The Issue Should discipline be imposed against Respondent's medical license for alleged violations of Sections 456.072(1)(aa), and 458.331(1)(p), Florida Statutes (2003)?
Findings Of Fact Stipulated Facts Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. At all times material to this (Administrative) Complaint, Respondent was a licensed physician within the State of Florida, having been issued license number ME66779. Respondent's address of record is Nature Coast Orthopedics, P.O. Box 640580, Beverly Hills, Florida 34464-0580. Respondent is board-certified in orthopedic surgery. On or about February 25, 2004, Respondent scheduled or had Patient D.M. scheduled for an anterior cruciate ligament (repair of a tear in a ligament), repair of the right knee at Seven Rivers Regional Medical Center in Crystal River, Florida. On or about February 25, 2004, Patient D.M. a 25-year-old male, was prepped for surgery and taken to the operating room. On or about February 25, 2004, Respondent entered the operating room and initiated the surgery with an incision of Patient D.M.'s left knee. On or about February 25, 2004, the intended and/or planned surgical site for Patient D.M., was his right knee. Subsequent to performing the incision to Patient D.M.'s left knee, Respondent realized that he was performing surgery on Patient D.M.'s wrong knee. Respondent applied a steri-strip to Patient D.M.'s left knee subsequent to making an incision on the left knee. Respondent made a skin incision on Patient D.M.'s left knee. Additional Facts Respondent graduated from medical school in 1989. He was in residency for five years and has been in practice for about 11 years beyond that time. Other than his disciplinary history with the State of Florida, Board of Medicine (the Board of Medicine) he has no disciplinary past with other boards or jurisdictions. Respondent is board-certified by the American Board of Orthopedic Surgery. Respondent has active privileges at Seven Rivers Regional Medical Center (Seven Rivers Regional) and Health South Citrus Service Center, an outpatient facility. Those facilities are located in Crystal River, Florida, and Lancanto, Florida, respectively. Respondent has an office practice that employs 12 staff. They include a receptionist, billing personnel, what is described as back-help, a Physician's Assistant (P.A.) and medical assistants. Respondent supervises the P.A., pursuant to registration with the State of Florida. Respondent takes emergency calls at Seven Rivers Regional, to include pediatric orthopedic calls. Respondent also takes hand calls which are related to injuries in that portion of the anatomy below the shoulders. After an 1998 incident involving a wrong-site surgery for which discipline was imposed by the Board of Medicine on Respondent, discussed in detail later in the facts, Respondent made some changes to his practice in dealing with the problem of wrong-site surgery. This involved the imposition of other checks and balances. One of the changes was referred to as a time-out, promoted by changes in hospital rules at what is now Seven Rivers Regional and by Respondent's choice. In 1998 the hospital was known as Seven Rivers Hospital. Persons other than Respondent were engaged in the establishment of additional checks and balances to avoid wrong-site surgeries. The risk manager and director of nursing at Seven Rivers Regional were engaged in this process. The time-out related to the cessation of other activities in treating the patient, to confirm the correct surgery site. Before commencing the surgical procedure the limb involved in the procedure would be marked by nursing staff. The nursing staff would then confirm the site, followed by the time-out period shortly after the preparation for surgery. Confirmation would verbally be made with different staff members, documentation was expected to be checked and any image studies checked to confirm the proper site. Generally, following the 1998 incident involving wrong- site surgery by Respondent, Seven Rivers Hospital established rules addressing the problem of wrong-site surgeries. Greater emphasis was made to enforce those rules after the Respondent‘s second incident considered in this case. In the present case it was intended that reconstruction be made of the anterior cruciate ligament of the right knee of Patient D.M., through arthroscopic reconstruction. The patient in the present case was seen in Respondent's office prior to surgery. The expectation was that the office staff would confer with the staff at Seven Rivers Regional concerning the type of procedure to be performed, to be followed later by orders from the Respondent that were faxed to the operating room staff at Seven Rivers Regional. Those orders would describe the limb involved in the surgery. In the present case the circulating nurse, together with the surgical technician were involved with preparing the limb for surgery, applying antiseptic solution and draping the patient's limb. Those persons are hospital employees. Prior to surgery, the wrong limb was marked by the nursing staff and the draping took place in the operating room. Patient D.M. underwent general anesthesia prior to the surgery. Before the procedure commenced in the present case, Respondent asked the nurse in the operating room if the correct limb had been prepared and the response was in the affirmative. Respondent started the procedure. The only means of confirmation by Respondent at that point was by verbal communication between the circulating nurse and Respondent. Respondent realized that he was ultimately responsible to make certain that the surgery was performed at the correct site. In the present case Respondent took an 11 blade and made a slight incision. He noticed that the video-screen which was normally placed on the opposite side of the intended limb to be examined, was on the same side as the limb that had been prepared for examination. As Respondent made the incision he was uncomfortable with that setting. He turned to the circulating nurse and asked if he could see the patient's chart. By review of the chart he discovered that he had made an incision on the wrong knee, that had been draped and prepared for examination. The incision was about a quarter-inch in size and the surgical knife had been placed about a half-inch into the skin. In this case no second incision was made as would be normal for this type of surgery. Having discovered his error Respondent placed surgical tape across the incision he had made and the draping was broken down from the unintended site and a new draping placed on the intended site. After these changes surgery was performed on the proper knee. Respondent did not consult with any family member before proceeding to perform surgery on the appropriate knee, having addressed the wrong knee in the beginning. The family was informed after the procedure was completed. The patient was informed of the mistake after awakening from anesthesia. The Respondent made entries into the medical record concerning the incident in the present case. After the surgery in the present case Respondent followed-up the patient at his office. No complications were experienced by the patient in either site, the wrong knee or the proper knee. The initial visit involving Patient D.M. took place on February 17, 2004, and the surgery was performed on February 25, 2004. The last scheduled appointment at Respondent's office was August 26, 2004, but Patient D.M. declined that appointment having returned to work, after expressing his view that to come to Respondent's office was an imposition. Respondent made the risk manager and director of nursing aware of the error in the treatment of Patient D.M. The incident was reviewed by the hospital. No action was taken against Respondent's privileges to practice at Seven Rivers Regional as a result of the incident. Following the present incident Respondent has varied his approach. The changes are to involve more people in the time-out period than before the present incident. This includes the anesthesia staff, surgical technician, circulating nurse, and Respondent. Resort is now made to the surgical consent record and any imaging studies that were performed to confirm that the proper site is addressed in the surgery. Prior to the present incident Respondent did not follow a practice of taking the patient's chart with him to the surgery. He depended on orders that had been sent by fax and hard copies following the transmittal of the initial fax to the hospital, to create the basis for surgical site identification by others. In the present case the doctor's orders forwarded to Seven Rivers Regional made clear that the arthroscopy was to be performed on the right knee. The comment section to the pre- operative patient care flow sheet refers to the right knee as the limb to be addressed by the arthroscopy. Likewise the special consent to operation or other procedures refers to the right knee. The anesthesia questionnaire involved with Patient D.M. refers to the right knee, in relation to the procedure in the arthroscopy. All are appropriate references to the location of the site for surgery. Joyce Brancato is the CEO of Seven Rivers Regional. She identified that there are four orthopedic surgeons who practice at the hospital. All four, including Respondent, attend adult cases. Three including Respondent, treat hand calls, and a like number respond to pediatric cases, to include Respondent. If Respondent were suspended it would mean that at certain times during the month patients would have to be diverted or transferred from Seven Rivers Regional to another hospital. There would be an influence on inpatient orthopedic care, in that Respondent provides 63 percent of inpatient surgical care at the facility. In particular, patients who present at the emergency room needing hip repair or fracture repair would be inconvenienced. If Respondent were placed on probation, he would not be allowed to supervise his P.A., who in turn could not see patients that the P.A. follows. No other doctor is available in the practice to supervise the P.A. If Respondent were suspended, services would not be provided through his clinic leaving the patients to seek care elsewhere. Additionally, Respondent is the sole orthopedic physician, to his knowledge, who admits Medicare patients to Seven Rivers Regional. As a result of the present incident Respondent received no pecuniary benefit or self-gain. None of the allegations in the Administrative Complaint involve controlled substance violations. Prior Discipline In relation to a prior disciplinary case against Respondent, that incident took place at Seven Rivers Hospital, now Seven Rivers Regional. The surgery in the prior case took place in 1998. It also involved a wrong-site surgery. As Respondent explained at the November 8, 2005 hearing, the prior case involved a female patient scheduled for a knee arthroscopy. The surgical site identification protocol involved at the time was to have the nursing staff prepare the patient for the surgery. As a consequence, when the Respondent entered the operating room the unintended knee had been draped. Respondent confirmed the surgery site by conferring with a nurse in attendance and starting the procedure. Incisions were made to examine the knee, the wrong knee, the incisions were about a quarter of an inch in length, one for the camera to view the site and one for the surgical instruments used to address the underlying pathology. When the wrong knee was examined following the incisions, Respondent did not find the pathology that he expected given the patient's prior history and physical examination that had been conducted. Other than the incisions being made in the wrong knee, there were no other consequences in the way of impacts to the patient's health. In the prior case in which the wrong knee had been prepped by staff, Respondent recognizes that he as the surgeon was responsible to ensure that surgery commenced on the correct knee. In the prior case, after realizing that he had commenced surgery on the wrong knee, Respondent stopped the procedure, he went to the waiting area and spoke to the patient's husband and explained the circumstances and absent any objection indicated that he intended to proceed with the case involving the correct knee. Before the correct knee could be addressed, there was a delay associated with the breaking down the sterile field on the incorrect knee and starting the process anew to address the correct knee. After conversing with the husband Respondent returned to the operating room and performed surgery on the correct knee. During the pendency of these events the patient was anesthetized. When the patient recovered from the anesthesia Respondent explained what had occurred. The expected pathology was discovered in the proper knee and addressed and the patient satisfactorily recovered from surgery without complications. In the prior case, Respondent made a record indicating that he had initiated the surgery in the wrong site. All requirements incumbent upon Respondent in view of the terms of the Consent Order entered in the prior case, DOH Case No. 98-16838 were met by Respondent.
