The Issue Whether Petitioner's proposed treatment, fluoroscopic radiofrequency thermoneurolysis, is experimental.
Findings Of Fact Petitioner, Douglas J. Phillips, Jr., D.D.S. (Dr. Phillips), is a licensed dentist in the State of Florida. Sometime in January, 1993, Dr. Phillips proposed using the procedure, fluoroscopic radiofrequency thermoneurolysis to treat a patient. This procedure involves destruction of tissue by the application of high heat, at approximately two hundred degrees Fahrenheit. A probe or cannula (insulated needle) is placed through skin, subcutaneous tissue and muscle to reach into where the tendon or ligament inserts to the bone or to where there is a small nerve root. An electrode goes through the insulated needle. Heat is then applied at approximately two hundred degrees. The treatment causes a small scar on the bone or destroys the nerve. The purpose of the procedure is to treat head and facial pain. The patient has been diagnosed with the degeneration of the temporomandibular joint on the left side, advanced degenerative osteoarthritis, and fibrous ankylosis with osteroarthritis of the left temporomandibular joint. She experiences head and facial pain. Dr. Phillips had performed fluoroscopic radiofrequency thermoneurolysis on the patient in September, 1991. CIGNA approved and paid for the procedure. The patient experienced relief from the pain for almost two years after the procedure was done. The patient is now experiencing pain again, and Dr. Phillips proposes to treat her again with fluoroscopic radiofrequency thermoneurolysis. By letter dated January 29, 1993, Intervenor CIGNA, informed Dr. Phillips that his request to perform the proposed treatment was not authorized. CIGNA'S basis for denial of approval was that the procedure was experimental and was not recognized by the American Dental Association. On or about August 27, 1993, Dr. Phillips requested that Respondent, the Department of Labor and Employment Security, Division of Workers' Compensation (Division), review the procedure pursuant to Section 440.13(1)(d), Florida Statutes (1993) and Rule 38F-7.0201, Florida Administrative Code. On November 22, 1993, the Division issued a determination that fluoroscopic radiofrequency thermoneurolysis was experimental. Dr. Phillips was taught the proposed procedure eight years ago by Dr. Ernst, a dental practitioner in Alabama. Dr. Phillips spent four days observing Dr. Ernst in Dr. Ernst's office and one week of training in a hospital under the direction of Dr. Ernst. The first procedure performed by Dr. Phillips was two years after his training with Dr. Ernst. Prior to performing the procedure, Dr. Phillips also attended a one hour lecture on the procedure given by another dentist. No other dentist in Florida practices this procedure. The American Dental Association has not endorsed the procedure. Radiofrequency thermoneurolysis is not on the American Dental Association's list of approved dental therapeutic modalities. It is not taught in any dental school or school of oral surgery. Dr. Phillips is not aware of any mention of the proposed procedure in any dental or oral surgical textbooks. Only four other dentists in the United States practice this procedure. There is no published written protocol regarding this procedure except for an article written by Dr. Wilk, which consists of a two paragraph treatment of the subject. Fluoroscopic radiofrequency thermoneurolysis is not listed in the American Dental Association's Current Dental Terminology, nor does the proposed treatment have a code assigned to it. Donna M. Reynolds is a supervisor of the policy section in the Rehabilitation and Medical Services Unit of the Division. When she received the request from Dr. Phillips to review the proposed procedure, she contacted three consultants for the Division: Dr. Richard Joseph, Dr. Martin Lebowitz and Dr. Davis. She received responses from Drs. Joseph and Lebowitz indicating that they considered the procedure to be experimental. Dr. Davis did not respond to her request. Dr. Joseph is a board certified oral and maxillofacial surgeon. When asked by the Division to review the proposed treatment, he reviewed all the documentation submitted by the Division, which included the documentation that Dr. Phillips had submitted in support of his request. Dr. Joseph also did a medline search. Medline is a computerized medical library search that is commonly performed by physicians to research or review all of the current medical literature. The medline search of 301,000 articles revealed only two or three articles relating to the use of radiofrequency thermoneurolysis. Dr. Joseph also consulted with Dr. Gremillion, the chairman of the Department of Facial Pain at the University of Florida, College of Dentistry. Based on his research, Dr. Joseph opined that the proposed procedure was experimental. It was Dr. Joseph's opinion that radiofrequency thermoneurolysis was outside the practice parameters in the general practice of dentistry. Dr. Lebowitz, an oral and maxillofacial surgeon and former co-director of the Facial Pain Clinic at the University of Florida, reviewed the documentation sent by the Division with its request to review the proposed treatment. The documentation included articles which had been supplied by Dr. Phillips to the Division. It was Dr. Lebowitz's opinion that none of the articles submitted by Dr. Phillips were scientifically acceptable based on the lack of blind studies, the quantity of patients being studied, and the lack of studies performed in different locations. In researching the issue, Dr. Lebowitz contacted Dr. Jim Ruskin, the head of the residency program in the Oral Maxillofacial Surgery Department at the College of Dentistry, University of Florida. Dr. Ruskin is considered a world authority on the management of facial pain. Dr. Lebowitz also spoke with Dr. John Gregg, a Virginia dental practitioner who previously ran the facial pain clinic at Chapel Hill at the University of North Carolina. Additionally, Dr. Lebowitz spoke with Dr. Castellano, an oral and maxillofacial surgeon in Tampa, Florida. Based on his research, Dr. Lebowitz concluded that radiofrequency thermoneurolysis was experimental. Dr. John Roland Westine is board certified in oral maxillofacial surgery and is a licensed dentist. He has studied the use of electrical energy in destroying tissue and has used electro-surgical equipment for thirty years. Dr. Westine is familiar with radiofrequency thermoneurolysis. Prior to the final hearing, he had reviewed the records of forty patients who had been treated with radiofrequency thermoneurolysis. It was his opinion that the proposed procedure was not safe and could cause the following problems: irreparable damage to vision, stroke, motor deficiencies, damage to facial nerves, nerve deficits, sensory deficits, abscess formations and parotid fistulas. Based on the preponderance of the evidence, Dr. Phillips has not demonstrated that the fluoroscopic radiofrequency thermoneurolysis is widely accepted by the practicing peer group, that the procedure is based on scientific criteria, or that the procedure is reasonably safe. Radiofrequency thermoneurolysis, including fluoroscopic radiofrequency thermoneurolysis, is an experimental procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered determining that fluoroscopic radiofrequency thermoneurolysis is experimental and denying approval for the procedure. DONE AND ENTERED this 29th day of August, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 29th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-762 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Petitioner did not designate which portion of his proposed recommended order contained the proposed findings of fact and which portion contained the proposed conclusions of law; thus, I am unable to address the paragraphs which Petitioner may contend are his proposed findings of fact. Respondent's Proposed Findings of Fact. Paragraphs 1-5: Accepted in substance. Paragraphs 6-7: Accepted that that is what the statutes and rule say. Paragraph 8: The first sentence is accepted in substance. The second sentence is accepted to the extent that the Division does submit the documentation to consultants. The evidence established that the proposed treatment is not for use in the aid or confirmation of a diagnosis; therefore, the Division would not be required to submit the documentation to four consultants based on Rule 38F-7.0201, F.A.C. