The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with two violations of Section 458.331(1)(t), Florida Statutes, and one violation of Section 458.331(1)(m), Florida Statutes.
Findings Of Fact Background facts At all times material to this case, the Respondent, Rene A. Munecas, M.D., has been licensed to practice medicine in the State of Florida. Dr. Munecas is board-certified in Obstetrics. As of the date of the events from which the charges in this case arise, Dr. Munecas had practiced obstetrics for approximately 45 years. Dr. Munecas has practiced obstetrics in the State of Florida since 1970. Dr. Munecas was born in Cuba, and he attended medical school in that country. He graduated from the Havana University, School of Medicine, in 1950. He then did a two-year internship in obstetrics at the University Hospital, Havana, Cuba, followed by a two-year residency in obstetrics at the same hospital. Dr. Munecas practiced obstetrics in Cuba until 1961, at which time he moved to the United States. In this country he did a one-year rotating internship at the Highland Park General Hospital, Highland Park, Michigan, followed by a two-residency in obstetrics/gynecology (OB/GYN) at Jackson Memorial Hospital in Miami, Florida. He completed his OB/GYN residency training at Orange Memorial Hospital in Orlando, Florida. Upon completion of his residency training in this country, he practiced in Michigan until 1970, when he moved to Florida. During the many years Dr. Munecas has practiced in Florida, there has been only one prior instance of disciplinary action concerning his practice of medicine. 1/ The prior disciplinary proceeding did not arise from any misconduct by Dr. Munecas, but from concerns as to whether he was "unable to practice medicine with reasonable skill and safety to patients by reason of illness . . . or as a result of any mental or physical condition." 2/ By the time of the final hearing in the prior disciplinary proceeding, all of the medical experts were of the view that Dr. Munecas was able to practice with reasonable skill and safety so long as he continued to be monitored by his treating psychiatrist. The final order in that case (dated August 27, 1984) concluded as follows: ORDERED AND ADJUDGED that Respondent be placed on probation for a period of two (2) years during which time Respondent shall appear semi-annually before the Board and shall continue to be monitored by his treating psychiatrist, Dr. DeJesus who shall submit quarterly reports concerning Respondent to the Board during the two year probation period. No appearances by the treating psychiatrist, Dr. DeJesus, before the Board are required. Facts regarding patient A. B. There is very little evidence in the record of this proceeding concerning the quality or sufficiency of the written medical records kept by Dr. Munecas regarding his treatment of Patient A. B. 3/ There is no clear and convincing evidence that Dr. Munecas failed to keep written medical records justifying the course of treatment of patient A. B. Patient A. B., born July 4, 1965, was seen by Dr. Munecas on August 11, 1994, in the outpatient obstetrical clinic of Baptist Hospital of Miami. She was pregnant with twins. The hospital record indicates periodic visits to the clinic from August 11 through November 17, 1994. Her weight at the initial visit of August 11 was 210 pounds. She was 5 feet, 2 inches, tall. An outpatient ultrasound performed on November 3, 1994, indicated that both twins were in breech position. The results of that ultrasound were reported on November 4, 1994, and were known to Dr. Munecas prior to November 18, 1994, when another outpatient ultrasound was performed on patient A. B. At approximately 6:30 a.m. on November 19, 1994, patient A. B.'s membranes ruptured, and she was taken to the hospital. Dr. Munecas ordered an x-ray of the patient's abdomen for the purpose of ascertaining fetal position. An x-ray of A. B.'s abdomen was taken at about 8:15 a.m. For reasons not clear in the evidence in this case, a second x-ray of A. B.'s abdomen was taken about 10 minutes later. The two x-ray films did not provide any useful information about the position of either of the twins. A few minutes later, Dr. Munecas performed a pelvic examination of patient A. B., for the purpose of trying to determine the positions of the twins. On the basis of that examination Dr. Munecas was of the opinion that twin "A" was in a vertex position, and twin "B" was in a breech position. Later in the day, this opinion was shown to be incorrect. 4/ Dr. Munecas decided it was appropriate to deliver the twins vaginally, and began to take steps to implement that plan of treatment. Among other things, Dr. Munecas attempted to induce labor by administration of Pitocin, which induces labor by increasing uterine contractions. At approximately 5:00 p.m. on November 19, 1994, Dr. Munecas ordered a portable ultrasound examination of patient A. B.'s abdomen. 