The Issue The issue presented for decision in this case is whether Respondent should be subjected to discipline for the violations of Chapter 458, Florida Statutes, alleged in the Administrative Complaint issued by Petitioner on April 24, 1997.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida, pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Pursuant to Section 20.43(3), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards. At all times relevant to this proceeding, Respondent was a licensed physician in the State of Florida, having been issued license no. ME 00276678. At the time of Patient R.M.’s treatment, Respondent practiced orthopedic medicine. Respondent voluntarily ceased his orthopedic surgery practice in December 1994. He is currently employed as an assistant professor in the Department of Occupational Medicine at the University of South Florida College of Public Health. On July 28, 1993, Patient R.M., a 41-year-old female, presented to Respondent for an evaluation of right knee pain. Patient R.M. told Respondent that on November 1, 1992, she twisted her knee at home and heard a pop. Prior to this event, she had no knee problems. She told Respondent that she went to the emergency room at Brandon Hospital and was evaluated by the emergency room physician. The emergency room physician prescribed pain medication and placed her in a knee brace, gave her crutches, and advised her to see an orthopedic physician. Patient R.M. told Respondent that she had continued to experience swelling, occasional locking and giving-way of her knee over the intervening months. Respondent examined Patient R.M.'s right knee. He noted no obvious effusion or swelling, but did note tenderness over the medial joint line. Respondent noted that the right knee had a "full ROM" (range of motion), but his records did not quantify the patient's range of motion. Respondent noted a "markedly positive" McMurray's test. McMurray's test evaluates the stability of the knee meniscus. A positive McMurray's test is consistent with injury to meniscal structures. Respondent's records indicated that X-rays of the knee revealed no abnormalities. Respondent did not record the details of the X-rays, such as which planes were pictured or whether the X-rays were of the patella femoral joint or a standing lateral view of the knee. Respondent's records indicated to no examination or testing of the patella femoral joint. Dr. Harry Steinman, a board-certified orthopedic surgeon, opined that patella femoral problems can masquerade as meniscal problems in some situations, and that it is thus "mandatory" for the orthopedist to examine the patella femoral joint to rule it out as the locus of pathology. On the basis of his examination and Patient R.M.'s subjective complaints, Respondent's diagnostic impression was a tear of the medial meniscus, and his recommendation was an arthroscopic examination to evaluate and repair the tear. Respondent discussed his examination findings and treatment recommendation with Patient R.M. and explained the surgical procedure, including possible risks, complications, and alternatives. Patient R.M. subsequently signed a surgical consent form acknowledging that Respondent explained the necessity of the surgery, its advantages and disadvantages, its possible complications, and possible alternative modes of treatment. On August 6, 1993, Respondent performed an arthroscopic repair of the meniscus of Patient R.M.'s right knee. Respondent placed two sutures within the body of the meniscus, attaching it to the posterior medial capsule. Respondent made a second incision in the posterior medial aspect of the right knee. The posterior incision allowed Respondent to expose the capsule of the knee joint so that he could directly view the sutures as he passed them from the inside to the outside of the knee capsule, where he tied down the sutures and repaired the torn meniscus. This direct visualization was designed to ensure that any neurovascular structures were not impinged by the sutures. On August 11, 1993, Patient R.M. returned to Respondent for her first post-surgery examination. Respondent noted that the patient seemed to be doing well and her wounds were healing without difficulty. Respondent prescribed a Bledsoe brace, an articulated brace that allows for various ranges of motion, and advised Patient R.M. that she could begin partial weight-bearing with the use of crutches. Respondent advised Patient R.M. to return in three weeks for re-evaluation. Less than two weeks later, on August 23, 1993, Patient R.M. returned, complaining of numbness on the medial side of her right calf. On this visit, Patient R.M. was examined by Respondent's partner, Dr. Stuart Goldsmith, not Respondent. Dr. Goldsmith noted no effusion, redness, inflammation, or signs of infection. Dr. Goldsmith noted that Patient R.M. was wearing the Bledsoe brace "significantly tight," which could explain the numbness in the medial side of her calf. He advised the patient to loosen the straps on the brace, continue with range of motion exercises, and return to see Respondent in one week. Patient R.M. understood and agreed with Dr. Goldsmith's advice, and indicated she would return in one week. On September 1, 1993, Patient R.M. returned to Respondent for evaluation. She complained of decreased sensation along the medial side of her calf. Respondent noted that his evaluation revealed "what I determine to be almost normal sensation." Respondent also noted that he wondered whether Patient R.M. had a little irritation of the infrapatellar branch of the saphenous nerve at the site of the anterior medial stab wound. Respondent recommended that Patient R.M. begin range of motion exercises without the Bledsoe brace and commence physical therapy. He advised her to return in three to four weeks for re-evaluation. Patient R.M. returned two weeks later, on August 15, 1993, complaining that she heard a pop in the knee the night before. She told Respondent that she had not commenced physical therapy, but had been doing quite well prior to hearing the pop. Respondent noted that "sensation has apparently returned to normal." Respondent noted some tenderness along the medial aspect of the knee joint. He noted no effusion and a full range of motion, though again his records did not quantify the range of motion with numeric values. Respondent concluded that Patient R.M. had pulled apart some mild scar tissue, and again recommended commencement of physical therapy. He advised her to return in about one month for re-evaluation. On October 11, 1993, Patient R.M. returned to Respondent for evaluation. She continued to complain of decreased sensation along the anterior medial aspect of her right calf. She told Respondent that she had sensation, but that it was "different." Respondent noted that he wondered if the cause of this complaint might be that a portion of the infrapatellar branch of the saphenous nerve was nicked during surgery. Patient R.M. complained of pain extending from the inferior pole of her patella distally. Respondent noted that this pain was alleviated by bringing the patella medially, and that he had ordered a brace that he hoped would offer relief. Respondent advised Patient R.M. to continue therapy at home and to return in a couple of months. Patient R.M. never returned to Respondent's office. On November 16, 1993, Patient R.M. presented to Dr. John Okun, an orthopedic surgeon, for a second opinion. Dr. Okun took her history and performed an examination, including pinprick and light touch tests, and Tinel's sign, which indicates irritability of a nerve. Respondent testified that he had also performed these tests, but did not note them in his records. Dr. Okun suspected that a branch of the saphenous nerve had either been transected or caught in a suture during Respondent's operation, and believed that Patient R.M. would be best served by an exploration of the posterior aspect of the knee to see if anything could be done to restore nerve function. Dr. Okun noted that he discussed the situation at length with Patient R.M., advised her of the options, and received her assurance that she would consider the options and call him with any problems or changes. On December 3, 1993, Dr. Okun performed a surgical exploration of the nerve. He identified a loop of suture wrapped around the saphenous nerve. He removed the suture and freed the tissues surrounding the nerve. Dr. Okun followed Patient R.M.'s progress until March 1995. She generally reported improvement, but continued to complain of paresthesia and showed positive Tinel's signs in her lower leg. On March 8, 1994, Dr. Okun noted persistent nerve symptoms, and further noted that this was not surprising considering the degree of nerve compression. On May 5, 1994, Dr. Okun noted probable permanent damage to the nerve, but advised waiting another six months to one year before concluding that she had reached maximum improvement. Dr. Okun testified that, during his course of treatment, he never identified a significant patella tracking problem with Patient R.M. Dr. Okun also testified that Patient R.M. had a definite medial meniscus tear, and that "it looks like it was repaired fine" by Respondent's arthroscopic procedure. Dr. Steinman agreed at the hearing that there was a tear of the medial meniscus, and noted that Patient R.M. no longer complained of swelling, giving-way, or locking after the arthroscopic procedure. The evidence at hearing established that the surgical procedure performed by Respondent was within the standard of care. Respondent repaired a tear of the medial meniscus. The experts agreed that impingement of the saphenous nerve by a suture is a known and relatively common complication of the procedure performed by Respondent, despite the precaution of making an incision in the posterior aspect of the knee to visualize the posterior capsule. The experts further agreed that such impingement of the nerve during this procedure does not, of itself, establish that Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Petitioner's allegations thus relate to Respondent's actions prior to and after the surgical procedure itself. The Complaint alleges that, prior to surgery, Respondent failed to perform an appropriate initial examination, failed to appropriately diagnose Patient R.M.'s condition, and failed to attempt conservative therapy prior to performing surgery. Dr. Steinman testified that Respondent should have examined the patella femoral joint in order to rule that out as a cause of the patient's symptoms. While conceding that Patient R.M.'s symptoms were all consistent with meniscal pathology, and that Respondent arrived at the correct diagnosis, Dr. Steinman opined that the patient was entitled to a full examination irrespective of the final outcome, and that the standard of care required an examination of the patella femoral joint. Dr. Steinman's testimony is credited on this point. However, the impact of his critique is lessened by that fact that Respondent's diagnosis was correct, the fact that Dr. Richard Goldberger examined the records and concluded that the patient was not suffering from a patella femoral joint problem, and the fact that Dr. Okun, who actually treated Patient R.M. for more than a year, also found no reason to believe that Patient R.M. had a patella tracking problem. Dr. Goldberger further observed that Patient R.M.'s only complaint regarding patellar pain was made after the surgery, not before. Under the circumstances, the worst that can be said of Respondent is that he went directly to the true cause of Patient R.M.'s complaint without affirmatively ruling