The Issue The issues are whether the Respondent, a licensed physician, violated section 456.072(1)(bb), Florida Statutes (2013),1/ by mistakenly injecting a one-percent solution of Xylocaine® into an unintended site on a patient’s left hip in advance of performing a right-side trochanteric bursa steroid injection; and, if so, the appropriate penalty.
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of medicine in Florida under section 20.43 and chapters 456 and 458, Florida Statutes (2017). The Respondent is a board-certified anesthesiologist but no longer practices in that specialty, but instead practices pain management medicine in Sarasota. She has been licensed as a physician in Florida since August 15, 2006, and has not been disciplined by any state licensing board. L.S. is one of the Respondent’s pain management patients. In August 2013, she was 50 years old, stood 5’8” tall and weighed 310 pounds. She was considered morbidly obese and suffered from multiple medical issues, including recurring trochanter bursa pain in her right hip. The Respondent proposed a procedure involving the injection of steroidal fluid into the right trochanter bursa sac, guided by fluoroscopy, to reduce inflammation and alleviate the patient’s pain. During this procedure, contrast dye is first injected into the site to enable the physician to use fluoroscopy to visualize and guide the placement of the relatively large-gaged needle into the bursa sac within the hip joint and injection of steroidal fluid into the bursa sac. The patient agreed to the proposed procedure but did not want to be awake while it was being performed. It was agreed and arranged that, instead of being performed at the Respondent’s office, as it normally would have been done, the procedure would be done at the Intercoastal Medical Group Ambulatory Surgery Center under deep sedation administered by Intercoastal’s staff (not by the Respondent). It also was decided and planned that the Respondent would administer a local numbing agent, using a smaller syringe and needle, to reduce post-operative pain from the bursa injection. When used for this purpose, particularly when the patient is going to be sedated for the procedure, the numbing agent can be administered either before or after the bursa injection. In this case, because the patient had a great fear of injections, it was decided to administer the numbing agent before the bursa injection. The procedure was scheduled for August 16, 2013. That morning, the patient met the Respondent in the pre-operative holding area at Intercoastal. The patient’s systems and medical history were reviewed again, and she consented to the right trochanter bursa steroid injection and the anesthesia. An identification band was affixed to the patient, and the injection site was identified and marked by the Respondent. Intravenous (IV) saline was started and oxygen was provided by nasal cannula. Pre-bursa injection medications of Robinul and Versed were given through the IV as a push. The Intercoastal anesthesiologist evaluated the patient and pronounced her capable of safely undergoing the injection under monitored anesthesia care. The patient was then transported to the operating room on a stretcher. The operating team included the Respondent, a certified registered nurse anesthetist (CRNA) who would administer the anesthesia under the supervision of the anesthesiologist, a circulating nurse, and a radiology technician. All but the Respondent were on staff at Intercoastal. Anesthesia monitors were placed, and the patient’s identity, injection site, and consents were confirmed. An anesthesia safety check was completed, and the patient was assessed for a difficult airway or aspiration risk. The team reviewed the plan and determined they were ready to proceed. The patient rolled onto the operating table from the stretcher, so that she was in a prone (face-down) position. The Respondent was positioned to the patient’s right side, where the equipment needed for the bursa injection was located. The patient’s identity, consents, and injection site were re-verified. A “time-out” was performed before proceeding with the administration of propofol. See Fla. Admin. Code R. 64B8-9.007(2)(b). The team verbally re-confirmed the patient’s identity, the intended procedure, and the injection site. After the “time-out,” the CRNA administered the propofol. In very short order, it was noted that the patient’s oxygen saturation had decreased, and she was having difficulty breathing. Immediate action was taken to resuscitate the patient. The propofol was discontinued, the stretcher was repositioned next to the operating table, the patient was rolled back over onto the stretcher in a supine (face-up) position, and oxygen was given. After a short time, the patient’s breathing and oxygen saturation returned to normal. The Respondent explained to the patient what had happened, and it was decided by all, including the patient, to proceed. The team preferred to use the operating table because it would be easier to use the fluoroscope there than on the stretcher. However, because of the apneic event that resulted shortly after the patient was rolled onto the operating table into a prone position the first time, the team decided not to repeat that maneuver. Instead, the team attempted to slide the patient back onto the operating table while remaining in a supine position. Due to the still partially sedated patient’s weight, the team decided it would be too difficult and unsafe to try to slide her onto the operating table. Ultimately, the team decided to leave the patient on the stretcher in a supine position. With the patient still on the stretcher in a supine position, the Respondent cleaned an unintended site on the patient’s left hip, which was then facing her and the injection equipment, draped the unintended site, and began to inject it subcutaneously with Xylocaine® one-percent solution as a local numbing agent. Before more than 0.5 of the 5 milliliters of the intended dose in the syringe was injected, the Respondent realized her mistake and withdrew the needle. She told the patient what happened and asked if the patient wanted her to proceed with the intended right trochanter bursa injection. The patient said yes, and the Respondent moved to the intended right side, injected 5 milliliters of the numbing agent at the intended site, and proceeded with the intended bursa injection. The Respondent documented the procedure accurately. Notwithstanding what happened, the patient still thinks very highly of the Respondent, continues to be the Respondent’s patient, and does not want the Respondent to suffer any license discipline as a result. She does, however, want it noted in her patient records for future reference that she overreacts to propofol and that care should be taken not to overdose her if it ever is used on her again. No license discipline against any of the Intercoastal staff has resulted from this incident. However, both the Respondent and Intercoastal have changed their operative procedures to require a second “time-out” if an emergency intervenes and interrupts an ongoing procedure, as happened in this case. This is the kind of safe practice improvements that can come from “near misses” and “close calls.” The Petitioner’s expert witness, Dr. Kevin Chaitoff, testified that the incident resulted in a violation of section 456.072(1)(bb). The Respondent called two experts, Dr. Jean- Louis Horn and Albert Wu, who testified that it did not. The Respondent and her experts contend that a trochanter bursa injection is not a surgery or the kind of procedure that must be reported if done, or attempted, on the wrong side or site. They also contend that the Respondent’s injection of some numbing agent at the wrong side or site in this case was not a wrong side/site procedure, or attempted procedure, because all other preparation was done for the procedure planned for and ultimately done on the intended right hip. In their view, what happened in this case should be chalked up as a “close call” or “near miss” that does not have to be reported, and should not result in discipline, because it would have a chilling effect, discourage reporting, and hinder safety improvements. The testimony of the Respondent and her experts also was based, in part, on their position that the subcutaneous injection of numbing agent was not preparation of the patient, but was something they called “pre-preparation.” Their testimony seems to beg the question, if that were just “pre-preparation,” what would qualify as preparation? Their testimony did not answer this question, but it does not have to be answered to resolve this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final finding the Respondent not guilty of violating section 456.072(1)(bb) and dismissing the Second Amended Administrative Complaint. DONE AND ENTERED this 17th day of November, 2017, 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 17th day of November, 2017.
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 disciplinary action should be taken against Respondent's license to practice medicine based on allegations that Respondent violated the provisions of Subsections 458.331(1)(m) and (t), Florida Statutes, arising from his treatment and care of Patient M.R., as alleged in the Administrative Complaint in this proceeding.
