The Issue Was Petitioner properly graded and given appropriate credit for his answers on the July, 1990 Florida Podiatric Medicine Licensure Examination (Florida Podiatry Examination).
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to the issues herein, Petitioner, Paul L. Sheehy, Jr., candidate No. 20017, was a candidate for licensure by examination as a Podiatrist, and the Board of Podiatry, (Board), was and is the state agency in Florida responsible for the licensing of Podiatrists and the regulation of the Practice of podiatric medicine in this state. Petitioner sat for the July, 1990 Florida Podiatry Examination on July 27, 1991. Petitioner obtained a score of 70.0 percent, representing 210 correct answers. A passing grade requires a score of 72 percent, representing 216 correct answers. Shortly before the beginning of the hearing, Respondent agreed to give Petitioner credit for questions 16 and 180 of Clinical I of the examination thereby raising his total score to 70.666 percent. At the beginning of the hearing, Petitioner withdrew his challenge to questions 22, 37, 87, 89, 104, 149, 176 and 178 of Clinical I of the examination and questions 3, 16, 22, 50, 67 and 53 of Clinical II of the examination. During the hearing Petitioner withdrew his challenge to question 27 of Clinical I and question 12 of Clinical II of the examination, leaving only his challenge to questions 103, 114, 138, 144 of Clinical I of the examination. The parties stipulated that the Petitioner was qualified and met all the requirements to sit for the July, 1990 Florida Podiatry Examination, and that Petitioner timely received a copy of the July 1990, Podiatric Medicine Licensure Examination Candidate Information Booklet (booklet). There is a lack of competent substantial evidence in the record to establish that the Florida Podiatry Examination given on July 27, 1990 was misleading in that it tested subjects or disciplines not covered or contained in the booklet, or that it was prejudicial as applied to Petitioner. The first question at issue is question 103 of Clinical I which stated: CASE HISTORY 44 In the exhibit book are photographs for this examination. Identify the photograph in the respective exhibit. 103. Which of the following answer choices is the best description of exhibit #11? Ganglion Cyst Verruca Melanoma Kaposi's Sarcoma Petitioner answered, C, Melanoma and the Respondent's answer was, B, Verruca. Petitioner admitted that his answer was incorrect. However, Petitioner contends that the question comes within the area of histology, an area not specifically mentioned in the booklet to be covered by the examination. Therefore, he was mislead by the booklet into not studying the area of histology. While the booklet does not specifically mention histology as an area of study to be covered in the examination, there were several other areas of study listed in the booklet which conceivably would have covered this question. Therefore, there has been no showing that the Respondent's failure to specifically list histology as an area of study mislead or prejudiced the Petitioner. The second question at issue is question 114 which stated: CASE HISTORY 45 An elderly obese male presents with an acutely inflamed first metatarsophalangeal joint. The pain began late last night and he awoke in severe pain. His past medical history reveals two previous such occurrences which resolved and went un- treated. He reports a history of chronic renal disease and mild hypertension. He presently takes no medication and has no known allergies. He denies use of alcohol and tobacco. Physical exam reveals an acutely inflamed, edematous 1st MPJ. A 3mm ulceration is present dorsally with white, chalky material exiting the wound. Laboratory studies reveal a CBC within normal limits and an elevated uric acid of 9.0mg/100ml. 114. Which of the following would you expect to find on microscopy of the synovial fluid? trapezoidal-shaped violet crystals absence of leukocytes needle-like birefringent crystals reflective hexagonal crystals and many leukocytes Petitioner answered D, reflective hexagonal crystals and many leukocytes. The Respondent's answer was C, needle-like birefringent crystals. Petitioner contends that none of the answers offered were entirely correct but that answer D was the most correct, while answer C was incorrect. Case History 45 would describe gout and pseudogout, but the key is the description of the fluid removed from the joint which is a white, chalky material found only with gout. Additionally, gout produces needle-like crystals (urate) that are negatively birefringent when view under crossed polarizing filters attached to a microscope. Leukocytes would be present in this case history but it would not produce reflective hexagonal crystals or trapezoidal-shaped violet crystals. Answers A and B are entirely incorrect, and although the presence of leukocytes is correct, it is not relevant because leukocytes are a normally found in any infection. Therefore, answer C is the correct answer, notwithstanding the absence of the word negative proceeding the word birefringent. The third question at issue is question 138 which stated: CASE HISTORY 49 A 27 year old athletic individual presents with a severely painful and swollen right ankle following a basketball injury the day before. There is severe ecchymosis and blister formation about the ankle. X-rays reveal (1) a displaced oblique spiral fracture of the lateral malleolus which runs anterior-inferior to posterior-superior at the level of the syndesmosis (2) transverse fracture of medical malleolus. There is gross dislocation and mal position of the talus. 138. If the initial treatment above were to fail, then treatment should consist of: immediate open reduction. wait 4-6 days, then perform open reduction and internal fixation. open reduction contraindicated at any time with this type of fracture. fusion of ankle joint. Petitioner answered A, immediate open reduction and the Respondent's answer was B, wait 4-6 days, then perform open reduction and internal fixation. The correct initial treatment for the patient would have been attempted close reduction as indicated by the correct answer to question 137 which Petitioner answered correctly. An attempted close reduction is an attempt to correctly align the fractured bone by manipulation as opposed to surgically opening the area and aligning the bone visually by touch which is the open reduction and internal fixation procedure. After an attempted alignment of the bone, an x-ray will determine if there is proper alignment. If there is proper alignment, then the area is immobilized with a cast or some other device until the fracture heals. If the x-ray shows that proper alignment of the bone has not been obtained (the initial treatment has failed) then open reduction and internal fixation would be proper provided the swelling, ecchymosis and blistering are not present. Otherwise, as in this case, the proper method would be to wait a period of time, 4-6 days, for the swelling, ecchymosis and blistering to go away. Petitioner's contention that the swelling had gone down since there had been immobilization of the area with a cast, posterior splint or unna boot and a waiting period is without merit since those devices would not have been used before determining by x-rays that the initial treatment (closed reduction) had failed. The fourth and last question at issue in question 144 which stated: CASE HISTORY 50 A patient presents with a painful left ankle. The pain occurs following ambulation and is relieved by rest. There is minimal periartic- ular atrophy and the joint is slightly warm. X-rays reveal non-uniform joint narrowing, subchondral sclerosis and marginal osteophytes. 144. It can be expected that the patient will favorably respond to treatment but may experience flareups. significant cartilage damage will occur. total joint replacement will be required. total remission can be expected following treatment. Petitioner answered B, significant cartilage damage will occur and Respondent's answer was A, that the patient will favorably respond to treatment but may experience flareups. There were a series of questions preceding this question concerning the patient in Case History 50. The first question asked for a diagnosis which the Petitioner correctly answered as osteoarthritis. The second question concerned advising the patient on treatment which the Petitioner answered correctly by giving instructions on protecting the joint and taking simple analgesics. The third question concerned activity levels such as jogging and climbing steps which Petitioner answered correctly by advising to avoid squatting. However, in selecting B as the answer to question 144 the Petitioner did not consider the suggested treatment and advise given in the previous answers. His reasoning was that he could not assume that the patient would follow his suggested treatment or advise on prevention and activity. Additionally, the Petitioner felt that other factors such as the patient's age, weight, general health, level of activity and occupation that were missing from the case history were necessary to make a proper evaluation of whether the patient would respond favorably to treatment. Respondent admitted that either answer A or B would be correct but he picked B because he knew the disease was progressive and in time would get worse causing significant cartilage damage. Osteoarthritis is a degenerative joint disease that is not uniformly progressive that responds to treatment but cannot be cured. There will be recurring episodes of pain (flareups) triggered by factors such as the weather or a person's activity. Based on the factors in the above case history, there is sufficient evidence to show that the patient will favorably respond to treatment but may experience flareups. It was reasonable and logical for the Respondent to assume that the Petitioner in answering question 14 would consider his preceding answers and assume that the patient would follow the suggested treatment and advice. There is a lack of competent substantial evidence in the record to establish that significant cartilage damage would occur based on the facts given in Case History 50. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1990 Florida Podiatry Examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grade he received on the July 1990, Florida Podiatry Examination. RECOMMENDED this 18th day of September, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 18th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2118 The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in substance in Findings of Fact 1 and 4. Adopted in substance in Finding of Fact 4. Rejected as not supported by competent substantial evidence in the record. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Findings of Fact 1 and 2. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. 4.-6. Adopted in substance in Findings of Fact 6, 7, and 8, respectively. 7. Adopted in substance in Findings of Fact 9 and 10. COPIES FURNISHED: Hewitt E. Smith, Esquire P.O. Box 76081 Tampa, FL 33675 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issues in this case are those framed by the Administrative Complaint, DPR Case No. 90-12147, directed by Petitioner against Respondent. In this complaint Respondent is accused of performing a diagnostic arthroscopy on the patient's right knee when the appropriate knee for diagnostic arthroscopy evaluation was the left knee. By such conduct Respondent is alleged to have failed to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, in that he performed that diagnostic arthroscopy on the wrong knee without looking at the x-ray and patient's history. As a consequence the patient had to undergo the diagnostic arthroscopy on both knees. Respondent is said to have violated Section 458.331(1)(t), Florida Statutes, and is subject to discipline in accordance with Chapter 458, Florida Statutes. In the proposed recommended order by the Petitioner, its counsel recommends that the discipline be limited to a fine in the amount of $1,000.00 and the issuance of a "Letter of Concern."
Findings Of Fact Petitioner has the responsibility to regulate the practice of medicine in the State of Florida under authority set forth in Chapters 20, 455 and 458, Florida Statutes. Respondent is licensed to practice medicine in Florida. His license number is ME0030676. He has held that license at all times relevant to the inquiry. The events in this case transpired while Respondent was practicing medicine in Gainesville, Florida. The dispute in this case concerns Respondent's treatment of a 16 year old male. That patient consulted the Respondent concerning injury to his left knee. Respondent took the history of the patient's complaints and noted that the patient was playing basketball and experienced pain in the left knee while running down the court and cutting. The history goes on to describe how the patient continued to play the game, ice his knee that night and felt that there was some mild swelling. The patient then played two more games the following day. He did not play after that time due to the pain that he experienced. The patient reported a similar episode that had occurred a year before. Nonetheless the patient reported that he had been able to complete a varsity sports schedule the year before without problems. The patient denied any locking, giving way or sense of instability in the left knee. The patient history and physical which Respondent took on August 8, 1990, under the heading of physical examination, which is found at pages 47 and 48 within the joint composite exhibit details the condition of the left knee. Following this examination Respondent suggested the possible use of diagnostic arthroscopy on an outpatient basis as a response to the condition. That procedure was anticipated to be performed on August 10, 1990, if the patient concurred and the parent consented. Respondent had explained to the patient and his mother that the patient may have damaged his knee and discussed the options which Respondent felt were appropriate in addressing the patient's condition. Those options included the diagnostic arthroscopy or watching or observing the condition of the knee for a period of time. The patient exercised the option to have the diagnostic arthroscopy performed on August 10, 1990. Francis R. Croft, who is a financial assistant counselor for the orthopedic clinic at the University of Florida, was involved in scheduling the patient's diagnostic arthroscopy at the Florida Surgical Center (Center). She made contact with the Center at Respondent's behest. Ordinarily the individual who was responsible for making the scheduling contact with the Florida Surgical Center was a person whose name is Robin. Because Robin was not available to coordinate the scheduling for Respondent, Ms. Croft undertook that duty. In doing so she called to see if the patient could be added to the existing operation schedule at the Center for either Wednesday or Friday. Croft advised the Respondent that the Center personnel felt that it was necessary for the Respondent to speak to a nurse at the Center to arrange for the scheduling. Respondent discussed the scheduling with a nurse at the Center and the patient was added to the August 10, 1990 schedule. Croft gave necessary information to Keri Bedford at the Center concerning the scheduling of the patient. Croft gave Bedford a yellow slip that was required to be given to the center. That slip indicated the diagnosis and the procedure that would be performed, that being a total left knee arthroscopy to rule out meniscus tear. In providing information Croft circled the letter "L" and wrote the word "left". The information being provided, including the diagnosis and the procedure to be completed was presented to Bedford. Bedford was the scheduling secretary for the Center. She received the call to schedule the patient two days prior to the date upon which the surgery was scheduled. Among the information which Croft provided Bedford was the patient's name, date of birth and social security number. Bedford recalls that Croft told Bedford that the arthroscopy was to be performed on the left knee. Bedford then asked Croft if the procedure was for the left knee and Croft said "right". Croft meant to verify that the site of the arthroscopy was the left knee. Bedford interpreted the response "right" to mean that the procedure was to be performed on the right knee, not the left knee. When Bedford typed in the information concerning the patient in preparing the operation schedule, she typed in "right knee." This caused the scheduling printout to report the surgery as surgery for the right knee when the correct site for the diagnostic procedure was the left knee. Ann Vadnais, R.N., was working in the pre-op area at the Center on the date of the surgery. She received a call from the front desk at the Center advising that the patient was ready to come back for surgery. She went out and greeted the patient and his mother and two other persons, a friend of the patient and his brother. The patient had been instructed to have his leg shaved in preparation for the procedure and that preparation was to occur a day prior to the surgery. Vadnais observed that the preparation had not been made. Vadnais asked another nurse, Kathy Cisco who was working in the area, if Cisco could make the preparation by shaving the leg of the patient. Cisco complied with that request. Vadnais also noticed that the consent form for the performance of the operation was not in the patient file. Vadnais asked the patient if the arthroscopy was to be performed on the right knee or the left knee. The patient stated that the left knee was the knee to be examined. Vadnais filled out forms related to the patient and called the operating room to notify the circulating nurse and the orthopedic surgeon that the patient was ready but needed a consent form signed. Respondent within the knowledge of Vadnais came through the area and had the consent form signed by the patient's mother. Vadnais observed that the doctor's order sheet read "left knee". Vadnais also observed that the patient was taken to the operating room by the circulating nurse and checked. Vadnais is aware that the patient was checked by the anesthesiologist who administered a drug designed to relax the patient prior to the surgery. The circulating nurse who has been referred to was Barbara Lucas. She noticed that the operating room schedule identified the right knee as being the knee upon which the arthroscopy was to be performed. For this reason she set the operating room up to accommodate a procedure on the right knee. In the pre- op area she looked at the consent form which said right knee. She saw the anesthesiologist resident take the patient back on a stretcher to be anesthetized. The patient was placed under a general anesthesia, following which Dr. Howard Brown came into the operating room and applied a tourniquet to the right leg and examined the leg. He placed the right leg into a holder prepped and draped the leg to have it ready for the incision. Lucas recalls that after the Respondent made the incision he asked to see the consent for surgery permit which showed that the consent was for a procedure on the right knee but a comparison by the Respondent of that item to the history and physical showed that the history and physical contemplated a procedure on the left knee. Nurse Cisco, who has been mentioned before, was working in the recovery room on August 10, 1990. She had also been helping out in pre-op on the date in question. In addition to shaving the patient's left leg, she started an IV and put it in the right hand which would be opposite from the side of the body which was being operated on, that side being the left knee. Dr. Brown had been involved in 2 or 3 cases prior to the patient's surgery. He was told that there was no consent form and was too busy to obtain one. Therefore, the Respondent obtained the consent form and the patient was taken into the operating room. Dr. Brown noted that the Respondent did the diagnostic arthroscopy on the right knee in the standard fashion and noted that the meniscus was normal as was the patella. Then Dr. Brown observed the Respondent look at the x rays and note that the x-rays indicated the left knee. Dr. Brown and the Respondent questioned which knee and checked the consent form and it read "right" knee which had been crossed out and the word "left" substituted. A copy of the consent form is page 26 to the joint composite exhibit. The two doctors checked the history and the history said left knee. Dr. Brown observed the Respondent finish the procedure on the right knee. Respondent then went outside to talk with the family and came back in and completed arthroscopy on the left knee. The Respondent describes being advised by "the nurse" that the consent form was missing. At that moment Respondent had just finished care of another patient and was in the pre-op holding area. He checked the operating room schedule and it