The Issue The issues presented for decision herein are whether or not the Respondent's physician license number ME 0034228 should be disciplined based on allegations set forth hereinafter in detail, that he violated various provisions of Section 458.331, Florida Statutes, as set forth in the consolidated administrative complaints filed under DOAH Case Numbers 83-1819 and 84-3052, as amended.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent is a licensed physician and has been issued license number ME 0034228 in the State of Florida. Between December 31, 1981, and at least December 1982, Respondent's license to practice medicine was placed on inactive status because of nonpayment of licensing fees. (Petitioner's Exhibit 10 and TR page 31) During the above-referenced time periods, Respondent performed or aided in the performance of medical abortions in Miami, Florida, including ones relating to Janet Lee Miller, Myrtha Baptiste, and Yvonne Bruno. (TR pages 326- 347 and 350- 377) On dates that Respondent performed or assisted in the performance of medical abortions previously mentioned, Respondent did not have an active license to practice medicine in the State of Florida. Myrtha Baptiste died following an abortion. In conjunction with criminal investigations of the death of Myrtha Bactiste, Respondent was interviewed by Nelson Andreu, a homicide detective with the City of Miami Police Department and George Sanchez, who was then an investigator with the State Attorney's Office. During the course of those interviews, Respondent advised Andreu and Sanchez that he had personally mailed in the items required for renewal of his license and that, as far as he knew, his license was valid. Megaly Lorenzo, a secretary in the Santa Rosa Medical Center where Respondent worked in 1981 and 1982, testified that Respondent gave Lorenzo his renewal fees in cash for 1982. Lorenzo did not renew Respondent's license because she forgot to. She informed Respondent of that omission during 1983. (TR pages 309-312) When Megaly Lorenzo renewed a license, she received a wallet-sized license from the Board of Medical Examiners which was then placed in the mirror in the offices at the Santa Rosa Medical Center. Between approximately January 15, 1981 and December 1982, Respondent worked as a physician at the Women's Care Center located at 5601 Biscayne Boulevard, Miami, Florida. At times material hereto, Hipolito Barreiro was the owner and director of Women's Care Center. At all times material hereto, Hipolito Barreiro was not licensed to practice medicine in the State of Florida. (Petitioner's Exhibit 3 and testimony of Elaine Prater, TR page 268) Between approximately January 15, 1981, and December 1982, Barreiro was engaged in the practice of medicine at the Women's Care Center located at 5601 Biscayne Boulevard, Miami, Florida. During the relevant time period, Hipolito Barreiro performed various procedures which constitute the practice of medicine. As example, during February 1982, Barreiro inserted an intrauterine contraceptive device into Carmen Moses' cervix. In July 1982, Barreiro gave Patricia Humbert an injection and later performed an abortion on Humbert. In September 1982, Barreiro performed a gynecological examination on Etta Annette Brown to determine the status of her pregnancy. In December, 1982, Respondent performed a vaginal examination on Debra Plez confirming the fact that Plez was 6 1/2 months pregnant. Barreiro gave Plez a prescription, placed an IV in Plez's arm and finally performed an abortion on her (Plez). Elaine Prater, an employee at the Women's Care Center, observed Barreiro perform abortions on several occasions while Respondent was employed as a physician at the Women's Care Center. Respondent would sign patient charts as the physician performing the abortion when, in fact, the abortion was performed by Barreiro. These occurrences would usually take place in those instances where Respondent either arrived at work late or left work early. Additionally, it was noted that Respondent maintained a separate list of those patients on whom he performed an abortion and those patients for whom he had not operated or aborted. Ms. Prater acknowledged that Respondent was confronted on several occasions by her (Prater) and Trudy Ellis about his practice of signing charts for those patients whose abortions he had not performed. Finally, Respondent admitted to Roger Stefins that he knew that Barreiro was not licensed to practice medicine in Florida. Also, evidence reveals that Respondent confronted Barreiro on more than one occasion asking, "Haven't I told you not to examine girls before?" (TR page 80) As stated, Respondent maintained a separate list of patients on whom he had performed abortions for his own use. (See Petitioner's Exhibits 3 and 4) On several occasions, Respondent was presented "physician's reports of the termination," for abortions performed by Barreiro and was asked to sign the reports as a "physician" performing the termination. Respondent signed these reports even though he knew that the actual abortions had been performed by Barreiro. (TR pages 269-275) Respondent knew, or should have known, that the abortions had been performed by Barreiro as he was on duty, and because the patients would already be in the recovery room when he (Respondent) arrived for work. (TR page 278) During May 1982, Yvonne Bruno, a twenty-eight year old Haitian woman, went to the Women's Care Center for the purpose of having an abortion performed. Initially, Bruno went to the Women's Care Center on May 4, 1982, with $160. She was told to come back to the Center on the following Saturday, May 8, 1982, with $200. Bruno was not examined during that initial visit. On May 8, 1982, Ms. Bruno returned for the purpose of having an abortion. She only had $190. After arriving at the clinic, Bruno changed into a paper gown. Bruno signed several papers on May 8, 1982. One such paper was a sheet entitled, "Important Information Which Every Patient Should Know Concerning The Termination Of Pregnancy Procedure," which was a form maintained by the Women's Care Center. On the information sheet, Bruno's last menstrual period was listed as January 23, 1982. The appointment date for Bruno's abortion was listed on the information sheet as "5-9-82." In addition to the information sheet, Bruno also signed a form giving her consent for the Respondent to perform a pelvic examination. The consent form bore the date "5-8-82." Finally, Bruno signed a "Patient Information And Medical History" form which was dated May 9, 1982. (Petitioner's Exhibit 8) On May 8, 1982, Respondent performed an abortion on Bruno, using the dilation and aspiration method, followed by curretage. During the course of the abortion, Bruno's uterus was perforated. Respondent knew that Bruno's uterus was perforated almost immediately following perforation. (Petitioner's Exhibits 3, 4, 8, 9 and testimony of Pedro Ramos) On the physician's report of the termination, the term of Yvonne Bruno's pregnancy was listed as twelve (12) weeks. The form indicated that the termination was performed on May 9, 1982. Examination of the facts reveal that this was incorrect. The physician's report of the termination for Bruno indicated that the following complications occurred: "Complications: After aspirations with vacuum, the use of curette reveals perforation of uterus. We stop the operation and the patient is taken to the hospital." The physician's report of the termination for Bruno was signed by Respondent. (Petitioner's Exhibit 8) Ms. Bruno awoke after the abortion and was put in the recovery room. She was cold and experienced stomach pain more severe than she ever experienced before. The pain was persistent. Bruno informed the doctor who performed the abortion that she was having pains while she was still in the recovery room at the Women's Care Center. (TR pages 360-362) While Bruno was in the recovery room, the doctor who performed the abortion told Bruno that she has something in her uterus and that he (the doctor) had cleaned it out. He told Bruno that if she felt any more pain to call him, regardless of time. He also gave Bruno the telephone numbers for his house and the clinic. (TR pages 361, 362) Ms. Bruno remained at the Women's Care Center in the recovery room only long enough for a taxi to arrive. Immediately upon being taken to the recovery room, her friend, Amelia Ingrid Previle, called for a taxi. Bruno was in the recovery room less than an hour. While in the recovery room, Ms. Bruno's condition was not monitored. That is, no one took her blood pressure, respiration or pulse rates. (TR pages 363, 364 and 367-370) When the taxi arrived, Ms. Bruno left the Women's Care Center unable to walk because "her feet were so heavy." Therefore, the taxi driver and her friend, Previle, had to help Bruno to her friend's car. (TR pages 362, 363) It took Ms. Bruno approximately 15 minutes to get home from the Women's Care Center. When she arrived home, she felt intense pain which she credited to the fact that perhaps she had not eaten before she went to the Center. She drank tea and put some ice on her stomach. Bruno's pain intensified and her friend, Previle, started trying to contact Respondent in the late afternoon on May 8, 1982, by phone. Previle continued to try to contact the doctor until the early morning on May 9, 1982. When Previle finally contacted the doctor, Bruno was directed to come to the Women's Care Center. Bruno did so and, upon arrival at the Women's Care Center, she was given a pill. She was then taken to American Hospital in Miami, Florida. At approximately 6:30 a.m. on May 9, 1982, Hipolito Barreiro contacted Pedro M. Ramos, a physician specializing in gynecology and informed him that he had an abortion clinic. Barreiro also told Ramos that "they" thought that "they" had perforated a uterus during an abortion. Dr. Ramos agreed to meet the patient at the emergency room of American Hospital. (TR pages 326, 327) Once Dr. Ramos arrived at American Hospital, he attempted to obtain a patient history from Bruno; however, this was difficult because of Bruno's limited ability to speak English. With the help of Barreiro and Previle, Dr. Ramos was able to obtain some information. However, on the patient history, Dr. Ramos made the notation that "unable to verify (past illness) properly. Pt. speaks little english." (TR pages 329, 350-377 and Petitioner's Exhibit 9) When Dr. Ramos arrived at American Hospital, he was given the following patient history for Bruno: "25-year old black female complaining of abdominal pain of 4-6 hours onset with fever (? chills) with brownish discharge from vagina after an abortion performed on May, 1983 . . ." (Testimony of Pedro Ramos, M.D. and Petitioner's Exhibit 9) Based on the available information, Dr. Ramos diagnosed Bruno as suffering from a perforated uterus and possibly peritonitis. After performing the necessary laboratory tests, Bruno was taken to surgery for an exploratory laparotomy which revealed a perforated uterus. The uterus was perforated at the fundus on the right side. The perforation was more than 4 centimeters long. The exploratory laparotomy also revealed fetal parts in Bruno's abdomen. Dr. Ramos found at least the head and spine remaining in Bruno's abdomen. (TR page 329 and Petitioner's Exhibit 9) After the exploratory laparotomy, Dr. Ramos also determined that, in addition to the items noted above, an inflammation process had begun (peritonitis), affecting Bruno's ovaries. Dr. Ramos removed the fetal parts from Bruno's body, irrigated the area and performed a complete hysterectomy, removing both the ovaries and uterus which were beyond repair. The head of the fetus removed from Bruno's uterus measured four centimeters by two centimeters. Therefore, Dr. Ramos opined that the fetus would have been approximately 17 to 18 weeks of age. At this stage of development, fetal parts are very hard. When suction is applied to the uterus, the solid parts are moved around. The fetal parts are, at this stage, too large to go through the suction tube and remain in the uterus after suction. Following the use of suction, curretage follows. The manipulation of the curette in the uterus will then result in movement of the fetal parts. Usually, it is the spine or an arm which actually causes the perforation. By manipulating the fetal parts, the physician can cause the fetal part to perforate the uterine wall which is very soft at this stage. Bleeding can be ascertained through a monitoring of the patient's vital signs and by observation of the patient's general appearance. (TR page 224) In determining how long a patient should be monitored after an abortion has been performed, it is important to know the stage of pregnancy. With an early pregnancy, i.e., 10 - 12 weeks, the patient may be observed for a shorter period of time. Where there are no complications, the patient should be observed for between 1/2 to 1 hour. (TR pages 222 - 225) With an advanced pregnancy, i.e., one in the second trimester, the patient should be monitored for two hours after the abortion is completed. The patient might be monitored for a longer period of time if there are difficulties after the abortion is completed. Monitoring should include checking vital signs such as blood pressure, pulse and respiration rates and checking the patient for hemorrhaging and infection. Usually, with a perforated uterus, the patient experiences abdominal pain immediately following the abortion. A doctor who recognizes that he has perforated a uterus during an abortion should transfer the patient to the hospital for observation. If a patient complains of severe abdominal pain immediately upon completion of an abortion, the doctor should observe the patient until the pain disappears or until the cause of the pain is determined and dealt with. In this regard, Respondent admitted that he perforated Bruno's uterus during the performance of an abortion. (Petitioner's Exhibit 3, pages 20-23) Noteworthy is the fact that Respondent, when questioned by Investigator Stefins, an Assistant State Attorney, stated that punctures of the uterine wall should never be treated in the clinic and that on the occasions when he punctured a uterus, he would take that patient to the hospital. Perforation of a uterus is not, in and of itself, malpractice or negligence. It is below minimal standards of care, skill and treatment for a reasonably prudent physician to fail to carefully monitor a patient, by checking blood pressure, pulse and respiration rates, as well as checking the patient's general appearance after an abortion performed during the second trimester, for a sufficient period of time to determine the existence of complications. If the patient complains of persistent abdominal pain, it is below minimally acceptable standards of care, skill and treatment, as recognized by reasonably similar prudent physicians, under such conditions as are described above to release the patient without first carefully monitoring the patient until the pain disappears or until cause of the pain can be determined and dealt with. (Testimony of Doctors Ghali and McLeod)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's physician license number ME 0034228 shall be suspended for a period of two years and a civil penalty of $2000 shall be imposed. RECOMMENDED this 12th day of July, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1985.
