The Issue An Administrative Complaint dated May 22, 1991, and amended at the commencement of the hearing on June 14th, alleges that Respondent violated Section 458.441(1)(t), F.S. by rendering inappropriate treatment to a patient, by failing to ask appropriate follow-up questions as to her pain and condition, and by failing to see her in a timely manner. The issue is whether the violations occurred, and if so what discipline is appropriate.
Findings Of Fact Mitchell L. Levin, M.D., the Respondent, is, and has been at all relevant times, a physician licensed in Florida with license number ME 0049608. He practices as a board-certified opthalmologist with a principal office in Kissimmee, Florida. The prehearing stipulation filed by the parties at hearing establishes the following: From on or about May 18, 1989 until on or about May 22, 1989, Respondent treated patient #1 for pain in both her eyes and blurred vision. Respondent's initial examination of the patient on May 18, 1989 revealed that the patient had anatomical narrow angles in both of her eyes. Respondent administered Mydriacyl 1% to both of the patient's eyes to dilate them for examination. At the time of Respondent's examination the patient's intraocular pressure was 22, 23 in the right eye and 17, 18 in the left eye. The patient developed acute glaucoma due to the administration of Mydriacyl, on May 18, 1989. At approximately 4:45 p.m. on May 18, 1989 the patient contacted Respondent's office and spoke with a member of Respondent's staff. At approximately 7:30 p.m. on May 18, 1989 the patient contacted Respondent's answering service. At approximately 8:00 p.m. Respondent responded and spoke with the patient. At approximately 7:20 a.m. on May 19, 1989 the patient contacted Respondent's answering service and was advised that Respondent's associate would examine the patient at 9:00 a.m. Respondent's associate, Konrad W. Filutowski, M.D., examined the patient on May 19, 1989 and diagnosed the patient as suffering from acute glaucoma requiring surgery. At the time of Dr. Filutowski's examination of the patient, the patient related to Dr. Filutowski that she had suffered from pain and blurred vision since 3:00 p.m. the prior day. On May 19, 1989, the patient underwent bilateral surgical iredectomies to relieve pressure caused by the acute glaucoma. The administration of Mydriacyl for dilation in this case is not a deviation from the standard of care. However, the patient's narrow angles and slightly elevated pressures alerted the physician that dilation could precipitate acute glaucoma. Dr. Levin was sufficiently concerned about the patient's potential for glaucoma that he had his technician set up a glaucoma movie for the patient to watch after the administration of the drops and while the eyes were dilating before his examination. The patient remembers a movie but none of its details, as her eyes were mostly closed from the effect of the drops. Dr. Levin has a packet of information on glaucoma that he has written and that he routinely hands out to patients. No one specifically remembers giving one of these to Patient #1, and she denies receiving one. When the patient first left Dr. Levin's office on May 18, 1989, her eyes were starting to water and she observed that light was very bright. This is not unusual when eyes are dilated for examination. Later in the afternoon when she was home she felt the watering increase, felt pressure and then could not see at all out of her right eye. She called Dr. Levin's office to let them know in case something was wrong. The receptionist referred her to someone whom she believed was the doctor's technician and who told the patient she could expect some discomfort for up to two days. By approximately 7:00 p.m. the pressure was worse, and the patient could not see out of either eye. She had her daughter call the doctor's answering service to explain that something was terribly wrong. Dr. Levin returned the call within a half hour. The patient gave her name and told him she had called his office earlier but that the watering was worse and that she could not see out of either eye. He tried to figure out who she was and then told her the same thing she had heard earlier, that the discomfort could last up to two days. When she apologized for calling again, he told her it was all right to call. As the evening wore on, the pressure became worse. The patient kept thinking that it was something she had to endure since the doctor said it might last for two days. She kept applying a wet washcloth and could not sleep. In the early morning she tried calling her daughter, was unsuccessful, and attempted to walk across the street to her daughter's house. Her daughter found her disoriented and going the wrong way. Shortly after 7:00 a.m. they called Dr. Levin's office again and were referred to his associate, Dr. Filutowski for a 9:00 a.m. appointment. At Dr. Filutowski's office the patient was nauseous and vomited with the pain. An acute glaucoma attack is accompanied by rapidly progressive symptoms: blurry vision, then loss of vision, discomfort from pressure, then increasing pain to the point of nausea and vomiting. There is no question that the patient was in extreme pain in the afternoon of May 18th and throughout the night. She communicated that pain to Dr. Levin's office staff and to him through terms such as "pressure", "watering", "discomfort", and "blindness". Under the circumstances described above, when a patient reports that she is calling for the second time and that her condition has worsened, a reasonably prudent physician should make a specific inquiry with regard to the symptoms and degree of pain and should make arrangements to see or have the patient seen immediately. Dr. Levin has an office protocol which requires his staff to ask certain questions to determine a patient's condition when the patient calls in. Dr. Levin also has an algorithm, or pathway of questions, which he uses to determine a patient's needs. He believes that he followed that routine with this patient but that her answers did not alert him to a glaucoma attack. He took the May 18th evening call at home and did not have any patients' records with him. He has no recollection of the conversation with this patient. He sees from 15 to 70 patients a day in his office and speaks with as many as 40 or 50 a week on the telephone. Both the patient and her daughter remember the telephone conversation with Dr. Levin the evening of May 18, 1989. The daughter called and spoke with the answering service. When Dr. Levin returned the call the patient spoke directly to him while her daughter was present. While she may not have used the term, "pain", she conveyed her pressure, extreme discomfort, worsening condition and blindness. Dr. Levin did not inquire into specifics and did not make arrangements for the patient to be examined. Those omissions constitute failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. Respondent's disciplinary history includes a stipulated disposition of a prior Administrative Complaint, adopted by final order on April 6, 1990 and relating to violations other than Section 458.331(1)(t), F.S.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That a final order be entered finding Respondent guilty of violating Section 458.331(1)(t), F.S., and imposing the following penalty: A two year period of probation with terms and conditions to be specified by the Board of Medicine, and a fine in the amount of $1,000.00. DONE and RECOMMENDED this 9th day of October, 1991, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1991. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Rejected as unnecessary. Adopted in paragraph 1. Adopted in paragraph 2a. Adopted in paragraph 2b. Adopted in paragraph 2c. Adopted in paragraph 2d. Adopted in paragraph 3. Adopted in paragraph 3. Adopted in paragraph 2e. Adopted in paragraph 2f. Adopted in paragraph 2g. Rejected as unnecessary. Adopted in paragraph 8. Adopted in paragraph 11. Adopted in paragraph 14. Adopted in paragraph 2h. Adopted in paragraph 2h. Adopted in paragraph 2i. Adopted in paragraph 2j. Adopted in paragraph 2k. Adopted in paragraph 14. Adopted in paragraph 15. Respondent's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2a. Adopted in paragraph 2b. Adopted in paragraph 2c. Adopted in paragraph 2d. Adopted in paragraph 2e. Adopted in paragraph 2f. Adopted in paragraph 2g. Adopted in paragraph 2h. Adopted in paragraph 2i. Adopted in paragraph 2j. Adopted in paragraph 2k. Adopted in part in paragraph 3, otherwise rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Adopted in summary in paragraph 13. Adopted in summary in paragraph 11. Rejected as unnecessary. Rejected as contrary to the weight of evidence. COPIES FURNISHED TO: Bruce D. Lamb, Esquire Department of Professional Regulation 730 S. Sterling St., Suite 201 Tampa, FL 33609 Salvatore A. Carpino, Esquire Suite 1010 The Commons One North Dale Mabry Tampa, FL 32609 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth, Executive Director DPR-Board of Medicine 1940 N. Monroe Street Tallahassee, FL 32399-0792
The Issue The issue is whether Petitioner received the proper grades on the November 1997 chiropractic examination.
