Findings Of Fact The decedent, James C. Daniels, was employed as a fire fighter with the Village of Miami Shores, Florida, in April of 1972. The Miami Shores Fire Department was subsequently assimilated by Metropolitan Dade County, Florida, and at the time of the decedent's death on July 20, 1976, he was employed by Dade County as a fire fighter/emergency medical technician. On November 4, 1975, the decedent received a physical examination which showed no evidence of heart disease, and an electrocardiogram, the results of which were within "normal" limits. The decedent had no history of heart disease or circulatory problems, did not drink, and began smoking only in 1974 or 975. At the time of his death, the decedent's customary work routine involved 24 hours on duty, from 7:00 a.m. to 7:00 a.m., followed by 48 hours off duty. The decedent's duties included answering emergency calls along with his partner in a rescue vehicle. These calls included such incidences as automobile accidents, fires, violent crimes involving injuries to persons, and various and sundry other emergency situations. Upon answering an emergency call, the decedent was required by his job to carry heavy equipment, sometimes weighing as much as 80 pounds, to the place where the injured person was located. On occasion, the decedent would transport injured persons from the scene to local hospitals. At the time of his death, the decedent appeared outwardly to be in good physical condition. In fact, he engaged in a regular program of physical exercise. During the approximately two months prior to his death, the decedent participated in a busy work schedule which often included numerous rescues, in addition to false alarms and other drills required of his unit. In fact, only four days prior to his death, the decedent and his partner during one twenty- four hour shift, were involved in 13 rescues and one building fire. During that day, the decedent worked for 24 straight hours, apparently without sleep. On July 19, 1976, at 7:00 a.m., the decedent began his last work shift prior to his death. During that day, the decedent's unit participated in two rescues and two drills. That evening, several of decedent's fellow workers noticed that he looked "bad", "tired" or "drawn out". During the night, decedent was observed getting out of bed from three to five times, and holding his left arm, left side or armpit. At 7:00 a.m. on July 20, 1976, the decedent went off duty and returned home. Upon returning home, he ate breakfast, and later washed down a new brick fireplace at his home. After showering, resting and eating a lunch, he joined several other men near his home whom he had agreed to help in pouring cement for some new construction. The decedent mentioned pains in his neck and shoulder to these men before the truck carrying the cement arrived. The decedent mentioned that he had been under a lot of tension and pressure as a result of the busy work schedule at the fire station. When the cement truck arrived, cement was poured into several wheelbarrows and several of the men, including the decedent, pushed the wheelbarrows to the rear of the structure on which they were working. It appears that the decedent pushed approximately four wheelbarrow loads of cement weighing about 75 pounds each to the rear of the structure. Approximately one-half hour elapsed during the time that the decedent was engaged in this activity. Soon thereafter, the decedent was observed to collapse and fall to the ground. He was given emergency medical treatment and transported to Palmetto General Hospital, where he was pronounced dead at 5:24 p.m. on July 20, 1976. An autopsy was performed on the deceased on July 21, 1976 by Dr. Peter L. Lardizabal, the Assistant Medical Examiner for Dade County, Florida. In pertinent part, the autopsy showed moderate arteriosclerosis of the aorta, and severe occlusive arteriosclerosis of the proximal third of the anterior descending coronary artery in which the lumen, or opening, through which the blood passes through the artery was hardly discernible. The remaining coronary arteries appeared unaffected by the arteriosclerosis. The decedent's certificate of death, which was also signed by Dr. Lardizabal, listed the immediate cause of death as acute myocardial infarction due to severe occlusive arteriosclerosis of the left coronary artery. Dr. Lardizabal performed the autopsy examination of the decedent by "gross" observation, that is, without the benefit of microscopic analysis. However, microscopic slides were made during the course of the autopsy which were subsequently examined by other physicians whose testimony is contained in the record of this proceeding. Findings contained in the autopsy report, together with an evaluation of the aforementioned microscopic slides, establish that the myocardial infarction suffered by the decedent occurred at least 24 hours, and possible as many as 48 hours, prior to the decedent's death. This conclusion is based upon the existence of heart muscle necrosis, or tissue death, which would not have been discernible had the decedent died immediately following a coronary occlusion. In fact, for a myocardial infarction to he "grossly" observable at autopsy, that is, without the benefit of microscopic examination, it appears from the record that such an infarction would have to occur a substantial period of time prior to the death of the remainder of the body. Otherwise, the actual necrosis of heart muscle tissue would not be susceptible to observation with the naked eye. Although it appears probable from the evidence that the decedent went into a type of cardiac arrhythmia called ventricular fibrillation which led to his death, the actual proximate cause of his death was the underlying myocardial infarction, which in turn was a result of arteriosclerosis which had virtually shut off the supply of blood to the affected area of his heart. Although the causes of arteriosclerosis are not presently known to A medical science, it appears clear from the record that acute myocardial infarctions can be caused by emotional or physical stress, and that the decedent's myocardial infarction was, in fact, caused by the stress and strain of his job as a fire fighter and emergency medical technician. In fact, it appears from the medical testimony in this proceeding that the decedent was having a heart attack which led to the myocardial infarction on the night of July 19, 1976, or in the early morning hours of July 20, 1976, while he was still on duty. It further appears that, although physical exertion, such as the pushing of the wheelbarrow loads of cement by the decedent, might act as a "triggering mechanism" for ventricular fibrillation, the decedent's activities on the afternoon of July 20, 1976, had very little to do with his death. The type of lesion present in the decedent's heart, which had occurred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless of the type of physical activity in which he engaged on July 20, 1976. Petitioner, Dolores A. Daniels, is the surviving spouse of James C. Daniels.
The Issue Whether respondent, a medical doctor, should have his license to practice medicine revoked or otherwise disciplined for alleged malpractice, unethical medical practices', and performance of services which he knew or should have known he was not competent to perform.