indicated that the arthroscopy on the subject patient was to be performed on the right knee. Respondent filled out the consent form in accordance with the operating schedule's reference to the right knee and gave the form to the patient's mother and had her read it. The patient's mother read and signed the form. Respondent noted that the right leg had been prepped and draped and the arthroscopy was inserted. At approximately 15 seconds into the operation on the right knee Respondent noticed that the right knee was "fine." He looked at the x rays and they revealed that the arthroscopy procedure should have been performed on the left knee. Respondent concluded the procedure on the right knee without damage to that knee. He went outside of the operating room spoke with the patient's mother and explained the mistake and received permission from the mother to perform surgery on the left knee by having the mother correct the consent form to show the left knee. Respondent returned to the operating room and performed the arthroscopy on the left knee. Having concluded that diagnostic procedure Respondent notified the risk manager at the facility that the error had been committed. The physician's order sheet in its August 9, 1990 entry states signed O.R. consent for arthroscopy possible medial meniscectomy left knee. No medical complications have occurred as a result of the mistake by the Respondent in operating on the wrong knee. As stated in the preliminary discussion concerning this case, several physicians have stated their opinion concerning Respondent's conduct in which he operated on the incorrect knee. Dr. Tom C. Haney in his letter dated October 7, 1991, found at pages 4 and 5 to the joint composite exhibit, notes his review of the circumstances of the case. He describes those circumstances as unusual in several respects. First, Respondent filled out records to schedule the surgery on the correct knee and then the surgery was scheduled on the incorrect knee due to a communication problem. The operating room permit was filled out requesting permission to do surgery on the incorrect knee as a consequence. At some point, as Dr. Haney understands it, the patient's mother filled out the permit for the incorrect knee. The incorrect knee was prepped and draped by the resident physician as a prelude to the surgery. Dr. Haney sees these as extremely rare circumstances which are unlikely events to happen to the vast majority of orthopedists in the state. He goes on to state that surgeons working and teaching at large teaching institutions frequently have to make decisions based on the judgement and information provided by the resident physician. In summary, Dr. Haney does not feel that the Respondent failed to provide the appropriate standard of care in the case. Instead, Dr. Haney perceives this as an unfortunate event that could have happened to many orthopedic surgeons in teaching institutions given the same set of circumstances. Dr. Daniel R. Kannell submitted his opinion by correspondence dated December 4, 1991, found at pages 6 and 7 in the joint composite exhibit. He also believes that the series of unusual circumstances effectively circumvented the established systems of checks and balances that should have prevented the error from occurring. Those circumstances as he sees them involve the fact of the error in scheduling the procedure on the incorrect knee. The fact that the case was added on to an existing operating schedule. The fact that the patient was a minor and in Dr. Kannell's understanding that the parent was not present to sign the consent form for surgery when the initial examination had been made as would be routine. The fact that upon admission the error in scheduling was discovered and corrected on the face sheet and the proper leg was shaved but was not reconciled with the operating room schedule nor was the operating room staff notified. The fact that the resident in the operating room was not the one who had obtained the history and physical prior to the surgery and that the incorrect knee was prepped and draped for surgery by that resident. Dr. Kannell also points to the parent signing the consent form for operation on the incorrect knee after Respondent wrote the incorrect knee on that form. Dr. Kannell goes on to describe how Respondent discovered the error very soon after initiating the procedure and explained the situation to the mother who gave her consent to evaluate the correct knee. Dr. Kannell also points out how the patient was saved a second anesthetic induction experience by Respondent arranging to have the surgery performed on the correct knee while undergoing a single anesthesia induction. Dr. Kannell credits Respondent for maintaining the patient and parent's confidence in the Respondent and the staff and the fact that the patient and parent were pleased with the results of the surgery. Dr. Kannell remarks that it is sobering to consider that even with checks and balances and with competent professional staff, errors do occur. Dr. Kannell is impressed with the calm, efficient response of the health team under Respondent's direction in resolving the problem with dispatch and effectiveness. In his conclusion Dr. Kannell does not believe that Respondent provided other than appropriate care for the patient. Dr. J. Darrell Shea offered his opinion of the Respondent's performance by correspondence of February 18, 1992, found at pages 10-13 in the joint composite exhibit. Dr. Shea believes that the ultimate responsibility resided with the Respondent to evaluate the patient, make the diagnosis, make recommendations for management of the condition, discuss with the patient the pros and cons of the patient's condition and advantages and disadvantages, potential risks and complications of the surgery and most significantly that Dr. Shea believes that the responsibility resided with the Respondent as surgeon to identify the appropriate surgical site at the time of surgery. Having said that, Dr. Shea remarks about the complications in this case in that several individuals had contact with the patient following the initial evaluation and recommendations by the Respondent. In particular, he notes the confusion about the right and left leg and the conduct by Respondent in eventually operating on the wrong knee. Dr. Shea does not believe a surgeon can claim error in the consent form as justification for operating on the wrong extremity. Dr. Shea is complimentary of the Respondent's management of the case once the problem was recognized. Dr. Shea remarks about the fortunate outcome in which there were no complications as a result of the arthroscopy being performed on the incorrect knee. He describes the violation here, in his opinion, to be one which is minimal and should be addressed by a Letter of Concern. Finally, Dr. Shea comments about the fact that mistakes involving bilateral organs are not uncommon and it is therefore incumbent that the physician have in place the appropriate procedures to avoid errors concerning left and right and to manage those errors if they occur. Notwithstanding the confusing circumstances that existed, not promoted by the Respondent, that led Respondent to believe that the procedure was to be performed on the right knee, Dr. Shea is more compelling in his opinion that it was the Respondent's responsibility to identify the appropriate surgical site at time of the surgery. The opinion expressed by Drs. Haney and Kannell, that the underlying confusion excuses Respondent's conduct in performing the procedure on the wrong knee is not accepted. In summary, Respondent fell below the level of care expected of him in performing the diagnostic arthroscopy on the wrong knee which caused the patient to have to undergo that procedure on both knees. Respondent's reaction to the error was commendable and serves to mitigate the disciplinary response.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which finds Respondent in violation of Section 458.331(1)(t), Florida Statutes, and that a Letter of Concern be provided to the Respondent and a copy placed in his license file. DONE and ENTERED this 23rd day of September, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, 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 23rd day of September, 1992. APPENDIX CASE NO. 92-2203 The following discussion is given concerning the proposed facts of the parties: Petitioner's Facts: Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is rejected in that a review of the joint composite exhibit does not lead to the conclusion that Ms. Vadnais filled out a consent form indicating that surgery was to be performed on the left knee nor does that review lead to the conclusion that Paragraph 11 is accurate in its suggestion that the mother of the patient signed the consent form for the left knee as corrected by Ms. Vadnais. Although a change was made on the consent form by placing the word "left" after the word knee; whereas initially the word "right" was placed before the word "knee", it is not clear when this occurred and that Ms. Vadnais was responsible for bringing about that correction. Paragraphs 12 through 14 are subordinate to facts found. The first sentence in Paragraph 15 is rejected in that there is nothing within pages 22 and 46 to the joint composite exhibit which establishes that the Respondent was informed that there was no anesthesia or operative permit. The remainder of Paragraph 15 through Paragraph 21 are subordinate to facts found. Paragraph 22 is contrary to facts found. Paragraphs 23 and 24 are subordinate to facts found. Respondent's Facts: Paragraphs 1 through 5 are subordinate to facts found as is the first sentence in Paragraph 6. The second sentence in Paragraph 6 is contrary to facts found. Paragraph 7 in its first sentence is subordinate to facts found. The remaining sentences within that paragraph constitute legal argument. Paragraph 8 is contrary to facts found. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Mary Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 William B. Furlow, Esquire Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge, P.A. 106 East College Avenue Tallahassee, FL 32301 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The Respondent, Steven M. Van Ore, M.D. is a medical doctor holding license number ME0018621. The Respondent graduated from the University of Miami Medical School in 1970 and received his license to practice medicine in Florida in 1971. He served his internship and residency in internal medicine at Orange Memorial Hospital in Orlando, Florida, and became a diplomate of the American Board of Family Practice in 1977, certified in that area through 1990. The Respondent is currently engaged in the private practice of family medicine in Maitland Florida. Since 1976 he has held various academic posts, received a number of professional awards and has actively served in various medical societies and on various medical committees. The Petitioner is an agency of the State of Florida charged with regulating the licensure of physicians and enforcing the medical practice standards embodied in Chapter 458, Florida Statutes, the "medical practice act." In four separate counts, the Petitioner accuses Respondent of failing to prescribe certain Schedule II controlled substances to four different patients for medically justifiable purposes and charges him with prescribing them inappropriately or in excessive quantities. The substances involved are Mepergan Fortis, Demerol, Dilaudid, Percodan, Percocet, Tylox, Dolophine and Methadone. There is no question that the four patients involved in these counts suffered chronic, moderate to severe pain, for which they were treated by the Respondent. The Physician's Desk Reference, accepted by the parties as an authoritative indicator of appropriate drug usage including types and amounts for given diseases or conditions, places no limit on the amount of prescription of Schedule II controlled substances in question for patients suffering from chronic moderate o severe pain. Drs. William Story and Brouillett, accepted as expert witnesses, testifying on behalf of the Respondent in the above- mentioned areas of medical practice, based their expert testimony upon a complete review of the treatment records and charts of the four patients involved herein and in addition, Dr. Story had some firsthand knowledge of the patients' medical histories, conditions, problems and progress. Dr. Story also reviewed the hospital charts at the hospitals where each patient was sent from time to time when his review of Dr. Van Ore's own records revealed those hospitalizations. Dr. Handwerker, testifying as an expert witness for the Petitioner, did not review the hospital charts of these patients, nor familiarize himself with the necessity for their hospitalizations as that relates to the chronic severe nature of their pain and other ailments and the attendant appropriateness of the drugs prescribed for these patients by the Respondent. It was thus established that patient Josephine Inbornone was followed and treated by Dr. Van Ore from February 16, 1979 to December 9, 1980. During that time he saw her 20 times in the hospital and 20 times in his office. He also sought and obtained consultation with specialists Dr. Biggerstaff and Dr. Lett who saw her on a number of occasions, for a total of 28 office visits between the three of them. The patient suffers from a severe, chronic, low-back pain and chronic sciatica. During Respondent's "work-up" of the patient, she was tried on a variety of medications including Sinnequan and Tylenol 3, which she could not take because of allergies. She was allergic also to Percodan, Codeine, Darvon and Talwin. Her pain and discomfort could not be controlled with non-steroidal anti-inflammatory drugs. A trans-neuro stimulator was used, to no avail. Her severe back pain resulted in six different hospitalizations while she was under the care of Dr. Van Ore. The first hospitalization was in February, 1979 and she was later admitted on June 25, 1979 with acute diverticulitis. There was some evidence at this time that she also suffered from "anxiety neurosis." On June 3, 1980 she suffered a severe lumbrosacral strain from a fall on a wet floor in a store, which required hospitalization. She was again hospitalized on September 12, 1980 complaining of persistent abdominal pain and was hospitalized later that year with chronic, severe back pain. The patient was seen by Dr. Urbach on her sixth hospital admission for a psychiatric evaluation. By that time it was obvious to the Respondent that the patient had developed a drug problem because of her severe, chronic and disabling back pain which required chronic administration of narcotic drugs. Her condition was aggravated by the fact that she was markedly overweight (which strained her back) and because of her drug allergies which prevented her taking milder drugs. As part of her evaluation in the course of her various hospitalizations, she had a CT scan of the spine, extensive x- rays, barium enemas, upper GI x-rays and other tests designed to evaluate the nature and cause of her chronic, severe back pain as well as her recurrent abdominal pain. No major pathologic condition was found and she was felt to have an anxiety neurosis by the Respondent and Dr. Urbach. As early as February 23, 1979, upon her admission to Winter Park Hospital, the Respondent noted that she had a chronic problem with severe low back pain that seemed resistant to every drug for control of pain, including Vistiril, Percodan, Codeine, Darvon, Phenobarbital and Indocin. The Respondent further noted her allergic reaction to many of those drugs and, as early as that date, also noted that they were going to attempt to eliminate some of the medication she was taking because of concern about possible drug addiction. The Respondent's and other physician's inability to control her pain is evident by her multiple hospitalizations because of the debilitating nature of her pain which could not be alleviated without Schedule II narcotic type drugs. In short, the patient was clearly a difficult patient who had a psychiatric overlay which was noted by both Drs. Van Ore and Urbach. She suffered from severe low back pain as well as abdominal pain. Numerous attempts were made to discern the cause of these multiple admissions which were felt to be severe and functional in origin. Unquestionably her low back pain was aggravated by her multiple falls which she had had in the past, as well as by her chronic obesity. It is noteworthy that the Respondent involved consultants who documented the patient's severe back pain requiring the drug usage and that the Respondent noted early in his experience with the patient, that the drug usage should be tapered off as much as possible. It is also noteworthy that minor narcotic drugs such as Codeine, as well as non-steroidal, anti-inflammatory drugs, were tried first and were either unsuccessful or caused an allergic reaction. The multiple admissions to the hospital show a concerted effort to fully evaluate the patient's needs, a thorough attempt to find the cause for her severe pain and a means to alleviate it permanently. Nothing of a curative nature could be found so that she was left with a residual pain which ultimately led to a marked physical impairment. Narcotic Schedule II drugs were determined after numerous tests and evaluations and hospitalizations, to be the only means by which her pain could be alleviated. This was done with the open recognition, reflected in the Respondent's notes, that the chronic use of narcotic drugs could lead to both dependency as well as to drug tolerance, which would result in the need for heavier doses of the same drugs. With this in mind, the Respondent made an attempt to wean the patient away from Schedule II drugs as much as possible, and the patient ultimately went to another clinic specializing in the control of chronic, severe pain. Dr. Story opined after thoroughly reviewing the Respondent's charts and notes for this patient, as well as his hospital records related to her, that there was no evidence of malpractice or misuse of drugs. The need for narcotic drugs in this case was well documented, as were the attempts by the Respondent to try to wean her from narcotic drugs to the extent possible when balanced with the doctor's felt obligation to try to alleviate her pain with whatever means proved successful. In fact the Respondent attempted to use less potent drugs to the extent possible and only resorted to Schedule II narcotic drugs when the lesser drug proved either ineffectual or allergic. The Respondent's concern and attempts to get at the root cause of her pain is demonstrated by his reference of her to a number of other physicians, orthopedic surgeons, a psychiatrist as well as family far physicians, all of whom ultimately agreed that the pain seemed to be legitimate in nature and a source of great discomfort to the patient. Although Dr. Story, the Respondent and the other physicians who saw the patient were concerned about the narcotic drug dependency, Dr. Story opined that there was no evidence of misuse of drugs in this case in his professional opinion. The patient will always be a difficult patient for whomever takes care of her because of her chronic low back pain and the chronic anxiety overlay which often accompanies chronic, severe pain. He found the Respondent provided competent care for the patient with concomitant genuine concern for her narcotics requirement and her long term need for narcotic drugs. Robert Marsh began seeing Dr. Van Ore in 1981 for severe back pain caused by his having fallen from a scaffold on a construction site. At the behest of the Respondent, the patient was seen by several orthopedic and neurological specialists and was eventually diagnosed to have defects of the lower lumbar spine after a myelogram was performed. His back pain at this time was severe and he required narcotic drugs (Schedule II) for the relief of that pain. The patient was first seen on May 20, 1981 and was given Tylox and Robaxin. He was then referred to Dr. Martin Brown for evaluation. His back continued to be severely painful, ultimately requiring prescription of Dilaudid over the period of the next few months. At the same time he was treated conservatively, which is the usual course of practice in treatment for low back pain. He continued to suffer severe back pain, radiating into his extremities, however, requiring Dilaudid and Mepergan Fortis for relief. During the course of this conservative treatment and prescribing of narcotic medications, the Respondent expressed concern in his notes on August 27, 1981, that the patient might be developing a drug abuse potential. The plan thus was to commit him for hospitalization at that point. Concern was again expressed by the Respondent on October 7, 1981, that the chronic low back pain was requiring narcotic usage and that the patient would need weaning from the drug and perhaps a trial usage of Methadone. On October 20, 1981, the Respondent's notes reflect that he