedent began his last work shift prior to his death. During that day, the decedent's unit participated in two rescues and two drills. That evening, several of decedent's fellow workers noticed that he looked "bad", "tired" or "drawn out". During the night, decedent was observed getting out of bed from three to five times, and holding his left arm, left side or armpit. At 7:00 a.m. on July 20, 1976, the decedent went off duty and returned home. Upon returning home, he ate breakfast, and later washed down a new brick fireplace at his home. After showering, resting and eating a lunch, he joined several other men near his home whom he had agreed to help in pouring cement for some new construction. The decedent mentioned pains in his neck and shoulder to these men before the truck carrying the cement arrived. The decedent mentioned that he had been under a lot of tension and pressure as a result of the busy work schedule at the fire station. When the cement truck arrived, cement was poured into several wheelbarrows and several of the men, including the decedent, pushed the wheelbarrows to the rear of the structure on which they were working. It appears that the decedent pushed approximately four wheelbarrow loads of cement weighing about 75 pounds each to the rear of the structure. Approximately one-half hour elapsed during the time that the decedent was engaged in this activity. Soon thereafter, the decedent was observed to collapse and fall to the ground. He was given emergency medical treatment and transported to Palmetto General Hospital, where he was pronounced dead at 5:24 p.m. on July 20, 1976. An autopsy was performed on the deceased on July 21, 1976 by Dr. Peter L. Lardizabal, the Assistant Medical Examiner for Dade County, Florida. In pertinent part, the autopsy showed moderate arteriosclerosis of the aorta, and severe occlusive arteriosclerosis of the proximal third of the anterior descending coronary artery in which the lumen, or opening, through which the blood passes through the artery was hardly discernible. The remaining coronary arteries appeared unaffected by the arteriosclerosis. The decedent's certificate of death, which was also signed by Dr. Lardizabal, listed the immediate cause of death as acute myocardial infarction due to severe occlusive arteriosclerosis of the left coronary artery. Dr. Lardizabal performed the autopsy examination of the decedent by "gross" observation, that is, without the benefit of microscopic analysis. However, microscopic slides were made during the course of the autopsy which were subsequently examined by other physicians whose testimony is contained in the record of this proceeding. Findings contained in the autopsy report, together with an evaluation of the aforementioned microscopic slides, establish that the myocardial infarction suffered by the decedent occurred at least 24 hours, and possible as many as 48 hours, prior to the decedent's death. This conclusion is based upon the existence of heart muscle necrosis, or tissue death, which would not have been discernible had the decedent died immediately following a coronary occlusion. In fact, for a myocardial infarction to he "grossly" observable at autopsy, that is, without the benefit of microscopic examination, it appears from the record that such an infarction would have to occur a substantial period of time prior to the death of the remainder of the body. Otherwise, the actual necrosis of heart muscle tissue would not be susceptible to observation with the naked eye. Although it appears probable from the evidence that the decedent went into a type of cardiac arrhythmia called ventricular fibrillation which led to his death, the actual proximate cause of his death was the underlying myocardial infarction, which in turn was a result of arteriosclerosis which had virtually shut off the supply of blood to the affected area of his heart. Although the causes of arteriosclerosis are not presently known to A medical science, it appears clear from the record that acute myocardial infarctions can be caused by emotional or physical stress, and that the decedent's myocardial infarction was, in fact, caused by the stress and strain of his job as a fire fighter and emergency medical technician. In fact, it appears from the medical testimony in this proceeding that the decedent was having a heart attack which led to the myocardial infarction on the night of July 19, 1976, or in the early morning hours of July 20, 1976, while he was still on duty. It further appears that, although physical exertion, such as the pushing of the wheelbarrow loads of cement by the decedent, might act as a "triggering mechanism" for ventricular fibrillation, the decedent's activities on the afternoon of July 20, 1976, had very little to do with his death. The type of lesion present in the decedent's heart, which had occurred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless of the type of physical activity in which he engaged on July 20, 1976. Petitioner, Dolores A. Daniels, is the surviving spouse of James C. Daniels.
The Issue Whether disciplinary action should be taken against the license to practice medicine of Respondent, Carl Fromhagen, M.D., based on allegations that he violated Subsections 458.331(l)(k),(m) and (t), Florida Statutes, as alleged in the Administrative Complaint in this proceeding.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes. At all times material to this proceeding, Respondent was a licensed physician in the State of Florida, having been licensed in 1956 and issued License No. ME 0007027. Respondent is board-certified in Obstetrics and Gynecology (1967). He is 74 years old and now has an office- based practice treating only gynecological patients. Patient K. B., a 46-year-old female, first presented to Respondent on September 6, 1990, with menopausal complaints. Her patient's history reflects that she reported a family history of breast cancer. On February 12, 1992, Patient K. B. presented to Respondent with complaints of a mass in her left breast. Respondent palpated a mass in K. B.'s left breast and, although he did not note the size of the mass in his office records, the records contain a diagram showing the location of the mass. Petitioner testified that it was his practice that when he discovered a mass of less than 2.5 centimeters, he did not describe the size because its too hard to identify the exact dimensions smaller than an inch. Respondent ordered a mammogram for Patient K. B. which was performed on February 19, 1992, and was interpreted as revealing no evident neoplasm (cancer). Respondent saw Patient K. B. in his office on the following dates (after the mammogram): March 30, 1992; May 21, 1992; August 31, 1992; April 19, 1993; April 27, 1993; May 4, 1993; May 11, 1993; May 18, 1993; September 21, 1993; and November 16, 1993. In addition, Patient K. B. had telephone contact with Respondent's office staff to have prescriptions refilled and was mailed examination reminder notes. Patient K. B. testified that she and Dr. Fromhagen discussed the breast mass "every checkup, every time I was there." She inquired about a follow-up mammogram and Dr. Fromhagen indicated that she could wait two years. He did not mention a biopsy, excision, or referral to another physician at anytime. Patient K. B. and Respondent agree that Respondent examined and palpated the breast mass during her physical examinations which took place approximately every six months. During civil litigation that preceded the instant administrative hearing, it became apparent that there were two different sets of office records for Patient K. B. Patient K. B. testified that during the civil action she brought against Respondent in 1996, Respondent had produced medical records, purported to be hers that did not accurately reflect her treatment. She recalled that upon comparing the medical records Respondent had produced in the civil action with the records she had obtained from Respondent's office in December 1994, she discovered that Respondent had "augmented" her records, which she reported to her attorney. In May 1994, the offices of Dr. Paul Straub, who became Patient K. B.'s new treating physician as a result of a change in her group health insurance, requested her medical records from Dr. Fromhagen's office. Dr. Fromhagen testified in the instant hearing that "at the time . . . I compared the chart [Patient K. B.'s records] with . . . 