Findings Of Fact Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0077248. Respondent is a vascular surgeon, who is not board-certified in his area of practice. On November 27, 2000, Patient M.R., a 70-year-old male, was admitted to ORMC for a right-side carotid endarterectomy. Patient M.R. initially presented to Respondent in October 2000 with a number of health conditions, including chronic obstructive pulmonary disease (related to a 54-year history of smoking), cerebral vascular disease, atherosclerotic changes, and hypertension. Patient M.R. had a significant cardiac condition which resulted in a bypass procedure. It was determined at that time that Patient M.R. had significant stenosis in both carotid arteries which would require Patient M.R. to undergo two separate procedures, known as carotid endarterectomies. The left carotid artery was the subject of the first procedure in October 2000. Patient M.R. tolerated this procedure with no complications. Subsequent to the first carotid endarterectomy, but prior to the second, Patient M.R. suffered a transient ischemic attack (TIA), which is commonly referred to as a "mini-stroke." The symptomatic clinical presentation placed Patient M.R. in a high-risk category for peri-operative stroke. Respondent performed a right carotid endarterectomy on Patient M.R. on November 27, 2000. This requires the clamping of the artery in two locations, using a shunt to allow for the flow of blood. The incision must be made length wise in the controlled portion of the artery using an instrument to clear out the interior or lumen of the artery. This is done to reduce the stenosis and allow for better blood flow, without disbodying any particle from the wall of the artery. Once this is completed, the incision is patched, the clamps and shunt are removed, and the outer skin incision is closed. During the course of the above-described carotid endarterectomy, Respondent used a patch angioplasty with intra- operative shunt, which was manufactured from a pediatric feeding tube, and peri-operative neurologic monitoring. Immediately after the operation, the patient appeared to tolerate the procedure well, but was lethargic. Patient M.R. exhibited good movement in all four extremities and appeared to be neurologically intact, although he underwent extreme fluctuation in blood pressure. Patient M.R. was placed on ventilator support. The next morning, November 28, 2000, Patient M.R. had swelling and a hematoma in his neck on the right side, in the area of the incision. Respondent returned Patient M.R. to surgery, for exploration and evacuation of the hematoma. During the course of this second operation, Respondent observed a lot of swelling and edema in the operative site, but not much blood. Respondent evacuated the hematoma, and the carotid artery was found to have good blood flow. Later in the evening on November 28, 2000, Patient M.R. developed an acute neurologic deficit and was returned to the intensive care unit (ICU) at ORMC. Respondent ordered a Computerized Tomographry Scan (CT Scan) of the patient and an arteriogram. The results of the CT Scan showed a probable right occiptal infarct (stroke). The arteriogram showed significant occlusion of the right carotid artery extending to the carotid siphon. Patient M.R. was returned to the operating room in the early morning hours of November 29, 2000. Respondent made the decision to reopen the surgical area in an effort to resume blood flow in the right carotid artery that was seen to be occluded on the angiogram. Assisting Respondent on this November 29, 2000, procedure were John Horowitz, M.D., a board- certified vascular surgeon with nine years of experience, and Joseph Muller, M.D., a third-year general surgical resident at ORMC. During the November 29, 2000, procedure, Respondent reopended the previous incision in the skin and partially opened the patch that had previously been used over the carotid artery itself. Respondent performed a thrombectomy using a Fogarty "balloon" catheter in an effort to extract any debris that was causing the stenosis in the carotid artery. The balloon is placed into the carotid artery itself and is pushed up into the artery until it has passed whatever occlusion is present. Then the balloon is inflated and pulled back out, pulling with it any debris that is located within the artery. Near the conclusion of this November 29, 2000, procedure, a small piece of tubing was discovered in the surgical field. The piece of tubing was handed to Dr. Horowitz, who examined it and then placed it on the surgical tray. This piece of tubing was the same size, slope, and material cut from the feeding tube which was used as a shunt in the first surgery on November 27, 2000. There is conflicting testimony regarding the precise size and location of this piece of tubing that will be discussed below. What remains undisputed based upon the record in this case is that Respondent completed the surgical procedure on November 29, 2000, by closing the incision in the carotid artery and also in the skin of the neck. Dr. Muller is currently a surgical resident at ORMC, as he was at the time of the November 29, 2000, procedure. Dr. Muller testified that he had approximately two years and five months of residency training prior to the procedure in question. He estimated that he had observed approximately ten to 15 carotid endarterectomies. Dr. Muller testified that he observed a clear and slightly opaque piece of pediatric feeding tube coming out of the lumen of the artery as Respondent was evacuating debris after the inflation of the Fogarty balloon catheter and after about three passes of the catheter. Dr. Muller also testified that the piece of tubing in question was two or three centimeters in length. The other witnesses to this event testified that the piece in question was two to three millimeters in length. Dr. Muller's description of the position of the surgeon and assistant surgeon was also contrary to that of the other witnesses. Dr. Muller also testified that he did not know Patient M.R.'s medical history or his previous hospital course of treatment. Dr. Horowitz, the senior physician assisting, is a board-certified vascular surgeon who has performed several hundred carotid endarterectomies. He testified that he was called in by Respondent to assist on the surgical procedure which took place in the early morning hours of November 29, 2000. He found the piece of tubing located somewhere within the surgical field, remote from the carotid artery. He was certain that it was after Respondent had cleared the artery with the use of the Fogarty balloon catheter and had cleared the surgical wound. Dr. Horowitz testified that he saw a piece of tubing among the debris that had been evacuated from the surgical wound. It was not in the lumen of the artery. He picked up the piece of tubing in question with his thumb and forefinger and examined it. He testified that it was approximately two to three millimeters in length. He agreed that the material was consistent with the pediatric feeding tube that was used to create a shunt for the first procedure. Dr. Horowitz's testimony is credible and persuasive. Dr. Horowitz also gave his opinion that based upon his observation of the November 29, 2000, procedure, he did not believe that Respondent deviated from the standard of care in his treatment and care of Patient M.R. Patient M.R. was returned to the ICU, where he deteriorated and showed evidence of complete lack of brain stem reflexes. Patient M.R. was later pronounced brain dead, and he subsequently died on November 30, 2000. Gregory Schreiber, M.D., was the anesthesiologist who was present for a portion of the November 29, 2000, procedure. Dr. Schreiber testified that he was present during the beginning portion and the end portion of the procedure, when anesthesia is introduced and when anesthesia is abated. He was not present in the operating room when the piece of tubing was found. Further, there was a drape that separates the operative field from the anesthesiologist during the course of this procedure, which would have prevented Dr. Schreiber or his assistant from being able to see into the operative field directly. Dr. Schreiber noted that Patient M.R. was considered a very high-risk patient, whose multiple co-existent diseases posed a constant threat to his life when he presented for this surgery. In addition to the testimony outlined above, Petitioner also introduced three affidavits into evidence. One affidavit was that of Lata Bansal, M.D., a neurologist who was brought in for consultation after the November 29, 2000, procedure. Dr. Bansal swore in her affidavit that when she first saw Patient M.R. he was already brain dead. She otherwise did not have specific recollection of Patient M.R. The affidavit of Peter D. Taylor, M.D., a cardiac specialist, stated that he recommended a Thallium stress test for Patient M.R. prior to carotid surgery. The stress test was conducted on October 17, 2000, and revealed no ischemia but moderately decreased left ventricle function. Because he had no ischemia, Dr. Taylor opined that Patient M.R. was at an increased but acceptable risk for carotid surgery. The affidavit of Marita Lu, Registered Nurse, who was present during the November 29, 2000, procedure, stated that she could remember very few details of Patient M.R.'s case, other than she has the "impression" that something was recovered from the wound and that when she asked whether there was a specimen, she was told there was no specimen. Nothing in her affidavit indicates to whom she asked this question regarding the specimen nor is there any indication who responded to her question. Respondent is a board-certified general surgeon who is eligible for a special certification in vascular surgery and who was working at a vascular surgery group in Orlando, Florida, as of October and November of 2000. Respondent no longer practices in the State of Florida. He currently is an assistant professor of surgery and director of endovascular surgery at Creighton University in Omaha, Nebraska. Respondent described in detail each of the three procedures he performed. On November 27, 2000, the original procedure on the right carotid artery proceeded in routine fashion. Respondent provided an exemplar, which was admitted into evidence, of a pediatric feeding tube which is substantially similar to the pediatric feeding tube utilized in the November 27, 2000, procedure on Patient M.R. He utilizes a portion of the pediatric feeding tube as a shunt in his carotid endarterectomy procedures. He demonstrated at the final hearing that the pediatric feeding tube itself is so flexible as to be incapable of breaking. The only means of cutting it down is through the use of surgical instruments. He also indicated that there was no way to further cut down the tubing once it had been placed. The scrub technician cut the pediatric feeding tube into the appropriate length to be used as a shunt during the November 27, 2000, procedure. Respondent recalled that prior to this particular procedure, the tubing in question was not originally cut down to the appropriate size. It had to be cut down while in the operating room. It is during this cutting of the tubing that a tiny sliver, approximately two to three millimeters in length, was removed from the larger piece of tubing and entered the surgical field. Respondent did not know and did not have any way of knowing that the piece of tubing had entered the surgical field, as he was focused on preparing the artery itself for its incision while this tubing was cut. Respondent testified that the pediatric feeding tube in question was cut down to size before any incision was made in the carotid artery itself. Respondent performed the November 27, 2000, procedure as he normally does. After the procedure, Patient M.R. experienced extreme fluctuations in blood pressure. This can occur in patients due to multiple factors involving the nervous tissue and blood flow in the carotid artery, but there is no specific explanation for why it does happen. Subsequent to the November 27, 2000, procedure, Respondent monitored Patient M.R., addressing the extreme fluctuations in blood pressure along with the consulting physicians referred to above. Respondent noted that Patient M.R. developed a hematoma subsequent to the first procedure. He made a determination that the best course for Patient M.R. would be to evacuate the hematoma. In Respondent's opinion, evacuating the hematoma would speed up the healing process. Respondent performed this procedure on November 28, 2000. Patient M.R. tolerated this procedure well, and there was nothing remarkable about the procedure itself. Respondent palpated Patient M.R.'s artery during the course of this procedure and used the Doppler to reinforce his findings on palpation. A Doppler signal gives more specific information about the varied nature of blood flow in the internal and external carotid arteries. It was not Respondent's standard practice, nor is it