The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.
Findings Of Fact Respondent is Grayson C. Snyder, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0004035. Respondent's last known address is 635 West Central Avenue, Blountstown, Florida 32424-1909. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.165, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. At all times pertinent to these proceedings, Respondent was the director of the Calhoun County Public Health Department and the Liberty County Public Health Department. He split his time equally between the two health departments, working at each for two and a half days per week. Respondent saw approximately 16 patients per week in the family planning clinics in the two health departments. Patient S.M. S.M. was unsure of the date of her examination by Respondent. As conceded by Respondent's proposed finding of fact and corroborated by S.M.'s medical records, S.M. was seen by Respondent at the Blountstown or Calhoun County health department on October 11, 1989. Following a full physical examination by Respondent, inclusive of a pap smear, the nurse left the examination room with the pap smear specimen. Respondent and S.M. were left alone. S.M. was sitting on the examination table with the sheet wrapped around her. Respondent asked S.M. if she "watched dirty movies where people done it like dogs and ate one another." S.M. was discomfited and shocked by the question. Later, after leaving the examination room, she told a nurse at the facility that she did not like Respondent. S.M. felt that the nurse did not want S.M. to be heard by any other persons nearby. Patient E.B. Patient E.B. was seen by Respondent on August 17, 1990, at the Calhoun County Health Department. Following performance of a pap smear procedure, the nurse left the room with the specimen. Respondent touched E.B. between her legs and asked her if she liked sex, how many times a night did she have sex and how many orgasms she had. E.B. was "throwed for a loop" and gave no answer. She had not asked any questions of Respondent to precipitate such sexual inquiries. Patient M.H.A. On December 13, 1990, Patient M.H.A. was seen by Respondent for a gynecological examination. M.H.A. was 14 years of age at the time. Following departure of the nurse from the examining room with the pap smear specimen, Respondent was left alone with the patient. Respondent asked M.H.A. if her boyfriend had a big penis and if her boyfriend liked her because she had big breasts. Shocked and surprised at these questions, but unsure of their propriety since this was her first gynecological examination, M.H.A. gave Respondent no answer to his questions. Upon the nurse's return to the examination room a short time later, M.H.A. dressed and left the room. Patient R.H.P. On August 23, 1989, R.H.P. was examined by Respondent. Again, when the nurse left the examination room with the pap smear specimen leaving Respondent alone with the undressed patient, Respondent began asking questions. He asked the female patient if she ever had an orgasm. Being 14 years old, she replied that she didn't know what that was. Respondent asked R.H.P. if she went with her boyfriend for the size of his penis. R.H.P. said no. Respondent left the room, the nurse returned and R.H.P. dressed and left the facility. L.H. is the mother of Patient R.H.P and Patient M.H.A. At final hearing, L.H. related that M.H.A. told her the questions asked by Respondent during the child's examination. Patient R.H.P. confirmed to her mother that she had been asked similar questions. L.H.'s testimony is credible and corroborative of her daughters' testimony with regard to Respondent's conduct. Respondent Respondent is 74 years of age and has dedicated his professional career to the practice of medicine in the Blountstown area. As a matter of routine, Nurses Pratt and Johnson left Respondent alone with his female gynecological patients at the times in question in these proceedings when they left the examination room with specimens destined for laboratory analysis. While she never heard Respondent ask inappropriate questions, Nurse Pratt admits that some patients informed her that they were uncomfortable with examination by Respondent and never wanted to be examined by him again. Respondent's denial that he asked the questions about which his patients testified, is not credited. As established by the testimony of Elga White, M.D. and Harvey Gardy, M.D., experts testifying on behalf of Respondent and Petitioner, respectively, the questions posed by Respondent to the four patients which form the subject of this proceeding were inappropriate in the absence of initiation of such sexual inquiries by the patients.
Recommendation Based on the foregoing and in accordance with Petitioner's penalty guidelines set forth in Rule 61F6-20.001, Florida Administrative Code, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations alleged in counts one and two of the Administrative Complaint and imposing discipline upon Respondent's license as follows: Imposition of an administrative fine of $5,000. Suspension of Respondent's license to practice medicine for a period of not less than six months with reinstatement upon satisfaction of conditions to be imposed by the Board of Medicine. Imposition of a probationary period of two years following reinstatement with probationary conditions to be determined by the Board of Medicine, inclusive of a condition that Respondent have a female attendant present at all times when he is with a disrobed female patient in an examining room. DONE AND ENTERED this 31st day of October, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 31st day of October, 1994. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-13. Adopted in substance, but not verbatim. Respondent's Proposed Findings. 1.-6. Adopted. 7.-16. Rejected, unnecessary. 17. Incorporated by reference. 18.-20. Rejected, unnecessary, with exception of last sentence of proposed finding #20, which is not supported by weight of the evidence. Pratt did receive complaints from patients about inappropriate questions. See, Tr.153. 21. Rejected, subordinate to HO findings. 22.-27 Rejected, unnecessary and subordinate to HO findings. 28.-29. Adopted. 30.-38. Rejected, subordinate to HO findings. 39. Adopted. 40.-47. Rejected, subordinate to HO findings. Adopted. Rejected, unnecessary. 50.-54. Rejected, subordinate to HO findings. 55.-64. Rejected, argumentative, credibility with regard to the comments made to R.H.P. clearly sides with R.H.P. Proposed findings are subordinate to HO findings. 65.-72. Rejected, subordinate to HO findings, argument. 73.-74. Rejected, unnecessary. 75.-77. Rejected, argument. 78.-82. Rejected, subordinate to HO findings. COPIES FURNISHED: Michael P. Spellman, Attorney at Law P. O. Box 1674 Tallahassee, FL 32302-1674 Francesca Plendl, Senior Attorney D B P R 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Marm Harris, Executive Director Board of Medicine Department of Professional Regulation The Northwood Centre 1940 N. Monroe St. Tallahassee, FL 32399-0750
The Issue The issues in this case are whether Respondent violated Subsections 456.072(1)(k), 458.331(1)(g), 458.331(1)(m), and 458.331(1)(t), Florida Statutes (2005),1 and Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2004), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency in Florida charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all times material to the Amended Administrative Complaint, Dr. Pendergraft has been a licensed physician in the State of Florida, having been issued license No. ME 59702. Dr. Pendergraft is board-certified in Obstetrics and Gynecology. He does not have hospital privileges in Florida. At all times material to the Amended Administrative Complaint, Dr. Pendergraft, alone or with one or more partners, owned and operated Orlando Women’s Center, Inc. (OWC), a clinic located in Orlando specializing in abortions. OWC is not a hospital. At all times relevant to the Amended Administrative Complaint, Dr. Pendergraft did not have a current, valid Drug Enforcement Administration (DEA) number. On June 3, 2005, R.W. presented to her primary care physician symptoms of weight gain, fatigue, and lack of a menstrual period for several months. R.W. was a marathon runner and had experienced a delay in her menstrual cycle before because of her strenuous training. She had been taking oral contraceptives. At that time, her primary care physician did not diagnose R.W. as being pregnant. A couple of weeks after her visit with her primary care physician, R.W. still had not regained her menstrual cycle and took a home pregnancy test. The results of the home pregnancy test were positive. R.W. contacted her primary care physician, who ordered laboratory tests for R.W. Laboratory tests were conducted on June 14, 2005, and June 21, 2005. Both tests confirmed the pregnancy. R.W. was referred to Bert Fish Medical Center for an ultrasound on June 21, 2005. The ultrasound showed that R.W. was pregnant. The physician who prepared the diagnostic imaging report based on the ultrasound stated in the report: There is a single intrauterine fetus with an estimated gestational age of 24.5 weeks. Positive fetal heartbeat is present at 142 beats per minute. However, there is severe oligohydiamnios with no positive fetal movement. Gestational age is usually calculated from the first day of the last menstrual period (LMP) of the pregnant woman. On average, the last menstrual cycle occurs two weeks prior to conception. Thus, the gestational age that is determined by the LMP is actually two weeks more than the date of conception.2 When the LMP is unknown, fetal measurements are used to calculate the gestational age. Oligohydramnios means a lack of amniotic fluid. Amniotic fluid is basically the fetus’ urine. A lack of amniotic fluid can be caused by the lack of kidneys or obstructed kidneys, rupture of the membranes, or a malfunction of the placenta. The lack of amniotic fluid makes it difficult to assess the fetal measurements using ultrasound. R.W. was referred to an obstetrician, Dr. P.C., who admitted R.W. to Halifax Medical Center for routine laboratory work and an obstetrical ultrasound. The ultrasound was performed on June 22, 2005, and showed that the fetus was in a breech presentation, there was markedly decreased amniotic fluid, the bowel was abnormal, and the ventral wall was suspicious. Based on the ultrasound, it appeared there was gastroschisis or omphalocele. Gastroschisis occurs when the abdominal wall of the fetus does not close properly and the intestines are outside the body. Omphalocele is a herniation of the intestines, and a sac-like structure covers the intestines outside the abdominal wall. The assigned gestational age estimated by the physician reviewing the ultrasound was 25 weeks and five days.3 R.W. was referred to a perinatologist in Jacksonville. Another ultrasound was performed on June 23, 2005. The assigned gestational age was 25 weeks and six days, which would mean that the age of the fetus was 23 weeks and six days from conception.4 The lack of amniotic fluid and the position of the fetus made it difficult to determine the actual gestational age of the fetus. The perinatologist reported the following to Dr. P.C.: At this time, an ultrasound examination was performed which showed a single living fetus in breech presentation. There is no amniotic fluid which precluded an adequate examination of fetal anatomy. The right kidney and bladder were visualized essentially excluding diagnosis of renal agenesis. A normal appearing 4 chamber structure was seen which visually appears to occupy more than 50% of the chest cavity. This is also very difficult to evaluate due to the position of the baby. There appears to be an anterior abdominal wall defect most likely a gastroschisis, however, again this is impossible to evaluate in great detail. Of importance and further complicating the problems in this case, is the biometry. Measurements of head circumference and cerebellum are consistent with 30 weeks, however, the femur length is consistent with 25 weeks. The fact that this patient has been amenorrheic since October when she could be up to 34 weeks gestation is significant. We don’t know the exact gestation but it is of concern that there is a dramatic difference between the extremities, abdomen, and head circumference as well as the cerebellum. This points to a growth retardation process. Doppler studies of the umbilical circulation were slightly elevated but if there had been placental disfunction I would have expected an absent diastolic component which was not the case. * * * [M]y biggest concern has to do with the anhydramnios and the fact that we don’t know for how long this process has been active. Pulmonary hypoplasia is a strong consideration given the size of the chest and the virtual absence of fluid. Nevertheless, not knowing for how long she has not had fluid is difficult to quote her a risk. The second area of concern is that of the appearance of a structural abnormality. Typically gastroschisis is not associated with a chromosomal anomaly, however, given the discrepancies in biometries and the absence of amniotic fluid, I wonder if this is not a gastroschisis or if it is, part of a more complex situation. The perinatologist conveyed his findings to Dr. P.C., who discussed the situation with R.W. R.W. decided to terminate the pregnancy. The office notes of Dr. P.C. stated, “It was felt by me and my partners that facilitating delivery of this non-viable child was appropriate.” Dr. P.C. called Dr. Pendergraft to discuss the case. Dr. Pendergraft agreed to help, and Dr. P.C. gathered R.W.’s medical records to send to Dr. Pendergraft. On July 7, 2005, R.W. presented to Dr. Pendergraft at OWC. R.W. filled out an information sheet and listed the first day of her last normal period as January 5, 2005.5 R.W. filled out the appropriate consent forms, which a counselor reviewed with her. R.W.’s vital signs were taken and laboratory tests were performed by staff at OWC. Dr. Pendergraft’s notes stated that the sonogram showed severe growth restriction of the fetus. He further indicated that there was a possibility of severe pulmonary hypoplasia and risk of life-threatening sudden health issues or probable fetal, prenatal demise. Dr. Pendergraft wrote in his notes that R.W.’s PMD OB/GYN physician concurred with the maternal health reasons for the termination of the pregnancy. On July 7, 2005,6 at approximately 4:27 p.m., Dr. Pendergraft administered Digoxin into the heart of the fetus to stop the fetal heart beat. Dr. Pendergraft and his medical assistant, S.M., monitored the fetal heart beat using a sonogram until the fetal heart stopped. The procedure was documented on a form used by the OWC entitled “Second Trimester Medical Procedure.” On the form, it is noted that the patient was evaluated on July 7, 2005, and found to be 