'day sheets' and because I felt the records did not reveal everything that Dr. Straub should be aware of, I rewrote certain portions of them to reflect things that were on the day sheets that I hadn't already written down and then [in May 1994] sent the records to Dr. Straub." Patient K. B. testified that, "the night before my surgery" [December 1994] she received a call from Dr. Fromhagen's office asking if they could send her records to Dr. Straub. In the course of that discussion, Patient K. B. advised that she had been diagnosed with breast cancer and was scheduled for surgery. That same evening, shortly after the phone discussion with Dr. Fromhagen's office, Patient K. B. went to Dr. Fromhagen's office and obtained a copy of her medical records. These records did not contain the "rewritten portions" Dr. Fromhagen reported as having been done in May 1994. Dr. Fromhagen testified that he started keeping "day sheets" when he first started practicing in 1960. The "day sheets" (Respondent's Exhibit 2) are essentially a daily calendar organized by time which lists the name of patients to be seen that day and then notes such as "ovarin cyst," "vaginitis," "preg?" These "day sheets" were not mentioned in either of Dr. Fromhagen's depositions taken in 1996 in the civil action. In Petitioner's Exhibit 10, a July 3, 1997, letter to M. S. Sutton, an Agency for Health Care Administration investigator, Dr. Fromhagen attempts to explain his record- keeping practice for patients, Dr. Fromhagen acknowledges rewriting his charts and states, "I would carefully review the chart and address any portions that I felt were not completely explanatory, or that I thought need information to assist the subsequent physician. I now understand that I should have noted the changes as late entries and dated them the date written." No mention was made of "day sheets" in this letter. Dr. Fromhagen testified during a deposition taken in the civil action that his standard practice was "to make entries in the chart right away," that he never put it off, and that he had not done anything different in Patient K. B.'s case. Dr. Fromhagen acknowledged that during a deposition taken in the civil action he had incorrectly testified that he had not made changes in Patient K. B.'s medical record. The following is a comparison of the significant difference between Petitioner's Exhibit 9, Patient K. B.'s original medical record, and Respondent's Exhibit 3, Patient K. B.'s "augmented" medical record. Please note: Patient K. B. became Dr. Fromhagen's patient on September 6, 1990. No changes were made in the "Gynecologic History and Physical Examination" (Patient K. B.'s medical record) on any entry until March 30, 1992. Changes are highlighted. Date: March 30, 1992 Original record: "Mammogram was neg. palpation indicates mass much smaller. Will follow" Augmented record: "Mammogram reported as no evidence of neoplasm. Palpation indicates to me that mass is smaller. Discussed removing it" Date: May 21, 1992 Original record: "Dysuria General Malaise. Pelvic unremarkable. Urine - pus. Rx Macrodantin" Augmented record: "Dysuria. Mailaise. Pelvic unremarkable. Urine - pus. Rx Macrodantin" Date: August 31, 1992 Original record: "Introital lesions. Pelvic area feels congestion and cramping sensation. Pelvic- ulcers-blisters at introitus but very small. Herpes? Rx Zoirax" Augmented record: "Introital lesions. Lower abd cramping. Pelvic - herpetic ulcers at introitus. Rx Ziorax" Date: April 19, 1993 Original record: "Last mammogram revealed no concern. Dysuria. Frequent UTI. Had a cysto before. Rhinorrhea. Vulvar irritation. GenPE. Breasts unchanged. Pelvic - fungus. Rx She has Monistat. Urine - pus Macrodantin. RV Cysto" Augmented record: "Last mammogram revealed no neoplasm but mass still present and I suggested another x-ray now or removal of mass if she wishes. Dysuria. Has frequent UTIs. Had a Cysto before. Rhinorrhea. Vulvar irritation. Gen PE - nasal turbinates swollen. Breasts unchanged. Pelvic-fungus. Rx she has Monistat for fungus. Macrodantin RV Cysto" Date: April 27, 1993 Original record: "Cysto: stricutre. Proximal urethra & trizone inflamed and granules. Bladder capacity - first desire to void at 200 c.c. RV dilations" Augmented record: "Cysto-urethral stricture. Proximal urethra & trizone inflamed & granular. Urethra L46. Bladder capacity - first desire to void at 200 cc. Rx RV dilations" Date: May 18, 1993 Original record: "No urinary complaints now. Sounded #32 irrigated AgNO3. This concludes dilations" Augmented record: "No urinary complaints now. Sounded #32, irrigated AgNO3. This concludes diations. She has not gotten this years mammogram yet" Date: October 11, 1993 Original record: "Rem sent" [entry made by office staff]" Augmented record: "Reminder note sent - Exam due." [entry made by office staff]" Date: November 16, 1993 Original record: "On Premarin.625. Starting to awaken in the middle of the night again Nervous. No flashes. Bladder OK. New glasses. Trouble adjusting to fidders bifocals. GenPE, breasts & pelvic unchanged. Pap change to Premarin 1.25" Augmented record: "On Premarian.625. Starting to awaken in the middle of the night again. Very nervous. No flashes. Bladder OK. Finds it hard to adjust to her new bifocals. Gen PE unchanged. Breasts - mass still present. Again suggested she get a yearly mammogram or have mass excised. She has not arranged for a mammogram as she said she would. Pelvic unchanged. Rx Increased dose of Premarian to 1.25" The entries made in patient K. B.'s "augmented" record (Respondent's Exhibit 3) were not noted to be "late entries" nor were they dated. Both expert witness opined that this fell below the standard of care. Most of the "late entries" made by Respondent in the "augmented" record (Respondent's Exhibit 3) are a self-serving attempt by Respondent to create the impression that he had encouraged Patient K. B. to have follow-up mammograms or to have the breast mass excised. If the "augmented" record (Respondent's Exhibit 3) was a true reflection of the treatment rendered Patient K. B. by Respondent, his treatment could possibly have met the "standard of care." I find that the "augmented" record does not reflect the treatment Patient K. B. received, but that the original record (Petitioner's Exhibit 9) is the more credible document and accurately reflects Respondent's treatment of Patient K. B. Dr. Nelson, who testified as an expert witness, testified that Dr. Fromhagen fell below the standard of care in that (relying on both the original record and "augmented" record) between March 30, 1992, and April 13, 1993, he did not "deal with the breast mass, did not report discussion of treatment options with the patient, did not order a follow-up mammogram within 12 months." Again relying on both records, Dr. Nelson testified that Dr. Fromhagen fell below the standard of care for maintaining medical records when he failed to record his examination of Patient K. B.'s breasts and palpation of the mass which he reported as having been done "every visit she made." Both Dr. Von Thron, who also testified as an expert witness, and Dr. Nelson agreed that the standard of care requires that for any revision of medical records, if a change is made, a line is made through the original so it can be read and then the correction is made and the change is dated and initialed. If an additional statement is entered into the medical record, it should be dated and initialed. Dr. Fromhagen did not date or initial the changes or additions to Patient K. B.'s medical record when he created the "augmented" record. Both expert witnesses testified that this fell below the standard of care for medical record-keeping. Dr. Von Thron, referring to the original record, opined that Dr. Fromhagen did not comply with the standard of care for essentially the same reasons as expressed by Dr. Nelson. He opined that the "augmented" record indicates that Dr. Fromhagen complied with the standard of care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Board of Medicine enter a final order finding Respondent guilty of violating Subsections 458.331(1)(k), (m), and (t), Florida Statutes (1993), and imposing the following: A $1,000.00 fine for each violation, for a total of $3,000.00; and A one-year suspension followed by two years' probation; Ten hours of continuing medical education in ethics; An appropriate medical education course in medical record-keeping. DONE AND ENTERED this 5th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2001. COPIES FURNISHED: George Thomas Bowen, II, Esquire Law Offices of Donald Weidner, P.A. 11265 Alumni Way, Suite 201 Jacksonville, Florida 32246 John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues in this case are whether Respondent violated Section 458.331(1), Florida Statutes (1995) 1/ by failing to practice medicine according to the applicable standard of care, by performing unnecessary and improper breast examinations on eight patients, by failing to document the examinations in his medical records, and by documenting tests that were not performed, and, if so, what, if any, penalty should be imposed pursuant to Florida Administrative Rule 59R-8.001. 2/