necessary, to create a medical record that palpation of the artery has occurred, since it is such a basic and common occurrence that its notation on the record is not deemed to be necessary. Respondent continued to follow Patient M.R. subsequent to the November 28, 2000, procedure. When it was determined that Patient M.R. had suffered a stroke, Respondent was left with a choice of either doing nothing, or reopening the artery in an effort to save Patient M.R.'s life. Respondent chose to reopen the artery in an effort to determine whether anything could be done to save Patient M.R. Respondent opened the prior incision in the carotid artery on November 29, 2000, and inserted the Fogarty catheter in order to evacuate any debris that was located within the carotid artery. Respondent testified that it was at about this time that the piece of tubing was found; however, he further testified that he did not see the tubing in question come from the lumen of the carotid artery. Respondent's testimony is credible. It was Respondent's opinion testimony that the piece of tubing in question was located in the subcutaneous tissue outside of the artery. Its exact location within the various layers of subcutaneous tissue was not observed during the procedure. It was not possible for the piece of tubing in question to have entered the artery at this time. There was no evidence to suggest that the piece could have migrated into the artery at a later time. James Dennis, M.D., is a board-certified vascular surgeon who is the chief of the vascular surgery department at the University of Florida in Jacksonville, Florida. Dr. Dennis has sufficient education, training, and experience to qualify as an expert in vascular surgery under Florida law. Dr. Dennis testified that he reviewed all of the pertinent medical records concerning the treatment and care provided by Respondent to Patient M.R. and that based upon his review of these records and based upon his education, training, and experience, it was his opinion to within a reasonable degree of medical probability that Respondent deviated from the accepted standard of care in his treatment and care of Patient M.R., which constituted a violation of Subsection 458.331(1)(t), Florida Statutes. Dr. Dennis also testified that in his opinion, Respondent violated Subsection 458.331(1)(m), Florida Statutes, in that he failed to compile appropriate medical records reflecting the treatment and care provided to Patient M.R. Dr. Dennis' standard of care opinions were based on several factors. First, it was Dr. Dennis' opinion that based upon the contents of the chart, the only time that the piece of pediatric feeding tube could have entered Patient M.R. was during the course of the November 27, 2000, procedure. Dr. Dennis testified that in his opinion, Respondent deviated from the standard of care in allowing the piece of pediatric feeding tube to enter Patient M.R.'s body. This would be his opinion even if Respondent did not see the sliver of tubing in question enter Patient M.R.'s body and even if the piece of tubing in question were so small and translucent as to be practically invisible. Dr. Dennis also testified that in his opinion, Respondent deviated from the standard of care during the November 28, 2000, procedure in that he failed to adequately palpate the carotid artery. Dr. Dennis was critical of Respondent's use of a Doppler to assess Patient M.R.'s pulse. In Dr. Dennis' opinion, the use of the Doppler was indicative a weakening pulse rate and that the proper practice would have been to palpate the artery by touch rather than by using a Doppler instrument. Dr. Dennis was also critical of Respondent during the November 28, 2000, procedure for his failure to find the piece of tubing in question. It is Dr. Dennis' opinion that the piece of tubing had to have been located within the lumen of the artery and that had Respondent adequately palpated the entire length of the carotid artery during the November 28, 2000, procedure, he would have located the piece of tubing within the artery and could have taken appropriate steps to remove the piece of tubing before Patient M.R. suffered his stroke later that night or during the early morning hours of November 29, 2000. Dr. Dennis' opinion that the piece of tubing in question had to have been located in the lumen of the artery was also based upon his assessment of the procedures performed. He discounted the theory that the piece of tubing was located within subcutaneous tissue outside of the artery because, in his opinion, the piece of tubing would have been discovered either during the November 28, 2000, procedure or earlier in the November 29, 2000, procedure if it had been outside the artery. However, according to Dr. Dennis, based upon the timing of when the piece of tubing was found, the tubing itself had to have been located within the lumen of the artery until it was removed in the November 29, 2000, procedure. Dr. Dennis also rendered the opinion that not only was the piece of tubing located within the lumen of the carotid artery, but that the piece of tubing is directly related to the stroke which Patient M.R. suffered later that day or the following morning, which caused his death. Dr. Dennis testified that the piece of tubing became lodged in Patient M.R.'s carotid artery and that as blood flowed by it, platelets attached to the tubing, slowly building up with the carotid artery, until Patient M.R. experienced 100 percent stenosis in the right carotid artery, leading to his stroke. In sum, Dr. Dennis' opinion was that Respondent deviated from the standard of care by allowing a piece of tubing to enter Patient M.R.'s carotid artery and that it was this tubing which lead to Patient M.R.'s stroke and ultimately his death. This is in spite of the fact that Dr. Dennis was not able to state within any degree of medical probability how the sliver of tubing could have entered the artery. Dr. Dennis also rendered an opinion during his final hearing testimony that Respondent deviated from the standard of care because he did not secure the piece of tubing at issue in this case and see to it that the tubing was sent to the pathology laboratory at ORMC for analysis. Morris Kerstein, M.D., a board-certified vascular surgeon, reviewed all of the pertinent medical records reflecting the treatment and care Respondent provided to Patient M.R. Dr. Kerstein had been practicing for 35 years, and he is currently the chief of the vascular surgery department at the Veteran's Administration Hospital in Philadelphia, Pennsylvania. Dr. Kerstein has sufficient education, training, and experience to qualify as an expert in vascular surgery under Florida law. Dr. Kerstein's opinion based upon his education, training, and experience is that Respondent did not deviate from the standard of care in his treatment of Patient M.R. First, Dr. Kerstein testified that in his opinion, Respondent's conduct during all three procedures at issue was appropriate. As to the November 27, 2000, procedure, there was no way for Respondent to be aware that the piece of pediatric feeding tube had entered the operative field. It was too small to be noticed, and it was of a translucent color which made locating it extremely difficult. He was not critical of Respondent for not cutting the tubing himself. He testified that if, in fact, the sliver of tubing entered the surgical area as a result of the scrub technician cutting the tubing, and a two to three millimeter fragment jettisoned into the surgical field, this would not constitute a deviation from the standard of care by Respondent. Dr. Kerstein testified that he felt the November 28, 2000, procedure was performed appropriately as well. He testified that it was not a deviation for Respondent to use a Doppler to feel for pulses in the arteries, and to the contrary, it reveals that Respondent was being meticulous beyond what the standard of care requires. He opined that Respondent certainly would have palpated the arteries in question, and to suggest otherwise based on the absence of a note to that effect is not an appropriate conclusion to draw. Dr. Kerstein rendered the opinion that he did not believe that the piece of tubing in question was located within the lumen of the artery of Patient M.R. He testified that there was no way for the tubing to enter the artery because the sliver in question came off of the longer tubing before an incision was made in the carotid artery. There is therefore no reasonable explanation as to how the piece in question could have entered the carotid artery in the first place. Dr. Kerstein also disputed the theory that not only was the piece of tubing located within the lumen of the artery, but also the piece in question actually caused Patient M.R.'s stroke. Dr. Kerstein relied principally on the radiographic studies. Both the CT Scan of the brain and the angiogram taken late in the evening of November 28, 2000, revealed a right posterior occipital infarct. The posterior of the brain is the back of the brain, and if the infarct was located there, it means that the cause of the stroke had to be something other than an occlusion in the carotid artery. This is because the arteries that feed the back portion of the brain are the basilar and vertebral arteries, not the carotid artery. Therefore, there could be no possible causal connection between the sliver in question and Patient M.R.'s stroke. Dr. Kerstein's opinion as to the cause of Patient M.R.'s stroke focused on his personal history rather than on the events of November 27, 2000. He noted that Patient M.R. presented with severe atherosclerotic changes, indicative of an advanced disease process. He noted that Patient M.R. suffered from chronic obstructive pulmonary disease, which was the product of his 54-year smoking history. He also noted Patient M.R.'s significant cerebrovascular disease. He also stated that thrombosis (or clotting of the blood) is a known complication of this procedure and can happen for several plausible reasons other than a sliver of tubing in the artery. All of these conditions conspired to predispose Patient M.R. to suffer a significant event such as the stroke he suffered on November 28 through 29, 2000. Dr. Kerstein also noted that the piece of tubing was completely inert, and given its size and its location in the subcutaneous tissue outside of the carotid artery, the tubing would have had no impact whatsoever on Patient M.R.'s prognosis. The tubing in question is an example of inert material that can remain inside the body, such as the case of a bullet which is located too close to the spinal cord to allow for an operation to remove it, without causing the body any harm. Dr. Kerstein had no criticism of the medical records Respondent kept regarding the treatment he provided to Patient M.R. He specifically noted that the records were accurate and honestly reflected what had occurred during the procedure. The fact that no foreign object was noted in the first two procedures was appropriate because at that point, he had no reason to suspect the presence of a foreign object. The lack of reference to a cause of Patient M.R.'s atypical post-operative course was appropriate because in fact Respondent could not have defined a single reason why Patient M.R. was reacting the way he did. Finally, the operative note from the November 29, 2000, procedure was appropriate, as it also honestly and accurately depicted what had occurred; he made a specific comment on Respondent's note that the sliver was not indeed from the lumen, but that the exact location was unclear, finding this to be an unambiguous statement of fact. Dr. Kerstein also disagreed with the state's position with regard to the responsibility for maintaining possession of the piece of tubing post-operatively. Dr. Kerstein testified that it was the responsibility of the circulating nurse, an employee of the hospital, to arrange for the piece of tubing to be sent to the pathology lab for examination. The evidence is insufficient to support Petitioner's contention that the pediatric feeding tube sliver at issue caused Patient M.R. to suffer a stroke because of its location within the carotid artery itself. Radiographic studies were performed on Patient M.R. after the stroke. A CT Scan performed on November 28, 2000, revealed an acute right posterior cerebral artery distribution infarct. Further, a cerebral angiogram was performed on November 28, 2000, and revealed "markedly diseased circulation particularly in the right vertebral and basilar arteries." This note also revealed: "Severely diseased posterior fossa circulation." Based upon the location of the infarct in Patient M.R.'s brain, the cause of the stroke had to have been either the vertebral or basilar arteries that supply blood to the posterior part of the brain. In view of all the evidence, the expert testimony of Dr. Kerstein, together with that of Dr. Horowitz, was more persuasive than that of Dr. Dennis in regard to the standard of care and Respondent's actions in this matter.
