The Issue The issue is whether Respondent, Department of Health, Board of Medicine (“Department”), was “substantially justified” under section 57.111(3)(e), Florida Statutes, in initiating the underlying action against the electrolysis license of Petitioner, Claudia Patricia Orozco-Fandino, E.O. (“Petitioner” or “Ms. Orozco”).
Findings Of Fact Case No. 18-3899PL was initiated by the Department, a “state agency” for purposes of section 57.111(3)(f). Ms. Orozco qualifies as a “small business party” as defined in section 57.111(3)(d). Because the Final Order in Case No. 18-3899PL was entered in her favor, Ms. Orozco is a “prevailing small business party” under section 57.111(3)(c)1. The Department has stipulated that the $55,185.50 in attorneys’ fees and $2,226.53 in costs claimed by Ms. Orozco are reasonable. The only issue remaining at hearing was whether the Department was substantially justified in bringing the initial action against Petitioner’s electrolysis license. Section 57.111(3)(e) states that a proceeding is “substantially justified” if “it had a reasonable basis in law and fact at the time it was initiated by a state agency.” Starting in or around 2003, Ms. Orozco owned and operated Orozco Medical Center (“OMC”), a facility that is no longer in operation. OMC provided a range of cosmetic surgical procedures, including liposuction, Brazilian butt lifts, fat transfers or fat grafting, and vampire facials. Since 2013, Ms. Orozco has been the president of Orozco Surgical Center (“OSC”), which remained in operation as of the hearing date. OSC currently provides only facials and acupuncture services.1 The Board of Medicine’s probable cause panel decides whether there is a sufficient legal and factual basis for the Department to move forward with formal charges in license discipline cases. In Ms. Orozco’s case, Department Case No. 2017-13921, the information presented to the probable cause panel included an investigative report prepared by the Department’s investigator, 1 Ms. Orozco is a licensed electrologist, acupuncturist, facial specialist, and body wrapper. Cynthia Demetrovich. This 743-page report served as the basis for the probable cause determination made by the probable cause panel on April 20, 2018. As described in the investigative report, the investigation in Department Case No. 2017-13921 began on August 9, 2017, and was triggered by Ms. Orozco’s arrest by officers of the Hillsborough County Sheriff’s Office. She had been charged with four felony counts of aggravated battery, four felony counts of practicing medicine without a license, and four felony counts of fraud.2 Between August 24, 2017, and October 16, 2017, Ms. Demetrovich and Christopher Heuerman, another Department investigator, interviewed 15 OMC patients. Patients K.H., S.H., L.H., C.W., A.M., D.A., C.P., and M.A. underwent a surgical procedure known as a “Brazilian butt lift” (“BBL”) at OMC. A BBL is a specialized fat transfer procedure that augments the size and shape of the buttocks without implants. Excess fat is removed from the hips, abdomen, lower back, or thighs with liposuction, and a portion of this fat is then strategically injected into the buttocks. All eight of the patients stated that they witnessed Ms. Orozco perform their BBL procedures. Patients K.H., S.H., L.H., C.W., and A.M. expressed their willingness to testify in court about their experiences at OMC. Patients K.H., S.H., W.P., C.W., O.H., A.M., and C.P. stated that Ms. Orozco represented herself as a doctor when they met with her at OMC. Patient P.J. stated that Ms. Orozco treated her for weight loss by injecting her with HCG and vitamin B12 at OMC. HCG, or human chorionic 2 The criminal case against Ms. Orozco was resolved by a Pre-trial Intervention Agreement. gonadotropin, is a hormone produced during pregnancy that is sometimes used as a weight loss medication. Patients T.M. and L.H. stated that Ms. Orozco gave them phentermine as an appetite suppressant at OMC. Phentermine is a prescription drug. Patient K.O. stated that she was treated by Ms. Orozco at OMC for weight loss. Ms. Orozco administered HCG injections and personally gave an appetite suppressant to Patient K.O., who could not recall the name of the suppressant. Patient O.H. stated that Ms. Orozco injected dermal fillers into her face at OMC. Patients N.M. and K.B. stated that Ms. Orozco administered vampire facials to them at OMC. A “vampire facial,” or “platelet-rich plasma facial,” is a procedure in which blood is drawn from a patient’s arm and placed in a centrifuge. The resulting platelet-rich plasma is then injected into the patient’s face. “Electrolysis or electrology” is defined by section 478.42(5) as “the permanent removal of hair by destroying the hair-producing cells of the skin and vascular system” using equipment and protocols approved by the Board of Medicine. An electrologist is not competent to perform surgical procedures such as BBLs; to treat a patient for weight loss; to prescribe or administer weight loss drugs; to inject dermal fillers; or to perform vampire facials. On August 10, 2017, the Department mailed a letter to Ms. Orozco advising her that a case had been opened against her and that she had 20 days from receipt of the letter to submit a response or schedule an interview. Ms. Orozco’s counsel responded by letter dated August 28, 2017, addressed to Ms. Demetrovich. The letter enclosed a copy of Ms. Orozco’s curriculum vitae and stated that she intended to “vigorously defend the criminal allegations which were the subject of her arrest.” Counsel noted that formal charges had yet to be filed against Ms. Orozco and concluded by requesting the Department “to refer to my correspondence in the related Department of Health Investigation No. 2016-16104.” The referenced correspondence included two letters from Ms. Orozco’s attorneys. Both letters were addressed to Ms. Demetrovich and addressed an earlier Department investigation of Ms. Orozco. The first letter, dated July 7, 2016, included a three-page chart identifying the names of patients, their dates of surgery, and the names of the physicians who performed the surgeries. The chart listed 46 patients whose procedures were stated to have been performed by Mark Kantzler, D.O., and 12 patients whose procedures were stated to have been performed by Amina Edathodu, M.D. The second letter, dated August 26, 2016, asserted that Ms. Orozco