out another possible cause. The evidence established that Respondent discussed a conservative course of therapy with Patient R.M. The evidence also established that a conservative course of therapy would have accomplished no tangible improvement in the tear of the medial meniscus. Dr. Richard Goldberger testified that physical therapy was not indicated for this patient. Dr. Goldberger testified that the only reason he would recommend physical therapy in this situation would be for the peace of mind of the patient, to assure a reluctant candidate for surgery that all conservative avenues had been exhausted. Even Petitioner's expert, Dr. Steinman, agreed that he would have discussed arthroscopy with the patient after the first visit, given her stated history and examination results. Dr. Steinman testified that after the initial examination, he would not have been convinced the patient had a meniscal tear, and would have recommended other treatments to confirm the diagnosis. However, he also stated that if Respondent was firm in his diagnosis of a meniscal tear, then diagnostic arthroscopy is what orthopedic surgeons generally would recommend. Respondent noted that Patient R.M.'s right knee showed a normal range of motion, though he did not note numeric values for the range of motion. This was not a deviation from the standard of care because loss of range of motion was not related to Patient R.M.'s pathology. Under the circumstances, it was sufficient for Respondent to note that range of motion was observed and found to be normal. Respondent failed to describe the X-rays he examined in reaching his diagnosis. Again, this was not a deviation from the standard of care because the information to be found in an X-ray was unrelated to the soft tissue injury that Respondent diagnosed in Patient R.M. Under the circumstances, it was sufficient for Respondent to note that X-rays were taken, examined, and found to be normal. In summary, Petitioner failed to establish by clear and convincing evidence that Respondent failed to meet the standard of care as regards his pre-operative treatment of Patient R.M. As to post-operative care, Petitioner alleges that Respondent failed to perform testing on the saphenous nerve when Patient R.M. complained of medial side numbness in the lower right leg, and failed to refer Patient R.M. to a neurologist for evaluation of a possible saphenous nerve injury. As noted above, Respondent employed a surgical technique by which he made a posterior incision in the knee, exposed the knee capsule, passed the suture from the inside to the outside of the knee, tying the suture under direct visualiztion. Respondent contended that use of this technique allowed him reasonably to assume that no injury to the saphenous nerve had occurred due to a suture being tied directly on it. This assumption explains why Respondent's post-surgery notes record his suspicions of a problem with the infrapatellar branch of the saphenous nerve. Respondent's technique would not have allowed him to observe an injury to the infrapatellar branch, because that injury would have occurred during placement of the surgical port on the medial aspect of the knee. Dr. Steinman testified that Respondent's observations were inconsistent with Patient R.M.'s complaints. He stated that the infrapatellar branch comes off the medial kneecap and travels in a medial to lateral direction. If the infrapatellar branch was interrupted, the area of numbness or abnormal sensation would have been on the lateral aspect of the patella, whereas the patient's complaints were along the anterior or medial aspect of the calf and ankle, outside the autonomous area of this nerve. Dr. Steinman testified that Patient R.M.'s complaints could lead only to the conclusion that the sartorial branch of the saphenous nerve had been jeopardized in some way. Dr. Steinman observed that Respondent appeared aware that there was a nerve problem, but that he was in error as to which nerve. Dr. Steinman testified that Respondent should have commenced some form of testing for a saphenous nerve problem no later than the October 11, 1993, visit, when she reiterated her complaints of decreased sensation along the medial aspect of her right calf and Respondent noted for the second time his suspicions regarding a saphenous nerve problem. Dr. Okun testified that if he had performed a meniscus repair and the patient presented these symptoms, he would probably have gone back into the knee and tried to snip the suture or at least explore the incision. However, he also testified that if he were comfortable that he had done everything properly and there was not a very high chance that he had trapped a nerve, he would wait for a period of three to six months to see if the problem would resolve on its own. Dr. Okun was unsure whether a definite standard of care could be stated for this situation. Dr. Okun also testified that whatever damage the nerve sustained was probably done at the time of the initial surgery, and would not get worse from having the constriction of the suture around it. He stated this was another reason why he might wait to perform a second procedure. Dr. Steinman strongly disagreed that the surgeon's degree of confidence in his work should play any role in his post-surgical treatment. The fact that the patient has complained of symptoms in a problematic area is evidence enough that there may be a problem, particularly where the complication is as common as this one, regardless of the surgeon's conviction that his suture missed the nerve. Dr. Goldberger testified that Respondent met the standard of care. Respondent was aware of the complaints of numbness and mentioned them and their severity in his notes. Dr. Goldberger stated that the saphenous is a sensory nerve and is not considered vital. Because the nerve has no motor function, the physician must rely on the subjective complaints of the patient regarding the symptoms. Some patients accept the symptoms and do not feel they are impaired by them. Dr. Goldberger testified that it was reasonable for Respondent to observe the patient's clinical course and pay attention to her complaints, without taking aggressive action. The weight of the evidence leads to a finding that Respondent might have been more aggressive in treating what he suspected was a saphenous nerve problem, and might have referred Patient R.M. to a neurologist to rule out a systemic problem, but that Respondent did not clearly deviate from the standard of care in choosing a more conservative course or failing to make a referral. Dr. Steinman severely criticized Respondent's post- surgical records in their failure to thoroughly document the sensory tests that Respondent testified he performed on Patient R.M. Respondent was not charged with failure to maintain adequate medical records. Thus, it is not necessary to address the merits of Dr. Steinman's critique of Respondent's medical records.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Medicine, enter a final order dismissing the April 24, 1997, Administrative Complaint against the Respondent, Steven A. Field, M.D. DONE AND ENTERED this 6th day of July, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2000. COPIES FURNISHED: John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Christopher J. Schulte, Esquire Shear, Newman, Hahn, Rosenkranz, P.A. 201 East Kennedy Boulevard, Suite 1000 Post Office Box 2378 Tampa, Florida 33601-2378 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue At issue in this proceeding is whether Katelyn Foley, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters Terry Gerstein-Foley (Mrs. Foley) and Myles Foley are the parents and natural guardians of Katelyn Foley (Katelyn), a minor. Katelyn was born a live infant on April 28, 1995, at Memorial Hospital, a hospital located in Hollywood, Florida, and her birth weight exceeded 2500 grams. The physician providing obstetrical services during the birth of Katelyn was Eric N. Freling, M.D., who was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Given the parties' agreement to the foregoing facts, what remains to resolve is whether the proof persuasively demonstrates that the anomalies with which Katelyn presents were occasioned by an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period" and, if so, whether such injury rendered her "permanently and substantially, mentally and physically impaired." Katelyn's birth At or about 5:15 p.m., April 27, 1995, Mrs. Foley presented to Memorial Hospital in labor. At the time, Mrs. Foley was post-term at 41 plus weeks, but her pregnancy was otherwise unremarkable. The obstetrical assessment on presentation reflects that contractions began at 12:30 p.m., April 27, 1995, and the membranes spontaneously ruptured at 3:30 p.m., with clear fluid noted. Vaginal examination revealed dilation at 2 to 3 centimeters, effacement at 50 percent, and the fetus at station -2. Fetal heart rate was recorded at 120 to 125 beats per minute. Mrs. Foley was admitted to the labor and delivery room at approximately 6:00 p.m., and an external fetal monitor was applied. Fetal heart rate was recorded as 120 to 130 beats per minute. Mrs. Foley labored through the evening, and at 10:45 p.m. vaginal examination revealed dilation at 4 centimeters, effacement at 70 percent, and the fetus at station -1. Fetal heart rate continued in the 120 to 130 or 130 to 140 beat per minute range, with accelerations. At 11:40 p.m., the monitor was disconnected and Mrs. Foley went to the bathroom. At 11:46 p.m., Mrs. Foley called the nurse, and heavy vaginal bleeding was observed. In response, Mrs. Foley was immediately put in bed on her right side and oxygen was administered. Internal fetal electrode was applied, and fetal heart rate was recorded at 116 to 126 beats per minute. Vaginal examination revealed dilation at 6 centimeters, effacement at 90 percent, and the fetus at station -1. Labor continued without any significant observations noted until 12:15 a.m., April 28, 1995, when variable decelerations were noted and decreased variability. Monitoring revealed the fetal heart rate at 118 to 128 beats per minute. Mrs. Foley was repositioned and administered oxygen. At 12:30 a.m., the fetal heart rate was noted at 120 to 130 beats per minute, with occasional late decelerations and decreased variability; however, the fetal heart rate was noted as difficult to track, as the internal electrode was not working well. Mrs. Foley was repositioned to her side and administered oxygen. At or about 12:57 a.m., vaginal examination revealed dilation complete, effacement complete, and the fetus at station +2 to +3. Consequently, although audibly the fetal heart rate was reassuring, Dr. Freling elected to promptly effect delivery because of the continuing difficulty in recording the fetal heart and uncertainty about its pattern. At 1:10 a.m., April 28, 1995, a vaginal delivery, with vacuum assistance, was effected. Placenta was delivered at 1:22 a.m., with no abruption noted. Consequently, Dr. Freling concluded the vaginal bleeding was heavy secondary to fast cervical dilation. Cord pH at delivery was 7.15, and Katelyn presented with an Apgar score of 4 at one minute, with heart rate being graded at 2, respiratory effort and reflex being graded at 1 each, and tone and color being graded at 0 each. At five minutes, Katelyn's Apgar score totaled 7, with heart rate and reflex being graded at 2 each, and respiratory effort, tone, and color being graded at 1 each. By ten minutes grunting and retractions were apparent, and Katelyn was transported to the new baby intensive care unit for monitoring incident to respiratory distress. Katelyn developed hyperbilirubinemia and remained hospitalized until May 5, 1995, when she was discharged to her mother's care. The findings regarding Katelyn's condition on admission to the neonatal intensive care unit and her course of treatment are described in the discharge summary as follows: HISTORY AND PHYSICAL: . . . Infant had few abrasions on buttocks, blood noted on scalp from an electrode site, ? craniotabes1/cephalohematoma2, decreased perfusion, weak pulses, poor aeration with rales and tachypnea3, soft, thin cord, slightly decreased activity of right arm, bilateral hip clicks (Left dislocatable) noted on admission. The rest of the physical examination was essentially normal for gestational age. ADMITTING DIAGNOSES: Vacuum extraction