Recommendation Based on all the evidence of record, it is RECOMMENDED that the Board of Medicine enter a final order holding that the evidence is not clear and convincing that Respondent has violated either Subsections 458.331(t) or (m), Florida Statutes, in his treatment of Patient M.R. and that the Administrative Complaint be dismissed. DONE AND ENTERED this 9th day of June, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 9th day of June, 2003. COPIES FURNISHED: Michael D'Lugo, Esquire Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A. 390 North Orange Avenue Suite 1000 Orlando, Florida 32802 Daniel Lake, Esquire Department of Health 4052 Bald Cypress Way Bin C-65 Tallahassee, Florida 32399-3265 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issues for determination are whether Respondent Bernard Zaragoza, M.D., violated Section 456.072(1)(bb), Florida Statutes (2007), as alleged in an Administrative Complaint filed by the Department of Health before the Board of Medicine on June 30, 2008; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
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. § 20.43 and Chs. 456 and 458, Fla. Stat. Respondent, Bernard J. Zaragoza, 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 67920. Dr. Zaragoza’s address of record is 3100 Coral Hills Drive, Suite 207, Coral Springs, Florida 33065. Dr. Zaragoza is certified in general surgery by the American Board of Surgery. Dr. Zaragoza has not been the subject of any investigation, claim, or complaint relating to his professional career other than this matter. Dr. Zaragoza graduated, Summa Cum Laude, from the University of Miami with a bachelors degree. He earned his medical degree from Harvard Medical School. Dr. Zaragoza performed a five-year surgical residency program at New York Medical College’s Westchester County Medical Center. During his residency, Dr. Zaragoza performed hundreds of laparoscopic procedures, including laparoscopic cholechstectomies (removal of the gallbladder). A laparoscopic surgery is a technique in which the abdomen is entered through small incisions rather than “opening up” the abdomen. Normally, for abdominal laparoscopic surgery, incisions are made at the belly button. This is the point which is usually closest to the peritoneal cavity, thus reducing the distance from the skin the surgeon must work through and the surgeon has a broader view of the abdomen. By October 2007, Dr. Zaragoza had performed in excess of 2,000 laparoscopic cholecystectomy procedures. Patient J.C. On October 1, 2007, Patient J.C., a male, 83 years of age, presented at Northwest Medical Center, located in Margate, Florida, for treatment of abdominal pain and vomiting. Patient J.C. had reported with the same symptoms a month earlier and had been diagnosed with chronic cholecystitis, a chronic inflammation of the gallbladder due to the blockage of the bile ducts by gall stones. It is a life-threatening condition. Patient J.C. was admitted by Rafael Rodriguez, M.D., who requested a consultation by Mark Shachner, M.D., Dr. Zaragoza’s partner. Dr. Shachner confirmed a diagnosis of acute cholecystitis and, in light of the failed conservative therapy which Patient J.C. had undergone since his first visit and the potential threat to his life, Dr. Shachner recommended surgery. It was concluded that Patient J.C. would undergo an attempted laparoscopic cholecystectomy. Dr. Zaragoza was to perform the procedure. It was concluded that a laparoscopic procedure was the appropriate procedure for Patient J.C. due to his medical history: atrial fibrillation, Alzheimer’s disease, hypertension, and diabetes. He had also undergone prior abdominal procedures. The parties did not dispute that a laparoscopic procedure, because it was likely to reduce post- operative complications, was the best type of surgical procedure for Patient J.C. Patient J.C., as a result of a prior gastrectomy, had a long midline incision extending from the Xiphoid upper abdomen to below the belly button. As a result of this surgery, Patient J.C. had extensive adhesions of tissue up to the midline. Patient J.C. had also undergone an appendectomy. It was concluded that, due to Patient J.C.’s condition and abdominal surgical history, rather than entering at the belly button and risking injury to any structures that were adhesed to the midline, a “right-sided” incision point would be used. The Department does not dispute the appropriateness of this decision. Unfortunately, by using a right-sided incision point, Dr. Zaragoza’s visualization of Patient J.C.’s abdominal cavity was reduced. Patient J.C. and his family were fully informed of the nature of the proposed surgical procedure and the risks, after which Patient J.C. signed a written consent for surgery. The written consent included an authorization to “take whatever action(s) and to perform whatever procedures(s) they deem necessary and advisable, which may be in addition to or different from those now planned” and an acknowledgement that the surgery to be performed “may result in perforation or injury to adjacent organs or structures.” None of the witnesses convincingly testified that the authorization included the authority to remove healthy organs or that the acknowledgement included any suggestion that a healthy organ might be completely removed. Surgery was scheduled for October 2, 2007. Dr. Zaragoza began the surgery with a right-sided approach, freeing up the area and attempting to identify important structures in the right upper quadrant of the abdomen. In particular, the important structures Dr. Zaragoza attempted to locate were the liver, colon, and the gallbladder. Dr. Zaragoza encountered extremely heavy adhesions (8 on a scale of 1 to 10) in Patient J.C.’s abdomen. Dr. Zaragoza considered the risks of continuing or switching to an open abdomen procedure and correctly concluded it was best to proceed. Dr. Zaragoza freed up extensive adhesions and was able to correctly identify the liver. Unable to identify the gallbladder and due to the extensive adhesions in the area of the intestine, Dr. Zaragoza stopped the procedure in order to retrieve a CT scan of the area and personally evaluate the images. In order to expedite receipt of the CT study, Dr. Zaragoza scrubbed out and personally walked to the radiology suite. After returning, Dr. Zaragoza read the CT scan and the radiologist’s interpretation, which indicated that the gallbladder was posterior to the transverse colon. Dr. Zaragoza returned to Patient J.C., mobilized the colon to free it from the liver and attempted to locate the gallbladder behind the colon where he expected it to be. What Dr. Zaragoza found behind the transverse colon was a dark, thickened, and solid structure in the anatomical position which the CT scan and radiologist report suggested the gallbladder would be located. While the gallbladder, which consists of a water sac, is normally soft, pink, and pliable, this is not the case with an inflamed and infected one. Given Patient J.C.’s history of chronic cholecystitis with an acute cholecystitis secondary to the blockage of bile ducts by gallstones, Dr. Zaragoza was expecting to find a dark, thickened, and solid gallbladder in Patient J.C. Concluding that the structure he had located was the gallbladder, Dr. Zaragoza freed the organ of surrounding tissue, freeing away without incision adhesions to the organ, bringing the organ into position for removal. As Dr. Zaragoza began to free up the fat tissue around what he believed were the bile duct and blood vessels of the gallbladder, the organ ruptured, revealing a solid mass. Dr. Zaragoza believed that the mass was a tumor, which Dr. Zaragoza had encountered in other gallbladder surgeries. Dr. Zaragoza continued the procedure, separating the gallbladder for removal. While dividing what he believed was a cystic duct, Dr. Zaragoza encountered a bifurcation that did not correspond to the anatomy of the gallbladder. At this point, Dr. Zaragoza decided that surgery needed to be converted from laparoscopic to an open procedure. After doing so, a frozen section of the organ was sent to pathology for evaluation, in order to obtain a rapid evaluation of the tissue. The pathology report revealed that the organ that Dr. Zaragoza had removed from Patient J.C. was a healthy kidney. Dr. Zaragoza thereupon located the gallbladder by examining the dense adhesions around the colon, a risky procedure. Ultimately Dr. Zaragoza was required to cut into the transverse colon where he located the gallbladder, which had eroded into the transverse colon. Dr. Zaragoza then completed the surgical procedure, removing the gallbladder. Patient J.C.’s family was immediately advised of what had taken place; that Dr. Zaragoza had removed a kidney, in addition to successfully removing the gallbladder. The removal of a healthy kidney involves a medical procedure totally unrelated to removal of an unhealthy gallbladder. Removal of a healthy kidney is not a known or expected complication of gallbladder removal. Dr. Zaragoza’s removal of Patient J.C.’s kidney during gallbladder surgery constituted a “a wrong-site procedure, wrong procedure, or an unauthorized procedure, or a procedure that is medically unnecessary or otherwise unrelated to the patient’s diagnosis or medical condition.” The Department’s proposed findings of fact 12 through 20 contained in the Department’s Proposed Recommended Order, are accurate, support the ultimate findings of fact made in this paragraph and are subordinate thereto. Proposed findings of fact 36 through 38 of Respondent’s Proposed Order in large part accurately reflect the difficulty of the surgery performed on Patient J.C. Even the Department’s own expert noted that he thanked God Patient J.C. had not been his patient. The suggestion in paragraph 26 that the removal of the kidney was “simply an unwanted complication associated with this cholecystectomy procedure” is, however, not supported by the weight of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine finding that Bernard J. Zaragoza, M.D., has violated Section 456.072(1)(bb), Florida Statutes, as alleged in the Administrative Complaint; imposing a fine of $5,000.00; issuing a letter of concern; requiring the completion of five hours of risk management education; and requiring that he perform 50 hours of community service. DONE AND ENTERED this 6th day of April, 2010, in Tallahassee, Leon County, Florida. 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 6th day of April, 2010. COPIES FURNISHED: Rolando A. Diaz, Esquire Kubicki & Draper 25 West Flagler Street, Penthouse Miami, Florida 33130 Robert A. Milne, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Diane K. Kiesling, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues in this case are whether Respondent violated Subsections 458.331(1)(m), 458.331(1)(t), and 458.331(1)(bb), Florida Statutes (2005),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the State of Florida agency charged with regulating the practice of medicine in Florida pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all times material to the Administrative Complaint, Dr. Labs was a licensed medical doctor within the State of Florida, having been issued license number ME 61579. Dr. Labs is certified by the American Board of Surgery and the American Board of Plastic Surgery. In April 2006, W.S. went to see Dr. Labs for a consultation. In the late 1980’s, W.S. had had breast implants placed by a physician in Texas. In 1995, another physician did a mastopexy to lift her breasts. W.S. wanted Dr. Labs to replace the breast implants that had been in place since the late 1980’s with smaller implants, to reduce the size of her breasts by excising tissue, and to lift the breasts with a mastopexy. She was under the impression that the implants which she currently had had been placed underneath the pectoral muscle, and she told Dr. Labs that she wanted to have the new, smaller implants also placed underneath the muscle, meaning subpectoral placement. Dr. Labs agreed to place the implants subpectorally. There are two ways that implants can be placed subpectorally. The first method involves placing the implant entirely under the muscle and then suturing the implant in place. There is very little migration of the implant with this method because the implant is tightly held by the muscle. The second method is called a dual-plane technique. In this method, a portion of the implant is placed under the pectoral muscle and a portion of the implant is covered by the glandular or lower part of the breast. Dr. Labs performed a bilateral reduction, mastopexy, and implant exchange on W.S. on April 25, 2006. His operative report described the procedure as follows: The patient was taken to the operating room after being marked in the standing position. She was placed in