The Issue Whether the Respondent's paramedic license should be disciplined based upon alleged violations of Sections 401.411(1)(a) and (k), Florida Statutes.
Findings Of Fact Petitioner, HRS, Office of Emergency Medical Services (EMS), is the state agency which certifies and disciplines emergency medical technicians (EMTs) and paramedics in Florida pursuant to Chapter 401, Florida Statutes (F.S.) and Chapter 10D-66, Florida Administrative Code (F.A.C.). Respondent, Joseph L. Riggall, was initially certified as a paramedic in Florida under Section 401.27 and Rule 10D-66.057, F.A.C., in 1990, and was last recertified by EMS for the biennial period December 1, 1992 through December 1, 1994 pursuant to an application he submitted to the department through its agent on October 25, 1992. Respondent Riggall has not filed for recertification as a paramedic in Florida subsequent to the automatic expiration of his certification on December 1, 1994. A paramedic is a medical paraprofessional authorized under Florida law and administrative rules to administer advanced life support treatment with respect to life-threatening medical emergencies. Florida law defines advanced life support to include the use of techniques such as endotracheal intubation, the administration of drugs or intravenous fluids, telemetry, cardiac monitoring and cardiac defibrillation. A paramedic is authorized to perform invasive techniques in order to help save lives threatened by medical emergencies or severe injuries. As a paramedic, Respondent has a responsibility to the public, HRS-EMS and his employer, Polk County Emergency Medical Services, to perform his patient care duties without being impaired by alcohol, habit forming drugs or controlled substances. Respondent was employed by Polk County Emergency Medical Services for a period of time, including March 1994. Respondent was arrested on March 14 1994 in Polk County, Florida, on charges of prescription forgery to obtain controlled substances. HRS-EMS began an investigation of Respondent on March 23, 1994 based upon a complaint. In early March, 1994, Respondent reported to his shift supervisor that on March 11, 1994, while he was on duty as a paramedic, all of the controlled substances (morphine and Valium) had been stolen and were missing from his ambulance stationed at Fort Meade, Polk County, Florida. Respondent's supervisor immediately requested that Respondent submit to a drug test at Polk General Hospital. Respondent complied. Respondent was drug tested at approximately 12:45 a.m., March 12, 1994 at Polk General Hospital. The results of the tests taken at Polk General Hospital, and submitted to Metpath Laboratory for testing on samples from Respondent's serum and blood revealed a very high level of morphine (opiates) in Respondent's bloodstream. The level of opiates in his blood was greater than 1,999 mcg/1 and confirmed by immunoassay by the testing laboratory. Respondent admitted to the use of prescription opiate medication on March 11 and 12, 1994 while on duty as a paramedic. As a result of the drug testing of Respondent conducted the evening of March 11 and continuing the morning of March 12, 1994, and Respondent's arrest on March 14, 1994 on other charges related to improperly obtaining controlled substances or prescription medications, the Polk County EMS Medical Director rescinded Respondent's ability to function under the medical director's medical license. Furthermore, Respondent's employer, Polk County EMS, suspended Respondent without pay from his position as a paramedic with Polk County. Subsequently, Polk County EMS discharged Respondent, after providing a pre- determination conference, on August 26, 1994. HRS-EMS issued an Administrative Complaint, dated July 18, 1994, charging Respondent with a violation of EMS statutes, in particular Section 401.411(1)(a) and (k), Florida Statutes by having tested positive to controlled substances while on duty as a paramedic for Polk County EMS, March 12, 1994. HRS-EMS has adopted an "impaired" EMTs or paramedics policy and program pursuant to Rule 10D-66.0571, F.A.C.. While the administrative complaint tracks the department's impaired practitioner's rule and provided notice to Respondent relative to the rule, Respondent failed to take advantage of this beneficial program. Under the impaired practitioner's rule of HRS-EMS, a paramedic who becomes impaired as a result of drug or alcohol use or addiction may avoid administrative sanction by performing voluntary activities including those listed in the department's administrative complaint against Respondent. Respondent reported for duty as a paramedic while taking a level of controlled substances which impaired his ability to safely provide care to patients.
Recommendation Based on the foregoing, it is RECOMMENDED as follows: 1. The paramedic certification of Respondent be revoked and an administrative fine of one thousand ($1,000) dollars for the violation of paramedic certification requirements be imposed. It is further RECOMMENDED that should Respondent reapply for certification as a paramedic or EMT in Florida, he be required to submit to, and successfully complete, the conditions set forth in Rule 10D-66.0571(2), Florida Administrative Code, and pay the administrative fine recommended above, prior to recertification. DONE and ENTERED this 15th day of February, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 15th day of February, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 (in part), 19, 20, and 21. Rejected as subsumed or covered in the Preliminary Statement: paragraphs 12, 13, 14, 15, 16, 17, 18, and 22. Respondent has not submitted proposed findings of fact. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert P. Daniti, Esquire Emergency Medical Services Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301 Joseph L. Riggall 13711 Hatchienha Road Haines City, Florida 33844
