The Issue The issue in this case is whether the Respondent, Respiratory Care of Florida (RCOF), discriminated and retaliated against the Petitioner, Veronica Johnson, on the basis of race, in violation of Section 760.10, Florida Statutes (1995).
Findings Of Fact The Petitioner, Veronica Johnson, was employed by the Respondent, Respiratory Care of Florida (RCOF), on April 7, 1995. (Clearwater Community Hospital no longer has any ownership interest in RCOF.) RCOF furnished respiratory therapy services, on a contract basis, to skilled nursing facilities throughout the State of Florida. The Petitioner was hired by Debbie Stott (whose name is now Debbie Clark.) Stott, who was then the Assistant Manager of RCOF, hired the Petitioner to work as a Certified Respiratory Therapy Technician (CRTT). As a CRTT, the Petitioner's primary responsibility was to care for patients who have respiratory problems. The Petitioner was hired on a "PRN" basis. She was given job assignments only on an "as needed" basis. The Petitioner was not guaranteed any job assignments or any number of hours of work. There was no guarantee that she would ever be called to work at all. On August 26, 1995, Stott assigned the Petitioner to work at the Arbors of Tallahassee ("Arbors") for the night shift. A patient under the Petitioner's care had acute respiratory problems, including apnea. At times, the patient could not breathe without assistance. He was connected with a Bipap ventilator machine with a "dialed in rate" that breathed for the patient. Although patients sometimes remove the ventilator on purpose to sound the automatic alarm (instead of using the patient call button), it was necessary to check this patient whenever the alarm sounded to be sure he was not in distress and to replace the ventilator apparatus. After the Petitioner's shift on August 26, 1995, Stott received an Employee Counseling Form that had been filled out by the night-shift nurse supervisor at Arbor, Connie Waites, whom Stott knew and trusted. The Employee Counseling Form stated that the Petitioner spent the majority of the 7:00 p.m. to 7:00 a.m. shift asleep on a couch while the Bipap ventilator machine in room 400 "alarmed frequently." This Counseling Form also stated: "Patient needed to be checked often and was in distress on several occasions. RT did not respond to alarm on several occasions." Stott also learned from Cathy Smith, a CRTT who was leaving her shift when the Petitioner was coming on, that the Petitioner had been talking about getting a pillow so she could sleep during her shift. While the actual danger to this particular patient from the Petitioner's inattention to the Bipap ventilator was not clear, sleeping on-the-job clearly would expose the patient to a risk of danger and clearly was unacceptable. On August 28, 1995, Stott filled out a Record of Employee Conference based on the information reported to her. She also telephoned the Petitioner to tell her that they would have to discuss the matter before the Petitioner could work again. The Petitioner's version of the telephone call that Stott told the Petitioner not to worry, that it was "no big deal" is rejected as improbable. Stott could have terminated the Petitioner's employment on August 28, 1995, but did not primarily because she liked the Petitioner personally and needed her services at the time. Stott decided to give the Petitioner another chance. Stott met with the Petitioner on September 11, 1995, before the Petitioner's next shift at Arbors. At the conference, the Petitioner denied the allegations against her and asked for a conference with her accusers. Stott agreed to support the Petitioner's request for a conference but pointed out that it would have to be arranged with the appropriate personnel at Arbors. They contacted the nursing supervisor at Arbor to arrange a conference with Waites, but they never heard back, and no conference ever materialized. On October 1, 1995, the Petitioner worked a 12:00 p.m. to 5:00 p.m. shift at the Arbors. There, she noticed that her name was not written on the work log for October and telephoned Stott, who in another office doing the end of month billing, to point this out and question its significance. Stott told her that the omission was insignificant and that the Petitioner should just write her name in on the work log. The Petitioner then questioned Stott as to why the Petitioner had not been called in to work since September 11, 1995, and complained that Stott was being partial to other respiratory therapists with whom Stott was alleged to have supposedly improper personal relationships. Stott ended the telephone call at that point. The Petitioner did not prove that there was any basis in fact for the allegation regarding Stott's personal relationships with other respiratory therapists. Some of them were longer-standing, full-time employees who naturally received more hours than the Petitioner. Later during the Petitioner's shift on October 1, 1995, the therapist on the next shift failed to show up for work. When the Petitioner telephoned Stott to tell her, Stott asked the Petitioner if she would stay beyond the end of her shift to help out since they were short-staffed. In fact, the only other respiratory therapist on duty was licensed but had not yet passed her credentialing examination and could not be allowed to work except with a credentialed respiratory therapist. Stott explained this situation to the Petitioner and explained that this was the Petitioner's opportunity to "clean the slate" from her previous counseling and show that she was a team player. The Petitioner declined, citing not only her personal needs as a single parent but also "things going on" that she did not like and made her uncomfortable and her insistence on another conference before she would work again. In Stott's view, the Petitioner had let her down again. Based not only on the Petitioner's refusal to work extra hours for Stott on October 1, 1995, but also on the incident on August 26, 1995, and a seasonal decrease in census at Arbors, Stott decided not to use the Petitioner's services any longer. The Petitioner had been on the schedule to work on October 4, 1995, but Stott called on October 3, 1995, to cancel. The Petitioner testified that Stott agreed to discuss the Petitioner's status on October 11, 1995, when the Petitioner was next scheduled to work. But while the Petitioner may have informed Stott of the Petitioner's intention to have such a discussion and may have thought Stott agreed, it is found that Stott made no such agreement, as Stott already had decided to cancel the Petitioner again on October 11 and not to use her again. Inconsistent with the Petitioner's testimony that Stott agreed to discuss the Petitioner's status on October 11, 1995, the Petitioner consulted an attorney, Mark Zilberberg, on October 10, 1995, for assistance in requiring Stott to put the Petitioner on the work schedule. In the Petitioner's presence, Zilberberg telephoned Stott at approximately 12:15 p.m. on October 10, 1995, to request that the Petitioner be put back on the work schedule. Stott hung up on him and did not take his call back. At 12:33 p.m., Stott telephoned the Petitioner's home and left a message on the Petitioner's answering machine that Stott was canceling the Petitioner for October 11, 1995, and that RCOF would not be having any further need for the Petitioner's services. The Petitioner interpreted these events to signify that Stott was terminating the Petitioner in retaliation for the Petitioner's consulting an attorney and having the attorney intervene. But Stott's testimony to the contrary is accepted-- the decision not to use the Petitioner any more already had been made after the Petitioner refused to work extra hours for Stott on October 1, 1995. During the time period from August through October 1995, Stott's PRN pool included four African-American PRN therapists: the Petitioner; Artesa; Shana; and Shawana.