Findings Of Fact The Respondent is a licensed veterinarian in the State of Florida, license number VM 0000372. He has practiced veterinary medicine in Tampa since 1953 and has not been the subject of any administrative complaint. In October 1987, the Respondent was practicing at the Dale Mabry Animal Hospital in Tampa. At approximately 9:30 on the morning of October 14, 1987, a client named Julie Veitia brought her cat, Tuppence, to the hospital. The Respondent's partner, Dr. Chad Hall, was the veterinarian who normally saw Tuppence, but he was not in. In Dr. Hall's absence, the Respondent saw the animal. Following standard office procedure, the hospital's receptionist ran a computer printout identifying Veitia and Tuppence, as well as a computer- generated summary of past visits. As per standard office procedures, the Respondent would use the blank space at the bottom of the form to make notes on the visit of October 14, 1987. These notes are also maintained and are made available to the treating veterinarian on subsequent visits. On this occasion, for example, the Respondent had available a jacket folder containing all of Dr. Hall's notes on previous visits. (The Department does not contend that Dr. Hall's notes and the other records of previous visits are inadequate.) Veitia reported to the Respondent that she had let Tuppence outside in the backyard the previous night as usual. When she got ready to go to bed, she called her cat in, but the animal did not return. The next morning, friends who had been staying the night at Veitia's home and had awaken earlier let the cat in and, noticing that it was crying more than usual, left a note for Veitia to check on her cat. When she did at about 8:30 a.m., Veitia noticed that the cat was limping and that its left rear leg was sensitive to her touch. On the computer printout on which he wrote his notes of the visit, the Respondent summarized what Veitia had told him as follows: "Hind legs - crying - OK last nite, came home this a.m. this way. Holds up L.R. (left rear) leg." The last sentence in the note referred to in the preceding paragraph could have been a note on the Respondent's observation on examination of the animal. Tuppence also was pale and in apparent shock. It could not stand up. At first, the Respondent thought that the cat had been hit by a car. The Respondent attempted to palpate the cat's left rear leg, but it was too sensitive to the touch. Veitia then found a small raised knot on the leg, and the Respondent was able to squeeze a droplet of blood from the leg, and he cut a dime-sized area of hair with scissors to reveal slight swelling and a small puncture wound. The Respondent did not use electric clippers to clip a larger area around the puncture wound because the animal was fighting him and was in shock. After seeing the puncture wound, the Respondent thought that Tuppence may have been bitten by another cat or a dog or had been shot, but he was not sure. Veitia asked if it could be a snake bite. The Respondent answered that there would be a second puncture if it had been a snake bite, but he made no effort to look for a second puncture. The Respondent's notes (in addition to the last sentence in the note referred to in paragraph 5, above) indicate only that there was an open small hole in the left rear leg and that the animal had suffered trauma of unknown cause. The Respondent gave the cat a standard dosage injection of penicillin for infection and meticortin, a steroid, for stress. His notes and the subsequently computer-generated medical records reflect the injections. They do not specify that the dosages are standard or what the standard dosages were. But that information was available elsewhere in the hospital and could be cross- referenced if necessary. The Respondent also applied Merthiolate to the puncture wound. This is not recorded in his notes. The Respondent chose not to initiate any further treatment until the animal came out of shock. Veitia, who had assumed all along that the Respondent would hospitalize Tuppence, asked to be notified when treatment was started. The Respondent asked if Veitia would not be bringing the cat back in. Surprised at this question, Veitia sought and got confirmation that the Respondent wanted her to take Tuppence home with her and bring the cat back when it came out of shock. They then discussed what kinds of symptoms Veitia should look for and when she should plan to bring the cat back. Since no treatment plan was initiated at the conclusion of the first visit on October 14, 1987, the Respondent did not write one down in his notes. Instead, he wrote only that the owner wanted to take the cat home and bring it back when it came out of shock. When Veitia left with her cat, the Respondent took the jacket folder to the receptionist and told her not to re-file it yet because he expected the client to be back soon. Less than two hours later, Veitia saw what she thought was a worsening of Tuppence's condition and, quite upset, carried the animal back to the hospital. She reported this to the Respondent, who noted the client's observations on a second computer-generated printout made for the second visit. The Respondent himself observed that the cat appeared to be calmer but pale and in worse shock. His notes say: "Appears better but still in shock." (Later, probably after the Respondent was contacted by a Department investigator on December 1, 1987, the Respondent added the word "bad" to this sentence in his notes.) The Respondent also took the cat's temperature, which was normal, and recorded the temperature in his notes. On observation and physical examination, the Respondent observed that the animal's eyes were dilated (not noted in the record), that the pupils did not respond to light (noted) and that the cat now was open-mouth breathing (also noted). The Respondent again palpated the injured leg. This time a second droplet of blood formed. He again clipped the area with scissors and found a second puncture wound about one and a quarter inches away from the first. He again treated the puncture with Merthiolate (again not recorded in his notes). This time he diagnosed snake bite. (The evidence was not clear if this diagnosis was accurate, but there was no evidence that the diagnosis, if wrong, was negligent or incompetent, and the Department does not allege that it was.) The Respondent's notes say only: "Found second bite wound. Apparent snake bite." By this point, Veitia had become even more upset. The Respondent discussed the possibility of using antivenom, including the negative side effects, and recommended against its use in this case. (This discussion is not recorded in the Respondent's notes.) While other veterinarians might disagree, this recommendation was not negligent or incompetent. The use of antivenom could worsen the shock the cat was in, even itself causing the death of the animal. In addition, the drug is not officially approved for cats and, even for dogs, is significantly less effective when administered more than an hour after the bite. When the Respondent told Veitia his judgment, from the one and a quarter inch space between the puncture wounds, that the snake was large and that Tuppence probably would not survive, Veitia became even more upset. Veitia asked if a transfusion would save her cat's life. The Respondent answered that he did not think he could do a transfusion. The Respondent again told Veitia that there was little he could do for the cat until it came out of shock. He again told her to go home with the cat and bring it back in the afternoon when the cat no longer was in shock. Veitia then left the premises, taking her cat with her. The Respondent did not note the discussion about a transfusion or any treatment plan but again noted: "Owner wants to take home. Ret[urn] p.m." (Later, again probably after December 1, 1987, the Respondent added the word "sure" to the last notation.) Before Veitia even got home, Tuppence's condition seriously deteriorated, and she returned to the hospital. By the time she got there, Tuppence had collapsed, and Veitia was extremely upset and loud. Veitia was allowed to go directly to an examining room to wait for the Respondent. When the Respondent came to the door and saw the cat's condition--collapsed, pale and eyes dilated--he stated: "The cat's dying now." Veitia screamed that the cat had stopped breathing and demanded that the Respondent do something. The Respondent thought that Veitia was acting hysterically and refused to do anything until she calmed down. She soon did, and he had her bring the cat to another room where he administered an injection of epinephrine. They then went to another room where he had her help him administer oxygen. When the Respondent returned about five minutes later, Veitia asked him to check the cat's heart. The Respondent told her that the heart had stopped and that Tuppence had died. Veitia screamed and cried for several minutes, causing the Respondent to become concerned for her well-being. After the Respondent was contacted by the Department investigator, he prepared a detailed report of the case, signed it, and submitted it to the Department on December 7, 1987. Ordinarily, when a case is extraordinary (for example, when an animal dies), as in this case, the Respondent would go back to his notes and prepare such a report within a day or two after the case is concluded. But in this case, the Respondent was out of the office for most of November 1987, and he did not get around to preparing the report in the usual time-frame. If considered part of the medical record on the case, the detailed report submitted on December 7, 1987, would be adequate documentation of the case. (The Department does not contend that it is not.) However, the facts are not accurate. Even more so than his notes, the report attempts to blame Veitia for taking her cat home against the Respondent's recommendation. The evidence proved that the Respondent was negligent or incompetent in failing to find the second puncture wound on the first visit. A veterinarian ordinarily will use electric clippers to clip the area of a wound. Whether electric clippers or hand scissors are used, it is mandatory, as the Respondent told Veitia, to look for a second puncture wound to determine whether the puncture signifies a snake bite. There are standard, accepted protocols for treatment of shock and snake bites in cats (other than the question whether antivenom should be administered to a cat.) These protocols were not followed in the case of Tupprence. Standard shock treatment should have been initiated, or at least recommended, on the first and second visits. On the second visit, when the Respondent diagnosed snake bite, he should have initiated, or at least recommended, standard snake bite treatment. His advice that the owner take the cat home and come back when it was out of shock was negligent and incompetent. In the Petitioner's Proposed Recommended Order, the Department proposed that the appropriate penalty to be imposed in this case is one year of probation and a $1,000 administrative fine.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Veterinary Medicine enter a final order finding the Respondent guilty of violating both Section 474.214(1)(o), Florida Statutes (1987), and F.A.C. Rule 21x-18.002, placing him on probation for six months and imposing a $1,000 administrative fine. RECOMMENDED this 5th day of December 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December 1988. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-1993 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings Of Fact. 1-5. Accepted and incorporated to the extent necessary and not subordinate. 6. Rejected as not proven by the evidence. 7-29. Accepted and incorporated to the extent necessary and not subordinate. 30. Rejected as being conclusion of law. 31-32. Accepted and incorporated to the extent necessary and not subordinate. Respondent's Proposed Findings Of Fact. (For purposes of these rulings, the Respondent's unnumbered proposed findings of fact are assigned consecutive numbers for each paragraph.) 1-2. Accepted and incorporated to the extent necessary and not subordinate. With the following exceptions, accepted and incorporated to the extent necessary and not subordinate: the Respondent did not "clip" the cat in that electric clippers were not used. The conflicting testimony is subordinate in part to facts found and in part to facts contrary to those found. It was very difficult to resolve the diametrically opposed testimony on the crucial factual issue whether the Respondent sent Veitia home with her cat on the first two visits or whether Veitia chose to leave before the Respondent could initiate or recommend treatment. The evidence did not lead to a finding that both were telling the truth (and there was a miscommunication.) Nor were there many clues in the evidence from which to deduce who was telling the truth. But, as reflected in the Findings Of Fact, I became convinced that the conflict in the testimony of the Respondent and Veitia should be resolved in favor of Veitia's version of the facts primarily (1) because of the unlikelihood that Veitia would bring her pet to the hospital and then choose to take it home again and again without treatment, (2) because there was no apparent motive for her to lie, and (3) because of the conflict between the Respondent's own testimony that Veitia walked out without a word at the end of the second visit and the note he wrote at the end of the second visit indicating that he was expecting her to return in the afternoon. With the following exceptions, accepted and incorporated to the extent necessary and not subordinate: the last sentence is rejected as contrary to the greater weight of the evidence and the facts found. As to the conflicting testimony, see 3., above. First two sentences, accepted and incorporated; second two sentences, rejected as contrary to the greater weight of the evidence and facts found. 6-7. Subordinate in part to facts found and in part to facts contrary to those found. Any apparent conflict in the various opinions was easily resolved once the difficult factual conflicts between the testimony of the Respondent and Veitia on crucial points was resolved in favor of Veitia's version of the facts. 8. Rejected as being conclusion of law. 9-10. Accepted and incorporated to the extent necessary and not subordinate. Rejected as being subordinate to conclusions of law or as argument. Accepted and incorporated to the extent necessary and not subordinate. Rejected as being conclusion of law and unnecessary. Accepted and incorporated to the extent necessary and not subordinate. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lewis H. Hill, III, Esquire Hill, Hill and Dickenson, P.A. Post Office Box 21428 Tampa, Florida 33622 Linda Biedermann, Executive Director Board of Veterinary Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Respondent's alleged violation of subsections 460.13(3)(f) and (g)(1), Florida Statutes. At the commencement of the hearing, petitioner withdrew Count I of the complaint that alleged a violation of Rule 21D-2.01, F.A.C. and subsection 460.13(3)(g)(1), Florida Statutes.