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraph 11: Rejected as unnecessary. Paragraphs 12-15: Accepted in substance. Paragraph 16: Rejected as constituting argument. Intervenors Proposed Findings of Fact. Paragraphs 1-2: Accepted in substance. Paragraph 3: Rejected as unnecessary detail. Paragraphs 4: Accepted. Paragraph 5: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as unnecessary detail. Paragraphs 8-9: Accepted to the extent that Dr. Phillips desires to use the proposed treatment. The remainder is rejected as unnecessary. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as unnecessary. Paragraphs 12-15: Accepted in substance. Paragraph 16: Rejected as unnecessary. Paragraph 17: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 18: Accepted in substance. Paragraph 19: The first four sentences are accepted in substance. The remaining is rejected as unnecessary. Paragraphs 20-21: Accepted in substance. Paragraphs 22-31: Rejected as unnecessary. Paragraphs 32-35: Accepted in substance. Paragraph 36: Rejected as unnecessary. Paragraphs 37-39: Accepted in substance. Paragraphs 40-41: Rejected as unnecessary. COPIES FURNISHED: Robert R. Johnson, Esquire Post Office Box 3466 West Palm Beach, Florida 33402 Michael Moore, Esquire Office of the General Counsel Department of Labor & Employment Security 2012 Capitol Circle Southeast, Suite S-307 Tallahassee, Florida 32399-2189 Nancy Lehman, Esquire Neil J. Hayes, P.A. 224 Datura Street, Suite 601 West Palm Beach, Florida 33401 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion Department of Labor and Employment Security General Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152
The Issue The issue is whether Respondent's Florida license to practice medicine should be revoked for malpractice under section 458.331(1)(t), Florida Statutes (2006).
Findings Of Fact Respondent is licensed to practice medicine in Florida, holding license number ME 66823. He is a radiologist and is certified by the American Board of Orthopedic Radiology and Diagnostic Radiology. On June 17, 2004, the Board of Medicine (Board) disciplined Respondent's medical license by issuing a letter of concern, imposing a $15,000 fine, assessing $4,010.59 in costs, requiring eight hours of continuing medical education, and prohibiting him from treating or prescribing medication to members of his family. On or about October 4, 2006, while working at Drew Medical, Inc., Respondent performed a diagnostic procedure called an intravenous pyelogram (IVP) without tomograms for Patient G.P., who had complained of right-side pain and had a history of kidney stones. An IVP without tomograms is a series of time- lapse x-rays using a dye material to provide radiographically contrasting images to detect a stone in a kidney or ureter. The resulting x-ray images revealed a partial obstructing stone in the right-side kidney/ureter area, which Respondent detected and reported. One of the resulting x-ray images contained an anomaly having the classical appearance of an abdominal aortic aneurysm, including conspicuous tissue displacement and rim calcification. It had an elongated, water balloon-type appearance with calcifications on one of the walls. It was alarming or life- threatening in size, such that it could cause death by bleeding. Respondent did not mention the aneurysm in his report or recommend any further evaluation of the anomaly. Although he was tasked to look for kidney stones, Respondent's failure to report the aneurysm or recommend any further evaluation of the anomaly fell below the level of care, skill, and treatment that is recognized by reasonably prudent, similar physicians as being acceptable. Patient G.P. was admitted to Orlando Regional Hospital with a ruptured abdominal aortic aneurysm on October 6, 2006. Attempts were made to repair the rupture, but they were not successful. The patient died on October 12, 2006. By his conduct in disappearing without a trace, despite the diligent efforts of DOH to find him, and not participating in any manner in the hearing he requested to dispute the Administrative Complaint, Respondent effectively abandoned his license to practice medicine in Florida.
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 medical malpractice, revoking his medical license, and imposing a $10,000 administrative fine. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 25th day of July, 2012. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Robert Dean Marshall, M.D. Apartment 310 400 East Colonial Drive Orlando, Florida 32803 Robert Dean Marshall, M.D. 5987 Southwest Moore Street Palm City, Florida 34990 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Joy Tootle, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue for determination is whether Respondent violated Section 466.028(1)(x), Florida Statutes (2001), by failing to refer patient L.D. to a specialist for evaluation and treatment of numbness of her tongue. (All statutory references are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of dentistry in Florida pursuant to Section 20.43 and Chapters 456 and 466. Respondent is licensed as a dentist in Florida pursuant to license number DN9676. Respondent is a general dentist. Respondent practices dentistry in Cape Coral, Florida, and has practiced dentistry for approximately 18 years. Respondent has no prior discipline against his license. The patient at issue is identified in the Administrative Complaint as L.D. The parties stipulated that L.D. is the same person identified in Respondent's medical records as L.V. and in the Transcript as L.W. L.D. is a female who was 19 years old when Respondent removed her four wisdom teeth on February 26, 1998. At the time, Respondent's records correctly identified the patient as L.V. L.V. subsequently married D.D. who was her boyfriend at the time. L.V. is now L.D. L.D. and D.D. were both patients of Respondent. L.D. suffered an injury to her lingual nerve when Respondent extracted her wisdom teeth. Lingual nerve injury is a foreseeable risk of wisdom tooth extraction, and the parties agree that Respondent properly disclosed that risk to L.D. prior to extracting her wisdom teeth. The symptoms of lingual nerve injury include paresthesias, i.e., numbness, of the tongue. The applicable standard of care for lingual nerve injury is observation and, under certain circumstances, referral to an oral and maxillofacial surgeon ("oral surgeon"). Surgery for symptoms of a lingual nerve injury may be exploratory, or it may be undertaken to perform a nerve grafting procedure. One of the risks of such surgery is dyscesthesia, i.e., pain, thereby making the symptoms worse rather than