Findings Of Fact Respondent, George A. Chakmakis, M.D., is licensed by the Department to practice medicine in Florida. At all times material to this proceeding, he was engaged in the general practice of medicine at 123 Tampa Street, Auburndale, Florida., (P-6.) I. As to Count I Failure to Detect Clear Abnormality in Patient's Chest X-ray From 1974 to 1977, Mary Louise Wahl was respondent's patient. At various times, he treated her for rheumatoid arthritis, chronic bronchitis, and the flu. (P-8.) On .February 16, 1977, respondent had a chest x-ray taken of Ms. Wahl. In reading the x-ray film, he failed to detect or identify any abnormality in her lung. In a letter he subsequently wrote to another physician, respondent contended that, in February, 1977, her chest x-ray "was clear." (Testimony of Spanogle; P-5, P-8.) During the next eight months, Ms. Wahl suffered from chronic breathing problems. Respondent treated her for bronchitis and prescribed various antibiotics--none of which caused any noticeable improvement in her condition. Her last visit to respondent's office was on November 11, 1977. (P-8.) On December 15, 1977, Ms. Wahl was admitted to the emergency room of Winter Haven Hospital. She complained of progressive shortness of breath and coughing to Dr. Alan G. Gasner, the physician on duty. (P-8.) Dr. Gasner did a complete history, performed a physical examination and had a chest x-ray taken of Ms. Wahl. The x-ray revealed a massive left pleural effusion. He removed the fluid from the left side of her chest and conducted tests to determine the cause of the effusion. He concluded that she had a carcinoma of the lung, with metastic tumor as the cause of the left pleural effusion. She received chemotherapy and was discharged from the hospital 13 days later. (P-8.) On May 5, 1978, Ms. Wahl was readmitted to Winter Haven Hospital. Twelve days later, she died. The cause of death: metastatic carcinoma (or cancer) of the lung. (P-8.) The chest x-ray of Ms. Wahl, taken by respondent on February 16, 1977 clearly showed an abnormality in the upper left lobe of her lung. The abnormality, indicated by a white hazy area between the ribs, was obvious, not subtle: a physician who had completed medical training should have been able to recognize it. The white hazy area was present only on the left lobe, not the right. In examining lung x-rays, physicians are trained to compare the left side with the right side. Additional factors were present: Ms. Wahl was 63 years old and respondent was aware that she smoked cigarettes. Respondent's failure to detect such an obvious abnormality in the February 16, 1977, chest x- ray deviates from the standard of care, skill, and treatment recognized by reasonably prudent similar physicians as acceptable under similar circumstances. This standard of care, and respondent's deviation therefrom, was established at hearing by the expert testimony of five licensed physicians who practice medicine in the Auburndale-Winter Haven area. Respondent admitted, at hearing, that the February 16, 1977, chest x-ray shows an increased density in the left upper lobe of the lung. (Testimony of Chakmakis, Gasner, Libinski, Cottrell, Koon, Morgan; P-5.) The abnormality shown in the February 16, 1977, chest x-ray of Ms. Wahl, if detected, would have warranted further action by the treating physician, such as additional x-rays, including a lateral view, and tests. In light of Ms. Wahl's age and smoking habit, the February 16, 1977, x-ray would lead a prudent physician to suspect a malignancy or carcinoma. If it was a carcinoma, immediate action would have been necessary; it is possible that surgical intervention to remove the carcinoma could have been performed. (Testimony of Cottrell, Gasner, Lipinski, Koon, Morgan.) It cannot, however, be concluded that respondent's failure to detect the clear abnormality in Ms. Wahl's lung caused or contributed to her eventual death from carcinoma of the lung. No definite link has been established. There is no way of now knowing whether Ms. Wahl had a carcinoma or cancer in February, 1977. The abnormality shown in the x-ray could be consistent with these different primary diagnoses: cancer, tuberculosis, and pneumonia. (Tr. 50.) Failure to Provide Chest X-ray to Ms. Wahl's Subsequently Treating Physician When Ms. Wahl was admitted to Winter Haven Hospital in December, 1977, she explained to Dr. Gasner that she had been under the care and treatment of respondent. Dr. Gasner immediately asked respondent to forward her medical records so that he could determine the nature of her treatment. Respondent replied by letter dated December 21, 1977: he indicated that her last chest x- ray, taken February, 1977, was clear; that her last office visit was on November 11, 1977, when she was treated for bronchitis; and he enclosed copies of lab test results. On December 28, 1977, Dr. Gasner wrote respondent, explaining that he needed to have her prior chest x-ray films in order to plan a course of therapy for her. Dr. Gasner received no response from respondent. (P-8.) Respondent's failure to provide Dr. Gasner with the requested chest x- rays of Ms. Wahl is insufficient, in itself, to support a conclusion that respondent refused to supply such records. Respondent testified that he believed that the requested x-rays had been sent to Dr. Gasner; such testimony, although self-serving, was not refuted by the Department. It is concluded that respondent's failure to supply the x-rays requested by Dr. Gasner's December 28, 1977, letter was due to inadvertence, not willful refusal. (Testimony of Chakmakis.) Refusal to supply patient medical records requested by a subsequent treating physician constitutes a deviation from the accepted standard of care in the Auburndale-Winter Haven area. But, it has not been shown that the inadvertent failure to supply such records constitutes a deviation. (Testimony of Koon, Cottrell.) II. As to Count II Argola O'Neal was respondent's patient from November 8, 1978, through December 20, 1978. She went to him for treatment of kidney problems and recalls receiving two drug prescriptions from him. He also dispensed drugs to her in his office. (Testimony of O'Neal.) She has no complaints about the quality of the treatment she received. The medications respondent prescribed made her feel better. She stopped seeing respondent because her husband felt that respondent's prices were too high. (Testimony of O'Neal.) After leaving the care of respondent, Ms. O'Neal became a patient of Dr. William Cottrell. At Dr. Cottrell's request, she showed him the medications which had been prescribed by respondent. They included: Inderal, 40 milligram and 20 milligram tablets; Digoxin, .25 milligrams; Tofranil; Synthroid; Isomil; Dyazide; Serapes, 10 milligrams; Nitrostat; Lasix, 20 milligrams; Mylicon; Darvocet-N 100; Thyroid, 2-grain tablets; and Gaviscon. The Inderal prescriptions were duplicative, as were the drugs Synthroid and throid extract. If used improperly, they were potentially dangerous to the patient. (Testimony of Cottrell.) Ms. O'Neal, age 76, is a frail woman suffering from senility and hardening of the arteries. Her ability to accurately recall respondent's brief treatment of her--occurring three years prior to hearing--has been affected. For example, she did not recognize respondent until he introduced himself to her immediately before hearing. Her testimony conflicts with that of her husband, Fred O'Neal. He testified that she stopped seeing respondent because she was dissatisfied with his treatment. (Testimony of O'Neal, Cottrell.) Because Ms. O'Neal had medications prescribed by an earlier doctor, respondent was concerned about prescribing duplicate medications. He instructed her to stop taking duplicative diuretics, thyroid, and heart medications. Although Ms. O'Neal does not recall such instructions, respondent's recollection is persuasive. (Testimony of Chakmakis.) When Ms. O'Neal became Dr. Cottrell's patient, she expressed some confusion concerning the medications which she had received from respondent. Although Dr. Cottrell testified that, in his opinion, there was some redundancy in the medications prescribed by respondent, he consistently avoided concluding that the prescriptions were sufficiently excessive or inappropriate to constitute a deviation from the prevailing standard of medical care in the Auburndale-Winter Haven area. 2/ (Tr. 235-236.) In his treatment of Ms. O'Neal, Dr. Cottrell tried to simplify the medication instructions and make sure that her husband was fully aware of them. (Testimony of Cottrell.) III. As to Count III Ronald Sequino was respondent's patient from November 30, 1978, through December 11, 1978. On Friday, November 30, 1978, respondent surgically removed two cysts from Sequino's back. The agreed-upon price was $30. (Testimony of Sequino; P-2, P-6.) That evening, the cyst wounds began to open. Sequino, concerned about infection, telephoned respondent's office number Friday evening, Saturday, and Sunday. He obtained respondent's answering service which informed him that respondent was unavailable; he left a message for respondent to contact him. Respondent did not return Sequino's call. (Testimony of Sequino.) The next week, Sequino returned to respondent's office for treatment of the wound which, by then, was discharging pus. Sequino, disturbed by his inability to reach respondent during the weekend, asked respondent whether the answering service had contacted him; respondent replied that he had gotten the message from the answering service but "made light of it" by telling Sequino that he worried too much. (Testimony of Sequino.) During the weekend that Sequino tried unsuccessfully to reach him, respondent did not have another physician covering for him. Respondent's testimony to the contrary is rejected as selfserving and uncorroborated. Neither did respondent have hospital privileges. (Testimony of Davis, Sequino; P-6.) Sequino returned to respondent two more times for post-operative care. The healing of his cysts was aggravated because Sequino frequently got his back wet, contrary to respondent's instruction. Because of this, respondent charged Sequino an additional $12 for each follow-up visit. (Testimony of Davis.) Sequino was disturbed by what he perceived as respondent's lack of concern; he