The Issue The issue for determination in this case is whether Respondent's license to practice medicine should be revoked or otherwise disciplined for the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint.
Findings Of Fact Petitioner, Department of Health, is the state agency vested with the statutory authority to enforce the disciplinary standards for the practice of medicine under Chapters 455 and 458, Florida Statutes. Respondent, Lehel Kadosa, M.D., is, and at all material times was, a physician licensed to practice medicine in Florida, having been issued license no. ME 0041277. At all relevant times, Respondent was the owner and operator of the Tampa Bay Back Institute, 7208 North Sterling Avenue, Tampa, Florida. The business stationery of the Tampa Bay Back Institute stated that Respondent is "Board Certified" in "Neurological & Orthopedic Surgery," "Pain Management," and "Neurothermography." Respondent is in fact not board-certified in neurological or orthopedic surgery by the American Board of Neurological Surgery or the American Board of Orthopedic Surgery. The American Board of Medical Specialties does not recognize a board of "pain management" or "neurothermography." Thus, no physician could claim to be "board certified" in those claimed specialties. Patient A.M. presented to Respondent on July 3, 1991, with subjective complaints of extreme pain in her neck, right shoulder, right arm, lower back, and right leg. Patient A.M. testified that she had suffered back and neck pain for 26 years, since she had a back spasm requiring hospitalization. She testified that due to a boating accident and a fall on the sidewalk, the pain had become more acute in the two years prior to her coming to Respondent. She testified that she had gone to at least five doctors over the years for her neck and back pain, but nothing they did offered her any lasting relief. Patient A.M. testified that she was at her "wit's end" when she called to make an appointment with Respondent. She needed something done then and there to help her problem, and was willing to do whatever was necessary to obtain relief for her back. Respondent was not seeing patients the week of July 1, 1991, because he was planning to leave for a visit to his native Hungary, and because he was overseeing renovations to his offices. However, Patient A.M. appeared to be in such severe pain and so desperate for relief that Respondent agreed to see her on July 3. On June 30, 1991, the Tampa Bay Back Institute had run an advertisement in the Tampa Tribune, touting its expertise in "non- surgical treatment of back pain, neck pain & headaches." The advertisement advised that immediate appointments were available and offered a "Free Initial Consultation." Respondent’s name did not appear in the advertisement. The advertisement did not contain the disclaimer language set forth in Section 455.24, Florida Statutes. The same advertisement appeared as late as the August 11, 1991, issue of the Tampa Tribune. Patient A.M. testified that she called Respondent specifically because of his newspaper advertisement, and that she knew nothing about Respondent other than the contents of the advertisement. Patient A.M. testified that the advertisement led her to expect not to be charged for the initial visit. She could not recall whether she mentioned the advertisement when she made the appointment over the telephone, or whether she brought the advertisement with her at the time of her appointment. Patient A.M. testified that she did remember making a point of telling Respondent's staff she was there as a result of the advertisement. She could not recall whether she discussed the matter directly with Respondent. Melinda Kadosa, Respondent’s daughter, testified that she was working in the office when Patient A.M. called for her first appointment. Ms. Kadosa testified that Patient A.M. never mentioned the advertisement; rather, she told Ms. Kadosa that she had heard of Respondent through other doctors and patients. Ms. Kadosa testified that the usual practice in Respondent’s office was to make a notation on the chart of any patient who mentioned the "free consultation." There was no such notation on the chart of Patient A.M. Respondent billed Patient A.M. for a "new patient comprehensive exam" in the amount of $200. Patient A.M. disputed this amount. She admitted that Respondent conducted a full physical examination, but believed that this examination should have been included as part of the "free initial consultation." There was inconclusive expert testimony as to whether the term "consultation" includes a physical examination. Dr. Joseph Uricchio testified that it depends on the context of the situation. Dr. John McCutchen testified that, in his opinion, "consultation" includes a physical examination, but conceded that there is "room for debate" on the question. The advertisement containing the questioned language was not directed at physicians but at laypersons; thus, expert testimony as to a physician's understanding of the term "consultation" is beside the point. The question is resolved by determining whether it was reasonable for Patient A.M., as a layperson of ordinary intelligence and experience, to believe that the term "free initial consultation" included the physical examination to which she admittedly consented. It is found that the term "free initial consultation" is at best ambiguous as to the services it encompasses, and that it was reasonable for Patient A.M. to expect that the "free initial consultation" would include a physical examination. Ms. Kadosa’s testimony that Patient A.M. made no mention of the advertisement is irrelevant. The advertisement itself made an unqualified offer of a "free initial consultation." There was no requirement that the prospective patient make reference to the advertisement in order to obtain the free services. Mr. Rodney Thompson, an employee of Respondent, testified that the advertisement was placed by a hired consultant, without the permission or approval of Respondent. He testified that the advertisement appeared in the Tampa Tribune three or four times, only on Sundays. Even crediting Mr. Thompson’s version of events, the analysis remains the same. Respondent was responsible for the advertising placed on behalf of his business by his paid consultant. Patient A.M. was in no position to know that Respondent had not approved the advertisement. Respondent made no effort to disclaim the advertisement. Indeed, Ms. Kadosa’s testimony indicated that Respondent honored the advertisement when patients specifically mentioned it. Prior to the initial examination, Patient A.M. filled out a "Patient’s History Form," in which she described her present complaints as "extreme pain in neck, right shoulder and arm, lower back, right leg." Patient A.M. also provided Respondent with a set of X-rays taken by one of her previous physicians. Respondent performed a physical examination on Patient A.M. of the head, ears, eyes, nose and throat, the thoracic cage, cervical spine, thoracic spine, and lumbar spine. Respondent also performed a neurological examination of Patient A.M. After performing the physical examination, Respondent ordered X-ray studies of the cervical, thoracic, and lumbosacral spine, pelvis, and right elbow. Based on the history, examination, and X-rays, Respondent recorded the following medical impressions: chronic cervical sprain/strain with myofascitis; chronic lumbosacral sprain/strain with myofascitis; spondylosis of the cervical and lumbosacral spine by X-ray studies; chronic lower back pain; right cervical radiculitis; right lumbosacral radiculitis; chronic sprain of the right elbow; bursitis of the right knee; degenerate disc disease, L5-S1; and arthritis of the sacroiliac joints. Respondent recorded that he expressly ruled out cervical reflex dystrophy of the right upper extremity. Based on the listed impressions, Respondent ordered the following tests: Cervical spine: magnetic resonance imaging ("MRI"), X-rays, and thermography. Thoracic spine: X-rays and thermogaphy. Lumbar spine: MRI, X-rays, and thermography. Right upper extremity: X-rays, thermography, nerve conduction velocity ("NCV") studies. Left upper extremity: X-rays, thermography, and NCV studies. Right lower extremity: thermography. Left lower extremity: thermography. Sacrum: X-rays. Patient A.M. testified that Respondent informed her, prior to ordering the listed tests, that they could cost thousands of dollars. She testified that at the time she didn't know what some of the tests were. Nonetheless, she agreed to undergo the tests, telling Respondent that she wanted to do "whatever was necessary in order to try to get some relief" for her back. Respondent also ordered a one-month course of physical therapy for Patient A.M. All three testifying experts agreed that the physical therapy was appropriate and well within the standard of practice. Patient A.M. did not complete the course of physical therapy. Patient A.M. only returned to Respondent’s office once, and never saw Respondent in person after the initial visit. The bulk of the relevant expert testimony concerned the timing and necessity of the listed tests. Petitioner presented the deposition testimony of John W. McCutchen, M.D., a Florida- licensed, board-certified physician in orthopedic surgery. Dr. McCutchen testified that he reviewed Respondent’s file on Patient A.M., though he did not see the actual X-rays or MRIs. From his review of the record, Dr. McCutchen saw no medical problems with the manner in which Respondent performed the physical on Patient A.M. Dr. McCutchen testified that he questioned the diagnosis of spondylosis of the cervical lumbosacral spine, because such a diagnosis requires X-ray studies and he saw no evidence in the record that X-rays had been taken. Dr. McCutchen was apparently unaware that Respondent was in possession of X-rays taken by one of A.M.’s previous physicians, and could have based his initial impression on those X-rays. Dr. McCutchen questioned Respondent’s ordering X-rays of the cervical, thoracic, and lumbar spine, because the record did not indicate the requisite complaint by Patient A.M. of mid- thoracic pain. However, Dr. McCutchen also testified that he did not have a "big objection" to the X-rays, merely that he would not have ordered them. He testified that these X-rays were within the standard of care. Dr. McCutchen testified that he had no argument with Respondent’s ordering X-rays of the lumbar spine, the pelvis, and the right elbow. Dr. McCutchen testified that the MRIs of the sacral spine and cervical spine ordered by Respondent were not indicated at this juncture of Patient A.M.’s treatment. He testified that he would first want to review the X-rays, and find that the X-rays show changes "that are severe in nature." He would also need to see the results of a neurological examination indicating "nerve root injury or disc rupture or something like that" to justify an MRI of the cervical and lumbar spine. The MRI report stated that A.M. had "loss and reversal of the normal lordotic curvature of the cervical spine, central disc herniation at the C5-6 level, disc bulges at the C3-4, 4-5 and 6-7." Dr. McCutchen testified that this report merely confirmed that there were some disc bulges, and that these were normal for Patient A.M.’s age group. Dr. McCutchen testified that nothing in the MRI report justified Respondent’s ordering of the MRIs. There were no neurological symptoms, history, or any other indication for the MRI of the lumbar spine. He concluded that ordering the MRIs was an excessive diagnostic tool. Thermography is a technique for sensing and recording on color film hot and cold areas of the body by means of an infrared detector that reacts to blood flow, its intended purpose being to detect disease states that manifest themselves by increased or decreased blood flow. Dr. McCutchen was dismissive of thermography as a diagnostic tool. He testified that it was used years ago, but has been disused for the past ten to twelve years. He testified that the theory in cases such as Patient A.M.’s would be that the thermograph would show changes in skin warmth that in turn would indicate nerve dysfunction; however, he testified that thermography has proven inaccurate and of no value in providing any information to assist in the treatment of a patient. Even accepting arguendo that thermography works according to theory, Dr. McCutchen testified that nothing in the medical record indicated the neurological changes that would validate the need for thermography as a diagnostic tool. While Dr. McCutchen believed the thermography was completely useless, he testified that he was unaware of any standard in the medical community regarding the use of thermography. Dr. McCutchen next testified as to the need for the NCV studies on the arms and legs of Patient A.M. He stated that, to justify NCV studies, he would expect to see something in the record concerning nerve dysfunction in the affected areas. Dr. McCutchen testified that elements of nerve dysfunction would be some difficulty in the ability to move the extremities, or some weakness, atrophy or paralysis, or a loss of sensation in a nerve root. These elements would be discovered through the history and physical examination, but Dr. McCutchen testified that he saw no such documentation in the patient records. Dr. McCutchen testified that the neurological examination for Patient A.M. was grossly within normal limits for muscle tone, bulk, and strength of all major muscle groups of the upper and lower extremities. The deep tendon reflexes were within normal limits. Patient A.M. was able to walk in steps, on tiptoe, and heel walk within normal limits. Thus, Dr. McCutchen concluded there was no justification for ordering the NCV studies of the upper or lower extremities. Dr. McCutchen also noted that the records for Patient A.M. show no indication of an interpretation of the thermograms or of the NCV studies, although the billing records show charges for those interpretations. Dr. McCutchen concluded that a "variety of things" done by Respondent in the course of his treatment of Patient A.M. were "totally excessive." He testified that the patient presented with some cervical lumbar pain and some right arm pain, and received an unnecessary MRI of the lumbar spine and NCVs of all four extremities. Dr. McCutchen concluded that Respondent’s course of treatment fell below the level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as acceptable under similar conditions and circumstances. Respondent presented the expert testimony of Joseph Uricchio, M.D., an orthopedic surgeon licensed in Florida since 1965. Dr. Uricchio testified that in recent years his practice has tended to specialize in patients with complaints of chronic pain similar to those of Patient A.M. After discussing the patient’s complaints and the diagnostic tests ordered by Respondent, Dr. Uricchio opined that, based upon his understanding of the facts, the ordering of the tests was within accepted standards of medical care in the practice of medicine in the State of Florida. Dr. Uricchio testified that his opinion was based on his understanding of the discussions that occurred between Respondent and Patient A.M. as to her complaints and desired outcome. Dr. Uricchio stated that his impression was that Patient A.M. told Respondent that her back problems were longstanding and that she was anxious to investigate any reasonable course of treatment that might eliminate her problem. Dr. Uricchio's understanding was generally consistent with the testimony of Patient A.M. Dr. Uricchio agreed that the gradual application of physical therapy for Patient A.M. was "singularly appropriate." Dr. Uricchio testified that, given this particular patient and her professed interest in finding the root cause of all her problems, it was within the range of acceptable medical practice to order NCV tests of the left arm; X-ray studies of the coccyx, pelvis, and thoracic spine; and thermography scans of the cervical spine, thoracic spine, upper extremities, lumbosacral spine, and lower extremities. Dr. Uricchio testified that it is unusual to order this array of tests for the typical patient, and admitted that he could not recall having ordered all these tests at once. However, he testified that ordering the tests was acceptable in this instance because Respondent was dealing with a patient who had a 25-year history of unexplained, chronic problems and a shorter history of increasing problems with her neck and back, with pain going into her extremities. Dr. Uricchio recalled Patient A.M.'s statements that she was "at her wit's end" and desperate to find out "what’s going on." He testified that this was an unusual set of circumstances and a difficult diagnostic and therapeutic challenge. Dr. Uricchio testified that NCV studies are legitimate diagnostic tools appropriate for a patient complaining of an unexplained pain radiating into an extremity, and that Patient A.M. had complained of arm, leg, and shoulder pain coupled with her longstanding neck and back pain. He testified that the NCV studies of the left arm were appropriate, though Patient A.M. complained of pain in her right arm. Dr. Uricchio testified that thermography is a