was a “certified Surgical First Assistant,” and set forth the job description and duties of a surgical assistant as defined by the American Board of Surgical Assistants and the Association of Surgical Assistants. The letter stated that all surgical procedures at OMC were performed by licensed physicians with assistance from certified surgical assistants, including Ms. Orozco. The August 28, 2017, letter from Ms. Orozco’s counsel was included in Ms. Demetrovich’s investigative report. However, the referenced letters of July 7, 2016, and August 26, 2016, were not included in the investigative report and therefore were not placed before the probable cause panel. Ms. Demetrovich testified that she is not allowed to “share cases,” i.e., to mix materials from separate investigations into a single file. Because the letters dated July 7, 2016, and August 26, 2016, were in reference to Department Case No. 2016-16104, Ms. Demetrovich did not include them in her investigative report for Department Case No 2017-13921. The investigative report included the complete medical records, including before and after photographs, received from OMC for Patients K.H., S.H., C.W., O.H., N.M., K.B., T.M., A.M., D.A., A.B., K.O., P.J., C.P., and M.A. The investigative report also included the Hillsborough County Sheriff’s Office criminal report affidavit and arrest report for Ms. Orozco. The criminal report affidavit named four additional patients who told detectives that Ms. Orozco performed their BBL or liposuction procedures at OMC. All four patients named in the criminal report affidavit stated that Ms. Orozco led them to believe she was a medical doctor who could perform the surgical procedures offered by OMC. The patients variously stated that Ms. Orozco referred to herself as “doctor,” conducted the preoperative consultations, or showed them pictures of previous surgeries she had performed. Patient N.M. stated that another non-physician, Marlon Barcelo, performed the fat removal in her procedure. Mr. Barcelo was a surgical assistant employed by Ms. Orozco. Patient N.M. stated that Ms. Orozco performed the fat injection portion of the procedure. Patients U.L., A.B., and H.P. stated that their liposuction procedures were performed entirely by Ms. Orozco. The criminal report affidavit stated that on April 22, 2016, a Hillsborough County Sheriff’s detective interviewed Dr. Edathodu, who stated that she had worked at OMC. Dr. Edathodu referred to Ms. Orozco as a “doctor” and stated that Ms. Orozco had performed fat removal and injection procedures at OMC. Dr. Edathodu reviewed the medical records for Patient N.M., which indicated that Dr. Edathodu performed her procedure. Dr. Edathodu denied to the detective that the signatures and handwriting on N.M.’s medical records were hers. The criminal report affidavit stated that on May 5, 2017, a Hillsborough County Sheriff’s detective interviewed Dr. Kantzler, who stated that he would be present in the OMC facility while liposuction procedures were performed, but that the surgical assistants performed them. The criminal report affidavit stated that Patient A.B. reported that about two weeks before she met with the detective, she received a text message from Ms. Orozco. The text message stated that if Patient A.B. got a phone call from anyone, she should tell them that Dr. Kantzler had performed her surgery. On December 27, 2017, counsel for the Department provided Ms. Orozco’s counsel with a CD copy of the Department’s complete investigative file for Department Case No. 2017-13921. In the accompanying letter, counsel for the Department reminded Ms. Orozco’s counsel that he had 20 days in which to file a written response to the information contained in the investigative file, pursuant to section 456.073(10). On April 20, 2018, the Department’s probable cause panel met to review and discuss the investigative report. The panel found probable cause for both counts of the Administrative Complaint. At the hearing in the instant fee case, Ms. Orozco contended that the probable cause panel’s determination was based on an incomplete record. She argued that the Department’s investigative report omitted exculpatory material and that Ms. Demetrovich failed to make inquiries that might have led the probable cause panel to a different decision. Ms. Orozco noted that Ms. Demetrovich began investigating OMC in 2016, well before the investigative report in Department Case No. 2017- 13921 was prepared. Ms. Orozco testified that Ms. Demetrovich visited the offices of OMC on August 11, 2016, in the guise of accompanying a Department dispensing practitioner inspector. While at OMC, Ms. Demetrovich interviewed Ms. Orozco directly and took photographs of every room in the building. She photographed the surgical suite and the equipment therein. Ms. Demetrovich testified that she did not interview Ms. Orozco on August 11, 2016. She testified that if any photographs were taken during the visit, they were taken by the other inspector. Ms. Orozco contended that at the time she submitted her investigative report, Ms. Demetrovich was aware that the OMC surgical suite contained a drape between the patient’s head and the surgical field that wholly obstructed the patient’s view of who was performing their surgery. Ms. Orozco contended that if this information had been provided to the probable cause panel, the panel would have discounted the numerous patient statements attesting that Ms. Orozco performed their surgeries. Ms. Orozco also questioned why Ms. Demetrovich did not ask the patients how they could possibly know Ms. Orozco was performing their procedures when they could not see the surgical field. Ms. Orozco noted that the 2016 investigation prompted her counsel to submit the July 7, 2016, and August 26, 2016, letters referenced above. Ms. Orozco questioned why the contents of those letters were not included in the investigative report. Ms. Orozco pointed out that the medical records that were included in the investigative report were replete with indications that the surgeries were performed by Dr. Edathodu and Dr. Kantzler, including the consent forms in which the patients expressly acknowledged the name of the physician who would perform the procedure. Ms. Orozco contends that Ms. Demetrovich was obliged to confront the patients with this evidence and ask them to reconcile it with their statements that Ms. Orozco performed