Respiratory distress R/O acidosis Probable craniotabes HOSPITAL COURSE: Respiratory distress: Infant initially presented with decreased aeration, with rales, & tachypnea which quickly resolved without intervention. . . . Neuro: Infant initially presented with ? craniotabes & decreased activity of right arm. Also with asymmetric crying facies with decreased motion of left angle of mouth. Dr. Mollestan consulted on 4-28 with CT showing ? bending of skull bones, negative bleeding. No follow-up needed. * * * Ortho: Presented with bilateral hip clicks with the left hip dislocatable. Consult with Dr. Reich on 4-29 showed bilateral CDH treated with a pavlik harness. Infant to be followed-up 1 month after discharge. . . . * * * DISCHARGE: Discharge was on 5-5-95 with weight 2870 gms and head circumference 35 cm. Physical examination showed craniotabes, bilateral cephalohematomas, dry scalp probe site, holds neck to left side - improving, hips dislocatable - pavlik harness in place, icteric, otherwise was within normal limits. Feedings are Enfamil with Iron ad lib q 4h. Medications include Bacitracin to scalp probe site. Last Hct on 5-3 was 38.5%. Dr. Budowsky will be the Pediatrician following the infant after discharge.4 Other follow up appointments include outpatient PEIP, Ortho Dr. Reich on 5-8 also with ultrasound, Neuro Dr. Brown 1 month. DISCHARGE DIAGNOSES: 41 week newborn Transient tachypnea of the newborn Vacuum extraction Sepsis ruled out Congenital dysplasia5 of hips Hyperbilirubinemia Craniotabes Katelyn's subsequent development and medical care Consistent with the discharge summary, Katelyn was followed orthopedically by Dr. Reich for dysplasia of the hips, and progressed well with the harness. At seven weeks the harness was removed, and Dr. Reich observed that range of motion and ultrasound were normal. Katelyn was last seen by Dr. Reich on October 2, 1995, for a follow-up visit. At that time, Dr. Reich noted she had a normal exam of her hips, and she was essentially normal on x-ray. Also consistent with the discharge summary, Katelyn was examined by Dr. Stuart Brown, a pediatric neurologist, on June 9, 1995. That examination revealed: Physical examination revealed a lovely five-week old baby, who weighed 11 pounds. Her head circumference was 38 cm. I did not measure her length, which appeared appropriate for her weight. Facial features were normal. The fontanel was depressed and the sutures were normal. A small, 1 cm., linear, reddish area was noted in the right parietal region, without any evidence of edema, and with the underlying skull feeling normal to palpation. There was no evidence of hematoma. The neck was supple with a full range of movement. The child was noted to be in harness to alleviate a hip dislocation. The heart was normal to auscultation and the abdomen was soft without any organ enlargement. The spine was straight and the skin did not show any pigmentary abnormalities. The neurological assessment revealed full extraocular movements with equal and reactive pupils, and a normal right optic disc. The facial musculature was normal and the tongue was normal, and cry was lusty. Midline face and palate were normal. Muscle tone was normal in the extremities and the deep tendon reflexes were equal and active. Plantar responses were bilaterally flexor. Moro response was active and symmetrical, and tonic neck reflexes were fragmentary. Vestibular responses were normal. Suck was normal. Seizures and involuntary movements were not seen. IMPRESSION This child is neurologically normal, without showing any evidence, at this time, of any residual impairment from the birth trauma and linear skull fracture. She is not in need of any neurological follow-up, but I will be pleased to see her if the need arises. On August 30, 1995, on the referral of her pediatrician, Katelyn was seen by Dr. Michael Jofe, a board certified orthopedic surgeon, for a consultation. Dr. Jofe's observations and conclusions are set forth in his report of August 30, 1995, as follows: I saw your patient, Katelyn Foley, in my office on August 30, 1995. Katelyn is a 4- month old baby girl who you referred for evaluation of her neck. Katelyn was born with subluxed hips and was treated with a Pavlik harness. Through an early intervention program she has been receiving physical therapy and Mary Flanders, her physical therapist, noticed that her head wasn't right. She is sent today for evaluation. She was a difficult pregnancy and delivery and developed what sounds like a cephalhematoma. She was hospitalized in the Newborn Intensive Care Unit for eight days after birth. Otherwise, her family and past medical history is unremarkable. On exam she tends to hold her head with her left ear towards her left shoulder and her chin towards her right shoulder consistent with a left torticollis.6 I can correct her to neutral but not much beyond. The remaining surface exam of her spine is unremarkable. She has a full range of motion of her upper and lower extremities. She has a negative Ortolani, Barlow and Galeazzi's sign to her hips. The neurologic exam was normal including motor, sensation, and reflexes. There was no evidence of clonus and both toes are downgoing. Straight leg raising is negative bilaterally and the abdominal reflexes are normal. She has a thickening of the sternocleidomastoid of her neck but not severely so. I x-rayed Katelyn's neck today and the x-rays are basically unremarkable. Katelyn therefore has a history and physical exam consistent although not diagnostic of torticollis. In general, there is a pseudotumor caused by thickening of the sternocleidomastoid that occurs within the first few weeks to few months of life and then gradually resolves. However, the deformity remains. I don't feel a definite pseudotumor and therefore I am going to check an MRI to make sure there is no other underlying lesion. However, I suspect that this is torticollis and we will need to direct physical therapy towards that. Following further examination, Dr. Jofe concluded Katelyn's presentation was most consistent with mild torticollis, and instructed her parents on physical therapy and also recommended formal physical therapy. Dr. Jofe continued to monitor Katelyn's progress, as related to mild torticollis and, following Dr. Reich, as related to her hip development. Katelyn progressed well with therapy, and according to the last observations of Dr. Jofe in a report to Katelyn's pediatrician on May 22, 1996, her condition was as follows: . . . she is continuing to do well. Her neck is essentially straight. When she is tired her parents relate that she tends to tilt a little to the left but nothing severe. She has full range of motion of her head and neck and moves it completely normal in the office. Her hip exam is normal also . . . [and] [h]er hip x-rays show her hips to be developing well. . . . In addition to the foregoing consultations, Katelyn was also referred to Children's Diagnostic and Treatment Center of South Florida (Children's Diagnostic Center) for developmental evaluation. The first evaluation, July 26, 1995, revealed appropriate mental and psychomotor development for her age; however, extreme weakness of the neck with significant head lag was reported. Katelyn was also noted to have weak upper and lower extremities, and it was felt she would benefit from physical therapy. Katelyn's next developmental screening at Children's Diagnostic Center was October 30, 1995. That evaluation concluded: Katelyn's performance on the Bayley Scales of Infant Development II was within normal limits on the Mental Scale and mildly delayed on the Psychomotor Scale. At this time, it appears she has some difficulties in the area of gross motor functioning. According to mother, an orthopedic physician and a physical therapist are currently providing services to address these concerns.7 Mother was encouraged to have Katelyn practice picking up small items at home to enhance her fine motor skills. According to the proof of record, the last developmental screening at Children's Diagnostic Center occurred on April 1, 1996. The results of that screening were similar to the previous screening and revealed: Katelyn's performance on The Bayley Scales of Infant Development II was within normal limits on the Mental Scale and mildly delayed on the Motor Scale. She currently sees an orthopedist and receives physical therapy once a week. Katelyn's gross motor difficulties were shared with the clinic staff to address further. Finally, in May 1996, having diagnosed Katelyn with developmental delay, her pediatrician referred her to Dr. Robert Cullen, a pediatric neurologist, for consultation. That consultation apparently occurred in July 19968; however, if it was ever reduced to writing, its results are not of record. But, Katelyn's follow-up consultations with Dr. Cullen on March 26, 1997, and September 8, 1997, are of record. (Petitioner's Exhibits 3 and 4). Dr. Cullen's report for his neurologic consultation of March 26, 1997, contained the following pertinent observations: This 23-month-old young lady was last seen by me back in July. She does indeed have a picture of an atonic diplegia.9 She also had a hypoplasia10 or absence of the left depressor anguli oris muscle. Her general health since her last visit has been good. . . . She started to walk independently at 18- months. She now has a 12 word vocabulary. She tries to dress herself. Her motor skills are still behind and tone is behind . . . She presents now for a neurological evaluation. PHYSICAL EXAMINATION now showed her to be a fairly adequately nourished and developed 23- month-old young lady who was in no acute distress. . . . She still had loose heel cords and some loose hip abduction . . . NEUROLOGICALLY, she was alert. She used an occasional word. She cried loud and lustily to noxious stimuli, but could be quieted quite readily when held by her father. Cranial nerves II-XII did show the pupils to be equal and regular and they did react to light. The extraocular eye movements were full. The right disc was flat. I did not get a good look at the left disc. She had full visual fields. There was no facial weakness. She still did not depress the left corner of the mouth fully, but this had improved from in the past. She had adequate auditory responses, a good gag, good palatal and pharyngeal movements and the tongue did remain midline. MOTOR EXAMINATION showed adequate muscle bulk. Tone was still a bit decreased. Grasp and traction were fairly good. She was able to walk and run. I did not see any asymetry of her arm movement when running. There was still a minimal degree of genu recurvatum.11 SENSORY EXAMINATION was intact to pin. . . . The plantars were indeed flexor. CEREBELLAR EXAMINATION showed no real dysfunction with finger-to-nose type movements. IN SUMMATION, Katelyn is a 23 month-old-young lady with a picture of an atonic diplegia and a development language delay. She does indeed have a hypoplasia or absence of the left depressor anguli oris muscle. I think she is improving in terms of her motor skills. Her language still remains behind. She has some minimal genu recurvatum. I do not think we need to be in a formal program of therapy at this time. I would like to see her here in December to see how she is doing. . . . Katelyn's next visit to Dr. Cullen was on September 8, 1997. The report of that consultation contained the following pertinent observations: This 28 1/2-month-old young lady was last seen by me back in March. She does indeed have a picture of an atonic diplegia. She also had a developmental language delay. She had a hypoplasia or absence of the left depressor anguli oris muscle. Her general health since her last visit has been good. . . . Her mother said she started three-word phrases at about 27-months. She does not really dress herself yet. She goes to a gym class, but is not in school. She is not toilet-trained. . . . Her muscles are a little bit stronger. Her mother feels that she is a little less agile than other children in the gym class. Her behavior is good. She is no longer in therapy. There is litigation and they are represented by Mr. Schlessinger's firm. She does present now for a neurological re-evaluation. PHYSICAL EXAMINATION now showed her to be a fairly adequately nourished 28 1/2-month-old young lady who was in no acute distress. . . . There were no heel cord contractures. She had somewhat loose ankles and loose