better. Therefore, surgery is not appropriate unless the patient experiences severe or debilitating pain, lip biting and cheek biting, or cannot function. The prudent dentist should observe the patient over time to determine whether the patient is improving and to determine the nature and scope of the patient's symptoms. The Administrative Complaint contains two essential allegations against Respondent. One allegation is that Respondent failed to diagnose the lingual nerve injury. The other allegation is that Respondent failed to refer L.D. to an oral surgeon. Respondent properly diagnosed the lingual nerve injury to L.D. After extracting L.D.'s wisdom teeth on February 26, 1998, Respondent examined L.D. in 1998 on February 27; March 5, 12, and 26; April 30; May 4; and July 8. L.D. did not call or seek an appointment with Respondent between May 4 and July 8, 1998. The first examination on February 27, 1998, was routine. Respondent checked to make sure L.D. had no signs of any complications, gross infection, or pus from the area of the surgery. L.D. had no complaints of numbness. Respondent instructed L.D. to return on March 5, 1998. On March 5, 1998, L.D. complained for the first time of numbness on both sides of her tongue. Respondent properly examined and diagnosed the cause as lingual nerve injury. By using an explorer to identify the areas of paresthesia, or numbness, Respondent determined that the right tip of L.D.'s tongue did not respond to the explorer, the right mid-tongue did respond, the left tip did not respond, and the left mid-tongue did not respond. Respondent also determined that both lingual tissue areas, i.e., the areas toward the tongue, did not respond to the explorer. Respondent properly treated L.D. after diagnosing the lingual nerve injury. Respondent observed L.D. for approximately four months to determine the nature and scope of L.D.'s symptoms. L.D.'s paresthesia of the tongue improved during the four months immediately following the removal of her wisdom teeth. After examining and diagnosing L.D. on March 5, 1998, Respondent explained to L.D. that the numbness may be either transient or permanent and that she was to return in one week for observation. L.D. returned to Respondent's office on March 12, 1998. Respondent stated that the feeling was coming back to her tongue, especially on her left side, and that she felt tingling. L.D. complained only of a tingling sensation on the right side of her tongue. L.D. did not complain that her tongue was numb or that she was biting her tongue. L.D. stated that her tongue was still a little bit numb, and it was tingling a little bit on the right side. A tingling sensation is hyperesthesia or paresthesia. Hyperesthesia can be an indication that the lingual nerve is repairing or healing. It indicates that the nerve is intact, that nerve conduction is occurring, and may indicate a potential for spontaneous self-repair. Respondent instructed L.D. to return for observation in two weeks. L.D. returned to Respondent's office on March 26, 1998. L.D. stated the feeling had returned to the left side of her tongue and that the right side of her tongue was still tingling. Respondent instructed L.D. to return for observation in six weeks. L.D. returned to Respondent's office on April 30, 1998. L.D. stated that she no longer had sensitivity on the right side of her tongue. The comment that she had "no sensitivity" indicated that the patient had none of the tingling sensation that had been her only complaint on March 26, 1998. L.D. returned to Respondent's office on May 4, 1998, for a dental prophylaxis, i.e., cleaning. L.D. did not complain of any numbness or tingling on May 4, 1998. On July 8, 1998, L.D. and D.D. both visited Respondent's office for dental care. D.D.'s visit was routine and not material to this proceeding. L.D. returned to Respondent's office and reported conflicting symptoms. L.D. indicated that she had feeling in her lips, but did not respond to the explorer on the gum in the front or the back of the teeth or in the areas of the tongue in which she had previously indicated that sensation had returned. The symptoms displayed by L.D. on July 8, 1998, included symptoms of buccal nerve damage. The buccal nerve goes to the gum and cheeks and is different from the lingual nerve. Prior to July 8, 1998, L.D. had not previously shown any signs of buccal nerve damage. Because of these conflicting complaints, Respondent referred L.D. to an oral surgeon on July 8, 1998. Respondent referred L.D. to the Southwest Florida Oral Surgery Associates ("Southwest"). Respondent has referred patients exclusively to Southwest for approximately 10 years. Respondent's records for July 8, 1998, do not include an express statement that he was referring L.D. to an oral surgeon. However, the records include a notation, "PTR for records," that indicates L.D. was to return for her records. The notation in the records is consistent with Respondent's longstanding protocol when referring a patient to a specialist. The protocol is to have the patient's records copied and prepared for the patient to pick them up and deliver to the specialist. On July 13, 1998, D.D. obtained copies of the records for L.D. and for D.D. from Respondent's office. The records included a written referral form for L.D. in accordance with Respondent's protocol. Respondent's office staff inadvertently filed Respondent's copy of the written referral form for L.D. in D.D.'s dental records and recovered the form after Respondent was asked to retrieve D.D.'s records during discovery in this proceeding. Respondent informed his office manager on July 8, 1998, that he had referred L.D. to an oral surgeon. Respondent's office manager confirms that Respondent stated to her at the time that he was referring L.D. to an oral surgeon. On March 3, 1999, L.D. saw Dr. Kevin Pollack at Southwest. Dr. Pollack found that L.D. could not perceive touch or pressure on the left side of her tongue. On April 1, 1999, L.D. saw Dr. Timothy Hogan at Southwest. L.D. had improved since she saw Dr. Pollack. Dr. Hogan found that L.D. could perceive light touch and pressure on the left side of her tongue. Petitioner's expert opined that failure to refer L.D. to an oral surgeon failed to comply with the applicable standard of care for lingual nerve injury. However, the issue of whether Respondent referred L.D. to Southwest is an issue of fact for which expert opinion is admissible if: specialized knowledge will assist the trier of fact in understanding the evidence; and the opinion can be applied to evidence at the hearing. Section 90.702. The record does not disclose any specialized knowledge needed to resolve the factual issue of whether Respondent referred L.D. to Southwest. The expert did not testify at the hearing as to why the expert's knowledge, skill, experience, training, or education would assist the trier of fact in making a finding concerning the factual issue of whether Respondent referred L.D. to Southwest. The opinion of Petitioner's expert was not applied to evidence at the hearing. The expert apparently disregarded the entries in Respondent's records that L.D. was to pick up her records, and the expert was not present at the hearing to listen to other evidence and testify as to whether the evidence at hearing altered his opinion. The only other evidence that the expert opinion could be applied to is the testimony by L.D. and D.D. that Respondent did not refer L.D. to Southwest. However, the testimony of L.D. and D.D. is neither credible nor persuasive and is less than clear and