Findings Of Fact 1. Petitioner is the state agency responsible for regulating the practice of medicine. Respondent is licensed to practice medicine pursuant to license number ME0062132. Education, Experience, And Reputation Respondent practiced neurology in Jacksonville and St. Augustine, Florida, until Petitioner issued an emergency suspension of his license in December, 1995. Respondent is not a board certified neurologist. Respondent was graduated from medical school in India, where he was born, and received some post-graduate medical training there. The post-graduate training included a six-month "house post" in obstetrics and gynecology ("OB/GYN"). A "house post" is the equivalent of a residency in the United States. In 1983, Respondent moved to the United States and passed all required examinations. From 1985 through 1987, he completed an 18-month residency in the Department of Neurology, University of Minnesota, Veteran's Administration hospital. In 1988, Respondent completed a rotating internship at the University of Minnesota and a three-year residency in neurology in 1991. In June, 1992, he completed a one-year fellowship in physio-neurology. Respondent moved to Florida and was employed at the Jacksonville Neurological Clinic. In 1994, Respondent established his own neurology practice in St. Augustine under the name of the St. Augustine Neurological Clinic (the "Clinic"). From 1985 through April 8, 1994, Respondent had an exemplary professional career, without incident, in multiple jurisdictions. He has a reputation in the professional community for competency and veracity. Medical Records Respondent examined and treated the eight patients involved in this proceeding in his Clinic. The eight patients are D.R., L.W., L.Y., L.B., C.L., D.S., L.T., and D.P. Respondent performed 16 breast examinations on these patients. Respondent performed one breast examination on D.R., L.W., L.Y., and C.L.. He performed two breast examinations on D.S. and L.T., five breast examinations on L.B., and three breast examinations on D.P. Respondent documented the breast examinations on D.S. in his medical records and one of the breast examinations on D.P. Respondent failed to document the other breast examinations in his medical records. Breast Examinations: Necessity and Propriety Petitioner charged Respondent with performing breast examinations that were unnecessary and inappropriate. The preliminary factual issue for each patient is whether a breast examination was medically necessary. The secondary issue is whether the breast examination actually given was performed in an appropriate manner and for appropriate purposes. The issue of whether Respondent documented medical tests that he did not actually perform is discussed in the context of each patient. Neurology involves the diagnosis and treatment of diseases of the brain, spinal cord, nerves, and muscles. Neurologists generally obtain patients by referral from other primary care physicians including family physicians and OB/GYNs. Neurologists can approach similar neurological problems differently, including different initial examinations for new patients. Some neurologists give a new patient a general physical examination as well as a neurological examination. General examinations may include a breast examination. A breast examination by a neurologist is medically necessary in some instances. A definite connection exists between breast cancer and some neurological problems. Breast cancer can metastasize into the brain and cause a brain tumor and headaches. Breast cancer can metastasize to the lung and cause other problems. There are a variety of symptoms patients may experience when breast cancer spreads to other parts of the body depending on whether the disease spreads to the brain, the spinal cord, the skull, or the blood stream. If a neurologist has training in other medical specialties, it is appropriate for the neurologist to use that training in diagnosing and treating neurological patients. Respondent has training in breast examinations from medical school, his "house post," and his rotating internship. Respondent has performed hundreds of breast examinations over the past 15 years. He routinely performs breast examinations on approximately one-third of his patients. A breast examination that is performed appropriately has no negative side effects. Some neurologists perform breast examinations and some do not. D.R. is a 49-year-old female. On June 7, 1995, Dr. Ernest Carames, D.R.'s primary care physician, hospitalized D.R. in Flagler Hospital for chest pains. Dr. Carames requested Respondent to evaluate D.R. for possible seizures and multiple sclerosis. Respondent performed a neurological examination of D.R. in the hospital on June 7, 1997. As part of the examination, Respondent ordered a magnetic resonance imaging scan (an "MRI") which was performed on June 8, 1995. Respondent scheduled D.R. for follow up in his office on June 21, 1995. At the follow up on June 21, 1995, Respondent took D.R. to his office and reviewed her condition with her. After a few minutes in the office, Respondent took D.R. to an examining room and performed a breast examination. The breast examination was not medically necessary. Dr. Carames was D.R.'s primary care physician and was treating D.R. for chest pain. Objective findings available to Respondent prior to the breast examination were insufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent had previously ruled out multiple sclerosis and seizures. Respondent's medical records were insufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent performed the breast examination inappropriately. Respondent instructed D.R. to sit on the examination table without an examination gown. Respondent and D.R. were alone in the examination room. Respondent lifted D.R.'s brassier ("bra") over her breasts. Respondent cupped D.R.'s left breast, then her right breast, and back to the left breast. He alternated between D.R.'s two breasts for several minutes. Respondent put his hands around each breast. He twisted and pinched the nipple of each breast. D.R. informed Respondent that she had a rash under her breasts and that his examination was painful. She explained that the skin affected by the rash would split and bleed if Respondent lifted her breasts too much. Respondent ignored D.R.'s complaints and explanation. When D.R.'s skin bled, Respondent terminated the examination. Respondent met D.R. in his office. He informed her that the MRI results were negative and that he had ruled out multiple sclerosis and seizures. Respondent never informed D.R. of the medical necessity for the breast examination. D.R. had never received a breast examination that was performed in the manner performed by Respondent. Respondent documented tests for D.R. in his medical records that he did not perform. Respondent's medical records for D.R. indicate that Respondent performed: a general physical examination, including a blood pressure and pulse; a head and neck examination; a chest examination; a motor examination; a test of deep tendon reflexes; a sensory examination; and an examination of the patient's station, gait, and coordination. Except for the last examination listed in the preceding paragraph, Respondent did not perform the examinations documented in his medical records. The evidence was less than clear and convincing that Respondent did not examine D.R.'s station, gait, and coordination by observing her in the examination room and from his office to the examination room. L.W. is a 37-year-old female. On June 27, 1995, L.W. presented to Respondent with complaints of arm pain. Respondent took L.W. to his office and reviewed her condition. After a few minutes in the office, Respondent took L.W. to an examining room and performed a breast examination. The breast examination was not medically necessary. L.W. presented with arm pain seeking a neurological examination. Neither the objective findings available to Respondent prior to the breast examination nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform L.W. of a medical necessity for a breast examination. Respondent performed the breast examination inappropriately. Respondent instructed L.W. to remove her top and lie down on the examination table without an examination gown. Respondent and L.W. were alone in the examination room. Respondent placed the palms of his hands on L.W.'s breasts and rubbed her breasts in a circular motion. He then unsnapped L.W.'s shorts and unzipped them. He asked L.W. if she was married. Respondent put his hands just above L.W.'s pubic region. He pressed and rubbed the area. L.W. asked Respondent why he was examining her pubic area for arm pain. Respondent did not provide an explanation. Respondent terminated the examination. Respondent never examined L.W.'s arm and performed no other examinations. Respondent documented tests for L.W. in his medical records that he did not perform. Respondent's medical records for L.W. indicate that Respondent performed a comprehensive medical examination. A comprehensive medical examination requires: an extensive history of the presenting complaints; a review of the patient's medical, family, and social history; a review of her current medications and allergies; a review of at least 10 endocrine systems; and complete neurological and physical examination. Respondent did not perform a comprehensive medical examination of L.W. L.B. is a 37-year-old female. On January 20, February 22, March 22, March 30, and April 6, 1995, L.B. presented to Respondent with complaints of trauma-induced headaches from an automobile accident. Respondent performed five breast examinations on L.B. in approximately 76 days. None of the breast examinations were medically necessary. L.B. presented with headaches caused by trauma. Neither the objective findings available to Respondent prior to each of the breast examinations nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform L.B. of a medical necessity for any of the breast examinations. Respondent performed each of the breast examinations inappropriately. On each occasion Respondent and L.B. were alone in the examination room and L.B. had no examination gown. On January 20, 1995, Respondent reviewed L.B.'s condition with her in his office. He then took L.B. to an examining room and performed the first breast examination. Respondent instructed L.B. to remove her clothes from the waist up and to sit on the examination table. Respondent and L.B. were alone in the examination room. Respondent placed one hand on each of L.B.'s breasts. He squeezed each breast and nipple. He then cupped each breast and used both of his hands to rub each breast individually. Respondent did not provide an explanation of the medical necessity for