Findings Of Fact Respondent was a licensed chiropractor in the state of Florida on December 26, 1976, and is so licensed at the present time. His office is located in North Miami Beach, Florida. (Stipulation, Exhibit 2) Respondent received his professional education at the Palmer College of Chiropractic in Davenport, Iowa. After graduation, he interned for a period of approximately six months until October, 1976. While at the Palmer College, he studied the Grostek method of diagnosis and treatment that is part of the school curriculum. This method teaches that all of the nerves connected to the spinal cord are affected by bone misalignment in the upper cervical area. This can have adverse affects upon the spine and a person's general health. Diagnosis of this condition is made by the use of x-rays. Once a bone misalignment is determined to exist, the chiropractor uses light pressure or force adjustment to reposition the bone. Finally, x-rays are again taken to see if the desired change has been effected by the treatment. This method is restricted to the cervical area below the base of the skull. Respondent also is a member of the National Upper Cervical Chiropractic Association (NUCCA) that espouses a more refined Grostek method involving only a different stance of the chiropractor in making the bone adjustment. That organization conducts continuing education courses, performs research and issues regular monthly bulletins. Although there are several hundred chiropractors in the United States who practice the NUCCA method, at present there are only three in Florida. The Grostek method originated approximately twenty-five years ago. Although the Grostek technique is not used extensively in Florida, it is an accepted method of diagnosis and treatment in the profession. The primary difference in the Grostek and NUCCA techniques and that used by other chiropractors is the manner in which x-rays are utilized. Respondent specializes in the NUCCA method and if he does not discover a bone misalignment in the cervical area, he refers the patient to another chiropractor. (Testimony of Respondent, Dr. Carroll, Exhibits 2, 3) While at Palmer College, respondent also received lectures on the subject of iridology. This topic deals with the matter of toxic areas in the body and involves the examination of the iris of the eye to determine what area of the body is affected. The chiropractor may recommend a change in diet as a means of removing a particular problem. Iridology is an accepted adjunct to chiropractic treatment and is employed by respondent in his practice on occasion. However, it is entirely separate and apart from the NUCCA method. (Testimony of respondent) A reporter for the North Dade-South Howard Journal asked the respondent for an interview to explain the NUCCA method. He had been referred to respondent by one of the latter's patients. Respondent granted the interview and the subsequent conversation included matters concerning both NUCCA and iridology. The article was not submitted to respondent for approval prior to publication, and was published in the newspaper on December 26, 1976. It contained misquotes, inaccurate summations of the interview and implied that iridology was a part of the NUCCA method. Although the article referred to a claim of respondent that by detecting toxicity in the body with a small flashlight and a magnifying glass, the need for exploratory surgery in patients could largely be eliminated, respondent denied making such a statement. A witness testified at the hearing that the same reporter grossly misquoted her in an article concerning the benefits of a vegetarian diet. (Testimony of respondent, Galton, Exhibit 1)
Recommendation That the Administrative Complaint against respondent be dismissed. Done and Entered this day of August, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Ronald LaFace, Esquire Post Office Box 1572 Tallahassee, Florida 32304 Herbert L. Fehner, Esquire 300 Marine Plaza on the Intracoastal 3100 E. Oakland Park Boulevard Ft. Lauderdale, Florida 33308
The Issue This is a case in which the Petitioner seeks disciplinary action by the Board of Medical Examiners against a licensed physician on the basis of allegations that Respondent, in the course of treating the patient Robert Dahlke, violated Section 458.331(1)(t), Florida Statutes, by Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The specific factual allegation is that "Respondent, in his postoperative treatment of Mr. Dahlke, allowed the pressure bandages to remain unchanged for too long of a period, and failed to remove the bandages and inspect the area when the patient complained of pain and swelling." Administrative complaint, Paragraph 4.
Findings Of Fact Based on the Administrative Complaint, the Answer, the exhibits received in evidence, and the testimony of the witnesses at the formal hearing, I make the following findings of fact. The Department of Professional Regulation is the state agency charged with regulating the practice of physicians pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 458, Florida Statutes. At all times material hereto, Osbey L. Sayler, M.D., was a licensed physician in the state of Florida, having been issued license number ME 0018472. Since 1975 and at all times material hereto, the Respondent has conducted his medical practice in the specialty of general surgery in Jacksonville area hospitals and from an office at Orange Park, Florida. Respondent is suitably educated for and board-certified to his specialty, has been a Fellow of the American College of Surgeons since 1973, and regularly attends medical and surgical programs currently approved for professionals in this state. On October 8, 1981, for the relief of Mr. Dahlke's symptomatic varicose veins in the right leg, Respondent, at Baptist Medical Center, performed a surgical stripping of the greater and lesser saphenous veins in that leg. Mr. Dahlke initially consulted Respondent in his office on August 3 of that year, by reference from another physician, after the patient had undergone injections of the veins in his left leg by yet another physician. These injections had not relieved Mr. Dahlke's symptoms as he desired. Mr. Dahlke's varicose vein condition had recurred in recent years after surgery in the '60's and had become painful in his normal vocational activities as a cook and, later, as an assistant food administrator. Both occupations required considerable standing and walking. Respondent, on August 3, suitably advised Mr. Dahlke of the potential benefits and risks of surgery, advised him to wear elastic stockings temporarily for both therapeutic and diagnostic purposes, and arranged for the patient to have a venogram on August 4. In Respondent's judgment, a venogram was desirable to rule out thrombophlebitis in the deep veins or defects in the valves, either of which could render surgery ineffective or otherwise inadvisable. Respondent conservatively medicated the patient to reduce irritation and avoid potential infection in the left leg injection sites and saw the patient again on August 25 and September 8 before consenting on September 29 to admit him on October 7 for surgery at Baptist Medical Center, the patient's choice for convenient access by his family. On the evening of his admission and again before the morning's surgery, Mr. Dahlke bathed thoroughly using Phisohex as Respondent had directed. After hospital personnel shaved his right leg and groin area, the surgery proceeded without complication under a general anesthetic. Respondent properly prepared the surgical sites with a thorough Betadine swab and made an incision through the old scar in Mr. Dahlke's groin on the right, above the femoral junction. There he excised the superficial veins and tied them off after finding no other irregularity. Respondent then made incisions over the varicose veins at the interior right ankle and behind the knee--these having been marked previously, while the patient was standing-- and by a conventional stripping instrument removed from within the vein the tissue characteristic of this disorder. Multiple incisions were then made on the lower leg anteriorly, and localized varicose veins were removed and ligated. His leg then wrapped in a sterile towel, the patient was turned over on a sterile sheet and, again through a number of incisions, the varicose veins were stripped or removed. This accomplished, the incisions were closed; the groin by sutures internally, then stainless steel staples, and some 15 to 25 incisions at the knee and lower leg incisions by staples. Four-by-four sterile dressings were taped over the groin closure and 30 to 50 more gauze dressings were secured over the leg incisions, first by a sterile wrap of Kurlix gauze, then by a continuous self-adhering elastic bandage (Coban) wound snugly from above the toes to just above the knee. With prophylactic medication against thrombosis, the patient recovered uneventfully in the recovery room. On the day after surgery, October 9, Respondent Sayler examined the patient's groin incision and changed its dressing, but, in keeping with his practice in such cases, did not cut away and replace the elastic leg wrapping and dressings. Unless cause for earlier removal is indicated, Dr. Sayler prefers to maintain the self-adhering leg wrap as, in effect, a soft cast until the leg incision staples may safely be removed about 14 days after surgery. A follow-up visit to Respondent's office for that purpose was scheduled for Mr. Dahlke on October 22. In Dr. Sayler's opinion, the continuous light pressure of the elastic wrap encourages the return of blood in the leg circulatory system affected by the surgery; and he prefers to avoid disturbing the dressings over stapled incisions until enough healing is achieved for removal of the staples. The Respondent's preferred procedure of leaving the wrapping on the leg for approximately two weeks without removing it is one of several acceptable methods of care. An incision in the skin is more susceptible to infection than skin which has no cut in it. Thus, each of the 15 to 25 incisions on Mr. Dahlke's right leg was more susceptible to infection than uncut skin. The staples Respondent used to close the incisions penetrated the dermis and epidermis. Respondent used between 50 and 75 staples to close the numerous incisions on Mr.' Dahlke's right leg. When varicose vein surgery is done, there is nearly always a certain amount of oozing from the small incisions that are made. This can create a pool of blood which can become a good medium for bacterial cultures such as staphylococci. The foregoing notwithstanding, infections following varicose vein surgery are not very common and the infection suffered by Mr. Dahlke was a very rare type of infection for that type of surgery. Respondent authorized Mr. Dahlke's discharge from the hospital on the morning of October 10, 1981. Respondent did not visit Mr. Dahlke or examine his leg or groin on October 10, 1981. Respondent did, however, obtain information about Mr. Dahlke's progress, and condition from the hospital staff prior to authorizing his discharge. During the latter part of the first week following Mr. Dahlke's discharge from the hospital, his leg began to swell and he experienced pain. About a week after his uneventful discharge from the hospital on October 10, Mr. Dahlke telephoned Respondent's office with a complaint of pain and swelling in his leg. Pain and expressions of pain attending such surgery are normal and of ambiguous diagnostic significance. Mr. Dahlke's report of pain is not a big factor in this case. Respondent's responsive message to Mr. Dahlke was to elevate the leg, take his pain medicine, and call again if necessary. Dr. Dahlke did call again, and Respondent saw him at the office on short notice on Monday, October 19, 1981. Mr. Dahlke's complaints were recorded by Respondent's nurse as "leg swollen postoperatively" and by Respondent as "ankle pain" and "Right groin wound red & swollen past 3-4 days." Respondent closely examined the entire leg and ankle wrapping, verified good circulation to the toes, and recorded his impression of the ankle pain as "moderate," which is not atypical of such cases of multiple ankle incisions. There was no visible oozing through the leg bandage and there was no "foul odor" from the leg. Respondent did not unwrap the leg bandage