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 Whether Respondent is guilty of sexual misconduct in the practice of medicine in violation of Sections 458.329 and 458.331(1)(x) F.S.
Findings Of Fact At all times material, Respondent has been a Florida-licensed medical physician, license number ME 0015980. Respondent was trained in medicine at Leeds Medical School in England. He has been licensed in Florida since 1965. He served as an assistant Professor at University of Florida's Shands Teaching Hospital from 1966 through 1971. He is board-certified in otolaryngology. He retired from practice in 1994, after the events giving rise to the charges herein. On October 11, 1991, Patient E.C., a 34 year old female presented to Respondent with complaints of not being able to breathe through her nose. Respondent's examination of E.C. revealed a lump in her nose which was deviated to the right. He recorded that her nasal septum was deformed so that it met with the outside wall of the nose causing a considerable obstruction. Respondent discussed the possibility of performing a surgical reconstruction of the septum, a septorhinoplasty. He prescribed medication and instructed her to return in two weeks. E.C. returned on October 23, 1991, reporting no improvement, and septorhinoplasty was again discussed. On October 30, 1991, E.C. contacted Respondent and requested that the operation be scheduled for November 14, 1991. She was told to return to his office on November 13, 1991 for a preoperative examination. As directed, E.C. presented for that preoperative examination on November 13, 1991. Respondent shared office space with his wife, Heather Hardcastle, M.D., a psychiatrist. Preoperative physical examinations are normally performed prior to surgery in order to assure that the patient is fit for surgery and is not at an increased risk for anesthesia. Expert otolaryngologists, William Darby Glenn, M.D. and Scott H. Goldberg, M.D., opined that a preoperative breast examination is not routinely performed for septorhinoplasty and has no relationship to standard preoperative goals. At all times material, it was Respondent's custom to conduct a brief breast examination on female patients as part of his usual physical examination prior to surgery on the ear, nose, or throat because he considered breast examinations important for the patient's health and because he had been criticized in the past for not conducting sufficiently complete physical examinations on otherwise healthy ear, nose, and throat patients. Respondent and his two female office staff members who testified concurred that the procedure he routinely followed on these occasions was to have his technician and nurse, Martha King, place the female patient in an examining room with a paper gown or other drape beside her on the examining table. The patient would then undress from the waist up and put on the gown or drape. Respondent would enter the examining room after the patient was gowned/draped, and the physical examination would be conducted with Mrs. King or another female staff member present. Respondent's breast examinations included observation of the breasts and palpation of the breasts and of the axilla nodes underneath the armpits while the patient was sitting, followed by palpation of each breast, one at a time, while the patient reclined with one arm beneath her head. Then, Respondent would exit the examining room while the patient dressed. The foregoing procedure meets the acceptable standard of care within the scope of a generally accepted breast examination as described by all testifying medical experts. Several female patients also testified that the foregoing is Respondent's usual procedure and that he has never by look, word, or action treated them with less than the utmost professionalism and respect. Respondent's office staff and wife shared the same view based upon their observation of his behavior with patients. They shared a high regard for him. E.C. testified that during her preoperative visit on November 13, 1991, after conducting a breathing test on her in another room, Respondent personally brought her to the examining room. He then stated, "Let's see what you have on there," and told her to take off her top things and put her winter coat back on. Respondent exited the room while E.C. undressed and draped herself with her coat as instructed. When Respondent returned to the examining room, he sat in a corner of the room at a distance from the examining table where E.C. sat and discussed her concerns or fears of the impending surgery with her and satisfactorily answered her questions. Afterwards, Respondent walked over to the examining table, stood to E.C.'s right side, and told her to drop the coat to her waist. Respondent then placed his stethoscope on several areas of E.C.'s back and listened to her breathing. He repeated this procedure on her chest, including under the collarbone and under her left breast, listening to her heart. Then, while E.C. remained sitting upright, Respondent cupped her left breast in his right hand, pushed up and squeezed, slightly pressing his fingers around the outside of the breast. He then placed his hand on the top of the breast, pushed downward and squeezed. He repeated the procedure with E.C.'s right breast. At no time did E.C. and Respondent make eye contact. The only thing he said to her during this procedure was to breathe and to inquire if she had ever had a mammogram. She claims she was never asked to lie down and was never examined lying down. Afterwards, Respondent told E.C. to get dressed, and he exited the room while she did so. Respondent then took photographs of E.C.'s nose in the first room. E.C. described herself as filled with terror at the thought that something awfully wrong had been done to her, primarily because she had many breast examinations and none had been done this way. She was uncomfortable because of the absence of another female, the lack of a drape, and because no part of the breast examination was conducted with her lying down. She admitted, however, that the entire examination was conducted with her facing away from the door. Any female staff member or Respondent's wife could have entered the examination room while E.C. was not facing the door and she would not necessarily have seen someone there. Drs. Glenn and Goldberg felt that the scope of the examination described by E.C. was an appropriate preoperative examination for septorhinoplasty except for the examination of her breasts. Dr. Edward Weinshelbaum, M.D., a general surgeon with a practice emphasis on breast cancer patients, opined that the scope of a preoperative examination should include a breast examination. All three experts and the Respondent considered any failure to have a female patient present and any failure to drape to be inappropriate, although Dr. Glenn felt the use of a coat if all the drapes/gowns were used up would be a reasonable alternative. All three experts and the Respondent concurred that a failure to examine the patient's breasts while reclining was below the standard of care for a generally accepted breast examination; that absent this last procedure, a breast examination would not include a medically essential element; and that an appropriate and effective breast examination cannot be performed with the patient sitting up throughout. Respondent had no specific recollection of E.C.'s November 13, 1991 office visit, but categorically denied her description of the breast examination, insisting that if his records indicated that a breast examination had been performed, it must have been performed according to his usual routine, and if it were performed as E.C. described, the breast examination would be inappropriate. Respondent's records show that he conducted examinations of E.C.'s head, ears, nose, throat, chest, abdomen, and breasts during the preoperative examination. He has never attempted to conceal that he examined her breasts. Ms. King was able to recall that she and her assistant were in the office all of November 13, 1991. She had no clear recollection of E.C., but that is not particularly significant because Respondent was seeing between 20 and 30 patients per day at the time. Donna Robertson, another female office staff member, only recalled that E.C. had "an attitude" when she left after her preoperative examination because she had been asked to make an insurance co-payment. E.C. repeatedly used the words "afraid" and "fearful" to describe her reaction to fairly routine events in her life. Although E.C. has remained consistent about the events on November 13, 1991 as she recalls them, she has repeatedly failed to "remember" reasonable questions concerning her medical history and past surgical procedures such as breast augmentation surgery, repair of breast implants, and abortions, during the course of discovery in this case. She describes these occurrences as "going blank", failure to remember, and not understanding the questions at the time the questions were first put to her. Although she later disclosed medical procedures she had at first "forgotten" or misunderstood, her initial "blanks" render suspect her ability to remember the significant events in this case and detract from her credibility.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the administrative complaint against Respondent. RECOMMENDED this 3rd day of May, 1995, at Tallahassee, Florida. ELLA JANE P. 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 3rd day of May, 1995. APPENDIX TO RECOMMENDED ORDER 94-0292 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-15 Accepted except that unnecessary, subordinate, and/or cumulative material has not been included. 16 Rejected as covered in FOF 9-11, 16. 17-18 Accepted except that unnecessary, subordinate, and/or cumulative material has not been included. 19-46 Accepted that E.C. testified to this effect. The substance of her testimony is covered in FOF 13-14. The proposal is not proven for the reasons given in the recommended order, including but not limited to FOF 21. 47-60 Rejected as subordinate to the facts as found or as arguments on credibility. While prior inconsistent statements may affect credibility, prior consistent statements do not tend to reinforce credibility. The substance is covered in FOF 14 and 20-21. 61-62 Accepted in part and rejected in part in FOF 8-11 and 16. 63 Rejected as subordinate. 64-65 Accepted as covered in FOF 11 and 16. 66-67 Rejected as not proven. 68 Accepted in part and rejected in part as covered in FOF 8-11 and 16. 69-70 Rejected as not proven and as a conclusion of law. Respondent's PFOF: 1-7 With corrected dates, accepted. However, unnecessary, subordinate, and/or cumulative material has not been included. 8-12 Not clearly proven, but more credible than E.C.'s version. See FOF 11-12. 13-15 Accepted as covered in FOF 8-11 and 16. Rejected as subordinate. Accepted as covered in FOF 20. 18-22 Covered only as necessary in FOF 21. Unnecessary, subordinate, and/or cumulative material not included. 23-24 Accepted, except that unnecessary, subordinate, and/or cumulative material has not been utilized. Rejected as argumentation or unnecessary, subordinate, and/or cumulative material. Covered only as necessary in FOF 12. 27-29 Rejected as argumentation or unnecessary, subordinate, and/or cumulative material. 30 Covered only as necessary in FOF 17-20. 31-35 Rejected as irrelevant. COPIES FURNISHED: Arthur B. Skafidas, Esquire Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Legal A Tallahassee, Florida 32399-0792 John D. C. Newton, Esquire Messer, Vickers, et al. P.O. Box 1876 Tallahassee, Florida 32302 Douglas M. Cook, Director A H C A 2727 Mahan Drive Tallahassee, Florida 32308 Tom Wallace, Asst Dir. A H C A 325 John Knox Rd Tallahassee, Florida 32303
The Issue Should Petitioner discipline Respondent for violating its order entered May 4, 1995, prohibiting Respondent from performing obstetric or gynecological surgical procedures without appearing before the Board of Medicine (Board) and demonstrating his ability to perform OB/GYN surgery with requisite skill and safety to patients? Section 458.331(1)(x), Florida Statutes.