27 to 28 weeks pregnant, which is 25 to 26 weeks from conception. According to T.S., a medical assistant employed by Dr. Pendergraft, the handwriting which indicates the estimated length of the pregnancy belongs to Dr. Perper, a colleague of Dr. Pendergraft. Both Dr. Perper and Dr. Pendergraft signed the form. After the Digoxin procedure was completed, R.W. was taken to a private room and given Cytotec to induce labor. S.M. continued to administer Cytotec and monitor R.W. until 8:30 p.m., when T.S. relieved S.M. At approximately 12:30 a.m., on July 8, 2005, R.W. developed a fever and the administration of Cytotec was discontinued. T.S. administered Ibuprofen to R.W. to lower the fever. At 1:30 a.m., T.S. noted that R.W. was having some cramping. T.S. wrote the following in the progress notes: “I have a standing order from Dr. Pendergraft for 2 cc Demerol [with] 1 cc Phenergran.” This order was to alleviate the pain from the cramping. At the final hearing, T.S. stated that the note was not totally accurate, because the standing order was from Dr. Perper and not Dr. Pendergraft because Dr. Pendergraft did not have DEA authorization. She attributes the error in her notes to her 20-year working relationship with Dr. Pendergraft and her automatically thinking of Dr. Pendergraft in terms of standing orders. The standing order itself was not submitted into evidence. The evidence is not clear and convincing that Dr. Pendergraft gave the standing order for the Demerol and Phenergran. At 4:30 a.m., the cramping had increased. T.S. gave R.W. an injection of 2 cc of Demerol with 1 cc of Phenergran. At 6:30 a.m., R.W. delivered the fetus and placenta at the same time inside an empty water sack. The products of conception, which included the fetus, membranes, and placenta weighed 800 grams. The weight of the products of conception was recorded on a form used by the OWC, entitled “Clinic Examination of Products of Conception.” The form listed the preoperative estimate of gestational age to be 28 weeks, which would be 26 weeks from conception. Dr. Pendergraft was one of the signatories on the form. Dr. Pendergraft charged R.W. $12,000 for the procedure. Although, both Dr. Pendergraft and his associate Dr. Perper, felt that, preoperatively, the gestational age of the fetus was between 27 and 28 weeks, Dr. Pendergraft did not transfer R.W. to a hospital. Jorge Gomez, M.D., testified as an expert witness on behalf of the Department. Dr. Gomez is board-certified in obstetrics and gynecology and in maternal-fetal medicine. Dr. Gomez opined that on July 7, 2005, the age of the fetus from conception was 27 weeks. His opinion was based on biparietal diameter (BPD), the head circumference, the size of the cerebellum, and the femur length. He discounted the abdominal circumference because the abdominal wall defect would result in a less reliable measurement of the age of the fetus. The abdominal wall defect would cause the measurement to be smaller than would be expected for the age of the fetus. Jay Neil Plotkin, M.D., testified as an expert witness for Dr. Pendergraft. Dr. Plotkin has been a licensed physician for 37 years and is board-certified in obstetrics and gynecology. Dr. Plotkin has not treated patients for four years and has not performed an abortion in six or seven years. It was Dr. Plotkin’s opinion that the abortion occurred during the second trimester rather than the third trimester. His opinion is based on the combined fetal and placental weight at time of delivery. He concluded that the gestational age at the time of delivery was 24 weeks, which would translate to 22 weeks of pregnancy from conception. He used a chart to determine the age based on the weight of the fetus, but he did not know if the chart was based on normal fetuses or included fetuses with abnormalities such as the one at issue. Dr. Pendergraft also called Steven Warsof, M.D., as an expert witness. Dr. Warsof is an obstetrician/gynecologist with a subspecialty in maternal-fetal medicine. He has spent most of his professional career pursuing academic issues in obstetrical ultrasonography. It was his opinion that R.W.’s pregnancy was in the second trimester. He also based his opinion on the weight of the products of conception after delivery. Based on the evidence presented, it is clear and convincing that R.W. was in her third trimester of pregnancy when she had the abortion. The only two doctors who placed the pregnancy in the second trimester based their opinions on the weight of the fetus and placenta at the time of delivery. Because of the complications of R.W.’s pregnancy, it is clear that the fetus had not developed normally and was underweight for its age. There had been a lack of amniotic fluid which is essential to development of the fetus. Based on his office records, it is also clear and convincing that Dr. Pendergraft was under the impression that R.W. was in her third trimester of pregnancy when he performed the abortion. The medical records of Dr. Pendergraft do not contain a written certification from two physicians that within a reasonable degree of medical probability the termination of R.W.’s pregnancy was necessary to save the life or preserve the health of R.W. The evidence established that Dr. Pendergraft wrote in his notes that there was a risk of life-threatening, sudden health issues. Assuming he was referring to the health issues of the pregnant woman, this note could be considered a certification that to a degree of medical probability that the abortion was necessary to preserve the health of R.W. However, there is no written certification from another physician that that was the case, and the note of Dr. Pendergraft that R.W.'s primary care physician concurred with the maternal health reasons for termination of the pregnancy is not a written certification from another physician. The medical records kept by Dr. Pendergraft do not contain a written certification that there is a medical necessity for emergency medical procedures to terminate the pregnancy and that no other physician is available for consultation. No evidence was presented concerning the allegations in Counts IV, V, and VI of the Amended Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Dr. Pendergraft guilty of violations of Subsection 456.072(1)(k), 458.331(1)(g), 458.331(1)(m), and 458.331(1)(t)1., Florida Statutes; dismissing Counts IV, V, and VI of the Amended Administrative Complaint; suspending his license for one year followed by three years of probation with indirect monitoring; imposing an administrative fine of $10,000.00; and denying his motion for attorney's fees pursuant to Subsection 120.595(1)(b), Florida Statutes. DONE AND ENTERED this 26th day of October, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 26th day of October, 2007.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been licensed as a physician in the State of Florida, having been issued license number ME 0017602. He graduated from St. Louis University School of Medicine in 1966. He taught obstetrics and gynecology at the Portsmouth Naval Hospital in 1970-1972. He was board-certified in obstetrics and gynecology in 1972 and retired from the active practice of medicine in 1996. Licensed in Missouri, Virginia, and Florida, Respondent has never been disciplined by Petitioner or any other licensing authority. During his active practice of obstetrics and gynecology, Respondent specialized in high-risk obstetrics, i.e., the treatment of patients whose lives and pregnancies are at risk during the course of their pregnancy. He treated patients with diabetes, with heart disease, with blood disease, and with abnormal pregnancies such as ectopic pregnancies. He is well respected in the medical community, including by others who practice high-risk obstetrics. He enjoys a reputation for being a caring, concerned, intelligent, and capable physician. On November 30, 1993, R. C. was a 35-year-old patient who had been seen previously by Respondent's associate but not by Respondent. She had a long history of infertility and had been treated with fertility drugs. She had had one ruptured ectopic pregnancy that resulted in the removal of her right ovary. She had three failed attempts at in vitro fertilization. She reported to Respondent that she felt pregnant. She had taken three home pregnancy tests, which were positive. Her HMO primary care physician, following laboratory confirmation of her pregnancy, had referred her to Respondent. She advised Respondent that her last menstrual period was October 16, 1993. Respondent conducted a physical examination and agreed that she was pregnant. Her breasts were tender, and her uterus may have been a little soft but it was not enlarged. The presence of a normal-sized uterus at six weeks gestation, while not unusual, is one possible indication that a woman might have an abnormal pregnancy or be in the process of having a miscarriage. It raised the suspicion that the nature of her pregnancy, intra-uterine versus abnormal, must be considered by Respondent. However, enlargement of the uterus during pregnancy is different for each patient. Significantly, R. C. did not have any bleeding. She had no abdominal pain, and no adnexal masses were palpated. Essentially, she was asymptomatic for an abnormal pregnancy. Because of her history, Respondent considered R. C. to be at a higher risk for an abnormal or ectopic pregnancy than that expected for a normal female from the general population. It is generally understood that the risk of a repeat ectopic pregnancy is between 10 and 15 percent. Respondent was aware that even with an ectopic pregnancy, the uterus undergoes many of the changes associated with an early normal intra-uterine pregnancy, including an increase in uterine size and softening of the cervix. These changes occur as a result of the hormones circulating through the body during the early stages of pregnancy. Concerned since R. C. was at risk although asymptomatic, Respondent decided that the prudent course would be to evaluate R. C.'s pregnancy to rule out an ectopic or other abnormal pregnancy. Consequently, he took steps different from those that would be taken during a normal routine pregnancy. Respondent obtained an immediate quantitative human chorionic gonadotropin (hCG) value that day. The quantitative hCG is a diagnostic test available to physicians to evaluate the progress of a pregnancy when there is concern as to its nature. It is not a test that is ordered when there is no concern as to the nature of the pregnancy. The test measures the secretions of the placenta. It confirmed R. C.'s pregnant state and was an indicator of the presence of a placenta somewhere in her body. The hCG value was reported as 7,371. By itself, the hCG value told Respondent little about R. C.'s pregnancy. It did, however, provide some comfort that R. C. might have an intra-uterine pregnancy, particularly given her lack of symptoms for an ectopic pregnancy. It is generally understood that less than 25 percent of ectopic pregnancies have hCG values greater than 6,000. With an hCG value greater than 7,000, R. C. was in the group more likely to have an intra-uterine pregnancy. Her lack of symptoms also indicated that she had an intra-uterine pregnancy. It is generally understood that bleeding is present in over 85 percent of cases where there is an ectopic pregnancy. Pain is present in over 90 percent of the cases where there is an ectopic pregnancy, and over half of such women have palpable adnexal masses or lumps. R. C. was not experiencing any of what are known as the classic triad of symptoms for an ectopic pregnancy. Respondent obtained the hCG to be used as a baseline. The quantitative hCG is best used serially, and a single value has no real meaning in evaluating the nature of a pregnancy. By repeating the test at certain intervals, a physician can observe where the pregnancy might be going from a hormonal point of view. The initial value is a starting point from which other tests can be used to determine if the pregnancy is likely normal or abnormal. In an early normal intra-uterine pregnancy, the hCG values generally double approximately every 48 hours. Then, the rise begins to plateau, and the doubling time lengthens. To determine the course of a pregnancy, repeat tests of the hCG at set intervals can be an aid in the diagnosis of ectopic pregnancies. The possibility of an ectopic or other pathologic pregnancy exists when the hCG value fails to rise in accordance with the expectations of a normal intra-uterine pregnancy or does not rise at all. Although R. C. was asymptomatic, given her history, Respondent determined that he should obtain a repeat hCG and an ultrasound examination to confirm the presence of an intra- uterine pregnancy. He scheduled the repeat hCG and the ultrasound to be performed 7 to 10 days from that visit, or December 9, 1993. Respondent's plan of treatment was reasonable under the circumstances. If R. C. had had any of the classic symptoms consistent with an ectopic pregnancy, the standard of care would have required an immediate ultrasound. However, R. C. did not have any symptoms. It is a matter of physician judgment as to when an ultrasound examination and repeat hCG should be obtained for an asymptomatic patient. When there is no urgent need for the tests, the standard of care does not define the time frame in which the tests should be performed. Respondent wanted to wait another 7 to 10 days to allow for better visualization of the fetus on the ultrasound and to avoid a misinterpretation of the result of the repeat hCG test. By waiting, Respondent would likely obtain more useful information from the ultrasound than if the ultrasound were performed that day or during the next few days. He wanted to combine the findings of the ultrasound with the results of the repeat hCG test. Reasonably-prudent, similarly-trained physicians support Respondent's conclusions. The possibility of a misinterpretation of the hCG results is lessened by the passage of a reasonable period of time between tests. Before she left the office on November 30, 1993, R. C. was asked to contact Respondent in two days to obtain the results of her initial hCG test and to follow-up on her condition. On December 2, 1993, R. C. contacted Respondent. During their telephone conversation, R. C. expressed concern that her pregnancy might be in the fallopian tube rather than the uterus. Respondent wanted to calm her fears. He inquired as to how she was doing, and she reported that she was doing fine, no bleeding or pain. Generally, an ultrasound is not performed until at least the fifteenth or sixteenth week. After speaking with R. C. on December 2, 1993, Respondent continued with his plan to obtain an ultrasound evaluation of R. C. in her 7th or 8th week of gestation. Her history indicated that Respondent should confirm the nature of her pregnancy, and Respondent took those steps necessary to monitor and confirm