the supine position for smooth induction of anesthesia. Sequential compression boots were placed for DVT prophylaxis. The procedure began with de- epithelization of skin above each nipple for reinset. Scars were then excised around the nipple and from the vertical incision beneath the nipple to inframammary fold. Skin flaps were elevated and, then the central nipple pedicle preserved. Implants were removed, and breast tissue was excised laterally. The implants were then replaced with silicone implants after Betadine irrigation and surgical glove change. The removed implants were 220cc. The replaced implants were 175cc, and each breast was subjected to a 75 gram reduction. Towel clips were placed, and the patient was placed in the sitting position. Symmetry was excellent at the conclusion of the procedure. Multiplayer inset was then performed. The patient was placed in a sterile bulky dressing and Ace wrap. She returned to the recovery room in satisfactory condition, having tolerated the procedure well. Final sponge, needle and instrument counts were correct at the conclusion of the procedure. The patient was given explicit postoperative instructions for the care and maintenance of her wound and will be seen again in followup at the plastic surgery office. Dr. Labs took out the 220cc implants and placed 175cc implants in the same pocket where the 220cc implants had been placed. The 220cc implants which Dr. Labs removed had a small rim of the superior portion of the implants placed underneath the muscle. The remaining portion of the implants were subglandular. Dr. Labs placed the superior medial portion of the 175cc implants between .5 and 2.5 centimeters under the muscle, meaning that about ten percent of the implants were placed under the muscle. The remainder of the implants was subglandular. The method used by Dr. Labs was the dual-plane method and is considered to be a subpectoral placement. W.S. signed a consent form, which included an explanation of risks associated with open capsulectomy with breast implant exchange surgery. The risk of implant displacement was explained as follows: Displacement or migration of a breast implant may occur from its initial placement and can be accompanied by discomfort and/or distortion in breast shape. Difficult techniques of implant placement may increase the risk of displacement or migration. Additional surgery may be necessary to correct this problem. Subsequent to the surgery by Dr. Labs, W.S. began to experience problems with her breasts. The breasts were distorted, became an odd shape and stuck out more than her breasts had done with the implants placed by the Texas physician. Her breasts were bulging in the front and middle. W.S.’s breasts became uncomfortable, and W.S. was unable to lie on her stomach. The breasts did not look or feel natural; they were stiff, hard, and tight. The problems began to occur not long after the surgery; however, the distortion was not present until a month after the surgery. On December 6, 2006, W.S. visited Alexia Marciano, M.D., a board-certified plastic surgeon, for a consultation concerning the problems she was having with her breasts. On examination, Dr. Marciano noted that W.S. had pseudoptosis, which means there was some loose skin, but the nipple was still above the inframammary fold. Dr. Marciano observed that W.S.’s breasts were distorted, irregular in shape and position. There were capsular contractures, which are scar tissue that forms around the implants. The capsular contractures were a grade IV,2 which means that one could look at the breast and visually see the tightening. To Dr. Marciano, the implants appeared to be on top of the muscle, based on “the superficiality and the position of the implants in relation to the skin above and to the pectoralis muscle on the upper portion of the chest and on palpation.”3 W.S. advised Dr. Marciano that she wanted to have surgery to correct the problems she was having with her breasts and that she wanted to have smaller implants placed under the muscle. On January 19, 2007, Dr. Marciano performed a capsulectomy, which is moving the capsule or shell of the scar around the implant; an explantation of the silicone implants, which is removing the current implants; and an augmentation, which is putting in new implants. When Dr. Marciano made incisions in each breast to find the capsules, she found the capsules right beneath the subcutaneous tissue, which is basically right beneath the skin and above the pectoralis major muscle. Although Dr. Marciano found the implants which had been placed by Dr. Labs, above the major pectoralis muscle, she could not determine where the implants were actually placed by Dr. Labs at the time he performed the implant exchange on W.S. Dr. Marciano removed the silicone implants, identified the pectoralis muscle, incised the inferior edge of the pectoralis muscle, and dissected the plane underneath the muscle. Dr. Marciano placed new implants, which were 150cc’s, on both breasts. The new implants were placed entirely underneath the muscle, and the small opening that was made in muscle fascia was closed with sutures so that the implants were in a closed pocket. Capsular contraction, such as W.S. experienced, can cause the implants to move. Additionally, during the early stages after an implant has been placed, there is more potential for the implant to move before the capsule forms. Based on the evidence presented, the logical inference is that the capsular contraction caused the implants placed by Dr. Labs to move from underneath the pectoralis muscle so that the implants came to rest in a subglandular position as Dr. Marciano found them. There were no medical records admitted in evidence from the Texas physician who placed the original implants in the 1980’s. Based on what Dr. Labs found when he exchanged the implants, it is probable that the Texas physician used the dual- plane method to insert the implants, meaning that a portion of the implants were subglandular. This scenario comports with one of the hypotheses set forth by the Department’s expert, who surmised that, based on the preoperative photographs taken by Dr. Labs, it appeared that the Texas physician may have placed the original implants in a subglandular position rather than in a subpectoral position. If the Texas physician had used a dual- plane method and placed a small portion of the implants under the rim of the pectoralis muscle, then a large portion of the implants would appear to be placed in a subglandular position as surmised by the Department’s expert; when, in fact, the implants had been placed subpectorally as that term is commonly understood by plastic surgeons. Dual-plane placement also comports with W.S.’s distinct impression that the original implants had been placed under the muscle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Labs did not violate Subsections 458.331(1)(m), 458.331(1)(t), or 456.072(1)(bb), Florida Statutes, and dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of October, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2009.
Findings Of Fact Respondent is a licensed dentist in the State of Florida, having been issued license number DN 0009725. Respondent's last known address is 1521 Powell Court, Huntington, West Virginia, 25701. The minimum standard of care for treatment of any patient with periodontal disease who anticipates orthodontic treatment requires either that the underlying periodontal disease be resolved prior to orthodontic treatment or that the periodontal disease be controlled through frequent and regular periodontal care administered concurrently with the orthodontic treatment. Orthodontic treatment can exacerbate existing periodontal disease in any patient. Adequate, frequent, and regular periodontal care is especially important for adults who typically have less bone turnover and cell repair than that found in younger patients. Responsibility for monitoring and supervising the periodontal health of a patient is shared by the orthodontist, on the one hand, and either the general dentist or the periodontist, on the other. Respondent provided dental services and treatment to Michael J. Doherty, an adult male, from November 7, 1983, until sometime in June, 1985. The dental services and treatment provided by Respondent consisted of the extraction of 4 bicuspids and the application of an orthodontic appliance. Respondent first saw Mr. Doherty on November 7, 1983, at the Omni Dental Clinic (the "Clinic"). Respondent was not the dentist of record for Mr. Doherty. The dentist of record was a general dentist who was also employed at the Omni Dental Clinic. Mr. Doherty was diagnosed by the dentist of record as having early periodontal disease. The dentist of record prescribed treatment for Mr. Doherty's periodontal disease before Respondent began orthodontic treatment. The treatment for Mr. Doherty's periodontal disease consisted of: a gross scaling of Mr. Doherty's entire mouth on November 30, 1983; a prophylaxis cleaning for approximately one hour on December 14, 1983; and a periodontal scaling of the entire mouth on January 9, 1984. The patient was also instructed to increase the frequency of his brushing and other home health care. The patient was released for orthodontic treatment, and Respondent began such treatment on January 23, 1984. During Respondent's orthodontic treatment, the patient received two more prohylaxis cleanings in August, 1984, and on December 27, 1984. The diagnostic studies and periodontal treatment for Mr. Doherty prior to and during Respondent's orthodontic treatment of the patient were inadequate. Adults with existing periodontal disease should receive adequate periodontal care and monitoring every six weeks. The care required to properly treat the periodontal disease may range from basic scaling all the way to surgical procedures. Mr. Doherty received two prohylaxis cleanings during Respondent's orthodontic treatment. Responsibility for the periodontal health of a patient during orthodontic treatment is shared by the orthodontist. The condition of Mr. Doherty's periodontal disease deteriorated significantly during Respondent's orthodontic treatment. The patient consulted another orthodontis, Dr. David Kornbluth, on December 5, 1985. Dr. Kornbluth was concerned over the fact that the patient's teeth were very loose and that there was considerable pocketing in and around the teeth. Dr. Kornbluth questioned whether continued orthodontic treatment was appropriate and referred Mr. Doherty to a general dentist, Dr. Alan Burch. Dr. Burch examined Mr. Doherty on December 6, 1985, and concluded that the patient needed immediate periodontal and endodontic evaluation. Dr. Burch referred the patient to a periodontist, Dr. Leonard Garfinkel. 3/ Dr. Garfinkel examined Mr. Doherty on December 23, 1985, and diagnosed the patient as having severe periodontal disease with gross soft tissue inflammation and significant osseous loss. 4/ The condition of the patient's lower anterior teeth was poor. He had generalized pockets and excessive mobility in his teeth. The patient was instructed to discontinue orthodontic treatment and was placed on periodontic treatment consisting of three visits of deep scaling and curettage in conjunction with plaque control. The patient was also placed on a Hawley retainer to adjust his bite. 5/ The orthodontic appliance was subsequently removed and periodontic treatment in the form of deep scaling was repeated on March 27 and May 16, 1986. The patient's prognosis improved from poor to guarded. Respondent failed to meet the minimum standards of care in the practice of dentistry by applying orthodontic appliances without an accurate diagnosis of Mr. Doherty's periodontal condition. Respondent failed to meet the minimum standards of care in the practice of dentistry by providing orthodontic treatment without adequate care of the patient's underlying periodontal disease. Respondent was found guilty of negligence in the services provided to Michael J. Doherty. The adjudication of negligence was entered on January 1, 1988, in the Circuit Court of the Eleventh Judicial Circuit in Dade County, Florida. Respondent did not fail to keep adequate medical records. The Omni Dental Clinic was not operated or controlled by Respondent. Respondent was an independent contractor of the clinic. Records for Mr. Doherty were kept by both Respondent and the patient's general dentist and were maintained by the Clinic. The Clinic went out of business and disposed of the records in a manner that made them unavailable to Respondent. Records that otherwise would have been available to the parties in this proceeding were in the possession of counsel for the plaintiffs in the civil negligence action. The records produced in this proceeding did not comprise all of the records of Respondent.