the breast examination. He instructed L.B. to return to his office in one month. On February 22, 1995, L.B. returned to the Clinic in accordance with Respondent's medical advice. Respondent ushered L.B. directly to the examination room, locked the door, and performed the second breast examination. Respondent instructed L.B. to remove her clothes from the waist up and to sit on the examination table. He placed both hands on one of L.B.'s breasts and squeezed and massaged it. He squeezed and pulled the nipple. He then repeated the process on the other breast. He instructed L.B. to return to his office on March 22, 1995. On March 22, 30, and April 6, 1995, Respondent took L.B. directly to the examination room, locked the door, and performed the remaining three breast examinations. He performed each of the last three breast examinations using the same techniques as he used on January 20 and February 22, 1995. Respondent documented tests for L.B. in his medical records that he did not perform. Respondent's medical records for L.B. indicate that Respondent performed a Babinski test and an examination of: the head and neck, including the ear, nose, and throat; the abdomen; the spinal area; and all eleven cranial nerves. Respondent did not perform these tests. C.L. is a 31-year-old female. On December 23, 1994, C.L. presented to Respondent with numbness in her arm. Respondent took C.L. to his office and reviewed her condition. After a few minutes in the office, Respondent took C.L. to an examining room and performed a breast examination. The breast examination was not medically necessary. C.L. presented with numbness in her arm and sought a neurological examination for the condition. On December 22, 1994, C.L.'s gynecologist had given C.L. a complete physical that included a breast examination. Neither the objective findings available to Respondent prior to the breast examination nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination. Respondent did not inform C.L. of the medical necessity for a breast examination. Respondent performed the breast examination inappropriately. Respondent instructed C.L. to remove all of her clothes from the waist up and to lie down on the examination table without an examination gown. Respondent and C.L. were alone in the examination room. C.L. objected to the examination and Respondent's instructions. C.L. explained that her gynecologist had performed a breast examination the previous day. Respondent insisted and C.L. reluctantly complied. Respondent cupped each breast with the palm of his hand. He pinched each nipple and rubbed his hands from her neck to the edge of her nipples. Respondent instructed C.L. to return to the Clinic for another office visit. C.L. never returned. Respondent documented tests for C.L. in his medical records that he did not perform. Respondent's medical records for C.L. indicate that Respondent examined C.L.'s eye with a swab or other instrument, examined her gait, and performed a Babinski test. Respondent did not perform these tests. L.Y. is a 37-year-old female. On May 25, 1995, L.Y. presented to Respondent with complaints of migraine headaches. Respondent took L.Y. to his office and reviewed her condition. After a few minutes in the office, Respondent took L.Y. to an examining room and performed a breast examination. The breast examination was not medically necessary. L.Y. presented with migraine headaches and sought a neurological examination for the condition. Neither the objective findings available to Respondent prior to the breast examination nor Respondent's medical records were sufficient to establish a medical necessity, or to otherwise justify, a breast examination. Respondent did not inform L.Y. of the medical necessity for a breast examination. Respondent performed the breast examination inappropriately. Respondent instructed L.Y. to remove all of her clothes from the waist up. L.Y. did so and put on an examination gown that she had requested. Respondent, L.Y., and L.Y.'s five year-old son were the only individuals in the examination room. Respondent rubbed each breast with the palm of his hand. The palm of each hand made contact with each nipple. The breast examination was unlike any breast examination L.Y. had previously received. D.S. is a 27-year-old female. On November 28, 1994, D.S. presented to Respondent with complaints of migraine headaches. D.S. was referred to Respondent by her gynecologist who had recently performed a yearly physical that included a breast examination. D.S. had a calcified cyst in her right breast. The cyst had been present for five years and was monitored routinely by her gynecologist. D.S. was scheduled for a routine mammogram shortly after her neurological examination. Respondent performed two breast examinations on D.S. on the same day. He performed one breast examination in the examination room and the second in his office. Neither of the breast examinations were medically necessary. D.S. had recently received a breast examination during from her gynecologist during her annual physical and was scheduled for a mammogram. She presented to Respondent with migraine headaches and sought a neurological examination. Neither the objective findings available to Respondent before the breast examinations nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform D.S. of the medical necessity for a breast examination. Respondent performed both breast examinations inappropriately. After D.S. completed some forms in the reception area, Respondent took D.S. directly to an examination room and performed the first breast examination. Respondent instructed D.S. to remove her clothes from the waist up. He gave her an examination gown and left the room. D.S. removed all of her clothes from the waist up except her bra. She put on the examination gown. Respondent returned to the examination room and performed the breast examination. Respondent and D.S. were alone in the examination room. Respondent lifted D.S.'s bra. He felt her left breast and then her right breast. He then felt both breasts simultaneously. He then felt each breast separately again. During the examination, D.S. objected to the examination. She explained that her gynecologist had just performed a breast examination and that she was scheduled for a mammogram to monitor the cyst in her right breast. Respondent continued the examination. He continued to touch both breasts simultaneously with both hands. He repeatedly twisted both nipples simultaneously with both hands. Respondent completed the examination. He instructed D.S. to get dressed and to meet him in his office. In his office, Respondent discussed more tests and asked D.S. more questions about her condition. Respondent then rose from his chair, locked the door to his office, and told D.S. that he wanted to check the cyst in her right breast. Respondent instructed D.S. to unbutton her blouse. Respondent pulled up D.S.'s bra and asked her to stand and lean forward. Respondent squeezed and twisted both of D.S.'s nipples. He touched both breasts simultaneously. Respondent did not touch the area of the cyst. Respondent instructed D.S. to return to his office for follow up. D.S. never returned. Respondent documented tests for D.S. in his medical records that he did not perform. Respondent's medical records for D.S. indicate that Respondent performed a head and neck examination, an examination of 11 pairs of cranial nerves, a motor examination, and a sensory examination. Respondent did not perform these tests. L.T. is a 29-year-old female. On July 10, 1995, L.T. presented to Respondent with complaints of headaches and seizures. L.T. was referred to Respondent by her kidney specialist. L.T. also had a gynecologist who had performed a complete physical within one year of L.T.'s visit to Respondent. The complete physical included a breast examination. Respondent performed a breast examination on L.T. on July 10, 1995, and August 4, 1995. Neither of the breast examinations were medically necessary. L.T. recently had a breast examination from her gynecologist during her annual physical. She presented to Respondent with headaches and seizures. Neither the objective findings available to Respondent prior to the breast examinations nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform L.T. of the medical necessity for a breast examination. Respondent performed both breast examinations inappropriately. On both occasions, Respondent and L.T. were alone in the examination room, and L.T. had no examination gown. On July 10, 1995, L.T. completed some forms in the reception area and Respondent took L.T. to his office where he asked her some routine questions. Respondent then took L.T. to an examination room and performed the first breast examination. Respondent instructed L.T. to sit on the examination table. He took her blood pressure and had her to lie on her back. Respondent listened to L.T.'s heart for a moment. He then pulled her shirt and bra over her breasts and squeezed both of her breasts simultaneously. Respondent told L.T. to place her hands behind her head. Respondent squeezed one breast and then the other. He then repeated the same process several times alternating between breasts. He then twisted and rolled L.T.'s nipples simultaneously with his fingers while the palms of hands grasped her breasts. Respondent moved his hands toward L.T.'s abdomen and applied pressure. He then moved his hands down to the hairline of the pubic