Findings Of Fact Stipulated Facts Respondent is and has been at all times material hereto a licensed medical physician in the State of Florida, having been issued license number ME 0017399. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes. On or about May 4, 1995, the Board of Medicine issued a Final Order in Case No. 92-05546 imposing discipline on Respondent's license to practice medicine. This discipline was adopted by the Board of Medicine from a stipulated disposition ("consent agreement") voluntarily accepted by Respondent. Respondent does not now challenge the legality or validity of the May 4, 1995, consent agreement. The disciplinary terms of the May 4, 1995, consent agreement include, but are not limited to, the following restriction on Respondent's practice, in pertinent part: Respondent shall refrain from performing obstetric or gynecological surgical procedures until such time as he appears before the Board and Demonstrates that he may perform OB/GYN surgery with the requisite skill and safety to patients. For purposes of this Consent Agreement, OB/GYN surgery shall include, but not be limited to: abortion of a fetus, amniocentesis, dilation and curettage, delivery of a fetus, hysterectomy, PAP smear, cophorectomy, salpingectomy, tubal ligation, and any and all invasive procedures involving any portion of the reproductive organs of the human female, including the vulva, vagina, cervix, uterus, and adnexa of the uterus. Respondent did not appeal or otherwise legally challenge the May 4, 1995, Final Order of the Board of Medicine. At no time through July 1996 did Respondent physically appear before the Board of Medicine or petition the Board of Medicine with respect to the above stated restriction on his license and/or the demonstration [sic] to the Board that he could perform obstetric or gynecological surgical procedures as specified in the Final Order with the requisite skill and safety to patients. Between approximately January 1996 and July 1996, Respondent was employed as a physician at the Gulf County Health Department in Gulf County, Florida. During the period that Respondent was employed at the Gulf County Health Department, he performed PAP smears and gynecological cryosurgery. Irrespective of whether such violation was premeditated, intentional, or willful, Respondent violated the terms of the May 4, 1995, Final Order of the Board of Medicine by performing the gynecological procedures he performed during his practice at the Gulf County Health Department. At the time it was presented to the Board, Respondent received a copy of the Consent Agreement executed by him which formed the basis for the Board of Medicine Final Order. Respondent did not provide a copy of the Consent Agreement and/or the Board of Medicine Final Order to the Gulf County Health Department prior to or at the initiation of his employment there. Additional Facts At the time Petitioner imposed discipline against Respondent in Case No. 92-05546, Respondent appeared before Petitioner and an explanation was given concerning the circumstances involved with the discipline. Respondent signed the consent agreement leading to the discipline. The consent agreement included the statements of restrictions on Respondent's practice, the subject of the present case. Respondent had discussed entry into the consent agreement with counsel who represented his interests in Case No. 92-05546. While employed with the Gulf County Health Department in Gulf County, Florida, between January 26, 1996 and July 18, 1996, Respondent performed 21 PAP smears and two colposcopies/ biopsies in the Port St. Joe, Florida clinic. Respondent performed 29 PAP smears and one colposocopy/biopsy in the Wewahitchka, Florida clinic. In discussing the possibility that Respondent would be employed by the Gulf County Health Department, Respondent did not discuss with that agency the existence of the consent order which restricted his practice. Respondent mentioned a suit and the fact of his appearance before the Board of Medicine in the previous year, at the Board's behest, but not the consent order. Verna Mathes is the Community Health Nursing Director for the Gulf County Health Department. Ms. Mathes was involved with the efforts that lead to Respondent's employment with the Gulf County Health Department. Ms. Mathes spoke with someone at the State of Florida, Department of Business and Professional Regulation to ascertain whether Respondent's medical license was "in good standing," before Respondent was hired. That unnamed person replied that there were no disciplinary actions against Respondent's medical license. Subsequent to that conversation Respondent was hired. Before Respondent was hired by the Gulf County Health Department he telephoned the Board of Medicine and spoke to a secretary. His stated purpose for the call was to arrange to appear before the Board and "to know what steps I have to take in order to have any license up to date subject to the rules, whatever limitations had been posted." According to Respondent, the response by the secretary he spoke with was that the "register" does not show any limitation imposed upon Respondent's medical license. Assume that the communication from the person at the State of Florida, Department of Business and Professional Regulation was made to Ms. Mathes and that there was a communication from a secretary at the Board of Medicine made to Respondent. Assume the communications reflected the understanding which those persons had concerning Respondent's license status. This did not modify nor relieve Respondent of his obligation in Case No. 92-05546. That obligation was to abide by the restrictions on his practice in relation to the performance of OB/GYN surgery. Respondent could only engage in that surgical practice after appearing before the Board of Medicine and demonstrating the requisite skill and safety to patients in performing OB/GYN surgery. Any inquiry by Respondent and that by Ms. Mathes did not release Respondent from his obligation to appear. Once hired by the Gulf County Health Department, the OB/GYN surgeries that have been described were outside the expectations in the consent order related to Respondent's opportunities to practice medicine.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds Respondent in violation of Section 458.331(1)(x), Florida Statutes, imposes a $5,000.00 fine, and requires twenty (20) hours of Continuing Medical Education in Obstetrics and Gynecology. DONE AND ENTERED this 7th day of April, 2000, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 7th day of April, 2000. COPIES FURNISHED: Eric C. Scott, Esquire Agency for Health Care Administration Office of General Counsel Post Office Box 14229 Tallahassee, Florida 32317-4229 Thomas S. Gibson, Esquire Rish, Gibson and Scholz, P.A. 206 East Fourth Street Port St. Joe, Florida 32457 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 32399-1701
The Issue By count, the issues are as follows: Count I - Did Respondent exercise influence within a patient-physician relationship for the purpose of engaging a patient in sexual activity, contrary to Section 458.331(1)(k), Florida Statutes? Count II - Did the Respondent prescribe, dispense or administer a legend drug or controlled substance other than in the course of his practice, contrary to Section 458.331(1)(q), Florida Statutes? Legally, the issue is whether the presumption of impropriety should apply because the drug was alleged to be prescribed inappropriately. Count III - Did the Respondent violate the statutory in Section 893.05, Florida Statutes to prescribe, dispense and administer a controlled substance in good faith and in the course of his professional practice, and thereby violate Section 458.331(1)(h), Florida Statutes? Count IV - Did Respondent maintain adequate medical records for his treatment of the patient, contrary to Section 458.331(1)(n), Florida Statutes? Count V - Did the Respondent fail to practice medicine within that level of care, skill and treatment which is recognized by a reasonably prudent similar medical doctor as being acceptable under similar conditions and circumstances (gross or repeated malpractice), contrary to Section 458.331(1)(t), Florida Statutes? Count VI - Did the Respondent make deceptive, untrue or fraudulent representations in the practice of medicine, contrary to Section 458.331(1)(1), Florida Statutes? Count VII - Did the Respondent violate any provision of Chapter 458 or Rule of the Board, and thereby violate Section 458.331(1)(x) Florida Statutes? After the Petitioner rested its case, Respondent moved for a finding of fact that certain counts were not proven. The motion was granted with regard to Count VI and Count VII for the following reasons: Count VI - There was no evidence of any deceptive, untrue or fraudulent representations presented. Count VII - The Board has not charged any violation of the rules. Any violations of Section 458.331, Florida Statutes alleged are punishable in their own right and it is inappropriate to charge Respondent with an added violation of Chapter 458.331(1)(x), Florida Statutes. A timely proposed order was received from the Respondent; a proposed finding was filed late by the Petitioner which was rejected as being filed late. A ruling has been made on the Respondent's proposed finding of fact in the Appendix to the Recommended Order.
Findings Of Fact The Respondent, Donald H. Foster, is a medical doctor licensed by the Florida Board of Medical Examiners and has held license #0006524 since 1955. Kelly McLean, a/k/a Kelly Carter, is a preoperative transsexual who has taken female hormones since 1982, who dresses as a female, who lives and works as a female, and who will be referred to in the female gender hereafter in this Order. (Testimony of McLean.) Kelly McLean first saw Respondent in May of 1982 to obtain female hormone shots to maintain female secondary sexual characteristics. McLean had already been obtaining such hormones from other sources prior to seeing Respondent. McLean could not remember many details of the 1982 visit: however, McLean stated that Respondent did not take a complete past history and perform a general physical examination. McLean stated that Respondent did examine her breasts and asked general questions about her condition and the treatment she sought. The Respondent prescribed female hormones for McLean and gave McLean a hormone shot during the 1982 visit. (Testimony of McLean.) McLean did not continue to see the Respondent because McLean was obtaining hormones for less money from another source. (Testimony of McLean.) In August 1984 McLean was arrested for solicitation of an undercover police officer to perform a sexual act for $20.00. While being held in an investigative status and prior to being booked, she was approached by Detective Duran to see if she had any criminal intelligence value and was willing to cooperate with the police in criminal investigations in order to seek their recommendation to the State Attorney that the charges against her be reduced. McLean agreed and was placed in contact with Detective Gates. Gates had been surveilling the Respondent since 1976, but did not have an open case file. McLean had advised Detective Duran she had seen Respondent in 1982. McLean was recruited to work an undercover operation against Respondent. (Testimony of McLean and Gates.) Gates and Duran targeted McLean against Respondent to determine if Respondent was prescribing medications in accordance with ethical and legal standards and requirements. Gates suggested to McLean that she attempt to obtain a prescription for valium and cautioned her not to present a good medical reason. McLean also understood that Duran was seeking evidence of solicitation of sexual favors by the Respondent. Gates and Duran told McLean they would recommend to the State Attorney that her charges be reduced if she would wear a recording/transmitting device, see the doctor, and attempt to get drugs and seek sexual favors. (Testimony of McLean, Gates and Duran.) McLean agreed, saw the Respondent, the officers recommended reduction of her charges and they were dropped. (Testimony of McLean.) On September 7, 1984, McLean met with Duran and Gates at approximately 2:00 p.m. at which time they equipped her with a transmitting device. They then took her to the Respondent's medical office where she entered Respondent's office and spoke with the receptionist. She advised the receptionist she had seen the doctor in 1982 and her record was pulled. The receptionist did not take any information from McLean other than her change of address. McLean was placed in an examination room and seen alone by Respondent. (Testimony of McLean.) Duran and Gates remained outside monitoring and recording the transmissions from McLean's transmitter hidden in her purse. (Testimony of Duran and Gates.) The Respondent saw McLean and asked why McLean was there. McLean indicated to Respondent that she desired to continue her hormone shots. The Respondent carefully examined McLean's breasts, to include the lymph glands under the arms, and asked McLean about how her treatment was coming. McLean advised Respondent that she was nervous because she had just moved back into the house with her mother who disapproved of her life style and asked for a valium prescription. (Testimony of McLean and Foster.) After his examination, the Respondent administered an injection of female hormones to McLean and prescribed a female hormone to be taken orally by McLean. The Respondent did not give McLean a prescription of valium at that time. (Testimony of McLean.) Hormone injections for pre-operative transsexuals are accepted treatment during the period in which the male is adapting to life as a female prior to surgery. However, this is generally done in conjunction with psychiatric or psychological counseling as part of an overall process culminating in surgery. Because of the various health care needs of the transsexual and serious consequences of hormone therapy, various specialists may treat the patient under the leadership of one of the physicians. There is no evidence that Respondent administered hormones to McLean as part of an overall treatment regime to include counseling and planned surgery initiated by Respondent or another physician. However, there are many transsexuals who cannot afford the treatments, counseling and surgery which are quite expensive. Many transsexuals are limited to continued hormone treatments which are frequently obtained from persons other than physicians. Hormone injections can cause serious side effects and should not be prescribed without full patient history, careful workup and continued screening. (Testimony of Foster and Neufeld.) The Respondent did not perform the workup required of the prudent, reasonable medical doctor under similar circumstances prior to prescribing female hormones for McLean. (Testimony of McLean, Foster and Neufeld.) On September 7, 1985 at approximately 5:15 p.m. McLean returned to Respondent's office. Conflicting testimony was received on whether the Respondent made sexual advances to McLean or whether Respondent offered to supply valium to McLean in return for sexual favors. McLean was under significant pressure to obtain data for the Tampa Police Department or face trial for prostitution. Gates targeted McLean against Foster who Gates had had under investigation since 1976 without an open file. Also, Duran's special interest in vice matters was known to McLean. Conversely, Respondent has a very clear and special interest in this case. Although Respondent prescribed valium to McLean at this second visit, the testimony of McLean is rejected as it relates to overt sexual conduct or advances by Dr. Foster in return for a valium prescription. (Testimony of Foster and McLean.) Transsexuals suffer frequently from anxiety. McLean specifically reported problems with anxiety and requested a prescription for valium for relief of this problem. Valium is a Class IV controlled substance which is frequently prescribed for the relief of anxiety. The prescription of this medication for McLean by Respondent was appropriate and for the benefit of the patient's condition. (Testimony of McLean and Foster.) The records of McLean kept by the doctor were taken by the officers on the night of September 7, 1984 without a warrant. McLean asked the doctor to give her records to the police, which he did. The entries are sparse and do not reflect weight, blood pressure, pulse rate or respiration. There is no evidence of a patient history being taken in either 1982 or 1984. Although Respondent had no opportunity to make any entries regarding the prescription of valium to McLean in the records, the absence of any 1982 data indicates Respondent failed to record basic patient data. Respondent testified he did inquire about basic data of all his patients. Testimony of McLean, Gates, Foster and Duran. Although the Board's expert testified that he would not examine a transsexual without a female nurse present, and that to do so violated the accepted standards of practice, the Respondent testified he was unaware of any accepted protocol regarding decorum applicable to how transsexuals should be examined. Clearly this case reveals the potential dangers of not having a third person present when examining a transsexual; however the expert's opinion appeared to be a personal one, no authority having been cited for the practice of treating a transsexual as a female patient. (Testimony of Neufeld and Foster.)