5/ The ultrasound examination was promptly performed, and by approximately 6:00 p.m. Dr. Munecas received the examination report. The report revealed that both twins were in a breech position. At some point after receiving the report of the ultrasound examination, Dr. Munecas changed his plan of treatment and decided that patient A. B. should be delivered by cesarean section. For reasons not clear from the record in this case, the cesarean section was not done until approximately 10:00 p.m. Twin "A" was delivered at 10:16 p.m., and twin "B" was delivered at 10:19 p.m. Both twins were healthy. Facts regarding current practice of obstetrics Ultrasound imaging is the procedure of choice for obtaining images to show fetal status. Ultrasound is superior to x-ray for such purposes for a number of reasons. Ultrasound produces fetal images that show more details than can be obtained by x-ray. The use of ultrasound also avoids certain potential fetal health risks that are associated with x-rays. Accordingly, except in the most unusual of circumstances, x-rays should not be used to obtain images of fetal status. Under the circumstances presented by patient A. B. on November 19, 1994, a reasonably prudent similar physician would have ordered an ultrasound. If for some reason an ultrasound was not available on the morning of November 19, 1994, a reasonably prudent similar physician would have relied on the results of the ultrasound that was performed on November 3, 1994. Pitocin is a drug that is commonly used by obstetricians to induce and enforce labor. The effect of Pitocin is to increase uterine contractions. Pitocin should only be used when it is desirable to induce labor. The obvious corollary is that Pitocin should never be administered to a patient in which vaginal delivery is contraindicated. Vaginal delivery was contraindicated for patient A. B. because of risks to fetal safety inherent in a situation when twins are both in a breech position. Those risks can be avoided by cesarean section delivery. In circumstances like those presented by patient A. B., with both twins in a breech position, a reasonably prudent similar physician would find it unacceptable to attempt a vaginal delivery. The only acceptable course of treatment under such circumstances would be a cesarean section. 6/ Therefore, it was a departure from standards of care, skill, and treatment acceptable to a reasonably prudent similar physician for Dr. Munecas to attempt to induce labor by patient A. B. Facts regarding patient M. E. Patient M. E., born November 28, 1963, was seen by Dr. Munecas on May 2, 1995, in the outpatient obstetrical clinic of Baptist Hospital of Miami. The hospital record indicates periodic visits to the clinic from May 2 through June 21, 1995. The record also indicates that lab tests had been performed prior to May 2. Dr. Munecas' note for the visit of June 2 indicates his belief that the fetus may have had intrauterine growth retardation. The visits of June 14 and June 21 indicate increases in patient M. E.'s systolic and diastolic blood pressure, and increased protein in her urinalysis. Pre-eclampsia is a term used to describe a form of pregnancy-induced hypertension. Symptoms of pre-eclampsia include elevated blood pressure, presence of protein in the urine and/or the presence of swelling or edema of the hands and feet. A patient exhibiting symptoms of severe pre-eclampsia is at risk for three circumstances of extreme urgency. One is the possibility of a brain hemorrhage, which can be fatal. Second is the possibility of heart failure and pulmonary edema. Third is the possibility of liver hemorrhage, which can cause the liver to swell and burst. This third possibility manifests itself by right upper quadrant abdominal pain. In the early morning hours of June 22, 1995, patient M. E. awoke with severe right upper quadrant abdominal pain. When the pain continued, she called Dr. Munecas at home and described her pain to him. Dr. Munecas instructed her to go to the hospital. At approximately 4:50 a.m. on June 22, 1995, patient M. E. arrived at the hospital. Her blood pressure was taken in the supine position and read 196/111. Patient M. E. complained of continuous severe right upper quadrant abdominal pain. Dr. Munecas was called at home and advised of the patient's status. At that time, Dr. Munecas gave no orders, but indicated his desire for a perinatal consultation. At about 5:00 a.m., the hospital nursing staff called Dr. Lai. Dr. Lai gave no orders, but said that Dr. Munecas should call him at home. Hospital nursing staff called Dr. Munecas a second time at approximately 5:15 a.m. They requested his presence at the hospital to evaluate the patient. At about 6:00 a.m. on June 22, 1995, the hospital nursing staff again called Dr. Munecas and again requested his presence at the hospital. At this time the nursing staff