Findings Of Fact Petitioner graduated in 1994 from a chiropractic university. He was licensed to practice in Michigan and saw 100-200 patients daily while in practice there. In November 1997, Petitioner took the Florida chiropractic licensure examination. The November examination consisted of three parts: technique, physical diagnosis, and x-ray interpretation. (A fourth part on Florida law is irrelevant in this case.) A passing grade is 75 on each of the parts, which are graded separately, not cumulatively. Petitioner earned a passing grade of 85.5 on the physical diagnosis part of the November examination. However, he earned failing grades of 60 and 67.6 on the technique and x-ray interpretation parts, respectively. Petitioner suffers from diabetic retinopathy, which resulted in neovascularization of both eyes with a rupture in the left eye. Petitioner was totally blind in this eye for several months until the blood drained out of it. The residual scar tissue formed a macula, or traction, that created a black spot in the center of Petitioner's vision with the left eye. This condition has not been corrected by surgery, and Petitioner has been left with a permanent blind spot in the field of vision of his left eye. When Petitioner first received his application for the Florida examination, he did not inform Respondent of his visual disability because it does not affect his ability to read x-rays in viewboxes, which, based on past experience, was how Petitioner assumed that the x-rays would be presented. Later, Petitioner learned that the x-rays were presented on slides projected on large screens for all of the candidates taking the examination. At the November 1997 examination, there were three screens for approximately 160 candidates. Two to three months prior to the test date, Petitioner contacted a regulatory specialist for the Board of Chiropractic to obtain the necessary accommodation, which would consist merely of assigning Petitioner a seat in the first row from the screen. When this person did not return Petitioner's calls, he contacted another person who was employed at the Division of Medical Quality Assurance. Trying to help Petitioner, she suggested that he bring a physician's note to the examination, and the test administrator would seat him up front. Petitioner did as he was told, but when he appeared at the test site, about 30-45 minutes early, he was told at the door that he could not even bring the note inside with him to show the test administrator. Petitioner entered the test room and found that he had been assigned a seat three rows from the back. He tried to explain his situation to a proctor, but was unable to get his seat moved or permission to approach the screen to see the x-rays better, so he proceeded to take the examination. When the x-rays appeared on the screen, Petitioner tried closing his left eye and squinting, but could not see the x-rays sufficiently to interpret them in this timed section of the examination. Respondent's mishandling of Petitioner's timely and reasonable request for an accommodation for this visual disability rendered the scoring of the x-ray interpretation part of the November examination arbitrary and capricious and devoid of logic and reason. Respondent's solution is to offer a free retest for this part of the examination. If there were no basis in the record to imply an accurate score for the x-ray interpretation part of the November examination, then a free retest would be Petitioner's sole remedy. However, if there is a basis in the record to imply an accurate score for the x-ray interpretation part of the November examination, then this is the preferred remedy because, for the reasons set forth in the conclusions of law, this remedy better restores Petitioner to the position in which he should have found himself after taking the November 1997 examination. In this case, it is possible to imply a correct score for the x-ray interpretation part of the November examination due to: 1) the clear nature of Petitioner's disability; 2) the clear results obtained six months later when Petitioner retook the x-ray interpretation part of the examination with no other accommodation besides being seated in the front row; and 3) the absence of any indication in the record that Petitioner enlarged his knowledge of x-ray interpretation between November 1997 and May 1998. In May 1998, Petitioner passed the x-ray interpretation part with a score of 82.3. It is found that Petitioner would have passed the x-ray interpretation part of the November 1997 examination if Respondent had made reasonable accommodation for his disability. It is further found that, eliminating the unreasonably adverse testing conditions at the November examination, Petitioner's proper test score for the x-ray interpretation in the November 1997 examination is 82.3. Petitioner's performance on the May 1998 examination does not inspire as much confidence on the technique part of the examination. Although he raised his score on the latter examination, he still scored only a 70, which is five points below passing. At this latter examination, Petitioner also failed the physical diagnosis part with a score of 73.7, even though he had passed it with an 85.5 six months earlier. This matter is discussed in the conclusions of law. Petitioner's strongest challenge to the technique part of the November examination is confusion concerning an instruction describing the patient as suffering from an "old compression fracture." Petitioner did not perform the manipulative technique, for which he would have received credit, because he was concerned that the fracture might not have healed; he thus performed only a soft tissue massage. There is insufficient ambiguity in the description of an "old compression fracture" to justify Petitioner's caution, especially considering that he did not avail himself of the opportunity to ask questions of his examiners. Petitioner's other challenges to the technique part of the November 1997 examination are without merit.
Recommendation It is RECOMMENDED that the Board of Chiropractic enter a final order awarding Petitioner a passing grade of 82.3 for the x-ray interpretation part of the November 1997 examination, in place of his invalid score of 67.6, so that he will be deemed to have passed the physical diagnosis and x-ray interpretation parts of the chiropractic licensure examination at the November 1997 administration. DONE AND ENTERED this 26th day of October, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1998. COPIES FURNISHED: Philip Andrew Cobb 18508 Orlando Road Fort Myers, Florida 33912 Anne Marie Williamson, Attorney Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Eric G. Walker, Executive Director Board of Chiropractic Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Respondent should be disciplined for allegedly practicing medicine below the generally accepted standard of care when he performed a laminectomy and discectomy at the incorrect level of a patient's lumbar spine.
Findings Of Fact Respondent, William O. DeWeese, is a Florida licensed physician, having been issued license number ME 0025687. Respondent is Board-certified in Neurological Surgery and is a Fellow of the American College of Surgeons. He has practiced medicine since graduating from medical school in 1968. He received his Florida license in 1975 and established his practice in Tampa where he has continuously practiced medicine ever since. In twenty-four years of practice, the Florida Board of Medicine has never disciplined Respondent. Respondent's Standard Practice Respondent conducts his practice primarily through two local hospitals, St. Joseph’s Hospital and University Community Hospital. He has a typical practice common to neurological surgery. On average, Respondent performs three to four laminectomy-discectomy procedures each week. Before performing surgery on the spine, Respondent’s protocol is to review available medical records and films (CT, MRI, X-ray), obtain an EKG, obtain chest X-rays, and blood work. During surgery, he routinely obtains "real time" radiological confirmation of the level of the spine where he intends to operate based on his initial pre-surgical work-up. Respondent does this by marking the level where surgery is to take place with radio-opaque material (usually a cottonoid sponge), and has an X-ray film of the patient's spine and the marker exposed and developed in the operatory (OR). Respondent reviews the X-ray in the OR before having the X-ray technician take it to the radiology department for review by a radiologist. The radiologist on duty reviews the X-ray and usually writes on the X-ray to label the location of the marker and has the technician bring the labeled X-ray back to the OR; he then calls the OR, usually on a speaker telephone, to inform the surgeon as to the radiologist's interpretation of the film. Any question as to the level of surgery is resolved at that time. If Respondent is not at the intended level of the spine, he makes the appropriate adjustment in the surgical procedure and completes the surgery at the correct level. The First Surgery S.D. first presented to Respondent in November 1989 with complaints and symptoms of intractable back and left leg pain. She had been seen previously by other physicians but had not experienced any relief. At the time she presented to Respondent, S.D. was 5 feet 5 inches tall and obese (at 175 pounds). Unbeknownst to Respondent at the time, the patient also had an anatomical anomaly of six lumbar vertebrae instead of the more common five. As a result of the patient's anatomical anomaly, physicians could easily be misled, fooled, or misunderstood in reporting the level of spine being evaluated or treated. Depending upon awareness of the patient's specific anomaly and terminology used, the same location on the spine could be referred to as L4-L5, as L5-S1, or as L5-L6. Usually, neurosurgeons can predict the location of nerve root pathology fairly accurately based solely on a patient's complaints, objective examination, and symptoms. Specific nerves innervate specific areas of the body, and a deficit in one area of the body can reasonably lead