The Issue Whether disciplinary action should be taken against Respondent's license to practice veterinary medicine, license number VM-2404, based on the violations of Section 474.214(1), Florida Statutes, as charged in three separate Administrative Complaints filed against Respondent.
Findings Of Fact At all times pertinent to the allegations in these cases, Respondent was a licensed veterinarian, having been issued license number VM-2404, by the Florida Board of Veterinary Medicine. On March 18, 2000, Respondent performed a spay on Rudy, a six-year-old cat owned by Sharon and James Leonard. Respondent discharged Rudy to Sharon and James Leonard on March 18, 2000. On the following day, when Rudy was not feeling well, the family took Rudy to the emergency clinic where she was seen and treated by Dr. Mark Erik Perreault. When seen by Dr. Perreault, Rudy was wobbly and disoriented, and had pale mucous membranes. In addition, Dr. Perreault observed hair sewn into Rudy's incision site. Because the cat was very tender, it was anesthetized, and a careful examination of the incision was made. That examination revealed the incision had been closed with very large suture material. Because of the cat's condition and his observations, Dr. Perreault recommended and received approval to re-open the incision, and conduct an exploratory operation. This surgery revealed Respondent sutured Rudy’s uterine stump leaving approximately one and a half inches of tissue below the suture. This amount of "stump" is excessive and leaves too much material to become necrotic. Respondent had closed the skin and body wall incisions with excessively large suture material. Respondent secured the body wall and skin incisions with only two throws (knots) in each closing suture. Both Dr. Perreault and Dr. Jerry Alan Greene testified regarding standard of care. It is below the standard of care to sew hair into an incision site or allow hair to become sewn into the incision site because it contaminates the surgical site. It is below the standard of care for veterinarians to use oversized suture material to close the incision site because an excessively large suture leads to excessive inflammation as the body absorbs the excessively large suture material. It is below the standard of care for veterinarians to secure the skin and body wall incisions with less than 5 to 6 throws on their sutures to ensure that the sutures do not loosen or become untied. The potential problems of not using enough throws are exacerbated by using larger suture material which is more likely to loosen. It is below the standard of care to leave an excessive amount of "stump" in the body cavity. An excess of necrotic tissue causes excessive inflammation. Pertaining to Rudy, Respondent’s records contain the notation, "0.6 Ket." Respondent testified that this indicated that he administered Ketaset. Respondent’s records do not indicate whether the administration was intravenously, intramuscularly, or subcutaneously. Respondent testified that he administered the Ketaset intramuscularly. It was below the standard of care for Respondent to fail to indicate the amount of medication administered, i.e., milligrams, cubic-centimeters, etc.; and to fail to indicate the method of administration. Respondent is the owner of V.I.P. Baseline clinic, a veterinary establishment located at 505 Northeast Baseline Road, Ocala, Florida 34470. On August 31, 2002, Teresa McCartney presented her male, white Maltese dog, Puffy, to Respondent at V.I.P. Baseline Pet Clinic for neutering. Teresa McCartney owned no other male, white Maltese dogs. Respondent performed a neuter on Puffy at V.I.P. Baseline Pet Clinic on August 31, 2002. On August 31, 2002, V.I.P. Baseline Pet Clinic was not licensed to operate as a veterinary establishment by the State of Florida Board of Veterinary Medicine. Teresa McCartney picked up Puffy from V.I.P. Baseline Pet Clinic on August 31, 2002. Puffy bled for approximately four days after the neuter was performed. On September 4, 2003, Teresa McCartney presented Puffy to Dr. Mark Hendon for treatment. Upon examination, Puffy was bleeding from the prepuce and from the site of the surgical incision. In addition, there was swelling subcutaneously and intra-dermal hemorrhage and discoloration from the prepuce to the scrotum. The animal indicated pain upon palpation of the prepuce, the incision site, and the abdomen. Dr. Hendon presented the owner with two options: to do nothing or to perform exploratory surgery to determine the cause of the hemorrhage and bleeding. The owner opted for exploratory surgery on Puffy, and Dr. Hendon anesthetized and prepared the animal for surgery. The sutures having been previously removed, upon gentle lateral pressure, the incision opened without further cutting. A blood clot was readily visible on the ventral surface of the penis, running longitudinally the length of the penis and incision area. Dr. Hendon immediately went to the lateral margins of the surgical field, where the spermatic vessels and cord were ligated, and found devitalized and necrotic tissue on both sides of the surgical field which appeared to be abnormal. He explored those areas and debrided the ligated tissues, exposing the vessels and the spermatic cord which he ligated individually. He then proceeded to examine the penis. Dr. Hendon found upon examination of the penis a deep incision into the penis which had cut the urethra, permitting urine to leak into the incision site, causing the tissue damage which he had debrided. Dr. Hendon had not used a scalpel in the area of the penis prior to discovering the incised urethra in the area of the penis, and he could not have been the cause of the injury. Dr. Hendon catheterized Puffy, and closed the incisions into the urethra and penis. Puffy recovered and was sent home the following day. Drs. Hendon and Greene testified about the standard of care in this case. It is below the standard of care to incise the penis or urethra of a male dog during a neuter because neither the penis nor the urethra should be exposed to incision during a properly performed surgery. Respondent’s medical record for Puffy did not indicate the type of gas which was administered to Puffy or that Ace Promazine was administered to Puffy. Respondent's anesthesia logs reflect the animal was administered Halothane and administered Ace Promazine, a tranquilizer. Rule 61G18-18.002(4), Florida Administrative Code, requires that a patient’s medical record contain an indication of the drugs administered to a patient. On September 13, 2002, Department Inspector Richard Ward conducted an inspection of V.I.P. Baseline Pet Clinic. The inspection revealed that Respondent failed to provide disposable towels. It was further revealed that Respondent provided insufficient lights in the surgical area of the premises. Finally it was revealed that Respondent did not have an operational sink in the examination area of the premises. Rule 61G18-15.002(2)(a)4.c., Florida Administrative Code, requires that all veterinary establishments have sinks and disposable towels in the examination area. Rule 61G18-15.002(2)(b)2.d., Florida Administrative Code, requires veterinary establishments that provide surgical services to provide surgical areas that are well lighted. On September 4, 2002, Elaine Dispoto presented her male cat Cinnamon to Respondent at V.I.P. Baseline Pet Clinic, located at 505 Northeast Baseline Road, Ocala, Florida 34470. On September 4, 2003, Respondent practiced veterinary medicine at V.I.P. Baseline Pet Clinic by providing veterinary medical services to Cinnamon. On September 4, 2003, V.I.P. Baseline Clinic was not licensed by the State of Florida to operate as a veterinary establishment. Cinnamon was presented to Respondent with complaints of vomiting and dilated eyes. The owner expressed concern that the animal had been poisoned. Respondent apparently accepted that the animal had been poisoned, and formulated a plan of treatment, because he gave the animal an IV and administered one cubic centimeter of atropine to the animal, a common antidote for organophosphate poisoning. Respondent administered subcutaneously the IV's of Ringer's lactate to the cat. The owners picked up Cinnamon from Respondent, having heard a television news report which was unfavorable about Respondent. Respondent gave the cat to Mr. James Dispoto, who observed that the cat was not doing well, although Respondent indicated that the cat was doing better. Mr. Dispoto was sufficiently concerned about the status of the cat that he took the animal immediately to Ocala Veterinarian Hospital. There the cat was examined by Dr. Fleck. Dr. Fleck found that Cinnamon was in extreme distress; lying on his side and non-responsive to stimuli. A cursory examination indicated that the animal was very dehydrated, approximately 10 percent, and passing yellow, mucousy diarrhea, uncontrollably. His pupils were pinpoint and non-responsive. Upon calling Respondent, Respondent told Dr. Fleck that on the first day he had treated Cinnamon, he had given the cat atropine, dexamethasone, and lactated Ringer's subcutaneously. On the second day, he had given the cat another injection of dexamethasone, penicillin, and lactated Ringer's subcutaneously. Based upon her assessment of the animal, Dr. Fleck wanted to get some blood work to establish what kind of state the rest of the body was in and to start an IV. The owner's consented, and blood was drawn and an IV drip started of normal saline at 25 mils per hour. While the blood work was being started, the cat had a short seizure, and within five minutes, had another bad seizure, going into cardiac arrest and died. A necropsy was performed which was unremarkable. The only significant findings were that the cat was dehydrated. There were indications the cat had received fluids along the ventral midline. The bowels were totally empty and there were no substances within the stomach, intestines, or colon. There was slight inflammation of the pancreas. Samples were taken of the pancreas, liver, kidney, and lung. Analysis of these samples was inconclusive. A cause of death could not be determined. The clinical presentation was very indicative of organic phosphate poisoning. Organophosphates are the active ingredient in certain common insect and garden poisons. However, there were no findings that pin-pointed poisoning as a cause of death. Dr. Greene testified concerning his examination of the files maintained on Cinnamon by Respondent. They reflected Respondent administered one cubic centimeter of atropine on the first day and another cubic centimeter on the second day. Dr. Greene's testimony about the administration of atropine is contradictory. He testified at one point that, based on the cat's weight, a proper dose would be about 2.5 cubic centimeters and Respondent did not give enough; however, his answer to a question on cross-examination later indicated that the amount of atropine given was more in line with what was administered. Respondent faced a bad set of alternatives in treating Cinnamon. The cat presented with poisoning symptoms and suggestions of poisoning by the owners. He could run tests and try and determine exactly what was ailing the cat. However, if he did this without treating the possible poisoning, the cat might have died from the poison before he determined what was wrong with the cat. He could begin to treat the cat for poisoning based upon the owner's representations, and perhaps miss what the cat's problem was. He cannot be faulted for treating the most potentially deadly possibility first. It is noted that a full necropsy could not pinpoint the cause of the animal's problem(s). While Respondent may have run additional tests, they would not have been any more revealing. Atropine is the antidote for organophosphate poisoning and is helpful in controlling vomiting. It is clear from the file that Respondent's working diagnosis was poisoning. He treated the cat with the appropriate drug in approximately the correct dosage. Dr. Greene testified that it was a deviation from the standard of care not to