on October 19, 1981. The contemporaneous office records of October 19, 1981, bearing an independent entry by Respondent's nurse as well as by Respondent, have no notation of stench or oozing bandages. Respondent uncovered the groin incision, which is more susceptible to infection than the other incisions, and observed what he recorded as "red indurated skin around groin wound." The skin around the groin wound was somewhat red, like a cellulitis, which is a mild infection of the skin. That kind of mild infection is not uncommon in that particular incision. Respondent removed the staples there and with a sterile Q-tip opened 2 cm. of the incision to see if there was any pus or sign of infection in the wound itself. Respondent did not see any pus in the wound and so noted in his records. As a precautionary measure, he inserted a small pad of antibacterial gauze to allow drainage if anything should develop at the site of the groin wound. He redressed the site and prescribed the antibiotic Ceclor in prophylactic oral dosages until the patient's scheduled reexamination three days thence. It was the skin surface around the wound, not the wound itself, that Respondent found to be mildly infected by cellulitis on the 19th. Respondent probed the wound itself because he suspected not so much infection as the possibility of infection. That groin incision was well removed both anatomically and by surgical relationship from the leg incisions. Dr. Sayler satisfactorily explained the questioned October 22 record entry of "less purulent." It meant, in context, "less infected-looking or less redness, less cellulitis" on the skin surrounding the wound itself, where no pus was seen. Mr. Dahlke returned to Respondent's office on October 22, 1981, for his scheduled appointment. During the office visit on October 22, 1981, the Respondent removed the bandage from Dahlke's right leg. This was the first time since the surgery had been performed on October 8, 1981, that Respondent had removed the leg bandage. When Respondent removed the bandage from Mr. Dahlke's leg, he discovered that the leg was seriously infected. The medical records maintained by Respondent concerning his treatment of Mr. Dahlke on October 22, 1981, show that when he removed the bandage from Mr. Dahlke's leg, he discovered infections of the wounds behind the knee and around the ankle. On October 22, 1981, there was also some sloughing of dead skin behind the knee. After discovering the infections in the leg, Respondent immediately arranged for Mr. Dahlke to be readmitted to Baptist Medical Center. Mr. Dahlke's infection was exceedingly rare; one not to be expected in the normal course. Mr. Dahlke did not have an elevated temperature on either his October 19 visit or his October 22 visit. An elevated temperature is a usual through not infallible sign of infection. The infection revealed by removing Mr. Dahlke's legwrap on October 22 was treated decisively. Respondent's care did not cause that infection, which was a Staphylococcus aureus resistant to Methicillin and peculiar to hospital environments. Fortuitously, the antibiotic Dr. Sayler administered prophylactically on October 19 was of the class that finally proved effective against Mr. Dahlke's infection. The sloughing of dead skin behind the kneecap did not result from infection at all; rather it was an ordinary surgical risk of local trauma in the superficial vein tissues. Finally, Respondent's discovery of Mr. Dahlke's leg infection on the 22nd, rather than the 19th, was not shown to have worsened the infection or complicated its treatment and eventual remission. If a patient is experiencing pain, swelling, oozing, and foul odor from the surgical site following vein stripping surgery, routine principles of care would require that the bandages be removed and the area examined. Respondent's actions were consistent with such routine. principles because he removed the bandages and examined the area the first time the patient appeared in his office with pain, swelling, oozing, and a foul odor, which was on October 22, 1981.
Recommendation On the basis of all of the foregoing it is recommended that the Board of Medical Examiners enter a final order dismissing the Administrative Complaint against Dr. Osbey L. Sayler. DONE AND ENTERED this 21st day of January, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2399 The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Findings proposed by Petitioner Except as specifically noted below, all of the findings proposed by the Petitioner have been accepted either wholly or in substance. Paragraph 17: Rejected as subordinate and unnecessary detail. Paragraph 23: Rejected as not supported by competent substantial evidence and, in any event, as constituting irrelevant detail. Paragraph 26: Rejected as not supported by competent substantial evidence. Respondent's expert, Dr. Braze, testified to his personal procedures, but did not unequivocally state what is proposed in this paragraph. Paragraph 27: Rejected as irrelevant in light of other evidence. Paragraph 30: Although essentially true, this paragraph is rejected as irrelevant in light of other evidence; namely, Respondent's testimony (which is credited) that the groin bandage was removed on October 9, 1981, and changed. Paragraph 31: Rejected as contrary to the greater weight of the evidence. This is one of several points on which the testimony of the patient Dahlke conflicted with the testimony of the Respondent. In making my findings of fact I have resolved the vast majority, if not all, of such conflicts in the testimony in favor of the Respondent's version. In so doing I have taken into account a number of matters including, specifically, the fact that in general Mr. Dahlke did not appear to have a very good memory. He especially did not have a good memory for details, for dates, or for time relationships. Mr. Dahlke's version of events was often contradicted by other evidence that is not in dispute. Some of Mr. Dahlke's recollections were simply contrary to logic. In fairness it should be noted that I do not believe that Mr. Dahlke intended to be deceptive or misleading; to the contrary I believe he was doing his best to recount what he remembered, but that he simply did not have a very good memory after 5 years. In contrast to Mr. Dahlke's testimony, the Respondent appeared to have a good memory for details and was candid when his memory failed him. Further, the Respondent's version of events was logical and consistent with other evidence. Paragraph 32: Accepted with modifications in the interest of accuracy. Paragraph 36: Rejected as contrary to the greater weight of the evidence. (The greater weight of the evidence is that infections of the type suffered by Mr. Dahlke are very rare and that there is a difference in medical opinion as to how soon dressings should be removed.) Paragraph 38: The first two lines of this paragraph are accepted. The last line is rejected as contrary to the greater weight of the evidence. (See Transcript P. 72, lines 13 and 14.) Paragraphs 40 and 41: Rejected because this conclusionary proposed finding includes facts which are contrary to the greater weight of the evidence. Paragraph 43: Rejected as contrary to the greater weight of the evidence. (No odor or oozing was evident when Mr. Dahlke was seen on October 19, 1981.) Paragraphs 44, 45, and 46: Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. (See the answer at Transcript P. 108, line 24; "could be" is quite different from "strong indication.") Paragraph 50: Rejected as contrary to the greater weight of the evidence and as not supported by persuasive competent substantial evidence. This is another point on which there is conflict between the testimony of Mr. Dahlke and the testimony of the Respondent. I have accepted the Respondent's version as the more credible of the two. Paragraph 52: Essentially true, but rejected as irrelevant in light of other evidence; namely, Respondent's testimony (which is credited) that he did examine Mr. Dahlke's leg and observed that there was no oozing and no odor. Paragraph 53: Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The finding proposed in this paragraph is broader than the testimony and broader than can be inferred by logic. Paragraph 54: Essentially true, but rejected as subordinate and irrelevant details. Paragraphs 55 and 56: Rejected as contrary to the greater weight of the evidence; I have found that Respondent did examine Dr. Dahlke's leg on October 19, 1981. Paragraph 57: Accepted with additional findings in the interest of clarity and accuracy. Paragraph 61: Accepted in substance with the "although" clause deleted and with additional findings in the interest of clarity and accuracy. Paragraph 62: Rejected because this conclusionary proposed finding includes facts which are contrary to the greater weight of the evidence. Paragraph 64: Rejected because this conclusionary proposed finding includes facts which are contrary to the greater weight of the evidence. Paragraph 66: Rejected as irrelevant and also because the proposed finding is a broader statement than the testimony upon which it is based. Paragraph 67: Rejected as not supported by persuasive competent substantial evidence in critical part and, therefore, also irrelevant. Paragraph 68: Rejected because this conclusionary proposed finding includes facts which are contrary to the greater weight of the evidence. Paragraphs 69, 70, and 71: Essentially accurate, but rejected as constituting subordinate and irrelevant details. Paragraph 72: Rejected as constituting argument rather than proposed findings of fact. In any event, the argument is irrelevant because I have credited Respondent's testimony on this point. Paragraph 75: Accepted through the first two lines and the first word on the third line. The remainder is rejected as contrary to the greater weight of the evidence. Paragraph 78: Rejected as contrary to the greater weight of the evidence. Paragraph 79: Rejected as contrary to the greater weight of the evidence. (See Transcript P. 169.) Paragraph 80: Rejected as contrary to the greater weight of the evidence. Paragraphs 82 and 83: Rejected as irrelevant. Paragraph 84: Rejected as not supported by competent substantial evidence and as irrelevant. Paragraph 85: Rejected as constituting argument for the most part, and as irrelevant. Paragraph 86: Rejected as not supported by persuasive competent substantial evidence and as irrelevant. Paragraphs 87 and 88: Essentially accurate, but rejected as irrelevant. Paragraph 89: Rejected as contrary to the greater weight of the evidence. Paragraph 90: Essentially accurate, but rejected as irrelevant. Findings proposed by Respondent Paragraphs 1, 2, 3, 4, 5, and 6: Accepted with a few minor modifications in the interest of clarity. Paragraph 7: The first four sentences of this paragraph are accepted with a few minor modifications in the interest of clarity and accuracy. The remainder of this paragraph is for the most part rejected as a proposed finding because it consists primarily of argument and summaries of testimony rather than proposed findings. (The arguments are essentially well taken, but they belong somewhere other than in the findings of fact.) Paragraph 8: Accepted in substance with deletion of specific references to testimony of Dr. Braze, which references are subordinate and unnecessary. Paragraph 9: Accepted with deletion of some subordinate and unnecessary comments. Paragraph 10: Rejected as a proposed finding because it consists primarily of argument, albeit argument about the evidence. Nevertheless, argument belongs somewhere other than in the findings of fact. I have addressed the issues raised by this and other arguments in the Conclusions of Law portion of this Recommended Order. Paragraph 11: The first three lines and the first word of the fourth line are accepted. The remainder of this paragraph is for the most part rejected as a proposed finding because it consists primarily of summaries of testimony and argument rather than proposed findings. Paragraph 12: This paragraph and its three subparts(a), (b), and (c), are all rejected as proposed findings because this paragraph and its subparts consist primarily of summaries of testimony and arguments about why that testimony should not be relied upon for findings of fact. This paragraph and its subparts might best