Recommendation Having found the Respondent guilty of violating Section 458.331(1)(t), Florida Statutes, it is recommended he be fined $1,000.00 and be required to attend twenty-five (25) hours of continuing education. Having found Respondent guilty of violating Section 458.331(1)(n), Florida Statutes, it is recommended he be fined $1,000.00 and be required to attend twenty-five (25) hours of continuing education. DONE AND ORDERED this 30th day of October, 1985 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN: Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of October, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32301 Harry M. Hobbs, Esquire 725 East Kennedy Blvd. Tampa, FL 33602 Dorothy Faircloth Executive Director Board of Medical Examiners Old Courthouse Square Bldg. 130 N. Monroe Street Tallahassee, FL 32301 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 APPENDIX The proposed findings submitted by the Respondent were read, considered and the following action was taken with regard to them: Proposed Findings Recommended Finding or Other Disposition Paragraph #1 Paragraph #16 Portions rejected as conclusion of law and irrelevant. Paragraph #2 Paragraph #3 Paragraph #3 Paragraph #14 and #15 Paragraph #4 Paragraph #10 Paragraph #5 Paragraph #16 Paragraph #6 Paragraph #2 Paragraph #7 Paragraph #14 and #15 Paragraphs #9, 10, Rejected as conclusion 11 and 13 of law. Paragraph #12 Paragraph #16 Paragraph #14 Not at issue. Rulings were made prior to taking testimony regarding the admissibility of evidence. Rejected as irrelevant to issues. Paragraph #15 See comments, Paragraph #14 above. Paragraph #16 See comments, Paragraph #14 above. Paragraph #17 Rejected as irrelevant to issues presented. Paragraph #18 Paragraph #5 Paragraph #19 Paragraphs #5, 6 and 7 Paragraph #20 Contrary to more credible evidence. Paragraph #21 Paragraph #15 Paragraph #22 Rejected as irrelevant. Paragraph #23 Rejected as irrelevant.
The Issue The issue is whether Respondent is guilty of failing to conform to the minimal standards of acceptable and prevailing nursing practice by testing positive for cannabinoids in a pre-employment drug screen, in violation of Section 464.018(1)(h), Florida Statutes, and, if so, what penalty Respondent should receive.
Findings Of Fact At all material times, Respondent has been licensed as a practical nurse, holding license number PN 0892481. Respondent has practiced 18 years as a licensed practical nurse without prior discipline. Respondent's license is active, although she is not currently employed as a nurse due to what appears to be a serious case of diabetes, which has necessitated the amputation of part of one of her legs. In August 1995, Respondent applied for a nursing job with The Pines of Sarasota. She was hired on August 24, 1995, and her first day of work was August 30, which was an orientation program that took place on a Wednesday. Respondent was hired to work 16 hours a week, consisting of weekends only. Her first regular day of work was September 2, 1995, which was a Saturday. Respondent reported to work that day and worked her regular shift. Respondent was dissatisfied with the working conditions. She complained that all of the other staff took off for a break and left her alone on the unit. It is unclear if Respondent worked, or was supposed to work, on September 3. However, she was due to work on September 9, but she did not show or call in. On September 11, Respondent mailed a short letter of resignation. The evidence is clear that The Pines required that Respondent take and pass a urine test for drugs. The evidence is vague and conflicting as to when Respondent took this test. Testifying by telephone due to a problem with the service of a witness subpoena, a technical director of the laboratory that conducted the urinalysis offered the only direct testimony on Petitioner's behalf concerning the urinalysis. Respondent offered the only direct testimony on her behalf concerning this matter. Petitioner's witness testified that the urine sample was collected on Wednesday, August 30, and analyzed the next day. However, he was not the person who collected the sample; he supervised technicians who did the actual work. Respondent testified that she went to the laboratory and gave the urine sample on Wednesday, September 6. Respondent's ability to cross examine Petitioner's witness from the laboratory was impeded by his presence by telephone, as was the strength of his testimony. He testified from some documents that counsel did not appear to have available to them. Petitioner was unable to authenticate and introduce into evidence various documents present at the hearing and purportedly involving the subject drug test. There are some unresolved issues concerning the urine test. First, no one at the laboratory checked any photo identification of Respondent prior to taking the sample or gave her a copy of the laboratory documentation. These omissions raise the possibility of confusion in identification of the subject and the test results. Second, the laboratory did not appear to report the results to Respondent or promptly to The Pines. The Pines and Respondent litigated an unemployment compensation case in November 1995, but no one mentioned the failed drug test. The Pines filed a complaint with Petitioner, which led to the investigation that led to this case, in January 1996. The apparent failure of the laboratory to notify promptly The Pines and Respondent of the positive results undermines the credibility of their handling of the sample and test results and effectively prevented Respondent from obtaining a retest of the sample or, if practical, a second test. It is more likely than not that Respondent had consumed marijuana and thus failed the urine test. However, for the reasons already stated above, Petitioner has failed to prove these material facts by clear and convincing evidence.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the administrative complaint. DONE AND ENTERED this 7th day of July, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998. COPIES FURNISHED: Craig A. McCarthy General Counsel's Office Medical Quality Assurance Allied Health Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Cathy L. Lucrezi Cathy L. Lucrezi, P.A. 2256 Heitman Street Fort Myers, Florida 33901 Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent Anila Poonai began her medical education in her native land, India, and, in 1960, she received a medical degree from Bombay University. After an internship in Bombay, she spent three months in training in the United Kingdom, before travelling to Georgetown, Guyana, to become a resident medical officer at the public hospital there. After two years in Guyana, she returned to England where, in 1964, she passed a post-graduate examination. As a result of a residency in obstetrics and gynecology and a satisfactory showing on the requisite examinations, she became a member, in 1969, of the Royal College of Obstetrics and Gynecology. All told, respondent has spent six years as a resident in obstetrics and gynecology. From England, she travelled to the University of the West Indies in Kingston, Jamaica. At the University of the West Indies, she was senior registrar in obstetrics and gynecology and, for six months, acting lecturer in obstetrics and gynecology. In 1973, she and her husband, who is a general surgeon, moved to Cleveland, Ohio. Respondent has not sought certification by the American College of Obstetrics and Gynecology. She testified that the American College of Obstetrics and Gynecology recognized her membership in the Royal College of Obstetrics and Gynecology as an equivalent certification. Until moving to Port St. Joe, she worked as a house physician in St. Alexis and Hillcrest hospitals in Cleveland. Respondent and her husband moved to Florida at the invitation of the Board of Trustees of the Municipal Hospital of Port St. Joe. The Board wanted to upgrade the Hospital. Almost from the time of their arrival, respondent and her husband found themselves at the center of controversy. Respondent's husband testified that, when he and respondent began work at the Municipal Hospital of Port St. Joe, in August of 1976, norms of practice at the Hospital were "miles below standard" and that the medicine practiced by other physicians in the community was "about 25 years" out of date. Whether true or false, this view, and its blunt articulation, may account for the friction respondent and her husband experienced in their relationships with some of the nurses and physicians with whom they came into contact. Being the only such specialist on the staff, respondent was named chief of obstetrics and gynecology at the Municipal Hospital of Port St. Joe. In this capacity, she ordered drugs and other obstetric and gynecologic supplies for the Hospital. Chief of staff at the Hospital, from 1961, until the spring of 1977, was John Wayne Hendrix, who has practiced medicine in Port St. Joe for some three decades. During Dr. Hendrix' tenure as chief of staff, Dr. Orr of Wewahitchka, a general practitioner, was granted "courtesy privileges" at the Municipal Hospital of Port St. Joe. At all pertinent times, Hospital bylaws forbade a physician to whom only courtesy privileges had been granted, to attend a delivery, except under the supervision of the chief of obstetrics and gynecology. On March 27, 1977, in violation of the Hospital's bylaws, Dr. Orr attempted, for the first and only time, to deliver a baby in the Municipal Hospital of Port St. Joe. When Gloria Pippin, R.N., arrived to begin the 3 to 11 shift, Dr. Orr's patient was already in labor. At 9:30 that night, the patient's cervix was fully dilated; at 9:45 she was taken to the delivery room. At 11:00 Dr. Orr "did a saddle block," i.e., he administered a spinal anesthetic. Five minutes later he had finished an episiotomy. At quarter past eleven, he used Tucker-McClain forceps in an effort to extract the baby. That failing, he tried long Simpson forcens at 11:25 and Kielland forceps at ten minutes before midnight, March 27, 1977. The baby's head was too big for the mother's pelvis. Five minutes later, Ms. Pippin telephoned respondent, at Dr. Orr's request. Respondent expressed dismay that Dr. Orr had been permitted to begin, and asked Ms. Pippin to notify Dr. Hendrix of the situation. She herself telephoned Gerald Sullivan, the chairman of the Hospital's Board of Trustees. Afterwards, she and her husband, Dr. Parmanand Vijay Poonai, went to the Hospital. They arrived at approximately 12:40. Dr. Hendrix, who had considerable experience in performing Ceasarean sections, preceded them to the Hospital. By the time the Drs. Poonai reached the hospital, arrangements had been made for Dr. Orr's patient to be transferred to Panama City's Bay Memorial Hospital. At quarter past midnight, when Dr. Hendrix arrived at the hospital, the mother's blood pressure was 134/78. Ten minutes before she left in the ambulance, her blood pressure was 137/98 and her pulse was 112. At that time, the fetal pulse was 156. At 1:20 a.m., an ambulance left the Municipal Hospital