administer fluids intravenously to Cinnamon because an ill patient may not absorb fluids through subcutaneous injection. Based upon Dr. Fleck's discussion of the issues involved in administering fluids intravenously, it does not appear nearly so clear cut as Dr. Greene suggests, but is a matter of professional judgment. Dr. Greene testified it was a deviation from the standard of care to administer lactated Ringer's solution to Cinnamon instead of sodium chloride or normal saline. Again, the choice of normal saline versus lactated Ringer's is one of professional judgment and not standard of care. Dr. Greene opined that it was a deviation from the standard of care to administer only 300ml of fluids to Cinnamon because 300ml is an insufficient amount of fluids to treat for dehydration or to even sustain Cinnamon under the circumstances. Dr. Greene assumed that the all of the hydration was via "IV." The testimony was that the cat did take some water orally; therefore, Dr. Green's predicate was flawed. Respondent administered dexamethsone to Cinnamon. Respondent failed to indicate that he administered dexamethasone in Cinnamon’s record. It is a deviation from the standard of care to fail to indicate the administration of dexamethasone in a patient’s record. Respondent administered penicillin to Cinnamon. Respondent’s records for Cinnamon indicate that he administered penicillin-streptomycin to Cinnamon. Respondent's records for Cinnamon indicate that Respondent did not check on the animal frequently, which, given his condition and the multiple problems which the cat was suffering, was a failure to render the standard of care necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Board enter its final order: Finding that Respondent violated the standard of care in treating Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(r), and imposing an administrative fine upon Respondent of $2,000 for each violation; Finding that Respondent violated the requirement to keep adequate records with regard to Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(ee), and imposing an administrative fine upon Respondent of $1,000 for each violation; Finding that Respondent violated the requirement to obtain a license for a premises, contrary to Rule 61G18- 15.002(2), Florida Administrative Code, which is a violation of Section 474.214(1)(f), and imposing an administrative fine upon Respondent of $2,000; Finding that the record of Respondent's previous violations and the violations found above reflect that he is unqualified and unfit to practice veterinary medicine in the State of Florida, and revoking immediately his license, without leave to reapply; Requiring Respondent to pay costs incurred in the investigation and prosecution of these cases in the amount $5,697.96, plus the costs incurred at the final hearing; and Opposing any effort by Respondent to practice veterinary medicine while an appeal in this case is taken. 28 DONE AND ENTERED this 14th day of October, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ STEPHEN F. DEAN 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 14th day of October, 2003. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Tiffany A. Short, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Thomas V. Infantino, Esquire 180 South Knowles Avenue, Suite 7 Winter Park, Florida 32789 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 29 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 2399-2202
The Issue Whether Respondent's veterinary license should be disciplined.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed doctor of veterinary medicine, having been issued License No. VM 0003845 by the Board of Veterinary Medicine on July 1, 1985. During his career, Respondent has taught at the University of Florida veterinary school, developed patents in the field of veterinary medicine, performed research in the veterinary field, and become certified in veterinary laser surgery. Because he does research and because his wife/veterinary partner frequently provides follow-up care, Respondent is a meticulous record keeper. Precious was a grossly obese, 11-year-old, female English bulldog. She was owned by the Salters and had been previously treated by the Respondent. In fact, the Salters were friends of some of the clinic's staff who treated her. On July 7, 1999, the Salters brought Precious to Respondent for emergency treatment. Precious was experiencing respiratory distress and had cyanotic mucous membranes indicating a lack of oxygen. Her condition was growing worse and life-threatening. Because of the emergency nature of Precious' condition, Respondent immediately began a physical examination of the dog to determine what was causing her inability to breath properly. At the same time, Respondent began a series of notes on Precious' record of treatment and examination. The notes contained in the record of treatment and examination are clearly preliminary and hurried. Some of the writing is that of other clinic staff. Most of the writing is Respondent's. The notes are consistent with the frenetic nature of the emergency. They included a checklist of various possible tests and treatments to be performed by Respondent or clinic staff, general impressions of the dogs physical condition, and possible medical causes to be ruled in or out (that is, tonsilar lymph nodes, soft palette resection, and tonsillectomy). The record, while lacking some information, does contain sufficient information to reflect Precious' condition, diagnosis, and course of treatment. Throughout the time Precious was at the clinic, the clinic staff or Respondent performed the various tests and treatments listed in the record of treatment. As each task was completed the task was checked off the checklist and results filled in, if possible. If it was not possible to fill in the results on the record of treatment, results would be noted by another method such as medical reports, logs, or note cards. In fact, Respondent makes notes regarding treatment, results, etc., of a particular animal on index cards because the larger, more formal veterinary record of an animal is often not carried around to the different places where an animal may be located in the clinic. The index cards are small and can be carried in Respondent's shirt pocket. Use of the cards was the record keeping procedure taught to him while in veterinary school at the University of Florida and is his primary contemporaneous record for an animal. Information on the note cards would later be recorded in an animal's permanent file. Respondent followed this process with Precious. However, Respondent's note cards for Precious are missing. Respondent's entries in Precious' medical record reflect some of the measures that were taken to save Precious' life. One such measure was to place Precious on an IV of lactated ringer solution (LRS in the record of treatment). However, no amount of solution was listed because when the note was made, placement of the IV was a task to be done, and the amount of solution would have been initially recorded on the index cards for Precious once treatment was complete for later entry in Precious' permanent record. Indeed the amount of solution was written on Respondent's note cards for Precious. The physical examination of Precious revealed that she had aspirated part of her mouth tissue in the epiglottis pharyngeal area of her mouth. The loose tissue appeared to be scar tissue from a previous operation or a tumor. Such loose tissue is not uncommon in English bulldogs and was exacerbated in Precious due to her obesity. Because the tissue was blocking her airway, Precious was put under anesthesia for placement of an intratrachial tube to open an airway, to complete a non- invasive ultrasound examination and to begin preparation for removal of the loose tissue. Information on the type and amount of anesthesia was kept in the controlled substances medication list and a missing anesthesia log for heart and respiration, as well as the missing index cards kept by Respondent. After placement of the tube inside Precious' airway, her condition began to improve. However, she was still in a very critical, life-threatening condition. At 2:00 p.m. Precious went into cardiac arrest. Epinephrine and Doxapram, medications used to control cardiac arrest, were administered and cardio-pulmonary resuscitation was performed. The amounts of the Epinephrine and Doxapram were not recorded in the record of treatment but were recorded on the missing note cards. Precious recovered from her cardiac arrest and was somewhat responsive to external stimuli. However, she was not aware of her surroundings and had dilated pupils. She did not recover from the coma and, subsequently, was euthanized with the owners permission. Again the amount of euthanasia solution was written on the Respondent's index cards. Because of the monitoring Precious required during the day and the other requirements of other patients at the clinic, Respondent placed Precious' permanent veterinary record and his index card notes on his desk so that he could permanently record the information in Precious' permanent file. Respondent could not finalize Precious' record until two days later because of the work load at the clinic. However, when Respondent went to finalize the record, he discovered that Precious' veterinary record, along with his index card notes and various logs and reports regarding Precious, had been stolen from his office. The office and premises were thoroughly searched by Respondent, his wife, and clinic staff. No records were found. Approximately three weeks later, part of the veterinary record reappeared at the clinic. However, it was apparent that some records in the recovered file were altered or were missing. The 3 x 5 index cards of Respondent's notes were missing. The dog owner's standard consent form for procedures on July 7, 1999, was missing and the original anesthesia log was missing. The anesthesia log, which was returned with the file, was prepared by another person who did not perform clinical tasks at the clinic. The log did not contain entries for heart and respiration which had been made by either Respondent or his assistant, Ric Berlinski. For unknown reasons a false log had been substituted for the original log by whoever had taken or had the file during its absence from the clinic. Respondent reasonably did not trust his memory to complete the veterinary records on Precious. Respondent made a decision not to change the recovered records in any manner lest he be accused of altering the records knowing that other parties may have copied the records in addition to removing and altering certain records. He felt not adding to the records was reasonable since there was no future need for the records to treat the deceased animal, the record would not be used in any research and had no educational purpose. In fact, neither the statute nor rules of the Board contain any guidance on the action a veterinarian should take under circumstances where a veterinarian, through no fault of his own such as theft, fire or disaster, is prevented from completing or maintaining an animal's veterinarian record. In response to the Salters' complaint in regard to Precious' treatment, Respondent was requested to provide Richard Ward, the investigator for the Department of Business and Professional Regulation, with records relating to Respondent's treatment of Precious. Respondent failed to inform Mr. Ward that Respondent believed the records had been tampered with or that he believed the medical records had been stolen. Respondent also failed to provide Mr. Ward with the controlled substance log containing the entries relating to the treatment of Precious because he did not ask for it. At the time, given the complaint, Respondent did not wish to and did not think it prudent to speak with the Department's investigator absent the advice of legal counsel. Therefore, he did not tell the investigator about the problems with the record. Respondent did not mislead the investigator and did not violate any statute or rule of the Board.
