The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations contained in a five-count Administrative Complaint. The charges against the Respondent may be summarized as follows: Count One charges the Respondent with violating Section 458.331(1)(h), Florida Statutes (1985) , by failing to perform any statutory or legal obligation placed on a licensed physician. Count Two charges the Respondent with violating Section 458.331(1)(1), Florida Statutes (1985), by making deceptive, untrue, or fraudulent representations in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community. Count Three charges the Respondent with violating Section 458.331(1)(n), Florida Statutes (1985), by failing to keep written medical records justifying the course of treatment of the patient. Count Four charges the Respondent with violating Section 458.331(1)(q), Florida Statutes (1985), by prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. Count Five charges the Respondent with violating Section 458.331(1)(t), Florida Statutes (1985), by gross or repeated malpractice, or the failure to practice medicine with that level of care, skill, or treatment which is recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. The Respondent filed an answer to the Administrative Complaint. In his answer, the Respondent admits some of the factual allegations in the Administrative Complaint, but denies all allegations of wrongdoing. Following the hearing, a transcript of the proceedings at hearing was filed on September 16, 1987, and the parties were allowed fifteen days from that date within which to file proposed recommended orders. The Respondent filed a proposed recommended order on October 1, 1987, and the Petitioner filed one on October 2, 1987. Careful consideration has been given to the parties' proposed recommended orders, and specific rulings on all findings of fact proposed by the parties are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME0004527. Respondent's last known address is 463 Emerald Road, Ocala, Florida 32672. Ionamine is a brand name for a scheduled controlled substance as defined by Chapter 893, Florida Statutes. Respondent's treatment of patients for obesity included B-12 vitamin injections. Approximately two-thirds of the Respondent's practice is devoted to the treatment of obesity. The other third of the Respondent's practice is devoted to a general practice of medicine. The Respondent graduated from Indiana University Medical School in 1945, interned in 1946, and became licensed in the State of Florida in 1951. The Respondent served for two years in the Air Force during the Korean War, and then returned to Florida where he established a practice in Miami. He practiced in Miami until 1970, at which time he moved to Ocala, where he has practiced since 1970. The Respondent is a board certified anesthesiologist and graduated at the top 10 percent of his class from Indiana University. The Respondent subscribes to and reads many medical journals and articles, including those concentrating on bariatrics. The Respondent has purchased and reviewed the American Medical Association video and study guide concerning the treatment of obesity. The Respondent also has continued his post graduate studies. When a new patient comes to the Respondent's office for treatment for obesity, the patient is first given a questionnaire to fill out. Subsequently a medical history is obtained from the patient, and the patient is given a thorough physical examination. Usually, but not always, blood and urine samples are obtained from this patient for testing, and the patient is given an EKG. If this patient appears to be in good health, the Respondent puts the patient on a weight loss program consisting of a reduction of calories, an exercise program consisting of a thirty minute walk each day, and an appetite suppressant, usually Phentermine or Diethylpropion. Phentermine and Diethylpropion are both helpful in the treatment of obesity. The Respondent also encourages each patient to take a vitamin injection on a weekly basis, regardless of whether there is any evidence of vitamin deficiency or pernicious anemia. Thereafter, the patient is instructed to return to the Respondent's office once a week, at which time an R.N. or L.P.N. checks their blood pressure, pulse, respiration, and weight. The nurse questions each patient to find out how they are reacting to the weight loss program. If everything appears to be satisfactory, the patient receives another seven-day supply of diet suppressant medication and a vitamin injection. The Respondent sees the patient every fourth visit (once a month) to determine what progress the patient is making. The Respondent routinely commences treatment of obesity patients, including the prescription of or dispensing of Phentermine or Diethylpropion, before reviewing the results of blood and urine tests. The Respondent continues obesity patients on an appetite suppressant (usually Phentermine or Diethylpropion) at the rate of seven 30 mg. pills per week as long as the patient continues to lose one percent of their body weight per week until their ideal weight is reached. In January of 1986, the Respondent saw a patient by the name of Sandy Wilson who came to his office for the treatment of obesity. The Respondent gave Ms. Wilson a thorough physical examination. The Respondent also