The Issue The central issue in this case is whether Richard Koenig, D.P.M., should be licensed as a podiatrist in the State of Florida. More specifically, this case must determine these issues: whether Richard Koenig, D.P.M., has practiced podiatry in the past at an acceptable standard of care as required by Section 461.013(1)(s), Florida Statutes; whether he fraudulently misrepresented material facts on his application for licensure as a podiatrist in violation of Section 461.013(1)(a), Florida Statutes; and whether his application to become licensed as a podiatrist is barred on grounds of administrative res judicata because of the Board of Podiatry's denial of his application in 1994-1995.
Findings Of Fact Dr. Koenig is an applicant for licensure as a podiatrist in the State of Florida. He is presently licensed to practice podiatry in the State of Missouri and was previously licensed in Illinois and Florida. Both of the latter licenses have expired. Dr. Koenig meets all criteria for licensure in Florida other than the grounds for denial cited by the Board in its Notice of Intent to Deny and described in the Statement of the Issues, above. The Board is responsible for certifying individuals who are qualified to become licensed as podiatrists and the Department of Health is responsible for issuing the licenses after the Board's certification. Dr. Koenig permitted his Florida license to lapse while he practiced in Missouri. He initially sought to be licensed again in this state in 1994. At that time, his application to sit for the examination, and thereafter to be licensed, was denied by the Board. Dr. Koenig requested a hearing on the denial before the Division of Administrative Hearings (DOAH) and a case was opened as DOAH Case No. 95-0570. Dr. Koenig later dismissed his petition and the DOAH file was closed. The earlier denial thus became final. Dr. Koenig reapplied for licensure in 1997. It is this application which is the subject of the instant proceeding. Dr. Koenig has already taken and passed the national podiatric licensure examination in Louisiana in 1997, thus meeting the examination requirement. Dr. Koenig was involved in approximately eleven podiatric malpractice cases during his practice in Missouri in the 1980's and early 1990's. Eight of the cases were settled by his insurance carrier. Three additional cases were pending at the time of Dr. Koenig's initial application in 1994. Of these three, Dr. Koenig prevailed at trial in two cases. The third case has been voluntarily dismissed by the plaintiff and has not been refiled. Dr. Koenig has not been engaged in the practice of podiatry as his primary professional activity since 1993-1994. He occasionally provides podiatric services as part of his commitment to the U.S. Navy, but he has primarily been engaged in developing and marketing two devices for use in podiatric and related services and has been teaching. Dr. Koenig received and reviewed the 1994 Board Notice of Intent to Deny Application for Examination and Licensure prior to filing his 1997 licensure application. In addition, he was aware that he had dismissed his petition to review that decision and the Board's decision was thus final. Nevertheless when called upon to state in the 1997 application whether he had ever been denied licensure as a podiatrist, Dr. Koenig answered "No." (Petitioner's Exhibit No. 1) This answer was false. Question five of the application for podiatry licensure reads: "Has any podiatry license held by you ever been acted upon, suspended or revoked, or have you ever been denied licensure?" Dr. Koenig's explanation concerning his negative answer to this question was that he thought he was being denied the right to take the examination, which was a condition required before he could be licensed. His understanding is supported by a reading of the minutes of the Board meeting at which the decision was made: "Dr. Simmonds moved to deny Dr. Koenig from taking the examination based on not having the ability to practice Podiatric Medicine at a level of care and safety." (Petitioner's Exhibit No. 1) However, the Board sent, and Dr. Koenig received, a Notice of Intent to Deny Application for Examination and Licensure. While that document plainly states that he was both being denied the right to take the examination and the right to be licensed, he did not focus on the second point--the right to be licensed. Dr. Koenig offered his explanation to the Board at its meeting on July 25, 1997, and when asked about the application question, he stated, "Because it is a misunderstanding. I make a differentiation between being denied a license and being denied the opportunity to sit for a license, and I may be wrong, and I stand corrected if I am, but that's what my intention was." (Petitioner's Exhibit No. 1, Transcript pp. 21-22). He understood that the Board was denying him the right to take the examination, an essential element of his application process. Dr. Koenig's explanation has been consistent throughout this proceeding, both before the Board and in the formal hearing. Although Dr. Koenig did answer the question incorrectly, his explanation that he did so without any fraudulent intent is entirely credible. Had there been an intent to defraud the Board regarding his application, Dr. Koenig might have avoided disclosing the malpractice suits which resulted in the Board's earlier decision to deny him licensure. Those malpractice suits are no longer an appropriate basis to deny licensure. Dr. Koenig is a Board-certified podiatrist and is a Fellow of the American College of Foot and Ankle Surgeons. One becomes Board-certified by taking an examination, by meeting practice requirements, and by submitting a number of medical cases to the Board for evaluation. Only about 10 percent of all podiatrists are Board-certified. Dr. Koenig's specialty is foot surgery and he has operated more often than a podiatrist in standard practice. Dr. Koenig has written several articles in peer- reviewed journals, and has spoken widely in the United States and elsewhere at various continuing medical education seminars. A frequent topic of his speeches involves the use of an implant which he developed to replace the big toe joint. This implant is patented, approved as a safe device by the FDA, and is covered by Medicare and Medicaid. Dr. Koenig has developed and marketed a special shoe for patients who have had foot surgery. There have been no Medicare or Medicaid complaints brought against Dr. Koenig and he maintains Medicare and Medicaid provided numbers. The two lawsuits which went to a jury verdict were decided in his favor and there are no lawsuits pending now. The multiple claims of malpractice occurred when he was actively engaged in foot surgery practice in Missouri. His insurance carrier, without consulting him, settled those claims. After he changed carriers and contested the claims, he has prevailed. The Board in this proceeding presented no evidence that Dr. Koenig has practiced below the standard of care. Nor did it refute his credible testimony.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that a Final Order be entered granting Dr. Koenig's license to practice podiatry in the State of Florida. DONE AND ENTERED this 24th day of April, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 24th day of April, 1998. COPIES FURNISHED: John J. Rimes, III Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Eric B. Tilton Gustafson, Tilton, Henning & Metzger, P.A. Suite 200 204 South Monroe Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Podiatry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner is entitled to an award of additional points sufficient to achieve a passing score on the July 1997 optometry exam.