Recommendation Base on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent not guilty and dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of September, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 4th day of September, 2002. COPIES FURNISHED: C. Robert Edewaard, Esquire Post Office Box 2297 Gainesville, Florida 32602 Tiffany A. Short, Esquire Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues to be resolved in this proceeding concern whether disciplinary action should be taken against the Respondent's license to practice medicine based on allegations that the Respondent violated the standard of care, specifically Subsection 458.331(1)(q) and (t), Florida Statutes, by allegedly inappropriately or excessively prescribing legend drugs and by failing to practice medicine with that level of care, skill and treatment recognized as acceptable by reasonably prudent physicians under similar conditions and circumstances. It must also be determined, if any of the alleged violations are proven, what, if any, penalty is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the entry into practice and the regulation of practice of licensed physicians in the State of Florida. That statutory authority includes ascertaining whether physicians practice in accordance with the appropriate standard of care, including determinations of whether and to what degree disciplinary sanctions should be imposed, by standard set forth in Subsection 458.331, Florida Statutes. The Respondent at all times material hereto has been a licensed physician in the State of Florida. He holds license No. ME0010390. The Respondent is board-certified in surgery and thoracic surgery and has been most recently employed by the Department of Corrections (DOC) as a physician and Assistant Medical Director at the NFRC. This is a DOC facility in Lake Butler, Florida, which medically screens and processes prison inmates before they are transferred to a permanent prison location. It also provides, through a 130-bed hospital, care and treatment for inmates around the state for non-emergency conditions. The NFRC hospital does not have an intensive care unit but the DOC has a contract to provide care for emergency or complicated medical cases with the Memorial Medical Center in Jacksonville for the performance of any complex or emergency surgeries. The DOC contracted with a private company to provide surgical facilities at the NFRC for minor surgery. This includes hernia repairs and liver biopsies. The private facility maintains a "mobile surgical unit" located a few hundred yards from the NFRC hospital. This unit is not designed for serious post-surgical complications. In order to perform any surgery at this mobile surgical unit an independently-contracted surgical consultant must request the DOC to approve the surgery. Then the requested surgery must be reviewed and approved through a utilization management process. Finally, the recommended surgery is reviewed by Dr. Azcuy, the Medical Director of NFRC. Dr. Azcuy has veto power on any surgery performed at the mobile surgical unit. Once he approves a surgery, an independently contracted surgeon performs the surgery at the mobile surgical unit. After surgery is completed at the unit the patient is then taken back to the NFRC hospital where DOC employees provide follow-up care and treatment. The Respondent, as Assistant Medical Director of the NFRC hospital, is such a DOC medical employee. The Respondent, Dr. Vontz, was born May 31, 1930, in Germany. He grew up and was educated in pre-war, war-time and post-war, occupied Germany. He received his medical education at Universities in Hamburg and Freiburg, Germany, as well as at the University of Florida and the University of Michigan in the United States. He has been an Assistant Medical Professor at the University of Florida/Shands Medical Center and is board- certified in surgery and in thoracic surgery. He became a United States citizen in 1961 and located his practice primarily in Jacksonville, Florida. He practiced thoracic surgery in Jacksonville, Florida, from the early 1960's until his initial retirement on December 31, 1993. He was primarily responsible for organizing and initiating the first cardiac surgery unit and surgical team in Jacksonville, Florida. His practice involved any type of surgical intervention in the chest cavity including heart, lungs, major vessels, diaphragm, as well as open-heart surgery. He performed open-heart surgery in Jacksonville from 1965 to 1993. After initially retiring from the performance of heart surgery in 1993, Dr. Vontz was unsatisfied with retirement and returned to work as the medical director of Methodist Medical Center in Jacksonville. As Medical Director he supervised physicians and observed and monitored their manner and means of practice. He also became medical director of Champion Health Care, a Health Maintenance Organization (HMO). When Champion Health Care closed its operations in Jacksonville due to financial circumstances in 1996, Dr. Vontz went to work as an employed physician at NFRC as Senior Physician and Assistant Medical Director. He was thus an employee of the Department of Corrections at that point. Dr. Vontz stays current in knowledge of medicine and proper medical practice by participating in continuing medical education. He has never before been the object of a complaint concerning his medical practice and his rendition of medical care for patients. The Surgical Procedures A liver biopsy is a sampling of the tissue of the liver. A percutaneous liver biopsy can be performed with a closed abdomen, involving no incision. It can be done "blindly" meaning without a CT scan or laproscopic instrument for guidance of the insertion and placement of the biopsy needle device. The standard of care requires a surgeon to continue making passes or inserting a needle until an appropriate sample in obtained. The requirement of making three passes of the needle to obtain an adequate sample is probably within the standard of care. The making of four passes, as was the case with this patient, T.C., may or may not be within the standard of care. The standard of care does not specifically determine the number of passes permitted or required. The procedure for a percutaneous liver biopsy involves the use of a "trecut needle." That is a needle with a hollow metal sheath designed to allow the insertion of the needle device into the liver with the hollow sheath taking a core sample of the liver tissue, which is then withdrawn for laboratory analysis. The appropriate standard of care for such a liver biopsy, done blindly, is for the patient to be in a sitting position. This allows gravity to force the organs, including the colon and intestine in the area of the liver, to fall away from the vicinity of the liver somewhat so as to avoid some of the risk of puncturing a hollow intestine or "hollow viscous" organ with the needle. The standard of care would also require that the procedure be done under a local anesthetic so that the patient remains conscious and can demonstrate to the surgeon performing the procedure through reaction to excessive pain, etc., when the procedure may have gone awry through improper placement of the needle device. The two surgical procedures performed on patient T.C. were the percutaneous liver biopsy, with a trecut needle, and a left, inguinal hernia repair. These procedures were performed on the same surgical occasion and were performed under a general, endotracheal anesthesia with the patient on the operating table in a supine position for both procedures. Patient T.C. was a 33-year-old male. He had a left, inguinal hernia which required repair and the attendant liver biopsy procedure was performed on him because he suffered from "Hepititis C." The procedures were performed on April 14, 1998, at 8:30 a.m. by Dr. Zomorodian, a board-certified surgeon and independent contractor for the DOC. The liver biopsy in the upper quadrant required four "runs" or "passes" in order to obtain a specimen. A "gooey substance" was obtained in the trecut biopsy needle. On April 14, 1998, at approximately 9:30 a.m., right after the surgical procedures were performed, Dr. Zomorodian wrote a hand-written operative note reading in pertinent part as follows: "percutaneous biopsy of liver done first the patient tolerated the procedures well- to recovery room in stable condition." This hand-written operative note was the only report of any kind available to the Respondent from Dr. Zomorodian, the operating surgeon, concerning patient T.C. On that same day however, Dr. Zomorodian also a dictated a more detailed operative report. The operative report indicated that a "gooey substance" was obtained during the liver biopsy. Operative reports, in the normal course of business, have to be typed and filed by the administrative staff and are not generally available for approximately three days. That was the case in the instant situation and the operative report was not available at any pertinent time to the case at hand for Dr. Vontz's benefit. Although the extraction of a "gooey substance" does not automatically mean that a bowel or hollow viscous organ has been perforated by the biopsy needle, for instance it could possibly have been a substance obtained from the diseased portion of a patient's liver, it is a strong indication that a hollow viscous organ, for instance the colon, has been penetrated by the needle. The presence of the gooey substance in the biopsy needle specimen should have placed T.C.'s surgeon, Dr. Zomorodian, on notice that a complication had occurred during the liver biopsy, including the likelihood of perforation of a hollow viscous organ such as the colon or other intestinal portion. It is significant that Dr. Zomorodian, after patient T.C.'s death, asked the hospital staff to change his dictated and typed operative note to remove reference to the "gooey substance". The DOC's hospital staff refused to do so. The operative procedures were finished by 9:23 a.m. on April 14, 1998. The patient was removed to the recovery room of the mobile surgical unit and at 9:43 a.m. was given 50 milligrams of Demerol intravenously for pain. At 10:30 a.m. he was moved from the surgical unit to the second floor of the NFRC hospital. Dr. Zomorodian expected him to have pain subsequent to the liver biopsy and hernia repair. At 9:30 a.m. that morning he ordered Demerol in the amount of 75 milligrams with Phenergan intramuscularly on an as-needed basis for pain and also ordered Tylenol No. 3, one or two tablets every three hours for pain. Tylenol No. 3 contains codeine. This analgesic pain medication order by Dr. Zomorodian, according to normal written protocol for the hospital, was to be in effect for three days. Post-Operative Care On April 14, 1998, during the course of the day after surgery, T.C. complained of pain. He was given Demerol and Phenergan (25 milligrams) at 11:00 a.m., 2:30 p.m., and 10:00 p.m., in accordance with Dr. Zomorodian's standard medication order and protocol. Phenergan is a drug used to accentuate the effect of Demerol. T.C. at age 14 began to use marijuana and to