was also upset about being separately charged for each follow-up visit. He became angry, used threatening language toward respondent, and mumbled profanities on leaving the office. (Testimony of McGuire.) Respondent denies that he was unavailable or received an answering service message from Sequino during the weekend following the cyst removals. He denies that he made "light" of Sequino's concern about not being able to reach him. He asserts that if he was unavailable, he had another physician covering for him. These contentions are rejected as selfserving and lacking corroboration. Diane Davis, his former receptionist and clerk-secretary, testified that--to her knowledge--respondent had no physician cover for him when he was out of town; that, during the weekends when he was unavailable, he never referred a patient to another physician. (Testimony of Chakmakis, Davis.) By failing to provide continuing care to Sequino over the weekend, or making arrangements so that another physician would be available to provide such care, respondent deviated from the prevailing standard of medical care and treatment recognized by a reasonably prudent similar physician as acceptable under the circumstances. That standard of care requires that a physician be available to his patients or have a physician cover for him at all times. Similarly, contrary to the Principles of Medical Ethics, he neglected his patient after having undertaken to provide him medical care. Such a breach of medical ethics constitutes a deviation from the standard of medical care recognized by a prudent similar physician as acceptable under the circumstances. (Testimony of Morgan; P-7.) IV. As to Count IV Respondent admits having used the Bellew Vaccine Method for Treating Arthritis ("the Bellew Method"). He used it to treat the arthritis of Mary Wahl. The Bellew Method was developed by Bernard A. Bellew, M.D. Generally, it consists of regimen of intradermal and subcutaneous injections of commonly available influenza viral vaccines and respiratory bacterial vaccines. It purports to provide therapeutic or curative relief to arthritis. (Testimony of Chakmakis; P-1, P-8, P-16.) The Bellew Method is not widely known or used by the medical profession. Respondent does not know of another physician in the United States who uses it. (Testimony of Chakmakis; The Bellew Method is considered, at best, as an "unusual treatment" by other physicians the Auburndale-Winter Haven area. It is not accepted in that area, or elsewhere in the country, as an acceptable method for treating arthritis. It is so far removed from the accepted practice and method of treating arthritis that it cannot be considered to have even achieved experimental status. (Testimony of Cottrell; P-8.) Respondent's use of the Bellew Method to treat Ms. Wahl's arthritis deviated from the standard of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar circumstances. (P-8.) No evidence was presented to show either that the Bellew Method has been proven effective or that it was harmful to Ms. Wahl. Neither was evidence presented to show that, before utilizing this method, respondent disclosed to Ms. Wahl that the Bellew Method had not been proven effective; that it was held in disfavor or not used by the mainstream of the medical community. No evidence was presented to show that Ms. Wahl gave her informed consent to such treatment after having been advised that, at best, it was considered to be unusual or unorthodox treatment by the medical community. V. Costs Incurred by Department in Obtaining Orders Compelling Discovery Respondent's failure to respond to discovery resulted in the Department filing numerous motions to compel. By orders dated July 15 and August 11, 1981, two such motions were granted and orders compelling discovery were issued. Respondent gave no excuse, or justification for his failure to respond to the Department's discovery. Accordingly, pursuant to Rules 1.380, Florida Rules of Civil Procedure, the Department was awarded reasonable expenses which it incurred in obtaining these orders. By stipulation, the Department's reasonable expenses were to be determined by affidavit of the Department's counsel submittal at final hearing. The affidavit indicates the Department incurred expenses in the amount of $419.16. (Affidavit of Expenses, dated August 13, 1981.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Medical Examiners enter a final order suspending respondent's medical license for six (6) months, after which the suspension should be vacated upon: (1) a showing by respondent that he has satisfactorily completed an approved continuing education course on the proper administration, interpretation, and use of x-rays; and (2) respondent demonstrating, to the Board's satisfaction, that he recognizes the serious statutory, professional, and ethical obligations placed on a physician who administers experimental or unorthodox treatment to a patient. That the Board, as part of its final order, require respondent to pay $419.16 to the Department as reasonable expenses incurred in obtaining the orders compelling discovery dated July 15 and August 11, 19,81. DONE AND RECOMMENDED this 12th day of March, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1982.
The Issue Whether the Respondent Department complied with the pertinent statutes and rules when it amended and extended a certificate of need previously granted to the Intervenor, Bayonet Point Hospital, Inc., without notice to Petitioner, Port Richey Medical Center, Inc. The Petitioner, Port Richey Medical Center, Inc., an association of six (6) osteopathic physicians, applied for a certificate of need in the service area of Pasco County, Florida, in which the Intervenor, Bayonet Point Hospital, Inc., had previously been granted a certificate of need. Subsequent to the filing of Petitioner's application, Bayonet Point was granted an increase in its approved capital expenditure of 5.2 million dollars, its certificate was amended to move the construction site, and the certificate of need was extended for a period of six (6) months. The amendments and extension were approved by the Respondent, Department of Health and Rehabilitative Services, without notice to Petitioner. Petitioner filed an administrative action.
Findings Of Fact A one (1) year certificate of need, #960, was issued to Bayonet Point Hospital, Inc. on November 13, 1978, to expire November 12, 1979, pursuant to an order of the appellate court in Samson v. Bureau of Community Medical Facilities Planning of Department of Health and Rehabilitative Services, Fla. app., 363 So.2d 412 reversing a denial on May 24, 1976 of an application for a certificate of need for the construction of a 200-bed hospital in the Bayonet Point Community, Pasco County, Florida at a total cost of 4.8 million dollars. On June 19, 1979 Port Richey Medical Center, Inc. filed a letter of intention to file an application for a certificate of need and thereafter, on September 5, 1979, filed its application to build a 100-bed osteopathic hospital in the same service area in which Bayonet Point held its certificate. On July 23, 1979 Bayonet Point requested a letter of authorization to change the cost of the project from 4.8 million dollars to 10 million dollars (Petitioner's Exhibit 9). The administrator of the office of Community Medical Facilities consulted with the supervisor of the architectural and engineering unit and granted the increase on August 16, 1979 (Petitioner's Exhibit 13). On October 10, 1979 Petitioners filed a petition demanding a hearing ". . .to demonstrate that. . .the actions taken by the Department of Health and Rehabilitative Services have been outside the scope of the applicable statutes." Bayonet Point's Motion to Intervene filed October 19, 1979 was granted. On October 26, 1979 Bayonet Point requested an extension of time to its certificate and supported its request with documentation as required by Rule 10- 5.13(2), Florida Administrative Code. In addition the request stated that the administrative action filed by Petitioner on October 10, 1979, plus the finding that the designated site of the project was located in a flood-prone area were good cause to extend the certificate. The certificate of need was extended to terminate May 12, 1980, without notice to Petitioner. The Hearing Officer finds that: (a) The Respondent Department is required to determine need in the service area of a proposed health care facility but is not required to approve site location. The change in the site of the facility is within the service area previously approved and can be made without prior approval of Respondent; and (b) the Intervenor, Bayonet Point Hospital, Inc., is a subsidiary of Hospital Corporation of America, Inc., which has acquired its stock, but Bayonet Point Hospital, Inc. holds the certificate of need and proposes to construct and operate the hospital. No transfer of the certificate of need has been made. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings and Conclusions of Law the Hearing Officer recommends that: The issues raised in the Port Richey Medical Center, Inc. petition be reviewed and determined by the agency upon notice to Petitioner; and An extension of time to the certificate of need held by the Intervenor be granted for a period of six (6) months from the date of the Final Order. DONE and ORDERED this 18th day of February, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Eric J. Haugdahl, Esquire Department of HRS 1323 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301 Kenneth G. Oertel, Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301 Jon C. Moyle, Esquire 707 North Flagler Drive Post Office Box 3888 West Palm Beach, Florida 33402 Cynthia S. Tunnicliff, Esquire Suite 750 Barnett Bank Building Post Office Box 82 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES PORT RICHEY MEDICAL CENTER, INC., Petitioner, vs. CASE NO. 79-2052 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent, vs. BAYONET POINT HOSPITAL, INC., Intervenor. /
The Issue Whether there were deficiencies at Naples sufficient to support Agency for Health Care Administration’s (AHCA) decisions to issue Heritage Health Care & Rehab Center - Naples (Naples) a Conditional license on March 11, 1999, and continue that rating until June 7, 1999.