Findings Of Fact Susan J. Summerton-Madison (Petitioner) took the July 1997 examination for licensure as an optometrist in the State of Florida. A portion of the examination tests the clinical skills of the applicant for licensure. Each applicant performs a number of tasks while two examiners observe. Prior to administration of the test, all examiners receive standardization training providing a baseline for grading the individual performance of each applicant. Examiners grade each applicant independently of each other. During the clinical part of the test, a viewing system known as a "teaching tube" is attached to the optometrist's equipment used by the applicant. The applicant performs each task twice because only one examiner at a time can observe the performance through the tube. Prior to beginning the clinical portion of the exam, the applicant and the examiners set the tube focusing mechanism so that both the applicant and the examiner have a clear view of the procedures being demonstrated. By grade report dated August 27, 1997, the Petitioner was advised that she had scored 68.80 on the clinical portion of the examination. A score of at least 75 points is required to pass the clinical portion of the examination for licensure as an optometrist. The Petitioner challenges the grading of the following questions: Section 1, questions 4a and 4b. Section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 11a, 11b, 12a, 12b, 13a, 14a, 15a, 18a, 18b, 21a, 21b, 24a, 25a, and 26a. The Petitioner asserts that her pregnancy during the examination resulted in ocular changes which caused focusing anomalies. The anomalies allegedly caused the viewing equipment through which the examiners observed her performance to be out of focus. The Petitioner received score deductions related to lack of focus on numerous questions; specifically section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 13a, 14a, 15a, 18a, 21a, 24a, 25a, and 26a. There are multiple causes of temporary ocular changes, including nervousness. Although there is evidence that pregnancy can result in ocular changes, the evidence fails to establish that any focusing problems which occurred during the Petitioner's performance on the July 1997 examination were related to pregnancy. Refocusing the viewing mechanism takes approximately five seconds. There is no evidence that an applicant is prevented from refocusing the equipment during the clinical examination. Although examiners are under no obligation to advise applicants during the test, one of the examiners observing the Petitioner suggested that she refocus the equipment. The Petitioner asserts that the request caused her to run out of time on section 2, questions 11a, 11b, 12a, and 12b. The evidence fails to establish that any problems related to insufficient time for the examination were related to the examiner's suggestion. The Petitioner asserts that points were deducted for poor focus on tasks which did not include focus as grading criteria. The evidence establishes that because the clinical portion of the test involves examination of ocular systems in a patient, almost all procedures require correct focus. The Petitioner asserts that on section 2, question 21b, ("foveal reflex") she received no points, but that another optometrist's examination of the test patient indicated that the foveal reflex was acceptable. Review of the examination indicates that the Petitioner's score was lowered because of focusing problems. The fact that a qualified optometrist determined the patient to be normal does not entitle the Petitioner to additional points or indicate that the scoring of her performance was unfair. Because examiners view separate procedures, it is not unlikely that examiners may award different scores. It is possible to evaluate the performance of examiners through use of "agreement ratings." Agreement ratings indicate the frequency of which each examiner agrees with the other examiner in testing the same applicant. The Petitioner notes that the examiners grading her performance differed in grading section 1, questions 4a and section 2, questions 3a, 3b, 7b, 10a, 13a, 14a, 15a, 18b, 21a, 21b, and 25a, and asserts that such indicates she was graded unfairly. Although the agreement ratings of the examiners who observed the Petitioner were slightly lower than average, the examiner agreement ratings fail to establish that she was graded arbitrarily or unfairly. The sample size is so small as to be subject to influence by borderline candidates, where one examiner believes an applicant's performance to be more acceptable than does the other examiner. The Petitioner asserts that on section 2, question 18b, the lack of agreement between the examiners reflects arbitrary grading because both supposedly view the same procedure through the viewing tube. The evidence fails to establish that the Petitioner is entitled to additional points or that the scoring of her performance was unfair. The Petitioner asserts that she informed the examiners that she was pregnant prior to administration of the clinical portion of the exam and that she should have received special accommodation of some type based on her condition. Procedures set forth in Rule 61-11.008, Florida Administrative Code, address special assistance to certain persons submitting to examination by the Department of Business and Professional Regulation, Office of Examination Services, which administered the examination in the instant case. Such assistance is available to persons with learning disabilities or physical handicap as defined in the rule. There is no evidence that the Petitioner sought to utilize such procedures. There is no evidence that the Petitioner's condition would have been regarded as a learning disability or physical handicap by the agency. The Petitioner asserts that an examiner exited the room while she was addressing section 1, questions 4a and 4b, and that the confusion of the departure caused the examiners to err. The evidence establishes that the scores reflect the inappropriate performance of the task involved, which involved measurement of the patient's pupil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health enter a Final Order dismissing the Petitioner's challenge to the grading of the July 1997 examination for licensure as an optometrist. DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 22nd day of May, 1998. COPIES FURNISHED: Susan J. Summerton-Madison 559 99th Avenue North Naples, Florida 34108 Anne Marie Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent violated Section 458.331(1)(m), Florida Statutes, which requires a physician to keep legible medical records on Patient S.W., during the period August 20, 1992, through November 1992. Whether Respondent violated Section 458.331(1)(t), Florida Statutes, which prohibits gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, where Respondent performed surgery that was not necessary and/or failed to diagnose and treat a postoperative infection that resulted in necrosis of the Patient S.W.'s turbinates.