region to examine a scar. Respondent moved his hands back up to L.T.'s breasts. He squeezed both breasts simultaneously while rolling both nipples with his fingers. During the examination, Respondent asked L.T. about her nationality. L.T. questioned the question. Respondent explained that L.T. had no tan lines. Respondent completed the examination. He instructed L.T. to get dressed and accompany him to his office. In his office, Respondent prescribed an MRI and electroencephalogram ("EEG"). The MRI was performed on July 18, 1995, and produced no positive findings. The EEG was performed in the Clinic by Respondent's nurse. The nurse scheduled L.T. to return to Respondent's office on August 4, 1995, to obtain the results of the EEG. The EEG produced no positive findings. On August 4, 1995, Respondent took L.T. to his office. Respondent stated that he found something abnormal but did not disclose the nature of the abnormality. He took L.T. to the examination room. In the examination room, Respondent had L.T. sit on the examination table and then lie down on the table with her hands behind her head. He pulled up her shirt and bra over her breasts. He then listened to her heart while he held her left breast in his right hand. He then touched both breasts with both hands while twisting her nipples with his fingers. Respondent instructed L.T. to return to his office for another EEG. L.T. returned on the next day. However, she did not stay for the test and never saw Respondent again. Respondent documented tests for L.T. in his medical records that he did not perform. The medical records for L.T. indicate that Respondent performed a cranial nerve test and deep tendon reflex test. Respondent did not perform either test. D.P. is a 39 year-old female. On April 8, 1994, D.P. presented to Respondent with complaints of migraine headaches. Respondent performed a breast examination on D.P. on July 10, 1995, in November 1994, and in the Spring of 1995. None of the breast examinations were medically necessary. D.P. presented to Respondent with migraine headaches and sought a neurological examination. Neither the objective findings available to Respondent prior to each breast examination nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform D.P. of the medical necessity for a breast examination. Respondent performed all three breast examinations inappropriately. On each occasion, Respondent and D.P. were alone in the examination room, and D.P. had no examination gown. On April 8, 1994, D.P. completed some forms in the reception area, and Respondent took D.P. to his office where he asked her some routine questions. Respondent then took D.P. to an examination room and performed the first breast examination. Respondent instructed D.P. to remove her clothes from the waist up and to lie down on the examination table. He massaged both of her breasts with his hands. He then had her sit up on the table and again massaged both breasts. He lifted both breasts with his hands and continued to massage both breasts while he pinched her nipples with his fingers. During the examination, Respondent stated repeatedly that he had to be thorough. The repeated statements were disconcerting to D.P. The breast examination was like no other breast examination D.P. had received. It was lengthy and irregular. Respondent completed the examination. He instructed D.P. to get dressed and to meet him in his office. In his office, Respondent recommended that D.P. return on a monthly basis. Respondent advised that he could not refill her prescription unless he examined her monthly. D.P. returned to the Clinic over the next several months without incident. In November 1994, Respondent took D.P. to the examination room. He instructed D.P. to remove her clothes from the waist up. Respondent grasped both breasts and massaged them in a clinching manner. He pinched and twisted both nipples. In the Spring of 1995, Respondent took D.P. to an examination room and performed another examination that Respondent described to D.P as a breast examination. Respondent put both of his hands down D.P.'s bra and placed a stethoscope on one of her nipples. On her last visit, Respondent fingered D.P.'s bra strap. He told her it was very nice. The examination terminated shortly thereafter. Respondent performed all 16 breast examinations on the eight complaining witnesses in this proceeding for purposes of engaging them in sexual activity within the meaning of Section 458.329. In each case, Respondent exercised his influence within the patient-physician relationship for purposes prohibited by Section 458.329.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order and therein: find Respondent guilty of violating Sections 458.311(1)(j), (k), (m), (t), and (x); impose an administrative fine of $105,000; suspend Respondent's license for three years, including the period of suspension prior to a final order in this case; place Respondent on probation for three years; require Respondent to complete a reasonable amount of continuing professional education; and restrict Respondent's practice in accordance with the provisions of this Recommended Order. DONE AND ENTERED this 6th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1997.
The Issue The issues in this case are whether Respondents performed a wrong procedure on patient C.C., as set forth in the second amended administrative complaints, and if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine in the state of Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to this proceeding, Respondents were licensed physicians within the state, with Dr. Kenneth D. Stahl having been issued license number ME79521 and Dr. Eddie Ward Manning having been issued license number ME110105. Dr. Stahl has been licensed to practice medicine in Florida since 1999 and in California since 1987. He has never had disciplinary action taken against either license. Dr. Stahl is board certified by the American College of Surgeons in general surgery, cardiac and thoracic surgery, and trauma and critical care surgery. Dr. Stahl's address of record is 3040 Paddock Road, Fort Lauderdale, Florida 33141. Dr. Manning has been licensed to practice medicine in Florida since May 31, 2011. He has never had disciplinary action taken against his license. On June 23, 2011, Dr. Manning was a resident in general surgery. Dr. Manning's address of record is 1900 South Treasure Drive, Apartment 6R, North Bay Village, Florida 33141. In February 2011, patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital (JMH) with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous (IV) antibiotics. She was discharged on March 4, 2011. On June 22, 2011, patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography (CT) scan of patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Dr. Stahl later described her anatomy as "very distorted." Patient C.C. was scheduled for an emergency appendectomy, and patient C.C. signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, Dr. Manning was the chief or senior resident, and Dr. Castillo was the junior resident. Notes indicate that Dr. Stahl was present throughout the critical steps of the procedure. Dr. Stahl had little recollection of the procedure, but did testify that he recalled: looking at the video image and seeing a tremendous amount of infection and inflammation and I pulled-–I recall that I myself went into the computer program and pulled up the CT scan and put that on the screen right next to the video screen that's being transmitted from the laparoscope and put them side-to-side and compared what the radiologists were pointing to as the cause of this acute infection and seeing on the laparoscopic video image that that indeed matched what I saw in the CT scan and I said, well, let's dissect this out and get it out of her so we can fix the problem. Dr. Stahl further testified that the infected, hollow organ that was dissected and removed was adherent laterally in the abdomen and was located where the appendix would normally be. He recalled that an abscess cavity was broken into and the infected, "pus-containing" organ that was removed was right in the middle of this abscess cavity. Dr. Stahl also recalled the residents stapling across the base of the infected organ and above the terminal ileum and the cecum and removing it. The Operative Report was dictated by Dr. Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the postoperative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that on June 23, 2011, at 8:00 a.m., patient C.C. "denies pain," and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with patient C.C. in the clinic the following Monday. At the meeting, patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The second amended administrative complaints allege that Dr. Stahl and Dr. Manning performed a wrong procedure when they performed an appendectomy which resulted in the removal of her ovary and a portion of her fallopian tube. It is clear that Dr. Stahl and Dr. Manning did not perform an appendectomy on patient C.C. on June 23, 2011. Dr. Stahl and Dr. Manning instead performed an oophorectomy and salpingectomy. It was not clearly shown that an appendectomy was the right procedure to treat patient C.C. on June 23, 2011. The Department did convincingly show that patient C.C. had a history of medical problems and that she had earlier been diagnosed with appendicitis, had been suffering severe pain for 12 hours with associated nausea and vomiting, that she suffered from an infection in her right lower quadrant, that the initial diagnosis was acute appendicitis, and that the treatment that was recommended was an appendectomy. However, substantial evidence after the operation suggests that an appendectomy was not the right procedure. The infected and inflamed organ that was removed from the site of a prior abscess was not an appendix. After the procedure, patient C.C. no longer felt severe pain in her lower right quadrant, with associated nausea and vomiting. She was discharged the following day and was asymptomatic. It is, in short, likely that the original diagnosis on June 22, 2011, was incorrect to the extent that it identified the infected organ as the appendix. The pre-operative diagnosis that patient C.C.'s severe pain and vomiting were caused by a severe infection in an organ in her lower right quadrant was correct. Surgical removal of that infected organ was the right procedure for patient C.C. If that inflamed organ was misidentified as the appendix before and during the operation, that would not fundamentally change the correctness of the surgical procedure that was performed. The evidence did not clearly show that the wrong procedure was performed. It is more likely that exactly the right procedure was performed on patient C.C. That is, it is likely that an oophorectomy and salpingectomy were the right procedures to address the abdominal pain that caused patient C.C. to present at the JMH emergency room, but that the right procedure was incorrectly initially denominated as an "appendectomy," as a result of patient history and interpretation of the CT scan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order dismissing the second amended administrative complaints against the professional licenses of Dr. Kenneth D. Stahl and Dr. Eddie Ward Manning. DONE AND ENTERED this 15th day of July, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2015.
Findings Of Fact Stipulated facts 2/ The Respondent is a licensed physician in the State of Florida and has been licensed in Florida at all times material herein. The Respondent is Board Certified in family practice. The patient B. M., a female born on May 18, 1934, with a history of hypertension, diabetes, and obesity, presented to the Respondent on multiple occasions between August of 1979 and November of 1990. On September 29, 1979, when she was forty-five years old, patient B. M. notified the Respondent that her periods were spreading out and that she was getting hot flashes. On February 18, 1982, patient B. M. indicated that she was having irregular periods every couple of months. The Respondent's medical records indicate that he did not see or treat the patient B. M. between October 1, 1984, and July 3, 1987. On July 3, 1987, patient B. M. presented to the Respondent with complaints of excessive vaginal bleeding for the past three (3) months. The patient indicated the bleeding had stopped approximately three weeks earlier. The Respondent diagnosed patient B. M. with vaginitis, and prescribed her medication for vaginitis, based on the patient's complaints of vaginal discharge. Respondent did not perform a pelvic examination on that day to make that diagnosis. Patient B. M. returned the following week for a pelvic examination. The Respondent did not document the medical history of the patient B. M. during the preceding three years, although she had a history of high blood pressure and diabetes, both conditions that require periodic monitoring and prescription medication. The Respondent also did not document any pertinent information relating to the patient's gynecological history, including, but not limited to, the dates of the patient's last period, how often her periods were occurring, and how much she was bleeding, despite her complaints of excessive bleeding. On August 7, 1987, after several other visits, the patient B. M. returned for an examination. A pelvic examination revealed a vaginal laceration that was bleeding. On January 18, 1988, patient B. M. presented to the Respondent with complaints of irregular bleeding for the prior month. The Respondent suggested a dilation and curettage (scraping of the uterine walls) if patient B. M.'s bleeding continued. On December 21, 1989, patient B. M. presented to the Respondent with complaints of excessive vaginal bleeding with clots since the previous night. The Respondent indicated that the patient had her regular period the previous week, and was using condoms. The Respondent performed a pelvic examination which revealed blood clots, and diagnosed patient B. M. with dysfunctional uterine bleeding and administered progesterone to patient B. M. The Respondent did not document any additional information concerning the patient's menstrual activity, such as how often she had periods, what was meant by uncontrollable vaginal bleeding, where the bleeding was coming from, or why she was using condoms. The patient B. M. continued to complain of occasional bleeding after December 21, 1989, and on January 15, 1990, the Respondent referred the patient B. M. to a gynecologist. On February 5, 1990, the patient B. M. presented to a gynecologist, who took cervical biopsies and subsequently performed a dilation and curettage on the patient B. M. on or about February 23, 1990. The patient was subsequently initially diagnosed with grade two endometrial cancer, and after biopsy was diagnosed with grade three endometrial cancer and was referred to another gynecologist at the University of Miami. 3/ On April 5, 1990, the patient B. M. underwent a total hysterectomy. The patient B. M. was then diagnosed with Stage III-C endometrial carcinoma and underwent intravenous Adriamycin chemotherapy. On December 25, 1990, the patient B. M. expired. Facts based on evidence at hearing At all times material to this case, the subject patient 4/ weighed approximately three hundred pounds. Periods spreading out and hot flashes are signs that a woman may be beginning menopause. The average length of time between the beginning of menopausal symptoms and a cessation of menstruation is six months to one year. Endometrial cancer is cancer of the uterus. It is the most common gynecological cancer in women. Endometrial cancer occurs most often in women who are post-menopausal. About 20 to 25 percent of women are diagnosed with endometrial cancer before menopause. Most patients are diagnosed with endometrial cancer after the age of 50. When diagnosed early, patients with endometrial cancer have a very high survival rate. When diagnosed late, patients with endometrial cancer have a very low survival rate. The subject patient had several of the risk factors associated with endometrial cancer. The first symptom in most cases of endometrial cancer is abnormal bleeding. Any woman with post-menopausal abnormal bleeding should be checked for endometrial cancer. The subject patient was hospitalized in 1982. During that hospitalization she was evaluated by a gynecologist who determined that there was no evidence of abnormal or irregular gynecological problems at that time. After February 18, 1982, through October 1, 1984, there are no references in the Respondent's medical records to the subject patient's menstrual history, and no indication as to whether the patient had regular or irregular menstrual periods during that period of time. The subject patient was not seen by the Respondent on any occasion between October 1, 1984, and July 3, 1987. 5/ The subject patient returned to the Respondent's office on July 3, 1987. On the occasion of that visit she gave a history to the Respondent's office staff which is recorded in the Respondent's medical records as "excessive bleeding vaginal for 3 mos. Stopped 6/13." The Respondent's records for July 3, 1987, do not contain any additional details regarding the nature of the excessive bleeding. The Respondent's medical records for the July 3, 1987, office visit also indicate that at that time the patient had a vaginal infection with a discharge. This information was obtained from the patient. On that day the Respondent did not examine the patient to confirm the condition described by the patient. The Respondent diagnosed the patient as having vaginitis and prescribed Sultrin cream and Betadine douche for the vaginitis. The medical records for the July 3, 1987, office visit note that the patient had high blood pressure. Although the records, standing alone, do not clearly show that any treatment was undertaken on that day for the patient's high blood pressure, during the course of the July 3, 1987, visit, the Respondent prescribed medication for the patient's high blood pressure, as well as syringes for her diabetes. Those prescriptions were recorded in the patient's chart on the front cover. Because the subject patient had returned for a single office visit on July 3, 1987, after an absence of almost three years, the Respondent determined at that time that he needed to do a full physical examination on her, as well as a pelvic exam. Although the Respondent did not perform either examination at the July 3, 1987, office visit, he made plans to do both shortly thereafter. The subject patient returned ten days later, on July 13, 1987, at which time the Respondent performed a complete physical examination of the patient. No pelvic examination was performed that day, because the Respondent was having her period. The Respondent asked the patient to return one week later