of Port St. Joe for Panama City. When they reached Bay Memorial Hospital, the mother's vital signs and the infant's heart beat were within normal limits. Dr. Stephen Smith, the obstetrician who performed a Caesarean section upon the patient's arrival in Panama City, was the man of the hour. Mother and baby did well. For many years, it has been common to send women in labor to Panama City from Port St. Joe, and hundreds have made the trip. It takes a half hour to an hour to drive from the Port St. Joe hospital to the Panama City hospital. The longer a woman in the condition Dr. Orr's patient was in continues in labor, the greater are the chances of injury or death to the fetus and even to the mother. At no time did Dr. Hendrix telephone respondent on the night of the 27th or morning of the 28th. Neither Dr. Hendrix nor Dr. Orr ever asked respondent for assistance with Dr. Orr's patient. When respondent and her husband arrived at the Hospital early on the morning of March 28, 1977, neither Dr. Hendrix nor Dr. Orr spoke to either of them. Dr. Hendrix refused to speak to them, even though respondent addressed him and asked him specifically about Dr. Orr's patient. Both respondent and her husband remained at the Hospital until after the ambulance left for Panama City. It is unethical for one physician to intervene in the care of a patient whose treatment is being actively managed by another physician, unless requested. It may also be dangerous. On January 16, 1978, Dr. P. V. Poonai saw Beverly R. Bass in his office. Ms. Bass, who was born on December 15, 1951, told Dr. P. V. Poonai that a Dr. Vasquez of Port St. Joe (of whose wife Ms. Bass was a cousin) and other physicians had recommended a hysterectomy; that she had been passing blood clots for the preceding four months; that she had epigastric pain; that her most recent menstrual period was December 19, 1977; that she had two daughters and a son by three different men; that she wanted no more children; and that she wanted a hysterectomy both to prevent conception and to stop her bleeding. After examining her and finding an ovarian cyst and a slightly bulky uterus, Dr. P. V. Poonai prescribed hospitalization for a series of gastrointestinal X-rays to investigate the possibility of an ulcer, and for an obstetric and gynecologic consultation with respondent. On January 18, 1978, Ms. Bass entered the Municipal Hospital of Port St. Joe. An electrocardiogram was done. Dr. J. B. Harbison prepared a report of the X-rays taken as prescribed by Dr. P. V. Poonai. Respondent met Ms. Bass for the first time, in the Hospital, on January 19, 1978. She took Ms. Bass' history and examined her under general anesthesia, finding a left ovarian cyst, a normal cervix and a bulky anteverted uterus. Respondent recommended a dilatation and curettage (d & c) for diagnostic and therapeutic purposes, and, on the same day, Ms. Bass signed a form consent to diagnostic and treatment procedures authorizing respondent to perform a d & c. The following day, January 20, 1978, respondent did perform a routine d & c. Afterwards, the curettings resulting from the procedure were transmitted to a pathologist. After examining this material, the pathologist prepared a tissue report, and stated, as the pathological diagnosis: SECRETORY PHASE, DYSFUNCTIONAL BLEEDING. NO EVIDENCE OF POLYPS, PREGNANCY OR MALIGNANCY OBSERVED IN THE SPECIMEN SUBMITTED. FRAGMENT OF ENDOCERVIX WITH SQUAMOUS METAPLASIA, ACUTE AND CHRONIC INFLAMATION. Petitioner's exhibit No. 2. On January 21, 1978, Ms. Bass left the hospital, with a final diagnosis of dysfunctional bleeding. Before discharging Ms. Bass, respondent instructed her to refrain from sexual intercourse and from douches for four to six weeks. Eight to ten days after her discharge, Ms. Bass resumed sexual intercourse. On February 2, 1978, respondent saw Ms. Bass at her office and discussed the pathologist's tissue report with her. She related to Ms. Bass her clinical impression of uterine fibroids and prescribed Orthonovum, a birth control pill, as an additional means of forestalling dysfunctional bleeding. On February 2, Ms. Bass reported no bleeding subsequent to the d & c. Respondent did not ask and Ms. Bass did not volunteer that she had failed to follow instructions to abstain from sexual intercourse. Although the birth control pills respondent prescribed were to be taken daily, Ms. Bass did not take one every day. Respondent next saw Ms. Bass on February 13, 1978, when her only complaint was of an upper respiratory tract infection. On March 4, 1978, Ms. Bass returned to respondent's office complaining of heavy breakthrough bleeding, and reported that she was passing blood clots. Respondent examined her and suggested a hysterectomy. Ms. Bass asked if she could enter the hospital on March 12, 1978, saying she could make arrangements for her children by then. Respondent administered no pregnancy test to Ms. Bass on March 4, 1978, or at any time thereafter. She thought none was necessary because she believed that Ms. Bass had followed her instructions. Respondent does not knowingly perform abortions, even for therapeutic purposes, on account of religious scruples. A d & c elicits inflamatory responses hostile to fertilization. Even when a pregnancy has begun, no pregnancy test will be positive before 41 days have elapsed since the last menstrual period. Some hospitals, like Jackson Memorial in Miami, require pregnancy tests before surgery as a matter of routine, but the Municipal Hospital of Port St. Joe had no such policy. On March 12, 1978, Ms. Bass was admitted to the Municipal Hospital of Port St. Joe. The following day respondent performed a hysterectomy and an incidental appendectomy. An appendectomy ordinarily accompanies this procedure. Respondent's pre-operative diagnosis was "menorrhagia and fibroid uterus," and her postoperative diagnosis, on March 13, 1978, was unchanged. This was the same condition specified on the form consent to diagnostic and treatment procedures which Ms. Bass signed on March 12, 1978, authorizing respondent to perform a hysterectomy. Ordinarily, a surgeon performing a hysterectomy removes the uterus intact, as respondent did in the case of Beverly Bass. After its removal but while still intact, Ms. Bass' uterus yielded no additional information pertinent to the diagnosis of her condition. The uterus was sent to a pathologist. After examining the uterus, the pathologist prepared a tissue report and stated, as the pathological diagnosis: APPENDIX WITH FIBROUS OBLITERATION (DISTAL) AND FOCAL FIBROUS ADHESIONS. LUTEAL CYST OF LEFT OVARY, BENIGN. PARATUBAL CYST, BENIGN, RIGHT. ENLARGED UTERUS (205 GMS) WITH: ENDOMETRIUM: CHANGES RELATED TO PREGNANCY (HYPERSECRETORY GLANDS AND DECIDUAL REACTION). ACUTE ENDOMETRITIS. ANGULAR IMPLANT OF PLACENTA ASSOCIATED WITH UNDERLYING NECROSIS AND ACUTE INFLAMMATION OF DECIDUA, ACCOMPANIED BY HEMATOMAS. CHORION-AMNIONITIS, ACUTE, NECROTISING ASSOCIATED WITH NECROSIS OF GROUPS OF CHORION VILLI. EMBRYO, APPROXIMATELY 4-6 WEEKS OLD. FLUID BLOOD PRESENT IN UTERINE CAVITY. MYOMETRIUM: HYPERTROPHY (FUNCTIONAL). CERVIX: ACUTE AND CHRONIC CERVICITIS ASSOCIATED WITH SQUAMOUS METAPLASIA OF THE ENDOCERVICAL LINING, FOCAL. SQUAMOUS CELL HYPERPLASIA OF ECTOCERVIX, BENIGN. MUCUS CYSTS. When the pathologist opened the uterus, he found an enlarged cavity partly occupied by a ruptured ovisac. Extruded through the perforation, hanging outside of the ovisac from the umbilical cord, was an embryo 1.8 centimeters long. The placenta, which was acutely inflamed, adhered to the fundus at a right angle. Uterine rupture is inevitable if an angular pregnancy continues, but it is possible for an angular pregnancy to go to term, just as it is possible for a fetus to live after the ovisac has burst. In Ms. Bass' case, however, the embryo was probably non-viable at the time of the hysterectomy. The pathologist's report arrived while Ms. Bass was still in the hospital. Because respondent was upset on reading it, she asked Dr. P. V. Poonai to tell Ms. Bass what the pathologist had learned. Dr. P. V. Poonai did tell Ms. Bass, at which time she confirmed that she had engaged in sexual intercourse shortly after the d & c. Confusing an incipient pregnancy with a fibroid uterus is an occasional mistake any physician could make. An isolated mistake of this kind does not constitute a deviation from acceptable medical practice. The most conservative approach is to wait for two months after the patient has stopped taking birth control pills, before performing a "semi-elective" procedure, and to administer a pregnancy test beforehand. Several physicians testified, however, that they would not have ordered a pregnancy test before performing a hysterectomy in the circumstances of Ms. Bass' case. Respondent did not prepare the summary sheet at the end of Ms. Bass' stay after her March 12, 1978, admission, Chart No. 23622. Petitioner's exhibit No. 2A. The summary sheet that was prepared is not signed by anybody. When respondent asked for the chart in order to prepare a summary sheet, the Hospital's records custodian advised her that it was not with the other charts. When Beverly D. Stover was about three and a half months pregnant, she began seeing respondent. She saw her every month until November, when she began seeing her every two weeks. On her first visit, she told respondent she wanted to be sterilized after the birth of the child she was carrying, her second. At respondent's request, Mrs. Stover brought her husband to respondent's office, about six weeks before the baby was born. The three of them discussed Mrs. Stover's planned sterilization. On November 22, 1977, both Mr. and Mrs. Stover signed a form request for sterilization witnessed by two persons who were not called to testify at the hearing. On November 30, 1977, Mrs. Stover was admitted to the Municipal Hospital of Port St. Joe. On the day of her admission, she signed a form consent to diagnostic and treatment procedures authorizing respondent to perform a bilateral tubal transection and ligation, and both she and her husband signed another form request for sterilization. At the time of the signing of the last two documents, Mrs. Stover told Sarah Maddux, the nurse who gave her the forms to sign, that she did not want to be sterilized unless her baby was normal. Ms. Maddux never relayed this oral reservation to respondent. It is impossible to tell, at the time of birth, whether an infant has a sense of smell, whether it is intellectually impaired, or whether it can see or hear. At 1:50 on the afternoon of November 30, 1977, Mrs. Stover was delivered of a daughter, Katrina. Respondent examined the eight pound two ounce infant for two minutes. She put her fingers in the infant's mouth, cleared a passage for air, and checked for a cleft palate. The child started crying. Respondent observed good muscle tone. Respondent clamped, then cut the umbilical cord. She inspected the baby all over, noticed puffiness on the child's back, which she attributed to the trauma of birth, and noticed that the baby's anal opening was smaller than normal, but