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BOARD OF VETERINARY MEDICINE vs. SAMY HASSAN HELMY, 89-002464 (1989)
Division of Administrative Hearings, Florida Number: 89-002464 Latest Update: Jan. 12, 1990

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 =================================================================

Florida Laws (2) 120.57474.214
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BOARD OF MEDICINE vs JACK L. GRESHAM, 93-003966 (1993)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Jun. 30, 1993 Number: 93-003966 Latest Update: Jan. 25, 1995

The Issue The issues are whether Respondent failed 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, and, if so, what penalty, if any, should be imposed.

Findings Of Fact 1. Stipulated Facts Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, Florida Statutes. Respondent is a licensed physician in Florida holding license number ME 0009772. Respondent's last known address is 9430 Turkey Lake Road, Orlando, Florida 32819-8015. Respondent is Board certified in orthopedic surgery. Respondent provided medical treatment to two male patients between 1990 and 1991. Patient 1 was treated from approximately April 29, 1991, through August 12, 1991. At the time, Patient 1 was approximately 34 years old. Patient 2 was treated from approximately May 14, 1990, through June 20, 1991. Patient 2 was approximately 29 years old. Patient 1 Patient 1 had a history of hip dislocation with aseptic necrosis, chronic back and leg pain, and foot numbness associated with degenerative disc disease and lumbar stenosis. Lumbar stenosis is compression of the spine. Spine compression was particularly significant between the fifth lumbar and first sacral vertebrae. Prior to April 29, 1991, Patient 1's treatment was conservative and nonsurgical. On April 29, 1991, Patient 1 presented to Respondent to explore alternative therapy. Patient 1 complained of pain and numbness in his back, hip, and legs. Respondent diagnosed Patient 1 with lumbar spinal stenosis and possible disc herniation. Respondent recommended a myelogram. A myelogram was performed on May 13, 1991. The myelogram confirmed Respondent's diagnosis of lumbar spinal stenosis and possible disc herniation. The myelogram revealed a disc defect on the right side of L5-S1 as well as severe spinal and lateral recess stenosis. On June 11, 1991, Respondent performed a laminectomy on Patient 1, an L5-S1 disc excision, and an internal spinal stabilization using Harrington rods attached with lamina hooks. Use of lamina hooks resulted in the compression of Patient 1's underlying neural tissue. Compression of the underlying neural tissue caused Patient 1 to suffer perineal numbness. Respondent's medical records of June 17, 1991, show that Respondent knew Patient 1's perineal numbness was a result of compression of the sacral nerve root at L5-S1. On June 17, 1991, Respondent again performed surgery on Patient 1. Respondent replaced the lamina hooks with alar hooks. Respondent also replaced and adjusted the tension of the Harrington rods. On August 1, 1991, Patient 1 was admitted to Sandlake/Orlando Regional Medical Center ("ORMC") for surgical removal of the implanted hooks and Harrington rods. Respondent surgically removed the Harrington rods and attachment hooks. On August 12, 1991, Respondent's medical records showed that Patient 1 suffered from persistent numbness of the sacral nerve root areas. The area of numbness included the perineum, scrotum, and penis. Respondent did not perform an L5-S1 bone fusion during any surgery. Patient 2 On May 14, 1990, Patient 2 presented to the Emergency Room ("ER") at ORMC with primary complaints of back and right leg pain. The ER physician diagnosed Patient 2 with a herniated nucleus pulposus at L4-L5. The nucleus pulposus is the soft central portion of the intervertebral disc. Respondent admitted Patient 2 on May 14, 1990, and treated him with intravenous muscle relaxants. On May 15, 1990, a computerized axial tomography ("CAT") scan revealed a bulging, herniating disc at L4-L5. On May 17, 1990, Respondent discharged Patient 2 with instructions regarding back care and an exercise program. On August 24, 1990, Patient 2 presented to Respondent with recurrent disabling sciatic pain. A magnetic resonance imaging ("MRI") scan was performed on August 28, 1990. The MRI revealed a prominent disc bulging at L4-L5 with material intruding into the spinal cord. On September 7, 1990, Respondent performed a lumbar laminectomy and disc excision at L4-L5. Respondent discharged Patient 2 on September 12, 1990. On December 11, 1990, Patient 2 presented to Respondent with recurrent back and right leg pain. Respondent prescribed analgesics including Soma with codeine and Naprosyn. On January 14, 1991, Patient 2 presented to Respondent with back and right leg pain. Patient 2 underwent a CAT scan to determine if recurrent disc herniation was present. The CAT scan failed to indicate any obvious asymmetric changes which would confirm Respondent's diagnosis of recurrent disc herniation. On January 21, 1991, Respondent performed a decompressive laminectomy on Patient 2. Respondent's operative report for January 21, 1991, indicates that Respondent found no evidence of a herniated disc. On February 26, 1991, Patient 2 presented to Respondent with complaints of recurrent leg and back pain. Respondent referred Patient 2 to Dr. William Bradford for treatment utilizing epidural blocks. On April 16, 1991, Patient 2 again presented to Respondent. Respondent placed Patient 2 in a molded, fiberglass body jacket. Back and leg pain subsided while Patient 2 wore the fiberglass jacket. On May 14, 1991, Respondent performed surgical stabilization of the lower lumbar spine utilizing Harrington rods. On June 17, 1991, Patient 2 presented to Respondent with persistent numbness of the perineal area as well as bowel and bladder incontinence. Respondent determined that the numbness and incontinence were caused by sacral nerve root irritation associated with the Harrington rod hooks. Respondent surgically adjusted the Harrington rods on June 20, 1991. Respondent did not perform vertebral bone fusion during any surgery. 2. Standard Of Care Respondent failed to practice medicine in his treatment of Patient 1 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. Respondent improperly seated lamina hooks in Patient 1. As a result, Patient 1 suffered compression of underlying neural tissue. Respondent improperly used Harrington rods and hooks to achieve transient spinal decompression without performing essential vertebral bone fusion. Use of Harrington rods in the lumbar spine is an obsolete technology. It is fraught with dangers. Among other things, it eliminates the lordosis, or natural spinal curvature. Respondent failed to practice medicine in his treatment of Patient 2 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. Respondent performed numerous surgeries on Patient 2 when CAT scans and other examinations failed to confirm recurrent disc herniation. In addition, Respondent failed to perform essential vertebral bone fusion on Patient 2. 3. Proximate Cause And Severity Of Injury Respondent's 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 was the proximate cause for permanent neurological damage to Patient's 1 and 2. Both patients suffered sacral nerve root paralysis. Sacral nerve roots feed functions in the pelvis, bladder bowel, and sphincter. Both patients suffered permanent incontinency, including loss of bladder and bowel function. Each patient requires a colostomy and must wear diapers. Patient 1 has suffered sexual dysfunction in that he has lost the sensation necessary for a natural erection. The neurologic injuries to Patients 1 and 2 are major and permanent. Nothing can restore the functional loss suffered by either patient.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding Respondent guilty of violating Section 458.331(1)(t) in his treatment of Patients 1 and 2, imposing an administrative fine of $7,500, and restricting Respondent's practice as follows: Respondent shall not perform any spinal surgery on patients unless and until Respondent appears before the Board of Medicine and demonstrates to the satisfaction of the Board that he is able to do so with skill and safety; and The Board of Medicine may place other reasonable conditions on Respondent's practice of orthopedic surgery at such time as the restriction in the preceding paragraph is lifted. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of October, 1994. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3966 Petitioner's Proposed Findings of Fact 1. -39. Accepted as stipulated fact 40.-41. Rejected as recited testimony Accepted in substance Rejected as recited testimony Accepted in substance 45.-51. Rejected as recited testimony Respondent's Proposed Findings of Fact Respondent stipulated to Petitioner's proposed findings of fact, paragraphs 1- 39. Respondent's only additional proposed finding of fact is unnumbered and is rejected as not supported by persuasive evidence. COPIES FURNISHED: Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack L. Gresham, M. D. 9430 Turkey Lake Road Orlando, Florida 32819-8015

Florida Laws (6) 1.011.02120.5720.16520.42458.331
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DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs CHARLOTTE GERRY, D.M.D., 19-002902PL (2019)
Division of Administrative Hearings, Florida Filed:Jacksonville, Florida May 30, 2019 Number: 19-002902PL Latest Update: Feb. 17, 2020

The Issue The issues to be determined are whether Respondent violated the applicable standard of care in the practice of dentistry in violation of section 466.028(1), Florida Statutes, as alleged in the Administrative Complaints filed in each of the consolidated cases; and, if so, the appropriate penalty.

Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts Respondent is a licensed dentist in the state of Florida, having been issued license number DN14223 on or about December 1, 1995. Respondent’s address of record is 530 East Howard Street, Live Oak, Florida 32064. Respondent was licensed to practice dentistry in the state of Florida during all times relevant to the administrative complaints underlying this case. Patient T.C. was a patient of Respondent. Patient S.S. was a patient of Respondent. Patient G.H. was a patient of Respondent. Patient J.D. was a patient of Respondent. Patient J.A.D. was a patient of Respondent. Other Findings of Fact On July 23, 2004, Respondent entered into a Stipulation in Department Case No. 2002-25421 to resolve an Administrative Complaint which alleged violations of section 466.028(1)(m), (x), and (z). The Stipulation was adopted by a Final Order, dated January 31, 2005, which constitutes a first offense in these cases as to each of the sections cited. On September 21, 2007, the Department issued a Uniform Non-disciplinary Citation for an alleged violation of section 466.028(1)(n), related to the release of patient dental records. The Department offered no evidence of its disposition and, in any event, since these cases do not involve alleged violations of section 466.028(1)(n), the citation is of no consequence in establishing a penalty in these cases under Florida Administrative Code Rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-10804 for alleged violations of section 466.028(1)(m), (x), and (mm). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-23828 for alleged violations of section 466.028(1)(m), (x), and (z). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). Case No. 19-2898PL - The T.C. Administrative Complaint Patient T.C. was a patient of Respondent from June 14, 2011, to on or about August 12, 2013. During the period in question, Respondent owned Smile Designs, a dental practice with offices in Jacksonville, Lake City, and Live Oak, Florida. The Department, in the T.C. Administrative Complaint, recognized that “Respondent, along with an associate, [Dr. Morris], are . . . licensed dentists known to work at Respondent’s practice.” The Department’s expert witness, Dr. Brotman, was also aware that Dr. Morris practiced with Respondent. Patient T.C. suffered a stroke in 2009. During the period that she was seen by Respondent, she was in “decent health,” though she was on medication for her post-stroke symptoms, which included a slight problem with aphasia, though she was able to communicate. The stroke and the aphasia are neurological issues, not mental health issues. Patient T.C. was accompanied by her husband, L.C. during her visits to Respondent’s practice. He generally waited in the waiting area during Patient T.C.’s procedures though, as will be discussed herein, he was occasionally brought back to the treatment area. L.C. testified that he had never been advised that Patient T.C. experienced a seizure while under Respondent’s care, and had no recollection of having been told that Patient T.C. ever became unresponsive. Patient T.C. died in 2015. Count I Case No. 19-2898PL, Count I, charges Respondent with failing to immediately refer Patient T.C. to a medical professional or advise Patient T.C. to seek follow-up care for the management of what were believed to be seizures while Patient T.C. was in the dental chair. From Patient T.C.’s initial visit on June 14, 2011, through her visit on September 23, 2011, Patient T.C. was seen at Respondent’s practice on five occasions. Respondent testified that the office was aware of Patient T.C.’s history of seizures because the medical history taken at her first visit listed Diazapam, Levetiracetam, Diovan, and Lyrica as medications being taken by Patient T.C., all of which are seizure medications. Nonetheless, the dental records for the four visits prior to September 23, 2011, provide no indication that Patient T.C. suffered any seizure or period of non- responsiveness during those visits. On September 23, 2011, Patient T.C. presented at Smile Designs for final impressions for crowns on teeth 20, 21, 28, and 29. Respondent testified that she was not the treating dentist on that date. Patient T.C. was given topical anesthetics, and her pulse and blood pressure were checked. The treatment notes then provide, in pertinent part, the following: Patient had seizures on the dental chair - may be due to anxiety. Seizures last 2-3 minutes. No longer. After 30 minutes, patient was calm. Able to proceed with dental procedure . . . . During seizures pt. was responsive; she was able to respond to our commands. The medical records substantiate Respondent’s unrebutted testimony that she was not the treating dentist at the September 23, 2011, appointment. The June 14, July 19, and October 7, 2011, treatment notes made by Respondent all start with “Dr. Gerry,” and are in a notably different style and format from the September 23, 2011, treatment notes. The preponderance of the evidence establishes that Dr. Morris, and not Respondent, was the treating dentist when Patient T.C. experienced seizures on September 23, 2011. Much of Dr. Brotman’s testimony as to Respondent’s violation of a standard of care was based on his interpretation that, since the September 23, 2011, notes did not specifically identify the treating dentist (as did the other treatment notes described above), the notes must be presumed to be those of the business owner. Neither Dr. Brotman nor the Department established a statutory or regulatory basis for such a presumption and, in any event, the evidence adduced at hearing clearly rebutted any such presumption. Dr. Brotman testified that if another dentist had been identified in the records as having performed the treatment on September 23, 2011, that may have changed his opinion. The evidence established that Dr. Morris performed the treatment on September 23, 2011. Thus, Dr. Brotman’s opinion that Respondent violated the applicable standard of care was effectively countered. The T.C. Administrative Complaint charged Respondent with failing to comply with the applicable standard of care on September 23, 2011. The Department failed to establish that Respondent was the treating dentist on September 23, 2011, and, in fact, a preponderance of the evidence demonstrated that she was not. Thus, the Department failed to establish that Respondent violated the standard of care for failing to refer Patient T.C. to an appropriate medical professional for her seizures as alleged in Count I of the T.C. Administrative Complaint. Count II Case No. 19-2898PL, Count II, charges Respondent with delegating the task of intraoral repair of Patient T.C.’s partial denture to a person not qualified by training, experience, or licensure to perform such intraoral repair. July 17, 2012 Repair On July 17, 2012, Patient T.C. presented to Respondent because her lower partial denture was broken and the O-ring was out. The device included a female end within Patient T.C.’s jaw, and a male end with a plastic “gasket” on the denture. Respondent testified that the repair of the partial denture was performed outside of Patient T.C.’s mouth. Then, at the next scheduled visit, the treatment plan was for Respondent to “eval/repair partial denture on lower arch.” Respondent offered unrebutted testimony that “Tia of precision attachments” performed no work in Patient T.C.’s mouth. Dr. Brotman testified that, in his opinion, any repair of a precision attachment must be done by placing the attachment in the patient’s mouth to align with the teeth. However, Dr. Brotman did not know what kind of repair was done on July 17, 2012. He indicated that if a gasket or housing is missing, it can be repaired with an acrylic. Dr. Brotman testified that if acrylic was placed in the denture outside of the patient’s mouth, it would not be a violation of Florida law. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to “Tia” or any other unlicensed person on July 17, 2012, as alleged in Count II of the T.C. Administrative Complaint. June 11, 2013 Repair On June 11, 2013, Patient T.C. presented to Respondent for an evaluation of her lower precision partial denture. Patient T.C. complained that the partial denture did not have the metal housing to connect it with the bridges to its sides. Patient T.C. was a “bruxer,” i.e. she ground her teeth, and had worn out the denture’s metal attachment. Respondent evaluated the situation, and decided to attempt a chairside repair or replacement of the denture’s male attachments. If the chairside repair was unsuccessful, a complete new partial denture would have to be prepared by a dental laboratory. Respondent attempted the chairside repair. Respondent testified that she instructed her dental assistant to add acrylic into the slot where the male attachment was to be placed in the denture. There was no evidence of any kind to suggest that the dental assistant then placed the denture into Patient T.C’s mouth. Because too much acrylic was placed in the denture, it became stuck in Patient T.C.’s mouth. Patient T.C. became understandably upset. Her husband, L.C., was brought into the room, Patient T.C. was administered local anesthesia, and the precision partial denture was removed. Respondent’s testimony regarding the incident was generally consistent with her prior written statement offered in evidence. Dr. Brotman testified that making repairs to a precision denture must be performed by a licensed dentist, except for placing acrylic into the denture outside of the patient’s mouth, which may be done by a non-dentist. The evidence was insufficient to demonstrate that Respondent’s dental assistant did anything more than place acrylic into the denture outside of Patient T.C.’s mouth. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to her dental assistant on June 11, 2013, as alleged in Count II of the T.C. Administrative Complaint. Case No. 19-2899PL - The S.S. Administrative Complaint Count I Case No. 19-2899PL, Count I, charges Respondent with violating section 466.028(1)(m) by: Failing to keep a written record of Patient S.S.’s medical history; and/or Failing to keep an accurate written record of any consent forms signed by Patient S.S. Count II Case No. 19-2899PL, Count II, charges Respondent with violating section 466.028(1)(x) by: Failing to adequately diagnose decay in tooth 30; Failing to adequately diagnose the condition of the roots of tooth 30; Failing to adequately obturate the canals of tooth 30 during root canal treatment; Failing to adequately obturate the canals of tooth 31 during root canal treatment; Failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and/or Failing to adequately assess and correct the crown on tooth 31 when the fit was compromised. On May 15, 2014, Patient S.S. presented to Respondent for a root canal and crown on tooth 30. Upon examination, Respondent advised Patient S.S. that she also needed a root canal and a crown on tooth 31. Patient S.S. denied that she was required to provide her medical history at the May 15, 2014, office visit, or that she was provided with an informed consent form prior to the root canal on tooth 30. Respondent’s records do not include either a medical history or an informed consent form. However, the records, which were offered as a joint exhibit, were not accompanied by a Certificate of Completeness of Patient Records, including the number of pages provided pursuant to Respondent’s investigatory subpoena, as is routine in cases of this sort, and which was provided with the records of the subsequent dentists involved in Patient S.S.’s care. Many of the records offered in these consolidated cases, including Respondent’s licensure file, include the certification attesting to their completeness. The records for Patient S.S. do not. Petitioner elicited no testimony from Respondent establishing the completeness of the records. The records offered were, by appearance, not complete. Respondent indicated that medical history and consent forms were obtained. Entries in the records introduced in evidence indicate “[m]edical history reviewed with patient” or the like. Entries for May 16, 2014, provide that “[c]rown consent explained and signed by patient” and “root canal consent explained and signed by patient.” The record for June 4, 2014, indicates that “[r]oot canal consent form explained to and signed by patient.” Patient S.S. testified that she had no recollection of having filled out a medical history, or of having signed consent forms after having Respondent’s recommended course of treatment explained to her. However, Patient S.S.’s memory was not clear regarding various aspects of her experience with Respondent and with subsequent providers. Much of her testimony was taken from notes she brought to the hearing, and some was even based on what she read in the Administrative Complaint. Her testimony failed to clearly and convincingly establish that Respondent failed to collect her medical history or consent to treatment. Respondent testified that, at the time Patient S.S. was being seen, her office was in the midst of switching its recordkeeping software and converting records to digital format. The new company botched the transition, and by the time the issue was discovered, many of the records being converted to digital format were lost, in whole or in part. Respondent surmised that, to the extent the records were not in her files provided to the Department, that they were affected by the transition. The greater weight of the evidence suggests that medical history and signed consent forms were provided. Given the issues regarding the records as described by Respondent, and given the Department’s failure to produce a certification or other evidence that the records it was relying on to prove the violation were complete, the Department failed to meet its burden to prove, by clear and convincing evidence, that Respondent failed to keep a written record of Patient S.S.’s medical history and signed consent forms. Respondent also testified that the office notes were supplemented with handwritten notations made when a patient returned for a subsequent appointment. Several of Patient S.S.’s printed records carried handwritten notes. Respondent testified that those notes were made at some time in 2014 after Patient S.S.’s first office visit up to the time of her last visit, and were based on further discussion with Patient S.S. However, those records, Joint Exhibit 2, pages 1 through 17, bear either a date or a “print” date of March 12, 2015. Dr. Brotman testified that he knew of no software on the market that would allow contemporaneous handwriting on electronic records. Thus, the evidence is compelling that the handwritten notes were made on or after the March 12, 2015, date on which the records were printed, well after Patient S.S.’s last office visit. A root canal involves removing a tooth’s pulp chamber and nerves from the root canals. The root canals are smoothed out and scraped with a file to help find and remove debris. The canals are widened using sequentially larger files to ensure that bacteria and debris is removed. Once the debris is removed, an inert material (such as gutta percha) is placed into the canals. A “core” is placed on top of the gutta percha, and a crown is placed on top of the core. The risk of reinfection from bacteria entering from the bottom of an underfilled tooth is significantly greater than if the tooth is filled to the apex of the root. Patient S.S. returned to Respondent’s office on May 16, 2014, for the root canal on tooth 30 and crown preparations for teeth 30 and 31, which included bite impressions. Temporary crowns were placed. Respondent’s printed clinical notes for May 16, 2014, gave no indication of any obstruction of the canals, providing only the lengths of the two mesial and two distal root canals. Respondent’s hand-written notes for May 16, 2014 (which, as previously explained, could have been made no earlier than March 12, 2015), stated that the canals were “[s]ealed to as far as the canal is open. The roots are calcification.” Dr. Brotman indicated that the x-rays taken on May 15, 2014, showed evidence of calcification of the roots. However, Dr. Brotman convincingly testified that the x-rays taken during the root canal show working-length files extending to near the apices of the roots. Thus, in his opinion, the canals were sufficiently open to allow for the use of liquid materials to soften the tooth, and larger files to create space to allow for the canals to be filled and sealed to their full lengths. His testimony in that regard is credited. Patient S.S. began having pain after the root canal on tooth 30 and communicated this to Respondent. On June 5, 2014, Patient S.S. presented to Respondent to have the crowns seated for teeth 30 and 31. Patient S.S. complained of sensitivity in tooth 31. The temporary crowns were removed, and tooth 31 was seen to have exhibited a change in color. The area was probed, which caused a reaction from Patient S.S. Respondent examined the tooth, and noted the presence of soft dentin. A root canal of tooth 31 was recommended and performed, which included removal of the decay in the tooth’s dentin at the exterior of the tooth. Respondent’s removal of decay changed the shape of tooth 31, and would have changed the fit of the crown, which was made based on the May 16, 2014, impressions. There were no new impressions for a permanent crown taken for tooth 31 after removal of the decayed dentin. Respondent testified that she could simply retrofill the affected area with a flowable composite, which she believed would be sufficient to allow for an acceptable fit without making new bite impressions and ordering a new crown. There was no persuasive evidence that such would meet the relevant standard of performance. Temporary crowns were placed on teeth 30 and 31, and placement of the permanent crowns was postponed until the next appointment. Upon completion of the tooth 31 root canal on June 5, 2014, x-rays were taken of the work completed on teeth 30 and 31. Dr. Brotman testified that the accepted standard of care for root canal therapy is to have the root canal fillings come as close to the apex of the tooth as possible without extending past the apex, generally to within one millimeter, and no more than two millimeters of the apex. His examination of the x-rays taken in conjunction with Respondent’s treatment of Patient S.S. revealed a void in the filling of the middle of the distal canal of tooth 31, an underfill of approximately five millimeters in the mesial canal of tooth 31, an underfill of approximately four millimeters in the distal canal of tooth 30, and an underfill of approximately six millimeters in the two mesial root canals of tooth 30. The x-ray images also revealed remaining decay along the mesiobuccal aspect of the temporary crown placed on tooth 31. His testimony that the x-ray images were sufficiently clear to provide support for his opinions was persuasive, and was supported by the images themselves. A day after the placement of the temporary crowns, they came off while Patient S.S. was having dinner in Gainesville. She was seen by Dr. Abolverdi, a dentist in Gainesville. Dr. Abolverdi cleaned the teeth, took an x-ray, and re-cemented the temporary crowns in place. Patient S.S. next presented to Respondent on June 10, 2014. Both of Patient S.S.’s permanent crowns were seated. The permanent crown for tooth 31 was seated without a new impression or new crown being made. Patient S.S. was subsequently referred by her dentist, Dr. James Powell, to be seen by an endodontist to address the issues she was having with her teeth. She was then seen and treated by Dr. John Sullivan on July 25, 2014, and by Dr. Thomas Currie on July 29, 2014, both of whom were endodontists practicing with St. Johns Endodontics. As to the pain being experienced by Patient S.S., Dr. Sullivan concluded that it was from her masseter muscle, which is consistent with Respondent’s testimony that Patient S.S. was a “bruxer,” meaning that she ground her teeth. Dr. Sullivan also identified an open margin with the tooth 31 crown. His clinical assessment was consistent with the testimony of Dr. Brotman. The evidence was clear and convincing that the defect in the tooth 31 permanent crown was an open margin, and not a “ledge” as stated by Respondent. The evidence was equally clear and convincing that the open margin was the result of performing a “retrofill” of the altered tooth, rather than taking new bite impressions to ensure a correct fit. As a result of the foregoing, Respondent violated the accepted standard of performance by failing to take a new crown impression of tooth 31 following the removal of dentin on June 4, 2014, and by failing to assess and correct the open margin on the tooth 31 crown. Radiographs taken on July 25, 2014, confirmed that canals in teeth 30 and 31 were underfilled, as discussed above, and that there was a canal in tooth 31 