questioned Ms. Wilson about her medical history. During the course of relating her medical history, Ms. Wilson complained of swelling of her hands and feet. The Respondent did not obtain blood or urine samples from Ms. Wilson, nor did he do an EKG on Ms. Wilson. Following his examination of Ms. Wilson, the Respondent placed her on a 1000 calorie per day diet, recommended that she exercise by walking 30 minutes each day, and dispensed to her a seven-day supply of Ionamine, which is a form of Phentermine. The Respondent also wrote a prescription for Ms. Wilson for thirty tablets of Furosemide 40 mg. Furosemide is a rather potent diuretic. The Respondent also suggested that Ms. Wilson have a vitamin injection, but she refused the injection. Ms. Wilson also refused to have blood drawn, saying she was afraid of needles. The Respondent told Ms. Wilson if she changed her mind she could have the blood drawn and the vitamin injection on her next visit. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not contain sufficient information to show that Ms. Wilson received a thorough physical examination. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not show that an adequate medical, social, or family history was obtained from Ms. Wilson. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not mention that Ms. Wilson had or complained of edema. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not contain the results of any blood or urine tests or the results of any EKG. Ionamine and Furosemide should not be dispensed or prescribed to a patient for obesity and edema without first giving the patient a thorough physical exam, obtaining an adequate medical history, and obtaining the results of laboratory analysis of blood and urine samples and obtaining an EKG. This is in part because a patient may have the beginnings of some illness, such as diabetes or hypothyroidism, that are not detectable by a physical examination alone. The dispensing of Ionamine and the prescription of Furosemide to Ms. Wilson without first obtaining the results of laboratory analysis of blood and urine samples and obtaining an EKG is a failure to practice medicine with that level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. A physician's records must be sufficient to justify the treatment given to the patient. In particular such records should contain complete information regarding examinations, histories, and laboratory tests. Because the Respondent's records regarding Ms. Wilson did not contain complete information in this regard, the Respondent has failed to keep written medical records justifying the course of treatment of the patient. Vitamin injections do not have any direct therapeutic effect in the treatment of obesity. They do not cause weight loss, nor do they contribute to weight loss. Nevertheless, periodic vitamin injections are commonly given to patients who are being treated for obesity as a form of "behavior modification." The goal of the behavior modification is to have the patient return for follow- up treatment on a regular basis. Vitamin injections do not pose any significant risk to the patient.
Recommendation Based on all of the foregoing, it is recommended that the Board of Medicine issue a final order in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Finding the Respondent guilty of the violations charged in Counts Three, Four, and Five of the Administrative Complaint; and Imposing the following penalty on the Respondent: (1) an administrative fine in the amount of one thousand dollars ($1,000.00), and (2) placement of Respondent's license on probation for a period of two years under conditions to be prescribed by the Board. DONE and ENTERED this 4th day of February, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2031 The following are my specific rulings on all of the findings of fact proposed by the parties. As the parties are well aware, there is a large amount of conflict in the testimony in this case, especially in the expert witness testimony. To the extent that the testimony of the expert witnesses on behalf of the Petitioner (Dr. Clark and Dr. Weiss) conflicts with the testimony of the expert witnesses on behalf of the Respondent (Dr. Haimes and Dr. Asher), I have for the most part been persuaded by, and have incorporated into the findings of fact, the version set forth by the Petitioner's witnesses. Among other things, the version set forth by the Petitioner's expert witnesses more often appeared to be more logical, more reasonable and well reasoned, and more consistent with other evidence in the case. Findings proposed by the Petitioner: Paragraph 1: Accepted. Paragraph 2: Accepted in substance, with some irrelevant details deleted. Paragraph 3: Accepted in substance with some additional findings in the interest of clarity and accuracy. Paragraphs 4 and 5: Accepted. Paragraphs 6 and 7: Accepted in substance with additional clarifying details. Paragraph 8: Rejected as not fully supported by competent substantial evidence. Paragraphs 9 and 10: Accepted in substance with additional clarifying details. Paragraph 11: Accepted. Paragraph 12: Rejected as not supported by persuasive competent substantial evidence. Paragraph 13: Accepted. Paragraphs 14 and 15: Rejected as constituting argument rather than proposed findings of fact. (The failure to include argument in