be described as argument against making certain findings of fact. The argument is essentially well taken, but it belongs somewhere other than in the findings of fact. Paragraph 13: The third, fourth, fifth, and sixth sentences of this paragraph are accepted in substance, with some unnecessary material deleted. The remainder of this paragraph is rejected as findings of fact because it consists primarily of arguments. Paragraph 14: Accepted in substance with unnecessary editorial comments deleted. COPIES FURNISHED: Robert P. Smith, Jr., Esquire 420 Lewis State Bank Building Post Office Box 6526 Tallahassee, Florida 32314 David R. Terry, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Petitioner premised the prosecution of its case upon certain oral testimony presented in the course of the hearing and certain tangible items of evidence presented in the course of the hearing. The Respondent presented a case in the form of oral testimony, to include testimony by the Respondent, and certain tangible evidence offered in the course of the hearing. The Respondent's presentation was conditioned on the possible rejection by the hearing officer and/or the Florida State Board of Podiatry Examiners, of the Respondent's motion to dismiss or in the alternative motion for more definite statement directed to count (2) of the administrative complaint, and the Respondent's motion which was in the form of a request for directed verdict addressing both counts in the administrative complaint, such motion being made at the close of the Petitioner's presentation. The first witness for the Petitioner was Irma Chanter, who is a dietary supervisor in a local hospital in Palm Beach County. The witness testified that she had been a patient of the Respondent for 3 or 4 years and during that time had received palliative care for her feet. One of the particular areas which was treated by Dr. Perry was the toenails of the patient, Irma Chanter. In connection with that foot problem the witness stated that Dr. Perry indicated that an operation was needed to remove the ingrown toenails and that Dr. Perry suggested that if this operation was not performed the patient would be crippled. The witness was not certain when in time the subject of the operation was discussed with the Respondent; however, it was developed in the course of her testimony that she had bean seeing Dr. Perry since June, 1969. This date was suggested to the witness as being the date of the initial visit to the Respondent and the witness did not take issue with the date. She also indicated that she had checked her income tax records and they showed that she had been Dr. Perry's patient for 4 or 5 years. By way of response to Dr. Perry's suggestion that surgery was necessary, the witness indicated that she wanted time to think about it, and it was also solicited from her that she could not afford such an operation at the beginning of her treatment by the Respondent. The witness did not know if the condition got progressively worse or better during the palliative care stages, but a decision was made by the witness to have an operation performed to remove the toenails and portions of the toenails that were providing problems for her. This operation was eventually performed on July 22 and July 23, 1974, in the office of the Respondent. Mrs. Chanter wasn't particularly satisfied with the Respondent's care, but she said he was never rude, or otherwise objectional before the operation in July of 1974. After that date complaints against the doctor were made, complaints about matters arising in the course of the operation and the post operative treatment, as alleged by the witness in her affidavit attached to the administrative complaint which is Exhibit "A" in that complaint. The witness also seemed to indicate that there were other areas of dissatisfaction. One of the areas was an assertion by the witness that the respondent had over charged for certain X-ray procedures, in that the charge was $250.00 and the witness thought that this was excessive. Additionally the witness complained that the Respondent had charged $75.00 for certain appliances (arch supports) which were allegedly tailored for her purposes and in fact could have been purchased at any retail drug store. The witness brought the above items with her to the hearing and showed them to the hearing examiner. The items were two metal apparatus which appear to be arch supports with the trade name, Dr. Scholls, affixed. In alluding to the complaints which the witness had about the operation, the initial area of consideration is the cost of the operation. The witness seemed to state that she was told the price of certain procedures to be performed was in the amount of $1,275.00 which is the amount stated in her deposition before the hearing. The witness, however, seemed concerned that the Respondent had not indicated the specific cost of the process of the operation which was performed on July 22 and July 23, 1974, as opposed to giving a quotation which would include certain procedures involving bunions and callouses on her feet, as well as the toenail treatment. It was noted later in the course of the hearing, that charges for the procedures effected on July 22 and July 23, 1974, were in the amount of around $580.00, which was in compliance with the insurance rates of Blue Cross Blue Shield's analysis of proper payment by an insurance carrier for such procedures. Of that quoted amount of $580.00, the witness testified that $243.00 was paid by the Blue Cross - Blue Shield and that $219.00 which was tendered under a separate section of the policy was spent by the witness for matters other than payment of the Respondent. In further testimony about the cost of the operation, the witness indicated that she had been unduly put upon about the payment of her bill to the extent of threats directed from the Respondent about her bill. She said she had not paid the bill because she had contracted staph infection following the operation and consequently did not pay anything out of her pocket for the cost of the operation. The operation itself was a radical matricetomy, in which the toenails on the three lesser toes of both feet were completely removed and portions of the toenails of the great toe and the toe adjacent to the great toe were removed from both feet. The process utilized by the Respondent in the operation was a phenol alcohol technique, by the application of carbolic acid. The witness indicated that something was injected into her toes as an anesthetic and that anesthetic was later identified as being xylocaine with epinephrine, 1-200,000. The witness testified that when the toenails were being removed, she said, "it hurt like sam hill when he started digging in." Nevertheless, she never told him to stop the process during the first day's operation * * NOTE: Page 5 is missing from the Original Recommended Order on file with DOAH and is therefore not available in this ACCESS document. any odor at that time. She doesn't know how many days after the operation it was, that she saw the doctor in the office but she does remember going to work the same day she saw Dr. Perry for the visit. She said she made no further follow ups with the Respondent because she contracted staph infection, as diagnosed by Dr. Donald R. Alkema, a local podiatrist. On the Thursday before her initial examination by Dr. Alkema, the witness said that there was a certain excretion which she characterized as being puss, emanating from the area of the feet where the operation had been performed. On Sunday morning the witness notified Dr. Alkema of her problem and the doctor saw her in the office. At the time she went to see Dr. Alkema on Sunday morning there was an excretion from the area where the operation had been performed and her feet were extremely odoriferous, and the odor was nauseating. The witness testified that Dr. Alkema cleaned her feet and prescribed medicine for her. Since that time Dr. Alkema has been her attending physician as it relates to her foot problem. The witness says that she still has pain in her toes and that she can't perform her work as well as before the operation, and that she takes two aspirin for discomfort associated with her present problem. She said that her right large toe in the nail area aches and throbs. Furthermore, she said that on the toe which is immediately adjacent to the left small toe, the toenail has come back and that the right small toenail has come back, when it was her understanding that none of the last three toenails on the toes of her feet would come back. The Petitioner called Dr. Joseph Castronuovo, a specialist in internal medicine. Dr. Castronuovo has been Mrs. Chanter's treating physician and has treated her for high blood pressure and cardiac problems. The cardiac problems mentioned by the doctor were not identified as major problems. The doctor indicated that his contact with Mrs. Chanter around the time of the operations, as performed by the Respondent in July, 1974, was to the extent of seeing the patient on July 29, 1974 after such operation had been performed. This office visit was after being called by Dr. Alkema. At the time of the office visits the blood pressure was 180/102, when the norm in that time sequence had been 140/80. The feet of the patient, Chanter, appeared inflamed but not particularly infected and the witness testified that he did not treat her feet, although Mrs. Chanter had indicated that he did treat the alleged infection. The doctor further stated that he was not aware of the procedure involved in a radical matricetomy, nor was he aware of the normal post operative appearance of a patient's feet. The Petitioner attempted to solicit testimony from the witness to the effect that the failure of the Respondent to notify the witness at a time when the operation was contemplated was unprofessional conduct on the part of the Respondent, because of the patient's high blood pressure and minor cardiac problem. This testimony was objected to and not allowed as acceptable evidence for deliberation by the hearing officer because the hearing officer was of the opinion that the Respondent was not duly noticed of such a claim by the Petitioner to allow the Respondent to adequately defend against it. It should also be noted that the witness indicated that these standards of notification apply to the medical profession of which the witness is a practitioner and not specifically to the canons prescribed for practicing podiatrists. One comment was made by the witness that he felt that application of anesthetic which had as a part the substance known as ephinephrine was not advisable in the case of Mrs. Chanter. However, later testimony by the Respondent indicated that the percentage of ephinephrine in the xylocaine applied to the patient was one half the normal strength. Further, development of the testimony offered by the doctor concerning the question of the alleged unprofessional conduct for failing to notify the witness of the proposed operation will be developed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Petitioner next tried to produce testimony through a witness Ayn Dupay. Ayn Dupay had been a patient of Dr. Perry in the Spring of 1974, and had had heavy callouses and ingrown toenails. Additionally, she was operated on by the Respondent in July, 1974. This witness' testimony was objected to since it was the contention of the Respondent, that the Respondent had not been duly apprised of any allegations pertaining to this witness, notwithstanding the fact that the Petitioner had subpoened the records of this patient to be produced at the hearing. This objection by the Respondent was sustained because the requirement for notice was felt to be lacking as it relates to testimony by Ayn Dupay and because there appeared to be no other basis for allowing that testimony. A more complete examination of the objections and the reasons for sustaining the objections will be addressed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Nathan Johnson, a representative of Blue Cross - Blue Shield was called to the stand. He had with him a report rendered by G. M. Perry about the patient, Irma Chanter. This report referred to the procedures which were performed on Mrs. Chanter as being a radical matricetomy. The witness further identified himself as a person who has had a long standing