that had been missed altogether. On July 29, 2014, Dr. Currie re-treated the root canal for tooth 31, refilled the two previously treated canals, and treated and filled the previously untreated canal in tooth 31. The evidence, though disputed, was nonetheless clear and convincing that Respondent failed to meet the standard of performance in the root canal procedures for Patient S.S.’s teeth 30 and 31, by failing to adequately diagnose and respond to the condition of the roots of tooth 30; failing to adequately fill the canals of tooth 30 despite being able to insert working-length files beyond the area of calcification to near the apices of the roots; and failing to adequately fill the canals of tooth 31 during root canal treatment. The Administrative Complaint also alleged that Respondent failed to adequately diagnose decay in tooth 30. The evidence was not clear and convincing that Respondent failed to adequately diagnose decay in tooth 30. Case No. 19-2900PL - The G.H. Administrative Complaint Case No. 19-2900PL charges Respondent with violating section 466.028(1)(x) by failing to adequately diagnose issues with the crown on tooth 13 and provide appropriate corrective treatment. On May 15, 2014, Patient G.H. presented to Respondent with a complaint that she had been feeling discomfort on the upper left of her teeth that was increasingly noticeable. Respondent diagnosed the need for a root canal of tooth 13. Patient G.H. agreed to the treatment, and Respondent performed the root canal at this same visit. Patient G.H. also had work done on other teeth to address “minor areas of decay.” On July 7, 2014, Patient G.H.’s permanent crowns were seated onto teeth 8, 9, and 13, and onlay/inlays placed on teeth 12 and 14. On July 29, 2014, Patient G.H. presented to Respondent. Respondent’s records indicate that Patient G.H. complained that when she flossed around tooth 13, she was getting “a funny taste” in her mouth. Patient G.H.’s written complaint and her testimony indicate that she also advised Respondent that her floss was “tearing,” and that she continued to experience “pressure and discomfort” or “some pain.” Respondent denied having been advised of either of those complaints. Respondent flossed the area of concern, and smelled the floss to see if it had a bad smell. Respondent denied smelling anything more than typical mouth odor, with which Patient G.H. vigorously disagreed. Respondent took a radiograph of teeth 11 through 15, which included tooth 13 and the crown. The evidence is persuasive that the radiograph image revealed that the margin between tooth 13 and the crown was open. An open margin can act as a trap for food particles, and significantly increases the risk for recurrent decay in the tooth. Respondent adjusted the crown on tooth 9, but advised Patient G.H. that there was nothing wrong with the crown on tooth 13. She offered to prescribe a rinse for the smell, but generally told Patient G.H. that there were no complications. Patient G.H. began to cry and, when Respondent left the room, got up from the chair and left the office. Respondent indicated in her testimony that she would have performed additional investigation had Patient G.H. not left. The contemporaneous records do not substantiate that testimony. Furthermore, Respondent did not contact Patient G.H. to discuss further treatment after having had a full opportunity to review the radiograph image. On March 10, 2015, after her newly-active dental insurance allowed her to see a different in-network provider, Patient G.H. sought a second opinion from Dr. Ada Y. Parra, a dentist at Premier Dental in Gainesville, Florida. Dr. Parra identified an open distal margin at tooth 13 with an overhang. Dr. Parra recommended that Patient G.H. return to Respondent’s practice before further work by Premier Dental. Patient G.H. called Respondent’s office for an appointment, and was scheduled to see Dr. Lindsay Kulczynski, who was practicing as a dentist in Respondent’s Lake City, Florida, office. Patient G.H. was seen by Dr. Kulczynski on March 19, 2015. Upon examination, Dr. Kulczynski agreed that the crown for tooth 13 “must be redone” due to, among other defects, “[d]istal lingual over hang [and] open margin.” The open margin was consistent with Patient G.H.’s earlier complaints of discomfort, floss tearing, and bad odor coming from that tooth. The evidence was persuasive that further treatment of Patient G.H. was not authorized by Respondent after the appointment with Dr. Kulczynski. Dr. Brotman credibly testified that the standard of care in crown placement allows for a space between the tooth and the crown of between 30 and 60 microns. Dr. Brotman was able to clearly identify the open margin on the radiograph taken during Patient G.H.’s July 29, 2014, appointment, and credibly testified that the space was closer to 3,000 microns than the 30 to 60 microns range acceptable under the standard of performance. His testimony is accepted. An open margin of this size is below the minimum standard of performance. The evidence was clear and convincing that Respondent fell below the applicable standard of performance in her treatment of Patient G.H., by seating a crown containing an open margin and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies. Case No. 19-2901PL - The J.D. Amended Administrative Complaint Case No. 19-2901PL charges Respondent with violating section 466.028(1)(x) by: Failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; Failing to appropriately place the implant by attempting to place it into a curved root, which could not accommodate the implant; Failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and/or Paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D. Patient J.D. first presented to Respondent on June 28, 2014. At the time, Respondent was practicing with Dr. Jacobs, who owned the practice. Patient J.D. had been a patient of Dr. Jacobs for some time. Respondent examined Patient J.D. and discovered problems with tooth 14. Tooth 14 and tooth 15 appeared to have slid into the space occupied by a previously extracted tooth. As a result, tooth 14 was tipped and the root curved from moving into the space. Tooth 14 had been filled by Dr. Jacobs. However, by the time Respondent examined it, the tooth was not restorable, and exhibited 60 percent bone loss and class II (two millimeters of movement) mobility. Respondent discussed the issue with Patient J.D., and recommended extraction of the two teeth and replacement with a dental implant. Patient J.D. consented to the procedure and executed consent forms supplied and maintained by Dr. Jacobs. The teeth at issue were in the upper jaw. The upper jaw consists of softer bone than the lower jaw, is more vascular, and includes the floor of the nose and sinuses. The periapical radiographs taken of Patient J.D. showed that he had a “draped sinus,” described by Respondent as being where “the tooth is basically draped around the sinuses. It’s almost like they’re kind of one.” Prior to Patient J.D., Respondent had never placed an implant in a patient with a draped sinus. The x-rays also indicated that, as a result of the previous extraction of teeth and the subsequent movement of the remaining teeth, the roots of tooth 14 were tipped and curved. The evidence was persuasive that Respondent did not fail to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, the extent of available bone support, and the configuration of the roots. Dr. Kinzler testified credibly that the pneumatized/draped sinus, the 60 percent bone loss around tooth 14, and the tipped and curved roots each constituted pre- operative red flags. Respondent extracted teeth 14 and 15. When she extracted the teeth, she observed four walls. She was also able to directly observe the floor of the sinus. She estimated the depth of the socket to be 12 millimeters. Sinus penetration is a potential complication of implant placement. Being able to see the sinus floor was an additional complicating factor for implant placement. Dr. Kinzler credibly testified that if Respondent was going to place an implant of the size she chose (see below), then the standard of care required her to first do a sinus lift before placing the implant. A sinus lift involves physically lifting the floor of a patient’s sinus. Once the sinus has been lifted, material typically consisting of granulated cortical bone is placed into the space created. Eventually, the bone forms a platform for new bone to form, into which an implant can be inserted. The evidence established that the standard of care for bone replacement materials is to place the material into the space, close the incision, and allow natural bone to form and ultimately provide a stable structure to affix an implant. The implant may then be mechanically affixed to the bone, and then biologically osseointegrate with the bone. In order to seal off Patient J.D.’s sinus, Respondent used Bond Bone, which she described as a fast-setting putty-like material that is designed to protect the floor of the sinus and provide a scaffold for bone to grow into. She did not use cortical bone, described as “silly sand,” to fill the space and provide separation from the sinus because she indicated that it can displace and get lost. Respondent’s goal was to place the implant so that it would extend just short of the Bond Bone and Patient J.D.’s sinus. She also intended to angle the implant towards the palate, where there was more available bone. Bond Bone and similar materials are relatively recent innovations. Dr. Fish was encouraged by the possibilities of the use of such materials, though he was not familiar with the Bond Bone brand. The evidence was clear and convincing that, although Bond Bone can set in a short period, and shows promise as an effective medium, it does not currently meet minimum standards of performance for bone replacement necessary for placement and immediate support of an implant. Bond Bone only decreases the depth of the socket. It does not raise the floor of the sinus. As such, the standard practice would be to use a shorter implant, or perform a sinus lift. Respondent was provided with an implant supplied by Dr. Jacobs. She had not previously used the type of implant provided. The implant was a tapered screw vent, 4.7 millimeters in diameter, tapering to 4.1 millimeters at the tip with a length of 11.5 millimeters. Respondent met with and received information from the manufacturer’s representative. She used a 3.2 millimeter drill to shape the hole, as