a physician to suspect nerve root pathology at a particular level of the spine. Because Respondent was unable to determine from initial review of the patient's prior MRI that she had a sixth vertebra, he expected to find nerve root pathology at the L5-S1 level of the spine based on S.D.'s complaints, objective examination, and symptoms. But on X-ray and re-review of the MRI with benefit of the radiologist’s report, Respondent noted the sixth vertebra. Following a complete examination of S.D., including review of a recent CT scan, her prior MRI study, and X-ray films, Respondent believed that S.D. had a "large disc protrusion" at the L5-L6 level of the spine and a "small disc bulge" at the L4- L5 level. The patient's extra lumbar vertebra helped explain the location of the patient's nerve root pathology in relation to her complaints, objective examination, and symptoms. Respondent recommended that S.D. undergo lumbar surgery to explore the disc spaces, remove extruded disc material, and free any entrapped nerves. He expected to have to remove disc material only at the L5-L6 level. His pre-operative diagnosis was: degenerative lumbar disc with lateral angle stenosis (narrowing) at L5-L6; and possible disc protrusion at the L4-L5 level on the left. Respondent performed surgery on S.D. on December 4, 1989. The operation consisted of: a left laminectomy, exploration and inspection of the L4-L5 disc; and a laminotomy, foraminotomy, and partial discectomy at L5-L6. To accomplish the surgery, Respondent dissected away the soft tissues above L4, L5, L6, and S1. He then followed his protocol by placing radio-opaque cotton underneath the ligament at the level he believed was L4-L5 for radiological confirmation. After "real time" radiological confirmation that he was at L4-L5, Respondent removed enough lamina at L4-L5 to inspect the disc and nerve root. He did not observe any entrapment of the nerve and did nothing further at L4-L5. He next proceeded to L5- L6, where he repeated the same procedure but noted entrapment at the posterior aspect of the nerve root. The majority of the pressure on the nerve came from the neural foramen, and this was removed with osteotomy. Some disc material also was removed to free the nerve root. While inspecting the disc space at L5-L6, Respondent observed that the disc space was so narrow that a spinal needle was the thickest instrument that the disc space would receive; a straight pituitary curet could not be placed into the disc space. Respondent recorded these observations in his surgical notes. Similarly, the radiologist's report noted "considerable narrowing of the interspace at the L5-L6 level." Respondent completed the operation by performing a foraminotomy (removal of bone surrounding the point of exit of the nerve from the vertebras of the spinal column). The operation in December 1989 was uneventful; S.D. did well post-operatively and was discharged from the hospital after a normal stay. The Second Surgery S.D. returned to Respondent in March 1993 because of recurrent severe back pain and left leg pain. Following appropriate diagnostic tests and examination of S.D., which revealed what was thought to be a herniated disc on the left side at L5-L6, Respondent planned to "re-do" a laminectomy and discectomy at L5-L6. By the time of the patient's second surgery on May 10, 1993, she had gained about 40 pounds (up to 215 pounds.) The planned surgery was made more difficult by S.D.'s weight gain, as well as by her previous surgery. Additional fatty tissue decreased the operative field of view, as well as the quality of the intra- operative X-ray. S.D.'s anatomical landmarks had been altered as a result of the December 1989 surgery, and there was considerable scaring in the area to be explored during surgery, which obscured the remaining landmarks. Without the presence of normal landmarks and with heavy scaring and weight gain, Respondent had fewer tools to locate the correct level, making the second surgery more difficult. One landmark still available to Respondent to aid in the second surgery was the very narrow interspace at the L5-L6 level. However, Respondent did not the read surgical notes from the first surgery carefully enough to recall the landmark; or, if he read them and recalled the landmark, he attached little significance to the notes and landmark, as compared with other factors influencing his decisions during surgery. One of the reasons Respondent and his expert gave for not attaching more significance to the December 1989 findings as to the remarkably narrow L5-L6 interspace was that a patient's position on the Wilson laminectomy holder and the operation of the holder can alter the apparent width of lumbar interspaces. The holder is a special, adjustable operating table that can be made to "bridge up" in a continuous arc to force the patient (lying on the stomach) to stretch over the "bridge" and make the vertebral interspaces widen for easier access during surgery. While theoretically position on and operation of the holder can affect the width of the interspaces, in practice the surgeon always positions the patient and operates the holder so as to maximize the interspaces. One would not expect the positioning and operation of the holder in two operations at the same level of the lumbar spine to significantly widen an interspace as narrow as the one described in the December 1989 surgical notes. But it might reduce the relative importance of the landmark, compared to other information available to the surgeon, such as radiological confirmation and visual examination of the site. Through answers to his attorney's questions on direct, Respondent also initially attempted to take the position that the patient's weight gain between the two surgeries was enough to warrant ignoring the December 1989 surgical note as to the narrow L5-L6 interspace. But the Department's expert opined that the added weight would not make a significant difference, and on cross- examination Respondent admitted that he actually did not have the patient's weight gain in mind as a reason to gloss over the December 1989 surgical note as to the narrow L5-L6 interspace. Indeed, consistent with Respondent's admission on cross- examination, both Respondent and his expert, Dr. Maniscalco, opined that, if anything, the added weight probably would tend to reduce the maximum flexion obtainable through use of the Wilson laminectomy holder and make the interspaces at the surgical site appear narrower, not wider. Nonetheless, depending on its distribution on the patient, weight gain could possibly alter the apparent width of the interspace during surgery on a Wilson laminectomy holder, and this could also reduce the relative importance of the landmark, compared to other information available to the surgeon, such as radiological confirmation and visual examination of the site. While conceding that he really did not pay much attention to the December 1989 findings as to the remarkable narrowing of the L5-L6 interspace, Respondent also attempted to take the position in testimony that the L4-L5 interspace was fairly narrow itself, as compared for example to the L3-4 interspace. But the L5-L6 interspace clearly was much narrower than L4-L5 and could have been used as a landmark. See Findings 25 and 29, infra. Nonetheless, as previously mentioned, the relatively narrow interspace at L-5-L6 was just one factor to be considered, along with radiological confirmation and visual examination. As Respondent wrote in his notes on May 10, 1993, he thought: "The previous laminectomy site was easily identified and confirmed with a lateral X-ray." The Department's expert took the use of the singular "previous laminectomy site" as evidence that Respondent was unaware of the previous laminectomy at L4-L5. But Respondent testified convincingly that he had reviewed the patient's medical records and was fully aware of both previous laminectomies--at both L5-L6 and L4-L5. (Respondent also testified that his use of the singular, "previous laminectomy site" was intended to mean the general site of both previous laminectomies. But it was the L5-L6 laminectomy site that he thought was "confirmed with a lateral X-ray," so it seems that the language used probably actually referred to the site of the intended surgery. In that respect, the wording of Respondent's surgical notes was ambiguous, if not erroneous.) As usual, an X-ray technician took the lateral X-ray, developed the film, and showed it to Respondent in the OR. Respondent testified that he then had the X-ray technician take the film to the radiology department, along with the pre-operative MRI, and that a radiologist on duty confirmed for him that he was at the "correct level" before he proceeded with the surgery. When Respondent proceeded with the surgery, he widened the laminectomy site and found a disc fragment (which he presumed to be recurrent) underneath and entrapping the nerve root. The nerve root was retracted medially, and the disc space was entered. A large fragment of disc was found in the subligamentous position. Respondent removed the large fragment; then more disc material was removed from the interspace, freeing the nerve. Respondent then performed a foraminotomy and completed the surgery. The pathology found during the second surgery was not inconsistent with the general kind of pathology Respondent expected to find at the L5-L6 level. Relying on visual examination and radiological confirmation, Respondent believed that he was operating at L5-L6. He did not notice, or attached no significance to, the ease of access to the disc space in May 1993, as compared to the narrow interspace encountered at L5-L6 in the first surgery. The Third Surgery After normal recuperation in the hospital, the patient noticed apparent improvement and began regular walking. However, approximately six to eight weeks after surgery, back and leg pain recurred, and the patient returned to Respondent for consultation. Respondent ordered another MRI and scheduled the patient for an appointment in August 1993. When Respondent reviewed the post- operative MRI with the patient, he realized that he had operated at L4-L5 instead of L5-L6. He