felt that the patient was addicted to Dilaudid, which is a common problem when narcotic drugs must be used for several months at a time for pain. Fortunately, the patient in early 1982, had surgery, a laminectomy, which almost totally relieved his back pain. The Respondent then successfully weaned him away from narcotic drugs. The patient's back pain had been severe and at times excruciating. CT scans and back x-rays, as well as myleogram studies, revealed a rupture of a disc in the lumbar area. These tests were performed by specialists to whom the Respondent had referred the patient. The pain had been present for approximately one and a half years by the time the patient first saw Dr. Van Ore. A complete evaluation was done by Van Ore as well as by the orthopedic specialist, Dr. Billotta, and a radiologist, to whom Van Ore referred the patient. It is noteworthy that a complete evaluation was done and consultation was obtained early in the patient's course of treatment with the Respondent, from practitioners in the above specialities. There is a significant danger, recognized in Respondent's own notes, of narcotic addiction through long term use of narcotic drugs to relieve pain, but these medications were the only thing that provided relief for the patient until ultimate evaluations and examinations revealed the necessity for surgery which finally got at the cause of his pain and alleviated it. The Respondent then followed up with the patient and successfully weaned him from his dependence on narcotics. Dr. Story opined that the patient was given the usual and appropriate care and treatment by the Respondent, who diagnosed his injury, tried conservative medical treatment at first, and employed the use of narcotic drugs appropriately since that was the only thing which proved to alleviate the excruciating pain the patient was suffering. Dr. Story opined that the Respondent's practice with regard to this patient was well within the limits of acceptable practice as recognized by similar physicians in the community, under similar conditions and circumstances. Mrs. Eleanor Rooker was also seen by Dr. Story as a patient for cardiac problems of a rather severe nature. She is a 55-year old female with a long history of chest pain and back pain. She had a colostomy due to ruptured diverticulun and has had recurrent admissions to the hospital for chest pain. Ultimately she was diagnosed as having arteriosclerotic heart disease, with multiple coronary lesions. Chronic angina is a major problem for her. The patient was also admitted on February 7, 1983, for severe low back pain with nerve root irritation as well as severe sciatica. A myleogram at that time indicated that there nay be a disc problem in her back. A thermogram of the back and lower extremities showed some signs of degenerative nerve conduction because of nerve root compression. The patient was obviously suffering from severe back pain and was treated by the Respondent with conservative bed rest, muscle relaxers and analgesic agents. Over the years the Respondent saw her, Eleanor Rooker had multiple admissions to hospitals for painful heart conditions involving angina, secondary to arteriosclerotic disease and in November 1980, for congestive heart failure. She has a chronic heart condition which ultimately required bypass surgery because of her severe coronary artery disease. Also, at least as early as her hospital admission of February 6, 1981, the patient developed severe tension headaches which caused severe, recurrent pain. The patient required large doses of medication to control her painful headaches and Dr. Mueller, a psychiatrist called in to see her concerning her headaches, found that the patient was dependent upon Darvocet which she was taking as a means to control the severe, chronic, headache pain. Thus, between the years 1980 and March, 1984, the patient was in the hospital numerous times and was referred by the Respondent to numerous specialists to try to get at the cause of her back pain as well as her chronic headache pain, wholly aside from the hospitalizations and treatment for her heart problems. During this time the Respondent and other specialists, such as Drs. Tatum and Brown, a psychiatrist and a neurologist, respectively, (who saw the patient concerning her severe headaches) agrcee that she had chronic, severe pain and a problem of narcotic dependence involving Fiorinal, Tylenol 3 and Darvocet. At least as early as October 3, 1981, when she was admitted to the hospital, Dr. Van Ore felt she was suffering from drug dependency and he made an effort to get her weaned away from narcotic drugs at that time. The patient obviously has very real, legitimate illnesses and conditions which cause her chronic, severe pain. All of these have combined to give the patient a great deal of distress and discomfort and has created a frequent need for narcotic drugs since milder drugs have not controlled her discomfort. Her legitimate medical illnesses are coupled with a psychiatric anxiety overlay because of the chronic, long-standing nature of her pain. Her illnesses are severe in nature, are very disabling and require large dosages of multiple narcotic medications. In time the patient did become dependent on Darvocet and required fairly large doses because chronic narcotic drug usage results in the development of a drug tolerance in many patients, requiring larger doses, progressively, to maintain analgesic effectiveness. In short, the patient suffered from a number of legitimate medical illnesses and a large number of sub-specialty consultants were asked to evaluate her multiple areas of pain, including Dr. Nosaro and Dr. Story himself for cardiac evaluation, Dr. Uricchio and Dr. Murray for musculoskeletal and lumbar pain evaluation, Drs. Modd, Brown and Dunaway for evaluation of severe headaches and lumbar pain; psychiatric consultation by Dr. Quinones and Dr. Paskiwitz. It was thus established that Dr. Van Ore made strenuous efforts to determine the cause of the patient's different medical problems, found no easy solutions for them and when confronted with the chronic pain the patient suffered, felt he had no choice but to prescribe narcotic drugs in increasingly large amounts as her tolerance increased. The doctor made concomitant efforts to wean her away from her narcotic drugs whenever possible. In Dr. Story's expert opinion, the Respondent applied diligent efforts to diagnose his patient's problems as well as to alleviate her suffering. Dr. Story feels that the Darvocet dependency that eventually evolved from her illnesses was an expected and likely complication because of the long-term use of narcotic pain relief, which is the only kind of relief that could be afforded the patient. In summary, Dr. Story established that good medical care was employed by the Respondent and the referred consultants who evaluated and treated this lady and there was no evidence of any misuse of narcotic drugs on the part of the Respondent or any of the consulting physicians, but rather the medical care afforded her met all professional standards. The remaining patient to whom the charges in the Administrative Complaint relate is Arthur Van Vlack. Mr. Van Vlack has suffered extremely painful migraine headaches over a period of many years. Dr. Van Ore has followed him as a patient for approximately ten years. The Respondent had the patient completely evaluated for neurological condition with regard to his migraine headaches, including admitting him to the hospital. The patient had seen many physicians for this problem. His headaches have not responded to usual medical treatment for migraine headache and he required, over the years, progressively larger doses of narcotic drugs. He has used at various times, Demerol, Percodan and Percocet, since lesser strength drugs have not controlled his severe pain. Additionally, the patient has had problems involving a duodenal ulcer, vagotomy and pyloroplasty in August of 1980. He suffers pain in the low back caused by spina bifida occulta in the area of the 5th lumbar vertebra. The only control for the patient's severe pain, which is chronic and recurrent, has been narcotic drugs. When the severe headaches strike, the patient loses his ability to earn a living and to conduct a normal life, and sometimes has to be bedridden for several days in extreme pain. Dr. Van Ore did a thorough evaluation of the patient, including CT scans and cervical myelograms, as well as lumbar myelograms in an attempt to find out if there were any correctable causes for the patient's pain. Neurological consultations were obtained, including a neurology consultation with Dr. Peritz Scheinberg, of the Department of Neurology at the University of Miami School of Medicine. The patient's charts uniformity indicate that for every office visit that the headaches are still persisting and that only Demerol and Percodan seem to benefit the pain. At times Talwin was tried, but to no avail. After a complete evaluation of the patient's headaches with every conceivable neurological test as well as consultation with Dr. Scheinberg at the University of Miami, no correctable cause for the man's pain was found. None of the consultants to whom the patient was referred by the Respondent, either neurologic or psychiatric, found that the headaches were other than legitimate, severe, refractory migraine headaches. Both the Respondent and the consultants to whom the patient was referred understood that the patient had a narcotic addiction problem as a result of years of narcotic usage since those were the only medications that would control his severe, disabling headaches. This kind of addiction, as well as the tolerance to lighter doses of medication normally occurs when narcotics are used over such an extended period of time. It is fully expected and largely unavoidable when treating severe, chronic disabling pain for which there is no ascertainable medical solution. Dr. Van Ore understood early in his following of this patient that the addiction was a distinct danger and sought a number of times to wean the patient off medications and to compromise and negotiate and try to persuade him to switch his medications from time to time in an attempt to wean him from narcotic drugs. By May of 1981 the Respondent was attempting to wean him from narcotic drugs by putting him on a schedule of progessively tapering doses. However, whenever the medications were decreased the headaches again became disabling to the patient. It was at approximately this time that the consultation with Dr. Scheinberg was obtained. It being a pharmacologic fact that as patients take narcotic drugs for relief of legitimate illnesses, for which there is no cure, with addiction and drug tolerance becoming a common problem, it is appropriate and correct practice for a family physician at this point, when confronted with such patients, to obtain expert, sub-specialty consultation with a variety of physicians. The Respondent did this in this case and in the others. A number of neurologists evaluated the patient and concluded as the Respondent had, that he suffered from severe, intractable migraine. Finally, the Respondent attempted to use psychiatric care in order to help wean the patient off the drugs, to little avail. Ultimately the Respondent admitted him for detoxification at Winter Park Hospital. Dr. Story opined, after thoroughly reviewing the patient's history and charts, that he saw nothing amiss about the quality of medical care and professional practice rendered the patient by the Respondent. He found the requirement for narcotic drugs to be understandable under the patient's circumstances, which admittedly aroused concern by the Respondent and the other physicians who followed him, for the patient's possible drug addiction due to long-term narcotic use. Dr. Story shared the concern by all involved physicians regarding the large amounts of medication that were required to control his pain, and points out that this is due to a drug tolerance developed by the patient. As a counter to this the Respondent made repeated attempts to wean him off narcotic drugs and toward the end of his relationship with the patient, he was approaching the point of weaning him off narcotic medication entirely. Dr. Story, in short, does not feel that medical practice standards employed by similar physicians under similar conditions and circumstances, involving a difficult patient with chronic severe pain, have been departed from. In summary, Dr. Story found, as did Dr. Brouillet, who largely corroborated the findings of Dr. Story, that the drugs employed with all four patients did not involve any drug misuse. Rather, the care and treatment provided these patients reflected a high level of skill and the Respondent tried in all ways known to him to evaluate the root cause of the patient's pain problems, including referral to appropriate specialists for all relevant evaluative techniques. Both Respondent's experts found no departure from appropriate and correct rendering of quality medical care to these patients. They were all very complex, difficult patients with chronic illnesses characterized by severe, chronic pain with, in some cases, psychological overlays, which is often the case with severe, recurrent pain. Thus, Drs. Story and Brouillet opined that the use of these drugs referenced in the Administrative Complaint, to relieve pain in these patients was legitimate as to appropriateness and amounts. Drs. Story and Brouillet, based their testimony and opinions upon a complete review of the treatment records of all four patients, and Dr. Story additionally reviewed the hospital charts at the hospitals of each patient. Dr. Handwerker, testifying for the Petitioner, did not have the benefit of the hospital records in arriving at his opinion. Although Dr. Handwerker opined that it is inappropriate to relieve the patient's chronic severe pain with recurrent use of Schedule II controlled substances, Dr. Story established that it is also a physician's duty and obligation to try to relieve a patient's pain, including the use of Schedule II controlled substances if they are used appropriately and wisely and within appropriate professional practice standards. A medically justifiable purpose for treating a patient consists of affording treatment in a manner designed to relieve disease or distress or pain by whatever tests, diagnoses, evaluations or treatments can be performed in an acceptable manner within the confines of the professional medical practice standards of the community. Acceptable treatment is predicated on scientifically attempting to identify the pathology involved causing the distress, the anatomy and physiology affected and use of all evaluation and diagnostic tools in an effort to arrive at an opinion about what is wrong with the patient and what treatment is appropriate. It is medically justifiable for treatment to be performed solely for the purpose of relieving chronic moderate to severe pain in a patient, especially if all attempts are being made to alleviate the cause of that pain. The best person to make an informed interpretation concerning what is a medically justifiable treatment for a given patient is the treating physician himself at the time the treatment is applied. All three expert witnesses agreed that reasonable physicians can differ in the way they treat patients with similar conditions, and the Petitioner's expert, Dr. Handwerker, conceded that there is no single, established method of treatment for the conditions suffered by the patients named in the Administrative Complaint. Chronic pain patients are sometimes the most difficult to care for since pain is not a directly measurable disability. Some patients require a greater amount of pain medication to relieve a similar degree of pain than do other patients. In any event, the Schedule II controlled substances prescribed by Respondent are approved by the Federal Food and Drug Administration and the medical community for treatment of chronic, moderate to severe pain and are indicated as treatment for such in the Physician's Desk Reference relied upon as authoritative by all three experts in this case. It is appropriate and ethical to relieve a patient's pain with these drugs, even though the patient may have developed a tolerance or addiction to those substances. There is a concomitant obligation imposed by appropriate standards of medical practice to attempt to avoid or alleviate any addiction or tolerance that develops through efforts to wean the patients gradually off the narcotic substances, which Respondent consistently attempted in the case of each patient. Having reviewed all the treatment records and prescriptions used, Drs. Story and Brouillet also demonstrated that they were prescribed in the course of professional practice to the patients in question. Thee Respondent prescribed the drugs in a good faith effort to relieve pain while he was trying to determine and correct the underlying cause of each patient's distress. Dr. Van Ore's motivation in prescribing and treating as he did for these patients, was nothing other than an honest attempt to relieve their pain after his and others' efforts to alleviate the causes of pain had failed. Neither is there any evidence that Dr. Van Ore made any deceptive, untrue or fraudulent representations to his patients in the course of their treatment. He was open and honest with the patients and told them what he knew and believed concerning their chronic medical problems and the means he was using to try to alleviate them, including discussing with them the problem of drug addiction and attempting to convince them to reduce their use of Schedule II controlled substances. Dr. Van Ore had no ulterior purpose or motive in the treatment of these four patients, other than an honest attempt to alleviate their distress. Dr. Handwerker, testifying for the Petitioner, generally took the view that the Respondent's treatment of the four patients in question with controlled substances was for medically unjustifiable purposes and in inappropriate or excessive quantities. It is important to note that several prescriptions listed in the Amended Administrative Complaint attributable to Respondent were actually written by other physicians such as Dr. James Biggerstaff, Dr. James E. Lett, Dr. Charles Moller and Dr. Gwen Murray. Several were written for other patients who were not mentioned in the Amended Administrative Complaint and apparently several prescriptions had been altered by persons unknown. The testimony of Dr. Story raises questions concerning Dr. Handwerker's depth of understanding of these patients' medical histories when under the Respondent's care. For example, Dr. Handwerker apparently was unaware that the patients had been hospitalized and seen by various consultants, was also unaware of the various tests that each of the patients had been subjected to in the Respondent's and other specialists' efforts to learn the causes of their pain. In general, Dr. Handwerker was more concerned with the drug addiction or potential drug addiction of these patients, than with the fact that these patients suffered chronic pain which could not be relieved by any other means than Schedule II drugs. Dr. Handwerker's testimony being more tinged with his concern for drug addiction as a paramount consideration, not taking into adequate account the physician's concomitant obligation to alleviate suffering, nor taking into account Respondent's and other's exhaustive efforts to learn the causes of their suffering, renders the testimony and opinions of Drs. Story and Brouillet more credible and acceptable in their description of appropriate medical care and treatment under similar conditions and circumstances. The testimony of Dr. Handwerker, where it conflicts with these opinions, is rejected as less credible than those of Respondent's two experts. Count One raises the issues concerning the practice of physician's assistants Gary Chase and Denise Grant. Gary Chase began working for the Respondent as a licensed physician's assistant in September, 1980, and was certified as the Respondent's physician's assistant in October, 1980. He worked for the Respondent until June, 1983. The Respondent was his supervising physician. While Gary Chase worked as a physician's assistant for the Respondent, the Respondent was either physically present in the office or was within 20 minutes travel time from the office and was always available by electronic communication. The Respondent and Gary Chase would daily review all records of patients in which Gary Chase assisted in treatment and would always review any treatment Gary Chase had rendered no later than the next day. The Respondent furnished pre-signed blank prescription forms to Gary Chase. If a patient being seen by Chase needed a medication, Gary Chase would write out that medication, the amount needed, and record it in the patient's chart and use the pre-signed prescription form. The Respondent and Gary Chase would then review the patient's charts and prescription together when Chase next saw the Respondent on either the same day or no later than the next day. If a problem occurred with the prescription Chase had made or a treatment he recommended the patient, he or the Respondent would have called the patient that same day and changed the prescription. Chase does not recall such a problem ever occurring. With regard to the issue of Denise Grant's practice raised in Count One, there was no evidence to establish Denise Grant was a physician's assistant practicing under the direct supervision and control of the Respondent. There was no evidence that the Respondent had ever furnished prescription blanks to Denise Grant. Denise Grant was not called as a witness in this case. The Respondent has never been the subject of an investigation by the Department of Professional Regulation nor of disciplinary action, either formal or informal. The Respondent is an active member of the Asbury United Methodist Church in Maitland, Florida, and offers community service medical education programs on preventive medicine through the church. The Respondent has a reputation as a person of honest character and a reputation as a good and competent physician.