Findings Of Fact Respondent, Robert Peter Filiberto, is and has been, at all times material hereto, a licensed physician in the State of Florida, having been issued license no. ME 0032703. Respondent maintains offices in Palm Bay and Sebastian, Florida. Respondent is board certified in otolaryngology and head/neck surgery. S.W., a 46 year-old adult female, was referred on March 25, 1991, to Respondent with complaints of "chronic bronchitis." Physical examination revealed the following: Mild polypoid changes of both vocal chords, 2+ rhinitis, with 3+ post nasal drainage. Respondent diagnosed the patient as suffering from allergic rhinitis with a post nasal drainage, which precipitated her chronic cough. S.W. returned to Respondent on August 20, 1992, having fallen and suffered a broken nose. Respondent diagnosed a comminuted (multiple) fracture and septal deformity. Respondent recommended surgical correction. On August 26, 1992, S.W. executed a Surgical Contract for a "septorhinoplasty and bilateral turbs" and also executed a Surgical Consent Form as follows: I consent to the performance of operations and procedures in addition to or different from those now contemplated, whether or not arising from presently unforeseen conditions, which Dr. Filiberto may consider necessary or advisable in the course of the operation. * * * The nature and purpose of the operation, possible alternative methods of treatment, the risks involved, the possible consequences and the possibility of complications have been fully explained to me by Dr. Filiberto or his assistant. These may include infection, loss of function, disability, scar formation, pain, bleeding, and possibility of recurrence. I acknowledge that no guarantee or assurance has been given by anyone as to the results that may be obtained. Dr. Filiberto assured me he would fix my nose and I would be happy. (Final sentence added by S.W.) On or about September 18, 1992, Respondent performed septorhinoplasty (plastic surgery of the nose and septum, the cartilage between the nostrils), with bilateral inferior turbinectomy (removal of the lower moisturizing membranes inside the nose) on S.W. at Humana Hospital - Sebastian. Respondent removed a portion of both inferior turbinates. The right inferior turbinate was manually resected (cut) with superficial electrocauterization used to control bleeding. The left inferior turbinate was fulgurated using an intramural electrocautery technique. The surgery proceeded without complication. Following the operation, the hospital pathology report confirmed Respondent's diagnosis: chronically inflamed hypertrophied nasal turbinates. Respondent's post-operative report indicates he intended to remove only the lower two-thirds of Patient S.W.'s turbinates. Respondent's performance of surgical electocautery is not mentioned in Respondent's medical records until Patient S.W.'s visit on or about November 13, 1992. Between September 21, 1992, through November 20, 1992, Respondent saw Patient S.W. for postoperative follow-up examinations. During her postoperative visits, S.W. complained of pain, a greenish discharge, and a bad smell numerous times. When the symptoms did not cease, Respondent prescribed antibiotics on October 22, 1992, approximately four weeks after surgery. After approximately three weeks on the antibiotics, the pain, discharge, and smell continued. Respondent prescribed more of the same antibiotics. Between on or about September 21, 1992, through on or about November 11, 1992, Respondent's medical records described S.W.'s nose as clear. Between on or about September 21, 1992, through on or about November 11, 1992, Respondent's medical records indicate no postoperative infection. However, the patient had an infection that was impervious to the antibiotics that Respondent had first prescribed. When that became apparent, Respondent failed to order a culture. Patient S.W. subsequently transferred her case to another physician and underwent extensive treatment by other physicians for tissue necrosis and osteonecrosis (infectious destruction of bone), including removal of necrotic tissue and intravenous antibiotics. Patient S.W.'s subsequent treating physicians discovered that her turbinates were completely missing. S.W. now has severely limited senses of smell and taste. She suffers from chronic pain and sinus headaches. She experiences nightly discharges of thick mucous, and numbness of certain parts of her face. Expert witnesses speculated that the turbinates were missing, either because Respondent had removed them entirely, which is not standard practice and is not reflected in his medical notes, or because he allowed the infection to continue so long that necrosis destroyed whatever portion of the turbinates had not been removed. Respondent's medical records do not justify his course of treatment of Patient S.W. Respondent's medical records inadequately document Patient S.W.'s history and physical condition or amounts and frequencies of antibiotics prescribed. The records also do not justify Respondent's delay in diagnosing Patient S.W.'s developing post-operative infection. The evidence is not clear and convincing that Respondent performed inappropriate nasal surgery on Patient S.W. on September 18, 1992. A reasonably prudent similar physician would not have failed to timely diagnose and treat Patient S.W.'s developing postoperative infection.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine issue a final order that: Finds the Respondent guilty of failure to keep legible medical records that justified the course of treatment for Patient S.W. during the period August 1992 through November 1992, in violation of Section 458.33(1)(m), Florida Statutes. Finds the Respondent not guilty of gross malpractice or the failure to practice medicine within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in regard to the diagnosis and surgery performed on Patient S.W., on September 18, 1992. Finds the Respondent guilty of gross malpractice or the failure to practice medicine within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in regard to the treatment of the Patient S.W. for the postoperative infection that resulted in necrosis of the Patient's turbinates in the period September through November 1992, in violation of Section 458.331(1)(t), Florida Statutes. Finds that Respondent has established mitigation as to Count I, in that his current procedures for the generation of medical records are in compliance with statutory and regulatory requirements. Suspends Respondent's license to practice medicine for a period of three months, followed by a period of probation under such terms and conditions as the Board may require; and imposes an administrative fine of $5,000, plus the costs of prosecuting this complaint. DONE AND ENTERED this 26th day of February, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: J. Charles Ingram, Esquire DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1999. Hannah, Voght, Estes & Ingram, P.A. Post Office Box 4974 Orlando, Florida 32802-4974 John O. Williams, Esquire Maureen L. Holz, Esquire Williams & Holz, P.A. 355 North Monroe Street Tallahassee, Florida 32301 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703
The Issue The issue in this case is whether Petitioner should receive a passing score on the clinical portion of the August 2000 optometry licensure examination.