The Issue The issue in this case is whether Respondent, Joseph Ovadia, M.D., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Health, on August 26, 2002, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. Respondent, Joseph Ovadia, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 0046214. At the times material to this matter, Dr. Ovadia was on staff at Homestead Hospital, with emergency "on-call" responsibilities. Although not certified by the Board of Medicine (hereinafter referred to as the "Board"), Dr. Ovadia specialized in orthopedic surgery, with sub-specialties in joint reconstruction, and shoulder and hand surgery. Dr. Ovadia received his medical degree from McGill University in Canada. He completed an internship/residency in orthopedic surgery at the Department of Orthopedics at New York University Medical Center, completed a clinical assistantship in London, England, and has been licensed to practice in Florida since 1985. Dr. Ovadia is a Medicare and Medicaid provider with approximately 30 percent of his practice devoted to Medicaid patients. As a result of the incidents involved in this matter, Dr. Ovadia's privileges at Homestead Hospital were revoked in 1998. Dr. Ovadia has not been disciplined by the Board. He has made one malpractice payout of $30,000.00 in 1986. The Department's Administrative Complaint and Dr. Ovadia's Request for Hearing. On August 22, 2002, the Department filed a three-count Administrative Complaint against Dr. Ovadia before the Board alleging that his treatment of three patients, identified in the Administrative Complaint as W.G., F.S., and W.L, constituted 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 recognized acceptable treatment will hereinafter be referred to as the "Standard of Care"), a violation of Section 458.331(1)(t), Florida Statutes. On or about October 3, 2002, Dr. Ovadia executed an Election of Rights form, indicating that he disputed the allegations of fact contained in the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.569(2)(a), Florida Statutes. Dr. Ovadia's request for a formal administrative hearing was filed by the Department with the Division of Administrative hearings. Treatment of Patient W.G. On August 21, 1997, W.G., who was 53 years of age at the time, presented to Homestead Hospital's emergency room. W.G. arrived a little after 7:00 p.m. (2100 hours). At the time of his arrival and throughout his stay in the emergency room, W.G.'s condition was not life-threatening. Dr. Ovadia was acting as the on-call orthopedic surgeon for Homestead Hospital on August 21, 1997, at all times relevant to the treatment of W.G. W.G. presented with a severe laceration (3 centimeters long) to his right thumb which had been caused by an electric saw blade. W.G. was examined by an emergency room physician1 who concluded that W.G. had a lacerated flexor tendon in his right thumb. The emergency room physician determined that it was necessary to consult with Dr. Ovadia concerning W.G.'s injury. The emergency room physician ordered that W.G. be treated with IV antibiotics, that he be given a tetanus shot, and that x-rays be taken of his thumb. Although there is no note in the medical records, W.G.'s wound was cleaned by the emergency room staff, based upon W.G.'s testimony. The x-ray of W.G.'s thumb indicated that he had a comminuted fracture. The x-ray was taken at 7:18 p.m. (1918 hours), but the observation concerning the x-ray was apparently not made until the following day, August 22, 1997, at 11:17 a.m. Petitioner's Exhibit 2, Page 300. A notation at 9:50 p.m. (2155 hours), indicates that "MD on call [called] ortho Ovadia . . . ." There was no direct testimony from the nurse or physician's assistant who made this note that the he or she actually spoke to Dr. Ovadia or whether Dr. Ovadia was only paged. The following note, however, made at 9:55 p.m. (2255 hours), only five minutes after the first note, indicates that the nurse spoke with Dr. Ovadia at 9:55 p.m. Lacking direct evidence as to what took place at 9:50 p.m., an inference is drawn that Dr. Ovadia did not talk with anyone from the emergency room until 9:55 p.m. and that the first notation relates only an effort to page Dr. Ovadia at 9:50 p.m. At 9:55 p.m., Dr. Ovadia was informed by a nurse or physician's assistant that W.G. had been diagnosed with a severe laceration of the flexor tendon of his right thumb. Rather than indicating that he would come to the emergency room to assess the patient, Dr. Ovadia ordered a pressure bandage to be applied to W.G.'s hand and that W.G. be told to come to Dr. Ovadia's office the next morning for follow-up. Although Dr. Ovadia did not come to the hospital to clean and "drain" the wound, or order staff to do so,2 it was reasonable for him to have assumed that the wound had been cleaned by the emergency room staff,3 as it had been, and there was no medical need to drain the wound because it was an open wound.4 Dr. Ovadia's orders at 9:55 p.m. were not acceptable to the unidentified emergency room physician who was treating W.G. at the time. Dr. Ovadia was, therefore, telephoned "several"5 more times. The evidence failed to prove clearly and convincingly that Dr. Ovadia was specifically requested to come to the emergency room to attend to W.G. or that he refused any request to come to the emergency room to take over the care of W.G.6 Despite the failure of the evidence to prove that Dr. Ovadia refused to come to the hospital to treat W.G., it is clear that Dr. Ovadia did not come to the emergency room to assess W.G.'s condition. Instead, at 10:55 p.m. (2255 hours), apparently after the last of the "several" calls made to Dr. Ovadia, Dr. Ovadia ordered that W.G. be admitted to the hospital. Although the medical notes indicate that