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a final order be entered by the Board of Medical Examiners finding the Respondent, Steven Van Ore, guilty of a violation of Section 458.331(1)(aa), Florida Statutes, and that the penalty of a written reprimand be imposed. DONE and RECOMMENDED this 9th day of January, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 10th day of January, 1985. COPIES FURNISHED: William M. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ralph V. Hadley, III, Esquire Post Office Box 1340 Winter Garden, Florida 32787 Paul Watson Lambert, Esquire SLEPIN, SLEPIN, LAMBERT and WAAS 1114 East Park Avenue Tallahassee, Florida 32301 Dorothy Faircloth, Executive Dir. Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Daniel S. Merklinger, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Lorna Merklinger and Scott Merklinger are the natural parents and guardians of Daniel S. Merklinger, a minor. Daniel was born a live infant on November 17, 2001, at Florida Hospital Waterman, a hospital located in Eustis, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Daniel's birth was Jose Ramon Gonzalez, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Daniel's birth and postnatal course At or about 6:50 a.m., November 16, 2001, Mrs. Merklinger, with an estimated delivery date of November 23, 2001, and the fetus at 39 weeks gestation, presented to Florida Hospital Waterman, for induction of labor. At the time, Mrs. Merklinger's membranes were noted as intact, and vaginal examination revealed the cervix at fingertip dilation, effacement at 60 percent, and the fetus at -1 station. Uterine contractions were noted as mild, irregular and with a duration of 60 seconds, and external fetal monitoring revealed a reassuring fetal heart rate, with a baseline at 130 to 140 beats per minute. Pitocin induction was started at or about 7:00 a.m., and continued until 3:51 p.m., when it was discontinued following a vaginal examination that revealed no progress in cervical dilation.3 Given the lack of progress, Cytotec was inserted vaginally at 4:34 p.m., and again at 1:10 a.m., November 17, 2001. From 8:18 a.m., when Pitocin induction was restarted, until 7:00 p.m., when Dr. Gonzalez ordered Mrs. Merklinger prepared for delivery, Mrs. Merklinger's labor progress was slow, but, until 6:20 p.m., when prolonged decelerations in the 90 to 102 beat per minute range were noted, fetal monitoring continued to reveal a reassuring fetal heart rate. Starting at 7:25 p.m., vacuum delivery was attempted on three occasions, unsuccessfully, and between 7:30 p.m., and 7:32 p.m., forceps were applied three times. Then, after delivery of Daniel's head, a right shoulder dystocia was noted, and relieved with suprapubic pressure and McRoberts maneuver, and Daniel was delivered at 7:42 p.m. At delivery, Daniel was depressed (limp, with poor respiratory effort), and required resuscitation measures, including oxygen and bag/mask for four to five minutes. Apgar scores were recorded as 3, 6, and 8, at one, five, and ten minutes, respectively.4 Following delivery, Daniel was transported to the nursery, where he remained until approximately 6:10 p.m., November 18, 2001, when he was transferred via ambulance to the neonatal intensive care unit at Arnold Palmer Hospital for Children & Women. Reason for transfer was noted as fractured skull and subdural hematoma. Daniel's history and diagnoses at Florida Hospital Waterman were summarized by his attending physician (Dr. Thomas Carlson) in Daniel's discharge summary, as follows: HISTORY OF PRESENT ILLNESS: Baby boy Merklinger is a product of a pregnancy complicated by a maternal age of 41, maternal chronic hypertension and asthma. Labor was induced with Pitocin. Toward the termination of delivery, the child became distressed and delivery was urgent . . . . Mother suffered a third degree laceration in the rapid delivery, and the child's head was quite bruised . . . . I was called at the time of delivery and was in Orlando. I transferred the call to the doctor on call, Dr. Burgos. When she was reached, the baby had already been born and was breathing, so she elected not to go in at that time. The baby was born at 1958 [sic] hours. My examination was complete and note written at 2130 hours. The child was, according to the nurse, bagged for approximately 5 minutes postpartum, but then did well. When I saw the baby under the warmer, I immediately noticed severe bruising and abrasions of the forehead, on through the occiput with large quantity of subcutaneous blood under the scalp. The right cornea was noted to be cloudy. The chest was clear. Heart regular without murmur. The child was breathing well with good oxygen saturation, good capillary refill on room air. There was also noted an apparent fracture of the right clavicle, and the left arm had some decreased movement probably from pulling of the nerve plexus at birth. Impression at that time was traumatic birth doing well . . . . The following morning, it was noted that the hemoglobin and hematocrit were dropping . . . . It was noted that the head circumference was growing . . . . Intravenous antibiotics and fluids were begun. I ordered a CT of the head, chest x-ray and came in to see the child. IV antibiotics were begun. The chest x-ray showed mildly displaced right clavicular fracture. The heart and lungs appeared normal. No pneumothorax identified. CT of the brain without contrast revealed a frontal subdural hematoma, 11 mm in thickness with mild mass effect and midline shift. Scalp hematoma noted on physical exam was also present. [Mildly] depressed left frontal skull fracture, minimally displaced left posterior fossa fracture at the lambdoid suture inferiorly. A right anterolateral scalp hematoma with slight suture separation at coronal suture, and a minimally depressed fracture extending back towards the right lambdoid. No intraventricular hemorrhage. With this finding, it was elected to immediately transfer the child to Arnold Palmer Hospital because a neuro surgeon was needed. The child was then transferred out. DIAGNOSES Traumatic birth. Multiple skull injuries with depressed fractures and subdural hematomas. Traumatized right cornea. Mild Erb's palsy on the left. Fractured right clavicle. At approximately 7:11 p.m., November 18, 2001, Daniel was admitted to Arnold Palmer Hospital. Upon admission, Daniel was examined by Dr. Michael McMahan, who noted that: . . . On arrival of the team, tonic colonic motions of the lower extremity noted, could not be suppressed. Phenobarbital . . . given . . . . Ampicillin and Claforan begun after blood culture obtained The infant has been feeding well, but with question of seizures infant was made n.p.o. and placed on IV fluids PHYSICAL EXAM: . . . Irritable. Molding. Severe bruising of the scalp. Very large caput as well as cephalohematomas. Question of subgaleal bleed. Fontanelle is full. Eyes are open. Cloudy right cornea . . . . Chest: Right clavicle with palpable fracture/crepitus . . . . Neuro: Normal tone and motor strength, moves all extremities . . . . Bruises on chest. IMPRESSION: Term AGA male Intracranial bleed. Possible seizures. Rule out sepsis On November 18 and 19, 2001,5 with a diagnosis of "depressed left temporal skull fracture with underlying epidural hematoma," Daniel underwent a "[l]eft temporal craniotomy for elevation of skull fracture and evacuation of epidural hematoma," and "[p]lacement of left frontal external ventricular drain with Codman monitor." The surgeon was Eric Trumble, M.D., a pediatric neurosurgeon, who noted that Daniel "tolerated the procedure well, was sent to NICU postoperatively." On November 27, 2001, at 10 days of age, Daniel was discharged home on Phenobarbital, with instructions to follow up with his pediatrician within one week, Dr. Trumble in 2-3 weeks, and the development center. Discharge examination noted: . . . active, alert, no distress. Head and neck: Large cephalohematoma. Incision healing. Chest clear. No murmur. Abdomen soft. Normal motor strength. Slightly decreased tone left arm. Discharge summary noted the following problems addressed during Daniel's hospitalization: Depressed skull fracture: Neurosurgery consult obtained. Infant was taken to OR on November 18 for left temporal craniotomy and evacuation of EDH. CT scan of the head on November 19 showed extensive scalp swelling, multiple nondepressed skull fractures, small amount of intracranial hemorrhage, question status of intracranial pressure with low density changes inferiorly raising possibility of increased intracranial pressure. Infant continued on phenobarbital. Skull incision clean and healing. Large cephalohematomas remain present. MRI was done on November 27. This showed scalp hematoma which crosses the midline over the vertex, evidence for parenchymal hemorrhage adjacent to the atria/occipital horn, right lateral ventricle mixed signal intensity consistent with evolving hemorrhage. Additionally, posterior extra-axial hemorrhage is appreciated, likely subdural hemorrhage. Small amount of hemorrhage also seen along the interhemispheric fissure towards the vertex. Small areas of parenchymal signal abnormality seen in the left periventricular parenchyma likely related to ventricular shunt placement. An increased signal intensity is seen on both ADC and T2 weighted sequences within the white matter of the right parieto-occipital region likely reflecting edema. No midline shift. Midline structures intact. No ventriculomegaly. Infant has slightly decreased tone in the left arm compared to the right. No seizure activity noted. He is discharged home on phenobarbital 6 mg p.o.q. 12 hours for follow up with Dr. Trumble in 2-3 weeks . . . . Possible sepsis: Treated with ampicillin and Claforan times seven days. Blood culture negative. * * * 5. Ophthalmology: Eye exam on November 20 with diffuse hemorrhage OU. Follow up on November 27 improved, but still significant hemorrhage present. Guarded visual prognosis OD. For recheck in three weeks with Dr. Gold. Final diagnoses were: Term AGA (appropriate for gestational age) male. Depressed skull fracture, status post evacuation of hematoma. Possible seizures. Possible sepsis. Left corneal opacification. Anemia. Daniel's subsequent development Following discharge from Arnold Palmer Hospital, Daniel was referred to Pediatric Neuroscience, P.A., where he was initially followed by Dr. Trumble, who had performed his surgery. Dr. Trumble first examined Daniel on December 20, 2001, and in a letter to Daniel's pediatrician (Thomas Carlson, M.D.) reported his impressions, as follows: I have just had the opportunity to see Daniel with his mother in the neurosurgery clinic today. As you know, he is a 1-month- old child whose last neurosurgery intervention was a craniotomy for evacuation of epidural hematoma on 11/19/01. He has been doing very well since that time without headaches, nausea or vomiting and meeting developmental milestones. On examination, Daniel is bright, alert, and interactive. He weighs 9 pounds 8 ounces and has a head circumference of 37.25 cm. His incision is well healed. He remains neurologically intact. Eom's are intact. Disc margins are sharp bilaterally. His anterior fontanelle is soft and flat. He does have a bony ridge palpable about the posterior aspect of the left craniotomy and a scalp ridge in the right occipital region. I am pleased with the improvement Daniel has had thus far. I would like to see him back in the neurosurgery clinic in 3/02 with a repeat head CT for routine follow-up. He may discontinue all neuro-active medications from my stand-point, including anti- convulsants. Dr. Trumble next examined Daniel on March 14, 2002, at which time he noted that Daniel had a "progressive right occipital flatness with the right ear anterior to the left and subtle right frontal bossing," and prescribed an occipital molding band. Otherwise, there was no change in Dr. Trumble's impression of Daniel's progress, and he noted the "repeat head CT done at Arnold Palmer Hospital on 3/5/02 . . . was intracranially normal. The fractures healing well." Following March 14, 2002, Daniel was seen by Dr. Trumble on June 10, 2002; July 22, 2002; and September 26, 2002, during which time Daniel's occipital flatness improved and Dr. Trumble remained pleased with Daniel's progress. Dr. Trumble's impressions for this time period may be gleaned from the text of his letter to Daniel's pediatrician of September 26, 2002, as follows: I have just had the opportunity to see Daniel with his mother in the neurosurgery clinic today. As you know, he is a 10- month-old child whose last neurosurgical intervention was a craniotomy for evacuation of epidural hematoma on 11/19/01. He has been doing very well since that time without headaches, nausea or vomiting and meeting developmental milestones. His right occipital flatness has improved since he obtained his occipital molding band, initially in 3/02 with a replacement in late 5/02. He comes in for routine follow-up today. Mother notes that he was recently developmentally graded advanced.[6] On examination, Daniel is bright, alert, and interactive. He weighs 16 pounds, 12 ounces and has a head circumference of 44.3 cm. His left temporal incision is well healed. He remains neurologically intact. Eom's are intact. Disc margins are sharp bilaterally. His anterior fontanelle is soft and flat. He has mild right occipital flatness, with his right ear anterior to his left and mild, compensatory right frontal bossing. These findings are very subtle and much improved since he was placed in the occipital molding band. As part of his ongoing work-up, Daniel had a repeat head CT that was intracranially normal. His bone flap is integrating well. I am pleased with the improvement Daniel has had thus far. I do not feel that neurosurgical intervention is warranted at this time. We will be happy to see them back at any time but don't feel that they need[] routine neurosurgical follow-up. Following Dr. Trumble's September 26, 2002, evaluation, Daniel has been followed by Ronald Davis, M.D., a pediatric neurologist. Dr. Davis first evaluated Daniel on June 27, 2003, and reported the results of his evaluation to Daniel's pediatrician, as follows: I had the opportunity to evaluate Daniel. As you well know, he is a 19-month-old who was born with a delivery complicated by multiple skull fractures and subdurals as a result of forceps delivery. He subsequently had some transient seizure activity and was on Phenobarb, but was able to wean off. He underwent a number of surgical repairs, but developmentally has done well. Over the course of the last number of weeks he had events where he vomits out of the blue, turns pale, cold and clammy. He has some eye deviation and becomes unresponsive and still. It lasts for a number of minutes and he can be sleepy afterwards. He has had somewhere between 7-8 of these events. They are very discrete events without any clear tonic or clonic activity. They have been occurring on a cycle range about every 4-8 days. As a result of this he has had an EEG. It actually demonstrated the presence of right frontotemporal sharp wave discharges. Interestingly, in the past mother had wondered whether or not he had also had some headache like activities where he would seem to grab his head and wince in pain. Though he has had a number of CT scans he has not had an MRI. He has not been started on any medications. PAST MEDICAL HISTORY: Otherwise notable for the subdurals and the fractures. He has some right facial injury and a right orbital injury. * * * ON EXAM: General: He is a well-developed, healthy- appearing male with some slight facial asymmetry, right over left HEENT, patient is normocephalic. Pupils are reactive . . . . . NEUROLOGICAL EXAM: Mental Status: He was awake, alert, oriented. He was attentive and interactive. His speech was fluent. He had no anomia. He could follow directions appropriately. He had good right-left orientation. Cranial nerves II-XII: Intact. Full EOM's. Fundi were sharp bilaterally. Tongue was midline. Motor Exam: Normal tone and bulk with 5/5 strength. He did not have a drift. Sensory Exam: Intact to light touch, vibration and cold. Reflexes: 2+. Toes: Down. Coordination and Gait: No primary ataxia, dysmetria or tremor. He had appropriate gait for age. IMPRESSION: Daniel is a 19-month-old with seizure-like episodes, likely partial in nature with an abnormal EEG with trauma as the most likely inciting event. PLAN: At this point I am going to arrange for an MRI to rule out any structural abnormality. I have given them Diastat 5 mg to use for any prolonged events and they are going to think over the use of long-term antiepileptic medication. The side effects and risks of going on medicine as well as not going on antiepileptic medication on a routine basis were reviewed. Following an MRI, Daniel had a follow-up visit with Dr. Davis on August 26, 2003. Dr. Davis reported the results of that evaluation, as follows: I had the opportunity to follow-up with Daniel. As you well know, he is our nearly 2-year-old who suffered traumatic fractures as a result of delivery by forceps, as well as the presence of subdurals. Since his last visit he has had an MRI and EEG. His EEG had, of course, demonstrated the presence of frontotemporal sharp wave discharges on the right. This did correlate with MRI abnormality. The MRI actually demonstrated thickening cortex in that region, as well as focal cystic encephalomalacia there, as well as in the right gyrus rectus and the basal ganglia. Additionally, there was periventricular leukomalacia noted bilaterally. He continues to do well developmentally. There are some mild delays, but he continues to advance without any evidence of regression or plateauing. * * * NEUROLOGICAL EXAM: Mental Status: He was awake, alert, attentive and interactive. His speech is mildly disarticulate, but fluent. He is able to engage appropriately. Cranial nerves II-XII: Intact with some estropia of the right. Motor Exam: Demonstrates symmetric movement. Reflexes: 1+ Coordination and Gait: No primary ataxia. IMPRESSION: Daniel is a nearly 2-year-old with traumatic injury was described with resultant mild developmental delay, periventricular leukomalacia and an abnormal EEG. PLAN: At this point we will just continue to have the Diastat 5 mg to use for any breakthrough seizures. We will continue to hold off on any routine antiepileptic medication as he has not had any breakthrough seizures. Dr. Davis continues to follow Daniel's progress. On his most recent evaluation of July 19, 2004, Dr. Davis noted: I had the opportunity to follow-up with Daniel. As you well know, he is our young man with history of traumatic fractures from delivery by forceps and subdural hematoma. He has abnormal EEG and periventricular leukomalacia on MRI. He continues to do relatively well. He has not had any significant seizure activity, though mother does relate a time when he appeared to be having some type of partial spell in the face of being overheated. Interestingly, the grandfather also reports that he sees Daniel put his head down at times as if he has some transient and/or paroxysmal head pain which can last for a number of seconds. However, he did have a repeat EEG back in June which continued to demonstrate the presence of left frontocentral spike and wave discharges, as well as independent right frontocentral spike and wave discharges. Cognitively he continues to advance. There appears to be no regression. ON EXAMINATION: General: He is well developed and healthy appearing. . . . HEENT. patient is normocephalic. Pupils are reactive . . . . NEUROLOGIC EXAM: Mental Status: He was awake, alert, attentive, interactive and engaging. His speech was mildly disarticulate, but fluent. Cranial nerves II-XII: Intact. Full EOM's, though mild esotropia is noted of the right. He has some mild asymmetry of his facies. Motor Exam: Normal tone and symmetric movement. Reflexes: 1+. Coordination and Gait: No primary movement disorder. IMPRESSION: Daniel is a young man with traumatic brain injury in the face of periventricular leukomalacia with mild developmental issues and abnormal EEG. PLAN: At this point I am concerned a little bit about these events that are both described by the grandfather, as well as the single event noted by the mother. Should these recur and/or persist I am going to arrange for a more prolonged ambulatory study. In the meantime we will continue to have the Diastat available and monitor him closely. On February 9, 2004, following the filing of the claim in this case, Daniel was, at Respondent's request, examined by Michael Duchowny, M.D., a pediatric neurologist. Dr. Duchowny reported the results of his neurology examination, as follows: PHYSICAL EXAMINATION reveals an alert, cooperative, well-developed and well- nourished 2-year-old boy. Daniel weighs 24 pounds and is 34 inches tall. The skin is warm and moist. There is one café-au-lait spot on the right thigh. There are no other neurocutaneous stigmata and no somatic dysmorphic features. The head circumference measures 48.5 cm, which is at the 50th percentile for age match controls. A bony ridge is palpated over the right skull vault and there is also a small area of depression. There are no facial asymmetries. There is some reddening beneath the eyes compatible with an allergic diathesis. The neck is supple without masses or thyromegaly. Bilateral anterior and posterior cervical adenopathy is palpated as well as small post auricular lymph nodes. The lungs' fields are clear and the heart sounds reveal a grade 2/6 innocent ejection systolic murmur. There is no palpable abdominal organomegaly. The abdomen is soft and non-tender. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION reveals an alert, well developed, cooperative and sociable 2- year-old. Daniel interacts very well and shows a very high level of curiosity. He was not overly defensive and cooperated fully for the evaluation. Daniel has an appropriate attentional span for his age and spoke in long phrases. He articulated his needs well. He also anticipated maneuvers and assisted in getting himself dresse[d] and undressed. Cranial nerve examination reveals full visual fields to direct confrontation testing. I can see no evidence of corneal scarring. The pupils are 2 to 3 mm and react briskly to direct and consensually presented light. A brief funduscopic examination was unremarkable. The extraocular movements are full and conjugate. There are no facial asymmetries. The tongue and palate move well. The uvula is midline. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are 2+ and symmetric and there are no pathologic reflexes. Both plantar responses are downgoing. Daniel's stance is narrowly based and he walks with good stability and symmetric arm swing. He turns crisply. He is able to get up from a sitting position without difficulty. Sensory examination is intact to the withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial or ocular bruits. There are no temperature or pulse asymmetries. Daniel is able to grasp with either hand and transfers readily. In SUMMARY, Daniel's neurological examination reveals no significant findings. He does have some cranial dysmorphism secondary to his previous skull fractures and surgery. However, Daniel does not show evidence of a substantial mental or motor impairment . . . . Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as in "injury to the brain . . . caused by oxygen deprivation or mechanical injury, occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. In this case, Petitioners and NICA are of the view that Daniel suffered an injury to the brain caused by the forceps delivery, but that he was not rendered permanently and substantially mentally and physically impaired. In contrast, Intervenors are of the view that Daniel's brain injury did result in permanent and substantial mental and physical impairment. The significance of Daniel's impairment To address the significance of any impairment Daniel may have suffered, the parties offered the records related to Daniel's birth and subsequent development, pertinent portions of which have been addressed supra (Respondent's Exhibits A-G); a color photograph of Daniel taken within the first 24 hours of birth (Intervenors' Exhibit 1); the deposition of Michael Duchowny, M.D., an expert in pediatric neurology (Respondent's Exhibit H); the deposition of Ronald Davis, M.D., an expert in pediatric neurology (Respondent's Exhibit K); the deposition of Petitioner Lorna Merklinger (Respondent's Exhibit I); the deposition of Petitioner Scott Merklinger (Respondent's Exhibit J); the deposition of Loren Mann, Daniel's maternal grandmother (Intervenors' Exhibit 3); the deposition of Ruth Merklinger, Daniel's paternal grandmother (Intervenors' Exhibit 4); and the deposition of George Merklinger, Daniel's paternal grandfather (Intervenors' Exhibit 2). Dr. Duchowny, as revealed in his deposition, was of the opinion, based on his review of the medical records and his neurologic evaluation of Daniel on February 9, 2004, that Daniel was neither mentally nor physically impaired, much less substantially mentally and physically impaired, as required for coverage under the Plan. Dr Duchowny described his evaluation and conclusions, as follows: Q. Doctor, when you examined Daniel Merklinger, what physical and neurological exams did you conduct on him specifically? What did you have him do or what did you observe? A. Well, his weight and height were recorded. I looked at his skin. I looked at his head. I felt his head, measured his head circumference. Observed his face, his mouth, his throat. I looked at and palpated his neck. I listened to his chest. I listened and felt his abdomen, looking for his internal organs, and palpated his extremities and his peripheral pulses. On the neurological examination, I observed his behavior and his communication patterns, both expressive and receptive. I looked at his attention span, his social abilities, his ability to engage me in both the examination and in conversation. I looked at his ability to participate in the expected activities of daily living within a limited sense; for example, how he dressed or undressed himself. I certainly observed his behavior, both with respect to me and with respect to his family. I performed a cranial nerve examination, which included an examination of the eyes, of the facial movements, and an observation of his hearing abilities. I also looked at the way his mouth moved, how he swallowed, how his tongue moved, whether or not there was any drooling. I further looked at his motor abilities, including the movements of his extremities, his arm and legs. I evaluated his muscle tone. I looked to see if there was any atrophy, any abnormal movement, any lack of movement, any stiffness in any of his limbs. I made sure that his gait was stable, that it was symmetric, that his coordination was appropriate for his age, that his hand use was appropriate, and that he had bimanual dexterity, that he transferred between hands, that he had good, fine motor coordination and pincer grasp. I looked at his ability to show evidence of good muscle strength; for example, getting up from a sitting position, his ability to walk and turn and show coordinated movements. I examined him for sensation, just looking at the way he moved his arms and legs in response to my touch and pressure, and also examined the patterns of the blood flow to his head by checking his neck and head for temperature, for the pulses, making sure there were no abnormalities or asymmetries. I also listened to his neck and head to make sure that there were no abnormal sounds emanating from the vessels supplying blood to his head. Q. Was his behavior age appropriate? A. I thought so, yes. Q. Was his communication ability age appropriate? A. Yes. Q. Was his motor ability and coordination age appropriate? A. Yes. Q. Did you see anything during your examination that led you to believe that he was physically impaired? A. No. Q. Did you see anything in your examination that led you to believe he was mentally impaired? A. No. Q. Do you have an opinion regarding whether or not he is substantially and permanently physically impaired? A. Yes. I do not belie[ve] he is substantially impaired, mentally or physically. (Respondent's Exhibit H, pages 34-37). Dr. Davis, as revealed in his deposition, was of the opinion that Daniel suffered some developmental delays, but articulated no findings from which one could reasonably conclude that Daniel was either substantially mentally or physically impaired. Regarding Daniel's developmental delays, Dr. Davis described them as follows: Q. Okay. And have you noticed . . . [any developmental issues] in your treatment of Daniel? A. He has some disarticulation of his speech. In other words, his speech is difficult to understand. There is some slight inconsistencies in his motor skills, so you would see that. But then, also, when you go through some of the -- just the typical other developmental learning issues, he has some difficulty with that as well. * * * Q. . . . [W]hen I was asking you about developmental delays, could you be more specific about what it is that you base that upon as a clinical symptom? A. In particular for Daniel or -- Q. Yes, yes. Specifically for Daniel. A. He has some difficulty with his speech, which is the motor component of the way he moves his mouth, if you will, that sort of formation of words. There is some movement abnormalities noted in his face, some asymmetry there. And then his gait is a little -- this is more from recollection than from others, because I don't remember documenting it. But his -- he's a little bit wide based in his stance, so there are more subtle degrees there of his motor difficulties. But the more prominent is his disarticulation of speech, that formation, the mechanical formation of words. * * * Q. All right. Earlier, I believe you described his -- the motor dysfunction he's currently displaying as mild; is that correct? A. I think that's in my note, yes. * * * Q. You . . . mentioned that the -- that Daniel has some developmental delays. What were you referring to? Was it just the speech and the -- A. And the motor, yes. Q. Okay. And could you -- I think you've already gone over this a couple times, but for the motor dysfunction, other than the asymmetry in his face and speech disarticulation, was it anything other than the widened gait? A. Not that I have documented here, no. (Respondent's Exhibit K, pages 24, 29, 64, 65, and 69). Notably, Dr. Davis did not opine that, or disclose any findings that would support a conclusion that, more likely than not, Daniel was mentally impaired, that Daniel was substantially physically impaired, or that Daniel's brain injury would, at any time in the future, result in substantial mental or physical impairment. As for the deposition testimony of Daniel's parents and grandparents, with regard to his current mental and physical presentation, they were all of the opinion, to the extent they were called upon to express one, that Daniel's mental and physical development were age appropriate. Their concerns for Daniel, to the extent they expressed them, were speculative in nature, and premised on their uncertainty as to whether Daniel's brain injury would, either through the manifestation of persistent seizure activity or developmental deficiencies, adversely affect him in the future. Such concerns are certainly natural, but insufficient to support a conclusion that, more likely than not, Daniel's brain injury has rendered him, or will render him, permanently and substantially mentally and physically impaired.
The Issue Whether Respondent violated section 456.072(1)(v), Florida Statutes (2018), by engaging or attempting to engage in sexual misconduct.
Findings Of Fact The Department is the state agency charged with regulating the practice of osteopathic medicine and prosecuting disciplinary actions on the Board's behalf, pursuant to section 20.43 and chapters 456 and 459, Florida Statutes. Dr. Van Buskirk is an osteopathic physician. He is licensed to practice osteopathic medicine in the state of Florida pursuant to license number OS 5899, which has been active in good standing for over 30 years. Prior to the Complaint, he had never been disciplined or had a disciplinary action brought against him. V.C. was a patient of Dr. Van Buskirk from December 12, 2017, to August 28, 2018. As reflected in V.C.'s medical records, she sought treatment for chronic and acute pain, primarily in her neck, right upper leg, and right groin. V.C.'s right leg and groin issues caused her pain when walking, weakness on her right side compared to her left, and inability to lay in bed on her right side. V.C. was referred to Dr. Van Buskirk by a patient who had been treated by him and found the treatment helpful. V.C. was treated by Respondent once or twice a month, totaling 13 visits over the nine-and-one-half-month span. At each visit, V.C. first met with an assistant who obtained current information from V.C. regarding her pain issues and medical history/medication. After Respondent reviewed the information, he proceeded to perform osteopathic manipulative treatment on V.C. from the top down, meaning he would start on V.C.'s neck and work his way down. Respondent spent 35 to 45 minutes treating V.C. each visit. V.C.'s 13 appointments with Respondent were on the following dates: December 12 and 22, 2017; January 11 and 30, 2018; February 27, 2018; March 27, 2018; April 17, 2018; May 8 and 29, 2018; July 10 and 31, 2018; and August 14 and 28, 2018. V.C. described Dr. Van Buskirk as completely professional in his treatment of her for the first ten visits, despite providing treatment each time in an admittedly sensitive area, her groin. Respondent's practice is to ask patients to wear comfortable clothing for their treatment visits that will allow him to access the areas needing treatment. V.C., for example, usually was dressed in leggings over underwear and a tee shirt. For some of the visits, Respondent was able to provide the osteopathic manipulation, even to the upper leg and groin area, through the leggings. Sometimes, however, the leggings or their seam placement interfered with his ability to adequately sense the tightness, relaxation, and contraction of muscles in the treatment area. For some visits, then, he asked V.C. for permission to go underneath the leggings with one hand, which she gave each time requested. Respondent did so several times during the first ten visits, lifting her leggings at the waistband and putting one hand down above the middle of her thigh between the leggings and V.C.'s panties. V.C. said that each of these times, Respondent was completely professional, never saying or doing anything inappropriate. V.C. also confirmed that Respondent was completely professional on visit ten on July 10, 2018, when her recollection was that she had to remove clothing to provide access for Respondent to administer a cortisone shot in her right upper thigh. V.C.'s eleventh visit was on July 31, 2018. According to V.C., unlike her other visits, she went to this appointment during a lunch break from work, and she was wearing shorts instead of leggings. The shorts were bulky, so she removed them when it came time for her to lie down on the exam table, face up, for her upper leg and groin area treatment. Respondent testified that his consistent office practice is to offer patients scrubs and a chaperone when he requests them to remove articles of clothing for treatment. He recalled having to ask V.C. to remove bulky shorts on one occasion so he could provide treatment to her upper thigh and groin area. Though Respondent did not specifically recall offering her scrubs or offering to have someone else come in the treatment room, his belief was that he acted in accordance with his consistent practice and offered both scrubs and a chaperone. V.C. did not dispute this account.4 At the hearing, V.C. testified that she was lying face-up on the exam table, with Respondent standing on her right side at about mid-thigh, so that her hip was to his left and her feet were to his right. From this position, V.C. testified that Respondent abruptly "pulled" or "snapped" her underwear from right to left, exposing her genital area, and rested the heel of his left palm5 on her pubic area, while he massaged her right thigh with his right hand. In describing the positioning of his left hand in more detail, V.C. said that the base of his thumb was on her pubic hair, and the base of his pinky was just above her labia. She said Respondent rested the heel of his left palm on her pubic hair for two to three minutes (but acknowledged that in an earlier recounting of this incident in 2018, her estimate was one to two minutes). 4 Petitioner's Proposed Recommended Order (PRO) contains a number of inaccurate citations to the record evidence. For example, Petitioner proposed findings of fact to the effect that on July 31, 2018, Respondent neither offered a chaperone nor had one present, and that Respondent did not offer surgical scrubs to V.C. (Pet. PRO at 3, ¶¶ 4, 6). None of the record citations offered as support for these two proposed findings contain testimony that Respondent did not offer a chaperone or that Respondent did not offer scrubs to V.C. Instead, they contain Respondent's testimony that he believes he acted in accordance with his consistent office practice to make both of those offers that day, and V.C.'s testimony that there was not a chaperone in the room and that she took off her bulky shorts and lay down on the exam table (wearing a tee shirt and panties). V.C. did not testify that she was not offered a chaperone or scrubs. 5 V.C. did not use the word "heel," but said "this part" of the palm, while pointing to the lower part of the palm above the wrist, which is the heel. V.C.'s description, though very detailed, is physically impossible in a number of respects, and as such, cannot be credited. To begin with, it is difficult to envision V.C.'s panties being "pulled" from right to left by someone standing on her right side. That would entail twisting the pulling hand to grasp the panties with the fingers and pull the panties to the side away from where the person is standing. Assuming the left hand were used to "pull" the panties from right to left, would that hand have remained holding the panties on the left side so as to expose V.C.'s pubic area? If so, it is difficult to imagine how the heel of the left palm could have rested on V.C.'s pubic hair. Further complicating the picture described by V.C., for the base of the left thumb to be at the top of the resting palm on V.C.'s pubic hair, with the base of the pinky at the bottom where the pubic hair ends, just above the labia, that left hand would have to contort 180 degrees from where the panties had been pulled (to the left side of V.C.'s pubic area). For the heel of the left palm to be resting on V.C.'s pubic area, with the base of the thumb high and the base of the pinky low, the fingers of the left hand would be pointed to V.C.'s right side at about the right upper thigh, rather than on the left side of her pubic area.6 The physical impediments fare no better if one were to assume that the panties were pulled left to right by Respondent's right hand. The problem is that with Respondent standing on Petitioner's right side, it is impossible to envision either left or right hand "pulling" panties away from right to left. And neither scenario supports V.C.'s description of what happened after the panties were pulled from right to left, leaving her exposed. V.C.'s description 6 Apparently recognizing the flaw in V.C.'s detailed description, Petitioner recharacterized V.C.'s testimony, suggesting that V.C. testified it was the base of Respondent's right thumb that was at the top on her pubic hair, with the base of his right pinky at the bottom just above her labia. (Pet. PRO at 3, ¶ 7). But that is not what V.C. said. She clearly was describing the positioning of Respondent's left hand. And, although Petitioner's version would help with this particular physical difficulty, it does not square with V.C.'s testimony that while the heel of Respondent's left palm rested on her pubic area, with base of thumb at the top and base of pinky below, Respondent put his right hand on her right upper thigh and started massaging her leg. of what Respondent did with his left hand defies physics. But V.C. also said that while the heel of Respondent's left hand rested on her pubic area, Respondent put his right hand on V.C.'s right thigh and began massaging her leg. With both of Respondent's hands now occupied on V.C.'s right side (heel of left palm resting on pubic area, base of left thumb high, base of left pinky low, fingertips at about V.C.'s upper right thigh; right hand on right upper thigh massaging her leg), neither hand could have been holding V.C.'s panties to the left side of her pubic area so as to keep her exposed. While V.C. described Respondent's