drink alcoholic beverages at the age of 16. By age 20 he had started cocaine use. As shown by Dr. Lynn's testimony a patient with a drug history such as this is more resistant to pain medications and requires more of them to alleviate pain than someone who has not used such drugs on a frequent and recurring basis. T.C., in the recovery room, was given 50 milligrams of Demerol intravenously. Dr. Lynn established that this medication approximately an hour after surgery would be abnormal for a hernia repair and an uneventful liver biopsy, if such were the case, especially after receiving 20 cc's of 0.5% marcaine containing epinephrine at the end of the operation in addition to the general anesthetic which has it own pain reliever in it. The installation of the marcaine with the epinephrine should have alleviated any immediate wound pain associated with the surgical procedures. During the afternoon of April 14, 1998, the Respondent was asked by the charge nurse to examine T.C. because of her suspicion that T.C. was complaining of pain merely as a ruse to obtain drugs. The Respondent assessed the patient and determined that his complaints of pain were genuine and so he continued the medication order according to Dr. Zomorodian's standing order. Dr. Vontz had no reason to believe that the patient was having any complication or acute distress at that point and therefore went home at his usual time of approximately 4:00 p.m. His normal working hours were 7:00 a.m. to 4:00 p.m. Other senior physicians and emergency room physicians were present or on-call during evening and early morning hours under the standard operating procedure of the hospital. Dr. Vontz returned to the hospital at approximately 6:30 to 7:00 a.m. on the morning of April 15, 1998, and saw the patient at 7:15 a.m. The pain medication had been continued according to Dr. Zomorodian's order with the last Demerol injection, with Phenergan, occurring at approximately 4:05 a.m. that morning. The patient had not urinated during the day on April 14 until approximately 5:00 p.m. when he voided 300 cc's of urine with pain. When the Respondent examined the patient at 7:15 a.m. on April 15 he found and noted in his record: "abdomen tightly distended ?? rebound. Will treat as acute abdomen and follow closely." An abdomen described as "tightly distended" means that the abdomen is tense, firm and swollen. "Rebound" means that the physician has placed pressure on the abdomen with his fingers and upon release of the pressure the patient has pain. "Acute abdomen" is severe abdominal pain that could occur for a number of reasons. It could be a potentially catastrophic event needing immediate surgical intervention (abdominal exploratory surgery). It may be caused by a disease process secondary to a perforated bowel or ruptured appendix for which immediate surgery is indicated, or it may result from conditions such as a subscapsular hematoma (blood under the membrane capsule enclosing the liver), an ileous or blockage of an intestine, or may be pain resulting from a "shutdown" or failure of bowel function. It is not uncommon when abdominal surgery, even a hernia repair, has occurred that for a certain period of time, due to possible contact with the bowel during surgery, that the bowel will simply cease to function temporarily or have a halt to the peristalic movement of the bowel. Dr. Vontz thus made a decision to treat T.C. condition as an acute abdomen and then follow the patient closely to try and diagnose whether the abdominal distress was caused by a catastrophic event such as a perforated bowel requiring surgical intervention (surgically acute abdomen) or whether some other non-infectious disease process or condition was occurring causing the abdominal pain in which case it would be termed and diagnosed as a "medically acute abdomen," not necessarily requiring surgical intervention. Thus the standard of care required that the Respondent attempt to determine the underlying cause of the acute abdomen which he did by ordering a number of diagnostic tests or procedures. He also placed the patient at "NPO," meaning no nourishment or liquids by mouth. He ordered fluids administered intravenously at the rate of 150 cc's per hour, ordered an upright and "flat plate" X-ray of the abdomen and chest and additionally ordered a "stat CBC" meaning an immediate complete blood count. The stat blood count was designed to show whether white blood cell counts were elevated, which would indicate that an infectious process was going on which would require surgical exploration to determine if the colon and/or another organ had been penetrated, required repair and emergency treatment for infection. At 11:10 a.m. on the morning of April 15, Dr. Vontz also ordered a catheterization for T.C. because of the previously noted problem of low urine output. At 12:15 p.m. Dr. Vontz met with the radiologist, Dr. V. M. Saenz, and evaluated the chest and abdominal X-rays. It was their joint opinion that the chest X-ray was not remarkable. The abdominal X-ray did not show any air or fluid levels which the Respondent would expect if a perforated bowel had occurred. The presence of air (gas) or fluid would indicate the perforation of a hollow viscous organ, such as the colon. The X-ray did show a large amount of feces in the colon however. Because of the history of the recent liver biopsy the possibility of a subcapsular hematoma of the liver was considered. A subcapsular hematoma is the accumulation of blood and fluid within the membrane capsule surrounding the liver and could occur due to bleeding from the penetration of the liver by the biopsy needle. In order to investigate that possibility a CT scan of the abdomen was ordered by the Respondent and performed. The CT scan was requested on an emergency basis and performed at 1:47 p.m. on April 15. A CT scan images a patient in "slices" giving a three dimensional picture of the area in question so that the patient can be observed for any abnormalities. Drs. Vontz and Saenz interpreted the CT scan of the abdomen as follows: . . . a crescent-shaped, hypodense collection of fluid is demonstrated along the supra lateral portion of the liver. Although this could correspond to a liquefied subcapsular hematoma taking into consideration that the liver biopsy was performed yesterday . . . would expect this to be of higher density . . . there are also several fluid filled distended loops of small bowel in the left upper quadrant which most probably correspond to jejunum. Because, in effect, the collection of fluid referenced in this quoted note is not of sufficient density to be recognized as a collection of blood along the supra lateral portion of the liver, it was determined that this was serum or other fluid. Thus on April 15th at 4:00 p.m. Dr. Vontz ruled out a subcapsular hemorrhage, thus ruling out both blood and "free air" in the abdomen. In cases where the colon or other hollow viscous organ is penetrated the presence of "free air" or gas is noted in approximately 75% of the cases. Thus the lack of it is indicative, although not conclusive, of the lack of a perforation of a hollow viscous organ. When the Respondent saw the patient at 7:15 on the morning of April 15th and ordered the stat CBC the blood count was then made, some 22 to 24 hours post-surgery. The blood count showed a white blood cell count of 4.6 with the upper end of the normal range being 12.3. Thus the white blood cell count, a marker for infection, appeared entirely normal. The neutrophil portion of the blood count revealed a slightly elevated reading or a slight abnormality. Neutrophils are immature white blood cells which, if abnormally high, can indicate the presence of infection. Because they were only slightly elevated that did not really indicate infection to the Respondent since they can normally occur after surgery. A slight elevation can normally be attributed to atelectasis, a condition associated with the fact that the patient had had a general anesthesia and therefore somewhat decreased lung function as well as an abdominal operation which subsequently resulted in severe pain in the abdomen, which can cause a slight elevation in the neutrophil count. The normal white blood cell count, with only a slight increase in neutrophil reading and the absence of any significant elevated temperature on April 15th understandably resulted in the Respondent's not concluding that any infectious process was going on at that point. This is certainly an abnormal presentation of symptoms by a patient, who upon autopsy, was proven to have had a large, two centimeter perforation of the colon, with a massive peritonitis infection. In such a patient it is highly unusual for more blatant signs of an infectious process, including a significantly elevated, white blood cell count, not to have occurred 24 hours after the surgical procedure which resulted in the perforation. On April 15th at 4:00 p.m., Dr. Vontz ruled out a subcapsular hematoma or hemorrhage and ruled out blood and free air being present in the abdomen. The CT scan however, did show the presence of a fluid collection in the vicinity of the liver, as found above. Also on April 15th at 5:00 p.m., Dr. Vontz ordered the placement of nasogastric tube in the patient in order to prevent his swallowing air and causing further distention of the alimentary tract. At 7:00 p.m. that evening the patient removed the nasogastric tube on his own and refused to have it replaced. He was uncooperative with care throughout that shift even when the nurse explained the necessity of his treatment. On the morning of April 15th at 6:30 a.m., just before the Respondent saw him, T.C.'s vital signs were within normal limits. At 1:25 p.m. that day, some 29 hours after the liver biopsy, his vital signs were still within normal limits. His blood pressure was 134/88, his temperature was 97.4, his heart rate was 110, and his respiratory rate was 20 at 1:25 on April 15th. Thus he was still not demonstrating an infectious process some 29 hours after the surgical procedure involved. On April 15, 1998, at approximately 5:00 p.m. the patient's abdomen remained distended, without audible bowel sounds and he continued to complain of pain. His urine was dark and concentrated. Once again, in accordance with Dr. Zomorodian's orders, was given Demerol at approximately 5:00 p.m. on April 15th. On April 16, at approximately 6:25 a.m., T.C. was restless and continued to complain of severe pain, he was again given Demerol. At 6:22 a.m. on the morning of April 16th approximately 46 hours subsequent to the liver biopsy, his vital signs were still within normal limits. At 8:00 a.m. that morning Dr. Vontz ordered that he be maintained on NPO status; that intravenous fluids be decreased to 100 cc's per hours and that he be given a dulcolax suppository because of his bowel status. T.C., as a result, had a large emptying of the bowel, which made him feel grossly better. During his interview with Dr. Vontz at approximately noon that day he was able to stand at his bedside and sit by his bedside and converse with Dr. Vontz. At 8:45 that morning of April 16th, Dr. Vontz had