also requested that Dr. Munecas prescribe medication to lower the patient's blood pressure. Dr. Munecas did not prescribe any medications for the patient. Instead, he ordered that an abdominal ultrasound be performed on the patient immediately to see if the patient had gallbladder problems. The ultrasound was promptly performed. It did not reveal any gallbladder problems. At approximately 6:05 a.m., a nurse manager called Dr. Munecas at home, and again requested his presence at the hospital. Dr. Munecas thereupon embarked for the hospital. He arrived at approximately 7:00 a.m. He promptly examined the patient and found her cervix to be dilated up to 2 centimeters. Dr. Munecas' impressions following the examination included "severe pre-eclampsia." Following the examination of patient M. E., Dr. Munecas performed an amniotomy on the patient. Amniotomy is a technique for the induction of labor. It is accomplished by manual rupture of the patient's membranes. An amniotomy should only be performed when it is desirable to induce labor. The obvious corollary is that an amniotomy should never be performed on a patient in which vaginal delivery is contraindicated. Vaginal delivery was contraindicated for patient M. E. for two main reasons. First, following examination of patient M. E., it should have been obvious to any obstetrician that the patient was suffering from severe pre-eclampsia and that prompt action was necessary to minimize the risk of severe harm to the patient's health. Under the circumstances presented by patient M. E., on June 22, 1995, urgent delivery of the baby was the only acceptable course of patient treatment. Under the circumstances presented that day by patient M. E., there was no prospect for her to have an urgent vaginal delivery. A cesarean section was the only prospect for an urgent delivery of patient M. E. The second reason for which vaginal delivery was contraindicated for patient M. E., was the fact that the fetus appeared to have intrauterine growth retardation. Such a fetus is less able than a normal fetus to withstand the rigors of labor. Therefore, such a fetus is at greater risk for possible brain damage or death during vaginal delivery. Such risks are avoided by a cesarean section delivery. By inducing labor in patient M. E., Dr. Munecas exposed both patient M. E. and her fetus to unreasonable dangers which could be avoided by cesarean section delivery. A reasonably prudent similar physician faced with the circumstances presented by patient M. E. on June 22, 1995, would have gone to the hospital as quickly as possible following the first call from the hospital nursing staff describing the patient's status. Dr. Munecas' failure to do so was a departure from acceptable standards of treatment recognized by a reasonably prudent similar physician. A reasonably prudent similar physician faced with the circumstances presented by patient M. E. on June 22, 1995, in view of the obvious need for urgent relief of the severe pre- eclampsia, would have promptly made arrangements for a cesarean section delivery at the earliest possible time. Dr. Munecas' failure to do so was a departure from acceptable standards of treatment recognized by a reasonably prudent similar physician. Dr. Munecas appears to have voluntarily limited the scope of his medical practice since the incidents which gave rise to this proceeding. He limits his medical practice to gynecology and obstetrics in the office. He no longer performs major surgery or vaginal deliveries.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Count Two of the Administrative Complaint; Concluding that the Respondent is guilty of having violated Section 458.331(1)(t), Florida Statutes, as charged in Count One of the Administrative Complaint and as charged in two of the three paragraphs of Count Three of the Administrative Complaint; and Imposing a penalty consisting of a permanent restriction on the scope of the Respondent's medical practice to the following extent: the Respondent is restricted from all hospital-based obstetrical practice and is barred from performing or assisting in the labor or delivery of any hospital obstetrical patient. DONE AND ENTERED this 10th day of February, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2000.