pulling or snapping of her panties from right to left to expose her, followed by him resting the heel of his left palm on her pubic hair while he massaged her right thigh with his right hand, she could not recall whether, when, or how her panties returned to their rightful position. But elastic on panties makes a snapping sound when it returns into position after having been displaced. If V.C.'s panties had been pulled to the side exposing her pubic area, one would expect a "snapping" sound when the panties were released and the elastic would snap back into place. V.C.'s description did not seem to add up for this reason, too. V.C. said that she did not react to Respondent's actions by saying or doing anything, such as expressing her discomfort or distress, or stopping the treatment session early. Instead, V.C. said that she was in shock, so that after the one-to-two or two-to-three minute left heel-of-palm rest on her pubic hair, Respondent completed his regular course of treatment for another five or more minutes. V.C. acknowledged that Respondent never said anything inappropriate to her at any point. Respondent flatly denied V.C.'s account of inappropriate moving of her panties or inappropriate touching of her pubic area. According to Respondent, he never moved V.C.'s panties, but instead, provided the same osteopathic manipulation to her upper leg and groin area as he had at every other visit, except this time V.C. had removed her bulky shorts, while remaining covered by her panties. Respondent never observed any discomfort or distress by V.C.; and, as she acknowledged, she never expressed discomfort or distress. V.C. described her own uncertainty at the time as to whether what she perceived had been a mistake or an accident. She never said anything to Respondent or to his staff after the treatment session. She went to the receptionist desk, paid, and scheduled her next appointment for two weeks later, on August 14, 2018. V.C.'s testimony was inconsistent regarding whether she spoke with anyone about the July 31, 2018, treatment session between that day and her next appointment. She testified that she did not report the incident to anyone during the two weeks after the treatment session on July 31, 2018. But she also said that she spoke with her friend, T.B., for whom she works, that afternoon (July 31, 2018) when she returned to work, because, according to V.C., she was visibly distressed and T.B. asked her what was wrong. Petitioner offered T.B.'s testimony at the hearing to corroborate V.C.'s testimony. However, T.B. testified that he had a conversation at work with V.C. "in approximately November" 2018 that he initiated, not because he had observed V.C. in obvious distress, but because her performance was off that day. To explain why her performance was "off," she told T.B. she was upset because she had an experience at the doctor's office that was bothering her. She gave little detail, saying only that the doctor had touched her inappropriately. According to T.B., "she did say that it wasn't sex, that it was just inappropriate touching." (Tr. 120). V.C. had been seeing a psychiatrist for medical management of depression and insomnia. At her appointment on August 3, 2018, three days after the July 31 treatment session with Respondent, V.C. did not mention any incident to her psychiatrist. V.C. went to her next appointment with Respondent on August 14, 2018. She did not say anything to Respondent or his staff regarding the July 31 treatment session. Respondent provided the same osteopathic manipulative treatment he had performed the previous 11 visits. V.C. testified that Respondent was completely professional in both actions and words during the August 14 treatment session. After the session, she paid and scheduled her next appointment for August 28, 2018. V.C. went to the August 28 treatment session wearing leggings and a tee shirt. Respondent provided the same osteopathic manipulative treatment he had performed the previous 12 visits. When he started the treatment to her upper thigh and groin area, he was having difficulty sensing a particular tendon in the lateral groin area, to the right side of her groin. He requested permission to put one hand underneath her leggings, as he had previously done for some of the treatments to this area, and she gave her permission as she had previously. Respondent testified that when he went to lift up V.C.'s leggings at the waistband, he accidentally lifted both her leggings and her panties, sliding his hand down towards her right thigh to position his sensing finger on the tendon to the right side of her groin. He did not realize that he had accidentally lifted her panties too until he put his palm down to sense the tendon just to the right of her groin, a little to the left of her right hip bone, and he felt skin under his palm instead of the cloth of her panties. He immediately started removing his hand. At the same time Respondent realized his palm had come to rest on V.C.'s skin, V.C. realized the same thing. She immediately said, "I am not comfortable with this." Respondent had already begun removing his hand as V.C. spoke. At the hearing, V.C. described this incident the same as Respondent did, with one exception. According to V.C., Respondent lifted her leggings and underwear with his right hand, then slid his left hand down the center, and that his palm came to rest on her pubic area, with his middle finger extending to where the pubic hair ends, just above her labia. She agreed that Respondent's palm made contact with her for just an instant. She said that as soon as she felt the contact, she spoke up and he immediately removed his hand. Respondent emphatically denied that he made contact with V.C.'s genitals or pubic area. He described with great specificity exactly where he had put his hand, and why. For the work he was trying to perform on V.C.'s lateral groin, he was trying to sense a tendon located about one to one and one-half inches to the left of V.C.'s right hip bone (on the front part of the pelvis), at about belt-line (perhaps a low-slung belt). At that location, his hand was four inches to the right of the middle of the pubic bone, which is where his hand would have been according to V.C.'s description. Respondent's detailed explanation, which he demonstrated during the hearing, was credible and is credited. Other than V.C.'s one statement—"I am not comfortable with this"— she said nothing to Respondent about the incident. V.C. did not stop the treatment session early. Instead, Respondent completed the osteopathic manipulative treatment. V.C. acknowledged that Respondent never said anything inappropriate or unprofessional during the August 28 treatment session or at any previous session. V.C. testified that after the treatment session, she did not say anything to staff about the incident, but paid and ran out of the office.7 When she got to her car, she telephoned Maureen Maguire, who is her friend and, also, her gynecologist. V.C. testified that she told Dr. Maguire about the incident that had just occurred, and about the earlier incident. V.C. recalls Dr. Maguire telling V.C. about a similar incident she had experienced when she was going to a massage therapist. At the hearing, Dr. Maguire confirmed that V.C. called after the second incident to tell her about both incidents. V.C. told Dr. Maguire that 7 Respondent's staff credibly disputed V.C.'s claim that she ran out of Respondent's office. V.C. did not show any sign of distress. the first time, Respondent "was doing a manipulation in her groin area and that his hand went where it should not have gone." (Tr. 107). V.C. told her she went back to give Respondent another chance because she had come to love and trust him, "and it happened again but it was even more aggressive of hand in the wrong place, like down her underwear exactly, on the second time." (Tr. 108). Dr. Maguire testified that V.C.'s description gave her the impression that the first time, Respondent's hand ended up in the wrong place on top of V.C.'s clothing, because V.C. made a point of saying the second time his hand went under her underwear. Dr. Maguire said that V.C. was upset, so she tried to talk V.C. through it by sharing the "similar" incident that happened to her with a massage therapist. Dr. Maguire said she told V.C. that her biggest regret was that she had done nothing about it. As a result of her experience, she urged V.C. to report the incidents. Dr. Maguire said that V.C. was looking to her for advice, asking how to go about reporting it. Dr. Maguire gave V.C. a couple of suggestions, telling her she should report the incidents to law enforcement and the Department.8 V.C. testified that she also disclosed the August 28 incident to V.D., a friend of her son's who was living in her house temporarily while between leases. According to V.C., when she got home that day, V.D. saw her distress and asked her what was wrong, so she told him about the incidents, and he offered his sympathy and attempted to comfort her. V.D.'s testimony by deposition was offered in evidence by Petitioner to corroborate V.C.'s testimony regarding her disclosure to him. V.D. confirmed that he found V.C. distressed one day and asked her what was wrong. He said V.C. described a single incident in which her doctor touched her vagina inappropriately. V.C. also told V.D. that after the inappropriate touching, the 8 V.C. first testified that she recalled Dr. Maguire urging her to report the incidents, but that Dr. Maguire did not know how V.C. should proceed. V.C. later testified that she does not recall even discussing the subject of reporting the incidents with Dr. Maguire. doctor "made a comment to her about, like, having a hard time resisting her and not being able to control himself around her. Something to that effect." (Pet. Ex. 7, p. 15-16). V.D. later clarified that he did not recall the exact wording used by V.C. to describe what the doctor had said to her, "but it was something to the effect of that he had desired her for a while, or that he had a hard time resisting her. Basically saying that—justifying what he—the assault by saying, I'm physically or sexually attracted to you, is the effect of what he said to her."9 (Pet. Ex. 7, p. 21-22). V.D. testified that V.C. asked him what she should do, and they discussed reporting the incident to law enforcement. V.C. told him she intended to report it to the police, and later told him that she had reported it. V.C. did not report the incident(s) to the police or to the Department or Board. She explained that she felt guilt and shame, and did not want to relive the incidents as she would have to in order to report it. She blamed the incidents on intensification of "crying jags" that she had experienced before. She also blamed the incidents for a return of insomnia, which she said she had gotten under control. On October 12, 2018, V.C. told her psychiatrist, Dr. McKinnon, about the incidents during her regular appointment with him. His notes reflect some inconsistencies in the details of the incidents.10 Following her disclosure, Dr. McKinnon's notes reflect that he told V.C. he had to report the 9 Even though Petitioner offered V.D.'s deposition testimony into evidence, Petitioner did not ask its witness, V.C., to address V.D.'s testimony regarding the provocative statements V.C. attributed to Respondent. Instead, V.C. admitted at the hearing that Respondent made no inappropriate or unprofessional statements that day or any other day. 10 For example, Dr. McKinnon's notes reflect that V.C. told him that when Respondent put his hand under her leggings and panties on August 28, she immediately stopped the examination and left the office. At the hearing, V.C. did not dispute whether the notes accurately reflected what she told Dr. McKinnon. Instead, V.C. attempted to reconcile the discrepancy, suggesting the version in the notes was virtually the same as what happened because she "stopped [Respondent's] hand from being there, and then left the office a couple of minutes later." (Tr. 85). V.C.'s attempt to smooth over this discrepancy was unpersuasive. The notes also reflect that V.C. told Dr. McKinnon that she had consulted with an attorney who would not take her case. At the hearing, V.C. said that she did not recall telling Dr. McKinnon that, but she did not deny that the statement was true. incidents to the Florida Board of Medicine, and that she should report the matter to law enforcement or another attorney to explore her legal rights. Dr. McKinnon's notes contradict V.C.'s testimony about the effect of the incidents on her insomnia and crying jags. As of October 12, 2018, V.C. reported that, overall, the medications previously prescribed by Dr. McKinnon for management of her depression and insomnia had been helpful. In particular, V.C. reported that the dosage of one medication, which she "continues to take" twice a day, had effectively "reduced her crying spells[.]" (Pet. Ex. 1, p. 1). V.C. had been seeing Dr. McKinnon for medication management of depression and insomnia since well before the incidents, and the October 12, 2018, notes, addressing her positive progress since her previous appointments (the most recent of which was August 3, 2018), do not support her testimony that these conditions had been under control before the incidents or that they worsened because of the incidents. After the October 12, 2018, visit, Dr. McKinnon reported what V.C. had told him about the incidents to the Department, which began an investigation. The Department also reported the incidents to the Sarasota Police Department which conducted an investigation, but no charges resulted. V.C. also told her long-time physical therapist, Ofer Nissan, about one or both incidents, possibly close in time to her visit to Dr. McKinnon. V.C. said that she told him about the incident(s) because he had been treating her for a long time and had always been appropriate. Mr. Nissan's deposition was offered by Petitioner in lieu of live testimony, because Mr. Nissan had become uncooperative after being subpoenaed to testify at the hearing and had stopped responding to calls by Petitioner's counsel. Mr. Nissan testified that V.C. told him Respondent touched her private area in an inappropriate way while he was working on her right inner thigh. When asked if V.C. had used the phrase, "private area," Mr. Nissan responded: "She used the word 'vulva.'" (Pet. Ex. 9, p. 18). When asked whether V.C. said whether there was inappropriate touching or penetration, Mr. Nissan responded: "She said penetration."11 (Pet. Ex. 9, p. 25). Despite what Mr. Nissan said he was told by V.C., he did not report the incident(s). He acknowledged that "Dr. Van Buskirk is a doctor with a lot of respect in this town. … I respect the doctor. I respect his reputation." (Pet. Ex. 9, p. 20). V.C. acknowledged at the hearing that she has retained lawyers to represent her, and they have prepared a complaint for damages against Respondent. Although V.C. acknowledged "there is a money component," she testified that that was not her priority; she just wants to hold him accountable. V.C. told her friend, T.B., for whom she works, something very different. T.B. described a conversation with V.C. in which she told him the incident12 had been reported to the police and asked him what he thought would happen. T.B. told her that if it was true, Respondent would probably end up in jail. V.C. responded that she would just rather have a monetary settlement. At the hearing, T.B. said he found V.C.'s comment strange: "I personally felt that that was a motivation beyond justice." (Tr. 123). At the hearing, Petitioner presented the expert testimony of Anthony Davis, D.O., to offer the opinion that if V.C.'s statements are believed, then Respondent had committed inappropriate touching of V.C.'s genitalia, an act that was outside of the scope of practice of osteopathic medicine. At the same time, he acknowledged that the examination and treatment of V.C. performed by Respondent on July 31 and August 28, 2018, were required based on V.C.'s presenting complaints, and were justified by the medical records. 11 Even though Petitioner offered Mr. Nissan's deposition testimony into evidence, Petitioner did not ask its witness, V.C., to address the inconsistencies in Mr. Nissan's testimony regarding what V.C. told him. 12 T.B. said that in 2018, V.C. only told him about a single incident. T.B. testified that V.C. called him one week before the hearing to tell him (for the first time) that there had been two incidents, and also to tell him that she was filing a civil lawsuit against Respondent. Dr. Davis also offered his view that there was no sexual misconduct in this case, either outside the standard of care or by not acting in accordance with governing medical statutes and rules. He testified that Respondent did not use the patient/physician relationship to engage in sexual activity outside the scope of practice. Respondent presented the expert testimony of Walter Ehrenfeuchter, D.O. Like Dr. Davis, he was qualified as an expert in osteopathic medicine. But Dr. Ehrenfeuchter was also qualified in the additional area of osteopathic manipulative treatment, a specialty area that is particularly germane here, since Dr. Van Buskirk's practice has focused exclusively on osteopathic manipulative treatment for the last 12 years. Like Dr. Davis, Dr. Ehrenfeuchter reviewed V.C.'s patient records and the allegations raised. He also reviewed deposition testimony of Dr. Davis, V.C., and Respondent. Dr. Ehrenfeuchter went far beyond Dr. Davis's fairly conclusory opinions, by going into compelling detail, in both his testimony and illustrative exhibits, to explain the treatment techniques employed by Respondent in treating V.C., the challenges working in delicate physical areas to address V.C.'s specific complaints, and the related standards of care implicated in this case. Dr. Ehrenfeuchter's detailed presentation fully supported his overall opinions that Respondent's actions in examining and providing osteopathic manipulative treatment to V.C. were appropriate and within the scope of practice. Ultimate findings of fact Even if V.C.'s testimony were fully credited, Dr. Van Buskirk did not engage in or attempt to engage in sexual misconduct. He did not engage or attempt to engage in verbal or physical sexual activity with V.C. He did not induce or attempt to induce V.C. to engage in sexual activity. V.C.'s testimony, if credited, went no further than to suggest passive momentary resting of a palm or part of a palm on V.C.'s pubic area in the course of providing osteopathic manipulative treatment to V.C.'s painful groin. For many reasons, though, V.C.'s testimony cannot be credited. Her testimony lacked credibility, clarity, and consistency. The details she described were confused or contrived in many respects. The testimony of Petitioner's other witnesses, offered for the purpose of demonstrating consistency in V.C.'s statements from July 2018 through the hearing, instead demonstrated glaring inconsistencies on material points. The best that could be said about V.C.'s overall testimony is that V.C. may have been influenced by what others told her, starting with Dr. Maguire sharing her "similar" experience of realizing that she had been violated, such that V.C. built up in her own mind the belief that she, too, was violated. Yet V.C.'s embellishments, as described by the "corroborating witnesses," to V.D. (inventing verbal come-on statements of a sexual nature) and to Ofer Nissan (changing her allegation to inappropriate touching of her vulva and adding penetration) suggest the possibility of a more purposeful nefarious intent to spin a tale to try to capitalize financially. Respondent's testimony that he did not touch V.C. inappropriately was more credible than V.C.'s testimony, and is credited. Dr. Ehrenfeuchter's expert opinion that Respondent's examination and treatment of V.C. was appropriate, supported by the medical records, and within the standard of care and scope of appropriate osteopathic manipulative treatment practice was well-supported, more persuasive than Dr. Davis's opinion (to the extent it was inconsistent), and is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Osteopathic Medicine, issue a final order determining that Respondent, Richard Van Buskirk, D.O., is not guilty of a violation of section 456.072(1)(v), Florida Statutes (2018), and dismissing the Administrative Complaint. DONE AND ENTERED this 24th day of February, 2021, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2021. COPIES FURNISHED: Andrew Perrin, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street, Suite 200 Tallahassee, Florida 32301 Stephanie Clark, Esquire Pennington, P.A. 215 South Monroe Street, Suite 200 Tallahassee, Florida 32301 Kama Monroe, JD, Executive Director Board of Osteopathic Medicine Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399
The Issue Whether AHCA found a deficiency at Cypress Manor sufficient to support the issuance of a Conditional license effective September 4, 1997.