their procedures. Ms. Orozco argued that Ms. Demetrovich should have interviewed Dr. Edathodu, Dr. Kantzler, and other members of the OMC staff before completing her investigative report. Ms. Demetrovich testified that Dr. Edathodu evaded several attempts to interview her. Ms. Demetrovich stated that she interviewed Dr. Kantzler in another case, but did not include a summary of that interview in the investigative report of this case. Ms. Demetrovich testified that neither Dr. Edathodu nor Dr. Kantzler submitted affidavits in relation to this case. Ms. Demetrovich testified that her role in the investigation of Ms. Orozco and OMC did not include evaluating records obtained from the subjects of the investigation, or their attorneys, apart from checking for completeness. She testified that the determination as to whether to pursue disciplinary action based on the investigation rested with the Department’s attorneys. Ms. Demetrovich’s testimony as to the limits of her job responsibilities is credited. The investigative report included an identification key with the full names of the patients. Ms. Demetrovich acknowledged that she neglected to include the full names of Patients W.P. and L.H. in the identification key. It is found that the information before the probable cause panel was sufficient to support the panel’s decision to pursue an Administrative Complaint against Ms. Orozco. The investigative report included interviews with eight OMC patients who stated to the Department’s investigators that Ms. Orozco had performed BBLs on them. All eight patients stated that they witnessed Ms. Orozco perform the procedure. Five of the eight stated their willingness to testify against Ms. Orozco in any future court proceeding. Seven patients stated that Ms. Orozco had presented herself to them as a physician. Four other patients interviewed by the Department’s investigators stated that Ms. Orozco had provided them with injections of medications. Two patients stated that Ms. Orozco had performed vampire facials on them. One patient stated that Ms. Orozco administered dermal fillers to her. Four patients interviewed by detectives from the Hillsborough County Sheriff’s Office stated that Ms. Orozco presented herself as a medical doctor. Three of the four stated that Ms. Orozco performed their liposuction procedures. The patient statements alone justified a finding of probable cause. Ms. Orozco pointed to contrary evidence in the investigative report, such as the patient consent forms that clearly indicated the surgeries were performed by Dr. Edathodu and Dr. Kantzler. Such documentation might weigh against the patient statements, but is insufficient to support a finding that the probable cause panel should have disregarded the word of 19 patients that Ms. Orozco performed procedures on them that exceeded the scope of her professional licensure. Further, the probable cause panel would have been justified in discounting the patient consent forms in light of the statements the two physicians gave to the Hillsborough County Sheriff’s detectives that surgical procedures were in fact performed by Ms. Orozco and/or Mr. Barcelo. None of the items that Ms. Orozco claims were omitted from the investigative report would change this finding. The July 7, 2016, letter from her counsel naming the patients and their respective physicians was of no more significance than the signed consent forms that were included in the report. The August 26, 2017, letter setting forth the definitions of “surgical assistant” and stating that licensed physicians performed all surgeries at OMC merely contradicted the patients’ statements. It did not disprove or invalidate the patients’ statements in such a way as to justify their disregard by the probable cause panel. Finally, it was a matter of dispute whether Ms. Demetrovich had in her possession photos of the OMC surgical suite that she declined to include in the investigative report. Nothing prevented Ms. Orozco from submitting such photos on her own if she believed they would help her case. Such photos might raise questions, but again would not disprove or invalidate the statements of 19 patients to the degree that the probable cause panel could reasonably disregard the patients’ statements to the investigators and detectives.3
The Issue The issue is whether the Respondent violated Subsections 458.331(1)(1), (n), (q), and (t), Florida Statutes, as alleged in the administrative complaint.
Findings Of Fact A. BACKGROUND Dr. Song is a licensed physician in the State of Florida, having been issued license number ME 0033410, and was so licensed at all times material to this proceeding. Dr. Song is a Board certified member of obstetrics and gynecology. Dr. Song is of Korean origin and was naturalized as an American citizen in 1978. He was graduated from Seoul Catholic Medical College in Seoul, South Korea, on February 16, 1963. From 1963 to 1967, he served in the South Korean Army as a medical officer. He interned at Howard University Medical School, Washington, D.C. for one year. He was a surgical resident at St. Peters General Hospital, New Brunswick, New Jersey. He changed his specialty from general surgery, to a residency in obstetrics and gynecology at Allentown Hospital from 1969 to 1972. He worked as an emergency room physician at Holy Redeemer Hospital, Jenkintown, Pennsylvania from October 1972 until August, 1974. He joined the U.S. Navy on September 1, 1974. He was transferred to Naval Regional Medical Center, Orlando, Florida, where he served from August 1976 until September, 1981, and received an honorable discharge from the United States Navy in 1981. He then began a solo private practice in Orlando, Florida. He was on the staff of Florida Hospital in Orlando from at least 1982 until 1985 and was on staff there for all times material to this proceeding. Dr. Song was the primary physician who treated the seven patients in question during their pregnancy, labor and delivery. Respondent at all times material to this proceeding has been licensed in the State of Florida. (Pet. No. 21) Patient 178793 Patient 178793, a 27 year old white female, was admitted at approximately 12 o'clock midnight to Florida Hospital in active labor for her first delivery on February 7, 1983 (Pet. No. 20, p.6; T.37-38). Respondent was the admitting physician (Pet. No. 4). The patient was fully effaced in a vertex presentation and dilated