The Issue The issues in this case for determination are whether Respondent James C. Dozier, M.D., committed the violations of Chapter 458, Florida Statutes (2003), as alleged in an Administrative Complaint filed by the Department of Health on October 3, 2006; and, if so, what disciplinary action should be taken against his license to practice medicine in Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. Respondent, James C. Dozier, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 47971. Dr. Dozier’s mailing address of record at all times relevant to this matter is Indian River Memorial Hospital Department of Emergency Medicine, 1000 36th Street, Vero Beach, Florida 32960. Dr. Dozier is board-certified in Emergency Medicine. Dr. Dozier has previously been subject to license discipline in Agency for Health Care Administration Case Number 93-20295. Patient D.C. On September 3, 2003, Patient D.C. was 49 years of age and obese. He was living a largely sedentary lifestyle, having suffered a work-related spinal injury several years before 2003. D.C. did not work. He was taking methadone, a powerful narcotic painkiller used for long-term, chronic pain relief, daily. As a result of his spinal injury, D.C. spent most of his time at home and did not engage in significant physical activity. On September 3, 2003, D.C. experienced an episode of hard coughing, during which he produced brown sputum. At approximately 9:15 a.m., September 4, 2003, D.C. awoke with sharp, left-sided chest and shoulder pain, and shortness of breath. The pain in his chest was excruciating and he had difficulty breathing. Consequently, his wife, S.C., telephoned 911 and requested emergency assistance at approximately 9:19 a.m. Transport of Patient D.C. to the Hospital. Emergency medical services personnel (hereinafter referred to as “EMS Personnel”), arrived at D.C.’s house at approximately 9:25 a.m., September 4, 2003. What transpired beginning with the arrival of EMS Personnel and their delivery of D.C. to Indian River Memorial Hospital (hereinafter referred to as “Memorial Hospital”), was documented in an Indian River County EMS report, Incident # 014509 (hereinafter referred to as the EMS Report). A copy of the EMS Report was admitted as Petitioner’s Exhibit 3. As alleged in the Administrative Complaint, the EMS Report indicates the following: D.C.’s lung sounds were decreased on the left side with wheezes in several fields bilaterally and during transport to the hospital there was no change in his pain, although there was a decrease in the wheezing; At 9:27 a.m. D.C.’s pulse rate was 110, respiratory rate was 24 and oxygen saturation level was 92 percent by pulse oximetry; At 9:39 a.m. D.C.’s pulse rate was 116, respiratory rate was 24, and oxygen saturation level was 97 percent after the administration of oxygen by nasal cannula. A copy of the EMS Report was not provided to Memorial Hospital until after the events relevant to this case. While the EMS Report notes that EMS Personnel “[t]ransferred care to ER nurse with report,” the nature of the “report” was not proved during the hearing of this matter. Dr. Dozier was not made aware of the contents of the EMS Report or the “report” purportedly made by EMS Personnel to the emergency room nurse. Nor did he make any effort to inquire about D.C.’s condition during the time he was in the care of EMS Personnel. While the evidence presented at hearing proved that Dr. Dozier should have made an effort to inquire about D.C.’s condition during the time he was in the care of EMS Personnel, the charges in this case are limited to Dr. Dozier’s actions after D.C.’s arrival at Memorial Hospital; there is no allegation in the Administrative Complaint relating to any failure on the part of Dr. Dozier to determine what data EMS Personnel were aware of or ultimately reported. Most importantly, while there are allegations of fact concerning what EMS Personnel determined about D.C.’s condition, the Administrative Complaint does not inform Dr. Dozier of how those facts related to his care of D.C. What was in the EMS Report is, therefore, ultimately not relevant in deciding whether the allegations of the Administrative Complaint have been proved. Counsel for the Department has accurately reported parts of the EMS Report in paragraphs 23 through 32 of Petitioner’s Proposed Recommended Order and counsel for Dr. Dozier have accurately summarized some of the information contained in the EMS Report in their proposed finding of fact 8. Those proposed findings of fact, although accurate, have not been included in this Recommended Order because they relate to information which Dr. Dozier never had at the times relevant to this case. Dr. Dozier’s Treatment of Patient D.C. EMS personnel delivered D.C. at Memorial Hospital at approximately 9:54 a.m., September 4, 2003. It was documented in the Emergency Room (hereinafter referred to as the “ER”), nurse’s notes, that D.C., upon arrival, reported that he had suffered a severe coughing spell the night before, experienced increased shortness of breath, coughed up dark brown sputum, and had felt sharp left-side chest pain. It was also documented that D.C.’s oxygen saturation was 94 percent on supplemental oxygen; he was experiencing the highest level of left-sided chest pain, pain that increased with deep breaths; he was awake, alert, and oriented; his complexion was normal in color; his pulse rate was 99 beats per minute; and his respiratory rate was 22 breaths per minute. An ER nurse noted that D.C. had a history of spinal surgery and