test that has been done for a long time historically, and has enjoyed a "resurgence of interest" in the past 20 years. This testimony was in marked contrast to Dr. McCutchen’s testimony that thermography has fallen into disuse over the past ten years. Dr. Uricchio acknowledged that thermography is controversial in some areas, but that it is a well accepted, expected test to be run in cases of people dealing with chronic pain and chronic pain management. Dr. Uricchio testified that thermogaphy complements NCV testing. The NCV study tests motor nerves to determine if they are conducting nerve impulses well, while thermogaphy tests sympathetic nerves to determine if they are irritated. Dr. Uricchio testified that it was appropriate for Respondent to order both X-rays and MRIs because they show different things. X-rays give a picture of the bone. MRIs give a picture of the dural sac where the spinal cord and nerve roots run, showing the nerve roots as they go out between the bones. Dr. Uricchio testified that an X-ray would not reveal a herniated disc, but that an MRI would. Dr. Uricchio testified that if economy of medical care were a consideration, then a physician might take the course of ordering X-rays and examining those before ordering MRIs. However, because in this instance Patient A.M. appeared unconcerned about the cost of the procedures and was desperate to learn the cause of her condition, Dr. Uricchio found it acceptable to order both X-rays and MRIs at the same time. Dr. Uricchio concluded that the array of tests was justified because the tests are all different: the thermogram looks for sensory nerves or reflex sympathetic dystrophy; the X-ray looks at the integrity of the bone; the MRI finds whether there is a ruptured disc pinching a nerve; radiography or video fluoroscopy tests for abnormal motion or subluxations or any other change in the movement of the neck. Respondent also presented the testimony of Nicholas T. Zervas, M.D., a board certified neurosurgeon and the director of neurosurgery at Massachusetts General Hospital, Harvard Medical School. Dr. Zervas testified that his specialty is patients with brain tumors, though he also deals with spinal problems, disc problems, spinal tumors, peripheral nerve tumors, and general neurosurgery. Dr. Zervas testified that in his practice at Harvard Medical School he tends to treat difficult and complicated cases in which patients have seen a number of doctors without success and have moved "up the ladder of expertise." Dr. Zervas reviewed the patient records regarding Patient A.M., and concluded that she was a "problem patient" in that she had chronic pain for many years and had apparently seen a number of physicians without a specific diagnosis ever having been made. Dr. Zervas testified that with such a "problem patient," it is appropriate to do every reasonable, non-invasive test available to "cover the waterfront" and make sure that everything possible is being done to isolate the causes of the patient’s problems. Dr. Zervas testified that he has made little use of thermography in the last ten years. He further testified that in 1991, when Respondent ordered the tests, thermography was recognized within the medical community as an appropriate diagnostic study and was widely used. Dr. Zervas stated that his research indicated that the medical community’s reliance on thermography began to wane in about 1994, but that prior to that time there was "tons of literature on the value of thermography." Dr. Zervas testified that the thermography was the only test he would not have ordered. He disagreed with the suggestion that thermography went into disuse because it was inaccurate. Dr. Zervas stated that when MRIs and CT scanning came on the scene, they presented an easier way of finding things through direct imaging, replacing reliance upon the circumstantial evidence provided by thermography. Dr. Zervas justified Respondent’s ordering thermography as a "resort to secondary testing" to give him a hint as to whether this was nerve root disease, "since he wasn’t able to find a specific, positive, objective finding." Dr. Zervas’ justification for thermography in this case cannot be credited. The thermography was ordered at the same time as the other tests, before the results of the X-rays and MRIs could be read and interpreted to find "a specific, positive, objective finding." Thus, this "resort to secondary testing" was at best premature. Dr. Zervas testified that all of the tests ordered by Respondent were medically appropriate and within the standard of care, in light of Patient A.M.’s condition at the time she was examined by Respondent. Dr. Zervas testified that he often takes the same approach with such patients, utilizing all tests available that might show where an abnormality might lie, so that he can move ahead and begin treatment as soon as possible. Dr. Zervas found the numerous X-rays justified because it is difficult to isolate the source of chronic neck and back pain, meaning that X-rays of the cervical, thoracic, and lumbar spine, the pelvis, the sacrum, and the coccyx would be required to ensure that all possibilities were covered. Dr. Zervas found the MRIs of the cervical and lumbar spine an appropriate, non-invasive means of "trying to sort out what is present in the spinal canal and bones around it," as well as a means of ensuring that the cause of the pain is not a disc or a tumor. Dr. Zervas was questioned as to why NCV studies of both the left and right arms were appropriate, given that Patient A.M. complained of pain only in the right arm. Dr. Zervas answered that one of the first things taught in medical school is to compare side to side. If readings were done only on the right side, there would be no comparative basis for determining whether the readings were abnormal. Dr. Zervas testified that the X-rays and MRIs revealed extensive degenerative spinal disease in the neck and lumbar regions, more extensive in the cervical region, with extensive narrowing of the intervertebral frame, and bulging discs at several levels of the cervical and lumbar regions. Dr. Zervas believed these findings would be significant once correlated with the clinical syndrome. Dr. Zervas noted that the findings were significant enough to indicate surgery once she was seen by a neurosurgeon at a later date. He could not offer his own opinion on whether surgery was justified, saying that his own course would have been extensive physiotherapy and referral to a pain clinic. Dr. Zervas testified that in his opinion Respondent did not exercise influence on Patient A.M. to exploit her for his own financial gain. Dr. Zervas testified that Respondent did not deviate from the accepted standard of care in treating Patient A.M. Dr. Zervas testified that the records kept by Respondent justified his course of treatment of Patient A.M. It is found that the weight of the expert evidence establishes that all of the tests ordered by Respondent were clinically justified, except for the thermograms. All of the experts agreed that it is somewhat unusual for a physician to order X-rays, MRIs, and NCV studies simultaneously after a patient’s initial visit. However, it is found that these orders were clinically justified under the peculiar circumstances presented at Patient A.M.: longstanding back and neck pain having recently increased to the point where the patient described the pain as nearly unbearable; years of visits to various physicians without either relief from the pain or a specific diagnosis; and the patient’s express statements that she was unconcerned with the cost of treatment. It is found that Petitioner proved clearly and convincingly that thermography was an unnecessary diagnostic test. Even granting Dr. Zervas’ statements that thermography may be a useful "secondary" test in instances where primary tests are inconclusive, Respondent prematurely ordered the thermograms. Thermography might have been justified had the MRIs and NCV studies previously been reviewed and found inconclusive, assuming that thermography is of value at all. Dr. McCutchen’s testimony that thermography is of no value in providing information useful in patient treatment is credited, in part because even Dr. Zervas testified that he has made little or no use of thermography over the past decade, and Dr. Uricchio's endorsement was tempered by his acknowledgement that thermography is controversial. It is found that Respondent failed to keep sufficient records to fully explain the course of treatment that he ordered. The experts were forced to derive much of their information regarding the course of treatment from Respondent’s itemized billing records, because the actual medical records created by Respondent were too cursory to provide useful information. On a related issue, Petitioner alleged that Respondent billed Patient A.M. for services that were not rendered. Specifically, it is alleged that Patient A.M. was billed for interpretations of the X-rays, NCV studies, and thermographic scans, when these interpretations are not documented in the medical record. The weight of the evidence indicates that the interpretations were in fact performed, but that Respondent failed to document those interpretations in his medical records.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Medicine, enter a final order finding the Respondent, Lehel Kadosa, guilty of violating Section 458.331(1)(d), (g), (m), (t), and (x), Florida Statutes, as alleged in the complaint, and imposing upon the Respondent the penalty of a reprimand, supervised probation for a period of three years, and an administrative fine in the amount of $20,000. DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1999. COPIES FURNISHED: Albert Peacock, Esquire Agency for Health Care Administration Legal Department Post Office Box 14229 Tallahassee, Florida 32317-4229 Christopher J. Schulte, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 East Kennedy Boulevard, Suite 1000 Tampa, Florida 33629 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Disciplinary action should be taken against Respondent's license to practice medicine, number ME 0028355, issued by the State of Florida, based on the alleged violations of Section 458.331(1), Florida Statutes, as contained in the Administrative Complaint filed by the Petitioner.
Findings Of Fact At all times material to this complaint, Respondent was a licensed physician having been issued license number ME 0028355 by the State of Florida. This case represents Respondent's second disciplinary action. By a Final Order dated February 24, 1987, the Board of Medicine, in the case of Department of Professional Regulation vs. Robert Gonzalez, Jr., M.D., DOAH Case No. 85-1692, DPR Case No. 0033796, reprimanded Respondent, suspended Respondent's license for a minimum period of one year, and ordered a five year probationary period, and a $14,000 fine. The Final Order took effect upon filing and pertains to similar offenses at issue in the present case. (Adopts Petitioner's Proposed Finding of Fact (PFOF) 1) The present case arose from a review of hospital records and Respondent's patient records for seventeen patients who were hospitalized by Respondent at Pembroke Pines General Hospitals in Pembroke Pines, Florida in 1982 and 1983. However, none of the incidents giving rise to the complaint in the instant case occurred subsequent to the Final Order referenced in Finding of Fact 1 and all occurred during or shortly after the same timeframe as covered in the earlier offenses. (Adopts and expands Petitioner's PFOF 2). On August 4, 1982, Respondent admitted patient C.M. to Pembroke Pines General Hospital, who was assigned medical records number 6893 by Pembroke Pines General Hospital. The admitting diagnosis was acute respiratory tract infection, acute flu syndrome, acute laryngo/pharyngitis and possible pneumonitis. The patient was hospitalized for a period of two days. During the hospitalization of patient C.M., Respondent ordered the following tests which were performed on patient C.M.: two chest x-rays, "mono" screen, throat culture, blood serum levels (special 12), electrolytes, urinalysis, complete blood count (C.R.C.) and Platelet counts. Respondent discharged C.M. from Pembroke Pines General Hospital with the following diagnoses on August 7; 1982: acute flu syndrome, acute respiratory tract infection, and acute pharyngitis due to staphylococcus aureus. (Adopts Petitioner's PFOF 3) Pharyngitis is an inflammatory reaction of the throat. Although Respondent diagnosed patient C.M. as suffering from acute pharyngitis due to staphylococcus aureus, there was inadequate laboratory data to justify this diagnosis. The diagnosis should have been predicated upon the results of a sputum (secretions coughed out of the lungs) culture and sensitivity test. However, the results of the culture and sensitivity test were negative for the throat. Therefore, this diagnosis was incorrect. (Adopts Petitioner's PFOF 4). Pneumonitis is an infection of the lungs. The standards of the medical profession require that it be based on positive x-ray findings. In the case of patient C.M., there was no justification for Respondent's diagnosis of pneumonitis because both of the chest x-rays taken pursuant to Respondent's order were normal. (Adopts Petitioner's PFOF 5) Although Respondent diagnosed patient C.M. as suffering from acute flu syndrome, there was no justification for this diagnosis either. In fact, there was no justification for the admission of the patient to Pembroke Pines General Hospital. It is contra-indicated to hospitalize a sixteen-year-old male suffering from an upper respiratory infection because of the danger of developing a nasocomal infection, which is an infection that is produced as a result of exposure to bacteria in the hospital. By hospitalizing C.M. unnecessarily, Respondent placed patient C.M. at undue risk. (Adopts Petitioner's PFOF 6) In the year 1983, Respondent admitted patient F.L. to Pembroke Pines General Hospital on three occasions. The patient was assigned medical records number 4141 by Pembroke Pines General Hospital. The admission date for the hospitalizations were February 20, 1983, July 8; 1983, and August 31, 1983. There were no problems with the July 8, 1983, hospitalization of patient F.L. (With the elimination of subordinate and unnecessary material, this FOF adopts Petitioner's PFOF 7). On February 20, 1983, Respondent admitted patient F.L. to Pembroke Pines General Hospital with an admission diagnosis of cephalgia and uncontrolled hypertension. The patient was hospitalized for a period of three days. During this three-day period, the following tests were performed on patient F.L., pursuant to Respondent's orders: an intraveneous pyelogram (IVP) and voiding cystogram, chest x-ray, three "E.K.G.s", an SMA-18 (blood serum levels for eighteen different substances), a CRC, an echocardiogram, a 24-hour urinalysis for total protein, serum electrophoresis, a twenty-four hour urinalysis for catecholamine and methanephrine, a CT scan of the brain, a sinus series x-ray and cervical spine x-ray, an upper GI series, small bowel study, a cardiac isoenzyme profile and a plasma renin study. (Adopts Petitioner's PFOF 8) A voiding cystogram is a test used to check on the condition of the prostate. There was no indication in the records of patient F.L. of any prostate problem or complaint. Hence, there was no justification for the voiding cystogram which Respondent ordered for patient F.L. The upper G.I. series with small bowel follow-through, would be indicated if there is suspected small bowel obstruction or small bowel involvement. In Respondent's records for patient F.L., and the records pertaining to the hospitalization of F.L. at Pembroke Pines General Hospitals there is no indication that patient F.L. complained of or suffered from gastro-intestinal complaints. Therefore, the upper G.I. series with small bowel follow-through Respondent ordered was not justified. Additionally, the patient was admitted with cephalgia (headaches), and sinus x-rays and cervical spine x-rays were ordered. Sinus x-rays and/or cervical spine x-rays would be indicated where there was a history or indication of involvement of the sinus or cervical spine. Respondent's records for patient F.L. do not document any indication of involvement of the cervical spine and provide no history of sinus trouble. Accordingly, the cervical spine and sinus x-rays ordered by Respondent were neither indicated nor justified for patient F.L. C.P.K. enzymes are enzymes released into the bloodstream with damage of certain tissues in the body. Respondent ordered a cardiac isoenzyme profile to determine whether there was evidence of elevated C.P.K. enzymes and, therefore evidence of acute myocardial damage in patient F.L. However, patient F.L. displayed no symptoms which would justify performing this test. (With minor modifications to clarify the - finding and to conform to the record, FOF 9-11 adopt Petitioner's PFOF 9) On February 23, 1983, Respondent discharged patient F.L. with the following diagnoses: Cephalgia due to the presence of uncontrolled hypertension-diastolic, hyperuricemia, essential hypertension, neck pain secondary to cervical degenerative arthritis and chronic sinusitus condition, left