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying the Petition for Relief. DONE AND ENTERED this 8th day of June, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: Veronica Johnson, pro se 1724-A Buckingham Court Tallahassee, Florida 32308 Sue Willis-Green, Esquire 2501 Park Plaza Nashville, Tennessee 37203 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Jacob Anthony Sclafani suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Joseph August Sclafani and Rebekah Leigh Sclafani are the natural parents and guardians of Jacob Anthony Sclafani. Jacob was born a live infant on January 3, 2012, at Boca Raton Regional Hospital, which is a hospital located in Boca Raton, Florida. Jacob was a single gestation and weighed 3,289 grams at birth. Obstetrical services at Jacob’s birth were provided by Rachel K. Ciaccio-Stillwell, M.D., who was a physician participating in the NICA program at the time of Jacob’s birth. Jacob’s APGAR scores were 2, 5 and 7 at 1, 5 and 10 minutes respectively. Petitioners contend that Jacob suffered a birth-related neurological injury and seek compensation under the NICA Plan. More specifically, Petitioners contend that Jacob suffered oxygen deprivation during labor and delivery, which resulted in a brain injury, rendering Jacob permanently and substantially mentally and physically impaired. Respondent contends that while there was an event during labor and delivery which resulted in some oxygen deprivation to Jacob, that any such oxygen deprivation did not result in brain injury, and that any medical conditions of Jacob’s are not birth-related neurological injuries as defined in section 766.302(2), Florida Statutes. Respondent further contends that Jacob is not permanently and substantially mentally and physically impaired. There is no dispute about the facts and circumstances of Jacob’s birth. Mrs. Sclafani presented to Boca Raton Regional Hospital for induction of labor. Jacob was born via vacuum- assisted vaginal delivery secondary to a non-reassuring fetal heart rate pattern. The delivery was complicated by a shoulder dystocia. Umbilical cord blood gas pH was 6.84. The baby was depressed at birth requiring resuscitation. The baby was intubated and taken to the NICU, and was on room air within 24 hours. The record reflects that Jacob has received therapy services from Indiana First Steps, including developmental therapy, physical therapy, occupational therapy, and speech therapy. He has also received occupational therapy services from the Rehabilitation Institute of Chicago. Petitioners retained Paul Gatewood, M.D., to review Jacob’s medical records, as well as the opinions of NICA’s expert witnesses. Dr. Gatewood practices in obstetrics and gynecology in Ohio. Petitioners presented an affidavit of Dr. Gatewood, but did not present his deposition or live testimony. Dr. Gatewood’s affidavit concludes with an opinion in support of Petitioners’ claim that Jacob suffered a birth-related neurological injury caused by oxygen deprivation which resulted in brain injury.1/ Petitioners presented the affidavit of Dr. Michael H. Kohrman, who is one of Jacob’s treating physicians. Dr. Kohrman is board-certified in neurology, with a subspecialty in child neurology, and practices in Illinois. He also reviewed Jacob’s medical records and rendered an opinion that supports Petitioners’ claim that Jacob suffered a birth-related neurological injury.2/ NICA retained Dr. Donald Willis, a physician who is board-certified in maternal fetal medicine and obstetrics and gynecology. Dr. Willis reviewed the medical records related to Jacob’s birth to determine whether Jacob sustained an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis’ report dated December 11, 2015, summarizes the relevant events of Mrs. Sclafani’s labor and Jacob’s delivery in pertinent part: [The mother] was admitted at term for induction of labor. Her cervix was dilated 1 cm and 75% effaced. Amniotic fluid was clear at time of rupture of the membranes. The fetal heart rate (FHR) monitor tracing during labor was reviewed. The baseline heart rate on admission was normal at 140 bpm with normal variability. There was a period of what appears to be uterine hyper-stimulation during early labor with FHR decelerations at about 80 bpm. This resolved and FHR returned to a normal appearing pattern. An abnormal FHR tracing becomes apparent about 90 minutes prior to delivery and continues until delivery. Vacuum assisted vaginal delivery was done due to the non-reassuring FHR pattern. The presenting part was at +2 to +3 station. Two pop-offs occurred prior to delivery. Delivery was then complicated by a shoulder dystocia. This was managed with McRobert’s maneuver and supra-pubic pressure. Birth weight was 3,289 grams or 7 lbs 4 oz’s. The baby was depressed at birth. Apgar scores were 2/5/7. Cord blood gas was consistent with acidosis with a pH of 6.84 and a base excess of -25. Resuscitation began with bag/mask ventilation. Intubation was done shortly after birth due to continued respiratory depression. The first gasp was at about 5 minutes. The baby was taken to the NICU for respiratory depression. Respiratory depression resolved quickly and the baby was on room air within 24-hours of birth during labor, delivery and most likely continuing into the immediate post delivery period. Neurology evaluation immediately after birth described “Perinatal Depression.” Head Ultrasound on DOL 3 was normal. Cultures were negative. No seizure activity was documented during the newborn hospital stay. The baby was discharged home on DOL 6. Head MRI was not done during the newborn hospital admission. In summary, there was an abnormal FHR pattern prior to birth that required vacuum assistance for vaginal delivery. The delivery was complicated by a shoulder dystocia. The newborn was depressed with Apgar scores of 2/5/7. Umbilical cord blood gas pH of 6.84 would be consistent with acidosis at birth. Respiratory depression for less than 24-hours was the only significant newborn complication. MRI and CT scans were not done during the newborn hospital course. Labor and delivery were complicated by a non- reassuring FHR pattern prior to birth and delivery was complicated by shoulder dystocia. This resulted in a depressed newborn with cord blood gas consistent with acidosis (pH 6.84). These findings would be consistent with an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and most likely continuing into the immediate delivery period. However, no medical records were available to indicate the suspected oxygen deprivation at birth resulted in any actual brain injury. At hearing, Dr. Willis explained that babies with significant oxygen deprivation during birth that causes brain injury will usually have a complicated hospital course. These complications may include seizures, low platelet counts, abnormal liver function studies, and acute renal failure. He noted that Jacob did not suffer seizures during the newborn hospital course or any of these other conditions typically seen with birth- related oxygen deprivation. At some point following his initial report, Dr. Willis reviewed an MRI report of Jacob which Dr. Willis believes “firms up” his original opinion that there is no evidence that the oxygen deprivation resulted in brain injury. He explained that oxygen deprivation can occur during labor and delivery that does not result in any significant brain injury. He further explained as to why he is of the opinion that the oxygen deprivation that did occur during labor and delivery did not result in brain damage: Number one . . . the baby did not show any of the clinical signs we see for brain injury, seizures, renal failure, liver function abnormalities. None of these things were present in the immediately born period. The other thing is, the head imaging, the ultrasound that was done, I believe was on day three, but shortly after birth, the head ultrasound was done and then an MRI was done at around 2 years of age, maybe a little under 2 years of age, was completely normal. It showed no abnormalities. So in order to -- it’s my experience, as well as kind of the standard medical philosophy that if you suffer a brain injury due to oxygen deprivation, significant brain injury due to oxygen deprivation, that there are going to be abnormalities