The Issue Whether the Respondent is guilty of unprofessional conduct. Whether her license as a registered nurse, certificate no. 8829 should be suspended or revoked or whether Respondent should be put on probation.
Findings Of Fact The Respondent, Christine Richter, who holds license no. 88294-2 was employed as a registered nurse at Tallahassee Memorial Hospital, Tallahassee, Florida, during the month of February, 1977. She worked as a certified nurse and anesthetist under Ann Marie Connors, the chief nurse anesthetist. The chief nurse anesthetist reported to the Associate Executive Director April 11, 1977, that there were gross discrepancies in the narcotics record kept by the Respondent and at that time she presented him with some of the records. On April 12, 1977, Respondent was requested by the Associate Executive Director to report to his office for a conference. Nurse Connors, the chief nurse anesthetist, was also called to be present at that conference. At the conference the Associate Executive Director asked Respondent for an explanation as to the discrepancies between the narcotic and barbiturate administration record and the patient records. In reply the Respondent stated that she needed a hysterectomy and could not afford it. Upon the insistance of the Associate Executive Director that she give an explanation for the discrepancy in the hospital records, she indicated that she needed to improve her charting. She gave no explanation for discrepancies in the narcotics chart which she signed, and indicated that she would resign. The Director stated that he would accept her resignation and she left the conference. The Respondent mailed her written resignation to the Tallahassee Memorial Hospital the following day. The Accreditation Manual for Hospitals, 1976 edition, published by the Joint Commission on Accreditation of Hospitals "Anesthesia Services" pages 59 through 64 is used as the standard for anesthetic procedure. A department standard book approved by the American Hospital Association and the joint commission on the accreditation of hospitals is required to be read by each employee of the Tallahassee Memorial Hospital as it pertains to the department in which the work is to be performed. The instructions in the department standards book are the same as in the Accreditation Manual for Hospitals as far as anesthesia services is concerned. Medical records of eight patients were introduced into evidence together with Narcotic and Barbiturate Record no. 081291. This shows the date, time, patient's name, room number, doseage, attending physician and administering nurse. The doseage of drugs secured by and signed for by the Respondent, Christine Richter, was more than the records show was administered to the various patients. No accounting was made for the difference between the amounts of drugs secured and the amounts, if any, administered to the patients, although it is the duty of the nurse checking out drugs to account for its use in writing on a form provided for that purpose. The Respondent offered no verbal explanation for the missing drugs when given the opportunity to explain her actions by the Associate Executive Director at Tallahassee Memorial Hospital and her immediate supervisor, Ann Marie Connors, chief nurse anesthetist.
Recommendation Revoke the license of Christine Richter. DONE AND ENTERED this 12th day of December, 1977, in Tallahassee, Florida. DELPENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Rivers Buford, Jr., Esquire Post Office Box 647 Tallahassee, Florida 32302
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint December 19, 2005, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. See § 455.225, Fla. Stat. (2009). The Board is the entity responsible for regulating the practice of medicine in Florida and for imposing penalties on physicians found to have violated the provisions of Section 458.331(1), Florida Statutes. See § 458.331(2), Fla. Stat. (2009). At the times pertinent to this proceeding, Dr. Achong was a physician licensed by the State of Florida, having been issued license number ME38304, and his medical office was located at 690 East 49th Street, Hialeah, Florida. Dr. Achong specialized in obstetrics and gynecology, although he was not board-certified in these areas of practice. Dr. Achong has not previously been the subject of disciplinary action by the Board of Medicine, and he is not currently practicing medicine, having retired with a disability in 2006. At the times pertinent to this proceeding, Dr. Achong had hospital privileges at Hialeah Hospital and at North Shore Medical Center ("Medical Center"). Both facilities had his home telephone number and his beeper number. It was his practice to keep his beeper close to him at all times. When he was in the delivery room, it was his practice to give his beeper to the circulating nurse, who would be responsible for alerting him whenever someone tried to reach him on his beeper. The beeper he used in 2004 gave only the telephone number of the person trying to reach him, but he was able to recognize the number of Hialeah Hospital and the Medical Center. On February 12, 2004, Patient L.H. went to her gynecologist, Ramon Hechavarria, M.D., for a routine examination. Patient L.H. was, at the time, a 27-year-old who was 32 weeks' pregnant, and she had previously had one live birth. Dr. Hechavarria's examination revealed that Patient L.H.'s blood pressure was elevated, and Dr. Hechavarria admitted her to Medical Center for 24 hours for observation. On February 12, 2004, Dr. Hechavarria ordered blood and laboratory tests done in the Medical Center. The blood tests included a Disseminated Intravascular Coagulopathy ("DIC") profile and a Fibrinogen Degradation Profile ("FDP"); the results of these blood tests were normal. Patient L.H.'s hemoglobin and her platelet count were normal, and, although there was a slight trace of protein in her urine, that is considered normal. On February 13, 2004, Dr. Hechavarria discharged Patient L.H. with a diagnosis of chronic hypertension and a prescription for 250 milligram tablets of Aldomet, to be taken three times per day. Aldomet is a medication that treats hypertension by lowering the blood pressure. Patient L.H. was in good, stable condition when she was discharged on February 13, 2004. Readings from a fetal heart monitor taken during the time Patient L.H. was in the Medical Center indicated that the fetus was alive. Dr. Hechavarria considered Patient L.H.'s to be a high risk pregnancy in part because of her hypertension but also because she came in late for prenatal care, missed two appointments, and was overweight. Dr. Hechavarria left town for a vacation on February 13, 2004, and Dr. Achong was to cover his patients during his absence under an arrangement whereby Dr. Hechavarria and Dr. Achong provided coverage for each other when one or the other was out of town or otherwise unavailable to see patients. Under the arrangement, Dr. Achong was expected to go to the hospital if one of Dr. Hechavarria's patients were in labor or if a patient were to go to the emergency room complaining of vaginal bleeding or any other obstetrical or gynecological condition. Whenever coverage of patients was passing from one physician to the other, Dr. Hechavarria and Dr. Achong advised each other of any patient that was in the hospital for gynecological, obstetrical, or any other medical reason. They did not advise each other of patients that had recently been discharged from the hospital, and, therefore, Dr. Hechavarria did not discuss Patient L.H. with Dr. Achong because she had been discharged from the Medical Center before Dr. Achong began covering Dr. Hechavarria's patients. Patient L.H. presented at the Medical Center at approximately 2:00 a.m. on February 15, 2004, complaining of abdominal pains. She was seen by labor and delivery nurse Jennifer Williams, a registered nurse with 20 years' nursing experience, with 13 years' experience in the Medical Center's labor room, and with training as a mid-wife. Nurse Williams had worked with Dr. Achong at the Medical Center since 1991. Subsequent to Patient L.H.'s arrival at the Medical Center, Nurse Williams interviewed her, took her medical history, examined her, and entered the pertinent information on the Medical Center's Admission Assessment. The Admission Assessment form was dated February 15, 2004, and the time was noted as 2:45 a.m. The time written by Nurse Williams' signature on the Admission Assessment form was 3:00 a.m., and it appears that the information was obtained and entered on the form between 2:00 a.m. and 3:00 a.m. Pertinent to this matter, Nurse Williams maintained several other documents recording Patient L.H.'s condition and observations and actions taken by Nurse Williams relating to Patient L.H. Nurse Williams began maintaining a Labor Flow Record at 2:07 a.m. and she made periodic entries on the Labor Flow Record related to, among other things, Patient L.H.'s vital signs, the results of vaginal examinations and fetal monitoring, uterine activity, and pain intensity at different times during the night and morning. In addition, Nurse Williams entered on the Labor Flow Record the time and content of her communications with Dr. Achong; the first recorded contact between Dr. Achong and Nurse Williams was recorded on the Labor Flow Record as 2:30 a.m. Nurse Williams also maintained Progress Notes in which she recorded her observations of Patient L.H. and her conversations with Patient L.H. The first entry in the Progress Notes was at 2:35 a.m.2 Nurse Williams' Progress Notes reflect that, at 2:35 a.m., Patient L.H. advised Nurse Williams that she had contractions and believed she had been in labor since 6:00 p.m. the previous evening but had waited to come to the Medical Center until she was certain she was in labor. Patient L.H. also reported abdominal pain in her upper abdomen that did "not go away," and Nurse Williams observed that Patient L.H. was distressed by the pain in her abdomen. Patient L.H. also told Nurse Williams that she had no ruptured membranes or vaginal bleeding. Nurse Williams noted that she examined Patient L.H. and felt contractions but was unable to detect a fetal heart tone. Nurse Williams reported in the Admission Assessment form that Patient L.H. was having uterine contractions of moderate intensity and 60 seconds' duration, that her cervix was dilated 1-to-2 centimeters, that she had vaginal bleeding that was bright red, that her blood pressure was 159/118, which she described as "elevated," and that Patient L.H.'s abdominal pain was the "worse" pain on a pain scale ranging from 1 to 10; there is, however, no indication on the Admission Assessment form that the pain was constant. Nurse Williams also noted on the Admission Assessment form that she heard no fetal heart rate. Although the time noted on the Admission Assessment form was 2:45 a.m., it is apparent from a review of the relevant records that the information included on the Admission Assessment form was obtained by Nurse Williams over a period of time extending from the time Patient L.H. presented to her until 3:00 a.m., the time on the Admission Assessment form beside Nurse Williams' signature. Nurse Williams reported in the "Physician /CNM in/Called Report" section of the Labor Flow Record that she contacted Dr. Achong at 2:30 a.m. and conveyed to him the following information: "[P]atient arrived in ER c/o contractions since 6 pm last night & observation that no FHT [fetal heart tone] and contractions palpated." Nurse Williams telephoned Dr. Achong using his home telephone, even though his beeper number was also on file at the Medical Center. There is nothing in the report Nurse Williams gave to Dr. Achong at 2:30 a.m. that would require that he proceed to the Medical Center and examine Patient L.H., and he did not violate the standard of care by failing to do so. Because Dr. Achong did not know Patient L.H., Nurse Williams' normal procedure would have been to advise Dr. Achong of Patient L.H.'s history, including the medications she was taking, and her vital signs, including her blood pressure. No notation appears in the Labor Flow Record to confirm that she gave Dr. Achong this information during her conversation with him at 2:30 a.m., nor is there a notation in the 2:30 a.m. entry in the Labor Flow Record that Nurse Williams told Dr. Achong about the results of her examination of Patient L.H.'s cervix, Patient L.H.'s complaint of abdominal pain, or the presence of vaginal bleeding of bright red blood.3 Nurse Williams indicated in her entry in the "Physician/CNM in/Called Report" section of the Labor Flow Record that Dr. Achong ordered a "stat," or expedited, obstetrical sonogram during the 2:30 a.m. contact with Nurse Williams. The purpose of the obstetrical sonogram was to determine if the fetus was alive. Although not noted in the Labor Flow Record, the Labor and Delivery Orders form completed by Nurse Williams indicates that, at 2:30 a.m., Dr. Achong ordered a complete blood count, which is routine with a patient in labor; a DIC profile; and a Comprehensive Metabolic Panel ("CMP"). The Labor and Delivery Orders form contains standard orders for a woman in labor, but the DIC profile and the CMP tests were not included on the form but were ordered specifically by Dr. Achong. A DIC profile is used to determine if a patient has a problem with blood clotting. The DIC includes an assessment of prothrombin time and partial thromboplastin time, both of which indicate different levels at which a patient's blood is able to clot. It is important to know whether a woman in labor and delivery has a clotting problem, or coagulopathy, because of the danger of bleeding, and the classic situation in which DIC profiles are ordered is when there is fetal demise. Because Patient L.H. had the high risk factors of overweight and hypertension and because Nurse Williams could detect no fetal heart tone, Dr. Achong's order for the DIC profile was appropriate and met the standard of care. It is also appropriate to order a DIC profile when there is a concern about placental abruption, which is the separation of the placenta from the walls of the vagina. A placental abruption causes a great deal of bleeding, and can cause death when not treated, because the fetus is still in the womb and the uterus is not able to contract and constrict the large blood vessels that attach to the placenta. Although hypertension is one risk factor for placental abruption, the symptoms of placental abruption also include fetal demise, bleeding, constant