maxilla. There was no justification in the records for patient F.L. which would establish uncontrolled hypertension, as a diagnosis, although Respondent's office records for patient F.L. do document the presence of hypertension in this patient and that numerous therapies were utilized unsuccessfully to control that hypertension. (With minor modifications to clarify the finding and to conform to the record, FOF 12 adopts Petitioner's PFOF 10) On August 31, 193, Respondent admitted patient F.L. for what Respondent described as a "mass of the left hemi- thorax" and labile hypertension. The mass was, in fact, a keloid or excess scar tissue which measured 2 centimeters at its greatest dimension. The records for patient F.L. provided a history of two previous resections of the same keloid. It constituted excessive, expensive and unnecessary hospitalization for Respondent to admit patient F.L. for removal of such a keloid, when that keloid could have been removed in the Respondent's office under local anesthesia. Also as a result of Respondent's decision to unnecessarily hospitalize patient F.L. for removal of a keloid, unnecessary pre-operative testing also was performed. This testing included a chest x-ray, an SKG, a complete blood count, an SMA 18, a urinalysis, and prothrombin dime or clotting tests. Respondent knew when he hospitalized patient F.L. for the surgical procedure of removal of a keloid that these pre-operative tests would be routinely performed. This constitutes inappropriate treatment. Since the history clearly indicated that the keloid, if removed, almost certainly would have reoccurred unless a plastic surgeon provided follow-up treatment to prevent the reformation of the keloid, its excision was unjustified. Accordingly, there was no justification for the admission of patient F.L. to Pembroke Pines General Hospital in August 1983. (Accepts, with modifications to reflect the record as a whole, Petitioner's PFOF 11-12). On September 2, 1983, Respondent discharged patient F.L. with the following diagnoses: keloid anterior chest wall, labile hypertension and anxiety reaction. Labile hypertension is hypertension that fluctuates erratically. This diagnosis was not supported by the hospital record for F.L. All blood pressure readings for the record for F.L., were constantly normal. (Adopts Petitioner's PFOF 13) On April 5, 1983, Respondent admitted patient J.G. to Pembroke Pines General Hospital for acute low back syndrome and weakness of the right extremities. Patient J.G. was assigned medical records number 2693 by Pembroke Pines General Hospital. Respondent hospitalized patient J.G. for a period of three days. During this hospitalization of patient J.G., Respondent provided no significant therapy which would justify hospitalization. Respondent's treatment of Patient J.G. during hospitalization included orders for Robaxin, a muscle relaxant, Riopan Plus, an antacid, Paraon forte, a muscle relaxant, and Ducolax suppositories and Peri-colase capsules for constipation. Additionally, the patient was treated with traction for the three-day period. The patient was given pelvic traction of twenty pounds- with alternating periods of two hours with traction and two hours without traction. In order to be effective or beneficial, the traction should have been given over a much longer period of time. Finally, Respondent treated patient J.G. with K-pads or heat pads around the clock. (Adopts Petitioner's PFOF 14). On April 6; 1983, patient J.G. was seen by an orthopedic consultant, pursuant to Respondent's request. The consultant's impression of the patient's condition was of cervical spondylosis. The consultant's recommended plan of treatment included bed rest and oral anti-inflammatories. (Adopts Petitioner's PFOF 15). Respondent's entire work-up and evaluation of patient J.G.; including the orthopedic consultation, could have been performed as an outpatient. There was no justification for the admission of patient J.G. to Pembroke Pines General Hospital. (Adopts Petitioner's PFOF 16). On October 10, 1982, Respondent admitted patient E.R. to Pembroke Pines General Hospital for acute cephalgia and photophobia. Patient E.R. was assigned medical records number 4910 by Pembroke Pines General Hospital. On admission, Respondent recorded a long-standing history of the patient suffering from headaches and chronic migraine syndrome. There was no justification for Respondent to admit patient E.B. for headaches, or for evaluation of these headaches. Respondent's migraine headaches might reasonably have been addressed by an initial referral to a neurologist on an outpatient basis. This was not done. (With elimination of subordinate and unnecessary material and as modified to more closely conform to the record as a whole, this FOF covers Petitioner's PFOF 17.) During the hospitalization of E.R., Respondent ordered a number of tests including two electrocardiograms, a CT scan of the brain, chest x-ray; sinus x-ray; mastoids x-rays; x-rays of the sella turcica and cervical spines, a bilateral mammogram, a CT scan of pituitary gland, a tomogram of the sella turcica, a platelet count, serum protein electrophoresis, CEA-EIA Enzyme Immunoassay, an SMA 12, Vitamin B12 and Folate serum levels, and progesterone levels. (Adopts Petitioner's PFOF 18). The testing ordered by Respondent for E.R. was excessive. For example, Respondent ordered a CT scan of the brain which adequately views the sinuses and the sella turcica. Therefore the further x-rays of the sinuses, mastoids and sella turcica and a tomagram of the sella turcica, were unnecessary and excessive. No other indicators, i.e. vision disturbances, independently justified Respondent's ordering the tomagrams. A C.E.A.-E.I.A. Enzyme Immunoassay was ordered, despite the fact that it was not indicated by either the patient history or the recorded physical examination results. A C.E.A.- E.I.A. Enzyme Immunoassay is a test for cancer of the stomach. (With elimination of cumulative and subordinate material, adopts Petitioner's PFOF 19). On May 8, 1983, Respondent admitted patient E.P. to Pembroke Pines General Hospital for evaluation and treatment of a gastrointestinal disorder, weakness and shortness of breath. E.P. was assigned medical records number 4924. Respondent ordered the following testing which was performed on patient E.P.: two CBCs, SMA-18, two urinalyses, CT scan of kidneys, barium enema, a GI series and small bowel follow-through, an intraveneous pyelogram a voiding cytourethrogram a platelet count, serum protein electrophoresis, a urine culture and a stool culture. There was no indication for Respondent to order the upper G.I. series and small bowel follow-through for patient E.P. The records demonstrate insufficient justification for the admission of patient E.P. to Pembroke Pines General Hospital on May 8, 1983; the final discharge diagnoses show hospitalization was unnecessary. On May 12, 1983, Respondent discharged patient E.P. from Pembroke Pines General Hospital with the following diagnosis: gastrointestinal disorder due to diverticulosis of the colon gastritis, and anxiety state reaction. Of these diagnoses, only the final diagnosis is possibly correct. Although an air contrast barium enema showed a few tiny scattered diverticuli within the distribution of the left colon, there was no support for Respondent's assertion that the diverticuli were the cause of a gastrointestinal disorder. The diagnosis of gastritis refers to an irritation of the stomach. This diagnosis is not supported either by the results of the upper G.I. series which were normal nor by x-rays of the stomach, which were also normal. (With modifications to more accurately reflect the record as a whole, this FOF accepts Petitioner's PFOF 21-23). On April 20, 1983, Respondent admitted O.A. to Pembroke Pines General Hospital. O.A. was assigned medical records number 5800. Petitioner established no violations by Respondent with regard to this patient. (Covers Petitioner's PFOF 24). On September 20; 1982, Respondent admitted patient R.R. to Pembroke Pines General Hospital. Patient R.R. was assigned medical records number 5940. Petitioner established no violations by Respondent with regard to this patient. (Covers Petitioner's PFOF 25). On April 12, 1983, Respondent admitted to Pembroke Pines General Hospital a patient who was assigned medical records number 9235. The patient was admitted for acute abdominal pain on the right lower side. The patient was suffering from a hematoma, a collection of blood in the tissue. Most probably the patient had developed a hematoma of the rectus muscle as a result of coughing, because the patient's history revealed a severe upper respiratory infection accompanied by a cough. A surgical consultation prior to hospital admission would have revealed this condition and rendered hospital admission unnecessary; because the standards of the medical profession indicate that the hematoma should have been treated conservatively (i.e. no treatment was indicated). No testing should have been necessary, if a consultation had been sought. However, Respondent hospitalized the patient, ordered a chest x- ray, a pelvic sonogram and a barium enema. Neither the barium enema nor the pelvic sonogram would have been indicated if the patient had been seen by a consultant prior to ordering the tests. The patient was ultimately discharged on April 14, 1983 therefore, the hospitalization was unnecessary. (Adopts, with clarifying modification, Petitioner's PFOF 26-27). On March 29, 1983, Respondent admitted patient R.S. to Pembroke Pines General Hospital. Patient R.S. was assigned medical records number 9479 at Pembroke Pines General Hospital. No evidence was presented by Petitioner as to the propriety or necessity for the admission or the testing performed during the hospitalization of the discharge diagnoses. (With elimination of unnecessary material, this FOF adopts Petitioner's PFOF 28). On October 10, 1982, Respondent admitted patient K.G. to Pembroke Pines General Hospital. The patient was assigned medical records number 9540 by Pembroke Pines General Hospital. This twenty-three year old female was admitted with diagnoses of gastro-intestinal disorder and menstrual period disorder. The patient remained in the hospital for a period of three days. During the hospitalization, Respondent ordered the following tests: chest x-rays of sella turcica, a barium enema, pelvic sonogram; an EKG, an upper G.I. series with small bowel follow-through- a urinalysis, a platelet count, serum glucose levels (four); SMA 12, urine culture and colony count, progesterone levels, S Follicle- stimulating hormone levels and total estrogen levels. The x-rays of the sella turcica would be indicated where a pituitary tumor is suspected, but there was no indication that a pituitary disorder was suspected other than a vague reference to a menstrual disorder (which was never described in the records for patient K.G.). Therefore, this test was unnecessary. Although a barium enema was ordered, there was no description of pain or any disorder of the bowel and no indication of bowel changes which would indicate any disease of the colon. Therefore, the barium enema was not justified. Although the records reflect at least vague indications for ordering the upper GI series, the small bowel follow-through was not justified. Additionally, one isolated estrogen level was ordered. This was inappropriate because the test results would only be meaningful if a series of estrogen levels were obtained to determine the response curve of the ovaries. Therefore, "inappropriate" in this case means "unnecessary." The hospital admission of patient K.G. also was not appropriate. The entire evaluation could have been carried out by a gynecologist on an outpatient basis. No initial, pre-hospitalization referral to a gynecologist was reflected in Respondent's records. The patient was discharged on October 13, 1982, with the following diagnoses: abnormal menstrual periods due to left ovary cyst and abnormal pain due to mild gastritis associated with mild anxiety stage reaction. On his discharge summary for patient K.G., Respondent noted "all this information was given to the patient and was advised the patient to be seen by gynecologist for further result." Respondent's records further corroborated that the hospitalization was unjustified and unnecessary. (Covers Petitioner's PFOF 29-31) On August 4, 1982, Respondent admitted patient L.M. to Pembroke Pines General Hospital for treatment of "acute phlebitis". The patient was assigned medical records number 6965 by Pembroke Pines General Hospital. The patient was hospitalized for a period of thirteen days. Phlebitis is an inflammatory reaction of the vein(s). It is very important that the diagnosis be correct; because, with phlebitis, emboli or clots can break off and travel through the blood to the lungs. It is diagnosed clinically by history and by physical examination. On physical examination, the symptoms of phlebitis include the presence of swelling in the involved leg and the positive "Homan's sign." "Homan's sign" is the term used to describe the pain present from an inflamed deep vein, which pain is experienced when the leg is extended straight out and the foot is dorsiflexed or pushed back towards the leg placing stress on the calf muscle. Radiographically a venogram may be used to confirm or rule out the existence of phlebitis. A venogram is a test involving the injection of dye into the veins of the foot followed by an x-ray examination of those vessels. The records for patient L.M. do not contain adequate documentation of a physical examination of patient L.M. to establish the diagnosis of phlebitis. Thus, the patient may have had phlebitis, there were no adequate descriptions of the status of the right leg recorded in the patient records for L.M. Specifically, there is no mention of Homan's sign and there was no mention of any measurement of the patient's calves to determine whether there was swelling in the involved leg. Without a more thorough physical examination, Respondent should have performed a venogram to confirm the diagnosis. This was not done with patient L.M. (Adopts Petitioner's PFOF 32-34). While patient L.M. was hospitalized, Respondent treated the patient's unconfirmed phlebitis with Heparin (an anti-coagulent) intravenously. The patient remained on Heparin until August 15; 1982. On August 15, 1982, Respondent additionally ordered Coumadin, which is also an anti-coagulent, to be given to patient L.M. Respondent ordered Coumadin 5 mg. to be given by mouth at 6:00 p.m. (to be started on August 15, 1982)), and at 10:00 a.m. (to be started on August 16, 1982). Respondent's order provided that if the P.T. (prothrombin time) was twenty-five seconds, to hold the Coumadin. The normal prothrombin time is in the range of eleven to thirteen seconds. The dose of Coumadin given was inadequate to anti-coagulate the patient. (Adopts Petitioner's PFOF 35). On the day prior to discharge of L.M., Respondent wrote the following order: "If (patient) is below 20-tomorrow- and over 11.0. (patient) may be discharge(d)..." For the Coumadin to be effective (i.e. in order to have an adequate anti-coagulant effect from the Coumadin), the prothrombin time should have been above twenty prior to discharge. The prothrombin time on discharge was 12.9 seconds. (Adopts Petitioner's PFOF 36). From the hospital records for patient L.M. and the Doctor's orders for that patient there is adequate basis for the expert testimony that Respondent does not understand the therapeutic effect of Coumadin or its dosages. (Covers Petitioner's PFOF 37). On August 17, 1982; Respondent discharged patient L.M. from Pembroke Pines General Hospital with the following diagnoses: acute phlebitis of the right leg, anxiety stage reaction and migraine syndrome headaches. As discussed previously, the diagnosis of phlebitis cannot be substantiated from the records. Additionally, the records contain no documentation for the diagnosis of migraine syndrome headaches. (With the elimination of unnecessary material, this FOF adopts Petitioner's PFOF 38). On August 9, 1982, Respondent admitted patient M.A. to Pembroke Pines General Hospital for abdominal pain and a gastrointestinal disorder. This patient was assigned number 7448. The documentation of the history and physical examination for patient M.A. was significantly lacking. Patient M.A. was hospitalized for a period of three days. During that three-day period of hospitalization, the following tests were performed on M.A. pursuant to Respondent's orders: an E.K.G., a chest x-ray, an abdominal sonogram, a barium enema, a CRC, a urinalysis, a coagulation test and platelet count, fasting and non-fasting glucose levels (a total of six) SMA 12, a routine stool culture and a colonoscopy. All of the testing performed on patient M.A. could have been performed on an out-patient basis. There was no justification for admission of M.A. to Pembroke Pines General Hospital on August 9; 1982, or for the length of stay. Additionally, Respondent ordered the abdominal sonogram on patient M.A. without any indication for the test, which was unnecessary. This abdominal sonogram was used to view the liver, gallbladder and pancreas. However, there was no indication