the findings of fact is not a comment upon the merits of the argument.) Paragraphs 16 and 17; Accepted in substance. Findings proposed by the Respondent: By way of clarification of some of the rulings which follow, it is noted that a substantial number of the findings proposed by the Respondent begin with the words "Dr. So-and-so testified" or the words "Dr. So-and-so believes." Such findings are, in most cases, nothing more than summaries of the testimony and might well have been rejected on that basis alone. However, I have chosen to direct attention to the substance of such proposals, overlooking their form, and have treated each such proposal as a proposed finding of the fact testified to or the fact believed by the witness. Accordingly, when such proposals are rejected as being contrary to the greater weight of the evidence, that is not to say that the witness did not so testify or did not so believe, but that the fact testified to or believed by the witness is contrary to the greater weight of the evidence. Paragraphs 1, 2, 3, 4, and 5: Accepted. Paragraph 6: Most of this paragraph has been accepted, but many of the statements have been made subject to additional qualifications to be fully consistent with the evidence. Some details have been omitted as not supported by competent substantial evidence. A major qualification is that the procedures described in this paragraph are performed on many, but not all, of the Respondent's patients. Paragraph 7: Rejected as subordinate and unnecessary details. It has already been found that the Respondent gives thorough physical examinations. Paragraph 8: Accepted. Paragraphs 9 and 10: Rejected as irrelevant. Paragraph 11: Accepted in substance. Paragraph 12: First sentence is accepted in substance. Second sentence is rejected as constituting an opinion which is contrary to the greater weight of the evidence. Paragraphs 13 and 14: Rejected as constituting subordinate and unnecessary details. Paragraph 15: Rejected as constituting subordinate and unnecessary details. Also, last clause of first sentence is not supported by competent substantial evidence. Paragraph 16: Rejected as constituting subordinate and unnecessary details. Paragraph 17: Rejected as irrelevant. Paragraphs 18, 19, 20: Rejected as irrelevant and as constituting subordinate and unnecessary details. Paragraph: 21: Rejected as subordinate and unnecessary details. Also rejected as inaccurate because there were other reasons for the opinion. Paragraphs 22, 23, 24, 25, 26, 27, and 28: Rejected as irrelevant. Paragraph 29: First two sentences rejected as subordinate and unnecessary details. Third sentence rejected as irrelevant because it ignores and omits the context of the statement. Paragraph 30: Rejected as unnecessary. Paragraphs 31 and 32: Accepted in substance with additional clarifying details. Paragraph 33: Rejected because an important detail of the proposal is not supported by competent substantial evidence. Paragraph 34: Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. Paragraphs 35 and 36: Rejected as irrelevant. Paragraph 37: Rejected as contrary to the greater weight of the evidence. Paragraph 38: Rejected as subordinate and unnecessary details. Paragraph 39: Rejected as irrelevant and as subordinate and unnecessary details. Paragraph 40: Rejected as irrelevant. Paragraph 41: Rejected as subordinate and unnecessary details, because Dr. Haimes did not witness the examination and treatment of the patient. Paragraph 42: Rejected as irrelevant. Paragraph 43: Rejected because the witness's use of vitamin injection is irrelevant in light of other evidence and because the witness's opinion that vitamin injections are acceptable world wide is rejected as not persuasive. Paragraph 44: Rejected as contrary to the greater weight of the evidence. Paragraph 45: Rejected as irrelevant; the witness's beliefs notwithstanding, the greater weight of the evidence is to the contrary. Paragraph 46: Rejected as subordinate and unnecessary. Paragraph 47: First three sentences rejected as irrelevant. Last sentence rejected as contrary to the greater weight of the evidence. Paragraph 48: Rejected as contrary to the greater weight of the evidence. Paragraph 49: The first, second, and fourth sentences are rejected as contrary to the greater weight of the evidence. The third sentence is rejected as irrelevant. Paragraph 50: Rejected as contrary to the greater weight of the evidence. Paragraph 51: First two sentences rejected as contrary to the greater weight of the evidence. Last sentence accepted in substance. Paragraph 52: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is accepted in substance. Third and fourth sentences are rejected as subordinate and unnecessary details. Paragraph 53: First sentence rejected as irrelevant. Second sentence rejected as contrary to the greater weight of the evidence. Paragraph 54: Rejected as contrary to the greater weight of the evidence. Paragraph 55: Rejected as irrelevant. Paragraph 56: First sentence is rejected as contrary to the greater weight of the evidence. The second sentence is rejected as irrelevant. Paragraph 57: Rejected as subordinate and unnecessary. Paragraph 58: Rejected as contrary to the greater weight of the evidence. Paragraph 59: Rejected as subordinate and unnecessary details. Paragraph 60: Rejected as contrary to the