knees and adequate hip abduction. NEUROLOGICALLY, she was alert and apprehensive initially. She pointed to a number of pictures in a small coloring book and could identify most of them. I could not really get her to count at this point. When she was upset, she was indeed quite stubborn. Cranial nerves II-XII did show the pupils to be equal and regular and they did react to light. The extraocular eye movements were full. The left disc was flat. I did not get a good look at the right disc. She had full visual fields. There was no facial weakness or asymmetry. She had adequate auditory responses, a good gag, good palatal and pharyngeal movements and the tongue did remain midline. MOTOR EXAMINATION showed adequate muscle bulk. Tone was still a bit decreased. When walking, her gait was still a little bit unsteady and she had some tremulousness of her upper extremities. SENSORY EXAMINATION was intact to pin. . . . The plantars were indeed flexor. CEREBELLAR EXAMINATION showed no real dysfunction with hand movements. It should be mentioned that we did still have a failure to fully depress the left side of the mouth. IN SUMMATION, Katelyn is a 28 1/2-month-old young lady. She has a picture of an atonic diplegia which is clearly improving. She also has hypoplasia or absence of the left depressor anguli oris muscle. She does have a developmental language delay. I have suggested to her mother now some things that she could do to improve language at home. I do think she should be in a Mommy and Me program at least 1/2 a day a week which would improve language and improve behavior. We will try and see her in a 6-month time period and see how she is doing. The cause and significance of Katelyn's condition At hearing, neither Petitioners nor Respondent elected to call or present testimony from any of Katelyn's health care providers, including the physician who provided obstetrical services at birth, Katelyn's pediatricians, Katelyn's pediatric neurologists, Katelyn's orthopedic surgeons, or any of the other myriad of health care providers associated with her care, diagnosis and treatment. The parties did, however, introduce into evidence medical records dealing with Katelyn's birth and subsequent development and, presumably, those records adequately address the circumstances surrounding her birth and development, as well as the findings and opinions of her health care providers. Those circumstances, findings, and opinions are addressed supra. Notably, among the observations and opinions of those who treated Katelyn, there is no suggestion or finding that she suffered a debilitating neurologic injury at birth, whether by oxygen deprivation or otherwise. To the contrary, when called upon to address Katelyn's neurologic condition, it was noted as normal. Moreover, Katelyn's more pronounced anomalies are congenital or developmental in origin. Finally, there is no suggestion or finding by Katelyn's treating physician's that she is "permanently and substantially mentally and physically impaired." Rather, where observations are made, her mental condition is noted as age appropriate, and her physical condition as mildly delayed and improving. Apart from the circumstances, observations, and opinions reflected in the medical records, the parties offered the testimony of three physicians to address whether Katelyn "sustained an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," which rendered her "permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. The physicians selected by Petitioners were Doctors Paul Gatewood and Houchang Modanlou, and the physician selected by Respondent was Dr. Lance Wyble. None of these physicians could be characterized as treating physicians, and none had examined Katelyn.12 Dr. Gatewood is a board certified obstetrician, and Dr. Modanlou is a board certified neonatologist. Each of these physicians, based on their review of the medical records, opined, without elaboration or explanation, that Katelyn suffered an injury to the brain caused by oxygen deprivation and trauma during the course of labor, delivery, or resuscitation in the immediate post-delivery period, which rendered her permanently and substantially mentally and physically impaired. Dr. Wyble, like Dr. Modanlou, is a board certified neonatologist. It was Dr. Wyble's opinion, based on his review of the medical records, that Katelyn's presentation at birth was not consistent with a brain injury, whether caused by oxygen deprivation or mechanical injury, suffered during the course of labor, delivery, or resuscitation in the immediate post-delivery period, and therefore her current condition must be attributable to some other cause or etiology. In so concluding, Dr. Wyble, contrasted with Doctors Gatewood and Modanlou, offered an explanation, based on the medical evidence, as to why he had reached such a conclusion. That explanation was credible, and was not addressed or rebutted by Petitioners. The explanation offered by Dr. Wyble was that, based on Katelyn's clinical course, there was no evidence of organic brain damage within the 24-hour period preceding delivery and the 5 or 6 day period thereafter. Such conclusion was predicated on numerous inconsistencies between Katelyn's presentation and the clinical findings one would expect had she suffered an injury to the brain, whether by oxygen deprivation or trauma. First, had Katelyn suffered such an injury during that period, one would reasonably expect evidence of damage to multiple organ systems, including the kidneys, heart, and lungs. Here, no such damage was evident. Additionally, evidence in the blood work mitigates against a finding of brain injury during this period. In this regard, it is observed that Katelyn's lymphocyte count at one hour of life was 10,442, but by the eleventh hour of life it was 7,667. Had an injury occurred during labor or delivery, the lymphocyte count should have remained above 10,000 beyond the eleventh hour of life. Additionally, the blood work related to renal function showed the serum sodium to be normal. Had an injury been suffered, the injury would have affected kidney function and the serum sodium would be low. Moreover, mitigating against injury to the kidney, the infant's urine output was excellent. Finally, Katelyn's clinical presentation following birth did not evidence any neurologic changes suggestive of injury to the nervous system. Specifically, had she suffered a neurologic injury at birth, or even shortly before birth, one would expect her neurologic status to be diminished, with poor responsiveness, for about 12 hours. Here, the infant was neurologically active and normal by one to two hours after birth. Moreover, had she suffered such a neurologic injury, beginning around 12 hours of birth and extending up to 24 hours, one would expect the infant to become hyperresponsive, with irritability, and she would most likely exhibit seizure activity. Here, Katelyn was neurologically normal during such periods. Given the proof, it cannot be concluded that, more likely than not, Katelyn's anomalies are associated with a brain injury caused by oxygen deprivation or mechanical injury occurring during labor, delivery, or resuscitation in the immediate post-delivery period, as opposed to some other etiology.13 Indeed, the more credible and persuasive proof is to the contrary. Similarly, the proof is not compelling that Katelyn is permanently and substantially mentally and physically impaired. In so concluding, the contrary opinions of Doctors Gatewood and Modanlou, have not been overlooked. However, the records on which they based their opinions do not reasonably support their conclusions. Consequently, the opinions of Doctors Gatewood and Modanlou are rejected as lacking in credibility and persuasiveness.
The Issue The issue for consideration is whether Respondent's license as a Doctor of Veterinary Medicine in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, the Respondent was a licensed veterinarian in Florida practicing under license number VM 2884, and the Board of Veterinary Medicine was and is the state agency charged with the responsibility of regulating the practice of veterinary medicine in this state. On July 22, 1988, Bonnie Judd, owner of a golden retriever puppy, "Einstein", accidentally backed over the animal with her automobile injuring it badly. She immediately took the puppy which was, at the time, approximately 4 or 5 months old, to the Respondent for treatment. Respondent examined the dog and informed Ms. Judd that the animal's leg was broken and that surgery would be required to repair it. He did not then indicate any other injuries and at no time did he suggest taking the animal to the university hospital for evaluation. He advised her to leave the animal with him and had her sign certain documents including an informed consent form which indicated that Respondent was to fix a "broken tibia only." Ms. Judd contends that that notation was not on the form when she signed it and it is so found. He did not then suggest putting the dog to sleep, either. At approximately 4:30 that same afternoon, Respondent called Ms. Judd and told her she should pick the animal up because no one would be at the clinic all weekend. When she arrived at Respondent's facility, he informed her that the dog had also been dipped for fleas, his shots had been updated, and a pin had been placed in the left rear leg. Respondent estimated the prognosis for healing of the broken tibia would be between 4 and 6 weeks. At this time Ms. Judd paid the Respondent his fee of $350.00, $200.00 of which was by post dated check, and an additional $15.00 for medications. At that point, Respondent's wife updated Einstein's vaccination records to reflect the shots which had been given. During the period between July 22, 1988 and August 16, 1988, Ms. Judd returned Einstein to the Respondent for treatment approximately one or two times a week. Toward the end of that period, Respondent, for the first time, informed Ms. Judd that Einstein's injuries were far more extensive than merely a broken leg. During these follow up visits, however, the Respondent would check the broken tibia and its wound, changing the bandage, administering antibiotics, and changing the cast. On most of these visits, Respondent reported to Ms. Judd that the leg was healing and the animal's condition was satisfactory. Respondent claims that at the very beginning, he told Ms. Judd of the animal's other injuries and that it should be taken to the university's veterinary hospital for evaluation and possible euthanasia. The copies of his records, provided as evidence, reflect notations of other injuries and support his claims, but they are photo copies of the actual documents and cannot be properly examined for authenticity. However, the evidence shows that Respondent treated the animal for the broken tibia for several weeks after the initial visit, notwithstanding, he claims, she only wanted the animal treated and kept alive long enough for her husband to come home and make the decision. This would seem to indicate the treatment for the tibia was the chosen treatment and not merely a stop-gap. Further, Ms. Judd claims that it was only when she decided to seek another opinion that Respondent mentioned the other injuries. This is a question of whom to believe - Ms. Judd, who admits to having lied to her husband about what happened to another dog she accidentally killed, or Respondent, who, it appears, denies any impropriety though evidence to the contrary indicates otherwise. On balance, it is found that Respondent did not advise Ms. Judd of any additional injuries until late in the course of treatment and neither recommended hospitalization nor consideration of euthanasia early on. Also during this period, he provided Ms. Judd with antibiotics and tranquilizers to administer to Einstein but the medications were improperly packaged and labeled. They did not contain the necessary information relating to drug name, drug strength, quantity, or directions for use and they were not in child proof containers. According to a departmental expert witness, this was below professional standards and it is so found. As previously found, during the last or next to last visit, Dr. Helmy informed Ms. Judd that the animal also had a broken pelvis but that that injury should not be dealt with until the broken leg was healed. He indicated that when appropriate, the pelvis could