the socket was already large enough for the implant. The 3.2 millimeter drill was not evidence that the receiving socket was 3.2 millimeters in diameter. Respondent then inserted the implant and its carrier apparatus into the hole. The implant did not follow the root, and had little bone on which to affix. The initial post-placement periapical radiograph showed “placement was not correct.” Despite Respondent’s intent, the implant was not angled, but was nearly vertical, in contrast with the angulation of the socket which was tipped at least 30 degrees. Given the amount of bone loss, and the other risk factors described herein, the risk of a sinus perforation, either by having the implant extend through the root opening or by a lateral perforation through one of the sides of the socket, was substantial. After adjusting the implant, Respondent went to remove the carrier. The carrier would not release, and the pressure exerted caused the implant to loosen and begin to sink through the Bond Bone. Dr. Kinzler testified credibly that, because of the mechanics of the implant used, had it been surrounded by bone, it would not have been possible for the implant to become loose. In his opinion, which is credited, the loosening of the implant was the result of the lack of bone to hold it in place. Respondent was so intent on removing the carrier that she was not paying attention to the implant. As a result, she screwed the implant through the Bond Bone and into Patient J.D.’s sinus. By the time she realized her error, the implant had sunk in to the point it was not readily retrievable. She was hesitant to reaffix the carrier “because [she] knew [she] had no support from the bone, that it was just a matter of air.” Nonetheless, she “stuck the carrier back in, but it would not go back in.” She then turned to get forceps or a hemostat but, by that time, the implant was irretrievably into Patient J.D.’s sinus. At the hearing, Respondent testified that she could have retrieved the implant but for Patient J.D. doing a “negative pressure sneeze” when the implant was already into the sinus. At that point, she stated that the implant disappeared into Patient J.D.’s sinus, where it can be seen in Petitioner’s Exhibit 9, page 35. There is nothing in Respondent’s dental records about Patient J.D. having sneezed. Respondent further testified that Patient J.D. “was very jovial about it,” and that everyone in the office laughed about the situation, and joked about “the sneeze implant.” That the patient would be “jovial” about an implant having been screwed into his sinus, resulting in a referral to an oral surgeon, and that there was office-wide joking about the incident is simply not credible, particularly in light of the complete absence of any contemporaneous records of such a seemingly critical element of the incident. Respondent believed that the implant must have been defective for her to have experienced the problem with removing the carrier, though her testimony in that regard was entirely speculative. There is no competent, substantial, or persuasive evidence to support a finding that the implant was defective. After determining that the implant was in Patient J.D.’s sinus, Respondent informed Patient J.D. of the issue, gave him a referral to an oral surgeon, prescribed antibiotics, and gave Patient J.D. her cell phone number. Each of those acts was appropriate. On July 29, 2014, an oral surgeon surgically removed the implant from Patient J.D.’s sinus. Patient J.D. sued Respondent for medical malpractice. The suit was settled, with the outcome including a $75,000.00 indemnity paid by Respondent’s insurer on her behalf. The Office of Insurance Regulation’s Medical Malpractice Closed Claims Report provides that the suit’s allegations were based on “improper dental care and treatment.” The evidence was not clear and convincing that Respondent failed to meet the minimum standards of performance prior to the procedure at issue by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations prior to the procedure. The evidence was clear and convincing that Respondent failed to meet the minimum standards of performance by failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing the implant in the area of tooth 14, and by placing the implant into a curved root which could not accommodate the implant. The placement of Bond Bone was not adequate to address these issues. The evidence was clear and convincing that Respondent failed to meet the standard of care by failing to pay attention while trying to twist off the carrier and by failing to appropriately react to the sinking implant. The evidence was clear and convincing that Respondent paid, or had paid on her behalf, an indemnity of $75,000 for negligent conduct during treatment of Patient J.D. The perforation of Patient J.D.’s sinus was not, in itself, a violation of the standard of care. In that regard, Dr. Kinzler indicated that he had perforated a sinus while placing an implant. It was, however, the totality of the circumstances regarding the process of placing Patient J.D.’s implant that constituted a failure to meet the minimum standards of performance as described herein. Case No. 19-2902PL - The J.A.D. Amended Administrative Complaint Count I Case No. 19-2902PL, Count I, charges Respondent with violating section 466.028(1)(x) by: Failing to take adequate diagnostic imaging prior to placing an implant in the area of Patient J.A.D.’s tooth 8; Failing to pick an appropriately-sized implant and placing an implant that was too large; and/or Failing to diagnose and/or respond appropriately to the oral fistula that developed in the area of Patient J.A.D.’s tooth 8. Count II Case No. 19-2902PL, Count II, charges Respondent with violating section 466.028(1)(m) by: Failing to document examination results showing Patient J.A.D. had an infection; Failing to document the model or serial number of the implant she placed; and/or Failing to document the results of Respondent’s bone examination. Patient J.A.D. first presented to Respondent on March 3, 2016. His first appointment included a health history, full x-rays, and an examination. Patient J.A.D.’s complaint on March 3, 2016, involved a front tooth, tooth 8, which had broken off. He was embarrassed by its appearance, and desired immediate care and attention. Respondent performed an examination of Patient J.A.D., which included exposing a series of radiographs. Based on her examination, Respondent made the following relevant diagnoses in the clinical portion of her records: caries (decay) affecting tooth 7, gross caries affecting fractured tooth 8, and caries affecting tooth 9. Patient J.A.D. was missing quite a few of his back teeth. The consent form noted periodontal disease. The evidence is of Patient J.A.D.’s grossly deficient oral hygiene extending over a prolonged period. A consent form signed by Patient J.A.D. indicates that Patient J.A.D. had an “infection.” Respondent indicated that the term indicated both the extensive decay of Patient J.A.D.’s teeth, and a sac of pus that was discovered when tooth 8 was extracted. “Infection” is a broad term in the context of dentistry, and means any bacterial invasion of a tooth or system. The consent form was executed prior to the extraction. Therefore, the term “infection,” which may have accurately described the general condition of Patient J.A.D.’s mouth, could not have included the sac of pus, which was not discovered until the extraction. The sac of pus was not otherwise described with specificity in Respondent’s dental records. A pre-operative radiograph exposed by Respondent showed that tooth 8 had a long, tapering root. Respondent proposed extraction of tooth 8, to be replaced by an immediate implant. The two adjacent teeth were to be treated and crowned, and a temporary bridge placed across the three. Patient J.A.D. consented to this treatment plan. The treatment plan of extracting tooth 8 and preparing the adjacent teeth for crowns was appropriate. Respondent cleanly extracted tooth 8 without fracturing any surrounding bone, and without bone adhering to the tooth. When the tooth came out, it had a small unruptured sac of pus at its tip. Respondent irrigated and curretted the socket, and prescribed antibiotics. Her records indicated that she cleaned to 5 millimeters, although a radiograph made it appear to be a 7 millimeter pocket. She explained that inflammation caused the pocket to appear larger than its actual 5 millimeter size, which she characterized as a “pseudo pocket.” She recorded her activities. The response to the sac of pus was appropriate. Respondent reviewed the earlier radiographs, and performed a physical examination of the dimensions of the extracted tooth 8 to determine the size of the implant to be placed into the socket. Dr. Kinsler and Dr. Fish disagreed as to whether the radiographic images were sufficient to provide adequate information as to the implant to be used. Both relied on their professional background, both applied a reasonable minimum standard of performance, and both were credible. The evidence was not clear and convincing that Respondent failed to take adequate diagnostic imaging prior to placing an implant to replace Patient J.A.D.’s tooth 8. Respondent placed an implant into the socket left from tooth 8. The implant was in the buckle cortex, a “notoriously thin” bone feature at the anterior maxilla. The fact that it is thin does not make it pathological, and placement of an implant near a thin layer of bone is not a violation of the standard of performance as long as the implant is, in fact, in the bone. The implant used by Respondent was shorter than the length of tooth 8 and the tooth 8 socket, and did not have a full taper, being more truncated. The evidence of record, including the testimony of Dr. Kinzler, indicates that the length of the implant, though shorter than the tooth it was to replace, was not inappropriate. The evidence of record, including pre-extraction and post-implantation scaled radiographs offered as a demonstrative exhibit, was insufficient to support a finding that the implant diameter was too great for the available socket. Patient J.A.D. felt like the implant was too close to the front of his maxillary bone because it felt like a little bump on the front of his gums. That perception is insufficient to support a finding that the placement of the implant violated a standard of performance. Subsequent x-rays indicated that there was bone surrounding the implant. Clinical observations