Findings Of Fact The decedent, James C. Daniels, was employed as a fire fighter with the Village of Miami Shores, Florida, in April of 1972. The Miami Shores Fire Department was subsequently assimilated by Metropolitan Dade County, Florida, and at the time of the decedent's death on July 20, 1976, he was employed by Dade County as a fire fighter/emergency medical technician. On November 4, 1975, the decedent received a physical examination which showed no evidence of heart disease, and an electrocardiogram, the results of which were within "normal" limits. The decedent had no history of heart disease or circulatory problems, did not drink, and began smoking only in 1974 or 975. At the time of his death, the decedent's customary work routine involved 24 hours on duty, from 7:00 a.m. to 7:00 a.m., followed by 48 hours off duty. The decedent's duties included answering emergency calls along with his partner in a rescue vehicle. These calls included such incidences as automobile accidents, fires, violent crimes involving injuries to persons, and various and sundry other emergency situations. Upon answering an emergency call, the decedent was required by his job to carry heavy equipment, sometimes weighing as much as 80 pounds, to the place where the injured person was located. On occasion, the decedent would transport injured persons from the scene to local hospitals. At the time of his death, the decedent appeared outwardly to be in good physical condition. In fact, he engaged in a regular program of physical exercise. During the approximately two months prior to his death, the decedent participated in a busy work schedule which often included numerous rescues, in addition to false alarms and other drills required of his unit. In fact, only four days prior to his death, the decedent and his partner during one twenty- four hour shift, were involved in 13 rescues and one building fire. During that day, the decedent worked for 24 straight hours, apparently without sleep. On July 19, 1976, at 7:00 a.m., the decedent began his last work shift prior to his death. During that day, the decedent's unit participated in two rescues and two drills. That evening, several of decedent's fellow workers noticed that he looked "bad", "tired" or "drawn out". During the night, decedent was observed getting out of bed from three to five times, and holding his left arm, left side or armpit. At 7:00 a.m. on July 20, 1976, the decedent went off duty and returned home. Upon returning home, he ate breakfast, and later washed down a new brick fireplace at his home. After showering, resting and eating a lunch, he joined several other men near his home whom he had agreed to help in pouring cement for some new construction. The decedent mentioned pains in his neck and shoulder to these men before the truck carrying the cement arrived. The decedent mentioned that he had been under a lot of tension and pressure as a result of the busy work schedule at the fire station. When the cement truck arrived, cement was poured into several wheelbarrows and several of the men, including the decedent, pushed the wheelbarrows to the rear of the structure on which they were working. It appears that the decedent pushed approximately four wheelbarrow loads of cement weighing about 75 pounds each to the rear of the structure. Approximately one-half hour elapsed during the time that the decedent was engaged in this activity. Soon thereafter, the decedent was observed to collapse and fall to the ground. He was given emergency medical treatment and transported to Palmetto General Hospital, where he was pronounced dead at 5:24 p.m. on July 20, 1976. An autopsy was performed on the deceased on July 21, 1976 by Dr. Peter L. Lardizabal, the Assistant Medical Examiner for Dade County, Florida. In pertinent part, the autopsy showed moderate arteriosclerosis of the aorta, and severe occlusive arteriosclerosis of the proximal third of the anterior descending coronary artery in which the lumen, or opening, through which the blood passes through the artery was hardly discernible. The remaining coronary arteries appeared unaffected by the arteriosclerosis. The decedent's certificate of death, which was also signed by Dr. Lardizabal, listed the immediate cause of death as acute myocardial infarction due to severe occlusive arteriosclerosis of the left coronary artery. Dr. Lardizabal performed the autopsy examination of the decedent by "gross" observation, that is, without the benefit of microscopic analysis. However, microscopic slides were made during the course of the autopsy which were subsequently examined by other physicians whose testimony is contained in the record of this proceeding. Findings contained in the autopsy report, together with an evaluation of the aforementioned microscopic slides, establish that the myocardial infarction suffered by the decedent occurred at least 24 hours, and possible as many as 48 hours, prior to the decedent's death. This conclusion is based upon the existence of heart muscle necrosis, or tissue death, which would not have been discernible had the decedent died immediately following a coronary occlusion. In fact, for a myocardial infarction to he "grossly" observable at autopsy, that is, without the benefit of microscopic examination, it appears from the record that such an infarction would have to occur a substantial period of time prior to the death of the remainder of the body. Otherwise, the actual necrosis of heart muscle tissue would not be susceptible to observation with the