pain, a decrease in hematocrit, and a number of other conditions. There is no indication in Patient L.H.'s medical records that Dr. Achong had sufficient information at 2:30 a.m. that would indicate that Patient L.H. had a possible placental abruption, and he ordered the DIC profile because of the lack of fetal heart tones.4 The CMP includes tests for kidney and liver function and for uric acid. It is used to determine if a woman has pre-eclampsia, or pregnancy-induced hypertension. Given Patient L.H.'s history of hypertension and the level of her blood pressure as reflected in the Admission Assessment form, Dr. Achong's order for the CMP was appropriate and met the standard of care in ordering the CMP. All orders for blood tests for women in labor and delivery are treated as "stat" orders and are processed ahead of all other test orders except those from the emergency room. When the situation warrants, a physician may order that the tests be performed more quickly than the usual "stat" order would require, and it would be possible to obtain blood-test results within 45 minutes. There is, however, no indication in Patient L.H.'s medical records that Dr. Achong had any information at 2:30 a.m. that might indicate that he should further expedite Patient L.H.'s blood tests. Nurse Williams reported in her Progress Notes that, at 2:40 a.m., Patient L.H. reported a "gush of something down there," and Nurse Williams noted that she observed a large amount of blood; there is, however, no notation in the Progress Notes regarding the color of the blood. Nurse Williams also included a notation in the Progress Notes that Patient L.H.'s cervix was "3cm dilated, 50% effaced, -3 station" to describe the progress of Patient L.H.'s labor. Nurse Williams reported in the Labor Flow Record that she contacted Dr. Achong at 2:45 a.m. and conveyed to him the following information: "Dr. Achong notified of gush of vaginal bleeding. VE [vaginal examination] 2-3, 50% effaced, -3 station and that we are awaiting sonogram." The results of Nurse Williams' vaginal examination of Patient L.H. showed that Patient L.H. was in active labor. The information that Patient L.H. experienced a "gush of vaginal bleeding" did not indicate to Dr. Achong that there was anything more than one episode of bleeding, which he attributed to an especially heavy "bloody show," which is the bleeding that occurs when the cervix is dilating. The notation indicates that Dr. Achong told Nurse Williams to call him if Patient L.H. went to delivery. The information conveyed to Dr. Achong at 2:45 a.m., as reflected in the notation in the Labor Flow Record, was not sufficient to indicate that Patient L.H. was not proceeding through labor normally to a vaginal delivery of the dead fetus, which is preferred over delivery by a Cesarean Section. Nurse Williams did not include in her records a notation that she advised Dr. Achong that the "gush of vaginal bleeding" consisted of a large amount of bright red blood, which would have been an indication of a possible placental abruption. Some bleeding is normal during labor, but it is usually a dark color from having been in the uterus and in a small amount or tickle, although there could be a "gush of blood" during normal labor. When Dr. Achong was advised by Nurse Williams that Patient L.H. had a "gush of blood," however, it was his responsibility to inquire into the amount of blood, the color of the blood, and the persistency of the bleeding to determine if Patient L.H. was proceeding with normal labor or if she was experiencing a hemorrhage or other abnormal condition. Nurse Williams made no entries in the Progress Notes for Patient L.H. between 2:40 a.m. and 3:40 a.m., when she reported that the ultrasound had been completed. She further noted in her Progress Notes: "Report of no fetal heart tones to Dr. Achong. Orders given." Nurse Williams additionally made a notation in the Labor Flow Record that, at 3:40 a.m., she contacted Dr. Achong and reported to him the following: "Ultrasound report No FHT's given to Dr. Achong. Orders received." Nurse Williams did not, however, indicate in her notations what orders were given. Nurse Williams contacted Dr. Achong through his home telephone number, which was normal procedure during the nighttime hours. When the sonographer, that is, the person performing the sonogram, entered Patient L.H.'s room to perform the sonogram, he noted that Patient L.H. was sitting upright in bed, was combative, and was in a lot of pain. He also noted that there was a fair amount of blood on the bed sheets. The sonographer was able to get Patient L.H. to lie on the bed, and he performed "a very short ultrasound,"5 and pulled the machine out of the room and into the hall. He powered the machine back up and read the numbers off the worksheet on the machine. He confirmed that the fetus was dead and that the placenta appeared to be balled up rather than lying smoothly against the uterine wall, as is normal. While he was writing down the information from the worksheet on the machine, Nurse Williams approached him and told him that she had Dr. Achong on the telephone. He told her that he had "a placental abruption and fetal demise."6 He then wrote up his report, left a copy for Nurse Williams, and went downstairs to process the sonogram images.7 The results of the sonogram were reported on a form headed "Obstetrical Preliminary Report," which was completed by the sonographer. A radiologist is usually present at the Medical Center during daytime hours to read sonograms, but on the off-hours, it is the practice of the sonographer to present a sonographer's impression of what was seen during the sonogram. The sonographer who performed the sonogram on Patient L.H. noted on the report that her history included obesity, hypertension, heavy vaginal bleeding, and contractions. He included the following comments in the report: "Ant/Rt [unintelligible] placenta appears to be 'balled up[.]' Suggestion of placental abruption," and, on a separate line, "NO FETAL HEART MOTION SEEN PT IS COMBATIVE." Finally, at the bottom of the report, the sonographer noted that a copy of the report was given to Nurse Williams. There was no notation as to the time the sonographer gave the report to Nurse Williams, but, even if she had the report, she did not read it to Dr. Achong; rather, she put the copy of the report in Patient L.H.'s chart for Dr. Achong to review when he came to the hospital and gave him only a verbal report. Nurse Williams did not tell Dr. Achong during the 3:40 a.m. telephone conversation that the sonographer had reported a possible placental abruption.8 Dr. Achong was familiar with and had treated placental abruptions prior to February 15, 2004, and he always treated patients with placental abruptions on an emergency basis because both the mother and the baby could die if treatment was not received as soon as possible. Had Nurse Williams advised Dr. Achong that the sonographer had told her that he found a placental abruption or that the sonogram report included a reference to a possible placental abruption, he would have gone to the Medical Center immediately. At 3:45 a.m., Nurse Williams noted in her Progress Notes that she gave Patient L.H. Nubain and Phenergan for her painful contractions. There is no mention of continued vaginal bleeding in this entry in the Progress Notes. At 4:15 a.m., Nurse Williams noted in her progress notes that Patient L.H. was sleeping quietly and was relaxed and that Pitocin had been administered in accordance with Dr. Achong's orders. Pitocin is used to induce labor, augment labor, or to stop bleeding. In this case, Dr. Achong ordered the Pitocin to regulate Patient L.H.'s contractions. There is no mention in the 4:15 a.m. entry in the Progress Notes of continued vaginal bleeding. The next entry in Nurse Williams' Progress Notes was made at 5:15 a.m., when Nurse Williams reported that she had observed vaginal bleeding, that a vaginal examination showed dilation of four centimeters, and that Patient L.H. was very restless and moving around the bed. Nurse Williams received the laboratory report showing the results of the blood tests ordered by Dr. Achong at or around 5:00 a.m. According to the laboratory report, the blood for these tests was drawn at or about 3:20 a.m.; the report did not show any critical values in the blood sample. Nurse Williams attempted to contact Dr. Achong to convey these results to him. She noted on the Labor Flow Record that, at 5:15 a.m. "Dr. Achong beeped re lab results. Phone message left on home phone to call LR [Labor Room]." Nurse Williams made another entry on the Labor Flow Record that, at 6:55 a.m., she left a "message to Dr. Achong answering machine at home re labor progress update and labs." Dr. Achong was not, however, at home to receive the telephone calls or the messages. At or about 5:00 a.m. on February 15, 2004, Dr. Achong received a telephone call on his home telephone from Hialeah Hospital advising him that one of his patients or one of Dr. Hechavarria's patients was in active labor and about to deliver. Shortly after receiving the telephone call, Dr. Achong left his home to travel to Hialeah Hospital. He carried his beeper with him, but he did not receive any calls on the beeper. When he arrived at Hialeah Hospital and prepared to go into the delivery room, he gave it to the circulating nurse in case he should receive a beeper call while he was in the delivery room. Nurse Hayes, who had replaced Nurse Williams when Nurse Williams' shift had ended at 7:00 a.m., made a notation on the Labor Flow Record that, at 7:15 a.m., she called Dr. Achong and left a message. At 7:25 a.m., while he was in the delivery room, Nurse Hayes called his beeper. The circulating nurse had his beeper, and she notified him that he had received a call and told him the number. He recognized the number of the Medical Center, and he told the nurse to call the Medical Center and let them know that he was in the delivery room at Hialeah Hospital. Nurse Hayes asked that he call back as soon as possible. Blood for additional blood tests was drawn at or about 7:30 a.m., and the results, which were available within 15 minutes, showed several critical values that indicated that Patient L.H. was entering coagulopathy. At 7:38 a.m., as soon as he finished the delivery, he called the Medical Center and spoke with Nurse Hayes, who gave him a report on the status of Patient L.H. She told him that Patient L.H. had heavy bleeding and that the vaginal examination showed no change in the cervix. Dr. Achong ordered the Pitocin turned off. When Dr. Achong arrived at the Medical Center at 7:56 a.m., he found Patient L.H. very combative, bleeding, and with very bad vital signs. He ordered a "stat" Cesarean Section and ordered a blood transfusion. Patient L.H. died at 8:38 a.m., before any of the measures ordered by Dr. Achong could be implemented. The cause of death was recorded as placental abruption. Summary In summary, the evidence presented by the Department is not of sufficient weight to establish that Nurse Williams conveyed to Dr. Achong the information necessary for him to conclude that he should personally conduct a clinical evaluation of Patient L.H.; that he should consider the possibility that Patient L.H. had placental abruption; or that he should have provided medical assistance to Patient L.H. prior to his contact with Nurse Hayes at 7:38 a.m. Nurse Williams' Progress Notes report only two remarkable items: There were no fetal heart tones detected by physical examination or by sonogram; and, at 2:40 a.m., Patient L.H. reported a "gush of something" and Nurse Williams observed a large amount of blood. Neither Nurse Williams' entries in the Labor Flow Record regarding her contacts with Dr. Achong nor her testimony, to the extent that it has been found persuasive, is sufficient to establish that she advised Dr. Achong that she had observed a large amount of red blood at 2:40 a.m. or that the sonographer detected a possible placental abruption in the sonogram. Finally, Nurse Williams did not follow the protocol that required her to contact Dr. Achong through his beeper when she did not get an answer on his home telephone; she tried his beeper only once, at 5:15 a.m., and when she failed to reach him, left three messages on his home telephone. The Department presented no evidence to establish that Nurse Williams attempted to reach Dr. Achong by beeper between 5:15 a.m. and 7:55 a.m., the time of her last call to Dr. Achong's home telephone. Furthermore, the Department did not present evidence of sufficient weight to establish that Dr. Achong failed to initiate the appropriate procedures after he arrived at the Medical Center and examined Patient L.H. at or around 8:00 a.m. The evidence presented by the Department is, however, of sufficient weight to establish that Dr. Achong should have questioned Nurse Williams further when she advised him at 2:45 a.m. that she had observed a "gush" of vaginal bleeding. Even though vaginal bleeding may not be not unusual during labor, a report of a "gush" of blood should have alerted Dr. Achong to a potential problem. Although a physician practicing obstetrics is meeting the standard of care when relying on labor room nurses to advise him or her of the clinical status of labor and delivery patients and of any unusual symptoms exhibited by the patients, it is also incumbent on the physician to inquire further if a patient is presenting unusual symptoms. The persuasive evidence establishes that Dr. Achong violated the standard of care when he failed to ask Nurse Williams for additional information on Patient L.H.'s status during their 2:45 a.m. telephone conversation. Had he inquired further, Dr. Achong would have been alerted to the possibility that Patient L.H. had a placental abruption and would have gone to the hospital to provide appropriate care for Patient L.H.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order finding that Dr. Achong violated Section 458.331(1)(t), Florida Statutes, by failing to elicit further information from Nurse Williams regarding the gush of blood she observed in Patient L.H and imposing the following penalties: Issuance of a letter of reprimand; Imposition of administrative fine in the amount of $2,500.00; and Six months' probation under such conditions as the Board of Medicine determines appropriate, should Dr. Achong ever resume the practice of medicine. DONE AND ENTERED this 4th day of January, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 4th day of January, 2010.