Findings Of Fact In August 2000, Petitioner took the optometry licensure examination and failed to pass the clinical portion of the exam. The clinical portion is where the candidate is required to perform certain patient procedures. The student, or candidate, is evaluated in the process of performing those procedures by two examiners. Each examiner grades the candidate independently of whatever score the other examiner may award on a particular procedure. With regard to the contested questions in this matter, Petitioner objected to the awarding of credit by one examiner and failure of the other examiner to grant credit. In the conduct of the clinical portion of the examination, each procedure is performed twice, once for each examiner. The examiners are not permitted to confer as they apply uniform grading standards to a candidate's performance in demonstrating a particular procedure. Additionally, the examiners have been previously subjected to standardization training where they are trained to apply grading standards in a consistent manner. Both examiners in Petitioner's examination were experienced examiners. Where one examiner gives a candidate one score and the other examiner gives a different score, the two scores are averaged to obtain the candidate's score on that question. With regard to Question 1C on the examination, the candidate is required to tell the patient to look at his or her nose. At the same time, the candidate must hold up a finger in a stationary, non-moving manner. By his own admission, Petitioner failed to comply with this requirement in that his hands were moving. With regard to Question 7A, the candidate was required to tell the patient to look at a distant target. Petitioner told the patient to look straight ahead and argued at final hearing that his instruction was adequate for him to assume that the patient was looking at a distant target. Notably, this question on the examination seeks to elicit a candidate's skill at administering a neurological test of the patient's eye and brain coordination and requires that the candidate specifically tell the patient to look at a distant target. With regard to Question 13C, the candidate must perform a procedure designed to detect retinal lesions. The candidate and the examiner simultaneously look through a teaching tube where the candidate is asked to examiner the patient's eye in a clockwise fashion. When told to look at the nine o'clock position of the retina, Petitioner failed to look at the correct position. By his own admission Petitioner stated that since he had to perform the procedure twice, it is possible that he did not perform the procedure correctly for one examiner. Question 34A relates to Tonometry; the measure of intraoccular pressure (IOP) in the eye. Petitioner was not given credit by one examiner because Petitioner rounded the pressure results he observed. He argued that his answer of 12 was acceptable since he had rounded to the result within 0.5mm of what the machine detected in regard to the patient's eye. One of the purposes of this procedure is to determine whether the candidate can accurately read the dial to the machine. Consequently, Petitioner's failure to perform properly with regard to this procedure was appropriately graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the August 2000 optometry licensure examination. DONE AND ENTERED this 23rd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2001. COPIES FURNISHED: Jayeshkumar Vallabhbhai Patel, O.D. 1601 Norman Drive, Apartment GG-1 Valdosta, Georgia 31601 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner should receive a passing grade for the Florida Optometry Licensure Examination taken on July 23 through 25, 2004.
Findings Of Fact Dr. Cook is a licensed optometrist in the State of Michigan. She received her Doctor of Optometry degree in 1985, and became licensed in the same year. Dr. Cook has taken the Michigan, Illinois, and Wisconsin state licensure examinations and passed all three examinations on her first try. For 17 years, Dr. Cook practiced optometry at the University of Michigan Health Services. This was a comprehensive practice, including eye examinations with dilation, treatment of eye diseases, emergency care, and the monitoring and follow-up care of patients with glaucoma, cataracts, and other diseases. Except for providing care to family members, Dr. Cook has not practiced professionally, on a regular basis, since August 2001, when she moved to Florida. Dr. Cook is a Fellow of the American Academy of Optometry. She was accepted at the final hearing as an expert in optometry. Dr. Cook desires to become licensed in Florida to practice optometry. As part of the process to apply for licensure in Florida, Dr. Cook is required to retake parts one and two of the national board examinations and to pass the Florida examination for licensure. She retook the national board examinations and passed on the first try. In August 2003, she took the clinical portion of the Florida examination and failed. In July 2004, Dr. Cook retook the clinical portion of the Florida examination. A passing score on the clinical portion is 80. She scored 75.75 on the July 2004 examination, and, thus, failed the clinical portion. For the clinical examination, Dr. Cook was required to bring her own "patient" upon whom some of the examination's required procedures were required to be performed. Some of the procedures are performed on "patients" brought by other candidates taking the examination. The grading on each procedure in the clinical examination is done by two examiners who are licensed, practicing optometrists. A candidate will be graded by a different set of examiners for the morning and afternoon sessions. The examiners are chosen by the Board of Optometry and trained by the Department's Testing Services Unit and outside practitioner consultants prior to the administration of each examination. The examiners are provided with a set of Grading Standards for their use during the grading of the examination. The purpose of the training and standards is to make the grading process objective and to provide grading uniformity and consistency. The examiners are required to grade and mark their scores independently. They are not to compare or discuss their scoring with other examiners at any time. If both examiners' grades agree, the candidate is given either no credit or full credit, depending on whether the examiners considered the procedures were properly performed. If the examiners disagree on the grading, the candidate is given the average of the two grades actually awarded, which is the sum of the two grades divided by two. If an examiner considers that a procedure is properly performed, the examiner marks the grade sheet with a "Y," indicating a