Dr. Ovadia's orders at 9:55 p.m. were not acceptable to the emergency room physician, there was no evidence to prove why his or her orders were considered unacceptable. The evidence also failed to prove that the emergency room physician's displeasure with those orders was ever reported to Dr. Ovadia or that the emergency room physician was so displeased that he or she personally contacted Dr. Ovadia to discuss the situation. The only direct evidence, which is uncontroverted by the Department, concerning the dispute between Dr. Ovadia and the emergency room on August 21, 1997, came from Dr. Ovadia. Dr. Ovadia believed that the emergency room physician, upon determining that W.G. had suffered a laceration to the flexor tendon, believed that Dr. Ovadia should attend to the injury immediately. Dr. Ovadia, however, realized that immediate attention to the flexor tendon injury was not advisable or necessary until at least the next morning. Dr. Ovadia's opinion about the lack of need for immediate attention to the flexor tendon laceration was agreed with by all of the physicians who testified in this matter. The medical records do not include an order from Dr. Ovadia to debride the wound, regardless of the proper definition of the term, and Dr. Ovadia admits that he did not give such an order. W.G. left the hospital at approximately 11:50 p.m. (2350 hours).7 W.G.'s hand was ultimately repaired a few days later at another hospital. Allegations of Wrongdoing Concerning W.G. In Count One of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating W.G. in that he failed to do the following specific acts: come to the hospital to personally examine or treat Patient W.G. on or about August 21, 1997; clean and drain Patient W.G.'s lacerated thumb; or order that other hospital personnel clean and drain the laceration. The Experts' Opinions; The Standard of Care At least five physicians, including Dr. Ovadia, testified concerning the appropriate Standard of Care required in the treatment of W.G. None of the five physicians were consistent; not even the two experts called by the Department, Steven Lancaster, M.D., and Frank Cook, M.D. Dr. Lancaster opined that the appropriate Standard of Care for the treatment of W.G. was: An open fracture with a dirty wound would generally be treated by a reasonable orthopedic surgeon in a similar situation by some type of irrigation [cleaning] and debridement to minimize the chances of infection occurring at a later point. To address the flexor tendon on a delayed basis is reasonable, and as well to address a fracture on a delayed basis is reasonable. But the open wounds [sic] having not been irrigated, debrided, or assessed until the following day would be unacceptable. Petitioner's Exhibit 1, Page 14, Lines 1-9. Dr. Lancaster goes on to opine that Dr. Ovadia failed to meet this Standard of Care by failing to go the hospital to assess, irrigate [clean], and debride the wound. Id. Dr. Cook, opined that the appropriate Standard of Care for the treatment of W.G. was: . . . . Essentially in the W.G. case my opinion would be the correct treatment would be to debride and clean the wound, and to close the skin. Appropriate antibiotics and appropriate prophylactic for tetanus. Transcript, Volume 1, Page 95, Lines 5-9. Dr. Cook agreed that the foregoing Standard of Care for W.G. had been met in all respects except that the skin over the wound was not closed: If you have an exposed flexor tendon, I think you need to close the skin over that for the simple reason of what we discussed. . . . The tendon is much healthier with the skin closed. It doesn't dry out. Transcript, Volume 1, Page 137, Lines 12-17 Dr. Cook, while he discussed Dr. Ovadia's responsibility for making sure W.G.'s wound was cleaned,8 ultimately concludes that it is only the failure to either close the wound himself or order that someone in the emergency room to do so that constitutes a violation of the Standard of Care: Q Is it your testimony that Dr. Ovadia fell below the standard of care because he did not come to see [W.G.] between 10 and 12:00? A No, ma'am. Q I guess when all is said and done, the remaining criticism of Dr. Ovadia is that he did not temporarily close this wound? A That the skin was not temporarily closed either by himself or one of the staff members. (Emphasis added). Transcript, Volume 1, Page 141, Lines 12-20. Dr. Lancaster's opinion that Dr. Ovadia violated the Standard of Care by not going to the hospital to irrigate or clean the wound is not supported by Dr. Cook's opinion. Ultimately, Dr. Cook opined that Dr. Ovadia was not required to go to the hospital, but that any treatment necessary for W.G. could have been ordered by Dr. Ovadia. Dr. Cook ultimately opined that the only treatment required for W.G. which was not provided was the closure of the wound, not the cleaning of the wound. As to Dr. Lancaster's opinion that Dr. Ovadia violated the Standard of Care by not going to the hospital to "debride" the wound, this opinion is also contrary to Dr. Cook's opinion for the same reasons stated in Finding of Fact 32 and, more importantly, is contrary to any allegation in the Administrative Complaint. There is simply no allegation in the Administrative Complaint that Dr. Ovadia violated the Standard of Care by failing to "debride" the wound. Finally, as to the allegation that Dr. Ovadia violated the Standard of Care by failing to go to the emergency room to "assess" W.G., as opined by Dr. Lancaster, this opinion was also contradicted by Dr. Cook. Dr. Cook did not agree that it was necessary for Dr. Ovadia to go to the hospital for anything, even the one error in treatment Dr. Cook believes Dr. Ovadia made: failing to close the wound. While Dr. Cook opined that the wound should have been closed, he was of the opinion Dr. Ovadia could have met this responsibility