Recommendation Based upon the foregoing facts and conclusions of law, it is recommended that Petitioner enter a final order finding Respondent guilty of violating Section 466.028(1)(y), Florida Statutes, impose a $5,000 administrative fine, and suspend Respondent's license for 3 months. The final order should provide that, upon reinstatement, the Respondent's license shall be placed on probation for a period of 2 years. During the period of probation, Respondent should be required to complete 30 hours of continuing education in diagnosis and treatment planing, 30 hours of continuing education in periodontics, and 18 hours of continuing education in risk management. All continuing education should be in compliance with Florida Administrative Code Rule 21G-12. RECOMMENDED in Tallahassee, Leon County, Florida, this 22nd day of July, 1991. DANIEL MANRY 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 22nd day of July, 1991.
The Issue Whether Respondent violated section 456.072(1)(v), Florida Statutes (2018), by engaging or attempting to engage in sexual misconduct.
Findings Of Fact The Department is the state agency charged with regulating the practice of osteopathic medicine and prosecuting disciplinary actions on the Board's behalf, pursuant to section 20.43 and chapters 456 and 459, Florida Statutes. Dr. Van Buskirk is an osteopathic physician. He is licensed to practice osteopathic medicine in the state of Florida pursuant to license number OS 5899, which has been active in good standing for over 30 years. Prior to the Complaint, he had never been disciplined or had a disciplinary action brought against him. V.C. was a patient of Dr. Van Buskirk from December 12, 2017, to August 28, 2018. As reflected in V.C.'s medical records, she sought treatment for chronic and acute pain, primarily in her neck, right upper leg, and right groin. V.C.'s right leg and groin issues caused her pain when walking, weakness on her right side compared to her left, and inability to lay in bed on her right side. V.C. was referred to Dr. Van Buskirk by a patient who had been treated by him and found the treatment helpful. V.C. was treated by Respondent once or twice a month, totaling 13 visits over the nine-and-one-half-month span. At each visit, V.C. first met with an assistant who obtained current information from V.C. regarding her pain issues and medical history/medication. After Respondent reviewed the information, he proceeded to perform osteopathic manipulative treatment on V.C. from the top down, meaning he would start on V.C.'s neck and work his way down. Respondent spent 35 to 45 minutes treating V.C. each visit. V.C.'s 13 appointments with Respondent were on the following dates: December 12 and 22, 2017; January 11 and 30, 2018; February 27, 2018; March 27, 2018; April 17, 2018; May 8 and 29, 2018; July 10 and 31, 2018; and August 14 and 28, 2018. V.C. described Dr. Van Buskirk as completely professional in his treatment of her for the first ten visits, despite providing treatment each time in an admittedly sensitive area, her groin. Respondent's practice is to ask patients to wear comfortable clothing for their treatment visits that will allow him to access the areas needing treatment. V.C., for example, usually was dressed in leggings over underwear and a tee shirt. For some of the visits, Respondent was able to provide the osteopathic manipulation, even to the upper leg and groin area, through the leggings. Sometimes, however, the leggings or their seam placement interfered with his ability to adequately sense the tightness, relaxation, and contraction of muscles in the treatment area. For some visits, then, he asked V.C. for permission to go underneath the leggings with one hand, which she gave each time requested. Respondent did so several times during the first ten visits, lifting her leggings at the waistband and putting one hand down above the middle of her thigh between the leggings and V.C.'s panties. V.C. said that each of these times, Respondent was completely professional, never saying or doing anything inappropriate. V.C. also confirmed that Respondent was completely professional on visit ten on July 10, 2018, when her recollection was that she had to remove clothing to provide access for Respondent to administer a cortisone shot in her right upper thigh. V.C.'s eleventh visit was on July 31, 2018. According to V.C., unlike her other visits, she went to this appointment during a lunch break from work, and she was wearing shorts instead of leggings. The shorts were bulky, so she removed them when it came time for her to lie down on the exam table, face up, for her upper leg and groin area treatment. Respondent testified that his consistent office practice is to offer patients scrubs and a chaperone when he requests them to remove articles of clothing for treatment. He recalled having to ask V.C. to remove bulky shorts on one occasion so he could provide treatment to her upper thigh and groin area. Though Respondent did not specifically recall offering her scrubs or offering to have someone else come in the treatment room, his belief was that he acted in accordance with his consistent practice and offered both scrubs and a chaperone. V.C. did not dispute this account.4 At the hearing, V.C. testified that she was lying face-up on the exam table, with Respondent standing on her right side at about mid-thigh, so that her hip was to his left and her feet were to his right. From this position, V.C. testified that Respondent abruptly "pulled" or "snapped" her underwear from right to left, exposing her genital area, and rested the heel of his left palm5 on her pubic area, while he massaged her right thigh with his right hand. In describing the positioning of his left hand in more detail, V.C. said that the base of his thumb was on her pubic hair, and the base of his pinky was just above her labia. She said Respondent rested the heel of his left palm on her pubic hair for two to three minutes (but acknowledged that in an earlier recounting of this incident in 2018, her estimate was one to two minutes). 4 Petitioner's Proposed Recommended Order (PRO) contains a number of inaccurate citations to the record evidence. For example, Petitioner proposed findings of fact to the effect that on July 31, 2018, Respondent neither offered a chaperone nor had one present, and that Respondent did not offer surgical scrubs to V.C. (Pet. PRO at 3, ¶¶ 4, 6). None of the record citations offered as support for these two proposed findings contain testimony that Respondent did not offer a chaperone or that Respondent did not offer scrubs to V.C. Instead, they contain Respondent's testimony that he believes he acted in accordance with his consistent office practice to make both of those offers that day, and V.C.'s testimony that there was not a chaperone in the room and that she took off her bulky shorts and lay down on the exam table (wearing a tee shirt and panties). V.C. did not testify that she was not offered a chaperone or scrubs. 5 V.C. did not use the word "heel," but said "this part" of the palm, while pointing to the lower part of the palm above the wrist, which is the heel. V.C.'s description, though very detailed, is physically impossible in a number of respects, and as such, cannot be credited. To begin with, it is difficult to envision V.C.'s panties being "pulled" from right to left by someone standing on her right side. That would entail twisting the pulling hand to grasp the panties with the fingers and pull the panties to the side away from where the person is standing. Assuming the left hand were used to "pull" the panties from right to left, would that hand have remained holding the panties on the left side so as to expose V.C.'s pubic area? If so, it is difficult to imagine how the heel of the left palm could have rested on V.C.'s pubic hair. Further complicating the picture described by V.C., for the base of the left thumb to be at the top of the resting palm on V.C.'s pubic hair, with the base of the pinky at the bottom where the pubic hair ends, just above the labia, that left hand would have to contort 180 degrees from where the panties had been pulled (to the left side of V.C.'s pubic area). For the heel of the left palm to be resting on V.C.'s pubic area, with the base of the thumb high and the base of the pinky low, the fingers of the left hand would be pointed to V.C.'s right side at about the right upper thigh, rather than on the left side of her pubic area.6 The physical impediments fare no better if one were to assume that the panties were pulled left to right by Respondent's right hand. The problem is that with Respondent standing on Petitioner's right side, it is impossible to envision either left or right hand "pulling" panties away from right to left. And neither scenario supports V.C.'s description of what happened after the panties were pulled from right to left, leaving her exposed. V.C.'s description 6 Apparently recognizing the flaw in V.C.'s detailed description, Petitioner recharacterized V.C.'s testimony, suggesting that V.C. testified it was the base of Respondent's right thumb that was at the top on her pubic hair, with the base of his right pinky at the bottom just above her labia. (Pet. PRO at 3, ¶ 7). But that is not what V.C. said. She clearly was describing the positioning of Respondent's left hand. And, although Petitioner's version would help with this particular physical difficulty, it does not square with V.C.'s testimony that while the heel of Respondent's left palm rested on her pubic area, with base of thumb at the top and base of pinky below, Respondent put his right hand on her right upper thigh and started massaging her leg. of what Respondent did with his left hand defies physics. But V.C. also said that while the heel of Respondent's left hand rested on her pubic area, Respondent put his right hand on V.C.'s right thigh and began massaging her leg. With both of Respondent's hands now occupied on V.C.'s right side (heel of left palm resting on pubic area, base of left thumb high, base of left pinky low, fingertips at about V.C.'s upper right thigh; right hand on right upper thigh massaging her leg), neither hand could have been holding V.C.'s panties to the left side of her pubic area so as to keep her exposed. While V.C. described Respondent's pulling or snapping of her panties from right to left to expose her, followed by him resting the heel of his