was not alarmed. She thought she had seen even smaller such openings which had not affected function. Respondent placed Katrina on her mother's stomach, and asked Mrs. Stover whether she was ready for surgery. When Mrs. Stover answered affirmatively, at 1:55, anesthesia was administered, at respondent's direction. A nurse took the baby from respondent for cleaning. In contemporaneous notes, the nurse described the baby as apparently normal. In fact, Katrina had an imperforate anus or anoperitoneal fistula, and a lipoma on the sacral area of her back. These conditions were discovered a few hours later by a nurse in the Hospital nursery. The nurse brought both problems to the attention of Dr. Shirley R. Simpson, a physician who had been on the staff of the Municipal Hospital of Port St. Joe for approximately ten years and who happened to be in the Hospital at the time. Respondent had left Port St. Joe to meet her husband at the airport in Panama City. Examining Katrina at the nurse's request, Dr. Simpson mistook the lipoma for a meningomyocele. Dr. Simpson took no further action in the case, other than leaving word with the nurse for respondent to call her, until she furnished the Board of Medical Examiners Katrina's hospital chart. By that time, somebody had forged an entry in the nurse's notes for 1:50 P.M. on November 30, 1977, viz., "Appears to have NO rectal orifice-Dr. A. Poonai notified." Petitioner's exhibit No. 4. After her return from Panama City, on December 1, 1977, respondent correctly diagnosed the lipoma. At respondent's request, Dr. P. V. Poonai examined Katrina. After obtaining consent, Dr. P. V. Poonai, used surgical implements, when the baby was 16 hours old, to remove the obstruction which had prevented the expulsion of all but the merest drop of meconium during the first 16 hours of the baby's life. Although this emergency procedure solved the immediate problem and allowed the baby to defecate, further surgery has been necessary to move the anal opening to its norman site posterior of the dimple where Dr. P. V. Poonai made his incision. An imperforate anus occurs once in 5,000 births. The imperforation may or may not be visible, depending on its location. In the past five years, three infants with this problem have been born in Panama City. In each instance, the examining pediatrician did not discover the imperforation, which came to light some hours after birth, on account of the baby's failure to expel its first stool. In Katrina's case, however, the abnormality could be seen and its existence could be confirmed by an attempt to probe. The lipoma on Katrina's back measured less than four by five centimeters in area. It was a soft, skin-colored mass of benign, fatty tissue, which a pediatric surgeon has since removed. The trauma of birth sometimes causes edemas that resemble lipomas. No harm befell Katrina as a result of respondent's failure to diagnose either her lipoma or her anal abnormality at birth. Beverly Stover continued as a patient of respondent for some time after Katrina's birth. Respondent first saw a certain patient on September 19, 1977. This patient, who was born on June 1, 1907, suffered from diabetes mellitus and congestive heart failure, among other things. Two months earlier she had had a second pacemaker inserted. On her first visit to respondent, the patient complained of pain in her chest and of dysuria. She said she had difficulty retaining urine, but that she was unable to empty her bladder completely. In examining her, respondent discovered a moderate cystocele, which is a herniation of the bladder into the vagina. Respondent admitted her into the Municipal Hospital of Port St. Joe for treatment of her congestive heart failure, the cause of the chest pain. Congestive heart failure is not a disease of which people are cured, but it is a condition that may grow better or worse. When this patient's condition improved, respondent sent her home. Respondent saw her again in her office on October 3, 1977, when she complained of paroxysmal dyspnea and swollen feet. Respondent diagnosed superimposed congestive cardiac failure and prescribed a diuretic. On November 18, 1977, respondent admitted her to the hospital because symptoms like those she had complained of during the office visit persisted. On November 22, 1977, she was discharged. A similar episode resulted in rehospitalization from January 10, 1978, through January 19, 1978. The patient entered the hospital again, on February 12, 1978, with congestive cardiac failure. She complained about nocturnal incontinence and asked respondent to correct her bladder problem. At this time, respondent described the cystocele as large. After medical care which petitioner's own witness described as excellent, the patient's condition stabilized. Respondent testified that, in her judgment, the patient's general condition just before surgery was as good as it was likely ever to be. Nine days after she admitted the patient, respondent effected a repair of the cystocele by performing an anterior colporrhapy under local anesthetic. This procedure requires unusual surgical skill, and most surgeons do not attempt it. The repair of a cystocele is a therapeutic measure. In the absence of treatment, urine is likely to stagnate in the herniated portion of the bladder, and become a source of possibly serious infections. All surgical techniques for repairing cystoceles, other than the one employed by respondent, require general anesthesia. The risk from anesthesia to which respondent's patient was subjected was very moderate compared to the risk from general anesthesia. It was the same risk a person faces whose mouth is numbed by local anesthesia before a tooth is filled. Respondent had performed this operation 20 or 30 times before, and had performed it on her own mother, who was 75 years old and suffered from myocardial ischemia at the time. Sometimes, although decreasingly in recent years, a physician may employ a pessary as treatment for a cystocele. A pessary is a rubber or plastic solid that can be inserted in the vagina as a support for the intruding bladder. This is only a temporary measure, however, and involves a high risk of infection, which is the principal danger the cystocele itself poses. Respondent testified that her prescription for temporary relief was bed rest, since lying flat relieves the pressure that forces part of the bladder into the vagina. Respondent first saw another patient, the 29 year old mother of three children, on December 23, 1976. This patient was in the Municipal Hospital of Port St. Joe at the time, for a hemorrhoidectomy, and respondent was called in because the patient had complained of profuse, irregular and painful vaginal bleeding over a period of several years, and particularly during the preceding nine months to a year. The patient was anemic, according to tests run two days earlier. In July of 1976, the patient had been hospitalized on account of pelvic sepsis and bleeding. At that time, Dr. Simpson told her she would need a hysterectomy in the near future. She had been hospitalized for the same reasons in 1975. Respondent ordered a pap smear and an X-ray to locate a coil that had been inserted into the patient's uterus, as a contraceptive measure. When she recovered from the hemorrhoidectomy, the patient was discharged. After three weeks of severe menorrhagia, including two final days of heavy clotting, the patient was readmitted, on January 24, 1977, to the Municipal Hospital of Port St. Joe. Respondent had earlier prescribed iron pills. Perhaps as a result, the patient was no longer anemic. Respondent observed the patient's uterus "enlarged to about 10 weeks size with [what she thought was] fibroids. Petitioner's exhibit No. 6. Respondent ordered no pregnancy test. When an intrauterine device is in place, excessive vaginal bleeding is inconsistent with a viable pregnancy. An intrauterine device not only irritates the wall of the uterus, making conception unlikely, but also operates to abort incipient pregnancies, in the event of conception. With the intrauterine device still in place, on January 26, 1977, respondent performed a total abdominal hysterectomy and an incidental appendectomy, with conservation of both ovaries. Afterwards, the appendix, part of the cervix, and the uterus were sent to a pathologist. The pathologist examined these materials, and, on January 31, 1977, prepared a tissue report, in which he stated as the pathological diagnosis: APPENDIX WITH SEROSAL FIBROSIS, FOCAL (INCIDENTAL). ENDOMETRIUM: DECIDUA WITH EXTENSIVE NECROSIS ASSOCIATED WITH CHORIONIC VILLI (PREGNANCY) WHICH ARE LARGELY NON-VIABLE. SECRETORY ENDOMETRIUM WITH ACUTE AND CHRONIC ENDOMETRITIS. MYOMETRIUM: HYPERTROPHY, POSTERIOR. CERVIX: CHRONIC ENDOCERVICITIS AND MUCUS CYSTS. SLIGHTLY HYPERTROPHIC UTERUS (95 GRAMS). The pathologist found no evidence of fibroids. This demonstrates that respordent's clinical diagnosis of fibroids was inaccurate. One of the pathologists who routinely examined tissue removed by surgeons in the Municipal Hospital of Port St. Joe, Dr. Garcia-Rios, also routinely examined tissue removed by surgeons in other hospitals. Whenever a tissue report indicated disagreement between a clinical diagnosis and the pathological diagnosis, Dr. Garcia-Rios designated the tissue report "Code 3." The frequency of Code 3 tissue reports did not differ as between specimens removed by respondent and specimens Dr. Garcia-Rios examined which had been removed by other surgeons, taken as a group. From the presence of morphologically viable chorionic villi, the pathologist concluded that the patient had been pregnant. From pathological findings alone, he was unable to determine whether the pregnancy had terminated weeks or months earlier; or whether an ongoing microscopic pregnancy was interrupted by the hysterectomy. (Clinical evidence-excessive bleeding-ruled out the possibility of a viable pregnancy.) The pathologist's findings were consistent with, but did not conclusively establish the existence of, a placental polyp. Placental polyps may cause prolonged bleeding. Before surgery, respondent discussed three options with this patient: removal of the intrauterine device, removal of the intrauterine device followed by a d & c, and hysterectomy. The patient said that the presence or absence of an intrauterine device had made no difference in her bleeding problem in the past. She also told respondent that she wanted no more children, and that she wanted prompt, definitive treatment for her bleeding. After listening to explanations from respondent about the available options, the patient chose a hysterectomy. Respondent did not tell her that a hysterectomy was the only way to correct her problem. The patient testified that she has had no problems since her surgery; and that, knowing what the pathologist's tissue report subsequently revealed, she would make the same choice again, at least if it would not involve her as a witness in legal proceedings. Respondent initialled a summary sheet in the patient's chart, which stated the patient's final diagnosis as, inter alia, "FIBROID