asked the patient to go to the hospital and get the intra-operative X-ray to help him understand what had happened. It was his belief that the X-ray would show that he had radiological confirmation. With the patient's help, Respondent obtained the X-ray the same day. See Finding 35, infra. Instead of showing radiological confirmation, the X-ray's labeling showed someone's interpretation that the radio-opaque marker on the X-ray was at L4- L5. (There was no evidence as to who labeled the interpretation. Id.) When Respondent saw the writing on the X-ray, he immediately conceded that he had operated at the wrong level and began the process of scheduling a third surgery (the second at L5-L6). Respondent performed the patient's third surgery free-of- charge on September 17, 1993. He had three X-rays taken during the third surgery. The first one apparently was taken before any incision was made. The second was made to confirm that the Respondent was at L5-L6 this time. Instead, the X-ray showed that he was at L6-S1. Respondent tried again, and a third X-ray confirmed L5-L6. Respondent continued with the operation as planned. Findings during the third surgery supported the reasonableness of using the narrow L5-L6 interspace as a landmark during the second surgery. Once again, Respondent found cause to note significant narrowing at L5-L6, stating: "A needle was placed exactly in the interspace, which was small and tight." (The patient weighed 217 pounds at the time of the third surgery--two pounds more than for the second surgery.) The third surgery was otherwise uneventful and apparently successful. The patient discharged after a short stay. The Questionable X-ray Confirmation Although it appears in hindsight that Respondent should have attached more significance to the notes from the first surgery as to the remarkably narrow disc space at L5-L6, even the Department's expert conceded that Respondent should not be found to have practiced below the generally accepted standard of care if he received "real time" radiological confirmation before proceeding with the second surgery. (The Department's expert assumed from the medical records that there was no radiological confirmation. See Finding 33, infra.) Excepting the possibility of an obvious and clear error by the radiologist, the generally accepted standard of care entitles a surgeon to rely on a radiologist's "real time" reading of an intra-operative X-ray. The radiologist's specialty is interpreting X-rays, and the viewing equipment and lighting in the radiology department is far superior to what is available to the surgeon in OR. The question becomes the truth of Respondent's claim of having had "real time" radiological confirmation in the context of the other evidence presented in the case. The radiologist normally would have conveyed the "real time" confirmation of the correct level to the surgeon over a speaker telephone in the OR. But no one else present at the time of the surgery testified. (The patient testified by deposition, but she was under general anesthesia during surgery and could not testify as to radiological confirmation.) Respondent could not remember the name of the radiologist he says confirmed the correct level, and he was unable to show through any other means who confirmed the correct level for Respondent. Meanwhile, the Department did not present any direct evidence to dispute Respondent's claim of "real time" radiological confirmation in the OR. But there was circumstantial evidence that raised questions as to the veracity of the claim. In a hospital radiology report on the intra-operative X- ray, a radiologist named Robert G. Isbell, M.D., stated: "Film was not available for interpretation in the radiology department. The film will be read upon its return." This report was dated May 17, 1993; it was not clear from the evidence whether the report was dictated on that date, released on that date, or both. This could indicate that the X-ray was not taken to the radiology department during the surgery on May 10, 1993, since standard procedure would be for the radiologist to dictate the report immediately after calling down to the OR to confirm the correct level for the surgeon. (The Department's expert assumed from this report that there was no radiological confirmation.) However, it also is possible that an unknown radiologist confirmed the correct level for Respondent and then failed to follow the normal procedure, and either he forgot to dictate the report, or the dictation got lost or for some other reason did not result in a transcribed report to go in the patient's file "jacket" in the radiology department. If there was radiological confirmation in the OR, the radiologist apparently did not label the film and have it sent back to the OR, as usual, because the X-ray apparently was not labeled until later. See Findings 35-36, infra. When the patient went to St. Joseph’s Hospital in August 1993 at the Respondent's request to ask for her X-ray, she was told that a doctor had just asked for it to be sent over to the hospital (apparently from where it ordinarily would have been kept.) S.D. was surprised and somewhat suspicious that the hospital was familiar with her X-ray by name and that it coincidentally had just been requested by a doctor. There was no evidence as to the identity of the doctor who requested the X-ray. S.D. insisted on receiving her X-ray immediately and waited until it was returned to her. When she got it, there appeared to be fresh "grease pen" writing on it. As previously mentioned, the grease pen writing labeled the X-ray and clearly indicated someone's interpretation that the radio-opaque marker on the X-ray was at L4-L5. Respondent has maintained that he had never seen the grease pen writing before the X-ray was brought to him by the patient in August 1993. This is consistent with the patient's testimony that the grease pen writing appeared to her to be fresh, and it seems clear from the evidence that the writing was placed on the X-ray shortly before S.D. retrieved it, contrary to normal procedures. This evidence also makes it possible that the X-ray never was sent to the radiology department during surgery, again contrary to normal procedures. It is not clear from the evidence where the X-ray had been between the time of the May 1993 surgery and the time S.D. picked it up with the fresh grease pen writing. There was no evidence as to who put the markings on the X-ray, or at whose request. There was no evidence of any hospital radiology report recording the mysterious August 1993 "reading" of the X-ray as reflected by the new grease pen writing. It also is not clear from the evidence exactly what was written on the X-ray in August 1993 when S.D. retrieved the film from the hospital, or what that particular X-ray looked like. While S.D. retained the X-ray until some time during her subsequent civil action against Respondent and the hospital, she then gave it to the hospital's risk manager, who was supposed to make her a copy. When S.D. went to retrieve the X-ray for her deposition in this administrative proceeding, she found several X-rays apparently given to her by her lawyer after disposition of the civil action, including one labeled "original" and bearing writing in addition to, or other than, the writing S.D. recalled from August 1993. The writing on the X-ray used in this administrative proceeding may have been placed on the "original" X- ray by experts in the civil action. The other X-rays in S.D.'s possession were not produced for use in this administrative proceeding, and it is not clear which, if any of them, is the X-ray labeled as when S.D. retrieved it in August 1993. The X-ray used in this administrative was of poor quality and actually did not show what was below the marked interspace. (As the Respondent described the lower part of the film, "It looks like a snowstorm.") As a result, it actually would not have been possible to confirm the correct level using that particular X-ray. But X-rays can deteriorate over time, and there is no way of knowing if the intra-operative X-ray as it existed on May 10, 1993, or when seen again by Respondent in August 1993, also was of such poor quality as to be virtually useless. If an unknown radiologist in fact called the OR to confirm the correct level for Respondent, it also is possible that there was a miscommunication. Respondent in his testimony made a point of explaining that he only used the terminology "correct level" in talking to the radiologist "to avoid confusion." But if Respondent just asked if he was at the "correct" level, and the radiologist just said, "yes, you're at the correct level," the radiologist actually either would be simply assuming that the level marked on the X-ray was the "correct" level, or he would be saying that pathology visible on the MRI matched the marked location on the X-ray. If the latter, the radiologist may have thought there was enough pathology showing on the MRI matching the marked interspace in this case (actually L4-L5) to justify surgery there. Taking all of this evidence into consideration, it cannot be found that the Department proved by clear and convincing evidence that Respondent did not receive "real time" radiological confirmation on which he was entitled to rely in proceeding with the second surgery. Without such proof, it cannot be found that Respondent practiced below the generally accepted standard of care, notwithstanding the little attention he paid to his December 1993 surgical notes as to the remarkably narrow interspace at L5-L6.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint in this case. DONE AND ENTERED this 27th day of September, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 27th day of September, 1999. COPIES FURNISHED: Britt Thomas, Esquire Agency for Health Care Administration 1580 Waldo Palmer Lane Tallahassee, Florida 32308 Jon M. Pellett, Esquire Grover C. Freeman, Esquire Freeman, Hunter & Malloy 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1703 Tayna Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether the Respondent is subject to discipline for engaging in practice beyond the scope of opticianry.