The Issue The issues in this case are whether Respondent violated Section 458.331(1)(m), and/or (1)(t), Florida Statutes (Supp. 1996), and, if so, what discipline should be imposed.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings of fact are made: Findings regarding the parties The Board of Medicine (Board) is the regulatory board within the Department of Health that is responsible for the regulation of the practice of medicine in Florida. Respondent is, and was at all times relevant to this proceeding, a licensed physician, Board-certified in plastic surgery. His license number is ME 0030449. At all times relevant to this proceeding, Respondent practiced at the Florida Center for Cosmetic Surgery (FCCS), which was an office surgery center in Ft. Lauderdale, Florida. Respondent performed cosmetic surgery at FCCS about two to three days a week while still maintaining his own office surgery center in Winter Park, Florida, where Respondent currently practices. From the beginning of the professional relationship between Respondent and FCCS, it was contemplated by all concerned that the relationship would be a part-time, short-term relationship; Respondent was merely providing plastic surgery services and follow-up care on a temporary basis until FCCS could make a more permanent arrangement with a plastic surgeon who wanted to work full-time for FCCS. Respondent never had any role in the business practices of FCCS, never had any managerial role at FCCS, and never had any ownership interest in FCCS. The agreement between Respondent and the principals at FCCS included an understanding that all patients who sought services at FCCS were patients of the clinic; not patients of the individual surgeon who performed the surgery on a patient. Consistent with that understanding, FCCS also insisted that it was entitled to custody and control of all of the medical charts, and Respondent was not allowed to remove any medical charts from the premises of FCCS. Respondent performed surgery at FCCS for approximately six weeks. General findings about the relevant surgical procedures A brow lift is a cosmetic surgery procedure that involves an incision in the patient’s scalp. The incision goes quite deeply into the forehead. After the incision, the scalp is dissected and loosened all the way down to the eyebrows, with the intent of this procedure being to raise up the eyebrows to some degree to give a rejuvenated appearance to the forehead. The incision in the scalp bleeds easily. In order to minimize the scalp bleeding, an electrocautery device is used for cauterization at the site of the bleeding. An electrocautery device may either be monopolar or bipolar. A monopolar cauterization device utilizes a “grounding plate” or a “grounding pad” to ground the electric current. The grounding plate or pad is attached to the patient on a fleshy part, typically along the side of a patient’s thigh or on a patient's buttock, away from any bony prominence. "Bovie" is the trade name of a major brand of monopolar cauterization devices. The grounding plate or grounding pad for a monopolar cauterization device is commonly referred to as a "Bovie pad." In contrast, a bipolar cauterization device does not need and does not have a grounding pad. Liposuction is a medical procedure in which fat is removed from an area of a patient's body by means of a suction device. A cannulus, which is a narrow tube with a sharp tip, is inserted into the desired areas of the body. The cannulus is connected to a vacuum-like device and once the cannulus is inserted into the operative area, it is manually maneuvered by the physician to remove the fat within reach of the cannulus with vacuum suction. General findings about Patient F. V. This case arises from surgical procedures performed by Respondent on February 6, 1997, on a patient identified in the record of this case as Patient F. V. Patient F. V. is a white female, who at the time of the relevant surgery was 43 years old. Patient F. V. wished to improve her facial features and wished to reduce the fat in her thighs. She went to FCCS to seek cosmetic surgery for those purposes. Patient F. V. had previously undergone cosmetic surgery performed by Dr. Myron Persoff, also at FCCS, on August 23, 1995. Pre-operative contact between Patient F. V. and FCCS On January 28, 1997, Patient F. V. contacted FCCS (probably by telephone) and someone at FCSS filled out a consultation form about that contact. The form listed the requested procedures of a facelift/browlift and liposuction. The form also noted a prior facelift by Dr. Persoff, a plastic surgeon also with FCCS. Finally, the form indicated a confirmation note of January 29, 1997, for an appointment date and time of January 30, 1997, at 3:00 p.m. On January 30, 1997, Patient F. V. went to FCCS for consultation regarding cosmetic surgery. On that date, Patient F. V. filled out a “Patient Information” form. The form asked Patient F. V. basic questions relating to her medical history and relating to her social history. Patient F. V.’s next visit to FCCS was on February 3, 1997. February 3, 1997, was the first and only time that Respondent met with Patient F. V. prior to the surgery on February 6, 1997. On February 3, 1997, a presurgical and anesthesia evaluation form was completed by Certified Registered Nurse Anesthetist (CRNA) Charlotte Filip. This form detailed some history of Patient F. V. and listed the prior surgery to the breast, face, and eyes. The Patient and Nurse Filip signed the form. During Patient F. V.’s February 3, 1997, visit to FCCS, Respondent conducted an initial physician/patient consultation. During the course of the consultation on February 3, 1997, Respondent conducted a thorough pre-operative consultation with Patient F. V. His activities during that consultation included taking a history and conducting a physical examination. Respondent discussed with Patient F. V. what she wished to have done, and he also discussed with her the risks and benefits of the proposed procedures. During the course of that consultation Respondent made a plan for the surgical procedures to address Patient F. V.'s concerns and desires. Thereafter, Respondent approved Patient F. V. for a brow lift and thigh liposuction. At the conclusion of the consultation on February 3, 1997, Respondent dictated a pre-operative report. The transcription of that dictation is not in F. V.'s medical chart maintained at FCCS. The fate of that dictated pre- operative consultation report is presently unknown.6 At the time of the Patient F. V.'s 1997 surgery, it was the practice of FCCS to prepare, and to maintain in the patient's medical records, a financial check list. For reasons not explained in the record in this case, the financial check list for Patient F. V.'s 1997 surgical procedures is missing from Patient F. V.'s medical chart at FCCS. At that same time, it was also the practice at FCCS for the physician to either provide the patient with pain medications or with a prescription for pain medications prior to surgery, and to document such delivery of medications or prescription for medications in the patient's medical chart. For reasons not explained in the record in this case, such documentation is missing from Patient F. V.'s medical chart at FCCS. At the time of Patient F. V.'s 1997 surgery, it was also the practice at FCCS to provide each patient with a pre- surgery instruction sheet listing numerous things the patient should do prior to surgery, as well as things the patient should not do prior to surgery. It was also the practice of FCCS to place a copy of the instruction sheet in the patient's medical chart. For reasons not explained in the record in this case, the copy of the instruction sheet given to Patient F. V. is missing from her medical chart at FCCS. At the time of the pre-operative consultation on February 3, 1997, FCCS was experiencing delays with the transcription of dictated reports. Such transcriptions often took as long as one or two weeks. Some of the information generated at the pre-operative conference needed to be promptly communicated to the financial staff at FCCS so that the costs of the procedures to be performed could be determined and so that arrangements for payment could be made with the patient. In some manner not presently remembered, Respondent provided the FCCA financial staff with the information they needed to make the necessary financial arrangements with Patient F. V.7 Patient F. V.’s medical records at FCCS do not contain adequate documentation of Respondent’s pre-operative consultation on February 3, 1997, with Patient F. V. Further, Respondent could not produce any adequate documentation of his February 3, 1997, consultation with Patient F. V. Day of Patient F. V.’s surgery Respondent performed surgery on Patient F. V. on February 6, 1997, which consisted of a brow lift and liposuction of her thighs. Before Respondent began the surgical procedure, CRNA Filip (Nurse Filip) conducted her own physical assessment of Patient F. V. for her purposes as the anesthetist. Nurse Filip also documented the results from the lab tests. Nurse Filip documented her results by hand writing notes on the bottom left portion of the Pre-Operative Checklist. As evidenced by the anesthesia record in Patient F. V.’s records, Nurse Filip also performed her duties as the anesthetist for the surgery and documented her pre-operative care of Patient F. V. In the anesthesia record, Nurse Filip documented information including a cursory patient history (allergies, medication being taken, and blood pressure), date, type of surgery, and surgeon. Respondent had no part in documenting any information on the anesthesia records. The anesthesia records for Patient F. V.'s surgery on February 6, 1997, appear to be complete. The circulator who participates in a surgical procedure has the recordkeeping responsibility of creating an operating room record, which should include a detailed description of the equipment used during the surgical procedure, as well as an itemization of all significant events from the time the patient enters the operating room until the patient goes to the recovery room. During 1997 it was the practice of FCCS to keep the circulator's operating room records in the patient's medical chart. For reasons not explained in the record in this case, the circulator's operating room record is missing from Patient F. V.'s medical chart at FCCS. The progress note for the day of surgery, February 6, 1997, is a de minimus notation that lists little more than the type of surgery performed, the surgeon's name, the weight of the patient, the names of the scrub nurse, the circulating nurse, and the CRNA, and the total amount of fat removed. This de minimus progress note is not in Respondent's handwriting.8 In addition to a progress note summarizing the basic details of a surgical procedure, once the surgery is complete the surgeon should also prepare a detailed operative report which describes in detail the manner in which the surgical procedure was performed, including all significant events that occurred during the surgery. Such an operative report should include a description of the type of liposuction and the type of brow lift performed. Such an operative report should also detail the manner in which the surgery was performed and should note any burns, injuries, or other complications arising from the surgery. A sufficiently detailed operative report is especially important in the event of post-operative complications, because details regarding the methods and techniques employed during the surgery can often facilitate an understanding of, and facilitate treatment of, any post- operative complications. There is no clear and convincing evidence as to whether Respondent did or did not prepare a detailed operative report of the type described in the immediately preceding paragraph. What is clear is that such an operative report is missing from Patient F. V.'s medical chart at FCCS.9 Respondent's recollection of the details of the subject surgery on February 6, 1997, is not very good. Although he seems to have a clear recollection of some details, he does not appear to recall some other equally important details. He does, however, remember that after the surgery he wrapped Patient F. V.'s forehead with Ace wrap and placed a strip of tape along the forehead to immobilize the Ace wrap. He also applied Ace wrap to the patient's thighs at the conclusion of the surgery. The Ace wraps on the thighs were also secured with strips of tape. At the conclusion of the surgical procedures on February 6, 1997, there were no visible blisters at the locations where blisters were visible on February 7, 1997. During the surgical procedures performed on February 6, 1997, on Patient F. V., Respondent did not use a monopolar catherization device. Therefore, no grounding pads were used during that surgery. Findings regarding post-operative care FCCS’s post-operative policy in effect in February of 1997 required the patient to return for post-operative follow up as follows: one day, one week, two weeks, and one month. Patient F. V. returned the next day, February 7, 1997, and was seen by Respondent. On February 7, 1997, the patient’s head dressing was removed, the bandages on the patient's thighs were removed, and the patient was advised to follow up in 5 days to have sutures removed. Respondent’s notes for this visit included a notation that the patient was "doing great," and that the patient should return for staple removal. Respondent's notes also mention a "forehead blister" which is noted to be "clean," and a "tape blister" on the left thigh. On February 7, 1997, Patient F. V. had a blister on her left thigh. This thigh blister was located on the front of the thigh, a few inches above the kneecap. On February 7, 1997, the patient also had a smaller blister on her forehead above her left eye.10 Respondent’s post-operative progress note of the February 7, 1997, visit does not document a treatment plan for the injuries on the forehead or the thigh. However, in this regard it must be noted that there is no evidence that either blister required treatment on February 7, 1997, or that either blister appeared to require any future treatment other than follow-up observation.11 Patient F. V. returned to FCCS on February 13, 1997, and was seen again by Respondent. The written progress note for that day recorded her weight, but no other subjective or objective complaints were noted. The progress note mentions a "possible tape blister" on the patient's upper left thigh. On this occasion the top of the thigh blister had come off and an unprotected layer of skin was at that site. The thigh blister needed treatment to prevent infection. The progress note also mentions that Bacitracin, an antibiotic, was applied to the thigh blister and that the blister site was covered by a 4” x 4” piece of gauze held in place by a small piece of paper tape. There are no notes concerning the lesion on the forehead. In this regard it must again be noted that there is no evidence that the forehead blister required any treatment at the time of this visit.12 Patient F. V. was advised to come back in one week to have the staples removed. The next entry in the progress notes states that Patient F. V. returned three days later, on February 16, 1997. Although the matter is not entirely free from doubt, the visit recorded as having occurred on February 16, 1997, probably actually took place on February 17 or 18, 1997.13 The progress note for that visit first notes that the patient was happy. It also notes that the stitches and the staples were removed. The progress note concludes with the following: "Script given for Silvadene 1% due to burn on leg and forehead." It is not clear from the progress notes who saw the patient at this visit, but it was probably one of the physicians (other than Respondent) who worked at FCCS, inasmuch as a prescription was written during this visit. Both Bacitracin and Silvadene were appropriate antibiotics for the patient's thigh and forehead lesions. Silvadene has a more penetrating quality to it and can penetrate scabs better. On February 24, 1997, Patient F. V. called the FCCS regarding the lesion on her leg. A dermatologist friend of hers had advised her to discontinue the Silvadene cream and to contact her physician about the lesion. Patient F. V. wanted Respondent to see her. She was advised to come in the next day to see one of the other physicians employed at FCCS. The next day (February 25) Patient F. V. returned to FCCS for further follow up treatment. She was seen by Dr. Alexander, one of several physicians employed by FCCS, who advised her to leave the lesion dry and see how it heals. The lesion on the thigh was described as "dry and scabbed." The patient was very unhappy during this visit. On February 26, 1997, Patient F. V. returned to FCCS and was seen by Respondent. Respondent noted that she was doing very well “except for left leg burn.” Respondent also noted as a possible cause of the lesion on the patient's left leg: “probable ground plate sensitivity.” There are no subjective complaints recorded. The record also does not contain any type of plan concerning the left leg burn. In this regard it should be noted that on the previous day Dr. Alexander had advised the patient to leave the burn dry and see how it heals. In all probability, during the following 24-hour period there was no change to the lesion on Patient F. V.'s thigh that required any additional treatment plan other than the "wait and see" plan noted by Dr. Alexander the day before. Photographs were taken on the visit of February 26, 1997. There are several post-operative photographs of the left leg lesion. On March 20, 1997, Patient F. V. returned to FCCS and was seen by Respondent. Respondent noted that she was doing better