by Respondent after placement of the implant noted bone on all four walls of the implant. Her testimony is credited. The evidence that the tooth 8 implant was not placed in bone, i.e., that at the time the implant was placed, the implant penetrated the buccal plate and was not supported by bone on all four sides, was not clear and convincing. Respondent’s records document the dimensions and manufacturer of the implant. Implants are delivered with a sticker containing all of the relevant information, including model and serial number, that are routinely affixed to a patient’s dental records. It is important to document the model and serial number of implants. Every implant is different, and having that information can be vital in the case of a recall. Patient J.A.D.’s printed dental records received by the Department from Respondent have the implant size (5.1 x 13 mm) and manufacturer (Implant Direct) noted. The records introduced in evidence by the Department include a page with a sticker affixed, identified by a handwritten notation as being for a “5.1 x 13mm - Implant Direct.” (Pet. Ex. 11, pg. 43 of 83). The accompanying sticker includes information consistent with that required. Dr. Fish testified to seeing a sticker that appears to be the same sticker (“The implant label of 141, it just has the handwritten on there that it should be added.”), though it is described with a deposition exhibit number (page 141 of a CD) that is different from the hearing exhibit number. Dr. Fish indicated the sticker adequately documented the implant information. The evidence was not clear and convincing that the sticker was not in Patient J.A.D.’s records, or that Respondent failed to document the model or serial number of the implant she placed. Later in the day on March 3, 2016, Patient J.A.D. was fitted for a temporary crown, which was placed on the implant and the adjacent two teeth, and Patient J.A.D. was scheduled for a post-operative check. Patient J.A.D. appeared for his post-operative visit on March 10, 2016. He testified that he was having difficulty keeping the temporaries on, and was getting “cut up” because the two outer teeth were sharp and rubbed against his lip and tongue. Respondent noticed that Patient J.A.D. was already wearing a hole in the temporary. Since Patient J.A.D. was missing quite a few of his back teeth, much of his chewing was being done using his front teeth. His temporaries were adjusted and reseated. On March 17, 2016, Patient J.A.D. was seen by Respondent for a post-operative check of the tooth 8 extraction and implant placement. The notes indicated that Patient J.A.D. had broken his arm several days earlier, though the significance of that fact was not explained. He was charted as doing well, and using Fixodent to maintain the temporary in place. The records again noted that Patient J.A.D. had worn a hole in the back of the tooth 9 temporary crown. A follow up was scheduled for final impressions for the permanent crowns. On March 10 and March 17, 2016, Patient J.A.D. complained of a large blister or “zit” that formed over the area above the end of the implant. Patient J.A.D. had no recollection of whether Respondent told him he had an infection. He was prescribed antibiotics. The evidence was not clear and convincing that the “zit” was causally related to the placement of the implant. Patient J.A.D. also testified that the skin above tooth 9 was discolored, and he thought he could almost see metal through the skin above his front teeth. Patient J.A.D. next appeared at Respondent’s office on June 2, 2016, for final impressions. Respondent concluded that the site had not healed enough for the final impression. She made and cemented a new temporary, and set an appointment for the following month for the final impression. Patient J.A.D. did not return to Respondent. On September 28, 2016, Patient J.A.D. presented to the office of Dr. Harold R. Arthur for further treatment. The records for that date indicate that he appeared without his temporary restoration for teeth 7 through 9, stating that he had several at home, but they would not stay on. Dr. Arthur probed a “[s]mall (1.0 x 1.0 mm) red spot in facial keratinized gingiva communicating with implant.” After probing the opening in the gingiva and the “shadow” in the gingiva, he believed it was at the center of the implant body and healing screw. Dr. Arthur’s dental records for Patient J.A.D. over the course of the following year indicate that Dr. Arthur made, remade, and re-cemented temporary crowns for teeth 7, 8, and 9 on a number of occasions, noting at least once that Patient J.A.D. “broke temps” that had been prepared and seated by Dr. Arthur. On December 1, 2016, Patient J.A.D. was reevaluated by Dr. Arthur. He noted the facial soft tissue at the implant was red, with an apparent fistula. A periapical radiograph was “unremarkable.” The temporary crowns, which were loose, were removed, air abraded to remove the cement, and re-cemented in place. Patient J.A.D. was prescribed an antibiotic. He was again seen by Dr. Arthur on December 13, 2016. The temporary on tooth 9 was broken, which was then remade and re-cemented. The fistula was smaller but still present. Patient J.A.D. was seen by Dr. Arthur on February 2, 2017, with the tooth 9 temporary crown fractured again. The fistula was still present. Patient J.A.D. advised that “the bone feels like it’s caving in around where she put that implant.” That statement is accepted not for the truth of the matter asserted, but as evidence that the complaint was first voiced in February 2017. On April 4, 2017, more than a year after the placement of the implant, Patient J.A.D was seen by Dr. Arthur. Dr. Arthur determined that the implant for tooth 8 was “stable and restorable in current position.” The fistula was still present and, after anesthesia, a probe was placed in the fistula where it contacted the implant cover screw. Although Dr. Arthur replaced the implant abutment, he ultimately placed the final crown on the implant placed by Respondent, where it remained at the time of the final hearing. The fact that incidents of Patient J.A.D. breaking and loosening the temporary crowns that occurred with Respondent continued with Dr. Arthur supports a finding that the problems were, more likely than not, the result of stress and overuse of Patient J.A.D.’s front teeth. On October 24, 2016, a series of CBCT radiographs was taken of the implant and its proximity to tooth 7. Dr. Kinzler testified that, in his opinion, the implant was of an appropriate length, but was too large for the socket. Much of his testimony was based on the October 24 radiograph and his examination of the resulting October 29, 2016, report. Although the report indicated that there was minimal bone between the implant and the root of tooth 7, and that the buccal cortex appeared thinned or eroded, those observations are of limited persuasive value as to whether the standard of performance was met almost eight months prior. Patient J.A.D. obviously worked, and overworked, his dental appliances. Without more, the evidence is not clear and convincing that his subsequent and repeated problems, including “thinned or eroded” bone in the buccal cortex, were the result of a violation of the standard of performance in the sizing and placement of the tooth 8 implant by Respondent.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a Final Order: Dismissing the Administrative Complaint in Case No. 19-2898PL and the Amended Administrative Complaint in Case No. 19-2902PL; With regard to Case No. 19-2899PL: 1) dismissing Count I of the Administrative Complaint; 2) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient S.S. by: failing to adequately diagnose the condition of the roots of tooth 30; failing to adequately obturate the canals of tooth 30 during root canal treatment; failing to adequately obturate the canals of tooth 31 during root canal treatment; failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and failing to adequately assess and correct the crown on tooth 31 when the fit was compromised, as alleged in Count II of the Administrative Complaint; and 3) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient S.S. by failing to adequately diagnose decay in tooth 30, as alleged in Count II of the Administrative Complaint; With regard to Case No. 19-2900PL, determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient G.H. by seating a crown containing an open margin on tooth 13 and failing to adequately diagnose issues with the crown on tooth 13, and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies, as alleged in the Administrative Complaint; With regard to Case No. 19-2901PL: 1) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient J.D. by: failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; failing to appropriately place the implant by attempting to place it into a curved root which could not accommodate the implant; failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D., as alleged in the Amended Administrative Complaint; and 2) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient J.D. by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Suspending Respondent’s license in accordance with rule 64B5-13.005(1)(x) and rule 64B5-13.005(3)(e), to be followed by a period of probation, with appropriate terms of probation to include remedial education in addition to such other terms that the Board believes necessary to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5- 13.005(3)(d)2.; Imposing an administrative fine of $10,000; and Requiring reimbursement of costs. DONE AND ENTERED this 31st day of January, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2020. COPIES FURNISHED: George Kellen Brew, Esquire Law Office of George K. Brew Suite 1804 6817 Southpoint Parkway Jacksonville, Florida 32216 (eServed) Kelly Fox, Esquire Department of Health 2585 Merchant’s Row Tallahassee, Florida 32311 (eServed) Octavio Simoes-Ponce, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Jennifer Wenhold, Interim Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Florida Laws (6) 120.5720.43456.072456.073466.028832.05 Florida Administrative Code (2) 28-106.20664B5-13.005 DOAH Case (8) 19-2898PL19-2899PL19-2900PL19-2901PL19-2902PL2002-254212015-108042015-23828
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs KEITH J. DIETRICK, M.D., 05-002796PL (2005)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Aug. 03, 2005 Number: 05-002796PL Latest Update: Feb. 16, 2006