naked eye. Although it appears probable from the evidence that the decedent went into a type of cardiac arrhythmia called ventricular fibrillation which led to his death, the actual proximate cause of his death was the underlying myocardial infarction, which in turn was a result of arteriosclerosis which had virtually shut off the supply of blood to the affected area of his heart. Although the causes of arteriosclerosis are not presently known to A medical science, it appears clear from the record that acute myocardial infarctions can be caused by emotional or physical stress, and that the decedent's myocardial infarction was, in fact, caused by the stress and strain of his job as a fire fighter and emergency medical technician. In fact, it appears from the medical testimony in this proceeding that the decedent was having a heart attack which led to the myocardial infarction on the night of July 19, 1976, or in the early morning hours of July 20, 1976, while he was still on duty. It further appears that, although physical exertion, such as the pushing of the wheelbarrow loads of cement by the decedent, might act as a "triggering mechanism" for ventricular fibrillation, the decedent's activities on the afternoon of July 20, 1976, had very little to do with his death. The type of lesion present in the decedent's heart, which had occurred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless of the type of physical activity in which he engaged on July 20, 1976. Petitioner, Dolores A. Daniels, is the surviving spouse of James C. Daniels.
The Issue The issue in the case is whether the allegations in the Administrative Complaints are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed physician in the State of Florida, holding license number ME0039986. DOAH Case Number 01-3795PL Between May 22 and June 5, 1998, the Respondent ordered a series of diagnostic lab tests for Patient C. H., a 63-year- old female. As to the care provided to Patient C. H., the Petitioner presented the testimony of Hamilton Fish, M.D., whose testimony was persuasive and is credited. According to Dr. Fish, many of the tests performed on Patient C. H. were not medically indicated according to a review of the information set forth in the patient's medical records, and the medical treatment care provided by the Respondent to the patient was inappropriate and failed to meet the applicable standard of care. According to the hemoglobin test performed on Patient C. H., the patient was diabetic and the diabetes was uncontrolled. The Respondent did not provide proper treatment to the patient for the diabetes. According to one of the lab tests, Patient C. H. was deficient in calcium. The Respondent did not provide appropriate treatment for the calcium deficiency. Although there was no medical indication that Patient C. H. had a thyroid problem, the Respondent prescribed a thyroid hormone medication. The thyroid medication was inappropriate and could have exacerbated the diabetic condition. DOAH Case Number 01-3796PL The Petitioner introduced into evidence an advertisement that appears to have been published in the June 25, 1999, edition of the "Sun-Sentinel Community News." There is no evidence that the Respondent created, read, placed, or paid for the advertisement in the newspaper. The ad offered a complementary consultation with the Respondent, who was identified in the ad as a diplomate of the "American Board of Anti-Aging." Florida law requires that a disclaimer appear in such advertisements advising a patient of the right to essentially decline non-free services that are recommended on the basis of the free consultation. The cited advertisement did not include the disclaimer. The Petitioner's administrative rules prohibit advertisement of affiliation with groups not "recognized" by the Petitioner. The Petitioner has not approved of the "American Board of Anti-Aging." DOAH Case Number 01-3797PL Patient D. E. On or about July 21, 1998, the Respondent ordered a series of diagnostic lab tests for Patient D. E., a 53-year-old male. According to the records, Patient D. E. had complained of impotency and loss of sexual desire. As to the care provided to Patient D. E., the Petitioner presented the testimony of Timothy Shapiro, M.D., whose testimony was persuasive and is credited. According to Dr. Shapiro, many of the tests performed on Patient D. E. were not medically indicated according to a review of the information set forth in the patient's medical records. At least one of the tests performed on several of the patients referenced herein (the "Barnes Basil Temperature Test") is not recognized in the medical community as providing valid information for the conventional diagnosis or treatment of any disorder. On or about August 18, 1998, the Respondent diagnosed Patient D. E. with hypothyroidism, panhypothyroidism, food allergies, and impotence of organic origin. He prescribed Cytomel, Armour Thyroid, and testosterone gel for the patient. According to the testimony of Dr. Shapiro, the prescribed medications were inappropriate because the medical record fails to indicate any deficiencies being addressed by the medication. The course of treatment provided for the patient is not documented by the medical records and is below the standard of care. Patient J. N. On or about August 27, 1998, the Respondent ordered a series of diagnostic lab tests for Patient J. N., a 50-year-old female. According to the records, Patient J. N.'s symptoms included fatigue, numbness, tingling and burning in the