Findings Of Fact During the period August 26-28, 1985, James L. Myrah, a hospital consultant for DHRS, accompanied by Ms. Christine Denson, a registered nurse, and other consultants in various disciplines from the Petitioner's office of licensure and certification, conducted a licensure, medicare, medicaid and civil rights survey at the Respondent's facility in Ft. Walton Beach, Florida. During the course of this survey, Mr. Myrah followed the normal procedure for such inquiries which included an entrance conference with the administrator, and a survey process which includes looking at various items for as many days as is required to do a thorough job.1 As a part of the survey, the team looks at every resident physically but examines patient charts on the basis of a random sample. In the instant case, examination of the patient records kept by the Respondent revealed only one variance. That was brought to the attention of the Petitioner's Office of Licensure and Certification by the Local District I omebudsman who commented about a particular patient, whose name will not be recited to preserve patient confidentiality, but whose initials, M.C., will be used as identification. By the time the survey was conducted, M.C. had already been transferred to another nursing home and was not physically present. Therefore, the inspection team was unable to examine her. However, they did examine her medical records and chart closely. This examination resulted in Petitioner drawing the conclusion that Respondent was in violation of the require ment for notification to the patient's physician whenever there is a substantial significant change in the patient's condition. The patient's chart was not entered into evidence. The report form identifying the deficiency (HRS Form 553E) was prepared by the inspection team based on its evaluation of the patient records. This was not objected to by Respondent, and in the absence of any objection to its entry, it was accepted. The entry for the 11 p.m. to 7 a.m. shift on May 22, 1985, reflects,2 "Total care given, nothing per os (by mouth) past midnight. Dr.'s appointment in am--resident seems very listless not talking as usual. Several small bruises noted on lower extremities (rt.) foot very discolored." This entry is, in the opinion of Ms. Denson, important because it relates to the fact that the patient was to go to the doctor in the morning. The use of the term "listless" might indicate a serious medical condition and a change of condition which should have been reported to the person next in charge. The term, "not talking as usual" shows a change that would require comment. In addition, the comment regarding the discoloration of the foot should have been reported to someone and not allowed to remain uncommented on until the visit with the doctor the next morning. The patient saw her physician, Dr. Wilson, at 8 a.m. on May 22, 1985; and returned to the home at 10 a.m. the same morning. Apparently nothing was considered to be wrong with the patient because no prescription for medicine or other treatment was given by the physician who, three days later, on May 25, 1985; when advised by nurses on the 7 a.m. to 3 p.m. shift of large black and blue areas on the patient's inner groin area, indicated he examined the patient and found nothing new clinically on May 22. There are repeated instances of comments which Petitioner alleges were not properly reported to the physician. For example, on May 23, personnel on the 11 p.m. to 7 a.m. shift reflected that the patient "continues to be listless. Right leg turned at a funny angle. Report to D.O.N. (Director of Nursing)." The 7 a.m. to 3 p.m. shift the following morning reported, "Both legs ecchymosis (discolored), hip moves oddly, color pale." The 3 p.m. to 11 p.m. shift the same day reported, "Color remains pale-- unusual movement and rotation of both legs noted." Additional comments of a similar nature were noted by personnel on the 11 p.m. to 7 a.m. shift on May 24 the 3 p.m. to 11 p.m. shift on May 24; and the 11 p.m. to 7 a.m. shift which discovered the discoloration to the pelvis as reported previously. At 4 p.m. on May 25, 1985, personnel reported their concern in reference to the bruises on the patient's groin and lower extremities to the physician and further entries show that at 5:10 p.m., the patient was subsequently returned to the home at 7:30 p.m. after x-rays were accomplished which failed to reveal any fracture. Nonetheless, because of continued concern by the nursing staff and at the urging of family members, the patient was returned to the hospital at 10 a.m. on May 27, 1985. At this point, she was found to have fractures of both lower extremities and upon release from the hospital was transferred to another convalescent center. Mrs. McCasland contends that all due care and concern was given to the patient, M.C., consistent with the long standing convalescent center policy governing changes in patient status. This policy statement, dated March, 1975, which is still in effect, requires that "in the event of a significant change in the patient's physical, mental, or emotional status, the attending physician is immediately called by the charge nurse." As was stated in paragraph 3, above, on May 22, an 11 p.m. to 7 a.m.'s shift nurse noted a small bruise on the left foot of the patient and that the patient was listless. Small bruises are not necessarily significant in geriatric patients (M.C. was 88 years old). Also, often older people do not talk for several days. In any event, the lack of any significant condition was confirmed by the physician who found nothing unusual in the patient's condition during the examination. The doctor's report reflects, inter alia, "physical examination is remarkable for an elderly white female in an involuted state appearing her stated age." Her extremities "show some area of bruising primarily in the upper thighs presumably related to lifting the patient. She has crepitance in the bilateral knees and is unable to fully extend her lower extremities." Neurologically; she was determined to be alert and the physician recommended continuing general support of care. On May 25, 1985, the charge nurse called Ms. McCasland at home indicating that the patient's legs seemed to be getting bluer. Ms. McCasland, at that moment, told the nurse to call the patient's physician which was done and the doctor indicated at that time that when he had examined the patient several days previously, he found nothing wrong. It apparently was the decision of the doctor to take no further action at that time. However, at approximately 4 p.m.; after the conversation with the physician; the charge nurse contacted the physician again, indicating she thought the patient needed to be x-rayed. At 5:10 p.m.; the patient was taken to the hospital; apparently at the order of the physician; for x-rays which showed no fractures. Nonetheless; this action would not have been taken were it not for the attention of the nurse on duty and actions of the Respondent's administrator. On the following day, May 26, the charge nurse from the 7 a.m. to 3 p.m. shift again called Mrs. McCasland at home and stated that the patient's legs were; "bad." Ms. MeCasland told the nurse to call the patient's physician who directed she be sent to the hospital for x- rays. The hospital would not accept the patient and as a result, the physician came to the convalescent center where he examined her and concluded that there was, in fact, a problem. He directed she be sent to the hospital the following day and when she was x-rayed then; fractures were discovered. It should be noted here that again the contact with the physician which resulted in the ultimate diagnosis of leg fractures, was initiated by the charge nurse at Respondent's center and communicated to the physician and Ms. McCasland by center personnel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that deficiency number NH77(g); relating to the visit to Respondent's convalescent center on August 28, 1985, be removed. DONE and ORDERED this 7th day of May, 1986, in Tallahassee, Florida. _ ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1986.