convincing. The memories of the two witnesses are not clear and are not without confusion. Most of the facts to which the witnesses testified are not distinctly remembered. The testimony is not precise and explicit. Their testimony lacks certainty and consistency as to specific facts and circumstances and details. Both witnesses testified that they clearly recalled that Respondent did not refer L.D. to Southwest. However, neither witness could recall how L.D. ended up at Southwest. Nor could either witness recall picking up records from Respondent, what was contained in those records, and whether a written referral was included in the records. When asked why L.D. had not returned to Southwest, L.D. refused to answer the question. The testimony of L.D. and D.D. does not produce in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegation that Respondent failed to refer L.D. to Southwest. The assumption inherent in the testimony of Petitioner's expert that Respondent did not refer L.D. to an oral surgeon is not based on underlying facts or data in evidence and, therefore, is not admissible pursuant to Section 90.705. Even if it were admissible, the underlying facts and data are less than clear and convincing and not persuasive. Petitioner submitted evidence that Respondent failed to meet the applicable standard of care because Respondent did not refer L.D. to an oral surgeon in a timely manner. Without identifying the appropriate time for a referral, Petitioner relies on expert opinion that, "sooner is better than later." The Administrative Complaint does not allege that Respondent failed to meet the applicable standard of care by failing to refer L.D. to an oral surgeon in a timely manner. Rather, the Administrative Complaint alleges that Respondent failed to refer L.D. to an oral surgeon at any time. It would violate fundamental principles of due process to put Respondent on notice in the Administrative Complaint that he must be prepared to defend against the allegations in the Complaint and then prove a different allegation during the administrative hearing. Even if the Administrative Complaint were to allege that Respondent failed to timely refer L.D. to an oral surgeon, the evidence is less than clear and convincing that the referral by Respondent was not timely. Respondent did not refer L.D. to a specialist prior to July 8, 1998, because the numbness in her tongue had been improving. In April of 1999, L.D. had recovered a large percentage of the feeling on the left side of her tongue and was experiencing tingling on her right side. If Respondent had referred L.D. to a specialist during the time that she had been reporting improvement in her parethesias, the referral would have been inappropriate. In the absence of debilitating pain and lip and cheek biting, a dentist need not refer a patient with lingual nerve paresthesia to an oral surgeon. If a patient who experiences lingual nerve parethesias after the removal of wisdom teeth shows signs of improving or if the patient has some feeling in the tongue, the dentist need only observe the patient and need not refer the patient to a specialist.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding that Respondent is not guilty of violating Section 466.028(1)(x) and dismissing the Administrative Complaint. DONE AND ENTERED on this 17th day of December, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 17th day of December, 2001. COPIES FURNISHED: Tracy J. Sumner, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Jay P. Chimpoulis, Esquire O'Connor & Meyers Post Office Box 149022 Coral Gables, Florida 33114-9022 Frank R. Recker, Esquire Frank R. Recker & Associates Company L.P.A. 267 North Collier Boulevard, Suite 202 Marco Island, Florida 34145 Theodore M. Henderson, Agency Clerk 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 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether the Board of Dentistry should discipline the Respondent on charges set out in the Administrative Complaint in Agency for Health Care Administration (AHCA) Case No. 91-011671. The Administrative Complaint charged the Respondent with a violation of Section 466.028(1)(y), Florida Statutes, for incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. It alleged: that the Respondent treated a patient identified by the initials V. G. for temporomandibular joint (TMJ) dysfunction from August 14, 1986, through July, 1991; that the treatment included maxillary brackets and other orthodontic treatment from August, 1987, through May, 1991; that the patient's TMJ problems recurred during the orthodontic treatment; that the length of time of the Respondent's orthodontic treatment was excessive, resulting in the recurrence of the TMJ problems; that the Respondent utilized an inappropriate circuitous method to accomplish tooth movement (i.e., moving teeth back and forth); that the Respondent's orthodontic treatment had to be corrected by a subsequent treating dentist; and that the "Respondent failed to provide written documentation informing the patient . . . of expected results "
Findings Of Fact The Respondent, Ralph Garcia, D.D.S., is a licensed dentist in the State of Florida, having license number DN000324. On August 14, 1986, a patient identified by the initials V. G. presented to the Respondent with complaints including jaw popping and discomfort in the jaw area. The patient, who was approximately 34 years of age, gave a history of extraction of her bicuspids and subsequent orthodontic treatment in her teen years and extraction of her third molars in her early twenties. The Respondent's examination revealed an impaired range of motion in her mouth. She could only open her mouth 43 millimeters. (Normal is 50.) She also could move her jaw only 7 millimeters to the left. (Normal is 12.) The patient's condition was further complicated by compromised dentition, poorly inclined teeth, unparallel roots, stretched ligaments, and a cervical condition. Transcranial x-rays revealed that, when the patient's teeth were together, both condyles compressed backward in the fossa, compressing tissues and causing pain. The Respondent correctly diagnosed the patient as having mandibular dislocation, myalgia, myofascitis, coronoid tendinitis, stretched ligaments, and headache. These are all conditions associated with temporomandibular joint (TMJ) dysfunction. The Respondent's treatment plan was: (1) to use an oral repositioning appliance (a splint) to treat the dislocation; (2) to use physical therapy to treat the myalgia and myofascitis; (3) to use trigger point injections to treat the coronoid tendinitis; and (4) to use orthopedics, orthodontics and possibly prosthetics to achieve functional occlusion. The Respondent's treatment plan was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. It was not necessary at that point to more precisely describe planned tooth movements and mechanics. The Respondent advised the patient of his diagnosis, treatment goals, and proposed treatment plan. He also advised her of treatment options, the plan to use splint therapy in treatment, the plan to treat the patient in phases, and the potential complications of treatment. There was no evidence that minimum standards of performance when measured against generally prevailing peer performance required the Respondent to provide the advice described in the Finding 10 (or 17, below) in written form or to document the advice in writing. It would, however, be prudent to do so to preclude charges that the Respondent did not given the patient informed consent. From August 14, 1986, through