ordered a "stat Chem 20 test." The "Chem 20" revealed hemoconcentration or concentration of the blood, which indicated dehydration. At 12:40 p.m. on April 16th, Dr. Vontz ordered a foley catheter inserted in the patient's bladder and ordered another Chem 20 test of his blood for April 17th. He also ordered clear liquids for T.C. since he seemed to be feeling better after the bowel movement and the Respondent felt he could take clear liquids by mouth. His urine output remained low and at 1:00 p.m. on April 16th, Dr. Vontz ordered a urine culture and sensitivity study. The urine culture was ordered by the respondent by telephone upon a nurse contacting him because he was at an in-service training seminar some half-mile away from the patients hospital floor at that time. By 1:00 p.m. the patient was very restless, becoming somewhat confused and was tachycardic, which means increased heart rate. His heart rate was as high as 159 beats per minute. He had a respiratory rate of 28 and a blood pressure of 94/64 in the afternoon of the 16th. In addition to ordering the urine culture, an electrocardiogram was performed on the patient, ordered approximately at 1:00 p.m., which revealed abnormal tachycardia. Dr. Vontz listened to T.C.'s bowel sounds on both the morning of the 15th and the morning of the 16th. His bowel sounds were returning to normal on the morning of the 16th and after receiving the suppository T.C. had a bowel movement, which gave the Respondent the impression that the patient was improving. Clinically, he exhibited no nausea, vomiting, or any sign of bowel obstruction. The low urine output and the tachycardic condition along with the elevated respiratory rate and depressed blood pressure after 1:00 p.m. on the 16th showed that the patient, however was becoming more critically ill. In retrospect it is apparent that he was in septic shock. Dr. Vontz last visited the patient at 4:30 p.m. on the 16th. He determined that he should be transported to Memorial Hospital for more aggressive care, including surgical exploration of the abdomen to attempt to determine the cause of his condition. The Respondent elected however, because of the lateness in the day to avoid confusion and discontinuity in his care and treatment by having him transported early the following morning. Dr. Vontz felt there would be less likelihood of delay or interruption in the level of care for the patient than if he arrived at the critical care hospital in the middle of the evening. After seeing the patient at approximately 4:30 p.m., Dr. Vontz went home but remained in telephone communication with the hospital, medical staff and the registered nurse on duty. At approximately 8:15 p.m. on the 16th Katherine Kravitz, R.N., called Dr. Vontz informing him that T.C. had "spiked a fever," measured at the axcilla (armpit) at 103 degrees. She also advised the Respondent that the Chem 20 test had been returned and demonstrated a BUN of 55. Dr. Vontz determined that this demonstrated hemoconcentration, indicating dehydration. Dr. Vontz therefore increased his fluids intravenously to 150 cc's per hour. He also ordered Lasix to be provided, as a "one-shot" medication, because he was concerned about T.C.'s kidney function being substandard, in view of the rising BUN reading and because the fluid was being increased to 150 cc's per hour. He wanted to be sure that T.C. was able to void sufficient urine to accommodate the increase in intravenous fluid. He learned that T.C. had adequate kidney function to accommodate the increase in IV fluid administration. He also ordered at this time that T.C. be given Fortaz at 1 gram every 8 hours intravenously. Fortaz is an antibiotic specifically designed to attack abdominal infectious processes especially attributable to escherichia coli (e-coli) contamination in the abdomen. Dr. Vontz was of the belief that the sudden temperature elevation indicated that there had been a sudden burst of infection. Up to the point of the telephone call at 8:15 the evening of the 16th T.C.'s temperatures had not been significantly elevated, although other of his vital signs on the afternoon of the 16th had indicated abnormality, involving low blood pressure, elevated respiratory rate and tachycardia, as found above. Dr. Vontz called nurse Kravitz at 11:00 p.m. on April 16th and learned that T.C.'s temperature was down from 103 to 100.6 degrees. This led him to believe that the antibiotic administration and the IV fluid therapy was improving the patient. Earlier on April 16th at approximately 4:30 p.m. in response to the patient's restlessness and continued severe pain the Respondent had ordered Ativan and Morphine, as well as placing him in restraints and a posey vest. The Ativan and restraints were ordered because of his restlessness and anxiety. The Morphine is a narcotic stronger than Demerol in its analgesic properties. Patient T.C. at 6:00 p.m. that day was still confused and his urine was dark amber in color, indicating dehydration. Throughout the late night of April 16, 1998, the nursing notes indicated that the patient was moaning and groaning without verbal response and was no longer fighting against his restraints. In retrospect it is clear that he was dying. The information given Dr. Vontz when he called the nurse to check on the patient at approximately 11:00 p.m. on April 16th, and learned that the patient's temperature was down to 100.6 and that his other vital signs were returning to normal levels, indicated to him that the antibiotic and intravenous fluid therapy was helping the patient to improve. Curiously, the hospital records indicate that on the early morning of April 17th at 1:15 a.m., the patient's temperature was 100.6, his pulse rate was down to 80, and his respiratory rate was 24 with blood pressure at 100/60, indicating vital signs returning to normal levels. At 3:45 a.m. on April 17th however, T.C. was found to be without vital signs and was shortly thereafter pronounced dead. Thus, within 55 hours of the attempted liver biopsy by Dr. Zomorodian, T.C. was dead. Upon autopsy, it was found that he had a two centimeter diameter hole in his colon which caused significant release of e-coli bacteria into T.C.'s abdominal cavity, resulting in massive, acute bacterial peritonitis. Dr. Vontz arose at his home at approximately 4:00 a.m. on the morning of April 17th to go to the hospital to arrange for the patient's transfer to the acute facility at Memorial Medical Center. He was shocked to arrive and find that the patient had died. The patient had been seen on the night of the 16th and early morning of the 17th by the emergency room physician on duty, Dr. Edwards. Emergency room physicians are involved in continuing the treatment of in-house patients at NFRC when attending physicians are off-duty. Analysis of Responsibility The medical examiner, Dr. Hamilton, who performed the autopsy on T.C. found the two centimeter hole in the proximal transverse colon. The proximal transverse colon is on the right side of T.C.'s body adjacent to the liver. This clearly demonstrated that the attempted liver biopsy by Dr. Zomorodian caused the perforation of the colon in the vicinity of the liver. The patient had been given 50 milligrams of intravenous Demerol at 9:43 a.m. by Dr. Zomorodian's order. This need for medication only approximately an hour after surgery would be abnormal for a hernia repair and an uneventful liver biopsy. Less than an hour after receiving this Demerol T.C. was moved out of the surgical unit recovery room and taken to "two West" in the NFRC hospital. When transferred to the NFRC hospital it would have been certainly appropriate for Dr. Zomorodian to admonish, in his post-operative note, as testified to by Dr. Lynn, that "we may have caused this patient some problems, we did four sticks, we came back with a gooey substance, watch this patient carefully." Instead Dr. Zomorodian only made a cryptic post- operative note to the effect that the liver biopsy was done, with no more description than the fact that it was done. Although he dictated and had typed a more elaborate post-operative note that mentioned the gooey substance, this was not available at any time to Dr. Vontz during his care of the patient. Moreover, Dr. Zomorodian attempted to have the reference to the gooey substance edited out of his post-operative note, which the hospital staff quite correctly refused to do. The surgeon performing the surgical procedures, under the protocol of the American College of Surgeons and the NFRC protocol should not delegate post- operative care to someone else, under normal circumstances. If that surgeon cannot be involved in the post-operative care, he must communicate in a very clear and unequivocal fashion, to one who has been delegated the post-operative care, all information concerning the surgical procedure and the care of the patient while the patient was under his care and treatment, which Dr. Zomorodian did not do. It was thus incumbent upon Dr. Zomorodian to make certain that there was effective follow-up care for his patient but there is nothing in the record to indicate that Dr. Zomorodian ever called anyone associated with the NFRC hospital, post-operatively, to check on his patient or to provide them information concerning the patient. Be that as it may, the Respondent, in the absence of any information from Dr. Zomorodian, in following the appropriate standard of care, should have contacted Dr. Zomorodian as the surgeon of record during the course of the care of T.C., and he failed to do so. Dr. Vontz also departed from the appropriate standard of care in several other particulars. First, he failed to adequately recognize and act on the knowledge produced by the CT scan that there was a fluid collection, which did not appear to be blood, in the vicinity of the liver. This clue, learned by the Respondent and the radiologist at approximately 4:00 p.m. on April 15th would seem to indicate that aggressive, surgical intervention early in this patient's course of care was in order. Moreover, in the face of the patient's continuing symptoms, and even though the initial complete blood count did not show an elevated white cell count, and thus did not seem to indicate infection, a later CBC should have been ordered on April 15th or even April 16th; particularly on the morning of April 16th in a continuing effort to rule out an infectious process beginning in the patient. This was not done after the initial CBC was obtained on the morning of April 15th. Additionally, compliance with an appropriate standard of care would dictate that by the early afternoon of April 16th, with the presence of tachycardia, depressed blood pressure, elevated respiratory rate, and the continuing severe abdominal pain, that the Respondent should have transferred the patient to Memorial Medical Center that afternoon for more aggressive treatment. The decision to transfer him did not occur until early in the evening of the 16th and then the Respondent, for the reasons found above, decided not to effect the actual transfer until early the following morning, by which time it was, of course, too late. Although