left palm on her pubic hair while he massaged her right thigh with his right hand, she could not recall whether, when, or how her panties returned to their rightful position. But elastic on panties makes a snapping sound when it returns into position after having been displaced. If V.C.'s panties had been pulled to the side exposing her pubic area, one would expect a "snapping" sound when the panties were released and the elastic would snap back into place. V.C.'s description did not seem to add up for this reason, too. V.C. said that she did not react to Respondent's actions by saying or doing anything, such as expressing her discomfort or distress, or stopping the treatment session early. Instead, V.C. said that she was in shock, so that after the one-to-two or two-to-three minute left heel-of-palm rest on her pubic hair, Respondent completed his regular course of treatment for another five or more minutes. V.C. acknowledged that Respondent never said anything inappropriate to her at any point. Respondent flatly denied V.C.'s account of inappropriate moving of her panties or inappropriate touching of her pubic area. According to Respondent, he never moved V.C.'s panties, but instead, provided the same osteopathic manipulation to her upper leg and groin area as he had at every other visit, except this time V.C. had removed her bulky shorts, while remaining covered by her panties. Respondent never observed any discomfort or distress by V.C.; and, as she acknowledged, she never expressed discomfort or distress. V.C. described her own uncertainty at the time as to whether what she perceived had been a mistake or an accident. She never said anything to Respondent or to his staff after the treatment session. She went to the receptionist desk, paid, and scheduled her next appointment for two weeks later, on August 14, 2018. V.C.'s testimony was inconsistent regarding whether she spoke with anyone about the July 31, 2018, treatment session between that day and her next appointment. She testified that she did not report the incident to anyone during the two weeks after the treatment session on July 31, 2018. But she also said that she spoke with her friend, T.B., for whom she works, that afternoon (July 31, 2018) when she returned to work, because, according to V.C., she was visibly distressed and T.B. asked her what was wrong. Petitioner offered T.B.'s testimony at the hearing to corroborate V.C.'s testimony. However, T.B. testified that he had a conversation at work with V.C. "in approximately November" 2018 that he initiated, not because he had observed V.C. in obvious distress, but because her performance was off that day. To explain why her performance was "off," she told T.B. she was upset because she had an experience at the doctor's office that was bothering her. She gave little detail, saying only that the doctor had touched her inappropriately. According to T.B., "she did say that it wasn't sex, that it was just inappropriate touching." (Tr. 120). V.C. had been seeing a psychiatrist for medical management of depression and insomnia. At her appointment on August 3, 2018, three days after the July 31 treatment session with Respondent, V.C. did not mention any incident to her psychiatrist. V.C. went to her next appointment with Respondent on August 14, 2018. She did not say anything to Respondent or his staff regarding the July 31 treatment session. Respondent provided the same osteopathic manipulative treatment he had performed the previous 11 visits. V.C. testified that Respondent was completely professional in both actions and words during the August 14 treatment session. After the session, she paid and scheduled her next appointment for August 28, 2018. V.C. went to the August 28 treatment session wearing leggings and a tee shirt. Respondent provided the same osteopathic manipulative treatment he had performed the previous 12 visits. When he started the treatment to her upper thigh and groin area, he was having difficulty sensing a particular tendon in the lateral groin area, to the right side of her groin. He requested permission to put one hand underneath her leggings, as he had previously done for some of the treatments to this area, and she gave her permission as she had previously. Respondent testified that when he went to lift up V.C.'s leggings at the waistband, he accidentally lifted both her leggings and her panties, sliding his hand down towards her right thigh to position his sensing finger on the tendon to the right side of her groin. He did not realize that he had accidentally lifted her panties too until he put his palm down to sense the tendon just to the right of her groin, a little to the left of her right hip bone, and he felt skin under his palm instead of the cloth of her panties. He immediately started removing his hand. At the same time Respondent realized his palm had come to rest on V.C.'s skin, V.C. realized the same thing. She immediately said, "I am not comfortable with this." Respondent had already begun removing his hand as V.C. spoke. At the hearing, V.C. described this incident the same as Respondent did, with one exception. According to V.C., Respondent lifted her leggings and underwear with his right hand, then slid his left hand down the center, and that his palm came to rest on her pubic area, with his middle finger extending to where the pubic hair ends, just above her labia. She agreed that Respondent's palm made contact with her for just an instant. She said that as soon as she felt the contact, she spoke up and he immediately removed his hand. Respondent emphatically denied that he made contact with V.C.'s genitals or pubic area. He described with great specificity exactly where he had put his hand, and why. For the work he was trying to perform on V.C.'s lateral groin, he was trying to sense a tendon located about one to one and one-half inches to the left of V.C.'s right hip bone (on the front part of the pelvis), at about belt-line (perhaps a low-slung belt). At that location, his hand was four inches to the right of the middle of the pubic bone, which is where his hand would have been according to V.C.'s description. Respondent's detailed explanation, which he demonstrated during the hearing, was credible and is credited. Other than V.C.'s one statement—"I am not comfortable with this"— she said nothing to Respondent about the incident. V.C. did not stop the treatment session early. Instead, Respondent completed the osteopathic manipulative treatment. V.C. acknowledged that Respondent never said anything inappropriate or unprofessional during the August 28 treatment session or at any previous session. V.C. testified that after the treatment session, she did not say anything to staff about the incident, but paid and ran out of the office.7 When she got to her car, she telephoned Maureen Maguire, who is her friend and, also, her gynecologist. V.C. testified that she told Dr. Maguire about the incident that had just occurred, and about the earlier incident. V.C. recalls Dr. Maguire telling V.C. about a similar incident she had experienced when she was going to a massage therapist. At the hearing, Dr. Maguire confirmed that V.C. called after the second incident to tell her about both incidents. V.C. told Dr. Maguire that 7 Respondent's staff credibly disputed V.C.'s claim that she ran out of Respondent's office. V.C. did not show any sign of distress. the first time, Respondent "was doing a manipulation in her groin area and that his hand went where it should not have gone." (Tr. 107). V.C. told her she went back to give Respondent another chance because she had come to love and trust him, "and it happened again but it was even more aggressive of hand in the wrong place, like down her underwear exactly, on the second time." (Tr. 108). Dr. Maguire testified that V.C.'s description gave her the impression that the first time, Respondent's hand ended up in the wrong place on top of V.C.'s clothing, because V.C. made a point of saying the second time his hand went under her underwear. Dr. Maguire said that V.C. was upset, so she tried to talk V.C. through it by sharing the "similar" incident that happened to her with a massage therapist. Dr. Maguire said she told V.C. that her biggest regret was that she had done nothing about it. As a result of her experience, she urged V.C. to report the incidents. Dr. Maguire said that V.C. was looking to her for advice, asking how to go about reporting it. Dr. Maguire gave V.C. a couple of suggestions, telling her she should report the incidents to law enforcement and the Department.8 V.C. testified that she also disclosed the August 28 incident to V.D., a friend of her son's who was living in her house temporarily while between leases. According to V.C., when she got home that day, V.D. saw her distress and asked her what was wrong, so she told him about the incidents, and he offered his sympathy and attempted to comfort her. V.D.'s testimony by deposition was offered in evidence by Petitioner to corroborate V.C.'s testimony regarding her disclosure to him. V.D. confirmed that he found V.C. distressed one day and asked her what was wrong. He said V.C. described a single incident in which her doctor touched her vagina inappropriately. V.C. also told V.D. that after the inappropriate touching, the 8 V.C. first testified that she recalled Dr. Maguire urging her to report the incidents, but that Dr. Maguire did not know how V.C. should proceed. V.C. later testified that she does not recall even discussing the subject of reporting the incidents with Dr. Maguire. doctor "made a comment to her about, like, having a hard time resisting her and not being able to control himself around her. Something to that effect." (Pet. Ex. 7, p. 15-16). V.D. later clarified that he did not recall the exact wording used by V.C. to describe what the doctor had said to her, "but it was something to the effect of that he had desired her for a while, or that he had a hard time resisting her. Basically saying that—justifying what he—the assault by saying, I'm physically or sexually attracted to you, is the effect of what he said to her."9 (Pet. Ex. 7, p. 21-22). V.D. testified that V.C. asked him what she should do, and they discussed reporting the incident to law enforcement. V.C. told him she intended to report it to the police, and later told him that she had reported it. V.C. did not report the incident(s) to the police or to the