yes. Examiners are taught to give the candidates the benefit of the doubt in borderline cases. If an examiner feels that the performance was borderline, the examiner must indicate "borderline" in the comment section on the grade sheet and specify the reason. If an examiner determines that the candidate did not properly perform the procedure, the examiner marks the grade sheet with an "N," indicating a no. An examiner is required to specify the reason for a no grade in the comment section on the grading sheet. Some of the procedures are performed once for both examiners. Other procedures are performed in groups, meaning that the procedures are performed twice, once before each of the examiners. In grouped procedures, the first examiner will read the directions for a procedure, and the candidate will perform the procedure after the directions are given. The first examiner will read the directions for the next procedure, and the candidate will perform the procedure after the directions are read. This format continues until the grouped segment is completed. The same procedures will then be performed for the second examiner, following the same format used by the first examiner. No records are kept to indicate which examiner graded first or second during any part of the examination. The examination candidate has control over when each examiner grades the candidate. When the candidate is ready to be graded, the candidate is required to say, "Grade me now." Dr. Cook has challenged the grades that she received for the following procedures: confrontational field test; measurement of pupil size; rating patient's response to light; demonstrating the equator and posterior pole during the binocular indirect ophthalmoscopy examination; the anterior vitreous portion of the biomicroscopy examination of the anterior segment; the choroidal crescent, posterior vitreous detachment, A-V three crossings out find and reflex, and hypertensive changes portion of the biomicroscopy examination of the fundus; and measuring eye pressure using a Goldmann Tonometer. A confrontational field test is a gross neurological field test in which the candidate compares her visual field to the patient's to pick up gross neurological defects. The Candidate Information Booklet (CIB) states that the confrontational field test is to be performed as described in Clinical Opthalmology by J.D. Duane. In order to perform this test, the candidate sits in front of the patient about a meter away. The patient covers one eye and looks at the candidate's eye, nose, or other structure so that the patient's gaze is not moving around. The candidate puts her non-moving fingers in different quadrants to test the patient's ability to see the fingers. It is important to keep the fingers stationary while performing the test because moving fingers could be detected by the patient even in a blind field. In other words, a patient who is not able to see a stationary finger may be able to detect a finger that is moving because the motion contributes to the detection. Dr. Cook performed the confrontational field test for both examiners simultaneously. She received .75 points out of a possible 1.5 points for the confrontation field test. Examiner 202 gave Dr. Cook full credit for the examination. Examiner 239 gave Dr. Cook no credit and noted the following in the comment section: "Moving fingers--Init performed 'wiggling fingers' while moving target fingers." Examiner 239 also noted "Did very brief static CF test but fingers moving not stationary." Dr. Cook admitted that she did wiggle her fingers during part of the performance of the examination, claiming that she was testing the patient's peripheral vision, which was not part of the examination. The examination was to be performed within the central 30 degrees. The preponderance of the evidence does not establish that Dr. Cook tested the four quadrants with non-moving fingers. Dr. Cook's score of .75 points is correct. As part of the clinical examination, the candidates are required to measure the size of the patient's pupil. In order to measure the pupil, the candidate must not sit in front of the patient. Sitting in front of the patient creates a stimulus for accommodation, which is a phenomenon where the pupil size changes unless the patient can look and focus on a target at a distance. Dr. Cook measured the pupil size of her patient simultaneously for both examiners. Examiner 202 gave Dr. Cook full credit for her performance in measuring the pupil size, and Examiner 239 did not give Dr. Cook credit for her performance. Examiner 239 noted in the comment section, "candidate sat in front of pt." Dr. Cook received .5 points out of a possible one point for measuring the pupil size during the pupillary examination. Dr. Cook claims that she sat off to the side of the patient, lined up her right eye with the patient's right eye, and asked the patient to sight at a target at a distance. The examiners were off to the side when Dr. Cook performed the procedure. The preponderance of the evidence does not establish that Dr. Cook was in the correct position when she measured the patient's pupil size. Dr. Cook's score of .5 is correct. As part of the examination, candidates are required to rate the patient's pupillary response to light on a pupillary scale. The CIB states, "Pupillary examinations, muscle balance, and motility, should be done on both eyes (including dilated eye)." Examiner 202 gave Dr. Cook full credit for rating the pupil, but indicated that her performance was borderline. Examiner 202 stated in the comment section: "borderline - she was confused about 0 to 4+, but eventually got it." Examiner 239 gave Dr. Cook no credit for her performance, and stated in the comment section: "4+ but did not indicate eye, not used to using 0 to 4 scale." Dr. Cook received .5 points out of a possible one point for rating the pupil on a pupillary scale. She gave the same answer simultaneously to both examiners. When Dr. Cook was asked to rate the pupils of her patient, Dr. Cook was uncertain which scale to use, the Marcus Gunn scale or a true light reflex scale. She indicated that she gave a response for both scales and that one of the responses was 4+. Dr. Cook stated at the final hearing that the left pupil was fixed and dilated, but she did not indicate that she rated the left eye as "0." The preponderance of the evidence does not establish that Dr. Cook advised the examiners of her rating of the left pupil. The score of .5 was correct. The binocular indirect ophthalmoscope (BIO) is an instrument used to examine the fundus, which is the inside back part of the eye. The BIO sits on the candidate's head. There is a small mirror attached, through which another viewer may see the view being seen by the candidate. The candidate