R. C.'s condition. At approximately 6:00 p.m. on December 6, 1993, R. C. contacted Respondent's office and spoke with his midwife. R. C. complained that she was having some cramping that began after she had eaten a very heavy meal. This is not an unusual complaint during a pregnancy. R. C. reported that the cramping was resolving, but she just wanted to touch base with someone. The midwife advised her to go to the emergency room if the cramping worsened during that evening or if she was concerned. The midwife also advised R. C. that if she felt better by morning but not completely better, she should come in to the office. If she felt fine, she should keep her scheduled appointment for the ultrasound. The advice given to R. C. by the midwife was appropriate and consistent with the standard of care. R. C. began to experience severe lower abdominal pain on the morning of December 7, 1993, and was taken to the emergency room of Bethesda Memorial Hospital. She did not have any vaginal bleeding. Respondent was present in the hospital when R. C. arrived at the emergency room, and he came immediately upon being called. An ultrasound was performed and confirmed that the uterus was empty except for a pseudo-gestational sac. A viable ectopic pregnancy was seen in the left adnexal area with an estimated gestational age of 6 weeks. Respondent assessed R. C. as having a leaking tubal pregnancy, and he had her taken to surgery immediately following the ultrasound. Respondent removed her left tube and ovary and provided blood transfusions due to free blood found in the abdomen. R. C. experienced a fever following the surgery, but she recovered and was discharged from the hospital. Respondent's plan and action in evaluating R. C. on her November 30, 1993, visit to his office were in accordance with the standard of care, and were reasonable and appropriate. The patient's telephone report of doing well on December 2, 1993, strengthened Respondent's judgment that there was no immediate need to obtain an ultrasound and repeat hCG and that he could wait until those tests were likely to be reliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 23rd day of February, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 23rd day of February, 2000. COPIES FURNISHED: Tanya Williams, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Britt Thomas, Esquire M. Rosena Hitson, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Grover C. Freeman, Esquire Jon M. Pellett, Esquire Freeman, Hunter & Malloy 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602
The Issue The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Department of Professional and Business Regulation, Board of Medicine, (Petitioner) is the state agency with responsibility for regulation of licensed medical practitioners in the State of Florida. Anand Lattinand, M.D., (Respondent) is and at all times material to this case, has been a board certified Dermatologist and a licensed physician in the State of Florida holding license number ME0034105, and located at 3450 East Fletcher Avenue, Tampa, Florida 33613. The Respondent first met A. L. (patient), a male, upon examination in July, 1992 for a lesion on the left axilla and anterior chest. Upon the initial examination, the Respondent learned that the patient, a retired lawyer, was a charter boat operator. The Respondent diagnosed the lesion as an inflamed seborrheic keratosis and applied liquid nitrogen, causing the lesion to blister and peel off. An appointment made for December 1992, was cancelled by the patient. On or about May 6, 1993, the patient, then 61 years old, presented to the Respondent with complaints of a rash on his chest. Upon examination, the Respondent noted that the rash also appeared on the patient's back and arms. The Respondent performed a dermatological examination on the patient to determine the cause of the rash. In addition to the rash, the examination revealed redness and papules (bumps) on the patient's skin. Although the patient indicated to the Respondent that the rash did not itch, the skin rash was excoriated and ulcerated, indicating that it was being scratched. Some of the papules exhibited a "lichenified" appearance. The Respondent requested that the patient undress so that a full body exam could be performed. Further examination revealed that the papules extended to the patient's hips and upper buttocks and on the lower legs. Such papules can be indicative of scabies, insect bites, disseminated herpes simplex or seborrheic dermatitis. The patient is a nudist. The patient did not tell the Respondent about his sun exposure. Such sun exposure may result in appearance of papules on parts of the body. The Respondent was not aware of the patient's nudist activities. Based on the Respondent's suspicions about the origin of the rash, further diagnostic inquiry warranted a complete genital examination. The Respondent requested and obtained the patient's consent for the genital examination. A standard dermatological genital examination includes the touching of the penis and testicles of a male patient. The scrotum is examined for eczema. The skin of the penis is manipulated. The penis is squeezed and the urethra is examined for evidence of discharge. The Respondent put gloves on his hands and performed the genital examination. As the examination progressed, the Respondent informed the patient of the purpose for the procedure. The exam revealed no scabies or insect bites. There was no discharge present. There was no genital indication of herpes simplex or dermatitis. Despite the absence of genital symptoms, the Respondent was unable to rule out disseminated herpes simplex as the cause for the existing skin condition. Accordingly, the Respondent inquired into the patient's marital status and sexual habits. Inquiry into the sexual habits of the patient was medically appropriate given the nature of the suspected origin of the condition. Beyond mere herpes simplex, the Respondent was concerned about the possibility of AIDS and its related impact on the progression of herpes simplex. The patient appeared to be uncomfortable with the questioning. The Respondent had doubts as to the credibility of the information being provided and so discontinued the questioning. The examination was concluded. Unable to specifically identify the cause of the condition, the Respondent provided the patient with two ointments intended to treat the rash. The patient dressed, paid for the examination and left the Respondent's office. Based on the testimony of the patient, the Petitioner alleges that, without the patient's consent, the Respondent fondled the patient's genitals with his ungloved hands to the point when the patient's penis became erect, and that the Respondent then requested that the patient masturbate while the Respondent watched. The Petitioner asserts that the patient declined the masturbation request, but permitted the Respondent to complete the exam. Apparently, the patient made no objection to the alleged fondling until he was asked to masturbate. Based on the presentation and demeanor of the patient-witness at hearing, the testimony of the patient is not credible. The evidence fails to establish the allegations of the Administrative Complaint. The Respondent denies that the examination was performed ungloved, that he manipulate the patient's penis to erection or that he requested that the patient masturbate. The testimony of the Respondent is credited. The greater weight of the evidence establishes that under the circumstances, the genital examination was properly performed and is an appropriate method of attempting to diagnose the cause of the skin rash from which the patient suffered.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional and Business Regulation, Board of Medicine, enter a Final Order dismissing the Administrative Complaint filed in this case. DONE and RECOMMENDED this 8th day of June, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6252 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-8. Rejected, contrary to the greater weight of credible and persuasive evidence. 9-10. Rejected, unnecessary. 11. Rejected, contrary to the greater weight of credible and persuasive evidence. 12-14. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3-4. Rejected, irrelevant, unnecessary. 7. Rejected, unnecessary. 9. Rejected as to whether patient would be aware of visual examination, unnecessary. 12. Rejected, unnecessary. 23. Third and fourth sentences are rejected, unnecessary. 27. Rejected, subordinate. 30. Rejected, unnecessary. COPIES FUIRNISHED: Dr. Marm Harris, Executive Director Board of Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Steve Rothenburg, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Veronica E. Donnelly, Esquire J. B. Donnelly, Esquire GREENE, DONNELLY, SCHERMER, TIPTON & MOSELEY 100 North Tampa Street, Suite 2825 Tampa, Florida 33602
The Issue The issues in this case are whether Respondent violated section 458.331(1), Florida Statutes, by committing medical malpractice or by failing to keep legible medical records that justify the course of treatment of a patient, as set forth in the Amended Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating the practice of medicine pursuant to section 20.43, chapter 456, and chapter 458, Florida Statutes (2015). The Board of Medicine is charged with final agency action with respect to physicians licensed pursuant to chapter 458. At all times material to the complaint, Dr. Tsinker was a licensed medical doctor within the state of Florida, having been issued license number ME 39408. Dr. Tsinker's address of record is 2500 East Hallandale Beach Boulevard, Suite 207, Hallandale Beach, Florida 33160. D.G. was pregnant and sought care from Bellymama Midwifery Services (Bellymama Midwifery). On May 16, 2013, she signed a Bellymama Midwifery Services VBAC Consent Form. It generally advised of risks and benefits in attempting a vaginal birth after having had a cesarean section (VBAC). It included the following statements, among others: 3. I understand that 70-80% of women who undergo VBAC will successfully deliver vaginally, and that this percentage increases in relation to the amount of support women receive in making the decision to try a VBAC. * * * 7. The exact frequency of death or permanent injury to the baby when the uterus ruptures is uncertain, but has been reported to be as high as 50% in cases of complete rupture. * * * 9. Probable contraindications to VBAC include a classical uterine incision, multiple gestations, and breech. Each of these statements on the form was initialed by D.G. At the end of the form was a place for the patient to choose to either attempt VBAC or elect a repeat cesarean, as well as a place to explain that choice. After the form's statement "I want to attempt a VBAC because," the following entry was made in script, "I don't agree that my previous C-section was necessary and I disagree w/ interventions for the sake of convenience." D.G.'s printed name and her signature appear at the bottom of the form. At hearing, D.G. testified that the cesarean section with her first daughter had been a difficult experience. The baby had complications arising from induction which led to the emergency cesarean. D.G. stated that she wished to avoid interventions unless they were medically necessary. D.G.'s first prenatal visit was conducted on May 17, 2013, by Corina Fitch, R.N., a licensed midwife. Nurse Fitch has a degree in midwifery and provides prenatal care and assistance with home deliveries. She has worked with many patients wanting to attempt a VBAC. D.G. testified that after it was determined, at about 35 and one-half weeks gestation, that the fetus was in breech position, she had a discussion with Nurse Fitch as to the best way to proceed. They decided that they should wait to see if the baby changed position. Nurse Fitch testified that the baby did change to vertex position, but then changed again, back to breech. Nurse Fitch testified that she had advised D.G. generally of the risks and benefits of a vaginal delivery and that she specifically briefed D.G. about some of the additional risks of TOLAC1/ with a breech presentation, but not completely: Well, I think that I-–according to what I told you before, I didn't give her all the risks. I talked about cord prolapse, and I talked about head entrapment. So, potentially, no, she did not receive enough information. At slightly over 40 weeks, D.G. telephoned Nurse Fitch to advise that her water had broken (spontaneous rupture of membrane (SROM)). D.G. and Nurse Fitch decided that D.G. should to go to the hospital to deliver there. Based upon information that Dr. Tsinker had successfully delivered breech babies vaginally, D.G. and her husband had decided to seek care from Dr. Tsinker. Nurse Fitch called Dr. Tsinker. She told Dr. Tsinker that D.G. was a 37-year-old pregnant woman at 40 weeks and four days gestation, that D.G. had previously undergone a cesarean section with her first child, that the fetus was in frank breech presentation, and that she wished to deliver vaginally if possible. Nurse Fitch testified that she did not believe that her conversation with Dr. Tsinker included discussion about consent forms or whether the patient had been advised of the risks of attempting a VBAC under all of these circumstances. However, Nurse Fitch testified that Dr. Tsinker had accepted patients from her before and that she always provided a copy of the consent form that her patients signed to him on those occasions, so he was generally familiar with the consent form. Dr. Tsinker agreed to accept D.G. as a patient. Records of Bellymama Midwifery dated December 10, 2013, indicate: Received T.C. from pt reporting SROM @ 10 a.m., mild cramping. Home visit made. FHT's 140's, all VS WNL, baby in breech presentation, VE done to report findings to OB for transfer of care, 1 cm, 100%, 0 station. Dr. Tsinker called as pt desires vaginal birth, he agreed to do delivery, pt transported to hospital in own car in stable condition for augmentation and delivery, CF. At about 1247 hours on December 10, 2013, D.G. presented to the Broward Health Medical Center in Fort Lauderdale with ruptured membrane and fetus in breech position. Her husband was with her. Based upon communications from Dr. Tsinker, she was expected, and the hospital had the admissions paperwork ready for her. D.G. signed a General Consent form at the time of her admission. At about 1320 hours, a labor assessment was conducted by nursing staff. It indicated, among other things, that the reason for admission was spontaneous rupture of membrane, that D.G. was calm, and that her obstetrical history included a previous cesarean section due to low amniotic fluid at 37 weeks. Electronic fetal monitoring begun at 1317 hours showed no decelerations and active movement. Examination confirmed that the fetus was in breech presentation. D.G. told the