UTERUS [and] MENORRHAGIA." This final diagnosis fails to take the pathologist's tissue report into account, even though the tissue report routinely becomes part of the chart and presumably was available to respondent at the time she initialled the summary sheet. Respondent testified that she initialled this summary sheet as one of a group of documents, and that she did not read it beforehand. Any discrepancy between the tissue report and the final diagnosis would have been apparent to a knowledgeable reader. Without the tissue report, respondent would not necessarily have known that the pathologist's findings had demonstrated the error of her diagnosis of fibroid uterus. After controversy about this case arose, respondent caused an addendum to be prepared and incorporated into the chart, on August 16, 1978, and amended the discharge diagnosis to state, inter alia: "Menorrhagia, Chronic endometritis [and] Hypertrophy of the myometrium." This diagnosis is consistent both with respondent's clinical findings and with the pathologist's tissue report. In stating her amended discharge diagnosis, respondent took the tissue report, which had been incorporated into the chart, into account. This amended discharge diagnosis was not shown to be erroneous. On August 11, 1976, respondent saw Linda Whitfield for the first time. She came as a patient to respondent's office and related that her last menstrual period had taken place on June 26, 1976. Respondent examined her, observed a uterus of six weeks' size, and diagnosed early pregnancy. Respondent next saw Mrs. Whitfield in the emergency room of the Municipal Hospital of Port St. Joe on August 27, 1976, when her uterus looked to be of eight weeks' size. There Mrs. Whitfield told respondent that, while driving a tractor earlier in the day, she had experienced abdominal cramps and fairly heavy bleeding. Mrs. Whitfield did not report and respondent did not observe the passage of a fetus. Respondent diagnosed a threatened abortion (miscarriage) admitted Mrs. Whitfield to the Hospital, ordered bed rest, ordered that Mrs. Whitfield's urine be tested for the presence of chorionic gonadotropin, and prescribed an intramuscular injection of two cubic centimeters (cc.) of Depo-Provera (Upjohn's registered trademark for sterile medroxyprogesterone acetate suspension, U.S.P.). Although respondent did not specify the strength, she had ordered the Hospital's entire supply of Depo-Provera, and knew that the only strength on hand was 100 milligrams per milliliter. Depo-Provera is a synthetic progestational agent in an oily base. It has been commercially available for approximately 15 years. The 1971 Physicians' Desk Reference (PDR) reported that daily doses were indicated in the event of a threatened miscarriage. The 1972 PDR reported pregnancy as a contraindication for the use of Depo-Provera. (In 1972, respondent lived in Jamacia.) The 1976 PDR and the 1977 PDR, however, contain neither indications nor contraindications for Depo-Provera, in the event of pregnancy. The 1979 PDR reports pregnancy as a contraindication for the use of Depo-Provera. The phrase "missed abortion" describes the situation where a non- viable fetus remains in its mother's uterus. "Missed abortion" was named as a contraindication for Depo-Provera in the literature that accompanied each vial of Depo-Provera, at the time respondent prescribed it for Mrs. Whitfield. The contraindication of Depo-Provera for missed abortion reflected the view, generally shared in the medical community for many years but now rejected, that Depo-Provera acts to prevent uterine contractions and so make fetal expulsion less likely. The only indication stated in the literature that accompanied each vial of Depo-Provera, at the time respondent prescribed it for Mrs. Whitfield, was "[a]djunctive therapy and palliative treatment of inoperable, recurrent, and metastatic endometrial carcinoma." Petitioner's exhibit No. 12B. Also on petitioner's exhibit No. 12B, under the heading "ADVERSE REACTIONS," is the statement: There is inferential evidence supporting the existence of an association between the administration of progestins early in pregnancy and the occurence of congenital malformations (see also WARNINGS). The referenced warning stated that "[u]sage in pregnancy is not recommended because of data indicating a possible association between administration of progestins early in pregnancy and congenital heart defects in the offspring." Petitioner's exhibit No. 12B. Mrs. Whitfield bled, off and on, during her first stay in the Hospital under respondent's care, until two or three days before her discharge. Because Mrs. Whitfield was bleeding on August 28, 1976, respondent prescribed an intra- muscular injection of one cc. of Depo-Provera. Altogether, respondent prescribed 1100 milligrams of Depo-Provera for Mrs. Whitfield over a 16 day period. She ordered administrations of two cc. doses of Depo-Provera on September 2, 1976, on September 4, 1976, on September 7, 1976, and on September 11, 1976, the day Mrs. Whitfield was discharged. At that time, respondent was hopeful that the pregnancy had been saved. At the time respondent prescribed Depo-Provera for Mrs. Whitfield, she believed she was aware of the inferential evidence referred to in the adverse reaction portion of petitioner's exhibit No. 12B. The evidence of which respondent was aware was the result of a retrospective study involving 10,000 mothers who took various hormonal substances during pregnancy and 10,000 mothers who did not. The number of deformed children born to mothers who had taken the hormonal substances exceeded by two percent the number of deformed children born to the mothers who had not. At the time she prescribed Depo-Provera for Mrs. Whitfield, respondent was one of a considerable number of physicians who believed that this drug could supply a hormonal deficiency that a woman faced with a threatened abortion (miscarriage) might lack, and which might be causing premature uterine contractions. Respondent weighed Depo-Provera's possibly teratogenic effect against its possibly ameliorative effect and made a conscientious professional judgment to prescribe Depo-Provera for Mrs. Whitfield. The 1971 PDR specifies a dosage of 50 milligrams day for threatened abortion, as long as symptoms persist. No dosages for threatened abortion are specified in the 1976 PDR, the 1977 PDR or on petitioner's exhibit No. 12B, the literature that accompanied each vial of Depo-Provera. When used to treat "inoperable, recurrent and metastatic endometrial carcinoma," Depo-Provera is prescribed in doses of 100 to 1000 milligrams at intervals of one week to one month. No evidence adduced at the hearing suggested that Depo-Provera has any known or suspected toxic effect on the mother, regardless of the dosage. Nor was it shown to have been scientifically established that Depo-Provera has had an adverse effect on any fetus, when administered to the mother, regardless of the dosage. It is no longer used in the case of threatened miscarriages because recent evidence suggests that it is inefficacious for this purpose. Outside of the United States, Depo-Provera is used as a contraceptive. While Mrs. Whitfield was in the Hospital, on August 29, 1976, respondent ordered a blood serum test to determine the level of chorionic gonadotropin. The results of this test, which respondent saw for the first time on September 16, 1976, were 6,554 milliunits of chorionic gonadotropine per milligram of test fluid. On September 16, 1976, Mrs. Whitfield came to respondent's office and complained of additional bleeding. At that time, a two minute slide test for pregnancy was performed, with negative results. Respondent examined Mrs. Whitfield and concluded that her pregnancy had miscarried despite the efforts to preserve it. She was admitted to the Municipal Hospital of Port St. Joe on September 17, 1976, with the diagnosis of "incomplete abortion," which was changed to "missed abortion," as the pre-operative diagnosis. On the day of her admission, additional pregnancy tests were ordered. A two minute test was negative, but a two hour test was positive. Every pregnancy test is fallible to some extent. These test results did not alter respondent's clinical judgment that the pregnancy had miscarried. A pregnancy test of a urine specimen can yield positive results from four days to two weeks after a pregnancy ends, and sometimes even later. It was undisputed that a result on a blood serum test for chorionic gonadotropin of 6,554 milliunits per milliliter virtually rules out a viable pregnancy of two or three months' duration, although the level may fall that low after the fifth month of a normal pregnancy. At eight to ten weeks, normal levels range from 46,000 to 60,000 milliunits per milliliter. Respondent performed a routine d & c on September 18, 1976. Fifteen grams of the resultant curettings were transmitted to a pathologist who reported "products of conception," but no embryo. Port St. Joe is not a prosperous town. At the time of the hearing, respondent and her husband were the only physicians in Port St. Joe who accepted patients on medicaid. Respondent has admitted patients approximately 500 times to the Municipal Hospital of Port St. Joe. During her time in Port St. Joe, respondent has treated numerous medicaid patients, and has delivered 249 babies. In one instance there was a neonatal fatality. This record compares favorably with a national average on the order of 12 neonatal fatalities per 1,000 births. Respondent has three articles in respectable technical journals to her credit, including two in "Obstetrics and Gynecology." On one she collaborated with her husband. They received 168 requests for reprints from interested persons in some 15 countries. The other article in "Obstetrics and Gynecology" she co-authored describes the first documented full-term pregnancy of a woman with diabetes mellitus, Addison's disease, and hyperthyroidism. The patient described in the article was under respondent's care for the duration of her pregnancy, which eventuated in a normal delivery.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss counts one, two, four, five and six of the administrative complaint. That petitioner reprimand respondent for her failure to diagnose the imperforation at the time of birth, in violation of Section 458.1201(1)(m), Florida Statutes (1978 Supp.), as alleged in count three of the administrative complaint. That, in all other respects, petitioner dismiss count three of the administrative complaint. DONE and ENTERED this 15th day of November, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Clifford L. Davis, Esquire 197 South Bronough Street Tallahassee, Florida 32301 J. Ben Watkins, Esquire Post Office Drawer 1814 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICAL EXAMINERS IN RE: The License to Practice Medicine as a Physician of: CASE NO. 79-1144 ANILA POONAI, M.D. License No. 27070 /
The Issue Should discipline be imposed against Respondent's license to practice medicine for violation of Section 458.331(1)(t), Florida Statutes (2003)?