was taking methadone. Another ER nurse saw D.C. at approximately 10:00 a.m. The nurse noted in the record that D.C. was suffering sharp pain on inspiration, his oxygen saturation had increased to 97 percent on two liters of supplemental oxygen, and that he had decreased breath sounds on the left side of his chest. One of the nurses who saw D.C. ordered blood tests, including a complete blood count, cardiac markers, a differential, and a complete metabolic panel. The blood tests were subsequently cancelled. The only documentation in D.C.’s medical records at Memorial Hospital indicates that the tests were cancelled at 10:15 a.m. with a notation “Cancelled Requested by Nurse/MD PER DR DOZIER,” although Dr. Dozier did not first see D.C. until approximately 10:15 a.m. Dr. Dozier testified at final hearing that the tests had been cancelled at D.C.’s request. There are no medical notes to substantiate this testimony. Dr. Dozier documented his care of D.C. in an “Any Complaint Template” form with a time stamp of 10:17:33 a.m. Dr. Dozier noted in the Any Complaint Template that D.C. was suffering from sharp, left-sided chest pain of several hours duration with splinting (stiffening of the body to avoid pain caused by movement) and decreased breath sounds on the left side. Dr. Dozier also documented that D.C.’s past medical history included chronic pain that was being treated by methadone. Dr. Dozier ordered a chest X-ray and an EKG. He also started D.C. on Toradol, a non-steroidal, anti-inflammatory drug used for pain relief, and Levaquin, an antibiotic. The chest X- ray and EKG were documented in the Any Complaint Template. The EKG performed on D.C. was normal. His chest X-ray was interpreted by the radiologist as normal, except that he was exhibiting poor inspiratory effort. Dr. Dozier, under “differential diagnosis,” listed pleurisy (an inflammation of the lining of the chest wall and lungs marked by chest pain that increases on inspiration) first and pneumonia (an infection of the lungs marked by a severe cough, chest pain, and fever) second. A “differential diagnosis” was explained by Dr. Murray: Differential diagnosis is when you have a patient that comes into the emergency room and he has this constellation of signs and symptoms and risk factors. You try to put it together, you make a list, here’s all the possible things that could be wrong with this guy. So that’s your differential diagnosis. What are the possibilities here with what I have to look at. So you list our differential diagnosis. Transcript, page 39, lines 22-25, and page 40, Lines 1-4. Based upon the information which Dr. Dozier had concerning D.C., while pleurisy and pneumonia were reasonably included in his differential diagnosis, he should have also considered myocardial infarction, bronchitis, and, most significantly, pulmonary embolus. Of significance in this case, is Dr. Dozier’s failure to include pulmonary embolus in his differential diagnosis. Pulmonary embolus is a condition whereby the arteries in the lungs are blocked by one or more blood clots. A pulmonary embolism usually occurs when blood clots that have formed in the veins of a person’s extremities dislodge and are transported by the blood stream to the lungs where they become trapped by smaller arteries. The formation of blood clots in the extremities is called deep vein thrombosis (hereinafter referred to as the “DVT”). When blood clots become lodged in the lungs, the lungs can be damaged or, if blood flow becomes too constricted, the person can die. Pulmonary embolisms are encountered in emergency rooms with some frequency. In determining whether a person is suffering from pulmonary embolus, the common risk factors must be considered. Those risk factors include a history of previous pulmonary embolus or DVT; immobilization (the person is confined to bed, sedentary, or has recently taken a long trip); smoking; obesity; hypercoagulablity (increased tendency of the blood to clot); and cancer. The most common signs of pulmonary embolus are chest pain, usually of sudden onset and which becomes worse with deep breathing or coughing; shortness of breath, again of a sudden nature; sweating; nausea; rapid breathing or tachypnea; increased heart rate or tachycardia; low oxygen saturation; and hemotysis or coughing up blood. Making it difficult to diagnose, a patient with a pulmonary embolism may present with various combinations of symptoms, and the symptoms are often similar to those of other ailments, such as heart attack, bronchitis, pleurisy, pneumothorax, acid reflux, dissecting thoracic anerurysm, and pneumonia. Tests which can assist a physician in the either confirming or ruling out a pulmonary embolism, include ventilation/perfusion scanning (hereinafter referred to as “V/Q Scanning”), d-dimer testing, spiral computerized axial tomography, pulmonary angiography, and Doppler ultrasound. While not all of these