to 9 cm. at 8:30 a.m. and was fully dilated by 9:45 p.m. The patient was transferred to the delivery room at 10:10 p.m. where the attending nurses and Dr. Song encouraged her to push; however, the baby only progressed .5 to 1 cm. from 8:30 to 10:30 a.m. (Pet. No. 22, p.11). Respondent delivered the patient by mid- forceps at 10:53 p.m. (Pet. No. 20, p.7,9). At the time she was delivered she had been in labor from 1.5 to 2.5 hours. According to the nursing notes, Petitioner's Exhibit 4, at 7:40 a.m. the internal fetal heart monitor failed to work. No explanation is given in the nurse's notes about what was done to correct the problem. At 9:00 a.m. the IV which had been hung at 8:15 a.m. began to infiltrate (move into the tissue surrounding the site at which the needle is inserted) and as a result, the IV was discontinued. The patient was given oxygen between 9:00 and 9:30 a.m., at which the fetal heartbeat had decelerated to between 90 and 100. The normal range for a fetal heartbeat is between 110 and 180 (T. 51). Concurrently, the internal heart monitor was reported to have failed again and could not be made to work although the electrode was changed three times. The external monitor was reapplied. At 9:45 a.m. the fetal heart rate is indicated to have decreased during a contraction. Also at 9:45 a.m. the IV was restarted in the left arm. The spontaneous delivery of the patient halted between 9:30 and 10:00 a.m. This resulted in fetal stress as indicated in the decrease in heart rate. The problem was most probably caused by the baby's shoulder becoming hung on the mother's pelvis. A primary indicator of fetal stress, the fetal heart monitor, was not working and there were problems with maintaining the mother's IV, an important matter if an emergency cesarian section were necessary. See Fetterman Deposition, Page 55, et seq. Under these circumstances, the ,Respondent decided to intervene by delivering the baby using mid-forceps. "Low and mid" modifying forceps reference the position of the top of the baby's head as it is coming through the birth canal. The definition involves a measurement of the distance in centimeters from a location in the birth canal. The definition involves a measurement of the distance in centimeters from a location in the birth canal referred to as the Ischial Spine. High-forceps situations are outside the accepted standard of care in modern obstetrics. The generally accepted standard of care allows forceps deliveries with the use of low-forceps and mid-forceps. Mid-forceps are permissible from positions 0 to plus 2. Mid-forceps are only indicated where there is maternal or fetal distress or where the patient has a protracted second stage of labor in excess of two hours. (Pet. No. 22, p.14-15). The baby had forcep marks on the cheek near the orbit of the right eye. The left earlobe and left neck were injured. The neck injury was described as a shearing injury by Dr. Stone in his report. (Pet. No. 4; 5; 6; 20, p.11). In addition, the baby's left arm was weak and it had a large caput succedaneum of the head due to molding of the head from a long, forceful labor. Fetterman Deposition, Page 97, line 18 et seq. The forcep marks on the face indicated a less than optimal application of the forceps; however, forcep marks are to be expected in a delivery and or by no means unusual or reflect poor practice. The injury to the left neck could not have been made by the forceps. Fetterman Deposition, Page 44, line 14. The mark on the neck and the weakness resulted from the traction needed to deliver the shoulder. Fetterman Deposition, Page 98 and 99. This together with the caput succedaneum indicates that the spontaneous delivery had arrested and justifies the Respondent's decision, particularly in the absence of a heart monitor strip due to equipment failure, to use mid-forceps to deliver the patient who had had a difficult labor of approximately two hours duration. Apgar scores are a means by which newborn babies are rated as to their overall health. Apgar scores are given at one minute after birth and five minutes after birth. The range is from 1 to 10, with 10 being the best. Patient 178793's baby had Apgar scores of 8 at one minute and 10 at 5 minutes. Patient 145489 Patient 145489 was admitted by Dr. Henry Bruce, a psychiatrist, to Florida Hospital between February 1, 1983 and March 10, 1983 for a diagnosed personality disorder and substance abuse (Pet. No. 19, p.8). Respondent had been patient 145489's physician since 1982 (T. 129). Patient 145489 was in her second pregnancy during the time she was treated by Dr. Song. Patient 145489 was in Florida Hospital from April 17, 1984 until April 18, 1984 under Dr. Song's care for possible overdose of drugs. The April 17, 1984 admission was by her husband, with whom she was having marital difficulties, who reported that she had taken a drug overdose. The clinical findings and observations reported in the records do not support the claim of an overdose. The husband brought to the hospital many medications, only part of which had been prescribed by Dr. Song. The patient was admitted on April 24, 1984 for labor and delivery of her second child. (T. 140). She was discharged on April 27, 1984. The Respondent is charged with over prescribing controlled substances without sufficient medical justification to the patient during this pregnancy. The Respondent's records reflect regular prenatal examinations, and various treatment for the patient's sundry complaints over her pregnancy. Patient 145489 was prescribed 80 tablets of Parafon Forte, a muscle relaxant for back pain, on January 4, 1984 by Dr. Song. Patient 145489 was prescribed 100 mg. Seconal #15 on January 17, 1984, for aid in sleeping, by Dr. Song. Additional prescriptions' of 100 mg. Seconal #15 were made by Dr. Song on February 1, 1984 and 100 mg. Seconal #12 on March 26, 1984 for aid in sleeping. Patient 145489 was prescribed .05 mg. Valium #15 on January 17, 1984, by Dr. Song. Valium is recognized both as a muscle relaxant and tranquilizer. Both uses were appropriate if the patient was a pregnant addict. Drs. Yelverton and Adler criticized Dr. Song's failure to refer this patient to an orthopedic specialist for consultation on the cause of her low back pain. Dr. Song was concerned about the propensity for his patient to abuse drugs and in 1984 referred patient 145489 to another psychiatrist, Dr. Michael