by either going to the hospital or by giving an appropriate order. It cannot, therefore, be concluded that Dr. Ovadia was required to go to the hospital for any purpose. Finally, although Dr. Cook's testimony about the need for the wound to be closed was convincing, the Administrative Complaint does not contain an allegation that Dr. Ovadia failed to meet the Standard of Care for failing to ensure, personally or through an order, that the wound was closed. The evidence failed to prove that the Standard of Care for the treatment of W.G. required that the wound be "drained." The evidence failed to prove that Dr. Ovadia's treatment of W.G. violated the Standard of Care as specifically alleged in the Administrative Complaint. Treatment of Patient F.S. On the same night that W.G. presented to the emergency room, August 21, 1997, another patient, F.S., a 26-year-old male, also arrived. F.S. was first seen in the Homestead Hospital emergency room at approximately 6:51 p.m. (1851 hours). F.S. had a 6-centimeter razor knife cut across the palm of his left hand. The cut occurred when F.S. fell from a ladder with the razor knife in his hand. The wound was not limb- or life-threatening. F.S. was first seen by Jim Long (hereinafter referred to as "PA Long")9, a physician's assistant in the emergency room. According to PA Long's notes, the bleeding from F.S.'s hand was "uncontrollable". This note, however, conflicts with the emergency room nurse notes, which indicate that, upon his arrival, F.S.'s "bleeding ha[d] stopped." Based upon the weight of the evidence, it is concluded that the nurse notes are correct. The nurses were more likely the first to see F.S. and note his condition, the note is time specific, indicating that the bleeding had stopped "when he came in" and the note appears just before the first time specific entry of 7:15 p.m. (1915 hours). PA Long's notes on the other hand are not time specific until his note of 9:40 p.m. (2140 hours). F.S. was given IV antibiotics and a shot for tetanus. At approximately 7:15 p.m. (1915 hours), F.S. was "set up for suture . . ." by PA Long. Although there was no indication in the notes as to whether the wound was bleeding at this time, logic dictates the conclusion that it was not bleeding, since PA Long was attempting to suture the wound. At some time during the suturing process, the wound began to bleed uncontrollably. As of approximately 7:45 p.m. (1945 hours), PA Long was "unable to stop bleeding." Once the wound began to bleed, it is likely that pressure was applied to it in an effort to stop the bleeding. These efforts were, however, unsuccessful. Consequently, Dr. Ovadia, who it will be recalled, was the on- call orthopedic surgeon the night of August 21, 1997, was called for a consultation. At some point after PA Long attempted unsuccessfully to suture F.S.' wound, a Dr. Sission,10 who was one of two physicians who saw F.S. in the emergency room, discussed the case with Dr. Ovadia. PA Long's note concerning this call indicates that the time of the call was either 8:40 p.m. (2040 hours) or 9:40 p.m. (2140 hours). The evidence failed to prove what the nature of this telephone conference was. In particular, the evidence failed to prove whether Dr. Sission requested that Dr. Ovadia come into the emergency room to assess and treat F.S. or whether he was satisfied with Dr. Ovadia's response. At approximately 9:45 p.m. (2145 hours), at least two hours after the wound began to bleed uncontrollably, PA Long spoke to Dr. Ovadia. The nurse's notes indicate that the conversation took place at 9:55 p.m. (2155), the same time noted in the notes concerning W.G. that Dr. Ovadia was telephoned about W.G. Dr. Ovadia indicated that he did not want to come to the hospital to see F.S. Instead, he ordered that a pressure bandage be applied and that F.S. be instructed to see Dr. Ovadia in his office in the morning. Dr. Ovadia's order at 9:45 p.m., like his order with regard to W.G., was not acceptable to the "ER physician" treating F.S. at the time. Dr. Ovadia was, therefore, telephoned "several"11 more times. Although the evidence failed to prove that Dr. Ovadia was specifically requested to come to the emergency room to attend to F.S., the evidence did prove that Dr. Ovadia refused to come to the emergency room to take over the care of F.S.12, and that Dr. Ovadia did not in fact come to the emergency room to assess F.S.'s condition. Instead, at 10:55 p.m. (2255 hours), the same time he ordered W.G. admitted to the hospital, Dr. Ovadia ordered that F.S. be admitted to the hospital, despite the fact that it had been three hours since the wound had begun to bleed again. Unlike W.G., during at least one of the follow-up calls to Dr. Ovadia, Dr. Ovadia was told that emergency room staff did not believe that applying a pressure bandage was adequate. Because pressure had been applied after the wound began to bleed without any apparent effect and because the emergency room personnel were concerned that F.S. had cut part of one of the arteries in his hand, the emergency room staff told Dr. Ovadia that his orders were not sufficient. See Dr. Cook's testimony at Lines 3-12, Page 102, Transcript, Volume 1. F.S. left the hospital at approximately midnight.13 Allegations of Wrongdoing Concerning F.S. In Count Two of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating F.S. in that he failed to do the following specifically alleged acts: come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997; or stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm. The Experts' Opinions; The Standard of Care Again, five physicians, including Dr. Ovadia, testified concerning the appropriate Standard of Care required in the treatment of F.S. As was the case with the experts' testimony about the Standard of Care for W.G., the five physicians who testified