be corrected by further surgery. Subsequent to her last visit, on August 16, 1988, Ms. Judd received a bill for an additional $350.00 for the periodic follow-up visits mentioned. Ms. Judd, seeking another opinion, took Einstein to the office of Dr. Charles MacGill in Crystal River on August 17, 1988. At Dr. MacGill's advice, she requested the animal's medical records and all x-rays from Dr. Helmy which he refused to provide. He indicated that the only X-rays he had taken were those made after surgery, which had never been developed. He also indicated he did not need to take prior x-rays because he was able to assess the animal's injuries with his hands. There is some question as to the propriety of inserting a pin into the dog's tibia to reduce a closed fracture without the use of an x-ray, and while the experts consulted indicated it can be done, it is not good practice and is below professional standards. It is so found. During his examination, Dr. MacGill noted that Einstein could not walk. His back leg muscles had atrophied and there was a suppurating hole showing gross infection in the left rear tibia. A rectal examination confirmed Dr. Helmy's diagnosis of a broken pelvis. After taking several x-rays of the animal, Dr. MacGill advised Ms. Judd that in addition to the broken tibia and fractured pelvis, the distal femur was broken; the tibial fracture had not properly healed and showed signs of osteomyelitis; and there was a fracture of the fifth lumbar vertebra which was exerting pressure on the spinal cord. Dr. MacGill prescribed several antibiotics for the animal and, because of the spinal fracture, advised Ms. Judd she should take Einstein to the University of Florida School of Veterinary Medicine for evaluation. Ms. Judd readily agreed. Ms. Judd took Einstein to the university hospital on August 22, 1988 and left him there for an assessment of the damage. At the same time, she signed a consent form authorizing euthanasia in the event the opinion of the physicians was that the dog's nerve damage was too extensive for him to survive. Thereafter, she was advised that the nerve damage incurred was irreversible and extensive, and the animal was put to sleep. Examination of the animal at the hospital indicated he was unable to stand on his rear legs; he had neurological deficits in the right rear leg; evidenced pain on palpation of the left shin; and had a grinding in the hip joints. The left rear tibia showed an open, infected wound, and a rectal examination confirmed the pelvic fracture. X-rays taken at the hospital during this examination revealed that the only fracture which had been treated was the fracture of the tibia. This x-ray also confirmed the existence of osteomyelitis in that wound. In the opinion of Dr. Robert Parker, associate professor of surgery at the school, and the individual who saw Einstein there as attending surgeon, the technique of pin placement utilized by Dr. Helmy in reducing the fracture to the tibia was adequate, but Dr. Parker was concerned that the fracture was not stable. He concluded as well that the contamination of the wound, either at the time of fracture or at the time of surgery, could not be controlled due to the instability and poor drainage of the fracture site. Dr. Parker formed no opinion as to the Respondent's compliance with the community standards. He pointed out that he saw the dog four weeks after injury and was concerned at that time that only one of several fractures had been repaired. The one repaired by Dr. Helmy was the least serious and, in Parker's opinion, the others should have been treated first. He does not know why they were not treated but opined they should have been treated as soon as possible after they were incurred, if the condition of the animal permitted. Referring to the tibia fracture reduction, however, while minimally acceptable, it was not done in the manner that he, Dr. Parker, would have utilized. He felt that the femur fracture should have been treated first and also that the use of a splint in the case of an open wound, as here, contributes to the high risk of infection. This is what happened. Had the dog been brought to the hospital initially, a team would have seen it. Normally, a single practitioner cannot render the same type of treatment because of a lack of experience or equipment, but the appropriate thing for Respondent to have done would have been to stabilize the animal and refer it to a hospital or a team treatment facility. He did not do this. Here, in Parker's opinion, Respondent's repair of the tibia was not the appropriate first thing to do. Had the tibia not been treated, it is probable the infection would not have occurred. The initial fracture was not an open fracture but a closed fracture, and infection was given access by the procedure utilized by Respondent in opening the wound for the insertion of the pin. In Dr. Parker's opinion, the tibia could have been stabilized without a pin so that the animal could be transferred to a team treatment facility. The test, however, is not whether Respondent's treatment met optimum criteria. Here, the failure to refer to a team facility was not actionable error. Any error, if established, must relate to the Respondent's choice of procedures and his performance of them. While each of the injuries alone was not fatal, taken together they were ovehelming and euthanasia would have been a viable option from the very beginning. The neurological problems could have been repaired over a long period, but Dr. Parker would not normally wait for that to decide to do something regarding the fracture. Since the tibia was the fracture of lowest priority, in Parker's opinion, Respondent cannot legitimately claim he did this while waiting for neurological resolution. In this case, since he did not see the x-rays taken early on, Dr. Parker cannot say if Respondent's use of a pin was proper or not. Normally, however, a splint, as used by Respondent, is not used with a pin insertion. If there is an opening of the body, as here, it should not be combined with external stabilization which can introduce infection. While the hip joint fracture had healed by the time Parker saw the animal, there are indications that the healing was imperfect and additional arthritis would probably have set in, requiring further surgery. In this case, the untreated fractures were very bad and should have been treated surgically right away or the animal should have been put to sleep. Even if all had been done properly, however, the dog probably, in the opinion of Dr. Parker, would have had nerve damage and the prognosis for recovery was guarded. According to Dr. MacGill, who examined Respondent's records regarding his treatment of Einstein, Respondent administered several drugs for the dog. Two of these, the antibiotic and the tranquilizer appear appropriate, but the third, Prednisone, is a cortisone derivative which is not indicated or appropriate when infection is present. Whereas Dr. Parker was unwilling to state an opinion as to whether Respondent's treatment of Einstein met minimum standards, Dr. MacGill is not at all reluctant. In his opinion, were he to have treated the animal himself initially, he would have put a bone plate on the femur, done minimal repair with regard to the pelvis, stabilized the back to relieve pressure on the vertebrae, and treated the tibia. Accomplishment of all these is required to meet minimum standards, in his opinion, and Respondent's treatment did not, he believes, meet these standards. It is so found. After the dog was put to sleep, Ms. Judd consulted an attorney, Mr. Travis, who attempted to obtain Einstein's medical records from Respondent. Respondent was not cooperative and declined to furnish them initially though he ultimately did so. Dr. Greene, an expert in veterinary medicine practicing in Tampa, reviewed this case through an examination of the records maintained by all parties and heard the testimony at the hearing. In his opinion, the care rendered by Dr. Helmy constituted negligence from the point that Einstein was operated on. While there is some indication that x-rays may have been taken, showing multiple fractures, surgery under a "questionable anesthetic", one which quiets the dog but does not put him out, when the surgery is not going to serve a valid purpose, along with the use of cortisone, with its resultant reduction of the body's ability to fight infection, after surgery, all constitute inappropriate conduct. Some of the medications prescribed by Respondent were contraindicated for the purpose used here. Inovar, used as an anesthetic during reduction of the tibia fracture, was inappropriate. Enough ampicillin was given for only five days. Prednisone, (cortisone), reduced the animal's ability to fight infection. The anterobe is an antibiotic which would be good to fight infection if prescribed in the appropriate amount which it was not, here. In light of the osteomyelitis, which was more than a mere infection, the amount prescribed was totally insufficient. It should be noted, however, that Ms. Judd did not administer all the medications given by Dr. Helmy. Had she done so, the infection may not have come about or been so severe. In total, Dr. Greene does not believe Respondent acted properly here. Helmy did not asses the other injuries and should not have operated on the tibia as the sole action taken. The other injuries were more serious and were neither treated nor addressed. Further, his review of the records maintained by Dr. Helmy regarding this animal shows they omit any reference to replacing sutures which the dog took out and they omit any mention of a treatment plan. The notes do not show any injuries other than the broken tibia and do not mention the femur, the vertebrae, the pelvis or any other injuries. All medical records should identify and assess all conditions regardless of whether they are treated or not. They cannot be ignored. As was mentioned previously, however, the note of 7/22/88 in Respondent's records as to Einstein does refer to a broken femur shaft and problems with the pelvis, in addition to the tibia fracture. Taken together, the Respondent's treatment constitutes neglect and did not meet minimum standards for the practice of veterinary medicine in Florida. By a Final Order dated July 4, 1987, the Board of Veterinary Medicine found Respondent guilty of violating Chapter 474, Florida Statutes, and, inter alia, placed him on probation from August 4, 1987 to August 3, 1991. The Order also provided that if, during the period of probation, the Respondent is found guilty in a Final Order of the Board of violating any provision of Chapter 474, his license would automatically be suspended.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license to practice veterinary medicine in Florida be suspended for a period of two years and that thereafter he be placed on probation for an additional period of two years under such conditions as are prescribed by the Board of Veterinary Medicine, and that he pay an administrative fine of $1,500.00. RECOMMENDED this 12th day of January, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2464 The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. & 8. Accepted and incorporated herein. 9. - 11. Accepted and incorporated herein. 12. - 13. Accepted and incorporated herein. Accepted and incorporated herein. & 16. Accepted. Accepted and incorporated herein as a finding, not as "it appears." Accepted and incorporated herein. Not a Finding of Fact but a recitation of testimony. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein except for the conclusion as to what Respondent found and what he told Ms. Judd. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the evidence. & 9. Rejected as contra to the evidence. 10. & 11. Accepted and incorporated herein. 12. & 13. Rejected as contra to the evidence. 14. & 15. Accepted and incorporated herein. Accepted as to what Respondent did but rejected as to his reasons for failing to treat the other injuries. Rejected. There was no discussion about taking the animal to the University or other veterinarian. & 19. Accepted and incorporated herein. 20. - 22. Accepted and incorporated herein. Accepted. Rejected. & 26. Accepted. 27. - 34. Accepted and incorporated herein. 35. - 39. Accepted and incorporated herein. Rejected. & 42. Accepted and incorporated herein except for the last sentence in paragraph 42 which is rejected. Accepted. - 47. Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact but a comment on the testimony. Not a Finding of Fact but a comment on the testimony. Last sentence rejected. Balance merely a recitation of testimony. Merely a comment on the testimony. Accepted. Accept. Rejected. & 57. Rejected. Accepted. Rejected as merely comment on testimony. Rejected as contra to the evidence. 1st and second sentences accepted. 3rd sentence rejected 4th through 6th sentences rejected. Balance rejected. 1st sentence accepted. 2nd sentence accepted but only after the tibia was set. Third sentence accepted. Accepted. COPIES FURNISHED: Laura P. Gaffney Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William E. Lackay, Esquire Post Office Box 279 Of Flotifs Building Highway 31 North Bushnell, Florida 33513 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Biedermann Executive Director Board of Veterinary Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Kayley was born January 26, 2009, at Winnie Palmer Hospital in Orlando, Florida. She weighed 2,928 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records of Kayley. In an affidavit dated July 9, 2012, Dr. Willis opined as follows: Based upon my education and experience, it is my professional opinion, within a reasonable degree of medical probability that Kayley Jazzmine Jimenez-Sanchez did not suffer a "Birth-related Neurological Injury" as defined by Florida Statutes Section 766.302(2) as there was no oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post delivery period which resulted in injury to Kayley's brain or spinal cord. Attached to Dr. Willis' affidavit was a report detailing his findings based on the medical records of Kayley as follows: Fetal heart rate (FHR) monitoring on admission shows a normal baseline heart rate of 145 bpm. The pattern is reactive. The FHR monitor strip does not show any fetal distress prior to delivery. Cesarean section delivery was done without difficulty. Birth weight was 2,928 grams (6 lbs 7 oz's). Apgar scores were 4/8. Umbilical cord blood gas was normal with a pH of 7.28 and base excess of -1.9. The baby was taken to the nursery. Difficulty with feeding occurred with emesis after attempting to feed. X-Ray showed a dilated loop of bowel. Gastorgrafin enema was done for evaluation and identified Small Left Colon syndrome. Neurology evaluation at 2 days of age was done for jitteriness. Exam shows abnormal muscle tone. EEG on DOL 2 was normal. Head ultrasound also had normal findings. Skull X-Ray showed asymmetry of the skull bones. MRI on DOL 3 identified dilation of the left lateral ventricle. There were no findings suggestive of hypoxic ischemic encephalopathy. Genetic evaluation was done for the above findings and was negative. Chromosome analysis was normal. Genomic hybridization array was negative. In summary, there was no fetal distress during labor. Delivery was by Cesarean section due to breech presentation. The newborn was not depressed. Umbilical cord blood gas was normal with a pH of 7.28. The baby was identified to have congenital malformations, including Small Left Colon syndrome and dilation of the left ventricle in the brain. MRI did not suggest hypoxic ischemic brain injury. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery or the immediate post delivery period. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that Kayley did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or immediate post- delivery period is credited.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaints?
Findings Of Fact Respondent Patrick J. McCarthy has practiced obstetrics and gynecology in Tallahassee, Florida, since 1976. He "qualified as a doctor in 1958" (T.215) at the University of Wales, did residencies in Canada, including three years in obstetrics and gynecology at McGill University, and practiced in New Hampshire, before coming to Florida, where he is duly licensed to practice. Board certified here and abroad, Dr. McCarthy now delivers 200 to 250 babies a year. Over his career, he estimates, he has delivered 7,000 to 8,000 infants. T.225. In 1981, he "recertified in obstetrics and gynecology in the American boards." T.236. C.H. On November 1, 1984, Dr. McCarthy admitted C.H., a 23-year old mother of one whom he had been seeing in his office during her second pregnancy. Labor had begun shortly after midnight, about five hours before C.H. arrived at the hospital. At quarter past six that morning, when C.H.'s cervix had dilated to a diameter of seven or eight centimeters, respondent did not accede to C.H.'s request for epidural anesthesia. At 6:36 a.m., however, C.H. received Demerol and Phenergen, medicines Dr. McCarthy ordered, and later got local anesthesia, a "pudendal block" designed to numb the area in which an episiotomy was eventually performed. Four minutes later C.H. was taken to the delivery room. C.H.'s cervix was fully dilated by ten of seven. At 6:58 a.m., Dr. McCarthy applied a vacuum extractor, but he did not succeed in delivering the baby's head until 7:20, after he had resorted to low forceps. His head out, the baby's shoulder lodged behind his mother's pubic symphysis. All ten pounds and seven ounces were stuck. Once the head is delivered, the rest of the baby should be delivered within five or six minutes to avoid the risk of damaging or losing the child. The umbilical cord's function can be compromised if it is pinched between the baby and strictures in the birth canal. At this point, Dr. McCarthy performed what he called a Wood's maneuver. Wood's maneuver, also known as the corkscrew maneuver, was unquestionably acceptable practice at the time, if properly performed "by applying pressure on the back of the [baby's] shoulders." T.134. Currently the preferred initial response to shoulder dystocia is to bend and raise (if she is supine) the mother's legs to reposition the pubes. Named after a Dr. McRoberts, this approach was used in Tampa in 1984, but was apparently unknown to Dr. McCarthy at that time. In describing C.H.'s baby's birth, which took place at 7:23 on the morning of November 1, Dr. McCarthy wrote in the chart: "Marked shoulder dystocia -- shoulders rotated through 180o." Joint Exhibit No. 1. Later, asked about these events while under oath, he answered: I rotated the head and shoulders. Q. How did you do that? A. Thats called -- it's a thing called Wood's maneuver, where you are using -- you rotate the head so that the shoulders will follow it. The posterior shoulder then comes under the symphysis of the pubic. It's lower than the anterior. When you have that, then you have the baby up. Q. And in that process do you place a downward pull on the baby's head? A. No, you rotate. . . . Q. From the process of this delivery was there any injury to this baby? A. Yes, the baby had a brachial plexus palsy. Q. How did the brachial plexus palsy occur? A. Presumably when I turned the head, it stretched the nerves in the brachial plexus at the base of the neck. Q. That would have been when you turned the head in the last maneuver that you attempted or would that have been in the first maneuver when you are pulling down on the head? A. Usually when you turn the head. Q. In this case do you know when the injury occurred? A. Usually it happens when you turn the head. It's a twisting motion, because this is the greatest stretch motion. Petitioner's Exhibit No. 2, pp. 51-3. Dr. McCarthy's testimony at hearing that he did not turn the baby's head (except by turning the baby's shoulders) in performing what he called a Wood's maneuver has not been credited. Whether or not (as Dr. McCarthy assumed) the twisting caused the brachial plexus palsy with which the child is afflicted, rotating the baby's head "so that the shoulders w[ould] follow it" was a departure from minimally acceptable practice. On this point, every expert who testified was in agreement. The records do not indicate whether C.H. was catheterized before her delivery. Presumably she was not, but petitioner did not allege and the evidence did not show that she needed a urinary catheter. Petitioner did not establish any dereliction on respondent's part in his keeping of records on C.H. or her delivery, aside from the elliptic description he gave of his rotary manipulation. M.B. Before the day she was delivered, M.B. had been under the care of M. J. Moreton, M.D., who was apparently unavailable at twenty past eleven o'clock on the morning of October 9, 1984, when M.B., then the 28-year-old mother of one child, arrived at Tallahassee Memorial Regional Medical Center. Irregular contractions had begun earlier that morning, and persisted until that afternoon, when Dr. McCarthy, who had undertaken M.B.'s care, directed that she be given a drug "to get her into good labor." Joint Exhibit No. 2. The drug to induce regular contractions was administered at four o'clock. She received epidural anesthesia at intervals. Vomiting, begun at ten o'clock that night, a half hour before her cervix was fully dilated, interfered with M.B.'s ability to push. Sporadically, the fetal monitor indicated pulse rates as low as 70. Dr. McCarthy used a vacuum extractor to deliver the baby's head, and encountered shoulder dystocia. At hearing, Dr. McCarthy recounted his use of a procedure called Hibbald's maneuver, one of a number of accepted techniques for dealing with shoulder dystocia: . . . I told the nurse to apply fundal and suprapubic pressure and I grasp[ed] the head and pulled it down approximately a forty-five degree angle . . . I was applying moderate traction to the head and the baby delivered. T.258-9. Two or three minutes after the delivery of the head, M.B.'s baby was born at 10:47 p.m. on October 9, 1984. "The only unusual thing about the baby, apart from the brachial plexus palsy, was that there was a cord around the shoulder," (T.259) presumably the cause of the intermittently depressed fetal pulse rate. Dr. McCarthy acknowledged that he "could have used many maneuvers," (T.260) other than Hibbald's. He ascribed his exclusive use of Hibbald's maneuver to the shortness of the time it took to deliver the baby. At some point, reliance on a technique that is not succeeding, to the exclusion of others that might dislodge a baby without causing brachial plexus palsy, a known complication of shoulder dystocia, falls below minimally acceptable standards of practice. During the two- or three-minute interval between delivery of the baby's head and extrication of his shoulder, Dr. McCarthy "checked the baby to see if there was a cord around the neck," (T.261) and suctioned fluid from the baby's nostrils. The evidence did not clearly show how long he applied traction before the baby was delivered. An expert testifying for petitioner said that a patient with epidural anesthesia "in general is unable to void . . . and . . . the bladder can enlarge . . . and can interfere . . . [so that] it's good obstetrics, before performing a forceps or vacuum delivery to catheterize. . . ." T.55. But there was no testimony that failure to catheterize fell below minimally acceptable standards, nor any testimony to establish M.B.'s particular circumstances. The evidence established no deficiencies in respondent's recordkeeping with regard to M.B. or her delivery.