tests were available to Dr. Dozier, V/Q Scanning was. Pulmonary embolus should have been included in Dr. Dozier’s differential diagnosis of D.C. because D.C. arrived at the ER with a chief complaint of chest pain and, as explained by Dr. Murray because of the following: Now, what would even make [pulmonary embolus] more likely, and perhaps having to pursue a little bit more, is the type of pain that he had, which is important to tell the difference between a lot of those conditions. He had pleuritic pain. That’s the classic type of chest pain that somebody with a pulmonary embolus has as classically described as pleuritic sharp chest pain. That’s what this patient had. Then what was the onset? Was this gradual onset or sudden? P[ulmonary] E[mbolism]s are sudden onset. As far as I can tell, when it says in timing, it says symptoms for, now I can’t read that, how many that is, but he had circled hours. So I can just assume that he told Dr. Dozier that he was having these symptoms just for however many hours that stands for. So I was worried about the chest pain, the nature of the chest pain, the short duration of it, that I think it says brownish – or I’m not even – I would cough brownish sputum. I think that’s what it says, but I couldn’t say for sure under history of present illness, which would make me worry about that. Transcript, page 85, lines 3-23. D.C.’s history of acute onset shortness of breath and severe left-side pleuritic chest pain, his possible hemoptysis the night before his arrival at Memorial Hospital, and his elevated pulse and respiratory rates, all facts that were documented in the medical records for D.C. at Memorial Hospital, should have caused Dr. Dozier to include pulmonary embolus in his differential diagnosis. As a result of the fact that he did not consider pulmonary embolus as a possible ailment, Dr. Dozier failed to order tests which could have helped him to rule out pulmonary embolus or led him to conclude that D.C. was suffering from the ailment. In particular, he failed to order a V/Q scan. Ultimately, Dr. Dozier released D.C., listing as his final diagnoses pleurisy and bronchitis (inflammation of the bronchial tubes marked by painful cough and fever). Dr. Dozier prescribed Vioxx, a non-steroidal anti-inflammatory drug, Levaquin, and Flexeril (a central nervous system depressant, commonly referred to as a “muscle relaxer”). Cancellation of the Blood Tests. As noted in Findings of Fact 19, blood tests ordered for D.C. were ultimately cancelled. According to Dr. Dozier, they were cancelled because D.C. refused the tests, a suggestion that was not documented by Dr. Dozier in D.C.’s medical records, despite the seriousness of a patient refusing tests which a physician prescribes. Given the significance of the consequences of such a refusal, Dr. Dozier’s testimony on this point is questionable and rejected as not convincing. Other facts also raise concerns about the credibility of Dr. Dozier’s testimony concerning the cancellation of the blood tests. For example, S.C. saw D.C. approximately an hour after his arrival at the hospital and found him quiet, pale, and looking very ill. At no time did D.C. or Dr. Dozier, whom she had spoken with, inform S.C. that D.C. had refused blood tests. It is also noted that D.C. did not refuse other tests, including the chest X-ray and EKG ordered by Dr. Dozier. Ultimately, Dr. Dozier’s explanation concerning the cancellation of the blood tests was not convincing, based upon findings made in this Recommended Order and because of the troublesome aspects of his testimony as explained in paragraph 51 of Petitioner’s Proposed Recommended Order, which is incorporated by reference. Despite this conclusion, ultimately, it was the Department’s burden to prove why the blood tests were cancelled. This the Department simply did not do. Ultimately the evidence simply proved that the tests were ultimately cancelled. Regardless of why the blood tests were cancelled, Dr. Dozier violated the standard of care, as found, infra. Instructions on Discharge. On discharge, D.C. was given the following written instructions on a pre-printed form: The doctor thinks your symptoms may be due to: PLEURISY. Keep this in mind: DIAGNOSIS WITH 100% CERTAINTY IS NOT POSSIBLE in the Emergency Department. Therefore, if you find you are not getting better, another diagnosis is possible, and you must see your doctor or return here. After you leave, you must properly care for your problem and observe its progress. If you do not improve as expected, or are worse, do one of the following. Immediately: contact your doctor or follow up doctor or call here [the ER]. Contact your doctor, call, or return here if you experience any of the following: A) high fever or chills B) difficulty breathing C) difficulty; swallowing or drooling D) pain or tightness in chest or neck E) thick green or bloody sputum F) fast pulse (more than 