that M.A. experienced any problems with these organs. (Adopts Petitioner's PFOF 39-40). On admission, Respondent ordered that Diabenese 500 mg. (a glycogenic drug which will reduce the blood glucose levels and is normally used in the treatment of diabetes) be given by mouth daily. Additionally, Respondent ordered that the patient be given insulin on a sliding scale. Insulin is also normally used in the treatment of diabetes. However, diabetes was not listed as a diagnosis on discharge. The hospital chart provides no documentation for the use of Diabenese or the insulin. All glucose levels taken on this patient were within normal limits during the August 1982 hospitalization, and these eliminate any justification for the use of Diabenese or insulin for diabetes unrecorded. (As modified for clarity and to add the inference drawn by the undersigned from the evidence, this FOF adopts Petitioner's PFOF 41). On August 12; 1982, Respondent discharged patient M.A. from Pembroke Pines General Hospital with the following diagnoses: gastrointestinal disorder, abdominal pain secondary to several small diverticula of the left side of the colon, villous adenoma of the sigmoid colon, sinus bradycardia condition and essential hypertension. Several of Respondent's discharge diagnoses were either incorrect or not documented in the records for patient M.A. Sinus bradycardia is a very slow pulse rate. The pulses recorded for patient M.A. during hospitalization were 80, 68, 64, 68, 74 and 70 beats per minute, and were all within normal ranges. On one E.K.G. a notation was made that the pulse rate was slow. However, given the persistently normal pulse rates throughout the patient chart, the diagnosis of sinus bradycardia was incorrect. Additionally, Respondent's diagnosis of essential hypertension was incorrect. Essential hypertension means that type of hypertension for which there is no known cause. All of the blood pressure readings present in the hospital chart for M.A. were normal. Furthermore, the patient was taking no anti-hypertensive agents. Therefore, Respondent's diagnosis of essential hypertension in patient M.A. was also incorrect. Only one of Respondent's discharge diagnoses for patient M.A. was justified by use records for that patient, that of villous adenoma of sigmoid colon. This diagnosis was initially made by a consultant. (Adopts Petitioner's PFOF 42- 44). On March 22, 1983, Respondent admitted patient E.S. to Pembroke Pines General Hospital for abdominal pain with possible biliary disorders. The patient was assigned number 7917 and was hospitalized for a period of fourteen days. During that hospitalization, the following tests were performed on patient E.S., pursuant to Respondent's orders: an EKG, cervical spine x-rays; a voiding cystourethrogram and intravenous pyelogram, gallbladder sonogram; chest x-ray, an echocardiogram, a barium enema, an upper G.I. series, an oral cholestogram, small bowel series, sonogram of the thyroid glands an air contrast barium enema, a CRC, urinalysis, platelet count, glucose levels (a total of nine), SMA 12, a glucose tolerance test, an SMA 8, which included a serum glucose level, two routine stool cultures, a Thyroid profile, a two-hour post prandial blood sugar, 24 hour urine creatinine levels, insulin levels, by radioimmunoassay, and a Parathyroid hormone study. Much of the testing performed on E.S. during the hospitalization was excessive or unnecessary. Those tests that were indicated could have been performed on an out-patient basis. The insulin level by radioimmunoassay is indicated where secreting tumors of the pancreas are suspected. There was no indication in the records of patient E.S. that such a tumor was present. The intraveneous pyelogram is indicated where kidney disease is suspected. There was no indication in E.S.'s records that kidney disease was suspected or present. A sonogram of the thyroid is indicated where there is a palpable mass of the thyroid. In the records for patient E.S. there is no record of a palpable mass. In the records for patient E.S., the thyroid was described as mildly to moderately enlarged. However, there was no description of a mass or venous distention, and the carotid pulses are present. Therefore, it would appear unlikely that a mass was present. Accordingly, there was no indication for a sonogram of the thyroid gland. After performing a sonogram of the gall bladder (for which there was no indication) which yielded normal findings, Respondent ordered a cholecystogram. This latter test involves the oral consumption of a dye which is then excreted into the gallbladder so that the gallbladder can be viewed by x-ray. The test is used to determine if there are any filling defects in the gallbladder. In view of the normal gallbladder sonogram which had already been performed on patient E.S., it was excessive to additionally order the cholecystogram. There was no indication for performing a small bowel series on this patient. It was excessive to order and perform nine glucose levels where all of the levels obtained were within normal ranges. Respondent performed no real therapy on patient E.S. during the above-described hospitalization. The hospitalization was for diagnostic purposes. On April 5, 1983, Respondent discharged patient E.S. from Pembroke Pines General Hospital with the following diagnoses: diverticulosis of the sigmoid and descending colon, borderline diabetes mellitus, hyperuricemia, enlarged thyroid gland with hypofunctioning, diverticulum of the bladder and essential hypertension. The diagnosis "borderline diabetes mellitus," wads not justified by the patient's chart since all glucose levels found in the patient's chart were within normal ranges. (Adopts Petitioner's PFOF 45-47). On September 17, 1982, and on May 10, 1983, Respondent admitted patient A.W. to Pembroke Pines General Hospital. The patient was assigned medical records number 2966 by Pembroke Pines General Hospital. Petitioner established no violations with regard to this patient. (Covers Petitioner's PFOF 48). On October 6, 1982, Respondent admitted A.P. to Pembroke Pines General Hospital for a possible angina attack and a possible myocardial injury attack. Patient A.P. was assigned medical records number 8000 by Pembroke Pines General Hospital. Despite the fact that angina was suspected, Respondent failed to obtain a cardiac consultation during the October 1982 hospitalization of A.P. During the hospitalization of patient A.P., four chest x-rays and one CT Scan of the chest were performed pursuant to Respondent's orders. These tests revealed two areas of increased density in the left chest which were characterized as "masses." The recommendation made by the radiologists who reviewed the x-rays and the CT Scan was that further evaluation was necessary. Despite this recommendation, no further evaluation was performed in the hospital and no plan of follow-up or referral was included in the discharge summary prepared by Respondent. The importance of such documentation on "follow-up" is that it shows that the physician is aware of the problem and assures that the patient will be properly managed. From the records for A.P., it is impossible to determine whether or not Respondent planned proper management of the "masses" after discharge of the patient. (As modified to conform to the record as a whole- this FOF accepts Petitioner's PFOF 49-50). On October 23, 1982, Respondent discharged patient A.P. from Pembroke Pines General Hospital with several discharge diagnoses including the diagnosis of sliding hiatus[sic] hernia with gastroesophageal reflux. This diagnosis was not supported by the records for the patient. The hiatus is the opening in the diaphragm through which the esophagus passes into the stomach and should fit very snugly. In the case of a hiatal hernia, due to the increase of intra- abdominal pressure, a portion of the stomach slips through that opening and slides back and forth. Most commonly, if the patient is lying down, and particularly if the patient has had a sizable food intake immediately prior to lying down, the weight of the food will carry the stomach up into the abdomen. This is the disorder which Respondent diagnosed in patient A.P. The disorder is properly diagnosed by x-ray, specifically an upper G.I. series, Respondent did not order one. Respondent did order an upper abdominal sonogram and chest x- rays, neither of which would or did verify the existence of a sliding hiatal hernia with gastroesophageal reflux. Accordingly, Respondent's diagnosis was not substantiated. (As modified for clarity and to include the inferences of the undersigned, this FOF adopts Petitioner's PFOF -51). On July 1, 1983, Respondent admitted patient T.S. to Pembroke Pines General Hospital. Patient T.S. was assigned medical records number 9478 by Pembroke Pines General Hospital. The patient was admitted for acute right renal attack and remained in the hospital for a period of six days. On the patient's history, Respondent noted that his impression diagnosis was sinus bradycardia as a secondary problem. Respondent's evaluation of the cardiac status of the patient included ordering the following tests: three E.K.G.'s all of which were abnormal, indicating a previous myocardial infraction of indeterminate age, and a cardiac profile. In Respondent's Discharge for patient T.S., Respondent wrote: On admission, the patient was seen and examined by the ER physician, and after examination was accomplished the patient was admitted to the Telemetry Unit due to the previous history of organic heart disorder and having cardiac arrythmias. The patient was also complaining of chest pain at this time... Despite the above information, Respondent failed to obtain a cardiac "consult" for patient T.S. Furthermore, the cardiac status for the patient was never adequately evaluated. This does not meet the prevailing standards of the medical profession. (Adopts and expands Petitioner's PFOF 52-53). On July 2; 1983, an intraveneous pyelogram (IVP) was performed on patient T.S. pursuant to Respondent's order. The IVP revealed distal right ureteral calculus (or a kidney stone), which was the cause of the patient's renal (kidney) attack. Once the diagnosis of renal calculus was established, patient T.S. should have been discharged. Any remaining pain could be controlled with oral medication. However, instead of discharging the patient, Respondent kept the patient in the hospital for five extra days without adequate justification in the records. (Adopts and expands Petitioner's PFOF 54-55). While patient T.S. was hospitalized, Respondent ordered the following unnecessary or excessive testing: Lanoxin serum levels, quinidine serum levels, and a second IVP. The Lanoxin and quinidine levels would be indicated where it was necessary to monitor the levels of those drugs in the blood. However, the chart for patient T.S. contained no documentation that either quinidine or lanoxin were being administered to the patient, and, therefore, these tests were inappropriate. The second IVP was excessive testing because the first IVP provided all of the information sought by the second IVP, and the diagnosis was established on the original IVP. The hospitalization of patient T.S. was excessive in length and probably should have been no more that two days. (Adopts Petitioner's PFOF 56-57). On October 29, 1982, Respondent admitted patient D.S. to Pembroke Pines General Hospital for a hypertensive crisis and cardiomegaly. Petitioner established no violations with regardo this patient; who was assigned records number 0905. (Adopts Petitioner's PFOF 5). In general, the unrefuted expert testimony supports a finding that with respect to all of the records previously described, excluding patients O.A., R.R., R.S., A.W., and D.S., the admission notes and discharge summaries were not coherent. The undersigned accepts the expert testimony of Dr. Ehrlich that a large part of this lack of coherency is probably due to Respondent's inability to communicate in English with proficiency and fluency. However, the undersigned finds upon the expert opinion testimony of both Dr. Handworker and Dr. Ehrlich that these records of Respondent were additionally medically deficient as reflected in the foregoing findings of fact, in that Respondent's records failed to include pertinent necessary historical data that would be indicated, and Respondent failed, in his discharge summaries, specifically, to address the need for follow-up care. (Adopts, with modifications for clarity, Petitioner's PFOF 59). The refuted expert testimony is that with reference to two patients, M.A. and L.M., Respondent's records were not sufficient to justify the treatment of the patient. With respect to patient M.A., there was a significant lack of documented history and physical examination. With respect to patient L.M.; there was inadequate documentation of the clinical history and physical examination results, or of pertinent laboratory testing (venogram) to show that the patient, in fact, had phlebitis. Therefore, there was inadequate documentation for administering anti-coagulants to this patient. (Adopts Petitioner's PFOF 60). The unrefuted expert testimony is based only upon review of records. Neither testifying physician treated any patient referenced. In the case of at least one patient, the name is difficult even to determine. However, it is clear that in many instances; Respondent's records contained inadequate information to justify admission of the patients to the hospital, particularly with respect to patients C.M. (6893), F.L. (4144), J.G. (2693), E.R. (4910), E.P. (4924), 9235, K.G. (9540), M.A. (7448), and E.S. (7917). In many instances; Respondent's records were inadequate to justify many of the diagnoses which were made by Respondent. Specifically, the records for patient C.M. (6893), F.L. (4144), E.P. (4924), L.M. (6965); M.A. (7448), and E.S. (7917), did not contain justification for many of the diagnoses made by Respondent. In many instances, the records were not adequate to justify all of the testing performed, particularly those records for F.L. (4144), E.R. (4910), Patient No. 9235, K.G. (9540), M.A. (7448), E.S. (7917) and T.S. (9478). In two instances; with respect to patients M.A. (7448) and T.S. (9478); Respondent's records were inadequate to justify the length of the hospital stay. (Adopts Petitioner's PFOF 61). In many instances, Respondent unnecessarily admitted patients. By admitting patients unnecessarily and for excessive periods of time, Respondent benefited from the daily charge which he could assess for seeing the patient while hospitalized and it is possible to infer therefrom that this amounts to exploitation of patients C.M. (6893), F.L. (4144), J.G. (2693), E.R. (4910), E.P. (4024), Patient No. 9235, K.G. (9540), M.A. (7448), and E.S. (7917) for the financial gain of the Respondent. However, without some further evidence of malicious intent above and beyond mere incompetency, the undersigned views the evidence insufficient to draw such an inference. (For the reasons stated herein, Petitioner's PFOF 62 is rejected). Then Respondent unnecessarily or excessively tested patients [Specifically, patients F.L. (4144), E.R. (4910), E.P. (4924); Patient No. 9235, K.G. (9540), M.A. (7448), E.S. (7917) and T.S. (9478)], the patients or their insurance companies were required to pay the hospital for these tests which should not have been performed. However, without some evidence of conspiracy or something more than mere incompetency, the undersigned does not view the evidence as sufficient to draw such an inference. Without more than appears in this record, it is not logical to assume that Dr. Gonzalez benignly set out to profit Pembroke Pines General Hospital out of the "goodness" or "badness" of his heart. Further, the very fact that he fairly consistently avoided consultations with specialists suggests that this Respondent was not intending to enrich any third parties. (For the reasons stated herein, Petitioner's PFOF 63 is rejected). Respondent failed with respect to all of the above-named patients (excluding R.R., D.S., A.W., R.S., and O.A.) to practice medicine with that level of care, skill and treatment which is recognized as acceptable by a reasonably prudent similar physician under similar conditions and circumstances when he: admitted patients without justification; unnecessarily and inappropriately ordered tests for the patients which were not indicated by the patient's symptomatology; incorrectly diagnosed and conditions of patients he treated; inadequately documented the need for admission to the hospital and testing, inadequately documented the justification for his diagnoses and inadequately documented follow-up care; inappropriately prescribed Coumadin for patient L.M.; and excessively hospitalized two patients. (Adopts Petitioner's first PFOF 64). Respondents for the reasons previously enumerated failed to practice medicine within the prevailing standards of practice in the community. (Adopts Petitioner's second PFOF 64). Diagnoses are of great significance in a patient's care. They impact on the future well-being of the patient. Respondent, with respect to the records reflected above, failed to demonstrate adequate diagnostic ability. (Adopts Petitioner's PFOF 65).