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services (HRS), is designated as the state agency responsible for the administration of federal and state Medicaid funds, and is authorized by statute to provide payments for medical services. Respondent, Marvin H. Ledbetter, is a doctor of osteopathy who is enrolled as a general practitioner provider in the Medicaid Program. His professional office is in Ormond Beach, Florida where he is engaged in family practice. Under the Program, Ledbetter is assigned a provider number (48220-0) which is used to bill Medicaid for services rendered to Medicaid recipients. During calendar year 1981, which is the only time period in question, Ledbetter received $42,809 in Medicaid reimbursements from HRS, of which $28,062 related to fees for Medicaid hospital patients. The latter category of fees is at issue. In order to qualify for federal matching Medicaid funds HRS must meet certain federally-imposed requirements, including the establishment of a program integrity section designed to insure that all Medicaid services are medically necessary. If they are not, HRS is obliged to seek recoupment of funds paid to the provider. This proceeding involves an attempt by HRS to recoup certain funds paid to Ledbetter for hospital services. After providing medical services to various hospital patients, Ledbetter completed and sent in the necessary forms to obtain payment. As noted earlier, these payments totaled $28,062 during 1981. Upon receipt of the forms, HRS input the information from the forms into a computer data base, along with similar information from other Medicaid providers throughout the State. This information included, among other things, the number of admissions, number of discharges, amount paid for hospital services and length of stay. The retention of such data is necessary so that possible overpayments may be detected by HRS through the statistical analysis of claims submitted by a group of providers of a given type. Because Ledbetter's total discharges exceeded the average of other family physicians throughout the State, the computer generated a report which flagged Ledbetter for further review and examination. An HRS analyst conducted such a review of Ledbetter's records, and found his average hospital length of stay for patients to be acceptable when compared to the average physician in the State. This report was forwarded to the HRS peer review coordinator who randomly selected thirty of Ledbetter's patients from the computer, and obtained their patient charts (numbering sixty-eight). Such a statistical calculation is authorized by Rule 10C-7.6(4)(b), Florida Administrative Code. A medical consultant employed by HRS then reviewed twelve of the sixty-eight charts and recommended the records be sent to a Peer Review Committee (PRC) for its review and recommendation. This committee is authorized by Rule 7C-7.61(4)(c), Florida Administrative Code serves under contract with HRS, and is composed of eight members of the Florida Osteopathic Medical Association. It is their responsibility to review the files of physicians whose Medicaid payments are questioned by HRS's program integrity section. When Ledbetter's records were forwarded to the PRC by HRS, the transmittal letter stated that a "study" of his records had been made, and that said study revealed "overutilization of inpatient hospital services" and "excessive lengths of stay." After a PRC review was conducted in early 1984, the records were returned to HRS with a notation that "mild overutilization" had occurred. According to informal guidelines used by the PRC, this meant that Ledbetter's overutilization fell within the range of 0 percent to 20 percent. HRS accepted these findings but for some reason initially determined that a 40 percent overutilization had occurred, and that Ledbetter was overpaid in 1981 by 40 percent for his hospital services. Finding this amount to be inconsistent with the mild overutilization guidelines, HRS arbitrarily added back two days to each patient's hospital stay, which decreased overutilization to 33.8 percent, or $9,505.06 in overpayments. By proposed agency action issued on May 18, 1984, it billed Ledbetter this amount, thereby precipitating the instant controversy. All of the patients in question were from the lower income category, and most were black. Their home conditions were generally less than desirable, and the ability of the parents to supply good nursing care to ill or sick children was in doubt. At the same time, in 1981 Ledbetter was working an average of 56 hours per week in the emergency room of a local hospital and devoted only minimal time to his family practice. Because of this Ledbetter's number of hospital admissions greatly exceeded the norm when compared to general practitioners who engaged in an office practice. Consequently, he received most of these patients through the emergency room rather than his office and was dealing with patients whose socioeconomic conditions were an important consideration. These factors must be taken into account in analyzing Ledbetter's patient records. HRS does not contend that Ledbetter failed to perform the services for which he was paid--rather, it questions only whether some of the admissions were medically necessary and whether some of the lengths of stay were too long. In this regard, conflicting expert testimony was offered by the parties concerning the amount of overutilization, if any. Expert testimony by two local doctors of osteopathy support a finding that only mild overutilization of admissions and lengths of stay occurred. This is corroborated by HRS's expert (Dr. Smith) and by the testimony of its "live" expert, Dr. Conn, who conceded that lengths of stay were only "a little bit too long." The more persuasive testimony also establishes that while mild overutilization falls within the range of 0 percent to 20 percent, 10 percent is an appropriate median in this proceeding. Using this yardstick, Ledbetter should reimburse HRS for 10 percent for his billings, or $2,806.20.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent repay petitioner $2,086.20 in excess Medicaid payments received for calendar year 1981 claims. DONE and ORDERED this 16th day of May, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 16th day of May, 1985.
The Issue Whether Respondent should be determined to be found in violation of Florida's Medical Practice Act for gross negligence or failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under the circumstances or for _ ) failure to keep written medical records justifying the course cf treatment of a patient throughout seven months of her pregnancy? ( If so as to either charge, what is the appropriate discipline to be imposed by the Board of Medicine?
Findings Of Fact The Parties Petitioner, the Agency for Health Care Administration, is within the Department of Business and Professional Regulation, together with the Board of Medicine, the regulatory authority charged with regulating the practice of medicine in the State of Florida. Section 20.42 and Chapter 458, Florida Statutes. Respondent, Neville Clement Jack, M.D., is the holder of a license to practice medicine in Florida, license number ME 0046020. Prior Discipline by the Board of Medicine .. While holding license number ME 0046020, Dr. Jack has ) been disciplined twice by the Board of Medicine. He was first disciplined by a final order dated August 26, 1994. He had been charged by administrative complaint with ( violating Section 458.33l(l)(c), Florida Statutes, in that he had entered a plea of nolo contendere in the Thirteenth Judicial Circuit Court for Hillsborough County to seven counts of petit theft. The plea was based on criminal charges in which he was accused of defrauding Medicaid of $11,227.00 by billing Medicaid for services he had not provided. Dr. Jack did not contest the factual allegations in the administrative complaint. Dr. Jack was fined $2,500.00 and ordered to subject his practice to procedures designed to achieve quality assurance in the practice. Dr. Jack was disciplined again by a final order entered December 13, 1995. In this second proceeding, Dr. Jack was charged with twelve counts of violating the disciplinary C provisions of Chapter 458, Florida Statutes. Six of the counts charged Dr. Jack with failure to practice medicine with reasonable safety, two charged him with medical records violations, one with making deceptive representations in the course of his practice and one with inappropriate prescription of legend drugs. In entering a consent order with the Agency for Health Care Administration, Dr. Jack neither admitted nor denied the charges. The final order disposed of the case by fining him $5,000 and placing him on probation for a two year period effective December 5, 1995. Of the seven cases of patients whose treatment by Dr. Jack led to the twelve counts of violations of the Medical Practice Act in the administrative -"- ) complaint, issued in this second proceeding, three -cases, in part, consist of charges involving failure to respond to telephone calls or