for a pelvic examination. The subject patient returned on July 20, 1987, at which time a pelvic examination was performed. On that day there was no evidence of any irregular or unusual bleeding. The patient did have a vaginal infection that day. The vaginal infection was treated appropriately by the Respondent. In view of the vaginal infection, the patient was advised to return to the office one week later, at which time she would be examined again. The subject patient returned to the Respondent's office on August 7, 1987, for a follow-up pelvic examination, at which time the Respondent identified a small superficial laceration in the patient's vagina. The laceration was causing some slight bleeding. The Respondent noted that there was no bleeding from the cervical os, which indicated that the small laceration was the sole source of the patient's bleeding that day. As an additional follow-up, the Respondent ordered a sonogram. The sonogram was ordered in part because, due to the patient's obesity, the Respondent was unable to palpate her internal organs. The Respondent did not document any details concerning the vaginal laceration, such as the size of the laceration, the amount the laceration was bleeding, or the precise location of the laceration, because it was a very small laceration with very slight bleeding which was of very little medical significance. The Respondent did not refer the patient to a gynecologist after learning the results of the sonogram he ordered on August 7, 1987. The Respondent concluded that the 1987 sonogram results were not significantly different from the 1982 sonogram results. Such conclusion was reasonable under the circumstances. Accordingly, the 1987 sonogram results did not suggest any need for further investigation. The subject patient returned to the Respondent's office on August 24, 1987, at which time she had no complaints of any type of vaginal bleeding. She was being seen in order to follow up on her other complaints, notably her diabetes and her high blood pressure. The Respondent assumed that the vaginal laceration had healed and did not conduct a pelvic examination of the patient during that visit. After August 24, 1987, and before January 18, 1988, the Respondent saw and treated the subject patient once a month on four more occasions. The medical records for those four office visits do not mention the patient's menstrual history or whether she was bleeding on any of those occasions. During the four monthly visits between August of 1987 and January of 1988, the subject patient did not complain of any episodes of irregular vaginal bleeding. On January 18, 1988, the subject patient returned to the Respondent's office with complaints of irregular vaginal bleeding since having been the victim of a mugging during the previous month. The Respondent did not record any detailed information about the bleeding, such as her current menstrual condition, how much she was bleeding, or how often she was bleeding. The Respondent concluded that the bleeding was probably due to the patient's anxiety about the recent mugging incident. Nevertheless, he wanted to follow up on the irregular bleeding if it did not resolve on its own. To that end he discussed the matter with the patient and told her that if the irregular bleeding did not get better, she should come back and he would do a D & C. The Respondent noted in his record for that visit: "May need D & C if bleeding continues." In view of the patient's intelligence, the Respondent fully (and reasonably) expected she would tell him if she had any further irregular bleeding. The procedure known as D & C, or dilation and curretage, is a procedure wherein a physician obtains a sample of the lining of the uterus to evaluate it for possible abnormalities. The D & C procedure is commonly used to diagnose, or to rule out, endometrial cancer. Following the office visit on January 18, 1988, the subject patient presented to the Respondent's office on three other visits during each of which she did not have any complaints of irregular bleeding. The subject patient did not have any further gynecological complaints until December 21, 1989. On that day she returned to the Respondent's office with complaints of uncontrollable vaginal bleeding since 7:30 p. m. of the previous evening. During the course of the December 21, 1989, office visit, the subject patient told the Respondent that she had had her last regular menstrual period the week before. She also told him she was using condoms. During the course of the December 21, 1989, office visit the Respondent performed a pelvic examination of the patient and made a provisional or working diagnosis of dysfunctional uterine bleeding. He administered an injection of progesterone and instructed the patient to return in three days. He also instructed the patient to have another pelvic sonogram performed. Dysfunctional uterine bleeding is abnormal uterine bleeding not related to or caused by an organic problem such as cancer, polyps, fibroids, or infections. It is usually caused by an hormonal imbalance. In the case of a woman who is not post- menopausal and who presents with complaints of irregular vaginal bleeding, one of the differential diagnoses can be dysfunctional uterine bleeding. In such a case it is appropriate to administer progesterone prior to embarking on additional studies. In such a case the administration of progesterone is useful for two reasons: (1) if the progesterone is successful in stopping the irregular bleeding its success tends to confirm the differential diagnosis of dysfunctional uterine bleeding, and (2) if the progesterone is unsuccessful in stopping the irregular bleeding it tends to rule out the diagnosis of dysfunctional uterine bleeding and confirm the need for further investigation. Under the circumstances that existed on December 21, 1989, it was reasonable and appropriate for the Respondent to administer progesterone on the basis of a provisional or working diagnosis of dysfunctional uterine bleeding, because if the treatment was successful it would tend to confirm the provisional or working diagnosis and it the treatment was not successful it would rule out the provisional or working diagnosis. 6/ The fact that dysfunctional uterine bleeding was only a provisional or working diagnosis is illustrated by the fact that the Respondent at the same time ordered a sonogram in order to investigate other possible causes of the abnormal bleeding. A verbal report of the results of the sonogram ordered on December 21, 1989, was given to the Respondent's office by telephone on December 26, 1989. 7/ A written report of the results was provided shortly thereafter. The report of the sonogram ordered on December 21, 1989, indicated that the subject patient had an enlarged uterus measuring 18.8 x 9.3 x 10.8 centimeters. The 1989 sonogram report revealed that the patient's uterus was substantially larger than it had been at the time of the 1987 sonogram. The report of the December 21, 1989, sonogram included a recommendation for follow up examination of the uterus and the endometrial canal. The subject patient returned to the Respondent's office on December 26, 1989, at which time she told the Respondent that the bleeding had stopped. He asked her to return again in two weeks. When she returned twenty days later on January 15, 1990, she had started to again have occasional episodes of bleeding and spotting. The Respondent thereupon referred the patient for a gynecological consult. The subject patient was seen by a gynecologist, Dr. William Shure, on February 5, 1990. The patient provided Dr. Shure with a history that her last menstrual period had been on December 19, 1989. This last menstrual period history is the same history that was recorded by the Respondent on December 21, 1989. On February 5, 1990, Dr. Shure took cervical biopsies from the subject patient, and subsequently performed a D & C on the patient on February 23, 1990. The patient was then diagnosed with Stage II-B endometrial cancer. Following a total hysterectomy on April 5, 1990, the patient was diagnosed with Stage III-C endometrial cancer. Stage II-B endometrial cancer is cancer of the uterus with extension into the cervix. Stage III-C endometrial cancer is an advanced stage of cancer of the uterus which extends into the cervix and has metastasis to pelvic lymph nodes. The patient underwent chemotherapy for the cancer. The chemotherapy was unsuccessful and the patient expired on December 25, 1990. At all times material to this case the Respondent used a record- keeping methodology in his medical practice known as the SOAP method. This is an appropriate methodology for record- keeping in a medical practice. The Respondent's records regarding the subject patient demonstrate that he kept a running list of all medications prescribed for the patient. The Respondent's records regarding his care and treatment of the subject patient were sufficient to justify his course of treatment of the patient. 8/ The care, skill, and treatment applied by the Respondent in the treatment of the subject patient from July of 1987 through January of 1990 (the only time period at issue here) was reasonable under the circumstances and did not depart from the level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent's treatment of the subject patient did not constitute gross or repeated malpractice. 9/ The Respondent has not been the subject of any prior disciplinary proceedings.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in this case dismissing all charges in all three counts of the Amended Administrative Complaint. DONE AND ENTERED this 17th day of May 1996 at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 17th day of May 1996.