Gutman, a Board certified psychiatrist and head of the psychiatry unit at Florida Hospital at that time. Patient 145489 was generally an uncooperative and difficult-to-manage patient. Dr. Song did not send patient 145489 to an orthopedic specialist because an orthopedic specialist would not have been able to ascertain any better diagnosis of the patient than Dr. Song without the use of x-rays which were contraindicated at her stage of pregnancy. The utility of seeking a consult with an orthopedic specialist was disputed by Dr. Fetterman, who stated that low back pain is a common complaint with pregnant woman. Dr. Fetterman's expert testimony was that there was no deviation in the standard of care with regard to Dr. Song's treatment of patient 145489. The amounts of medication prescribed and the intervals between their prescription indicates that Dr. Song was aware of the woman's drug abuse problem, was providing her appropriate medications in appropriate amounts based upon her complaints which were medically reasonable. Dr. Song did not prescribe excessive amounts of controlled substances to the patient or prescribe any controlled substances to her without sound medical indications. Dr. Song properly examined, diagnosed and treated patient 145489. Dr. Song did keep records with regard to prescription of drugs in her case and gave medical indications for the prescription of these drugs. Patient 276960 Patient 276960 was a 23 year old white female in her third pregnancy without having given birth, the prior two pregnancies having been terminated by abortion. She saw Dr. Song initially on November 3, 1983, and was seen regularly by him until March 9, 1984. Her records do not reflect she was seen by him again prior to her admission by Dr. Song to the hospital on May 10, 1984 for a Non Stress Test. The records of this admission and Dr. Song's office records are at the back of Petitioner's Exhibit 3. In Petitioner's Exhibit 3, "The History and Physical," Dr. Song notes in the patient's history dictated on June 9, 1984 after her delivery by caesarian section on June 5, 1984, that "A twin pregnancy was accidentally found out last month, which is out(sic) the middle of May because of a large abdomen and supposedly she is overdue and came in for partial induction. The twin pregnancy was found out at the time, and sonography done, biparietal diameter, with one at 35 weeks, and the other one at 37 weeks. It was decided not to do any more induction, and weight(sic), and she came in for active labor. She was followed up and taken care of in early pregnancy, and no remarkable obvious problems were noticed during pregnancy." (Emphasis supplied.) Dr. Song testified that he had trouble being understood by medical transcribers. Problems with transcription of his dictation, as well as Dr. Song's use of English, are evident in the quoted section. Dr. Song indicated that his pronunciation of "possible" was frequently transcribed as "partial." The Department's experts concluded after examination of the hospital records that Dr. Song had attempted to induce labor in this patient without ascertaining at what point she was in her pregnancy are based upon this document. They also concluded that Dr. Song should have determined that the patient was pregnant with twins, and that failing in this and attempting to induce labor was not professionally acceptable practice. The nurse's notes reflect that the patient was admitted at 1:00 p.m. on May 24, 1984 for a "NON STRESS TEST." The hospital record includes a release executed on May 24, 1984 from the patient to conduct a "NON STRESS TEST." The nurse's notes reflect that the non stress test (NST) was conducted in connection with ultrasound examination. See Petitioner's Exhibit 3. The Nurse's notes regarding these procedures state in part, "Fetus active-hard to get Ext. tracing but by constant observation & holding fetal ultrasounded-fetus reactive-3 movement in 15 m lasting 15 sec. acceleration 5 bpm-Dr. Song notified and pt sent home[.]" See Petitioner's Exhibit 3. There is no reference in the nurse's notes to administration of any drugs during the May admission. See Petitioner's Exhibit 3. The discharge record for the May admission reflects Dr. Song had discovered a twin pregnancy and discharged the patient at approximately 1:15 p.m. See Petitioner's Exhibit 3. There is nothing contained in the May notes and records which would indicate that the purpose of the May admission was to induce labor. See Petitioner's Exhibit 3. Dr. Song's patient history written in June led to speculation that Dr. Song had admitted the patient in May to induce labor and had stopped when he accidentally discovered the twins. The facts do not support this speculation. Petitioner's proposed findings, paragraph 27, reference administration of 10 units of Pitocin. All records for the May admission contained in Petitioner's Exhibit 3 were searched and none of these records reflected the administration of Pitocin. The purpose of Pitocin is to induce contractions. Nurse's notes for the May admission make no reference to contractions. No drugs were administered to the patient during the May admission. The patient was not in labor in May for several hours before induced labor was stopped. She was examined and discharged in approximately 15 minutes. It was not unprofessional for Dr. Song to have missed finding the twin pregnancy by March 9, 1984, the patient's last visit to Dr. Song prior to the non stress test. Many twin pregnancies are not discovered until sonograms are performed, as in this case. See Fetterman Deposition, Respondent's Exhibit 3. The patient was admitted on June 5, 1984 in active labor and was delivered by caesarian section of twins, one boy and one girl, without incident. Patient 199111 Patient 199111 was admitted on November 13, 1982. Respondent was the admitting physician (Pet. No. 12). She arrived in labor and was 7 to 8 centimeters vertex presentation at 0 station. At 4:45 a.m. she was in active labor (Pet. No. 20, p.46). Patient was fully dilated at 5:00 a.m. and Respondent delivered by use of low forceps at 5:25 a.m. (Pet. No. 20, p.47, 50; Res. No. 3, p.60). Though the use of low-forceps is considered a safe modality when medically indicated and properly used, low-forceps should still be used only when there is a medical need (Pet. No. 22, p.51). The principal criticism of the care rendered to patient 199111 by