greater weight of the evident. Paragraph 61: Rejected as irrelevant. Paragraph 62: First two sentences rejected gas contrary to the greater weight of the evidence. Third sentence accepted in substance. Last sentence rejected as irrelevant. Paragraph 63: First sentence rejected as irrelevant. Second sentence accepted in substance. Third sentence rejected as contrary to the greater weight of the evidence. Paragraph 64: Rejected as irrelevant. Paragraph 65: Rejected because the opinions in this paragraph are contrary to the greater weight of the evidence. Paragraph 66: First and third sentences rejected as subordinate and unnecessary details. Second and fourth sentences rejected as contrary to the greater weight of the evidence. Paragraph 67: Rejected as contrary to the greater weight of the evidence. Paragraph 68: Rejected as irrelevant. Paragraphs 69 and 70: Rejected as contrary to the greater weight of the evidence. Paragraph 71: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Francine C. Landau, Esquire Inman and Landau, P.A. 2252 Gulf Life Tower Jacksonville, Florida 32207 H. Edward Dean, Esquire 201 Northeast Eighth Avenue Suite 100 Ocala, Florida 32670 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Conclusions The EMT owed a duty of care to Ms. Hughes. The EMT breached that duty of care by administering the wrong medication to Ms. Hughes. The EMT was employed by the County and acting within the scope of his employment at the time of the incident. As a result, the EMT’s negligence is attributable to the County. Ms. Hughes was injured as a result of the negligent medical care provided by the EMT. The medication caused her to go into respiratory arrest, and it is undisputed that at least “some” of Ms. Hughes’ memory problems and cognitive deficiencies are attributable to the negligent medical care provided by the EMT. However, Dr. Conrad’s opinion that “at least half or more” of Ms. Hughes deficiencies are due to the negligent medical care was unpersuasive in light of her extensive history of psychological and physical problems. The $200,000 settlement agreed to by the County was not unreasonable in light of Dr. Stein’s opinion that “some” of Ms. Hughes’ current condition is attributable to the negligent medical care provided by the EMT. A jury award could easily have exceeded that amount. That said, in my view, the $100,000 already paid by the County more than adequately compensates Ms. Hughes for the injuries that she suffered and that she may continue to suffer in the future as a direct result of the negligent medical care provided by the EMT. Simply put, I was not persuaded that the negligent medical care provided by the EMT is a material contributing cause to Ms. Hughes’ current condition in light of her extensive history of medical and psychological problems or that her memory problems and cognitive deficiencies are as bad as she says they are. LEGISLATIVE HISTORY: This is the first year that this claim has been presented to the Legislature. ATTORNEYS’ FEES AND LOBBYIST FEES: The attorney’s fees are less than the 25 percent allowed by Section 768.28(8), F.S. The claimant’s attorney took only $20,000 in fees from the initial $100,000 payment, and she represented at the Special Master hearing that she intends to take no more than $10,000 in attorney’s fees for the claim bill. The lobbyist’s fees – 5 percent of the final claim -- are in addition to the attorney’s fee. There are no outstanding costs. If the claim is paid at $100,000, Ms. Hughes will receive $85,000, her attorney will receive $10,000, and the lobbyist will receive $5,000. RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 42 (2008) be reported UNFAVORABLY. Respectfully submitted, T. Kent Wetherell Senate Special Master cc: Senator Tony Hill Representative Dave Murzin Faye Blanton, Secretary of the Senate House Committee on Constitution and Civil Law Karen Camechis, House Special Master Counsel of Record
Findings Of Fact Angel was born on October 14, 2015, at Orlando Health Hospitals located in Orlando, Florida. Based on the hospital records in evidence, Louis Stern, M.D., was the delivering physician for Angel’s birth. Dr. Stern was not a “participating physician” under the Plan at the time Angel was born. See § 766.302(7), Fla. Stat. (Dr. Kuffskie was a “participating physician” for the year in which the injury occurred.) Upon receiving the Petition, NICA retained Donald Willis, M.D., an obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Angel’s medical records. NICA sought to obtain an opinion whether there was an injury to Angel’s brain or spinal cord at birth caused by oxygen deprivation or mechanical injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period, and whether that injury rendered Angel permanently and substantially mentally and physically impaired. Dr. Willis reviewed Angel’s medical records and opined, within a reasonable degree of medical probability: [T]here was an apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma during labor, delivery and the immediate post-delivery period. The oxygen deprivation resulted in brain injury. Dr. Sigurdardottir also reviewed Angel’s medical records, as well as examined Angel on August 1, 2018. Dr. Sigurdardottir opined, within a reasonable degree of medical probability: lthough there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury, Angel is not found to have substantial delays in motor abilities. Angel is found to have mild to moderate delays in mental abilities, with a language delay noted on her exam. She has made good progress with her developmental delays and prognosis for full motor and metal recovery is good. A review of the file reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their opinions are credible and persuasive. Based on the opinions and conclusions of Dr. Willis and Dr. Sigurdardottir, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed the Unopposed Motion for Summary Final Order asserting that Angel has not suffered a “birth-related neurological injury” as defined by section 766.302(2). Neither Petitioners nor Intervenor oppose NICA’s motion.