extremities, muscle and head aches, insomnia, swelling, depression and easy bruising. As to the care provided to Patient J. N., the Petitioner presented the testimony of Hamilton Fish, M.D., whose testimony was persuasive and is credited. According to Dr. Fish, many of the tests performed on Patient J. N. were not medically indicated according to a review of the information set forth in the patient's medical records. On or about September 10, 1998, the Respondent diagnosed Patient J. N. with chronic fatigue, probable hypothyroidism, and unspecified liver disorder. An existing diagnosis of ischemic heart disease was confirmed; he prescribed various medications for the patient. According to the testimony of Dr. Fish, the prescribed drugs (Cytomel, Hydrocortisone, Rezulin, and a female hormonal transdermal gel) were inappropriate and below the standard of care, and the medical records do not justify the course of treatment provided by the Respondent. Patient T. B. On or about October 8, 1998, the Respondent ordered a series of diagnostic lab tests for Patient T. B. (also identified as T. P.) a 49-year-old female. According to the records, Patient T. B.'s symptoms included muscle ache, migraines, insomnia, vaginal discharge, and neck, back and stomach pain. As to the care provided to Patient T. B., the Petitioner presented the testimony of Hamilton Fish, M.D., whose testimony was persuasive and is credited. According to Dr. Fish, many of the tests performed on Patient T. B. were not medically indicated according to a review of the information set forth in the patient's medical records, and the medical treatment care provided by the Respondent to the patient was inappropriate and failed to meet the applicable standard of care. On or about October 21, 1998, the Respondent diagnosed Patient T. B. with hyperthyroidism, migraine headaches, chronic fatigue, yeast infection, and unspecified disorder of the intestines, stomach, and duodenum. He prescribed various medications for the patient. According to the testimony of Dr. Fish, the prescribed drugs (Cytomel and Armour Thyroid) were inappropriate and below the standard of care, and the medical records do not justify the course of treatment provided by the Respondent. The Respondent failed to perform a pelvic examination or to refer the patient to a gynecologist despite the diagnosis that she was suffering a yeast infection, and therefore failed to meet the applicable standard of care. The diagnosis of unspecified disorder of the stomach, duodenum, and intestines was apparently based on described pain. There is nothing in the medical record indicating that appropriate testing to determine causality was ordered or performed. Patient A. M. On or about August 26, 1998, the Respondent ordered a series of diagnostic lab tests for Patient A. M. According to the records, Patient A. M.'s symptoms included muscle and head ache, constipation, cramps and menstrual irregularity, decreased libido, sore throat and sinus problems. As to the care provided to Patient A. M., the Petitioner presented the testimony of Hamilton Fish, M.D., whose testimony was persuasive and is credited. According to Dr. Fish, many of the tests performed on Patient A. M. were not medically indicated according to a review of the information set forth in the patient's medical records, and the medical treatment care provided by the Respondent to the patient was inappropriate and failed to meet the applicable standard of care. On or about September 9, 1998, the Respondent diagnosed Patient T. B. with hypothyroidism, chronic fatigue, hyperinsulinemia, and unspecified ovarian dysfunction. The lab test results do not support the diagnosis. On December 2, 1998, the Respondent prescribed various medications for the patient. According to the testimony of Dr. Fish, the prescribed drugs (Cytomel, Rezulin, Glucophage, glycine, and fish oil) were inappropriate for the patient and below the standard of care, and the medical records do not justify the course of treatment provided by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration, Board of Medicine, enter a final order suspending the medical license of Robert M. Knight, M.D., for a period of one year followed by five-year period of probation, and imposing an administrative fine of $5,000. DONE AND ENTERED this 19th day of April, 2002, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM F. QUATTLEBAUM 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 April, 2002. COPIES FURNISHED: Kathryn E. Price, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Robert M. Knight, M.D. 5650 Camino del Sol, Number 101 Boca Raton, Florida 33433 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Mr. R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent failed to practice medicine at the level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances and, if not, the penalty.