Findings Of Fact At all times material to this action, Dory Gomez-De Rosas has been a licensed optician in the State of Florida, holding License DO 0001724. She was an owner of and employed as a licensed optician at Care Optics, located at 1057 North Homestead Boulevard, Homestead, Florida. On May 16, 1989, Patient #1 went to Care Optics to have her eyes examined after having made an appointment about a week earlier. A complete eye examination was performed on Patient #1 by the only woman who was present in the office. That examination included a glaucoma test. Patient #1 intended to buy her glasses elsewhere. She paid $30 for the examination. Patient #1 received a business card from the woman who performed her eye examination which contained measurements. Those measurements were findings of the refractive indices for Patient #1, which would be used in making eye glasses. The information provided on the back of the card, however, was incomplete. The information was not written on a prescription form, as would an ordinary prescription nor was it signed by anyone. A prescription must be signed by an optometrist or opthalmologist. Patient #1 took the card to her regular optician, Mr. Stellabotte. Because he could not prepare glasses from the information on the back of the card, he attempted to contact the opthalmologist or optometrist who seemingly had prescibed the lenses for Patient #1 at Care Optics. There was no opthalmologist or optometrist at Care Optics when Mr. Stellabotte called. The Department delivered a subpoena duces tecum to Care Optics to obtain the records of Patient #1, but Care Optics was unable to locate any records for Patient #1, and provided an affidavit to that effect. Patient #1 returned to Care Optics and received a refund of the $30 she had paid. She then was examined by another optometrist in Homestead and had the prescription filled by Mr. Stellabotte. Patient #1 identified the Respondent as the woman who performed the total eye examination and glaucoma test on her at Care Optic after seeing a photocopy of the examination photograph which Respondent had provided to the Board as part of her licensure application as an optician. After viewing the Respondent at the hearing, it is obvious that the licensure photograph which Patient #1 identified is a photograph of the Respondent. The Respondent engaged in the diagnosis of the human eyes by performing a glaucoma test on Patient #1, and by determining the refractive power for Patient #1's eyes during the examination which the Respondent performed at the office of Care Optics on May 16, 1989. She also was guilty of deceit by leading Patient #1 to believe that she was an optometrist who was competent to examine her eyes. The Respondent attempted to prescribe lenses for Patient #1 by providing the Respondent with a business card which contained on its back her findings of refractive powers for correction of Patient #1's eyes. This is not an ordinary way to provide a prescription for lenses.
Recommendation It is recommended that a Final Order be entered by the Board finding the Respondent guilty of the violation of Sections 484.013(3), Florida Statutes, and 484.014(1)(f) and (m), Florida Statutes, that a fine of $1,750.00 should be imposed; that the Respondent should be suspended from the practice of opticianry for a period of 90 days, and should be placed on probation for a period of one year. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of January, 1991. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4970 Rulings on findings proposed by the Department: All findings by the Department have been adopted, although they have been edited in the findings of fact made here. Rulings on findings proposed by the Respondent: 1 and 2. Adopted in Finding 1. Rejected. The photograph was sufficiently identified as that of the Respondent, and could be readily determined to be a photograph of the Respondent after seeing the Respondent at the hearing. See, Finding 6. Rejected as unnecessary. The identification by Patient #1 of the Respondent was sufficient. The photocopy of the photograph in the Department's files was sufficient for use by the patient in identifying the Respondent. Rejected as insufficiently persuasive. Patient #1 was able to recall, in a general fashion, the test given to her by the Respondent. They were not the type of tests which an optician could perform. Patient #1's testimony has been accepted. See, Finding 4. Patient #1 obviously went to Care Optics to obtain a prescription, since she always intended to buy her glasses from Mr. Stellabotte. Accepted in Finding 3. The information written on the back of the card did not constitute a prescription, but it was given to Patient #1 by the Respondent at Care Optic. Rejected. The testimony of Mr. Stellabotte as to the nature of the card he received from the Respondent is not fully accepted. The card which Patient #1 received from the Respondent is exhibit #3, and any testimony to the contrary by Mr. Stellabotte is the result of imperfect recollection. Rejected as unnecessary. The identification of the photograph of the Respondent from the Department's licensure files adequately identified the Respondent as the person who performed the eye examination. It was not necessary for the Department to produce any handwriting analysis. The testimony of Patient #1 is sufficient on this point. Rejected as argument. The testimony of Patient #1 identifying the Respondent is sufficient. Rejected as unnecessary. Rejected as inconsistent with the testimony of Patient #1. She had her eyes examined. The information she received from the Respondent was not derived from a mechanical analysis of the glasses she then had. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Neil F. Garfield, Esquire Garfield & Associates 3500 North State Road 7, Suite 333 Fort Lauderdale, Florida 33319 LouElla Cook, Executive Director Department of Professional Regulation Board of Opticianry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Petitioner took the optometry examination administered to candidates for certification for licensure to practice optometry in the State of Florida in July of 1980. The written portion of the optometry examination consisted of four sections or sub-parts; ocular pathology, theory and practice, pharmacology and laws and rules. The ocular pathology section consisted of 100 written and 20 slide questions. One and one-half hours were allotted for completion of the ocular pathology section. Thirty minutes was permitted for the completion of the slide portions of the ocular pathology sub-part. The written and slide portions of the ocular pathology section were separated by the administration of the theory and practice sub-part of the optometry exam, which consisted of one hundred items with one and one-half hours permitted for completion. The Petitioner completed the ocular pathology section of the exam and received a final grade of 69. A minimum passing grade of 70 was required by the Respondent on that portion of the optometry exam. Ocular pathology was the only portion of the exam which the Petitioner failed. An item analysis of the items on the ocular pathology portion of the examination was undertaken by the Department of Professional Regulation staff subsequent to administration of the examination. The item analysis undertaken was in conformity with standard post-test procedures for determining the validity of test items. Following the item analysis review, members of the Board of Optometry who formulated the exam received the item analysis results and recommended to the Board that credit be given to all candidates, including Petitioner, for each item on the ocular pathology portion of the examination which was determined to be invalid. As a result of the Board's authorization, credit was given to all candidates for 22 percent of the examination. The ocular pathology portion of the examination had a higher error or adjustment rate than the other subparts of the examination which ranged from 2 percent to 15 percent. The points awarded by the Board on the ocular pathology portion of the exam to compensate for invalid test questions were awarded in a manner commensurate with accepted testing techniques for evaluating test questions. Petitioner's score on the ocular pathology portion of the exam was adjusted from 46 to 58 points following the Board's first authorized analysis. Following a second regrading that the Board authorized to compensate for questions eliminated as a result of examinee review, the Petitioner's score on the ocular pathology portion was again adjusted upward from 58 to 69 points. The method utilized by the Department in reviewing examinations authorizes credit for questionable exam items. Such an approach to testing results in scores which are adjusted upward as test items are eliminated. This is a liberal approach to testing philosophy which effectively resolves doubts regarding a correct answer in favor of the examinee. Petitioner completed the ocular pathology portion of the examination but did not have sufficient time to review all his responses before turning in the test. Petitioner did not, however, participate in a review of his examination when given an opportunity to do so by the Department within thirty (30) days after the announcement of test scores.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order denying the Petitioner's request that his score pathology portion of the July, 1980 optometry examination be adjusted to reflect a passing grade. DONE and ENTERED this 30th day of July, 1981, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1981. COPIES FURNISHED: Robert D. Newell, Esquire OERTEL AND LARAMORE, P.A. 646 Lewis State Bank Building Tallahassee, Florida 32302 Robert E. McGuire, O.D. 2530 Stern Drive Atlantic Beach, Florida 32233
The Issue The issues in this case are presented on the basis of an Administrative Complaint brought by the Petitioner against the Respondent. Allegations set forth in that complaint pertain to the treatment of the patient Helen Gilmore. It is alleged that Respondent failed to record on the patient's records or perform the minimum examination procedures for vision analysis related to that patient in an examination of January 26, 1982. It is further alleged that on May 29, 1982, that the patient requested a duplicate copy of the original prescription obtained from the initial examination but Respondent instead performed a new eye examination and again failed to record on the patient records or perform the minimum procedures for vision analysis concerning this patient. In the face of these factual allegations, Respondent is said to have violated Sections 463.012 and 463.016(1)(g) and (h), Florida Statutes, and Rule 21Q-3.07, Florida Administrative Code.