on the MRI. Without abnormalities on the MRI, then you may have suffered some degree of oxygen deprivation, but that oxygen deprivation did not cause any substantial brain injury. When asked whether a normal MRI scan taken two years post-injury would be sufficient to rule out the presence of an oxygen deprivation injury two years prior, he replied “yes,” noting that any substantial oxygen deprivation that causes brain injury should have abnormal findings that persist. Dr. Willis explained that how quickly the child responds to resuscitation has a lot to do with the duration of the oxygen deprivation. He noted that Jacob had a fairly quick recovery from respiratory depression which indicates that the oxygen deprivation was probably not long-standing during labor and delivery. Dr. Willis’ opinion that there was an apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery which did not result in brain injury is credited. NICA also retained Dr. Michael Duchowny to evaluate Jacob. Dr. Duchowny is board-certified in pediatric neurology, with special qualifications in child neurology. He is a senior staff attending at Nicklaus Children’s Hospital and directs the neurology training program. Dr. Duchowny reviewed Jacob’s medical records and performed an independent medical examination of Jacob on January 13, 2016. In a medical report dated January 15, 2016, Dr. Duchowny expressed the following opinions: In Summary, Jacob’s neurological examination is significant for a complex motor presentation that includes hypotonia, ataxia and distal dystonic posturing. This primarily affects his fine motor coordination but prevents him from grasping objects with thumb-finger opposition. These findings are noted symmetrically in both the upper and lower extremities. Jacob also has a speech articulation deficit. In contrast, Jacob is functioning mentally at age level and his social development is also appropriate for age. I had an opportunity to review the medical records sent on December 29, 2015. They confirm Ms. Sclafani’s recollection of the perinatal events. Jacob’s Apgar scores were 2, 5 and 7 with acidosis noted on his arterial blood gas analyses. There was no accompanying evidence of multi-organ system involvement, and a head ultrasound performed on January 6, 2012 (DOL #4) was within normal limits. Today’s evaluation and record review do not provide evidence of a substantial mental impairment and Jacob’s pattern of cerebral palsy is more likely to be acquired prenatally, especially in light of his normal MR imaging study. I therefore do not recommend consideration for inclusion within the NICA program. Dr. Duchowny reaffirmed his opinions contained in his January 15, 2016, report when he was deposed on October 26, 2016. That is, he continues to be of the opinion that Jacob does not suffer from a mental impairment or a substantial physical impairment. And, he is of the opinion that Jacob’s pattern of cerebral palsy was more likely acquired prenatally. Regarding his physical examination of Jacob, Dr. Duchowny described Jacob’s level of cognitive functioning to be at or above age level. He described Jacob as a bright child who interacted in a manner that, from a mental standpoint, is quite appropriate for his age. He noted that while Jacob has a “slight motor articulation problem,” his speech was fluent and his communication skills were excellent. He testified that “it is very clear that [Jacob] does not have a substantial mental impairment. He’s not even close.” Dr. Duchowny’s opinion in this regard is credited. Regarding Jacob’s physical impairment, Dr. Duchowny acknowledged that it is permanent but not does not consider it to be substantial: Q: Okay. In your opinion, does Jacob suffer from a physical impairment? A: Yes, he does. Q: Is Jacob’s physical impairment permanent? A: I believe it is. Q: Is Jacob’s physical impairment substantial? A: I don’t believe so. Q: Why? A: Jacob does have motor issues and they are related primarily to -- to two areas: One is that he has no muscle tone, and the other is that he has problems with coordination. I think both of these are important problems, but he is, at the same time, able to walk, despite his incoordination, he did not fall. In fact, he actually can get around and do activities, maybe not as fluently as he should, but he can do them. I would regard that as not being within a substantial range. Children who have substantial motor difficulties typically are unable to do most functions; they require devices such as wheelchairs and they are just not ambulatory. Jacob, on the other hand, is despite his motor problems. Dr. Duchowny is also of the opinion that Jacob’s physical impairment is not consistent with a neurological injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury at birth. Dr. Duchowny explained that “[t]his kind of finding is not essentially due to mechanical injury or oxygen deprivation. This is a pattern of motor deficit known as either hypotonic or ataxic cerebral palsy. It is well-known to be a prenatally acquired developmental syndrome.” Dr. Duchowny’s opinions that Jacob does not suffer from a mental impairment, that his physical impairment is not within the substantial range, and that his pattern of cerebral palsy is more likely acquired prenatally are credited. The dispute in this case centers on whether, more likely than not, any oxygen deprivation to Jacob during labor and delivery resulted in brain injury and, if so, did any such injury result in Jacob becoming permanently and substantially mentally and physically impaired. The undersigned finds the testimony of NICA’s experts to be compelling. The greater weight of the evidence establishes, through the opinions of Dr. Willis and Dr. Duchowny, that while there was an apparent obstetrical event that resulted in loss of oxygen to Jacob’s brain during labor and delivery, that any such oxygen deprivation did not result in brain injury. Moreover, the record evidence does not support a finding that Jacob is permanently and substantially mentally and physically impaired. While not minimizing Jacob’s disabilities, Dr. Duchowny’s opinion, following his physical examination of Jacob, that Jacob’s physical impairments are not within the substantial range, is persuasive, and is credited. Moreover, there is no evidence to support a finding that Jacob suffers a mental impairment at all, much less a substantial one.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Philip S. Bennett, Sr., is entitled to reimbursement from the State of Florida Group Health Self Insurance Plan for services rendered him by John S. Dozier, D.M.D., in connection with treatment received by the Petitioner for a "localized mucogingival defect" (abscess and infection) occurring around the first upper molar tooth on the left side of the patient's mouth.
Findings Of Fact The Petitioner is a retired state employee, who is covered for medical benefits under the State of Florida Employees' Group Health Self Insurance Plan. The Petitioner experienced an infection of the gum in the area adjacent to the upper left, first molar, also called a "localized mucogingival defect", which involves a localized, chronic infection of the soft tissue surrounding that tooth and the ligamentous attachment of the tooth. The condition was apparently caused initially by accumulation of food or infectious material beneath the gum line in that area. The Petitioner's general dentist, Dr. Doug Evans, determined that this condition should be treated by a referral of the Petitioner to a periodontal specialist, Dr. John S. Dozier. He was referred to Dr. Dozier sometime in April or May of 1993. He was seen by Dr. Dozier on June 1, 1993. Dr. Dozier diagnosed the condition as is described above. Dr. Dozier determined that there were two courses of therapy available to resolve the infection problem. The first was extraction of the tooth. The second course of therapy involved complete debridement of the infected area, involving thorough cleaning and removal of any necrotic tissue or infectious material, followed by a gingival tissue graft. Since there was a good prognosis for retention