Findings Of Fact Stipulated Facts Petitioner is the state department charged with the regulation of the practice of medicine pursuant to Chapter 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is Michael D. Fox, M.D. Respondent is board certified in obstetrics and gynecology. Respondent is a licensed medical doctor in the State of Florida having been issued license ME 66312. Respondent's address is 3627 University Boulevard, South, Suite 200, Jacksonville, Florida 32216-4211. At all times material to this complaint, Respondent provided professional services as an employee of North Florida Gynecologic Specialists in Jacksonville, Florida. On or about September 26, 2003, Patient T.D. presented to Respondent with a history of worsening pelvic pain and abnormal menstrual bleeding. On or about October 6, 2003, Respondent and Patient T.D. agreed that Patient T.D. would undergo a hysterectomy. On or about October 22, 2003, during a pre-operative examination, Respondent ordered pre-operative lab studies, including a urine pregnancy test, for Patient T.D. On or about October 27, 2003, Respondent performed a total abdominal hysterectomy on Patient T.D. During Patient T.D.'s hysterectomy, Respondent took a specimen from Patient T.D., which was sent to pathology for evaluation. On or about October 29, 2003, a microscopic examination of the surgical specimen was performed that revealed Patient T.D. was pregnant at the time Respondent performed the hysterectomy on Patient T.D. Respondent did not ascertain the correct results of Patient T.D.'s pre-operative pregnancy test prior to performing the October 27, 2003, hysterectomy on Patient T.D. Respondent's Care of Patient T.D. Respondent attended medical school at the University of Alabama, Birmingham, Alabama. He did a four-year residency in obstetrics and gynecology (ob/gyn) in Jackson, Mississippi, and a two-year sub-specialty fellowship in reproductive endochrinology in Lexington, Kentucky. He is board-certified in reproductive endochrinology and ob/gyn. At present his specialty is reproductive endochrinology. Respondent has experience in performing hysterectomies and the pre-operative evaluations associated with those surgeries. Respondent does 30 to 40 hysterectomies a year. That number represented his experience in 2003. The principal reason for performing hysterectomies in his practice, is associated with sub-specialty interests, surgery for endometriosis and adenomyosis, a co-disease with endometriosis. Respondent has privileges to practice in hospitals in the Jacksonville, Florida area. In particular, he has privileges at St. Vincent's, St. Luke's, Baptist, Baptist Beaches, Memorial and Shands hospitals. He performs surgeries in all those hospitals. The hospitals where Respondent practices have computer systems that allow access to laboratory records and other forms of information associated with patient care. Although he has access to the computer systems in the facilities, his routine is to obtain laboratory information in the hospital setting from other persons involved in the patient care. He asks those persons to find out the information for him and report the finding(s). Respondent would have access to the patient hospital record, as well as a source for obtaining laboratory information. Respondent routinely looks at the patient hospital record in preparing for surgery. Concerning Patient T.D., the subject of this proceeding, when seen by Respondent she was described as a young female, of child-bearing age who presented with chronic pain. She had pain with periods which Respondent found to be characteristic of adenomyosis. She had pre-cycle pain approximately a week prior to her menses, another characteristic of adenomyosis. The patient had irregular bleeding that is an indication of adenomyosis. The patient was found to have an enlarged uterus, the primary source of her pain on the examination. This visit with Respondent, that formed the basis for his impression, took place on September 26, 2003. On the initial visit Respondent also obtained a history consistent with endochrine disorder causing irregular cycles. In the patient's case, the cycles extended as much as 60 days in relation to her periods. Based upon his initial impression, Respondent did not find evidence that Patient T.D. was pregnant. The patient told Respondent that she had no desire for fertility. At that time, she did not report having a partner, nor did she indicate that she was sexually active. To further evaluate the Patient T.D.'s condition and complaints, Respondent ordered an ultrasound test. That study was performed on October 2, 2003, and a gynecological ultrasound report rendered. Based upon the report, Respondent held to the view that the report showed evidence of adenomyosis. There was a mild and moderate enlargement of the uterus, which Respondent found to be consistent with adenomyosis. The patient had had a prior pregnancy and delivery and Respondent found the depiction on the ultrasound of a mild enlargement of the uterus consistent with the prior pregnancy and delivery. On their next visit, Respondent discussed the choice of a hysterectomy or some other form of surgery that did not involve a hysterectomy, to treat the endometriosis and relieve her symptoms. That visit took place on October 6, 2003. On October 22, 2003, Respondent met the patient again. He reviewed the details of what he believed was the underlying disease and potential treatments in discussion with the patient. The patient indicated that she wanted to proceed with the hysterectomy. That choice having been made, the surgery was discussed between the patient and Respondent and the necessary paperwork was started to arrange for the surgery in the hospital. When preparing for surgery Respondent ordered a pregnancy test to verify whether the patient was pregnant or not. The nature of the test was a urine pregnancy test under Respondent's preoperative orders given October 22, 2003. The specimen was collected on October 22, 2003, and received by Memorial Hospital (Memorial), Jacksonville, Florida, where the hysterectomy was to be performed. The test result was positive for pregnancy. The point in time that the result was revealed to Respondent will be discussed beyond this reference to the result. On October 27, 2003, Respondent began his surgery cases at Memorial at 7:30 a.m. On that date there was no indication in the patient record or chart maintained in his office practice that reflected information concerning the pregnancy test result, nor was that information found in the hospital chart related to Patient T.D. Absent the information, Respondent testified that he asked the circulating nurse at Memorial about the result of the pregnancy test. That was Tracy Lloyd, R.N. According to Respondent, the nurse went away to check the result and as Respondent describes "subsequently told me it was negative." No further effort was made by Respondent to confirm the oral report that Respondent says was made by the nurse. Respondent did not document the results of Patient T.D.'s pre-operative pregnancy test in the medical record. It was not his habit to write that type of a pre-operative note. Respondent testified that Ms. Lloyd told him about the pregnancy test results while in the holding area in the presence of the patient. Respondent commented that his question to the nurse would have been "What are the results of the pregnancy test?"1/ Aside from the results of the pregnancy test, nothing in the patient's condition, known to Respondent, led him to believe that the patient was pregnant. When the laparoscopic surgery commenced, Respondent did not perform an examination of the patient under anesthesia, given his recent examination of the patient in his office and the results of the ultrasound. Moreover, Respondent does not believe that such an examination under anesthesia would reveal anything other than the adenomyosis and the endometriosis which conformed to his preoperative diagnosis. On that subject, the later examination of the specimen on October 29, 2003, revealed that Patient T.D. had an early pregnancy, estimated as 4 to 5 weeks. In Respondent's opinion, in a 4-to 5-week pregnancy, the uterus would not normally achieve the size of a uterus that was reported on the ultrasound as mildly enlarged, not pregnant. Mildly enlarged refers to a 6 to 8 weeks' pregnancy. Respondent expected to see an enlarged uterus because of the adenomyosis which could be anticipated to cause an inflammatory response in the wall of the uterus, softening the uterus and giving it an appearance that would be similar to an early pregnancy. The rounded globular description of the findings during surgery were consistent with the expectations in addressing cases involving adenomyosis, according to Respondent. Returning to the surgical specimen obtained in Patient T.D.'s case, it was examined through surgical pathology conducted by Robert E. Barnes, M.D. A report was rendered. The report explains that in the examination of the specimen, the endometrium, "gestational endometrium with products of conception" were present. This was the finding related to Patient T.D.'s pregnancy. Dr. Barnes, is a board-certified pathologist in anatomic and clinical pathology. He describes his findings pertaining to Patient T.D., the gestational endometrium with products of conception, as referring to an early embryo, the endometrium showing changes associated with pregnancy. In his opinion the pregnancy was between 10 and 16 days following conception. When Dr. Barnes contacted Respondent on October 29, 2003, to advise of his findings in the pathology. It was a brief conversation and he does not recall the details. After the revelation concerning the pathology, Respondent's office staff found the information concerning the results of the urine pregnancy test in the hospital chart retained in the computer at Memorial. This finding was made around November 4, 2003. In a section within the report on the pregnancy test it refers to the "Result" and underneath that, the word "POSITIVE" is entered referring to pregnancy. When it was discovered that the hysterectomy had been performed while the Patient T.D. was pregnant, at her post- surgery scheduled office visit, a discussion was held with the patient concerning the "checks and balances" in place to avoid the problem. That refers to the surgery at a time the patient was pregnant. Respondent talked to the patient about counseling, or something similar, given the outcome in the case. As a result of the error, steps were taken within Memorial to address this circumstance. The Respondent and the Memorial Department of OB/GYN made changes, by requiring a pre- operative pregnancy test as protocol, that established a urine pregnancy test within 72 hours of surgery. That test would be performed by the nurses in the holding area. Respondent now orders a blood pregnancy test which is a more sensitive test to determine pregnancy. Expert Opinion Jose Cortes, M.D., is board-certified in ob/gyn, licensed to practice in Florida. He was recognized as a expert in ob/gyn for purposes of expressing his opinion about the care Respondent provided Patient T.D. Dr. Cortes has done hysterectomies in his practice, as recent as June 2006. He was called upon to render an opinion concerning the care Respondent provided Patient T.D. involving her hysterectomy. He had access to material concerning her care involved with this case. Dr. Cortes' impression of Respondent's medical treatment of the patient in the beginning, was that it was adequate and correct, with the proper evaluation performed and an appropriate decision made for surgery. Dr. Cortes expressed the opinion that in performing a hysterectomy on a woman who is of child-bearing age, which Patient T.D. was, a physician should order a pre-operative pregnancy test. In reviewing Patient T.D.'s records Dr. Cortes did not find a record documenting that the pregnancy test was ascertained by Respondent, referring to the test results. In his experience the results of the preoperative tests would be reflected in the patient's medical records as a matter of custom. Respondent, according to Dr. Cortes, could have obtained the results of the pre-operative pregnancy test for Patient T.D. by a fax to his office, a copy obtained through a computer, laboratory printouts sent to Respondent's office, and a copy of the pre-operative laboratory results obtained by the hospital placed in its medical record. Dr. Cortes stated the position that an experienced ob/gyn, and Respondent fits that category, could reasonably be expected to rely upon an oral report from a nurse as to the results of the pregnancy test, before entering the operating room, in the area of the pre-operative alcove as the patient is being interviewed by the physician. Dr. Cortes goes on to explain that if the conversation with the nurse