Dr. Song is that he performed a forceps delivery, allegedly without any medical necessity. The patient record does reflect the existence of a thick green meconium amniotic fluid which is indicative that there was fetal distress either at the time noted or in the past (Pet. No. 20, p.48). Other than this, the record reflects that the patient was progressing normally and the monitor was normal (Pet. No. 20, p.48-49). The pea soup meconium was an indication that the fetus had had or was having a difficulty and that under this circumstance this patient had to be delivered with the utmost speed. The option to have a cesarean would take to long, even if all preparations had been made. Deposition of Dr. Fetterman, Respondent's Exhibit 3. DPR's own witness, Dr. Stone, noticed the same pea soup meconium and stated: " I can understand the obstetrician getting rather nervous and possibly doing a low forceps." Dr. Song testified to having been aware of this pea soup meconium and that it was an indication that the baby was in acute distress and that a low forceps delivery was in fact indicated. The condition requiring a medical necessity was present in this case and justified the Respondent's actions which were within accepted medical practice. Patient 274312 Patient 274312, a 19 year old female as admitted to the hospital on April 8, 1984 for labor and delivery (T. 222). Respondent was the admitting physician (Pet. No. 15). The principal complaint against the Respondent in the case of patient 274312 was that Dr. Song allegedly attempted to deliver a footling breech vaginally, was not prepared to deliver the baby by C-section and that this is a violation of the standard care. Respondent states in his Clinical Resume dated April 12, 1984 that "an x-ray was taken to rule out small pelvis or abnormal position of breech presentation. It turned out one leg extended frank breech and the other leg was a complete position." (Pet. 15, p.104: Clinical Resume dated 4-12-84). Dr. Song's notes for April 11, 1984 make the same comment about the position of the legs of the fetus. A complete breech presentation is where the bottom of the fetus is down and the feet are around the buttocks (T. 226). A footling breech is where the baby presents feet first (Pet. No. 22, p.59). Patient was admitted at 12:05 a.m., an x-ray taken at 12:25 a.m., and a mini-prep was done prior to 1:00 a.m. An IV was started just after 1:00 a.m. and an abdominal preparation done at 1:15 a.m. Dr. Song directed preparations for a C-section and the patient was fully prepared for a possible C-section at 1:15 a.m. According to the nurses notes, the patient did not reach full dilation prior to Dr. Song's decision to deliver her by C-section at approximately 4:20 a.m. when the patient had dilated to nine centimeters. See Pet 15, nurses notes, pages 115,116. (Pet. No. 22, p.62). Respondent was trying to permit the patient to deliver vaginally, however because of fetal distress he delivered the patient by cesarean section. Mother and baby progress normally and were discharged on April 12, 1984. (Pet. No. 19, p.57; Pet. No. 22, p.59). All the testimony indicates that footling breech presentations are too dangerous to attempt vaginal delivery unless there is rapid, spontaneous descent of the fetus. It is within acceptable standards of care in obstetrics to attempt vaginal delivery of frank breech or partial footling breech provided there is no fetal distress. (Fetterman Deposition: Page 90, line 6-23.) Dr. Marley's opinion was similar to that of Dr. Fetterman. She opined that a complete breech can be delivered vaginally provided you have adequate cervical dilation. Dr. Yelverton, who indicated his preference for a cesarean-section when confronted with a complete breech, indicated that in the case of complete and incomplete breech presentations there was controversy within the obstetrical community about proper method of delivery. There is no evidence in this case that the fetus was in other than a partial footling, partial complete breech. Dr. Song was the only witness who actually was present at the delivery in question and saw patient and the x-rays showing the presentation of the fetus. His descriptions of his findings dictated prior to the complained of conduct reflect a partial footling, partial complete breech. The x-ray report, referred to by Dr. Song, in his summary was not made available by the Department of the Navy, which was the custodian of the medical records of this patient who was a Navy dependent. Asked to articulate an opinion as to whether or not Dr. Song departed from the standard of care in doing this particular cesarean section, Dr. Stone replied that his personal choice would have been to perform a cesarean section sooner; however, he indicated that there were minorities of opinion which might differ with his. Dr. Stone believed that adequate preparation for an emergency had been made by Dr. Song. The evidence in this case indicates that the presentation of the fetus in question was a combination of footling and complete. Attempted vaginal delivery of a partial footling, partial complete or frank breech presentation is appropriate unless there is fetal distress. Caesarian section is indicated if there is fetal distress. Dr. Song did not attempt to deliver a footling breech vaginally, was prepared to deliver the baby by caesarian section, delivered the baby by caesarian section when fetal distress was noted, and did not violate the standard of care in treating this patient. Patient 196663 Patient 196663 was admitted to the hospital at 7:15 a.m. on November 10, 1982. in early labor with ruptured membranes. (Pet. No. 20, p.53; T. 238). The patient was transferred from the Navy Base Hospital on that date and had not been previously seen by the Respondent. (Pet. No. 13, T. 238; Pet. No. 20, p.53). The first page of Petitioner's Exhibit 13 indicates that the patient had a uterine pregnancy, 37 weeks; premature rupture membrane and labor; and postpartum bleeding. The same exhibit reflects delivery by low forceps. The records of the patient's treatment at the naval hospital reflect that the patient was VDRL reactive which means the patient had syphilis antibodies. On 4-8-82 the husband reported that she had been treated. On 7-20- 82 the patient was given penicillin for VD and a retest of VDRL was planned. On 7-23-82 a second RPR (VDRL) was conducted and FTA was ordered. On 