of the adjacent tooth, it was determined by the Petitioner and Dr. Dozier to perform the latter procedure, involving the gingival graft, so as to replace, by transplantation, the gum tissue adjacent to the tooth, which would have the effect of filling the void or gap in the gum tissue at the infected area so as to restore the integrity of the gum and gum line and, therefore, prevent further infection in the area. The chronic infection in the area, if left untreated, could have resulted in a bacteremia condition. The gingival graft, which was performed, was thus surgery involving soft tissue and was successfully completed. The postoperative assessment, approximately nine months after the surgery, showed that it was 100 percent successful. The Petitioner has a history of pulmonary disease or condition and a heart problem involving his heart valve. He has been under the care and treatment of Dr. Clifton J. Baily, a pulmonary specialist, for some years. Dr. Baily has, over the years, cautioned the Petitioner that he must be careful to seek prompt and proper treatment for any infection so as to avoid endangering his lungs or heart valve through the systemic effects of any infection. It was especially with this advice in mind that the Petitioner, upon learning that he had the infection in his mouth, sought and obtained the treatment described above. This condition posed significant health risks to the Petitioner, not related to his dental care and treatment. Because of his medical history, the infectious condition placed the Petitioner at risk of infecting his heart valve, the area of previous surgery to his back, and the potential for development of a destructive respiratory infection, given the Petitioner's chronic pulmonary disability and heart valve problem history. It was, therefore, Dr. Baily's reasoned medical conclusion that the grafting of the tissue, by oral surgery performed by Dr. Dozier, was medically necessary to avoid spreading the infection, which would be detrimental to the Petitioner's chronic pulmonary disability and would run the risk of infecting his heart valve, as well. It was thus established that the surgical procedure involved was medically necessary and was not truly a dental treatment or procedure. It involved the surrounding soft tissue adjacent to the tooth in question, which tissue was chronically infected. The tooth itself was not the source of the Petitioner's medical problem. Ultimate tooth loss might have been an incidental result of the deterioration and sloughing away of the infected soft tissue surrounding the tooth, but it was the infection of soft tissue, which had to be surgically repaired, that was the essential problem. The repair was shown to be medically necessary to avoid a deterioration in the Petitioner's pre-existing medical conditions described above.
Recommendation Based on 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 RECOMMENDED that a Final Order be entered by the Respondent, Department of Management Services, Division of State Employees' Insurance, finding the Petitioner entitled to reimbursement for the charges shown to be medically necessary for the above-described procedure and treatment. DONE AND ENTERED this 10th day of August, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 10th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6939 Petitioner's Proposed Findings of Fact 1-18. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, and rejected to the extent that they may differ from the Hearing Officer's findings of fact. Respondent's Proposed Findings of Fact 1-4. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. The preponderant evidence of record reflects that $507.00 was the total fee paid for the services necessitated by the treatment of the infectious condition described in the above Findings of Fact and found to be subject to reimbursement. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely in accord with the preponderant weight of the evidence. Accepted only in the sense that they describe the Respondent's position in this case. COPIES FURNISHED: Brant Hargrove, Esq. 1343 East Tennessee Street Tallahassee, FL 32308 Augustus D. Aikens, Jr., Esq. Benefit Programs and Legal Services Division of State Employees' Insurance 2002 Old St. Augustine Road, B-12 Tallahassee, FL 32301-4876 William H. Lindner, Secretary Department of Management Services Knight Bldg., Ste. 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Paul A. Rowell, Esq. General Counsel Department of Management Services Knight Bldg., Ste. 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue Whether the Respondent should be disciplined for violation of Section 458.33(1)(k), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida and has contracted with the Agency for Health Care Administration to provide investigative and prosecutorial services to the Board of Medicine. Dr. Portnow is and has been at all times material to this complaint a licensed physician in the State of Florida, having been issued license no. ME 0070351. Respondent's last known address is 8540 Great Meadow Drive, Sarasota, Florida 34238. However, the parties agreed to conducting the hearing in Jacksonville, Florida, which resulted in the reassignment of the case to the undersigned. In or about April 1996, Dr. Portnow attempted to secure employment with Baker & Gilmore, M.D., P.A., a medical practice in Jacksonville, Florida. In applying for employment, Dr. Portnow represented to the physicians of Baker & Gilmore, M.D., P.A., that he was board certified in Internal Medicine and in the subspecialty of Cardiovascular Disease. To support these representations, Dr. Portnow provided copies of certificates which purported to authenticate the board and specialty certifications he claimed in his employment application to Baker & Gilmore, M.D., P.A. The physicians of Baker & Gilmore, M.D., P.A., sought verification of Dr. Portnow's offered board and specialty certifications from the American Board of Internal Medicine (ABIM). The American Board of Internal Medicine provided documentation which revealed that the offered certifications were fraudulent and that Dr. Portnow was not certified in either specialty. The American Board of Internal Medicine indicated that the actual certificates had been issued to another physician, that Dr. Portnow's name had been forged on the certificates, and that the Cardiovascular Disease certificate is a copy of one issued in 1981 and not in 1989 as represented on the document. A physician must be board certified in Internal Medicine before she/he can be considered eligible to sit for an exam in a specialty board such as cardiovascular disease. Further, after completing the required training, a physician must pass the examination in that subspecialty and then he/she may hold himself/herself out as board certified in that subspecialty. Cardiovascular disease is a subspecialty to Internal Medicine. The medical practice to which Respondent submitted his certificates and curriculum vitae needed a physician who was a board certified or board eligible cardiologist with training in electrophysiology. Electrophysiology is a sub-specialty of cardiology that deals with human electrical neurology and its abnormalities. Respondent presented a curriculum vitae to the medical practice that included the same fraudulent misrepresentation concerning his alleged certification in Internal Medicine and Cardiovascular Disease. Respondent also included the notation "F.A.C.C." on his curriculum vitae. F.A.C.C. indicates one is a Fellow of the American College of Cardiology. The American College of Cardiology offers this designation to physicians who have shown excellence in cardiology, which is documented in part by the passing of the cardiovascular boards. The notation "F.A.C.C." on Respondent's curriculum vitae is a fraudulent notation indicating passage of the cardiovascular boards when Respondent did not pass these boards. Respondent signed an insurance form with the medical practice that included the fraudulent representation that he was board certified in both Internal Medicine and Cardiology. On