and that her leg lesion was improving. There are no clearly documented objective or subjective complaints. There is no plan documented other than return ASAP. Respondent’s medical record of March 20, 1997, does not document a plan for the course and scope of treatment for Patient F. V. Although Respondent documents a concern with the forehead, he did not document what concerns he had or how he planned to treat the concerns.14 After the visit of March 20, 1997, Patient F. V. did not return to the FCCS for over a year. On June 4, 1998, Patient F. V. was seen by two physicians at FCCS. Both physicians examined Patient F. V. and then prepared progress notes reporting what they had observed and proposing a plan to address what they had observed. Respondent discontinued his professional relationship with FCCS on or about April 1, 1997. Prior to leaving FCCS, Respondent reviewed all of his charts and had the opportunity to make sure all the histories and physicals were complete. To the best of Respondent's recollection, when he left FCCS there were no charting problems in any of the medical charts of any of the patients who had been treated by Respondent at FCCS. Patient F. V. returned to FCCS on June 4, 1998, and was seen by Dr. Alexander. Dr. Alexander was another plastic surgeon who worked at FCCS. Following his examination of Patient F. V. on June 4, 1998, Dr. Alexander prepared a progress report reading as follows: "6/4/98. Depressed area above the left eye on the forehead, dime size. Second degree burn, one- inch long depigmented burn scar left medial thigh. Also two- inch wide scar, medial forehead lift scar. Plan, revise all scars." On June 4, 1998, patient F. V. was seen by another physician identified in progress notes as "Dr. H."15 Following his examination of Patient F. V. on June 4, 1998, the second physician ("Dr. H") prepared a progress note reading as follows: Dr. H, 6/4/98 1.7 x .8 centimeter hypopigmented scar with surrounding hypopigmentation 2mm. flat non-tender .8 x .6 centimenter thin skin left upper forehead appears like lower dermis mobile to touch but doesn't animate on her own. Can't really see scar - just notice conture deformity. Rec - Excise leg scar vertically. ? Alloderm under depressed scar left forehead. Discuss with patient. G.L.A.D. Patient F. V. has elected not to have scar revision surgery. When Respondent discontinued his professional relationship with FCCS, he left all of the medical records concerning his care and treatment of Patient F. V. in the possession and custody of FCCS. Respondent did not take any copies of any medical records concerning Patient F. V. when he discontinued his relationship with FCCS. It was not until the latter part of 1999 that Respondent first obtained possession of a copy of the FCCS medical records concerning Patient F. V. He obtained those copies by means of a discovery request. As of the time of the final hearing in this case, several documents were missing from the medical records concerning Patient F. V. maintained by FCCS. The missing documents included the following: a detailed pre-operative report; a detailed operative report prepared by Respondent or prepared by someone acting pursuant to Respondent's direction and control; a financial check list; written documentation of medications provided to or prescribed for the patient; and a sheet of pre-surgery instructions regarding what the patient should and should not do. At several times during the period from 1998 through 2002, the medical records at FCCS concerning Patient F. V. were searched in an effort to locate a detailed pre-operative report and/or a detailed operative report. Such documents could not be found in the FCCS records on those occasions. Without an operative note (or some other form of detailed information regarding the manner in which the surgical procedures at issue were performed) it is virtually impossible to reach a reliable determination as to what caused the injuries on the patient's left thigh and forehead. On the basis of the record in this case, the causes of the forehead and thigh lesions observed on Patient F. V. on February 7, 1997, are unknown. Because the causes are unknown, it is also unknown whether such lesions were caused by act or omission by Respondent. And, because no specific act or omission by Respondent has been identified as the cause of either lesion, it is impossible to determine whether any such unidentified act or omission, if any, might or might not have constituted a departure from the applicable standards of care. There is no clear and convincing evidence that Respondent "fail[ed] to properly administer liposuction, causing full-thickness burns to Patient F. V.'s left thigh area." There is no clear and convincing evidence that Respondent "fail[ed] to properly perform the brow lift, causing full-thickness burns to Patient F. V.'s forehead." There is no clear and convincing evidence that Respondent "improperly plac[ed] or fail[ed] to appropriately supervise the placement of the grounding pads of the Bovie unit." There is no clear and convincing evidence that Respondent did "not adequately maintain[ ] his surgical equipment relating to liposuction and brow lift procedures." There is no clear and convincing evidence of Respondent's "failing to properly document Patient F. V.'s preoperative consultation." There is no clear and convincing evidence of Respondent's "failing to properly document a post-operative report of the procedures." There is no clear and convincing evidence of Respondent's "failing to complete or create an appropriate operative report for the procedures."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine issue a final order in this case dismissing all parts of both counts of the Amended Administrative Complaint because none of the violations alleged in the Amended Administrative Complaint have been proved by clear and convincing evidence. DONE AND ENTERED this 31st day of December, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 31st day of December, 2003.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, was the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent is licensed as a physician in Florida, holding license # ME 0038234. His specialty is orthopedics but he is not Board certified in that field. Respondent practices medicine, specializing in orthopedic surgery with emphasis on the spine, at the Gulf Coast Orthopedic clinic in Hudson, Florida. Among the procedures he has performed at times pertinent to the issues herein are percutaneous lumbar foraminotomy, also known as foraminectomy or foraminostomy, (PLF); percutaneous cervical discectomy, (PCD); and percutaneous cervical foraminotomy, (PCF). A PLF is an arthroscopic surgical procedure wherein instrumentation introduced through a succession of progressively larger cannulae via a posterolateral approach to the lumbar spine is utilized to remove spurs which have formed at the area of the neural foramen. A PCD involves a similar introduction of instrumentation via an anterolateral approach to the cervical spine to remove disc material from a cervical disc for the purpose of decompressing the nerve root at the corresponding level. A PCF involves a similar introduction of instrumentation via an anterolateral approach to the cervical spine to remove spurs which have formed at the area of the neural foramen at the corresponding level. The three procedures referred to above, the PLF, the PCD and the PCF, are not commonly used or widely performed in the field of orthopedic surgery in the United States. Petitioner contends they are experimental procedures. Petitioner contends that a procedure whose safety and efficacy have not been established is experimental. It asserts that physicians performing procedures whose efficacy and safety have not been established must specifically advise a prospective patient on whom such procedure is anticipated to be done of the experimental nature of the procedure as a part of obtaining informed consent prior to the procedure. However, the efficacy and safety of a procedure are not, by themselves determinative of experimentation. PCD's are a logical extension/evolution of techniques that are already in use. They are being done in various places throughout the world, including the United States, and insurance companies have, in the past, paid for both PLDs, conceded by the Board to be non-experimental, and PCDs. The instant procedures in issue, including PLFs, which are done by physicians around the world, and the PCFs are not radical departures from present concepts. Though innovative, they are the natural evolution of existing techniques and procedures. For example, chemonucleolysis, recognized by the medical profession as non-experimental, is a percutaneous procedure in which enzymes are injected into the intervertebral disc in order to dissolve it. There is little difference between this procedure, which has been used for approximately ten years and the PCD, save the injection of the enzyme. Another percutaneous procedure which is widely done is the use of the nucleotome, a reciprocating suction cutter consisting of a steel tube with a spinning blade. This is not considered by the medical profession to be an experimental procedure. To be sure, Dr. Abram, a Board certified orthopedic surgeon with extensive experience in treating spinal pathology, is the only expert witness who practices in Florida. He has, however, by his own admission, not done any percutaneous or arthroscopic procedures involving the back or neck. On the other hand, Respondent's experts, Dr. Gristina, also a Board certified orthopedic surgeon, but who is not licensed in Florida, has extensive experience in orthopedic surgery. He was formerly Associ ate Professor of orthopedic surgery and associate to the chairman of that department at New York University Hospital; he was chairman of the Department of Orthopedic Surgery at Bowman Gray Hospital at Wake Forest University; and at present he is President and Senior Scientist at the Medical Sciences Research Institute and practices orthopedic surgery in northern Virginia. For the year just prior to this hearing, he was associated with the Northern Virginia Spine Institute, and though he has not been lead surgeon in the near term, he has associated with the director of the institute in the performance of major spinal surgery. Under the circumstances, as a scientist his opinion as to what constitutes an experimental procedure and what is mere innovation is pertinent to the resolution of that issue. Dr. Sherk, testifying for the Respondent, is a Board certified orthopedic surgeon and professor of surgery and chief of the division of orthopedics and rehabilitation at the Medical College of Pennsylvania. He is familiar with and has performed percutaneous procedures on the spine, most specifically chemonucleolysis and laser discectomy, and is familiar with Dr. Bonati and the percutaneous procedures he performs from having heard Respondent's presentations at international conferences on orthopedics. As a practitioner and academician, his opinion regarding the experimental nature of the procedures in issue is pertinent. Dr. Hopkins, a Board certified orthopedic surgeon, came to percutaneous disc surgery through the microdiscectomy process and the percutaneous laser procedure which he still uses. He also has performed in the neighborhood of two hundred percutaneous disc surgeries, about half with the nucleotome and half with laser. He has done percutaneous foraminectomy procedures. Some time ago, while working for a laser company in Minneapolis, he became aware of Respondent's practice in percutaneous disc surgery. As a result, he came to GCOC on two occasions and observed Respondent perform the procedure on both lumbar and cervical discs. He has presented papers on percutaneous disc surgery at international conferences and gave a course on percutaneous procedures at the American Academy of Orthopedic Surgery in San Francisco approximately two years ago. Taken together, and with all due respect and credence being afforded the opinion of Dr. Abram, the evidence of the experimental nature of the PLF, the PCD and the PCF is not persuasive and it is found that the procedures, though new and innovative, are logical extensions of and new uses of established procedures and are not experimental. Respondent's records reflect that in each case in issue, written consent was obtained from the patient. The records also reflect that each patient was informed about the surgery, the pathology and the treatment to which the patient had agreed. An informed consent was also obtained by the anesthesiologist. Under the circumstances, it having been found that the percutaneous procedures are not experimental procedures, the informed consent obtained by the Respondent was adequate. Clearly, Dr. Bonati's clinic is very well organized. As explained by Respondent and various members of his staff, once Respondent recommends surgery, the patient is given printed brochures and materials which explain the proposed procedure. If the patient is unclear as to the nature of the procedure or has any questions about it, he or she is given the opportunity to voice his or her concerns either to Respondent or to a nurse, and no further action is taken unless all questions are answered to the satisfaction of the patient. Each patient is also given a video tape describing the procedure to be performed, and once the tape is viewed by the patient, further opportunity to ask questions is afforded. Respondent and a nurse meet with each patient so that he can explain to the patient what the proposed procedure consists of, how it is to be performed and the risk involved. The patient is also advised of alternative methods of treatment which include physical therapy. Each patient is advised that an open procedure is also an alternative to the percutaneous procedure. The patient is under only a local anesthetic during the percutaneous procedure and is aware of what is going on. The patient actually assists the surgeon by reporting feelings and sensations experienced. Respondent claims an anesthesiologist is present in the operating room during the surgery and talks with the patient throughout the procedure. There was no evidence introduced that any patient had ever complained after the procedure that what was done was not what had been explained beforehand. Generally, patients are referred to the in-house physical therapist after surgery, and there was no indication any patient had complained of that either. AS TO THE PATIENT M.A. In August, 1989, Patient M.A., a 21 year old female, presented to the Respondent complaining of neck and back pain. Respondent had the patient undergo an MRI on the area. On September 12, 1989 he informed her that the MRI studies revealed posterior disc bulge at C3/C4 through C6/C7 levels, with the largest bulging at C4/C5 through C5/C6 levels. Additional MRI studies were done of the patient which, on November 17, 1989, Respondent interpreted as showing a grade II bulging at the C5/C6 and C6/C7 levels. On or about December 5, 1989, Respondent performed a PCD on this patient for a grade II bulge at the C5/C6 level on the left. Further MRI studies performed on this patient on or about October 30, 1990, indicated there was no change in the bulge at the C5/CB level as a result of Respondent's surgery. As a result, the Board's expert concluded that the surgery performed on this patient by the Respondent was not needed because the MRI's failed to show a condition requiring surgery and Respondent incorrectly interpreted them to indicate they did. The evidence shows, however, that in her visits to Dr. Bonati, the patient complained of pain in an area associated with the 6th nerve root, and evidence of the emergency room visit she made refers to a diagnosis of possible 6th nerve root involvement. Respondent's medical records for this patient reflect that before he recommended surgery, he waited out a period of conservative non-surgical treatment which included physical therapy. He also had her undergo another MRI on November 17, 1989, before the surgery, which showed a bulge at C5/C6. Respondent believed this bulge could be creating all the symptoms being experienced by the patient. In light of this additional evidence, to which Petitioner fails to refer in its Proposed Findings of Fact, it cannot be reasonably be found that the evidence of record is clear and convincing that Respondent performed unnecessary surgery. AS TO THE PATIENT R.L. On or about May 1, 1990, R.L., a 36 year old male, was seen by Dr. Jeffrey S. Walker, a Board certified neurosurgeon for evaluation of neck and back injuries sustained in a then-recent motor vehicle accident. Dr. Walker had this patient undergo an MRI which was interpreted by a Board certified radiologist as showing no large disc herniations and only minimal posterior bulging of the C4/C5 disc associated with degenerative disc disease. As a result of this test and interpretation, Dr. Walker diagnosed the patient as having severe cervical and lumbar strain with no evidence of radiculopathy or myelopathy. Radiculopathy is disease of the spinal nerve root, and myelopathy is a disturbance or disease of the spinal cord. Dr. Walker concluded that this patient's condition did not require surgery and recommended a conservative, non- surgical treatment. Nonetheless, on June 25, 1990, this patient went to see Dr. Bonati complaining of persistent neck and back pain. On this visit, the patient showed Dr. Bonati the MRI taken for Dr. Walker on May 31, 1990. When Respondent reviewed this MRI he noted a bulging disc at C4/C5 and recommended the patient undergo a PCD at that level. Before any surgery was done, however, another MRI was done on June 26, 1990 which Respondent interpreted as showing a 1 mm posterior disc bulge at L4/L5 