July 14, 1987, the Respondent treated the patient's TMJ condition and resulting pain with splint therapy, physical therapy, and trigger point injections. (This was the first phase of treatment.) The splint therapy increased the space in the jaw joint by moving the lower jaw forward. This relieved the pressure on the joint. X-rays taken on July 9, 1987, show that the patient's jaw joint had moved forward on both sides, which decompressed the tissues of the joint. Contrary to the patient's allegations (and the understanding the patient gave to the AHCA expert), the relative positioning of the patient's upper and lower jaw did not create a "bulldog" Class Three Prognathic position (underbite). Rather, the positioning of the patient's upper and lower jaw created an approximate "open bite." (An "open bite" occurs when the front teeth meet.) At worst, the patient's lower jaw was slightly (3.5 millimeters) behind the upper jaw, i.e., in a Class One or Class Two underbite position. It was not proven that this positioning was inappropriate or failed to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. As a result of the first phase of treatment, the patient's TMJ problems were alleviated. In July, 1987, the Respondent discussed with the patient the next phases of treatment. What remained to be done for the patient was more than just realigning her teeth using brackets and wires ("traditional orthodontics"). For one thing, the patient's upper jaw was too narrow and too constricted to provide proper occlusion. This caused the patient to have a cross-bite on the right side of the jaw. The Respondent recommended the use of a four-screw appliance, which he designed, to expand the two halves of the upper jaw, or maxilla. He then planned to use a retainer to hold the expansion. Next, the molars in the patient's lower jaw had to be moved back on the jaw bone through use of a modified splint. Use of the modified splint allowed the jaw to be held in position while the molars were moved so that the benefits of the TMJ treatment could be maintained to the extent possible. The Respondent recommended that the molars be moved slowly and carefully, one at a time, to minimize damage to the roots of the teeth and the jaw bone and to attempt to maintain the improvements in the patient's TMJ condition during treatment. Next, the second bicuspids had to be moved back on the patient's lower jaw through use of a modified Sved appliance. Use of the modified Sved allowed the jaw to be held in position while the bicuspids were moved so that the benefits of the TMJ treatment could be maintained to the extent possible. This, too, had to be done relatively slowly and carefully. Finally, the lower front teeth had to be moved back through the use of brackets and elastics. After the lower teeth were moved into their new positions in the new arch, they had to be "erupted," i.e., pulled up out of the jaw, to meet and have proper functional occlusion with the teeth in the upper jaw in the closed position. An appliance had to be used in conjunction with the brackets and elastics to hold the jaw in position while the lower teeth were being erupted so that the benefits of the TMJ treatment could be maintained to the extent possible. This, too, had to be done relatively slowly and carefully. "Traditional orthodontics" (brackets, elastics and wires) would be utilized for finer adjustments to level, align and position the teeth to close gaps and for aesthetic purposes. The rest of the Respondent's treatment plan was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The Respondent discussed his treatment goals and proposed treatment plan in July or August, 1987. He also advised her of treatment options. He informed her that he would have to proceed carefully and deliberately and that it would be a slow process. He also informed her that the time of treatment would depend on many factors, including the patient's response to and compliance with treatment. The Respondent also discussed the cost of the remaining phases of treatment. To keep the fee for his orthopedic and orthodontic services under $4,000, the Respondent agreed to charge the patient a flat fee calculated based on his normal fee for 18 months of adjustments to appliances ($3,655), plus the cost of the orthopedic appliances. He did not intend to give the patient the impression that the orthopedic and orthodontic phases of treatment would be completed within 18 months. But his way of presenting his fee was potentially confusing and apparently contributed to the deterioration of the relationship between the Respondent and the patient later in treatment. The orthopedic phase of the treatment began with the use of the four- screw appliance in August, 1987. On September 29, 1987, the Respondent began the long, slow process of posteriorizing the molars and bicuspids on the patient's lower jaw. It was not completed until July 28, 1989. This phase of treatment was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The teeth were not moved back and forth in a circuitous method. Between July 28 and November 21, 1989, the Respondent used brackets and elastics to move the lower front teeth back. This phase of treatment also was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The teeth were not moved back and forth in a circuitous method. "Eruption" of the lower teeth was then accomplished between November 21, 1989, and October 22, 1990, using brackets and vertical elastics in a process known as "vertical development." The Respondent's method did not utilize wires, and the AHCA expert criticized the method used as not being "mainstream" orthodontics. But the expert defined "mainstream" orthodontics as being the methods taught in a majority of dental colleges. Under such a definition, a method which is out of the "mainstream" is not necessarily inappropriate. Notwithstanding the one expert's differing opinion as to the best way to erupt teeth, it was not proven that the method used by the Respondent to erupt the patient's lower teeth was inappropriate or that it failed to meet minimum standards of performance when measured against generally prevailing peer performance. When the eruption process ended, "traditional" orthodontics began on October 22, 1990. During this phase, the Respondent placed brackets, bands and wires on the patient's teeth. This phase of treatment was appropriate and met or exceeded minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. During the Respondent's treatment of the patient, the patient's TMJ symptoms recurred from time to time. But TMJ is cyclical in nature. Recurrences during treatment (and even after treatment) are not unusual and do not prove that the Respondent's treatment was inappropriate or that it failed to meet minimum standards of performance when measured against generally prevailing peer performance. In approximately April, 1991, the patient's TMJ symptoms recurred significantly. (They ceased during the course of completion of the treatment.) Although the symptoms were not much different from prior recurrences, by this time the patient was disillusioned with the Respondent due in part to the length of the process (even though, as a result of the flat fee arrangement, it was the Respondent who was "losing money" the longer the process took, not the patient) and in part to the Respondent's chairside manner and demeanor. The patient's "last straw" was when the Respondent ground uneven surfaces of the patient's front teeth (although the evidence was clear that this procedure was appropriate and met minimum standards of performance