Findings Of Fact Isabella Delvalle was born on January 17, 2012, at Orange Park Medical Center in Orange Park, Florida. Isabella weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Isabella’s medical records. In a medical report dated May 30, 2015, Dr. Willis made the following findings and expressed the following opinion: Additional medical records from Baptist Hospital were reviewed (pages 618-1546). As discussed in the previous report, dated 04/07/2015, the baby was delivered by Cesarean section following failed attempt at vacuum delivery. Apgar scores were reported as 8/9. Cord blood gas had a normal pH of 7.26. This would suggest there was no oxygen deprivation during labor or delivery. An ARNP was present at delivery to manage the newborn. The baby was felt to be stable enough that the nurse left the delivery room at about two minutes after delivery to assist with another delivery. When she returned after about five minutes, the baby was having some respiratory distress. The baby was transferred to the NICU for observation. Seizure activity developed within about 24 hours of life. EEG was abnormal and consistent with seizure activity. MRI on DOL 3 was reported as normal. Two additional MRI’s over the next few months were also reported as normal. However, MRI at four months of age showed enlargement of the lateral ventricles since the prior exam and was consistent with brain volume loss. Genetic evaluation was negative. Microarray was negative. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby’s brain during labor or delivery. I do not have any opinion about oxygen deprivation during the immediate post delivery period. Dr. Willis’ opinion that there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby’s brain during labor or delivery is credited. Respondent retained Raymond Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to evaluate Isabella. Dr. Fernandez reviewed Isabella’s medical records and performed an independent medical examination on her on February 2, 2015. Dr. Fernandez made the following findings and summarized his evaluation as follows in a medical report dated February 10, 2015: IMPRESSION: There is ample evidence for substantial mental and motor impairment that is likely to be permanent, but etiology is unknown. Based on record review, history and physical examination, etiology cannot be determined at this time. There is no evidence in the medical record made available to me for brain or spinal cord injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate post delivery period of resuscitation. However, note that I have not yet reviewed the Wolfson’s Children’s Hospital NICU admission, nor have I reviewed brain imaging studies presumably performed while at Wolfson’s. Records and imaging studies have been requested and an addendum to this report will be sent to NICA upon further review. On April 12, 2015, Dr. Fernandez wrote an addendum to the above medical report after reviewing additional records: I recently received records from Wolfson Children’s Hospital where Isabella was admitted on January 18, 2012 and discharged on May 24, 2012 and two additional admissions to the hospital were reviewed. Also reviewed were brain imaging studies, including two brain CTs and four brain MRIs. * * * In conclusion, as previously states [sic] there is ample evidence for substantial mental and physical impairment that likely will be premanent. However, etiology is unknown. There is no evidence in the record for oxygen deprivation or mechanical injury during labor, delivery, or the immediate post delivery period of resuscitation to be the explanation for Isabella’s substantial mental and motor impairment. There was a small amount of subdural blood within the posterior fossa, but this was not of clinical significance. This bleeding probably occurred during labor and delivery and was possibly due to the attempted vacuum extraction that was unsuccessful. Again, this is not felt to be clinically significant. There is no evidence for parenchymal brain hemorrhage, brain swelling, or brain injury due to oxygen deprivation or mechanical injury. Dr. Fernandez’s opinion that there is no evidence of oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period of resuscitation to be the explanation of Isabella’s substantial mental and motor impairment is credited. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinions of Dr. Willis and Dr. Fernandez that there was no obstetrical event that resulted in oxygen deprivation or mechanical injury to the baby’s brain during labor, delivery or the immediate post-delivery period.