about F.S. gave inconsistent testimony. Unlike the testimony concerning W.G., however, the testimony of the two experts called by the Department, Dr. Lancaster and Dr. Cook, was consistent to the extent they testified about at least one of the specific acts alleged in the Administrative Complaint (paragraph "a." quoted in Finding of Fact 49, supra. Dr. Lancaster opined that Dr. Ovadia violated the appropriate Standard of Care for the treatment of F.S.: Q Could you please express you opinion as to this case? A My opinion is that Dr. Ovadia, as the orthopedic surgeon that was contacted being on-call for a hemorrhaging laceration, fell below the standard of care by not coming to the hospital to assess that or take appropriate actions to treat that. Q And why would you believe it necessary to come to the hospital to see this patient? A My understanding of the injuries were that this was a knife wound to the palm with arterial-type bleeding that the emergency room physician had assessed and did not feel comfortable with for fear of continued hemorrhage. That would represent potentially a case where an individual could bleed out from a wound like that. Most of those do not. But the idea would be that this would need to be assessed by someone with more specialization than the emergency room physician to make a decision whether this should be repaired, not repaired, or what direction they should take. By failing to come to the hospital when asked as an orthopedic surgeon on call, this could then fall below the standard of care. Petitioner's Exhibit 1, Page 16, Lines 16-25, and Page 17, Lines 1-10. Dr. Cook opined the following concerning the appropriate Standard of Care for the treatment of F.S. and Dr. Ovadia's failure to meet that Standard: Q We'll go into detail, but at this point, were you able to formulate a medical opinion [concerning F.S.]? A Yes. . . . . Q What would that opinion be? A My opinion was that the emergency room felt uncomfortable dealing with this patient injury. It was their opinion that he cut part of, one of the arteries in the hand. It's called the distal palma arch. It's part of that arterial circulation in the hand. And despite putting pressure dressings on it, they still felt uncomfortable that the bleeding was [un]controlled. That's why the numerous phone calls requesting orthopedic back up or assessment were requested. Transcript, Volume 1, Page 101, Lines 22-25 and Page 102, Lines 1-12. While Dr. Ovadia's expert witness, Jorge Obray, M.D., disagreed with the ultimate opinions of Drs. Lancaster and Cook concerning whether Dr. Ovadia met the Standard of Care with regard to F.S., he did so essentially because of his conclusion that there was insufficient time before Dr. Ovadia should have realized that he should come in to assess and treat F.S. and when F.S. left the hospital. Dr. Obray did agree, however, that, if the bleeding had not been stopped by a pressure bandage within an hour, Dr. Ovadia should have come in and dealt with the patient: Q How long would you expect to wait until the bleeding stopped? A When I use a pressure dressing, I put them for one hour, take them off and see if it stops bleeding. If it stops bleeding, I put a lighter dressing on it and they go home. Q And if the wound for some reason did not stop bleeding, what would be your opinion of treatment then? A Well, then I could have to come in and actually myself do something to stop the bleeding, which usually means put a suture on the arterial arteries, ligate the arteries to control the bleeding. Respondent's Exhibit 4, Page 24, Lines 1-14. This opinion is not inconsistent with the opinions expressed by Drs. Lancaster and Cook. Dr. Cook also agreed that waiting an hour after applying a pressure bandage would not be unreasonable: Q How soon would you have expected [Dr. Ovadia] to come in once he was first called in this case? A With the bleeding hand I think an hour's time is not unreasonable. Transcript, Volume 1, Page 150, Lines 1-6. The difference in the ultimate opinion of Dr. Obray and the ultimate opinions of Drs. Lancaster and Cook is due to Dr. Obray's conclusion that insufficient time had passed between the time Dr. Ovadia ordered a pressure dressing and when he would have been expected to come see F.S. Dr. Obray's factual distinction is not, however supported by the record. Dr. Ovadia knew that F.S.'s hand was bleeding for over three hours when he ordered F.S. admitted to the hospital and it was another hour after that before F.S. left the hopsital: 7:45 p.m.: F.S. began to bleed and unsuccessful efforts were made by the emergency room staff to stop the bleeding; 9:55 p.m.: Just over two hours after F.S.' hand began to bleed, Dr. Ovadia was informed of the situation. Dr. Ovadia ordered a pressure bandage; 10:55 p.m.: During the hour after Dr. Ovadia ordered a pressure bandage, and more than three hours after the bleeding started, "several" calls were made to Dr. Ovadia. Concern over Dr. Ovadia's order to apply a pressure bandage were related to Dr. Ovadia. Dr. Ovadia ordered F.S. admitted; and 11:55 p.m.: Finally, although the evidence failed to prove whether the bleeding stopped at some time after 10:55 p.m., an hour passed before F.S. left the hospital. Based upon the foregoing, and the consistent opinions of Drs. Lancaster and Cook, it is concluded that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to "come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997, as alleged in the Administrative Complaint, subparagraph "a." quoted in Finding of Fact 49, supra. The evidence failed to prove, however, that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to "stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm." No expert opinion to support such a finding was given in this matter. Treatment of Patient W.L. On October 5, 1997, patient