Recommendation Although later adopted and, therefore, not determinative, see Willner v. Department of Professional Regulation, 563 So.2d 805 (Fla. 1st DCA 1990), Rule 21M-20.001(2)(t), Florida Administrative Code, specifies penalties for violating Section 458.331(1)(t), Florida Statutes (1991), ranging from two years' probation to license revocation, together with a fine of $250 to $5000, depending on aggravating and mitigating circumstances set out in Rule 21M- 20.001(3), Florida Administrative Code. Upon consideration of the foregoing findings and conclusions, and the length of time that has elapsed since the birth of C.H.'s baby, it is RECOMMENDED: That the Board of Medicine place respondent on probation for a period of five (5) years, on condition that he attend a minimum of thirty (30) hours per year of category I continuing medical education courses, including, within the first ninety (90) days of probation, ten (10) hours of courses on how to manage shoulder dystocia; and on further condition that he perform 250 hours of community service under the auspices of the county health department, if needed, during each year he is on probation; provided, however, that the question of penalty be reopened, in the event respondent fails to abide by the conditions of probation or to make reports to the Board on or before the tenth day of each month, reflecting compliance with the conditions of probation. DONE and ENTERED this 4th day of February, 1993, at Tallahassee, Florida. ROBERT T. BENTON, II, 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 4th day of February, 1993. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, both 17s, the first 18 and 19 regarding C.H. and Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, and 16 regarding M.B. have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 16 and the second 18 regarding C.H., respondent unquestionably exposed the baby to the risk of serious injury, and more than likely caused the brachial plexus palsy. With respect to petitioner's proposed findings of fact Nos. 12, 18, 19, 20, 25 and 27 regarding M.B., Dr. Brauner's testimony that persisting with Hibbald's maneuver for longer than 60 seconds would fall below minimally acceptable standards has been credited, but the evidence was not clear and convincing as to the exact length of time Dr. McCarthy applied traction. Petitioner's proposed findings of fact Nos. 17, 22, 26, and 28 and 29 regarding M.B. pertain to subordinate matters. With respect to petitioner's proposed findings of fact Nos. 21 and 23 regarding M.B., the evidence did not clearly and convincingly establish that respondent's use of the Hibbald maneuver caused the brachial plexus palsy, although it is entirely possible that it did. With respect to petitioner's proposed finding of fact No. 24 regarding M.B., the evidence showed that Dr. McCarthy intervened to accelerate delivery of the head, but his deployment of the vacuum extractor was not alleged to have been below standards, and may well have been justified by the intermittently depressed pulse the baby exhibited and the mother's difficulty pushing. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 10, 12, 14, 15, 20, 27, 28, 29, 30, 31, 32, 37 and 40 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 5, C.H. arrived at the hospital before 5:45. Respondent's proposed findings of fact Nos. 6, 7, 8, 9, 11, 17, 18, 22, 33 and 34 pertain to matters that are subordinate or immaterial altogether. With respect to respondent's proposed finding of fact No. 13, Wood's maneuver requires pressure on the shoulders, not the head. With respect to respondent's proposed finding of fact No. 16, use of the vacuum extractor preceded knowledge of the shoulder dystocia. With respect to respondent's proposed findings of fact Nos. 19 and 21, he did not perform the maneuver properly. With respect to respondent's proposed finding of fact No. 23, the "clarification" has not been credited. With respect to respondent's proposed findings of fact Nos. 24 and 25, the obstetrician does not have discretion to fail to meet minimum standards. With respect to respondent's proposed finding of fact No. 26, the precise etiology of the brachial plexus palsy was not established. With respect to respondent's proposed findings of fact Nos. 35, 36, 38, 39, and 41, petitioner failed to prove clearly and convincingly that respondent's management of the shoulder dystocia in M.B.'s case fell below standards, but neither did the evidence establish that it met standards. COPIES FURNISHED: Gerald B. Sternstein, Esquire 600 First Florida Bank Building Post Office Box 2174 Tallahassee, FL 32316-2174 Richard A. Grumberg, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0750 Jack McRay General Counsel 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Department of Professional Regulation Medicine Board 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issues are whether Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and, if so, what penalty, if any, should be imposed.
Findings Of Fact 1. Stipulated Facts Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, Florida Statutes. Respondent is a licensed physician in Florida holding license number ME 0009772. Respondent's last known address is 9430 Turkey Lake Road, Orlando, Florida 32819-8015. Respondent is Board certified in orthopedic surgery. Respondent provided medical treatment to two male patients between 1990 and 1991. Patient 1 was treated from approximately April 29, 1991, through August 12, 1991. At the time, Patient 1 was approximately 34 years old. Patient 2 was treated from approximately May 14, 1990, through June 20, 1991. Patient 2 was approximately 29 years old. Patient 1 Patient 1 had a history of hip dislocation with aseptic necrosis, chronic back and leg pain, and foot numbness associated with degenerative disc disease and lumbar stenosis. Lumbar stenosis is compression of the spine. Spine compression was particularly significant between the fifth lumbar and first sacral vertebrae. Prior to April 29, 1991, Patient 1's treatment was conservative and nonsurgical. On April 29, 1991, Patient 1 presented to Respondent to explore alternative therapy. Patient 1 complained of pain and numbness in his back, hip, and legs. Respondent diagnosed Patient 1 with lumbar spinal stenosis and possible disc herniation. Respondent recommended a myelogram. A myelogram was performed on May 13, 1991. The myelogram confirmed Respondent's diagnosis of lumbar spinal stenosis and possible disc herniation. The myelogram revealed a disc defect on the right side of L5-S1 as well as severe spinal and lateral recess stenosis. On June 11, 1991, Respondent performed a laminectomy on Patient 1, an L5-S1 disc excision, and an internal spinal stabilization using Harrington rods attached with lamina hooks. Use of lamina hooks resulted in the compression of Patient 1's underlying neural tissue. Compression of the underlying neural tissue caused Patient 1 to suffer perineal numbness. Respondent's medical records of June 17, 1991, show that Respondent knew Patient 1's perineal numbness was a result of compression of the sacral nerve root at L5-S1. On June 17, 1991, Respondent again performed surgery on Patient 1. Respondent replaced the lamina hooks with alar hooks. Respondent also replaced and adjusted the tension of the Harrington rods. On August 1, 1991, Patient 1 was admitted to Sandlake/Orlando Regional Medical Center ("ORMC") for surgical removal of the implanted hooks and Harrington rods. Respondent surgically removed the Harrington rods and attachment hooks. On August 12, 1991, Respondent's medical records showed that Patient 1 suffered from persistent numbness of the sacral nerve root areas. The area of numbness included the perineum, scrotum, and penis. Respondent did not perform an L5-S1 bone fusion during any surgery. Patient 2 On May 14, 1990, Patient 2 presented to the Emergency Room ("ER") at ORMC with primary complaints of back and right leg pain. The ER physician diagnosed Patient 2 with a herniated nucleus pulposus at L4-L5. The nucleus pulposus is the soft central portion of the intervertebral disc. Respondent admitted Patient 2 on May 14, 1990, and treated him with intravenous muscle relaxants. On May 15, 1990, a computerized axial tomography ("CAT") scan revealed a bulging, herniating disc at L4-L5. On May 17, 1990, Respondent discharged Patient 2 with instructions regarding back care and an exercise program. On August 24, 1990, Patient 2 presented to Respondent with recurrent disabling sciatic pain. A magnetic resonance imaging ("MRI") scan was performed on August 28, 1990. The MRI revealed a prominent disc bulging at L4-L5 with material intruding into the spinal cord. On September 7, 1990, Respondent performed a lumbar laminectomy and disc excision at L4-L5. Respondent discharged Patient 2 on September 12, 1990. On December 11, 1990, Patient 2 presented to Respondent with recurrent back and right leg pain. Respondent prescribed analgesics including Soma with codeine and Naprosyn. On January 14, 1991, Patient 2 presented to Respondent with back and right leg pain. Patient 2 underwent a CAT scan to determine if recurrent disc herniation was present. The CAT scan failed to indicate any obvious asymmetric changes which would confirm Respondent's diagnosis of recurrent disc herniation. On January 21, 1991, Respondent performed a decompressive laminectomy on Patient 2. Respondent's operative report for January 21, 1991, indicates that Respondent found no evidence of a herniated disc. On February 26, 1991, Patient 2 presented to Respondent with complaints of recurrent leg and back pain. Respondent referred Patient 2 to Dr. William Bradford for treatment utilizing epidural blocks. On April 16, 1991, Patient 2 again presented to Respondent. Respondent placed Patient 2 in a molded, fiberglass body jacket. Back and leg pain subsided while Patient 2 wore the fiberglass jacket. On May 14, 1991, Respondent performed surgical stabilization of the lower lumbar spine utilizing Harrington rods. On June 17, 1991, Patient 2 presented to Respondent with persistent numbness of the perineal area as well as bowel and bladder incontinence. Respondent determined that the numbness and incontinence were caused by sacral nerve root irritation associated with the Harrington rod hooks. Respondent surgically adjusted the Harrington rods on June 20, 1991. Respondent did not perform vertebral bone fusion during any surgery. 2. Standard Of Care Respondent failed to practice medicine in his treatment of Patient 1 with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent improperly seated lamina hooks in Patient 1. As a result, Patient 1 suffered compression of underlying neural tissue. Respondent improperly used Harrington rods and hooks to achieve transient spinal decompression without performing essential vertebral bone fusion. Use of Harrington rods in the lumbar spine is an obsolete technology. It is fraught with dangers. Among other things, it eliminates the lordosis, or natural spinal curvature. Respondent failed to practice medicine in his treatment of Patient 2 with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent performed numerous surgeries on Patient 2 when CAT scans and other examinations failed to confirm recurrent disc herniation. In addition, Respondent failed to perform essential vertebral bone fusion on Patient 2. 3. Proximate Cause And Severity Of Injury Respondent's failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances was the proximate cause for permanent neurological damage to Patient's 1 and 2. Both patients suffered sacral nerve root paralysis. Sacral nerve roots feed functions in the pelvis, bladder bowel, and sphincter. Both patients suffered permanent incontinency, including loss of bladder and bowel function. Each patient requires a colostomy and must wear diapers. Patient 1 has suffered sexual dysfunction in that he has lost the sensation necessary for a natural erection. The neurologic injuries to Patients 1 and 2 are major and permanent. Nothing can restore the functional loss suffered by either patient.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding Respondent guilty of violating Section 458.331(1)(t) in his treatment of Patients 1 and 2, imposing an administrative fine of $7,500, and restricting Respondent's practice as follows: Respondent shall not perform any spinal surgery on patients unless and until Respondent appears before the Board of Medicine and demonstrates to the satisfaction of the Board that he is able to do so with skill and safety; and The Board of Medicine may place other reasonable conditions on Respondent's practice of orthopedic surgery at such time as the restriction in the preceding paragraph is lifted. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of October, 1994. DANIEL MANRY 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 6th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3966 Petitioner's Proposed Findings of Fact 1. -39. Accepted as stipulated fact 40.-41. Rejected as recited testimony Accepted in substance Rejected as recited testimony Accepted in substance 45.-51. Rejected as recited testimony Respondent's Proposed Findings of Fact Respondent stipulated to Petitioner's proposed findings of fact, paragraphs 1- 39. Respondent's only additional proposed finding of fact is unnumbered and is rejected as not supported by persuasive evidence. COPIES FURNISHED: Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack L. Gresham, M. D. 9430 Turkey Lake Road Orlando, Florida 32819-8015