holds a condensing lens, which is like a magnifying glass, to evaluate structures in the eye. Examining the fundus with the BIO is a simple procedure, which Dr. Cook performed 14 to 16 times every clinical day for over 17 years. Dr. Cook wore contact lenses during the examination. With the use of contact lenses, Dr. Cook has perfect vision. Dr. Cook adjusted the instrument before the testing procedure started, including adjusting the angle of light and setting the illumination. As part of the examination on the use of the BIO, a candidate is to demonstrate the equator and the posterior pole. In these procedures, the candidate finds the view of the applicable area, one examiner looks through the mirror after the candidate says "Grade me now," and then steps back. The second examiner then looks at the mirror after the candidate again says "Grade me now." Examiner 239 did not give full credit to Dr. Cook in demonstrating the equator. For the portion of the performance which requires the candidate to demonstrate an equator landmark, Examiner 239 gave Dr. Cook a "no" and stated in the comment section: "No clear view through the mirror @ 'Grade me now.'" Examiner 239 also gave Dr. Cook a "no" for an acceptable view of an equator landmark and stated in the comment section: "Dim illumination." Examiner 202 gave Dr. Cook credit for these two performance areas. In the portion of the examination in which the candidate is to demonstrate the posterior pole, the candidate is told that the disc and macula should be seen simultaneously. Examiner 239 did not give Dr. Cook credit for the portion of the examination where the disc and macula are to be viewed simultaneously. Examiner 239 stated in the comment section: "very dim view vis'd ONH not macula." Examiner 202 gave Dr. Cook credit for this portion of the examination. Between the first and second examiners' viewings for the equator and the posterior pole, the patient did not move, Dr. Cook held the focused view still, there was no change in illumination or intensity, and Dr. Cook did not change her position. Thus, it is more likely than not that Examiner 239 was mistaken. Dr. Cook received 3.5 points out of a possible seven points for examining the views of the equator and posterior pole during the binocular indirect ophthalmoscopy examination. She should be credited with an additional 3.5 points. As part of the examination, the candidates were asked to perform an examination using a biomicroscope, which is a microscope combined with a light source that is used to view different structures on the outside and inside of the eye. It is also called a slit lamp. For purposes of the licensure examination, the biomicroscope has a teaching tube attached through the left ocular, and when the examiner looks through the tube she sees the same view the candidate sees through the left ocular. A portion of the examination using the biomicroscope includes grouped procedures. The last procedure on one of the grouped procedures was focusing on the anterior vitreous of the patient's eye. The vitreous is made up of hyaluronic acid and contains vitreal strands made of collagen. As a person ages, the vitreal strands will increase and become more visible. A young patient may have vitreal strands that would be so difficult to see that on viewing the strands the view would appear to be "optically empty." In other words, the vitreous would appear clear on examination. Dr. Cook's patient was a healthy premed student in his early twenties. The patient did not have visible vitreal strands. Before performing the group of procedures, which included the focus of the anterior vitreous, Dr. Cook adjusted the height and width of the light. She set for a direct focal illumination, meaning the light was focused where she was looking. The patient remained still between the procedures, and Dr. Cook did not change the illumination between each grading. Examiner 216 gave Dr. Cook no credit for her focus of the anterior vitreous, stating the illumination was "too dim" and the "vit not seen." Examiner 268 gave Dr. Cook full credit for that part of the examination. Dr. Cook received 1.25 points out of a possible 2.5 points for her performance related to the anterior vitreous portion of the biomicroscopy exam of the anterior segment. Based on the patient's having no visible vitreal strands; the patient not moving between the grading procedures, and Dr. Cook not changing the illumination between grading procedures, it is more likely than not that Examiner 216 was mistaken. Dr. Cook should be awarded 1.25 points for performance of the focus on anterior vitreous. Dr. Cook received 3.5 points out of a possible seven points for her performance related to the choroidal crescent, posterior vitreous detachment, A-V three crossing outs, find and reflex, and hypertensive changes portion of the biomicroscopy exam of the fundus. One of the grouped portions of the examination using the biomicroscope included demonstrating whether a choroidal crescent was present. Determining the presence of a choroidal crescent was the fourth procedure in this grouped segment. A choroidal crescent can be seen when the candidate is looking at the optic nerve and the retina does not come all the way up to the nerve. The choroidal crescent will appear at the edge of the optic nerve. Examiner 268 did not give Dr. Cook any credit for determining whether the choroidal crescent was present, and stated in the comment section, "Did not focus on the edges of the ONH [optic nerve head]." Examiner 216 gave Dr. Cook full credit for the procedure. Dr. Cook did not demonstrate by the greater weight of the evidence that she should be given additional credit for this procedure. Unlike the evidence presented concerning the anterior vitreous, she did not establish that there was no change in illumination, her position, or the patient's position between the grading of the grouped segments. In order to perform the grouped procedures in which she was tested on the presence of the choroidal crescent, Dr. Cook had to move the focus and illumination to different locations related to the optic nerve. The last procedure in the same grouped segment involving the choroidal crescent was demonstrating posterior vitreous separation. Vitreous gel is attached to the back of the eye in several places. When the attachment points for the vitreous are pulled away or become loose, a ring-like structure can be seen where the vitreous pulled loose. Dr. Cook was asked to demonstrate and indicate whether a vitreous separation was present after she performed the procedure involving the choroidal crescent. The proper procedure for checking for posterior vitreous attachment would be to set the proper illumination, focus on the optic nerve, and pull back slightly on the "joy