Findings Of Fact Background Naples is a nursing home located in Naples, Florida, licensed by and subject to regulation by the Agency for Health Care Administration. Each year, Naples is surveyed by AHCA to determine whether the facility should receive a Superior, Standard, or Conditional licensure rating. On March 11, 1999, AHCA conducted an annual survey of Naples. After that survey was completed, AHCA alleged that there were several deficiencies at Naples which violated various regulatory standards that are applicable to nursing homes. However, AHCA agreed that the only deficiency relevant to the DOAH hearing was its allegation that Naples violated the requirement, contained in 42 CFR Section 483.13(c), that a nursing home develop and implement policies that prohibit abuse and neglect of residents. AHCA issued a survey report in which this deficiency was identified and described under a "Tag" numbered F224. AHCA is required to assign a federal "scope and severity" rating to each deficiency identified in the survey report. AHCA assigned the Tag F224 deficiency identified in the March survey report a federal scope and severity rating of "G," which is a determination that the deficient practice was isolated. AHCA is also required to assign a state classification rating to each deficiency identified in the survey report. After the March 11th survey, AHCA assigned the Tag F224 deficiency a state classification rating of Class II which, under AHCA’s own rule, is a determination that the deficiency presented "an immediate threat to the health, safety or security of the residents." Because AHCA determined that there was a Class II deficiency at Naples after the March 11th survey, it changed Naples’s Standard licensure rating to Conditional, effective March 11, 1999. By law, Naples was required to post the Conditional license in a conspicuous place in the facility. Naples was also required to submit a Plan of Correction (the "Plan") to AHCA. Although the plan did not admit the allegations, it did provide steps that the facility would implement to address the deficiencies cited in the survey report. The Plan also represented that all corrective action relating to the Tag F224 deficiency would be completed by April 10, 1999. AHCA returned to Naples on March 29, 1999, March 30, 1999, and April 22, 1999, and re-surveyed the facility. After each survey, AHCA determined that there were deficiencies at Naples, but stipulated prior to hearing that none of these deficiencies were justification for the issuance or the continuation of the Conditional license at issue in this case. After the April 22, 1999, survey, AHCA determined that Naples completed all corrective action with regard to the March 11, 1999, Tag F224 deficiency and complied with the requirements of 42 CFR Section 483.13(c). After the June 7, 1999, survey, AHCA determined that Naples was in substantial compliance with all applicable regulations and issued Naples a Standard license effective that date. Naples filed a Petition for Formal Administrative Hearing with AHCA to challenge the findings of all of the above- cited surveys, as well as AHCA’s decision to issue Naples a Conditional license. That Petition was referred to the Division of Administrative Hearings and a hearing was conducted. At hearing, the parties were ordered to file their proposed recommended orders on or before September 15, 1999. Finding 1; Tag F224; March 11, 1999, Survey Report: An unnamed resident at Naples who had fragile skin and a history of skin tears sustained a skin tear to her arm on March 8, 1999. Naples’ staff obtained a doctor’s order for a dressing to be applied to the area and changed daily. The dressing was applied as ordered except for an isolated instance when it was not applied on March 9, 1999. On March 10th, AHCA’s surveyor observed that the dressing had not been changed on the previous day. She interviewed the nurse who had obtained the order for the dressing, and was told that the dressing had not been changed on March 9, 1999, because the nurse forgot to print out the order from the computer and place it in the Resident’s medical record. The nurse immediately changed the Resident’s dressing. The surveyor did not observe the nurse changing the dressing. Instead, she went back into the Resident’s room after the dressing was changed and observed that the area covered by the dressing was bleeding. The surveyor inferred from that observation that the old dressing had stuck to the Resident’s skin because of the failure to change the dressing on March 9th. She also inferred that the nurse who changed the old dressing had not moistened it prior to removing it so as to cause it to bleed. The surveyor did not interview the nurse to verify her suspicion that the nurse changed the dressing incorrectly. Instead, she alleged that Naples neglected the Resident because the nurse failed to change the dressing pursuant to the doctor’s order, and because she changed the dressing so as to cause the Resident to bleed. Naples does not dispute that the Resident’s dressing was not changed on the March 9th. However, the evidence was undisputed that the failure to change a dressing for one day presented no risk that the Resident’s skin tear would worsen or become infected. In fact, the skin tear did not worsen as a result of the facility’s failure to change the dressing on March 9th. AHCA’s surveyor conceded that she had no evidence that the skin tear worsened and thus failed to provide any evidence that the failure to change the dressing presented any risk of harm to the Resident. Moreover, AHCA’s surveyor erroneously concluded that the nurse who changed the dressing caused it to bleed. The nurse moistened the old dressing prior to removing it and placed a new dressing on the area; the skin tear did not bleed during that process. The evidence was clear that the old dressing would not have stuck to the skin tear even if the dressing had not been changed on March 9th because, on March 8th, she applied a triple antibiotic ointment that acted as a barrier between the gauze dressing and the Resident’s skin. Finally, the Resident’s skin was extremely fragile and, in the past, the Resident had caused her own arm to bleed by slighting bumping it. Finding 2; Tag F224; March 11, 1999, Survey Report: Resident 14 was issued a doctor’s order for a dressing to a lesion on her back. It stated that the dressing was to be changed daily. AHCA’s surveyor observed on March 10, 1999, that Resident 14 had a dressing that had not been changed since March 8, 1999, covering the lesion. The surveyor further observed that the dressing had become displaced so that the tape used to secure the wound was partially covering the wound. Despite this isolated failure to change the dressing, the surveyor cited Naples for neglecting Resident 14. Naples conceded that the Resident 14's dressing had not been changed on March 9th as ordered. However, as it did with the unnamed Resident in Finding 1, Naples demonstrated that the failure to change Resident 14’s dressing was isolated and did not present any risk that the Resident’s lesion might worsen or become infected. Naples also showed that the lesion did not, in fact, worsen. AHCA’s surveyor conceded that she had no evidence that the failure to change the dressing was repeated conduct, or that the lesion worsened, and thus failed to present any evidence that the failure to change the dressing presented any risk of harm to Resident 14. Finding 3; Tag F224; March 11, 1999, Survey Report: Resident 21 was a demented woman with a history of anxiety, aggressive behavior toward others, and attention- seeking behaviors. At approximately 1:00 a.m. on March 10th, Resident 21 was found striking her forehead with a small picture frame stating, "I’m going to kill myself, I’m tired of all this." She was not hitting herself hard enough to inflict any injury to herself, and did not damage the picture frame. Nonetheless, a nurse stopped the Resident and counseled the Resident, who then stated, "I’ll stop and go to sleep." After the nurse left the room, the Resident repeated her action. The nurse immediately returned, removed the frame, and called the Resident’s physician. The physician determined that Resident 21 was not suicidal, and ordered Ativan (a medicine given for anxiety) and a psychiatric consultation for the Resident. Twenty minutes after she was given the Ativan, Resident 21 got up and sought additional attention by pushing her wheelchair in the hallway. She was redirected to her bed by a certified nursing assistant ("CNA") and, while being put to bed, grabbed packets of air