pages in a timely manner; three also consist of charges Dr. Jack failed to be present at critical moments in obstetrical care, including delivery, and follow-up or postpartum care. Failure to respond to pages or telephone calls at critical moments of need by an obstetrical patient is at the heart of this case, a case involving prenatal care of A.W., a woman who had entrusted her first pregnancy to Dr. Jack. Patient A. W.'s Obstetrical Care Prior to October 1992 In early 1990, Dr. Jack admitted a new patient to his practice of gynecology: A.W. Dr. Jack and A.W. had know each other prior to establishment of their physician-patient relationship because they were members of the same church. A little more than two years later, when Patient A.W. suspected that she might be pregnant, she made an appointment with Dr. Jack's office. If pregnant as she suspected, A.W. thought Dr. Jack would be the ideal person to provide her with obstetrical care. She been his gynecological patient for more than two years. In addition, she had known him for some time and had always believed him to be a reputable physician. In fact, she had seen Dr. Jack's name listed in her Humana provider publication as both a gynecologist and an obstetrician. In addition to thinking Dr. Jack would be an ideal obstetrician for prenatal care and delivering the baby, A. W., ) knew that if she were pregnant, she did not want the baby to be delivered a birthing center. She wanted the baby to be delivered at a hospital by a reputable obstetrician. In her mind, Dr. Jack was that obstetrician. He was the obstetrician whom she felt she could trust with a moment extremely important to her and her child-to-be: the baby's birth. A.W. presented to Dr. Jack's office on May 8, 1992 with indications of pregnancy. Dr. Jack conducted a full physical examination of her, including a sonogram. She was diagnosed as pregnant with an expected delivery date of December 21, 1992. Dr. Jack accepted A.W. as a prenatal patient. Unbeknownst to A. w., however, Dr. Jack, in May of 1992, did not have privileges at any hospital. He was not able and knew he was not able, therefore, to deliver A. W.'s baby at a hospital. It is not clear from the record why Dr. Jack did not have privileges at any of the local hospitals. It may have been because he had been convicted of seven criminal counts of petit theft involving medicaid fraud. It may have been because of the charges in the two cases for which he was disciplined several years later by the Board of Medicine. Whatever the basis for the loss of privileges, however, the fact remains: from the moment A.W. presented in May of 1992 throughout the course of care he provided A.W. while she was pregnant, Dr. Jack did not have privileges at any local hospital at which he could have delivered A.W.'s baby. At her initial visit the time most appropriate for the information to be communicated to a pregnant woman, A.W. was ' - \ not informed by either Dr. Jack's office staff or Dr. Jack, himself, that Dr. Jack did not have privileges at a local hospital. Nonetheless, for th·e next few months, A.W.'s pregnancy and prenatal care proceeded uneventfully. Dr. Jack provided A.W. with appropriate prenatal care, such as checking fetal heart tone, analysis of weight gain, checking growth of the fetus by measuring the patient's abdomen, and performing urinalyses. But, Dr. Jack did not refer A.W. to an obstetrician for the expected delivery. And A.W., not knowing that Dr. Jack could not conduct the delivery at a hospital, made no attempt to contact an obstetrician. During several of the visits to Dr. Jack's office prior to October of 1996, A.W. made known her intention to have ) the baby delivered at University Community Hospital ("UCH") in discussions with Dr. Jack's staff. It may be that staff members who participated in these discussions thought A.W. had been informed as part of standard office procedure of the lack of Dr. Jack's privileges. But, such procedure had not been followed in the case of A.W. At none of the times A.W. discussed delivery at UCH did the staff inform A.W. that Dr. Jack did not have privileges at UCH or, for that matter, at any other hospital in the area. Neither did Dr. Jack inform her of the status of his privileges at local hospitals. A.W.'s pregnancy continued to·proceed uneventfully until mid-October. ) Prenatal Care in October and November, 1992 On October 16, 1996, A.W., then close to commencement of her eighth month of pregnancy, presented to Dr. Jack with complaints of a urinary tract infection. Two weeks later, she presented a second time with symptoms which Dr. Jack diagnosed as a urinary tract infection and for which he prescribed Bactrim. Dr. Jack saw A.W. for the infection on November 2, 9 and 11, 1992. Following the November 2 office visit, Dr. Jack prescribed Amoxicillin. Following the November 9 visit, he prescribed Amoxicillin again. On November 11, 1992, Dr. Jack ordered a culture to determine the origin of the infection because A.W. was not responding to the prescribed antibiotics. On one of these visits, little more than one month prior to the expected delivery of the baby, Aw. was accompanied ( by W.W., her husband. W.W. expressed to Dr. Jack his concern about the antibiotic treatment received by A.W. and asked why she wasn't being hospitalized. W.W. thought his wife should be monitored in a hospital since the infection had lingered so long and seemed serious. W.W. was especially concerned since the infection was occurring while A.W. was experiencing a first-time pregnancy. The meeting between A.W., W.W., and Dr. Jack lasted twenty minutes. At no time during the meeting did Dr. Jack inform W.W. that he did not have privileges at any hospital. Nor did Dr. Jack inform W.W. that he was providing prenatal care only and that it was going to be necessary for him and his wife to obtain an obstetrician for the delivery. On November 13, 1996, A.W. saw Dr. Jack at his office again in order to have performed a sonogram, a procedure standard near the commencement of the last month of a full-term pregnancy. At the November 13 office visit, the staff informed A.W. that Dr. Jack "was not delivering right now, so ... he had other doctors who were delivering for him." Tr. 29. This was the first time that A.W. had ever heard or been informed that Dr. Jack did not have hospital privileges and would not be delivering the baby. When asked whether she wanted the delivery at UCH or another hospital, A.W., consistent with her earlier discussions with Dr. Jack's staff, answered UCH. In response, Dr. Jack's ) staff told A.W. that an appointment would be made in the first week of December for A.W. to see Dr. Reimer, an obstetrician with privileges at UCH. Consistent with the default up until November 13, 1992, by Dr. Jack and his staff in informing A.W. of his lack of privileges, Dr. Jack's records do not reflect that he ever informed A.W. that he did not have privileges. Likewise, on the November 13, 1992, when A.W. was finally and for the first time informed of the status of his privileges, Dr. Jack's records do not reflect that A.W. was informed. In light of the revelation on November 13, 1992, that Dr. Jack would not be delivering her baby, A.W. accepted the appointment made for her with Dr. Reimer. It was not A.W.'s \ // independent decision, however, to avail herself of Dr. Reimer's obstetr ical care at this late stage in her pregnancy. The decision to accept the appointment was thrust upon A.W. by the ( circumstances of the late revelation of the status of Dr. Jack's privileges. A.W made none of the arrangements to see Dr. Reimer. The arrangements were handled solely by Dr. Jack's staff. A.W. was told by Dr. Jack's staff that her records were being copied and sent to Dr. Reimer. Contrary to this representation, however, none of A.W.'s records were transmitted to Dr. Reimer's office. Obstetrical Care in December 1992 On the day of her appointment with Dr. Reimer during the first week of December, A.W. attempted to see Dr. Reimer but she could not find his office. She went to Dr. Jack's office for directions but, by the time she reached his office, the time ( for the appointment with Dr. Reimer had passed. A.W. had an appointment scheduled with Dr. Jack for the upcoming Friday afternoon, December 4, at 3:30. Dr. Jack's staff made a second appointment with Dr. Reimer for one hour before: 2:30 p.m., the afternoon of December 4. With the benefit of the new directions, A.W. found Dr. Reimer's office in time for her 2:30 appointment that Friday afternoon. Dr. Reimer's office refused, however, to allow A.W. to see Dr. Reimer because it did not have her