Findings Of Fact Respondent is a licensed physician, holding license number ME 0026784. He is Board-certified in radiology. On January 30, 1997, T. D., a 30-year-old female who was eight months pregnant, presented to the emergency room of the Columbia Largo Medical Center complaining of pain in the left flank radiating to the left groin, together with nausea and vomiting. She also reported a prior history of kidney stones. A urologist diagnosed T. D. as suffering from kidney stones and severe hydronephrosis, which is the dilation of the kidney due to an obstruction in the flow of urine. The urologist was unable to pass a stent and catheter by the stones to drain the urine and relieve the pressure on the kidney, so he asked Respondent to perform a left percutaneous nephrostomy. A percutaneous nephrostomy is a procedure in which a physician places a tube through the skin and into the collecting system of the kidney to drain the kidney. The tube remains in place until the obstruction is removed. On February 1, Respondent performed a left percutaneous nephrostomy under local anaesthesia. For guidance in placing the tube, Respondent used ultrasound, rather than ultrasound and a flouroscopy. Respondent has performed 100-150 nephrostomies. As is the common practice, he normally does not rely exclusively ultrasound in guiding the placement of the tube in the kidney. In this case, the urologist asked that he not use a flouroscopy, in deference to the patient's pregnancy and the duration of x-ray exposure in a flouroscopy. Respondent was comfortable doing the procedure in this manner, although he decided that, if he encountered any problems in placement, he would resort to flouroscopy. Respondent proceeded to perform the percutaneous nephrostomy in the morning. As is typical, the radiology technician helped position T. D. on the table for the procedure. T. D.'s advanced pregnancy necessitated a slight adjustment to the normal posture of patients being prepared for this procedure, so T. D. lay slightly more up on her side than is usual. However, this did not change the point of entry chosen by Respondent. And, regardless of her precise position, the location of the spinal canal relative to the kidney relative to the point of entry into the skin remains constant: an imaginary line from the kidney to the spinal canal is perpendicular to an imaginary line from the point of entry to the kidney. The point of entry is on the lower back of the patient. T. D. is thin and her pregnancy did not manifest itself on her back, so the length of tube used by Respondent was relatively short. T. D.'s thin build makes it less likely that Respondent would have placed sufficient excess tube into the patient so as to permit the tube to run from the kidney to the spinal cord. Upon placement of the tube, at least 100 cc of fluid drained through the tube. This is well within the range of urine that would be expected under the circumstances. The color was well within the range of color for urine. The preponderance of the evidence indicates that the fluid was urine and that Respondent had placed the tube correctly in the kidney. At the end of the procedure, T. D. appeared a lot more comfortable. Late in the afternoon, someone called Respondent and told him that the drainage had slowed to a very small amount or nothing at all. This is not uncommon, as moving the patient or over-energetic nurses may accidentally dislodge the stent in the kidney. It is also possible that the tube has rested in a part of the kidney that does not facilitate maximum drainage. Using ultrasound, Respondent confirmed that the tube remained in place in the kidney, although he could not tell whether the stent had come to rest in a narrow place in the kidney or possibly even against a stone. Even with this uncertainty, Respondent still was able to determine that the stent was predominantly in the collecting system. Because T. D. was resting comfortably, she said that she felt fine, her fever was going down, and the hydronephrosis had decreased, Respondent decided to do nothing until after re-examining T. D. the next morning. However, at about 11:00 p.m. or midnight, Respondent, who was visiting a nearby patient, dropped in on T. D. The nurse said that she was fine and her kidney was draining a little better. T. D. also said that she was feeling fine. About three or four hours later, T. D. reported a feeling of some paralysis. Petitioner's expert testified that this was linked to the misplacement of the stent in the spinal canal, but he was unaware that T. D. had undergone a spinal block for the percutaneous nephrostomy and that a problem with the first anaesthetic procedure had necessitated a second. It is more likely that T. D.'s paralysis was in response to the two spinal blocks. At 9:00 a.m. the next day, Respondent returned and examined T. D. He found that she was still doing better, and her urologist was preparing to discharge her from the hospital. She looked better, and her urine flow had improved. He told her to call him if she had any problems, but he never heard from her again or even about her until he learned from the urologist that T. D. had been admitted to another hospital where a radiologist had inserted contrast material into the tube to locate the stent and found it in the spinal canal. The father of the baby picked up T. D. at the Columbia Largo Medical Center. He picked her up out of the wheelchair and placed her in the car. Her condition deteriorated once she got home. A hospital nurse directed the father to change the collection bag, if it filled prior to the visit of the home health care nurse. In the three or four days that T. D. remained at home, he changed the bag several times. He daily checked the site at which the tube entered T. D.'s skin and noticed that it had pulled out a little bit. However, he testified that he did not try to adjust the length of tube inside T. D., nor did he change the setting on the tube, which had "open" and "closed" settings for the pigtail at the end of the tube. The proper setting was closed, as the pigtail is not to be open once the stent has reached its destination in the kidney. On February 5, the father took