June 24, 1996, Respondent signed an application to the Columbia Credentialing Services, Inc., that included the fraudulent misrepresentations that he was board certified in both Internal Medicine and in Cardiology as of September 1987 and November 1989, respectively. Respondent was hired by the medical practice at a starting salary of $150,000.00 with additional benefits and bonuses based on research and revenue collected. Respondent was also given $6,000.00 as moving expenses. Respondent worked and saw patients at the medical practice from approximately mid-August to his termination date of December 12, 1996. Respondent presented himself via a self-referral to Dr. Richard Seely on August 21, 1999. This self-referral was scheduled approximately one month before this case was originally scheduled to be tried. Dr. Seely agreed that a final hearing is a strong motivating force on the Respondent's similar situations. Dr. Seely is a psychiatrist that works with the Physician's Recovery Network (PRN). Dr. Seely did not receive the file from the ABIM concerning the Respondent when he met with him. Dr. Seely also did not perform the Minnesota Multiphasic Personality Inventory (MMPI) or any other similar tests on Respondent. The MMPI helps to characterize a person's personality profile. Dr. Seely also did not receive any medical records to support the Respondent's contention that he suffered form depression in the past. Dr. Seely testified concerning his professional opinion of the Respondent. He found the Respondent was not a pathological liar but could not identify any other neuropsychopathology. Dr. Seely opined that the administrative problem identified by this case is not due to any psychiatric condition. Dr. Seely then related the depression to the Respondent's "Administrative occupational" problem. Dr. Seely recommended that the Respondent be under a PRN contract and be under psychiatric care. The Respondent did not follow the recommendations of Dr. Seely. The Respondent also did not follow the recommendations of Dr. Schwartz, a psychiatrist he had seen in the past, concerning his psychiatric condition. The facts contained in paragraphs 22 through 29 of the Petitioner's Proposed Recommended Order are identified by the Petitioner as being based upon the proffer of excluded evidence. These facts and the discussion following them are improperly presented in the proposed recommended order. Further, the Respondent did not take the stand, and did not assert that his acts were a mistake or accident, or that his acts were an isolated incident. There is no issue of intent presented because the Respondent admitted the acts and the misrepresentation. These actions were clearly volitional. These facts and discussion should not be considered by the board because their exclusion is not based upon matters of special expertise, and the proffer is properly considered exclusively by the appellate court.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that: The Board fine the Respondent $3,500; The Board place the Respondent on probation conditioned upon a required psychological evaluation by a physician or clinician satisfactory to the Board, with all costs to be borne by the Respondent, and a determination by that physician or clinician that the Respondent can practice safely without supervision; The Board prohibit the Respondent from practicing without supervision until his evaluation is completed and his further practice is considered by the Board; and The Board limit the Respondent's practice after evaluation based upon any limitations recommended by the evaluating physician or clinician. DONE AND ENTERED this 28th day of June, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 28th day of June, 2000. COPIES FURNISHED: John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Donald W. Weidner, Esquire Thomas Bowden, Esquire Weidner & Winicki 11265 Alumni Way, Suite 201 Jacksonville, Florida 32246-6685 Christine C. Whitney, Esquire Christine C. Whitney, P.A. 225 West 5th Street Jacksonville, Florida 32206 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, sufficient to justify the imposition of disciplinarysanctions against her license. The resolution of this issue rests upon a determination of whether Respondent intubated the esophagus of a patient, as opposed to the patient's trachea, in the course of rendering anesthesia care; and whether Respondent then failed to provide a record justifying such a course of medical treatment.
Findings Of Fact Respondent is Saroja L. Ranpura, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0039872. Respondent was licensed in the State of Florida on April 27, 1982. She currently practices medicine in Ohio. Petitioner is the Department of Professional Regulation, Board of Medicine, the state agency charged with the regulation of physicians in the State of Florida. On August 29, 1985, Frank Snydle, M.D., performed a laparoscopy on patient C.P. at Heart of Florida Hospital in Haines City, Florida. This medical procedure was performed on an outpatient basis. As a result, C.P. came into the hospital on the day the surgery was to be performed. She met Respondent, who later provided anesthesia care to her in the course of the laparoscopy. Respondent examined C.P. at that time, prior to the surgery, and noted that C.P. had a small mouth. Later, C.P. was brought into the operating room on a stretcher and moved herself over onto the operating table. Present in the operating room at that time were Jean Allen, L.P.N., Norma Masters, R.N., and Respondent. Respondent proceeded to do an unusual procedure known as a "blind nasal intubation." The procedure requires the placement of an tube in the patient's throat through the nose, as opposed to the mouth, in order to maintain an open airway during later anesthesia administration in the process of surgery. C.P. was sedated, but awake, during this process and was intubated with a minor degree of difficulty. Prior to placement of the endotracheal tube, Respondent had the patient breath pure oxygen through a mask covering the mouth and nose. The preoxygenation process, according to Respondent, provided extra oxygen "as a reservoir and as astorage" to C.P.'s body tissues. By letting a patient breath 100 percent oxygen for three to four minutes, the resultant saturation permits a margin of four to six minutes for such an intubation to be safely completed without risk of the patient becoming hypoxic. Jean Allen, with almost 25 years of nursing experience in a surgical assistance career where she assists in 400 to 600 operations per year, observed Respondent during the entire intubation process, inclusive of the preoxygenation phase. Accepted medical practice after such an intubation requires that the person placing the tube then listen for breath sounds over each lung and over the area of the stomach. Respondent maintains that she did listen for those breath sounds with the aid of a stethoscope. The anesthesia record completed by Respondent has a notation "BEBS" for bilateral and equal breath sounds which Respondent testified that she heard with the stethoscope prior to administering additional sodium pentothal to the patient and inflating the cuff of the endotracheal tube. This testimony of Respondent is not credited in view of the testimony of Ms. Allen that she observed Respondent during this entire time and that Respondent did not listen for the breath sounds with a stethoscope prior to administering the additional sodium pentothal to the patient. Allen's testimony is also afforded the greater credibility due to her opportunity as a neutral witness to observe the events which transpired and her testimony that although she didn't observe Respondent closely after the additional sodium pentothal was administered, she maintained that she would have recalled Respondent's use of the stethoscope prior to that point. Notably, it is at that point prior to the administration of the additional sodium pentothal and inflation of the cuff of the endotracheal tube where Respondent maintains she listened for the breath sounds. Respondent, after completion of the placement of