prenatal records or any other medical records of hers. A.W. returned to the office in order to obtain the records, herself, and to transport them back to Dr. Reimer's office. In addition she intended to ( --, see Dr. Jack for her 3:30 appointment. When she arrived at the ) Dr. Jack's office, however, it was closed. A.W. attempted to reach Dr. Jack by telephone in the hope that his answering service would be able to inform him of the need to return her call, but this attempt, too, proved unsuccessful. At hearing, A.W. described her predicament on the afternoon of December 4, 1992, in the ninth month of her pregnancy and little more than two weeks from the expected birth of her child, in response to the question, "[h]ow were you feeling on that day?" A bit heavy [and in slight discomfort] and I just knew it was three weeks I hadn't seen a doctor, and I knew I had to see somebody if Dr. Reimer didn't see me ... (Tr. 32.) ) December 5, 1992 In the early morning of December 5, A.W.'s slight discomfort of the day before had become abdominal pain. At approximately 7 a.m., A.W. made the first telephone call of many calls she made throughout the day to Dr. Jack's office. As the day wore on with no response from Dr. Jack, the pain grew worse. Finally at 5 p.m., Dr. Jack returned the call. Over the telephone, Dr. Jack diagnosed A.W.'s condition as false labor. After the diagnosis by telephone, the abdominal pain continued to grow worse until it became excruciating. At approximately 8:50 p.m., A.W. reached Dr. Jack by telephone and told him that she wanted to go_ to the hospital. At this moment of A.W.'s worsening condition and what certainly sounded from A.W.'s description of symptoms to be a serious situation, Dr. Jack responded by telling her to call Dr. Reimer. In response to a question on direct examination about whether Dr. Jack had met the standard of care in this case, the agency's expert witness, Dr. Pierre Bouis, testified, that to meet the standard of care an obstetrician not able to deliver must "do everything possible to make sure that the patient is cared for by an appropriate facility and/or physician." (Tr. 140.) Without the required standard of care, that is without any assurance whatsoever of being cared for by an appropriate physician, A.W. presented to the emergency room at UCH at 9:00 C p.m. She asked the attendants to call Dr. Reimer. Dr. Reimer was called but because he had not seen A.W. and did not have any of her records, he declined to come to the hospital. Nurses at UCH examined A.W. Observing that her abdomen was very hard and unable to detect a fetal heart tone, the nurses called Dr. Commedore, the emergency on-call obstetrician for UCH. Dr. Commedore admitted A.W. to UCH and conducted an examination. There were no fetal heart tones. Furthermore, after conducting ultrasound at bedside and other diagnostic procedures, Dr. Commedore detected no fetal movement. Dr. Commedore diagnosed A.W. as having suffered abruptio placenta, premature separation of a normally implanted placenta. Abruptio placenta places an unborn child in great jeopardy because of loss of oxygen in the baby's bloodstream. A Cesarean section was performed after the failure of ) inducement of labor. Dr. Commedore delivered a stillborn baby boy. An autopsy revealed the stillborn child to have no congenital abnormalities, a normal three vessel umbilical cord and lungs with congestion and meconium aspiration. Abruptio placenta suffered on December 5, 1992, a day spent by A.W. beginning at 7 in the morning until 5 p.m. that evening trying to contact Dr. Jack, had caused the stillbirth of the child of A.W. and W.W.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: that the Board of Medicine enter a final order finding Respondent to have violated both paragraphs (m) and (t) of Subsection 456.331(1), Florida Statutes and revoking his license to practice medicine. If the Board should choose a penalty less severe than revocation, Dr. Jack should be prohibited from practicing obstetrics, including the provision of prenatal care, for the remainder of his practice as a physician licensed by the Board of Medicine. DONE AND ENTERED this 24th day of December, 1996, in Tallahassee, Leon County, Florida. - , v--z (fLJiL. - ClvID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1996. COPIES FURNISHED: Steven Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Blvd., Suite 210 Tampa, Florida 33619 Neville Clement Jack, M.D. 6814 Rosemary Drive Tampa, Florida 33625 Dr. Marm Harris E ecutive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 )
The Issue The issues for determination are whether Respondent must reimburse Petitioner an amount up to $1,051,992.99, which sum Respondent received from the Florida Medicaid Program in payment of claims arising from his treatment of pediatric patients between September 1, 2008, and August 31, 2010; and whether Petitioner is entitled to sanctions in the amount of $210,398.60, and costs of $3,349.86.
Findings Of Fact Petitioner is the state agency responsible for, inter alia, administering the Florida Medicaid Program. Respondent is, and at all times relevant was, a physician licensed to practice medicine in Florida. Respondent was certified by the American Board of Pediatrics in General Pediatrics in 1989. Additionally, Respondent was certified by the American Board of Pediatrics in Pediatric Infectious Diseases in 2005. Respondent's practice is solely hospital-based and exclusive to pediatric infectious disease. Respondent evaluates, and provides care and treatment to, patients in Level III Neonatal Intensive Care Units ("NICU") and Pediatric Intensive Care Units ("PICU") in Miami-Dade, Broward, and Palm Beach County, Florida hospitals.1/ Respondent has never been the subject of any disciplinary proceedings. Exercising its statutory authority to oversee the integrity of the Medicaid program, Petitioner identified Respondent as a Medicaid provider who had submitted a high volume of claims for inpatient recipients. Accordingly, Petitioner conducted a review or audit to verify the claims paid by Medicaid during the audit period. On or about September 14, 2011, Petitioner issued a request for records letter to Respondent. Said correspondence notified Respondent that Petitioner was in the process of completing a review of claims Respondent billed to Medicaid during the audit period to determine whether the claims were billed and paid in accordance with Medicaid policy. The request identified 30 of Respondent's patients and requested copies of the patients' Medicaid-related records, including all hospital records. The requested records were to be submitted within 21 days. Respondent provided records responsive to the September 14, 2011, request for records.2/ Upon receipt, Petitioner organized the submitted records and provided the same to a reviewing nurse, Blanca Nottman. The reviewing nurse preliminarily inspected the same to determine if any policy violations were apparent and noted any findings. Ms. Nottman, in turn, provided the records and notations to Petitioner's "peer coordinator." The peer coordinator maintains a list of all the peers that have a contract with Petitioner. A peer "means a Florida licensed physician who is, to the maximum extent possible, of the same specialty or subspecialty, licensed under the same chapter, and in active practice." § 409.9131(2)(c), Fla. Stat. The peer coordinator then forwarded all records and documents provided by Respondent to Richard Keith O'Hern, M.D., to conduct a peer review of Respondent's claims. Section 409.9131(2)(d), defines a peer review as follows: an evaluation of the professional practices of a Medicaid physician provider by a peer or peers in order to assess the medical necessity, appropriateness, and quality of care provided, as such care is compared to that customarily furnished by the physician's peers, and to recognized health care standards, and, in cases involving determination of medical necessity, to determine whether the documentation in the physician's records is adequate. Dr. O'Hern was certified, in 1979, by the American Board of Pediatrics in General Pediatrics. Dr. O'Hern completed a one-year infectious disease fellowship during his training at the University of Florida in 1977-78. Dr. O'Hern retired from a private general pediatric practice in December 2012. During his thirty-seven year career, he provided care and treatment to approximately 80,000 babies, of which approximately 16,000 were sick with infectious disease issues.3/ During his career, Dr. O'Hern was on three hospital medical staffs, and estimated that his practice involved working