Findings Of Fact At all times relevant to the Administrative Complaint, Respondent has been licensed as a practicing optometrist in the State of Florida, license No. 40616. During this sequence, Respondent has conducted his practice in Palatka, Florida. Respondent saw the patient Helen Gilmore on January 26, 1982. Ms. Gilmore was having difficulty with her present glasses related to vision in her left eye. Following an examination which took into account the minimum procedures for vision analysis set forth in Rule 21Q-3.07, Florida Administrative Code, Respondent issued a prescription for the patient which deviated from the prescription in the glasses which she was wearing at the time of the examination. Respondent charged $30 for the examination and prescription, which was paid by Gilmore. The prescription was presented to Eckerd's Optical Service in Palatka, Florida, in March 1982, at which time Reid obtained new lenses and frames. Ms. Gilmore paid Eckerd's for the lenses and frames. Having obtained the new frames and lenses from Eckerd Optical, Ms. Gilmore wore those glasses until she started having trouble focusing one of her eyes. Specifically, the patient was having trouble focusing on distant objects. Ms. Gilmore complained to Eckerd Optical about her problem several times. Eckerd Optical was unable to find the duplicate prescription related to the request for prescription by Dr. Reid and Gilmore was advised to return to Dr. Reid and receive a copy of that prescription from his office. In this regard, Dr. Reid's office, in the person of his wife, contacted Gilmore and asked if some problems were being experienced, to which Gilmore indicated that she was having difficulty with her eye and Mrs. Reid stated that Gilmore should return and have her eyes checked again by Dr. Reid. On May 29, 1982, Gilmore was seen by Respondent in his office. The purpose of this visit was to obtain a duplicate copy of the prescription which had been given by Dr. Reid on January 26, 1982 and Gilmore made this known to Respondent. Dr. Reid examined the glasses which Ms. Gilmore had purchased from Eckerd Optical and discovered that the lenses were not in keeping with the prescription which he had given to the patient in that the cylinder correction for astigmatism was not as prescribed and the bifocal had been made up round as opposed to flat. The variance in the prescription given and the prescription as filled was slight. Nonetheless Dr. Reid was of the opinion that it could cause and had caused discomfort to the patient, though not in the way of permanent damage. Having this in mind, instead of providing the duplicate copy of the prescription as requested, Respondent conducted a further vision analysis carrying out those procedures set forth in Rule 21Q-3.07, Florida Administrative Code. On the May 29, 1982 visit, and in the January 26, 1982, examination, Respondent failed to record on the patient's case record the indication that external examination including cover test and visual field testing had been done. Moreover, as established by the testimony of a qualified expert, Dr. Walter Hathaway, who is licensed and practices optometry in the State of Florida, the further examination was not optometrically indicated. This determination was made by Dr. Hathaway based upon the fact that Respondent should merely have provided a duplicate copy of the original prescription of January 26, 1982, as issued by Dr. Reid, having discovered the mistake in the efforts of Eckerd's to fill that prescription and allowed Eckerd's to rectify its error. Per Hathaway, it not being necessary to conduct further examination of the patient, to do so was outside acceptable community standards for the practice of optometry, Again, the opinion of Dr. Hathaway is accepted. As a result of the examination, Dr. Reid prepared a second prescription, which was unlike his January 26, 1982, prescription and the efforts at compliance with that prescription made by Eckerd's in fashioning the lenses. Gilmore was charged $35 for the examination and she paid the bill.
The Issue The issue to be determined in this proceeding is whether Respondent violated section 466.028(1)(x), Florida Statutes (2011), and if so, what penalty should be imposed for the violation.
Findings Of Fact At all times relevant to the allegations in the Administrative Complaint, Respondent was a licensed dentist in the State of Florida, having been issued license number DN 15873. Respondent’s address of record is 17020 County Line Road, Spring Hill, Florida 34610. At all times relevant to these proceedings, Respondent operated a dental practice known as “Smiles and Giggles Dentistry” in Spring Hill, Florida. This case involves Respondent’s diagnosis and treatment of a minor male, M.P., on or about April 26, 2010. In order to understand the care and treatment given to M.P., some definitions relative to the practice of dentistry are in order. Dentists use different terms than laypersons to describe the sides and top of a tooth when recording issues on a patient’s chart (charting) regarding the patient’s teeth. For example, the occlusal surface of the tooth is the biting surface, and its abbreviation is “O.” The lingual surface is the side of the tooth closest to the tongue, and is charted with an “L.” The facial side of the tooth is the side next to the cheek, and is charted as “F,” or as “B,” for buccal. The distal part of the tooth is the part of the tooth facing the back of the mouth and is abbreviated “D,” and the mesial side is the front side of the tooth, and is abbreviated “M.” This case involves the diagnosis of caries, or what are referred to by laymen as cavities. A caries is an area of the tooth that has mineral loss from the production of bacteria. The term “caries” can refer to a single cavity or multiple cavities. An incipient caries is another term for an early lesion, usually confined to the outer layer of the tooth, or the enamel. Depending on the surface of the tooth, an incipient caries can be seen upon visual inspection. If it is on the distal or mesial surface, however, it is not always possible to see incipient caries because the decay is usually blocked by other structures. Gross caries are large cavities that have taken away a large amount of tooth structure, and can also usually be seen on visual inspection. A “pit and fissure” caries is usually confined to the occlusal, facial, or lingual sides of the tooth, and consists of a groove, or pit, in the tooth. Interproximal caries are cavities between the teeth where the teeth touch. They are the most difficult to see upon visual inspection, but are relatively easy to detect on X ray. Diagnosing caries is a multi-step process. First, a dentist conducts a visual examination of the patient, which may include a tactile examination of the teeth. The visual examination is then compared to X rays of the teeth. Experts for both Petitioner and Respondent agree with the American Dental Association (ADA) and the Food and Drug Administration (FDA) statement that an individualized radiographic examination should consist of posterior bitewings with panoramic examination, or posterior bitewings and selected periapical images, and that a full mouth intraoral examination is preferred when the patient has clinical evidence of generalized oral disease or a history of dental treatment. Both agreed that this statement represents the minimum standard of care when diagnosing and treating interproximal cavities. Bitewing X rays are X rays taken in the posterior of the mouth, and can be molar bite-wings or pre-molar bitewings. The film or sensor is placed inside the mouth, and the X ray machine is placed next to the head, on the cheek next to the teeth where the film was placed. These X rays would be considered intraoral X rays. Some panoramic machines are also equipped to take bitewing X rays. Panoramic X rays are considered to be extra- oral images because nothing is placed in the mouth. Here, the patient steps into the machine, bites on something in order to hold his or her head in position, and then the X ray beam and the sensor rotate around the patient’s head in a complete 360-degree circle to obtain an image. Because intraoral X rays are placed right next to the teeth inside the patient’s mouth, the image only passes through the cheek, gums, and bone. With a panoramic X ray, the receptor is outside the mouth, and the X ray emitter has to go completely through the opposite side of the skull and then come through to the outside of the mouth to receive the image. As a result, the panoramic X ray can have a lot of superimposition of structures in the mouth. According to Respondent’s patient records for M.P., when she examined him on April 26, 2010, she performed a comprehensive oral evaluation and took a panoramic X ray, two extraoral films, and four bitewing X rays. Respondent diagnosed M.P. with caries on the distal and occlusal surfaces of tooth number 20; caries on the distal and occlusal surfaces of tooth number 28; caries on the mesial, occlusal, and distal surfaces of tooth number 29; caries on the occlusal and lingual surfaces of tooth number 14; and caries on the occlusal and lingual surfaces of tooth number 15. Teeth numbers 20, 28, and 29 were diagnosed with interproximal decay. Dr. Smith’s records did not indicate what diagnostic methods she used to diagnose the caries. The account history reflects that comprehensive oral evaluation was conducted but no note history was provided. Respondent’s proposed treatment plan for M.P. listed amalgam restorations for two surfaces for teeth 20 and 28; amalgam restoration of three surfaces for tooth 29; resin-based composite restoration for teeth 14 and 15; sealant for teeth 2, 3, 18, 19, 30, and 31; and resin-based restoration of one surface for tooth 9. G.P., M.P.’s guardian,1/ was apparently displeased with the amount of restorative work Respondent proposed. He did not return to Respondent’s office for his next scheduled appointment. Instead, G.P. took M.P. back to W. Scott Wagner, D.D.S., in Jacksonville Beach, who had treated M.P. for approximately eight years before he saw Respondent. Dr. Wagner examined M.P. on May 17, 2010. He