100 a minute at rest) G) vomiting. Your symptoms should improve within 4-6 days and should not worsen. You should be able to breathe comfortably when sitting or lying down, and should not be struggling to breathe. You should be able to eat, drink, and swallow without pain or drooling. Rest, drink plenty of fluids, and eat regular well-balanced meals. Use Acteminophen (Tylenol, etc.) for pain or fever, and take any prescribed medications. A cool-mist vaporizer may help decrease cough and discomfort. DO NOT use a hot mist vaporizer of hot steam. DO NOT smoke during your illness; smoking will delay your recovery. The forgoing instructions were consistent with Dr. Dozier’s diagnosis of pleurisy or bronchitis. Having failed to consider pulmonary embolus, the instructions were inadequate in failing to address this possible condition. The Standard of Care. The Department's expert, John V. Murray, M.D., credibly opined that Dr. Dozier failed to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure in violation of Section 458.331(1)(t), Florida Statutes (hereinafter referred to as the "Standard of Care"), in his treatment of D.C. In particular, it was Dr. Murray’s opinion that Dr. Dozier violated the Standard of Care by failing to recognize the possibility that D.C. was experiencing a pulmonary embolism and, as a consequence, by failing to include pulmonary embolus in his differential diagnosis; and by failing to order diagnostic tests, in particular V/Q Scanning, which may have either ruled out or confirmed the existence of a pulmonary embolism. Dr. Murray’s opinions are credited and accepted. The opinions to the contrary offered by Dr. Dozier and his expert witness are rejected as not convincing and as not addressing the issues precisely enough. Too much was made of facts which were not available to Dr. Dozier at the time he made his differential diagnosis and the consequences thereof, unlike Dr. Murray, who specifically testified, when asked whether he attempted “to put yourself in Dr. Dozier’s shoes on the day these events occurred,” as follows: A. Yes, sir. I think that’s necessary. If you’re going to make a finding that was the standard of care, I think the standard of care relates to what would the prudent physician in the same circumstances on the same day do. In order to do that, you put yourself in those shoes. Say if I was there what would I do and what would be the standard of care for that, the minimum. Transcript, page 33, lines 22-25, and page 34, lines 1-3. Dr. Murray went on to explain that, although he had learned from the documents presented to him, information that Dr. Dozier did not have available while caring for D.C., he was able to limit his opinions appropriately to the time of the actual events and the information which Dr. Dozier was presented with. The opinions offered on behalf of Dr. Dozier were not so precisely limited. Medical Records. Dr. Dozier failed to document in his medical records for D.C. whether D.C. was a smoker or had recently taken any long trips, both facts which are relevant bits of information when considering pulmonary embolus. Dr. Dozier’s medical records were, therefore, inadequate in this regard. Dr. Dozier also failed to give adequate follow-up instructions for pulmonary embolus upon discharge. Dr. Dozier’s actions, however, were the result, not of his failure to include pulmonary embolus in his differential diagnosis, but in the failure to accurately diagnosis D.C.’s condition, a failure for which Dr. Dozier has not been charged. I. D.C.’s Demise. On September 6, 2003, D.C. died in his sleep. A postmortem autopsy of D.C. revealed that he died of “massive pulmonary thromboembole due to phlebothromboses of lower extremities.” It was found that D.C. had an abdominal malignancy, a significant contributing factor in the death of D.C. What role, if any, that Dr. Dozier’s failures in his treatment of D.C. contributed to D.C.’s ultimate demise was not proved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that James C. Dozier, M.D., has violated Section 458.331(1)(m) and (t), Florida Statutes, as described in this Recommended Order; issuing a reprimand; imposing a fine of $10,000.00; requiring that he complete the Florida Medical Association’s “quality Medical Record Keeping for health Care Professionals” course or a Board-approved equivalent; and requiring that he complete five hours of continuing medical education in diagnosis and treatment of pulmonary embolus. DONE AND ENTERED this 20th day of September, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 20th day of September, 2007. COPIES FURNISHED: Don Freeman, Esquire Assistant General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250 Barry A. Postman, Esquire Lee Cohen, Esquire Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Boulevard Second Floor West Palm Beach, Florida 33401 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