W.L., a 52-year-old male, was brought to the emergency room of Homestead Hospital at approximately 5:34 p.m. (1734 hours). W.L. had been involved in a severe motorcycle accident and was in a great deal of pain when he arrived. He had suffered multiple injuries, including a limb-threatening open posterior compound dislocation of his right elbow. The injury was serious and required reasonably expeditious treatment. Dr. Ovadia was the on-call orthopedic surgeon at the time of W.L.'s arrival. Dr. Ovadia was in an operating room performing surgery on another patient when he was informed of W.L.'s condition. After completing the surgery, Dr. Ovadia examined W.L., ordered that he be given pain relief medicine, and recommended immediate surgery for W.L.'s dislocated elbow, to which W.L. gave verbal consent at approximately 7:45 p.m. (1945 hours). Dr. Ovadia arranged for the necessary surgery personnel and waited while Leonard D. Benitez, M.D., the on-call general surgeon, was contacted for clearance of the surgery. W.L. was reported in the Emergency Department Nursing Assessment form to be resting comfortably as of 9:00 p.m. (2100 hours), which was about the time that Dr. Benitez finally arrived at the hospital. Dr. Benitez, Dr. Ovadia, and W.L. came together in the CT scan room. A verbal altercation then ensued, between Drs. Benitez and Ovadia, which ended with Dr. Ovadia leaving the CT scan room. Claudette Pinto,14 the nurse supervisor that evening, left the CT scan room with Dr. Ovadia. Ms. Pinto told Dr. Ovadia that she would contact "administration to report the verbal altercation."15 Dr. Ovadia went to the lounge to wait for Ms. Pinto to report back. After waiting in the lounge without any word from Ms. Pinto, Dr. Ovadia contacted Ms. Pinto, who told him that she had called Dr. Russell, the Chief of Surgery for Homestead Hospital and reported the incident. Ms. Pinto told Dr. Ovadia that Dr. Russell was dismissing him from the care of W.L. and that W.L. would be transferred to another hospital for orthopedic care.16 At 9:30 p.m. (2130 hours), Dr. Ovadia spoke with Dr. Russell to confirm Ms. Pinto's message. Dr. Russell confirmed Ms. Pinto's report: Dr. Russell dismissed Dr. Ovadia from further care of W.L. and took over responsibility for arranging for W.L. to be transferred to another hospital.17 Following his dismissal from the care of W.L. by Dr. Russell, Dr. Ovadia left Homestead Hospital and went home. Although his care of W.L. had been terminated by Dr. Russell, his on-call status had not been. Dr. Ovadia, therefore, remained on-call. Emergency room staff were eventually instructed to contact Dr. Ovadia to ask him whether he "would like to resume care of W.L."18 Dr. Ovadia was first contacted by emergency room staff after being dismissed from W.L.'s care and being informed that W.L. would be transferred to another facility, at approximately 11:35 p.m. (2335 hours). This telephone call came approximately two hours after Dr. Ovadia had been dismissed by Dr. Russell. Dr. Ovadia was offered the opportunity to resume care of W.L. Dr. Ovadia informed whoever made the telephone call that he could not do so because he had been removed from W.L.'s care by Dr. Russell.19 Dr. Ovadia indicated that Dr. Russell would have to instruct him to return. Although Dr. Ovadia was surprised that W.L. was still at Homestead Hospital, he still had no authority to counteract Dr. Russell's orders. At approximately 1:00 a.m. (0100 hours), October 5, 1997, Dr. Russell telephoned Dr. Ovadia, as requested. Dr. Russell asked Dr. Ovadia if he would like to resume care of W.L., to which Dr. Ovadia responded "no." Dr. Russell did not tell Dr. Ovadia that he was being reassigned to W.L.'s care or that Dr. Russell no longer planned to transfer W.L. to another facility. At 1:40 a.m. (0140 hours) a nurse's note indicates that Dr. Ovadia was "contacted again [apparently by Dr. Russell] regarding Pt acceptance. Pt was not accepted by Dr. Ovadia." [Emphasis added]. Between the 11:35 p.m. and the 1:40 a.m. nurse's notes and after the 1:40 a.m. note, there follows a series of notes, all of which report the status of W.L., which Dr. Ovadia remained unaware of, indicating the confusion caused by Dr. Russell's decision to transfer W.L. to another facility, describing the ultimate frustration of the emergency room nursing staff, and explaining the ultimate problem with caring for W.L., the inability to obtain insurance authorization for his care:20 0005 Dr. Benitez signs admit orders for Homestead hospital if procedure for ortho surgery can be performed at Homestead hospital . . . . 0020 Awaiting instructions concerning pt transfer or admit instructions. Pt resting comfortably still on spine board. IV intract f/owing KVO . . . . 0200 Pt resting comfortably, multiple facilities, multiple physicians contacted. No admit, no transfer, no surgery, no change in status of Pt care. 0220 . . . . No change in transfer admit status. . . . 0300 . . . No status change regarding admit transfer status. . . . 0325 Finally!! Admit orders provided by Dr. Benitez by telephone. . . . 0331 Pt to be transferred to ICU WEST 3 . . . . 0325 HMO Primary Care provided Dr. Orlando Arana gave authorization for Dr. Benitez to admit patient to Homestead Hospital. 0410 . . . Pt will be physically transferred when bed has been cleaned. . . . . . . . 