the endotracheal tube, administered additional sodium pentothal to the patient without listening for breath sounds; connected the tube to the anesthesia machine; and remarked that "it must be in place, the bag is moving" in reference to the bag on the anesthesia machine which generally inflates as the lungs of the patient deflate. While inflation or deflation of a breath bag on an anesthesia machine is one part of the procedure for checking placement of an endotracheal tube, the expert testimony of John Kruse, M.D., and David Alan Cross, M.D., establishes that this procedure alone is not a reliable method of determining proper tube placement. Frank Snydle, M.D., who had entered the operating room by this time in the sequence of events, did a manual vaginal examination of the patient, left the room, scrubbed his hands and returned. He then donned surgical gloves and gown, moved to the left side of the patient and prepared to proceed with the operation. Ms. Allen took her position at the foot of the table, between the patient's legs with an unobstructed view of Respondent. Dr. Snydle proceeded to make a small incision in the patient's abdomen through which he inserted a hollow, "Verres" needle. Carbon dioxide was then introduced to C.P.'s abdominalcavity to push the abdominal wall away from the internal organs. Next, a device known as a "trocar" and a "trocar sleeve" was inserted through the incision into the abdomen. The trocar was then withdrawn and a laparoscope was inserted into the sleeve. Built somewhat like a telescope with a built-in light source, the laparoscope permits the surgeon to look inside the abdomen and visually observe the patient's internal organs. During this procedure, Nurse Allen commented that she heard a sound like a fog horn or frogs croaking when she touched the patient's abdomen. Allen's remark is corroborated by Norma Masters and Dr. Snydle. The proof establishes, as corroborated by expert testimony of Dr. Kruse, that such sounds were associated with air, captured in C.P.'s stomach as the result of esophageal intubation, escaping from the stomach when pressure was applied. When Dr. Snydle made his first incision in the patient's abdomen, Allen observed that the blood was dark and Dr. Snydle agreed. Respondent inquired whether it could be venous blood. Snydle indicated he didn't think this was the case. Notably, the dark blood was observed, according to Respondent's medical records at 10:27 a.m. Further, Petitioner's experts, Dr. Kruse and Dr. Cross, based on their review of C.P.'s medical records, determined that the patient was initially intubated at approximately 10:15 a.m. Thus, approximately 12 minutes transpired from the beginning of the intubation process and conclusion of preoxygenation of the patient until the observation of dark bloodat the time of incision. After her inquiry regarding whether the blood could be venous, Respondent further responded that she was giving the patient 50 percent oxygen. She testified that she then increased the oxygen level to 100 percent. While the anesthesia record indicates administration of 100 percent oxygen, there is no time notation when this occurred. Blood again welled up from the incision and Nurse Allen commented that the blood appeared black. The less oxygenated blood becomes, the darker it appears. By this time, Dr. Snydle had inserted the laparoscope in C.P.'s abdomen. He observed that the internal organs were a "blueish color" ; an observation consistent with a decreasing level of oxygen in the patient's blood and an indication that the patient was hypoxic. When the patient's internal organs were discerned to be blue, Respondent asked Dr. Snydle to wait a moment and requested the assistance of Norma Masters, the circulating nurse. Masters came to the head of the operating table and was handed another endotracheal tube by Respondent. Respondent then began the process of intubating the patient with that tube through the mouth. The original nasal tube was left in place during the insertion of the second tube; an unheard of possibility, according to expert testimony, unless one tube was in the patient's esophagus and the other in the trachea. Nurse Allen's testimony establishes that the second tube, inserted via the patient's mouth, became foggy after insertion. The observation by Allen is consistent with experttestimony and establishes the fog was created by warm moist air from the patient's lungs flowing through the second tube. Respondent's testimony that she placed the second tube at the conclusion of the surgical procedure is not credited in view of the very clear, contradictory testimony of Masters and Allen that the endotracheal tube was replaced contemporaneously with the notation that the blood was dark and the patient's organs "blueish". After removal of the nasal tube and connection of the second tube to the anesthesia machine, Respondent manually squeezed the anesthesia bag to ventilate the patient. Dr. Snydle observed that the organs were turning pink again, and continued the procedure without further incident. After finishing the procedure, Snydle went out of the operating room, sat at a desk across the hall and began to write his orders. Following the procedure, the patient was wheeled to the recovery room, a short distance away. Nurses Allen and Masters did not see C.P. open her eyes during this process. Respondent's assertion that the patient opened her eyes and was responsive to commands is corroborated only by Dr. Snydle. However, while he noted in his operative report and his deposition that C.P. was awake following the operation, Snydle's observation is not credited in view of other proof establishing that his back was to the patient as she was wheeled past and that he assumed an awake state in the patient because Respondent was speaking to C.P. In view of the foregoing, Respondent's testimony that the patient was awake or responsive to commands following the surgery is not credited. After the patient was removed approximately 15 feet away to the recovery room, Respondent maintains that she informed Margaret Bloom, R.N., who was on duty there, that the patient's endotracheal tube was not to be removed, although she omitted telling Bloom about the dark blood incident. Bloom, who is also a certified registered nurse anesthetist, maintains that Respondent told her nothing about C.P.'s condition; instead, she went rapidly to the rest room in the lounge area. Bloom, left in the recovery room with the patient, then proceeded to hook up appropriate monitors and oxygen to the patient's endotracheal tube and began the process of monitoring C.P.'s vital signs. Bloom places the time of C.P.'s arrival time in the recovery room at approximately 11:05 a.m. The patient was not responsive to Bloom's spoken commands when brought to the recovery room. The patient appeared well oxygenated to Bloom; a judgement she made based on her observation of the color of C.P.'s lips and fingernails, since C.P. is a black female. Bloom rated C.P.'s circulation at twenty to fifty percent of preanesthetic pressure and determined the patient to be totally unconscious. Respondent returned to the recovery room at this time, told Bloom that she had done an "awake intubation" on the patient and that the tube should remain in place until Bloom determined that the patient was ready for it to be removed. Respondent then left the recovery room. As the result of blood tinged mucus filling the patient's endotracheal tube, Bloom removed the tube after thepatient registered breathing difficulties and attempts by Bloom to suction the mucus failed. She replaced that tube with a device known as an oral pharyngeal airway which goes in the patient's mouth and curves down the throat, holding the tongue forward. The device does not reach to the lungs. Shortly thereafter the patient began making glutteral noises and Bloom placed a venturi mask on the patient. The mask controlled the percentage of oxygen going to the patient, estimated by Bloom to be sixty to one hundred percent oxygen. The patient's breathing improved. Bloom completed replacement of the endotracheal tube with the