association with people in the field of podiatry, as it relates to the processing of certain insurance claims in this field. Moreover, the witness though not a medical practitioner, has studied the literature on the procedures in the field of podiatry. Based upon the witness' ability and expertise in the field of insurance, the Petitioner tried to establish the witness' opinion on whether or not the toenail should have come back on toes where a total matricetomy had been performed. This testimony was objected to by the Respondent and the objection was sustained on the question of the witness' expertise to determine the reasonable result of a total radical matricetomy. A more complete discussion of the objection and ruling will be considered in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Rosemary Colvin, Director of Medical Records, Palm Beach Gardens Hospital, Palm Beach Gardens, Florida, was called to the stand. She produced the records of the patient identified as Albert Frankel, deceased. This patient had been admitted in the Palm Beach Gardens Hospital in the past. Albert Frankel had been a patient of the Respondent, and the purpose of introducing the facts pertaining to Albert Frankel was identified by the Petitioner's counsel as a showing of impropriety on the part of the Respondent pertaining to matters about Albert Frankel. This testimony was objected to because of the lack of notice to defend against matters pertaining to Albert Frankel. Because of such problems with the notice and an insufficient showing of any other reason to justify the introduction of such evidence, the evidence was deemed improper for consideration by the hearing officer in the deliberation of the matters in this case. A more complete discussion of the reasons will be set forth in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Dr. Donald Alkema took the stand. Dr. Alkema is a practicing podiatrist who has been in the profession for five years and is licensed in the State of Florida to practice. A stipulation was entered into concerning the expertise of the witness to testify about matters relating to the treatment of Irma Chanter's foot problems. The witness testified that he first saw Irma Chanter on July 28, 1974, at which time he debrided certain necrotic tissue associated with the operation performed by Dr. Perry, and that he drained the puss and applied a cleansing agent. The witness provided certain slides of photographs taken of the condition, the first two slides showing the right and left foot on Sunday morning, July 28, 1974, was depicting, according to the witness, infection and an abscess on the left great toe. Slides three and four were taken on August 1, 1974, which the witness indicated showed an improvement because of an antibiotic which had been prescribed. Slides five and six were taken August 19, 1974, which showed further improvement of the condition. The witness testified that in his opinion the procedure which had been utilized in the treatment of Irma Chanter was a phenol technique involving carbolic acid, which is an application of that substance to the matrix of the nail. The witness further stated that the procedure involved was a total matricetomy of the three smallest nails of the left and right foot, and a partial matricetomy of the remaining toenails on both feet. The diagnosis by Dr. Alkema of the infection was acute infection of the left foot, first and second toes; and right foot, first and third toes, with the remainder of the toes showing subacute infection. The appearance of Mrs. Chanter's feet at the time of examination revealed that the feet were clean in terms of the overall condition; however, there was a certain purulent discharge with associated odor, which the witness deemed to be some form of staphylococcus bacteria. Based upon the visual observation of the patient and the fact that the witness' mind time was of the essence, the witness said that he did not request laboratory analysis of the excretion from Mrs. Chanter's feet, in the way of a culture workup, but prescribed a broad spectrum antibiotic known as tetracycline hydrochloride. The witness felt that the antibiotic, as prescribed helped to defeat the infection. At present Mrs. Chanter is still under the treatment of Dr. Alkema and the patient still has problems with ingrown toenails. To the witness' recollection, Mrs. Chanter still has some pain associated with the great toe of the left foot and the fifth toe of the right foot, but not with the great toe of the right foot, as testified by Mrs. Chanter. In discussing the technique utilized by Dr. Perry in performing the operation on Mrs. Chanter, the witness testified that he does not utilize the process, but uses another process called SNT-1 which is a method of extraction by surgical instrument. His direct knowledge of the phenol process is to the extent of involvement four times as a student and two dozen observations. Nevertheless, the witness testified that in his estimation the phenol technique was relatively simple, although he agreed that that technique would be more effective if the practitioner had done it more. The witness said that he was unable to comment on the effectiveness of the operation since he was not in attendance at that operation. In response to questions about the outcome of the operation, the witness stated that Mrs. Chanter came to him and was complaining of pain in her toes radiating into her foot, and as related before, that in his estimation there was infection present in all ten toes. Based upon this observation, it was felt by the witness that the prescription of aspirin for treatment of the pain was insufficient. In support of this position the witness indicated that xylocaine is a prescribed anesthetic for the phenol technique and that when the effects of the xylocaine wear off that 10 percent of the patients experience pain and 1 to 2 percent experience excruciating pain, and that percentage may rise according to the number of toes involved in the operation. These statistics were based upon a certain medical text referred to by the witness, which was not authored by the witness. In the witness' opinion there is a certain risk of infection in any surgery and he agreed that the staphylococcus infection is common in many places to include the soil. In discussing the history of the situation with Mr. Chanter on July 29, 1974, the witness indicated the history only involved the history of the surgery and not the history of the patient's activities following the surgery. Although the witness felt that discussion of the technique involved in the performance of the phenol process was better stated by a person who had administered this technique on more numerous occasions, the witness felt that he was qualified, certainly as qualified as the practitioner utilizing the phenol technique in discussing the post operative procedures. In the witness' mind the post operative techniques employed by the Respondent were not acceptable in that, to his knowledge, the Respondent had prescribed the use of garamycin antibiotic ointment and this ointment was felt to be improper because it tended to cap the infection. The witness indicated that he has an office that is located essentially 100 yards away from the office of the Respondent, but that the Respondent and he are in no respect in competition for business, and the witness expressed his resentment to the characterization of his profession in those terms. In a related area an effort was made by the Petitioner's counsel to introduce through the witness, certain matters pertaining to surgery performed on Albert Frankel and Ayn Dupay, who have been previously mentioned in the course of the Findings of Facts, and this testimony was objected to based upon the lack of notice of such claims against the Respondent. The objection was sustained and will be more fully addressed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Finally, the witness indicated that the podiatrist's ethics call for consulting a treating physician who is a medical doctor when appropriate since the podiatrist may only treat a situation for which he has expertise, and the witness seemed to indicate that this should have been done by the Respondent in treating Mrs. Chanter. Furthermore, the witness did notify Dr. Castronuovo of the condition which he observed upon examining Mrs. Chanter on July 28, 1974. Dr. James Vance, who is a specialist in internal medicine, was called to the stand. Dr. Vance indicated the treatment of Albert Frankel, deceased, while in the Palm Beach Gardens Hospital. The witness indicated that there were some entries on the chart of Albert Frankel which he did not make, nor the urological service that was treating the patient and that were later discovered to have been made by the Respondent, who was not authorized to practice in the Palm Beach Gardens Hospital. An objection was made to the offering of such testimony on the basis of lack of notice on the part of the Respondent to contentions of this sort, concerning the treatment of Albert Frankel and that objection was sustained. A more complete examination of the objection will be considered in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Dr. Vance was the last witness on behalf of the Petitioner and at the close of the Petitioner's case a motion for directed verdict was made by the Respondent, in that the Respondent contended that insufficient proof had been established to show violations of either Count 1 or 2 of the Administrative Complaint, whether the standard be one of preponderance of evidence or a standard of clear and convincing evidence. Ruling on that motion was reserved until such time as the facts in this matter were considered by way of deliberation and the Respondent elected to present a case based upon the hearing officer's desire to reserve ruling and upon the possibility that the Petitioner would overturn a decision adverse to its position when it examined the Recommended Order entered by Hearing Officer. After hearing the testimony offered by the Petitioner, the Motion for Directed Verdict against Count 2 of the Administrative Complaint would seem well taken, for reasons more completely discussed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Respondent, in the presentation of its case first called Dr. Arthur Binkowitz, D.P.N. Dr. Binkowitz has been a podiatrist for five years and it was stipulated to between the parties that the witness was qualified to give testimony in the area of podiatry. The witness testified that a matricetomy is an excision at the matrix cells which produce nail plates. The witness also testified that the method he utilizes to accomplish this is the phenol technique and that he utilizes that technique 99 percent of the time. These excisions are accomplished under local anesthesia. In addressing the terms total or partial matricetomy the witness said that these procedures are the same in that they are both radical procedures, one designed to excise the total nail and the other designed to excise part of the nail. The witness said he has done hundreds of these excisions under the phenol technique, and that this technique is not a learning situation. The witness was shown the slides as produced by Dr. Alkema in his testimony, and stated that this is the first viewing of those slides by the witness. After establishing the underlying facts by way of a hypothetical depiction of the slides, the witness offered testimony. Looking at slides 1 and 2 he felt that the depiction was normal and that inflammation present was as in phenol operations but that there was no indication of infection. In looking at the slides, he said he did not see any unusual redness. He said the item in number 2 which had been described as an abscess by Dr. Alkema, in his mind was a condition caused by a drop phenol, perhaps. Slides 3 and 4 looked normal to him, with slight inflammation and the alleged abscess as shown on 4 looked like a phenol burn. Slides 5 and 6 looked normal to him. Describing the pain associated with the process he felt that the process was relatively painless and that he usually prescribes aspirin for his patients. He said that he feels that garamycin, the antibiotic, or HCB cream among others are acceptable antibiotics to utilize in the post operative treatment where the phenol process had been utilized. He also indicated