nursing staff that she wanted to labor without pain medications. The LD-Flowsheet BG indicates that at about 1334 hours, Dr. Tsinker was made aware of the examination and that he issued orders. Dr. Tsinker testified that he was told that the baby was in frank breech position and that there was only "mild" labor activity. Dr. Tsinker testified that he gave the order to start D.G. on oxytocin (or Pitocin). A Maternal Child Inter-Disciplinary Patient Education Record indicates that D.G. was advised of potential side effects from the use of Pitocin at about 1400 hours. This was the only entry in the "Medications" content area. The form contains the initials "SY" and contains a signature that appears to read "Simone Young, RN." The form contains no mention of misoprostol (or Cytotec). D.G. signed a Vaginal Delivery Consent form at about 1410 hours on December 10, 2013. The form had Dr. Tsinker's name filled in and, in a typed line which had been added, indicated that he was authorized to perform "delivery of baby, possible cesarean section, possible use of forceps or vacuum extractor, possible episiotomy." The form itself contained no information about the risks of vaginal delivery, no information about the risks of vaginal delivery after cesarean section, and no information about the risks of vaginal delivery after cesarean section with a baby in breech presentation. The only provision related to risks stated: The Physician has explained to me, and I understand, the potential benefits, risks, or side effects of the procedure, including potential problems related to recuperation; the likelihood of achieving goals; the reasonable alternatives to the procedure; and the relevant risks, benefits, and side effects related to alternatives, including the possible results of not having the procedure. The document contains a signature in the "witness" space which appears to read "S. Young, RN." It was uncontroverted, however, that D.G. had not actually talked with the attending physician about anything before she signed the form. Dr. Tsinker testified that it is his signature which appears at the bottom of the form in the "Physician Signature" space. While there was some question about the date Dr. Tsinker signed the form, this is of no significance. The form does not show that Dr. Tsinker advised D.G. of the risks of TOLAC under her circumstances, and its statement that this had been done was completely rebutted by all of the other evidence, including testimony of Dr. Tsinker. Dr. Tsinker never advised D.G. of the particular risks involved in a vaginal delivery, given her previous cesarean section and breech presentation. He never advised her that a cesarean section was indicated. Further, he admitted that D.G. never told him she was unwilling to have a cesarean section. He simply assumed, based upon the information that had been provided to him by others, that she would decline a cesarean section even if he strongly recommended it to her. He testified that he came to that conclusion because: The patient never, A, asked me any additional questions that she may have had--you know I'm not her mind reader--at time when she was admitted and I showed up after that, right. She knew about her right to ask these questions and to have them answered to her full satisfaction. When I showed up, she didn't have that opportunity when she came in because I wasn't there. But when I showed up, she had all in the world opportunity, if she was even a little bit still in the dark or had reservations or any problems, she had the opportunity to ask me that and I would have definitely given her a complete answer. She never mentioned she had regret her opinion or she wants to stop and revert to a cesarean section, or to do anything but to continue the trial of TOLAC. Some of D.G.'s medical records, such as the medications list, suggest that misoprostol, a drug used to make the patient more receptive to oxytocin, was never ordered in D.G.'s case. Other records suggest that it may have been administered to D.G. Dr. Tsinker stated in response to interrogatories and testified at hearing that misoprostol was not used in D.G.'s case. As for entries appearing to indicate that misoprostol was discontinued, Dr. Tsinker's uncontroverted testimony was that you cannot "discontinue" misoprostol because it is introduced intravaginally in the form of a small pill. The only drug that could be discontinued is oxytocin, which is introduced intravenously. Dr. Tsinker maintained that any references to "discontinue" are references to oxytocin, not misoprostol. He further maintained that misoprostol is used when the cervix needs ripening and noted that, in this case, it was already thinned, with D.G's records showing 100 percent effacement, so that there would have been no need to order misoprostol. Hospital records of Pharmacy Orders reference that administration of Pitocin through continuous infusion began at 1514 hours. An accompanying note provided, "6 milliunit/min = 0.3 mL/min = 18 mL/hr – Start at 6 milliunit/min. Increase by 3 milliunit Q15 min until contractions are Q2 min apart, 40 sec in duration & moderate to strong by palpation – continuous infusion (not to exceed 20 MU/min). Hold for non reassuring FHR pattern or tachysystole." Dr. Tsinker did not perform an examination of D.G. in order to determine whether D.G.'s fetus was in frank, footling, or some other breech position prior to the administration of Pitocin to D.G. As Dr. Tsinker testified, he had been informed that the fetus was in frank breech position. There was some conflicting evidence as to whether the fetus was in frank breech or in foot breech position. The Discharge Summary form, dictated by Dr. Siegel and signed by Dr. Tsinker, indicates that the "patient was delivered vaginally, foot breech," and the Newborn Consultation form of Dr. Otero similarly had a block indicating "foot breech" checked. However, Nurse Fitch testified that she determined the baby was in frank breech position earlier, and, consistent with the testimony of Dr. Tsinker, the Baby's Delivery Record indicated "Breech Position: Frank." Norman Donald Diebel, M.D., later testified that although he could not be sure, he concluded that the baby was in frank breech position. Dr. Tsinker had never met D.G. in person, or spoken to D.G. prior to December 10, 2013. He saw her for the first time around 1635 hours on that day. At some point, Dr. Tsinker prepared an OB/GYN History and Physical form. It was dated December 10, 2013, but no time was given. No pelvic examination was recorded which could be used to determine when it was prepared. As Dr. Tsinker admitted, the notes are untimed and mostly abbreviated. It records the presentation as "breech" and the membranes as "ruptured." While it has a few spaces left blank, it was substantially completed, albeit with little detail. During D.G.'s labor, Dr. Tsinker did not dictate or write any progress notes. Dr. Tsinker maintained that because he believed everything was progressing well, he did not think it necessary. At 2031 hours, the flowsheet records Dr. Tsinker at bedside and indicates that he reviewed the fetal strip. At 2051 hours, the flowsheet records that Dr. Tsinker responded to a page and was "notified/updated" and notes that there were "no new orders." Nurse Radhiya Walther could not remember these entries when asked about them, or recall if they were in fact entered about ten hours after the events they describe. Dr. Tsinker disputed that he was ever contacted at this time. At 2130 hours, the flowsheet records that "augmentation D?c'd unable to continuously monitor doula and pt instructed to assist with FHR monitoring while on ball." Nurse Walther stated she discontinued oxytocin because the patient was sitting on the ball, and she was unable to monitor the strip. She admitted in cross-examination that if oxytocin was discontinued, the physician should be notified. She admitted that the records did not indicate that Dr. Tsinker was notified. The fetal monitor strip indicates noticeable loss of variability in the trace and some early decelerations. These were not yet clear signs of fetal distress, but as Dr. Diebel testified, would have caused a reasonably prudent obstetrician/gynecologist to remain with the patient. At 2203 hours, the flowsheet records a vaginal exam by Dr. Tsinker, with dilatation at 10 cms, and effacement at 100 percent. Dr. Tsinker requested that D.G. demonstrate how she was going to push so that he could evaluate the effectiveness of her pushing. D.G. testified later, "Dr. Tsinker asked me to push, I attempted to push with all of my might, they were unproductive pushes. He told me continue to labor, I'll come back later and he left the room." Dr. Tsinker testified that at that time he directed the delivery nurse to have D.G. start pushing, but neither D.G. nor Nurse Walther recall that order. Additional comments recorded for this time indicate "Dr. Tsinker at bedside strip reviewed Pt attempted pushing will labor down." Nurse Fitch, who had arrived in the labor and delivery room about 2000 hours, did not recall Dr. Tsinker ever telling D.G. or the labor and delivery nurse that D.G. could "labor down." As Nurse Fitch testified: I don't recall that. What I do recall is, when [Dr. Tsinker] left the room, she was very distraught because the exam was extremely painful and she didn't have a sensation to push that was very-–she tried. She gave it her best. And she said "Corina, I don't know if I can do this." And the nurse-—I remember the nurse saying, "Don't worry. There's no urgency. We'll just let her wait till she has the urge. Nurse Walther recalled that D.G. stated she did not want to push because she did not feel any pressure, which is why Nurse Walther recorded the "labor down" comment. Nurse Walther testified she would have called Dr. Tsinker if she had felt this was contrary to his orders in any way, but she did not, because she had not been told to make the patient push. D.G. spent much of her labor on the birthing ball, next to the bed. With D.G. in this position, it was more difficult to monitor fetal heart rate because the monitoring belts can more easily shift and not provide clear readings. Also, D.G., who declined a bedpan, made several trips to the bathroom. Portions of the fetal monitor strips have missing or sketchy readings. By 2230 hours on December 10, 2013, D.G.'s fetal monitor had begun to show clear signs of fetal distress, evidenced by late decelerations. D.G. was never advised by anyone that there were signs of fetal distress, or told of the advisability of having a cesarean section in light of that new information. At 2300 hours, under "Interventions," in D.G.'s records, it is stated that "IV Bolus; Discontinue Uterine Stimulants; O2 On; other Interventions – Please Annotate Annotation: Pitocin remains off O2 remains in place." At 2304 hours, the flowsheet records "MD notified that patient is on ball and unable to get cont tracing and having variable decelerations. Pt instructed to return to bed." Under care provider status it is recorded, "Responded to Page; Report Given; In Department; Notified/Updated See SBAR; No New Orders." Dr. Tsinker again disputes that he was given this notification. Nurse Walther stated she could not remember how Dr. Tsinker was notified. She could not recall if Dr. Tsinker showed up personally in response, or called. She could not remember if she repeated the call to him. The flowsheet records a late deceleration at 2316 hours and another at 2320 hours. As Nurse Walther acknowledged in cross-examination, repetitive late decelerations are dangerous and constitute "category 3," the most serious category. Nurse Walther stated she did not know if she notified Dr. Tsinker after these decelerations. She later conceded that three late decelerations constitute an emergency that required that the attending physician be notified. Nurse Walther testified she walked outside to tell the charge nurse, but could not recall what the charge nurse told her in response. There was no evidence of any actions taken by the charge nurse. Under Additional Comments at 2330 hours, it is noted, "Pt found off monitor in restroom, family at bedside safety precautions maintained. Pt instructed to return to bed, assisted to Labor Bed." Nurse Walther's testimony was generally not very clear or credible and many of the entries in the flowsheet record are found to be unreliable, especially those concerning events that supposedly took place after the visit at 2203 hours by Dr. Tsinker. The stored fetal strip, incomplete in places as it is, is the best evidence of the progress of labor. It was not clearly shown that Dr. Tsinker ever reviewed the fetal monitor strip or was otherwise made aware of the late decelerations occurring after 2200 hours at any time before his return to the room shortly before midnight. When Dr. Tsinker returned to the room before midnight, D.G. and Nurse Fitch were in the bathroom. He asked D.G. to come out. The patient was returned to bed. At about 0003 hours, D.G. was placed in foot pedals and partially elevated. Under Additional Comments, it is noted "audable fhr 147 pt prepped for pushing Dr. Tsinker." The Mother's Delivery Record prepared by Nurse Walther indicated that the Neonatal Intensive Care Unit (NICU) was called at midnight and arrived at 0005 hours. Dr. Tsinker asked D.G. to push. There was some difficulty in hearing the fetal heart monitor. It was a fairly quick delivery, taking about 11 minutes or so. On December 11, 2013, around 0014 hours, D.G. delivered a stillborn male infant. NICU recorded "0" for all Apgar score factors at both one minute and five minutes after birth. Despite multiple efforts, the NICU was unable to resuscitate the baby. The efforts of the NICU team caused D.G. to have feelings of panic; she testified that she was expecting to hear a baby crying and did not realize until then that there was any issue. After about 20 minutes or half an hour, the NICU team came to D.G.'s bedside and informed her that they were unable to resuscitate the baby. A Vaginal Delivery Summary form completed by Dr. Tsinker and dated December 11, 2013, at 1214 hours, briefly described the placenta, blood loss, laceration, and suturing after delivery, as well as the failure of the NICU team to resuscitate the stillborn child, but it said almost nothing of the labor and delivery itself, noting only that Dr. Tsinker "assisted breech delivery" and that the Apgar scores were "0" at one and five minutes. There was no evidence of any other delivery note prepared by Dr. Tsinker. Dr. Tsinker did not talk with D.G. after the delivery, or at any time on December 11, 2013, although D.G. had been requesting to speak with him to find out what had happened. On the morning of December 12, 2013, Dr. Tsinker came to D.G.'s hospital room, but D.G. was in the bathroom. Dr. Tsinker told D.G.'s husband that he would return. D.G. came out of the bathroom and waited