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

Florida Laws (5) 120.569456.072456.073458.331766.103
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BOARD OF MEDICAL EXAMINERS vs. OSBEY L. SAYLER, 86-002399 (1986)
Division of Administrative Hearings, Florida Number: 86-002399 Latest Update: Jan. 21, 1987

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

Florida Laws (3) 120.57458.33195.11
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BOARD OF MEDICINE vs R. DEWITT JONES, 91-004549 (1991)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jul. 19, 1991 Number: 91-004549 Latest Update: Apr. 02, 1993

Findings Of Fact Dr. Jones is and at all times relevant has been licensed as a physician in the State of Florida, holding license No. ME 0017106. Following his medical training, internship, and residencies, Dr. Jones entered the private practice of orthopedic surgery in Inverness, Florida in 1976. He is board certified by the American Board of Orthopaedic Surgeons and is a Fellow of the American Academy of Orthopaedic Surgeons. Dr. Jones practiced medicine in his specialty of orthopedic surgery in Inverness from 1976 to 1987. Thereafter he has had the same type of practice in the State of Georgia. He has treated thousands of patients and this case is the only disciplinary action ever brought against Dr. Jones. By its Administrative Complaint, DPR charged Dr. Jones with two counts against two patients. As to Patient 1, C.D., DPR charged Dr. Jones with violating Section 458.1201(1)(aa), Florida Statutes (1978), by "being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct" in his treatment of C.D. in 1978. There is no such section in the 1978 statutes. While DPR stated at hearing that this was a typographical error and should say Section 458.1201(1)(m), no motion to amend was filed. As to Patient 2, D.S. (who was incorrectly called D.C. throughout the transcript), DPR charged Dr. Jones with violation of Section 458.331(1)(t), Florida Statutes (1985), by "gross and 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." He treated D.S. in 1985. The only evidence offered by DPR to prove its allegations was that of Donna Shortreed, current records custodian at Citrus Memorial Hospital, and D.S. DPR's only expert, Dr. Zeide, testified by deposition which was filed after the hearing. Ms. Shortreed has only been employed at the hospital since October, 1988, which is years after the hospitalizations of these two patients. Ms. Shortreed had no knowledge of how hospital records were maintained before she was hired. She was not able to testify about the completeness of the records provided, but did know that x-rays taken more than five years ago were purged and x-rays no longer existed for these two patients. All she could state was that she had brought all the medical records she could find on these two patients. Patient 1, C.D. On August 4, 1978, C.D. was injured in a one-car accident and sustained numerous injuries, including what initially appeared to be a simple intertrochanteric fracture. Dr. Jones was called in for the orthopedic consultation and he scheduled surgery for the next day for an open reduction and reposition of the fracture. Once the site was viewed in the course of surgery, it became apparent that there were serious comminuted fractures, both intertrochanteric and subtrochanteric, of the right proximal femur. One fracture was a varus displaced intertrochanteric fracture between the trochanters. A trochanter is one of the bony prominences near the upper extremity of the femur. A varus displaced intertrochanteric fracture is one where the broken bone is moved out of its normal placement and is bent inward. Going into the operation, Dr. Jones had planned to use a Massey nail, but during the operation it was determined that the Massey nail did not come in the angle which was required to repair that fracture. Citrus Memorial was a rural hospital in 1978 and Dr. Jones was the only orthopedic surgeon. The hospital's inventory of orthopedic devices was scant. Given the limited choices available to him, Dr. Jones decided to repair the fracture with an Jewett nail which is a fixed angle nail plate device. Dr. Jones knew that such a device had a potential for bending if the patient attempted to bear weight too soon, but he used the Jewett nail and wires and screws because it was the only realistic choice available to him. C.D. had a seizure disorder which she apparently attempted to hide in order to protect her job as a nurse at Three Rivers Hospital. C.D.'s recovery was not progressing well as a result of a pulmonary embolism which occurred subsequent to the surgery. Additionally, on August 28, 1978, C.D. suffered a grand mal seizure and fell out of bed. X-rays after this fall showed that the internal fixation which had been accomplished by Dr. Jones had failed. A second operation was necessary, but could not occur until she was cleared of the blood thinners she was on for the pulmonary embolism. On September 7, 1978, Dr. Jones performed the second surgery. He was in the operating room unassisted by any other doctor because there was no other orthopedic surgeon, anesthesiologist or neurologist in the area. Dr. Jones had ordered a Zickel fracture repair device so that the patient could achieve immediate weight bearing and thereby attempt to fend off another embolism. When Dr. Jones opened the surgical site, he found a comminution fracture, or one in which the bones were in pieces. By the time he had been able to clean out all of the previous repair material and bone fragments and to attempt the fracture repair, C.D. had been in the operation five hours and had needed 5 units of blood. While a bone graft would have been the best solution to this difficult problem, Dr. Jones believed that he needed a faster way to fixate the bone and get her off the operating table. A bone graft would have required assistance from other doctors who simply did not practice in the area and would be a long and bloody operation in itself. Because of all these factors, Dr. Jones opted to fixate the fracture using a Zickel rod and a Zickel screw together with bone cement. He thought that was the only available option except for a bone graft. He knew that his treatment was not customary, but it was all he could do at the moment. Knowing that bone cement could not be expected to take the place of natural bone, Dr. Jones placed many restriction on C.D.'s activity, including no return to work for at least six months and no going up or down stairs. C.D. did not comply with these restrictions, but instead returned to work and used stairs. While using the stairs, the repair failed and C.D. had to have another repair. That repair was done at another hospital by other physicians and consisted of the bone graft. That bone graft and another one attempted by even another doctor both failed. DPR's only charge against Dr. Jones for his treatment of C.D. is that he used bone cement to maintain the length of the femur instead of an autologous or heterogeneous bone graft and that use of bone cement to maintain length is below the acceptable level of care. Patient 2, D.S. Patient 2, D.S. (referred to as D.C. throughout the transcript), was brought to Citrus Memorial Hospital on October 29, 1985. She was 56 years old and had a 30-year history of brittle, insulin dependent diabetes which was very poorly managed. D.S. was admitted by her regular doctor with a confusing history of unknown, but significant, trauma. She was suffering from a compression fracture of the twelfth thoracic vertebrae and compound fractures of both shoulders. In both shoulders, the top of the arm bone, the humerus, was broken and the ball or humeral head was broken into multiple pieces. Both shoulders were dislocated. Dr. Jones was called in for an orthopedic consultation. He determined that surgery was necessary, but proceeded cautiously because D.S. was a high risk patient. On consultation with D.S. and her physician, it was decided that two surgeries would be performed, first on the right shoulder and second on the left. The first operation occurred on November 4, 1985, but was very difficult. Dr. Jones managed to put the pieces back together with screws. With difficulty, Dr. Jones was able to get the shoulder aligned and to maintain the position, but he suspected that it may still be dislocated anteriorly. Surgical x-rays showed proper alignment and position. X-rays later showed that the right shoulder was dislocated and that further reduction was necessary. On November 7, 1985, Dr. Jones took D.S. back to the operating room and first attempted a closed reduction of the right shoulder dislocation. The closed reduction was unsuccessful so Dr. Jones had to reopen the surgical site. D.S. had signed a release for this procedure and Dr. Jones considered it to be an emergency, not elective, surgery. Once Dr. Jones had reopened the right shoulder, he determined that the screw fixations were not working, so he removed the screws and removed the pieces of bone. He removed the humeral head and knowingly created a "hanging shoulder" or one without a ball, because he believed that would leave D.S. pain free. Dr. Jones then performed the same type of procedure on the left shoulder and excised the humeral head. Dr. Jones considered reconstructive surgery at that time, but decided that insertion of prosthetic devices would require a lengthy surgery, which was unacceptable in this high risk patient. Instead, his goal was to relieve the pain which D.S. was suffering as quickly as possible. If D.S. made it through that surgery with no significant problems, Dr. Jones then planned to do the reconstructive surgery later, one arm at a time. He thought that the reconstructive surgery was better done in a high risk patient as staged elective procedures. D.S. did develop problems while she was hospitalized. She developed a pneumothorax (free air in the chest cage which compresses the lung) on the right and pneumonia on the left. D.S. did not follow through with Dr. Jones, but later she did have reconstructive surgery on both shoulders which was not successful. DPR charged Dr. Jones with failing to met the standard of care because he "performed a bilateral excision of Patient #2's humeral heads without considering other options, specifically prosthetic replacements." DPR's Expert, Dr. Zeide The only evidence against Dr. Jones was the deposition testimony of Dr. Zeide. It must be found that Dr. Zeide's opinions are unsupported by the record and are entirely incompetent to support the charges against Dr. Jones. Apparently, Dr. Zeide considered "a whole stack of records and x- rays." But no where in his deposition does he identify with specificity what he relied on in reaching his opinions. In fact, it is clear that he considered numerous documents which are not admissible in this proceeding, including the entire DPR case file which contained inadmissible letters from lawyers, articles from unidentified journals, insurance company reports, documents obtained from lawyers' offices, pleadings and documents from civil court files, statements from people gathered by DPR, etc. DR. Zeide also apparently said he reviewed hospital records, but as was apparent from Donna Shortreed's testimony, those records are not complete and do not contain any x-rays. Additionally, no credible evidence was offered to establish that the records reviewed by Dr. Zeide were the same as the hospital records introduced into evidence as Petitioner's Exhibits 4 and 5. Further, Dr. Zeide said he reviewed x-rays which he had then "returned." No evidence established what these x-rays were of or where they are now. In fact, the only credible testimony is that no x-rays exist for either of these patients. Throughout his deposition, Dr. Zeide read from documents which are not in evidence and for which no proper predicate was laid. Finally, Dr. Zeide clearly had absolutely no idea what the applicable standard of care was in rural Citrus county in either 1978 or 1985. For 1978, Dr. Zeide said the standard of care in Citrus County "was the standard of care that prevailed in communities that were for any orthopedic surgeon in the State of Florida. . . . That was--those procedures that were appropriate based on basic science and based on the treatment of patients who had similar--who had certain particular types of problems." For 1985, Dr. Zeide said the prevailing standard of care in Citrus County was "that type of orthopedics that would be practiced by orthopedic surgeons in Citrus County, in the State of Florida." When asked if that was his definition, Dr. Zeide then said "I don't think I have an exact definition that I--in terms of, you know, to espouse it to you. It's just what would be acceptable practice of care or those that would not be acceptable practices of care." These standards as articulated by Dr. Zeide bear no relationship to the standards of care as defined by relevant statutes or by his understanding of those standards. Hence, his opinions are entitled to no weight and are not competent proof. Additionally, Dr. Zeide is not a comparable physician because he has no knowledge or understanding of orthopedic practice in a small fifty-bed rural hospital with little or no assistance from other medical doctors. One more problem exists with the DPR proof and the entire prosecution of this case, especially as it relates to C.D. That problem is that these events occurred in 1978 and only partial records exist. No x-rays exist and no reliable expert opinion can be expressed regarding orthopedic procedures absent the x-rays made at the time. Such a delay in prosecution by DPR results in an infringement on Dr. Jones' rights to adequately prepare a defense to such stale charges.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order dismissing the charges against R. Dewitt Jones, M.D. DONE and ENTERED this 5th day of October, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-4549 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1). 2. Proposed findings of fact 2-18, 25, 29, 30, 33-41, 43-49, 54 and 56 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 19-24, 26-28, 42, 50, 52, 53, and 57-62 are unsupported by the credible, competent and substantial evidence. 4. Proposed findings of fact 31, 32, 51, and 55 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, R. Dewitt Jones, M.D. 1. Because of Dr. Jones' failure to number his findings of fact and failure to make citations to the record, specific rulings are impossible. Generally stated, Respondent's proposed findings of fact are subordinate to the facts actually found in this Recommended Order, except that those proposed findings which are not even mentioned in this Recommended Order are rejected as irrelevant, unnecessary or unsupported by the evidence. COPIES FURNISHED: Francesca Plendl Senior Attorney Department of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 W. Marvin Hardy, III Attorney at Law Gurney & Handley, P.A. 225 E. Robinson St., Suite 450 Post Office Box 1273 Orlando, FL 32802-1273 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792