T. D. to the emergency room of the Columbia St. Petersburg Medical Center, where she presented with complaints of severe back pain. An ultrasound confirmed the presence of kidney stones, whose removal had been deferred until the delivery of the baby. In an effort to locate the end of the tube, a radiologist inserted radiographic contrast dye, which showed that the end of the tube was in the intrathecal space of the spine. A urologist removed the tube. However, T. D. suffered a seizure. Another physician attempted an emergency C-section, but the baby did not live. There are two alternatives to explain how the stent at the end of the tube found its way into the spinal canal. First, Respondent placed it there during the procedure. Second, it migrated from the kidney, where Respondent placed it, to the spinal canal. If not unprecedented, both alternatives are extremely rare. The drainage during the procedure and initial improvement of the distended kidney are consistent with the proper initial placement of the stent. The difficulty of inadvertently turning a relatively short length of tube 90 degrees from the kidney to the spinal canal also militates against a finding that Respondent misinserted the tube. Problems with the first spinal tap may have contributed to some of the complaints, such as paralysis, that T. D. experienced after the procedure. Although unlikely, the migration alternative would be consistent with well-intended, but incorrect, attempts by the baby's father or a home health care nurse to ensure that the tube did not travel too far in or our of the point of entry. Migration would be facilitated if either the father or nurse misread the "open" and "closed" settings and turned to "open," in the hope of improving drainage, when such a setting opens the pigtail, which would increase the possibility that the stent could migrate into the spinal canal. In a case requiring proof that is clear and convincing, it is impossible to find that Petitioner has adequately proved that Respondent misinserted the tube during the procedure. Likewise, the evidence is not clear and convincing that Respondent should have recognized at anytime prior to T. D.'s discharge from the Columbia Largo Medical Center that something was wrong with the procedure that he had performed or that he needed to confirm by x-ray the location of the stent at the end of the tube.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 2nd day of August, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 2nd day of August, 1999. COPIES FURNISHED: Britt Thomas, Senior Attorney Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 William B. Taylor, IV Macfarlane, Ferguson & McMullen Post Office Box 1531 Tampa, Florida 33601-1531 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether Respondents performed a wrong procedure on patient C.C., as set forth in the second amended administrative complaints, and if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine in the state of Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to this proceeding, Respondents were licensed physicians within the state, with Dr. Kenneth D. Stahl having been issued license number ME79521 and Dr. Eddie Ward Manning having been issued license number ME110105. Dr. Stahl has been licensed to practice medicine in Florida since 1999 and in California since 1987. He has never had disciplinary action taken against either license. Dr. Stahl is board certified by the American College of Surgeons in general surgery, cardiac and thoracic surgery, and trauma and critical care surgery. Dr. Stahl's address of record is 3040 Paddock Road, Fort Lauderdale, Florida 33141. Dr. Manning has been licensed to practice medicine in Florida since May 31, 2011. He has never had disciplinary action taken against his license. On June 23, 2011, Dr. Manning was a resident in general surgery. Dr. Manning's address of record is 1900 South Treasure Drive, Apartment 6R, North Bay Village, Florida 33141. In February 2011, patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital (JMH) with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous (IV) antibiotics. She was discharged on March 4, 2011. On June 22, 2011, patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography (CT) scan of patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Dr. Stahl later described her anatomy as "very distorted." Patient C.C. was scheduled for an emergency appendectomy, and patient C.C. signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, Dr. Manning was the chief or senior resident, and Dr. Castillo was the junior resident. Notes indicate that Dr. Stahl was present throughout the critical steps of the procedure. Dr. Stahl had little recollection of the procedure, but did testify that he recalled: looking at the video image and seeing a tremendous amount of infection and inflammation and I pulled-–I recall that I myself went into the computer program and pulled up the CT scan and put that on the screen right next to the video screen that's being transmitted from the laparoscope and put them side-to-side and compared what the radiologists were pointing to as the cause of this acute infection and seeing on the laparoscopic video image that that indeed matched what I saw in the CT scan and I said, well, let's dissect this out and get it out of her so we can fix the problem. Dr. Stahl further testified that the infected, hollow organ that was dissected and removed was adherent laterally in the abdomen and was located where the appendix would normally be. He recalled that an abscess cavity was broken into and the infected, "pus-containing" organ that was removed was right in the middle of this abscess cavity. Dr. Stahl also recalled the residents stapling across the base of the infected organ and above the terminal ileum and the cecum and removing it. The Operative Report was dictated by Dr. Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the postoperative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that on June 23, 2011, at 8:00 a.m., patient C.C. "denies pain," and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with patient C.C. in the clinic the following Monday. At the meeting, patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The second amended administrative complaints allege that Dr. Stahl and Dr. Manning performed a wrong procedure when they performed an appendectomy which resulted in the removal of her ovary and a portion of her fallopian tube. It is clear that Dr. Stahl and Dr. Manning did not perform an appendectomy on patient C.C. on June 23, 2011. Dr. Stahl and Dr. Manning instead performed an oophorectomy and salpingectomy. It was not clearly shown that an appendectomy was the right procedure to treat patient C.C. on June 23, 2011. The Department did convincingly show that patient C.C. had a history of medical problems and that she had earlier been diagnosed with appendicitis, had been suffering severe pain for 12 hours with associated nausea and vomiting, that she suffered from an infection in her right lower quadrant, that the initial diagnosis was acute appendicitis, and that the treatment that was recommended was an appendectomy. However, substantial evidence after the operation suggests that an appendectomy was not the right procedure. The infected and inflamed organ that was removed from the site of a prior abscess was not an appendix. After the procedure, patient C.C. no longer felt severe pain in her lower right quadrant, with associated nausea and vomiting. She was discharged the following day and was asymptomatic. It is, in short, likely that the original diagnosis on June 22, 2011, was incorrect to the extent that it identified the infected organ as the appendix. The pre-operative diagnosis that patient C.C.'s severe pain and vomiting were caused by a severe infection in an organ in her lower right quadrant was correct. Surgical removal of that infected organ was the right procedure for patient C.C. If that inflamed organ was misidentified as the appendix before and during the operation, that would not fundamentally change the correctness of the surgical procedure that was performed. The evidence did not clearly show that the wrong procedure was performed. It is more likely that exactly the right procedure was performed on patient C.C. That is, it is likely that an oophorectomy and salpingectomy were the right procedures to address the abdominal pain that caused patient C.C. to present at the JMH emergency room, but that the right procedure was incorrectly initially denominated as an "appendectomy," as a result of patient history and interpretation of the CT scan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order dismissing the second amended administrative complaints against the professional licenses of Dr. Kenneth D. Stahl and Dr. Eddie Ward Manning. DONE AND ENTERED this 15th day of July, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2015.
The Issue Whether Respondent's license to practice medicine should be suspended, revoked or the licensee otherwise disciplined for alleged violations of Chapter 450, Florida Statutes, as set forth in the Amended Administrative Complaint dated March 1, 1984. The Amended Administrative Complaint in this proceeding alleges that Respondent, either individually or in concert with other attending physicians, ordered or prescribed certain nephrotoxic drugs to a patient who suffered from renal impairment, "that Respondent failed to appropriately monitor such medication or its effects," and that the patient suffered renal failure and vestibular and cochlear impairment. It is alleged in the complaint that Respondent therefore violated Section 458.331(1)(t) Florida Statutes, by committing gross or repeated malpractice or failure to practice medicine at an acceptable level of care, skill, and treatment. The complaint also alleges that Respondent altered patient records by inserting false laboratory reports, additional progress notes, and other additions, and failed to appropriately document the justification for the patient's course of treatment, in violation of Section 458.331(1)(i),(1), and Florida Statutes. At the hearing, Petitioner presented the testimony of 9 witnesses and submitted 7 exhibits in evidence. Respondent called 5 witnesses, and the parties stipulated to the expected testimony of Dr. Maynard Taylor. During the course of the hearing, Petitioner introduced into evidence a deposition of Respondent which was taken in a civil proceeding in the Pasco County Circuit Court to which Respondent was not a party, but which involved the same medical treatment provided to patient Michael Marotta that resulted in the Administrative Complaint herein. (Petitioner's Exhibit 3) The Hearing Officer determined that any admissions made by the Respondent that are reflected in the deposition were admissible in this proceeding pursuant to Section 90.803(18), Florida Statutes. Petitioner submitted a posthearing list of purported admissions contained in the deposition, and Respondent filed a response thereto conceding that