in the presence of the patient was in the operating room holding area, then the pregnancy test results would have to have been documented in the patient chart to find the oral report acceptable. Those test results as reported would have had to be entered by the physician in the patient chart to meet the standard of care upon the oral report.2/ Later on, Dr. Cortes in his testimony seems to subscribe to the view that an oral report by the nurse as to the pregnancy test results would meet the standard of care, assuming that the Respondent in this case was provided an oral report. In the testimony at hearing, Dr. Cortes also said that obtaining an oral report or verbal report on test results, in an emergency situation, would meet the standard of care. By contrast, in elective surgery, such as that being performed on Patient T.D., it would be such that there was ample time to review a chart and laboratory studies before the patient was brought into the surgical suite. Generally stated, Dr. Cortes accepts that physicians frequently rely upon oral information imparted by nurses in performing surgeries, be they elective or emergent, but without an oral report this concession is not important. Regardless of the pre-conditions for Respondent to receive and rely on an oral report of the results of the pregnancy test, without an oral report, there being no other basis for Respondent's knowledge of the pregnancy test results, it was below standards to proceed with the hysterectomy. This view is taken from Dr. Cortes' testimony. Dr. Cortes expressed the opinion that it was below the standard of care to not ascertain the results of the patient's pre-operative pregnancy test prior to performing a non-emergent hysterectomy, that is an elective hysterectomy. Dr. Cortes expressed the opinion that it was below the standard of care for Respondent to perform a hysterectomy on Patient T.D. while she was pregnant in an elective setting. In addition to the results of the pregnancy test, Dr. Cortes believes that Respondent had other opportunities to detect the pregnancy, including an examination of the patient while she was under anesthesia during the surgery, and would have allowed a comparison of the results at the time of surgery against previous examinations that Respondent had performed on the patient. In referring to the previous examinations compared to an examination under anesthesia, this included the results of the ultrasound performed on October 2, 2003. Dr. Cortes does agree that the underlying condition visualized under anesthesia could be associated with prior pregnancy or the pre-operative diagnosis of adenomyosis. Dr. Cortes believes that Respondent's medical records, in the context of what could have been found upon an examination under anesthesia during the surgery, could be consistent with a possible pregnancy. A change seen in the pelvic examination at surgery would create an opportunity to evaluate and raise in the Respondent's mind any doubt concerning pregnancy. A slight increase in the size of the uterus between September 26, 2003, and October 27, 2003, is what is being referred to, promoting clinical judgment about possible pregnancy. Bryan Cowen, M.D. specializes in ob/gyn and reproductive endochrinology. He practices at the University of Mississippi in Jackson, Mississippi. He is a professor and chair in the Department of OB/GYN and has been for five years. He has been affiliated with the University of Mississippi for 24 years. He did his undergraduate work at the University of Colorado in Boulder, Colorado, and attended medical school in Denver, Colorado. Dr. Cowen is licensed to practice medicine in Mississippi and is board-certified. Dr. Cowen has performed a number of hysterectomies during his career. Dr. Cowen is familiar with the standard of care applicable for physicians such as Respondent, in the evaluation of patients suspected of endometriosis and adenomyosis and the considerations for treatment by hysterectomy. He is also familiar with the standard of care in relation to pre-operative testing and the associated duties of physicians when ordering such tests. In preparing to testify in this case, Dr. Cowen examined the Memorial medical records, Respondent's office records, and the depositions of Respondent, Dr. Freeman, Dr. Widrich, Dr. Barnes, and Dr. Cortes. With this information in mind, Dr. Cowen was able to provide an opinion concerning the standard of care in relation to the treatment provided by Respondent to Patient T.D. That opinion was that Respondent did not breach the standard of care in that he met due diligence in the process by the pre-operative laboratory-ordered, and pre- operative evaluation and assessment. Speaking to the September 26, 2003, office visit, Dr. Cowen saw nothing on the physical examination to indicate to him that Patient T.D. was pregnant. Concerning the ultrasound that was conducted on October 2, 2003, Dr. Cowen's opinion is that Respondent's assessment that Patient T.D. had adenomyosis based upon presentation, was confirmed by the ultrasound, the overall impression being that the Patient T.D. was not pregnant at that time. The further visit by the patient prior to the hysterectomy did not reveal anything in the history or physical examination that would suggest that Patient T.D. was pregnant, according to Dr. Cowen. On October 22, 2003, the pregnancy test was ordered by Respondent. The arrangement of ordering the test, sending the patient for pre-operative evaluation and laboratory tests is a common practice in Dr. Cowen's experience. In the instance where Respondent did not get a call from the pre-admission testing as to any abnormal results in the pregnancy test, and no report reflecting in the patient chart that the results were normal, Dr. Cowen commented on the need to check the laboratory results before taking the patient into the operating room. Based on Dr. Cowen's experience, there was no necessity to personally lay eyes on the test results to ascertain those results. He recognizes that his hospital may be different from Memorial in its expectations but he believes that Respondent followed Memorial's policy in accepting the report of a nurse as to the results of the pregnancy test. Dr. Cowen's opinion relies upon the factual predicate that Respondent was told by a nurse that the pregnancy test was negative, to the extent that is not true, and it has not been found as a fact, his opinion is without foundation. Further, Dr. Cowen believes that in the setting where surgery is being performed in other than an emergency, it is a sufficient practice to rely upon an oral report of a nurse concerning laboratory results, such as the outcome in the pregnancy test for Patient T.D. In his experience he has relied upon nurses to report both in an emergent and non-emergent settings. He goes on to describe how those reports come back to the medical records and the physician signs off, which did not occur in this case. Dr. Cowen was asked to express his opinion about the value of an examination under anesthesia as an assist to understanding the underlying condition of the Patient T.D. Dr. Cowen does not believe that this would provide additional information. In his experience most physicians have abandoned examinations under anesthesia. If a better insight is needed an ultrasound is the best choice. To Dr. Cowen, an examination under anesthesia does not relate to standard of care, it is in relation to an individual practitioner's protocol. An ultrasound used in this case, a transvaginal ultrasound, may have shown the gestational sack at the time of the hysterectomy but proceeding on the basis that a negative pregnancy test had been established and other findings during the course of the operation, as well as the preoperative record, would not indicate the necessity for an ultrasound in this case, at that time, the place in time where the hysterectomy was being performed. Dr. Cowen did not find anything in the intra-operative findings that would suggest to Respondent that the Patient T.D. was pregnant. Overall Dr. Cowen believes that Respondent met the standard of care in addressing the case of Patient T.D., who probably had polycystic ovarian disease, irregular cycles, was without a sexual partner by history, used condoms for contraception, had an ultrasound that confirmed a slightly enlarged uterus and had symptoms compatible with adenomyosis or endometriosis. Respondent discussed the treatment options, made an appropriate pre-operative evaluation, learned that the lab results for pregnancy were negative (an erroneous assumption), and therefore, he met the standard of care, according to Dr. Cowen. Ultimately, Dr. Cowen believes that it is essential to determine whether a patient is pregnant prior to performing a non-emergent/elective hysterectomy, which was not done here. Wyatt McNeill, M.D., testified. He is an ob/gyn practicing in Jacksonville, Florida, who in the past has had privileges at Memorial. He has performed hysterectomies at that facility. Dr. McNeill graduated from Florida State University. He graduated from the University of Miami Medical School. He is licensed in the state of Florida and is board-certified in ob/gyn. Dr. McNeill is familiar with the standard of care in relation to preoperative laboratory work done before a hysterectomy. Dr. McNeill is familiar with the standard of care applicable to Respondent in the evaluation of Patient T.D. for hysterectomy, knowing after the fact that the patient was found to be pregnant. To familiarize himself with the facts of this case, Dr. McNeill examined the hospital records of Memorial, Respondent's office records, various depositions, to include that of Dr. Cortes and the anesthesiologist and pathologist, before providing testimony. He also examined the testimony of the nurses involved in the care before offering his opinions. Concerning the patient history, objective and subjective evidence available, Dr. McNeill did not believe that there was anything to suggest that Patient T.D. was pregnant. In particular, Dr. McNeill comments on the history and physical done by Respondent, counseling, laboratory evaluation, and the decision beyond that to proceed with the surgery. Dr. McNeill found the ultrasound results consistent with a patient, who by history had a previous child and had the complaints expressed in the report concerning the September 26, 2003, visit with Respondent. Nothing in the ultrasound results compared to the findings in the operative report indicated to Dr. McNeill that the patient needed to be examined under anesthesia. The use of the examination under anesthesia is a training regimne for residents and students, in his experience. It has no utility beyond that application, in Dr. McNeill's opinion. Dr. McNeill believes that an oral report of the results of the pregnancy test meets the standard of care. As with others, Dr. McNeill assumes that Respondent was told the test results, which is not found. There was no further duty by Respondent to investigate those results having been told. In Dr. McNeill's opinion, the test results are either positive or negative, they are highly accurate. A negative test result means that the patient is not pregnant. No further duty is established beyond that realization, according to Dr. McNeill. In summary, there is no disagreement among the experts that Respondent is expected to ascertain the results of the preoperative pregnancy test before performing the hysterectomy and it would be inappropriate to perform the hysterectomy without those results. Respondent does not disagree with that perception. Conceptually, having considered the testimony of Respondent and the experts, it would be acceptable to proceed on an oral report, if one had been made, a report that the pregnancy test was negative.3/ Otherwise, the physical examination of the patient prior to surgery, the results of the ultrasound, and the observations intra-operatively made by Respondent did not indicate that the patient was pregnant. There was no necessity to make an examination under anesthesia. Even if made, it would not necessarily lead to the conclusion that the patient was pregnant, taking into account other information known by Respondent. Mitigation/Aggravation The outcome here was that the patient underwent a hysterectomy when she was pregnant, an adverse result. There is no indication that Respondent has ever been disciplined in Florida or other jurisdictions while practicing medicine.
Recommendation Based upon the findings of facts found and the conclusions, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 458.331(1)(t), Florida Statutes (2003), and imposing an administrative fine of $10,000.00, requiring Respondent to take a course on Risk Management for physicians, and issuing a letter of reprimand. DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 22nd day of June, 2007.