The Issue The issues in this case are whether Respondent violated Subsections 458.331(1)(m), 458.331(1)(t), and 458.331(1)(bb), Florida Statutes (2005),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the State of Florida agency charged with regulating the practice of medicine in Florida pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all times material to the Administrative Complaint, Dr. Labs was a licensed medical doctor within the State of Florida, having been issued license number ME 61579. Dr. Labs is certified by the American Board of Surgery and the American Board of Plastic Surgery. In April 2006, W.S. went to see Dr. Labs for a consultation. In the late 1980’s, W.S. had had breast implants placed by a physician in Texas. In 1995, another physician did a mastopexy to lift her breasts. W.S. wanted Dr. Labs to replace the breast implants that had been in place since the late 1980’s with smaller implants, to reduce the size of her breasts by excising tissue, and to lift the breasts with a mastopexy. She was under the impression that the implants which she currently had had been placed underneath the pectoral muscle, and she told Dr. Labs that she wanted to have the new, smaller implants also placed underneath the muscle, meaning subpectoral placement. Dr. Labs agreed to place the implants subpectorally. There are two ways that implants can be placed subpectorally. The first method involves placing the implant entirely under the muscle and then suturing the implant in place. There is very little migration of the implant with this method because the implant is tightly held by the muscle. The second method is called a dual-plane technique. In this method, a portion of the implant is placed under the pectoral muscle and a portion of the implant is covered by the glandular or lower part of the breast. Dr. Labs performed a bilateral reduction, mastopexy, and implant exchange on W.S. on April 25, 2006. His operative report described the procedure as follows: The patient was taken to the operating room after being marked in the standing position. She was placed in the supine position for smooth induction of anesthesia. Sequential compression boots were placed for DVT prophylaxis. The procedure began with de- epithelization of skin above each nipple for reinset. Scars were then excised around the nipple and from the vertical incision beneath the nipple to inframammary fold. Skin flaps were elevated and, then the central nipple pedicle preserved. Implants were removed, and breast tissue was excised laterally. The implants were then replaced with silicone implants after Betadine irrigation and surgical glove change. The removed implants were 220cc. The replaced implants were 175cc, and each breast was subjected to a 75 gram reduction. Towel clips were placed, and the patient was placed in the sitting position. Symmetry was excellent at the conclusion of the procedure. Multiplayer inset was then performed. The patient was placed in a sterile bulky dressing and Ace wrap. She returned to the recovery room in satisfactory condition, having tolerated the procedure well. Final sponge, needle and instrument counts were correct at the conclusion of the procedure. The patient was given explicit postoperative instructions for the care and maintenance of her wound and will be seen again in followup at the plastic surgery office. Dr. Labs took out the 220cc implants and placed 175cc implants in the same pocket where the 220cc implants had been placed. The 220cc implants which Dr. Labs removed had a small rim of the superior portion of the implants placed underneath the muscle. The remaining portion of the implants were subglandular. Dr. Labs placed the superior medial portion of the 175cc implants between .5 and 2.5 centimeters under the muscle, meaning that about ten percent of the implants were placed under the muscle. The remainder of the implants was subglandular. The method used by Dr. Labs was the dual-plane method and is considered to be a subpectoral placement. W.S. signed a consent form, which included an explanation of risks associated with open capsulectomy with breast implant exchange surgery. The risk of implant displacement was explained as follows: Displacement or migration of a breast implant may occur from its initial placement and can be accompanied by discomfort and/or distortion in breast shape. Difficult techniques of implant placement may increase the risk of displacement or migration. Additional surgery may be necessary to correct this problem. Subsequent to the surgery by Dr. Labs, W.S. began to experience problems with her breasts. The breasts were distorted, became an odd shape and stuck out more than her breasts had done with the implants placed by the Texas physician. Her breasts were bulging in the front and middle. W.S.’s breasts became uncomfortable, and W.S. was unable to lie on her stomach. The breasts did not look or feel natural; they were stiff, hard, and tight. The problems began to occur not long after the surgery; however, the distortion was not present until a month after the surgery. On December 6, 2006, W.S. visited Alexia Marciano, M.D., a board-certified plastic surgeon, for a consultation concerning the problems she was having with her breasts. On examination, Dr. Marciano noted that W.S. had pseudoptosis, which means there was some loose skin, but the nipple was still above the inframammary fold. Dr. Marciano observed that W.S.’s breasts were distorted, irregular in shape and position. There were capsular contractures, which are scar tissue that forms around the implants. The capsular contractures were a grade IV,2 which means that one could look at the breast and visually see the tightening. To Dr. Marciano, the implants appeared to be on top of the muscle, based on “the superficiality and the position of the implants in relation to the skin above and to the pectoralis muscle on the upper portion of the chest and on palpation.”3 W.S. advised Dr. Marciano that she wanted to have surgery to correct the problems she was having with her breasts and that she wanted to have smaller implants placed under the muscle. On January 19, 2007, Dr. Marciano performed a capsulectomy, which is moving the capsule or shell of the scar around the implant; an explantation of the silicone implants, which is removing the current implants; and an augmentation, which is putting in new implants. When Dr. Marciano made incisions in each breast to find the capsules, she found the capsules right beneath the subcutaneous tissue, which is basically right beneath the skin and above the pectoralis major muscle. Although Dr. Marciano found the implants which had been placed by Dr. Labs, above the major pectoralis muscle, she could not determine where the implants were actually placed by Dr. Labs at the time he performed the implant exchange on W.S. Dr. Marciano removed the silicone implants, identified the pectoralis muscle, incised the inferior edge of the pectoralis muscle, and dissected the plane underneath the muscle. Dr. Marciano placed new implants, which were 150cc’s, on both breasts. The new implants were placed entirely underneath the muscle, and the small opening that was made in muscle fascia was closed with sutures so that the implants were in a closed pocket. Capsular contraction, such as W.S. experienced, can cause the implants to move. Additionally, during the early stages after an implant has been placed, there is more potential for the implant to move before the capsule forms. Based on the evidence presented, the logical inference is that the capsular contraction caused the implants placed by Dr. Labs to move from underneath the pectoralis muscle so that the implants came to rest in a subglandular position as Dr. Marciano found them. There were no medical records admitted in evidence from the Texas physician who placed the original implants in the 1980’s. Based on what Dr. Labs found when he exchanged the implants, it is probable that the Texas physician used the dual- plane method to insert the implants, meaning that a portion of the implants were subglandular. This scenario comports with one of the hypotheses set forth by the Department’s expert, who surmised that, based on the preoperative photographs taken by Dr. Labs, it appeared that the Texas physician may have placed the original implants in a subglandular position rather than in a subpectoral position. If the Texas physician had used a dual- plane method and placed a small portion of the implants under the rim of the pectoralis muscle, then a large portion of the implants would appear to be placed in a subglandular position as surmised by the Department’s expert; when, in fact, the implants had been placed subpectorally as that term is commonly understood by plastic surgeons. Dual-plane placement also comports with W.S.’s distinct impression that the original implants had been placed under the muscle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Labs did not violate Subsections 458.331(1)(m), 458.331(1)(t), or 456.072(1)(bb), Florida Statutes, and dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of October, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2009.