when measured against generally prevailing peer performance.) Instead of discussing the recurrence of the TMJ symptoms with the Respondent, the patient discontinued treatment with the Respondent on May 30, 1991, and sought the opinion of another dentist, Randy Feldman, D.D.S., on July 17, 1991. Feldman mentioned near the outset of his consultation with the patient that he could identify the patient's dentist without her telling him. Suspecting the worst of the Respondent, the patient thought Feldman was being critical of the quality of Respondent's work and became more convinced that the Respondent's work was below minimum standards of performance. In fact, Feldman only meant to say that he was familiar with the appliances and techniques used by the Respondent from having been invited to observe the Respondent's work in the Respondent's office and from having attended continuing education seminars conducted by the Respondent. Feldman also mentioned at one point during the consultation that the patient was fortunate to have had a flat fee contract for the Respondent's work since he knows patients who have paid thousands of dollars to the Respondent for his treatment. Again, suspecting the worst of the Respondent, the patient thought Feldman was implying that the Respondent's charges were inflated. In fact, Feldman only meant to state the fact that treatment by the Respondent often is complicated and expensive and that the patient seemed to have been fortunate not to have been charged more. Contrary to the allegations against the Respondent, Feldman did not have to "correct" the Respondent's work. He did not have to return teeth to prior positions (in the alleged "circuitous" manner). Rather, he advised the patient that it only was was necessary for her to complete the treatment which the Respondent had been providing. He tried to convince the patient that it would be in her best interest to return to the Respondent and let him finish the treatment, but the patient refused. Feldman did nothing more than finish the treatment which the patient had interrupted by leaving the Respondent's care. (He changed some of the brackets and appliances, but the evidence is not clear why.) Notwithstanding the duration of the Respondent's treatment, it was not excessive for what had to be accomplished. Each phase was a necessary part of the overall treatment, and no phase lasted an excessive period of time. Tooth movement occurs when pressure applied to the teeth and transmitted to the bone in which the teeth are rooted causes the bone to dissolve and allow the teeth to move. Then, the bone structure must reform behind the teeth being moved. This takes time. It takes longer in adults than in children or adolescents. The Respondent's decision to proceed cautiously and conservatively was in the patient's best interest. Trying to go faster would have increased the risk of damage to tooth roots and bone structure. The AHCA expert based his opinion in part on a misunderstanding as to when "traditional" orthodontic treatment began. In fact, it did not begin until October 22, 1990, when wires were attached to wires. Other aspects of treatment also did not last as long as the patient led the expert to believe. Elastics were used without wires starting on July 28, 1989; eruption lasted less than a year, not for "years," as alleged by the patient; teeth were not moved back and forth in a "circuitous" manner. It was not proven that the duration of treatment (whether or not excessive) "caused" TMJ symptoms to recur. See Finding 23., above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a final order dismissing the charges against the Respondent in this case. RECOMMENDED this 21st day of November, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1142 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that maxillary brackets were placed as early as August, 1987. Also, a question of semantics whether tooth movement--either along with or independent of movement of the bone in which the tooth is rooted-- through the use of appliances such as the four-screw, modified splint, and modified Sved, is considered orthodontics, orthopedics, or both. Otherwise, accepted and incorporated. Rejected as not proven. 8.-10. Accepted and incorporated. 11.-14. Rejected as not proven. 15. Accepted and incorporated. Respondent's Proposed Findings of Fact. 1.-20. Accepted and incorporated to the extent not subordinate or unnecessary. 21.-22. A question of semantics whether tooth movement--either along with or independent of movement of the bone in which the tooth is rooted--through the use of appliances such as the four-screw, modified splint, and modified Sved, is considered orthodontics, orthopedics, or both. Otherwise, accepted and incorporated. 23.-24. Accepted and incorporated. A question of semantics whether the tooth movement through the use of the four-screw appliance constitutes orthodontics, orthopedics, or both. Otherwise, accepted and incorporated. Accepted and incorporated. 27.-28. Not clear from the evidence whether the patient's upper jaw was expanded or just the bone holding the teeth flared out. Otherwise, accepted and incorporated. 29.-39. Accepted and incorporated to the extent not subordinate or unnecessary. 40. A question of semantics whether tooth movement--either along with or independent of movement of the bone in which the tooth is rooted--through the use of appliances such as the four-screw, modified splint, and modified Sved, is considered orthodontics, orthopedics, or both. Otherwise, accepted and incorporated. 41.-48. Accepted and incorporated to the extent not subordinate or unnecessary. 49. Accepted as to "traditional orthodontics" and incorporated. A question of semantics whether earlier methods constituted orthodontics, orthopedics, or both. 50.-63. Accepted and incorporated to the extent not subordinate or unnecessary. Not clear from the evidence necessarily as to all inconsistencies. As to some inconsistencies, accepted and subordinate to facts found. Accepted and incorporated. 66.-69. Accepted but subordinate and unnecessary. Accepted but unnecessary. "Well above" not clear from the evidence. "Above" accepted and incorporated. COPIES FURNISHED: Nancy Snurkowski, Esquire Chief Attorney Allied Health Section Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0782 Bruce D. Lamb, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 East Kennedy Boulevard Suite 1000 Tampa, Florida 33602 William Buckhalt Executive Director Board of Dentistry Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue in this case is whether Respondent, Andrew Logan, M.D., committed a violation of Section 458.331(1)(t), Florida Statutes, as alleged in an Administrative Complaint filed by Petitioner, the Department of Health, on April 30, 2003, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. Respondent, Andrew Logan, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 0058658. Dr. Logan's last known business address is 8551 West Sunrise Boulevard, Suite 105, Plantation, Florida 33322. At the times material to this matter, Dr. Logan was certified in ophthalmology. He specializes in medical and surgical ophthalmology. Dr. Logan received a bachelor of arts degree in biology in 1982 from Brown University. He received his medical degree in 1986 from the University of California, San Francisco.2 Dr. Logan completed a residency in ophthalmology. Dr. Logan has practiced medicine in Florida since 1990. At the times relevant to this matter, Dr. Logan worked in a group practice in Plantation, Florida. Most of his