freshener and threatened to eat them. The packets were immediately removed from the Resident and taken from her room by the CNA. Twenty minutes after being put to bed by the CNA, Resident 21 arose and returned to the hallway and attempted to enter other residents’ rooms. She was redirected by staff to her room and bed, whereupon she stated to the staff that "The nurse gave me water. I’m going to kill myself." Twenty minutes after this incident, Resident 21 sought attention by playing her radio loudly, and stated, "I’m going to kill myself." Another dose of Ativan was given to her and shortly thereafter, she went to sleep. Although staff routinely checked on Resident 21, there were no further incidents. The following morning, Resident 21 was seen by her psychiatrist who determined that she was not suicidal. Instead, he concluded that Resident 21’s isolated actions during the previous night were attention-seeking behavior which did not indicate that she intended to kill herself. He ordered additional medications for her and, as a precaution, wrote an order in her record to "remove all dangerous objects from her room and monitor resident closely." When AHCA’s surveyors entered the facility on March 10, 1999, picture frames and mirrors were present in Resident 21's room. The surveyor asked the staff about the level of monitoring for the Resident, and whether the facility had a policy that defined and implemented precautions for suicidal residents. The surveyor was not satisfied and cited the facility for neglecting the Resident because it failed to remove "dangerous objects" from her room, failed to adequately monitor her, and failed to have a suicide precaution policy. The surveyor’s conclusion that Naples neglected Resident 21 was predicated on her belief that Resident 21 was suicidal. However, the Resident's psychiatrist testified unequivocally that the Resident was not suicidal. The Resident did not strike herself hard, nor with the intent to hurt herself, but was engaged in attention-seeking actions. She demonstrated no intent to commit suicide. The psychiatrist's diagnosis, and his (and her regular physician’s) decision to treat her condition with medications were effective. She exhibited no further similar behavior. AHCA’s surveyor did not interview Resident 21’s psychiatrist prior to making her allegations of neglect, and thus did not know that the psychiatrist had determined that the Resident was not suicidal. At hearing, she acknowledged that the psychiatrist’s conclusion would have presented "a whole different story." AHCA’s surveyor also erroneously concluded that the Resident was not adequately monitored. The nursing notes concerning Resident 21 contained over thirty entries between March 10th and March 12th describing observations of the Resident. These notations exceeded any applicable nursing standard, and more than met the requirements contemplated by the psychiatrist when he ordered the staff to monitor the Resident closely. The surveyor determined that the nurses’ notes reflected inadequate observation of the Resident because the notes did not reflect that the Resident was being observed every fifteen minutes, and then hourly for twenty four hours. However, the surveyor failed to offer any regulation or other source to support her contention that monitoring the Resident every fifteen minutes was the appropriate standard. To the extent that the standard was based upon the surveyor’s assumptions that Resident 21 was suicidal or because the psychiatrist ordered that level of monitoring, Naples demonstrated that those assumptions were incorrect. AHCA’s surveyor also erroneously concluded that the failure to remove picture frames and mirrors from Resident 21’s room was a violation of any doctor’s order or applicable standard of care. The requirement that dangerous objects be removed from the Resident’s room came from the order of the Resident’s psychiatrist, and he testified that he did not intend for the facility to remove all picture frames or mirrors from the Resident’s room. Instead, he only intended his order to cover objects such as knives or letter openers. He clarified this interpretation of his order to Naples’ staff during the survey. Naples is not required by any federal or state regulation to have a suicide prevention policy. Indeed, such a policy would never have an opportunity to be implemented even if it existed. If a resident at Naples is determined to be suicidal, the resident would be immediately transferred to a psychiatric hospital for observation, evaluation and treatment. Naples Policy Regarding Abuse and Neglect: Naples has a written policy that prohibits abuse and neglect of its residents. It also sets forth a process for investigating incidents of suspected abuse and neglect that includes suspending staff who might have been involved in any incident while the investigation is pending. Additionally, Naples implements policies required by federal regulations that help to assure that its residents are not neglected. It conducts background checks of employees, and only those who have no history of abuse or neglect are hired to work at Naples. Furthermore, employees are instructed and encouraged to inform the administration about any incident which might be considered abuse or neglect of a resident, and are provided with seminars which address issues of abuse and neglect of residents. Naples conducts random audits of its residents’ medical records to insure that residents are receiving their required care. These policies have been successful. Additionally, Naples demonstrated that it followed its written policy with regard to the incidents cited under Tag F224 of the March survey report. Pursuant to that policy, the facility’s Director of Nursing investigated all of the cited incidents in a timely manner and suspended one nurse pending that investigation. The Director of Nursing appropriately concluded that neglect of the residents cited in the report had not occurred and did not call any investigative agency regarding the incidents.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Agency for Health Care Administration enter a final order issuing a Standard rating to Naples and rescinding the Conditional rating. DONE AND ENTERED this 12th day of November, 1999, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings 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 this 12th day of November, 1999. COPIES FURNISHED: R. Davis Thomas, Jr., Esquire Donna Stinson, Esquire Broad and Cassel 215 South Monroe, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Karel L. Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 309 Post Office Box 60127 Ft. Myers, Florida 33901-6177 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since June 16, 1980, a physician licensed to practice medicine in the State of Florida. She holds license number ME 0036758. Since the completion of her residency at Engelwood Hospital in New Jersey in 1974, Respondent has specialized in internal medicine, although she is not board-certified. Until December of 1987, when she relocated to Florida, she had her own practice in New Jersey. Following her arrival in Florida, she initially went into private practice. In June of 1990, Respondent went to work part-time at Humana's Urgent Care Center (hereinafter referred to as the "UCC") in Plantation, Florida, a walk-in clinic servicing Humana members who needed to see a physician but, because of the unexpected nature of their illness, did not have a scheduled appointment with their primary care physician. 