for Dr. Tsinker to return. When he did not, D.G. went to the nurse's station and again asked to see him. When D.G. learned that he was no longer in the ward, she asked for her discharge papers. Dr. Tsinker appeared, and they returned to D.G.'s room. In the brief discussion about the course of labor and delivery which followed, D.G. believed that Dr. Tsinker was insensitive and blamed her for the outcome. After receiving further care not relevant to this case, D.G. was discharged from Broward General Medical Center at 1220 hours on December 12, 2013. Standards Dr. Diebel is an obstetrician/gynecologist who has been licensed in Florida since 1977. He is board-certified by the American Board of Obstetrics and Gynecology and was an examiner for the board for 18 years. He has previously served as an expert witness in administrative proceedings for the state of Florida. Dr. Diebel is an expert in obstetrics/gynecology and has knowledge, skill, experience, training, and education in the prevailing professional standard of care recognized as acceptable and appropriate by reasonably prudent obstetricians/gynecologists in Florida. Dr. Diebel reviewed D.G.'s medical records from Broward Health, the fetal monitor tracings, the midwife records, the autopsy report, and the Amended Administrative Complaint filed in this case. As Dr. Diebel testified, a vaginal delivery after cesarean section has some risks, but they are still performed. A vaginal delivery with breech presentation has some risks, but they are performed. However, he testified that to attempt a VBAC with a breech presentation was below the standard of care recognized as acceptable and appropriate by reasonably prudent obstetricians/gynecologists in Florida. As Dr. Diebel testified, you have two risky procedures, and "nobody would recommend" doing TOLAC and breech together. While Dr. Diebel acknowledged that this standard of care was not expressly set forth in American Congress of Obstetricians and Gynecologists' Practice Bulletin Number 115, August 2010, entitled "Vaginal Birth After Previous Cesarean Delivery," Dr. Diebel's testimony was clear and convincing and is credited.2/ Dr. Diebel credibly testified that it was below the standard of care to place the burden on the patient to "ask" about a cesarean section. The standard of care in labor and delivery requires that there be an agreement between the physician and the patient, as a part of which the patient is clearly presented with the potential hazards of what she is about to undertake. Dr. Tsinker should have discussed the potential benefits and risks of D.G. undergoing TOLAC, as well as the option to elect a repeat cesarean delivery, with D.G. as soon as possible after her arrival at the hospital. As Dr. Diebel testified, Dr. Tsinker should have advised D.G. that it was a very risky procedure for D.G. to undergo TOLAC because the baby was in breech position, that this is not currently an acceptable procedure, and that she should have a cesarean section. The standard of care required Dr. Tsinker to advise D.G. of the additional risks involved in attempting a VBAC due to her breech presentation. It was Dr. Tsinker's responsibility to fully explain those risks, recommend a cesarean section, and affirmatively ascertain and document her response. Dr. Diebel testified that if a patient refused to follow the physician's recommendations or was uncooperative in this regard: You would document it profusely if a patient- –you know, I explain to the patient that this is what's happening, this is what can happen, this is what the effects can be. I explained all that, she expressed understanding. Yeah, if only to cover myself, I want it to be very clear that we had this discussion and still her decision was otherwise. Dr. Tsinker's testimony that he believed that others had previously had discussions with D.G. about these risks and benefits did not satisfy this standard of care. Dr. Tsinker failed to have the appropriate discussions with D.G. or to document them, as he was required to do. Dr. Diebel's testimony that misoprostol should not be used to induce labor in patients who have had an earlier cesarean delivery was unrefuted and is accepted. Dr. Diebel also testified that the ordering of Pitocin for D.G. violated the standard of care. This conclusion was contested, however, and the basis for Dr. Diebel's conclusion was not carefully explained. While Dr. Diebel did describe risks of uterine rupture, as well as risks of causing contractions to be too close together, it was not explained in what way these risks were unique or increased with a TOLAC with breech presentation. Dr. Diebel testified: Q. Are there any risks associated with administering Pitocin to a patient attempting trial of labor after cesarean with breech presentation? A. Well, you won't find papers devoted to that particular thing, because it is not done. It's not-–breeches are not allowed to have a TOLAC. * * * Q. Why would it not be done? Why would Pitocin not be given in that situation? A. Well, because you wouldn't allow the situation to happen to begin with. Q. Right. A. Where you've got a breech and a previous cesarean section. So there'd be no reason to give Pitocin. This explanation does not provide a logical basis to support a separate charge of medical malpractice. Accepting Dr. Diebel's position that simply undertaking a TOLAC with breech constitutes medical malpractice, it does not follow that every other related, but distinct, element in the labor and delivery procedure would necessarily constitute a separate violation of the standard of care. Dr. Diebel acknowledged that it was appropriate to use a little Pitocin in a (non-breech) TOLAC where the patient is not having any contractions, but that it is run for only a short time, and then once the patient is in labor, discontinued. Dr. Diebel then contrasted that limited use with what was done in this case: In this situation, it was continued all day, even though she was having, in some place on the tracing, contractions a minute to a minute and a half apart, which are too close together. The basis of Dr. Diebel's concern with the use of Pitocin in this case thus appears to be that it was used for too long. However, that was not the charge in this case. The evidence was not clear or convincing that initially ordering Pitocin for D.G., as opposed to continuing its administration for too long, constituted medical malpractice. Dr. Diebel's testimony that D.G.'s admission history and physical was inadequately documented was not clear and convincing. He noted that the form was not properly timed, but the form itself appeared to be substantially completed, and Dr. Diebel did not sufficiently elaborate on what additional information should have been present. Dr. Diebel testified that the standard of care requires that a physician keep progress notes during the labor of their patients. Under cross-examination, Dr. Diebel admitted that as long as everything was going well, there was no need to write a progress note. However, he also testified that the fetal monitor indicated that after 1700 hours, everything was not going well in D.G.'s case. There were missed signals on the monitor, a loss of variability in the trace, and some decelerations before 2200 hours. It was undisputed that Dr. Tsinker failed to keep any progress notes on D.G.'s labor. Under these circumstances, Dr. Diebel's testimony that Dr. Tsinker failed to maintain adequate progress notes was clear and convincing. Dr. Diebel also credibly testified that Dr. Tsinker's delivery note describing what took place during D.G.'s delivery was inadequate. The stillborn child created a duty for Dr. Tsinker to fully document what took place during the course of labor and delivery, with careful attention to documentation of any possible factors that it might appear in retrospect to have contributed to the tragic outcome. Dr. Tsinker's Vaginal Delivery Summary, while briefly describing the placenta, blood loss, laceration, and suturing after delivery, as well as the failure of the NICU team to resuscitate the stillborn child, says almost nothing of the labor and delivery itself, noting only that Dr. Tsinker "assisted breech delivery" and that the baby was stillborn. This was not sufficient under the circumstances. Dr. Tsinker was charged with violating the standard of care in performing as an obstetrician/gynecologist during D.G.'s labor and delivery, and he failed to keep medical records reflecting his participation in the treatment of D.G. during that time. Prior Discipline No evidence was introduced to show that Dr. Tsinker has had any prior discipline imposed upon his license. Dr. Tsinker was not under any legal restraints on December 10, 2013. It was not shown that Dr. Tsinker received any special pecuniary benefit or self-gain from his actions on December 10, 2013. It was not shown that the actions of Dr. Tsinker on December 10, 2013, involved any trade or sale of controlled substances. On August 25, 2014, Dr. Tsinker completed an independent self-study course in Advanced Electronic Fetal Monitoring offered by PESI, Inc., consisting of 6.25 hours of instructional content. On April 6, 2015, Dr. Tsinker completed medical continuing education courses Documentation 154 and Documentation 155, consisting of one hour and two hours of instructional content, respectively, offered by OnlineContinuingEd, LLC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine finding that Dr. Simion Tsinker violated sections 458.331(1)(m) and (t), Florida Statutes (2013), as charged in the Amended Administrative Complaint; suspending his license to practice medicine for a period of four months; imposing an administrative fine in the amount of $20,000; and requiring that he complete continuing medical education as deemed appropriate by the Board. DONE AND ENTERED this 12th day of February, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2016.
The Issue This case concerns an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Jose Antonio Benavides, It accuses the Respondent of violating Subsection 458.331(1)(t) , Florida Statutes, related to gross or repeated acts of malpractice or the failure to practice medicine in keeping with the level of care, skill and treatment Prescribed by that provision. The matter specifically relates to Dr. Benavides' treatment of the patient Beatrice Fisher.
Findings Of Fact By Administrative Complaint dated April 10, 1981, State of Florida, Department of Professional Regulation, Board of Medical Examiners, Petitioner seeks to revoke, suspend otherwise discipline Jose A. Benavides, medical doctor. As grounds, it is alleged that the Respondent inappropriately failed to diagnose carcinoma in a patient in violation of Section 458.331(1)(t) , Florida Statutes (1979) At the hearing the Petitioner presented five (5) witnesses. Further, the Petitioner introduced five (5) exhibits which were received into evidence. The Respondent testified in his own behalf and was permitted to introduce the testimony of his expert witnesses in the form of deposition. The deposition of Dr. William Espinoza was taken on August 19, 1981. The Respondent's other expert witnesses, Dr. George Dabiglus and Dr. Bienendo Benach were unavailable for their scheduled depositions on August 19, 1981. At that time the parties contacted the Hearing Officer and the Respondent requested that the matter be continued so that the depositions of Dr. Benach and Dr. Dabiglus could be taken at a later date. Counsel for the Petitioner noted her objection to a continuance. In light of the fact that these witnesses were not subpoenaed and the prejudice to the Petitioner resulting from unwarranted delay in these proceedings, the Respondent's request for a continuance was denied. The petitioner, however, stipulated that the testimony of Dr. Benach and Dr. Dabiglus would be substantially the same as that of Dr. Espinoza. Material Facts Jose A. Benavides, .D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation as a medical doctor and was so licensed at all times pertinent to this case. The Respondent has engaged in family practice, obstetrics and gynecology since becoming licensed in Florida in 1975. In addition, Respondent has received special training in obstetrics, gynecology, and surgery. On August 13, 1979, the Respondent saw the patient Beatrice Fisher for the first time. Ms. Fisher had been the patient of Dr. T. Brandwein, whose practice Dr. Benavides assumed. On the occasion of the first visit, Ms. Fisher complained that she had blood in her urine and in the face of this complaint, the Respondent had an urinalysis performed, the results of which may be found in the Petitioner's Exhibit No. 1, admitted into evidence. Those results, by their general nature, were negative. At the time of this visit, no other procedures were undertaken by the Respondent to determine if the bleeding had its origin as a vaginal or rectal discharge. (Ms. Fisher was a woman in her seventies whose menopausal cycle had ceased a number of years before.) On this first visit, the patient was also concerned about not being able to sleep, and complained of back pain and swelling in her right hand. At that point the Respondent diagnosed the case as a matter of deep depression and continued the medication that had been prescribed by the prior physician. Dr. Benavides saw the patient again on August 20, 1979, and the normal urinalysis was reported. On this occasion the patient described a problem with pain when she walked or stood up. In response to this, Dr. Benavides continued the previously prescribed medication. (The medication prescribed on the August 13 and 30, 1979, visits may be found in Petitioner's Exhibit No. 2.) The patient Fisher, returned to the office of Dr. Benavides on September 4, 1979, and had as complaint, the fact that she felt tired and was concerned about getting enough rest. She was particularly concerned about her inability to sleep. At this time, Dr. Benavides prescribed medication for depression as set forth in Petitioner's Exhibit No. 2. The next office visit by Ms. Fisher to Dr. Benavides occurred on September 28, 1979. At that time, Ms. Fisher complained about vaginal bleeding. Dr. Benavides conducted a pelvic examination which revealed a bloody vagina and odorous discharge from the vaginal region. The pelvic examination in its gross terms found the vagina to be acceptable and the uterus to be small and hard. According to the patient, this discharge had been occurring for approximately two weeks. Dr. Benavides also did a pap smear. No other examination or tests were conducted at that time to ascertain the agent responsible for the bleeding. Dr. Benavides did note in the file the probability of a malignancy and recommended that the patient return to his office in a month. Although there was no discussion about malignancy with the patient, the patient told Dr. Benavides about problems with cancer in her family and the fact