the Respondent was not clearly alerted to an infectious process until the high temperature which occurred after 8:00 p.m. on the night of the 16th, the other critical symptoms earlier in that afternoon should have compelled him to have the patient transferred to the acute care facility. Indeed, if a CBC had been ordered to look at white blood cell count earlier on the 16th or even on the afternoon of the 15th the progress of the infection might have been detected even though it was not resulting in any significant increase in body temperature. Thus, in these particulars, the Respondent must be found to have violated the appropriate standard of care as well as in the fact that during the day on April 16th he did not make progress notes outlining his treatment plan. That is not a finding that he had no treatment plan, however. Taking a more prophylactic, cautious view of the results of the CT scan and the ordering of an additional CBC on late April 15th or early on April 16th might have pointed him toward a finding of the existence of a surgical problem rather than a medically acute abdomen problem. This would have impelled him to effect aggressive surgical intervention earlier, with the possibility of saving the patient. In fairness to Dr. Vontz it should be pointed out that infectious peritonitis is a rapid and devastating illness, but death within the third day of contamination is a bit rapid and unusual. Moreover, traditionally a patient experiencing one or more perforations of the colon usually evolves a clearly discernable infectious process around the 24th hour after the perforation occurs. The medications ordered and administered by the surgeon, Dr. Zomorodian, could have masked some symptoms and led the later care-giver astray as to the evolving signs and symptoms of a perforated viscous for a time. T.C.'s infectious process presented in an unusual manner. A typical patient would demonstrate severe illness, with nausea, vomiting, and severe pain. In the vast majority of cases he would exhibit free air or gas under the diaphragm and would have an elevated white blood cell count fairly early, with associated elevated body temperature or fever and chills. Dr. Vontz indeed considered the issue of a perforated bowel and performed the above-found tests in an effort to find evidence of it. He believed the test results, including the complete blood cell count did not produce evidence to support the existence of a perforated bowel. In fact, however, the abnormality on the CT scan involving hypodense fluid in the vicinity of the liver should have alerted him to that potential and he should have ordered an updated complete blood cell count which might have told him of the advancing infectious process at an early enough time to have saved the patient. In fact, the evidence demonstrates that the time period between 12 hours and 48 hours after such a perforation and inoculation with e-coli bacteria occurs is critical and that after 48 hours without aggressive, surgical intervention it is improbable that such a patient can be saved. A more aggressive approach to the result of the CT scan abnormality, an updated complete blood cell count and contact with the surgeon involved would have been a more appropriate standard of care and might have compelled Dr. Vontz to have acted more quickly in having the patient transported for more critical intensive care.
Recommendation Accordingly, having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore, RECOMMENDED: That a final order be entered by the Board of Medicine finding the Respondent guilty of violating Subsection 458.331(1)(t), Florida Statutes, in the above-found and concluded manner, and not guilty of violating Subsection 458.331(1)(q), Florida Statutes, and that, as a penalty therefor the Respondent shall: Complete 50 hours of continuing medical education in surgery; Complete the Florida Medical Association Quality Medical Records Course; Remain on a probationary status for a period of one year with the probationary term to require a review of 25% of the Respondent's medical records by a supervising physician approved by the Board of Medicine. DONE AND ENTERED this 19th day of July, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 19th day of July, 2000. COPIES FURNISHED: Kristy Johnson, Esquire Department of Health Post Office Box 14229 Tallahassee, Florida 32317-4229 Thomas R. Brown, Esquire Brown, Terrell, Hogan, Ellis, McClamma and Yegelwel, P.A. Blackstone Building, Eighth Floor 233 East Bay Street Jacksonville, Florida 32202 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Angela T. Hall, Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue to be decided is whether disciplinary action should be taken against the Respondent's license as a medical doctor for the alleged violations of Chapter 458, Florida Statutes (1983), as set forth in the Administrative Complaints?
Findings Of Fact The Respondent is licensed as a medical doctor with the State of Florida, Board of Medical Examiners. The license, Number 28366, was first issued on February 11, 1976. The Respondent was licensed at all times relevant to this proceeding. October 5, 1983 Complaint. On or about July 7, 1982, the State Attorney of the Eleventh Judicial Circuit filed a ten (10) count Information against the Respondent. In the information it was alleged that the Respondent knowingly and unlawfully filed, attempted to file or aided and abetted in the filing of claims for services to recipients of state or federally funded assistance program benefits (the Florida Medicaid Program) in violation of Section 409.325, Florida Statutes. The services, according to the Information, were never rendered. On April 18, 1983, the State of Florida nolle prossed Counts 3 and 4 of the Information. On June 30, 1983, the State nolle prossed Counts 1, 2, 5, 7 and 9. The same day, the Respondent withdrew his original plea and plead guilt to the remaining counts: 6, 8 and 10 of the Information. As a result of the Respondent's guilty plea, he was found guilty on counts 6, 8 and 10 and adjudication was withheld. The Respondent was placed on probation for one (1) year and was required to repay $3,500.00 to the Florida Medicaid Program. The Respondent completed his probation, which was terminated early by the court, and made restitution to the Florida Medicaid Program. The Respondent stipulated that he plead guilty to Counts 6, 8 and 10 of the Information, that adjudication ways withheld and that the case was disposed of in the manner described above. According to the Respondent, he plead guilty on the advice of this counsel and as a matter of convenience (to himself and not "to all parties" as suggested by the Respondent in his proposed findings of fact). He did so despite his belief that he was not guilty. The Respondent's proposed finding of fact that his attorney never advised him that he could be in violation of Section 458.331(1)(c), Florida Statutes, irrelevant. July 27, 1983 Complaint. On March 24, 1981, the Respondent saw Ana Gonzalez as a patient in his office. Ms. Gonzalez was thirteen years old at the time of her first visit (Ms. Gonzalez's date of birth was incorrectly listed as "8-7-82" in the Respondent's records). Ms. Gonzalez, according to the Respondent's record of Ms. Gonzalez's visits (hereinafter referred to as the "Patient Records") complained of "pain of mild intensity on lower left quadrand [sic], inradiating [sic] to right lower quadrant and left lumbar fossa." The Patient Records, which were all in the same handwriting, 1/ also indicate that Ms. Gonzalez had low back pain, dark urine which looked like blood and a fever of 100.4 degrees. A physical examination of Ms. Gonzalez found nothing abnormal except pain in both lower quadrants of the abdomen and the left lumbar fossa of the back. The Respondent made a probable diagnosis of pyelonephritis and ordered a SMAC 26, a Complete Blood Count ("C.B.C."), an urinalysis, an E.K.G. and a chest x-ray. The Petitioner has proposed a finding of fact that the chest x-ray and the E.K.G. were not referred to in the Patient Records. This proposed finding is incorrect. The Respondent did, however, order a kidney, urethra and bladder x-ray ("K.U.B.") which was not recorded in the Patient Records. The Respondent also prescribed an antibiotic. The results of the E.K.G. and the chest x-ray are not noted in the Patient Records; nor does the E.K.G. print-out include any findings. The SMAC 26 showed nothing abnormal. The C.B.C. also showed nothing abnormal and the K.U.B. was negative. Finally, the urinalysis showed that the patient's urine was yellow, clear and contained no blood. The charges for the first visit were $30.00 for the examination, $182.00 for the SMAC 26 (charged at $7.00 per 26 procedures), $6.00 for the urinalysis, $10.00 for the C.B.C., $40.00 for the chest x-ray and $40.00 for the E.K.G. No charge was made for the K.U.B. The patient was next seen by the Respondent on March 31, 1981 (erroneously reported as March 31, 1982 in the Patient Records). The Petitioner's proposed finding of fact that the Patient Records were kept in the same pen is therefore incorrect. The Patient Records indicate the following: "The patient is feeling a little better of pain. No fever. Persist urine dark." The Patient Records do not indicate that Ms. Gonzalez was examined on this visit. The Respondent continued the antibiotic and ordered the following tests: a C.B.C., a K.U.B. and an intravenous pyelogram ("I.V.P."). The I.V.P. was reported as negative in the Patient Records. The C.B.C. again found no abnormalities. The K.U.B., as testified to by the Respondent, was also negative. The Respondent testified that he ordered another K.U.B. on this visit because he again found blood in the patient's urine and because he believed that you can never tell when a test will result in a positive finding. The Petitioner has proposed the following finding of fact with regard to the March 31, 1981 visit: Again, the tests results obtained from the laboratory show that the urine is not discolored and that the urine does not contain blood, in contradiction with the handwritten medical record of the Respondent. Although this proposed finding is correct with regard to tests performed on the March 24, 1981 visit, no urine test was performed on the March 31, 1981 visit. The charges for the March 31, 1981, visit included $30.00 for the examination, $10.00 for the C.B.C., $40.00 for the K.U.B. and $80.00 for the I.V.P. The third visit by Ms. Gonzalez was on April 7, 1981. On this visit, Ms. Gonzalez was feeling much better (the "pain was very mild"), but the Respondent determined there was still blood in her urine. The Patient Records again do not indicate the results of any physical examination. The Respondent ordered an urinalysis which found that her urine was yellow. Although the Respondent testified in his deposition that the Patient Records for the April 7, 1981 visit were complete, billing records show that a charge for an I.V.P. was made for April 7, 1981 which was not recorded in the Patient Records. The Respondent admitted in his deposition that no I.V.P. was performed