Department or Board. She explained that she felt guilt and shame, and did not want to relive the incidents as she would have to in order to report it. She blamed the incidents on intensification of "crying jags" that she had experienced before. She also blamed the incidents for a return of insomnia, which she said she had gotten under control. On October 12, 2018, V.C. told her psychiatrist, Dr. McKinnon, about the incidents during her regular appointment with him. His notes reflect some inconsistencies in the details of the incidents.10 Following her disclosure, Dr. McKinnon's notes reflect that he told V.C. he had to report the 9 Even though Petitioner offered V.D.'s deposition testimony into evidence, Petitioner did not ask its witness, V.C., to address V.D.'s testimony regarding the provocative statements V.C. attributed to Respondent. Instead, V.C. admitted at the hearing that Respondent made no inappropriate or unprofessional statements that day or any other day. 10 For example, Dr. McKinnon's notes reflect that V.C. told him that when Respondent put his hand under her leggings and panties on August 28, she immediately stopped the examination and left the office. At the hearing, V.C. did not dispute whether the notes accurately reflected what she told Dr. McKinnon. Instead, V.C. attempted to reconcile the discrepancy, suggesting the version in the notes was virtually the same as what happened because she "stopped [Respondent's] hand from being there, and then left the office a couple of minutes later." (Tr. 85). V.C.'s attempt to smooth over this discrepancy was unpersuasive. The notes also reflect that V.C. told Dr. McKinnon that she had consulted with an attorney who would not take her case. At the hearing, V.C. said that she did not recall telling Dr. McKinnon that, but she did not deny that the statement was true. incidents to the Florida Board of Medicine, and that she should report the matter to law enforcement or another attorney to explore her legal rights. Dr. McKinnon's notes contradict V.C.'s testimony about the effect of the incidents on her insomnia and crying jags. As of October 12, 2018, V.C. reported that, overall, the medications previously prescribed by Dr. McKinnon for management of her depression and insomnia had been helpful. In particular, V.C. reported that the dosage of one medication, which she "continues to take" twice a day, had effectively "reduced her crying spells[.]" (Pet. Ex. 1, p. 1). V.C. had been seeing Dr. McKinnon for medication management of depression and insomnia since well before the incidents, and the October 12, 2018, notes, addressing her positive progress since her previous appointments (the most recent of which was August 3, 2018), do not support her testimony that these conditions had been under control before the incidents or that they worsened because of the incidents. After the October 12, 2018, visit, Dr. McKinnon reported what V.C. had told him about the incidents to the Department, which began an investigation. The Department also reported the incidents to the Sarasota Police Department which conducted an investigation, but no charges resulted. V.C. also told her long-time physical therapist, Ofer Nissan, about one or both incidents, possibly close in time to her visit to Dr. McKinnon. V.C. said that she told him about the incident(s) because he had been treating her for a long time and had always been appropriate. Mr. Nissan's deposition was offered by Petitioner in lieu of live testimony, because Mr. Nissan had become uncooperative after being subpoenaed to testify at the hearing and had stopped responding to calls by Petitioner's counsel. Mr. Nissan testified that V.C. told him Respondent touched her private area in an inappropriate way while he was working on her right inner thigh. When asked if V.C. had used the phrase, "private area," Mr. Nissan responded: "She used the word 'vulva.'" (Pet. Ex. 9, p. 18). When asked whether V.C. said whether there was inappropriate touching or penetration, Mr. Nissan responded: "She said penetration."11 (Pet. Ex. 9, p. 25). Despite what Mr. Nissan said he was told by V.C., he did not report the incident(s). He acknowledged that "Dr. Van Buskirk is a doctor with a lot of respect in this town. … I respect the doctor. I respect his reputation." (Pet. Ex. 9, p. 20). V.C. acknowledged at the hearing that she has retained lawyers to represent her, and they have prepared a complaint for damages against Respondent. Although V.C. acknowledged "there is a money component," she testified that that was not her priority; she just wants to hold him accountable. V.C. told her friend, T.B., for whom she works, something very different. T.B. described a conversation with V.C. in which she told him the incident12 had been reported to the police and asked him what he thought would happen. T.B. told her that if it was true, Respondent would probably end up in jail. V.C. responded that she would just rather have a monetary settlement. At the hearing, T.B. said he found V.C.'s comment strange: "I personally felt that that was a motivation beyond justice." (Tr. 123). At the hearing, Petitioner presented the expert testimony of Anthony Davis, D.O., to offer the opinion that if V.C.'s statements are believed, then Respondent had committed inappropriate touching of V.C.'s genitalia, an act that was outside of the scope of practice of osteopathic medicine. At the same time, he acknowledged that the examination and treatment of V.C. performed by Respondent on July 31 and August 28, 2018, were required based on V.C.'s presenting complaints, and were justified by the medical records. 11 Even though Petitioner offered Mr. Nissan's deposition testimony into evidence, Petitioner did not ask its witness, V.C., to address the inconsistencies in Mr. Nissan's testimony regarding what V.C. told him. 12 T.B. said that in 2018, V.C. only told him about a single incident. T.B. testified that V.C. called him one week before the hearing to tell him (for the first time) that there had been two incidents, and also to tell him that she was filing a civil lawsuit against Respondent. Dr. Davis also offered his view that there was no sexual misconduct in this case, either outside the standard of care or by not acting in accordance with governing medical statutes and rules. He testified that Respondent did not use the patient/physician relationship to engage in sexual activity outside the scope of practice. Respondent presented the expert testimony of Walter Ehrenfeuchter, D.O. Like Dr. Davis, he was qualified as an expert in osteopathic medicine. But Dr. Ehrenfeuchter was also qualified in the additional area of osteopathic manipulative treatment, a specialty area that is particularly germane here, since Dr. Van Buskirk's practice has focused exclusively on osteopathic manipulative treatment for the last 12 years. Like Dr. Davis, Dr. Ehrenfeuchter reviewed V.C.'s patient records and the allegations raised. He also reviewed deposition testimony of Dr. Davis, V.C., and Respondent. Dr. Ehrenfeuchter went far beyond Dr. Davis's fairly conclusory opinions, by going into compelling detail, in both his testimony and illustrative exhibits, to explain the treatment techniques employed by Respondent in treating V.C., the challenges working in delicate physical areas to address V.C.'s specific complaints, and the related standards of care implicated in this case. Dr. Ehrenfeuchter's detailed presentation fully supported his overall opinions that Respondent's actions in examining and providing osteopathic manipulative treatment to V.C. were appropriate and within the scope of practice. Ultimate findings of fact Even if V.C.'s testimony were fully credited, Dr. Van Buskirk did not engage in or attempt to engage in sexual misconduct. He did not engage or attempt to engage in verbal or physical sexual activity with V.C. He did not induce or attempt to induce V.C. to engage in sexual activity. V.C.'s testimony, if credited, went no further than to suggest passive momentary resting of a palm or part of a palm on V.C.'s pubic area in the course of providing osteopathic manipulative treatment to V.C.'s painful groin. For many reasons, though, V.C.'s testimony cannot be credited. Her testimony lacked credibility, clarity, and consistency. The details she described were confused or contrived in many respects. The testimony of Petitioner's other witnesses, offered for the purpose of demonstrating consistency in V.C.'s statements from July 2018 through the hearing, instead demonstrated glaring inconsistencies on material points. The best that could be said about V.C.'s overall testimony is that V.C. may have been influenced by what others told her, starting with Dr. Maguire sharing her "similar" experience of realizing that she had been violated, such that V.C. built up in her own mind the belief that she, too, was violated. Yet V.C.'s embellishments, as described by the "corroborating witnesses," to V.D. (inventing verbal come-on statements of a sexual nature) and to Ofer Nissan (changing her allegation to inappropriate touching of her vulva and adding penetration) suggest the possibility of a more purposeful nefarious intent to spin a tale to try to capitalize financially. Respondent's testimony that he did not touch V.C. inappropriately was more credible than V.C.'s testimony, and is credited. Dr. Ehrenfeuchter's expert opinion that Respondent's examination and treatment of V.C. was appropriate, supported by the medical records, and within the standard of care and scope of appropriate osteopathic manipulative treatment practice was well-supported, more persuasive than Dr. Davis's opinion (to the extent it was inconsistent), and is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Osteopathic Medicine, issue a final order determining that Respondent, Richard Van Buskirk, D.O., is not guilty of a violation of section 456.072(1)(v), Florida Statutes (2018), and dismissing the Administrative Complaint. DONE AND ENTERED this 24th day of February, 2021, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2021. COPIES FURNISHED: Andrew Perrin, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street, Suite 200 Tallahassee, Florida 32301 Stephanie Clark, Esquire Pennington, P.A. 215 South Monroe Street, Suite 200 Tallahassee, Florida 32301 Kama Monroe, JD, Executive Director Board of Osteopathic Medicine Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399