that her son, mother, aunt and brother had died from this disease. On this visit, Dr. Benavides found that the patient's state of depression had improved. On October 2, 1979, Ms. Fisher called Dr. Benavides to get the results of the pap smear test and she was told that he might have to conduct another pap smear test, notwithstanding negative results from the test. The next office visit with the patient occurred on October 15, 1979. At that time, the patient was still experiencing a discharge in the way of staining, or spotting. Again Dr. Benavides noted his concern about possible malignancy. He also expressed concern about infection in the vaginal area. He described this spotting as chocolate in color, and odorous. A vaginal culture was taken and the results of that culture were normal, with the exception of a moderate amount of proteus mirabilis for which he prescribed tetracycline, an antibiotic. The prescription was dated the date of the visit. The results of the vaginal culture were made known on October 18, 1979, and may be found in Petitioner's Exhibit No. 2. Dr. Benavides did not discuss the possible malignancy with the patient Fisher on the October 15, 1979, visit. Dr. Benavides was of the persuasion that the vaginal culture was indicated to rule out the malignancy; however, the testimony of experts in the field of medicine offered in the course of the hearing, shows that such a test would not rule out a malignancy in the uterus. Ms. Fisher at this visit continued to express her concern that her condition might be caused by cancer. On October 18, 1979, the patient Fisher called the Respondent and was still complaining of staining, a bloody discharge. Medication was prescribed as set forth in the Petitioner's Exhibit No. 2 and the patient was told that the results of the laboratory test performed from the vaginal culture were negative. The records of the Respondent indicate a further prescription was written for the patient on November 6, 1979, and this followed a call on that date by the patient Fisher to the Respondent in which she continued to complain about staining. On December 7, 1979, the patient Fisher returned to the doctor's office and complained of the problem with her knee and certain medications were prescribed. No further discussion was held on the subject of vaginal bleeding and no further tests were performed to ascertain the cause of that bleeding. On January 23, 1980, Ms. Fisher went to see her Opthalmologist, Dr. Robert Goldwyn. Dr. Goldwyn mentioned that he felt Ms. Fisher did not look well and there ensued discussion about the reason for her appearance, in which she described her problem with vaginal bleeding. Dr. Goldwyn immediately referred the patient to Dr. Arthur Rudolph, a specialist in obstetrics and gynecology, who was in Dr. Goldwyn's building. On January 23, 1980, Dr. Rudolph saw Ms. Fisher. Dr. Rudolph is a physician admitted to practice in the State of Florida, who has twenty-five (25) years experience. After examining the patient Fisher, he indicated to her that she needed to be hospitalized to have dilatation and curettage performed. He also performed a pap smear and found it to be Class III, that is suspicious carcinoma. On January 31, 1980, the patient Fisher was admitted to Baptist Hospital of Miami. A dilatation and curettage examination was performed revealing adenocarcinoma of the endometrium with superficial invasion. There followed a total abdominal hysterectomy and bilateral salpingo-oophorectomy. Following the operation, Dr. Rudolph finds the patient's outlook to be good. Nevertheless, it is not known whether or not the problem with carcinoma is concluded. The findings of Dr. Rudolph's proceedings may be found in Petitioner's Exhibit No. 3, admitted into evidence. Further, testimony by Dr. Rudolph establishes that there is a presumption of possible malignancy any time bleeding is observed in a post- menopausal patient whose last menstrual cycle occurred one year or more before the event of bleeding. In this instance, Ms. Fisher's last menstrual cycle had occurred some twenty (20) years before her complaints with bleeding. To determine if there is carcinoma in the uterus, Dr. Rudolph correctly indicates that suction curettage or dilatation and curettage are proper methods of detection. A pap smear would be a method of detection of carcinoma in the cervix, but not in the endometrium, as established by the expert, Dr. Rudolph. Assuming that September 28, 1979, was the first complaint of this bleeding, it was inappropriate for a month to transpire before scheduling the next appointment, as identified by Dr. Rudolph. The pap smear followed by suction curettage or dilatation and curettage should occur as soon as possible from detection of bleeding, in that there is a correlation between treatment success and time before treatment. Dr. Rudolph's testimony established that the vaginal culture was not an adequate method for determining cancer unless that cancer happened to be in the wall of the vagina. Dr. Rudolph's examination of the medicines prescribed for the patient Fisher by the Respondent, with the exception of polymax with which Dr. Rudolph was not familiar, established that those other medicines were not valid in the detection of carcinoma. Dr. Rudolph correctly asserts that the Respondent's care and treatment of the patient Fisher, especially as related to diagnostic tests and procedures, was inconsistent with the care which is recognized by a reasonably prudent physician in the Dade County, Florida, community in which Dr. Rudolph and Dr. Benavides practice medicine, either for specialists in obstetrics and gynecology or family practitioners. Dr. Edwin Crane, a specialist in obstetrics and gynecology, licensed in the State of Florida, also gave testimony. Dr. Crane correctly stated in his testimony that complaints of vaginal bleeding in post-menopausal patients indicates possible carcinoma. He also identified the fact that a pap smear will not detect bleeding from the uterus and identified the proper method for establishing the cause of bleeding from the uterus to be the gravilee jet wash; endometrial bio-suction curettage and that if these methods proved negative a dilatation and curettage (scraping of the lining of the uterus) . The pap smear is not acceptable because if the cancer is high in the uterus, the smear is only positive 15 percent of the time. This fact was established through the witness Crane. Assuming September 28, 1979, as being the first date of complaint of spotting, Dr. Crane felt that one or two weeks delay in any further consideration of this case might be acceptable, but in this instance Dr. Benavides intended to put off further procedures for a period of one month and when the patient returned on October 15, 1979, still did not undertake methods for identitying carcinoma in the uterus. Dr. Crane rightly indicates that speed in detection and treatment are vital in promoting a likelihood of cure. An analysis of the drugs which Dr. Benavides, prescribed to the patient Fisher, as conducted by Dr. Crane, reveals those drugs were not valid in the detection or treatment of carcinoma. Dr. Crane was of the persuasion that Dr. Benavides' treatment of the patient Fisher is not what would be expected from a reasonably prudent medical practitioner in the State of Florida, and that at a minimum, Dr. Benavides should have recommended procedures to be followed in detecting the reason for the bleeding and informed the patient that there was a possible malignancy, which was not done on this occasion. Dr. William T. Mixson, licensed in the State of Florida, and an expert in obstetrics and gynecology, gave testimony. Dr. Mixson testified that if confronted with vaginal bleeding, the physician should take the history and describe the amount, color, odor of the blood, how long it had been present, any hormonal therapy and any trauma associated with this discharge. A physician, according to Dr. Mixson, when confronted with this condition, should examine the abdomen, pelvis (speculum) and rectum and should take a pap smear if there is no excessive bleeding. According to Dr. Mixson, post-menopausal bleeding is a sign of possible malignancy. The sources of that bleeding, per Dr. Mixson, would be the vagina, cervix or uterus, and the explanation for the bleeding in order of occurrence would be polyps, atropic vaginitus and carcinoma. In addition to a pap smear, an office biopsy from the endometrium or dilatation and curettage would have been an appropriate diagnostic method and to wait one month to conduct these proceedings was inappropriate. In Dr. Mixson's opinion vaginal cultures are not designed to detect carcinoma, but are more appropriate for identifying infections and the medications prescribed by Dr. Benavides for the benefit of the patient Fisher were not designed to diagnose or treat carcinoma. According to Dr. Mixson, Dr. Benavides' actions were not in keeping with those of a reasonably prudent physician either in the field of obstetrics and gynecology, or as a general practitioner. Dr. Mixson's perceptions as described are accepted. The testimony by Dr. William Espinoza does not vary in a significant way on the subject of the proper care and treatment of a patient such as Ms. Fisher when contrasted with that of Drs. Crane, Rudolph and Mixson. If the facts were as established in this Recommended Order, Dr. Espinoza would not find Dr. Benavides' performance to be in keeping with that of a reasonably prudent practitioner licensed in the State of Florida. The difference in Dr. Espinoza's perception comes about in view of the fact that he would believe the Respondent's explanation of having discussed and advised Ms. Fisher of a possible malignancy on several occasions and attempting to have Ms. Fisher undergo dilatation and curettage. This explanation by the Respondent is not accepted. Therefore, the experts offered in the course of the hearing are in accord on the standard for a reasonably prudent practitioner confronted with a case similar to that of Ms. Fisher.
The Issue This is a case in which the Petitioner seeks to suspend, revoke, or take other disciplinary action against the Respondent as licensee and against his license to practice medicine in the State of Florida. In a two count Administrative Complaint the Respondent is alleged to have violated paragraphs and (h) of Subsection 458.331(1), Florida Statutes, by failing to report to the Department certain activities he is alleged to have witnessed, and is alleged to have violated paragraph (t) of Subsection 458.331(1), Florida Statutes, by failing to take certain specified actions which it is alleged should have been taken by a reasonably prudent physician acting under similar conditions and circumstances. Because of the somewhat unusual nature of this case, the principal allegations of the Administrative Complaint are set forth below to give context to the remainder of this Recommended Order. 1/ * * * COUNT ONE On or about March 16, 1982, Respondent was present at the delivery of a male infant to Mary Jones, reportedly to serve as the supervising physician to three (3) midwives performing the delivery. The delivery was performed by Margaret Hebson, Linda Wilson and Ricky Taylor. Hebson, Wilson and Taylor are not licensed to practice midwifery in the State of Florida, a fact which was known or should have been known to Respondent. Based upon the foregoing, Respondent has violated Section 458.331(1)(f), Florida Statutes, by failing to report to the Department any person who the licensee knows in violation of this Chapter or of the rules of the Department or the Board. Based upon this violation, Respondent has violated Section 458.331(1)(h), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. * * * COUNT TWO Given Jones medical history, a reasonably prudent similar physician acting under similar conditions and circumstances would have ordered Jones transferred to the hospital rather than allow a home delivery to take place. Respondent did not. Respondent further failed to act prudently and to fulfill the duties that a responsible supervising physician acting under similar conditions and circumstances would have fulfilled by failing to examine Jones prior to delivery, failing to furnish obstetrical care when needed during delivery and failing to order Jones transferred to the hospital when it became apparent that Jones was suffering a prolonged labor. Following delivery the infant went into respiratory arrest and expired. A reasonably prudent physician acting under similar conditions and circumstances would have properly CPR to resuscitate the infant. Respondent did not. Based upon the foregoing, Respondent has violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses, I make the following findings of fact. The Respondent, Albert A. Sneij, is a licensed medical doctor, having been issued license number ME0034499, and was so licensed at all times relevant to this case. At all times material to this case, Linda Wilson was not a licensed midwife and Dr. Sneij knew that she was not a licensed midwife. 3/ Mary Jones became pregnant for the third time in June or July of 1981. She went to see Dr. R. Strassberg, a specialist in obstetrics and gynecology, on July 24, 1981, and thereafter made regular visits to Dr. Strassberg's office until February 16, 1982. Mary Jones did not go back to Dr. Strassberg's office after February 16, 1982, because she had decided she wanted to deliver her baby at home. Jones did not tell Dr. Strassberg's office she was planning to have a home delivery; she simply never returned to Dr. Strassberg's office after the visit of February 16, 1982. During the time Jones was being attended by Dr. Strassberg there was nothing particularly remarkable about the course of her pregnancy other than a somewhat large amount of increase in her weight. Prior to her pregnancy in 1981, Mary Jones had given birth to two children, one in December of 1970 and the other in August of 1975. Both of the prior children were born in a hospital. During both of her prior pregnancies Mary Jones was attended by obstetricians. Mary Jones' first baby weighed eight pounds, twelve-and-a-half ounces, and was born breech. Her second baby weighed nine pounds, eight ounces, and was a normal birth. During the course of her 1981 pregnancy, Mary Jones became interested in home birth and began to go to some home birth classes, including some classes that were being taught by Linda Wilson. Jones decided that she wanted to have her baby delivered at home by a midwife and asked Linda Wilson about procuring the services of a midwife. Wilson was not doing home births at that time because Wilson was in nursing school, but Wilson recommended that Jones contact Margaret Hebson because Hebson had indicated an interest in providing midwife services for home births. Mary Jones first met with Margaret Hebson in January of 1982, at which time Mary was in the seventh month of her pregnancy. At their first meeting Hebson took a history, wrote down information about Jones' background, did an external examination which consisted of taking Jones' blood pressure and pulse, listening to the fetal heartbeat, and feeling the position of the baby. At that time Mary Jones hired Margaret Hebson to be her midwife. Jones paid Hebson $100.00 in advance and agreed to pay her an additional $200.00 after the birth. 