and stated that the charge for $80.00 was a mistake. The Respondent stated that he did perform a K.U.B. or I.V.P. on this visit because it was too soon after the last K.U.B. and I.V.P. tests. Instead of an I.V.P., the Respondent testified in his deposition that Ms. Gonzalez received physiotherapy for which she should have been charged only $20.00. The physiotherapy was ordered because of the patient's complaints of lower back pain and consisted of heat treatment/ultrasound. Petitioner, in its proposed findings of fact, indicates that the Respondent took Ms. Gonzalez, off the antibiotic he had prescribed earlier at the April 7, 1981 visit, citing "(Depo., page 20)." This proposed finding is not supported by the record. Other charges for the April 7, 1981, visit included $30.00 for the examination and $6.00 for the urinalysis. The next visit by Ms. Gonzalez was on April 14, 1981. The Patient Records do not indicate Ms. Gonzalez's condition or that an examination was performed. The Patient Records only indicate that the Respondent suggested hospitalization of Ms. Gonzalez so that more tests could be made and that her father refused. The Respondent ordered a K.U.B. (which was negative) and a SMAC 26 (which found no abnormalities). The antibiotic was also changed. The charges for this visit included $30.00 for the visit, $40.00 for the K.U.B. and $182.00 ($7.00 per 26 procedures) for the SMAC 26. Again the bill included a charge of $80.00 for an I.V.P. which, according to the Respondent, was a mistake in billing. The Respondent actually performed physiotherapy which should have resulted in a $20.00 charge. The final visit occurred on April 20, 1981. The Patient Records for this visit indicated the following: I insisted some UROLOGY must consultate this patient and she refused to see another Doctor and culture and sensitivity. She says she does not want to go to the rest room. She decides pick up the urine. I decide another I.V.P. because persist a mild hematuria [blood]. Mr. Gonzalez again refused to admit his daughter to a hospital as suggested by Respondent. The Respondent recommended hospitalization because his tests were not finding anything and he therefore wanted to run a kidney scan. There is no indication in the Patient Records as to whether an examination was performed. The Respondent ordered a K.U.B., an I.V.P. and a C.B.C. The results of these tests are not recorded in the Patient Records but the Respondent has testified that they were negative. On this visit the Respondent indicated his diagnosis was pyelonephritis, which he described as "kidney infection." Charges for this visit were $30.00 for the examination, $40.00 for the K.U.B., $80.00 for the I.V.P. and $10.00 for the C.B.C. Pyelonephritis is an inflammatory reaction of the kidney involving the kidney tissue and the pelvis of the kidney. It is usually accompanied by severe toxicity, a temperature for a child the age of Ms. Gonzalez of 104 to 105 degrees and extreme chills. It is a serious infection. The diagnosis of pyelonephritis on March 24, 1981 and April 20, 1981, by the Respondent was not medically justified. Ms. Gonzalez did not have any of the symptoms normally associated with pyelonephritis. The results of all of the tests performed by the laboratory 2/ and the Respondent were negative. Laboratory test results conclusively showed that Ms. Gonzalez's urine was yellow, and contained no blood. Additionally, the Respondent should have performed a urine culture, a blood culture and a sensitivity test before concluding that the patient was suffering from pyelonephritis. The cultures would have determined if there was an organism present and, if so, what type. The sensitivity test would have shown what the organism was sensitive to. None of these tests were performed. Most of the tests ordered by the Respondent were also not medically justified. The only tests which were clearly medically justified were the SMAC 26, C.B.C. and the urinalysis ordered on March 24, 1981. Most of the remaining tests were not medically justified as hereinafter discussed. The E.K.G. performed by the Respondent on March 24, 1981, was not medically justified. The Respondent indicated that he ordered an E.K.G. because he was looking for valvular problems with Ms. Gonzalez's heart. An E.K.G., however, only, shows the electrical activity of the heart. The Respondent also testified that the E.K.G. was performed because he suspected a kidney problem. According to the Respondent, if there was a problem with Ms. Gonzalez's kidneys, it could have affected her E.K.G., especially in light of her age. No problem was found according to the Respondent. The chest x-ray performed on the March 24, 1981 visit was not medically justified. This test resulted in exposure of Ms. Gonzalez to x-rays which could be harmful to her. The Respondent, based upon his deposition testimony, believes that a chest x-ray should be taken of anyone who comes to his office as a patient and has insurance. With regard to Ms. Gonzalez, he indicated that her parents requested the chest x-ray but admitted there was no medical cause for her to receive a chest x-ray. The K.U.B. tests performed on March 24, 1981, March 31, 1981, April 14, 1981 and April 20, 1981 and the I.V.P. tests performed on March 31, 1981 and April 20, 1981 were not medically justified. These tests also resulted in exposure of Ms. Gonzalez to x-rays which could be harmful to her; especially the I.V.P. test which has six to seven times the radiation level of a K.U.B. The I.V.P. was also a dangerous procedure because it is an invasion procedure (the introduction of a foreign substance to the body). Even the Respondent must have realized the possible problem with the I.V.P. since he indicated that this test was not performed on April 7, 1981, because it was too soon after the test performed on March 31, 1981. The second SMAC 26 test, performed on April 14, 1981 was not medically justified. The test, according to the Respondent, was performed because the blood in Ms. Gonzalez's urine persisted. The evidence clearly shows that there was no blood in her urine, however. A SMAC 26 is a single laboratory procedure whereby one blood sample is divided into 26 parts (or some other number of parts) which are diagnosed or read by a machine at the same time. It is not 26 separate tests; it is a single automated test. The method by which the Respondent billed for the SMAC 26 tests performed on March 24, 1981 and April 14, 1981, (charging $7.00 for each of 26 tests) was not justified. The Respondent billed for the S4AC 26, which gas performed by Central Medical Laboratory, because he believed that the insurance company would pay what he hoped to receive for the test: $60.00-$80.00. If he had only billed $60.00 for the test he stated that he would only have received $6.00 to $10.00 from the insurance company. The Petitioner has proposed a finding that the SMAC 26 billing was "outrageously high." The evidence supports a finding that the charge was excessive. Finally, the C.B.C. tests of March 31 1981 and April `20, 1981 and the physiotherapy performed on April 7, 1981 and April 14, 1981 were not medically justified. Dr. Handwerker's testimony was consistent with the findings in this Recommended Order with regard to the lack of medical justification for most of the tests. The Respondent stated that he agreed in part and disagreed in part with Dr. Handwerker's testimony. When asked to identify those areas of Dr. Handwerker's testimony he disagreed with, the Respondent unsuccessfully attempted to rebut Dr. Handwerker's testimony with regard to the E.K.G. and chest x-ray and with the fact that the tests were repeated to often. 3/ The Respondent did not attempt to rebut any other part of Dr. Handwerker's testimony, which was based upon his examination of the Patient Records and the Respondent's deposition (she did not examine Ms. Gonzalez). Based upon the foregoing, it is clear that the Respondent failed to practice medicine in conformance with the generally accepted and prevailing standards of medicine in the medical community. The Respondent also failed to, practice medicine with the level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar circumstances and conditions. The father of Ms. Gonzalez testified on behalf of the Respondent. Mr. Gonzalez stated that he was satisfied with the Respondent's medical care of the Gonzalez family and that he would continue to retain the Respondent. Letters submitted by the Respondent also indicated that friends, associates and his pastor believe the Respondent is honest, experienced, qualified and of high moral and ethical standards. Although the Respondent testified that he had done the best he could do for Ms. Gonzalez, the unrebutted testimony supports a conclusion that his best was not good enough. Finally, the Respondent's testimony to the effect that he had not intended to exercise influence over Ms. Gonzalez or to deceive her in his medical treatment of her is not believable in light of the facts.
Recommendation Based on the foregoing Findings of Fact and Conclusions RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(c), Florida Statutes (1983), by being found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. It is further RECOMMENDED: That Respondents be found guilty of violating Section 458.331(1)(l), Florida Statutes (1983), by employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community. It is further RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(o), Florida Statutes (1983), by exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain of himself, as a licensee. It is further RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(t), Florida Statutes (1983), by failing to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. It is further RECOMMENDED: That the Respondent's medical license be suspended for a period of one (1) year and that the Respondent be placed on probation for a period of three (3) years, upon reinstatement of his license, subject to such conditions and terms of monitoring and continuing medical education as may then be prescribed by the Board of Medical Examiners. DONE and ORDERED this 22nd day of February, 1985, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1985.
The Issue The Administrative Complaint in DOAH Case No. 99-4377, charged Respondent with violating Section 458.331(1)(t), Florida Statutes (failure to practice medicine with care, skill and treatment); Section 458.331(1)(m), Florida Statutes (failure to keep written records justifying treatment); Section 452.331(1)(x), Florida Statutes (violation of a rule of the Board or Department) by violating Rule 64B8-9.003(2), Florida Administrative Code, relating to legibility of medical records, in connection with Respondent's emergency room treatment of Patient B.W. on July 21, 1995. The Administrative Complaint in DOAH Case No. 99-4378, charges Respondent with violation of Section 458.331(1)(s), Florida Statutes (being unable to practice medicine with reasonable skill and safety to patients by reason of illness, use of any material, or as the result of any mental or physical condition).