airway device and mask shortly before Respondent again returned to the recovery room. Respondent, upset at Bloom's action in removing the endotracheal tube, proceeded to replace the oral airway device with a nasal tube. At 11:20 a.m., Bloom noted in her records that the patient's state of consciousness was unchanged. Later the patient made moaning sounds and was responsive to pain stimulation at approximately 12:20 p.m. Respondent concedes that C.P. suffered an hypoxic event at some point which resulted in damaged brain function. It is Respondent's position that such event occurred in the recovery room as the result of laryngospasm, occasioned by Bloom's removal of the endotracheal tube. Allen and Masters working in the operating room a short distance away testified that the sounds they heard emanating from the area of the recovery room were not the type of noise they associated with laryngospasm. Bloom, trained to recognize laryngospasm, testified that C.P. did not have sucha spasm. The expert testimony of David Cross, M.D., based on a study of arterial blood gases of C.P. following the surgery, establishes that the patient suffered an hypoxic episode too severe and too protracted to have been the result of a possible laryngospasm in the recovery room and that, in his expert opinion, she did not have a recovery room laryngospasm. Respondent's defense that C.P.'s survival of such a lengthy esophageal intubation in the operating room is an impossibility, is not persuasive. The opinion of Respondent's expert, Dr. Gilbert Stone, that no esophageal intubation occurred in the operating room is predicated on his belief that the tube was not changed during the surgery. Dr. Stone conceded that replacement of the tube during surgery at the time the dark blood was noticed with resultant improvement in the patient's condition permits a conclusion that esophageal intubation was the cause of the hypoxia. Testimony of Petitioner's experts, Dr. Cross and Dr. Kruse, are consistent in their conclusions that C.P. was esophageally intubated by Respondent, although they differ in their reasons for C.P.'s survival of the event. The opinion of these experts, coupled with the eye witness testimony of Allen and Masters, further support a finding of Respondent's esophageal intubation of the patient in the operating room and that she failed to recognize such intubation in a timely manner as a reasonable and prudent physician should have. The expert opinion testimony of Dr. Cross establishes that C.P. was intubated in her esophagus and survivedas a result of oxygen, going into her stomach under pressure, being forced back up her esophagus into the pharynx and then drawn by negative pressure into the lungs. This resulted in a effect similar to, but not as efficient as, the technique known as apneic oxygenation. The technique, once used to provide marginally adequate oxygen levels to maintain a patient's neurological and cardiac status, has fell into disfavor since patients suffered from respiratory acidosis due to the buildup of carbon dioxide in the lungs. Cross also pointed out that the heart can function for a much longer period of time without adequate oxygen than is possible for the brain. Cross's testimony provides an explanation for C.P.'s neurological damage without similar cardiac impairment. Cross also noted that the preoxygenation process which C.P. initially underwent after entering the operating room added to the time she was able to undergo oxygen deprivation before the onset of tissue damage. Respondent notes the discovery of a tumor in C.P.'s throat some months later as a possible contributor to the patient's hypoxic event during surgery. Another of Respondent's experts, Dr. Deane Briggs, an otolaryngologist specializing in diseases of the ears, nose and throat, treated C.P. in October of 1985, following the August, 1985 surgery. He discovered the existence of a sub-glottic tumor in the patient's throat. However, the existence of the tumor at the time of the initial surgery is not established. Testimony of anesthesiologist experts, including Respondent's own expert, Dr. Stone, do not support a finding that the tumor, if itexisted, had any effect during the operation. Further, Dr. Briggs' opinion that Respondent probably intubated the patient's right stem bronchus, as opposed to the esophagus, and that neurological damage therefore occurred in the recovery room is not credited in view of the conflict of this testimony with that of other witnesses and expert opinions. A finding that C.P.'s neurological impairment following surgery may have been exacerbated by a possible laryngospasm in the recovery room is relevant only with regard to mitigation of the severity of penalty to be imposed for Respondent's misconduct. Respondent's esophageal intubation of the patient in the operating room, and the resultant hypoxic event are established by clear and convincing evidence. The fact that C.P. suffered brain damage is undisputed by the parties. The proof clearly and convincingly establishes that the severe and protracted hypoxic episode sustained by the patient resulted not from a possible mild recovery room laryngospasm, but from Respondent's esophageal intubation of that patient in the operating room. It is concluded with respect to treatment of C.P., Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent failed to keep medical records which justified her course of treatment of the patient, C.P. This finding is based upon the testimony of Dr. Cross that Respondent'smedical records did not justify her course of treatment, as well as the testimony of Respondent's expert, Dr. Stone. While testifying that he did not believe Respondent had intubated the patient's esophagus, Stone also acknowledged that Respondent's records would be inadequate if such had indeed occurred.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered for Respondent's violation of Section 458.331(1)(t), Florida Statutes, placing Respondent's license on probation for a period of three years upon terms and conditions to be determined by the Board of Medicine, including, but not limited to, a condition requiring Respondent's participation in appropriate continuing medical education courses; and imposing an administrative fine of $2,000. IT IS FURTHER RECOMMENDED that such Final Order impose a penalty for Respondent's violation of Section 458.331(1)(m), Florida Statutes, of an administrative fine of $500 and a letter of reprimand. DONE AND ENTERED this 28th day of August, 1989, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 28th day of August, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-28. Accepted. 29. Unnecessary to result. 30.-31. Accepted. 32.-34. Adopted by reference. 35.-61. Adopted in substance. 62. Unnecessary to result. 63.-68. Adopted in substance. 69.-87. Adopted by reference. Respondent's Proposed Findings. 1.-3. Rejected, not supported by the evidence. 4.-5. Rejected, not supported by the evidence, Further, proposed findings that records were adequate constitute legal conclusions. 6. Rejected, not supported by the evidence. COPIES FURNISHED: David G. Pius, Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Sidney L. Matthew, Esq. Suite 100 135 South Monroe St. Tallahassee, FL 32302 Kenneth Easley, Esq. General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation The Northwood Centre 1940 N. Monroe St. Tallahassee, FL 32399-0750