Florida Laws (2) 120.57458.331
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DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs LORYN R. MERRILL, D.D.S., 18-000917PL (2018)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Feb. 19, 2018 Number: 18-000917PL Latest Update: Dec. 27, 2024
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BOARD OF DENTISTRY vs PHILIP OKUN, 90-006173 (1990)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida Sep. 27, 1990 Number: 90-006173 Latest Update: Feb. 19, 1992

The Issue The issue for determination in this proceeding is whether Respondent failed to meet minimum standards of performance in the diagnosis and treatment of a patient by making a diagnosis without adequate x-rays, by continuing to repair and use a dental splint, and by failing to advise the patient that either a new splint or new treatment plan was needed.

Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed dentist in the state, holding license number DN 0005278. Respondent provided dental services to patient N.S. from February 21, 1984, through February 19, 1986. N.S. had periodontal problems, worn-down teeth, a bad bite, and previous restorations including bridge work. Respondent recommended a treatment plan that included periodontal surgery, bite reconstruction, and bite rehabilitation. The treatment plan recommended by Respondent was refused by N.S. N.S. wanted to look more presentable but wanted to avoid the cost of major bite reconstruction, periodontal surgery, or of having the previous bridge work reworked. On April 19, 1984, Respondent provided N.S. with a splint for teeth 7- 11 and cemented the splint in place. The splint was anterior porcelain fused to a metal crown on the five unit bridge. Respondent advised N.S. prior to the application of the splint that the splint was susceptible to fracture because of the patient's bad bite and that failure to follow the original treatment plan recommended by Respondent would lead to failure of the splint. The splint required repair on four occasions. When the splint first broke on August 10, 1984, it was sent to the laboratory and replaced. Thereafter, Respondent attempted to repair the splint when it broke. On November 6, 1985, a mandibular orthopedic repositioning appliance was provided to the patient by Respondent. The patient was subsequently treated by Dr. Michael D. Williams. The dental care provided to N.S. by Respondent was within acceptable standards. The recurring breakage that occurred on the splint was caused by excessive biting pressures and not by an improper fit of the splint. The patient's teeth were quite short and there was excessive pressure being placed on the patient's teeth as a result of the patient's bad bite. The patient suffered from traumatically induced osteoarthritis and showed signs of having temporomandibular joint disfunction. If the patient had agreed to bite reconstruction and rehabilitation, the patient's bite could have been opened up, and the outcome improved. The x-rays taken by Respondent provided a sufficient basis for Respondent's diagnosis. The x-rays included panoramic x-rays and transcranial x-rays.

Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that Petitioner should enter a Final Order finding Respondent not guilty of the allegations in the Amended Administrative Complaint. RECOMMENDED this 3rd day of September 1991, in Tallahassee, Leon County, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1991.

Florida Laws (2) 120.57466.028
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