in the hospital setting approximately 10-20 percent of the time, with the balance in his office. Dr. O'Hern was never certified by the American Board of Pediatrics in pediatric infectious diseases and would not, at the time of the review, have been eligible to become certified in pediatric infectious diseases. Additionally, Respondent provided unrefuted testimony that Dr. O'Hern would not be permitted to treat Respondent's patients at Level III NICUs and PICUs. Dr. O'Hern received copies of the medical records submitted by Respondent as well as "copies of the worksheets that Medicaid uses to determine the appropriateness of medical reimbursement." For each of the thirty patients, whose encounters were under review for the audit period, Dr. O'Hern reviewed the patient's noted complaint; whether the patient was a new or existing patient; whether the patient was inpatient or outpatient; the medical history, physical exam, and assessment of the patient; and the amount of time spent with the patient. Dr. O'Hern would then, based upon the above information, "determine the level of coding that leads to reimbursement." Upon completion of his review, Dr. O'Hern notated his findings and returned the same to the peer coordinator, who in turn, provided them to the reviewing nurse. The reviewing nurse then "comes up with a review finding that gives the reason for the adjusted or denied claim." As there were findings for adjusting or denying Respondent's claims, Jennifer Ellingen, an investigator for Petitioner, prepared a Preliminary Audit Report ("PAR"). On April 18, 2012, Petitioner issued the PAR to Respondent. The PAR advised Respondent that Petitioner had completed a review of claims for Medicaid reimbursement for the audit period, and a preliminary determination had been made that Respondent was overpaid $1,051,992.99 for claims that in whole or in part were not covered by Medicaid. The PAR advised Respondent that the documentation he provided supported a lower level of office visit(s) than the ones for which he billed and received payment, and that some services for which he billed and received payment were not documented. The PAR notified Respondent that he could (1) pay the identified overpayment within 15 days and wait for the issuance of the final audit report ("FAR"); (2) submit further documentation in support of the claims within 15 days; however, such additional documentation may "be deemed evidence of non- compliance with [Petitioner's] initial request for documentation;" or (3) not respond, and wait for the issuance of the final audit report. The PAR further notified Respondent that the findings contained in the PAR were preliminary in nature, and that it was not a final agency action. Respondent opted to submit further documentation in support of his claims. Upon doing so, the process repeated itself, with the reviewing nurse, now Karen Kinser, reviewing all of the submitted documentation, which was then forwarded to Dr. O'Hern for an additional review. On January 8, 2013, Respondent issued a FAR. The amount previously determined as overpayment in the PAR remained unchanged in the FAR. The FAR further documented that a fine in the amount of $210,398.60 had been applied and costs had been assessed in the amount of $3,349.86. As noted above, upon receipt of the FAR, Respondent timely requested a formal hearing. Rather than examine the records of all recipients served by Respondent during the audit period, a random sample of 30 recipients (patients) was reviewed. For these patients, Respondent identified 701 reimbursements from Petitioner to Respondent during the audit period. At hearing, Petitioner presented evidence specific to three of the 30 patients. A review of the three patients is instructive. Patient 1 was born premature at 33 weeks gestation, with a birth weight of three pounds seven ounces, and was two months old at time of the subject hospitalization. At birth, Patient 1's medical condition necessitated placement in the NICU for three weeks and required nasogastric tube feeding. During the hospitalization under review, the patient's discharge diagnoses included, inter alia, septicemia and streptococcal meningitis. During the hospitalization, Respondent provided pediatric infectious disease care to the recipient. Patient 2 was born on January 27, 2009, at 27 weeks gestation. At the time of the subject admission, Patient 2 was 37 days old, with an adjusted gestation age of 32 weeks two days, weighing 1.040 kg (approximately two pounds five ounces). The admitting diagnoses were prematurity, possible sepsis, respiratory distress, and a femoral fracture. Respondent provided care and treatment concerning a pediatric infectious disease condition, sepsis. The patient was not discharged from the hospital until July 28, 2009. Patient 3 was born prematurely on July 15, 2009. On August 27, 2009, the child was 43 days old with an adjusted gestation of 32 weeks five days and weighed 1.180 kg (approximately two pounds ten ounces). The admitting indications were prematurity, possible sepsis, and respiratory distress. Respondent provided care and treatment concerning potential sepsis, a pediatric infectious disease medical condition. Consistent with the above-findings concerning Patients 1-3, Respondent testified that his typical patient/recipient is premature and weighs approximately 500 grams (approximately one pound). Respondent explained that his patients are immune-compromised and that patients under 28 weeks gestation do not possess an independent immune system. Respondent opined that the greatest cause of morbidity or mortality among these pediatric patients is infectious diseases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a Final Order dismissing the Final Audit Report. DONE AND ENTERED this 22nd day of May, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2014.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all time relevant to this proceeding, the Respondent was licensed to practice medicine in the state of Florida, having been issued license number ME 0020485. The Respondent has been licensed to practice medicine in the state of Florida since 1973. Respondent is Board Certified in Obstetrics and Gynecology having fulfilled the requirements of the American Board of Obstetrics and Gynecology. The requirements include a multi-year residency program in obstetrics and gynecology and successfully passing written and oral examinations. After graduating from medical school the Respondent completed a two- year residency in obstetrics and gynecology at St. Joseph's Hospital in Baltimore, Maryland. Respondent then spent one year as Chief Resident in Obstetrics and Gynecology at Lutheran Hospital in Baltimore, Maryland where approximately 2000 babies were born during the time Respondent was in residency. The Respondent then completed a two-year clinical fellowship in obstetrics and gynecology at Peninsula General Hospital in Salisbury, Maryland where approximately 3,000 babies were born each year during the time Respondent was in residency. Respondent received additional training in the subspecialty of fetal maternal medicine through a one-year fellowship at New Jersey Medical School. After the fellowship at New Jersey Medical School, Respondent served one year as a clinical instructor at University Hospital, affiliated with Mercy Hospital in Baltimore, Maryland. Since the time of his first residency, the Respondent has been involved in the delivery of several thousand babies. The Respondent moved to Florida in 1975 and has been engaged in the private practice of medicine since that time. The Respondent opened the Venice Obstetrics Clinic (Clinic) in 1983, and has served as its Medical Director since that time. The Clinic was at all times relevant to these proceedings licensed by the State of Florida in accordance with Sections 387.30 through 383.335, Florida Statutes, (referred to as the Birth Center Licensure Act). At all times relevant to these proceedings, the Respondent was permitted to perform surgical services (including episiotomies) and forceps delivery in the Clinic in accordance with the partial exemptions provided in Section 383.335(1), Florida Statutes. The Clinic's license has never been disciplined for noncompliance with Sections 383.30 through 383.335, Florida Statutes, or Chapter 59A-11, Florida Statutes, by the Department of Health and Rehabilitative Services (HRS), the agency charged with the responsibility of licensing and regulating birth centers. At all times relevant to these proceedings, Marcos Lara, M.D. acted as the Clinic's consultant, and was board certified with hospital privileges