Findings Of Fact Cypress Manor is a nursing home located in Fort Myers, Florida. Every year, Cypress Manor is surveyed by AHCA to determine whether the facility should receive a Superior, Standard or Conditional licensure rating. On September 4, 1997, AHCA conducted its annual survey of Cypress Manor. After the survey was completed, AHCA alleged that the facility was not in compliance with 42 CFR Section 483.25(c), the regulatory standard dealing with the prevention and treatment of pressure sores on residents.1 AHCA issued a survey report in which this deficiency was identified and described by a “Tag” numbered F314. AHCA is required to rate the severity of any deficiency identified during a survey with two types of ratings: “scope and severity” rating defined by federal law, and a Class rating which is defined by State law. After the September survey, AHCA assigned the F314 deficiency a scope and severity rating of “G” which, under federal regulations, is a determination that the deficient practice was isolated.2 The F314 deficiency was also given a State Classification rating of II which, under state law and Agency rule, is a determination that the deficiency presented an imminent threat to the health, safety or security of the residents. Because AHCA determined that there was a Class II deficiency at Cypress Manor after the September survey report, it changed Cypress Manor’s Standard licensure rating to Conditional effective September 4, 1997. By law, Cypress Manor was required to post the Conditional license it received in a conspicuous place near the entrance to the facility. See also, Section 400.23(8)(g), Florida Statutes. AHCA also placed Cypress Manor’s name on a list of facilities that received Conditional licenses which was distributed to and published by newspapers throughout Florida. These acts adversely affected Cypress Manor. After AHCA issued its September survey report, Cypress Manor was required to submit a Plan of Correction to AHCA. Although the plan submitted did not admit the allegations of the survey, it did provide a plan of corrective action that the facility would implement to address the deficiencies cited in the survey. The Plan also represented that all corrective action would be completed by October 1, 1997. AHCA returned to Cypress Manor on October 22, 1997, to determine if the facility had corrected the F314 deficiency alleged in the September survey report. After completing that survey, AHCA determined that the alleged deficiency had been corrected and issued Cypress Manor a Standard license effective October 22, 1997.3 Cypress Manor filed a Petition for Formal Administrative Hearing with AHCA to challenge the findings of the September survey, as well as AHCA’s decision to issue Cypress Manor a Conditional license. That Petition was referred to the Division of Administrative Hearings and a hearing was conducted by Judge Pfeiffer on November 16, 1998. PRESSURE SORES AHCA alleged under Tag F314 of the September survey report that Cypress Manor failed to provide necessary care to one resident to prevent the development of her pressure sores, and failed to provide necessary treatments to that same resident and one other resident to promote healing of their pressure sores. A pressure sore is a loss of skin integrity, usually over a bony prominence, that is caused by unrelieved, prolonged pressure. Since pressure sores are created by pressure, removal of pressure from a resident’s skin is a primary focus of any care plan for a resident to prevent or treat pressure sores. Although it is impossible to determine with any degree of reliability the length of time that a resident can remain in one position before a pressure sore will develop or worsen, the accepted standard of preventative care for or treatment of pressure sores is that a resident should be turned and repositioned every two hours. Additionally, devices such as heel protectors, boots, or seat cushions can be used to help relieve pressure to those parts of a resident’s body on which pressure sores have developed. The risk of development or worsening of pressure sores may be exacerbated by factors other than pressure. A resident who is incontinent produces moisture that can increase the risk of pressure sore development. A diet which does not provide a resident with sufficient calories or protein may hinder the healing process. A routine preventative care plan to address the development or worsening of pressure sores should include interventions to keep a resident dry, nourished and hydrated, as well as relieve pressure to the resident’s body. Interpretative guidelines provided to AHCA’s surveyors in the State Operations Manual (“SOM”) suggest that, before the surveyors determine that a pressure sore that developed on a resident was avoidable, they must determine that the facility did not “consistently” administer routine preventative care. An isolated occurrence of a failure by a facility to administer appropriate preventative care will not preclude a finding that the development of a sore was unavoidable. Moreover, the failure to implement a routine care plan out of deference to a resident’s personal choices or lifestyle, or as a trade-off to meet other needs of the resident is appropriate to consider. Pressure sores can develop or worsen despite the consistent implementation of a routine pressure sore care plan due to a resident’s clinical conditions. A resident may have diseases which affect a resident’s ability to get oxygen to cells, to digest and process food, to have sensory feelings in arms or legs, or rid the body of waste that may make the development or worsening of pressure sores inevitable. A resident may have psychological conditions that make the resident unwilling to accept needed care. A resident does not have to be in a terminal state in order for these conditions to lead to the development of an avoidable pressure sore. When pressure sores appear on a resident, a nursing home will describe them in the resident’s medical record by one of four stages. A stage I area is one in which the skin is unbroken but has nonblanchable redness. A stage II area is a very shallow wound that may present itself as a blister or a small crater. A stage III wound is a deeper wound that penetrates subcutaneous tissue, while a stage IV wound is one which reaches muscles, tendons or bone. Staging a pressure sore is not an exact science. For example, a stage III pressure sore will frequently first appear on a resident as a small red area with no unbroken skin, and will not manifest its true character until the skin later breaks open as part of its natural healing process. Because stage III wounds can present themselves in that manner, it is not uncommon for a caregiver to initially document that the sore is a stage I or II sore. In those instances, the true initial character of a pressure sore can only be determined in hindsight or by looking at information other than the stages assigned to the sore, such as pictures, measurements and descriptions of the sore from the resident’s medical record. RESIDENT 4 Resident 4 was one of the two residents identified in the survey report as having received poor pressure sore care. She was admitted to Cypress Manor on February 19, 1997, with many conditions that compromised her body’s ability to prevent the development of pressure sores, including pneumonia, dehydration, cardiac arrhythmia, hypertension, dementia with psychotic agitation (that manifested itself through an unwillingness to cooperate with care or to get out of her wheelchair for prolonged periods of time) and a previous heart attack. Resident 4 was admitted to Cypress Manor with a stage I pressure sore on her left heel. Between her admission on February 19, 1997, and February 24, 1997, Resident 4’s left heel pressure sore was charted as moving from a stage I to a stage II sore and, by March 27, it was shown as a stage III sore. In early April, Resident 4 broke her hip and had to go to the hospital. While in the hospital, her left heel pressure sore became larger and she developed a stage III pressure sore on her right heel. Resident 4 returned to the facility and developed a stage II pressure sore on both her left and right buttocks on May 12, and a stage II pressure sore on the bottom of her left foot on August 31. Of the five pressure sores that developed on Resident 4 between February and September, the right and left buttocks’ sores and the sore on the bottom of her left foot developed while Resident 4 was at Cypress Manor. Each sore developed despite a comprehensive care plan for Resident 4 to prevent the development of sores that included turning and repositioning Resident 4 at least every two hours, incontinence care, heel protectors, a pressure relieving mattress, a top-of-the-line Roho gel cushion in her wheelchair and monthly dietary assessments. AHCA’s expert on pressure sores, Dr. Joel Mattison, conceded that the care plans that Cypress Manor developed to prevent pressure sores on Resident 4 were good. Cypress Manor’s expert on pressure sores, Theresa Vogelpohl, opined that the pressure sores developed by Resident 4 on her buttocks were unavoidable due to her clinical conditions. Resident 4 had pneumonia which prevented the facility from increasing Resident 4’s hydration, because increasing fluids would increase the risk that the pneumonia might worsen. She had an infection in her left heel which compromised her body’s resistance to pressure sore development. She had a fractured hip that increased her risk for blood clots and therefore increased her need to be up in a wheelchair. She had severe circulatory impairment and dementia and was resistive to care. Because the facility had a comprehensive care plan to address pressure sore development (that included a top-of-the-line gel cushion), Ms. Vogelpohl determined that Resident 4’s clinical conditions caused the development of her buttocks’ sores. Ms. Vogelpohl opined that the pressure sore that developed on the bottom of Resident 4’s left foot was also unavoidable. The facility put a Mediboot on Resident 4’s left foot in March to relieve pressure to the pressure sore that existed on Resident 4’s left heel. However, use of the Mediboot increased the Resident’s risk for development of pressure sores on the bottom of her foot, particularly when the Resident used her foot to propel herself in her wheelchair. Because the facility believed that the risk of harm to her left heel without the Mediboot was greater than the risk of development of a sore on the bottom of her foot with it on, the facility kept the Mediboot in place. The correctness of this decision was confirmed as the Resident’s left heel improved and she did not develop any pressure sores on her left foot until August 31, some five months after the Mediboot was placed on her. Thus, the ultimate development of the sore on the bottom of her foot was an unavoidable consequence of other needed care for the Resident. AHCA did not claim that all five of Resident 4’s pressure sores were avoidable, but instead stated that Cypress Manor could have prevented the development of the pressure sores on the Resident’s right and left buttocks.4 Additionally, AHCA did not allege that the development of those sores was related to the failure to assess Resident 4 and develop adequate care plan interventions to prevent the development of the sores. Rather, AHCA believed they developed solely because Cypress Manor failed to implement one component of its care plan program effectively. Dr. Mattison opined that Resident 4 developed preventable pressure sores on her buttocks in May because the facility left the Resident in her wheelchair for too long. He inferred that Resident 4 had been left in her wheelchair too long in May because the survey report stated that the surveyors observed the Resident in her wheelchair for extended periods of time during the September survey.5 However, no surveyor testified at hearing that these observations were made, and Dr. Mattison did not talk to the surveyors about their observations, did not personally observe the Resident and did not offer anything from the Resident’s medical record during that time period to support this conclusion. In addition to showing that Resident 4’s three in-house acquired pressure sores were unavoidable, Cypress Manor showed that it had a good treatment program for Resident 4’s pressure sores, and that all five of Resident 4’s pressure sores steadily improved after they developed. Resident 4’s right heel sore and her right buttock sore were completely healed by August 4 and August 15, 1997, respectively. The sore on the bottom of her left foot was completely healed within 30 days of its development. The left heal pressure sore progressed steadily and was nearly closed by the time of the September survey, and the left buttock pressure sore had been substantially reduced in size by the time of the September survey. Despite this record which showed improvement of Resident 4’s pressure sores, AHCA claimed that Cypress Manor did not provide all necessary treatments to promote healing of the wounds. The specific allegations made by AHCA were that Cypress Manor (a) failed to implement its pressure sore care plans for all of its residents, (b) left Resident 4 up too long in her wheelchair during the survey, (c) failed to update Resident 4’s pressure sore care plan and provide any new interventions after the left heel pressure sore became a stage III sore on March 27, (d) failed to provide all required dressing changes to Resident 4’s left heel between February 19 and March 27, 1997, and (e) failed to provide adequate dietary interventions to Resident 4 to promote healing of all of the pressure sores. AHCA did not present evidence to support the allegations described in (a), (b) or (c) above. AHCA also admitted that the treatments given to the pressure sores on Resident 4’s buttocks and the bottom of her left foot were good. Although AHCA failed to present any evidence in support of its claim that the facility should have updated Resident 4’s care plan on March 27, 1997, Cypress Manor disproved the allegation. AHCA’s belief that the plan should have been updated was predicated on the assumption that the sore had worsened from a stage I to a stage III sore. In fact, it had not. Although Resident 4’s medical records described the sore as a stage I sore that progressed to a stage III sore, they also initially described the sore as an area of red skin surrounding a blue area. The description of a blue area indicated that the sore had deep tissue damage associated with a stage III sore, which was confirmed when the sore later opened up and revealed that damage in March. Moreover, Resident 4’s medical records reflected that the sore had decreased in size between her admission and March 27, thereby indicating that the care plan the facility designed for the sore was appropriate. Finally, Cypress Manor demonstrated that the facility had implemented new interventions around March 20 (Mediboots and new treatments). Dr. Mattison was the only AHCA witness to testify with regard to AHCA’s claim that Cypress Manor failed to provide all dressing changes to Resident 4’s left heel between February 19 and March 27.6 He inferred that the facility failed to treat the wound between February 19 and March 27 because the facility failed to treat the wound once in April. However, he acknowledged that this belief was not supported by Resident 4’s February and March treatment records, and that his opinion was based upon a “paranoia” about care rather than facts. Cypress Manor presented Resident 4’s February and March treatment records which showed that Dr. Mattison opinion was incorrect, and that all needed treatments were provided to Resident 4. AHCA’s specific allegations regarding the absence of appropriate dietary care for Resident 4 were that, between May and September 1, 1997, Cypress Manor (a) waited until July 1 to implement a dietician’s May 23 recommendation for vitamin therapy for the Resident, (b) failed to provide Resident 4 with ordered supplements several times in August and twice during the September survey, and (c) failed to communicate the dietician’s recommendation for procalamine treatments for the Resident to the Resident’s doctor.7 AHCA’s surveyor also testified that Resident 4’s lab values taken in late July confirmed that Cypress Manor was not providing adequate dietary interventions to Resident 4 because they indicated she was suffering from severe protein malnutrition. Cypress Manor provided Resident 4 with a diet that was adequate to promote healing of her pressure sores. Dieticians in a facility can estimate the caloric and protein needs of a resident by using formulas such as the Harris Benedict Equation or the Agency Health Care Policy and Research (“AHCPR”) Guidelines for pressure ulcer healing. Those formulas are estimates of a resident’s nutritional needs based upon a resident’s height and weight, and provide for adjustments based upon factors such as resident obesity or stress caused by injury. Cypress Manor’s dietician assessed Resident 4’s nutritional needs when she was admitted to the facility, defined her as being at nutritional risk, and implemented aggressive dietary interventions to meet those needs. Based upon AHCPR guidelines, Resident 4 needed 1600-1900 calories per day and 64-83 grams of protein to meet her nutritional needs and promote healing of her pressure sores. Resident 4 was given a no-added-salt diet, fortified foods, whole milk, extra fruit juices and ice cream that provided her with over 4100 calories and 135 grams of protein per day, as well as twelve times the recommended daily allowance of Vitamin C. Resident 4’s consumption records demonstrated that she consumed enough of her diet to meet her assessed needs every month between April and August 1997. In addition to showing that it provided Resident 4 with an adequate diet to promote healing of her pressure sores, Cypress Manor also demonstrated that its dietician was assessing Resident 4’s nutritional status at least monthly, which was three times as frequent as regulations require. All of these interventions were imminently successful as Resident 4’s pressure sores on her right side healed while those on her left side steadily progressed toward healing between April and September of 1997. Additionally, the facility was able to maintain another important indicator of good nutritional status -- the Resident’s usual body weight -- within its normal ranges during this same time period. AHCA’s contention that Cypress Manor failed to implement a May recommendation by its dietician to add vitamin therapy to the Resident’s dietary regimen until July 1, did not establish that the facility failed to provide Resident 4 with adequate nutrition to promote healing of pressure sores. A primary benefit of vitamin therapy to a resident with pressure sores is that it provides Vitamin C to the resident. The surveyor apparently noted that, because the dietician recommended the Vitamin C, Resident 4 was not getting enough Vitamin C to promote healing. However, Resident 4 was already receiving twelve times her recommended amount of Vitamin C when the May recommendation for a multivitamin was made, and continued receiving that amount up to and after the facility began giving Resident 4 a multivitamin. The failure to provide Resident 4 with the multivitamin did not deprive her of any meaningful amount of Vitamin C and did not retard the healing process for Resident 4’s pressure sores. In fact, all four of the pressure sores that Resident 4 had on May 23 decreased in size by July 1. Likewise, AHCA’s contention that the facility failed to provide Resident 4 with Promod shakes several times in August and twice during the September survey did not establish that the facility failed to provide Resident 4 with adequate nutrition to promote healing of pressure sores. The surveyor apparently believed that, because the dietician ordered the supplements, the Resident was not receiving enough protein and calories from her existing diet. However, at the time the surveyors claim that Resident 4 was not receiving these supplements, Resident 4 was consuming 700-1300 more calories and 17-36 more grams of protein than she needed to promote healing of her pressure sores. Cypress Manor showed that the failure to provide Resident 4 with the supplements did not deprive her of any meaningful amount of protein or calories and did not retard the healing process for Resident 4’s pressure sores. AHCA’s contention that the facility failed to follow through with the dietician’s recommendation for procalamine treatments was based solely upon the fact that nothing was written in the Resident’s medical record to show that the facility contacted the doctor about the recommendation. In fact, the facility had contacted the Resident’s doctor and he rejected the recommendation. The facility informed the surveyors of this rejection and documented it in the Resident’s record at the time of the survey. Any delay in documenting the doctor’s rejection of the recommendation did not cause any harm to Resident 4 or deprive her of any needed dietary interventions. AHCA’s surveyor claimed that her opinion that the facility failed to adequately nourish Resident 4 was absolutely confirmed by lab values that were taken for Resident 4 at the end of July of 1997. The Resident’s albumin, pre-albumin, transferring and BUN levels were all lower than normal range and AHCA’s surveyor interpreted them to mean that the Resident was suffering from severe protein malnutrition. While lab values can be an indicator of the nutritional status of a resident, AHCA’s surveyor and the SOM guidelines acknowledge that it is not always appropriate to the use low values as proof that a resident is malnourished. Low lab values may indicate that a resident is ill rather than malnourished. Some residents will have low lab values regardless of the adequacy of their diets. Lab values cannot be considered the single indicator of a resident’s nutritional status, but must be interpreted in the context of the overall clinical picture of the resident. During the seven-month period chosen by the surveyors in which to evaluate Resident 4, she presented numerous compromising conditions. She had pneumonia, a broken hip, five pressure sores, and had received multiple rounds of antibiotic therapy. Additionally, she suffered from dementia, a condition that can affect a person’s metabolism. Low lab values are not unusual for a resident with these types of conditions. In light of the fact that Cypress Manor provided Resident 4 with an adequate diet to meet her nutritional needs, Resident 4’s low lab values were indicative of her compromised condition rather than a malnourished state. RESIDENT 8 Resident 8 was the only other resident who was identified in the survey report under Tag F314 and AHCA alleged that Cypress Manor failed to provide him necessary treatments to prevent worsening of his pressure sores. Resident 8 was admitted to Cypress Manor in August of 1997 with stage I pressure sores on both of his heels. He had a pressure sore care plan that included turning and repositioning, a pressure relieving mattress, incontinence care, heel protectors while in bed and treatments daily to his sores by the wound nurse. In addition to having pressure sores, Resident 8 was at risk for falls when he would attempt to walk on his own. Resident 8 was also dying from pancreatic cancer, and all of his care plans were tempered by the order that his comfort was the primary objective of any care offered to him. During one day of the survey, AHCA’s surveyor, Bill Sullivan, observed Resident 8 lying in bed with his shoes on without heel protectors on either heel. Because Resident 8’s care plan directed that he was to have heel protectors on while in bed, Mr. Sullivan cited the facility under Tag F314 for failing to provide necessary treatment to promote healing of Resident 8’s pressure sores. However, he acknowledged that neither of Resident 8’s pressure sores worsened while Resident 8 was at the facility. Dr. Mattison, AHCA’s expert on pressure sore care, contradicted Mr. Sullivan’s Tag F314 conclusions. Dr. Mattison testified that a single instance of a facility’s failure to follow a care plan did not violate the standards of the regulation. He further testified that Resident 8’s pressure sores were not going to heal because of the Resident’s terminal state, and that the Resident’s choices and comfort were a primary concern. For those reasons, Dr. Mattison testified that he did not believe that the facility failed to provide necessary care to Resident 8.8 Cypress Manor also demonstrated that there were valid reasons not to remove Resident 8’s shoes and put heel protectors on him every time he went to bed. Resident 8 frequently put himself to bed and got up on his own. The heel protectors that were ordered for Resident 8 were slick and increased his risk for falling if he attempted to walk in them. Accordingly, the facility did not put them on him during his day naps because of the risk that he might get up on his own and attempt to walk in them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Agency for Health Care Administration enter a final order issuing a Standard rating to Cypress Manor and rescinding the Conditional rating. DONE AND ENTERED this 10th day of February, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 February, 1999.