took X rays of M.P.’s teeth, which included four bitewing X rays, and performed a clinical examination. In his view, there was one suspicious area on the distal of tooth number 20, but it was not all the way through the dentin. Dr. Wagner decided that, in light of M.P.’s history, he recommended monitoring the tooth and having M.P. engage in better flossing and brushing with the goal of remineralizing the tooth. He did not see any evidence of interproximal caries other than tooth 20, and did not believe that the area on the distal of tooth 20 was worth treating. Dr. Wagner also recommended and applied preventative resin restorations for several teeth, using a flowable composite. Use of a flowable composite is considered a filling because only a dentist, as opposed to a dental assistant, can perform the procedure, but is in the nature of a sealant. Dr. Wagner prefers a flowable composite over a traditional sealant because he believes that the material in a sealant is not strong enough. M.P. did not return to Dr. Wagner’s office after May 17, 2010. The Department presented the expert testimony of Edward R. Zapert, D.M.D., to give his opinion as to whether Respondent deviated from the minimum standards of performance in diagnosis and treatment of M.P. Dr. Zapert is a dentist licensed in Florida since 1983, having been issued license number DN 9761. He is employed by the Department of Health in Leon County and his practice focuses primarily on Medicaid-eligible children. He treats all types of dental problems, from children with near- perfect teeth to those with complex and advanced problems. Dr. Zapert is a faculty member for the University of Florida and is a member of the Florida Dental Association, the American Dental Association, and the Leon County Dental Association. He received his dental education at the University of Connecticut. Dr. Zapert reviewed Dr. Smith’s dental records as well as the X rays obtained by her. He also reviewed the X rays and the deposition of the subsequent treating dentist, Dr. Wagner. The records reviewed are the type of records upon which he would customarily rely for forming an opinion regarding the standard of care and were sufficient for him to form such an opinion. Dr. Zapert did not believe that the X rays of teeth numbers 20, 28, and 29 indicated any interproximal decay, and Respondent’s records did not have any written notations on the X rays. While the number of X rays taken was adequate, the X rays were, in Dr. Zapert’s view, not of high quality. Dr. Zapert opined that Dr. Smith’s diagnosis and recommended treatment of interproximal caries was below minimum standards because the X rays did not indicate the existence of interproximal decay for these three teeth. Dr. Zapert recognized that Dr. Smith did not actually fill the teeth identified in the treatment plan because M.P. never returned for his follow-up appointment. He also acknowledged that in theory, it was possible that Dr. Smith could change her treatment plan before executing it. However, these factors did not change his view that a dentist should be absolutely certain that there is decay before filling a tooth, and that the X rays for teeth 20, 28, and 29 showed no evidence of interproximal decay. Dr. Zapert also reviewed the X rays taken by Dr. Wagner, and concluded that they also showed no evidence of interproximal decay. Respondent presented the testimony of Frank Grimaldi, D.D.S. Dr. Grimaldi is a dentist licensed in the state of California who has practiced dentistry since 1981. He graduated first in his class from the dental school at University of California, San Francisco, where he served on the faculty since 1983. Dr. Grimaldi was the director of the general practice residency program, was a full clinical professor in addition to having a private dental practice, and retired after 31 years at the university last year. He continues to practice dentistry in private practice, and still teaches at the university on a limited basis. Dr. Grimaldi reviewed the complete patient records of M.P. from both Dr. Smith and Dr. Wagner, and has formed an opinion as to whether Dr. Smith deviated from the standard of care. In Dr. Grimaldi’s opinion, she did not. Dr. Grimaldi opined that Dr. Smith met the standard of care in the methods she used in her evaluation, in that it was appropriate to collect a patient history, take bitewing X rays, make a clinical examination, and form a treatment plan. Dr. Grimaldi believes that an X ray exam alone does not provide a full picture of what is going on in a patient’s mouth. He charts everything that is suspicious that he sees when examining a patient, and ultimately does not always treat everything that is observed or charted. Accordingly, to Dr. Grimaldi, a treatment plan may be modified right up to the point of time the dentist executes the treatment. Based upon his review of the X rays of both Dr. Smith and Dr. Wagner, which he believed to be of “adequate” quality, Dr. Grimaldi testified that there was incipient interproximal decay on teeth 20, 28, and 29, and believes a diagnosis of interproximal decay for all three teeth would have been appropriate and within the standard of care. With respect to the individual teeth, Dr. Grimaldi stated that he saw “clear darkness in the area toward what we call the distal of number 29,” with respect to tooth 20, “at the distal of number 20 . . . it shows clearly darkness, although not as clear as 29, on its distal surface,” and with respect to tooth 28, “it has a hint of some darkness at the distal surface but not as much as the other two.” (Transcript at 120-122). Dr. Grimaldi was consistent in his characterization of the condition of the three teeth, although he referred at least once to the X rays as showing a “strong hint of demineralization on the distal of 29, and the distal of 20, less so on the distal of 28.” He acknowledged the difference in his opinion and Dr. Zapert’s saying there is going to be variability among practitioners caused by factors such as training and experience, access at the time, lighting, the fatigue level of the practitioner, and communication with staff while charting. He emphasized that the X rays are only part of the diagnostic process, and clinical examination of the patient is also important. In short, the patient in this case was seen by two dentists and his X rays reviewed by four. With respect to tooth 20, Dr. Zapert found no evidence of interproximal decay, Dr. Wagner saw one suspicious area on the distal surface of tooth 20 that should be monitored but not treated; Dr. Grimaldi saw a “strong hint” of demineralization where tooth 20 touches tooth 19, and Dr. Smith diagnosed interproximal decay and recommended an amalgam filling. With respect to tooth 28, Drs. Zapert and Wagner saw no evidence of interproximal decay, Dr. Grimaldi felt that there was a suggestion of interproximal decay, although not as clear as the other teeth at issue, and Dr. Smith diagnosed interproximal decay and recommended amalgam fillings. With respect to tooth 29, Drs. Zapert and Wagner saw no evidence of interproximal decay, Dr. Grimaldi felt that was clear evidence of interproximal decay (it being, in his opinion, the worst of the three), and Dr. Smith diagnosed interproximal decay and recommended amalgam fillings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 21st day of October, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2013.
Findings Of Fact At all times material to this proceeding, Respondent was and remains a licensed optometrist in the State of Florida, having been issued License No. 000595. Respondent's present address is 4636 North Dale Mabry, #619, Tampa, Florida 33614. The Respondent, prior to relocating his office to Tampa, Florida, practiced optometry in Tallahassee, Florida, in an office adjacent to the Pearle Vision Center in the Governor's Square Mall. He closed that office the last week of December, 1980. Treatment of Wendell Harrison The Respondent first saw Wendell Harrison on October 11, 1980. At that time, Respondent was offering a special of $59.00 for three visits which included an examination and prescription, contact lenses, and the fitting of those lenses. The first of the three visits was the initial examination and prescription. The second visit occurred after the patients received their lenses, and the third visit was a follow-up visit for the purpose of ensuring that the lenses were fitted properly and there were no problems. On October 11, 1980, Mr. Harrison was examined by Dr. Hunter and given a prescription for contact lenses. On that date, Mr. Harrison paid the Respondent $40.00 of the $59.00 total charge. On October 22, 1980, Mr. Harrison received his contact lenses and returned to the Respondent's office for his second visit. During that visit, he was shown how to insert the lenses and also saw a film on how to care for the lenses. At this time, he paid the $19.00 balance of the total charge of $59.00. Subsequent to the second visit, Mr. Harrison experienced blurred vision and pain, especially in his left eye. He returned to Dr. Hunter and informed him of the blurred vision and pain. Dr. Hunter made no examination of Mr. Harrison's eyes or the lenses and informed him the lenses would tighten up and that he should continue to wear them. Mr. Harrison continued to have problems and returned to Dr. Hunter's office the first week of January, 1981. The office was closed. Mr. Harrison did not recall seeing a sign in the window or door of the closed office, but was informed by someone employed at the Pearle Vision Center next door that Dr. Hunter had left and that a Dr. Ian Field was handling problems with Dr. Hunter's patients. Mr. Harrison then made an appointment to see Dr. Field. After an examination, Dr. Field told Mr. Harrison not to put the lenses back into his eyes and not to use them. Dr. Field wrote a prescription for new lenses and refitted Mr. Harrison with the new lenses. Mr. Harrison experienced only minor problems in getting used to the new lenses and had no problem with blurred vision with the new lenses. The prescription of the lenses prescribed for Wendell Harrison by Dr. Hunter was improper in that the lenses