7/ In February of 1991, Respondent was hired as the full-time Director of the UCC. She remained in that position until her resignation in February of 1994. She presently has her own practice in Fort Lauderdale, Florida. On or about April 22, 1992, patient L.K., an 80-year old female, slipped and fell. Later that same day, at around noon, L.K., accompanied by two companions, presented to the UCC with complaints of right groin pain and difficulty walking after the fall. L.K. did not have any of her medical records with her, nor did her primary care physician provide the UCC with these records in advance of her visit. L.K. was greeted by the receptionist at the UCC. The receptionist asked L.K. for her name, address, telephone number and social security number. L.K. provided the information requested, which the receptionist recorded on a "priority care record" form (hereinafter referred to as the "PCR Form"). Thereafter, a nurse escorted L.K. from the reception area to an examining room. Once in the examining room, the nurse questioned L.K. as to the reason for L.K.'s visit to the UCC and also inquired about any medications L.K. might be taking and allergies she might have. In response to these inquiries, L.K. told the nurse that: she was 80 years old; she had fallen that morning and, as a result, was experiencing pain in her right groin and had "great difficulty walking;" she was taking insulin 8/ and Ecotrin, among other medications; and she was allergic to sulfur. The nurse documented these responses on the PCR Form. By now, it was approximately 12:30 p.m. The nurse then took and recorded on the PCR Form L.K.'s vital signs, which were within normal limits. L.K.'s temperature was 98.6 degrees Fahrenheit, her pulse rate was 68, her respiratory rate was 20 and her blood pressure was 110 over 60. The nurse and L.K. were soon joined in the examining room by Respondent. Upon entering the examining room, Respondent asked L.K. "what had happened." L.K. told Respondent that she had slipped and fallen and that she had pain in her right groin. Respondent recorded this information on the PCR Form. Respondent also noted on the PCR Form that L.K. was "dragging [her] leg." Although Respondent's records do not so reflect, L.K. also complained to Respondent that she had pain in her lower back and that before falling, she had been feeling fine and had not been experiencing any chest pains or dizziness. It was apparent to Respondent, based upon her conversation with L.K., that L.K. was oriented as to person, place and time. Respondent then conducted a thorough physical examination of L.K., but failed to document that she did so or to note the results of the examination on the PCR Form or elsewhere in her records. In not recording any of the findings of her physical examination of L.K., Respondent was following her practice of "charting by exception," that is noting only positive findings or abnormalities in her records. "Charting by exception" is not uncommon in hospital emergency room and walk-in clinic settings. As part of her examination of L.K., Respondent rechecked L.K.'s blood pressure. It was still 110 over 60. She listened to L.K.'s heart and lungs and discovered no abnormalities. She inspected L.K.'s skin. There were no scratches, bruises or abrasions. L.K.'s skin color was "good." She palpated L.K.'s abdominal, pelvic and groin areas. No masses or hernias were found. The abdomen was soft and not tender. The spleen and liver were normal to the touch. She tested the range of motion of L.K.'s hip. The test revealed that it was unlikely that L.K. had suffered a hip fracture. She performed a rectal examination of L.K., which included a guaiac test of L.K.'s stool. The test did not reveal the presence of any blood in the stool. She observed L.K.'s eye movements and found them to be normal. There was no indication from the physical examination Respondent conducted that L.K. had any respiratory, metabolic, hemodynamic or other problem requiring immediate hospitalization. Respondent did not order or perform any tests be done on L.K.'s blood, such as a complete blood count or prothrombin time. In failing to do so, Respondent did not act in a manner that was inconsistent with what a reasonably prudent internist, in view of L.K.'s clinical presentation, would have recognized as being acceptable and appropriate. Notwithstanding that her physical examination of L.K. revealed no signs of any fracture, Respondent, as she noted on the PCR Form, ordered that x- rays be taken of L.K.'s right hip and pelvic area. Humana's x-ray facilities were in a building adjacent to the UCC. L.K. was brought to the building in a wheelchair and the x-rays Respondent had ordered were taken. The radiologist on contract with Humana to read x-rays taken at this site, David Francis, M.D., was not at his station. L.K. returned to the UCC with the x-rays. She told Respondent that the radiologist was unavailable. Respondent telephoned Dr. Francis' office and was told that he had left for the day. Respondent then looked at the x-rays. The x-rays were difficult to read because of the presence of bowel gasses, feces and a pessary and the osteopenic condition 9/ of the x-rayed bone structures. Respondent had obtained L.K.'s medical records from L.K.'s primary care physician and, upon a review of those records, learned, among other things, that L.K. had a "history of osteoporosis," which made her more susceptible to bone fractures. 10/ Nonetheless, as she noted on the PCR Form, Respondent did not see any fractures when she looked at the x-rays. Respondent so informed L.K. and her companions, but added that she was not a radiologist and therefore was not certain that L.K. had not sustained a fracture. She told them that she would have a radiologist look at the x-rays "first thing in the morning" and that she would make arrangements to have L.K. seen by an orthopedic specialist thereafter. Under the circumstances, it was appropriate for Respondent, who was, and did not hold herself out to be anything other than, an internist without any specialized skills or training in either radiology or orthopedics, to seek the input of a radiologist and an orthopedist. Moreover, there was no reason for Respondent to believe that there was any need to have a radiologist or an orthopedist involved in the matter any sooner than the following day. Based upon her reading of the x-rays and the other information she had gathered, Respondent preliminarily determined that L.K. had a lumbosacral sprain, which she noted on the PCR Form by writing, under "assessment," "L/S Sprain." Respondent reasonably believed that there was no present need to hospitalize L.K., particularly inasmuch as she had been assured by L.K.'s companions that there would be someone available at home to watch L.K. at all times. Respondent therefore instructed L.K. to go home and rest. She ordered a walker or a wheelchair for L.K. to use at home when she needed to get out of bed. Respondent told L.K. and her two companions that if there was any increase in L.K.'s pain or discomfort, or if any new problems developed, L.K. should go directly to the Humana/Bennett Hospital emergency room. 11/ That Respondent sent L.K. home is reflected on the PCR Form, however, the form does not indicate what, if any, instructions Respondent gave L.K. Before L.K. left the UCC, she was given injections of Toradol, an anti-inflammatory drug, and Norflex, a muscle relaxant. The injections appeared to make L.K. feel considerably more comfortable. L.K. was also given prescriptions for Indocin and Soma. Respondent listed these medications (Toradol, Norflex, Indocin and Soma) on the PCR Form under "plan." No other entries were made under this heading on the form. Following L.K.'s departure from the UCC, Respondent took L.K.'s x-rays to Dr. Francis' office and laid them on his desk, along with a note requesting that, upon his return to the office, he read the x-rays and call Respondent to tell her of his findings. Respondent also telephoned an orthopedic specialist to schedule an appointment for L.K. for the next day. On the morning of April 23, 1992, Dr. Francis read the x-rays that Respondent had left on his desk the day before. His reading of the x-rays revealed that L.K. had multiple pelvic fractures. Because the anatomy of the pelvis is atypical, it is not uncommon for internists and other primary care physicians who do not have the specialized skills and training of a radiologist or an orthopedist to miss pelvic fractures on x-rays, as did Respondent in the instant case. Respondent's failure to identify the pelvic fractures on L.K.'s x-rays, however, did not result in Respondent rendering care and treatment to L.K. that was inadequate or otherwise inappropriate. Given L.K.'s clinical presentation, whether she had a fractured pelvis or not, sending her home with instructions to rest (as opposed to hospitalizing her) was not inappropriate. Reasonably prudent physicians do not routinely hospitalize patients simply because they have pelvic fractures. After reading L.K.'s x-rays, Dr. Francis telephoned Respondent and advised her that the x-rays revealed that L.K. had fractured her pelvis. Respondent thereupon placed a telephone call to L.K.'s residence. The person who answered the telephone informed Respondent that L.K. had been taken to the Humana/Bennett Hospital emergency room because she was in a great deal of pain. L.K. arrived at the emergency room at approximately 10:30 a.m. complaining of weakness and dizziness. She had a temperature of 95 degrees Fahrenheit (taken orally). Her blood pressure was 98 over 60 and her pulse was 96. Laboratory testing done at the hospital indicated