some of the statements by Respondent constituted admissions and that others did not. Those statements of Respondent which are deemed to constitute admissions are included in the following findings of fact. Petitioner also sought to have its Request for Admissions deemed admitted pursuant to Rule 1.370, Florida Rules of Civil Procedure, due to Respondent's untimely response thereto. Respondent opposed Petitioner's request on the ground that his response was timely under the rules of discovery and, even if such rules were inapplicable in an administrative proceeding, he should be granted relief due to excusable neglect or inadvertence. Although Respondent's claims are not deemed meritorious, certain of the requests for admissions which were denied by Respondent were not in conformance with the evidence presented at the hearing. Those admissions which are properly considered to be within the scope of discovery requests are reflected in the following findings of fact. The proposed recommended orders filed by the parties have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary or irrelevant, or unsupported in law or fact.
Findings Of Fact Respondent Nrisingha Das Mukherjee is licensed to practice medicine in the State of Florida, and was so licensed at all times material to the allegations in the Amended Administrative Complaint. On October 1, 1979, Michael Marotta, then sixty years old, was admitted to the West Pasco Hospital, New Port Richey, Florida, by Dr. Jack Lund. His complaints were a severe cough and chest pains. He had experienced shortness of breath with increasing severity for several days prior to admission, with a productive cough and generalized malaise. He had a long-standing pulmonary history, including tuberculosis at age twenty, with right lower partial lobectomy in 1949. He had been treated for hypertension since 1954 or 1955. The physician's admission diagnosis was bronchial pneumonia. (Testimony of Michael Marotta, Reines, Petitioner's Exhibit 1) During Marotta's hospitalization, it was determined by Dr. Lund that he had cancer of the colon. Dr. Lund then contacted the Respondent on October 9, 1979, for assistance with the surgical management of the patient. Respondent determined that surgery was required, but called in Dr. Jeffrey Reines, a cardiologist and internist, for a consultation on October 10, 1979. (Testimony of Lund, Reines, Petitioner's Exhibit 1) Dr. Reines examined the patient and his consultation report reflected impressions of atherosclerosis, possible coronary artery obstructive disease, chronic restrictive pulmonary disease, chronic obstructive pulmonary disease, resolving bronchitis or pneumonia, tachycardia, probable cecal carcinoma and an abnormal cardiogram. He found that the patient was a high-risk candidate for the contemplated surgical procedure because of his cardiac status and poor pulmonary status, and therefore felt it might be necessary to postpone the surgery for a short period of time for transfusional therapy, pulmonary function testing, and pulmonary psysiotherapy. (Testimony of Reines, Petitioner's Exhibit 1) As a result of Dr. Reines' recommendations, surgery was postponed until October 15, 1979, at which time Respondent performed an exploratory laparotomy, a hemicolectomy, and a cholecystectomy on patient Marotta. During surgery, the patient experienced an episode of bradycardia for a short period of time whereby there was a decrease in the patient's heart rate and blood pressure. (Testimony of Reines, Petitioner's Exhibit 1) After surgery, the patient suffered acute renal failure and he was transferred on October 16, 1979, to Community Hospital in New Port Richey for dialysis treatment. Since that time, he has had to remain on dialysis, and additionally has suffered impairment in balance and hearing functions. Marotta had never previously experienced kidney, balance or hearing problems. (Testimony of Reines, Michael Marotta, Marie Marotta, Petitioner's Exhibit 1) Prior to the time that Respondent entered the case on October 9, 1979, Dr. Lund had prescribed drug therapy, including garamycin, penicillin, lasix, and lanoxin. Additionally, the patient was given an IV pyelogram (IVP) and cholecystogram which are used to determine kidney and gallbladder functions. Respondent prescribed erythromycin, neomycin, keflin, and utilized a neomycin wash during surgery. Prior to surgery, Respondent had also ordered an aminoglycocide for the purpose of cleansing the bowel of gram negative organisms. Dr. Reines had also ordered garamycin for the patient prior to surgery. After surgery, Respondent prescribed teflin, gentamycin, and lasix. However, all drugs were discontinued on October 16, 1979. (Testimony of Reines, Petitioner's Exhibit 1) The antibiotic and other drugs used in the treatment of Marotta are potentially nephrotoxic, particularly when used by patients with impaired renal function. In addition otoxicity can occur in patients with preexisting renal damage who are treated with garamycin. It is therefore necessary that close monitoring of renal function be maintained even in patients with normal renal function if they develop evidence of nitrogen retention, as shown by laboratory tests. Neomycin presents similar problems and concurrent use of the two drugs, together with diuretics such as lasix, should be monitored closely for patients with impaired renal function. (Testimony of Willey, Petitioner's Exhibit 1, 4) Tests performed on Michael Marotta when he was admitted to West Pasco Hospital indicated that