8-3-82 penicillin (2,400,000 units x 3 was ordered. These records were attached to the patient's records when she was transferred to Dr. Song's care. See Petitioner's Exhibit 13, page 8. The Dr. Song's patient record indicates that on November 4, 1982 Respondent ordered a confirming test (RPR) upon the patient's next visit. Instead the patient entered the hospital in labor on November 10, 1982. At 8:00 p.m. on November 10, 1982 the Respondent ordered an FTS-ABS for the following morning. (T. 244; Pet. No. 13). Upon the baby's birth, mother and baby were released from the hospital and Respondent's care. Based upon the fact that the patient was transferred from the navy hospital and the patient's medical records were obtained from the Navy, presumably, the patient received after care from the naval medical facility which had made the original determination that the patient had a positive VDRL. Respondent recalled, at hearing, that the test came back negative and, therefore, no penicillin was given to the baby (T. 242, 244). Although the patient records are void of any notation that indicates that Respondent in formed the pediatrician of the FTA-ABS test results (T. 246), it would have been meaningless for Dr. Song to have advised the naval doctors of information which they knew prior to Dr. Song seeing the patient. The principal criticism of the care rendered to patient 663 by Dr. Song is that he performed a low forceps delivery, as reflected in Exhibit 13, without obstetrical indications or documentation which justified such a delivery, and the alleged failure to keep records. The records are clear that the patient had come into labor after premature rupture of the amniotic membrane, that the patient had a difficult labor, and that Pitocin was administered at 3:45 p.m. to eliminate an irregular labor pattern. Pitocin administration was continued until birth. At 5:10 the nurse and Dr. Song did a vaginal examination and noted swollen rim. Dr. Song instructed the patient not to push for awhile. Petitioner's Exhibit 13. Dr. Song used low forcep, an accepted procedure If there is any fetal distress. The notes reflect that the mother had been In labor for 10 hours, that she had remained dilated at 8-9 cm. since 4:30 p.m. The baby's respiration at birth was delayed a half minute and oxygen was administered. Petitioner's Exhibit 13. Regarding postpartum hemorrhage, Dr. Stone speculates that it may have indicated a hard forceps delivery; however, Dr. Stone admits it could also have been due to other things. Dr. Fetterman testified that it was "obvious" that the postpartum bleeding occurred from the uterus because of pieces of placental material which were not sloughed off and was not the result of the use of forceps. Dr. Fetterman testified that the baby in this case had excellent Apgar scores of 9 and 9, and that Dr. Song did not deviate from the standard of care in delivering the child of patient 196663. Drs. Fetterman and Song described how the premature ruptured membranes was an indication of potential infection or a problem for the fetus. Therefore, a low forceps delivery was indicated. There is less than a preponderance of evidence in this case to suggest that Dr. Song departed from the standard of care with regard to the examination, diagnosis and treatment of patient 196663. Patient 244254 Patient 244254 was a 26 year old Puerto Rican who was admitted to the hospital on September 26, 1984 in her forty-second week of her third pregnancy and who previously had delivered two children. The forty-second week of pregnancy is critical, being considered a maximum term. Respondent was brought in to induce pregnancy in this patient. The nursing notes for the period 8:30 p.m. until 12:40 a.m. are missing in the record. The last nursing note at 8:30 p.m. was that the patient was completely dilated and was being taken to the delivery room. It does not record any position for the baby. Other records show that the Respondent performed a caesarian section and delivery the baby at 11:19 p.m. and the mother was resting after surgery at 12:40 a.m. The Respondent's testimony is the only eyewitness account of what occurred during the intervening period. Expert testimony stated that a caesarian section under optimum conditions takes 15 minutes to perform. Approximately an hour before performing the caesarian section, at around 10:00 p.m., the Respondent's requested Dr. Hoover to examine the patient. Dr. Hoover recommended letting the woman remain in labor another hour unless fetal distress occurred. It was while waiting this hour, that fetal distress occurred, and Dr. Song performed the caesarian section and delivered a baby girl whose Apgar scores were 7 and 9. These Apgar scores indicate the baby was initially in some distress which was relieved by administration of oxygen. Just prior to asking Dr. Hoover to examine the patient, Dr. Song had attempted to rotate and deliver the baby because the baby stopped in the transverse position with its shoulders caught on the mother's pelvic ridges. In this position, the baby's head is at the zero or mid-forcep position. Dr. Adler's principal criticism of this case arose as a result of his hearing that Dr. Song had attempted a high forceps delivery. There is no evidence to support this supposition. Alternatively, Dr. Alterman complains that Dr. Song had departed from the standard of care by failing to make adequate notations in the record to justify any use of forceps in this case. It is true that there is a gap in the record; however, it appears that this was not the result of the failure to make notes, but the loss of notes. In Dr. Fetterman's opinion, Dr. Song had two options, one being an immediate cesarean section, the other being an attempt at rotating the head with forceps. Dr. Fetterman emphasized that it was his belief that the only use of forceps in this case involved a mid-forceps procedure to facilitate delivery of the fetus out of the transverse arrest position so that it might proceed down the birth canal. Dr. Fetterman testified that a mid-forceps rotation was an accepted obstetrical procedure. Dr. Fetterman testified that his reading of the charts in this case indicated that fetal heart sounds had dropped and that this was "certainly a reason for concern." This was the fetal distress which resulted in the caesarian section. DPR's witnesses regarded to utilization of forceps in this case improper based upon a belief that Dr. Song was attempting mid-forceps delivery of this patient while on "probation." Dr. Song was using mid-forceps to rotate the baby out the transverse position which was for the purpose of delivering the baby. This use of forceps for rotation out of transverse arrest is an acceptable obstetrical maneuver, although, as in this case, the forceps generally leave marks on the baby's face. On February 22, 1983, the Respondent resigned from his position at the Apopka Clinic by letter. See Exhibit 10.