practice consisted of an office practice, seeing patients. He also performed some laser and minor surgeries in the office. Approximately once a week, for half a day, he performed surgery out of the office at "three hospitals and surgical centers." Dr. Logan's license to practice medicine has not been previously disciplined. The Department's Administrative Complaint and Dr. Logan's Request for Hearing. On April 30, 2003, the Department filed an Administrative Complaint against Dr. Logan before the Board of Medicine (hereinafter referred to as the "Board"), alleging that his treatment of one patient, identified in the Administrative Complaint as C. S., constituted gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances (the recognized acceptable treatment will hereinafter be referred to as the "Standard of Care"), a violation of Section 458.331(1)(t), Florida Statutes. In particular, it is alleged in the Administrative Complaint that Dr. Logan violated the Standard of Care in "one or more of the following ways": Respondent failed to identify the correct patient for the implantation of the 23 diopter lens; Respondent failed to verify that the lens he implanted into Patient C.S. was the power of lens that he had previously ordered; Respondent implanted the wrong lens into the left eye of Patient C.S. The factual allegations of the Administrative Complaint, although stated differently, essentially allege that Dr. Logan operated on the wrong patient. Dr. Logan filed a request for a formal administrative hearing with the Department, which was filed by the Department with the Division of Administrative hearings. Treatment of Patient C.S. C.S., who was 70 years of age at the time of the incident involved in this matter, began seeing Dr. Logan for eye care in approximately February 1997. C.S. developed cataracts in both eyes, for which Dr. Logan diagnosed and suggested surgical treatment.3 Dr. Logan explained the procedure he believed necessary to remove C.S.'s cataracts to her and obtained her approval thereof. The procedure to be performed on C.S., known as phacoemulisification, consisted of making an very small incision in her eye, breaking up her natural, or intraocular, lens with ultrasound, irrigating the eye, and then suctioning out the destroyed lens and irrigation material. Once the intraocular lens is removed, it is replaced with an artificial lens, the power and model of which is selected by the physician. Dr. Logan determined that the lens needed to restore C.S.'s vision in her left eye after removal of her intraocular lens was a 15-diopter lens. The "diopter" of a lens relates to the corrective power of the lens. C.S. was scheduled for the planned cataract surgery on her left eye at the Surgery Center of Coral Springs (hereinafter referred to as the "Surgery Center") for the morning of September 5, 2000.4 C.S. was one of at least two patients scheduled for surgery by Dr. Logan that morning. The Surgery Center is a free-standing center where various types of surgery are performed. Dr. Logan was not an owner or employee of the Surgery Center. He did not hire, nor could her fire, any employee of the Surgery Center, and none of the equipment utilized in the Surgery Center was owned by him.5 Consistent with established procedures, the Surgery Center was faxed information concerning C.S.'s scheduled surgery. In particular, the facsimile identified C.S. by name, which eye was to be operated on (her left eye), and the power (15-diopter) and model number of the replacement lens Dr. Logan had determined was necessary to restore C.S.'s vision after the surgery. The day before C.S.'s scheduled surgery, Dr. Logan was provided with C.S.'s patient records and the records of the other patient scheduled for surgery on September 5, 2000. He reviewed those records either that afternoon or that night. He also took the records with him to the Surgery Center where he reviewed them again. On or around the morning of September 5, 2000, the Surgery Center's nurse manager took the facsimiles that had previously been sent to the Surgery Center by Dr. Logan's office and retrieved the lens for each patient scheduled for surgery that day. When the nurse manager retrieved the lens, she was expected to ensure that the ordered lens, both as to power and model, were available, and that they were within their expiration date. She then bundled the lens and the facsimile. Three lens per patient were routinely retrieved. The bundles were then placed on a table in the operating room in the order they were supposed to be used. The order of surgery for September 5, 2000, had been prearranged and that information was available on a list prepared by the Surgery Center to all of those involved in the surgery that morning, including Dr. Logan and his surgery team. C.S. had been scheduled to be the second patient seen that morning. When C.S. arrived at the Surgery Center she was eventually taken to a pre-operation room (hereinafter referred to as "pre-op") to be readied for surgery. The patient who had been scheduled for the first surgery of the morning (hereinafter referred to as the "First Scheduled Patient"), had been late arriving on September 5, 2000. C.S. had come early. Therefore, C.S. was taken to pre-op in place of the First Scheduled Patient. What exactly transpired after C.S. was taken to pre-op was not explained. The nurse manager, who had overall responsibility for getting patients ready for surgery did not testify during this proceeding and the circulating nurse, Ann Tuza, was unable to recall what took place in any detail. What was proved is that Dr. Logan was not informed of the switch and the records and lens, which had been placed in the order of the scheduled surgeries for that day, were not changed to reflect that C.S. would be taken to surgery in place of the First Scheduled Patient. Therefore, although C.S. was the first patient into surgery, the records and lenses of the First Scheduled Patient were not replaced with C.S.'s records or lens. As was his practice, before going into the operating room, Dr. Logan went to pre-op to administer a local anesthesia. Dr. Logan, who had not been informed that the second scheduled patient, C.S., had been substituted for the First Scheduled Patient, administered the anesthesia to C.S. Dr. Logan found C.S. asleep. Dr. Logan did not recognize C.S. and he did not speak to her, as would have been his practice had she been awake, or otherwise identify her. Dr. Logan injected a local anesthesia by needle under and behind C.S.'s left eye,6 a procedure referred to as a "block" or "retrobulbar block."7 After the block had time to take effect, which normally took approximately five to ten minutes, Nurse Tuza went to retrieve C.S. from pre-op and bring her to the operating room. C.S. was brought into the operating room by Nurse Tuza and prepared for surgery. She was covered completely except for her feet and her left eye, which had an "X" placed over it to identify the eye to be operated on. Nurse Tuza remained in the operating room, along with a scrub technician, who assisted Dr. Logan, and a nurse anesthetist. None of these individuals apparently checked to ensure that they were correct in their assumption that the patient was the First Scheduled Patient. Dr. Logan, who did not recall what he did between seeing C.S. in pre-op and arriving at the operating room, completed scrubbing and entered the operating room where C.S. awaited. He had placed his charts in the operating room. His routine after arriving in the operating room was to go to the head of the patient and