there might be some kidney function impairment. However, during the course of treatment, his kidneys were monitored by standard tests and his kidney function was deemed to be adequate until subsequent to the surgical procedure. Conflicting evidence was received at the hearing concerning the adequacy of such testing. In addition, false BUN and creatinine test results purporting to have been performed on October 3, 5, and 7, 1979, were prepared and made a part of Marotta's medical record by an unknown person at an unknown time subsequent to the period of hospitalization. However, it is found that insufficient evidence was presented to establish that Respondent failed to adequately monitor the patient's condition during the period in which he provided treatment. (Testimony of Willey, Reines, Stadnitski, Shaneyfelt, Downey, Barr, Abbey, Petitioner's Exhibits 1, 3-5, 7) Although the medications ordered by Respondent, in conjunction with those ordered by the other physicians in the case had potential nephrotoxic effect, it is found that they were administered as necessary to prevent serious infection in a patient who had advanced cancer. In such a situation, every effort must be made to prevent such infection by the use of antibiotics. In the opinion of an expert in the field of surgery, Dr. Joseph Abbey, the use of such medications in such an instance constitutes a calculated risk which is acceptable if the patient is well hydrated and monitored closely. His opinion conforms with that of Dr. Reines, the internist, who testified that the patient was in a life-threatening situation due to his overall poor physical condition which justified use of the medications in question because all of the patient's organs were threatened and he otherwise would have been subjected to peritonitis. He also felt that if the patient had been taken off diuretics, he probably would have gone into congestive heart failure. Since the patient had acute tracheal bronchitis, he felt that no less toxic antibiotics could have been given to the patient than were used during the course of treatment. (Testimony of Abbey, Reines) Dr. Reines was also of the belief that the patient's renal failure was exclusively caused bye the bradycardia episode that had occurred during surgery. This opinion was disputed by Petitioner's expert pathologist, Dr. Edward Willey, who testified that the kidney failure had been caused by the cumulative effects of toxic drugs and dyes administered to the patient. He was, of the opinion that the period of bradycardia had a relatively insignificant effect on the patient's renal condition. However, the nephrologist who examined Marotta on October 16, 1979, was of the view that renal failure was "probably secondary to possible hypotensive episode intra-operatively and nephrotoxic drugs." (Testimony of Reines, Willey, Petitioner's Exhibit 1) At some undetermined time after Respondent had made original entries in Marotta's medical records, he made additional entries on various pages concerning various laboratory tests that had been made during the course of treatment. No evidence was presented that these late entries were inaccurate or misleading. Additional late entries were made on several pages of the record, including the signed patient consent to surgery form on October 14, 1979. Paragraph 6 of the printed form reflected that the nature and purpose of the operation, possible alternative methods of treatment, the risks involved, and the possibility of complications had been fully explained. At the bottom of the form in handwriting, Respondent had added a handwritten note stating that he had explained in detail the pros and cons of surgery to the patient, and that the mortality and morbidity of the surgery and medical treatment had been discussed. In several other instances, Respondent had added similar notes in handwriting on pages of the record stating that he had discussed with the patient and/or his family the "bad risks involved for surgery and medical management," "the risk of surgery in the face of poor lung function and kidney function," and "Bowel prep with neo and Erythromicin discussed with patient - risk explained." At least one of these late entries had been made sometime in 1981 after the records had been numbered by hospital personnel. One of the other entries reflected the correction of the erroneous date of "10/10/80" to 10/10/79. All of the entries purported to have been made on dates during October 1979. Although it is not unusual for physicians to make late entries to complete the hospital records after a patient is discharged, and to date the delayed entry as the date that treatment was given, normally this is accomplished in a relatively short period of time unless there are multiple physicians involved in the case. It would be rare that an entry was dated over a year after discharge of the patient. Both Michael Marotta and his wife denied that they were ever advised by Respondent that the medications in question were dangerous to or could affect the kidneys. (Testimony of Shaneyfelt, Robinson, Michael Marotta, Marie Marotta, Petitioner's Exhibits 1, 6) Respondent has a reputation in the local medical community as a competent and respected surgeon since his arrival in New Port Richey some five or six years ago. (Testimony of Marlow, Lincer, Wright, Stipulated testimony of Abbey)
Recommendation A hearing was held in the above captioned matter, after due notice, at New Port Richey, Florida, on March 13-14, 1984, before Thomas C. Oldham, Hearing Officer.