Findings Of Fact John D. Elder is a site worker at Port St. Lucie High School, having first been employed by the St. Lucie County School Board as a temporary employee in the summer of 1993. When first employed, Mr. Elder rejected the option to enroll in the employer's insurance plan. In September 1993, Mr. Elder was given an employer's insurance form allowing ninety days for enrollment. On November 12, 1993, he completed the form and became eligible for certain benefits on January 1, 1994. The St. Lucie County School Board Medical Benefit Plans, in which Mr. Elder enrolled, excludes coverge for pre-existing conditions until the end of 12 months of continuous coverage. The plans include the following definitions: A pre-existing condition is an injury, sickness or pregnancy or any condition related to that injury, sickness or pregnancy, where a diagnosis, treatment, medical advice or expense was incurred within twelve (12) months prior to the effective date of this coverage. Pre-existing condition will also include any injury, sickness or pregnancy or related condition that manifested itself twelve (12) months prior to the effective date of this coverage. Pre-existing condition will also include the existence of symptoms which would cause an ordinarily prudent person to seek diagnosis, care or treatment within twelve (12) months prior to the effective date of this coverage. (Emphasis Added.) From 1985 to 1988, Mr. Elder was treated by Dr. Urban who, on March 24, 1988, performed an electrocardiogram ("EKG"), which was normal. Dr. Urban treated Mr. Elder for respiratory illnesses, such as bronchitis and pleurisy, for back and shoulder muscle spasms, bursitis/tendonitis, and for high blood pressure. On September 21, 1988, Mr. Elder first saw Dr. Richard Dube. On that day, his heart rate was 62, as compared to the normal range of 60 to 100. In October 1988, Dr. Dube treated Mr. Elder for an inflammation of the muscle behind his shoulder. In December 1988 and January 1989, he treated Mr. Elder for high blood pressure and headaches. In July 1991, Mr. Elder called an ambulance and was taken to the hospital complaining of pain in his neck, across his shoulders, and down his arms. Among other tests, an EKG was performed. The diagnosis was tendonitis in his right shoulder. Later that same year, Mr. Elder complained of heart burn. Dr. Dube treated him for epigastric distress and high blood pressure. Blood test analyses of his cholesterol and high, low and very low density lipid levels indicated a cardiac risk factor of 10.3 for Mr. Elder, which is more than twice the standard male risk factor of 5.0. Dr. Dube ordered blood tests again in January 1993, at which time Mr. Elder's cholesterol and high density lipid levels were still high, but had decreased, reducing the cardiac risk factor to 8.0. Dr. Dube also referred Mr. Elder for an ultrasound of the gallbladder, which was diagnosed on January 29, 1993, as having calcification, which could represent a gallstone, and probably having a small polyp. At the same time he treated Mr. Elder for carpal tunnel syndrome and temporomandibular joint syndrome ("TMJ"). Most recently, on July 27, 1993, the same tests were repeated. With cholesterol in the normal range, the cardiac risk factor was decreased to 6.5. In the fall of 1993, Mr. Elder's complaints were diagnosed as episgastric reflux. To reassure Mr. Elder, Dr. Dube ordered another EKG, which was performed on November 23, 1993, and was normal. On January 3, 1994, Mr. Elder's complaints of ongoing pain caused Dr. Dube, who suspected he had a hiatal hernia, to refer him to Dr. Dan G. Jacobson for an upper endoscopy. Dr. Jacobson recorded a history of episgastric/chest pain, hypertension, ulcers and arthritis. Dr. Jacobson also noted a family history described as "remarkable for heart problems, heart attack." The admitting diagnosis was "history of episgastric pain refractory to medical therapy." Dr. Jacobson performed the endoscopy and diagnosed mild stomach gastritis. Based on a two week history of epigastric and chest pain, and his conclusion that the pain was too severe to result from the endoscopy findings, Dr. Jacobson consulted a cardiologist. Dr. Robert N. Blews, a cardiologist, saw Mr. Elder in the hospital. The history taken by Dr. Blews noted (1) that Mr. Elder's father died of a heart attack at age 68, and that his mother had coronary bypass surgery at age 48 and died at age 59, (2) that the onset of "chest tightness" was approximately one year prior, and (3) that he has a history of cervical spine disease. Dr. Blews' notes also reflected a change in the pattern of the chest pains in the last one to two months, and additional changes in the last two weeks. The longest episodes of pain were lasting from 20 to 30 minutes, with associated sweating and shortness of breath. Mr. Elder also told Dr. Blews that the pain could be with exercise, at rest, could awaken him, and occurred while he was just walking to his car. The report describes Mr. Elder as having a history of smoking. The EKG which Dr. Blews ordered on January 8, 1994 showed a major blockage on the left side of the heart, and is significantly different from all of the prior EKGs, including that taken on November 23, 1993. Dr. Blews concluded that Mr. Elder was having angina, or a decrease in the blood supply to his heart two weeks, two months, and a year before January 1994. Mr. Elder's wife, Florinda Elder, has been aware of his complaints of stomach problems for 10 years, but had no knowledge of his heart problems until January 1994. She was not aware of his having ever smoked or complained of shortness of breath. Although she was at the hospital, Mrs. Elder was not in the room when Dr. Blews took her husband's medical history. Mr. Elder's shoulder and muscle aches, and cervical spine pain are the result of a serious car accident in 1969. The pains are aggravated by cold weather. Mr. Elder claims to have been under the effects of anesthesia at the time Dr. Blews took his medical history, and denies having had a year of chest tightness, shortness of breath, or difficulty walking to his car. He has not smoked for 20-25 years, which is not inconsistent with Dr. Blews' report of a "history of smoking." Mr. Elder's attempt to undermine Dr. Blews history is specifically rejected. The McCreary Corporation is the administrator of the St. Lucie County School Board's self-insurance plan, which contracts with a consultant, Independent Health Watch. Kay Trentor, R.N., reviewed the claims submitted by Mr. Elder, and concluded that his coronary artery disease was a pre-existing condition. In part, Ms. Trentor was relying on Dr. Blews history of a year of "chest tightness." Mr. Elder's records were also sent for peer review, to two other consultant organizations, Professional Peer Review, Inc. and Medical Review Institute of America, Inc. They, in turn, sent the records to Board certified cardiologists, with cardiovascular disease subspecialties. The first report concludes that Mr. Elder "should have known that he had coronary disease because he had multiple risk factors for heart disease," and that "if he was reasonably prudent he would have had this taken care of during the time he was having chest pain walking to the car." The second peer review report also notes a year of chest tightness, with symptoms worsened "over the two months preceding the admission, but . . . not recognized as cardiac until the hospitalization on January 7, 1994." The report concludes that coronary artery disease was not diagnosed until after the effective date. The second report was prepared by Ronald Jenkins, M.D., who believes that Drs. Dube and Jacobson, "seemed to be focusing on gastrointestinal diagnoses . . . and had kind of missed the boat, so to speak . . .," but that "an ordinarily prudent person with John Elder's symptoms which he reported prior to January 1, 1994, [would] have sought medical treatment for those symptoms." Coronary artery disease takes years to develop, but is erratic in manifesting itself, with some people having no symptoms to severe symptoms over a matter of hours. Dr. Dube described it as "silent" coronary disease. Dr. Blews estimates that a heart attack is the first symptom in 40 percent of patients. There is no dispute that Mr. Elder has had other medical conditions, including TMJ, arthritis, and gastroenterological problems. Dr. Jenkins believes the most important manifestation of coronary artery disease was upper precordial chest tightness going to the left upper extremity as well as to the throat. When the history indicates that the tightness occurs with exercise, according to Dr. Jenkins that gives 90 percent confidence that it is anginal chest pain. That confidence level increases to 95 percent when he notes that Mr. Elder told Dr. Blews that chest discomfort occurs when he walks to his car. Without that history, however, Dr. Jenkins would not be able to conclude that the chest discomfort is due to heart disease or that the cardiac condition manifested itself prior to January 1, 1994. Dr. Jenkins described chest heaviness, aggravated by being in cold weather, as a symptom of coronary disease. The same pain without multiple risk factors, occuring irregularly, is a reason for "looking into other alternative diagnoses." Dr. Jenkins also acknowledges that episgastric reflux can cause chest discomfort and throat pain, and that cervical spine degenerative disc disease can cause a radiation of symptoms into the upper extremities, as it did when Mr. Elder called an ambulance in 1991. Dr. Blews did not have trouble getting a complete, detailed history from Mr. Elder. He typically has to elicit a more specific description from patients complaining of chest discomfort. He gives choices such as pain, burn, stab, jab, tight, squeeze or pressure, from which Mr. Elder chose "tight." Dr. Blews also found that Mr. Elder had chest wall pain in several spots or fibrosistitis, which is not a symptom of heart disease. Chest tightness could also be attributable to asthma, according to Dr. Blews, but with radiating pain into the left arm, jaw, and throat, shortness of breath, and sweating, he was certain Mr. Elder had heart disease. All of the doctors agree that Mr. Elder's heart disease existed before January 1, 1994, and that he had no diagnosis, treatment, medical advise or expense related to heart disease in the 12 months prior to January 7, 1994. There is no evidence that he was ever evasive or uncooperative with doctors. On the contrary, Mr. Elder was consistently described in doctor's notes and hospital records as anxious or concerned about his health. Coronary artery disease had not manifested itself to Mr. Elder or his doctors prior to Dr. Jacobson's decision to consult with Dr. Blews. "Manifest" is defined in Respondent's exhibit 9, a page from the International Classification of Diseases, 9th Revision, 1995, or ICD-9, as "characteristic signs or symptoms of an illness." The doctors who testified, in person or by deposition, described every sign or symptom experienced prior to Dr. Blews' consultation, as also being a sign or symptom of Mr. Elder's other medical conditions. Mr. Elder's symptoms might have been diagnosed as also indicating that he had heart disease, if he had been referred to a cardiologist sooner. There is no factual basis to conclude that Mr. Elder, or any ordinarily prudent person, should have sought diagnosis, care, or treatment for heart disease when, in fact, his doctor reassured him that his EKG was normal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order approving Petitioner's claim for payment of medical expenses in the amount stipulated by the parties. DONE AND ENTERED this 12th day of July, 1995, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0373 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in preliminary statement and Findings of Fact 2. Accepted in Findings of Fact 3. Subordinate to Findings of Fact 3. Accepted in Findings of Fact 22. Accepted in Findings of Fact 5-8. Accepted in Findings of Fact 5-8 and 12. Accepted in Findings of Fact 7 and 10. Accepted in Conclusions of Law. Accepted in or subordinate to Findings of Fact 6. Respondent's Proposed Findings of Fact. 1. Accepted in Findings of Fact 1 and 2. 2-3. Accepted in Findings of Fact 2. 4-5. Accepted in Findings of Fact 3. Accepted as corrected in Findings of Fact 23. Accepted in Findings of Fact 9. Accepted in Findings of Fact 8 and 9. 9-12. Accepted in or subordinate to Findings of Fact 9. 13-15. Accepted in Findings of Fact 20. Accepted in Findings of Fact 22. Accepted in or subordinate to Findings of Fact 20. Accepted in or subordinate to Findings of Fact 15-23. Accepted in preliminary statement and Findings of Fact 13. Accepted in or subordinate to Findings of Fact 14-16. Accepted in Findings of Fact 14 and 15. Accepted in Findings of Fact 16. Accepted in Findings of Fact 8. Accepted in Findings of Fact 9 and 20. Accepted in Findings of Fact 23. Accepted in Findings of Fact 17. Accepted in Findings of Fact 23. Accepted, but Dr. Dube's testimony was found credible and corroborated by his notes. COPIES FURNISHED: John T. Kennedy, Esquire The Injury Law Offices of John T. Kennedy 309 East Osceola Street Suite 306 Stuart, Florida 34994 C. Deborah Bain, Esquire Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane, P.A. 1645 Palm Beach Lakes Boulevard Suite 700 Post Office Box 2508 West Palm Beach, Florida 33401 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. David Mosme, Superintendent St. Lucie County School Board 2909 Delaware Avenue Ft. Pierce, Florida 34947-7299