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Board of Medical Examiners dismiss its complaint against the Respondent. DONE and RECOMMENDED this 25th day of May, 1989, in Tallahassee, Florida. STEPHEN F. DEAN 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 25th day of May, 1989. APPENDIX A Rulings on Respondent's Objections presented in Petitioner's Appendix A: Sustain the objection. Sustain the objection. Overrule the objection. Sustain the objection. Overrule the objection. Sustain the objection. Sustain the objection. Rulings on Respondent's Objections to Petitioner's Exhibits: Exhibit 2: Overruled. Note, however, the facts presented at the hearing reveal that half of the medication mentioned had not been prescribed by the Respondent. There was nothing unusual or inappropriate in the medications prescribed by Respondent. The Exhibit reflects an attitude of the hospital staff of suspicion concerning the Respondent which is not supported in the medical records. The Respondent's records for the patient reflect the basis for the prescriptions which, in the opinion of a medical expert, were appropriate in terms of the quantity of medications prescribed and the time frame in which they were prescribed. The suggestion by Dr. Adler that the pregnant patient be sent to an orthopedic specialist for low back pain in order to support the treatment was clearly a means of avoiding responsibility for the course of treatment. Dr. Song was willing to accept that responsibility and the records support the propriety of his decision. Exhibit 5: Sustained. This purports to be a statement of a medical examination conducted contemporaneously with the giving of the statement; however, a check of the dates reveals that it could not have been made on January 11, 1983 because Patient 178793 did not give birth until February 7, 1983. Because of this inconsistency, Respondent's objection is sustained. Exhibit 6, 7, 8, 10, 11: Petitioner seems to assert that Exhibits 6, 7, 8, and 10 relate to peer discipline and that as such they should be admissible. However, the only evidence of possible peer discipline is Exhibit 11, and it merely references an interview concerning possible corrective action. Part of the basis of this interview are cases discussed by Dr. Stone and the Respondent on December 1, 1982 and February 3, 1983 (Exhibit 11, second paragraph); however, Exhibits 6, 7, 8, and 10 relate to an event on February 7, 1983 which could not have been addressed in either of these conversations. It is conjectural whether any disciplinary action was taken and whether the event of February 7, 1983 was the basis for action, if any action was taken. The objection is sustained regarding Exhibits 6 and 7. Exhibits 8 and 10 will be considered to the extent that they state the findings of physical examinations about the baby whose treatment is the subject of a portion of the Board's administrative complaint. Objection of Petitioner to Respondent's Exhibit 3, Deposition of Henry H. Fetterman, M.D. Counsel for Petitioner presented a continuing objection to questions calling for an opinion on the standards of care in Florida on the basis that the witness was not licensed in Florida. The standard of practice for obstetrics is not so parochial that a recognized out-of-state expert cannot offer an opinion concerning the standards of care of obstetric practice. This objection is overruled and the testimony of Dr. Fetterman will be received. APPENDIX B Findings on Proposed Findings The findings contained in the following paragraphs of Petitioner's Proposed Findings were adopted substantially: 1, 2, 3, 4, 5, 6 - that forcep marks occur, 8, 15, 16, 17 - patient complained, 18-1 and 2*, 20 - only prescriptions written are in chart, 22, 26 - dates of admissions, 33, 38, 46, 47, 54, 56, 58, 69, 33, 35, 37 - use of low forceps safe, 38, 39, 46, 48 - indications for forcep delivery, 53, 54, 56, 58, 59, 60 - claim to rotate baby, 64 - head was at minus 1 on admission and 0 to plus 1 when rotation was attempted, 66 - standard to conduct vaginal exam and reflect chart, and 69. The findings contained in the following paragraphs of Petitioner's Proposed Findings were rejected because they were contrary to facts which were found to be more credible: 6 - that forcep marks occur when the doctor is rushed, 7, 9, 10, 11, 12, 17 - no indication of examination, 21, 26 - premature labor, 27 - see special finding, 28,29, 30 31, 32, 34, 36, 39 - concerning type of breech, 40, 44, 45, 47, 50, 51, 52, 57, 60 - all after first sentence is hearsay, 61, 64 - what prudent ob-gyn would do, 66 - Respondent's violating standard, and 70. The findings contained in the following paragraphs of Petitioner's Proposed Findings were rejected as irrelevant to the issues in light of other findings: 13, 14, 19, 20 - all after first sentence, 23, 24, 25, 41, 42, 43, 55, 62, 63, 65 - hearsay about restriction on forceps and inability of a hospital to restrict practice of physician in a manner contrary to patient's interest and contrary to full grant of practice by state licensing' agency, and 67. The findings contained in the following paragraphs of the Respondent's Proposed Findings were adopted substantially: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 29, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, and 32. The findings contained in the paragraph 24 of the Respondent's Proposed Findings were rejected as irrelevant in light of other findings. *Petitioner's Proposed Findings of Fact had two paragraphs 18. COPIES FURNISHED: Robert D. Newell, Esquire Newell & Stahl, P. A. 817 North Gadsden Street Tallahassee, Florida 32303 John D. Buchanan, Jr. Esquire Henry, Buchanan, Mick & English, P.A. Post Office Drawer 1049" Tallahassee, Florida 32302 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0729 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0729