that utilization of the phenol technique is a technique in which infection is less likely. When shown the appliances which were brought by Mrs. Chanter he said that these appliances might have been utilized but they don't do anything to assist, and that they are not normally prescribed. Furthermore, these appliances could be bought at any drug store. Finally he indicated to prescribe such appliances would be a disservice to the patient. The witness indicated that he is a friend of Dr. Perry, but indicated that he could be objective. Under questioning about the regrowth of a nail which had been totally excised by a radical matricetomy, he felt that this nail should not return but that because of certain permeability problems associated with certain patients that the procedure is not always 100 percent effective and that this effectiveness percentage cannot be predetermined. He further elaborated on the use of analgesic, stating that he prescribed a heavier analgesic as necessary. The post operative condition of the normal patient according to the witness was one that would allow the patient to stand on their feet as long as they continued to apply soaks. In addressing the high blood pressure problem associated with Mrs. Chanter he said that this was not of itself sufficient in his mind to consult a medical doctor before operating. In the matter related to the pain associated with the process of the operation he indicated that the pain is relatively free after the phenol compound goes to work in the prescribed area. When shown the patient's feet in the course of the hearing he felt that the process was most likely a phenol technique that the first two toes on both feet including the largest toe were partial matricetomies and that the third, fourth, and fifth toes of both feet were total matricetomies and that there appeared to be no problem with the outcome of the operation. Under examination of the hearing officer the witness felt that the improvement shown in slides 3, 4, 5, and 6 was not due to the application of the antibiotic tetracycline hydrochloride. He also stated to the hearing officer's questions, that there is a certain odor associated with the post operative condition when the phenol process is used. The Respondent next called Dr. Bruce Neal Kramer, D.P.N., licensed since 1967 and licensed in the State of Florida since 1971. A stipulation was entered into concerning this witness' ability to offer testimony in the field of podiatry. Dr. Kramer testified much in the same way as Dr. Binkowitz with several additional observations. One of the observations was to the effect that the appearance of Mrs. Chanter's feet upon his examination during the course of the hearing showed a growth on the lesser toe of the left foot which could have been a callous or possibly a regrowth of a toenail. He also indicated that if there was odor associated with the feet that the odor could mean some infection, but not staphlococcus infection. Finally the doctor indicated that if there was some purulent discharge associated with the post operative condition of the feet, that he would have ordered a culture (laboratory culture) made of the substance to determine the nature of the bacteria. The witness' overall description of the slides, prepared by Dr. Alkema, was to the effect that the condition was a normal post operative appearance. The Respondent took the stand and testified that he had been licensed to practice podiatry in the State of Florida. He first saw the patient Irma Chanter on June 27, 1969 and treated her for callouses, bunions, corns and ingrown toenails. The initial treatment was palliative in nature, but from the beginning he recommended more than palliative care after viewing the x-rays which showed a problem, that in his mind could be alleviated by operations. The charge for those x rays was $20.00. The Respondent indicated that Mrs. Chanter did not want the surgery performed because she could not afford it and he continued to treat her on a monthly basis and to remove the corners of the toenails that were presenting problems. In response to the appliances which were produced by Mrs. Chanter, the witness stated that these appliances were not in fact the appliances that he had prescribed for her. He had prescribed a leather device because metal was not the technique used on adult patients. Moreover, he indicated that the metal apparatus had been shown to him on the initial visit. The charge for the appliances prescribed by the witness was $75.00 for examination, molding and the device itself. The witness recommended the phenol technique for the problem that Mrs. Chanter was having with her ingrown toenails and also some surgical procedure to be applied for the bunion problem. He quoted a fee for hospital work to include the bunions, toenails and other procedures. The fee quoted was $1,125.00 for all work. He explained all surgery, to include the surgery for removing the toenails which was performed on July 22 and July 23, 1974. The reasons for splitting the days of the surgery was as an accommodation for Mrs. Chanter because of her nervousness about the operation. At the end of the first day's operation on July 22, 1974, he sent Mrs. Chanter back to work without a day off for the procedures. In describing the technique employed in the removal of the toenails he indicated the preparation of scrubbing of the patient's feet and the application of the phenol until the tissue turned gray and then he flushed the surface with alcohol. There was no indication of pain by the patient except on the injection of the xylocaine, although his office assistant did hold Mrs. Chanter's hand because of her nervousness. He prescribed nothing for pain except to say to take an aspirin but he told the patient to call if she experienced any pain. There was no call or complaints the night of the 22nd, nor any complaints on the 23rd of July, at which time the procedure was completed. On the second day of the surgical procedure, again Mrs. Chanter was nervous and the office assistant held her hand, although there was no pain beyond the moment of the injection of the xylocaine. The instructions given to the patient at the close of both days was to soak the feet in domboro solution; to apply garamycin cream; and to bandage the toes with a particular bandaid which was shown to the patient, Mrs. Chanter. Mrs. Chanter was also provided with a list of instructions which is similar to Respondent's Exhibit 1 (that Exhibit being a part of the record) When the patient came back to the doctor's office on July 25th, she had the wrong bandaids and plastic wedge closed shoes, and her feet were not clean. The doctor made corrections in these matters and noted that although there was a dirty appearance of the feet, that there was not any infection. After leaving on the 25th the patient called the doctor's office and said that she would not be coming back and in response to the efforts of the Respondent to contact Mrs. Chanter by phone, the phone was hung up by Mrs. Chanter. The doctor feels that the reason for the disagreement concerned a fee dispute in which he had indicated that he would be willing to work with her on some basis to pay for the operation but his office personnel had asked for some token payment and Mrs. Chanter had become offended by this matter. The doctor said he saw Mrs. Chanter's feet at the time of her deposition in this matter which was October 9, 1975, and again at the hearing, and felt that the appearance of the feet was acceptable. He knew of the high blood pressure condition but did not contact Dr. Castronuovo because he felt that the condition was within his ability to control. In that pursuit he used the xylocaine with 1/200,000 parts epinephrine, as opposed to the normal 1/100,000 parts epinephrine. An effort was attempted on the part of the counsel for the Petitioner to consider the matters involving Albert Frankel and Ayn Dupay in certain law suits in the interest of those parties. These attempts were objected to and the objection was sustained on the basis that the Respondent was not duly noticed of these potential allegations prior to the hearing. A more complete description of the reason for disallowing that testimony will be set forth in the section entitled CONCLUSIONS OF LAW. Based upon the facts as presented in the course of the testimony at the hearing, the hearing officer is convinced that the Respondent did not overcharge Mrs. Chanter for the performance of the operation. The infection, if any, was not caused by any procedures involved with the operation or post operative treatment afforded by the Respondent. It is established that as of July 25, 1974, according to the Respondent and Mrs. Chanter, the infection was not present. It has also been established that the opportunity existed for infection to set in beyond the control of the Respondent and Mrs. Chanter removed herself from the Respondent's treatment after July 25, 1974, such that he would not have been aware if such infection had set in. Dr. Alkema testified that in his opinion, infection was present on July 28, 1974, but his analysis was not followed up by any laboratory confirmation and was contradicted by Dr. Binkowitz and Dr. Kramer. The contradiction by the latter was on the basis of their statement that a visual observation of the purulent discharge would not, and in their estimation could not, label the infection as staphylococcus. Moreover, the only reasonable way they felt to effect an identification was by laboratory analysis. Again such a staphylococcus infection according to Dr. Kramer was not best treated by tetracycline hydrochloride. Dr. Binkowitz and Dr. Kramer also felt that from the examination of the slides as prepared by Dr. Alkema, that infection probably was not present and that the appearance of the slides indicated a normal recovery for the phenol process, a process that they were more familiar with than Dr. Alkema. In considering the possible contention that the operation was not successful as it relates to the lesser toe of the left foot, there is some dispute as to whether or not the recurrence is one of a toenail or some callous, which appears in the area of the toenail. Nevertheless, assuming that the substance is a toenail, accepting the statement of Dr. Binkowitz as to the possibility that a toenail will reappear even with the best efforts of the physician, because of a problem with permeability of a patient's toe, it would not appear that the operation was unsuccessful because of any willful negligence or incompetence on the part of the Respondent, nor any unprofessional conduct in performing the treatment. The contention was made that the Respondent was unprofessional in failing to notify Dr. Castronuovo of the impending operation on Mrs. Chanter, knowing that Mrs. Chanter was a patient of Dr. Castronuovo. Accepting the fact that Mrs. Chanter was a patient of Dr. Castronuovo, and keeping in mind the ruling that the Respondent was not duly noticed of such a charge of unprofessional conduct, nevertheless, it would appear that under the circumstances of the testimony set forth In the course of the Findings of Fact, it was not unprofessional on the part of the Respondent to fail to notify Dr. Castronuovo. It was suggested in the course of the hearing that there was a failure on the part of the Respondent to prescribe adequate analgesic for pain. From the testimony offered by doctors Perry, Binkowitz and Kramer, it would appear that the prescription of aspirin as a beginning analgesic was appropriate and the Respondent did not act in a willfully negligent or incompetent manner or unprofessional manner in failing to prescribe any stronger analgesic. Dr. Alkema's testimony on the question of the proper analgesic did not seem to contradict this position, in that he only suggested that he would prescribe a stronger analgesic if the condition warranted, and in this instance Mrs. Chanter did not sufficiently indicate to the Respondent that she desired a stronger analgesic. It was also brought out in the course of the hearing that the Respondent utilized the wrong anesthetic, in prescribing xylocaine with epinephrine. However, he did utilize a solution in which the epinephrine had been reduced and the testimony did not show any ill effects from the use of any anesthetic which had as a part of the solution the substance epinephrine.