Recommendation Based on the foregoing, it is therefore RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating Section 458.331(1)(n) and (t), Florida Statutes (Counts One and Two),and not guilty of violating Sections 458.331(1)(1) and (o)(Counts Three and Four), and suspending Respondent's license to practice medicine for a minimum of three years, with reinstatement conditioned upon proof of attendance and successful completion of courses selected by the Board of Medicine related to diagnosis and necessary record keeping. DONE and RECOMMENDED this 31st day of July, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1987. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Stephanie A. Daniel Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert A. Gonzalez, Jr. 1900 North Univeristy Drive Suite 110 Pembroke Pines, Florida 33024 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Soled Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue in this case is whether the license of Allen B. Erde, M.D., should be disciplined by the Florida Board of Medicine based upon actions he is alleged to have taken, or failed to have taken, between August and November, 1986, in the care and treatment of his patient, C.W.
Findings Of Fact At all times material hereto, Respondent has been licensed as a physician in the State Of Florida, having been issued license number ME-0008625. Respondent was C.W.'s obstetrician during her pregnancy in 1986, and initially examined her on August 26, 1986, when she was six weeks pregnant. During this initial visit, C.W. was informed by Respondent that her pregnancy was progressing normally. At her second visit, on September 23, 1986, Respondent detected no fetal heartbeat. However, he informed C.W. that this was not a problem. He requested that she bring her husband with her for her third visit so that they both could hear the heartbeat. Prior to her third visit, C.W. saw Respondent in his office on October 6, 1986, complaining of urinary problems, and a stiff neck and back. Respondent treated her for a urinary tract infection. Later that same day she began to bleed vaginally, passed clots and experienced cramping pains. She then saw Respondent at the Winter Haven Hospital emergency room, but was told that nothing seemed wrong. Respondent advised her simply to go home, put her feet up, and rest. There were several other occasions during October, 1986, when C.W. experienced cramping and vaginal bleeding. She called Respondent each time to express her concerns, but was told simply to lie down, and keep her feet up. On October 22, 1986, C.W. and her husband visited Respondent for her third scheduled visit. No heartbeat was heard. Respondent again told C.W. that there was no cause for concern, the baby was just small and probably behind her pelvic bone. C.W. was presumably 14 weeks pregnant at this time, but Respondent's office records indicate that the fetus was decreasing in size, there was no weight gain, and no heartone. C.W. continued to experience pain and bleeding, sometimes accompanied by clots. She was not gaining weight, and had none of the other indications of pregnancy which she had experienced in her prior pregnancies. C.W. continued to express concern to Respondent, but his advice remained simply to lie down, and keep her feet up. In response to a five day episode of bleeding, C.W. saw Respondent in his office on November 12, 1986. Although she was 17 weeks pregnant at that time, Respondent's office records indicate a fetus 14 weeks in size. Respondent did not order any fetal viability tests, and there is no evidence in his office record that he considered any testing of the fetus. C.W. saw Respondent for her fourth scheduled visit on November 19, 1986, and, again, no fetal heartbeat was detected. She was still experiencing vaginal bleeding. Her uterus was only 10-12 weeks in size, although she was presumably 19 weeks pregnant at this time. C.W. was distraught, and expressed great concern to Respondent that she was presumably almost five months pregnant and no fetal heartbeat had ever been detected. C.W. demanded that Respondent do something. He then ordered a quantitative Beta-subunit Human Chorionic Gonadotropin blood test to determine her hormone level. On November 2l, 1986, Respondent called C.W. at her place of employment, and informed her that her hormone levels were extremely low, and that she might not have a viable pregnancy. He told her she should keep her next regularly scheduled appointment with him, but if she experienced any severe bleeding or cramping to call him. C.W. left work and became increasingly upset. She contacted him later on that same day for a more complete explanation of what she should expect. Respondent told her that the fetus was "reversing itself and was losing weight instead of gaining." C.W. was not informed by Respondent that the fetus was not viable, and she took his advice to mean that if she was extremely careful there was still a chance of carrying the pregnancy to term. Respondent admitted to the Petitioner's investigator, Jim Bates, that he knew the fetus was dead at this time, but he was trying to let nature take its course, and if she did not abort in two or three months, he would take the fetus. Because she was extremely upset and her friends were concerned about the advice she was receiving from the Respondent, an appointment with another obstetrician, Dr. Vincent Gatto, was made for C.W. by one of her friends. Dr. Gatto saw C.W. on or about November 21, 1986, and after examining her he immediately diagnosed her as having had a missed abortion. A sonogram confirmed this diagnosis. A dilation and curettage was performed on C.W., and subsequent pathological reports revealed remnants of an 8-week fetus. The medical records which Respondent maintained of his care and treatment of C.W. are incomplete and contain discrepancies concerning his evaluation of the patient. They do not reflect C.W.'s numerous telephone calls, or that she was increasingly upset over the course of her pregnancy. There is no delineation of a plan of treatment in these records, or any explanation of the type of treatment he was pursuing for her. There is no explanation or justification in these records of Respondent's failure to order a sonogram or test, other than the one Beta-subunit Human Chorionic Gonadotropin, for C.W., although she repeatedly reported vaginal bleeding and cramping, and there was a continuing inability to detect a fetal heartbeat. Respondent failed to carry out the correct tests on C.W., and therefore, he failed to make a correct diagnosis of missed abortion, or to treat her correctly. He allowed her to carry a dead fetus for almost two months. Retention of the products of a non-viable pregnancy can lead to several complications, including infection, blood clotting and psychological trauma. In fact, this experience caused C.W. severe emotional anguish. In his care and treatment of C.W., Respondent failed to meet the standard of care that is required of a physician practicing under similar conditions and circumstances.
Recommendation Based upon the foregoing, it is recommended that Florida Board of Medicine enter a Final Order suspending Respondent's license to practice medicine for a period of five years, and imposing an administrative fine of $3,000. DONE AND ENTERED this 21st day of August, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1989. APPENDIX (DOAH CASE NO. 88-4785) Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding l. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. 6-7. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 11. Rejected as irrelevant. 14-17. Adopted in Finding 13. 18-21. Adopted in Finding 12. 22. Adopted in Finding 14. The Respondent did not file Proposed Findings of Fact. COPIES FURNISHED: Mary B. Radkins, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Allen B. Erde, M.D. P. O. Box 1817 Winter Haven, FL 33883-1817 Allen B. Erde, M.D. 198 First Street, South Winter Haven, FL 33880 Dorothy Faircloth Executive Director Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth Easley, General Counsel Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0729
The Issue Whether disciplinary action should be taken against the license to practice medicine of Respondent, Carl Fromhagen, M.D., based on allegations that he violated Subsections 458.331(l)(k),(m) and (t), Florida Statutes, as alleged in the Administrative Complaint in this proceeding.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes. At all times material to this proceeding, Respondent was a licensed physician in the State of Florida, having been licensed in 1956 and issued License No. ME 0007027. Respondent is board-certified in Obstetrics and Gynecology (1967). He is 74 years old and now has an office- based practice treating only gynecological patients. Patient K. B., a 46-year-old female, first presented to Respondent on September 6, 1990, with menopausal complaints. Her patient's history reflects that she reported a family history of breast cancer. On February 12, 1992, Patient K. B. presented to Respondent with complaints of a mass in her left breast. Respondent palpated a mass in K. B.'s left breast and, although he did not note the size of the mass in his office records, the records contain a diagram showing the location of the mass. Petitioner testified that it was his practice that when he discovered a mass of less than 2.5 centimeters, he did not describe the size because its too hard to identify the exact dimensions smaller than an inch. Respondent ordered a mammogram for Patient K. B. which was performed on February 19, 1992, and was interpreted as revealing no evident neoplasm (cancer). Respondent saw Patient K. B. in his office on the following dates (after the mammogram): March 30, 1992; May 21, 1992; August 31, 1992; April 19, 1993; April 27, 1993; May 4, 1993; May 11, 1993; May 18, 1993; September 21, 1993; and November 16, 1993. In addition, Patient K. B. had telephone contact with Respondent's office staff to have prescriptions refilled and was mailed examination reminder notes. Patient K. B. testified that she and Dr. Fromhagen discussed the breast mass "every checkup, every time I was there." She inquired about a follow-up mammogram and Dr. Fromhagen indicated that she could wait two years. He did not mention a biopsy, excision, or referral to another physician at anytime. Patient K. B. and Respondent agree that Respondent examined and palpated the breast mass during her physical examinations which took place approximately every six months. During civil litigation that preceded the instant administrative hearing, it became apparent that there were two different sets of office records for Patient K. B. Patient K. B. testified that during the civil action she brought against Respondent in 1996, Respondent had produced medical records, purported to be hers that did not accurately reflect her treatment. She recalled that upon comparing the medical records Respondent had produced in the civil action with the records she had obtained from Respondent's office in December 1994, she discovered that Respondent had "augmented" her records, which she reported to her attorney. In May 1994, the offices of Dr. Paul Straub, who became Patient K. B.'s new treating physician as a result of a change in her group health insurance, requested her medical records from Dr. Fromhagen's office. Dr. Fromhagen testified in the instant hearing that "at the time . . . I compared the chart [Patient K. B.'s records] with . . . 'day sheets' and because I felt the records did not reveal everything that Dr. Straub should be aware of, I rewrote certain portions of them to reflect things that were on the day sheets that I hadn't already written down and then [in May 1994] sent the records to Dr. Straub." Patient K. B. testified that, "the night before my surgery" [December 1994] she received a call from Dr. Fromhagen's office asking if they could send her records to Dr. Straub. In the course of that discussion, Patient K. B. advised that she had been diagnosed with breast cancer and was scheduled for surgery. That same evening, shortly after the phone discussion with Dr. Fromhagen's office, Patient K. B. went to Dr. Fromhagen's office and obtained a copy of her medical records. These records did not contain the "rewritten portions" Dr. Fromhagen reported as having been done in May 1994. Dr. Fromhagen testified that he started keeping "day sheets" when he first started practicing in 1960. The "day sheets" (Respondent's Exhibit 2) are essentially a daily calendar organized by time which lists the name of patients to be seen that day and then notes such as "ovarin cyst," "vaginitis," "preg?" These "day sheets" were not mentioned in either of Dr. Fromhagen's depositions taken in 1996 in the civil action. In Petitioner's Exhibit 10, a July 3, 1997, letter to M. S. Sutton, an Agency for Health Care Administration investigator, Dr. Fromhagen attempts to explain his record- keeping practice for patients, Dr. Fromhagen acknowledges rewriting his charts and states, "I would carefully review the chart and address any portions that I felt were not completely explanatory, or that I thought need information to assist the subsequent physician. I now understand that I should have noted the changes as late entries and dated them the date written." No mention was made of "day sheets" in this letter. Dr. Fromhagen testified during a deposition taken in the civil action that his standard practice was "to make entries in the chart right away," that he never put it off, and that he had not done anything different in Patient K. B.'s case. Dr. Fromhagen acknowledged that during a deposition taken in the civil action he had incorrectly testified that he had not made changes in Patient K. B.'s medical record. The following is a comparison of the significant difference between Petitioner's Exhibit 9, Patient K. B.'s original medical record, and Respondent's Exhibit 3, Patient K. B.'s "augmented" medical record. Please note: Patient K. B. became Dr. Fromhagen's patient on September 6, 1990. No changes were made in the "Gynecologic History and Physical Examination" (Patient K. B.'s medical record) on any entry until March 30, 1992. Changes are highlighted. Date: March 30, 1992 Original record: "Mammogram was neg. palpation indicates mass much smaller. Will follow" Augmented record: "Mammogram reported as no evidence of neoplasm. Palpation indicates to me that mass is smaller. Discussed removing it" Date: May 21, 1992 Original record: "Dysuria General Malaise. Pelvic unremarkable. Urine - pus. Rx Macrodantin" Augmented record: "Dysuria. Mailaise. Pelvic unremarkable. Urine - pus. Rx Macrodantin" Date: August 31, 1992 Original record: "Introital lesions. Pelvic area feels congestion and cramping sensation. Pelvic- ulcers-blisters at introitus but very small. Herpes? Rx Zoirax" Augmented record: "Introital lesions. Lower abd cramping. Pelvic - herpetic ulcers at introitus. Rx Ziorax" Date: April 19, 1993 Original record: "Last mammogram revealed no concern. Dysuria. Frequent UTI. Had a cysto before. Rhinorrhea. Vulvar irritation. GenPE. Breasts unchanged. Pelvic - fungus. Rx She has Monistat. Urine - pus Macrodantin. RV Cysto" Augmented record: "Last mammogram revealed no neoplasm but mass still present and I suggested another x-ray now or removal of mass if she wishes. Dysuria. Has frequent UTIs. Had a Cysto before. Rhinorrhea. Vulvar irritation. Gen PE - nasal turbinates swollen. Breasts unchanged. Pelvic-fungus. Rx she has Monistat for fungus. Macrodantin RV Cysto" Date: April 27, 1993 Original record: "Cysto: stricutre. Proximal urethra & trizone inflamed and granules. Bladder capacity - first desire to void at 200 c.c. RV dilations" Augmented record: "Cysto-urethral stricture. Proximal urethra & trizone inflamed & granular. Urethra L46. Bladder capacity - first desire to void at 200 cc. Rx RV dilations" Date: May 18, 1993 Original record: "No urinary complaints now. Sounded #32 irrigated AgNO3. This concludes dilations" Augmented record: "No urinary complaints now. Sounded #32, irrigated AgNO3. This concludes diations. She has not gotten this years mammogram yet" Date: October 11, 1993 Original record: "Rem sent" [entry made by office staff]" Augmented record: "Reminder note sent - Exam due." [entry made by office staff]" Date: November 16, 1993 Original record: "On Premarin.625. Starting to awaken in the middle of the night again Nervous. No flashes. Bladder OK. New glasses. Trouble adjusting to fidders bifocals. GenPE, breasts & pelvic unchanged. Pap change to Premarin 1.25" Augmented record: "On Premarian.625. Starting to awaken in the middle of the night again. Very nervous. No flashes. Bladder OK. Finds it hard to adjust to her new bifocals. Gen PE unchanged. Breasts - mass still present. Again suggested she get a yearly mammogram or have mass excised. She has not arranged for a mammogram as she said she would. Pelvic unchanged. Rx Increased dose of Premarian to 1.25" The entries made in patient K. B.'s "augmented" record (Respondent's Exhibit 3) were not noted to be "late entries" nor were they dated. Both expert witness opined that this fell below the standard of care. Most of the "late entries" made by Respondent in the "augmented" record (Respondent's Exhibit 3) are a