stick." Examiner 268 did not give Dr. Cook any credit for the procedure involving a demonstration of a posterior vitreous separation, stating in the comment section, "Did not pull back." Examiner 216 gave Dr. Cook full credit for the procedure. Again, Dr. Cook failed to establish by a preponderance of the evidence that she should be given additional credit for this portion of the examination. There was no showing that all conditions remained the same when each examiner graded this grouped segment of procedures. Another grouped segment of the examination called for Dr. Cook to start at the optic disc and follow a temporal arcade for a distance of approximately three disc diameters and demonstrate an AV crossing. Dr. Cook was to then indicate whether there were any characteristic hypertensive changes at the crossing. A vascular arcade is a curved shape with blood vessels coming out and arcing toward one another. Most of the blood vessels in the eye are located in this area. Some diseases such as diabetes and hypertension cause changes where the blood vessels in the arcade cross. In order to perform the AV crossing procedure, a candidate has to coordinate the microscope, going up and down and side by side. Lining up is critical on this procedure. Adjustments have to occur separately, once for each examiner. Examiner 268 did not give credit to Dr. Cook for this portion of the examination, stating in the comment section, "No view in the tube." Examiner 216 gave Dr. Cook full credit for the procedure. Dr. Cook has failed to establish that she is entitled to additional points for this portion of the examination. The AV crossing procedure involves making adjustments for each of the examiners as part of the examination, Dr. Cook has not demonstrated by a preponderance of the evidence that all conditions remained the same for each examiner. As part of the examination, candidates are tested on the use of the Goldmann Tonometer, which is a device used to measure eye pressure. The grading on this portion is divided into four categories: illumination at the proper angle, mires alignment, thickness of alignment, and the pressure measurement. Examiner 268 gave Dr. Cook full credit for all categories. Examiner 216 did not give credit to Dr. Cook for having the correct mires alignment, and gave full credit for the remaining categories, indicating that the mires width and the reading of the pressure were borderline. In the comment section, Examiner 216 drew the alignment which he viewed. The mires were not aligned correctly. Dr. Cook received 1.24-1.50 points out of a possible 2.5-3.0 points for the use of the Goldmann Tonometer. Dr. Cook argues that because she was given credit for the pressure reading that it would be impossible for the mires alignment to be incorrect. The reading of the pressure is to test the candidate's ability to read the dial on the tonometer; it is not to determine whether the reading that is on the dial is the actual pressure of the patient. The grading standards require that the examiner put down the reading that he saw during the viewing if it is different from the reading that the candidate gives as a response. Thus, it is possible to be given credit for the pressure reading without having the mires aligned correctly. Dr. Cook has not demonstrated by a preponderance of the evidence that she should be given additional credit for this portion of the examination. None of the examiners testified at the final hearing. The Department did call Dr. Gary McDonald, who was accepted as an expert in optometry.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding Dr. Cook an additional 4.75 points for the clinical portion of the optometry licensure examination given on July 23 through 25, 2004, resulting in a passing grade of 80.25. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005. COPIES FURNISHED: Edwin A. Bayó, Esquire Gray Robinson 301 South Bronough Street, Suite 600 Post Office Box 11189 Tallahassee, Florida 32302-3189 Allen R. Roman, Esquire Department of Health Office of General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Joe Baker, Jr., Executive Director Board of Optometry Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 66.9%, with 241 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2803 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue This is a proceeding pursuant to the Florida Equal Access To Justice Act, Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code. Petitioner seeks to recover his attorney's fees and costs incurred when defending an action brought against him by the Department of Professional Regulation, Board of Medicine. The issue for determination is whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 90-4205, DPR Case No. 89-05921, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or if there exists special circumstances which would make an award unjust.
Findings Of Fact Respondent is a state agency which initiated a proceeding with the filing of an Administrative Complaint against Ronald F. David, M.D. As stipulated, Petitioner's Attorney's Fees and Costs are not unreasonable. Petitioner was the prevailing small business party in the underlying case, Department of Professional Regulation v. Ronald F. David, M.D., DOAH Case No. 90-04205, DPR Case No. 89-05921, when the case against Dr. David was dismissed on January 25, 1991. As stipulated, there are no known circumstances which would make an award of attorney's fees and costs unjust. The one remaining issue of fact to be determined is whether sufficient evidence was presented to the Probable Cause Panel of the Board of Medicine to support a finding of probable cause against the Petitioner, and whether the Panel properly considered that evidence. S. A. was a premature infant who had a patent ductus arteriosus (PDA). Petitioner, a pediatric surgeon with credentials to do general surgery, pediatric surgery, and chest surgery, was consulted by S. A.'s pediatrician. Petitioner, in turn, consulted Dr. Johnston, a thoracic cardiovascular surgeon, concerning surgery to close S. A.'s PDA. Dr. Johnston performed the surgery with Petitioner as assistant surgeon on May 31, 1986, at the Orlando Regional Medical Center. Petitioner had assisted in numerous such surgical procedures in the past but did not hold himself out as competent to perform them on his own. At surgery the left pulmonary artery was mistakenly ligated instead of the PDA. S. A.'s condition deteriorated and tests indicated the probable mistaken ligation. The baby was transferred to Shands Hospital where she died before a second operation could be performed. Autopsy revealed the mistaken ligation and the pathologist implicated the compromised cardiopulmonary system as a cause of death. No anatomical anomalies of the vessels