and a 2 mm bulge at L5/S1, and as a result, Respondent recommended a PLD also be done. On July 12, 1990, Dr. Bonati performed a PCD on this patient at C4/C5 left, and on July 31, 1990 he also performed a PCD at C4/C5 right. Thereafter, on August 21, 1990, Respondent performed a PLF at L5/S1 on this patient. While the Board claims this was done to decompress the S1 nerve root, both the Board and Dr. Bonati indicate it is impossible to decompress the S1 nerve root by a foramenectomy at that level. The Respondent claims the procedure was done to remove the pressure on the L5 nerve root, and this was deemed possible by the testimony of Dr. Sherk. This would seem to be a more accurate description of what was done. In any case, Dr. Bonati also performed a PLD at L5/S1 right that same day in order to relieve the pressure on the S1 nerve root. In short, taken together, the evidence indicates that the surgery on the left was to relive pain on the left side and that on the right to relieve pain on the right side. There is a discrepancy in Respondent's records relating to the above surgery wherein left side pain is indicated where right side pain was intended. A review of these records, however, reveals that the patient complained of pain on both sides from the very beginning and clearly traces the course of pain from the first visit through the surgeries. The Board contends that Respondent failed to correctly interpret the MRIs done on this patient. It asserts these MRI's, when coupled with the patient's complaints, fail to indicate a need for surgical intervention and that Respondent's subsequent surgery performed on the patient was, therefore, inappropriate. This conclusion was stated by the Board's expert, Dr. Abram, who cited Respondent's own publications to the effect that a PLD is not indicated until a disc bulge is 4 mm or greater. Apparently Respondent had taken the position that a disc bulge of 3 mm or less does not merit surgery. It would appear Respondent's published indications also call for a certain amount of non- operative treatment to be provided, as well. It must be recognized, however, that there can be no hard and fast exclusionary rule regarding bulge size when determining whether surgery should be done. In the instant case, the records show that the patient continued to report pain which increased and diminished in cycles. The size guidelines are but one indicator of the need for surgery and Respondent cannot be faulted for doing surgery on a bulge smaller than that noted in his guidelines when other factors are present which indicate surgery is appropriate. AS TO THE PATIENT E.M. On or about April 4, 1991, Respondent saw patient E.M., a 51 year old male, who complained of pain in the lower back, the hip, groin and sciatic areas. Respondent had the patient undergo MRI studies which he interpreted as showing bulging discs at L4/L5, L5/S1, C4/C5 and C5/C6 levels. As a result of these indications, Respondent recommended the patient undergo both PLD and PCD procedures. Thereafter, on May 9, 1991, Respondent performed a PLF on this patient at L4/L5 left and a PLD at L4/L5 left. On June 19, 1991, he performed a PLF at L3/L4 left. He then performed a a PCD on this patient at C4/C5 left on July 1, 1991, and on July 18, 1991, performed a PLD at L5/S1 left. Finally, on August 6, 1991, he also performed a PCD at C5/C6 right on patient E.M. The bulges at C4/C5 and C5/C6 were categorized by the Respondent as grade II bulges. Respondent has previously stated that grade II bulges are normal pathology for which surgical treatment is not indicated. He performed three PLD procedures on this patient on three separate occasions rather than performing them simultaneously, and he performed the two PCD procedures separately rather than performing them simultaneously. The Board claims that to do this was inappropriate and constituted exploitation of the patient for financial gain. Dr. Gristina, however, indicates an alternative way of looking at the situation. He suggests that Dr. Bonati was following a plan to relieve the patient's symptoms utilizing the least invasive procedure available. Gristina suggests that Bonati's plan was to take the relief step by step, doing only so much surgery as was anticipated by him to be necessary to relieve pain. That a procedure was needed in each of five separate locations is unfortunate but not clearly shown by the Petitioner's evidence to be unnecessary. Petitioner must present evidence to show clearly that Respondent's actions were inappropriate. Petitioner's expert opinion must be considered, however, in light of the expert testimony to the contrary. The Board also notes that whereas this patient's medical records indicate the first procedure to be performed on May 9, 1991 was the PLD at L5/S1, in reality the initial PLD was performed at the L4/L5 level and there is no indication in the record as to why this was done. It also contends that Respondent attributed this patient's continued pain in the right leg to the L3/L4 level, and the performance of a PLD at that level without further diagnostic studies was a failure to practice medicine within standards. Dr. Abram also concluded that in light of the above, the Respondent's medical records for this patient, in failing to reflect the justification and appropriateness of his treatment of the patient, were inadequate. It would again appear that Petitioner has not given a complete reading to Respondent's medical records for this patient. His notes regarding the visits the patient made to the office reveal the patient was complaining of pain in the neck, shoulder and arms on both sides and indicate Respondent's concern that the patient might need surgery at L4/L5 as well as at L5/S1, and consent forms were obtained from the patient relating to both areas. An additional claim of Respondent's misconduct is made in regard to the Respondent's failure to do additional diagnostic studies before performing the PLD at L3/L4. However, Respondent contends that, contra to the importance placed on ancillary tests, he considers clinical examination of the patient and the patient's history as more significant. This position would appear to be supported by the testimony of Dr. Hopkins who opined that where, after a surgery has been done, if the patient is able to describe his or her condition, and nothing happened in the interim to cause the doctor to suspect any other problems, he would proceed without subjecting the patient to additional diagnostic procedures. All matters being considered, this would appear to be the more conservative approach. AS TO THE PATIENT P.H. Respondent first saw Patient P.H. in January, 1989 at which time he ordered an MRI be done which was interpreted as showing disc degeneration at L5/S1. When this was considered along with the patient's history, going back to 1970, of two disc removals, three spinal fusions and a laminectomy without relief, Respondent concluded a less conservative approach was demanded. Thereafter, on January 30, 1989, Respondent performed both a PLD and a PLF on this patient at L3/L4. No evidence was presented to clarify the apparent level discrepancy. The medical records indicate that after this surgery, Respondent prescribed Keflex, an antibiotic, and Colchicine, a gout treatment, for the patient. According to Dr. Abram, neither medication is justified in the medical records. The use of an antibiotic after surgery is not at all unusual nor inappropriate, however, especially in light of the fact that the surgery was done on an outpatient basis and the patient did not remain in the hospital, under observation, for a period of recuperation after the procedure. As to the Colchicine, a careful examination of the records pertaining to this patient reveals that a prior administration of the substance was indicated, and even Dr. Abram admitted that this drug could properly be used to treat back pain. The use of neither substance, therefore, was inappropriate. One year later, the patient again came to Respondent complaining of foot paralysis, and on February 1, 1990, Respondent performed a PLD on the patient at L4/L5. Twenty days later, on February 20, 1990, Respondent performed a repeat PLD on the patient at L4/L5. In the interim between the February 1 and February 20 procedures, notwithstanding Petitioner's contention that Respondent did not perform any diagnostic studies to determine whether further surgical intervention was necessary, the records indicate Respondent had clinical testing of the patient done on February 7, 1990, and a Physical Assessment Test was conducted which showed several anomalies which Respondent correlated to the MRI findings. Petitioner also claims that surgery at the L4/L5 disc space cannot treat the L5 nerve root compression that Respondent's tests showed in this patient. Both Dr. Bonati and Dr. Gristina agree, however, that the surgeon can reach the L5 nerve root from the L4/L5 disc space. This opinion by Dr. Gristina would apply equally as well to arthroscopic surgery as practiced by Respondent as to the more classical and conservative open procedures more widely done. Respondent billed the patient for all three surgeries performed. Evidence introduced at hearing, in the form of the opinion testimony of Dr. Abram, would seem to indicate surgery was not appropriate for this condition, and that the performing of the three surgeries was exploitation of the patient for financial gain. He also is of the opinion that the medical records fail to justify the course of treatment the Respondent rendered this patient. However, the evidence of record tends to indicate that a second surgery at a place where surgery has already been done is not unusual. Symptoms can recur and problems, thought to be resolved, can again surface. The evidence indicates that this patient had very little relief from discomfort and, in fact, the symptoms persisted for three weeks after the initial surgery. When results obtained from surgery do not produce an expected change in the patient's symptomology, Dr. Gristina concludes it is logical to again operate at any time after a procedure has been done. AS TO THE PATIENT M.M. Respondent first saw patient M.M. in July 1990 for symptoms of a back injury which he attributed to the S/1 nerve root and which had been present for over one year. The patient history for this patient reveals that she had approximately fifteen months without relief from pain before seeing Respondent and indicate that after Respondent had treated her for a week to ten days, the symptoms changed which caused Respondent to then attribute the cause to the L5 nerve root. An MRI showed a 4 mm bulge at L4/L5, and on September 6, 1990, Respondent performed both a PLD and a PLF at L4/L5. More than six months later, on May 7, 1991, M.M. went to Dr. Zubillaga, a Board certified neurologist, for treatment of pain running from the head to the sacrum. Dr. Zubillage took a complete patient history and reviewed the MRIs which had been taken by or for the Respondent. His examination indicated to him that no surgical intervention was indicated, and he recommended a more conservative treatment including stretching exercises and physical therapy. Dr. Abram concluded that Respondent's medical records for this patient contain inconsistencies in the examination and diagnostic tests. The patient's symptoms and the findings of diagnostic imaging should match up before the patient is offered surgical treatment. In the instant case, the records indicate a strength deficit of 26 percent at S1 and an L5 deficit of 16 percent, yet the treatment is directed against the L5 nerve root, even though the initial impression is that it was the S1 nerve root that was compressed, and Dr. Abram is of the opinion that is below the acceptable standard of care. Unexplained, it well may be. AS TO THE PATIENT D.R. On or about July 18, 1990, Dr. Bonati performed both a PLD and a PLF at L5/S1 on this patient for back and leg pain but the patient failed to improve after the surgery. Thereafter, on October 24, 1990, Respondent performed both a PLD and a PLF on the patient at L4/L5. Still later, on March 13, 1991, the patient saw Dr. Thomas Freeman, a Board certified neurological surgeon, who reviewed the patient's medical records, the discogram and the two MRI scans which had been done by Respondent both before and after the July 18, 1990 surgery, none of which showed an extruded disc. By the same token, a previous MRI done by a prior treating physician, Dr. Feldman, failed to disclose it as well. According to Dr. Freeman, the two MRI's done by Respondent were essentially identical with no change in the patient's condition following the surgery. Based on his examination of the patient, Dr. Freeman diagnosed the patient as having a large extruded disc at L5/S1 which, he claims, was shown in the MRI's taken by the Respondent. The evidence is in conflict on that point, however. It is Dr. Freeman's professional opinion that extruded discs are normally very difficult to remove by a percutaneous procedure. In fact, Respondent's own publications indicate that a percutaneous procedure is contraindicated in the case of an extruded disc. As a result of his evaluation, Dr. Freeman subsequently performed open back surgery on this patient removing the discs at L4/L5 left and at L5/S1 left and right. It is Dr. Abram's position that Respondent's failure to do an open procedure instead of a percutaneous procedure in this case, especially after the first procedure was unsuccessful, was below acceptable standard. It would appear, however, that none of the physicians who saw this patient were able to make a positive determination that there was an extruded disc. There is a difference between an extruded disc which is still in contact with the annulus and one which has broken free from the annulus and extruded through the posterior longitudinal ligament to enter the spinal canal. It is this latter situation which Respondent's writings denote as contraindication to a percutaneous procedure. The disc had not extruded in the instant case and, therefore, a percutaneous procedure was not necessarily contraindicated. Dr. Abram also asserts that Respondent's medical records for this patient contain a discrepancy between the admissions form and the general rule regarding the gravity and location of the patient's pain, which, he claims, is considered below standard. In fact, the admission form is set up so that the patient can describe the current severity of the leg pain and the back pain independently of each other. It does not attempt to compare them. AS TO THE PATIENT L.Q. Sometime between January and April, 1990, the patient, L.Q. saw Respondent complaining of pain in the neck and arm. Respondent took an MRI of the patient which indicated a grade I impression of the thecal space at both the C4/C5 and the C5/C6 levels. Even though Respondent's own publications regarding the PCD suggest that a grade I impression does not require surgery, Respondent recommended the patient undergo a PCD at C4/C5. Before agreeing to the surgery, however, on April 30, 1990, prior to what was described as the onset of significant pain compromising the 5th nerve root, the patient went to see Dr. Michael Slomka, a Board certified orthopedic surgeon who, without an MRI or CT scan, upon examination, found a normal neurological evaluation and a normal cervical spine x-ray. Based on his findings Dr. Slomka saw no basis for surgery and recommended a program of activity and rehabilitation for the patient. Thereafter, however, the patient returned to Respondent on May 14, 1990 and Respondent did a PCD at C4/C5. While Petitioner claims there was no justification shown for the surgery completed in this case, there is evidence in the patient records that the patient underwent an extended period of constant pain in the shoulder, injections into the shoulder by another physician prior to the visit to Respondent, continued medication for the discomfort claimed, and other symptoms and discomfort in an area consistent with the diagnosis, which were supported by a physical assessment test and consistent with the MRI. These factors may well justify surgery when all else has failed. The Petitioner asserts that Respondent's medical records do not reflect justification for the surgical intervention, but the above information disputes that conclusion. AS TO THE PATIENT R.H. This patient was seen by Respondent several times between July, 1991 and April, 1992 for treatment for neck and shoulder pain. An MRI of the patient ordered by the Respondent was interpreted by him as showing a grade I impression at both C3/C4 and C4/C5, and a grade II impression at C5/C6. On December 4, 1991. Respondent did a PCD on this patient at C5/C6, but the medical records maintained by Respondent on the patient show no improvement following the surgery. The Respondent's medical records relating to this surgery do not reflect he had any discussion with the patient before surgery about the risks or benefits of surgery, the anticipated outcome or alternative treatment options. On May 30, 1992, the patient went to see Dr. Michael Piazza, a Board certified orthopedic surgeon who also took an MRI of the patient. This scan revealed very mild degenerative disc disease at C5/C6 without any evidence of disc herniation or other operable lesion. He could see no indication for or reason to do surgery on the patient. The patient was 54 years old when she was seen by Dr. Piazza. The doctor indicated that approximately 90 percent of the adult population have as much arthritis in the neck by that age as does this patient. Therefore, he recommended non-operative treatment, including therapy, and the patient's condition improved markedly with this regimen. Here again the Respondent contends that Petitioner draws a misleading conclusion from the evidence