self-serving attempt by Respondent to create the impression that he had encouraged Patient K. B. to have follow-up mammograms or to have the breast mass excised. If the "augmented" record (Respondent's Exhibit 3) was a true reflection of the treatment rendered Patient K. B. by Respondent, his treatment could possibly have met the "standard of care." I find that the "augmented" record does not reflect the treatment Patient K. B. received, but that the original record (Petitioner's Exhibit 9) is the more credible document and accurately reflects Respondent's treatment of Patient K. B. Dr. Nelson, who testified as an expert witness, testified that Dr. Fromhagen fell below the standard of care in that (relying on both the original record and "augmented" record) between March 30, 1992, and April 13, 1993, he did not "deal with the breast mass, did not report discussion of treatment options with the patient, did not order a follow-up mammogram within 12 months." Again relying on both records, Dr. Nelson testified that Dr. Fromhagen fell below the standard of care for maintaining medical records when he failed to record his examination of Patient K. B.'s breasts and palpation of the mass which he reported as having been done "every visit she made." Both Dr. Von Thron, who also testified as an expert witness, and Dr. Nelson agreed that the standard of care requires that for any revision of medical records, if a change is made, a line is made through the original so it can be read and then the correction is made and the change is dated and initialed. If an additional statement is entered into the medical record, it should be dated and initialed. Dr. Fromhagen did not date or initial the changes or additions to Patient K. B.'s medical record when he created the "augmented" record. Both expert witnesses testified that this fell below the standard of care for medical record-keeping. Dr. Von Thron, referring to the original record, opined that Dr. Fromhagen did not comply with the standard of care for essentially the same reasons as expressed by Dr. Nelson. He opined that the "augmented" record indicates that Dr. Fromhagen complied with the standard of care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Board of Medicine enter a final order finding Respondent guilty of violating Subsections 458.331(1)(k), (m), and (t), Florida Statutes (1993), and imposing the following: A $1,000.00 fine for each violation, for a total of $3,000.00; and A one-year suspension followed by two years' probation; Ten hours of continuing medical education in ethics; An appropriate medical education course in medical record-keeping. DONE AND ENTERED this 5th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2001. COPIES FURNISHED: George Thomas Bowen, II, Esquire Law Offices of Donald Weidner, P.A. 11265 Alumni Way, Suite 201 Jacksonville, Florida 32246 John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The central issue in this case is whether the Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating the practice of medicine in the State of Florida. Respondent holds an active license to practice medicine, license number ME 0030238 (Physician). Respondent's practice is limited to what he has described as "cosmetic" surgery, but which is considered plastic or reconstructive surgery. Typically, Respondent performs elective surgery for cosmetic purposes to breasts, abdomen, buttocks, face (eyes, lips, cheeks), or hips. In August, 1990, the patient, V.A., presented to the Respondent for a pre-operative consultation and examination. At the time, V.A. was interested in having liposuction, breast enlargement, and an abdominoplasty. Due to her medical history, V.A. was an extremely poor candidate for an abdominoplasty. The pre-operative history and physical examination performed by Respondent as reflected in the records maintained by Respondent for the patient, V.A., were inadequate. No records supporting a complete physical examination and history have been provided. The pre-operative medical records maintained for the patient, V.A., do not support the course of treatment proposed for the procedures to be performed. Respondent did not order a pre-operative lab work-up for the patient, V.A. Such lab order would normally consist of a complete blood count, a urinalysis, electrolytes, blood sugar, blood nitrogen test, and a mammogram or breast examination since the breasts were to be augmented. Respondent relied on lab test results for V.A. which were approximately three months old. Respondent believes that the reliance on tests up to six months old would be acceptable since he only performs surgery on healthy patients. Respondent performed no independent examination of V.A. to verify she was "healthy," prior to surgery. Failing to obtain current lab tests of the types described above before performing elective surgery of the nature sought by V.A. constitutes the practice of medicine below the standard of care, skill, and treatment which a reasonably prudent physician would find acceptable under similar circumstances and conditions. On or about August 30, 1990, Respondent performed the following procedures on V.A.: liposuction; breast enlargement; and an abdominoplasty. In order to perform the procedures noted, Respondent used general anesthesia so that V.A. was under anesthesia for six hours. During that time, Respondent opened V.A.'s abdomen, removed tissue, removed adipose tissue from various parts of the patient's body, injected fat tissue into the patient's breasts, cheeks and hands, and closed the abdominal wound with stitches. The surgical or operative notes maintained by Respondent for the patient, V.A., are inadequate to fully describe the procedures performed. The Respondent was released to go home approximately two hours after the surgery. The postoperative notes maintained by Respondent for the patient, V.A., are inadequate to fully describe how the patient was able to be discharged in so short a time after surgery. V.A. returned to Respondent's office numerous times following the surgery. V.A. sustained an infection and complications from the wound to her abdomen that took months to heal. Respondent treated the infection by scraping the wound and attempting to re-stitch it on at least two occasions. V.A. sustained necrosis which is the death of tissue and which complicated the healing of the abdomen wound. The loss of skin from necrosis is much more likely to occur when the patient has scarring. Given V.A.'s medical history (scarring throughout the areas), the necrosis was almost inevitable. Two procedures are available under the circumstances applicable to V.A.: allowing the wound to heal without stitches or to use a skin graft. The procedure used by Respondent (stitching the infected area) fell below the standard of care, skill, and treatment which a reasonably prudent physician would find acceptable under similar circumstances and conditions. Injecting fat tissue for breast augmentation is inappropriate. Since it is common for the fat tissue to die after injection, the injected tissue then appears on a mammograph as a mass of suspicious origin. That is, it is difficult to differentiate from a breast mass that is a medical problem from that of the dead fat tissue. As a result, biopsies may be required to verify the mass content. In fact, V.A. has already had to have such a procedure following the augmentation performed by Respondent. Respondent also conducted a pre-operative interview with a patient, P.T. P.T. was a radio talk show host at the time and suggested that the station, she and Respondent could all benefit from a campaign wherein she would have liposuction, the Respondent would receive her endorsement through advertising, and the station would have advertising paid for by the Respondent's clinic. In an attempt to negotiate the terms of the advertising campaign, P.T., an advertising executive with the radio station, Respondent's office manager, and Respondent met together to discuss the project. Respondent wanted a multifaceted campaign requiring P.T. to undergo more than just the liposuction she sought. Respondent's scope for the campaign included many of the surgeries his clinic offered. While discussions continued for the advertising campaign terms, P.T. underwent pre-operative testing which included a blood test, medical history forms, and photographs. During an office consultation in anticipation of surgery, Respondent requested that P.T. allow him to examine her. Unlike a previous examination which had occurred without incident with someone in the room, Respondent closed and locked his office door and requested that P.T., who was alone with Respondent, stand near his desk. When she complied, he leaned forward and raised her dress over her breasts. Next he unhooked her bra and pulled it over her breasts. Respondent proceeded to poke and prod P.T. across her breasts and abdomen during which time P.T. presumed it was for medical purposes. P.T. became uncomfortable when the prodding which continued became more like a caress. She attempted to presume Respondent was merely checking the texture of her skin but became increasingly uncomfortable with his touch. P.T.'s discomfort accelerated when she realized Respondent had placed his face in her vaginal area and was licking her. She immediately attempted to pull away. Respondent grabbed her on the breast and, as P.T. put it, "in the crotch." P.T. struggled with Respondent who made several sexually inappropriate comments to her. As P.T. attempted to regain her composure and close her clothes, the Respondent's office manager knocked on the door. On hearing the office manager, Respondent released P.T. and went to unlock the door. At the time of the foregoing incident, P.T. was the Respondent's patient. Respondent did not maintain appropriate medical records for the course of treatment proposed for the patient, P.T. Respondent's course of conduct with the patient, P.T., fell below the standard of care a reasonably prudent physician would pursue for treatment of this patient. Respondent attempted to engage a patient in a sexual activity. P.T. did not consent to the activity described above.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Agency for Health Care Administration, Board of Medicine enter a final order finding the Respondent guilty of violating Sections 458.331(1)(j), (m), and (t), Florida Statutes, and imposing the following penalties in accordance with the guidelines set forth by rule: revocation of the license together with an administrative fine in the amount of $15,000.00. DONE AND ORDERED this 16th day of August, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3609 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 56 are accepted as accurate as to the facts but not necessarily the form for findings of fact. Typically, findings of fact should not recite testimony. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Kenneth J. Metzger Senior Attorney Agency for Health Care Administration/Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Leon Doyan, M.D. 2817 E. Oakland Park Boulevard Fort Lauderdale, Florida 33306
Findings Of Fact Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein. There is competent substantial evidence to support the findings of fact.
Conclusions The Administrative Complaint has charged, concerning patient No. 1, that the Respondent failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent failed to perform the procedure to which the patient consented, a bilateral salpingo- oophorectomy. He did not document in the record that he informed or explained to her that the procedure was not performed and why. His records do not show why the procedure was or was not medically necessary. Additionally, he performed a D&C procedure which was not authorized by the patient; and the records contain no documentation of the fact that he informed her of performing that procedure nor the medical reasons why it was indicated, if it was. Because of this and because he failed to perform the procedure to which the patient had consented, the BS&O, without explanation in his records, it has been proven by clear and convincing evidence that the Respondent is guilty as charged in Count I of violating Section 458.331(1)(t), Florida Statutes, by departing from the medical practice standard mentioned in the paragraph above. It was not established, however, that he failed to inform the patient that the procedure which she consented to was not performed, the records merely do not show that she was informed. Moreover, although her eventual death from ovarian cancer stemmed from the organs which he failed to remove surgically when the patient had authorized them to be removed, it was not shown that they were in a cancerous or pre- cancerous condition at the time he performed the surgery or otherwise that the lethal cancer condition resulted directly from his failure to remove the organs at the time of the surgery some five years prior to the patient's death. It was not shown that he should, for some reason, have foreseen that the organs might become cancerous and ignored the risk or that their removal was then medically necessary. In light of the above Findings of Fact, which are supported by the clear and convincing evidence of record, it has been established that Section 458.331(1)(n), Florida Statutes (1979), now substantially reenacted as Section 458.331(1)(m), Florida Statutes, has been violated by the Respondent's failure to keep written medical records justifying his course of treatment of patient No. 1 by failing to document any reasons for his plan to perform the BS&O procedure, to document any symptoms or complaints by the patient, or to document why he changed his plans and did not perform the planned procedure authorized by the patient. This situation is distinguished from that of Breesman v. Department of Professional Regulations, 567 So.2d 469 (1st DCA 1990), which held that the above statutory section was not violated where a physician failed to document other courses of treatment which he elected not to employ. Here, the Respondent planned the BS&O procedure and then changed his plan during surgery. The basis for the change was unexplained in his records. He did not keep written records containing any description of the patient's fallopian tubes or ovaries, as observed during the operation, nor why he performed a D&C to which the patient had not consented, or why the procedures performed were not discussed with the patient. Concerning Count III, the Petitioner has shown by clear and convincing evidence, which culminated in the above Findings of Fact, describing in detail the Respondent's practice and treatment related to patient No. 2, that the Respondent is guilty of violating Section 458.331(1)(q), Florida Statutes, by administering the legend drug, marcaine, to patient No. 2 other than in the course of his professional practice. The administering of a legend drug inappropriately (here, by epidural catheter) or in excessive or inappropriate quantities (12 milliliters of a 0.75% solution in a patient described as, and under the circumstances of, the above Findings of Fact) was not in the best interest of patient No. 2 and was thus not within the proper course of the Respondent's professional practice. The inappropriate administration and the excessive concentration and volume of marcaine for patient No. 2 prescribed and administered under the circumstances delineated in the above Findings of Fact constitutes a violation of Section 458.331(1)(t), Florida Statutes, as charged in Count IV, because the Respondent has been proven by clear and convincing evidence to have failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under those conditions and circumstances in light of the above factual findings pertaining to this patient. Count V of the complaint involves the charge that the Respondent failed to keep written medical records justifying his course of treatment of patient No. 2. This is a violation of former Section 458.331(1)(n), Florida Statutes (1983), now substantially reenacted as Section 458.331(1)(m), Florida Statutes. The above Findings of Fact, supported by clear and convincing evidence of record, demonstrate that the Respondent failed to document any justification for using a highly-concentrated and dangerous agent, such as marcaine, in a volume which was excessive under the circumstances with which the patient presented (regardless of the allowable maximum dose indicated in a general fashion in the PDR). It was an excessive volume for a patient of this size and weight and medical circumstance, including the circumstance that she gave every indication of being able to accomplish a routine vaginal delivery and thus clearly did not need such an excessive volume and concentration of this drug, given the attendant risks, delineated in the above Findings of Fact, which, indeed, came to pass. The Respondent additionally failed to keep any anesthetic record concerning his evaluation of the patient, a description of his anesthetic technique, nor any justification for his anesthetic plan. Unrefuted testimony from an expert anesthesiologist (Dr. Cross) establishes that an obstetrician who prescribes, dispenses, and administers the anesthetic during a surgical, obstetrical procedure is held to the same standard with regard to anesthetizing