4/ About three weeks later Hebson went to Mary Jones' house to do another examination. During that visit Hebson told Jones that Linda Wilson was also going to attend the birth and that Wilson would bring a doctor. Jones was uncertain about whether she wanted to have a doctor at the birth. Jones' uncertainty was due in large part to her very negative attitude towards doctors and hospitals as a result of her experiences during her two prior deliveries. She felt that doctors and hospitals made the birthing experience too impersonal and did not permit her to do things her way. She particularly wanted to be able to have the people of her choice in the birthing room and to hold her baby as soon as it was born; things which were denied her during her two prior deliveries which were at hospitals where she was attended by doctors. Mary Jones called Linda Wilson to discuss what Hebson had told her and Wilson told Jones that she could meet the doctor at Wilson's classes and then make up her mind. The doctor turned out to be Dr. Albert A. Sneij. Mary Jones first met Dr. Sneij during February of 1982, during her eighth month of pregnancy, after she had already made the decision to have a home birth and had already hired and paid a midwife. She met Dr. Sneij at one of the classes conducted by Linda Wilson. On the day she met Dr. Sneij, he took a prenatal history, did an external examination of her abdomen, and listened to the fetal heartbeat. On at least one subsequent occasion Dr. Sneij performed a similar abdominal examination and again listened to the fetal heartbeat. Mary Jones never retained the services of Dr. Sneij, never asked him to be her doctor, never agreed to be his patient, and never agreed to pay him anything for his services. No doctor-patient relationship was ever established between Dr. Sneij and Mary Jones. Mary Jones did not really want Dr. Sneij, or any other doctor, to be present at her delivery, but merely tolerated his presence because of her understanding that Linda Wilson wished to have Dr. Sneij present. 5/ As late as two days before her delivery, Mary Jones told Wilson and Hebson that she was not comfortable around Dr. Sneij and didn't know if she wanted him to attend her delivery. Wilson and Hebson told her she could wait until she was in labor to decide whether she wanted to have the doctor present at the delivery. Mary Jones' understanding of why Linda Wilson wanted the doctor present was that in the event Jones tore any tissues during the delivery the doctor would be there to suture her. Postpartum suturing was the only thing that Mary Jones even impliedly agreed to let Dr. Sneij do for her. Dr. Sneij did not have her consent, expressed or implied, to do anything else. Early in the morning on March 15, 1982, Mary Jones began to have contractions and to experience some pain. She got in touch with Hebson and ultimately around 9:00 or 9:30 a.m., Linda Wilson and Ricki Taylor 6/ arrived at the Jones residence. They checked Mary Jones and told her not to worry and to go on about her regular activities. Mary Jones spent the rest of the day doing such things as having lunch with her sister, going shopping, and then going for a walk around the block with her husband. Sometime before 5:00 p.m. that day Mary Jones called Hebson again. Hebson said she could not get off work until 5:00 p.m., but would get in touch with Wilson or Taylor and have one of them go out to the Jones residence. Sometime shortly before 5:00 p.m., Ricki Taylor arrived at the Jones residence. Then between 5:30 and 6:00 p.m. Louise Godwin, who is Mary Jones' sister and a registered nurse, arrived at the Jones residence. Margaret Hebson arrived about the same time as Godwin. Hebson did an internal examination of Mary Jones and told her that she was dilated four centimeters. Hebson also asked Jones various questions about what she had eaten that day and took her pulse and blood pressure. Linda Wilson did not arrive until sometime after 7:00 p.m. At that time Godwin was making supper and from then until about 9:30 p.m. everyone present attended to such things as domestic chores, eating supper, and/or trying to make Mary Jones more comfortable. At about 9:30 p.m., Wilson, Hebson, and Taylor decided to take Jones' two sons to the drug store for a few minutes. As they were leaving, Mary Jones' mother arrived. Wilson, Hebson, Taylor and the two boys returned about 40 minutes later. Nothing eventful happened until shortly before 11:00 p.m., at which time Jones' contractions started coming a lot closer together and Mary Jones suggested that someone start getting the bedroom ready for the delivery. Things were made ready, Wilson, Hebson, and Taylor changed clothes, and shortly after 11:00 a.m. Mary Jones was in the bedroom ready to begin trying to deliver her baby. It was probably at about this time that Linda Wilson called Dr. Sneij. 7/ Before Dr. Sneij arrived at the Jones residence, there were ten other people in the bedroom with Mary Jones; namely, Hebson, Wilson, Taylor, Godwin, Bob Jones (Mary's husband), both of the Jones sons, Mary's mother, and two of Mary's friends. Dr. Sneij arrived at the Jones residence shortly thereafter and remained in the living room for a few minutes until someone asked him to come into the bedroom. 8/ When Dr. Sneij entered the bedroom the baby's head was not yet visible. At that time Mary Jones had probably been in the second stage of labor for about twenty or thirty minutes. The baby's head was first visible about five or ten minutes after Dr. Sneij entered the bedroom. Thereafter the top of the baby's head was visible pressing against the peroneum for approximately thirty minutes until the baby's head was entirely delivered. Within a minute or two after the delivery of the baby's head, the baby was fully delivered. When the baby was born it had a blueish color and was not making any attempt to breathe. The baby was promptly suctioned and then Dr. Sneij and Louise Godwin administered mouth-to-mouth CPR to the baby. The baby's pulse was checked and found to be present. A few minutes later Fire Rescue was called. When the Fire Rescue personnel arrived, they took over the CPR efforts. At that time the baby still had a pulse and during the CPR efforts by Fire Rescue the baby's color improved. Fire Rescue transported the baby to James Archer Smith Hospital. The baby was still alive when the Fire Rescue personnel delivered the baby to the hospital. The baby died some time before noon on March 16, 1982. From the time Dr. Sneij entered the bedroom until the time the baby was delivered, Dr. Sneij was observing what was happening and Hebson was doing most of the "hands-on" work assisting Mary Jones with the delivery. Hebson was being assisted to some extent by Linda Wilson. Ricki Taylor appears to have been primarily an observer. Dr. Sneij was sufficiently attentive to what was happening to conclude that the delivery should probably be expedited and to recommend an episiotomy. When it was suggested that an episiotomy be done, Mary Jones protested against that suggestion and refused an episiotomy. During the second stage of labor the fetal heartbeat was checked at least once every fifteen minutes and the heartbeat was recorded on the midwife's notes on labor and delivery. 9/ The fetal heartbeat rate never indicated any fetal distress and the baby still had a pulse shortly after delivery. An autopsy of the Jones baby was performed by Dr. Charles V. Wetli, the Deputy Chief Medical Examiner for Dade County, Florida. The autopsy revealed no evidence of trauma and no evidence of any congenital diseases or abnormalities. The only findings were generalized visceral congestion and petechiae of the lungs and heart. These findings are indicative of a nonspecific form of an asphyxial mechanism of death. 10/ Dr. Wetli also examined the placenta. It appeared to be normal and contained no evidence of meconium staining. He also examined a section of the umbilical cord and found it to be normal. I have not made any findings of fact as to the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under conditions and circumstances similar to those involved in this case because, for the reasons stated at length in the Conclusions of Law portion of this Recommended Order, there is no sufficiently substantial evidence in the record in this case a to the appropriate level of such care, skill, and treatment. 11/
Recommendation For all of the reasons stated above, I recommend that the Board of Medical Examiners enter a Final Order in this case which DISMISSES the entire Administrative Complaint against Dr. Sneij. DONE and ORDERED this 9th day of November, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH 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 9th day of November, 1984.
The Issue Whether the Respondent committed the acts attributed to her and whether such acts constitute a violation of the statutes and rules.
Findings Of Fact Carolle L. Baya is a licensed lay midwife holding a license issued by the Petitioner. Exhibit 1 is a composite of certified copies of birth certificates of babies at whose births Ms. Baya attended. Ms. Baya was very late on over 17 occasions in initiating the registration of the birth of a child whom she had delivered. On two additional occasions, she was so late that a delayed certificate of birth had to be prepared. Frances Friedl was seen by Dr. Sudesh Metah, M.D., at the hospital on April 9, 1988, at 8:30 a.m., for delivery of her first baby. She had been admitted through the emergency room and referred to obstetrics where Dr. Metah was the on-call doctor. When initially seen at the hospital, Ms. Friedl was in active labor. From the admission notes prepared by the labor and delivery nurse, Ms. Friedl started labor between 5:00 and 6:00 p.m. on April 8, 1988; and her water broke about 12:30 a.m. on April 9, 1988. Ms. Baya stated to Dr. Metah when Ms. Friedl was admitted that she had done a pelvic examination at 3:30 a.m. and had determined that Ms. Friedl was in second stage labor. The patient confirmed this information. Although Ms. Friedl had been and was pushing, the birth of the baby had not and was not progressing. At 8:30 a.m. when the doctor saw her, she was fully dilated and the baby had not descended into the birth canal. Ms. Friedl had remained in second stage labor over four hours before admission to the hospital. Dr. Metah considered two (2) hours of second stage labor long enough, with medications, epidural anesthesia, and with progress towards delivery by the patient. Dr. Metah considered three (3) hours to be the maximum for a woman to remain in second stage labor without medical intervention. Dr. Metah had to rotate the baby, who was in a vertex posterial presentation, in order for the baby to be delivered. The baby was a female, 7 pounds, 5-1/2 ounces, with Apgars of 9-10 or 9-9. 1/ She was born 1-1/2 hours after the mother's admission to the hospital. The baby was delivered as soon as possible at the hospital. Ms. Baya did not transport Ms. Friedl to the hospital until four hours after Ms. Friedl was fully dilated and in second stage labor. Annette Louise Zivkovic was admitted to Memorial Medical Center emergency room with obstetric complications in active labor. Her physician, Dr. Sager, was present when she was admitted. Ms. Baya, her midwife, was also present when Ms. Zivkovic was admitted. Admission notes state that Ms. Baya assisted the patient for three hours but that the patient was unable to deliver. Dr. Sager was present at admission and performed a vaginal examination. He determined that Ms. Zivkovic was dilated to "Station 4." The patient stated that she was very scared and her arms and legs were stiff when she had contractions. The patient was unable to push effectively and assist in delivery. The admission notes indicate she was in active labor three hours before being taken to the hospital. The Labor and Delivery Summary indicates that the patient was admitted at 4:25 p.m. on January 2, 1989. She was delivered at 4:41 p.m. She had been in labor since 1:00 p.m. There is no evidence that Ms. Baya knew that Ms. Zivkovic was staining or that she did not have Ms. Zivkovic assessed. The Petitioner's expert midwife, Ms. Richter, testified. A delay of over two hours in referring a patient who was in active labor and had not delivered was unprofessional conduct. Karen Evans was admitted to the hospital via the emergency room and delivered by C-section by Dr. Wooden because the baby was in fetal distress. When delivered, the baby's head was molded into the pelvis. A bad odor from the uterus indicated interuterus infection. Ms. Evans had a high white blood count which was consistent with an infection. Ms. Evans reported to the doctor that she had been leaking fluid for two weeks. Ms. Evans was admitted to the hospital by the emergency squad, who had been requested by Ms. Baya. The doctor stated that the midwife called the medical squad when she realized that she had a complicated patient in labor with fetal distress. Ms. Evans' labor-began at 10:30 a.m., according to Ms. Baya's reports to the patient; and Ms. Evans was admitted to the hospital at 10:30 p.m. for emergency delivery of the baby by C-Section. The baby was delivered approximately 1-1/2 hours later, at 11:57 p.m. The Petitioner's medical expert's opinion was that Ms. Evans should have been referred when it was determined that her water was leaking and should have been referred to the doctor long before she had been in active labor for 12 hours. There was no evidence that Ms. Baya knew or should have known that Ms. Evans was leaking ambiotic fluid. The baby's head being molded into the pelvis is a sign of prolonged labor. There is evidence that Ms. Baya knew that Ms. Evans had been in active labor for over 12 hours. There is no evidence that Ms. Baya knew that Ms. Evans had unexplained vaginal bleeding. There was no credible evidence that Ms. Baya failed to do metabolic screening on M.K. 2/ failed to provide accurate information on the birth certificate of M.K.'s child; or provided care to M.K., who was at high risk.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that: The Petitioner revoke the license of the Respondent; and The Petitioner suspend the revocation upon demonstration by Ms. Baya that she has taken refresher courses in midwifery and can practice safely and in accordance with all applicable statutes and rules. DONE AND ENTERED this 17th of February, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1992.