and attempts to minimize the severity of the patient's long-term complaints of pain, failed conservative treatment and disc bulge which is attributed to arthritis. Respondent also contends that the use of a minimally invasive percutaneous procedure was appropriate in light of the circumstances, especially in light of the fact that there was a four month hiatus between the cited entries in the medical records. These contentions by Respondent are supported by the testimony of his experts. Respondent's records regarding this patient, are less than appropriate, however. They reflect the patient had full range of shoulder motion, albeit with pain, but also contain a diagnosis of frozen shoulder and capsulitis. This would indicate a marked reduction in the patient's range of shoulder motion. The records also indicate a degenerative labral tear in the biceps tendon, but there was no such tear indicated on the MRI. This tear was, however, located by Respondent through a diagnostic arthroscopy. In Dr. Abram's opinion, these inconsistencies rendered the records below acceptable standard. AS TO THE PATIENT O.J.P. This patient was seen at the Respondent's clinic, by Dr. Merken, on April 14, 1992, for an evaluation of the patient's strength related to the neck. The doctor's opinion was that the patient's neck strength was normal though, even as Dr. Abram admits, he found abnormalities of the neck resulting in painful flexion, lateralization and extension. Several days later, the patient underwent several MRIs which covered the left shoulder and the cervical and lumbar spine in which Respondent saw bulges of 2 mm, 3 mm, and 4 mm in the lumbar spine. When, on May 12, 1992, the Respondent discussed the results of the MRI's with the patient he noted a significant weakness in the patient which had not been noted by Dr. Merken earlier. Even though the patient's medical record does not reflect any long-standing weakness or participation in an extensive rehabilitative program, Respondent nonetheless recommended the patient undergo a PCD at C6/C7 left and a PLD at L4/L5 left. The surgery was not done, however. Instead, on July 16, 1992, the patient went to see Dr. Glen Barden, a Board certified orthopedic surgeon, because of persisting neck and back pain. Dr. Barden did an examination of the patient and reviewed Respondent's medical records on her. Dr. Barden's diagnosis was that the patient exhibited mild symptoms of disc disease without neurological deficits. He concluded that surgery was not needed or appropriate for the condition at that time but recognized that surgical intervention to the neck might be required. In fact, Dr. Barden's records show he found " cervical intervertebral disc disease, moderately severe, involving C4-5, C5-6. C6-7 and C7-T1, as well as degenerative lumbar disc disease", among other problems, all of which, Dr. Barden admits, can cause pain and restriction of motion without a neurological deficit. As such, surgery can be justified even where there is no neurological deficit. Notwithstanding Petitioner claims the medical records kept by Respondent on this patient did not reflect any long-standing weakness or conservative care, the patient history clearly reflects numerous complaints of pain and limitations on movement following a 1978 car accident. In addition, the records reflect the patient had been taking medication and received chiropractic treatment in addition to the physical therapy prescribed by Respondent prior to surgery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaints in DOAH Cases 94-1866 and 94-1867, except for Counts Six and Fifteen of Complaint 94-1867, of which Respondent, ALFRED O. BONATI, should be found guilty, be dismissed, and that his license be reprimanded. RECOMMENDED this 21st day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASES NOS. 94-1866 AND 94-1867 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. - 7. Accepted and incorporated herein with the addition, as to #7, of the phrase, "in the U.S." 9. - 8. Accepted and incorporated herein. 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. 14. & 15. Accepted. 16. & 17. Accepted. 18. - 21. Accepted. 22. - 24. Accepted and incorporated herein. 25. Accepted. 26. Rejected as not proven. 27. - 29. Accepted. 30. - 35. Accepted and incorporated herein. 36. - 38. Rejected as not proven by clear and convincing evidence. 39. Rejected except for last sentence which is accepted. 40. Accepted. 41. & 42. Rejected as not proven. 43. - 53. Accepted and incorporated herein. 54. Accepted that surgery was done, but not for the purpose stated. 55. Accepted and incorporated herein. 56. Accepted and incorporated herein. 57. - 62. Rejected as not proven. 63. Rejected as not proven. 64. Accepted as to what record states, but rejected as to the lack of a complaint on the right side, as contra to the weight of the evidence. 65. Rejected as not proven. 66. - 68. Accepted but considered of little probative value. 69. Accepted. 70. & 71. Rejected as not proven. 72. & 73. Accepted and incorporated herein. 74. & 75. Accepted and incorporated herein. 76. - 80. Accepted and incorporated herein. 81. - 84. Rejected as not proven. 85. Accepted. 86. - 92. Rejected as not proven. 93. Accepted. 94. - 97. Rejected as not proven, and 97 is duplicative of 84 and 84. 98. - 104. Accepted and incorporated herein. 105. - 109. Rejected as not proven. 110. Accepted and incorporated herein. 111. Rejected as unproven. 112. & 113. Accepted and incorporated herein. 114. Rejected as unproven. 115. - 117. Accepted. 118. & 119. Rejected as unproven. 120. Accepted. 121. Rejected as unproven. 122. - 128. Accepted and incorporated herein. 129. - 132. Rejected as unproven. 133. Accepted. 134. & 135. Rejected as unproven. 136. - 148. Accepted and incorporated herein. 149. - 152. Rejected as unproven. 153. - 159. Accepted, but 158 is duplicative of 146 160. & 161. Rejected as unproven. 162. - 168. Accepted and incorporated herein. 169. Rejected as unproven. 170. Accepted and incorporated herein. 171. - 175. Rejected as unproven. 176. Accepted. 177. & 178. Rejected as unproven. 179. - 191. Accepted and incorporated herein. 192. - 194. Rejected as unproven. 195. Accepted. 196. & 197. Rejected as unproven. 198. - 208. Accepted and incorporated herein. 209. - 211. Rejected as unproven. 212. Accepted. 213. Rejected as unproven. FOR THE RESPONDENT: 1. - 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. & 10. Accepted. 11. & 12. Accepted. - 15. Accepted. 16. - 18. Accepted and incorporated herein. 19. & 20. Accepted. 21. - 23. Accepted and incorporated herein. 24. Accepted. 25. First sentence accepted. Second sentence not proven. 26. & 27. Accepted. 28. Accepted and incorporated herein. 29. Accepted. 30. - 32. Accepted. 33. Accepted. 34. & 35. Accepted since the contrary was not proven. 36. Accepted as represented. 37. Accepted since the contrary was not proven. 38. Accepted that the treatment and records were within standards. COPIES FURNISHED: Britt Thomas, Esquire Natalie Duguid, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jonathan W. Lubell, Esquire 750 Lexington Avenue New York, New York 10022 Salvatore A. Carpino, Esquire 8001 North Dale Mabry Highway Suite 301-A Tampa, Florida 33614 Jerome W. Hoffman General Counsel Agency for health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether respondent's license to practice medicine should be disciplined on grounds that: (1) he engaged in gross or repeated malpractice or failed to practice medicine with the required level of care, skill, and treatment, and (2) he is unable to practice medicine with the requisite skill and safety by reason of illness or as a result of a mental or physical condition.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: Respondent is an 80-year-old physician licensed to practice medicine in Florida. He has been a general practitioner in the Miami area for over 40 years; during that time, he has earned the respect and esteem of the medical community. During the 1940s, he helped establish the first cancer clinic in Dade County; he is recognized as one of the community's early medical pioneers. He has never before been the subject of a disciplinary action for professional misconduct. (Testimony of Bishop, Boughton; R-2.) I. The Claresta Halloran Abortion On July 3, 1980, Ms. Claresta Halloran, age 35, visited respondent's office for a therapeutic abortion. She told respondent that her last menstrual period was "sometime in April." (P-3.) Respondent palpated her, examined her by use of a sounding instrument, and dilated her uterus. After determining that she was approximately 12 weeks pregnant, respondent attempted to abort the fetus by suction and curettage. Fearing that he had perforated Ms. Halloran's uterus, respondent had her transported to North Miami General Hospital for an exploratory laparotomy. Results of the exploratory surgery were negative; there was no evidence of perforation of the uterus or injury to the bowel. (Testimony of Boughton; P-3.) William Wickman, M.D., performed the exploratory surgery on Ms. Halloran at the hospital. His bimanual examination revealed an enlarged uterus, "the size of approximately [a] 12 week pregnancy." (Testimony of Boughton; P-3.) Two days after the surgery, Ms. Halloran passed a macerated fetus which, after pathological examination, was estimated to be of 17 weeks' gestation. Her convalescence from surgery was otherwise uneventful and she was discharged from the hospital the next day, July 6, 1980. (Testimony of Boughton; P-3.) Absent specialized training, abortions "from below," that is, by dilating the cervix and removing the contents of the uterus, should not be performed on pregnancies which have progressed beyond 12-weeks. This is because, after 12 weeks, the fetus's bones have developed calcium and sharp, razor-like edges which can perforate the uterus and endanger the health and safety of the patient. (Testimony of Rudolph.) Respondent has not received specialized training which would enable him to safely use the "from below" method on pregnancies beyond 12 weeks. However, his examination of Ms. Halloran led him to believe she had been pregnant for 12 weeks. In reaching that conclusion, he did not rely solely on the date of the patient's last menstrual period. His palpation and examination of the patient's uterus confirmed that the pregnancy was approximately 12 weeks. Dr. Wickman's subsequent examination of the patient at the hospital confirmed that the patient's uterus indicated an approximate 12-week pregnancy. (Testimony of Rudolph, Boughton; P-3.) There are other more advanced methods, such as sonography, which enable one to more accurately determine the gestational age of a fetus. However, the evidence does not support a finding that respondent's failure to use such methods constitutes malpractice or a failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. (Testimony of Rudolph.) Respondent admits that he erred in his diagnosis of the stage of Ms. Halloran's pregnancy. However, his diagnosis was not shown to have been unjustified or unreasonable in light of the facts known to him at the time. Both the date of the patient's last menstrual period and manual examination of the uterus supported a determination that the pregnancy was approximately 12 weeks. The "from below" abortion procedure which respondent utilized is only unacceptable for use on pregnancies in excess of 12 weeks. In short, respondent's treatment of the patient was consistent with his diagnosis. While the diagnosis was in error -- the fetus was of 17 weeks' gestation, not 12 weeks -- other physicians, under similar circumstances, would likely have made the same error. (Testimony of Boughton; P-3.) II. The Wilhemina Evans Abortion On August 5, 1980, Ms. Wilhemina Evans, age 18, visited respondent's office for a therapeutic abortion. She told respondent that her last menstrual period was at the end of April. He palpated her, placed a sounding instrument, and dilated her uterus. After concluding that she was at least 13 weeks pregnant; 2/ he attempted to abort the fetus "from below" by use of placental forceps and a curette. He thought the abortion had been successful and permitted the patient to, return home. (Testimony of Rudolph, Boughton; P-4.) The next day, the patient went to Jackson Memorial Hospital complaining of abdominal pain. Several minutes after arriving at the emergency room, she passed a 750-gram male still-born fetus. Subsequent pathological examination indicated that the fetus was of 24 weeks' gestation. (P-4.) Respondent failed, in several respects, to provide Ms. Evans with treatment which is recognized by a reasonably prudent similar physician as acceptable under similar circumstances. Without special training, the "from below" method of aborting the fetus should not have been used on a woman beyond 12 weeks pregnant. 3/ Moreover, if respondent was uncertain of the gestational age of the fetus, he should not have attempted to abort the fetus "from below" in an office setting. Despite the patient's obesity, respondent should have been able to determine the advanced gestational stage of the fetus. Finally, a reasonably prudent similar physician would have realized that the attempted abortion had been unsuccessful and would not have permitted the patient to immediately return home. Thus, it is concluded that respondent's treatment of Ms. Evans was inconsistent with acceptable medical practice. 4/ (Testimony of Rudolph.) III. Treatment of Skin Lesions of Bernice Riordan Since 1951, Bernice Riordan, age 68, has been a patient of respondent's. Over the years, he treated her for various ailments, including basal cell carcinomas and squamous cell carcinomas on her face and neck. He used different techniques to treat the carcinomas; electrocoagulation in 1955; electrodesiccation and silver nitrate in 1961, 1962, 1972, and 1976; bichloracetic acid in 1976; and 5-Fluorouracil in 1978. In April, 1961, respondent referred Ms. Riordan to a dermatologist for specialized treatment. In 1969, he referred her to Jackson Memorial Hospital for radiation therapy because of multiple lesions on her face. She was a difficult and eccentric patient; she continually resisted his efforts to refer her to specialists for treatment of her increasingly serious carcinomas. Finally, in 1980, he referred her to two specialists -- a plastic surgeon and another dermatologist. By 1980, the cancer of the skin on her face had destroyed the entire nose and perioral skin. (Testimony of Boughton; P-2.) The Department presented, by deposition, the testimony of Dr. Richard C. Childers, a dermatologist who had reviewed the patient records of Ms. Riordan. He graduated from medical school in 1969 and was licensed to practice medicine in Florida in 1971. Since 1974, he has engaged in the private practice of dermatology in Gainesville, Florida, with a clinical appointment at Shands Teaching Hospital. It was Dr. Childers' opinion that respondent should have referred Ms. Riordan, no later than 1959, to a specialist for treatment of recurring skin lesions. Dr. Childers also opined that respondent, on numerous occasions over the years, had used ineffective or inappropriate treatment techniques on Ms. Riordan's lesions. (P-2.) Dr. Childers' testimony is rejected as inadequate to establish that respondent failed to provide treatment to Ms. Riordan which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. Dr. Childers is a specialist in dermatology, not a general practitioner. He practices in Gainesville, not Miami. When respondent applied many of the complained of treatment techniques to Ms. Riordan, Dr. Childers had not yet begun medical school. It would be patently unfair to measure treatment for carcinomas furnished by a general practitioner in 1961 by a specialist's with the standard of care applicable to general practitioners in the Miami area during the period in question. to establish an appropriate standard of care applicable to respondent's treatment of Ms. Riordan. (Testimony of Boughton; P-2.) IV. Respondent's Ability to Practice Medicine with Reasonable Safety to His Patients On April 27 and 30, 1981, a mental status examination was given psychiatrist's opinion, respondent's appearance, behavior, and overall thinking was intact; there was no evidence of psychosis. However, respondent's response was somewhat impaired. Dr. Bishop concluded that respondent suffers from of Bishop.) Respondent recognizes that his advanced age affects his ability to However, he believes that he is able to operate an office practice with reasonable skill and safety and without endangering his patients. He is willing his work. The practice of medicine is his avocation as well as his profession; it is the habit and pleasure of his life. (Testimony of Boughton.) interfere with his ability to practice medicine with reasonable skill and safety to his patients. The ability to remember facts is essential to a physician's patient's illness. (Testimony of Bishop.) However, the evidence is insufficient to demonstrate that respondent's his livelihood. The evidence on the extent which his impairment will affect his ability to practice is problematic. He is willing to submit to the supervision supervision of another physician, it is likely that he will be able to practice medicine with reasonable skill and safety to his patients. (Testimony of
Recommendation Based on the foregoing, it is That respondent's license to practice medicine be suspended until respondent submits to the Board an acceptable proposal which ensures that his the Board approves the proposal, respondent should be placed on a probationary status and his practice restricted to exclude the performance of surgery and DONE AND RECOMMENDED this 20th day of November, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 20th day of November, 1981.