patients, caring for patients, and documenting the anesthesia portion of his practice with regard to a patient, as is an anesthesiologist. In Count VI, the Respondent is charged with a violation of Section 458.331(1)(t), Florida Statutes, concerning patient No. 3. As delineated in more detail in the above Findings of Fact, the Respondent failed to take an adequate history and to document the performance of an adequate physical examination of this patient. He failed to correctly assess the patient's laboratory results, to obtain appropriate diagnostic studies and failed to adequately assess, monitor, or treat the patient's pregnancy-induced hypertension, as elaborated in greater detail in the above Findings of Fact. He failed to obtain an adequate or complete history and failed to perform an adequate physical examination. He did not adequately assess or monitor the pregnancy-induced hypertension, failed to adequately treat that condition, failed to order appropriate diagnostic studies to accurately determine fetal status prior to initiating therapy to prolong the patient's pregnancy, failed to adequately assess the patient's laboratory test results, and when there was evidence that the baby was in distress, failed to deliver the pregnancy immediately. The above Findings of Fact show, based upon clear and convincing evidence, that the Respondent prescribed, dispensed, administered, mixed or otherwise prepared legend drugs inappropriately or in excessive or inappropriate quantities, not in the best interest of the patient, by prescribing aldomet for the patient. This may have decreased placental perfusion or blood flow. Prescribing lasix for the patient also can decrease placental blood flow and create electrolyte imbalances. It was also inappropriate to prescribe yutopar to prolong the high-risk pregnancy and to prescribe a corticosteriod cream for the patient as treatment for her condition (swelling), which the Respondent had never diagnosed nor assessed. This amounts to prescribing, dispensing, administering, etc. legend drugs not in the course of the Respondent's professional practice, in violation of Section 458.331(1)(q), Florida Statutes. Concerning Count VIII of the complaint, clear and convincing evidence, supportive of the above Findings of Fact, established that the Respondent's written medical records do not justify the course of his treatment of patient No. 3, including, but not limited to, the patient's history, examination test results, and the failure to document any justification for the Respondent's failure to adequately assess, monitor and treat the PIH. They do not contain justification for the failure to order appropriate diagnostic studies to accurately determine fetal status prior to initiating therapy to prolong pregnancy; the failure to assess and diagnose the swelling and the failure to adequately treat the patient during the C-section. They contain inaccurate documentation to the effect that the patient had a "saddleblock" anesthesia, when other medical records reveal that it was an epidural anesthesia. The records do not document that the patient's laboratory test results were adequately assessed; and there is no documentation of either an initial assessment of the infant or his resuscitation efforts shortly after delivery. This recordkeeping deficit amounts to a violation of Section 458.331(1)(n), Florida Statutes (1981) (now Section 458.331(1)(m), Florida Statutes). Concerning Count IX of the complaint, for all of the reasons delineated in the above Findings of Fact with regard to patient No. 4, it has been demonstrated that the Respondent failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. This is shown by the failure to obtain an adequate or complete history, to perform an adequate physical examination on the various dates delineated above, to adequately assess, diagnose and treat the patient by failing to attempt a vaginal delivery, and the failure to obtain informed consent from the patient for sterilization prior to C-section. Additionally, the Respondent failed to adequately assess, diagnose and treat the lacerated cervix, and failed to adequately treat the patient during her postoperative recovery period. Thus, a violation of Section 458.331(1)(t), Florida Statutes, has been established by clear and convincing evidence in these particulars. It has also been so demonstrated that by prescribing the antibiotic, garamycin, without ordering attendant renal function studies (because of the potential for kidney damage) and by changing the route of that medication to a less effective means (oral), even though the patient remained febrile, amounts to prescribing, dispensing, administering, etc. a legend drug, other than in the course of his professional practice and inappropriately, for purposes of Section 458.331(1) (q), Florida Statutes (Count X). Concerning Count XI, it was established, as shown by the above Findings of Fact, that the Respondent failed to keep written medical records justifying the course of treatment of patient No. 4. He failed to document a complete history of the patient and failed to make an adequate or complete physical examination. He recorded no justification for the failure to attempt to deliver the patient vaginally; to document any justification for continued use of the nasogastric tube after the patient began eating; to document any justification for not ordering renal function studies with the use of the above- named antibiotic and failed to document any justification for changing the route of administration of that antibiotic in a febrile patient. He recorded statements in the discharge summary which are directly contradicted by the Respondent's statements in the medical records; and failed to document any explanation for the contradictory statements contained in these records. This constitutes a violation of Section 458.331(1)(m), Florida Statutes. Concerning Count XII of the complaint, the Petitioner has demonstrated by clear and convincing evidence, culminating in the above Findings of Fact, that the Respondent is guilty of unprofessional conduct, incompetence, and negligence, in violation of Section 458.1201(1)(m), Florida Statutes (1977), now incorporated into Section 458.331(1)(t), Florida Statutes (1989). Unprofessional conduct shall include any departure from or the failure to conform to the standards of acceptable and prevailing medical practice within a physician's area of expertise, as determined by the Board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of a physician's practice. There is no question, given the above Findings of Fact, that the Respondent did not conform to standards of acceptable and prevailing medical practice within his area of expertise in his conduct of the care and treatment of patient No. 5. Thus, he has committed a violation of Section 458.331(1)(t), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, as well as the disciplinary guidelines and the consideration of aggravating and mitigating circumstances as provided for in Rule 21M-20, Florida Administrative Code, official recognition of which was taken; to wit, the exposure of the patient to injury or potential injury, the number of counts of separate offenses proven, and the disciplinary history of the licensee, it is therefore, RECOMMENDED that the Respondent be found guilty of violating Subsection 458.331(1)(g), Florida Statutes, as concluded hereinabove, with regard to Case No. 90-2680, but, in consideration of the above-referenced circumstances, that no penalty be imposed. With regard to Case No. 89-6489, it is RECOMMENDED that the Respondent be found guilty of violating the above enumerated subsections of Section 458.331(1), Florida Statutes, as concluded above, and that the Respondent's license to practice medicine in the State of Florida be revoked. DONE AND ENTERED this 9th day of September, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 89-6489 and 90-2680 Petitioner's Proposed Findings of Fact Case No. 90-2680 1-5. Accepted. 6. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 7-8. Accepted. Rejected, as not in accordance with clear and convincing evidence. Accepted. 11-12. Accepted. 13. Rejected, as not in accordance with clear and convincing evidence. 14-20. Accepted. Case No. 89-6489 1-7. Accepted. 8. Rejected, as it was not established with clear and convincing evidence what the patient believed. 9-13. Accepted. 14. Rejected, as not entirely supported by the evidence and as subordinate to the Hearing Officer's findings of fact. 15-28. Accepted. 29-69. Accepted. 70-83. Accepted. 84-95. Accepted. 96. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 97-103. Accepted. 104-120. Accepted. Respondent's Proposed Findings of Fact Case No. 89-6489 Accepted, except as to time period noted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Case No. 90-2680 Accepted, in part, but subordinate to the Hearing Officer's findings of fact. Accepted. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Mary B. Radkins, Esq. Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Elliott F. Monroe, M.D. 2709 Arden Panama City, FL 32401
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint December 19, 2005, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. See § 455.225, Fla. Stat. (2009). The Board is the entity responsible for regulating the practice of medicine in Florida and for imposing penalties on physicians found to have violated the provisions of Section 458.331(1), Florida Statutes. See § 458.331(2), Fla. Stat. (2009). At the times pertinent to this proceeding, Dr. Achong was a physician licensed by the State of Florida, having been issued license number ME38304, and his medical office was located at 690 East 49th Street, Hialeah, Florida. Dr. Achong specialized in obstetrics and gynecology, although he was not board-certified in these areas of practice. Dr. Achong has not previously been the subject of disciplinary action by the Board of Medicine, and he is not currently practicing medicine, having retired with a disability in 2006. At the times pertinent to this proceeding, Dr. Achong had hospital privileges at Hialeah Hospital and at North Shore Medical Center ("Medical Center"). Both facilities had his home telephone number and his beeper number. It was his practice to keep his beeper close to him at all times. When he was in the delivery room, it was his practice to give his beeper to the circulating nurse, who would be responsible for alerting him whenever someone tried to reach him on his beeper. The beeper he used in 2004 gave only the telephone number of the person trying to reach him, but he was able to recognize the number of Hialeah Hospital and the Medical Center. On February 12, 2004, Patient L.H. went to her gynecologist, Ramon Hechavarria, M.D., for a routine examination. Patient L.H. was, at the time, a 27-year-old who was 32 weeks' pregnant, and she had previously had one live birth. Dr. Hechavarria's examination revealed that Patient L.H.'s blood pressure was elevated, and Dr. Hechavarria admitted her to Medical Center for 24 hours for observation. On February 12, 2004, Dr. Hechavarria ordered blood and laboratory tests done in the Medical Center. The blood tests included a Disseminated Intravascular Coagulopathy ("DIC") profile and a Fibrinogen Degradation Profile ("FDP"); the results of these blood tests were normal. Patient L.H.'s hemoglobin and her platelet count were normal, and, although there was a slight trace of protein in her urine, that is considered normal. On February 13, 2004, Dr. Hechavarria discharged Patient L.H. with a diagnosis of chronic hypertension and a prescription for 250 milligram tablets of Aldomet, to be taken three times per day. Aldomet is a medication that treats hypertension by lowering the blood pressure. Patient L.H. was in good, stable condition when she was discharged on February 13, 2004. Readings from a fetal heart monitor taken during the time Patient L.H. was in the Medical Center indicated that the fetus was alive. Dr. Hechavarria considered Patient L.H.'s to be a high risk pregnancy in part because of her hypertension but also because she came in late for prenatal care, missed two appointments, and was overweight. Dr. Hechavarria left town for a vacation on February 13, 2004, and Dr. Achong was to cover his patients during his absence under an arrangement whereby Dr. Hechavarria and Dr. Achong provided coverage for each other when one or the other was out of town or otherwise unavailable to see patients. Under the arrangement, Dr. Achong was expected to go to the hospital if one of Dr. Hechavarria's patients were in labor or if a patient were to go to the emergency room complaining of vaginal bleeding or any other obstetrical or gynecological condition. Whenever coverage of patients was passing from one physician to the other, Dr. Hechavarria and Dr. Achong advised each other of any patient that was in the hospital for gynecological, obstetrical, or any other medical reason. They did not advise each other of patients that had recently been discharged from the hospital, and, therefore, Dr. Hechavarria did not discuss Patient L.H. with Dr. Achong because she had been discharged from the Medical Center before Dr. Achong began covering Dr. Hechavarria's patients. Patient L.H. presented at the Medical Center at approximately 2:00 a.m. on February 15, 2004, complaining of abdominal pains. She was seen by labor and delivery nurse Jennifer Williams, a registered nurse with 20 years' nursing experience, with 13 years' experience in the Medical Center's labor room, and with training as a mid-wife. Nurse Williams had worked with Dr. Achong at the Medical Center since 1991. Subsequent to Patient L.H.'s arrival at the Medical Center, Nurse Williams interviewed her, took her medical history, examined her, and entered the pertinent information on the Medical Center's Admission Assessment. The Admission Assessment form was dated February 15, 2004, and the time was noted as 2:45 a.m. The time written by Nurse Williams' signature on the Admission Assessment form was 3:00 a.m., and it appears that the information was obtained and entered on the form between 2:00 a.m. and 3:00 a.m. Pertinent to this matter, Nurse Williams maintained several other documents recording Patient L.H.'s condition and observations and actions taken by Nurse Williams relating to Patient L.H. Nurse Williams began maintaining a Labor Flow Record at 2:07 a.m. and she made periodic entries on the Labor Flow Record related to, among other things, Patient L.H.'s vital signs, the results of vaginal examinations and fetal monitoring, uterine activity, and pain intensity at different times during the night and morning. In addition, Nurse Williams entered on the Labor Flow Record the time and content of her communications with Dr. Achong; the first recorded contact between Dr. Achong and Nurse Williams was recorded on the Labor Flow Record as 2:30 a.m. Nurse Williams also maintained Progress Notes in which she recorded her observations of Patient L.H. and her conversations with Patient L.H. The first entry in the Progress Notes was at 2:35 a.m.2 Nurse Williams' Progress Notes reflect that, at 2:35 a.m., Patient L.H. advised Nurse Williams that she had contractions and believed she had been in labor since 6:00 p.m. the previous evening but had waited to come to the Medical Center until she was certain she was in labor. Patient L.H. also reported abdominal pain in her upper abdomen that did "not go away," and Nurse Williams observed that Patient L.H. was distressed by the pain in her abdomen. Patient L.H. also told Nurse Williams that she had no ruptured membranes or vaginal bleeding. Nurse Williams noted that she examined Patient L.H. and felt contractions but was unable to detect a fetal heart tone. Nurse Williams reported in the Admission Assessment form that Patient L.H. was having uterine contractions of moderate intensity and 60 seconds' duration, that her cervix was dilated 1-to-2 centimeters, that she had vaginal bleeding that was bright red, that her blood pressure was 159/118, which she described as "elevated," and that Patient L.H.'s abdominal pain was the "worse" pain on a pain scale ranging from 1 to 10; there is, however, no indication on the Admission Assessment form that the pain was constant. Nurse Williams also noted on the Admission Assessment form that she heard no fetal heart rate. Although the time noted on the Admission Assessment form was 2:45 a.m., it is apparent from a review of the relevant records that the information included on the Admission Assessment form was obtained by Nurse Williams over a period of time extending from the time Patient L.H. presented to her until 3:00 a.m., the time on the Admission Assessment form beside Nurse Williams' signature. Nurse Williams reported in the "Physician /CNM in/Called Report" section of the Labor Flow Record that she contacted Dr. Achong at 2:30 a.m. and conveyed to him the following information: "[P]atient arrived in ER c/o contractions since 6 pm last night & observation that no FHT [fetal heart tone] and contractions palpated." Nurse Williams telephoned Dr. Achong using his home telephone, even though his beeper number was also on file at the Medical Center. There is nothing in the report Nurse Williams gave to Dr. Achong at 2:30 a.m. that would require that