at St. Joseph's Hospital and at Faucett Memorial Hospital in Port Charlotte. In July 1988, the Clinic employed several nurses licensed by the state of Florida. At the time the patient K.Z. came into the Clinic, the nurse-to- patient ratio was two-to-one. Normally, the ratio was one-to-one. The patient's first visit to the clinic, and with Respondent, was on March 18, 1988. The patient continued with regular visits to the Clinic seeing the Respondent through July 8, 1988. On the patient's April 27, 1988 visit the Respondent gave the patient a score of "one" on the HRS, Pre-Term Delivery Risk Scoring Form (Form), indicating that the patient was a low-risk patient. On the patient's June 28, 1988 visit the Respondent gave the patient a score of "zero" on the Form, again indicating that she was a low-risk patient. The Respondent in scoring the patient's risk did not circle or use several of the risk factors listed on the Form that would have applied to the patient, including a patient under 20 years, single parent and low socioeconomic status. Based solely on the risk factors of (a) works outside of home, (b) younger than 20 years, (c) single parent, and (d) low socioeconomic status (based only on patient's level of education), and the points assigned those risk factors, the Respondent should have given the patient a score of "six". This would have placed her in the medium-risk classification which requires a score between six and nine points. However, since the patient no longer worked outside of the home on June 28, 1988, the date of the reevaluation, her score would have been "five", placing her in the low-risk classification. Many of the factors listed in the Form are risk factors used by obstetricians in assessing a patient's risk classification. However, many of the risk factors listed in the Form, including those risk factors used to assess this patient's risk classification, are not relied on solely by obstetricians, either singularly or in combinations, to assess a patient's risk classification. The purpose of the Form is to assist birth centers in assessing a patient's risk classification to determine whether the patient should be permitted to give birth in a birth center, and not to supplant the obstetricians' knowledge and skill in assessing a patient's risk classification. There is insufficient evidence to establish facts to show that Respondent's failure to correctly fill out the Form was the result of Respondent's failure to use his knowledge and skill as an obstetrician to properly assess the patient's risk classification and thereby fail to practice medicine within the prescribed standard of care. On June 28, 1988 the patient signed a form wherein she consented to the delivery of her child at the Clinic. At this time, the patient was advised of the risks of not delivering in a hospital and the advantages of delivering at a birth center. The normal period of gestation is 40 weeks. The methods used to calculate the estimated date of confinement (due date) are: (a) if a patient's menstrual periods are on a 28-day cycle, the due date can be determined by taking the last menstrual period (LMP) and adding 280 days; (b) substract three months from the LMP and add seven days; (c) an ultrasound can be used; (d) from the size of the fetus as determined by physical and pelvic examinations; and (e) fundal height measurement. None of these methods are absolutely accurate and therefore, the due date is considered an estimate. The fundus is the upper portion of the uterus which grows during pregnancy, with the cervix at the bottom portion of the uterus. The fundal height measurement is made from the top of the bone, which is the front of the pelvic, called the symphsis, to the top of the uterus. Both ends of this measurement are subjective in placement and vary between those making the measurement. Fundal height measurement is a way of determining the increase in size of the uterine content which is significantly, in normal cases, influenced by the growth of the fetus. The fundal height measurement is relevant to fetal age if it is consistent with other clinical assessments such as, how low is the baby to help determine the length, palpating to determine the width of the uterus, and a pelvic examination. Some obstetricians correlate the fundal height measurement with the gestation period where roughly one centimeter of fundal height equals one week of gestation, plus or minus two to four centimeters. While the Respondent measures the patient's fundal height at each visit, and did so with this patient, he does not use fundal height alone to determine the age of the fetus but uses fundal height in conjunction with other assessments found as a result of physical and pelvic examinations. On her first visit, the patient told the Respondent that her LMP had begun around the first part of December, 1987. Assuming the patient's LMP had begun on December 1, 1987, her due date should have been during the first week of September, 1988, using either method (a) or (b) above. Also on the patient's first visit the Respondent conducted physical and pelvic examinations. The physical examination consisted of palpation of the abdomen to note the size. The pelvic examination enabled the Respondent to assess the size of the uterus, which indicates the age of the pregnancy. Based on his physical and pelvic examinations of the patient on March 18, 1988 and the fundal height of 20 centimeters, the Respondent determined the age of the pregnancy to be 22 weeks with a due date of July 22, 1988. There was a difference in the due date calculated using the date expressed by the patient as her LMP as opposed to the due date determined by the Respondent from his clinical assessment as to the size of the fetus in conjunction with the fundal height. However, since the Respondent's clinical assessment did not reveal any problems, and the fact that approximately 25 percent of the pregnant women experience two or more false menstrual periods, the Respondent concluded that any size/date discrepancy was explainable. Therefore, the Respondent considered his determination of July 22, 1988 as the due date reasonable, and did not order an ultrasound since it was neither beneficial to the patient nor medically necessary at this point of the pregnancy. On April 27, 1988, June 8, 1988 and June 22, 1988 the Respondent measured the patient's fundal height as 23, 28 and 31 centimeters respectively. However, on these same dates the Respondent determined the age of the fetus to be 28, 34 and of the size of the fetus 36 weeks, respectively, based on his examination of the patient. On April 27, 1988, June 8, 1988 and June 22, 1988 the Respondent concluded that an ultrasound was not needed based on the same reasoning he had employed on March 18, 1988. On her June 28, 1988 visit, the Respondent performed physical and pelvic examinations, including palpating the abdomen, estimated the age of the fetus to be 39 weeks based on its size and advised the patient that her due date may be earlier than July 22, 1988, the initial due date. The fundal height measurement was 31 centimeters. Respondent's examination of the patient on her July 6, 1988 visit made him suspect twins and a possible abnormal delivery. Therefore, Respondent ordered an ultrasound. The ultrasound revealed a single baby in cephalic presentation (baby's head first), at term (fetus at least 37 weeks). The ultrasound did not indicate any problems in delivering the patient's baby. In fact, no risk factor was identified by the ultrasound. While the Respondent's records are sketchy in regard to his reasoning of the date/size discrepancy, the testimony of both the Respondent and Herbert F. Sandmire, M. D. supports the Respondent's reasoning in not ordering the ultrasound until the July 6, 1988 even though normally the date/size discrepancy may have justified the use of an ultrasound. Therefore, the Respondent was practicing medicine within the prescribed standard of care by not ordering an ultrasound until July 6, 1988 because there was sufficient reasons justifying the size/date discrepancy on the earlier dates, notwithstanding the testimony of Robert Brauner, M. D. to the contrary. The patient went into labor on July 8, 1988. The patient arrived at the Clinic around 11:50 a.m. on July 8, 1988, and at that time her cervix was dilated two centimeters and was 100 per cent effaced. Nurses Sally Azima and Virginia Lane were assisting with the patient and made the notations on the Nurses' Notes, with Nurse Lane making the notes from 1:30 p.m. through 7:00 p.m. and Nurse Azima making the notes from 7:30 until the end of the