Recommendation It is therefore recommended that the Respondent, Gerson M. Perry, be released from all charges brought under this Administrative Complaint. DONE and ENTERED this 28th day of January, 1976, In Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence M. Kukey, Esquire 507 North Olive Avenue P. O. Box 3466 West Palm Beach, Florida, 33402 John S. Miller, Jr., Esquire P. O. Box 10137 Tallahassee, Florida 32301 For the Board
Findings Of Fact The Respondent, Frederick L. Peacock, D.V.M., is a licensed veterinarian, having been issued license No. 0000567. The Petitioner is an executive agency of the State of Florida, having authority over the licensure and regulation of the licensure, professional practice and operations of veterinarians within the State of Florida. The Respondent operates a veterinarian establishment known as The Animal Clinic of South Homestead, 60 North Homestead Boulevard, Homestead, Florida 33030. On or about February 8, 1982, Eva M. Pohner presented her dog named "Bruno" to the Respondent to be tested for heartworm microfilaria. On that day the Respondent drew approximately one cc of blood from the canine Bruno for the purpose of performing a blood test for heart worm microfilaria. The Respondent used the EVSCO difil test. The blood test was negative for heart worm microfilaria, but Respondent recommended that another test be performed for certainty, and recommended to Ms. Pohner that heart worm preventative treatment be started immediately in order to prevent any new infestation of heart worm larvae or microfilaria. The Respondent dispensed one hundred tablets of 200 mg. each of Diethylcarbamzine to Ms. Pohner for administration to her dog, advising her that she should not leave the dog unattended when giving him the medication. He told her to give the medication immediately in order to avoid an adverse reaction in case heart worm larvae should become implanted in Bruno's circulatory system in the next few days. The reason he recommended that she give the medication to the dog immediately was that an adverse and possibly fatal reaction could occur if the dog contracted heart worm larvae a short time after the negative test results and before the medication was given. In fact, Ms. Pohner waited for several days so that she could ascertain that she would be home all day on the day she gave the dog the medication. She gave the dog the medication on approximately February 10, 1982. The dog immediately became distressed and his condition steadily worsened, with labored breathing, and by two o'clock on the afternoon of that day at a nearby veterinary clinic the dog died. The test performed by Respondent, and the treatment and medication he recommended, were the latest and best accepted method of dealing with heart worm infestation or the prevention of heart worms in canines. The EVSCO difil test has the smallest margin for error of any of the three commonly used tests. However, it is important that the medication be administered as soon as possible after the negative test results are obtained to ensure that no infestation occur prior to the giving of the medication and after a negative test. In the opinion of recognized experts in the field, the test performed by Respondent was the best accepted of the three tests commonly done by veterinarians and the medication recommended, as well as the method and manner of treatment recommended, was of the highest professional acceptability. Ms. Pohner was also advised by the Respondent that there was a chance that the test could be a false negative test, and that heart worms might be latently present, and that another test was in order. Ms. Pohner informed the Respondent that she would ask her mother about performing another test, but did not think she would do so because of the expense.
Recommendation Having considered the foregoing facts and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Administrative Complaint filed against the licensure status of Dr. Frederick L. Peacock be dismissed with prejudice. DONE and RECOMMENDED this 4th day of May, 1983, at Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1983. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lister Witherspoon, IV, Esquire Attorney at Law 542 Northwest 12th Avenue Miami, Florida 33136 Jane Raker, Executive Director Board of Veterinary Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Respondent is guilty of performing wrong-site surgery or performing a procedure without the patient's consent and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a physician in the state of Florida. His license number is ME 85786. Respondent is Board-certified in anesthesiology and pain management by the American Board of Anesthesiology. Respondent has not previously been disciplined by the Board of Medicine. Patient K. D. suffered a back injury in November 1998. Following a laminectomy, Patient K. D. continued to suffer from chronic low-back pain. She visited Respondent's pain management clinic for pain relief and has been quite satisfied with the treatment that she has received from Respondent. On February 14, 2003, one of Respondent's partners performed a right-side lumbar rhizotomy by pulsed radiofrequency. The purpose of this procedure is to relieve or eliminate pain in the lower back. When performed by pulsed radiofrequency, the rhizotomy would probably not have been successful if the patient still experiences pain two weeks after the procedure. Two weeks later, on February 28, Patient K. D. presented for a left-side lumbar rhizotomy, which Respondent was to perform. Immediately prior to the surgery on February 28, while Patient K. D. was in pre-op, Respondent performed a physical examination and observed that Patient K. D. indicated pain on the right side. In response to questioning, Patient K. D. confirmed that her right side was more painful than her left side. Respondent said that he would therefore perform a right-side lumbar rhizotomy. Patient K. D. did not disagree or object, but consented to the procedure--in the presence of two nurses, as well as Respondent. Immediately after their pre-op discussion, Patient K. D. was administered Versed, which produces an effect of amnesia. To some extent, this drug may cause some retrograde amnesia, so that Patient K. D. might not recall events immediately preceding the administration of the drug, such as her physical examination and conversation with Respondent in pre-op. Respondent performed a right-side lumbar rhizotomy without incident. However, immediately after the procedure, Patient K. D. said that she also suffered left-side pain and questioned why Respondent had performed the procedure on her right side. When Patient K. D. complained that transportation problems would make it hard for her to re-schedule a left-side procedure, Respondent performed a left-side procedure, on the same day, and he completed this procedure also without incident. Prior to the February 14 and 28 procedures, Patient K. D. signed consent forms. The consent form for the February 14 procedure identifies a right-side procedure, and the consent form (actually, there are two identical forms) for the February 28 procedure identifies a left-side procedure. The forms state: It has been explained to me that during the course of an operation, unforeseen conditions may be revealed that necessitate an extensive exchange or change of the original procedure or different procedures, and I therefore authorize and require my physician or surgeon . . . to perform such surgical procedures as are necessary and desirable in the exercise of his and/or their professional judgement. . . . Petitioner's expert witness opined that a change in location, even under the above-described circumstances, "should" have been documented on a consent form, but later conceded that this is not strictly necessary. On cross-examination, Petitioner's expert witness admitted that a patient may give informed consent verbally or by conduct. Petitioner's expert witness properly discredited Respondent's theory that he had some form of ongoing consent because the forms bore no expiration date. However, to the limited extent that Petitioner's expert witness implied a requirement for written informed consent, his opinion is unsupported by Florida law, as set forth below. In contrast to Petitioner's expert witness, Respondent's expert witness did not equivocate on the issue of the required form of informed consent. Relying largely on the testimony of Patient K. D., Respondent's expert witness testified that Respondent had obtained the informed consent of Patient K. D. to perform a second right-side procedure. Aside from the obvious advantages of a written informed consent, Respondent's expert witness convincingly testified that informed consent is a state of mind, not a signature on a piece of paper, and, by this standard, which is consistent with Florida law, as set forth below, Respondent had Patient K. D.'s informed consent to perform a second right-side procedure on February 28 and thus had been duly authorized to do so.
Recommendation It is RECOMMENDED that Petitioner dismiss the Administrative Complaint, as amended, against Respondent. DONE AND ENTERED this 21st day of November, 2005, in Tallahassee, Leon County, Florida. S _ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2005. COPIES FURNISHED: Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Irving Levine Assistant General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Dennis A. Vandenberg Peterson Bernard 1550 Southern Boulevard West Palm Beach, Florida 33406
The Issue The issue for consideration is whether Respondent's license as a Doctor of Veterinary Medicine in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, the Respondent was a licensed veterinarian in Florida practicing under license number VM 2884, and the Board of Veterinary Medicine was and is the state agency charged with the responsibility of regulating the practice of veterinary medicine in this state. On July 22, 1988, Bonnie Judd, owner of a golden retriever puppy, "Einstein", accidentally backed over the animal with her automobile injuring it badly. She immediately took the puppy which was, at the time, approximately 4 or 5 months old, to the Respondent for treatment. Respondent examined the dog and informed Ms. Judd that the animal's leg was broken and that surgery would be required to repair it. He did not then indicate any other injuries and at no time did he suggest taking the animal to the university hospital for evaluation. He advised her to leave the animal with him and had her sign certain documents including an informed consent form which indicated that Respondent was to fix a "broken tibia only." Ms. Judd contends that that notation was not on the form when she signed it and it is so found. He did not then suggest putting the dog to sleep, either. At approximately 4:30 that same afternoon, Respondent called Ms. Judd and told her she should pick the animal up because no one would be at the clinic all weekend. When she arrived at Respondent's facility, he informed her that the dog had also been dipped for fleas, his shots had been updated, and a pin had been placed in the left rear leg. Respondent estimated the prognosis for healing of the broken tibia would be between 4 and 6 weeks. At this time Ms. Judd paid the Respondent his fee of $350.00, $200.00 of which was by post dated check, and an additional $15.00 for medications. At that point, Respondent's wife updated Einstein's vaccination records to reflect the shots which had been given. During the period between July 22, 1988 and August 16, 1988, Ms. Judd returned Einstein to the Respondent for treatment approximately one or two times a week. Toward the end of that period, Respondent, for the first time, informed Ms. Judd that Einstein's injuries were far more extensive than merely a broken leg. During these follow up visits, however, the Respondent would check the broken tibia and its wound, changing the bandage, administering antibiotics, and changing the cast. On most of these visits, Respondent reported to Ms. Judd that the leg was healing and the animal's condition was satisfactory. Respondent claims that at the very beginning, he told Ms. Judd of the animal's other injuries and that it should be taken to the university's veterinary hospital for evaluation and possible euthanasia. The copies of his records, provided as evidence, reflect notations of other injuries and support his claims, but they are photo copies of the actual documents and cannot be properly examined for authenticity. However, the evidence shows that Respondent treated the animal for the broken tibia for several weeks after the initial visit, notwithstanding, he claims, she only wanted the animal treated and kept alive long enough for her husband to come home and make the decision. This would seem to indicate the treatment for the tibia was the chosen treatment and not merely a stop-gap. Further, Ms. Judd claims that it was only when she decided to seek another opinion that Respondent mentioned the other injuries. This is a question of whom to believe - Ms. Judd, who admits to having lied to her husband about what happened to another dog she accidentally killed, or Respondent, who, it appears, denies any impropriety though evidence to the contrary indicates otherwise. On balance, it is found that Respondent did not advise Ms. Judd of any additional injuries until late in the course of treatment and neither recommended hospitalization nor consideration of euthanasia early on. Also during this period, he provided Ms. Judd with antibiotics and tranquilizers to administer to Einstein but the medications were improperly packaged and labeled. They did not contain the necessary information relating to drug name, drug strength, quantity, or directions for use and they were not in child