he proceed to the Medical Center and examine Patient L.H., and he did not violate the standard of care by failing to do so. Because Dr. Achong did not know Patient L.H., Nurse Williams' normal procedure would have been to advise Dr. Achong of Patient L.H.'s history, including the medications she was taking, and her vital signs, including her blood pressure. No notation appears in the Labor Flow Record to confirm that she gave Dr. Achong this information during her conversation with him at 2:30 a.m., nor is there a notation in the 2:30 a.m. entry in the Labor Flow Record that Nurse Williams told Dr. Achong about the results of her examination of Patient L.H.'s cervix, Patient L.H.'s complaint of abdominal pain, or the presence of vaginal bleeding of bright red blood.3 Nurse Williams indicated in her entry in the "Physician/CNM in/Called Report" section of the Labor Flow Record that Dr. Achong ordered a "stat," or expedited, obstetrical sonogram during the 2:30 a.m. contact with Nurse Williams. The purpose of the obstetrical sonogram was to determine if the fetus was alive. Although not noted in the Labor Flow Record, the Labor and Delivery Orders form completed by Nurse Williams indicates that, at 2:30 a.m., Dr. Achong ordered a complete blood count, which is routine with a patient in labor; a DIC profile; and a Comprehensive Metabolic Panel ("CMP"). The Labor and Delivery Orders form contains standard orders for a woman in labor, but the DIC profile and the CMP tests were not included on the form but were ordered specifically by Dr. Achong. A DIC profile is used to determine if a patient has a problem with blood clotting. The DIC includes an assessment of prothrombin time and partial thromboplastin time, both of which indicate different levels at which a patient's blood is able to clot. It is important to know whether a woman in labor and delivery has a clotting problem, or coagulopathy, because of the danger of bleeding, and the classic situation in which DIC profiles are ordered is when there is fetal demise. Because Patient L.H. had the high risk factors of overweight and hypertension and because Nurse Williams could detect no fetal heart tone, Dr. Achong's order for the DIC profile was appropriate and met the standard of care. It is also appropriate to order a DIC profile when there is a concern about placental abruption, which is the separation of the placenta from the walls of the vagina. A placental abruption causes a great deal of bleeding, and can cause death when not treated, because the fetus is still in the womb and the uterus is not able to contract and constrict the large blood vessels that attach to the placenta. Although hypertension is one risk factor for placental abruption, the symptoms of placental abruption also include fetal demise, bleeding, constant pain, a decrease in hematocrit, and a number of other conditions. There is no indication in Patient L.H.'s medical records that Dr. Achong had sufficient information at 2:30 a.m. that would indicate that Patient L.H. had a possible placental abruption, and he ordered the DIC profile because of the lack of fetal heart tones.4 The CMP includes tests for kidney and liver function and for uric acid. It is used to determine if a woman has pre-eclampsia, or pregnancy-induced hypertension. Given Patient L.H.'s history of hypertension and the level of her blood pressure as reflected in the Admission Assessment form, Dr. Achong's order for the CMP was appropriate and met the standard of care in ordering the CMP. All orders for blood tests for women in labor and delivery are treated as "stat" orders and are processed ahead of all other test orders except those from the emergency room. When the situation warrants, a physician may order that the tests be performed more quickly than the usual "stat" order would require, and it would be possible to obtain blood-test results within 45 minutes. There is, however, no indication in Patient L.H.'s medical records that Dr. Achong had any information at 2:30 a.m. that might indicate that he should further expedite Patient L.H.'s blood tests. Nurse Williams reported in her Progress Notes that, at 2:40 a.m., Patient L.H. reported a "gush of something down there," and Nurse Williams noted that she observed a large amount of blood; there is, however, no notation in the Progress Notes regarding the color of the blood. Nurse Williams also included a notation in the Progress Notes that Patient L.H.'s cervix was "3cm dilated, 50% effaced, -3 station" to describe the progress of Patient L.H.'s labor. Nurse Williams reported in the Labor Flow Record that she contacted Dr. Achong at 2:45 a.m. and conveyed to him the following information: "Dr. Achong notified of gush of vaginal bleeding. VE [vaginal examination] 2-3, 50% effaced, -3 station and that we are awaiting sonogram." The results of Nurse Williams' vaginal examination of Patient L.H. showed that Patient L.H. was in active labor. The information that Patient L.H. experienced a "gush of vaginal bleeding" did not indicate to Dr. Achong that there was anything more than one episode of bleeding, which he attributed to an especially heavy "bloody show," which is the bleeding that occurs when the cervix is dilating. The notation indicates that Dr. Achong told Nurse Williams to call him if Patient L.H. went to delivery. The information conveyed to Dr. Achong at 2:45 a.m., as reflected in the notation in the Labor Flow Record, was not sufficient to indicate that Patient L.H. was not proceeding through labor normally to a vaginal delivery of the dead fetus, which is preferred over delivery by a Cesarean Section. Nurse Williams did not include in her records a notation that she advised Dr. Achong that the "gush of vaginal bleeding" consisted of a large amount of bright red blood, which would have been an indication of a possible placental abruption. Some bleeding is normal during labor, but it is usually a dark color from having been in the uterus and in a small amount or tickle, although there could be a "gush of blood" during normal labor. When Dr. Achong was advised by Nurse Williams that Patient L.H. had a "gush of blood," however, it was his responsibility to inquire into the amount of blood, the color of the blood, and the persistency of the bleeding to determine if Patient L.H. was proceeding with normal labor or if she was experiencing a hemorrhage or other abnormal condition. Nurse Williams made no entries in the Progress Notes for Patient L.H. between 2:40 a.m. and 3:40 a.m., when she reported that the ultrasound had been completed. She further noted in her Progress Notes: "Report of no fetal heart tones to Dr. Achong. Orders given." Nurse Williams additionally made a notation in the Labor Flow Record that, at 3:40 a.m., she contacted Dr. Achong and reported to him the following: "Ultrasound report No FHT's given to Dr. Achong. Orders received." Nurse Williams did not, however, indicate in her notations what orders were given. Nurse Williams contacted Dr. Achong through his home telephone number, which was normal procedure during the nighttime hours. When the sonographer, that is, the person performing the sonogram, entered Patient L.H.'s room to perform the sonogram, he noted that Patient L.H. was sitting upright in bed, was combative, and was in a lot of pain. He also noted that there was a fair amount of blood on the bed sheets. The sonographer was able to get Patient L.H. to lie on the bed, and he performed "a very short ultrasound,"5 and pulled the machine out of the room and into the hall. He powered the machine back up and read the numbers off the worksheet on the machine. He confirmed that the fetus was dead and that the placenta appeared to be balled up rather than lying smoothly against the uterine wall, as is normal. While he was writing down the information from the worksheet on the machine, Nurse Williams approached him and told him that she had Dr. Achong on the telephone. He told her that he had "a placental abruption and fetal demise."6 He then wrote up his report, left a copy for Nurse Williams, and went downstairs to process the sonogram images.7 The results of the sonogram were reported on a form headed "Obstetrical Preliminary Report," which was completed by the sonographer. A radiologist is usually present at the Medical Center during daytime hours to read sonograms, but on the off-hours, it is the practice of the sonographer to present a sonographer's impression of what was seen during the sonogram. The sonographer who performed the sonogram on Patient L.H. noted on the report that her history included obesity, hypertension, heavy vaginal bleeding, and contractions. He included the following comments in the report: "Ant/Rt [unintelligible] placenta appears to be 'balled up[.]' Suggestion of placental abruption," and, on a separate line, "NO FETAL HEART MOTION SEEN PT IS COMBATIVE." Finally, at the bottom of the report, the sonographer noted that a copy of the report was given to Nurse Williams. There was no notation as to the time the sonographer gave the report to Nurse Williams, but, even if she had the report, she did not read it to Dr. Achong; rather, she put the copy of the report in Patient L.H.'s chart for Dr. Achong to review when he came to the hospital and gave him only a verbal report. Nurse Williams did not tell Dr. Achong during the 3:40 a.m. telephone conversation that the sonographer had reported a possible placental abruption.8 Dr. Achong was familiar with and had treated placental abruptions prior to February 15, 2004, and he always treated patients with placental abruptions on an emergency basis because both the mother and the baby could die if treatment was not received as soon as possible. Had Nurse Williams advised Dr. Achong that the sonographer had told her that he found a placental abruption or that the sonogram report included a reference to a possible placental abruption, he would have gone to the Medical Center immediately. At 3:45 a.m., Nurse Williams noted in her Progress Notes that she gave Patient L.H. Nubain and Phenergan for her painful contractions. There is no mention of continued vaginal bleeding in this entry in the Progress Notes. At 4:15 a.m., Nurse Williams noted in her progress notes that Patient L.H. was sleeping quietly and was relaxed and that Pitocin had been administered in accordance with Dr. Achong's orders. Pitocin is used to induce labor, augment labor, or to stop bleeding. In this case, Dr. Achong ordered the Pitocin to regulate Patient L.H.'s contractions. There is no mention in the 4:15 a.m. entry in the Progress Notes of continued vaginal bleeding. The next entry in Nurse Williams' Progress Notes was made at 5:15 a.m., when Nurse Williams reported that she had observed vaginal bleeding, that a vaginal examination showed dilation of four centimeters, and that Patient L.H. was very restless and moving around the bed. Nurse Williams received the laboratory report showing the results of the blood tests ordered by Dr. Achong at or around 5:00 a.m. According to the laboratory report, the blood for these tests was drawn at or about 3:20 a.m.; the report did not show any critical values in the blood sample. Nurse Williams attempted to contact Dr. Achong to convey these results to him. She noted on the Labor Flow Record that, at 5:15 a.m. "Dr. Achong beeped re lab results. Phone message left on home phone to call LR [Labor Room]." Nurse Williams made another entry on the Labor Flow Record that, at 6:55 a.m., she left a "message to Dr. Achong answering machine at home re labor progress update and labs." Dr. Achong was not, however, at home to receive the telephone calls or the messages. At or about 5:00 a.m. on February 15, 2004, Dr. Achong received a telephone call on his home telephone from Hialeah Hospital advising him that one of his patients or one of Dr. Hechavarria's patients was in active labor and about to deliver. Shortly after receiving the telephone call, Dr. Achong left his home to travel to Hialeah Hospital. He carried his beeper with him, but he did not receive any calls on the beeper. When he arrived at Hialeah Hospital and prepared to go into the delivery room, he gave it to the circulating nurse in case he should receive a beeper call while he was in the delivery room. Nurse Hayes, who had replaced Nurse Williams when Nurse Williams' shift had ended at 7:00 a.m., made a notation on the Labor Flow Record that, at 7:15 a.m., she called Dr. Achong and left a message. At 7:25 a.m., while he was in the delivery room, Nurse Hayes called his beeper. The circulating nurse had his beeper, and she notified him that he had received a call and told him the number. He recognized the number of the Medical Center, and he told the nurse to call the Medical Center and let them know that he was in the delivery room at Hialeah Hospital. Nurse Hayes asked that he call back as soon as possible. Blood for additional blood tests was drawn at or about 7:30 a.m., and the results, which were available within 15 minutes, showed several critical values that indicated that Patient L.H. was entering coagulopathy. At 7:38 a.m., as soon as he finished the delivery, he called the Medical Center and spoke with Nurse Hayes, who gave him a report on the status of Patient L.H. She told him that Patient L.H. had heavy bleeding and that the vaginal examination showed no change in the cervix. Dr. Achong ordered the Pitocin turned off. When Dr. Achong arrived at the Medical Center at 7:56 a.m., he found Patient L.H. very combative, bleeding, and with very bad vital signs. He ordered a "stat" Cesarean Section and ordered a blood transfusion. Patient L.H. died at 8:38 a.m., before any of the measures ordered by Dr. Achong could be implemented. The cause of death was recorded as placental abruption. Summary In summary, the evidence presented by the Department is not of sufficient weight to establish that Nurse Williams conveyed to Dr. Achong the information necessary for him to conclude that he should personally conduct a clinical evaluation of Patient L.H.; that he should consider the possibility that Patient L.H. had placental abruption; or that he should have provided medical assistance to Patient L.H. prior to his contact with Nurse Hayes at 7:38 a.m. Nurse Williams' Progress Notes report only two remarkable items: There were no fetal heart tones detected by physical examination or by sonogram; and, at 2:40 a.m., Patient L.H. reported a "gush of something" and Nurse Williams observed a large amount of blood. Neither Nurse Williams' entries in the Labor Flow Record regarding her contacts with Dr. Achong nor her testimony, to the extent that it has been found persuasive, is sufficient to establish that she advised Dr. Achong that she had observed a large amount of red blood at 2:40 a.m. or that the sonographer detected a possible placental abruption in the sonogram. Finally, Nurse Williams did not follow the protocol that required her to contact Dr. Achong through his beeper when she did not get an answer on his home telephone; she tried his beeper only once, at 5:15 a.m., and when she failed to reach him, left three messages on his home telephone. The Department presented no evidence to establish that Nurse Williams attempted to reach Dr. Achong by beeper between 5:15 a.m. and 7:55 a.m., the time of her last call to Dr. Achong's home telephone. Furthermore, the Department did not present evidence of sufficient weight to establish that Dr. Achong failed to initiate the appropriate procedures after he arrived at the Medical Center and examined Patient L.H. at or around 8:00 a.m. The evidence presented by the Department is, however, of sufficient weight to establish that Dr. Achong should have questioned Nurse Williams further when she advised him at 2:45 a.m. that she had observed a "gush" of vaginal bleeding. Even though vaginal bleeding may not be not unusual during labor, a report of a "gush" of blood should have alerted Dr. Achong to a potential problem. Although a physician practicing obstetrics is meeting the standard of care when relying on labor room nurses to advise him or her of the clinical status of labor and delivery patients and of any unusual symptoms exhibited by the patients, it is also incumbent on the physician to inquire further if a patient is presenting unusual symptoms. The persuasive evidence establishes that Dr. Achong violated the standard of care when he failed to ask Nurse Williams for additional information on Patient L.H.'s status during their 2:45 a.m. telephone conversation. Had he inquired further, Dr. Achong would have been alerted to the possibility that Patient L.H. had a placental abruption and would have gone to the hospital to provide appropriate care for Patient L.H.
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 finding that Dr. Achong violated Section 458.331(1)(t), Florida Statutes, by failing to elicit further information from Nurse Williams regarding the gush of blood she observed in Patient L.H and imposing the following penalties: Issuance of a letter of reprimand; Imposition of administrative fine in the amount of $2,500.00; and Six months' probation under such conditions as the Board of Medicine determines appropriate, should Dr. Achong ever resume the practice of medicine. DONE AND ENTERED this 4th day of January, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2010.