Findings Of Fact Mark Hegedus, Respondent, is registered with the Florida State Board of Nursing and holds license No. 85729-2. He worked at the Sarasota Memorial Hospital (SMH) for approximately three years immediately preceding May 15, 1978. During the period between April 1, 1978 and May 15, 1978 Respondent was working on the cancer ward at SMH and was Charge Team Leader at the hospital. An audit conducted of the narcotics and barbiturates administration records at SMH for the period 1 April through 15 May 1978 disclosed that of 14 patients records selected who had been administered Demerol by Respondent, evidence of irregularity was discovered in 30 entries on 9 of the 14 patient medical records audited. These errors included signing out for 50 mg ampules of Demerol 11 times, for 75 mg ampules 11 times, and for 100 mg ampules 8 times in the narcotic record with no entry made on the Nurses Notes or on Medication and Treatment record. These errors involved patients Daryl C. Iverson, Edna Jurgenson, Clinton Jelmberg, John Lally, Genevieve Belt, Arleigh Updike, Michael Wujtowicz, Joan Slater, and Arda Miller. Hospital procedures and accepted nursing practice require the nurse administering narcotics to sign for the narcotic when it is removed from the narcotics locker and then make an entry in the Nurse Notes and patient Medication and Treatment record when the narcotic is administered to the patient. Medication and Treatment records are used by the doctors to see how frequently patients need narcotics prescribed on an as needed basis, whether the drugs prescribed have been administered, and by other medical personnel to ascertain when the patient last received and how much medication so as to preclude giving the patient an overdose. Respondent was discharged from his position at the hospital on 15 May 1978 because of the narcotics irregularities. At the time of his discharge, Respondent acknowledged that he had taken Demerol and had disposed of the ampules but that he did not use them himself or sell them. The audit disclosed a few errors in charting narcotics were committed by other nurses as well as Respondent. During the three years Respondent worked at SMH and, up until about 1 April 1978, he was a capable and competent registered nurse, well-liked by both patients and co-workers. He was promoted to First Team Leader after about one year at SMH and to Charge Team Leader approximately one year thereafter. These promotions were more rapid than the time required by the average nurse. All witnesses who had worked with Respondent spoke highly of his qualifications and dedication as a registered nurse.
Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following relevant facts are found: At all times relevant to this proceeding, respondent Hooshang Kadivar held a license to practice medicine in the State of Florida. Since 1971, he has been in private practice in Ft. Pierce, Florida, specializing in thoracic, cardiovascular and general surgery. His practice includes both general surgery and a limited family practice. Many of the respondent's colleagues consider him to be an extremely dedicated physician and a competent general and thoracic surgeon. On November 4, 1976, Jessie Crane, then 29 years of age, was admitted to the emergency room of Ft. Pierce Memorial Hospital with abdominal pain. Dr. Costello, then a partner of the respondent, was the admitting physician. She was examined by Dr. Costello and was treated initially with an IV and a nasogastric tube. Respondent visited Ms. Crane's hospital room at approximately 11:00 p.m. on November 5, 1976. A night light was on in the room and respondent also had a small flashlight. Without a nurse in the room, respondent asked Ms. Crane to sit up on the side of her hospital bed. He then conducted a breast examination, probed in her stomach area and rubbed along her sides and back. While doing this, he was pressing his genital area against her knees and then releasing. The breast examination was unlike other examinations which Ms. Crane has had. Rather than using his fingers in a rolling motion to detect lumps, respondent used both hands, one on each breast, and his breathing became harder as the examination progressed. Ms. Crane became concerned about this examination and asked Dr. Kadivar several times to let her lie back down. She was still experiencing abdominal pain. Respondent told her that the examination would be completed in a little while and that the massaging would help her relax and feel better. Respondent was then called away by the intercom. As he was leaving, Ms. Crane noticed that his groin area was firm, which she also felt when respondent was pressing against her knee, and that there was a small wet spot on his slacks. She immediately reported the incident to a nurse on duty and to another nurse the following day. Ms. Crane was not receiving pain medication during her hospital stay. It is somewhat irregular for a doctor to go into a patient's room and conduct an examination at 11:00 o'clock at night. The hospital records of Ms. Crane contain no notation of the examination performed by the respondent on this occasion. The standard of care at the Ft. Pierce Memorial Hospital was that a nurse be present during a physical examination of a female patient if she is in any way disrobed. The evidence was not clear as to whether or not Ms. Crane was disrobed at the time of respondent's visit to her room. Dr. Costello had already performed a full medical examination on Ms. Crane on the day of her admission to the hospital. A little after midnight on May 17, 1979, Marie G. Wilson, then 62 years of age, went to the emergency room of Lawnwood Medical Center (formerly known as the Ft. Pierce Memorial Hospital) complaining of lower abdominal pains. Her regular family physicians could not be located and Dr. Kadivar initiated the examination and treatment of this patient, making an initial diagnosis of possible kidney stones. Respondent's examination notes state that Ms. Wilson's breasts were "well developed, free of masses." The following morning her regular physician, Dr. McDermid, came to Ms. Wilson's hospital room, examined her and started x-rays. His notes of the examination reveal that no masses were noted in her breasts. After lunch on that same day, at about 1:00 p.m., respondent Kadivar came into Ms. Wilson's hospital room and announced that he was there to examine her. Ms. Wilson explained to him that Dr. McDermid was her physician and had already been in to see her. Dr. Kadivar then left the room. A few minutes later, according to Ms. Wilson, respondent returned to her room, said it was correct that Dr. McDermid was her doctor, kissed her hand, kissed the inside of her arm several times, placed his hands on both of her breasts and quickly squeezed them, stating "I kiss your hand. I feel your breast. I'm a breast [or possibly "chest"] man. He then left the room. Ms. Wilson reported this incident to her husband when he came to visit her later that day. She also reported it to Dr. Watkins when she saw him several weeks later. When Dr. Watkins confronted respondent with this, respondent denied that he had squeezed Ms. Wilson's breasts, but admitted that he had kissed her hand, stating that it was a custom in his native country of Iran. Ms. Wilson had received pain medication during her stay in the hospital, and her mental alertness may have been less than normal. While she could not recall much of what occurred during the time of her admission, she vividly recalls respondent's visit to her hospital room on the following day. Dr. Kadivar admits that he kissed Ms. Wilson's hand as many as three times and states that he always kisses his patient's hand. He testified that when he examined Ms. Wilson's breasts the morning of May 17th, he felt an induration or thickening in one breast. When he was dictating his notes for this patient, he could not recall which breast it was, so he returned to Ms. Wilson's room to reexamine her breasts. On this second examination, he found nothing. He later returned to Ms. Wilson's room after ascertaining that Dr. McDermid was her physician and told Ms. Wilson that he was glad she was feeling better. Janet Faye Donaldson was admitted to the hospital on June 27, 1980, with a collapsed right lung. She was then 30 years old. Respondent Kadivar performed surgery and placed a tube under her right arm into her chest. The tube was connected to a pressure machine, evidently to keep her lung inflated. She was given regular doses of pain medication during the early days of her hospital stay. After lunch on June 29, 1980, Ms. Donaldson's husband was visiting with her when Dr. Kadivar entered the room. Respondent asked him to leave the room while he examined the patient. He then removed Ms. Donaldson's hospital gown and asked her to sit up on the side of the bed. Nurse Martha B. Abell had just returned from lunch and read from the nurses' notes that patient Donaldson was requesting more pain medication. When Abell entered Donaldson's room, the curtains around the bed were closed and Dr. Kadivar was there. The patient was sitting up on the side of the bed, her legs hanging down, with her gown removed. After examining the patient's left breast (the right breast was taped to hold the chest tube in place), Dr. Kadivar asked the nurse to get him a reflex hammer. Nurse Abell then left the room, walked approximately six doors down the hall to the nurses station, and returned to the patient's room with the hammer. She did not believe that it took her more than two minutes to retrieve the reflex hammer. When she returned, respondent checked the reflexes of the patient and thereafter Dr. Kadivar told the nurse that she could tell Ms. Donaldson's husband to come back into the room. According to Ms. Donaldson, when nurse Abell was not in the room, respondent instructed her to lie back down on the bed. As her gown was wadded up around her chest, respondent placed one of her feet next to her other knee, began moving both his hands up both her legs, touched her vaginal area and placed his wet mouth on her knee with his eyes closed and he mumbled something. Ms. Donaldson became upset, felt that respondent was trying to molest her, and asked for a nurse. Ms. Donaldson reported this incident to several nurses, and another physician was assigned to her care for the remainder of her hospital stay. She did not mention the incident to Nurse Abell because she felt that Abell and respondent were good friends. Respondent admits that he thoroughly examined Donaldson on June 29th, including her breast, legs and groin area, but denies the events as related by Ms. Donaldson. Deletha Spooner, then 27 years old, had a spot on her left leg just above her knee that was causing her pain. Respondent's wife had done business with Ms. Spooner at her florist shop and made an appointment for her with her husband on April 3, 1981. Ms. Spooner arrived at Dr. Kadivar's office at the appointed time, 3:30 or 4:00 p.m., and, after filling out some forms, she was taken into respondent's office. She and respondent discussed her medical history and she consented to having a PAP smear. The respondent's nurse, Homa Hajivandi, who was also the respondent's niece, then took Ms. Spooner to the examination room, took her blood pressure, pulse and temperature, and told her to undress and get ready for the doctor. She gave Ms. Spooner two sheets. After she undressed and covered herself with the sheets, Dr. Kadivar examined her eyes, ears, nose and throat while she was sitting up and performed a normal breast examination while she was lying down. According to Ms. Spooner, respondent asked the nurse to leave the room so that she could listen for the phone since the receptionist, Carol Laurito, was going home early. The nurse left and respondent closed the door behind her. Respondent came back to the table and began probing her leg, telling her that he was checking her circulation. Ms. Spooner relates that respondent then instructed her to turn on her left side, facing the wall and he removed the sheets from her body. He told her to scoot to the edge of the table closest to him and to take as deep breaths as she could until she felt that she would pass out. As she began her deep breathing, respondent was probing around her legs with both hands. He was massaging her thighs and touched her vagina. She heard a rustling of clothing and felt what she believed to be his penis against the middle of her back. She then became frightened and started to get up. Respondent told her to lie down. She stopped breathing deeply, respondent turned slightly and Ms. Spooner felt a spasm and heard another rustling of clothing. Respondent then replaced the sheets on Ms. Spooner's body, called the nurse back in and left the room. The nurse came back in the room, prepared Ms. Spooner for the PAP smear, and respondent then returned for that purpose. Ms. Spooner then got dressed and went into respondent's office and discussed the results of the examination. Ms. Spooner noticed that the front of respondent's trousers were wet, like "drip spots," near his groin area. She testified that respondent was wearing green surgical garb. She recalls that she paid the nurse by check as she was leaving and that the receptionist was not there. She told her baby sitter, her husband and the police about this incident on the same day. The receptionist, Carol Laurito, testified that she was in the reception area of respondent's office during Ms. Spooner's entire examination and left only when Ms. Spooner was writing out the check for the visit. She states that her back was never turned away from the examination room and that the nurse was in the examination room the entire duration of respondent's examination of Ms. Spooner. She agrees that respondent was in the examination room when he told Ms. Laurito that she could leave. Nurse Hajivandi testified that she was in the examination room during the entire examination by respondent, and that respondent never asked Ms. Spooner to turn on her side. She states that respondent left the room while she was preparing Ms. Spooner for the PAP smear. Ms. Laurito did not relate this fact when testifying. Ms. Laurito and Nurse Hajivandi differently describe the clothes Ms. Spooner was wearing and her hairstyle. They also have conflicting versions concerning the making of an appointment for Ms. Spooner. The nurse stated that respondent was wearing a lab coat during Ms. Spooner's visit to his office. Respondent testified that he never instructed Ms. Spooner to lie on her side. He states that he was wearing a white jacket which comes almost to his knees during Ms. Spooner's visit and that his examination table is approximately 29 inches high. From the top of the table to Ms. Spooner's mid-back would reach him two or three inches above his belt line. Several weeks later, respondent called Ms. Spooner and asked that she come in to discuss the results of her PAP smear. On May 12, 1981, Ms. Spooner went into Dr. Kadivar's office with a hidden tape recorder. They discussed the PAP smear, she confronted him with her accusations as to the impropriety of the examination conducted on April 3rd and he denied any wrongdoing on his part. He stated that he could not remember whether or not his nurse left the room during the examination. He did ask Ms. Spooner to drop the matter and offered to consult further with her and her husband. He stated that he had already been punished enough. Apparently, he was aware that Ms. Spooner had already been to the authorities about this matter. On October 30, 1981, respondent was indicted for committing an unnatural and lascivious act and a battery upon Deletha Spooner on April 3, 1981. Pursuant to a negotiated plea arrangement, respondent entered a plea of nolo contendere to these charges. County Court Judge William G. Tye, of the Nineteenth Judicial Circuit, entered an Order on July 12, 1982, withholding adjudication of guilt on each count and placing respondent on probation for a period of eighteen months, with conditions attached to the probationary period.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: respondent be found NOT GUILTY of violating Sections 458.331(1)(k) and (1)(s), Florida Statutes, respondent be found GUILTY of violating subsections (1)(c), (1)(l) and (1)(t), of Section 458.331, Florida Statutes, respondent's license to practice medicine in the State of Florida be SUSPENDED for a period of one year, during which time he shall seek and receive psychiatric and/or psychological treatment. At the end of this period of suspension, if he can demonstrate that he has sought and received such treatment, his license shall be reinstated and respondent shall be placed on probation for a period of three years. The conditions of his probation shall be that he not, under any circumstances, examine a female patient except in the presence of a female attendant, nurse or other physician. Further, respondent shall continue to seek and receive psychiatric and/or psychological treatment until such time as the Board of Medical Examiners determines that such treatment is no longer required. Violations of the terms of respondent's suspension or probation shall result in the revocation of his license to practice medicine in the State of Florida. Respectfully submitted and entered this 24th day of November, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 24th day of November, 1982. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Chief Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Philip S. Parsons, Esquire Ausley, McMullen, McGehee Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Gerald S. James, Esquire Post Office Drawer 3351 Ft. Pierce, Florida 33454 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues for consideration are those allegations set forth in an Administrative Complaint brought by the State of Florida Department of Professional Regulation (Department), in which the Respondent, Scarlett Jones, R.N., is accused of various violations of Chapter 464, Florida Statutes. Through Count One it is said that the Respondent transcribed an order for Heparin to be administered to the patient K.W. as 15,000 units when the physician's order quoted the dosage as 5,000 units, and that the patient was given two dosages at 15,000 units as opposed to the required 5,000 units. In an additional accusation against the Respondent, related to patient care, Respondent is said to have failed to indicate in the patient K.W.'s nursing notes, on or about May 16, 1988, that an administration of Aminophylline was to be restarted during the 11:00 p.m. to 7:00 a.m. shift. Further, it is alleged that this substance was not restarted until 8:00 a.m. on the next day as discovered by a subsequent shift employee. As a consequence, Respondent is said to have violated Section 464.018(1) (f), Florida Statutes, related to alleged unprofessional conduct. Count Two to the Administrative Complaint alleges that on or about June 4, 1988, the Respondent who was assigned to care for the patient E.J., was told by a co-worker that the patient had fallen out of bed and soiled himself and that the Respondent failed to respond to the patient's needs after repeated requests. Eventually, it is alleged that the patient's wife assisted him back to bed and the co-worker took care of the patient's hygiene. As a consequence, Respondent is said to have violated Section 464.018(1)(f), Florida Statutes, related to unprofessional conduct and that she violated Section 464.018(1)(j), Florida Statutes, for knowingly violating a rule or order of the Board of Nursing. Finally, the third count of the Administrative Complaint alleges that the Respondent, on or about June 14, 1988, was found asleep while on duty in violation of Section 464.018(1)(f), Florida Statutes, an act of unprofessional conduct, including, but not limited to, the failure to conform to minimum standards of acceptable and prevailing nursing practice. For these alleged violations, the Department seeks to impose disciplinary action which could include revocation or suspension, the imposition of an administrative fine and/or other relief which the Board of Nursing might deem appropriate.