0530 Pt transferred to hospital bed for comfort. . . . Petitioner's Exhibit 2, Pages 76-77. Although W.L.'s orthopedic injuries, which required immediate care, remained untreated until the day after arriving at Homestead Hospital, Dr. Ovadia's last instruction concerning W.L. was that he was removed from W.L.'s care, that W.L. would be transferred to another facility, and that, if he wished to, he could resume care for W.L., an offer which Dr. Ovadia told Dr. Russell he declined. At no time was Dr. Ovadia informed that Dr. Russell had reversed his decision to transfer W.L. to another facility, even after declining to resume care or that Dr. Russell had not been able to arrange for W.L.'s transfer to another facility. It was not until the day after W.L. first arrived at the hospital that Dr. Ovadia learned that W.L. had not been transferred. Allegations of Wrongdoing Concerning W.L. In Count Three of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating W.L. in that: . . . . Respondent failed to come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon. The Experts' Opinions; The Standard of Care Again, the same five physicians testified concerning the appropriate Standard of Care required in the treatment of W.L. As was the case with the physicians who testified about the Standard of Care for W.G. and F.S., the five physicians who testified about W.L. gave inconsistent testimony concerning the Standard of Care. More importantly, the opinions of the experts called by the Department were inconsistent, based upon facts not in evidence, or involved errors in treatment not alleged in the Administrative Complaint. Dr. Lancaster testified as follows concerning the appropriate Standard of Care and Dr. Ovadia's failure to meet it: Q Could you express your opinion as to this case. . . . A I have two opinions in regard to the case. The first is that Dr. Ovadia had a duty to the patient once he saw him to treat him orthopedically. And the only reason that he could be released from that is if there was a transferring orthopedic surgeon, which there wasn't. As such, his removal from the case would fall below the standard of care. In addition, being an on-call orthopedic surgeon and being requested to come to the hospital to take care of an orthopedic problem and not doing so would, likewise, fall below the standard of care. Petitioner's Exhibit 1, Page 4, Lines 13-25 and Page 5, Line 1-2. Dr. Lancaster also opined that it was a violation of the Standard of Care for Dr. Ovadia not to resume care of W.L. because he was "an on-call physician, who [was] required to take care of any orthopedic problems at the hospital if so requested by the emergency department." Petitioner's Exhibit 1, Page 5, Lines 24-25, and Page 6, Lines 1-2. Finally, Dr. Lancaster opined that Dr. Ovadia failed to meet the Standard of Care because he failed to follow-up on the passing of the care of W.L. to either another hospital or to another physician, an opinion shared by Dr. Cook. Dr. Cook opined as follows concerning the treatment of W.L.: Q What would a reasonably prudent physician under the same circumstances talking about orthopedics in this circumstance, do in that situation; in light of the knowledge of the facts of this case? A It would be my opinion that when you are called the second time at home and the conversation just is somewhat that, gee, we don't have anybody else to take care of this orthopedic problem. It is because it's in the middle of the night or because the guy doesn't have any money, or because it's too complex for somebody else to handle. Then, I think the reasonably prudent physician assistant is trying to find someone else to care for the patient, and failing that I think the ball is still in your court, it's still on your shoulders. Whatever metaphor you want to use, you need to come in and take care of the situation. Albeit, even to say to the patient, look I know this seems very confusing what's going on here tonight, but the gist of the matter is that this injury needs to be cared for immediately, I'm going to take care of that for you and then tomorrow you're going [to] meet Dr. XYZ and he or she is going to care for you the rest of the time. Or you pick up the telephone and you make the telephone calls and you find somebody or you assist in the transfer. (Emphasis added). Transcript, Volume 1, Page 115, Lines 3-25, and Page 116, Lines 1-4. While the foregoing opinion supports the charges of the Administrative Complaint, Dr. Cook goes on to testify on cross examination as follows: My opinion is, and my problem with the case is, who was looking out for the patient? There is no question that Dr. Ovadia had every reason to be upset with the way this case went initially. There was no question he was compromised by the acts of the chief of the staff or the chief of surgery, whatever the case may be, in both, in front of the rest of the staff members in the emergency room, in front of the patient, just in his own ability to take care of the patient. These is no question, I, as a physician, would have been upset by the whole event. And then to get called later that night and they say, oh, by the way, would you mind coming in and taking care of the mess I've made? But at some point in time when we assume the mantel of a physician, we have to assume that we are going to look out for the patient and put our own egos aside -- that may not be the right term here -- and that's what my problem is. Who was looking out for the patient? I don't expect Dr. Ovadia who was not taking care of the patient, but I do expect that he would have gotten on the phone and called his very best friends and said, hey, I got a heck of a problem. I do expect that he could have called another hospital and said the same thing himself, not relying upon the hospital administrator or did not rely on the chief of staff, who has already shown what a problem he was rather than a solution. That's the way I come down. I know there is not textbook that's going to back that up, it's the way I come down to. (Emphasis added). Transcript, Volume 1, Page 166, Lines 7-25, and Page 167, Lines 1-12. Dr. Cook also testified about a number of actions that Dr. Ovadia could have taken. See, e.g., Transcript, Volume 1, Page 117, Lines 1-25. The actions which Dr. Cook testified Dr. Ovadia could have taken