Nurses Notes. The patient's fetal heart rate was monitored with a Doptone. A Doptone is a devise that is placed on the abdomen which allows the fetal heart beat to be heard in the room. At 5:27 p.m., the cervix was 9 centimeters, 100 per cent effaced with membranes bulging. At 7:00 p.m., the patient suffered dysfunctional labor. The patient's uterine contractions were irregular and weak. The Respondent decided to administer Pitocin to the patient in order to regulate her uterine contractions. Pitocin is a brand name for a drug that stimulates uterine contractions. Pitocin is used for dysfunctional labor. Pitocin does not increase any risk that is not already present, and no change in management decisions is needed merely because Pitocin is being administered to the patient. The Respondent administered Pitocin to the patient by making a single injection of one ampule (10 units) of Pitocin into an existing intravenous bag. Another method of administering Pitocin is referred to as the piggy- back system wherein the Pitocin is maintained in a separate bag and infused through the existing intravenous line. While the piggy-back system may be the preferred method of administering Pitocin to a patient, neither the Birth Center Licensure Act nor the prescirbed medical standard of care in July, 1988 required the use of the piggy-back system to administer Pitocin to a patient. At the time the Pitocin was injected, the existing intravenous bag contained approximately 900 milliliters of fluid, plus or minus 20 milliliters. The Respondent set the IV flow rate at 20 drops per minute which resulted in a dosage level of approximately 10 milliunits per minute. While a dosage level of 10 milliunits per minute of Pitocin is higher than what was previously thought to be the correct dosage level of Pitocin, a patient could benefit from the higher dosage level of Pitocin, particularly under the circumstances and conditions that existed with this patient on July 8, 1988. The Respondent was practicing medicine within the prescribed standard of care when he administered the higher dosage level of Pitocin to the patient on July 8, 1988, notwithstanding the testimony of Robert Brauner, M. D. to the contrary. After setting the IV flow rate at 20 drops per minute, the Respondent instructed Nurse Azima to monitor the flow to be sure the flow remained at 20 drops per minute. Nurse Azima checked the flow by counting the drops with a second hand on her watch every 15 to 20 minutes. Nurse Azima, under the supervision of Respondent, has administered Pitocin using the drop count method ever since Respondent's residency in obstetrics. While the use of an infusion pump may be the preferred method of administering Pitocin by some obstetricians, the Respondent was practicing medicine within the prescribed standard of care when he used the drop count method of administering Pitocin to the patient on July 8, 1988 rather than using an infusion pump. His use of the drop count method, including allowing Nurse Azima to monitor the flow, met the prescibed standard of care, notwithstanding the testimony of Robert Brauner, M. D. to the contrary. An electronic fetal monitor records both the baby's heart rate and the mother's uterine contractions, and presents this information on a graph. The Respondent did not use an electronic fetal monitor while administering Pitocin to the patient on July 8, 1988. Instead, Respondent used intermittent auscultation. Intermittent auscultation involves using a stethoscope or Doptone to listen to the fetal heart beat at prescribed intervals. A nurse is assigned to check the baby's heart beat periodically and to notify the physician of any abnormality. When an electronic fetal monitor is used, a nurse is assigned to watch the chart and notify the physician of any changes indicated by the chart. Intermittent auscultation is equivalent to electronic fetal monitoring when it is done on a frequent basis, such as listening every 30 minutes when the patient is in the active part of the first stage of labor and every 15 minutes during the second stage of labor. Pitocin was administered by the Respondent at 7:00 p.m. and thereafter, Nurse Azima checked the fetal heart rate every 15 to 20 minutes. However, she did not record the fetal heart rate each time because the fetal heart rate was within an acceptable range, nothing was abnormal. The Nurses Notes indicate that Nurse Azima recorded the fetal heart rate at 7:30 p.m., 8:30 p.m., 9:00 p.m. and 9:35 p.m. There was no indication of any abnormality in the patient's heart rate or of any fetal distress at any time during the course of the patient's labor. Again, while the use of an electronic fetal monitor may be preferred by some obstetricians, the Respondent was practicing medicine within the prescribed standard of care when he used intermittent auscultation instead of an electronic fetal monitor and in his use of intermittent auscultation on July 8, 1988, notwithstanding the testimony of Robert Brauner, M. D. or the information contained in the Physician's Desk Reference to the contrary. At 7:30 p.m. the patient was fully dilated and the fetal head was at "zero" station. Station refers to the progress of the fetal head down the pelvis toward the outside. When the very edge of the fetal head is even with an imaginary line drawn between the patient's two spines (prominence in the middle of patient's pelvis) the fetal head is considered at zero station. Progressing past zero station would be indicated as zero-plus-one station, plus-two, etc. Progressing past plus-three station would be delivery of the fetal head. At 8:00 p.m., the fetal head was in right occiput posterior (ROP) position. This means the baby's face, as the mother is lying on her back, is looking up and, is a less favorable position for delivery, in that it usually leads to a longer labor. At 8:30 p.m., an hour after the patient had been fully dilated, the fetal head was at zero-plus-one station. The fetal head was now in the occiput anterior (AO) position, meaning the baby is now looking straight down while the mother is lying on her back. This position is the favorable position for delivery. The patient was transferred to the procedure room, prepped and given a local anesthetic when the fetal head was at plus-one to plus-two station. Thereafter, the Respondent noted that patient was fully dilated, fetal head was at plus-two station, but there was no further descent of the head. At this point, the Respondent decided that the patient should be assisted in the delivery by using the forceps to bring the fetal head down and deliver the baby. Before applying the forceps, the Respondent performed an episiotomy on the patient. An episiotomy is a obstetrical cut made between the vagina and the rectum (the perineum), through the tissue, separating the muscle to help open the vagina for delivery. The decision on whether to perform the episiotomy before or after applying forceps is a matter of clinical judgment based upon the physical characteristics of the patient, in particular the size of the introitus and the perineum. The Respondent decided to perform the episiotomy on the patient before applying the forceps based on his clinical judgment of what was best for the patient. Forceps are obstetrical instruments used to assist in the delivery of the fetal head. The Respondent used Simpson forceps, a commonly used forceps, which are designed to come apart. The Respondent attempted forceps delivery several times without success, even with the patient pushing and fundal pressure being applied simultaneously by Nurse Azima and Nurse Lane. Fundal pressure is applied by pressing down on the top of the patient's abdomen to help in the delivery of the baby and is a fairly common obstetrical procedure. During the attempt to deliver the baby with the forceps the IV came out but was restored by the Respondent. The Pitocin was discontinued at this time. The Respondent was practicing medicine within the prescribed standard of care when he performed the episiotomy before the use of the forceps and in his attempt to delivery the baby with the forceps, notwithstanding Dr. Brauner's testimony to the contrary. After the unsuccessful attempt to deliver the baby with forceps, the Respondent decided to transfer the patient to a hospital for a cesarean section. Nurse lane was instructed by the Respondent to call for an ambulance. Nurse Lane called the Sarasota Fire Department which responded in approximately three minutes. After calling the Sarasota Fire Department, Nurse Lane called St. Joseph's Hospital and advised the hospital that the patient would be on the