that L.K.'s blood sugar was very high (750 milligrams, which was twice as high as normal), that her hemoglobin 12/ and blood pH were low, 13/ and that she had an enzyme profile indicative of a myocardial infarction. An electrocardiogram administered at the hospital also lent support to the conclusion that L.K. had a myocardial infarction. It appears likely, particularly in light of L.K.'s very high blood sugar, that the myocardial infarction was the product of a diabetic acidosis. X-rays taken at the hospital revealed that L.K. had sustained multiple fractures of her pelvis, but that there was no significant bone displacement. The fracture sites were not near any major arteries or blood vessels. L.K.'s condition quickly deteriorated after her arrival at the hospital. At 2:15 p.m. she was pronounced dead. Thereafter, an autopsy was performed by Stephen Nelson, M.D., of the Broward County Medical Examiner's Office. The following are the "Autopsy Findings" set forth in in Dr. Nelson's Autopsy Report: Atheroscerotic vascular disease, multifocal 14/ Calcific aortic valve Pulmonary congestion, with calcific vessels Ateriolonephrosclerosis Pelvic fracture Cystic encephalomalacia, left putamen, remote Status post resuscitation Edentulous mouth In his report, Dr. Nelson listed the following as the "CAUSE OF DEATH," "CONTRIBUTORY CAUSE OF DEATH" and "MANNER OF DEATH": CAUSE OF DEATH: Pelvic fracture CONTRIBUTORY CAUSE OF DEATH: Coronary atherosclerosis MANNER OF DEATH: Accident Although Dr. Nelson listed "pelvic fracture" as L.K.'s cause of death, in his Autopsy Report, he did not state that he found evidence of tears or lacerations of any major arteries or blood vessels, nor did he indicate that he discovered the loss of an amount of blood sufficient to have caused or contributed to L.K.'s death. He did note, however, the following: Hemorrhage is noted dissecting within the planes of the rectus abdominis muscle extending from umbilicus to pubic symphysis. Hemorrhage is subsequently traced to a 1 inch wide ragged displaced fracture at the pubic symphysis par- ticularly prominent on the left side. There is tearing of the peritoneum, though, no free or clotted peritoneal fluid is noted. There is hemorrhage along the anterior surfaces of the urinary bladder and the serosa of the urinary bladder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Medicine enter a final order dismissing Count One of the Administrative Complaint, finding Respondent guilty of the violation of subsection (1)(m) of Section 458.331, Florida Statutes, alleged in Count Two of the Administrative Complaint, and disciplining her for having committed this violation by issuing her a reprimand. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of March, 1995. STUART M. LERNER 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 14th day of March, 1995.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice veterinary medicine. Petitioner is also responsible for regulating the practice of veterinary medicine. Respondent is licensed as a veterinarian pursuant to license number VM 0002578. Respondent practices veterinarian medicine in Orlando, Florida. Kari On May 5, 1993, Respondent performed an ovariohysterectomy on a feline ("Kari"). An ovariohysterectomy is the surgical removal of the uterus and both ovaries, i.e., a "spay." Respondent failed to remove the left ovary from "Kari." During the surgery, Respondent noted that the ovary was not on the gauze where Respondent had placed the right ovary and other incidental material that Respondent removed surgically. 3/ Respondent searched inside and outside the surgical area for about an hour but could not locate the ovary. Respondent noted in the medical record that an ovarian remnant may have been left in the cat. Respondent advised the owner that if the cat went into heat she should bring the cat back for exploratory surgery to attempt to find and remove the remnant. On July 12, 1993, 4/ the owner observed "Kari" in heat and returned the cat to Respondent. Respondent performed exploratory surgery in an attempt to find an ovarian remnant. Respondent spent approximately one hour searching for microscopic tissue that could be the ovarian remnant. He cleaned the ovarian ligaments in the area of the left and right ovaries, searched the peritoneal area, and searched the adjacent organs. Respondent removed some material but did not locate and remove an ovarian remnant. Respondent advised the owner that he did not find a remnant but that he thought he had removed all of the ovary. Respondent instructed the owner to advise him if the cat came back into heat. Respondent did not charge the owner for the second surgery. In August, 1993, the owner advised Respondent that the cat was in heat. The owner was unwilling to have Respondent perform surgery again. Respondent advised the owner to see a surgical specialist at Respondent's expense. On November 18, 1993, the owner took "Kari" to the Kissimmee Animal Hospital. Medical tests established the cat's estrogen level to be 43.4 pg/ml. The normal estrogen level for a spayed cat is below 25 pg/ml. The treating physician at Kissimmee Animal Hospital referred the owner to a specialist for a third surgery. The owner did not want to subject the cat to a third surgery or incur additional veterinary expenses. On February 16, 1994, "Kari" died. The owner had a necropsy performed. The left ovary was still present in the cat. The pathologist who performed the necropsy retrieved the left ovary from the cat. He initially identified the ovary by visual examination and subsequently confirmed his initial identification on histopathology. The histopathology examination revealed that the ovary and oviduct fimbria were normal. The ovary was the original ovary in its original anatomic position. The ovary was attached to the ligaments that attach the ovary to the dorsal abdominal wall and posterior part. The pathologist found no suture on the ligament that attaches the left ovary to the posterior wall of the abdomen. Respondent's treatment of "Kari," including Respondent's failure to remove the left ovary, did not cause the cat to die. The cat died from a massive infection in the abdominal cavity. The cause of infection could not be determined. Based upon the type and severity of the infection, it could not have begun more than two weeks before the cat's death on February 16, 1994. Respondent last treated "Kari" on July 12, 1993. Neither Respondent nor the treating physicians at Kissimmee Animal Hospital detected any infection in the cat. Dudley On September 7, 1994, Robert and Susan Micalizio took their dog ("Dudley") to a veterinarian who diagnosed the dog as having kidney stones. On September 8, 1994, the owners brought Dudley to Respondent for a separate opinion. Respondent confirmed the original diagnosis. Respondent performed a urinary catheterization. The catheterization failed to unblock the dog's urinary tract. On September 9, 1994, Respondent performed a cystotomy and urethrostomy on "Dudley." Respondent made three separate incisions in the dog's bladder to determine if kidney stones were present. Respondent did not take x-rays before performing surgery on the dog. Respondent's failure to take radiographs prior to surgery in order to properly diagnose the problem departed from the standard of care in the community. Respondent found no kidney stones in the dog's bladder or urethra. Respondent discharged the dog. The dog's urinary symptoms persisted after Respondent released the dog on September 9, 1994. The dog's condition worsened. On September 13, 1994, the owners took "Dudley" to an emergency clinic. X-rays disclosed the presence of kidney stones in the dog's urethra and bladder. The emergency clinic diagnosed the dog with kidney failure. On September 16, 1994, "Dudley" underwent a successful cystotomy and urethrostomy at another animal clinic. It was necessary to perform a cystotomy and urethrostomy to remove the kidney stones and successfully treat the dog. Respondent performed the appropriate procedures but failed to locate the kidney stones, extract them, and otherwise treat the dog appropriately. Respondent reimbursed the owners for the costs of his procedures. Respondent paid for the cost of the subsequent surgical procedures required to treat "Dudley." Penalty Respondent was incompetent and negligent in his care of "Kari." Respondent failed to remove all of the left ovary from "Kari" after two surgical attempts to do so. "Kari" went into heat several more times and endured a second surgery as a result of Respondent's incompetence and negligence. Respondent was incompetent and negligent in his care of "Dudley." Respondent failed to take x-rays prior to performing surgery. Although the surgery Respondent performed ultimately proved to be necessary to treat "Dudley," Respondent failed to detect kidney stones at the time Respondent performed surgery and failed to correct the condition causing "Dudley's" problems. As a result, the dog suffered longer and endured additional surgery. The incompetence and negligence committed by Respondent did not involve deceit, fraud, or misconduct. Respondent did not mislead the owners of either animal. Respondent's incompetence and negligence did not result in the death or serious injury of either animal. Respondent made a reasonable effort to locate the ovary he left in "Kari." Respondent either reimbursed or offered to reimburse the owners of each animal for expenses incurred by them as a result of Respondent's incompetence and negligence. Respondent has no history of prior disciplinary action against him. Respondent has performed over 20,000 spay procedures without incident. Veterinarians leave ovaries, or ovarian remnants, in approximately three percent of spayed animals. Respondent readily admits his lack of care in the treatment of "Dudley." 