adjust a microscope used during the surgery. It is inferred that he did so on the morning of September 5, 2000. Although C.S. was awake when she was taken into the operating room and during the surgery, no one, including Dr. Logan, asked her her name. Nor did anyone, including Dr. Logan, check to see if she was wearing a wrist-band which identified her. Instead everyone, including Dr. Logan, assumed that they were operating on the First Scheduled Patient. Not actually knowing who he was operating on,8 Dr. Logan performed the surgery scheduled for the First Scheduled Patient on C.S. Although the procedure her performed on C.S., fortunately, was the same one scheduled for C.S., the diopter of the replacement lens was not.9 The First Scheduled Patient was to receive a 23-diopter lens, rather than C.S.'s 15- diopter lens. Dr. Logan placed the 23-diopter lens in C.S.'s eye, completed the procedure, and C.S. was taken to recovery. When Nurse Tuza went to get the next patient for surgery, who she expected to be C.S., she discovered for the first time that C.S. had been substituted for the First Scheduled Patient. She immediately informed Dr. Logan of the error. Dr. Logan went to the recovery room and, after ensuring that C.S. was alert enough to comprehend what he was saying, informed C.S. of the error. She consented to Dr. Logan's suggestion the he take her back into the operating room, remove the 23-diopter lens, and replace it with the correct, 15-diopter lens, which he immediately did. The replacement procedure required no additional trip to the Surgery Center, anesthesia, or incisions. C.S. recovered from the procedures without problem or direct harm. She continued to see Dr. Logan as her eye care until a change in insurance prevented her from doing so. Standard of Care. There was little dispute that Dr. Logan "failed to identify the correct patient for the implantation of the 23 diopter lens"; "failed to verify that the lens he implanted into Patient C.S. was the power of lens that he had previously ordered [for her]"; and "implanted the wrong lens into the left eye of Patient C.S." These facts, which form the factual basis for the Department's allegation that Dr. Logan violated the Standard of Care, have been proved. Including Dr. Logan, five physicians gave opinions in this proceeding as to whether Dr. Logan's actions violated the Standard of Care: Drs. William Cobb, Harry Hamburger, Joel Kramer, and Lowell Sherris. The testimony of Drs. Cobb and Kramer, primarily, and, to a lesser degree, the testimony of the Dr. Logan and the other two physicians, support a finding that Dr. Logan's actions, as alleged in the Administrative Complaint, constitute a violation of the Standard of Care. The testimony of Drs. Cobb, Kramer, and Sherris, which was credible and persuasive, have been summarized in the Department's proposed recommended order, and will not, in light of recent changes in Section 456.073(5), Florida Statutes, be summarized in any detail here. All of the physicians who testified, including Dr. Logan, agreed that a physician must know on whom he or she is operating and that operating on the wrong patient or inserting the wrong lens in a patient's eye is inappropriate. Dr. Logan, with Dr. Hamburger's support, attempted to prove that Dr. Logan did not violate the Standard of Care, despite the fact that he "failed to identify the correct patient for the implantation of the 23 diopter lens"; "failed to verify that the lens he implanted into Patient C.S. was the power of lens that he had previously ordered [for her]"; and "implanted the wrong lens into the left eye of Patient C.S.," by suggesting the following: It is reasonable and common practice in the South Florida community for a physician to rely on the staff of a surgical center to identify a patient prior to surgery and bring the patients [sic] back in the order originally anticipated. Dr. Logan had several safeguards in place to avoid the error that occurred in this case. The standard of care does not require that physician act as a supervisor who is responsible for every act of the healthcare provided team. This incident occurred due to an error of the staff at the Surgical Center at Coral Springs. . . . . Respondent's Proposed Final [sic] Order, paragraph 78. The proposed findings quoted in paragraph 37 are based primarily on Dr. Hamburger's, and to a lesser extent, Dr. Logan's, assertion that the surgery was a team effort, that the team had established procedures to identify the patient, and that the team failed in this instance to properly identify the patient. This testimony, and the proposed findings quoted in paragraph 37 are rejected. Nothing in the procedures followed in this instance alleviated Dr. Logan's responsibility to ensure that he actually established for himself who he was about to perform surgery on, a task which would have taken little effort.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Andrew Logan, M.D., has violated Section 458.331(1)(t), Florida Statutes (2000), as alleged in the Administrative Complaint, requiring the payment of an administrative fine of $5,000.00, completion of four hours of continuing medical education in risk management, and attendance at a one hour lecture on wrong patient surgery and how to avoid it, and issuing Dr. Logan a letter of concern from the Board of Medicine. DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 19th day of February, 2004.
Findings Of Fact The Respondent is licensed by the Board to practice as an osteopathic physician in Florida. The Respondent has been licensed to practice as an osteopathic physician in the State of Pennsylvania. He was criminally charged in the State of Pennsylvania with various violations of 35 Penna. Stat. Section 780- 113(a)(14). After entering a plea of not guilty, he was tried and convicted of three counts of violating the statute. He was adjudicated guilty and sentenced. The Respondent has exhausted all direct appellate remedies in Pennsylvania. He continues to pursue available collateral remedies. The Pennsylvania State Board of Osteopathic Examiners initiated disciplinary action against the Respondent. A hearing was conducted, and the Pennsylvania board concluded that the Respondent was convicted of a crime involving moral turpitude and was guilty of unethical conduct. The Board stated: It is clear that the Respondent blatantly disregarded the health and welfare of the citizens of Pennsylvania and the Board can impose a penalty for such disregard. How- ever, the Board has taken into consideration the fact that the Respondent no longer resides or practices osteopathic medicine in Pennsylvania, and therefore, he is presently not a danger to the health, safety and welfare of Pennsylvania. Apparently disregarding the testimony of the Respondent in the record that he did intend to continue practicing osteopathic medicine in Pennsylvania if his license was not revoked, the Board imposed no penalty against the Respondent. The Respondent thus continues to be licensed to practice osteopathic medicine in Pennsylvania. The Respondent is presently engaged in the general practice of osteopathic medicine in Florida. He practices in a black area and is the only doctor who accepts Medicaid patients in the area. During 1976 he turned in his federal license to dispense controlled substances. He is thus not able to prescribe controlled substances in his practice, but he can prescribe other drugs. The Respondent has not been the subject of any other disciplinary proceedings during his many years as a practicing osteopathic physician.