way. The episiotomy was not bleeding excessively and the bleeding could be controlled by packing the incision with gauze sponges and keeping the patient lying down with her legs together. Since the repair of the episiotomy would have required 10 to 15 minutes, the Respondent, using his best clinical judgment, decided to control the bleeding as set out above rather than to repair the episiotomy and delay the patient's transport to the hospital. The patient's life or well-being was not threatened by not repairing the episiotomy. While blood loss is a concern, specially for someone facing an operation, apparently the blood loss for this particular patient was not an overriding concern since the decision was made at the hospital not to repair the episiotomy until after the cesarean section, some two hours later. Under the circumstances and conditions existing at the time, the Respondent was practicing medicine within the prescribed standard of care when he, in his best clinical judgment, decided not repair the episiotomy which would have delayed transporting the patient to the hospital. Upon arrival the paramedics were advised of the patient's condition, that the patient was to be transported to St. Joseph's Hospital and that the Respondent was attempting to reach Respondent's back-up physician. However, the Respondent did not want to delay transport of the patient to the hospital so he advised the paramedics to proceed to St. Joseph's Hospital in Port Charlotte before he had made contact with the back-up physician, other than with the doctor's answering service. On July 8, 1988 the Respondent's consultant (back-up obstetrician) was Dr. Lara, who was a Board certified obstetrician with hospital privileges at St. Joseph's Hospital in Port Charlotte. After the ambulance had departed for St. Joseph's Hospital, the Respondent, being unable to make contact with the Dr. Lara other than with answering service, called St. Joseph's Hospital and advised them of the patient's condition, Nurse Lane having already called the hospital to advised them that the patient was being transported there. In route to St. Joseph's Hospital, the paramedics made their own assessment of the patient's conditions and, under the conditions and circumstances existing at that time, decided to reroute the patient to the Venice Hospital which was closer. Venice Hospital did not have an obstetrical unit. Therefore, contact was established with a Dr. Chen, the supervising emergency room physician, who advised the paramedics to transport the patient to Venice Hospital for evaluation. After examining the patient, Dr. Chen called the Respondent and told him that he thought the patient was ready to deliver. However, after the Respondent told Dr. Chen of the patient's condition and not to delay getting the patient to a hospital with obstetrical service, Dr. Chen directed transport of the patient to Memorial Hospital in Sarasota. After talking with Dr. Chen, the Respondent called the Memorial Hospital, discussed the patient's condition with the nurse on the obstetrics floor, advised the nurse of what had been attempted with the patient, and that in his opinion a cesarean section was necessary. The Respondent left his phone number with the nurse so that the obstetrician handling the case could call the Respondent, if necessary. The obstetrician handling the patient's care at Memorial Hospital did not call Respondent and Respondent made no attempt to call the obstetrician. The patient was admitted to Memorial Hospital at 11:40 p.m., and was monitored with an external monitor for nearly 55 minutes before being taking to the operating room at 11:34 p.m. where she underwent an emergency cesarean section delivery at 11:49 p.m. After the delivery, the patient's episiotomy was repaired. Although the baby had forceps marks graded from "no marks" to "bad forceps marks" by personnel at Memorial Hospital, there was no evidence that the baby was in any way affected by the Respondent's attempted forceps delivery. The mother and the baby fared well while in the hospital and were discharged on July 12, 1988. There is competent substantial evidence to establish facts to show that the Respondent was practicing 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 throughout the treatment and management of the patient, K. Z. from March 18, 1988 through July 8, 1988. During the course of the hearing the Department stipulated on the record that it did not intend to pursue Count III of the Administrative Complaint (failure to keep written medical records justifying the course of treatment for the patient) and presented no evidence on this charge.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order dismissing Counts I, II, III, IV, and V of the Administrative Complaint filed in this case. RECOMMENDED this 15th day of February, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3149 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 in this case. Petitioner's Proposed Findings of Fact. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(9,14); 3 -11 (15,24,30,32,32,26,27,29,and 28,respectively); 12(28,29); 13(32); 14(25,27); 15(25); 16(38); 17(32-34,36 and 38); 24(37); 26(28,29); 27 - 30(16-18 and 22, respectively); 32 - 35(19); 36(43,46); 38(51,53); 43(52); 47(55); 50(46); 52 - 59(60 - 63,65,67,68); 61(66); 64(74); 67(74); 68(75); 70(74- 76); 72-74(67,68); 76(69); 79-89(72-75,77,80-84); 90-94(77- 79,82,83); 96-97(83,84); 100(84); and 105-106(85). The following proposed findings of fact are not supported by competent substantial evidence in the record: 19, 21, 23, 25, 39-42, 44, 45, 48, 49, 51, 62, 63, 69, 71, 78, 95, 98, and 99. The first sentence of proposed findings of fact 18, 20, 22 and 37 are adopted in Findings of Fact 32, 34 and 44. The balance of proposed findings of fact 18, 20, 22 and 37 are not supported by competent substantial evidence in the record. The following proposed findings of fact are neither material nor relevant to the conclusion reached in the Recommended Order: 31, 46, 60, 65, 66, 75, 77, 101 - 104 and 107. 6. The Findings of Fact 1 - 30 concerning Expert Witnesses go to the credibility of those expert witnesses and are not addressed in the Findings of Fact. Respondent's Proposed Findings of Fact. Proposed findings of fact 1 - 11 are adopted in substance as modified in Findings of Fact 2 - 12, respectively. Proposed finding of fact 12 is unnecessary. Proposed findings of fact 13 and 14 are adopted in substance as modified in Finding of Fact 13. Proposed findings of fact 15 and 16 are adopted in substance as modified in Findings of Fact 14, 15 and 19. Proposed findings of fact 17 - 24 are adopted in substance as modified in Findings of Fact 25, 27, 30 - 33 and 84. Proposed findings of fact 25 - 29 are adopted in substance as modified in Findings of Fact 27, 28, 31, and 34. Proposed findings of fact 30 - 36 are adopted in substance as modified in Findings of Fact 25,33 and 37. Proposed findings of fact 37 - 45 are adopted in substance as modified in Findings of Fact 16 - 24. Proposed findings of fact 46 - 52 are adopted in substance as modified in Findings of Fact 39 - 42. Proposed findings of fact 53 - 56 are adopted in substance as modified in Findings of Fact 43 - 45. Proposed findings of fact 57 - 61 are adopted in substance as modified in Findings of Fact 46 - 49. Proposed findings of fact 62 - 68 are adopted in substance as modified in Findings of Fact 50, 51 and 69. Proposed findings of fact 69 - 88 are adopted in substance as modified in Findings of Fact 52 - 58. Proposed findings of fact 89 - 94 are adopted in substance as modified in Findings of Fact 59 - 64. 15 Proposed findings of fact 95 - 100 are adopted in substance as modified in Findings of Fact 65 - 71. Proposed findings of fact 101 - 110 are adopted in substance as modified in Findings of Fact 71 - 76. Proposed findings of fact 111 - 129 are adopted in substance as modified in Findings of Fact 77 - 83. Proposed findings of fact 129 - 137 are adopted in substance as modified in Findings of Fact 84 - 86. Proposed findings of fact 138 - 162 are matters relating to the witnesses and go to the credibility of those witnesses and are not addressed as Findings of Fact. COPIES FURNISHED: Michael K. Blazicek, Esquire Senior Attorney Department of Professional Regulation 730 South Sterling Avenue, Suite 201 Tampa, Florida 33609-4582 Darol Carr, Esquire Farr, Farr, Emerich & Hackett, P. A. 2315 Aaron Street Post Office Box 2159 Port Charlotte, Florida 33949 James W. Linn, Esquire Carson, Linn & Adkins 1711-D Mahan Station Tallahassee, Florida 32308 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