corrected the vision in his right eye to only 20/40 which is the minimum for driving a vehicle in Florida. The left eye was corrected only to 20/40 and three additional letters on the next line of the chart. The lenses were also improperly fitted to Mr. Harrison's eyes, and as a result, moved around too much and would ride up underneath the upper lids of his eyes. By letter dated February 3, 1981 (see Petitioner's Exhibit 3), Mr. Harrison contacted Dr. Hunter and requested a full refund of his $59.00 fee. Dr. Hunter responded by letter dated February 9, 1981 (see Petitioner's Exhibit 4) and refunded with that letter $9.00 of the $59.00 paid by Mr. Harrison. Treatment of Maureen Sue Woodward Sometime in the Fall of 1980, Maureen Sue Woodward visited the office of the Respondent in Governor's Square Mall for the purpose of an examination and fitting of contact lenses. On the first visit, Ms. Woodward was examined by Dr. Hunter and was given a prescription for contact lenses. She took the prescription next door to Pearle Vision Center to have the prescription filled. Ms. Woodward, on the first visit, was quoted a price of $75.00 for three visits and this is the amount she paid Dr. Hunter. The three visits were to consist of first, an examination and prescription, secondly, the actual insertion and instruction on care of the lenses, and lastly, a follow-up visit to make certain there were no problems. After she received her contact lenses, she returned to Dr. Hunter's office for instruction on how to insert them and care for them. She watched a film about the cleaning of the lenses. Following the second visit, she wore the contacts just as she had been instructed to wear them and began to experience problems. Her eyes were bloodshot, burning, and tearing as a result of the contact lenses. Ms. Woodward returned to Dr. Hunter's office a third time and explained the problems she was experiencing. Dr. Hunter performed no examination of her eyes or the lenses but told her she was not cleaning them properly. She returned home and continued to clean the lenses as prescribed in the written instructions she had been given by Dr. Hunter and continued to have the same problems of bloodshot eyes, tearing, and burning. Dr. Hunter had told her to come back if she had any further problems. When she returned to Dr. Hunter's office in early January, 1981, the office was closed and there was a note on the door of the closed office referring patients to Dr. Ian Field in the Tallahassee Mall. Her third visit with Dr. Hunter had been approximately a week earlier and he had not mentioned the possibility that he might be leaving Tallahassee. The only information given by the note on the door was that Dr. Hunter's patients were referred to Dr. Field. On January 7, 1981, Mrs. Woodward was seen by Dr. Ian Field. The contact lenses which had been prescribed by the Respondent had an improper prescription. Prescriptions for contact lenses are in plus or minus. A prescription at zero has no prescription at all and is clear glass. A nearsighted person needs something for distance and requires a minus prescription and a farsighted person requires a plus prescription. The power of both lenses prescribed by Dr. Hunter for Mrs. Woodward were more plus than they should have been. When Mrs. Woodward saw Dr. Field on January 7, 1981, she was continuing to wear the contacts prescribed by Dr. Hunter. She was also experiencing blurred vision and bloodshot eyes. Her right eye felt scratchy. Treatment of Barbara Magnusson Stathos The Respondent examined Barbara Magnusson Stathos and prescribed contact lenses sometime prior to September 29, 1980. The agreed fee was $59.00 for three visits and Ms. Stathos had her second visit with Dr. Hunter on September 29, 1980, after picking up her contacts. After receiving her contacts Ms. Stathos experienced problems and called Dr. Hunter's office. She spoke with Dr. Hunter at that time. She continued to have problems and when she returned to Dr. Hunter's office, he had left the area. Barbara Stathos was then seen as a patient by Dr. Walter Hathaway, an optometrist, on January l7,1981. She was using a liquid chemical method of disinfectant for the lenses Dr. Hunter had prescribed for her. Thirty to forty percent of the population has an allergic reaction to these particular chemical disinfectants. There were deposits and coatings on the lenses which had been prescribed for Barbara Stathos by Dr. Hunter. Dr. Hathaway replaced her lenses and switched her to a heat disinfectant method. This solved her problem. The problem of coatings and deposits on her lenses would not have corrected itself. Such a condition would have required an optometrist to correct it. Treatment of Marianne Topjian On December l2, 1980, Marianne Topjian was given a prescription by Dr. Hunter for contact lenses. Subsequent to December 12, 1980, she received her contact lenses. On January 8, 1981, Marianne Topjian saw Dr. Ian Field. She was having problems with the contact lenses prescribed by Dr. Hunter. These lenses had an improper prescription in that they did not correct her vision for close work. The lenses should correct for distance as well as close work. Standard of Care and Requirement for Due Notice The standard of care for optometrists in the Tallahassee community in 1980 and 1981 required proper follow- up care in order to ensure that contact lenses fit properly, that the prescription was proper, and that the patient was not experiencing any problems requiring correction by the optometrist. The follow-up care includes necessary examinations to determine the source of any problems being experienced by the patient. Some degree of follow-up care is required with every patient who is fitted with contact lenses by an optometrist. The standard of care in the Tallahassee community, as well as the nation, requires that when a physician leaves his practice and relocates to another community, he must give notice to his patients and make certain that patients under his active care are taken care of by another optometrist. The relocating optometrist must also make arrangements to make the records of his patients available to them. Neither Wendell Harrison nor Maureen Woodward were given notice by the Respondent that he was leaving Tallahassee and relocating elsewhere. Wendell Harrison and Maureen Woodward were under his active care at the time Dr. Hunter left Tallahassee, and no proper arrangements were made by Dr. Hunter for the follow-up care for the problems that these two persons had complained about. Dr. Hunter saw Maureen Woodward approximately one week prior to his departure, and he did not inform her that he was considering leaving Tallahassee. Prior to leaving Tallahassee, the only arrangements made by Dr. Hunter involved one phone call with a Dr. Orb who planned to move into Dr. Hunter's office in Governor's Square Mall. Dr. Orb agreed generally to take care of any of Dr. Hunter's patients, but no specific financial arrangement was made for such treatment and no specific patients experiencing current problems were discussed. Dr. Hunter did not know when Dr. Orb would be moving into the office, and there was no evidence that he called Dr. Orb in Tallahassee after his departure to determine if Dr. Orb was, in fact, caring for his patients. No arrangement at all had been made with Dr. Ian Field. The Respondent was negligent and fell below the standard of care in the community by failing to provide proper follow-up care to Wendell Harrison. The Respondent specifically failed to examine Mr. Harrison and take appropriate steps to determine the cause of the blurred vision and discomfort complained of by Mr. Harrison on his third visit Having been made aware by an active patient that the patient was having ongoing continuous problems with the new contacts, the Respondent failed to make arrangements upon his departure from Tallahassee to ensure that Mr. Harrison would receive the necessary care to correct his problems, if they continued. As a result of failing to provide proper follow-up care, the Respondent failed to diagnose and correct the improper prescription in the lenses received by Mr. Harrison. The Respondent was negligent and fell below the standard of care in the community in his treatment of Maureen Sue Woodward by failing to provide her with proper follow-up care after she was fitted with contact lenses by the Respondent. After Maureen Woodward complained of bloodshot eyes, burning and tearing, the Respondent did not perform an examination of her eyes or contact lenses in order to determine the cause of these problems. Having been made aware of these problems, he did not make proper arrangements upon his departure from Tallahassee to ensure that Ms. Woodward would receive the necessary follow- up care to correct these problems in the event that the problems continued. By failing to perform the appropriate examinations and to provide the appropriate follow-up care, the Respondent failed to diagnose and correct the improper prescription in the lenses received by Maureen Woodward. There was insufficient evidence to show that the Respondent breached any standard of care in the community with regard to his treatment of Marianne Topjian and Barbara Magnusson Stathos. Neither of these patients testified in the administrative proceedings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of Counts 6, 8, 9, and 11 of the First Amended Administrative Complaint and that he be required to pay an administrative fine of $1,000. It is further recommended that the Respondent be placed on probation for a period of six (6) months subject to such conditions as the Board deems appropriate to ensure that the Respondent is completely familiar with and follows the requirements for proper follow-up care with patients being fitted with contact lenses. It is recommended that Counts 1 through 5, 7, 10, and 12 through 16 of the Administrative Complaint be dismissed. DONE and ENTERED this 25th day of May, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William F. Daniels, Esquire 127 East Park Avenue Tallahassee, Florida 32302 Ms. Mildred Gardner Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