were not, however, actions alleged in the Administrative Complaint and, therefore, are not relevant to this matter. The first of Dr. Lancaster's two opinions, quoted in Finding of Fact 75, supra, that Dr. Ovadia was never appropriately removed from caring for W.L., is rejected because it is inconsistent with the opinion offered by Dr. Cook and is not an act for which Dr. Ovadia has been charged in the Administrative Complaint. The second of Dr. Lancaster's two opinions, also quoted in Finding of Fact 75, supra, is rejected because Dr. Lancaster's understanding of the facts was inconsistent with the evidence presented at hearing. Dr. Lancaster testified that it was his understanding that Dr. Ovadia was contacted after he left the hospital and informed that W.L. had been cleared for surgery and, therefore, Dr. Ovadia was being requested to return. The evidence failed to prove that Dr. Ovadia had been relieved temporarily until W.L. was cleared for surgery or that Dr. Ovadia was "requested" to return; rather, Dr. Ovadia was "offered" an opportunity to return. More importantly, Dr. Lancaster's opinion, given its most generous interpretation, is not supported by Dr. Cook's opinion. Dr. Cook, while initially testifying that Dr. Ovadia failed to meet the Standard of Care because he did not come to the hospital and "take care of the situation" (Finding of Fact 78) later testified that Dr. Ovadia failed to meet the Standard of Care because he failed to arrange for W.L.'s care, an action which did require Dr. Ovadia to come to the hospital (Finding of Fact 79). Therefore, to the extent that Dr. Lancaster opined that Dr. Ovadia should have come to the hospital, Dr. Cook ultimately retreated from such an opinion. As to the opinion of Drs. Lancaster and Cook that Dr. Ovadia failed to meet the Standard of Care by failing to ensure that another hospital or, more particularly, another orthopedic surgeon, had assumed responsibility for W.L.'s care, while their opinions were consistent and credible, their opinions relate to an error in treatment not alleged in the Administrative Complaint. This opinion cannot, therefore, support a finding that Dr. Ovadia failed to meet the Standard of Care in his treatment of W.L. in this proceeding. Finally, Dr. Lancaster's opinion that Dr. Ovadia failed to meet the Standard of Care because he did not resume care of W.L. even though he was "an on-call physician, who [was] required to take care of any orthopedic problems at the hospital . . . " must be rejected for two reasons: first, this opinion was not supported by Dr. Cook's opinions; and, secondly, and more importantly, this alleged error in treatment is not alleged in the Administrative Complaint Based upon the foregoing, it is concluded that the evidence failed to prove that Dr. Ovadia failed to meet the Standard of Care because he "failed come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon." Conclusion. The weight of the evidence in this case proved that Dr. Ovadia violated the Standard of Care as alleged in subparagraph 21.a. of Count Two of the Administrative Complaint. The evidence failed to prove clearly and convincingly that Dr. Ovadia violated the Standard of Care as alleged in Count One, subparagraph 21.b. of Count Two, or Count Three of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Joseph Ovadia, M.D., has violated Section 458.331(1)(t), Florida Statutes, as alleged in subparagraph 21.a. of Count Two of the Administrative Complaint; dismissing Count One, subparagraph 21.b. of Count Two, and Count Three of the Administrative Complaint; issuing a Reprimand to Dr. Ovadia; requiring the payment of a $5,000.00 administrative fine within a reasonable time after the Final Order is issued; placing Dr. Ovadia on probation for a period of two years; and requiring that Dr. Ovadia attend ethics courses relating to the practice of medicine as directed by the Board of Medicine. DONE AND ENTERED this 10th day of March, 2003, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2003.
Conclusions The Agency served the Petitioner with a Notice of Intent to Impose Late Fine dated March 24, 2009 notifying the Petition of its intent to impose an administrative fine in the amount of five thousand dollars ($5,000.00), attached hereto and incorporated herein (Ex. 1). Petitioner requested a formal hearing at the Department of Administrative Hearings. The Agency also served the Petitioner with a Notice of Intent to Deny dated May 15, 2009, notifying the Petitioner of its intent to deny its renewal application, a tached hereto and incorporated herein (Ex. 2). The Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 3) with the other party to these proceedings and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. The Notice of Intent to Impose Late Fine and Notice of Intent to Deny are superseded by this agreement. Filed July 2, 2009 3:19 PM Division of Administrative Hearings. Petitioner has paid an administrative fee in the amount of $2,000.00. Each party shall bear its own costs and attorney's fees. 9Ld..l. _ The above-styled cases are hereby closed. DONE and ORDERED this .;:l,?t:f.y of Leon County, Florida. , 2009, in Tallahassee, Holly enson, Secretar Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Tatiana Perez, Owner Lourdes Residence, Inc. 5770 SW 5th Terrace Miami, Florida 33144 (U.S. Mail) MaryAlice H. David Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Finance & Accounting Agency for Health Care Administration Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) Bernard E. Hudson Agency for Health Care Administration 2327 Mahan Drive, MS #46 Room #310 Tallahassee, Florida 32308 (Interoffice Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this theZ y y of 2009. fAgielnccy fhor HSealthhCa=re A=dministration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873