Findings Of Fact At all times material to the incidents alleged in the Administrative Complaints, Respondent was a licensed medical physician in the State of Florida, having been issued License No. ME 0016828. Respondent specialized in internal medicine and emergency medicine but has never been board certified in any specialty. Respondent's license has been delinquent since January 31, 2000, but because delinquent licenses may be subject to renewal, the Petitioner has persisted in prosecuting these cases. DOAH Case No. 99-4377 On July 21, 1995, B.W., a 56-year-old female, presented to Respondent in the emergency room of Florida Hospital Waterman, with complaints of chest, epigastric, and left shoulder pain. B.W. had a history of dermatomyositis, for which she had been taking 100 mg of Prednisone for a month, along with other medications. Prednisone in such large doses can cause gastrointestinal irritation, ulceration, and bleeding. The day before, B.W. had been prescribed Imuran by her rheumatologist for immunologic problems. Dermatomyositis is a degenerative disease of skeletal muscle that can lead to a multitude of complications, including rheumatologic problems evidenced by abnormal laboratory results. The standard of care in the examination and treatment of a patient with chest pain requires an emergency physician to obtain a history including a complete medical history, family history, and social history. Additionally, in order to meet the standard of care, the emergency physician must perform a complete physical examination, including a review of systems. The emergency room records for Respondent's treatment of B.W. show the information contained above in Finding of Fact No. 4. The emergency room records do not show that Respondent obtained or documented a complete medical history, family history, or social history of B.W. Respondent violated the standard of care in that he failed to obtain or document a complete medical history, family history, or social history of B.W. Respondent also violated the standard of care in that he failed to perform or document a complete physical examination, including a review of systems. Respondent ordered an electrocardiogram (EKG), a chest X-ray, a complete blood count (CBC), complete cardiac enzymes testing (CPK and CKMB), and a metabolic profile or chemistry panel (MPC). He also did a rectal exam which was negative for blood. He did all appropriate tests. He did not fail to order any appropriate tests. The EKG and the chest X-ray yielded normal results, but B.W.'s blood count revealed several abnormal values, including a decreased platelet of 21,000 and a markedly elevated white count of 24,000. A platelet count of 21,000 is extremely low and grounds for major concern, as is the elevated 24,000 white count. Together, in the presence of the other symptoms and abnormal blood values present, which included low RBC, anemic hemoglobin, and low hemocrit, the standard of care requires that an emergency physician obtain a consultation with a specialist, such as a rheumatologist or a hematologist. In light of all the foregoing results and normal corpuscular volume, which B.W. also had, the emergency physician should have recognized that B.W. did not have simple iron deficiency anemia. Under some circumstances, the emergency room physician's consultation with B.W.'s primary care physician, who in this case was also a rheumatologist, would have been sufficient. Respondent maintained that he had obtained a history from B.W. as set forth in Finding of Fact No. 4, and an oral report from the hospital lab technician to the effect that a blood test ordered by B.W.'s treating rheumatologist the preceding day, July 20, 1995, had shown a platelet count of 18,000, and that because Respondent presumed B.W.'s platelets were increasing with the use of Imuran plus other factors, Respondent did not admit B.W. to the hospital, but, instead, discharged her without even consultation. Despite Respondent's foregoing explanation, it is clear that Respondent did not record or document on B.W.'s chart his oral conversation with the lab technician, if, in fact, such a conversation occurred. This was below the acceptable standard of medical care and record-keeping for an emergency room physician. Respondent stated that he felt that because the treating rheumatologist had not admitted B.W. to the hospital or transfused B.W. the previous day, she should not be admitted or transfused on July 21, 1995. He stated that he also relied on a medical text (Merck's Manual) which allegedly states that platelet transfusions should not be given until the count falls to 10,000. Respondent stated that he ruled out a myocardial infarction on the basis that both the CKMB on B.W. and the CKMB Index were not elevated and B.W.'s EKG was normal. However, Dr. Tober, who is certified in emergency medicine, testified more credibly that he had never seen a CPK test so high; that interpretation of CPK and CKMB in such a patient as B.W. would be confounded by the co-existence of the dermatomyositis, grossly throwing off these tests in an acute cardiac setting, sometimes causing several EKGs to come back normal in the course of a myocardial infarction; that B.W.'s extremely low platelet count should cause great concern about the hemologic system and clotting response if B.W. started to hemorrhage; and that the suspiciously low lymphocytes and all blood parameters should have caused Respondent not to discharge B.W. prior to a consultation with a specialist. Respondent failed to meet the standard of care by the treatment he rendered to B.W., in that he did not obtain a consultation from either the primary care physician, another rheumatologist, or a hematologist, before discharging her. That standard of care requires an emergency physician to determine an appropriate diagnosis and treatment as related to the patient's complaint and results of examinations. Respondent violated the standard of care in that he merely wrote into B.W.'s chart a portion of her medical history, "dermatomyositis," instead of a current diagnosis which addressed her current abnormalities when she presented in the emergency room. Thus, Respondent did not discern an appropriate diagnosis while appropriately treating B.W.6 Respondent's chart on B.W. is illegible to the extent that Dr. Tober was unable to read most of 23 lines of it. Because proper care of patients requires that medical records be sufficiently legible for successive professionals to discern what the writer has done and analyzed, I find that Respondent is guilty of keeping written medical records that are illegible and difficult to decipher. I do not consider Hospital Waterman's failure to provide dictation or transcription equipment and/or personnel to excuse this flaw. DOAH Case No. 99-4378 On or about July 14, 1995, Respondent was convicted of driving under the influence and placed on probation for 12 months, and his driver's license was revoked for 12 months. About two years later, on July 12, 1997, Respondent's vehicle collided with another vehicle. Respondent and the driver of the other car were injured. Blood was drawn from Respondent at the hospital. Laboratory studies performed by the Florida Department of Law Enforcement revealed that Respondent's blood alcohol level was 0.10 grams of ethyl alcohol per 100 ml. Under Florida law, a driver is legally intoxicated when his blood alcohol level is 0.08 grams of ethyl alcohol per 100 ml or higher. On August 12, 1997, Respondent was arrested and charged with one count of serious bodily injury while driving under the influence, and two counts of property damage while driving under the influence. On July 2, 1998, Respondent entered a plea of guilty7 to one count of serious bodily injury while driving under the influence and was sentenced to imprisonment for a period of seven years, one month, and eight days. On or about January 13, 1998, Walter J. Muller, M.D., a board-certified psychiatrist, performed a psychiatric evaluation of Respondent. Dr. Muller diagnosed Respondent with major depression, dysthymic disorder, and alcohol abuse, pursuant to The Diagnostic and Statistical Manual-IV. At that time, these conditions were active and not in remission. The diagnosis of major depression correlates with impaired social and occupational functioning. A diagnosis of dysthymic disorder is an indication of impairment and the inability to practice medicine with skill and safety to patients. A diagnosis of alcohol abuse can be an indication of inability to practice medicine with skill and safety to patients, but would depend upon when the abuse is occurring and how long it has been since the abuse occurred. In the expert opinion of Dr. Raymond Pomm, who is board certified in adult psychiatry and general psychiatry, with added qualifications in addiction psychiatry, and who relied on Dr. Muller's evaluation, the combined three diagnoses of major depression, dysthymic disorder, and alcohol abuse revealed that, to a degree of reasonable medical certainty, Respondent was unable to practice medicine with skill and safety to patients on the date of Dr. Muller's report. Respondent was evaluated at Menninger Clinic in Kansas, on or about May 26, 1998, and diagnosed with alcohol dependence. After six weeks of treatment at the Menninger Clinic, Respondent was released as being "in early remission." The treating physician made a number of recommendations for rehabilitation of Respondent, including treating his alcohol dependence by entering into a monitoring contract with the Physician's Resource Network in Florida and requiring a further evaluation by a neurologist of Respondent's apparently diminished cognitive skills. Dr. Pomm did not have the opportunity to read the entire evaluation by the Menninger Clinic, and did not rely upon it in forming his opinion of Respondent's inability to practice medicine with skill and safety to patients. However, according to Dr. Pomm, there is no cure for alcohol dependence. It is a life-long illness, which is incurable, and which at best, can only be "in remission." In Dr. Pomm's opinion, one who is alcohol-dependent cannot practice with skill and safety to patients without undergoing a monitoring program. While I accept Respondent's testimony that he has remained sober since approximately May 27, 1998, because he has been in prison, I also note that Respondent has not entered into a monitoring contract or been monitored in a recovery program because he has been in prison. Accordingly, there is no evidence that Respondent's circumstances have changed sufficiently since January 13, 1998, so as to demonstrate that he is able to practice medicine with skill and safety to patients in the real world.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of all violations charged, and as a penalty therefore, suspending Respondent's license to practice medicine in Florida until such time as Respondent presents to the Board and proves that he can practice with skill and safety. DONE AND ENTERED this 15th day of June, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 15th day of June, 2000.