4 Subject Matter Index Petitioner maintains an index of its agency orders. Petitioner's index is not alphabetical, hierarchical, or numbered sequentially. Petitioner's index does not contain indentations below the subject headings or titles which are more specific than the subject heading or title. The index does not contain cross- referenced common and colloquial words as required by Florida Administrative Code Rule 1S-6.008. 5/ Petitioner's index complies with the requirements of Section 120.53(2)(a)3. In lieu of a hierarchical subject matter index, Petitioner maintains an electronic database that allows users, including Respondent, to research and retrieve the full text of agency orders through an ad hoc indexing system prescribed by statute. Petitioner's electronic database contains complete case files related to any final order issued by Petitioner from July 1, 1992, to the present. The files include administrative complaints, settlement agreements, and orders. Any person may access this information between 8:00 a.m. and 5:00 p.m. Monday through Friday, either in person, by mail, or by telephone. Respondent is able to determine those final orders that involve the statutory or rule violations for which Respondent is charged. Respondent's search of Petitioner's index revealed that Petitioner has never suspended or revoked a license for the same or similar charges as those against Respondent. Petitioner has not revoked the licenses of veterinarians for more serious offenses. Petitioner has imposed a reprimand, required direct supervised probation, or mandatory appearances before Petitioner in only two cases in which the veterinarian's treatment of the animal did not result in the death of the animal treated. Both of those cases involved charges more serious than those against Respondent. Petitioner has imposed the sanctions of suspension, direct supervision, and fines in excess of $500 only where a violation of the law has occurred and the veterinarian's treatment resulted in the death of the animal treated. Respondent's treatment did not result in the death of either animal treated by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 474.214(1)(r), imposing a fine of $499, requiring Respondent to attend 4.9 hours of continuing education courses, and placing Respondent on probation for one year without requiring mandatory appearances in front of Petitioner. The costs of compliance with the final order are the obligation of Respondent. RECOMMENDED this 6th day of August, 1996, in Tallahassee, Florida. DANIEL S. 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 August, 1996.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of paragraphs (m) and (t) of Section 458.331(1), Florida Statutes. By stipulation the parties have resolved all issues other than a determination as to what penalty is appropriate.
Findings Of Fact Stipulated findings of fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0046569. Respondent’s last known address is 3000 N. University Drive, Coral Springs, Florida 33065. Respondent is board certified in internal medicine. Patient S. F., a 76 year old diabetic female, had been under Respondent’s medical supervision since 1989. During an office visit on or about November 1, 1990, Respondent ordered a CBS (complete blood count) which revealed a hypochromic microcytic anemia (an anemia characterized by decreased hemoglobin content such as iron-deficiency anemia). Respondent ordered iron studies and stool for occult blood on or about November 16, 1990. These results clearly indicated an iron deficiency anemia. In June of 1991, Respondent reordered a CBC which revealed a worsening anemia of classic iron deficiency. However, no follow-up treatment or testing was accomplished to address this condition. The medical records of Patient S. F. on August 22, 1991 visit with the Respondent reflect a diagnosis of “anemia ? chronic disease.” During the same visit, another CBC was ordered that again revealed an iron-deficiency anemia. A request for a gastroenterology consultation was noted by the Respondent on the laboratory form, however, such consultation was never accomplished. On or about September 14, 1992, Patient S. F. visited Respondent complaining of paid in her left ankle. Respondent diagnosed Patient S. F. as having possible osteoarthritis and scheduled her for a physical. On or about September 29, 1992, Patient S. F. was admitted to Humana Cypress with gangrene of her left leg and phlebitis of her right leg. Patient S. F. was transferred to Hospice on or about October 7, 1992, and expired on or about October 8, 1992. Respondent’s records do not note a skin exam on diabetic Patient S. F. with complaints referable to her ankle, do not contain a medication list, and do not explain why appropriate follow-up for the anemia was not taken. Respondent practiced below an acceptable standard of care in regard to Patient S. F. by failing to take appropriate follow-up treatment or diagnostic action on Patient S. F.’s iron deficiency anemia. Respondent practiced below an acceptable standard of care in regards to Patient S. F. by failing to take appropriate follow-up treatment or diagnostic action on Patient S. F. after a CBC ordered in June of 1991 and a CBC reordered on or about August 22, 1991, revealed a worsening anemia of classic iron deficiency. Failure to follow-up this finding for nearly two years is not practicing the standard of care. Additional findings based on evidence at hearing The Respondent completed his residency and became board certified in Internal Medicine in 1985. He has practiced in the Coral Springs area since 1985 and, since 1988, has practiced with a family practice physician. The Respondent has active staff privileges at Coral Springs Medical Center and University Hospital in Tamarac. During 1996, the Respondent had a risk management assessment of his office performed by a certified risk manager, Dr. Mickey Demos. That assessment reflects favorably on the Respondent’s current office management practices. The assessment did not, however, address the manner in which the Respondent evaluates and interacts with his patients.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that the Board of Medicine enter a Final Order in this case concluding that the Respondent has violated the provisions of paragraphs (m) and (t) of Section 458.331(1), Florida Statutes, and imposing a penalty consisting of: (a) an administrative fine in the amount of two thousand five hundred dollars ($2,500.00), (b) a requirement that the Respondent within one year of the date of the Final Order complete twenty (20) additional hours of continuing medical education comprised of courses approved by the Board, and (c) placement of the Respondent on probation for a period of one year with a provision that during the period of probation the Respondent shall practice under the indirect supervision of a physician approved by the Board and shall provide such reports regarding his practice during the period of probation as may appear necessary to the Board. DONE AND ENTERED this 10th day of January, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1997. COOPIES FURNISHED: Albert Peacock, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Wilson Jerry Foster, Esquire 1342 Timberlane Road, Suite 101-A Tallahassee, Florida 32312 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