were noted at autopsy. On the basis of a closed claim report to the Department of Professional Regulation, the circumstances surrounding the death of S. A. were reviewed by a physician employed by the Department's Division of Medical Quality Assurance. Petitioner was informed of this review on January 13, 1989. Review of the medical records resulted in cases being opened against three of the seven physicians who participated in the care of S. A. Petitioner was notified of the case by certified mail on August 1, 1989. Petitioner was interviewed on August 10, 1989. Dr. Johnston was interviewed by the same investigator on August 25, 1989. According to the investigator's notes, Petitioner stated that Dr. Johnston did not consult him during the surgery, that the anatomy did not appear to be the same as in prior cases, but that he did not question Dr. Johnston's decision as to which vessel to ligate. Dr. Johnston stated that he asked Petitioner to examine the anatomy when he (Johnston) had located what he thought was the ductus, and that Petitioner obliged by examining the operation field, but did not object to the procedure. The medical records of S. A. were obtained by subpoena from the Orlando Regional Medical Center. On February 5, 1990, both Petitioner's and Dr. Johnston's investigative files were sent to Dr. William Price, a thoracic and vascular surgeon, for his review. The letter requesting his opinion clearly separates the actions of Petitioner and Dr. Johnston to be considered. On February 21, 1990, Dr. Price's analysis stated, "The assistant, Dr. Ronald David, should have been accomplished enough to recognize the proper anatomy, but the ultimated [sic] responsibility was not his." (Respondent's exhibit 2, 3) The cases, Department of Professional Regulation v. Ronald F. David, M.D., DPR Case No. 89-05921, and Department of Professional Regulation v. Alan Johnston, M.D., DPR Case No. 89-05922, were prepared for the Probable Cause Panel meeting scheduled for May 11, 1990. Materials were sent to the three Panel members and their counsel at least one week in advance of the meeting. Materials sent to the panel included the complete investigative case file, including any exhibits, and a recommendation from the Department. Present at the meeting of the Panel on May 11, 1990 were: Dr. Robert Katims, Chairman of the Probable Cause Panel, Dr. Marilyn Wells and Mr. Gilbert Rodriguez, members of the Panel; Ms. Catherine Lannon, Assistant Attorney General and counsel to the Panel; Mr. Carlos Ramos and Ms. Stephanie Daniel, attorneys from the Department of Professional Regulation, and Mr. Brian Lynch, Administrative Assistant at the Department, whose duty it was to prepare and distribute materials for the Panel's consideration. Ms. Lannon instructed the Panel members to direct any questions concerning their legal duties and interpretation of laws or rules to her. She cautioned the Panel members that any factual questions concerning the investigation or why a certain recommendation was made were to be directed to the Departmental attorneys. She asked if the members had sufficient time to review all the materials sent to them; each member replied in the affirmative. And she cautioned the members that it must be clearly stated or implied from the record that the members are making independent judgments on the cases and that they are discussing the correct case. The Panel first considered Dr. Johnston's case. The Department recommended that an Administrative Complaint be filed alleging that Dr. Johnston practiced below the standard of care in that, "[He] inadvertently ligated the left pulmonary artery instead of the patient ductus arteriosus, by relying on the anesthesiologist's observation that the murmur had disappeared and the surgical assistant's failure to object or recognize the proper anatomy." (Respondent's exhibit 1, page 4-5) The Panel was informed that Petitioner's companion case was on the agenda. The Panel at this time discussed Petitioner at some length, including Petitioner's role as the referring physician, that Petitioner assisted at the surgery, that Petitioner was not a chest but a pediatric surgeon, and that Dr. Johnston and Petitioner disagreed as what was said and done by whom at the operation. Dr. Wells acknowledged that the surgeon in charge in the "captain of the ship"; the Chairman, Dr. Katims, in response to a question from Ms. Lannon, denied that the assistant surgeon is exonerated from all responsibility. Thereupon Probable Cause was found in Dr. Johnston's case and the Panel voted to file an Administrative Complaint. (Respondent's exhibit 1, page 7-8) The Panel later in the meeting considered Petitioner's case. The Department had recommended that Probable Cause be found and a letter of guidance be issued. Mr. Ramos presented the basic facts to the Panel. Both physicians on the Panel immediately disagreed with the Department's recommendation and requested an Administrative Complaint to be filed against Petitioner. The Panel affirmed its two main concerns: that Petitioner referred the patient to Dr. Johnston, and that at surgery Dr. Johnston said he specifically asked the Petitioner to review his ligation. (Petitioner's exhibit 4, page 6-7) Consideration of the transcripts of both Dr. Johnston's and Petitioner's cases reveals that there was considerable discussion and awareness by the panel of the specifics of S. A.'s case, that they were quite sensitive to the fact that Petitioner was the assistant surgeon and that he denied he was asked to verify the procedure. The vote was unanimous that Probable Cause be found and that an Administrative Complaint be filed against Petitioner. The Administrative Complaint was duly filed on May 22, 1990, alleging Petitioner fell below the standard of care by failing to object to any part of the procedure performed by Dr. Johnston and by failing to point out the proper anatomy for ligation. (Petitioner's Exhibit 1) In a subsequent meeting of the Probable Cause Panel, the Department presented it's recommendation that Petitioner's case be closed without prosecution based on a second expert's opinion that " . . . ligation of the wrong vessel was a known but although unfortunate complication of this procedure but not necessarily below the standard of care . . . " (Petitioner's Exhibit 12, 1). This recommendation was eventually accepted. The ultimate dismissal of the complaint does not negate the fact that at the time that probable cause was found, the panel had sufficient and competent information upon which it made its decision. It had conflicting statements by the two physicians; it had an expert's opinion; and it had extensive medical reports. It was not required to seek out sufficient evidence to assure success in a formal hearing on the complaint.