proof containers. According to a departmental expert witness, this was below professional standards and it is so found. As previously found, during the last or next to last visit, Dr. Helmy informed Ms. Judd that the animal also had a broken pelvis but that that injury should not be dealt with until the broken leg was healed. He indicated that when appropriate, the pelvis could be corrected by further surgery. Subsequent to her last visit, on August 16, 1988, Ms. Judd received a bill for an additional $350.00 for the periodic follow-up visits mentioned. Ms. Judd, seeking another opinion, took Einstein to the office of Dr. Charles MacGill in Crystal River on August 17, 1988. At Dr. MacGill's advice, she requested the animal's medical records and all x-rays from Dr. Helmy which he refused to provide. He indicated that the only X-rays he had taken were those made after surgery, which had never been developed. He also indicated he did not need to take prior x-rays because he was able to assess the animal's injuries with his hands. There is some question as to the propriety of inserting a pin into the dog's tibia to reduce a closed fracture without the use of an x-ray, and while the experts consulted indicated it can be done, it is not good practice and is below professional standards. It is so found. During his examination, Dr. MacGill noted that Einstein could not walk. His back leg muscles had atrophied and there was a suppurating hole showing gross infection in the left rear tibia. A rectal examination confirmed Dr. Helmy's diagnosis of a broken pelvis. After taking several x-rays of the animal, Dr. MacGill advised Ms. Judd that in addition to the broken tibia and fractured pelvis, the distal femur was broken; the tibial fracture had not properly healed and showed signs of osteomyelitis; and there was a fracture of the fifth lumbar vertebra which was exerting pressure on the spinal cord. Dr. MacGill prescribed several antibiotics for the animal and, because of the spinal fracture, advised Ms. Judd she should take Einstein to the University of Florida School of Veterinary Medicine for evaluation. Ms. Judd readily agreed. Ms. Judd took Einstein to the university hospital on August 22, 1988 and left him there for an assessment of the damage. At the same time, she signed a consent form authorizing euthanasia in the event the opinion of the physicians was that the dog's nerve damage was too extensive for him to survive. Thereafter, she was advised that the nerve damage incurred was irreversible and extensive, and the animal was put to sleep. Examination of the animal at the hospital indicated he was unable to stand on his rear legs; he had neurological deficits in the right rear leg; evidenced pain on palpation of the left shin; and had a grinding in the hip joints. The left rear tibia showed an open, infected wound, and a rectal examination confirmed the pelvic fracture. X-rays taken at the hospital during this examination revealed that the only fracture which had been treated was the fracture of the tibia. This x-ray also confirmed the existence of osteomyelitis in that wound. In the opinion of Dr. Robert Parker, associate professor of surgery at the school, and the individual who saw Einstein there as attending surgeon, the technique of pin placement utilized by Dr. Helmy in reducing the fracture to the tibia was adequate, but Dr. Parker was concerned that the fracture was not stable. He concluded as well that the contamination of the wound, either at the time of fracture or at the time of surgery, could not be controlled due to the instability and poor drainage of the fracture site. Dr. Parker formed no opinion as to the Respondent's compliance with the community standards. He pointed out that he saw the dog four weeks after injury and was concerned at that time that only one of several fractures had been repaired. The one repaired by Dr. Helmy was the least serious and, in Parker's opinion, the others should have been treated first. He does not know why they were not treated but opined they should have been treated as soon as possible after they were incurred, if the condition of the animal permitted. Referring to the tibia fracture reduction, however, while minimally acceptable, it was not done in the manner that he, Dr. Parker, would have utilized. He felt that the femur fracture should have been treated first and also that the use of a splint in the case of an open wound, as here, contributes to the high risk of infection. This is what happened. Had the dog been brought to the hospital initially, a team would have seen it. Normally, a single practitioner cannot render the same type of treatment because of a lack of experience or equipment, but the appropriate thing for Respondent to have done would have been to stabilize the animal and refer it to a hospital or a team treatment facility. He did not do this. Here, in Parker's opinion, Respondent's repair of the tibia was not the appropriate first thing to do. Had the tibia not been treated, it is probable the infection would not have occurred. The initial fracture was not an open fracture but a closed fracture, and infection was given access by the procedure utilized by Respondent in opening the wound for the insertion of the pin. In Dr. Parker's opinion, the tibia could have been stabilized without a pin so that the animal could be transferred to a team treatment facility. The test, however, is not whether Respondent's treatment met optimum criteria. Here, the failure to refer to a team facility was not actionable error. Any error, if established, must relate to the Respondent's choice of procedures and his performance of them. While each of the injuries alone was not fatal, taken together they were ovehelming and euthanasia would have been a viable option from the very beginning. The neurological problems could have been repaired over a long period, but Dr. Parker would not normally wait for that to decide to do something regarding the fracture. Since the tibia was the fracture of lowest priority, in Parker's opinion, Respondent cannot legitimately claim he did this while waiting for neurological resolution. In this case, since he did not see the x-rays taken early on, Dr. Parker cannot say if Respondent's use of a pin was proper or not. Normally, however, a splint, as used by Respondent, is not used with a pin insertion. If there is an opening of the body, as here, it should not be combined with external stabilization which can introduce infection. While the hip joint fracture had healed by the time Parker saw the animal, there are indications that the healing was imperfect and additional arthritis would probably have set in, requiring further surgery. In this case, the untreated fractures were very bad and should have been treated surgically right away or the animal should have been put to sleep. Even if all had been done properly, however, the dog probably, in the opinion of Dr. Parker, would have had nerve damage and the prognosis for recovery was guarded. According to Dr. MacGill, who examined Respondent's records regarding his treatment of Einstein, Respondent administered several drugs for the dog. Two of these, the antibiotic and the tranquilizer appear appropriate, but the third, Prednisone, is a cortisone derivative which is not indicated or appropriate when infection is present. Whereas Dr. Parker was unwilling to state an opinion as to whether Respondent's treatment of Einstein met minimum standards, Dr. MacGill is not at all reluctant. In his opinion, were he to have treated the animal himself initially, he would have put a bone plate on the femur, done minimal repair with regard to the pelvis, stabilized the back to relieve pressure on the vertebrae, and treated the tibia. Accomplishment of all these is required to meet minimum standards, in his opinion, and Respondent's treatment did not, he believes, meet these standards. It is so found. After the dog was put to sleep, Ms. Judd consulted an attorney, Mr. Travis, who attempted to obtain Einstein's medical records from Respondent. Respondent was not cooperative and declined to furnish them initially though he ultimately did so. Dr. Greene, an expert in veterinary medicine practicing in Tampa, reviewed this case through an examination of the records maintained by all parties and heard the testimony at the hearing. In his opinion, the care rendered by Dr. Helmy constituted negligence from the point that Einstein was operated on. While there is some indication that x-rays may have been taken, showing multiple fractures, surgery under a "questionable anesthetic", one which quiets the dog but does not put him out, when the surgery is not going to serve a valid purpose, along with the use of cortisone, with its resultant reduction of the body's ability to fight infection, after surgery, all constitute inappropriate conduct. Some of the medications prescribed by Respondent were contraindicated for the purpose used here. Inovar, used as an anesthetic during reduction of the tibia fracture, was inappropriate. Enough ampicillin was given for only five days. Prednisone, (cortisone), reduced the animal's ability to fight infection. The anterobe is an antibiotic which would be good to fight infection if prescribed in the appropriate amount which it was not, here. In light of the osteomyelitis, which was more than a mere infection, the amount prescribed was totally insufficient. It should be noted, however, that Ms. Judd did not administer all the medications given by Dr. Helmy. Had she done so, the infection may not have come about or been so severe. In total, Dr. Greene does not believe Respondent acted properly here. Helmy did not asses the other injuries and should not have operated on the tibia as the sole action taken. The other injuries were more serious and were neither treated nor addressed. Further, his review of the records maintained by Dr. Helmy regarding this animal shows they omit any reference to replacing sutures which the dog took out and they omit any mention of a treatment plan. The notes do not show any injuries other than the broken tibia and do not mention the femur, the vertebrae, the pelvis or any other injuries. All medical records should identify and assess all conditions regardless of whether they are treated or not. They cannot be ignored. As was mentioned previously, however, the note of 7/22/88 in Respondent's records as to Einstein does refer to a broken femur shaft and problems with the pelvis, in addition to the tibia fracture. Taken together, the Respondent's treatment constitutes neglect and did not meet minimum standards for the practice of veterinary medicine in Florida. By a Final Order dated July 4, 1987, the Board of Veterinary Medicine found Respondent guilty of violating Chapter 474, Florida Statutes, and, inter alia, placed him on probation from August 4, 1987 to August 3, 1991. The Order also provided that if, during the period of probation, the Respondent is found guilty in a Final Order of the Board of violating any provision of Chapter 474, his license would automatically be suspended.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license to practice veterinary medicine in Florida be suspended for a period of two years and that thereafter he be placed on probation for an additional period of two years under such conditions as are prescribed by the Board of Veterinary Medicine, and that he pay an administrative fine of $1,500.00. RECOMMENDED this 12th day of January, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 12th day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2464 The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. & 8. Accepted and incorporated herein. 9. - 11. Accepted and incorporated herein. 12. - 13. Accepted and incorporated herein. Accepted and incorporated herein. & 16. Accepted. Accepted and incorporated herein as a finding, not as "it appears." Accepted and incorporated herein. Not a Finding of Fact but a recitation of testimony. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein except for the conclusion as to what Respondent found and what he told Ms. Judd. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the evidence. & 9. Rejected as contra to the evidence. 10. & 11. Accepted and incorporated herein. 12. & 13. Rejected as contra to the evidence. 14. & 15. Accepted and incorporated herein. Accepted as to what Respondent did but rejected as to his reasons for failing to treat the other injuries. Rejected. There was no discussion about taking the animal to the University or other veterinarian. & 19. Accepted and incorporated herein. 20. - 22. Accepted and incorporated herein. Accepted. Rejected. & 26. Accepted. 27. - 34. Accepted and incorporated herein. 35. - 39. Accepted and incorporated herein. Rejected. & 42. Accepted and incorporated herein except for the last sentence in paragraph 42 which is rejected. Accepted. - 47. Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact but a comment on the testimony. Not a Finding of Fact but a comment on the testimony. Last sentence rejected. Balance merely a recitation of testimony. Merely a comment on the testimony. Accepted. Accept. Rejected. & 57. Rejected. Accepted. Rejected as merely comment on testimony. Rejected as contra to the evidence. 1st and second sentences accepted. 3rd sentence rejected 4th through 6th sentences rejected. Balance rejected. 1st sentence accepted. 2nd sentence accepted but only after the tibia was set. Third sentence accepted. Accepted. COPIES FURNISHED: Laura P. Gaffney Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William E. Lackay, Esquire Post Office Box 279 Of Flotifs Building Highway 31 North Bushnell, Florida 33513 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Biedermann Executive Director Board of Veterinary Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