Findings Of Fact During the relevant periods under consideration in this Administrative Complaint the Respondent was licensed by the Department as a registered nurse and subject to the jurisdiction of the Board of Nursing in disciplinary matters. The license number was 1702172. On April 11, 1988, Respondent took employment with Gadsden Memorial Hospital in Gadsden County, Florida, in a position of charge nurse on the Medical-Surgical Pediatrics Unit, also known as "Med-Surg. Ped." That unit provides short term acute care for post-operative patients, acute medical patients, and acute pediatric patients, some of which require 24-hour observation. Response to the needs of the patients is given by three nursing shifts in each day which begins with shifts of 7:00 a.m. to 3:00 p.m., followed by the 3:00 p.m. to 11:00 p.m. and then 11:00 p.m. to 7:00 a.m. on the following morning. Upon hiring, Respondent was assigned to the work the 11:00 p.m. to 7:00 a.m. and was the only registered nurse on duty during that shift. Among the responsibilities of the charge nurse at the time under examination here, was the assessment of patients on the unit as well as an awareness of the abilities of those other employees who were working in this shift. This was in an effort to provide direct supervision of critical care patients and included supervision of activities performed by a Nurse Technician. Respondent was more directly responsible for critical patients. Other duties included making frequent rounds and checking vital signs in an attempt to insure that the patients were stable. Respondent as charge nurse on "Med-Surg. Ped." could not leave the floor without notification of the house supervisor, another registered nurse. This person would replace the Respondent on those occasions where the Respondent would need to vacate the floor. In addition it was expected that the Respondent would notify those personnel who were working with her on the unit, where she intended to go and how long she would be gone. Before departing it was expected that the Respondent would check the stability of patients. physician's Orders were written on March 2D, 1988, in anticipation of the admission of patient K.W. to Gadsden Memorial Hospital to "Med. Surg Ped." The admission was under orders by Dr. Halpren. Among those orders was the prescription of Heparin, 5,000 units, subcutaneously every 12 hours. The Physician's Orders in terms of legibility are not immediately discernible but can be read with a relatively careful observation of the physician's orders. A copy of those may be found at Petitioner's Exhibit No. 5 admitted into evidence. The problem that tends to arise is that on the line which immediately follows the orders related to Heparin 5,000 units, is found the word hysterectomy written in such a fashion that the initial portion of the letter "H" might be seen as being placed on the prior line giving the unit dosage of the Heparin the appearance of being 15,000 units as opposed to 5,000 units. On April 11, 1988, K.W. was admitted to Gadsden Memorial Hospital as anticipated. At the time of admission the Physician's Orders previously described were provided. Surgery was scheduled and the patient file was made on "Med-Surg. Ped." Under the practices within this hospital, the ward clerk was responsible for transcribing physician's orders onto the patient's Medication Administration Record. This was done here by the ward clerk, S. Diggs. This is to be checked for accuracy by the charge nurse, to include Respondent, with the fixing of the signature to this Medication Administration Record verifying the accuracy of the clerk's entries. Respondent initialed the Medication Administration Record for the patient designating that Heparin in the amount of 15,000 units Q-12, meaning to be given every 12 hours was the requirement, and had been administered in that dosage. This may be seen in a copy of the Medication Administration Record which is part of Petitioner's Exhibit No. The patient was to undergo extensive abdominal surgery, to include the possibility of a hysterectomy and the incorrect administration of Heparin might promote problems with bleeding. The incorrect amount of Heparin as a 15,000 unit dosage was given to K.W. on two occasions. Another patient who was admitted to the ward which Respondent was responsible for as charge nurse was the patient A.W. Physician's Orders were written for that patient by Dr. Woodward on May 16, 1988. A copy of the Physician's Orders may be found at Petitioner's Exhibit No. 6 admitted into evidence. Among the substances prescribed was Aminophylline drip 20 milligrams per hour I.V. This patient had been admitted to the pediatric unit with a diagnosis of asthma and prescribed the Aminophylline to aid the patient's breathing. It was expected that patient A.W. was to be administered two dosages of Aminophylline, an intermediate dosage to be given every few hours in a larger quantity, and a continuous drip to run at 20 milligrams per hour. Within Petitioner's Exhibit No. 6 are nursing notes made by Respondent concerning A.W. On May 17, 1988, between the hours of 12:00 a.m. and 2:00 a.m. it is noted that Respondent was having trouble with patient A.W.'s I.V. She states that the I.V. site was assessed and had to be pulled and that she was not able to reinsert due to the uncooperative nature of this child. The I.V. was restarted by the house supervisor nurse. An entry at 6:30 a.m. made by the Respondent describes the I.V. position as acceptable. When the shift changed at 7:00 a.m. the new charge nurse did not find the Aminophylline drip in progress, as called for, and this is noted in a 7:30 a.m. entry made by this registered nurse, Sherry Shiro. Petitioner's Exhibit No. 4 admitted into evidence is a Confidential Incident Report prepared by the Gadsden Memorial Hospital concerning allegations against the Respondent. They have to do with an alleged incident that occurred around 5:00 a.m. and contain the purported observations by Lucinda Mack, a licensed practical nurse on duty at that time, and they were received on June 15, 1988, by Carol Riddle, R.N., Director of Nursing at Gadsden Memorial Hospital, and the person responsible for investigating this matter. The copy of the Confidential Incident Report contained observations about the alleged failure of treatment by the Respondent directed in the matter of the patient E.J. These remarks are hearsay. They do not corroborate competent evidence at hearing concerning any oversight by the Respondent in the treatment of the patient E.J. On or about June 14, 1988, the Director of Nursing, Carol Riddle, called the night supervisor Michelle Warring at 2:00 a.m. to ascertain if the Respondent was on duty. Respondent was working on that date. At 2:15 a.m. Warring advised Riddle that the Respondent could not be found and Riddle went to the hospital at that time. When she arrived at the facility at 3:00 a.m. she went to "Med-Surg. Ped." where she was informed by the communications clerk that Lucinda Mack, LPN, was the only nurse on duty in that unit, and that the clerk did not know where Respondent could be found. Riddle and Warring then looked through the patient rooms in "Med-Surg. Ped." but could not find the Respondent. One and a half hours after commencing the search Riddle located the Respondent in a different wing of the hospital which contains a respiratory therapy manager's office. Respondent was there with her husband asleep, with the door locked and lights off. At that time she was the only registered nurse on duty in "Med-Surg. Ped." which had six patients receiving care on that evening. Respondent was not performing her duties or supervising those other persons who worked with her on the unit. Respondent had been observed asleep at her nurses' station desk on several other occasions by Dale Storey, a registered nurse working at the Gadsden Memorial Hospital. Linda Reed, a nurse technician at Gadsden Memorial Hospital had observed the Respondent asleep on duty. As commented on by nurse Riddle, who is qualified to give expert opinion testimony about the performance of the Respondent in her nursing practice, the conduct set out before in these findings of fact constitutes unprofessional conduct in the practice of nursing, in a situation which the Respondent knew what her duties were as charge nurse and failed to perform them at an adequate level.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered which fines the Respondent in the amount of $1,000 for the violation related to the care of patient K.W. as set out in Count One and for sleeping on duty as set out in Count Three. And, finds that the violation related to patient A.W. as set out in Count One and the violation alleged in Count Two related to the patient E.J. were not proven. DONE and ENTERED this 19 day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19 day of April, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5719 Petitioner's fact finding is subordinate to the finding in the Recommended Order with exception of paragraph 16 which is not relevant and reference within paragraph 34 to the date June 24, 1988, which should have been June 14, 1988. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Scarlett Jones 2636 Mission Road, #138 Tallahassee, Florida 32302 Judy Ritter, Executive Director Florida Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent holds a registered nurse's license, No. RN 1992962, and has at all material times. In May of 1989, as an employee of Kimberly Nurse Travelers, an agency with whom Bay Medical Center had contracted for his services, he worked as a nurse at Bay Medical Center in Panama City, Florida. While working the night shift as the triage nurse on May 12, 1989, respondent helped himself to a Darvocet N-100, a pill he ingested 20 minutes later. At the time and at hearing under oath, he said he took the pill because he had a headache. Darvocet is a prescription drug, and respondent had no prescription for it. But petitioner's own witness conceded that Darvocet "is not considered a drug of choice for people that have a problem with drugs" (T.61) and should not, in the dosage respondent took, "impair someone's judgment and ability to perform." T.66. A co-worker reported respondent, who was in plain view when he took the pill from the cart. Later the night of May 12, 1991, at the behest of supervising personnel, respondent supplied a urine specimen, which tested positive for benzodiazepine, possibly the residue of the 15-milligram Dalmane tablet respondent took the night before, when he was off duty. Respondent's co-workers who testified found no fault with his performance as a nurse, this incident aside. But theft of the Darvocet pill, and its ingestion on duty without a prescription, violated hospital policy and fell below the minimal standards of acceptable and prevailing nursing practice.
Recommendation In the absence of aggravating or mitigating circumstances, Rule 21O- 10.011(2)(j), Florida Administrative Code, authorizes penalties for infractions of Rule 21O-10.005(1)(e), Florida Administrative Code, of reprimand, fine, probation and/or suspension. Nothing was proven in aggravation. In mitigation, it was shown that this was a first offense, apparently an isolated occurrence. It is, accordingly, recommended that petitioner reprimand respondent, and levy an administrative fine against him in the amount of five hundred dollars ($500). RECOMMENDED this 13th day of August, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 13th day of August, 1991. COPIES FURNISHED: Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 323990-0792 Tracey S. Hartman, Esquire 1940 North Monroe Street Tallahassee, FL 32399-0792 Carol C. Murphy, Esquire Post Office Box 1084 Lakeland, FL 33802