The Issue Whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of medicine in Florida pursuant to Sections 20.165 and 20.43, and Chapters 456 and 458, Florida Statutes. Respondent is at all times material to this case a licensed physician in the state of Florida. As such, he is subject to disciplinary action for failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable, prudent similar physician as being acceptable under similar conditions and circumstances. Iribar has been disciplined on two prior occasions. Both cases involved standard of care violations. In Case No. 113487, the Board of Medicine entered a Final Order on April 20, 1992, disciplining Respondent for multiple violations of Section 458.331(1)(t) related to, among other things, prescribing errors. In Case No. 1991-03407, the Board of Medicine entered a Final Order on July 17, 1995, disciplining Respondent for additional prescribing violations. On August 25, 1997, C. H. required medical attention for pain and swelling in his left knee. By the time he was "worked in" at the office of his primary care physician, C. H. was unable to get around without the aid of crutches. In seeking relief for his knee problem, C. H. set in motion a chain of events which would cost him his life. C. H. had been for years a patient at the clinic where Iribar practiced medicine in partnership with Dr. Raul Alvarez (Alvarez). C. H. had a complex medical history, and had long been under the care of Alvarez. Iribar had never seen C. H., but was covering his partner's emergencies on August 25, 1997. C. H.'s knee swelling, which was visible from across a medical examining room, plainly qualified as a matter which needed prompt attention. The clinic had an extensive chart on C. H. It contained records of many office visits, tests, and information concerning care received at other locations which occurred over a period of years in which Alvarez served as C. H.'s primary care doctor. As a partner in the practice, Iribar would of course have been authorized to read every word on the chart before, during or after C. H.'s visit. Numerous references in the chart address real or perceived allergies. At many places in C. H.'s chart, an allergy to aspirin in indicated. In many other places, C. H. is said to be allergic to penicillin as well as aspirin. Iribar's focus in his lone encounter with C. H. was totally upon the need for emergency attention to the swollen and sore knee. On August 25, 1997, it was the routine in the Iribar/Alvarez practice to maintain a form detailing the patient's history, including allergies, on the inside left cover of the file. C.H.'s chart had such a document and it reflected an allergy to penicillin. Iribar freely admits that he never looked at C. H.'s chart prior to prescribing penicillin for his injured knee. Instead, Iribar testified that he conversed with C. H. while examining him and felt that he could obtain from C. H. an accurate answer to the question of whether he was allergic to any medications. During the examination and treatment process, C. H. was articulate regarding his complex medical history. He enumerated at least six medications which he was currently taking. Iribar testified that he asked C. H. if he was allergic to any medications and C. H. responded "aspirin." Iribar states that he informed C. H. that he was going to place him on oral penicillin, which might later be discontinued depending upon the outcome of lab results. According to Iribar, C. H. failed to inform him of a penicillin allergy. For reasons more fully set forth below, the undersigned does not credit Iribar's recollection that he in fact asked C. H. if he had allergies. Neither does the undersigned credit Iribar's testimony to the effect that he informed C. H. of his intent to administer penicillin. Apart from that dispositive fact, the undersigned does credit Iribar's account of his encounter with C. H. Based upon that testimony and the corroborating opinion of the experts for both sides, the evidence established that Iribar entered the examining room and noted that C. H. had a large left knee effusion with pain, redness, and increased temperature to touch. Iribar properly performed an arthrocentesis (a puncture through a joint capsule to relieve an effusion), removing 20cc of yellow pus-like material to relieve the pain. He then prescribed ibuprofen for pain and Pen VK, which is in fact penicillin, to prevent infection. Penicillin is, for most patients, safe and effective for the prevention of infection following a procedure such as the one performed on C. H. Alternative antibiotics exist and would have been prescribed for C. H. had Iribar been aware of the existence of a possible allergy. For an allergic patient such as C. H., the result of taking penicillin can be, and in this case was, swift cardiac arrest followed by a coma from which the patient never emerged. He died five months later. Expert witnesses for both sides agree, and the undersigned finds, that it would have been a gross violation of the standard of care to prescribe penicillin to a person known to be allergic. There is no contention that Iribar actually knew of the allergy, and Iribar did not intend any harm to C. H. Instead, the evidence established that Iribar was covering his partner's emergency and trying to help the patient. Thus, the issue is whether Iribar fell below the standard of care of failing to take reasonable steps to determine whether C. H. had a penicillin allergy. In this case, the totality of the record compels the conclusion that Iribar did not take even a first step. He did not inquire of C. H. as to whether he had any allergies, nor did he look at the patient's chart, which would have placed him on inquiry notice regarding the existence of a penicillin allergy. In failing to take either precaution, he fell below the standard of care. Iribar's disciplinary history reveals prior failures in adhering to the standard of care with respect to the professional obligation to ask the questions a doctor needs to ask to determine if a drug should or should not be prescribed. Additionally, his careless response to the Board of Medicine's inquiry regarding his treatment of C. H. is telling. In an undated letter to Board investigator, Lidice Muniz, Iribar stated, ". . . I asked the patient in front of two medical assistants aiding me [Ana Dickinson and Barbara Olesco] if he was allergic to any medication, he replied 'Aspirin' and he denied all other drug allergies." Common sense suggests that Iribar would have been scrupulously accurate in communicating in writing to state investigators about a matter of such importance. Thus, the undersigned takes seriously Iribar's statement that two assistants witnessed the exchange referenced in the letter. Yet, at the final hearing, neither Iribar nor Olesco claimed that this exchange was witnessed by one, let alone two medical assistants. The undersigned carefully observed Iribar's demeanor while under oath. His recollection that he engaged C. H. on the question of allergies is determined to be untrustworthy. Specifically, the undersigned does not credit Iribar's assertion that he asked his patient about allergies. In light of this finding, it is not necessary to address whether Iribar would have been bound to review the chart had C. H. in fact been asked about allergies. With respect to C. H., Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in that he failed to take any step to afford himself the opportunity to know what if any allergies C. H. had prior to prescribing the medication which caused the patient's death.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and having reviewed the Recommended Range of Penalty under the Florida Administrative Code, it is RECOMMENDED that the Board enter a final order finding Respondent guilty and imposing the following penalty: A fine of $10,000; continuing medical education classes specified by the Board of Medicine; a six- month suspension; two years of probation, with terms set by the Board of Medicine; a letter of reprimand; and requiring Respondent to report to the Board of Medicine regarding procedures he has or will implement to assure appropriate inquiry of patients regarding their allergies in accordance with the standard of care currently prevailing. It is also RECOMMENDED that the Board impose costs associated with the investigation and prosecution of this case in compliance with Section 456.072(4), Florida Statutes. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 14th day of January, 2003. COPIES FURNISHED: Sean M. Ellsworth, Esquire Dresnick, Ellsworth & Felder, P.A. 201 Alhambra Circle Sun Trust Plaza, Suite 701 Coral Gables, Florida 33134-5108 John E. Terrel, Esquire Department of Health 4052 Bald Cypress Way Bin C-65 Tallahassee, Florida 32399-3265 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
